Emory Speer and Federal Enforcement of the Rights of African Americans, 1880-1910

Emory Speer and FederalEnforcement of the Rightsof African Americans,1880-1910

by TIMOTHY S. HuEBNER*

As editor of the American Journal of Legal History, Larry Reilly

has had a keen interest in publishing pieces about unsung

heroes. Asked to take the helm at a difficult moment in the

Journal’s history, he has, in less than a decade, put it on a path

to remarkable success—making him an unsung hero as well. I

therefore am honored to participate in this special issue mark-

ing his retirement.

In November, 1888, Judge Emory Speer sat down at his desk towrite a letter to the newly-elected president, Republican BenjaminHarrison. From his office in Macon, Georgia, Speer had a uniquevantage point on the “southern problem” that Harrison would soonconfront. Having served in Congress as an Independent before goingover to the Republicans—a move that cost him his political career—Speer had won appointment as a U.S. attorney in Georgia and suc-cessfully prosecuted violent outrages perpetrated by whites againstAfrican Americans. Speer’s efforts had earned the notice of Presi-dent Chester Arthur, Harrison’s predecessor, who appointed Speerfederal judge for the southern district of Georgia.

In his letter to the president-elect, Judge Speer voiced strong sup-port for continued enforcement of the rights of African Americansand laid out a clear agenda for the incoming administration: “Tomake it the steady policy of the Department of Justice to secure as

* Irma O. Sternberg Professor and Chair, Department of History, Rhodes College.Past Book Review Editor of the American Journal of Legal History. The authorwishes to thank Ian Engdahl, Matthew Hild, John E. Murray, and Eric W. Rise fortheir useful comments and suggestions. The author would also like to acknowledgethe late kermit L. Hall, the late Bertram Wyatt-Brown, and Mary Ann Hawkins forthe guidance and support they offered when I wrote the original version of theessay.

352015EMORY SPEER AND FEDERAL ENFORCEMENT OF

THE RIgHTS OF AFRICAN AMERICANS, 1880-1910

District Attorneys men of high character, unquestioned ability, skillsin advocacy, and resolute courage, Marshals of good character andnotable intrepidity. To let it be known that the Department will reg-ularly, firmly and unflinchingly, prosecute every intentional viola-tion of the election laws. To let the law-breaker, and his politicalmanagers know that this prosecution with its cost will certainly fol-low his crime. Let the voter have the encouraging assurance that asteady, vigilant and just Government is at his back. These methodswill inevitably . . . settle the ‘the southern problem,’ a settlementwhich made by the southern people themselves will be enduringand perpetual.”1 Speer’s stirring words to President-elect Harrisoncaptured his career-long commitment to federal enforcement ofthe rights of African Americans.

At the heart of federal enforcement was the work of U.S. attor-neys and lower federal court judges such as Speer.2 To be sure, themen who held these positions during the late nineteenth and earlytwentieth century operated in an uncertain legal and politicalclimate. On the one hand, the constitutional and legal changeswrought by the Civil War—the Thirteenth, Fourteenth, and FifteenthAmendments, in addition to an array of enforcement statutes en-acted by Congress during the 1870s—held the potential to expanddramatically the scope of black rights through massive federal in-tervention in the South. On the other hand, changing presidentialadministrations with varying degrees of commitment to enforce-ment, along with inconsistent constitutional precedents establishedby the U.S. Supreme Court, often limited what U.S. attorneys andfederal judges could accomplish. The other major factor, of course,was the situation on the ground in the South, where popular resist-ance to black rights frequently manifested itself in violence.3

1 Emory Speer to Benjamin Harrison, Nov. 24, 1888, Series 1, Reel 13, BenjaminHarrison Papers, Manuscript Division, Library of Congress, Washington, D.C.

2 William W. Wiecek, The Reconstruction of Federal Judicial Power, 1863-1875,13 AM. J. OF LEGAL HIST. 333-359 (1969); ERWIN SURRENCY, HISTORY OF THE FED-ERAL COURTS 104-105 (1987). See also, kermit L. Hall, The Civil War Era as a Cru-cible for Nationalizing the Lower Federal Courts, 7 PROLOGUE 177-186 (1975);STANLEY I. kUTLER, JUDICIAL POWER AND RECONSTRUCTION POLITICS 143-160(1968). Speer even wrote a book explaining changes in jurisdiction. See SPEER, RE-MOVAL OF CASES FROM THE STATE TO FEDERAL COURTS, AN ANALYSIS OF THELAW AS CHANGED BY ACT OF CONGRESS OF MARCH 3, 1887 (1888).

3 For an excellent discussion of the difficulties of federal enforcement, seeEverette Swinney, Enforcing the Fifteenth Amendment, 1870-1877, 28 J. SOUTH.

36 AMERICAN JOuRNAL OF LEgAL HISTORY Vol. 55

U.S. attorneys and federal judges brought their own politicalvalues and ideological commitments to their work. Appointed totheir positions at a time when the nation was debating the properrole of federal law in southern affairs and at a time when lawmakersand judges were defining the scope of African Americans’ rights,the attitudes and behavior of federal officials in the South playedan important role in shaping the contours of enforcement. Prose-cutors and district judges, of course, constructed their constitutionaland legal arguments based on existing Supreme Court precedent.At the same time, they often explored the boundaries of thosedecisions while also testing out new constitutional and legalclaims. This was especially true with regard to cases involving con-stitutional rights. As understood by most late nineteenth-centuryAmericans, the rights of African Americans fell into three distinctcategories: civil rights, political rights, and social rights.4 But suchcategories were not static, and the definitions of these rightsevolved out of a continuing dialogue among the Supreme Court,the lower federal courts, and Department of Justice officials. Con-stitutional historians, traditionally accentuating the role of theSupreme Court in federal enforcement, have pointed to the demiseof the social rights of African Americans in the Civil Rights Cases

(1883), where the Supreme Court struck down the Civil Rights Actof 1875 and in the process narrowly interpreted the Fourteenth

HIST., 202-218 (1962). For an outstanding case study on federal enforcement innorthern Mississippi that takes account of all of these factors, see STEPHEN CRESS-WELL, MORMONS AND COWBOYS, MOONSHINERS AND kLANSMEN: FEDERALLAW ENFORCEMENT IN THE SOUTH AND WEST, 1870-1893 19-78 (1991).

4 The most basic rights—civil rights—included personal security, as well as thoseenumerated in the Civil Rights Act of 1866: the right “to make and enforce con-tracts,” the right to inherit, purchase, hold, and sell property, as well as the rightto sue and give evidence in a court of law. Political rights included the right to vote,hold office, and serve on a jury. The Fifteenth Amendment and the EnforcementActs that followed served as the foundation of the right to vote, although the pre-cise constitutional and legal foundation for jury service and office holding wasmore ambiguous. Social rights, the most far-reaching and controversial of rightsduring this era, involved rights associated with social interactions between theraces. The Civil Rights Act of 1875 attempted to establish such rights by prohibitingracial discrimination in public accommodations. On this tri-partite definition ofrights at the time, see HAROLD HYMAN & WILLIAM WIECEk, EQUAL JUSTICEUNDER LAW 396-398 (1982); LINDA PRZYBYSZEWSkI, THE REPUBLIC ACCORDINGTO JOHN MARSHHALL HARLAN 181-182 (1999); PAMELA BRANDWEIN, RETHINk-ING THE JUDICIAL SETTLEMENT OF RECONSTRUCTION 70-74 (2011).



Amendment.5 Recent revisionist work, in contrast, has focused onhow congressional and executive inaction led to the gradual erod-ing of African Americans’ political rights, particularly the right tovote, during the early 1890s.6 Largely neglected by historians hasbeen the ongoing litigation involving the civil rights of African Amer-icans—including the right of personal security—which continued infederal courts beyond the 1890s, beyond the establishment of seg-regation and disfranchisement. Only by examining the biographiesof the attorneys and judges who argued and heard these cases canhistorians and legal scholars gain a fuller understanding of federalenforcement efforts.7

During nearly three decades of service in the federal govern-ment—two years as a U.S. attorney and twenty-five years as a dis-trict judge—Emory Speer proved a zealous defender of the rights ofAfrican Americans. A nationalistic political outlook and a commit-ment to the rule of law shaped his thinking. A Confederate veteran,Speer gradually came to believe that the integration of his native re-gion into the national mainstream was the best way for the Southto grow and prosper. Only when the South looked beyond its trou-bled past and accepted the rule of federal law could the region reachits full potential. As a Georgia politician, Speer gravitated to theRepublican Party, which he believed embodied this nationalistic,

5 See, e.g., HYMAN & WIECEk, supra note 4 at 488; ROBERT kACZOROWSkI, THEPOLITICS OF JUDICIAL INTERPRETATION 217 (1985); MICHAEL kENT CURTIS, NOSTATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS179-180 (1986).

