by Brent J. Aucoin. Fayetteville, AR: University of Arkansas Press, 2007. 200pp. Cloth. $35.95. ISBN: 9781557288493.

Reviewed by Dante Gatmaytan-Magno, University of the Philippines, College of Law. Email: dante.gatmaytan [at] up.edu.ph.


The role of the Federal Judiciary in race relations in the United States is usually associated with the Supreme Court’s landmark 1954 ruling in BROWN v. BOARD OF EDUCATION. In that case, the Court ruled that segregation in the public school system violated the Equal Protection Clause of the Constitution, forcing public schools to integrate and ultimately paving the road towards civil rights legislation. Before that, the Court’s involvement was disheartening to say the least – sanctioning, for example, racial segregation in the provision of public accommodations in the now notorious case of PLESSY v. FERGUSON (1896).

This picture of an unresponsive judiciary is inaccurate. Federal judges had been engaged in mending race relations in the South, during Reconstruction – long before BROWN. Brent J. Aucoin, an associate professor of history at Southeastern College at Wake Forest provides an important contribution to the study of lower court judges in the realization racial equality in post-Reconstruction America. The book casts light on the works of three southern federal judges, Jacob Trieber of Arkansas, Emory Speer of Georgia, and Thomas Goode Jones of Alabama, and their efforts to read the Reconstruction Amendments more to give African Americans legal protection not otherwise available from States. Aucoin challenges conventional wisdom about the role played by judges in race relations, presenting significant exceptions in an otherwise conservative institution.

Aucoin begins by presenting the inhospitable political situation in the postbellum South. The next three chapters focus on each of the judges’ “background and views” and examine decisions they handed down which relate to the rights of African Americans. In the concluding chapter, the author attempts to explain why the judges handed down these decisions and argues that they were the result of a fusion of their societal, legal, and political philosophies. Aucoin also appends excerpts from pertinent laws and personal communications and opinions of the judges.

The judges’ efforts at racial equality are significant, considering the political and legal milieu in which they lived and worked. At the start of the twentieth century Democrats had tried to reestablish the conditions of the antebellum South (p.2). From 1890 the South had entered into new depths of racism, with public officials encouraging lynching of blacks. Even more significantly, the Supreme Court had been interpreting the Constitution conservatively – “aiding and abetting the southern counterrevolution” (p.6) [*181] – laying down doctrines that provided the scaffolding for legal discrimination with decisions such as PLESSY. At the start of the twentieth century, the judiciary had not proven to be sympathetic to blacks.

Judges Trieber, Speer, and Jones worked around the political situation and Supreme Court decisions. While remaining faithful to the Constitution and its amendments, “their political beliefs and social values played an important role in their judicial conduct” (p.11). Aucoin explains that the judges also adhered to the “New South Creed” – the belief that the postbellum South could attain economic prosperity if racial relations were stabilized. But the judges, Aucoin argues, sincerely believed that they were being faithful to the federal laws they pledged to uphold (pp.14-15).

Jacob Trieber served on the U.S. District Court for the Eastern District of Arkansas, and his interpretations of the Thirteenth Amendment advanced the first significant challenge to the debt peonage system. Trieber’s thesis became concrete in UNITED STATES v. MORRIS (1903). The defendants in that case had posted notices on the homes of African Americans demanding that they leave Cross County, Arkansas. They questioned their indictment under Civil Rights Act of 1866 on the ground that the provisions were unconstitutional.

Trieber dismissed the argument by pointing out that the Supreme Court had upheld the constitutionality of these provisions. The authority to prosecute racist individuals, he argued, was in the Thirteenth Amendment, which provides that, “Neither slavery nor involuntary servitude, except as a punishment for crime where of the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” Trieber found that the Amendment authorized Congress to punish individuals who enslaved others. After the Civil War, he noted, many southern States passed laws “that established a system of peonage but little removed from that of slavery” (p.24). The system prevented Negroes from cultivating land, and courts were powerless to help them. It was this situation that encouraged Congress, said Trieber, to enact the Civil Rights Act of 1866.

Trieber, using Supreme Court precedent, explained that a restrictive interpretation of the Constitution would “hinder Congress’ ability to enforce the rights and provide the privileges that are mandated by the Constitution. Congress has been allowed, on occasion, to exercise powers that are not explicitly granted by the Constitution, but which were “necessary and proper” in order to meet a mandate.”

