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An Antebellum Protest against Segregation and the Criminal Law Response: A Preview of Jim Crow Law and the Struggle for Civil Rights

Published online by Cambridge University Press:  30 July 2026

Andrew T. Fede
Andrew T. Fede*
Affiliation:
Department of Political Science, Law, History, and Anthropology, Montclair State University, USA
*
Email: andyfede@aol.com
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Abstract

Historians have documented resistance to racial segregation in the United States South during the Reconstruction and Jim Crow eras, decades before the civil rights movement of the 1960s. To these protests should be added the until-recently overlooked 1859 case of Pringle, Henry, and Morgan Jackson. They were mixed-race South Carolina men who resisted racially segregated seating in a church’s pews. Some of the white parishioners responded by prosecuting the Jacksons for riot and assault and battery, even though the Jacksons were considered to be white under their state’s laws. This article describes the social and legal context of this antebellum racial segregation, protest, and prosecution. An evaluation of the press report of the trial follows, suggesting that the proponents of this segregation previewed the first phase of Jim Crow law, when they invoked the race-neutral criminal law to enforce their “private” segregation. This episode, therefore, could have served as a warning of one way that southerners would continue to impose de jure racial segregation after the Civil War Amendments were ratified. It can also contribute toward the creation of a more coherent Thirteenth Amendment jurisprudence, which includes “private” racial segregation among the badges of slavery that the Amendment prohibits.

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Original Article
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Law and History Review , First View , pp. 1 - 23
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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (https://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
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© The Author(s), 2026. Published by Cambridge University Press on behalf of American Society for Legal History

We may never know who the first people were to resist racial segregation in the U.S. South, but the antebellum newspaper story reporting on Pringle, Henry, and Morgan Jackson’s trial may be among the earliest examples surviving on record. The Charleston Mercury, on May 2, 1859, described the Jacksons as “dark-complected” men who “had the status of white men, both by association and under the law.” They nevertheless were charged with riot and assault and battery after asserting their right to sit with the whites in the Appii Free Methodist Church.Footnote 1

This incident was overlooked until David W. Dangerfield included it in his social and economic history of antebellum free Black farmers in South Carolina’s low country, near Charleston.Footnote 2 When considered against the background of the relevant social and legal context, this case supports the interpretations of historians who have extended the racial segregation and civil rights protest timelines into the antebellum years.Footnote 3

The Jacksons’ refusal to accede to racial segregation foreshadowed prototypical Civil Rights Era protests, including the sit-in initiated by the North Carolina college students, Joseph McNeil, Franklin McCain, Ezell Blair, Jr., and David Richmond, who were known as “Greensboro Four.” Their 1960 protest at a Woolworth lunch counter inspired others across the South, before the Civil Rights Act of 1964 prohibited discrimination in places of “public accommodation.”Footnote 4 The Jacksons also antedated Rosa Parks’s refusal in 1955 to give up her bus seat to a white person. She helped ignite the Montgomery, Alabama, bus boycott and litigation that ended the segregation of the city’s buses.Footnote 5 Moreover, the Jacksons were forerunners to the less well-known protesters, including Samuel Wilbert Tucker, a young lawyer who, in 1939, planned a sit-in at an Alexandria, Virginia, library that admitted whites only. This protest precipitated a test case and the creation of an allegedly equal but separate library for Blacks.Footnote 6 The Jacksons even predated the test case challenging Louisiana’s Separate Car Act of 1890, which required racially segregated railroad cars.Footnote 7 Homer Plessy’s refusal to give up his first-class seat ended with the 1896 Plessy v. Ferguson Footnote 8 decision, which interpreted the Thirteenth and Fourteenth Amendments to sustain the Act and permit state laws mandating separate but equal places of public accommodation and transportation.Footnote 9

The Jacksons are not presented as direct originators of these Jim Crow and civil rights era protests. Their resistance to segregation instead is reconsidered as one of the generally underappreciated links between the South’s antebellum law and its Jim Crow era law, which legitimized and enforced racial discrimination.Footnote 10 These links confirm that emancipation did not effectuate a clean break with this country’s long history of enslavement, and that “the slavery survivals, known as the badges of slavery, “did not vanish in a flash” after emancipation.”Footnote 11 This evidence of continuity can contribute toward the creation of a more coherent Thirteenth Amendment jurisprudence, which includes “private” racial segregation among the badges of slavery that the Amendment prohibits.Footnote 12

The South Carolina’s Uncertain Color Line

Several features of South Carolina law contributed to the Jacksons’ status as mixed-race people with civil rights that were denied to free Blacks. The state’s antebellum legislature had not yet barred interracial marriage, nor had it enacted a formula determining who would be characterized as Black or white. Instead, white families and local communities were free to treat some mixed-race people as white. The courts and local juries resolved disputes about racial categorization.Footnote 13 Justice William Harper explained that a mixed-race person’s “condition … is not to be determined solely by the distinct and visible mixture of negro blood, but by reputation, by his reception into society, and his having commonly exercised the privileges of a white man.” A person’s access to these privileges, he wrote, “will very much depend on his own character and conduct[.]” Therefore, “a man of worth, honesty, industry and respectability, should have the rank of a white man, while a vagabond of the same degree of blood should be confined to the inferior caste.” This legal imprecision, Harper added, “will be a stimulus to the good conduct of these persons, and security for their fidelity as citizens.”Footnote 14

South Carolina law thus included what Carl Degler called a “mulatto escape hatch,” which allowed some people “an escape from the disabilities of blackness ….”Footnote 15 This occurred, in part, because immigrants from Barbados contributed to South Carolina’s early settlement and lawmaking.Footnote 16

The Jacksons’ mixed-race whiteness afforded them valuable rights and privileges because South Carolina’s law was among the most disadvantageous to free Blacks.Footnote 17 “Free negroes belong to a degraded caste of society,” declared Justice John Belton O’Neall; “they are, in no respect, on a perfect equality with the white man. According to their condition, they ought, by law, to be compelled to demean themselves as inferiors, from whom submission and respect, to the whites, in all their intercourse in society, is demanded[.]” The court therefore created a common law privilege that authorized all whites to commit assaults and batteries on “insolent” free Blacks. O’Neall based this new rule on “good public policy, and the general conduct of the people of this State towards this class of our population since they first existed among us; and this makes it the common law in relation to them.”Footnote 18

South Carolina statutes evidencing this public policy include the 1740 slave code provision that empowered inferior Courts of Magistrates and Freeholders to try all criminal charges against free Blacks.Footnote 19 Defendants in these separate and unequal courts were denied the rights to a pre-trial grand jury review of the charges against them and a trial before a jury of 12 of their peers. They were instead to be tried quickly--not more than six days after their arrests. South Carolina’s free Blacks also could not serve on juries or testify in the superior courts. They were permitted to testify in the Courts of Magistrates and Freeholders, but not under oath, and only when nonwhite defendants were tried for criminal offenses.Footnote 20 Free Blacks also had no right to appeal to the state’s highest appellate court from the judgments of these inferior courts. Instead, an 1833 statute permitted a defendant convicted of a capital crime to file a motion with a circuit or appellate court judge requesting an order granting a new trial before different magistrates and freeholders.Footnote 21

Moreover, South Carolina, like other Southern states, adopted criminal laws that applied only to free Blacks, that imposed on free Blacks more severe punishments than whites, and that restricted free Black migration into the state.Footnote 22 The state and the City of Charleston also required free Blacks to pay racially discriminatory taxes.Footnote 23 South Carolina’s laws denying free Blacks the right to vote no doubt facilitated these separate and unequal laws.Footnote 24

The Setting, the Jackson Family, and the Appii Church

The Jackson family members were free from these legal disabilities, however, because they were regarded as white people in their low-country community in the Charleston District. This region’s residents dominated South Carolina’s legislature.Footnote 25 The Charleston District also had the state’s largest concentration of enslaved and free Black populations. Almost 65% of the Charleston District’s population in 1850 was enslaved, while whites were only 30%. The district’s 3,861 free Blacks made up the other 4.6%, but they were almost 43% of the state’s free Black population.Footnote 26

The United States 1840 census confirmed the Jackson family’s white status. Pringle Jackson was recorded as one of six children in the household of Moses and Margaret Jackson. All of the family members were reported as white. They were living in St. James Goose Creek Parish, which was among the seven rural and agricultural parishes in the Charleson District, near the City of Charleston.Footnote 27

The race of the members of the Jackson family—except Margaret—somehow changed to mulatto, however, at least according to the 1850 census. This was the country’s first census to use this race-based category; it was one of many changes that “dramatically expanded the census’s range.”Footnote 28 The family had moved from St. James Goose Creek Parish to the neighboring St. John’s Berkeley Parrish.Footnote 29 Pringle Jackson is reported as a 17-year-old laborer living in a household that included Moses Jackson, a 42-year-old farmer; Margaret, 43 years old; and seven children ages 2 to 17.Footnote 30 Moses Jackson owned 361 acres of land located on Boyd’s Bay in St. John’s Berkley Parrish.Footnote 31 “Half of the tract was described as either swampland or lowland bay, but by 1850 Jackson was farming on twenty improved acres producing corn and 1,800 pounds of rice.”Footnote 32

The 1860 St. John’s Berkeley Parish census records once again labeled all of Jackson family’s members as white people. Pringle Jackson was listed as a farm laborer, born about 1833. His household included his spouse, Mary, and two children.Footnote 33 The Jackson family members may have been consistently included among their community’s whites, notwithstanding their enumeration as mulattoes in the 1850 census. Or maybe they had to earn recognition as white people in their new location. Margaret Jackson was always labeled as white, however, most likely because she was not a mixed-race person.Footnote 34

The St. John’s Berkeley Parish census records also classified as white two other participants in the Appii Free Methodist Church incident, Henry Jackson, born in about 1821, and Morgan Jackson, born in about 1838.Footnote 35 The Charleston Mercury’s report suggested that they and Pringle Jackson were brothers. Although David Dangerfield questioned this assertion, it appears that these men had some close family relationship.Footnote 36

The Appii Free Methodist Church was located in St. John’s Berkeley Parrish.Footnote 37 No information could be found about this church or its members in 1859. According to a Works Progress Administration Survey of Local and State Records completed in 1936, the church was founded in 1839. It was originally located near Wassamassaw Swamp until the building was razed in 1870. A new church was built nearby on Cooper’s Store Road, in what is now Moncks Corner. This Survey labeled the church as “white,” and not “negro,” but it states that no records before 1870 were found.Footnote 38 The church building no longer stands, but its cemetery now fronts on Appii Road.Footnote 39

