City of Greenwood, MS v. Peacock On Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

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IN THE

Supreme Court of the United States
OCTOBER TERM, 1965

No. 471

THE CITY OF GREENWOOD, MISSISSIPPI,
Petitioner

versus

WILLIE PEACOCK, ET. AL.

No. 649

WILLIE PEACOCK, ET. AL.
Petitioners

versus

THE CITY OP GREENWOOD, MISSISSIPPI

ON WRITS OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT



I. Opinions Below ________________________  1

II. Jurisdiction ____________________________  2

III. Constitutional Provisions and
Statutes Involved ______________________  2

IY. Questions Presented ___________   4

V. Statement of the Case-----------------------------  5

VI. Argument

A) Point I A.)
(Racially Motivated Arrest and Charge) ----  9

B) Point I B.)
(Sufficiency of the Pleadings) -------------------- 13

C) Point II A.)
(Unconstitutional Application of Jury 
Statutes) _____________________________  16

1) Historical Background ------  18

2) Construction Problems ____________  22

3) Supremacy Applies _______________  24

4) Problems of Judicial Administration.... 27

29

I

TABLE OF CONTENTS

Page

5) Abstention in Disguise



II

D) Point II B.)
(The Jury Statutes as written are Uncon­
stitutional)

1) Rives and Powers Apply __________  32

2) Franchise Connections and Women__  35

3) Does Mississippi have a real jury
system ______________________ -___ 36

E) Point III
(Does 28 USC Section 1443(2) apply)

1) Who are “other persons” and what is a
“Posse Comitatus” _________________  37

2) What the refusal to act “ineonsistant”
with the 14th Amendment means ------- 40

VII. Conclusion _____________________________  43

VIII. Certificate ----------------    45

TABLE OE CONTENTS (Continued)

Page



I ll

Baggett vs. Bullitt, 377 US 360, 84 S. Ct. 1316, 12

TABLE OF CASES

Page

L. Ed. 2d 377 _____________________________  30

Baines, et al vs. Danville, et al (C. A. 4)
(unreported January 21st, 1966) _____________  23

Baker vs. Carr, 369 US 186 (1961) ___________  24, 29

Brown vs. Board of Education 347 US
483 (1954) ________________..._______  24, 27, 34

Brown vs. Louisiana No. 41 October Term (1966) __  11

Bush vs. Orleans Parish School Board, 364 US 50,
815 S. Ct. 260, 5 L. Ed. 245 (194
F. Supp. 182) __________________________  11, 26

Clarksdale vs. Gertge, 237 F. Supp. 213 (1964) ____  12

Cooper vs. Hutchinson (C. A. 3) 184 F. 2d
119 (1958) _______________________________  30

Cox vs. Louisiana, 379 US 536 (1965) ____________  12

Davis vs. Manu, 377 US 678 12 L. Ed. 2d 609, 84
S. Ct. 1453 ________________________________  30

Dombrowski vs. Pfister, 227 F. Supp.
556 (1964) __________________ _____  25, 26, 27

Dombrowski vs. Pfister, 380 US 479
(1965) ______________  12, 13, 24, 25, 29, 30, 31



IV

TABLE OF CASES (Continued)

Page

Douglas vs. City of Jeanette, 319 US 147, 63 S. Ct.
877 87 L. Ed. 1324 ________________________  30

Engel vs. Vitale, 370 US 421 (1962) ______________  24

England vs. La. Board of Medical Examiners,
375 US 411 (1964) _____________________  29, 30

Faye vs. Noia, 372 US 391 (1963) _______________  24

Georgia vs. Rachel, 342 P. 2d 336 (1965) ______  12, 13

Griffin vs. County School Board, 377 US 218, 12 L.
Ed. 2d 256, 84 S. Ct. 1226 __________________  30

Hamer, et al vs. Sunflower, et al (C. A. 5)
(unreported opinion March 11th, 1966) _______  35

Harrison vs. NAACP, 360 US 167, 79 S. Ct. 1025,
3 L. Ed. 2d 1152___________________________  30

Hu An Kow vs. Nunan, 5 Sawy. 552, 600 Fed.
Case #6546 (1879) ___________ _____________ __ n

Kentucky vs. Powers, 201 US 1, 50 L. Ed. 633
(1906) -------------  8, 12, 17, 18, 24, 27, 28, 29, 37

Louisiana P. & L. Co. vs. Thibodeaux, 360 US 25, 79 
S. Ct. 1070, 3 L. Ed. 2d 1058 ________________  30

McNeese vs. Board of Education, 373 US 668, 10 L.
Ed. 2d 622, 83 S. Ct. 1433 31



V

Meredith vs. Fair, 343 F. 2d 343 (1963) __________  19

NAACP vs. Button, 371 US 415 (1963) ___________  25

Neal vs. Delaware, 103 US 370 (1881) ___________  28

Peacock, et al vs. City of Greenwood, 345 F. 2d 679
(C. A. 5) (1965) ______  1, 2, 7, 8, 9, 37, 38, 39

Peay vs. Cox, 190 F. 2d 123 (C. A. 5) (1951) ______... 34

People vs. Galamison, 342 F. 2d 255 (1965) ____  37, 39

Plessey vs. Ferguson, 163 US 537, 41 L. Ed. 256,
16 S. Ct. 113 (1896) ___________________  27, 28

Scott vs. Sanford, 19 How. 393, 60 S. Ct. 691 (1857)— 13

Slaughterhouse Cases, The, 16 Wall, 36, 21 L. Ed.
394 (1873) _______ ________________________ 27

State of South Carolina vs. Katzenbach
(unreported opinion of March 7, 1966) ____  31, 32

Strauder vs. West Virginia, 100 US 303 (1880) — 10, 18

U. S. vs. Campbell, (N. D. Miss.)
(unreported opinion #G  C 633, 1965) -------------  36

U. S. ex rel Goldsby vs. Harpole, 236 F. 2d
71 (1959) _____________________________  13, 22

TABLE OF CASES (Continued)

Page



VI

TABLE OF CASES (Continued)

Page

U. S. vs. Mississippi, 339 F. 2d 679 (C. A. 5)
(1964) -------------------------------------------------  35, 38

U. S. vs. Mississippi, 380 US 128, 85 S. Ct.
088 (1965) ____________ _____ 16, 33, 34, 35, 38

U. S. vs. Wood, 295 F. 2d 772 (1961) _________  13, 39

Virginia vs. Rives, 100 US 313, 25 L. Ed. 667
(1870) ____  10, 12, 17, 18, 23, 24, 27, 28, 29, 37

Weathers, et al vs. City of Greenwood
(percuriam) ____________________  1, 2, 7, 9, 35

Williams vs. Mississippi, 170 US 213 (1898) _______  22

CONSTITUTIONAL AND 
STATUTORY PROVISIONS

Civil Rights Act of 1870, 16 Stat. 140____________  21

Civil Rights Act of 1871, 17 Stat. 13 _____________  21

Civil Rights Acts of 1875, 18 Stat. 335, 18 Stat. 470 __ 21

Civil Rights Act of 1957, 42 USC Section 1971 __ 38, 43

Civil Rights Act of 1866, 14 Stat. 27 ______  18, 21, 31

Constitution of Mississippi — Art. 3, Section
31 (1890) ________________________________  17



VII

TABLE OF CASES (Continued)

Page

Constitution of Mississippi (1890) Art. 14
Section 243 _______________________________  22

Constitution of Mississippi (1890) Art. 14
Section 244 ____________________________  22, 34

Constitution of Mississippi, (1890) Art. 14,
Section 264 ___________________________  22, 32

Constitution of the United States, Art. VI
(Supremacy Clause) ___________________ ___  2

Constitution of the United States Amendment 1 3 -----  21

Constitution of the United States
Amendment 1 4 ___________________  2, 21, 28, 43

Constitution of the United States Amendment 1 5 ___  21

Federal Rules of Civil Procedure — Rule 8(a) --------  16

Federal Rules of Civil Procedure — Rule 7 -------------  23

Federal Rules of Criminal Procedure —
Rule 6(b) (2) ____ ________________________  23

Laws of Mississippi 1866-67, —
pp. 232-233 __________________________  18, 19, 41, 42

17Mississippi Code, Sections 1836-39 ------

Mississippi Code, Sections 2613 and 2639 13



VIII

Mississippi Code, Section 2296.5 ___________  3, 10, 12

Mississippi Code, Section 9352-21, Section 9352-24 __  6

Mississippi Code, Sections 6185-13, 2089.5 and 2291 _ 6

TABLE OF CASES (Continued)

Page

Mississippi Code, Section 1798 _______________  33, 37

Mississippi Code, Section 1796 _______________  33, 36

Mississippi Code, Section 1766 _______________  22, 32

Mississippi Code, Section 1762 _______________  22, 32

Mississippi Code, Section 4065(3) ________________  15

Mississippi Session Laws 1865, pp. 86-93 _______  19, 41

28 U S C Section 1443
(1964) _____ ______ 2, 4, 5, 6, 7, 8, 9, 10, 14, 17,
_______________________________  23, 37, 39, 40

28 U S C, Section 1446(a) 1964 _______________  3, 16

42 U S C, Section 1971 _____________________  14, 43

28 U S C, Section 2283 _________________________  31

LEGISLATIVE MATERIALS

Congressional Globe; 1866, 39th Congress, 
Pt. I, p. 474 ______________________ 41



IX

Congressional Globe; 1866, 39th Congress,
Pt. II, p. 1413_____________________________  40

Congressional Globe; 1866, 39th Congress,
Pt. I, p. 588 _______________________________  42

OTHER SOURCES

Aptheker; “Mississippi Reconstruction and The Negro 
Leader Charles Caldwell” Science and Society, 
Vol. XI No. 4 _____________________________  19