6 BRANDWEIN, supra note 4; xI WANG, THE TRIAL OF DEMOCRACY: BLACk SUF-FRAGE AND NORTHERN REPUBLICANS, 1860-1910 (1997). Wang does a thoroughjob of describing federal enforcement of voting rights during this period. AppendixSeven, which chronicles the number of cases brought into federal court under theEnforcement Acts, is particularly instructive. If the right to vote was eroded, theright to serve on juries remained. For this fascinating story, see CHRISTOPHER WAL-DREP, JURY DISCRIMINATION: THE SUPREME COURT, PUBLIC OPINION, AND AGRASSROOTS FIGHT FOR RACIAL EQUALITY IN MISSISSIPPI (2010).

7 Historians know far less about southern judicial behavior on the lower federalcourts than about developments at the state level. On state judges, see, e.g., TIM-OTHY S. HUEBNER, THE SOUTHERN JUDICIAL TRADITION: STATE JUDGES AND SEC-TIONAL DISTINCTIVENESS, 1790-1890, 160-185 (1999); JOSEPH A RANNEY, IN THEWAkE OF SLAVERY: CIVIL WAR, CIVIL RIGHTS, AND THE RECONSTRUCTION OFSOUTHERN LAW (2006); JAMES W. ELY, JR., ed., A HISTORY OF THE TENNESSEESUPREME COURT, 152-228 (2000); WALTER W. MANLEY, II, ed., THE SUPREMECOURT OF FLORIDA AND ITS PREDECESSOR COURTS, 1821-1917, 259-374 (1997).


forward-looking vision for the region. To be sure, Speer benefittedfirsthand from black votes during two congressional election cam-paigns, and he understood that the continued viability of the Re-publican Party in the South rested upon protecting the civil andpolitical rights of African Americans. But Speer’s devotion to blackrights was more than just political pragmatism. If a common threadran throughout Speer’s career, it was a commitment to using federallaw and the Constitution to combat the violence and oppressionthat plagued his southern homeland.8

I.

SPEER’S EARLY LIFE AND POLITICAL CAREER

While much in his later career might have indicated otherwise,Speer was in every sense a native of the traditional South. Born in1848 in Culloden, Georgia, Emory Speer was the son of the Rev-erend Eustace Willoughby Speer, a Methodist minister, and Anneking, both the descendants of prominent southern families.9 Namedafter a prominent Methodist bishop of Georgia, at age fifteen Emoryran away to join the Confederate cavalry and attached himself toBrigadier General J. H. Lewis’ kentucky Brigade of mounted infantry,also known as “The Orphan Brigade.” This “stripling of a boy,” as hewas later called in a history of the Brigade, saw his only military ac-tion in a vain attempt by the Confederates to repel Sherman’s marchthrough Georgia at Griswoldville, a hamlet north of Macon. In thebattle, an overmatched Confederate force suffered ten times thenumber of casualties they inflicted on their opponents, a brigadeof veteran Union soldiers armed with repeating rifles. Speer waslucky to survive the bloody encounter, in which “old grey-haired andweakly-looking men and little boys not over fifteen years old” made

8 For another biographical treatment of Speer, see BRENT J. AUCOIN, A RIFT INTHE CLOUDS: RACE AND THE SOUTHERN FEDERAL JUDICIARY, 1900-1910, 37-51(2007).

9 LUCIAN LAMAR kNIGHT, 2 REMINISCENCES OF FAMOUS GEORGIANS 366(1908); Judge Emory Speer—In Memoriam, MINUTES, United States District Court,Southern District of Georgia, Macon, #5, 52-53, Atlanta Regional Archives Branch.This memorial is reprinted in published form as Orville A. Park, Judge Emory Speer,Biographical Sketch, REPORT OF THE THIRTY-SIxTH ANNUAL SESSION OF THEGEORGIA BAR ASSOCIATION, 101-210 (1919).



up most of the Confederate casualties.10 After the Civil War, Speerenrolled at the University of Georgia, where he took an active rolein the University’s decades-old oratorical and debating club, theDemosthenian Society.11 After graduating in 1869, Speer embarkedon a career in law and politics under the tutelage of recently-elected U.S. Senator Benjamin H. Hill, a prominent political figurein the state since the early 1850s and among its leading lawyers. In1869, Speer entered Hill’s law office, and by the end of the year hadgained admission to the bar and set up his practice in Athens.12

Not long after joining the bar, Speer jumped into the politicalfray. In the early 1870s, he served as the political editor for a localnewspaper, the Southern Watchman, and helped organize a Dem-ocratic Club that contributed to the overthrow of Republican con-trol of the Athens city government. By all accounts, Speer’s earlypublic activities typified that of the southern politician of his day,for he initially resisted Reconstruction and the changes it meant forthe South’s traditional way of life. Speer’s political ambitions grewin the following years, and after a brief term of service as state so-licitor general, he ran for Congress in a special election held earlyin 1877. The end of Republican rule in Georgia, accomplished byconservative whites by 1872, had signaled a political realignmentin the state. As Republican support rapidly dissipated and Demo-crats reemerged as the dominant force in politics, a new phenome-non—the Independent movement—took shape. Those opposed tothe more conservative outlook of the so-called “Bourbon” Demo-crats dubbed themselves “Independents” or “Independent Democrats.”The Independent movement gained the most momentum in thenorthern portion of Georgia, among the poor mountain folk whohad never expressed strong support for secession or war. The state’smountainous Seventh Congressional District, for example, sent ex-Whig William Felton to the House of Representatives in 1874 as an

10 Judge Emory Speer—In Memoriam, supra note 9, at 53; ED PORTER THOMP-SON, HISTORY OF THE ORPHAN BRIGADE, 2nd ed. 741 (1898); JOSEPH T.GLATTHAAR, THE MARCH TO THE SEA AND BEYOND: SHERMAN’S TROOPS IN THESAVANNAH AND CAROLINAS CAMPAIGN 8, 161 (1985); BURkE DAVIS, SHERMAN’SMARCH, 53-57 (1980).

11 Mary Ann Hawkins, He Drew the Lightning: Emory Speer, Federal Judge inGeorgia, 1885-1918, M.A. Thesis, Georgia State Univ. 23-24 (1984).

12 Judge Emory Speer—In Memoriam, supra note 9, at 53; Hill, Benjamin Harvey,5 DICTIONARY OF AMERICAN BIOGRAPHY, 25-26 (Dumas Malone, ed., 1964).


Independent. When Speer’s candidacy for the Ninth CongressionalDistrict failed to gain the backing of the Democratic Party leader-ship, Speer too decided to try the Independent route to Congress.13

The decision to bypass the regular machinery of the DemocraticParty affected Speer for the rest of his life. He lost the election in1877, but by a narrow enough margin to encourage him to try againthe following year, again as an Independent. After extensive cam-paigning, Speer won election to Congress in 1878, garnering thevotes of a large number of poor upcountry whites and blacks, manyof them Republicans. Speer’s electoral success further distancedhim from the state’s Democratic leadership. Although Speer andother Independents were careful not to pursue black votes very as-siduously, the fact that a majority of African Americans cast theirlot with these renegade candidates widened the chasm that existedbetween Speer and the Democrats.14

Speer’s election to Congress and his re-election in 1880 alienatedthe leaders of his home state, but his increasingly Republican lean-ings earned him new friends in the nation’s capital. Because Speerlacked the advantages of party patronage, he received relativelyunimpressive committee assignments. Republicans in Washington,however, eager to forge an alliance with Independent Democrats inthe South, looked out for the interests of Speer and others like him.Republican Presidents James Garfield and Chester Arthur both con-sulted Congressman Speer about federal appointments in Georgia,and such intimacy between Speer and the hated Republicansprompted some in the Georgia press to speculate in 1881 aboutwhether Speer was truly “independent.”15 While his record as a rep-

13 OLIVE HALL SHADGETT, THE REPUBLICAN PARTY IN GEORGIA: FROM RECON-STRUCTION THROUGH 1900, 61-63 (1964); STEVEN HAHN, THE ROOTS OF SOUTH-ERN POPULISM: YEOMAN FARMERS AND THE TRANSFORMATION OF THE GEORGIAUPCOUNTRY, 1850-1890, 226-227 (1983); C. VANN WOODWARD, ORIGINS OF THENEW SOUTH, 1877-1913, 77-83 (1951); MATTHEW HILD, GREENBACkERS, kNIGHTSOF LABOR, AND POPULISTS: FARMER-LABOR INSURGENCY IN THE LATE-NINE-TEENTH CENTURY SOUTH, 35-37 (2007); Hawkins, He Drew the Lightning, supranote 11, at 28.