The Jacksons’ Trial

Pringle, Henry, and Morgan Jackson were tried on April 29, 1859, in the Court of Common Pleas and General Sessions before Judge Thomas Jefferson Withers and a jury. This segregated court heard criminal cases against white defendants.Footnote 40 Judge Withers was a Court of Appeals judge. These judges, between 1824 and 1859, also rode circuit and presided over trials. They at times even wrote appellate decisions affirming their own trial court rulings.Footnote 41

Yale graduate Thomas Y. Simons, a prominent young Charleston lawyer and state legislator, represented the defendants. Simons was later a member of South Carolina’s secession convention and served as a Confederate Army Captain. After the war, he edited the Charleston Courier newspaper and resumed his career as a successful Charleston lawyer.Footnote 42 Attorney General Attorney General Isaac W. Hayne prosecuted the charges against the Jacksons.Footnote 43

According to the Charleston Mercury, the case began because “[o]n one occasion two of the [Jackson] brothers, one of whom had been a member previously, and the other an attendant for a short time, went to the Appii Church ….”Footnote 44 The date of this visit is not reported, and it is unclear if the Jacksons’ protest was a planned confrontation or a spontaneous reaction. The Jacksons may have attended this church because, according to Jeff Forret, nineteenth-century evangelical Baptist and Methodist churches appealed to poor white and enslaved worshipers. But Forret notes that some church members did not welcome nonwhite congregants.Footnote 45

The Appii Church members evidenced this failure of southern hospitality and Christian fellowship when “[c]ertain [members] of the congregation, and among them several of the prosecutors, had determined [the Jacksons] should not sit among the seats assigned to the whites, and informed [the Jacksons] that unless they would sit where they told them, they would beat them out of the church, if necessary.” The Jacksons apparently did not move. They—and not the congregants who threatened them—were charged with riot and assault and battery. According to the Charleston Mercury, “many of the leading members of the congregation objected to attending the Church with the defendants. It was also in testimony that the Jacksons had the legal status of white men, and had associated, stayed under the same roof, and ate and slept with several of the prosecutors.”Footnote 46

The newspaper does not disclose the names of the parishioners who objected to the Jacksons’ choice of seats or why they favored segregation. The attorneys’ arguments also are not reported, but the article summarizes at least a part of Judge Withers’s charge instructing the jury of the law they were to apply to the facts.Footnote 47

Judge Withers found that the in-church altercation raised two legal issues: (1) whether the defendants’ actions constituted a riot; and (2) whether the defendants had the right to sit in seats “appropriated for white persons without let or hinderance, and whether the attempt to expel them was not itself unlawful, and therefore their right to remain perfect.”Footnote 48 The newspaper omits the judge’s riot instruction. The common law and South Carolina law defined riot as

the tumultuous disturbance of the peace, by three persons or more assembling together, of their own authority, with an intent mutually to assist one another, against any who shall oppose them in the execution of some enterprise of a private nature, and afterwards executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were, of itself, lawful or unlawful.Footnote 49

It may have been thought that a riot as so defined was properly alleged, and that assault and battery were not.

Judge Withers ruled that the Jacksons’ mixed-race status was relevant to the riot allegations when he admitted “evidence of their blood as throwing light on the transaction.” The newspaper also reported that the judge’s “charge was very able, and [was] exemplified by many illustrations and comparisons. He charged, however, in substance on the point made” that the Jacksons were in a caste between the “pure white” and “colored persons,” a position of “inferiority” but not “degradation.” He explained that the “defendants had the legal status of white; that they could vote, muster, and be members of the Legislature; but that did not necessarily confer upon the social rights of the pure white[.]” He defined the limits of this legal whiteness when he stated:

that if it was a fact that the defendants were tinged with African blood, though their legal status was that of white persons, that they, the prosecutors, had a right to assign to them positions in the church inferior to the whites, though not among the colored persons, if there were those in the congregation who objected to sitting with them; that they could assign them positions of inferiority though not of degradation.

Judge Withers gave the case to the jury at 6:45 pm and adjourned the trial until the next day.

The jurors were hopelessly divided. At 8:00 in the evening of the second day of the trial, after many hours of deliberation, the jury reported that it could not reach a verdict. Judge Withers therefore declared a mistrial.Footnote 50

The Jacksons were either tried again and convicted, or they may have agreed to plead guilty.Footnote 51 Judge David L. Wardlaw sentenced them, on October 27, 1859, for “[r]iot in a church during divine service.” Pringle must have been thought to be the most culpable person. He was fined $100. Henry and Morgan each were fined $50.Footnote 52

Evaluating the Jackson Case in Context

With no record of any appeal from these convictions, we do not know if the other Court of Appeals judges would have agreed with Judge Withers’s jury charge, but his biography suggests that his words most likely reflected the attitudes of South Carolina’s most influential “pure white” citizens. Withers by then was near the end of a long career as a newspaper editor, lawyer, and judge.Footnote 53 Although he was “born poor” in 1804 in South Carolina’s York District, Withers “quickly rose.”Footnote 54 After graduating in 1825 from South Carolina College (now the University of South Carolina), he began his professional career by editing the Columbia Telescope newspaper. Withers read law under Judge William Smith, a United States Senator; was admitted to the bar in 1828; and began practicing law in Camden, in the Kershaw District. He was elected solicitor of the circuit court in 1832. After being reelected several times, he resigned, but in 1846, he was elected to serve as a circuit court judge. These judges also sat as the Law Court of Appeals until December 1859, when a new three-judge Court of Appeals was created. Withers was not elected to that court, but he remained a circuit court judge until he died on November 7, 1865.Footnote 55

Withers was an enslaver, likely because of his 1831 marriage to Elizabeth Boykin, the sister-in-law of Governor Stephen Decatur Miller. Elizabeth “owned a valuable plantation in Kershaw District, and a large number of slaves.”Footnote 56 Her father, Burwell Boykin, in 1810, enslaved 206 people on his Kershaw plantation.Footnote 57 His August 1817 will left to his daughter “Betsey” 25 enslaved people, 12 “of whom shall be workers.” Because Elizabeth was not of legal age, Boykin’s executors were to deliver the enslaved people to Elizabeth and her underage sisters when they were married, or when they reached legal age, “so secured that my daughters and their heirs of their bodies may have the sole use and benefit of them during their lives.”Footnote 58

Thomas and Elizabeth increased their slaveholdings from fifteen in 1840, to nineteen in 1850, and to twenty-three in 1860.Footnote 59 Withers told Governor Benjamin F. Perry that he was such a “kind, indulgent and humane” enslaver that he “displeased some of his neighbors[.]” They accused Withers of setting “a bad example in the neighborhood,” which “demoralized the slaves on the other plantations.” This is why Withers claimed he “determined …to sell out and invest the proceeds in bank stocks and bonds and mortgages.”Footnote 60

Withers’s pro-slavery and pro-states’ rights views were well known in his time. According to John Wertheimer, Withers “embraced the southern paternalistic ideal with both arms.”Footnote 61 Withers opposed the Tariff Act of 1828 so forcefully that Perry labeled him “a fierce Nullifier.”Footnote 62 But in 1850, Withers “emphatically opposed” South Carolina’s succession “without co-operation of other States.” He nevertheless warned: “The true question for us is, how shall we sustain African slavery in South Carolina from a series of annoying attacks, attended by incidental consequences that I shrink from depicting and finally from utter abolition? That is the problem before us—the naked and true point.”Footnote 63

Withers later endorsed succession and was elected to the 1860 convention that adopted South Carolina’s Ordinance of Succession. He was also one of his state’s six delegates to the Montgomery Convention, which became the Confederate Provisional Congress, until he resigned in June 1861.Footnote 64 “Withers then returned to Camden and resumed his judicial duties. Possessed of more than $100,000 in property in 1860, Judge Withers died almost penniless on November 7, 1865, at his home.”Footnote 65 Benjamin Perry, whose Unionist views often clashed with those that Withers espoused, nevertheless praised Withers as “a man of distinguished talent and ability,” who “[o]n circuit … dispatched business with great promptness, and his opinions in the Court of Appeals will compare well with those of any other judge.”Footnote 66

Judge Withers’s jury charge may be more relevant, however, as a precursor to one of the two types of Jim Crow-era de jure racial segregation. In the first type, judges legitimated segregation in two ways: (1) the criminal courts punished those who, like the Jacksons, resisted racism; and (2) the civil courts entered judgments ordering or denying relief following acts of segregation. In the second type, legislators adopted statutes mandating racial segregation.Footnote 67

Withers legitimated the Appii Church worshipers’ racial discrimination when he instructed the jurors to consider the Jacksons’ “tinge” of “African blood” as they deliberated on the riot allegation.Footnote 68 He thus presaged the “one drop” rule and the separate but equal doctrine, which Jim Crow-era southerners combined to reinstate the antebellum law of separate and unequal protection for free Blacks, if in “[t]he thin disguise of ‘equal’ accommodations ….”Footnote 69

This jury charge also evidences the three-part division of rights, which confirmed that—under the law—“some [people were] more equal than others.”Footnote 70 Pamela Brandwein summarized these allegedly divisible rights:

Civil rights pertained to the economic sphere and were regarded as basic and fundamental. Political rights (or political privileges, as they were sometimes called) were granted by the political collective and were not even seen (initially) as necessary for freedom. The social rights category designated a sphere in which “association” took place.

Judges denied civil rights to free Blacks before and after abolition based on an alleged “consensus that social equality could not be mandated by legislation.”Footnote 71 Withers similarly enforced the “pure” whites’ purported right to deny social rights to the Jacksons, as if these “three domains of equality” were “independent” and not “indivisible.”Footnote 72 Justice Joseph P. Bradley relied on this doctrine in his 1883 Civil Rights Cases majority opinion, when he maintained that racial discrimination was not a badge of slavery barred by the Thirteenth Amendment.Footnote 73 The Supreme Court thus enabled Jim Crow-era de facto civil and political inequality combined with de jure social inequality.Footnote 74

Judge Withers’s expressed intent to mark the Jacksons with a badge of inferiority also contrasts with Justice Henry Billings Brown’s opinion in Plessy v. Ferguson.Footnote 75 Brown upheld state laws mandating racial segregation based on these psychological assumptions: “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.” Brown also claimed that “social prejudices” may not “be overcome by legislation,” and he declared: “If the two races are to meet upon terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other’s merits, and a voluntary consent of individuals.”Footnote 76 But the court discouraged “natural affinities” and “mutual appreciation” when it legitimated laws prohibiting racial “commingling.”Footnote 77

Judge Withers’s charge instead is consistent with Justice John Marshall Harlan’s Plessy dissent’s prescient warning:

If laws of like character should be enacted in the several states of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law, would, it is true, have disappeared from our country; but there would remain a power in the states, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, upon the basis of race[.]