Amsterdam; Criminal Prosecutions Affecting Federal­
ly Guaranteed Rights: Federal Removal and Ha­
beas Corpus Jurisdiction to Abort State Court 
Trial; 113 Univ. of Penn. Law Review, 793, 
(1965) ___________________________________  40

Franklin; The Relation of the Fifth, Ninth and Four­
teenth Amendments to the Third American Con­
stitution -4-5 Howard Law Journal 171 (1958) — 21

Kurland, Toward a Co-operative Judicial Federalism; 
The Federal Court Abstention Doctrine, 24 FRD 
481 ______________________________________  30

Preaus, Note 8, 39 Tulane Law Review (1965) ____  29

Silver, Mississippi The Closed Society
Harcourt Brace & World (1964) _____________ 19

TABLE OF CASES (Continued)

Page



TABLE OF CASES (Continued)

Page

Stephenson, Gilbert T., Race Distinctions in American 
Law (Appleton, 1910) ______________________  20

Wharton, Vernon L., The Negro in Mississippi,
Univ. North Carolina Press
(1947) ----------------------------  18, 19, 22, 33, 41, 42

Woodward, C. Vann, Origins of the New South, South­
ern History Series, La. State University Press,
Vol. IX (1951) _____________________  21, 22, 35

Woodward, C. Vann, Reunion and Reaction
Doubleday — Anchor Ed. (1956) ___ _____  21, 22



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1965

No. 471

THE CITY OF GREENWOOD, MISSISSIPPI,
Petitioner

versus

WILLIE PEACOCK, ET. AL.

No. 649

WILLIE PEACOCK, ET. AL.

versus
Petitioners

THE CITY OF GREENWOOD, MISSISSIPPI

ON WRITS OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

OPINIONS BELOW
The opinion of the District Court below relative to 

the Peacock portion of this consolidated case is found 
at page 9 of the record. The Weathers opinion is at 
page 67 of the record. These opinions are unreported. 
However, the Court of Appeals opinion in Peacock by 
Judge Bell, found at page 21 of the record, is reported



2

in 347 F. 2d at 679. The Weathers Appellate opinion 
is per curiam and unreported. It is found at page 96 
of the record.

JURISDICTION
The original judgments of the Court of Appeals for 

the Fifth Circuit were entered on June 22nd, 1965 
(Peacock) and on July 20th, 1965 (Weathers). No 
petition for a re-hearing was filed and applications for 
writs of certiorari were made by the City of Greenwood 
on August 19, 1965, and by Peacock, et. ah, on October 
5, 1965. Certiorari was granted January 17, 1966. This 
Court has jurisdiction of this matter under title 28 USC 
§1254(1).

CONSTITUTIONAL PROVISIONS AND 
STATUTES INVOLVED HEREIN

1. The supremacy clause of the Constitution of the 
United States (Article VI) and the Fourteenth Amend­
ment to that Constitution are both involved herein.

2. The following statutes are also involved:

28 U.S.C. §1443(1964):

§1443. Civil rights cases.

Any of the following civil actions or criminal 
prosecutions commenced in a State court may be 
removed by the defendant to the district court 
of the United States for the district and division 
embracing the place wherein it is pending:

(1) Against any person who is denied, or can­
not enforce in the courts of such State, a right



3

under any law providing for the equal civil rights 
of citizens of the United States, or of all persons 
within the jurisdiction thereof;

(2) For any act under color of authority derived 
from any law providing for equal rights, or for 
refusing to do any act on the ground that it 
would be inconsistent with such law.

28 U.S.C. 11446(a) (1964):

§1446. Procedure for removal.

(a) A defendant or defendants desiring to re­
move any civil action or criminal prosecution 
from a State Court shall file in the district court 
of the United States for the district and division 
within which such action is pending a verified 
petition containing a short and plain statement 
of the facts which entitle him or them to re­
moval together with a copy of all process, plead­
ings and orders served upon him or them in 
such action.

Mississippi Code §2296.5

“It shall be unlawful for any person or persons 
to wilfully obstruct the free convenient and nor­
mal use of any public sidewalk, street, highway, 
alley, road, or other passageway by impeding, 
hindering, stifling, retarding or restraining traf­
fic or passage thereon, and any person or per­
sons violating the provisions of this act shall be 
guilty of a misdemeanor.”



4

QUESTIONS PRESENTED
I A) Whether a removal petition which alleges a 
racially-motivated arrest, charge and prosecution of civil 
rights workers peacefully engaged in a campaign to 
register Negro voters, which arrest is alleged to be de­
signed to harass and intimidate such workers, states a 
case for removal under title 28USC§1443 (1964). (cov­
ered in part IA) of the argument)

I B) Whether as a matter of pleading a removal peti­
tion that alleges a racially-motivated arrest, charge and 
prosecution, designed to suppress Negro voter registra­
tion activity, sufficiently describes a denial of an equal 
civil right and/or an inability to enforce in the courts 
of the state a right under a law providing for equal 
civil rights so as to set forth a case for removal, (cov­
ered in Part IB) of the Argument)

II A) Whether a removal petition which alleges that 
Negroes are administratively excluded from juries which 
will try such state-charged petitioners, arrested while 
assisting Negoes to register to vote, describes an inability 
to enforce in the courts of that state a right under a law 
providing for the equal civil rights of citizens, thereby 
stating a case for removal under Title 28USC§1443 (1). 
(covered in part IIA) of the Argument)

II B) Whether a petition which alleges that state jury 
selection laws as written are unconstitutional and ex­
clude females and Negroes from service on juries that 
will try state-charged petitioners describes an inability 
to enforce in the courts of that state a right under a 
law providing for the equal civil rights of citizens, there­
by stating a case for removal under Title 28 USC§1443- 
(1)- (covered in Part IIB) of the Argument)



5

III Whether a petition that alleges civil rights workers 
were arrested and charged by the state for assisting 
Negroes to register to vote in Mississippi are thereby 
prosecuted for an act performed under color of authority 
derived from the Fourteenth Amendment and the Civil 
Rights Acts of 1957 and 1960, and additionally for re­
fusing to do an act, i.e., for desisting, on the ground that 
it would be inconsistant with such equal federal laws, all 
within the meaning of Section 1443(2), sets forth a case 
for removal, (covered in part III of the Argument)

STATEMENT OF THE CASE
The fourteen petitioners in the Peacock case were all 

arrested on March 31, 1964, by city officials in the City 
of Greenwood, Mississippi, and charged with violating 
Section 2296.5 of the Mississippi Code Annotated of 
1942. Petitioners, who were all members of the Student 
Non-Violent Coordinating Committee, were arrested while 
picketing the LeFlore County Court House, and were 
charged with obstructing public streets. On April 3, 
1964, before trial in the Police Court of the City of 
Greenwood, Mississippi, petitioners filed removal peti­
tions in the United States District Court for the North­
ern District of Mississippi (Greenville Division), alleg­
ing jurisdiction under both sub-sections of 28 U.S.C. 1443. 
Petitioners alleged that they were members of the Stu­
dent Non-Violent Coordinating Committee, affilated with 
the Council of Federated Organizations, both civil rights 
groups. Petitioners further alleged that at the time of 
their arrest they were engaged in a voter registration 
drive in LeFlore County, Mississippi, assisting Negroes 
to register so as to enable them to vote. They further al­
leged that they could not enforce their rights under the 
First and Fourteenth Amendments of the Federal Consti­



6

tution to be free in speech to petition and to assemble, that 
they were denied the equal protection of the laws, the 
privileges and immunities of the laws and the due pro­
cess of law, inasmuch as, among other things, they were 
arrested, charged and were to be tried under a state 
statute which was vague, indefinite and unconstitutional 
on its face, and was unconstitutionally and arbitrarily 
applied and used, and was enforced in the instance of 
their arrest as “a part and parcel of the unconstitutional 
and strict policy of racial segregation of the State of 
Mississippi and the City of Greenwood.” Because of the 
aforementioned, petitioners finally alleged, they were 
denied and/or could not enforce in the courts of the 
State of Mississippi the rights they possess providing for 
equal protection and equal rights. Petitioners invoked 
the application of both sub-sections of 28 USC. Section 
1443.

The Weathers case also involved criminal cases re­
moved from the Police Court of the City of Greenwood, 
Mississippi, under authority of 28 U.S.C. 1443, subsec­
tions 1 and 2. In that case there are fifteen applicant- 
petitioners who were arrested at various times during 
the month of July, 1964, and charged with the following 
offenses: parading without a permit in violation of an 
ordinance of the City of Greenwood, Mississippi, enacted 
June 21, 1963, and recorded in Minute Book 55 at page 
67 of the Records of Ordinances of the City of Green­
wood, Mississippi; contributing to the delinquency of a 
minor in violation of Section 6185-13 of Mississippi Code 
Annotated of 1942; the use of profane and vulgar lang­
uage in violation of Sections 2089.5 and 2291 of the 
Mississippi Code Annotated of 1942; disturbance in a pub­
lic place; disturbing the peace in violation of Section



7

2089.5 of the Mississippi Code Annotated of 1942; as­
sault; assault and battery; inciting to riot; operating a 
motor vehicle with improper license tags in violation of 
Sections 9352-21 and 9352-24 of the Mississippi Code An­
notated of 1942; interfering with a police officer in the 
performance of his duty; and reckless driving.