Trieber ruled that Congress was authorized under the Thirteenth Amendment to protect the fundamental rights of African Americans because “the denial of such privileges is an element of servitude.” He went on to explain that a conspiracy to deprive them of the rights to lease land and to accept employment violated the Thirteenth Amendment and the Civil Rights Act and that Congress had authority to prosecute those who are guilty of such violations (p.26).

A majority of the Supreme Court later disagreed with Treiber’s interpretation of [*182] the Thirteenth Amendment, leaving African Americans without any legal remedy against private discrimination and intimidation for a half century until the Court reversed its position in 1968. Trieber’s views were vindicated as the Court adopted his interpretation and transformed the Thirteenth Amendment into “a potentially effective legal weapon against racial discrimination” (p.34).

Judge Emory Speer was a US attorney for the Northern District of Georgia when he crusaded to punish those who harassed African Americans for exercising their right to vote. Speer prosecuted these cases successfully, including the Yarbrough gang that terrorized a string of African American homes. The defendants challenged their conviction on the ground that the Federal Government was not expressly empowered to protect voters from violence. The Supreme Court in EX PARTE YARBROUGH (1884), in a surprising decision, disagreed, finding that such power is implied in the Constitution.

As a judge, Speer would go on to preside over the conviction of whites who held blacks in a state of peonage in Georgia. In U.S. v. MCCLELLAN AND CRAWLEY (1904), he opined that the power of Congress to enact anti-peonage legislation was unquestionable and that the Thirteenth Amendment was an absolute declaration which outlawed involuntary servitude. Debt peonage, in his view, was a form of slavery or involuntary servitude.

Speer also tried to end the chain gang system where convicted criminals were forced to work on public lands while chained together, calling the system a form of involuntary servitude which was imposed for minor municipal offenses. The Supreme Court on appeal, however, held that Judge Speer had no jurisdiction over the matter (p.51).

After less than two years on the bench, Judge Thomas Goode Jones began a crusade to rid Alabama of debt peonage, part of which included a declaration that the Alabama Labor Law of 1901 violated the equal protection clause of the Constitution. The law prevented a laborer who was indebted to his employer to break the contract and seek alternative employment without securing the original employer’s consent.

Jones distinguished himself with his decision in EX PARTE RIGGINS – where he held that lynching violated Federal laws. As did the other judges discussed in this book, Jones posited that the Thirteenth Amendment was designed to “ensure that the emancipated race would forever possess the same civil rights as white citizens of the United States” (p.72). When an African American was harmed or injured because of his race, such conduct was a form of repression that the Reconstruction Amendments were designed to eradicate. Lynching, he said, fell into this class of acts.

He believed lynching violated due process; when a black man is taken from prison and killed, this clearly deprived him of due process under the Fourteenth Amendment. The Amendment made the provision of due process a matter of national concern, sanctioning federal intervention to the extent that it should deal with the evil of lynching (p.73). Aucoin presents Jones’ elaborate [*183] arguments on why lynching is proscribed under the Reconstruction Amendments and discusses how he reluctantly released a member of a lynch mob in light of the Supreme Court’s adverse position on the issue (p.79).

These judges faced similar issues and arguments from lawyers who insisted that the Federal Government had no business interfering with racist conduct. Their work reflected a willingness to read the Reconstruction Amendments to provide protection not otherwise provided by States. They used the Amendments to address the harassment of African Americans, with such practices as debt peonage, and lynching, all with a view to easing race relations and on the hope that the Supreme Court would one day see things their way.

The biographies in this book are sparse, and much of the discussion is understandably weighted down by legal jargon. The cases are not always considered chronologically, which can sometimes be confusing. These shortcomings, however, do not take away from Aucoin’s contribution to our understanding of the role judges played in Reconstruction.


PLESSY v. FERGUSON, 163 U.S. 537 (1896).

EX PARTE RIGGINS, 134 F. 404, reversed. — RIGGINS v. UNITED STATES, 199 U.S. 547 (1904).

U.S. v. MCCLELLAN AND CRAWLEY (DC Georgia 1904).

UNITED STATES v. MORRIS, 125 Fed. 322 (E.D. Arkansas, 1903).

EX PARTE v. YARBROUGH, 110 U.S. 651 (1884).

© Copyright 2008 by the author, Dante Gatmaytan-Magno.