Mandatory race-based segregation, Harlan acknowledged, was intended “to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community, called the ‘People of the United States,’ for whom, and by whom through representatives, our government is administered.”Footnote 78

Enslavement law established the enslaved persons’ “legal inferiority” as human property—and as people without legal rights but with heightened legal duties—thus confirming the enslaved persons’ dishonored social status. Orlando Patterson and other scholars list dishonor as one of slavery’s three constituent elements, which, in their extremes, distinguish enslavement from other forms of oppressive human relationships, including involuntary servitude.Footnote 79 The legislators and judges who extended this legal inferiority to racially segregated free people legitimized this denial of human dignity that became a badge of slavery.Footnote 80

Conclusion and Epilogue

The Jacksons’ resistance to the Appii Free Methodist Church parishioners’ demand to not sit with the whites previewed a story that would be repeated often.Footnote 81 The Charleston Mercury’s report of the ensuing trial illustrates how newspapers supplement court records as evidence of claims-making.Footnote 82 Sympathetic media coverage was crucial to the successful claims-making of the twentieth-century civil rights movement.Footnote 83 In contrast, the Charleston Mercury’s pro-secession editor, Robert Barnwell Rhett, Jr., chronicled the Jacksons’ trial from the dominant white perspective. It is thus not known whether the Jacksons planned a protest, or whether they reacted spontaneously to racial discrimination.Footnote 84

Either way, the Jacksons’ claims-making failed, and the “pure” white parishioners used the ostensibly race-neutral criminal law to enforce their alleged right to segregate the church’s pews. Even now, the Jacksons’ claim to equal treatment would be unsuccessful under the Civil Rights Act of 1964; its guarantee of “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation” does not extend to places of religious worship.Footnote 85 Moreover, courts continue to dismiss claims of alleged racial discrimination in other places of public accommodation that are not listed in the Act, including retail stores and banks.Footnote 86

The Jacksons’ case, therefore, is an example of de jure segregation’s antebellum roots and its lingering relics, bringing to mind William Faulkner’s often-quoted insight: “The past is never dead. It’s not even past.”Footnote 87 This prosecution could have served as a warning to prevent Reconstruction’s failure to eradicate all of slavery’s badges. Instead, the Civil War and the more than 100-year struggle that followed were required to refute, at least in part, the legal theory that Judge Withers explained to the Jacksons’ jury.Footnote 88

The troubling question is: Why was this prolonged struggle against segregation necessary? John Anthony Scott blamed the discontinuity thesis, which maintains that racial segregation is not a badge of slavery that the Thirteenth Amendment prohibits.Footnote 89 Scott traced this thesis to Justice Bradley’s 1883 Civil Rights Cases opinion, which invalidated sections 1 and 2 of the Civil Rights Act of 1875.Footnote 90 Bradley narrowly defined the badges of slavery and applied a strict standard of review to hold that segregation in places of public accommodation was not a badge of slavery that Congress could prohibit under the Thirteenth Amendment. He also used the state action doctrine to bar the Fourteenth Amendment’s effect on primary “private” acts of segregation.Footnote 91

This discontinuity thesis’s influence persists, although the Supreme Court “resurrected the Thirteenth Amendment from a nearly century-old judicial burial.”Footnote 92 Justice Potter Stewart’s 1968 opinion overruled the Civil Rights Cases decision only in part in Jones v. Alfred H. Mayer Company. Footnote 93 He used a deferential rational basis standard of review to sustain the statute that protects the right “to inherit, purchase, lease, sell, hold, and convey real and personal property[,]” which originally was included in the Civil Rights Act of 1866.Footnote 94 But the court’s majority did not overrule Bradley’s Fourteenth Amendment interpretation when, in Heart of Atlanta Motel, Inc. v. United States,Footnote 95 it sustained the 1964 Civil Rights Act.Footnote 96 Justice Thomas Clark’s majority opinion instead upheld the Act’s prohibition of discrimination in places of public accommodation under Congress’s power to regulate interstate commerce.Footnote 97

C. Vann Woodward fostered this discontinuity interpretation with his three fall 1954 lectures, which, according to Scott, “[a]ppropriately reformulated [Bradley’s interpretation] for a modern audience[.]”Footnote 98 Woodward offered a “usable past,” contending “that Jim Crow, the segregation of the races, was a relative newcomer to the [South], and, change being nothing new in Southern history, what was put in place in the 1890s could be replaced by something better in the 1950s.”Footnote 99 Woodward published his lectures in several editions of The Strange Career of Jim Crow. He concluded that “[s]egregation in complete and fully developed form did grow up contemporaneously with slavery,” but only in the antebellum North and the South’s cities, where a small percentage of that region’s population lived.Footnote 100 Woodward therefore understood the South’s segregation as “a lamentable innovation of the late nineteenth century.”Footnote 101

This discontinuity interpretation’s twenty-first-century supporters include Steve Luxenberg, who declared that segregation originated in the antebellum North and “had no role in the South before the Civil War.”Footnote 102 Mark Schulz similarly found evidence of “systemic segregation, universal black disenfranchisement, and mob violence” in the South’s cities, but he concluded that segregation “did not fit well with the economy, geography, and cultural traditions of the rural South.”Footnote 103 Accordingly, the Appii Church incident is important because churches were one of the few places where rural antebellum southerners congregated. Seating in these churches, Schultz conceded, “was always segregated.”Footnote 104

Barbara Welke also contended that “[l]egislated racial segregation on railroads and other carriers built on the past, but was not a return to the past or even a codification of the past. Jim Crow was modern.”Footnote 105 She equated separate but equal legislation with a progressive era expression of expanding government regulation “to protect public health and safety….”Footnote 106 But these mandatory segregation laws were only one of the two types of de jure segregation. The Jacksons’ case illustrates the other type, in which state actors used the ostensibly race-neutral criminal law to blur the line between private racial discrimination and state action.Footnote 107

The discontinuity interpretation thus obscures racial segregation’s influence on southern life, before and after the Civil War, as well as the quest for white supremacy, which was southern history’s central theme.Footnote 108 The Appii Church episode suggests that “[t]he real color line lived in the minds of the individuals of each race, and it had achieved full growth even before” emancipation.Footnote 109 Segregation differed in rural and more urbanized environments, and it was adapted to evolving modes of social life and commerce and new technology, such as steamboats, railroads, trolley cars, and busses.Footnote 110 It even defied death, when southerners were buried in segregated cemeteries.Footnote 111

Indeed, Roger Fischer concluded that “slavery was in itself the ultimate segregator.”Footnote 112 The law set enslaved people apart when it defined them as people without legal rights and privileges, upon whom the law also imposed enhanced legal duties and disabilities.Footnote 113 Some of these legal incidents of enslavement also broke out of the enslavement law box and were applied to free Blacks. They thus became badges of slavery.Footnote 114

The Jacksons’ case supports the conclusion that slavery’s badges include racial segregation in places of public accommodation. It evidenced the racially segregated person’s dishonored condition, whether practiced by governmental or by nongovernmental actors.Footnote 115 The evidence of segregation in the antebellum North also suggests that segregation is a badge of slavery. All thirteen colonies permitted enslavement before Pennsylvania’s 1780 gradual abolition statute began the long road to the Thirteenth Amendment. The struggle for racial equality in the northern states thus previewed the challenges that Blacks encountered after the Civil War.Footnote 116

Pringle Jackson’s later life offers a poignant coda that demonstrates why race, segregation’s conceptual basis, “has little inherent meaning but is largely a social construct, a point recognized by both critical race scholars and geneticists.”Footnote 117 Soon after their riot convictions, both Pringle and Morgan Jackson fought for the Confederate cause in the Third Battalion, South Carolina Light Artillery (Palmetto Battalion), which was known as White’s Battalion.Footnote 118 Their service continued even after a regulation limited Confederate recruits to white men.Footnote 119

St. John’s Berkeley Parish’s census records in 1860, 1880, 1900, and 1910 continued to report that Pringle Jackson’s race was white.Footnote 120 This occurred even though South Carolina’s 1865 Black Code and its 1895 constitution included the state’s first interracial marriage prohibitions and fixed color line.Footnote 121 Pringle’s whiteness persisted even after his death in 1913. The death certificates of his daughters, Mabel Martin, in 1927, and Daisy M. Thompson, in 1954, record their race as white.Footnote 122 The Jacksons thus were among those “caught up along the jagged color line[,]” who—in the end—were able to “climb clean over it.”Footnote 123

Competing interests

The author declares none.

References

1 See “Court of Common Pleas and General Sessions—Hon. Thos. J. Withers, Presiding Judge,” Charleston Mercury (Charleston, S.C.), May 2, 1859, 2.

2 See David W. Dangerfield, “Hard Rows to Hoe: Free Black Farmers in Antebellum South Carolina” (PhD, diss, University of South Carolina, September 2014), 151–52; David W. Dangerfield, “Turning the Earth: Free Black Yeomanry in the Antebellum South Carolina Lowcountry,” Agricultural History 89, no. 2 (Spring 2015): 216–18; see also David W. Dangerfield, “Just Beyond the Reach of Servitude: Free Black Farmers in Antebellum South Carolina’s Upcountry,” American Nineteenth Century History 22, no. 1 (Spring 2021): 27–47. This article expands upon Dangerfield’s discussion of the sources he found on the Jackson family’s history in his study of the region’s Black or mixed-race yeoman farmers. He stated that the church incident, and the prosecution and trial that followed, “collectively demonstrated [how] public sentiments constructed racial identities and [how] such identities could indeed change with consequences for those deemed to be persons of color.” He added, this “event indicates the sometimes-hazy distinctions in identity between common whites and people of color in rural communities.” See, Dangerfield, “Turning the Earth,” 217. He also concluded that these events “reflect how whites reestablished racial boundaries when they were sometimes challenged by social or economic commonalities.” Ibid., 218. The only other known publication referring to this case is my discussion in Andrew T. Fede, A Degraded Caste of Society: Unequal Protection of the Law as a Badge of Slavery (Athens, Ga: University of Georgia Press, 2024), 242n70.