Some of the petitioners in the Weathers case are 
charged with more than one of the offenses listed above, 
and some of them jointly filed one petition for removal. 
Petitioners’ petitions for removal in the Weathers case 
allege different facts, but with respect to 28 U.S.C. Sec­
tion 1443(1) they allege that petitioners cannot enforce 
their equal civil rights under the Fourteenth Amendment 
in the courts of the state for the folio-wing reasons, to 
wit: Mississippi courts and law enforcement officers are 
committed to a policy of racial segregation and are pre­
judiced against petitioners; under Mississippi law, cus­
tom and practice racially segregated court rooms are 
maintained; in Mississippi court rooms Negro witnesses 
and attorneys are addressed by their first names; local 
counsel are unavailable to petitioners and Mississippi 
courts are closed to out-of-state attorneys; Mississippi 
judicial officials are elected by elections in which Negroes 
have been denied the right to vote; and Negroes are 
systematically excluded from jury service. The peti­
tioners also alleged that they were entitled to remove 
their cases to federal court under the authority of 28 
U.S.C. Section 1443(2).

In both the Peacock and Weathers cases, the City of 
Greenwood filed motions to remand, which were sustained 
by the United States District Court for the Northern 
District of Mississippi (Greenville Division) on the 
grounds that the said petitions did not state a removable



8

case under either subsection of 28 U.S.C. Section 1443. 
The District Court refused to order an evidentiary hear­
ing on the allegations of the petitions.

The petitioners in both cases appealed to the United 
States Court of Appeals for the Fifth Circuit, which 
court, after issuing a stay order in the Peacock case 
(decided before the 1964 Civil Rights Act permitted an 
appeal of a remand order) entered judgment in Pea­
cock on June 22, 1965. The Court of Appeals in 
the Peacock case affirmed the District Court’s hold­
ing regarding Section 1443(2) but reversed its holding 
under Section 1443(1) and therefore remanded that case 
to the District Court for a hearing on the truth of the 
allegations in the petitions for removal. The Court of 
Appeals refused to consider petitioners’ allegation that 
the Statute under which they were charged was vague 
and indefinite because the District Court did not reach 
the question, but held that the unconstitutional applica­
tion by State Officials of a State Criminal Statute valid 
on its face in such a manner as to violate a person’s 
rights under the equal protection clause of the Federal 
Constitution is sufficient to entitle such person to re­
move his case to Federal Court. The Court interpreted 
certain Supreme Court decisions ending with Kentucky 
v. Powers, 1906, 201 U.S. 1, 50 L. Ed. 633, holding that, 
in order to establish removal jurisdiction, the denial of 
equal rights through the systematic exclusion of Negroes 
from Grand and Petit juries must result from State 
legislative or constitutional provisions. Interpreting 28 
U.S.C. 1443 Subsection (2), the court held that this sec­
tion is limited to Federal officers and those assisting 
them or otherwise acting in an official or quasi-official 
capacity and held that this Section does not authorize re­



9

moval by any person who is prosecuted for an act com­
mitted while exercising an equal civil right under the 
Constitution or laws of the United States.

On July 20, 1965, the Court of Appeals for the Fifth 
Circuit sustained the petitioners’ motion for a summary 
reversal in the Weathers case, holding that the issues in 
that case were identical with and therefore controlled 
by the Court’s opinion in the Peacock case.

In remanding the cases to the District Court for fur­
ther hearings, the Court of Appeals decided a Federal 
question, namely, the scope of removal jurisdiction under 
28 U.S.C. Section 1443.

Following these decisions of the Court of Appeals in 
Peacock and Weathers, the City of Greenwood applied 
for a writ of certiorari on August 19, 1965. The appel­
lants below filed a cross-petition for certiorari on October 
5, 1965, and this Court granted certiorari on January 
17, 1966.

ARGUMENT
I

A RACIALLY - MOTIVATED ARREST AND 
CHARGE, DESIGNED TO USE STATE LAW TO 
HARASS AND INTIMIDATE CIVIL RIGHTS WORK­
ERS WHO ARE ASSISTING NEGROES IN REGIST­
ERING TO VOTE, PRESENTS A CASE FOR RE­
MOVAL UNDER 28 U.S.C. SECTION 1443(1).

A. In this case the “law providing for the equal civil 
rights of citizens . . .” is the Fourteenth Amendment. 
In the decision below, Judge Bell makes three points in 
regard to this part of the argument. First, he simply 
states that this is the law involved:



10

“It is settled that the equal protection clause of 
the Fourteenth Amendment constitutes a ‘Law 
providing for the equal civil rights of citizens 
of the United States’ within the meaning of Sec­
tion 1443(1).”

Secondly, he held that while the due process clause is 
not such a law providing for equal civil rights, where 
the claimed denial of an equal civil right is based on 
race, such a claim meets the test of the removal statute:

“The removal statute contemplates those cases 
that go beyond a mere claim of due process vio­
lation; they must focus on racial discrimination 
in the context of denial of equal protection of the 
laws.”

Thirdly, and most importantly, the court below held 
that mere allegation of an unconstitutional application 
of state laws so as to deny equal protection because of 
race is sufficient to meet the whole test of removal:

“Appellants allege that Mississippi Code Section 
2296.5 is being applied against them for pur­
poses of harassment, intimidation and as an 
impediment to their work in the voter registra­
tion drive, thereby depriving them of equal pro­
tection of the Laws. We simply hold that these 
allegations entitle appellants to remove their 
cases to the federal court.”

Of great significance is the fact that the opinion be­
low distinguishes this pre-trial, administrative type of 
denial from the narrow interpretation given Section 1443 
by the Rives and Powers doctrine1 and restricts those

1 Virginia  vs. R ives, (1870) 100 U.Si. 313, 25 L. Ed. 667; K en tu cky  vs. 
Powers (1906) 201 U.S. 1, 26 S. Ct. 387, 50 L, Ed. 633, and  Strauder vs. 
W est V irg in ia  et. al. U.S, 303 (1880).



11

eases to their bare facts. This holding is elaborated upon 
in point IIA) which follows.

In essence it should be said that these holdings above 
set forth recognize the realities of Negro life in Missis­
sippi in 1964-65 and even now. Judges, and especially 
Federal judges, are not “. . . forbidden to know as judges 
what [they] see as men.” Hu An Kow vs. Nunan, 5 
Sawy. 552, 560, Fed. Cas. #6546 (1879).

In effect, what Judge Bell was saying was that when 
a minor state statute is used as a concealed segregation 
law, the courts will deny the states that use of that 
law. The federal courts have repeatedly stated that they 
will strike down, even by the extraordinary writs, sophis­
ticated as well as simple-minded schemes of racial segre­
gation.2 The State of Mississippi piously complains and 
in all innocence states that it fails to see a possible con­
nection between obstruction of the public streets and 
being unable to enforce an equal civil right in the State 
courts.3 The most recent decisions of this court have 
swiftly punctured such bland smugness. In Brown vs. 
Louisiana, (No. 41, October Term, 1965, opinion rendered 
February 23, 1966), Mr. Justice Fortas does not hesitate 
to see as a judge what we all know as men, when he 
says:

“We need not be beguiled by the ritual of the 
request for a copy of ‘The Story Of The Negro.’
We need not assume that petitioner Brown and 
his friends were in search of a book for night 
reading. We instead rest upon the manifest

2B ush  vs. Orleans P arish  School Board, 364 TJ.S. 500, 81 S, Ct. 260, 5 L. 
Ed. 2d 245 (194 F . Supp. 182).

3See pages 3 and 4 of City of Greenwood’s b rie f below in  the C ourt of 
Appeals.



12

fact that they intended to and did stage a peace­
ful and orderly protest demonstration . .

The entire appellate history of this removal statute 
until Rachel4 found the courts blind to the real meanings 
of southern rural Negro life and responsive only to be­
guiling notes of the southern redeemers preaching a new 
application of an old formalism. This formalism, re­
flected by the Gertge5 decision, was founded by Rives 
and Powers and those cases that followed Neal vs. Dela­
ware 103 U.S. 370. This court has consistently looked 
through many such versions of legal obscurantism and 
empty formalism to reach the truth. Dombrowski vs. 
Pfister 380 U.S. 479 (1965), Cox vs. Louisiana, 379 U.S. 
536 (1965). It should be so in this case.

Opposition to the southern Negro freedom movement 
consistently indulges in the rigid legal formalism re­
quired to conceal the true intent of crypto-segregationist 
statutes such as Section 2296.5 of the Mississippi Code. 
From the over-frequent use of such banal enactments 
one would almost be persuaded that the reason Missis­
sippi law enforcement officials are unable to solve the 
frequent racial homicides in their state is that Mississippi 
is simply overrun with Negroes wantonly picketing court­
houses or unlawfully using profanity.6

The real truth, however, is not so lightly stated. The 
Mississippi statutes used or rather misused here are part 
and parcel of a rebellious and arrogant defiance of fed­
erally-created, and protected, rights by the State of Mis­

4Georgia vs. R achel et. al. 342 F . 2nd 336 (1965).
5Clarksdale vs. Gertge, 237 F . Supp. 213 (1964).
S it is estim ated  th a t  nearly  3000 civil r ig h ts  m isdem eanor cases still 

pend in  M ississippi S ta te  and  F edera l courts, a ll left over from  the 
F reedom  Sum m er of 1964 and  before.



13

sissippi. The power structure of that state is doing to­
day what it did one hundred years ago; that is, to erect 
simple-minded and, when necessary, ingenious ramparts 
to hold off Federal protection for the Negro.

Although the Mississippi Legislature may have diffi­
culty in legalizing state-taxed whiskey,7 it is not so naive 
as to legislate Negroes out of the jury system in exact 
terms or to specify that only civil rights workers can be 
arrested for obstructing the city streets. On the other 
hand, no person should be expected to believe that Negroes 
serve freely on Mississippi juries,8 or that civil rights 
workers are not harassed.9

The current formalism of the Southern legal position 
on civil rights is no more valid than the earlier disreput­
able formalism of the Dred Scott case.10 It is this nacent, 
empty, legal formalism that the Court below struck at 
when it authorized this removal. That part of the 
opinion should be affirmed.