14 Hawkins, supra note 11, at 29-35; HAHN, supra 13 at 233-234; ATLANTA CON-STITUTION, Nov. 13, 1878.

15 Hawkins, supra note 11, at 36-37; SHADGETT, supra note 13, at 98. On Presi-dent Arthur’s relationship with the South, see JUSTUS D. DOENECkE, THE PRESI-DENCIES OF JAMES A. GARFIELD AND CHESTER A. ARTHUR, 105-125 (1981);STANLEY P. HIRSHSON, FAREWELL TO THE BLOODY SHIRT: NORTHERN REPUBLI-



resentative showed his opposition to higher excise taxes on liquor,an issue of critical importance to North Georgia’s corn farmers,many of his other ideas smacked of Republicanism. He endorsed ahigh protective tariff to help southern industry and believed in thesupremacy of a strong central government over the states. By theend of 1881, Speer’s persistent political maneuvering with theRepublicans gained him two important committee positions—membership on the House Ways and Means Committee and theConference Committee on the Tariff Bill.16 When Speer announcedhis re-election bid in 1882, he received generous support from theNinth Congressional District’s Republicans, who decided not to runa nominee of their own. “In the absence of a Republican candidate,”read their official endorsement, “it is our argument that the Repub-lican in this district can do no better service to the country than bygiving their cordial support to Mr. Speer.”17

This open association with the Republican Party doomed Speer’schances for election to a third term. Democrats strived to unseatthe Independent incumbent and resorted to fraudulent and intim-idating tactics, including distributing whiskey at polling places, clos-ing the polls early, and preventing some blacks from casting theirballots.18 They also attempted to use the racial issue to their advan-tage, by blaming Speer for the recent appointment of MadisonDavis, an African American, as postmaster of Athens. Only weeksbefore the election, a Democratic newspaper obtained a letter fromSpeer to Davis, addressed to “My dear Mat.” The letter encouragedDavis about the appointment and expressed confidence in his abil-ity to help Speer’s political fortunes. With such damning evidenceof his Republican affiliation and racial betrayal, Speer’s fate was allbut decided. The newspaper that had published the letter chargedthat Speer had “sold his birthright to the mongrel party, in a con-

CANS AND THE SOUTHERN NEGRO, 1877-1893, 99-122 (1962); WANG, supra note6, at 180-215.

16 Hawkins, supra note 11, at 41-42; Emory Speer to Henry Farrow, December6, 1881, December 8, 1881, December 13, 1881, Henry Patillo Farrow Papers, Har-grett Rare Book and Manuscripts Library, University of Georgia, Athens; T. ReeseWatkins, The Federal Judiciary in Georgia, 1789-1961, 24 GA. BAR J. 191 (1961).

17 Resolution by 9th Congressional District Republicans in support of the electionof Emory Speer, 1882, Farrow Papers.

18 HAHN, supra note 13, at 236-237.


spiracy to radicalize Georgia by forcing his colored ringleaders onour district.” Having violated the most sacred traditions of southernpolitical culture, Speer lost the election of 1882.19

Despite defeat and despite far from unanimous Republican sup-port, during his two terms in Congress Speer had managed to winthe favor of the Republican leadership at both the national andstate levels. He established an especially cordial relationship withan important faction of Georgia Republicans known as “the Syndi-cate,“ who hoped to control Republican patronage in Georgia, par-ticularly during the administration of President Arthur. After Speerlost the election of 1882, he and the Syndicate prevailed uponArthur to appoint Speer as United States Attorney for the NorthernDistrict of Georgia. In 1883, after serving out the final months of hiscongressional term, Speer assumed his position.20

II.

EX PARTE YARBROUGH AND THE ENFORCEMENT ACTS

Just months after his appointment as U.S attorney, Speer at-tempted to prosecute nine white Georgians for conspiring to “in-jure, oppress, threaten, or intimidate” black men who had voted ina federal election. The case resulted from a night of terror in July,1883 in Banks County, Georgia. Wielding pistols and hickory sticks,a gang of white men styling themselves the “Pop and Go Club” vis-ited the homes of several African Americans. After breaking intothe homes of their victims, members of the gang humiliated, beat,and pistol-whipped the men—in one instance severely woundingthe victim. After hearing a description of the attacks from the localU.S. marshal and knowing that the state would not attempt to pros-ecute the crimes, Speer resolved not to let the crimes go unpun-ished. The young U.S. attorney wrote to U.S. Attorney GeneralBenjamin Brewster in Washington. “I was not quite clear as to thejurisdiction of the United States court,” he wrote to his superior,several days after hearing of the incidents, “but the Judge [at thegrand jury hearing] agreed with me that it was best to make an

19 SHADGETT, supra note 13, at 74-75; BANNER WATCHMAN, October 3, 1882,quoted in Hawkins, supra note 11, at 43; FRANCES TALIAFERRO THOMAS, A POR-TRAIT OF HISTORIC ATHENS & CLARkE COUNTY, 115 (1992).

20 SHADGETT, supra note 13, at 98-99.



effort to protect the colored people and if possible to bring theseoutrageous criminals to punishment.”21

Two months after the night of terror, after convening a grandjury and hearing testimony from all of the witnesses and victims,Speer brought a bill of indictment against the eight members of thePop and Go Club, led by Jasper Yarbrough. The indictment chargedthe men with violating two sections of the Enforcement Acts of1870-1871. The first charge, based on Section Six of the Enforce-ment Act of 1870, was “conspir[ing] to injure, oppress, threaten, orintimidate any citizen in the free exercise or enjoyment of any rightor privilege secured to him by the Constitution or laws of the UnitedStates, or because of his having so exercised the same.” The second,drawn from Section Two of the Enforcement Act of 1871 (the kuklux Force Act), was “conspir[ing] to prevent by force, intimidation,or threat, any citizen who is lawfully entitled to vote, from givinghis support or advocacy . . . toward or in favor of the election of anylawfully qualified person . . . as a member of the Congress of theUnited States.”22 Speer crafted the indictment in this way, accordingto one scholar, even though the grand jury testimony included nota single reference to the harassment having occurred because thevictims had voted.23

Only by focusing on voting in a federal election could Speer pros-ecute the perpetrators under existing federal law. knowing that theU.S. Supreme Court had issued two decisions that considerably nar-rowed both the scope of the Fifteenth Amendment and the abilityof the federal government to prosecute cases under the Enforce-ment Acts, Speer crafted the indictment with care. In United States

v. Reese (1876), a case involving a municipal election in kentucky,the Court had invalidated two sections of the Enforcement Act of1870 as being overly broad and beyond congressional authority asconferred by the Fifteenth Amendment. In United States v. Cruik-

shank (1876), moreover, the Court had dismissed the indictmentsof three white men charged under Section Six of the Enforcement

21 Emory Speer to Benjamin Brewster, August 6, 1883, quoted in Ian Engdahl,Even If the Proof Should Fail: Emory Speer and Ex Parte Yarbrough, J. SUP. CT. HIST.(forthcoming 2015).

22 Act of May 31, 1870, ch. 114, 16 Stat. 141; Act of April 22, 1871, ch. 22, 17Stat. 13-14.

23 Engdahl, supra note 21.


Act of 1870. Because the charges in the case pertained to a stateelection and because the prosecutor had provided no evidence thattheir violent actions against black voters had been on account ofthe victims’ race, the Court concluded that the offenses committedfell within the jurisdiction of the state, rather than the federal gov-ernment.24 Taking his cues from these decisions, Speer drew up anindictment that explicitly stated that the violence perpetrated bythe “Pop and Go Club” had been because of the victims’ race—which it clearly had been—and because of the black men’s attemptsto vote in a congressional election. On the latter point, the evidencewas dubious. “[E]ven if the proof should fail to come fully up to therequirements of law,” he wrote to Attorney General Brewster, “sohorrible have been the outrages perpetrated on these poor peoplethat I have not hesitated to act.”25

For five full days, a crowded courtroom in Atlanta heard argu-ments in the case of United States v. Yarbrough (1883) in the U.S.Court for the Northern District of Georgia.26 A renowned oratorgoing back to his days in the Demosthenian Society, in his final ar-gument to the jury Speer spoke compellingly of Americans’ com-mitment to the rule of law. “It is this law abiding, law enforcing, lawloving character of our people, which is the chief cause of the pros-perous settlement of our national troubles,” he argued. Onlythrough its devotion to the law had the nation been able to reuniteafter the Civil War, he believed, and failing to enforce the law in thisinstance threatened to undermine the nation’s progress and pros-perity. “Gentlemen of the jury, if crimes such as this diabolical, de-liberate, premeditated, beating and murder, are to go unwhipt ofjustice,” Speer announced, “what baleful and portentous future isthere overhanging our country.” Throughout the trial, Speer ap-pealed to jurors’ sense of justice and the rule of law. Decrying the

24 United States v. Reese, 92 U.S. 214 (1876); United States v. Cruikshank, 92. U.S.542 (1876). On these cases, see ROBERT M. GOLDMAN, RECONSTRUCTION ANDBLACk SUFFFRAGE: LOSING THE VOTE IN REESE AND CRUIkSHANk (2001);LEEANNA kEITH, THE COLFAx MASSACRE: THE UNTOLD STORY OF BLACk POWER,WHITE TERROR, AND THE DEATH OF RECONSTRUCTION (2009).

25 Emory Speer to Benjamin Brewster, October 13, 1883, quoted in Engdahl,supra note 21.

26 United States v. Yarbrough (1883), Box 84, GI #3092, Northern District of Geor-gia, Atlanta Regional Archives Branch; ATLANTA CONSTITUTION, Oct. 27, 1883.