3 See, e.g., Kate Masur, Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction (New York: Norton, 2021), xi–xxi; Christopher W. Schmidt, Civil Rights in America: A History (New York: Cambridge University Press, 2021), 12–31, 115–17; Van Gosse, The First Reconstruction: Black Politics in America from the Revolution to the Civil War (Chapel Hill: University of North Carolina Press, 2021), 1–29; Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America (New York: Cambridge University Press, 2018), 10–12, 128–46; Steven Hahn, The Political Worlds of Slavery and Freedom (Cambridge, MA, 2009), 6–53; Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865-1920 (New York: Cambridge University Press, 2001), 323–26; Leon F. Litwack, North of Slavery: The Negro in the Free States, 1790–1860 (Chicago: University of Chicago Press, 1961), 64–152; Paul Finkelman, “Rehearsal for Reconstruction: Antebellum Origins of the Fourteenth Amendment,” in The Facts of Reconstruction: Essays in Honor of John Hope Franklin, ed. Eric Anderson and Alfred A. Moss Jr. (Baton Rouge: Louisiana State University Press, 1991), 1–27; Paul Finkelman, “Prelude to the Fourteenth Amendment: Black Legal Rights in the Antebellum North,” Rutgers Law Journal 17, nos. 3–4 (Spring and Summer 1987): 415–82. Scholars also trace the civil rights movement to the Revolutionary era. See Paul Finkelman, “The First Civil Rights Movement: Black Rights in the Age of the Revolution and Justice Taney’s Originalism in Dred Scott,” University of Pennsylvania Journal of Constitutional Law 24, no. 3 (June 2022): 703–28; Paul J. Polgar, “A Clash of Principles: The First Federal Debate over Slavery and Race, 1790,” Federal History 14 (2022): 15–37. On the importance of contextualization in legal history, see Fede, A Degraded Caste of Society, 15–16.

4 See 42 U.S.C. § 2000a(a) and (b); Christopher W. Schmidt, The Sit-Ins: Protest and Legal Change in the Civil Rights Era (Chicago: University of Chicago Press, 2018), 1–5, 10, 19–46, 152–83. For sit-in protests in the 1940s and 1950s at restaurants and lunch counters in Chicago, Washington, D.C., Miami, Oklahoma City, and Wichita, Kansas, see Ibid., 17–18; District of Columbia v. John R. Thompson Co., 346 U.S. 100, 73 U.S.1007, 97 L. Ed. 1480 (1953).

5 See, e.g., Rosa Parks (with Jim Haskins), Rosa Parks: My Story (New York: Puffin Books, 1992); Browder v. Gayle, 142 F. Supp. 707, 717 (M.D. Ala.) (statutes and ordinances requiring segregation on buses in Montgomery violated the due process and equal protection clauses), aff’d, Gayle v. Browder, 352 U.S. 903, 77 S. Ct. 145, 1 L. Ed. 2d 114 (1956) (per curiam). For streetcar boycotts in Montgomery in 1900 and in Mobile in 1902, see Blair L. M. Kelley, Right to Ride: Streetcar Boycotts and African American Citizenship in the Era of Plessy v. Ferguson (Chapel Hill: University of North Carolina Press, 2010), 2–3.

6 See Brenda Mitchell-Powell, “The 1939 Alexandra, Virginia, Public Library Sit-in Demonstration,” in Libraries-Traditions and Innovations: Papers from the Library History Seminar XIII, ed. Melanie Kimball and Katherine Wisser (Boston: Walter de Gruyter, 2017), 70–99; Claudia Swain, Alexandria Library Sit-In, 1939, Boundary Stories: WETA’s Washington History Blog, accessed December 19, 2024, https://boundarystones.weta.org/2016/11/29/alexandria-library-sit-1939. The charges against the five protesters were never adjudicated. They were dismissed on October 18, 2019. See City Dismisses Charges Against 1939 Library Sit-In Participants, Alexandria Living Magazine, accessed January 17, 2022, https://www.alexandriava.gov/uploadedFiles/commattorney/info/LibrarySitInOrder101819.pdf.

7 See “Louisiana Railway Accommodations Act,” in Civil Rights and African Americans: A Documentary History, eds. Albert P. Blaustein and Robert L. Zangrando (Evanston, IL: Northwestern University Press, 1991), 297–98. On the Act and its legislative history, see Keith Weldon Medley, We as Freemen: Plessy v. Ferguson (Gretna, LA: Pelican, 2003), 89–109.

8 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896).

9 See, e.g., Steve Luxenberg, Separate: The Story of Plessy v. Ferguson and America’s Journey from Slavery to Segregation (New York: W. W. Norton, 2019); Williamjames Hull Hoffer, Plessy v. Ferguson: Race and Inequality in Jim Crow America (Lawrence, KA: University of Kansas Press, 2012); Medley, We as Freemen: Plessy v. Ferguson; Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (New York: Oxford University Press, 1987); Otto H. Olsen, ed., The Thin Disguise: Turning Point in Negro History, Plessy v. Ferguson, A Documentary Presentation (1864-1896) (New York: Humanities Press, 1967); Rebecca J. Scott, “Public Rights, Social Equality, and the Conceptual Roots of the Plessy Challenge,” Michigan Law Review 106, no. 5 (March 2008): 777–804.

10 On the origins of the term “Jim Crow,” see Richard A. Paschal, Jim Crow in North Carolina: The Legislative Program from 1865 to 1920 (Durham, N.C.: Carolina Academic Press, 2021), xv–xx; Litwack, North of Slavery, 106; Leon F. Litwack, “Jim Crow Blues,” OAH Magazine of History 18, no. 2 (January 2004): 7. According to Leon Litwack, the Jim Crow era’s “most intense years were between 1890 and the first Great Migration in the 1910s, but the seeds had been planted in the forceable over throw of Reconstruction in the 1870s.” Litwack, “Jim Crow Blues,” 7; see also Leon F. Litwack, How Free is Free? The Long Death of Jim Crow (Cambridge, MA: Harvard University Press, 2009), 4–53. I have suggested “instead that these seeds were planted in the antebellum era, and that the Jim Crow era extended further, until the separate but equal doctrine was held to be unconstitutional, beginning with the Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483 (1954).” Fede, A Degraded Caste of Society, 276n30.

11 See Fede, A Degraded Caste of Society, 9 (quoting John Anthony Scott, “Segregation: A Fundamental Aspect of Southern Race Relations, 1800-1860,” Journal of the Early Republic 4, no. 4 (Winter 1984): 427). Scott contrasted this continuity thesis with what he called the “big bang” or “discontinuity” thesis of abolition and emancipation. See Ibid., 421–28.

12 I once again do not offer here “a comprehensive interpretation of the badges of slavery, to remedy what one commentator called the ‘lack of a coherent [Thirteenth Amendment] jurisprudence.’” See Fede, A Degraded Caste of Society, 183 (quoting Lauren Kares, “The Unlucky Thirteenth: A Constitutional Amendment in Search of a Doctrine,” Cornell Law Review 80, no. 2 (1994–1995): 372).

13 See Fede, A Degraded Caste of Society, 87–88; Ariela J. Gross, What Blood Won’t Tell: A History of Race on Trial in America (Cambridge, Mass.: Harvard University Press, 2008), 54–56; James Oliver Horton, Free People of Color: Inside the African American Community (Washington, D.C.: Smithsonian Institution Press, 1993), 139–40; Michael P. Johnson and James L. Roark, Black Masters: A Free Family of Color in the Old South (New York: Norton, 1984), 54–55; Joel Williamson, New People: Miscegenation and Mulattoes in the United States (New York: The Free Press, 1980), 18–19, 71–72; John Belton O’Neall, Negro Law of South Carolina Collected and Digested by John Belton O’Neall (Columbia: John G. Bowman, 1848), 5–6, reprinted in Statutes on Slavery: The Pamphlet Literature, ed. Paul Finkelman (New York: Garland Publishing, 1988), 2: 117–72; Frank W. Sweet, Legal History of the Color Line: The Rise and Triumph of the One-Drop Rule (Palm Coast, FL: Backintyme, 2005), 181–93, 396–401, 403–06; Winthrop D. Jordan, ed. Paul Spickard, “Historical Origins of the One-Drop Racial Rule in the United States,” Journal of Critical Mixed Race Studies 1, no. 1 (2014): 98–132; D. Wendy Greene, “Determining the (In)determinate: Race in Brazil and the United States,” Michigan Journal of Race and Law 14, no. 2 (Spring 2009): 175; Ariela Gross, “Litigating Whiteness: Trials of Racial Determination in the Nineteenth Century South,” Yale Law Journal 108, no. 1 (October 1998): 162–64. South Carolina law thus was inconsistent with the antebellum laws adopted in 28 states that banned some interracial marriages. See Peggy Pascoe, What Comes Naturally: Miscegenation Laws in the Making of Race in America (New York: Oxford University Press, 2009), 19–21, 42.

14 State v. Cantey, 20 S.C.L. (2 Hill) 614, 615-16 (1835); see also, e.g., State v. Davis, 18 S.C.L. (2 Bail.) 558 (Ct. App. of Law & Eq. 1831).

15 See Carl N. Degler, Neither Black nor White: Slavery and Race Relations in Brazil and the United States (New York: Macmillan Company, 1971), 178, see also Ibid., 226–45. These multiracial people’s legal status was similar to that of Louisiana’s gens de couleur. See Jack M. Beermann, The Journey to Separate but Equal: Madame Decuir’s Quest for Racial Justice in the Reconstruction Era (Lawrence, KA: University of Kansas Press, 2021), 12–25; see also, e.g., discussing this concept, Robert J. Cottrol, The Long, Lingering Shadow: Slavery, Race, and Law in the American Hemisphere (Athens, GA: University of Georgia Press, 2013), 158–59.

16 See Fede, A Degraded Caste of Society, 86–87; Lee B. Wilson, Bonds of Empire: The English Origins of Slave Law in South Carolina and British Plantation America, 1660–1783 (New York: Cambridge University Press, 2021), 38–42; Peter H. Wood, Black Majority: Negroes in Colonial South Carolina from 1670 through the Stono Rebellion (New York: Alfred A. Knopf, 1974), 13; Andrew T. Fede, Homicide Justified: The Legality of Killing Slaves in the United States and the Atlantic World (Athens, GA: University of Georgia Press, 2017), 41, 98, 284n42; Matthew Mulcahy, Hubs of Empire: The Southern Lowcountry and British Caribbean Regional Perspectives in Early America (Baltimore: Johns Hopkins University Press, 2014), 84–111; Alan Watson, Slave Law in the Americas (Athens, GA: University of Georgia Press, 1989), 67–70; Jack P. Greene, “Colonial South Carolina and the Caribbean Connection,” South Carolina Historical Magazine 88, no. 4 (October 1987): 197.

17 See Fede, A Degraded Caste of Society, 88–94; Marina Wikramanayake, A World in Shadow: The Free Black in Antebellum South Carolina (Columbia, SC: South Carolina University Press, 1973), 47–70; Howell Meadoes Henry, The Police Control of the Slave in South Carolina (Emory, 1914; repr., New York: Negro Universities Press, 1968), 176–89; O’Neall, Negro Law of South Carolina, 1–8, 12–16.

18 State v. Harden, 29 S.C.L. (2 Speers) 152, 155 (Ct. App. Law 1832); see Fede, A Degraded Caste of Society, 94–112.

19 “An Act for the better Ordering and Governing Negroes and other Slaves in this Province,” in Statutes at Large of South Carolina, ed. David J. McCord, (Columbia: A. S. Johnston, 1840), 7: 400–02.