B. THE PLEADING IS SUFFICIENT.
The pleading herein complained of by the City of 

Greenwood was found to be sufficient by the Court of 
Appeals:

“Under the Precedent of Rachel and the au­
thorities therein cited having to do with notice 
type pleading, we hold that the removal petitions 
are adequate at this stage of the proceeding . . .u

7See § 2639, M ississippi code tax in g  alcoholic sp irits , th e  possession of 
w hich  is m ade illegal by M ississippi Code § 2613.

8U.S. ex re l Goldshy vs. H arpole, 236 F. 2d 71 (1959).
QU.S. vs. Wood, 295 F . 2d 772 (1961); D om'browski vs. P fister , 227 F  

Supp. 56 (1964) (D issen t) , 380 TT.S. 479 (1965). 
lOScott vs. Sandford, 19 How. 393 60 S. Ct. 691 (1857).
U Opinion below, 347 F. 2d 679 a t  682.



14

The petitions clearly allege the expressly unconstitu­
tional character of the statutes sought to be employed 
by the State,12 as well as the unconstitutional applica­
tion of those laws.13 Admittedly, the language of the 
Peacock petition is more general than Weathers but its 
allegations leave no doubt that at least the petitioners 
claimed harassment as a Section 1443 (1) ground, and 
the voting provisions of the 1960 Civil Rights Act (42 
U.S.C. 1971) as authority for a Section 1443(2) re­
moval.

The Peacock petition allegations that bring into focus 
1443(1) are as follows:

“II. Petitioner is a member of the Student Non- 
Violent Coordinating Committee affiliated with 
the Conference [Council] of Federated Organ­
izations, both Civil Rights Groups and was at 
the time of the arrest engaged in a voter reg­
istration drive in Leflore County, Mississippi, 
assisting Negroes to register so as to enable them 
to vote as protected under the Federal Consti- 
ttuion and the Civil Rights Act of 1960, being 
42 USCA 1971 et. seq.

III. Petitioner as a citizen of the United States 
cannot enforce his rights under the first and 
14th amendments of the Federal Constitution to 
be free in speech, to petition and to assemble; 
is denied the equal protection of the Laws, the 
privileges and immunities of the Laws and due 
process of Laws, inasmuch as among other 
things was arrested, charged and is to be tried 
under a state statute that is vague, indefinite 
and unconstitutional on its face; is unconstitu­
tionally and arbitrarily applied and used, and

12R. 4 for Peacock, R. 42, W eathers.
13R. 4 for Peacock, R. 38-42, W eathers.



15

is enforced in this instance as a part and parcel 
of the unconstitutional and strict policy of racial 
segregation of the State of Mississippi and the 
City of Greenwood.”

The main Weathers allegations covering subsection (1) 
are:

“C-l. The arrests and prosecutions of Petition­
ers have been and are being carried on with the 
sole purpose and effect of harassing Petition­
ers and of punishing them for and deterring 
them from the exercise of their constitutionally 
protected right to protest the conditions of ra­
cial discrimination and segregation which exist 
in all public aspects of life in Mississippi and 
which the State of Mississippi now maintains 
and seek to enforce by statute, ordinance, reg­
ulations, custom, usage and practice.

C-2. Among recent legislative enactments evi­
dencing Mississippi’s policy to enforce racial 
discrimination and segregation and to suppress 
all protest against such discrimination and seg­
regation are Mississippi Code, Section 4065(3), 
which purports to prohibit the executive offi­
cers of the State from obeying the desegrega­
tion decisions of the United States Supreme 
Court, and the several statutes enacted by the 
1964 session of the Mississippi legislature which 
purport to prohibit picketing of public build­
ings, congregating and refusing to disperse; 
printing or circulating material which interferes 
with the operation of a business establishment; 
printing or circulating material which advocates 
social equality; the disturbing of the peace of 
others; giving false statements of complaints to 
Federal officials; obstructing public streets; en­
couraging others to remain on private premises 
of another when forbidden to do so; and statutes



16

which purport to authorize officials to restrain 
the movements of groups and individuals and to 
impose curfews; authorize an increase in the 
strength of the State Highway Patrol from 274 
to 475 men and give the Governor power to dis­
patch the Highway Patrol into areas on his own 
initiative; authorize an increase of the maxi­
mum penalty for violating a city ordinance 
from 30 to 90 days imprisonment and a fine of 
$300; and authorize communities to pool their 
police forces and equipment.14

Additionally, the Weathers petitions refer specifically 
to jury discrimination,15 State policy of racial segrega­
tion,16 unfair trial,17 and lack of counsel,18 all arguable 
grounds for removal under Section 1443(1).

The removal statues (28 U.S.C. Section 1446(a) (1964)) 
require the petition to contain “a short and plain state­
ment of the facts which entitle [the petitioner] . . .  to 
removal.” Since 1948 this rule has brought removal 
practice into line with the notice pleading theories of 
Rule 8(a) of the Federal Rules of Civil Procedure.19

Whether one uses the “short and plain statement” of 
the Peacock petition or the more detailed allegations of 
the Weathers petitions, the pleading requirements of Fed­
eral law relative to removal are met in these cases.

II
A. A REMOVAL PETITION WHICH ALLEGES 

UNCONSTITUTIONAL APPLICATION OF STATE
14In th is  regard  see the  l is t  of s ta te  voter re g is tra tio n  im pedim ents se t 

fo r th  by Mr. Ju s tice  B lack in  h is opinion in  U.S. vs. M ississippi, 380 
tX.Si. 128, 85 S. Ct. 808 (1965) a t  810.

15R. 41 (C-3-f).
16R. 38 (0-2).
17R. 39-40 (C-3-a).
18R. 40-41 (0-3-8).
19(See page 117, footnote 17, R achel b rief in  th is  C ourt).



17

LAWS, INCLUDING JURY SELECTION STATUTES, 
SO AS TO EXCLUDE NEGROES FROM JURY SERV­
ICE, SETS FORTH A CASE FOR REMOVAL UNDER 
SECTION 1443(1), TITLE 28 U.S.C.

The issue posed by this headnote is that of the legal 
and historical validity of the doctrines of Virginia vs. 
Rives, (100 U.S. 313 (1880) and Kentucky vs. Powers, 
201 U.S. 1 (1906). These cases can be said to severely 
limit federal removal by holding that the denial of equal 
protection must appear from explicit state statute or 
constitutional enactment. Had it not been for these de­
cisions, modern federal practice would have brushed 
aside such arguments and promptly examined the facts 
of jury service by Negroes in the jurisdictions concerned. 
However, because of these cases, we must pause to con­
sider whether or not a petition that alleges the Negro20 
person or civil rights worker accused by the state can­
not enforce in the state courts an equal civil right when 
Negroes are excluded from the jury by corruption and 
maladministration, states a case for removal.

This question cannot be considered in, a vacuum. While 
obviously there is no evidence on this point in the record 
since no hearing was permitted below, the basis for the 
allegation should be examined. This requires a histori­
cal treatment; not only of what Mississippi society has 
done to the institution of the jury trial, but what it 
has done to the Negro. Such facts as this treatment 
may disclose are not evidence, however. They are 
drawn from sources that include the federal courts as 
well as historians, and may tell us how and why the 
historically incorrect doctrines of Rives and Powers are
20R. 3 9 , 40. Also by th e  M issississippi C onstitu tion  A rt. 3 § 31, & Miss.

Code §§ 1836-39, p e titioners  a re  en titled  to  a  tr ia l  by ju ry .



18

inconsistent with the experiences of life and legally 
wrong.

In any consideration of what the Thirty-Ninth Con­
gress had in mind when it passed the third section of 
the Civil Rights act of 1886, the state of the nation, 
and of the South of that time, in particular, is im­
portant. This subject is considered in the following 
part.

One final comment by way of introduction is in order. 
It should be noted that Part B of this second part of the 
Argument is an alternative attack upon the Mississippi 
jury system as unconstitutional on its face. A reading 
of the state statutes will show that Mississippi may not 
have been as ingenious or competent as some other states 
in devising a jury selection system that appears racially 
non-discriminatory, but this should not detract from the 
fact that the Mississippi laws here considered allow a 
full-fledged and complete theoretical attack on the Rives 
and Powers doctrine.

1) Historically, Mississippi, like West Viriginia in the 
Strauder case,21 attempted to rebuild the old society of 
privilege with new forms. Early in the 1865-67 redemp­
tion of that state, Negroes were by explicit statute ex­
cluded from jury service.22 After Strauder and with 
communication between Northern Republicans and South­
ern redeemers restored by the Hayes-Tilden arrangement 
(and spelled out in detail by Rives and Powers), that 
state understood the ground rules. Henceforth, while on 
the one hand excluding Negroes from the political and 
judicial life of the State,23 it presented on the other hand
21Strauder vs. W est V irginia, 100 U.S. 303 (1880).
22Laws of M ississippi, 1866-67, pp. 232-233.
23W harton, The Negro in  M ississippi, (U n iversity  of N orth  C arolina 

P ress 1947), C hapter XIV.



19

a fraudulent legal image of strict racial indifference to 
the nation.24

Actually, the ability of the free Mississippi Negro to 
enforce in his State courts such elemental rights of citi­
zenship as legal personality and the competency to give 
evidence, was specifically denied in law as early as 1865.25 
The abandonment that year by the Federal Occupying 
forces of the Freedmens Bureau courts throughout the 
state26 was an ominous sign of the larger abandonment 
of the Negro that occurred in 1877, following the elec­
tion of Hayes.

