DIFFERENT PUNISHMENTS
Alabama, Florida, and Georgia prescribe a heavier punishment for fornication and adultery between white people and Negroes than between members of the same race. On first consideration this appears to be a case of different punishment. As was said by the Supreme Court of Alabama[[649]]: “The fact that a different punishment is affixed to the offence of adultery when committed between a Negro and a white person, and when committed between two white persons or two Negroes, does not constitute a discrimination against or in favor of either race. The discrimination is not directed against the person of any particular color or race, but against the offence, the nature of which is determined by the opposite colors of the cohabiting parties. The punishment of each offending party, white and black, is precisely the same.” The constitutionality of these statutes as to cohabitation between persons of different races has been upheld by the Supreme Court of the United States.[[650]]
The following are instances of race distinction in the matter of offences and punishment. South Carolina,[[651]] in 1865, said that a person of color who committed assault upon a white woman with intent to ravish her, or who had sexual intercourse with a white woman by impersonating her husband, should be guilty of a felony “without benefit of clergy.” Florida[[652]] made it a capital crime to assault a white female with intent to commit rape or to be accessory thereto. Kentucky[[653]] provided that all persons, without distinction of color, would be subject to the same pains and penalties for felonies and misdemeanors, adding: “The laws now in force for the punishment of Negroes and mulattoes for rape on white women are hereby continued in force.” This was amended[[654]] in 1869, but the offence was still against white women. The race distinction in these statutes lies in the fact that heavy punishment was prescribed for an assault upon a white woman, but no such protection was accorded a Negro woman.
South Carolina made it a felony “with benefit of clergy” for a servant to steal a chattel, money, or valuable security to the value of ten dollars belonging to, or in the possession or power of his master or employer. It was an “aggravated misdemeanor” for a servant to steal such property below the value of five dollars. The servant had no right to sell any farm produce without the written evidence from his master or the District Judge or Magistrate that he had a right to do so. But all such race distinctions in the matter of punishment passed away, as did the other “Black Laws,” in 1866.
There are certain statutes as to crimes which, though they do not mention the Negro in so many words, are thought by many to have peculiar application to him. The vagrancy laws of the Southern States, for instance, have been considered as directed primarily against Negroes. Some of the States made it a crime for one to sell cotton in bags between certain hours of the night. This was probably a result of the habit attributed to the Negro of hiding cotton in the jambs of the fences and woods in the daytime to take to the cross-roads store at night. Missouri,[[655]] in 1903, made chicken-stealing a felony punishable by imprisonment for five years, or a fine of two hundred dollars. The next year, Kentucky[[656]] passed the following statute: “That if any person shall steal chickens, turkeys, ducks, or other fowls of the value of two dollars, or more, he shall be confined in the penitentiary not less than one nor more than five years.” Whether this is an indirect race distinction or not, the writer will not take it upon himself to decide.
Some of the States have enacted statutes to the effect that the punishment for the members of all races shall be the same for the same offence. Delaware[[657]] did so in 1867. In Mississippi,[[658]] in 1865, Negroes were given the right to procure the arrest of a white person; but, if the arrest were false and malicious, the Negro must pay all the costs, be fined not over fifty dollars, and imprisoned not over twenty days. In 1867, however, a statute said that Negroes must have the same punishment as white people. South Carolina,[[659]] as has been seen, repealed all laws prescribing different punishment for Negroes.
The following interesting bit of news is taken from an Associated Press report of July 21, 1909: “Mobile, Ala.—The commissioners to-day established a curfew law for Negroes. Commencing to-night, all the blacks must be at home or in bed at 10 P.M. Any of them caught wandering at large will be locked up. This action is due to an epidemic of hold-ups perpetrated by Negroes.”
A recent instance of race distinction in the court room seems to come from New York. A Pullman porter, named Griffin, was arrested in Montreal, charged with stealing a pocket-book, but the charge was not substantiated and he was released. He thereupon brought suit against Daniel F. Brady, who caused his arrest, and obtained a verdict for two thousand five hundred dollars in damages. The Supreme Court of New York reduced the damages from two thousand five hundred dollars to three hundred dollars. Upon an appeal by Griffin, the appellate division of the Supreme Court sustained the order reducing the damages. The following is a part of the opinion of Judge Drugo of the Supreme Court[[660]] whose order was sustained: “You cannot say that he [Griffin] is just the same as a white man, when you come to say how much his name will suffer. He might suffer more. But, after all, what are the probabilities about it? Is it likely that when a colored man is arrested and imprisoned he feels just as much shame as a white man of any circumstance might?
“I think if you were to take the Mayor of the city and arrest him he would feel very much more humiliated than this porter, from the fact that he was the Mayor and not a colored man, for if a colored man he might not feel quite as much humiliation and shame.
“In one sense a colored man is just as good as a white man, for the law says he is, but he has not the same amount of injury under all circumstances that a white man would have. Maybe in a colored community down South, where white men were held in great disfavor, he might be more injured, but after all that is not this sort of a community. In this sort of a community, I dare say the amount of evil that would flow to the colored man would not be as great as it probably would be to a white man.”