20 See Fede, A Degraded Caste of Society, 89–90; John William Wertheimer, Race and the Law in South Carolina: From Slavery to Jim Crow (Amherst, MA: Amherst College Press, 2023), 56–57; Thomas D. Morris, Southern Slavery and the Law, 1619-1860 (Chapel Hill: University of North Carolina Press, 1996), 207–26; Wikramanayake, A World in Shadow, 64–65; Michael Stephen Hindus, Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767–1878 (Chapel Hill: University of North Carolina Press, 1980), 131–32; O’Neall, Negro Law of South Carolina, 33–34; Wanling Su and Rahul Goravara, “What is a Jury,” North Carolina Law Review 103, no. 4 (May 2025): 983–88.

21 “An Act Abolishing Certain Punishments and Amending the Law for the Trial of Slaves and Free Persons of Color,” in McCord, Statutes at Large of South Carolina, 6: 489–90; see Fede, A Degraded Caste of Society, 90–9; Morris, Southern Slavery and the Law, 226–27; O’Neall, Negro Law of South Carolina, 34–36.

22 See Fede, A Degraded Caste of Society, 91–93; Wikramanayake, A World in Shadow, 19–21, 36, 56, 58, 102–03, 151–53; O’Neall, Negro Law of South Carolina, 28–33; see also, e.g., Ira Berlin, Slaves without Masters: The Free Negro in the Antebellum South (New York: New Press, 1974), 183, 316–40; Thomas R. R. Cobb, An Inquiry into the Law of Negro Slavery in the United States of America (Philadelphia: T. & J. W. Johnson and Savannah: W. Thorne Williams, 1858; repr., Athens: University of Georgia Press, 1999), 314–15; George M. Stroud, A Sketch of the Laws Relating to Slavery in the Several States of the United States of America, reprint ed. (New York: Negro Universities Press, 1968) (2d ed. 1856), 88–95.

23 See Wikramanayake, A World in Shadow, 65–68; O’Neall, Negro Law of South Carolina, 7, 14; Christopher J. Bryant, “Without Representation, No Taxation: Free Blacks, Taxes, and Tax Exemptions between the Revolutionary and Civil Wars,” Michigan Journal of Race and Law 21, no. 1 (Fall 2015): 111; Nic Butler, “South Carolina’s Capitation Tax on Free People of Color, 1756-1864,” Charleston County Public Library, January 28, 2022, accessed June 8, 2025, https://www.ccpl.org/charleston-time-machine/south-carolinas-capitation-tax-free-people-color-1756-1864; see also White v. Tax Collector, Kershaw Dist., 37 S.C.L. (3 Rich.) 136 (Ct. App. 1846).

24 See Fede, A Degraded Caste of Society, 88, 91.

25 See Fede, Homicide Justified, 173–74; see also Matthew Mulcahy, Hubs of Empire: The Southeastern Lowcountry and British Caribbean, Regional Perspectives in Early America (Baltimore: Johns Hopkins University Press, 2014), 210–11; Stephanie McCurry, Masters of Small Worlds: Yeoman Households, Gender Relations, and the Political Culture of the Antebellum South Carolina Low Country (New York: Oxford University Press, 1995), 33–36, 44–45; Rachel N. Klein, Unification of a Slave State: The Rise of the Planter Class in the South Carolina Backcountry, 1760-1808 (Chapel Hill: University of North Carolina Press, 1990), 14–15, 150–52, 238–68; Orville Vernon Burton, In My Father’s House Are Many Mansions: Family and Community in Edgefield, South Carolina (Chapel Hill: University of North Carolina Press, 1985), 15–46.

26 See Wikramanayake, A World in Shadow, 22, Appendix A (1)–(3); E. Horace Fitchett, “The Origin and Growth of the Free Negro Population of Charleston, South Carolina,” Journal of Negro History 26, no. 4 (October 1941): 435; Ulrich Bonnell Phillips, “The Slave Labor Problem in the Charleston District,” Political Science Quarterly 22, no. 3 (September 1907): 426.

27 See Sixth Census of the United States, 1840, St. James Goose Creek Parish, Charleston, South Carolina, National Archives Microfilm Publication, roll 509, page 148, Ancestry.com, accessed August 16, 2024; Dangerfield, “Turning the Earth,” 208 (Figure 1. South Carolina Coastal Parishes); Dangerfield, “Hard Rows to Hoe,” 9–10 (Figure 0.1. South Carolina Coastal Parishes and Figure 0.2. South Carolina Districts, 1815–1867). The parishes were political subdivisions in South Carolina’s low country during the antebellum era, according to the Church Act of 1706, which confirmed the Church of England as the colony’s established church. See Frederick Dalcho, An Historical Account of the Protestant Episcopal Church in South Carolina (Charleston: Arthur E. Miller, 1820), 244–63.

28 See Jennifer L. Hochschild and Brenna Marea Powell, “Racial Reorganization and the United States Census 1850–1930: Mulattoes, Half-Breeds, Mixed Parentage, Hindoos, and the Mexican Race,” Studies in American Political Development 22, no. 1 (Spring 2008): 66–67. Hochschild and Powell discuss the “complex” reasons for enumerating mulattoes in this census. See Ibid., 67–68; see also, e.g., Melissa Nobles, Shades of Citizenship: Race and the Census in Modern Politics (Stanford University Press: Stanford, CA, 2000), 25–84.

29 See Dangerfield, “Turning the Earth,” 208; Dangerfield, “Hard Rows to Hoe,” 9–10; Matthew A. Lockhart, “St. John’s Berkley Parish, November 30, 1706–1865,” South Carolina Encyclopedia, accessed June 10, 2025, https://www.scencyclopedia.org/sce/entries/st-johns-berkeley-parish/.

30 See Seventh Census of the United States, 1850, St. John’s Berkeley Parish, Charleston, South Carolina, National Archives Microfilm Publication, roll 850, page 401a, Ancestry.com, accessed August 16, 2024.

31 See Ibid.; Dangerfield, “Hard Rows to Hoe,” 138; Dangerfield, “Turning the Earth,” 223n29.

32 See Dangerfield, “Turning the Earth,” 215–16.

33 See 1860 United States Census of the United States, St. John’s Berkeley Parish, Charleston, South Carolina, National Archives Microfilm Publication, roll M653_1215, page 157, Ancestry.com, accessed August 19, 2024.

34 See text and notes at notes 13 to 16.

35 For Morgan Jackson, see 1860 United States Census of the United States, St. John’s Berkeley Parish, Charleston, South Carolina, National Archives Microfilm Publication, roll M653_1215, page 156, Family History Library Film: 805215, Ancestry.com, accessed August 19, 2024. For Henry Jackson, see 1850 United States Census of the United States, St. John’s Berkeley Parish, Charleston, South Carolina, National Archives Microfilm Publication, roll 850, page 397a, Ancestry.com, accessed August 19, 2024.

36 See Dangerfield, “Turning the Earth,” 223n29; Dangerfield, “Hard Rows to Hoe,” 151n20.

37 See “Court of Common Pleas and General Sessions,” Charleston Mercury, 2. David Dangerfield notes that, although the Charleston Mercury’s “original report stated Appii church was located in St. James Goose Creek, a correction was printed on May 11, 1859, stating the church was located in St. John’s Berkeley Parrish.” See Dangerfield, “Turning the Earth,” 216–17, 223n29; Dangerfield, “Hard Rows to Hoe,” 151n20; “For the Mercury,” Charleston Mercury (Charleston, S.C.), May 11, 1859, 1.

38 See Ramona L. Grimsley, “Berkeley County Churches, South Carolina Historical Records Survey, Works Progress Administration Survey of Local and State Records: 1936, by Anna L. Sinkler,” Berkeley County Library System, July 20, 2023, 1.

39 See Alan Hovorka, “Veteran Tends to Cemetery in Moncks Corner in Act of Service,” The Post and Courier (Charleston, S.C.), November 11, 2023, https://www.postandcourier.com/militarydigest/veteran-tends-to-faded-cemetery-in-moncks-corner-in-act-of-service/article_60622ea0-5240-11ee-ad12-dbeeceb2e479.html.

40 See “Court of Common Pleas and General Sessions,” Charleston Mercury, 2. Two other men were tried with the Jacksons on that date: John Lewis Whitfield, for riot and assault and battery, and Alexander Burbridge, for riot. See Ibid.

41 See Fede, A Degraded Caste of Society, 100; Wertheimer, Race and the Law in South Carolina, 49; B. F. Perry, Reminiscences of Public Men (Philadelphia: John D. Avil & Co., 1883), 222–28; B. F. Perry, “Sketch of Hon. T. J. Withers,” Yorkville Enquirer (York, S.C.), June 27, 1872, 1; Jasper M. Cureton, “Coming of Age: The South Carolina Court of Appeals” (South Carolina Judicial Department, South Carolina Court of Appeals), accessed, January 31, 2021, https://www.sccourts.org/appeals/history.cfm. In 1859, the legislature created a new Court of Appeals, made up of a chief justice and two associate justices. See Fede, A Degraded Caste of Society, 105.

42 See “Court of Common Pleas and General Sessions,” Charleston Mercury, 2. On Simons, see Nathaniel Cheairs Hughes, “Simons, Thomas Young 1849,” in Yale Confederates: A Biographical Dictionary (Knoxville: University of Tennessee Press, 2008), 187–88; W. Chris Phelps, Charlestonians in War: The Charleston Battalion (Gretna, LA: Pelican Publishing Company, 2004), 57; “Simons, Thomas Young,” in The National Cyclopedia of American Biography (New York: James T. White & Co., 1909), 11: 27; “Thomas Young Simons,” in Obituary Record of Graduates of Yale College Deceased from June, 1870, to June, 1880 (New Haven: Tuttle, Morehouse and Taylor, 1880), 304; “Hon. Thomas Y. Simons,” The Intelligencer (Anderson, S.C.), May 9, 1878, 1.

43 See “Court of Common Pleas and General Sessions,” Charleston Mercury, 2. For Hayne, see Charles Edward Cauthen, South Carolina at War 1860-1865 (Chapel Hill: University of North Carolina Press, 1950), 103–06; Clement A. Evans, Confederate Military History, Volume V (Athens, GA: Confederate Publishing Co., 1899), 637–38; “Death of the Hon. Isaac W. Hayne,” The Intelligencer (Anderson, S.C.), March 18, 1880, 7.