The very first attempt by Mississippi to legislate Freed­
mens rights resulted in the Black Codes of 1865, which 
in effect re-enacted the slave codes with modifications.27 
These codes prohibited Negroes from holding rural land, 
and in effect conscripted the Negro into a race of in­
dentured servants. The first post-war Provisional Mis­
sissippi Legislature even attempted by resolution to nul­
lify emanicipation and to restore slavery. This proposal 
received substantial minority support.28

Though the Black Codes were repealed in 1867, the 
Legislature specifically provided that Negroes could not 
serve on grand and petit juries.29 This rule was over­

24This im age has its  m odern  m akers. P rofessor S ilver w rites:
“The contention  of th e  B oard  of T rustees and of U n iversity  offi­
cials, accepted as fac t by Judge Mize . . th a t  th e  U niversity  is 
no t a  rac ia lly  segregated  in s ti tu tio n ’ and  th a t  ‘the s ta te  has no 
policy of seg regation’, . . . defies h is to ry  and comm on know ledge.” 

Silver, M ississippi: The Closed Society  (H arco u rt Brace & W orld, 
1964), page 114, M eridith  vs. F air, 343 F2d 343 (1963).

25W harton, op cit., pages 76, 77, 134 and 135.
26General O rders #13 , V icksburg, October 21, 1865, quoted in  W harton, 

op. cit.
27Mississippi Session Law s 1865, parag raphs 86-93.
28C onstitutional Convention Jo u rn a l 1865, parag raphs 68-70; see also in  

th is  regard , A p theker; “M ississip in  R econstruction  and the Negro  
Leader Charles Caldwell,” Science and  Society, Vol. X I, No. 4, p, 340, 
a t  p. 343.

29Laws of M ississippi 1866-67, p a rag rap h s 232-233.



20

turned only by the order of the Federal Occupational 
Commander two years later.30

Professor Wharton, in his work, The Negro in Missis- 
sippi (University of North Carolina Press, 1947) at page 
137 succinctly describes the plight and history of Negro 
jurymen in that state:

“After 1875, the Negroes appeared in smaller 
and smaller numbers on the jury panels, but 
their complete elimination did not occur until 
after 1890. In the constitution of that year it 
was provided that all persons serving on grand 
or petit juries must be qualified electors and 
must also be able to read and write. Thus the 
elimination of the Negro as a voter served also 
to remove him from the jury bench, and in a 
land of white officers, white judges, white law­
yers and white juries, the term daw,’ in the 
Negroes’̂ mind, came more and more to mean 
only a big white man with a badge.”

In his book, Race Distinctions in American Laiv (Ap- 
pelton, 1910) Gilbert T. Stephenson, at page 259, graphi­
cally illustrates the extent to which by 1910, Negroes 
were excluded from jury service. He quotes from letters 
solicited from Clerks of Court in Mississippi covering 
nine counties. The adminstrative method of exclusion 
set forth is appallingly efficient.31

30General O rders No. 32 A ppletons Cyclopedia 1864, p a ras  455-456 
V icksburg D aily Tim es, A pril 30, 1869.

31A sam ple from  county # 6 :
“ . . . In  m y County we had no Negroes on th e  ju ry  fo r the past 
15 years o r more. We have som e 30,000 colored population  in  th is 
county, . . . and we have only about 175 reg iste red  in  the county 
The board of supervisors, a s  a  ru le, does no t place th e ir  nam es 
in  th e  box. . . . ”

Sam ple from  County # 7 :
“1000 w hite  people, 4000 N egroes: . . .  we have no N egro ju ro rs  
in  th is  county a t  a ll.”



21

The federal response to such actions of the provisional 
government was reasonably swift and direct. If the 
southern legislatures, including Mississippi, were to re­
impose slavery in another form, then the base of the 
electorate had to be radically altered. After the Civil 
Rights Act of 186632 had been followed by the Thirteenth 
Amendment, the foundation had been laid for the balance 
of the “Third American Constitution,”33 the Fourteenth 
and Fifteenth Amendments, and the Civil Rights Acts 
of 1870, 1871 and 1875.34 As a result of these enactments 
the formal legislative response to the war was largely 
complete.

Two essential points were made by this codification. 
First, that while the war had been fought in the name 
of the Union, the legal expression of victory was, not 
unexpectedly, couched in terms of equal humans rights, 
and — secondly — those rights received extensive and 
serious federal protection. The withdrawal of that pro­
tection as a matter of political expediency at the time 
of the Hayes-Tilden arrangement of 187735 cannot detract 
from the validity of its original content, or the effective­
ness and necessity of its current meaning.

While the federal government turned away after 1890 
from an interest in Negro rights, and was engaged in 
Asian wars, and the struggle in Cuba,36 the state of Mis-
32Act of A pril 9, 1866, chs. 31, 14, s ta tu te  27.
33See F ran k lin , The R ela tion  of th e  F ifth , N in th  and F ourteen th  A m end­

m en ts  to the 3rd C onstitution, 4-5, H oward Law  Journal, 171 (1958) 
341870; ch. 114; 16 S tat. 140: 1871; ch. 22, 17 S tat. 13: 1875; A ct of M arch 

1, 1875, Ch. 114, 18 S tat. 335, and Act of M arch 3, 1875, Ch. 137, 18 S tat. 
470.

35.Siee W oodward, R eun ion  and R eaction  Doubleday-Anchor Ed. (1956). 
360n th is  po in t see the effect of Im peria lism  in  A sia described by P ro ­

fesso r W oodward. “W ith  the  sections (N orth  and South) in  rapport, the  
w ork  of w ritin g  th e  w hite m an’s law  for A sia and Afro-Am erica w ent 
fo rw ard  sim ultaneously .” Origins of the N ew  South , S outhern  H isto ry  
Series, La. S ta te  Univ. P ress, 1951, page 326.



22

sissippi, as ruled by the redeemers, was “responsible” to 
its sources of power. In the Constitution of 1890, Ne­
groes were finally and effectively denied the franchise 
and thereby excluded from jury service. It is not coin­
cidental that this document, containing a “grandfather” 
clause and “comprehension” requirements, similar to pre­
sent franchise enactments,37 followed Rives and preceeded 
Williams vs. Mississippi.38 By this time Negro registra­
tion was down in that state from a high in 1867 of 60,167 
(46,636 for whites) to 8,615 (68,127 whites in 1892.39

The constitutional connection between the franchise and 
jury service has continued to this day40 and serves as a 
vital link in the Mississippi plan of racial segregation.41

2) Mississippi was not so different from the other 
states of the old Confederacy that its experiences and 
response were unique. Certainly, these matters were in 
the mind of Congress when in 1866 it clearly stated that 
criminal prosecutions commenced in a state court may be 
removed to a federal forum when they were brought 
against:

“Any person who is denied . . .  a right under any

37Mississippi C onstitu tion , Sections 243-244.
38170 U.S. 213 (1898).
39W harton op. cit., pp. 146 and 215.
40Mississippi C onstitu tion  A rt. 14, Section 264; M ississippi code, Sections 

1762 and  1766. See also GoldsVy vs. H arpole, op. cit.
41For a  good descrip tion  of th e  M ississippi P lan  see W oodward. Origins of 

the N ew  South , S ou thern  H isto ry  Steries. La. S tate  Univ. P ress, p. 321 
(1951). T his p lan  w as w idely copied by the o ther Southern  S tates. 
(W oodw ard; R eun ion  and R eaction, op. cit. a t p. 45). A nother v ita l link  
w as the “A tlan ta  Ctompromise” announced in  1895 by B ooker T. W ash­
ing ton  w hich confirm ed th e  Negro abandonm ent of the P opulists (who 
had ea rlie r  em barked upon th e  policy of u n itin g  w hites so as to  allow  
them  to  d iv ide). T h is policy no t only recognized th a t 20 years of te r ro r  
and opression had taken  its  toll, bu t p rac tica lly  inv ited  th e  fina l d is­
franch isem en t of The Negro by assign ing  him  a  servile and  hum ble 
ro le in  the New South.



23

law providing for the equal rights of citizens of 
the United States. . .

or against:

“Any person who . . . cannot enforce in the 
courts of such state, a right under any law pro­
viding for the equal civil rights of citizens of 
the United States.”

The above language does not appear in the statute in 
that exact form, but under the construction given Section 
1443(1) by Judge Soboloff of the Fourth Circuit in his 
dissent from that Court’s opinion in Baines vs. Danville 
(opinion, unreported, January 21st, 1966), the rendition 
is justified.

Petitioners have obviously alleged they cannot enforce 
the right to a trial jury impartially selected in the 
courts of Mississippi. While in the day of the Rives 
case federal and/or state procedure may have been in­
adequate to show jury selection discrimination in advance 
of trial, such is not true today. Adequate remedies exist 
in Federal courts under the rules of both civil and crimi­
nal procedure42 to test the jury selection process. The 
argument that such a showing must not be “first made 
manifest at the trial of the case”43 has no real meaning 
in modern times, since matters of jury composition are 
routinely taken up and made manifest well in advance 
of trial.

The statute as it stands today must allow removal when, 
in the light of experience in life and judicial history, the

42Civil R ules R ule  7; C rim inal R ules Rule 6 ( b ) ( 2 ) .
43R ives  a t p. 319.



24

allegations, if proven, would show the denial of a federal­
ly-protected equal right, or the inability to enforce such 
right at time of trial. In reality, there is no logical 
justification for the court below to say that these peti­
tioners can remove because a statute, unconstitutionally 
enforced, denied them their equal civil rights by unfair 
arrest, and to say as well that they cannot remove when 
administrative exclusion of their race from the jury pre­
vents them from being able to enforce in the state courts 
the “equal civil right” of “equal protection of the laws.” 
It is indeed difficult for a person to conceive of such a 
difference or to avoid the conclusion that if Peacock is 
the law, then Rives and Powers should be overruled.