“lawlessness” of those charged with the crime, Speer claimed that“if one class of people are debased or degraded, all suffer.” Despitea charge from the judge that clearly favored the defense, Speer’sarguments proved persuasive. Headed by a crippled Confederateveteran, the jury found all nine men guilty.27

After their conviction, the defendants promptly applied to theU.S. Supreme Court for a writ of habeas corpus, claiming that “thetrial, conviction, and sentence . . . were illegal, null and void.” In itsunanimous opinion in Ex Parte Yarbrough (1884), the SupremeCourt upheld the guilty verdict and in the process affirmed federalefforts to punish private action that obstructed black voting rights.Distinguishing the case from Reese and Cruikshank, Justice SamuelMiller affirmed broad federal power over elections: “Can it bedoubted that Congress can by law protect the act of voting, theplace where it is done, and the man who votes, from personal vio-lence or intimidation and the election itself from corruption andfraud?” In upholding the conviction, as well as congressional powerto protect voting rights under Article I, Section 4 of the Constitutionand the Fifteenth Amendment, Miller echoed Speer’s argumentthat violence against voters posed a grave threat to the future ofthe country. Speer’s skillfully—perhaps falsely—drawn indictmentand his eloquent plea before a Georgia jury led not only to the con-viction of the Yarbrough gang but also to a landmark U.S. SupremeCourt decision.28

Speer’s work in convicting the Yarbrough gang was a formativeexperience for the young U.S. attorney. After the trial, AttorneyGeneral Brewster appointed him to assist the U.S. attorney in SouthCarolina, Samuel Melton, where the federal government was at-tempting to bring a similar case against Wade Hampton’s infamous

27 ARGUMENT OF EMORY SPEER, UNITED STATES ATTORNEY, IN THE CASE OFUNITED STATES VERSUS JASPER YARBROUGH, ET AL, IN THE UNITED STATES CIR-CUIT COURT FOR THE NORTHERN DISTRICT OF GEORGIA, DELIVERED OCT. 26,1883, 57-59 (1883); ATLANTA CONSTITUTION, Oct. 27, 28, 1883. Of the 201 casesbrought under the Enforcement Acts that year in the southern states, the Yarbroughverdict was one of only twelve convictions.

28 Ex parte Yarbrough, 110 U.S. 651, 652, 661 (1883). On Yarbrough, seeBRANDWEIN, supra note 4, at 148-151; WANG, supra note 6, at 207-215; GOLD-MAN, supra note 24, at 113-115; DONALD G. NIEMAN, PROMISES TO kEEP:AFRICAN AMERICANS AND THE CONSTITUTIONAL ORDER, 1776 TO THE PRESENT99-100 (1991).


“Red Shirts.” A much more hostile atmosphere toward federal in-tervention existed in South Carolina, however, and Speer andMelton found it nearly impossible to proceed with the indictmentsand select a jury. Popular outrage over federal prosecution was sogreat that Speer feared for his safety. “It was only by the exerciseof the greatest diplomacy and a superb command of himself,” ac-cording to one account, “. . . that he escaped personal violence.”With relief, Speer left South Carolina and returned to his duties inGeorgia.29 Upon his arrival in Atlanta, Speer reportedly exclaimed,“Thank God, I am in a free country again” and described South Car-olina as “being just as effectively out of the Union as Russia.”30 De-spite this harrowing experience, Speer remained committed to thecause of enforcement, and he arranged for an Atlanta printer topublish his closing argument in the Yarbrough case, a documentSpeer hoped would both win popular support for federal authorityand advance his career.31

Speer’s success in Yarbrough soon catapulted him to a positionon the federal bench. As the political appointee of a Republican pres-ident and an opponent of white violence, Speer had emerged as asignificant figure in Republican circles and played a key role in patron-age decisions. When John Erskine, long-time federal judge for thesouthern district of Georgia, announced his retirement later in 1883,Speer would have a hand in the selection of his successor. Henry P.Farrow, a former U. S. Attorney and favored choice, lobbied heavilyfor the position, and Speer wrote at least two letters on Farrow’s be-half.32 Despite the nearly unanimous support for Farrow’s nomination

29 ALFRED B. WILLIAMS, HAMPTON AND HIS REDSHIRTS: SOUTH CAROLINA’SDELIVERANCE IN 1876 (1935); Hawkins, supra note 11, at 50-51; Judge EmorySpeer—In Memoriam, supra note 9, at 54. See also LOU FALkNER WILLIAMS, Fed-eral Enforcement of Black Rights in the Post-Redemption South: The Ellenton RiotCase, in LOCAL MATTERS: RACE, CRIME, AND JUSTICE IN THE NINETEENTH-CEN-TURY SOUTH 172-200 (Christopher Waldrep and Donald G. Nieman, eds., 2001);RICHARD ZUCZEk, STATE OF REBELLION: RECONSTRUCTION IN SOUTH CAROLINA,88-211 (1996).

30 Emory Speer’s Nomination, NEW YORk TIMES, Dec. 22, 1883. 31 See supra note 27.32 Farrow, Henry Patillo, DICTIONARY OF GEORGIA BIOGRAPHY, 301-302 (1983);

Henry Farrow to President Chester A. Arthur, March 12, 1883, Farrow Papers,quoted in George L. Jones, The Political Career of Henry Patillo Farrow, Georgia Re-publican, 1865-1904, M. A. Thesis, University of Georgia, 113 (1966); SHADGETT,supra note 13, at 100-103; Speer to President Chester A. Arthur, December 3, 1884,December 24, 1884, Farrow Papers.



among Georgia Republicans, President Arthur eventually decidedagainst Farrow, whom he believed lacked the necessary qualifica-tions as well as the ability to win confirmation. At that point, Speerwrote to Arthur to ask that he be considered. Arthur, who had al-ways been fond of Speer, subsequently nominated the young U. S.attorney for the judgeship.33 Speer’s appointment generated alengthy controversy. South Carolina’s two senators led the opposi-tion to his nomination, and not even Georgia Republicans couldunite around Speer. After extensive debate within the Senate Judi-ciary Committee and on the Senate floor, on February 18, 1885—nearly fourteen months after the resignation of Erskine—Speer wonconfirmation as a federal judge. The vote was almost entirely alongparty lines.34

In 1885, at the age of thirty-six, Speer took his seat on the federalbench at a time when the Department of Justice was prosecutingfewer and fewer cases in the South under the Enforcement Acts.That year, the Department brought 107 such cases into the federalcourts, down from 201 in 1883 when Speer had prosecuted theYarbrough case, and down from 1,148 such cases in 1873, the peakof federal enforcement. The administration of Grover Cleveland,the first Democratic president since the 1850s, seemed indifferentto upholding Reconstruction-era laws in the South. Between 1886and 1888, the Cleveland Administration brought only 24 such casesinto federal court, and during Cleveland’s entire four-year term, theJustice Department secured only two convictions under the Enforce-

33 Jones, supra note 32, at 125-126; ATLANTA CONSTITUTION, Jan. 17, 1885;Hawkins, supra note 11, at 51-53; SHADGETT, supra note 13 at 103.

34 Speer’s appointment infuriated nearly every political leader in Georgia. Be-lieving he had been stabbed in the back, Farrow charged Speer with incompetencyin carrying out the duties of U. S. Attorney. Others also objected to the appoint-ment. South Georgians considered their new federal judge an outsider, for Speerhad spent his entire adult life in North Georgia and in Washington, D. C. One ofGeorgia’s U. S. Senators, Alfred W. Colquitt, claimed that the incoming Democraticpresident, Grover Cleveland, ought to have the opportunity to fill the judgeshipwith someone more amenable to the people of the state. When the entire Georgiadelegation in the House of Representatives—all Democrats—immediately agreedwith this suggestion, Speer’s nomination seemed likely to fail. Only the efforts ofGeorgia’s other U. S. Senator, Joseph E. Brown, the former governor who had him-self switched his loyalties from the Democrats to the Republicans and back to theDemocrats, saved Speer. See ATLANTA CONSTITUTION, Jan. 17, 18, 1883; SHAD-GETT, supra note 13, at 103-104.


ment Acts.35 It was not surprising, then, that the election of Ben-jamin Harrison in 1888 prompted Speer to write to the president-elect urging a more vigorous application of the law. Not only did heencourage the incoming Indiana Republican to appoint U.S. attor-neys and marshals who would “regularly, firmly and unflinchingly”enforce the election laws in the South, Speer also saw fit to send aprinted copy of his argument in the Yarbrough case to the presi-dent-elect, urging him to read it as he considered “our southerntroubles.”36

Compared to his Democratic predecessor, President Harrison didstep up federal enforcement of the election laws, but during the1890s the arc of federal policy bent toward non-enforcement.37 In1891, after extensive debate and in spite of President Harrison’ssupport, the Senate rejected the Lodge Enforcement Bill, named forits sponsor, Massachusetts Republican Sen. Henry Cabot Lodge. Hadit passed, the bill would have significantly strengthened the Enforce-ment Acts of 1870-1871 by creating a federal canvassing board withfinal authority to decide the outcome of contested congressionalelections. Another blow to federal protection of black rights camein 1894, when Congress repealed nearly all of the provisions of theEnforcement Acts that had been passed during the early 1870s.With a Democratic-controlled House, Senate, and White House forthe first time since before the Civil War (Grover Cleveland was againelected when he defeated Harrison in 1892), Congress passed andthe president signed legislation that eliminated all but three provi-sions of the Enforcement Acts, including one of the provisions underwhich Speer had prosecuted the Yarbrough gang.38

35 WANG, supra note 6, at 300.36 Speer to Harrison, Nov. 24, 1888; Speer to Harrison, December 19, 1888,

Series 1, Reel 14, Harrison Papers, supra note 1. 37 Between 1889 and 1892, the Department of Justice brought 95 cases under

the Enforcement Acts into federal court and secured 20 convictions. On PresidentHarrison and the race question, see CHARLES CALHOUN, BENJAMIN HARRISON,89-118 (2005); CHARLES CALHOUN, CONCEIVING THE NEW REPUBLIC: THE REPUB-LICAN PARTY AND THE SOUTHERN QUESTION, 1869-1900, 226-259 (2006); GeorgeSinkler, Benjamin Harrison and the Matter of Race, 65 IN. MAG. HIST. 197-213(1969).