44 See “Court of Common Pleas and General Sessions,” Charleston Mercury, 2. David Dangerfield contested the assertion that the Jacksons were brothers. See Dangerfield, “Turning the Earth,” 223n29; Dangerfield, “Hard Rows to Hoe,” 151n20. Two other men tried with the Jacksons on that date were John Lewis Whitfield, for riot and assault and battery, and Alexander Burbridge, for riot. See “Court of Common Pleas and General Session,” Charleston Mercury, 2.

45 See Jeff Forret, Race Relations at the Margins: Slaves and Poor Whites in the Antebellum Southern Countryside (Baton Rouge: Louisiana University Press, 2006), 65; see also Wikramanayake, A World in Shadow, 113–31; Dangerfield, “Hard Rows to Hoe,” 149–53. On the struggle against discrimination in northern churches, see Richard J. Boles, Dividing the Faith: The Rise of Segregated Churches in the Early American North (New York: New York University Press, 2020); Litwack, North of Slavery, 187–213. The Methodist Episcopal Church had joined the other churches that split over the issue of slavery. See C. C. Goen, “Broken Churches, Broken Nation: Regional Religion and North-South Alienation in Antebellum America,” Church History 52, no. 1 (March 1983): 21–35.

46 See Court of Common Pleas and General Sessions,” Charleston Mercury, 2; Dangerfield, “Turning the Earth,” 216–17. The word “prosecutors” most likely refers to the church members who pressed the criminal charges, not professional public prosecutors. See Emma Kaufman, “The Past and Persistence of Private Prosecution,” University of Pennsylvania Law Review 173, no. 1 (November 2024): 89–156; Jonathan Barth, “Criminal Prosecution in American History: Private or Public?” South Dakota Law Review 67, no. 2 (2022): 119–93.

47 See, on the evolution of the roles of judges and juries in criminal trials in the nineteenth century, Albert W. Alschulter and Andrew G. Deiss, “A Brief History of the Criminal Law in the United States,” University of Chicago Law Review 61, no. 3 (Summer 1994): 902–21.

48 See “Court of Common Pleas and General Sessions,” Charleston Mercury, 2.

49 See State v. Brooks, 19 S.C.L (1 Hill) 361 (Ct. of App. of Law & Equity 1833) (quoting William Hawkins, A Treatise of the Pleas of the Crown, Book I (London: Elizabeth Nutt, 1716), Ch. 65, sec. 1); see also State v. Alexander, 41 S.C.L. (7 Rich) 5 (Ct. of App. 1853); State v. Jackson, 28 S.C.L. (1 Speers) 13 (Ct. of App. 1842).

50 See “Court of Common Pleas and General Sessions,” Charleston Mercury, 2.

51 See, discussing the evolution of plea bargaining in criminal trials in the nineteenth century, William Ortman, “When Plea Bargaining Became Normal,” Boston University Law Review 100, no. 4 (September 2020): 1435–99; Alschulter and Deiss, “A Brief History of the Criminal Law,” 921–25.

52 See “Court of Common Pleas and General Sessions—Saturday, October 27.—Hon. D.L. Wardlaw presiding,” Charleston Mercury (Charleston, S.C.), October 31, 1859, 2; “Sentence Day,” Charleston Courier (Charleston, S.C.), October 31, 1859, 3; Dangerfield, “Turning the Earth,” 216–17.

53 The following biographical sketch is based on Wertheimer, Race and the Law in South Carolina, 50–51, 62; William E. Wiethoff, A Peculiar Humanism: The Judicial Advocacy of Slavery in High Courts of the Old South, 1820-1850 (Athens: University of Georgia Press, 1996), 56–57, 153, 183n30; Ezra J. Warner and W. Buck Yearns, Biographical Register of the Confederate Congress (Baton Rouge: Louisiana State University Press, 1975), 260–61; Thomas J. Kirkland and Robert M. Kennedy, Historic Camden: Part Two Nineteenth Century (Columbia, S.C.: The State Company, 1926), 151–58; “Thomas J. Withers,” in Cyclopedia of Eminent and Representative Men of the Carolinas of the Nineteenth Century (Madison, WI: Brandt and Fuller, 1892) 1: 229–23; Perry, Reminiscences of Public Men, 222–26; Martin Bauml Duberman, “Writhing Bedfellows: 1826 Two Young Men from Antebellum South Carolina’s Ruling Elite Share ‘Extravagant Delight,’” Journal of Homosexuality 6, no. 1–2 (1981): 86–87; Perry, “Sketch of Hon. T. J. Withers,” 1; “Death of Judge Withers,” Edgefield Advertiser (Edgefield, S.C.), November 22, 1865, 2.

54 See Wertheimer, Race and the Law in South Carolina, 50.

55 See Kirkland and Kennedy, Historic Camden, 151–58; Duberman, “Writhing Bedfellows,” 87.

56 See Perry, Reminiscences of Public Men, 226. Elizabeth’s niece, Mary Boykin Chesnut, “later won enduring fame for her extraordinary Civil War Journals ….” See Duberman, “Writhing Bedfellows,” 86. Chesnut mentioned Elizabeth and Judge Withers often in her diary. See Mary Boykin Chesnut, Mary Chesnut’s Civil War, ed. C. Vann Woodward (New Haven, CT: Yale University Press, 1981), passim.

57 See Third Census of the United States 1810; Series Number: M252, Roll 62, page 417, Record Group 29, Ancestry.com.

58 See “Will of Burwell Boykin,” 3, dated August 11, 1817 and recorded in Will Book 1A, page 438, December 1, 1817, South Carolina, U.S., Wills and Probate Records, 1670–1980, Ancestry.com. This provision may have been written to protect the enslaved people who were devised from the creditors of the daughters’ future husbands. On the legal issues encountered by women who were enslavers, see Stephanie E. Jones-Rogers, They Were Her Property: White Women as Slave Owners in the American South (New Haven, CT: Yale University Press, 2019).

59 See Eighth Census of the United States 1860; Series Number: M653; Record Group 29; Seventh Census of the United States 1850; Series Number: M432; Record Group 29, Sixth Census of the United States 1840; Roll 512, Page 358; Family History Library film: 0022509, Ancestry.com; see also Wiethoff, A Peculiar Humanism, 57.

60 See Perry, Reminiscences of Public Men, 226.

61 See Wertheimer, Race and the Law in South Carolina, 49.

62 See Perry, Reminiscences of Public Men, 223.

63 See Kirkland and Kennedy, Historic Camden, 153–54.

64 See Warner and Yearns, Biological Register, 260; Kirkland and Kennedy, Historic Camden, 154–55; Perry, Reminiscences of Public Men, 226–28.

65 See Warner and Yearns, Biological Register, 260–61; see also Wiethoff, A Peculiar Humanism, 57, 183n30.

66 See Perry, Reminiscences of Public Men, 222, 223. For Withers’s enslavement law decisions, see Wertheimer, Race and the Law in South Carolina, 43–63, 83–86; Fede, Homicide Justified, 185; Andrew [T.] Fede, Roadblocks to Freedom: Slavery and Manumission in the United States South (New Orleans: Quid Pro Books, 2011), 155; Morris, Southern Slavery and the Law, 201, 227 (granting new trial motion); see also Wiethoff, A Peculiar Humanism, 56–57, 153. Withers’s “greatest renown” may have come after Martin Duberman published letters that Withers exchanged in 1826 with James Henry Hammond, who also achieved prominence, including as South Carolina’s governor. On the debate whether these letters “reveal a nineteenth-century culture of jocular masculinity” or were expressions of “modern-style homosexual identity,” See Wertheimer, Race and the Law in South Carolina, 62; see also Drew Gilipin Faust, James Henry Hammond and the Old South: A Design for Mastery (Baton Rouge: Louisiana State University, 1982), 18–19n18; Duberman, “Writhing Bedfellows,” 85–101; Patrick Young, “The Love Letters of Thomas Jefferson Withers to James Henry Hammond Future Governor of South Carolina,” The Reconstruction Era, April 30, 2024, https://thereconstructionera.com/the-love-letters-of-thomas-jefferson-withers-to-james-henry-hammond/; Rictor Norton, “The Gay Love Letters of Thomas J. Withers and James H. Hammond,” Gay History & Literature, 1997, http://rictornorton.co.uk/withers.htm; Robert L. Ellis, Jr., “Lesbians and Gays,” South Carolina Encyclopedia, accessed March 22, 2026, https://www.scencyclopedia.org/sce/entries/lesbians-and-gays/.

67 See, e.g., Welke, Recasting American Liberty, 249–375; Lofgren, The Plessy Case, 116–47; A. K. Sandoval-Strausz, “Travelers, Strangers, and Jim Crow: Law, Public Accommodations, and Civil Rights in America,” Law & History Review 23, no. 1 (Spring 2005): 92–94; Joseph William Singer, “No Right to Exclude: Public Accommodations and Private Property,” Northwestern Law Review 90, no. 4 (Summer 1996): 1286–497. No common law court decision adopted the first phase until antebellum judges in the United States began to include racial discrimination among the permissible “reasonable regulations” for public places and spaces. See Ibid., 1332–45.

68 See “Court of Common Pleas and General Sessions,” Charleston Mercury, 2; see also Dangerfield, “Turning the Earth,” 217 (Withers confined the Jacksons to “an inferior caste,” and “assigned [them to] positions of inequality.”).

69 See Plessy v. Ferguson, 562 (Harlan, J., dissenting); see also, e.g., Schmidt, The Sit-Ins, 5–10, 193n12; Daniel Thoennessen, “‘An Act Authorizing Sterilization of Persons Convicted of Murder, Rape, Chicken Stealing …’: Southern Chicken Theft Laws as an Expression of Racialised Political Violence,” in Food for Thought: Nourishment, Culture, Meaning, ed. Simona Stano and Amy Bently, (Springer, 2022), 91–100; Anthony Gregory, “Policing Jim Crow America: Enforcers’ Agency and Structural Transformations,” Law and History Review 40, no. 1 (February 2022): 102 (Jim Crow southern “law enforcement enabled something akin to a lynching regime.”); Darryl Barthe, “At the Intersection of Class and Colorism: The Creation of a Criminal Caste in New Orleans,” Journal of Criminal Justice and Law Review 5, no. 1–2 (January–December 2016): 81–94; Elizabeth Sepper, “The Role of Religion in State Public Accommodations Laws,” Saint Louis University Law Journal 60, no. 4 (Summer 2016): 631–70.

70 See generally George Orwell, Animal Farm (New York: New American Library, 1946), 123 (capitalization omitted).

71 See Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction (New York: Cambridge University Press, 2011), 71; see also Schmidt, Civil Rights in America, 13–15; Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (New York: Norton, 2019), 6–7; Laura F. Edwards, A Legal History of the Civil War and Reconstruction: A Nation of Rights (New York: Cambridge University Press, 2015), 127–37.