3) While it might be said that the Rives-Powers rul­
ing avoids unnecessary federal-state conflicts and restricts 
the removal statute to prosecutions by states so naive as 
to explicitly — by statute — discriminate against Negroes 
in this day and age, this is to ignore not only life, but 
the requirements of federal law. In recent years Federal 
courts have largely abandoned state court review as the 
only method of exerting federal sovereignty. Sensing a 
growing indifference on the part of state governments 
to federal rights, and recognizing the primacy of the 
supremacy clause, the federal courts have not hesitated to 
step in on selected occasions to exert the power of the 
United States in defense of its citizens. This has occurred 
in matters of: reapportionment, (Baker vs. Carr, 369 
U.S. 186 (1961) ; school prayer, (Engel vs. Vitale, 
370 U.S. 421 (1962) ); school desegregation, (Brown vs. 
Board of Education, 347 U.S. 483 (1954) ); civil liber­
ties, (Donnbrowski vs. Pfister 380 U.S. 479 (1965) ); and 
fair trial, {Faye vs. Noia 372 U.S. 391 (1963) ). All 
of these cases have used extraordinary remedies (of in­



25

junction or habeas corpus) to supplement the traditional 
method of state-federal review. The court recognized in 
these instances the urgency and importance of immediate 
federal intervention to protect federal rights. That find­
ing is equally justified in the removal cases here pre­
sented.

In this regard Dombroivski vs. Pfister, 380 U.S. 479 
(1965) clearly held that where federal rights are in 
danger from state action the proper function of the fed­
eral courts is to interpose federal power between the 
individual citizen of the United States and the State:

“When the statutes also have an over-broad 
sweep, as is here alleged, the hazard of loss or 
substantial impairment of those precious rights 
may be critical. For in such cases, the statutes 
lend themselves too readily to denial of those 
rights. The assumption that defense of a crimi­
nal prosecution will generally assure ample ven- 
dication of constitutional rights is unfounded in 
such cases. See Baggett vs. Bullitt, supra, at 
379. For “the threat of sanctions may deter 
. . . almost as potently as the actual application 
of santions . . .” NAACP vs. Button, 371 U.S.
415, 433.44

The free speech First Amendment rights referred to 
in the Dombrowski opinion quoted above are no more

44380 U.S. 479 a t  486. See also d issen ting  opinion of Judge W isdom 
in  an  ea rlie r  rep o rt in  th is  case found a t  227 F. Supp. 556 (1964) 
w herein  he w ro te: “Once m ore I em phasize th a t  th e  basic e rro r in  the 
co u rt’s decision is its  fa ilu re  to d is tin g u ish  betw een th e  type case now 
before i t  and  the ru n  of the m ine su it by a  c rim ina l offender ask ing  for 
re lie f ag a in s t un law fu l S tate  action. In  the Civil R igh ts Act Congress 
estab lished  a  d is tin c t federal cause of action  in  favor of those whose 
constitu tional r ig h ts  have been invaded. 42 U.SIC.A. Sections 1981, 
1983, 1985. As a m a tte r  of law, since such cases involve a federa l ques­
tion , the r ig h t existed  anyw ay. The fact th a t  such cases involve a  dis­
pu te  over federally  protected freedom s m ake th e  federal co u rt th e  
app rop ria te  forum  for se ttlem en t of the d ispute.”



26

precious and are no more federal in character than the 
Thirteenth, Fourteenth and Fifteenth Amendment rights 
made available for special protection by the civil rights 
removal statute. Title 28, Section 1443, does not allow 
the removal of all or even most criminal cases, and the 
jury selection interpretation sought here does not en­
compass procedural evils in jury selection which do not 
touch on the equal protection guarantees of the wartime 
amendments. This is not argued here. However, what 
is said now is that these amendments had one great aim 
-—- to bring the Negro up to the level of the white man 
and to use federal power to see that this was accomp­
lished. This was why federal removal was vital to the 
true implementation of these amendments.

Here the petitioners seek, as did the Freedmens Bureau 
one hundred years ago, to raise the Negro up, to give 
him the vote and the education to use it. For this they 
were exposed to the wrath of the white Mississippi com­
munity which promptly set into motion the machinery 
of the state to suppress them. The facts of Dombroivski 
show the same sequence of events in Louisiana. As stated 
by Judge Wisdom in his District Court dissenting opinion 
in that case:

“Chairman Pfister is quoted as saying that the 
plaintiffs were racial agitators. If that is true, 
and if the plaintiff’s modest agitation by mail 
was motivated only by the plaintiff’s interest in 
civil rights for Negroes- then once again, as in 
Bush vs. Orleans Parish School Board, the State 
has marshalled the full force of its criminal law 
to enforce its social philosophy through the po­
liceman’s club.’ Under any rational concept of 
federalism the federal district court has the pri­
mary responsibility and the duty to determine



27

whether a state court proceeding is or is not a 
disguised effort to maintain the State’s unyield­
ing policy of segregation at the expense of the in­
dividual citizen’s federally guaranteed rights and 
freedoms.45

Rives and Powers reflect no more than the removal 
counterpart of Plessy vs. Ferguson,46 These ancient re­
moval cases are judicial reflections of the Hayes-Tilden 
compromise withdrawing the previously given federal sup­
port of the Negro. This withdrawal was first signalled 
in the Slaughterhouse cases,47 and consistently followed 
for seventy-five years. It was finally given its death 
blow in Brown vs. Board of Education.48 Rives and Pow­
ers deserve the same fate.

4) Not only were these two removal cases historically 
wrong to begin with and now hopelessly out of date, but 
their reasoning is completely deficient as clearly set forth 
by the city itself in its application to this court where on 
page 16 it says:

“Furthermore, City submits that there is no 
more reason for Congress to have believed that 
one would be denied his equal civil rights in the 
courts of the state because state officials alleged­
ly arrested and charged him in violation of the 
equal protection clause than if state officials dis­
criminated against him in violation of the equal 
protection clause in the selection of the grand 
and/or petit jurors.”

Applicants would turn this argument on its head and 
say that there is as much reason for Congress to have 
believed that one would be denied his “equal civil rights” 
by a system of racially discriminatory jury selection as 
by a racially motivated arrest and charge.
45D om brow sM  vs. P fister , 227 F . Supp. a t p. 583.
46163 U.S. 537, 41 L,. Ed. 256, 16 S. Ct. 1138 (1896).
4716 W all; 36, 21 K  Ed. 394 (1873).
48347 U.S. 483, 98 L. Ed. 873, 74 St. Ct. 686 (1954).



28

Clearly, Judge Bell, below, is hard put to follow the 
reasoning of Rives and Powers. He simply did the best 
possible job on this point while recognizing the inapprop­
riateness of his Circuit Court’s attempting to strike them 
down.

Judicial adminstration in that circuit has been sorely 
tried by the obstructionist effect of these Plessy type 
opinions. Clearly Negroes’ rights are more effectively 
protected and the judicial process more properly and ef­
ficiently used if the equal protection problems posed by 
racially discriminatory jury selection systems are avoided 
in the first instance by the simple process of federal re­
moval rather than by being dragged through the federal 
courts for years by the habeas corpus — appeal — 
certiorari method. Certainly the Fifth Circuit in its 
recent en banc hearing49 was searching for something

49ln R ives  the  cou rt recom m ended to  th e  federa l system  th e  case-by-case 
m ethod of federal review  sanctiond  by N eal vs. Delaware. T h is m ethod 
has proved in  practice  to  be unw ieldy, expensive, and a  burden  to the 
docket. I t  has fa iled  to  produce su b stan tia l ju stice  in  circum stances of 
w idespread d isregard  of federa l rig h ts . On D ecember 16th and  17th 
1965 the C ourt of A ppeals fo r the F if th  C ricu it held a n  ex trao rd in a ry  
en banc h earin g  covering seven ju ry  d iscrim ination  cases. These ap­
peals w ere selected from  all over the c ircu it by v ir tu e  of th e i r  im port­
ance. _ These argum ents w ere certa in ly  in  p a r t  designed to  aid  th e  

court in  its  search  fo r a so lu tion  to  the problem  posed to  its  docket by 
th e  m ounting  num ber of such cases. All five of the s ta te  cases w ere 
hapeas corpus appeals w hich re lied  on th e  N eal case, and  the records 
th e re in  clearly  showed th e  consistency w ith  w hich th e  requ irem en ts of 
th e  F o u rteen th  A m endm ent for im partia lly  selected ju r ie s  have been 
consisten tly  d isregarded  in  th e  S ou thern  S tates. The cases heard  w ere: 

I tT. S. ex  rel E dgar Labat vs. B ennett, D kt. No. 22218,
IT. S. C ourt of A ppeals, F if th  C ircu it.

2t7. S', ex rel E dw ard D avis vs. D avis, Dkt. No. 21926.
U. S. C ourt of Appeals, F if th  C ircuit.

W . S. ex 7-el A ndrew  J. Sco tt vs. W alker, Dkt. No. 20814,
U. S. C ourt of Appeals, F if th  C ircu it. 

iW illie  B rooks vs. Beto, Dkt. No. 22809,
U. S. C ourt of A ppeals, F if th  C ircuit.

5Jon i R ab inow itz vs, XJ. 8., D kt. No. 21256,
U. S. C ourt of A ppeals, F if th  C ircuit.

®Eliza Jackson, et al vs. V. 8., D kt. No. 21345,
U. S. C ourt of A ppeals, F if th  C ircu it. 

lO rzell B illingsley, Sr. vs. Clayton, D kt. No. 22304,
U. S. C ourt of Appeals, F if th  C ircuit.



29

along these lines. Only this court can ultimately restore 
this vital federal right of equal protection in jury selection 
to the Negro people in an effective and efficient way. 
Powers and Rives should be overruled.

5) No only is the Rives-Powers doctrine a facet of 
Plessy, but it is another version of abstention in disguise. 
In reality, the doctrine was invented (and, given the 
legislative history of the removal statute and the realities 
of Reconstruction, there can be no other term) to return 
jurisdiction of the Negro back to the tender mercies of 
the states of the Old Confederacy. It was part and par­
cel of the meaning of the Hayes-Tilden compromise of 
1877 and suffers today from all the defects inherent in 
the state activities and in-activities struck down by the 
new decisions limiting abstension.