38 On the defeat of the Lodge Bill, see WANG, supra note 6, at 232-252;BRANDWEIN, supra note 4, at 184-186; CALHOUN, supra note 37, at 226-259. On



III.

UNITED STATES V. MCCLELLAN AND THE

THIRTEENTH AMENDMENT

While these developments continued the erosion of federally-enforced black political rights and speeded the process of state-ini-tiated disfranchisement, Speer used the tools that remainedavailable to him to protect African Americans’ civil rights. At theturn of the century, Speer employed the Thirteenth Amendment toattempt to rid his state of the blight of peonage, an oppressive laborsystem that had developed across the South in the aftermath ofemancipation. Under this system, poor and landless blacks (andsometimes whites), who had signed annual contracts to work forwealthy whites and who had incurred huge debts to their employ-ers, became bound to remain at work for these masters until thelaborers worked off their debts.39 Prosecution of peonage casesbegan through the efforts of a young United States Commissionernamed Fred Cubberly, appointed by the District Court of the North-ern District of Florida. Cubberly believed that an 1867 anti-peonagestatute, enacted by Congress after the Civil War to end a system ofpeonage that had developed in New Mexico, might serve as thelegal mechanism to curb peonage in the South.40

Sharing Cubberly’s view, Speer pursued the first conviction oncharges of peonage in Georgia in United States v. McClellan (1904).The case involved an indictment against Thomas J. McClellan, theSheriff of Ware county, and William F. Crawley, a local attorney, for“forcibly seizing citizens known under the law as ‘persons of color’and selling them to other persons to be held by force, and com-

the repeal of the Enforcement Acts, see WANG, supra note 6, at 253-266. On theblack battle against disfranchisement, see R. VOLNEY RISE, DEFYING DISFRAN-CHISEMENT: BLACk VOTING RIGHTS ACTIVISM IN THE JIM CROW SOUTH, 1890-1908 (2010).

39 PETE DANIEL, THE SHADOW OF SLAVERY: PEONAGE IN THE SOUTH, 1901-196919-23 (1972).

40 Id. 3-18; kERMIT L. HALL & ERIC W. RISE, FROM LOCAL COURTS TO NATIONALTRIBUNALS: THE FEDERAL DISTRICT COURTS OF FLORIDA, 1821-1990 51-54 (1991).For federal prosecution of peonage in Alabama, see TONY FREYER AND TIMOTHYDIxON, DEMOCRACY AND JUDICIAL INDEPENDENCE: A HISTORY OF THE FEDERALCOURTS OF ALABAMA, 1820-1994 117-125 (1994). See also William Wirt Howe,The Peonage Cases, 4 COLUMBIA L. R. 279-286 (1904).


pelled by force to labor in a state of involuntary servitude.” Two ofthe victims of this practice, for example, were black youths con-victed and sentenced to a month in the Ware County jail for stealinga watermelon. After sentencing, McClellan and Crawley contactedEdward McCree, the wealthy owner of a local plantation, who paidthe two men for releasing the youths into his custody. McCree tookthe young men to work on his plantation, where they remained forthe next seven months. The McClellan case involved indictmentsagainst McClellan and Crawley for committing several such acts inviolation of the 1867 anti-peonage statute. Counsel for the defen-dants questioned the ability of Congress to enact such legislation,as well as whether the law itself applied to the specific chargesoutlined in the indictment. They presented a demurer, in effectrequesting that the charges be dropped because of their legal in-sufficiency.41

Speer overruled the demurer and responded with a ringing de-fense of the federal government’s power to abolish peonage underthe Thirteenth Amendment. Contrary to the defendants’ argument,Speer held that Congress possessed ample authority under the en-forcement clause of the Amendment to enact the anti-peonagestatute and to eradicate all types of involuntary servitude. “Thepower is as unquestionable as that to regulate interstate and foreigncommerce, to establish post offices and post roads, or to provide auniform system of bankruptcy,” Speer wrote. Responding to an ar-gument by the defendants that the statute needed to be directedat state action rather than private action, Speer responded with abrief lesson on constitutional law: “There is no such limitation inthe Thirteenth Amendment,” he stated. “That this is true of theFourteenth Amendment, as argued at length, may be conceded,without impairing the grant of power in the Thirteenth Amendmentwhich Congress exercised.” In reiterating his claim that the Amend-ment granted plenary power to Congress to abolish involuntaryservitude, Speer cited a number of recent Supreme Court deci-sions—decisions that were generally unfavorable to the cause ofblack rights—in which the justices had nevertheless affirmed thispower. United States v. Harris (1883), the Civil Rights Cases, and the

41 United States v. McClellan, 127 F. 971 (1904); JOHN DITTMER, BLACk GEORGIAIN THE PROGRESSIVE ERA, 1900-1920, 72-73 (1977).



Slaughterhouse Cases (1873) all included language to this effect,and Speer quoted from each before concluding his analysis of theThirteenth Amendment by citing his favorite Supreme Court deci-sion, Ex Parte Yarbrough. In making the point that Congress wouldhave possessed the power to abolish peonage even if there had notbeen an enforcement clause in the Thirteenth Amendment, Speerquoted Justice Miller’s words in Yarbrough that “what is implied isas much a part of the instrument as what is expressed.”42

Having affirmed Congress’s constitutional authority to enact thestatute, Speer offered a vigorous defense of the statute itself, aswell as its use by the prosecution. Although records showed thatCongress enacted the law merely to abolish peonage in New Mex-ico, that fact was inconsequential to Speer. “Congress may start outto do one thing and do much more,” he wrote.43 The enactment ofother statutes at the time, such as a federal law that prohibited kid-napping in order to sell into involuntary servitude, revealed the“spirit” of the Congress that had adopted it. The defendants, more-over, were certainly not free from wrong. “Is it not involuntaryservitude to seize by force,” Speer asked, “to hurry the victim fromwife and children, to incarcerate him in a stockade, and work himin range of the deadly muzzle of the shotgun, or under the terrorof the lash and continue this servitude as long as resentment mayprompt, or greed demand?”44 Speer entertained no doubts aboutwhether MClellan and Crawley had committed such acts or whethertheir behavior violated the law. The indictments, he noted, clearlydemonstrated that these “violent and lawless men” had been in-volved in creating a condition of peonage for “helpless and patheticNegroes” whom they had captured and forced to work.45

Speer concluded his opinion with a plea for the protection ofAfrican Americans and a defense of the rule of law in the South.After referring to “the degrading and un-American effect of invol-untary servitude upon every concern of a self-respecting people,”Speer particularly lamented the negative effects of peonage uponAfrican-Americans’ attempts to advance themselves. “What hope

42 United States v. Harris, 106 U.S. 62; Civil Rights Cases, 109 U.S. 3 (1883);Slaughterhouse Cases 83 U.S. 36 (1873); Ex Parte Yarbrough, 110 U.S. 651 (1883).

43 127 F. 971, 973-975. 44 127 F. 971, 976.45 127 F. 971, 977.


can the respectable Negro have, what incentive to better effort, orbetter life if he, his wife, his daughters or his sons may in a momentbe snatched from his humble home and sold into peonage?“ he in-quired. “Let us for a moment put ourselves in his place, and imagineour furious indignation and hopeless despair if our loved ones orourselves could be subjected to such a condition of involuntaryservitude.” Speer, who believed that many African-Americans pos-sessed the potential to rise above poverty and insecurity, sought toprevent peonage from strangling the limited social and economicadvances already made by blacks. Poor whites as well, Speer ar-gued, might suffer the indignities of involuntary servitude, when“powerful and unscrupulous neighbors“ exploited them for theirown purposes.46 In defense of his decision—and his court—Speerattempted to dispense with any jurisdictional challenges, as well aswith any criticism of the role of the federal courts within the stateof Georgia. “These prisoners, if tried, will be tried by Georgians,”he wrote. “A Georgia judge, a Georgia prosecuting attorney, a Geor-gia marshal appear, and no one but Georgians are eligible as jurors.Away, then, with the pretense that the rights of Georgians are hereimperiled or threatened.”47

Speer’s rejection of the demurrers to the indictment, as well ashis clear antagonism to the defendants, prompted McClellan andCrawley to change their plea to guilty on four-counts of the twelvewith which they were originally charged. Speer sentenced each topay a thousand-dollar fine, which he later reduced by half. Althoughhe dismissed the other eight counts against McClellan and Crawleyand although neither of the men served any jail time, their con-viction was significant. At a time when federal interference withpeonage was just beginning, Speer’s upholding of the federal anti-peonage statute and his vocal disapproval of the practice foreshad-owed the federal government’s future prosecution efforts. The nextyear, the test case that Fred Cubberly had shepherded through thefederal courts culminated with the Supreme Court’s decision in Cly-

att v. United States (1905), which also upheld the 1867 statute. It

46 127 F. 971, 978-979.47 127 F. 971, 979.



was the beginning of a lengthy federal effort to stamp out this formof involuntary servitude across the South.48

IV.