72 See Mark Tushnet, “The Politics of Equality in Constitutional Law: The Equal Protection Clause, Dr. Du Bois, and Charles Hamilton Houston,” Journal of American History 74, no. 3 (December 1987): 888. Richard Primus questioned “the theoretic integrity” of this classification scheme because “particular rights moved about among the categories in a kind of constitutional shell game depending on whether legislators or judges wanted to confer those rights on blacks.” See Richard A. Primus, The American Language of Rights (Cambridge: Cambridge University Press, 1999), 128.

73 Civil Rights Cases, 109 U.S. 3, 25, 3 S. Ct. 18, 27 L. Ed. 835 (1883).

74 See, e.g., Giuliana Perrone, Nothing More Than Freedom: The Failure of Abolition in American Law (New York: Cambridge University Press, 2023), 228–29; Rebecca J. Scott, “Discerning a Dignitary Offense: The Concept of Equal ‘Public Rights’ During Reconstruction,” Law and History Review 38, no. 3 (August 2020): 520–26; Peggy Cooper Davis, Aderson Francois, Colin Starger, “The Persistence of the Confederate Narrative,” Tennessee Law Review 84, no. 2 (Winter 2017): 301–366; Scott, “Public Rights,” 790, 800–04.

75 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896).

76 See Plessy v. Ferguson, 163 U.S., 551.

77 See Ibid., 561 (Harlan, J., dissenting); Beermann, The Journey to Separate but Equal, 171–72.

78 See Plessy v. Ferguson, 563–64 (Harlan J., dissenting).

79 See Orlando Patterson, Slavery and Social Death: A Comparative Study (Cambridge, Mass.: Harvard University Press, 1982), 1–14, 17–101; see also Orlando Patterson, Freedom: Freedom in the Making of Western Culture (New York: Basic Books, 1991), 347–62. Slavery’s other elements are the enslavers’ legal privilege to use violence and the slave’s “natal alienation,” which is defined as the absence of “all ‘rights’ or claims of birth[.]” See Fede, A Degraded Caste of Society, 282n72; Fede, People Without Rights, 17–18.

80 See generally Scott, “Discerning a Dignitary Offense,” 519–53.

81 See, e.g., notes 4 to 9.

82 See Stephan Vella, “Newspapers,” in Reading Primary Sources: The Interpretation of Texts from Nineteenth and Twentieth Century History, ed. Miriam Dobson and Benjamin Ziemann, 2d ed. (New York: Routledge, 2020), 217–37; Claudia Verhoven, “Court Files,” in Ibid., 99–116. Antebellum newspapers covered proceedings in local court houses during court week, when the trial lawyers and judges riding a judicial circuit visited a town or city. See Ariela Gross, “The Law and the Culture of Slavery: Natchez, Miss.,” in Local Matters: Race, Crime, and Justice in the Nineteenth Century South, ed. Christopher Waldrep and Donald G. Nieman (Athens: University of Georgia Press, 2001), 94–99. On claims-making, see, e.g., Jason A. Gillmer, “Litigating Slavery’s Reach: A Story of Race, Rights, and the Law during the California Gold Rush,” Loyola of Los Angeles Law Review 56, no. 2 (2023): 507–08.

83 See Samantha Barbas, “New York Times v. Sullivan: A Civil Rights Story,” Texas A&M Law Review 12, no. 1 (December 2024): 1–41.

84 See Aaron W. Marrs, “Charleston Mercury,” South Carolina Encyclopedia, accessed June 6, 2025, https://www.scencyclopedia.org/sce/entries/charleston-mercury/. The Charleston Mercury favored nullification in the 1830s and secession in the 1850s. Robert Barnwell Rhett, Jr. became the editor in 1857. On Rhett and his secessionist father, see Robert N. Rosen, Rhett: The Turbulent Life and Times of a Fire-eater (Columbia, S.C.: South Carolina University Press, 2001); Robert N. Rosen, Confederate Charleston: An Illustrated History of the City and the People During the Civil War (Columbia, S.C.: South Carolina University Press, 1994), 41; “Col. Rhett’s Funeral,” The Morning Mercury (Huntsville, Ala.), February 22, 1905, 5; “Col. Robert Barnwell Rhett is Dead,” Huntsville Weekly Democrat (Huntsville, Ala.), February 22, 1905, 3; see also H. B. Metcalf, “America’s Last Great Duel,” The Wichita Eagle (Wichita, Ks.), August 20, 1873, 1; “The Duello,” New York Times (New York, N.Y.), July 2, 1873, 1.

85 See 42 U.S.C. § 2000a(a) and (b); Suja A. Thomas, “The Customer Caste: Lawful Discrimination by Public Businesses,” California Law Review 109, no. 1 (February 2021): 156.

86 See, e.g., Denny v. Elizabeth Arden Salon, Inc., 456 F. 3d 427, 431–34 (4th Cir. 2006); Manz v. Walmart Supercenter Secaucus, 2025 WL 2169974, *5–*7 (D. N.J. 2025); Addison v. Signet Jewelers Limited, 2025 WL 1766119, *8–*9 (D. N.J. 2025). Courts do, however, sustain racial public accommodation discrimination claims if they can be asserted under the Civil Rights Act of 1866’s guarantee of the right to make and enforce contracts. See, e.g., Denny v. Elizabeth Arden Salon, Inc., 456 F. 3d, 434–36 (citing 42 U. S. C. § 1981). For critiques of the cases applying the 1964 Act, see Shaun Ossei-Owusu, “Velvet Rope Discrimination,” Virginia Law Review 107, no. 4 (June 2021): 683–764; Lu-in Wang, “Race, Dignity, and Commerce,” Journal of Law and Commerce 39, no. 2 (Spring 2021): 113–30; Thomas, “The Customer Caste,” 141–208; Anne-Marie G. Harris, “A Survey of Federal and State Public Accommodations Statutes: Evaluating Their Effectiveness in Cases of Retail Discrimination,” Virginia Journal of Social Policy & the Law 13, no. 2 (Winter 2006): 331–95; compare Brian K. Landsberg, “Public Accommodations and the Civil Rights Act of 1964: A Surprising Success,” Hamline Journal of Public Law & Policy 36, no. 1 (2015): 1–25.

87 William Faulkner, Requiem for a Nun (Random House: New York, 1951), 92; see Barack Obama, A More Perfect Union, American Rhetoric Online, accessed, August 27, 2025, https://www.americanrhetoric.com/speeches/barackobamaperfectunion.htm.

88 See Fede, A Degraded Caste of Society, 174–85. Reva Siegel explained this as “preservation through transformation.” See Reva Siegel, “Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action,” Stanford Law Review 49, no. 5 (May 1997): 1111–48; Reva B. Siegel, “‘The Rule of Love’: Wife Beating as Prerogative and Privacy,” Yale Law Journal 105, no. 8 (June 1996): 2117–207; see also Perrone, Nothing More Than Freedom, 227–75; Schmidt, The Sit-Ins, 152–83.

89 See Scott, “Segregation,” 420–41.

90 “Chapter 114, 43 Congress, Session 2, An Act: To protect all citizens in their civil and legal rights,” in U.S. Statutes at Large 18, no. Main Section (1875): 335–37. Others have emphasized, United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1875) and Hodges v. United States, 203 U.S. 1, 27 S. Ct. 6, 51 L. Ed. 65 (1906), “which limited the right of all people to be free from racially motivated violence, even though this violence was a crucial incident of enslavement.” See Fede, A Degraded Caste of Society, 180 (citing sources); Ariela Gross, “Erasing Slavery: The Uses and Misuses of the History of Slavery and Reconstruction in Constitutional Interpretation,” University of Pennsylvania Law Review 173, no. 7 (June 2025): 2133–38.

91 See Civil Rights Cases, 109 U.S., 4–26. On Bradley’s evolving views, see, e.g., Fede, A Degraded Caste of Society, 9, 181–83; Perrone, Nothing More Than Freedom, 268–75; Randy E. Barnett and Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (Cambridge, Mass.: Belknap, 2021), xiii–xviii, 171–82, 348–50; Brandwein, Rethinking the Judicial Settlement of Reconstruction, 87–128; Larry J. Pittman, “The Thirteenth Amendment and Equal Protection: A Structural Interpretation to ‘Free’ the Amendment,” William and Mary Journal of Race, Gender, and Social Justice 27, no. 2 (Winter 2021): 461–76; John Anthony Scott, “Justice Bradley’s Evolving Concept of the Fourteenth Amendment from the Slaughterhouse Cases to the Civil Rights Cases,” Rutgers Law Review 25, no. 4 (Summer 1971): 552–69; Scott, “Segregation,” 427. For critiques of this decision, see, e.g., Civil Rights Cases, 109 U.S., 34 (Harlan, J., dissenting) (“My brethren admit that [the Thirteenth Amendment] established and decreed universal civil freedom throughout the United States. But did the freedom thus established involve nothing more than exemption from actual slavery? Was nothing more intended than to forbid one man from owning another as property?”); Paul Finkelman, “The Hidden History of Northern Civil Rights Law and the Villainous Supreme Court, 1875-1915,” University of Pittsburgh Law Review 79, no. 3 (Spring 2018): 357–410; Arthur Kinoy, “The Constitutional Right of Negro Freedom,” Rutgers Law Review 21, no. 3 (Spring 1967): 387–441.

92 See Douglas L. Colbert, “Liberating the Thirteenth Amendment,” Harvard Civil Rights-Civil Liberties Law Review 30, no. 1 (Winter 1995): 2.

93 392 U.S. 409, 88 S. Ct. 2186, 20 L. Ed.2d 1189 (1968).

94 See 42 U. S. C. § 1982; “Chapter 31, 39 Congress, Session 1, An Act: To protect all persons in the United States in their civil rights, and furnish the means of their vindication.,” U.S. Statutes at Large 14, no. Main Section (1866): 27–30; see also Fede, A Degraded Caste of Society, 181; Arthur Kinoy, “Jones v. Alfred H. Mayer Co.: A Historic Step Forward,” Vanderbilt Law Review 22, no. 3 (April 1969): 475–83.

95 379 U.S. 241, 85 S. Ct. 348, 13 L. Ed. 2d 258 (1964).

96 See 42 U.S.C. § 2000a(a) and (b).

97 Heart of Atlanta Motel, Inc. v. United States, 379 U.S., 243–68 (sustaining Act when applied to a motel), see Ibid., 278–79 (Black, J. concurring). Compare the concurring opinions of Douglas, Ibid., 279–91 and Goldberg, Ibid., 291–93, who would have sustained the Act under the Fourteenth Amendment; see also Katzenbach v. McClung, 379 U.S. 294, 85 S. Ct. 377, 13 L. Ed. 2d 290 (1964) (sustaining Act when applied to a restaurant).