The old abstention doctrine was too broad and was de­
fective in at least two ways.50 “1) it removes the federal 
courts from creative participation in the development of 
the law, and 2) it could cause the litigants great expense 
and delay.” These important issues were all present in 
Dombrowski vs. Pfister 380 U.S. 479 (1965) and in the 
reapportionment cases beginning with Baker vs. Carr, 
369 U.S. 186 (1962). Additionally, the great principal 
of having a federal forum and federal proection for fed­
eral rights, embodied in the federal removal statute, 
and extended by Dombrowski and England,51 is abrogated 
by this Rives-Powers version of abstension. As stated in 
England:

“Abstention is a judge-fashioned vehicle for ac-

50See P reaus, Note # 8 , 39 Tulane Law  R eview  57? a t  579 (1965).
51E ngland  vs. La. Bd. o f Med. E xam iners, 375 U.S. 411 (1964).



30

cording appropriate deference to the ‘respective 
competence of the state and federal court sys­
tems.’ Louisiana P. & L. Co. vs. Thibodaux, 360 
U.S. 25,29 79 S. Ct. 1070, 1073, 3 L. Ed. 2d 
1058. Its recognition of the role of state courts 
as the final expositors of state law implies no 
disregard for the primacy of the federal judici­
ary in deciding questions of federal law.52 Ac­
cordingly, we have on several occasions explicitly 
recognized that abstention does not, of course, 
invlove the abdication of federal jurisdiction, but 
only the postponement of its exercise. Harrison 
vs. NAACP 360 U.S. 167, 177. 79 S. Ct. 1025, 
1030, 3 L. Ed. 2d 1152___ ”

Shortly after the England decision this court decided 
Dombrowski, wherein it was held:

“We hold the abstention doctrine is inappropri­
ate for cases such as the present one where, un­
like Douglas vs. City of Jeanette,53 statutes are 
justifiably attacked on their face as abridging 
free expression, or as applied for the purpose of 
discouraging protected activities.”

This did no more than logically extend the principal 
that where a state statute is unconstitutionally vague, 
inhibiting of the exercise of First Amendment freedoms, 
and deterring constitutionally protected conduct, federal 
district courts may not abstain from adjudication and re­
lief. Cooper vs. Hutchinson (1958 CA 3), 184 F. 2d 119; 
Baggett vs. Bullitt, 377 U.S. 360, 366, 367, 372, 12 L. Ed. 
2d 377, 84 Sc. Ct. 1316; Griffin vs. County School Board, 
377 U.S. 218, 12 L. Ed. 2d 256, 84 S. Ct. 1226; Davis vs. 
Manu 377 U.S. 678, 12 E. Ed. 2d 609, 84 S. Ct. 1453;

52See K urland , Tow ard a Co-operative Jud icia l F edera lism : The Federal 
Court A bsten tion  D octrine, 24 FR D 1 481, 487.

53319 U.S. 147, 63 S. Ct. 877, 87 L. Ed. 1324.



31

McNeese vs. Board of Education, 373 U.S. 668 10 L. Ed. 
2d 622, 83 S. Ct. 1433.

In effect the Congress of 1866 in passing the federal 
removal section of the Civil Rights Act declared as a 
matter of national legislative policy that in the field of 
equal protection for Negroes, there was to be no doctrine 
of abstention, and that the federal equal civil rights were 
not to be subjected to state adjudication by the former 
slave-holding class. As to such rights, the extraordinary 
situations that must be present to overcome Section 228354 
so that an injunction might issue (as in Dombrowski) are 
almost assumed to exist. In effect, the Congress, as 
shown in its debates, took legislative notice of the rebel­
lious attitudes and defiant disregard by the Southern oli­
garchy of the equal civil rights of the Negro. This notice, 
as written into the law, recognizes not only state statutes 
as obstacles to enforcement of the Fourteenth Amend­
ment, but also the actions of the officials, judges and 
sheriffs who enforce the law. Actually that Congress did 
the same thing the present Congress did when it passed 
the 1965 Voting Rights Bill.55 After extensive hearings 
wherein the real scope of white suppression of the Negro 
voter was exposed, (almost without contradiction), Con­
gress set about fashioning a remedy. In doing so it ig­
nored the so-called state remedies and immediately in­
voked the Federal power in Federal forums. The Eighty- 
Ninth Congress found, and this court agreed, in State of 
South Carolina vs. Katzenbach (March 7, 1966 opinion) 
that “the latter strategem (. . . discriminatory application 
of voting test . . .)56 is now the principal method used to

54Title 28 Sec. 2283 U.S.C.
5579 S tat. 437.
56Emphasis added.



32

bar Negroes from the polls.” If the Eighty-Ninth Congress 
can find unconstitutional application of state voting laws 
the basis for Federal intervention and protection of Four­
teenth Amendment voting rights, and if this court can 
agree with that Congress, then there is no reason why it 
cannot be said that the Thirty-Ninth Congress did not 
intend discriminatory application of a state jury system 
to justify Federal removal. Finally, there is no reason 
why this court should not agree with such policy as set 
forth in South Carolina vs. Katzenbach.

B. THE STATUTES ARE UNCONSTITUTIONAL.
1) Given the state of the Mississippi jury selection 

statutes, it is difficult to conclude that this system does 
not fall prey to even a loose reading of Rives and Poiv- 
ers.

Those laws in their pertinent parts read as follows:

Mississippi Constitution Art. 14 Section 264:

“No person shall be a grand or petit juror un­
less a qualified elector . . . The Legislature shall 
provide by law for procuring a list of persons 
so qualified . . .”

Mississippi Code Section 1762:

“Every Male citizen not under the age of Twenty- 
One years who is a qualified elector . . .  is a 
competent juror . . [emphasis added]

Mississippi Code Section 1766:

“The Board of supervisors . . . shall select and 
make a list of persons to serve as jurors in the 
circuit court . . .  as a guide in making the list



33

they shall use the registration book of voters, 
and shall select and list the names of qualified 
persons of good intelligence, sound judgment, 
and fair character . .

Mississippi Code Section 1796:

“A challenge to the array shall not be sustained, 
except for fraud, nor shall any venire facias ex­
cept a special venire facias in a criminal case, be 
quashed for any cause whatever.”

Mississippi Code Section 1798:

“All the provisions of law in relation to the list­
ing, drawing, summoning and impaneling juries 
are directory merely; and a jury listed drawn, 
summoned or impainel, though in an informal 
or irregular manner, shall be deemed a legal 
jury . .

If the state statutes in West Virginia excluded Ne­
groes from jury service, the formal Mississippi jury 
structure does no less. The entire machinery of juror 
selection in that State is geared to literate voter regis­
tration. This scheme was deliberately contrived in 1890 
when it was apparent that while Negroes composed near­
ly one-half of the electorate, almost four-fifths of them 
were unable to read and write. Compared to this, only 
one-quarter of the whites suffered from such disability. 
The solution was obvious:57 given the guiding principal 
of white supremacy, the redeemers of the State simply 
drew the Constitution of 1890 so as to require literacy 
tests of electors which Negroes could not meet,58

57W harton, op. oit., page 201 w rite s : “By 1890 M ississippi’s D em ocratic 
C ongressm en w ere read y  to  give en thusiastic  support to  any schem e th a t 
would pu t a  legal face on the e lim ination  of th e  N egro vote.”

58For a b rief bu t careful descrip tion  of th is  device, see V.S. vs. M ississippi 
85, S. Ct. 808, 380 U.S. 128 (1965).



34

The second Mississippi plan worked for nearly 65 
years, but in 1954, sensing that Brown vs. Board of Edu­
cation signaled a revived federal interest in the Negro, 
and reading clearly the caveat of the Court of Appeals 
for the Fifth Circuit in Peay vs. Cox, 190 F. 2d. 123,59 
the State tightened the constitutional disenfranchise­
ment of the Negro. The Reconstruction Congresses had 
struck at the heart of the Southern problem in 1866, 
1870, 1871 and 1875. That lesson was not lost on Mis­
sissippi. The rule now was that the Negro voter, and 
hence the juror, must not, as before, be able only to read 
or understand or interpret a 167-page constitution, but 
he now had to read and understand and interpret this 
amazing document.60 Feeling that this was not enough, 
in 1960 the legislature with the help of the selected elec­
torate that held the vote, added the requirement that 
voters should be of “good character.”61

The federal concern though very late, was justified: 
Negro voter registration had dropped from 50% in 1890, 
to 9% in 1899, and then to 5% in 1954. Of course, this 
was due to the successful operation of the plan, but at 
this point the state became the victim of its own success. 
The Justice Department stepped in and brought suit to 
expose the scheme.

Mr. Justice Black, for this Court, wrote in U.S. vs.
Mississippi:

“It is apparent that the complaint which the 
majority of the District Court dismissed, charged 
a long standing, carefully prepared, and faith-, 
fully observed plan to bar Negroes from voting 
in the State of Mississippi, a plan which the reg­

59Cert. D enied 342 U.S. 898.
60Sec. 244 of the M ississippi C onstitu tion .
6lSee. 241-A of th e  M ississippi C onstitu tion .



35

istration statistics included in the complaint 
would seem to show had been remarkably suc­
cessful.”

Taken as a whole, the scheme to eliminate the Negro 
from the jury box was just as successful. When one 
construes the unconstitutional provisions of the Missis­
sippi voter and juror selection statutes together (i.e., as 
they are written) to the same provisions of the Louisi­
ana Laws now found unconstitutional in U.S. vs. Lou- 
isiana,62 the conclusion should be that the entire disrepu­
table and concocted affair should be brought tumbling 
down.