JAMISON V. WIMBISH AND THE

FOuRTEENTH AMENDMENT

At the same time that he used the Thirteenth Amendment to at-tack peonage, Speer employed the Fourteenth Amendment in anassault on the chain gang. In June 1904, Speer heard a petition fromHenry Jamison, “a respectable colored man, between fifty-five andsixty years of age.” Arrested for drunkenness and disorderly con-duct in Macon, Jamison had been placed in a cell in the city jail,whereupon he was immediately convicted in the Macon Recorder’sCourt and sentenced to pay a $60 fine or serve “seven months athard labor on the chain gang.” Unable to pay the fine, Jamisonfound himself on the county chain gang, his legs chained togetherwhile he worked on a public road under the watchful eye of armedguards. Jamison remained on the chain gang for five days, beforehis attorney petitioned for a writ of habeas corpus. Speer was out-raged at the treatment of Jamison, who had done some chores forthe Speer household, and the judge took a strong stand against theinhumane punishment of the prisoner.49

In his opinion on the petition, Speer framed the case as a ques-tion of whether Jamison was “deprived of his liberty and subjectedto an infamous punishment without due process of law, and in vi-

48 DITTMER, supra note 41, at 74-75; Clyatt v. United States, 197 U. S. 207 (1905).On the continued federal efforts to prosecute peonage in the early twentieth cen-tury, see Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court andRace in the Progressive Era. Part 2: The Peonage Cases, 82 COLUMBIA L. R. 646-718 (1982).

49 Jamison v. Wimbish, 130 F. 351, 352, 253 (1904). Speer denied that his ac-quaintance with Jamison made him partial and disqualified his hearing the case.See TRANSCRIPT OF RECORD. SUPREME COURT OF THE UNITED STATES. OCTOBERTERM 1904. No. 163. E.A. WIMBISH, SUPERINTENDENT OF THE COUNTY CHAINGANG VS. HENRY JAMISON. APPEAL FROM THE DISTRICT COURT OF THE UNITEDSTATES, SOUTHERN DISTRICT OF GEORIGA. Filed Jan. 11, 1905 (19,601), 33-34. Onthe operation of the chain gang in Georgia, see ALEx LICHTENSTEIN, TWICE THEWORk OF FREE LABOR: THE POLITICAL ECONOMY OF CONVICT LABOR IN THE NEWSOUTH 152-185 (1996).


olation of the Constitution of the United States.”50 First consideringwhether the Bibb County chain gang constituted an “infamous pun-ishment,” Speer concluded that such hard labor was cruel and infa-mous, thus reserved only for the punishment of felonies. Speerpainted a grim picture. In addition to each member having to wearstriped clothing and iron manacles, over each gang stood, Speernoted, “the whipping boss, with the badge of his authority,” a“heavy leathern strap, about 2½ or 3 feet long, with solid handgrasp, and with broad, heavy, and flexible lash.” Speer continued,“We may judge that the agony inflicted by this implement of tortureis not surpassed by the Russian knout, the synonym the worldaround for merciless corporal punishment.”51 Having establishedthe gravity of the punishment imposed, Speer moved to the ques-tion of whether the Recorder’s Court’s imposition of such a punish-ment violated Jamison’s rights under the Fourteenth Amendment.Reviewing the record of the case against Jamison from the Recorder’sCourt, Speer found the City of Macon had egregiously violated dueprocess. The bare-bones record of the case included no indictment,no finding of guilt or innocence, and no finding of fact. Yet, Jamisonhad ended up being sentenced to hard labor. Speer noted the unjustinconsistency between those accused of felonies and those chargedwith misdemeanors. “One guilty of burglary, arson, manslaughter,or any crime on the calendar, however heinous, has been accordeda copy of the accusation against him, trial by jury, the opportunityto appeal—in short, due process of law. Not so with the lad wholoiters on the streets or is overcome by sleep in the depot,” whocould be hurried onto the chain gang after a simple arrest.52 Maconofficials countered that the state legislature had established thechain gang system and that its operation resulted from a state law.As such, the statute was “the law of land.” Speer rejected this claimas the product of circuitous reasoning.

More important, Speer offered an expansive interpretation of theDue Process Clause of the Fourteenth Amendment, broad enoughto protect Jamison from arbitrary actions by the state. Citing lan-guage from the Supreme Court’s decision in Hurtado v. California

50 130 F. 351, 354. 51 130 F. 351, 355-356.52 130 F. 351, 357.



(1884) that “law is something more than mere will exerted as anact of power,” Speer denied that simply because the state hadprovided for the operation of the chain gang that it, therefore,passed constitutional muster. In stirring language, Speer appealedto the higher law notion of whether the act conformed to the “fund-amental essentials of the Constitution.” Here he cited William D.Guthrie’s Lectures on the Fourteenth Article of Amendment to the

Constitution, an 1898 publication that argued that the framers ofthe Fourteenth Amendment had intended to protect all of the guar-antees of the Bill of Rights against state infringement. Speer quotedGuthrie’s claim that when “the statute clearly invades some sub-stantive right, or when a statute . . . is systematically enforced inviolation of fundamental rights . . . the procedure is not due processof law, and may be declared void and set aside by the courts underthe jurisdiction conferred by the Fourteenth Amendment.”53 At atime when most American judges were interpreting the amend-ment in order to protect property rights and the liberty to contract,Speer view the Fourteenth Amendment more expansively—as ameans to protect a vulnerable African American man from unjustpunishment.54

Finally, appealing to the authority of the Constitution, Speer ex-pressed no doubts about whether his court possessed jurisdiction.He cited the constitutional guarantee of the privilege of the writ ofhabeas corpus, as well as the jurisdiction provided in federal lawthat the courts of the United States “shall have power to grant writsof habeas corpus in all cases where any person may be restrainedof his or her liberty in violation of the Constitution or of any treatyor law of the United States.” Although he acknowledged that federalcourts needed to exercise this power “in the light of the relations

53 Hurtado v. California, 110 U.S. 516, 535 (1884); 130 F. 351, 358; WILLIAM D.GUTHRIE, LECTURES ON THE FOURTEENTH ARTICLE OF AMENDMENT TO THE CON-STITUTION, DELIVERED TO THE DWIGHT ALUMNI ASSOCIATION, NEW YORk, APRIL-MAY, 1898 105 (1898).

54 There is an extensive literature—and a spirited debate—over the question ofwhether this jurisprudence simply protected wealthy capitalists or reflected a gen-uine desire to defend an American tradition of individual liberty. See, e.g., PAULkENS, LOCHNER V. NEW YORk: ECONOMIC REGULATION ON TRIAL (1998); DAVIDBERNSTEIN, REHABILITATING LOCHNER: DEFENDING INDIVIDUAL LIBERTY AGAINSTPROGRESSIVE REFORM (2011); JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OFMELVILLE FULLER, 1888-1910 (1995).


existing under our system of government between the judicial tri-bunals of the Union and of the states,” Speer was confident that thematter was properly before his court. Citing a host of cases in whichpersons had been convicted in state court without due process andreleased on habeas corpus grounds, Speer returned to the Four-teenth Amendment and to the historical importance of protectinghabeas corpus, “the Great Writ.”55

Speer portrayed the writ of habeas corpus as a way to protectthe poor and weak—in this instance an African American man—from injustice and oppression. Noting that “judges are sworn toknow no difference between the rich and the poor” and making ref-erence to “the admonition of the Master” that ‘Inasmuch as ye havedone it to one of the least of these my brethren, you have done itunto me,’” Speer portrayed his court as the last refuge for a humbleman who had been unjustly treated on account of his race. Return-ing to his formative experience as U.S. attorney in the Yarbrough

case, Speer quoted his own words from more than two decades ear-lier: “Never in the history of the world has any considerable classof people been debased and degraded by force and lawlessness,but that the entire people suffered because of that degradation.The white people of this country control the government, state andfederal. They enjoy every conceivable advantage. They have supe-riority in wealth, education, social influence, everything. A magnan-imous people, a just people, they owe it to themselves to bemagnanimous and just to the colored people.” Speer concluded hisopinion with a simple statement: “In this court the law is equal forall.”56

Speer’s bold decision provoked considerable commentary.Throughout the country, the legal community hotly debated theopinion, particularly the implications that it held for the FourteenthAmendment. Critics charged that local magistrates had always pos-sessed summary jurisdiction over local offenses and that Speer hadattempted to incorporate the guarantees of the Bill of Rights, in