98 Scott, “Segregation,” 421–22; see C. Vann Woodward, The Strange Career of Jim Crow: A Commemorative Edition (New York: Oxford University Press, 2002), 3–109; C. Vann Woodward, Origins of the Old South, 1877-1913 (Baton Rouge: Louisiana State University Press, 1951), 210–12, 355–57.

99 See “Afterword by William S. McFeeley,” in Woodward, The Strange Career of Jim Crow, 224.

100 See Woodward, The Strange Career of Jim Crow, 17; see also, James C. Cobb, C. Vann Woodward: America’s Historian (Chapel Hill: North Carolina University Press, 2022), 154–206. On segregation in the North, see Luxenberg, Separate, 3–23; Welke, Recasting American Liberty, 323–26; Litwack, North of Slavery, 97–99, 103, 106–52, 187–99, 206–13, 279.

101 W. Fitzhugh Brundage, “Introduction,” in The Folly of Jim Crow: Rethinking the Segregated South, ed. Stephanie Cole and Natalie J. Ring (Arlington, TX: University of Texas, 2012), 5; see Scott, “Segregation,” 421–26.

102 See Luxenberg, Separate, 4. Luxenberg used the word “separation,” not “segregation.” Ibid. He lists The Strange Career among his sources. See Ibid., 574.

103 See Mark Schultz, The Rural Face of White Supremacy: Beyond Jim Crow (Champaign, IL: University of Illinois Press, 2005), 5, 66.

104 See Ibid., 110; see also Roger A. Fischer, The Segregation Struggle in Louisiana, 1862-1877 (Urbana, IL: University of Illinois Press, 1974), 6; Wikramanayake, A World in Shadow, 113–31.

105 See Welke, Recasting American Liberty, 348 (noting: “The historical reconstruction of Jim Crow began with C. Vann Woodward.”); Ibid., 348n88.

106 See Ibid., 350.

107 See Note 69; Fede, A Degraded Caste of Society, 177; Schmidt, The Sit-Ins, 7, 193n12. For discussions of how the Supreme Court’s majority later sidestepped the central constitutional issue in Bell v. Maryland, 378 U.S. 226, 84 S. Ct. 1814, 12 L. Ed. 2d 822 (1964), see Ibid., 114–51; Christopher Schmidt, “The Sit-Ins and the State Action Doctrine,” William and Mary Bill of Rights Journal 18, no. 3 (March 2010): 768–829.

108 See Fede, A Degraded Caste of Society, 177–79.

109 See Ibid., 177 (quoting Joel Williamson, After Slavery: The Negro in South Carolina During Reconstruction, 1861-1877 (Chapel Hill: University of North Carolina Press, 1965), 298); see also Leon F. Litwack, Been in the Storm So Long: The Aftermath of Slavery (New York: Random House, 1979), 262; Howard N. Rabinowitz, Race Relations in the Urban South, 1865-1890 (New York: Oxford University Press, 1978), 329–39; Fischer, The Segregation Struggle in Louisiana, 3–20; Williamson, After Slavery, 240–99; Howard N. Rabinowitz, “Segregation and Reconstruction,” in Race Ethnicity, and Urbanization: Selected Essays (Columbia, MO: University of Missouri Press, 1994), 42–58; Howard N. Rabinowitz, “More Than the Woodward Thesis: Assessing The Strange Career of Jim Crow,” Journal of American History 75, no. 3 (December 1988): 842–56; Scott, “Segregation,” 426–41.

110 See Brundage, “Introduction,” in The Folly of Jim Crow, 1–16; see also Mia Bay, “From the ‘Ladies Car’ to the ‘Colored Car’: Black Female Travelers in the Segregated South,” in Ibid., 150–75; Peter Wallenstein, “Identity, Marriage, and Schools: Life along the Color Line/s in the Era of Plessy v. Ferguson,” in Ibid., 17–53.

111 See, e.g., Kami Fletcher, “Jim Crowing the Dead: A Fight for African American Burial Rights and Dismantling Racial Burial Covenants,” in Grave History: Death, Race, and Gender in Southern Cemeteries, ed. Kami Fletcher and Ashley Towle (Athens, Ga.: University of Georgia Press, 2023), 149–67; Scarlet Jernigan, “The Status Quo Made Picturesque: Nineteenth-Century Macon, Georgia, and its Garden of the Dead,” in Ibid., 16–47.

112 See Fischer, The Segregation Struggle in Louisiana, 3; see also Scott, “Segregation,” 425 (“With these seven words, Fischer blew away the Woodward theses[.]”).

113 See Andrew [T.] Fede, People Without Rights: An Interpretation of the Fundamentals of the Law of Slavery in the U.S. South (New York: Garland, 1992; repr., New York: Routledge, 2011), 18–22 and passim. On the distinction between legal rights and privileges that enslavers permitted, see Ibid., 19–22; Andrew Fede, “Toward a Solution of the Slave Law Dilemma: A Critique of Tushnet’s American Law of Slavery,” Law and History Review 2, no. 2 (Fall 1984): 311–20, compare Dylan C. Penningroth, Before the Movement: The Hidden History of Black Civil Rights (New York: Liveright, 2023), 3–26; Morris, Southern Slavery and the Law, 193–96; Andrew T. Fede, “Review of Southern Slavery and the Law, 1619-1860,” American Journal of Legal History 41, no. 4 (October 1997): 406–7.

114 See Fede, A Degraded Caste of Society, 6–7, 174–85; see also Deborah A. Rosen, “Slavery, Race, and Outlawry: The Concept of Outlaw in Nineteenth-Century Abolitionist Rhetoric,” American Journal of Legal History 58, no. 1 (2018): 126–56 (discussing how southern enslavers, abolitionists, and proslavery and antislavery lawyers used the concept of outlawry to understand the legal status of enslaved and free Blacks, and how some of the abolitionists’ concerns persist).

115 See Fede, A Degraded Caste of Society, 183–85 (slavery’s badges include “nongovernmental actor violence occasioned because of the perpetrator’s perceptions of the victim’s race.”).

116 See note 3; see generally Gosse, The First Reconstruction, 57–490; Manisha Sinha, The Slave’s Cause: A History of Abolition (New Haven, Conn.: Yale University Press, 2016), 65–96, 316–38; Patrick Rael, Eighty- Eight Years: The Long Death of Slavery in the United States (Athens: University of Georgia Press, 2015), 62–69, 126–51; Ira Berlin, The Long Emancipation: The Demise of Slavery in the United States (Cambridge, Mass: Harvard University Press, 2015), 45–105, 136–43, 192n30, 193n31; James J. Gigantino II, The Ragged Road to Abolition: Slavery and Freedom in New Jersey, 1775–1865 (Philadelphia: University of Pennsylvania Press, 2015). Arthur Zilversmit, The First Emancipation: The Abolition of Slavery in the North (Chicago: University of Chicago Press, 1967); Rosen, “Slavery, Race, and Outlawry,” 156; compare Willie Lee Rose, Rehearsal for Reconstruction: The Port Royal Experiment (New York: Oxford University Press, 1964) (Reconstruction’s rehearsal occurred after the Union occupied South Carolina’s Sea Islands).

117 See I. Bennett Capers, “Race, Policing, and Technology,” North Carolina Law Review 95, no. 4 (May 2017): 1243n13; see also Dangerfield, “Turning the Earth,” 217–18.

118 See Co. D, 3 (Palmetto) Batt’n South Carolina Lt. Art’y, Compiled Service Records of Confederate Soldiers Who Served in Organizations From the State of South Carolina, National Archives and Records Administration, Publication M267, Ancestry.com.

119 See Regulations for the Army of the Confederate States, 1862 (Richmond: J. W. Randolph, 1862), 385–86; National Parks Service, The Civil War, Search for Soldiers, Jackson, Pringle, accessed, August 19, 2024, https://www.nps.gov/civilwar/search-soldiers-detail.htm?soldierId=EBACE7AB-DC7A-DF11-BF36-B8AC6F5D926A

120 See 1910 Census, St. John’s Berkeley, Berkeley, South Carolina, roll T624_1451; page 1a, enumeration district: 0004, FHL microfilm: 1375464; 1900 Census, St. John’s Berkeley, Berkeley, South Carolina, roll 1519; page 6, enumeration district: 0026; 1880 Census, Saint John’s Berkeley, Charleston, South Carolina, roll 1223; page 352a, enumeration district: 090; 1860 Census, St. John’s Berkeley, Berkeley, South Carolina, roll T653_1215; page 157, Family History Library Film: 805215, Ancestry.com.

121 See Constitution of the State of South Carolina, Ratified in Convention, December 4, 1895 (Abbeville, S.C.: Hugh Wilson, 1900), 18 (“The marriage of a white person with a negro or mulatto, or person who shall have one-eighth or more negro blood, shall be unlawful and void.”); Bennett v. Bennett, 195 S.C. 1, 10 S.E. 2d 23, 25 (1940) (affirming dismissal of will challenge because, among other things, “the plaintiff failed to prove that the defendant has one-eighth or more of negro blood in her veins.”); see also Damon L. Fordham, The 1895 Segregation Fight in South Carolina (Charleston: The History Press, 2022), 32–35; Sweet, Legal History of the Color Line, 71–72, 396–400. One Black Code provision declared: “Marriage between a white person and a person of color shall be illegal and void[.]” Williamson, After Slavery, 296; see Ibid., 74–77, 279–80; Singer, “No Right to Exclude,” 1355.

122 See Certificate of Death, State of South Carolina, Bureau of Vital Statistics, State Board of Health, File No. 8881, June 16, 1927, Ancestry.com; Standard Certificate of Death, State of South Carolina, Division of Vital Statistics, State Board of Health, File No. 54-001376, February 5, 1954, Ancestry.com; see also U.S. Find a Grave Index, 1600s-current [database on-line]. Lehti, Ut, 2012, Ancestry.com.

123 See Martha S. Jones, The Trouble of Color: An American Family Memoir (New York: Basic Books, 2025), 24; see also Elizabeth M. Smith-Pryor, Property Rites: The Rhinelander Trial, Passing, and the Protection of Whiteness (Chapel Hill: University of North Carolina Press, 2009); Martha A. Sandweiss, Passing Strange: A Gilded Age Tale of Love and Deception Across the Color Line (New York: Penguin, 2009); Baz Dreisinger, Near Black: White-to-Black Passing in American Culture (Amherst: University of Massachusetts Press, 2008); Sweet, Legal History of the Color Line, 71–87, 278, 289–91; Susan Saulny, “My Family’s American Secret,” The New York Times (New York, NY), May 17, 2026, 1, https://www.nytimes.com/2026/05/15/us/degrange-family-history-race.html?searchResultPosition=10.