55 130 F. 351, 360.56 130 F. 351, 363, 364. Here Speer quoted THE ARGUMENT OF EMORY SPEER,

UNITED STATES ATTORNEY, IN THE CASE OF THE UNITED STATES VERSUS JASPERYARBROUGH, ET AL, IN THE UNITED STATES CIRCUIT COURT FOR THE NORTHERNDISTRICT OF GEORGIA. DELIVERED OCT. 26, 1883, 59 (1883).



clear opposition to the decisions of the Supreme Court.57 Support-ers, in contrast, focused on Speer’s attack on the Georgia chaingang. “If this decision contributes to the demolition of that system,”wrote one commentator, “. . . Judge Speer will prove to be a bene-factor indeed.” Another concluded its summary of Speer’s criticismsof the chain gang by noting that “Judge Speer has proven himself ajudge of which Georgia may well feel proud.”58 A comment in theYale Law Journal perhaps best captured the divided mind of thelegal community. The writer described as mere obiter dicta Speer’simplied ruling that the Fourteenth Amendment had incorporatedthe right of jury trial while at the same time expressing sympathyfor Speer’s claim that “one man shall not adjudge infamy” withoutthe right of appeal.59

As lawyers and legal scholars debated the decision, Macon offi-cials appealed to the U.S. Supreme Court. In a per curiam opinion,the justices quashed the writ and dismissed the petition, thus sidingwith the city of Macon, presumably on jurisdictional grounds. Forsix months, Speer ignored the Supreme Court’s ruling and refusedto allow the detention of Jamison, but in the meantime the GeorgiaSupreme Court, an unlikely forum for racial justice at the time, ruledin another case that a city recorder had no authority under theGeorgia Constitution to sentence to the chain gang one who hadcommitted only a misdemeanor. Jamison thus remained free.60 It

57 Right to Trial by Jury in Criminal Cases under the Fourteenth Amendment, 18Harvard Law Review, 136-137 (1904); The Georgia Chain Gang for Petty Offenses,14 YALE LAW JOURNAL, 45-47 (1904). The Court had originally decided in Barronv. Baltimore, thirty-five years before the ratification of the Fourteenth Amend-ment, that the Bill of Rights did not apply to the states. Subsequent post-Four-teenth Amendment rulings, such as the Slaughterhouse Cases (1873), held thatthe amendment had not significantly altered the scope of rights protected by thefederal government from state infringement.

58 Criminal Law: The Public Chain Gang as an Infamous Punishment, 59 CENTRALL.J. 263 (1904); The Chain Gang System, 12 AMER. LAWYER 378 (1905). See alsoDOUGLAS A. BLACkMON, SLAVERY BY ANOTHER NAME: THE RE-ENSLAVEMENT OFBLACk AMERICANS FROM THE CIVIL WAR TO WORLD WAR II 264-265 (2008).

59 Supra note 57 at 47.60 Jamison v. Wimbish, 130 F. 351 (1904); Wimbish v. Jamison, 199 U.S. 599

(1906); Pearson v. Wimbish 124 Ga. 701 (1906); 3 VOICE OF THE NEGRO, 88 (Feb.,1906); Hawkins, supra note 11, at 80. This was not Speer’s first confrontation withthe Bibb County criminal justice system. Some years before, Speer had held thatchaining a prisoner by the neck for several hours in the dark so that he could nei-ther lie nor sit constituted cruel and unusual punishment. See In re Birdsong, 39 F.599 (1889).


was an unexpected twist to an extraordinary episode in the historyof civil rights law.

V.

NATIONALISM AND THE RuLE OF LAW:

SPEER AND FEDERAL ENFORCEMENT

Emory Speer’s principled defense of African Americans’ civilrights placed him under the shadow of controversy throughout hisprofessional career. During his early years in Georgia politics, Speer’srelationship to the black community aroused the suspicion of whiteDemocrats, and his defection to the Independents and later the Re-publicans signaled a sincere desire to protect the rights of AfricanAmericans. Speer’s zealous prosecution of the Yarbrough case, hisovert crusade against peonage, and his blistering attack on the chaingang all demonstrated his earnest attempts to do justice in southernGeorgia. Beyond the strict confines of his judicial duties, Speer wroteto the Department of Justice throughout the early 1900s urging thecontinued prosecution of peonage case and the protection of blackvictims.61 In his speeches and in his judicial decisions, moreover,Speer criticized opportunistic racists who played on exaggeratedwhite southern fears of violence and crime among the black popu-lation in order to achieve political success. Those who described the“vilest criminals” among African-Americans as typical of the entirerace did an injustice, in Speer’s words, to the “thousands of thesecolored men” who were “good men and useful members of society.”For his part, Speer tended to emphasize the redeeming qualities inthe black community, particularly recent advances in the acquisitionof property and ever increasing agricultural productivity. “The truthis,” he summarized, “we could not get along without them. Theyhave no purpose to become extinct themselves. Then it follows thatit is the duty of every true man to do all in his power to make thembetter citizens and better men.” 62By respecting the dignity and

61 Speer to Attorney General, September 16, 1909, File 50, Box 184, Speer to At-torney General, July 8, 1910, File 50, Box 188, Justice Department Records, Na-tional Archives, Washington, D.C.

62 EMORY SPEER, THE SOLID SOUTH: SPEECH AT THE BANQUET OF THE INDE-PENDENT CLUB OF BUFFALO, NEW YORk, 21-22 (1903).



affirming the civil rights of African Americans, Speer tried to do justthat.

Clearly, there were limits to Speer’s vision of constitutional equal-ity. By the early twentieth-century, as the movement to disfranchiseAfrican Americans gained momentum, Speer even articulated op-position to black voting. In one speech in particular, delivered inBuffalo, New York in 1902 (and widely published), Speer arguedthat Reconstruction, and particularly the Fifteenth Amendment,had forced upon the already vanquished southern people a worseindignity than defeat—“the complete subordination of the Cau-casian to the African race.” Speer’s comments were curious, ofcourse, given the fact that he had sought black votes as an Inde-pendent candidate for Congress, and perhaps the political realitiesof the time shaped his public statements on the issue. Speer arguedin the speech that only through a series of conservative SupremeCourt decisions, “vital to the peace and happiness of the homoge-neous Anglo-Saxon population of these Southern States,” had theSouth been delivered from the excesses of Congressional radicals.63

Speer described the immediate imposition of black suffrage, whichhe believed none of the more moderate Republican leaders likeAbraham Lincoln would have ever allowed, as the downfall of thetwo-party system in the South. “It is undeniably true,” he an-nounced, “that the political attitude of the Southern people towardthe government is directly ascribable to the swift bestowal by theReconstruction acts of the unlimited manhood suffrage upon mem-bers of the African race.”64 Speer argued that reconstruction shouldhave assumed a more gradual, less vindictive, pace, and he seemedto favor suffrage only for the better sort of both the black and whitepopulations. The solution to “Negro rule,” he proposed, was “to befound in the enactment of impartial laws for white and black alike,which will admit to the franchise the intelligent, upright and respon-sible of both races, and exclude the venal, the ignorant and the worth-less.”65 Opposed to social equality, moreover, Speer firmly rejected

63 Id. 7, 11; EMORY SPEER, ExERCISES OF THE EVENING OF FEBRUARY 4, 1901,IN THE UNITED STATES DISTRICT COURT ROOM AT SAVANNAH, IN HONOR OF THEMEMORY OF CHIEF JUSTICE JOHN MARSHALL, 27 (1901).

64 SPEER, supra note 61, at 5.65 SPEER, supra note 61, at 20. Speer voiced similar sentiments in THE SUDENT

IN POLITICS, REMARkS AT BANQUET OF THE NATIONAL CONGRESS CHI PHI FRA-


a constitutional challenge to Georgia’s statute prohibiting interracialmarriage and frequently stated that only “the better elements”among the black population possessed a chance for social eleva-tion.66 Obviously, Speer’s principled support of civil rights did nottranslate into consistent support for black political rights or socialrights.

A nationalistic outlook and a devotion to the rule of law lay atthe heart of Speer’s commitment to enforcing the civil rights ofAfrican Americans. As he grew more reflective about his boyhoodexperience as a Confederate soldier, Speer came to believe that thekey to the South’s future lay in its successful reintegration into theAmerican mainstream. He had hated the war, with its “pallid andsuffering prisoners,” and wanted the nation to overcome its historicdivisions. To Speer, single-party domination of the political process,coupled with an undue emphasis on racial anxieties in political cam-paigns, only imprisoned the South to its past and hindered the po-tential for progress and reunification. “We hear but one side ofevery public question,” he once lamented in a speech at the Uni-versity of Georgia, “and I fear not always the right side.” Whitesoutherners, Speer declared, needed to discard the “machine poli-tics” that had come to dominate their homeland. Only by creatinga society open to political debate, he believed, could the South bury“the dead issues of the past” and move with the rest of the nationinto the twentieth century.67 The enforcement of federal law—ofupholding the basic civil rights and due process of law for all Amer-

TERNITY, ATLANTA, GEORGIA, DECEMBER 1, 1900. A few years later, in an articlewritten for the Voice of the Negro, a black periodical, Speer expressed a similarvew: “I have long been convinced that the race problem can only be solved by thelong process of time, and only then in a manner consistent with the teachings ofhumanity, civilization and religion, by the steady, effective and righteous enforce-ment of the law.” See Judge Speer on Even-Handed Justice, 2 VOICE OF THE NEGRO,684 (Jan. 1905).

66 State v. Tutty, 41 F. 753 (1890); Id. at 684. 67 Emory Speer, The Soldier’s Vote, in kNIGHT, supra note 9 at 597; EMORY

SPEER, A NEW AMERICA, ALUMNI ORATION AT THE CENTENNIAL CELEBRATION OFTHE UNIVERSITY OF GEORGIA, JUNE 18TH, 1901 29-30 (1901); HERBERT FIELDER,A SkETCH OF THE LIFE AND TIMES AND SPEECHES OF JOSEPH E. BROWN 561(1883).



ican citizens—was a critical component of this vision of nationalre-integration.68

Ultimately, Speer’s appeals to the enforcement of federal lawfailed to satisfy his critics, who were deeply offended by his com-mitment to civil rights. After a dispute within Republican circlesprompted an investigation into Speer’s judicial conduct by the De-partment of Justice, in August, 1913 the House of Representativesauthorized a subcommittee of the House Judiciary Committee toinvestigate various allegations against Speer.69 These included en-gaging in favoritism toward the law firms with which his son-in-lawwas involved, mishandling a number of bankruptcy cases, defyingthe mandates of the U. S. Supreme Court and the Circuit Court ofAppeals, and exceeding his own court’s jurisdiction. Six months afterthe House authorization, a three-member House Subcommitteebegan hearings in Macon and Savannah in order to determine thecharacter and sources of these accusations.70 For two weeks, Con-gressmen heard testimony from sixty-two individuals, whodirected a barrage of criticism at Speer, particularly regarding hisbehavior in cases in involving African Americans.71 His Georgia accus-

68 EMORY SPEER, LECTURES ON THE CONSTITUTION OF THE UNITED STATES 93-115 (1897). In his commitment to due process, Speer resembled the federal judgesin California during this period who, despite harboring no love for Asian immi-grants, granted habeas corpus relief to hundreds of Chinese who challenged theirincarceration or deportation. See LUCY SALYER, LAW HARSH AS TIGERS: CHINESEIMMIGRANTS AND THE SHAPING OF MODERN IMMIGRATION LAW (2005). I thankEric Rise for sharing this particular insight.

69 In the presidential election of 1912, Speer openly decided to support formerPresident Theodore Roosevelt over President William H. Taft. During the spring ofthat year, Speer assured Roosevelt that the two convention delegates from theSixth Congressional District would be pledged to his nomination on the Republicanticket. When both of the delegates turned out to be Taft men, however, Speer at-tempted to use his office to cajole them into switching their votes. Speer’s openpartisanship—especially in opposition to the President—cost him dearly. Duringthe next few months, an examiner from the Justice Department, who was in southGeorgia for a routine annual inquiry into the court’s record keeping practices,began an investigation into the personal and professional conduct of Judge Speer.See Hawkins, supra note 11, at 84-85.

70 HEARING BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,HOUSE OF REPRESENATIVES, SIxTY-THIRD CONGRESS, ON CONDUCT OF EMORYSPEER, UNITED STATES DISTRICT JUDGE, SOUTHERN DISTRICT JUDGE, SOUTHERNDISTRICT OF GEORGIA, SERIAL 19, 3-4, 23 (1914); Hawkins, supra note 11, at 98.

71 Among the most serious charges were that Speer appointed receivers in bank-ruptcy cases who in turn retained Hasell Heyward, Speer’s son-in-law, as counsel.


ers frequently cited the Jamison case, in which Speer had hesitatedto accept the Supreme Court’s ruling that the district court lackedjurisdiction, as an example of the misuse of power. Speer’s behaviorin the peonage cases also aroused the critics. Many complainedthat Speer had been biased in trying these cases, and that in someinstances he had practically assumed the role of the prosecutor.According to one of Speer’s defenders, “The one thing above allother that stirred sentiment against Judge Speer is his conduct intrying peonage cases.”72

Despite the extensive testimony and sensational publicity, the in-vestigation into Speer’s conduct ultimately faltered. PresidentWilliam Howard Taft’s Justice Department had launched the inves-tigation primarily as a political move, but President Woodrow Wil-son’s administration was preoccupied with other matters, and theabsence of political urgency, coupled with the inconclusive natureof much of the testimony, forced the subcommittee to forego im-peachment.73 One of the members of the Speer investigation sub-committee cast further doubt upon the entire proceedings byarguing that the hearings had devolved into an open forum forSpeer’s detractors but had failed to allow equal time for his sup-porters. Although Speer was vindicated, the following year hisopponents succeeded in gaining passage of a bill to divide thesouthern district of Georgia in two—in effect, cutting Speer’s geo-graphical domain in half. Speer had weathered the political stormof his career but had not emerged unscathed.74

The federal examiner who initiated the investigation of Speer estimated that Hey-ward and his associates gained about $50,000 over six years from such appoint-ments. In addition, opponents charged that Speer ordered solvent businesses intobankruptcy “for the purpose of plundering them,” that he awarded excessive fees,and that he allowed assets to be dissipated. None of the charges involving fa-voritism and bankruptcy, however, were violations of specific laws, just behavioralindiscretions on Speer’s part. See Marshall Burke Dukes, The Investigation of theBehavior of Judge Emory Speer—Lack of Judicial Temperament Does Not an Im-peachment Make, 6 J. SOUTH. LEGAL HIST., 1-53 (1998).

72 TESTIMONY OF JUDGE EMORY SPEER, BEFORE THE SUBCOMMITTEE OF THEJUDICIARY, 26-28, 32-36, copy in Speer Personality File, Atlanta Historical Society,Atlanta, Georgia; Remarks of Rep. Andrew Volstead, 52 CONGRESSIONAL RECORD,63d Congress, 3d Series (1915), quoted in Schmidt, Jr., supra note 48, at 671.

73 In particular, the Wilson Administration was pursuing an investigation of fed-eral judge Daniel T. Wright of the District of Columbia.

74 Hawkins, supra note 11, at 111-117; Erwin Surrency, Federal District CourtJudges and the History of their Courts, 40 FED. RULES DEC. 189 (1967); Watkins,



By the end of his life in 1918, four years after the close of the in-vestigation, Emory Speer had made an important contribution tofederal efforts to enforce the rights of African Americans. As a U.S.attorney, he had crafted a carefully-worded indictment that helpedsecure the conviction of white men who had obviously terrorizedlocal blacks. As a federal judge, he attempted to use the Thirteenthand the Fourteenth Amendments to stamp out peonage and haltthe abuses of the Georgia chain gang. At a time when interpreta-tions of the Reconstruction Amendments remained amorphous anduncertain, Speer displayed a clear commitment to civil rights, as hesought to transcend the South’s heritage of racial injustice in hopesof helping the region rejoin the economic, social, and political lifeof the nation. An independent-minded judge, Speer’s willingness tostand apart from his fellow white Georgians came at tremendouspersonal and political costs. Stretching back to the earliest days of hispublic life, Speer had found a way to alienate a variety of constituen-cies in his state, including members of his own party. His underlyingnationalism and commitment to the rule of law stood squarely op-posed to such time-honored southern principles as loyalty to theDemocratic Party and white supremacy. “My plea is for the revival ofthe American spirit, for the restoration of constitutional methods,”he declared in 1902. “I pray to see the handicap of provincialismstricken from the minds of the aspiring youth of my state and my sec-tion. I pray to see the imputation of a sullen and immovable resent-fulness toward the government and its ennobling purpose removedfrom my section.”75 At a time when southern society resisted blackrights of every sort, Speer could claim only limited success.76

supra note 16 at 191. In the subcommittee’s minority report, Republican Repre-sentative Andrew Volstead of Minnesota claimed that many of those who testifiedagainst Speer had served as counsel for railroads or other large corporations thathad received unfavorable rulings in Speer’s court. Volstead contended that such ahearing violated the fundamental principle of an independent judiciary. For adiscussion that places these events in a larger context, see CHARLES GARDNERGEYH, WHEN COURTS AND CONGRESS COLLIDE: THE STRUGGLE FOR CONTROL OFAMERICA’S JUDICIAL SYSTEM 113-170 (2006).

75 SPEER, supra note 61, at 20.76 On the overall racial climate at the time, see LEON F. LITWACk, TROUBLE IN

MIND: BLACk SOUTHERNERS IN THE AGE OF JIM CROW (1998). For the specificlegal situation confronting African Americans during this period, see Benno C.Schmidt Jr., A Postscript for Charles Black: The Supreme Court and Race in the Pro-gressive Era, Faculty Scholarship Series. Paper 4431 http://digitalcommons.law.yale.edu/fss_papers/4431.

Emory Speer and Federal Enforcement of the Rights of African Americans, 1880-1910

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