2.) It should be noted here that one of the grounds 
specifically relied upon in the Weathers petitions as 
grounds for removal is that the entire legal structure 
which will conduct petitioners trials, is operated by a 
sheriff, a district attorney and a judge put in office by 
an election from which Negroes were systematically 
excluded.63 Leflore County is a defendant in a pattern 
and practice suit,64 and its registrar is one of those sought 
to be restrained in U.S. vs. Mississippi, 85 S. Ct. 808, 
380 U.S. 128. The Fifth Circuit has just set aside mu­
nicipal elections in the case of Hamer vs. Sunflower 
(script opinion March 11th, 1966, unreported) where a 
pattern and practice finding so closely proceeded an elec­

62380 U.S. 128 85 S. Ct. 808 (1965). The South C arolina p lan  pushed by 
G overnor T illm an, as described by Ju stice  B lack in  h is opinion in  U.S. 
vs. M ississippi, w as bu t an  im ita tion  of the  second M ississippi p lan  of 
1890. See W oodward, O rigins of the N ew  South , op. cit., p. 322. 
I t  should be noted th a t  th e  1890 plan  w as as m uch directed  aga in s t 
th e  g row ing P o p u lis t m ovem ent w hich drew  its  support from  the 
illi te ra te  w hites as ag a in s t th e  Negro. By 1898, W illiam s vs. M ississippi, 
170 U.S. 213 had  placed th e  stam p of Federa l approval on the whole 
s in is te r  conspiracy.

63R. 40 (C, 3,) e ) .
64U.S. vs. M ississippi, 339 F . 2d 679.



36

tion that Negroes made eligible by the Federal Court65 
had no time to register or qualify as candidates. It 
stands to reason that these county officials, who ini­
tiated this arrest in the first place, and who can easily 
be said, and probably shown, to be participants in the 
Mississippi Plan, were not, are not, and cannot be ra­
cially impartial. It will be most difficult if not impos­
sible for petitioners who have already been denied equal 
protection from the sheriff to receive it from the prose­
cutor and the judge.

By the explicit exclusion of women by Mississippi Code 
Section 1762, the structure of jury selection in that state 
clearly becomes unconstitutional. A three judge Federal 
Court in the Middle District of Alabama recently held, in 
(White et. al vs. Crook et al., Docket #2263-N Mid. Dist. 
Ala. North. Div., undeported opinion Feb. 7th, 1966) 
that the Alabama statute that excluded women from 
jury service is unconstitutional. Dorothy Weathers is a 
female.66 There is no more reason for allowing women 
to be excluded from juries than there is for excluding 
Negroes. If, for no other reason, the removal petitions 
should be sustained on this ground. This is the least 
Rives and Powers can do for this generation.

3.) Finally, after reading Code Sections 1796 and 1798, 
it is difficult to believe that Mississippi has a jury se­
lection system worthy of the name. The provisions sound 
as though designed for the western territories or the 
Yukon near the turn of the century. Apparently, the 
Mississippi Court can not only justify and legally protect 
any array of jurymen,67 but can, in a pinch, draw the

65U.S. vs. Campbell, ND Miss. No. GC633 (1965 un repo rted ) (C overing 
Sunflow er County, w hich ad jo ins L eF lo re).

66R. 47.
67Miss. Code.Section 1796.



37

jury as it sees fit.68 While this might be necessary or 
even through serendipity, impartial in some instances, it 
renders a formal examination of method, as well as re­
sults, impossible.

With such statutes still on the books and available, 
the standard of Rives and Powers is not only met, it is 
exceeded. Obviously, if no one can test the array on a 
racial basis, and if all formalities are waived by law, 
then there is no use even mentioning the troublesome 
problem of equal protection, much less due process of law. 
To apply strictly the formalism of Rives and Powers 
would be to assign such a system to the eighteenth century 
where it belongs.

Ill
C I V I L  RIGHTS WORKERS ARRESTED AND 

CHARGED BY THE STATE WHILE ASSISTING NE­
GROES TO REGISTER TO VOTE IN MISSISSIPPI 
ARE THEREBY PROSECUTED FOR AN ACT PER­
FORMED UNDER COLOR OF AUTHORITY DE­
RIVED FROM THE FOURTEENTH AMENDMENT 
AND THE CIVIL RIGHTS ACTS OF 1957 AND 1960, 
AND ADDITIONALLY FOR REFUSING TO DO AN 
ACT, i.e., FOR DESISTING, ON THE GROUND THAT 
IT WOULD BE INCONSISTENT WITH SUCH EQUAL 
FEDERAL LAWS, ALL WITHIN THE MEANING OF 
SECTION 1443(2).

A) Until People vs. Galamison, 342 F. 2d 255 (1965) 
and Peacock were decided, there were no appellate de­
cisions that gave a judicial interpretation to 28 USC 
1443(2). In Galamison the petitioners relied on 42 USC

68Miss. Code, Section 1798.



38

1981 and the due process clause of the Fourteenth Amend­
ment. In the Peacock case, however, petitioners were 
not seeking due process, but equal protection of the laws. 
They were assisting others to register to vote. It was the 
avowed public policy of the Federal Government all 
over the South, and particularly in LeFlore County’ 
Mississippi, that Negroes not only be allowed, but en­
couraged to vote. That is what all the agitation has been 
about, since at least the 1957 Civil Rights Act. The 
Justice Department of the Federal Government under 
the 1957 act and under the 1960 act had not only sued 
to destroy the “Mississippi Plan” of 1890 and had named 
the LeFlore County registrar as a defendant,69 but had, 
under the discretionary and quasi-judicial powers granted 
the Attorney General in those Statutes, and based on an 
exhaustive investigation, determined that there existed 
a pattern and practice of racial discrimination in voting 
in LeFlore and other Counties. The Attorney General 
had, in fact just before these arrests, brought suit for a 
judgment declaring such a pattern and practice to exist 
and for an injunction against the registrar of voters 
along with a request for other equitable relief. That 
case, U. S. vs. Mississippi, et al, 339 F. 2d 679, was 
designed to result in an appropriate freezing order. Peti­
tioners as civil rights workers, would clearly play a 
prominent part in the implementation of that order. 
Those cases were not the only Justice Department activi­
ty in support of the Student Non-Violent Coordinating 
Committee which had early established its Mississippi 
base in Greenwood. Just two years before, (1961) a civil 
rights worker for SNCC had been pistol-whipped in the 
courthouse by the registrar of voters, and the Justice

69U.8. vs. M ississippi, 380 U.S. 128, S. Ct. 128 (229 F. Supp. 925).



39

Department had sought an injunction to protect the 
voter registration drive then in progress there; US vs. 
Wood 295 F. 2d 772 (1964). If any group of persons 
were ever members of a “posse comitatus,” Willie Peacock 
and his SNCC co-workers were.

After the Hardy incident of the Wood case, it became 
plain that the rural Mississippi Negro not only had to 
suppress a lifetime of fear and terror to even appear at 
the “white man’s courthouse”- he had to be downright 
foolhardy to do so for the purpose of voter registration. 
The lesson was clear. Unless he had someone to en­
courage him to even go to the Courthouse, and a person 
he trusted, brave enough to accompany him there, he 
simply would not go. That is what these petitioners 
were trying to do when arrested. A person would be 
nearly blind not to see that these petitioners, who do 
not work for pay, were doing the work our Federal 
Government was encouraging and assisting them to do. 
By helping others in the exercise of the substantive right 
to non-discriminatory voter registration they acquired 
a “color of authority” as defined by 28 USC Section 
1443(2). To require them to qualify for removal under 
Sections 1443(1), is to ignore history and current reality. 
They are no less than the modern counterpart of the 
unpaid volunteers that assisted the Freedmans Bureau 
of 100 years ago. Their protection then was in large 
measure the basis for the language of Section 1443(2), 
and it should be no less so today.

B) Curiously, no mention is made in either Galamison 
or Peacock below, of the last part of subsection (2). We 
deem that language to be most significant. Professor



40

Amsterdam in his work on this subject70 refers to the 
language of Section 1443 as being couched in terms 
of “exquisite obscurity”. This may be so, but a 
careful reading of Southern History serves to remove 
some of that obscurity. Historical responses such as the 
Civil Rights Acts of the Reconstruction period are not 
without their historical reasons. Professor Amsterdam’s 
brief in the Rachel case is evidence of that. Addition­
ally, just as these matters cannot be considered from a 
purely analytical viewpoint, they must be assumed to 
have a reason for existence. The second part of sub- 
paragraph (2 )of Section 1443 is there for a purpose, 
and that purpose gives support to the position previous­
ly urged here, and in Rachel, that Section 1443(2) ap­
plies to “persons,” generally. The language in question 
is:

“. . . or for refusing to do any act on the 
ground that it would be inconsistent with such 
law.”71

This might be said to apply to the federal officer 
under mandatory State injunction to strike a Negro 
from a voter roll or to alter a land ownership book, but 
such instances were certainly rare after 1865 when the 
occupational commanders had returned most such duties 
to the Southern Whites. What this language really means 
is that the individual Negro, who was registered, listed, 
worked, bartered for, paid and indentured under the 
Black Codes, could remove his case when he was prose­

70C rim inal P rosecutions A ffec tin g  F ederally G uaranteed C ivil R ig h ts ;  
F ederal R em oval and Heabeas Corpus Jurisd ic tion  to  A bort S ta te  Court 
Trial, 113 Univ. of P ennsy lvan ia  Law  Review, 793, (1965).

71Tliis language w as am ended in to  Senate B ill # 6 1  on M arch 15th. 
1866 a fte r  conference. In  S enator T rum bulls rep o rt (Cong. Globe 
p. 1413, 39th Cong.) he d irectly  re la tes  i t  to  the  p ro tection  being 
g iven by law  to F reedm en and  Refugees.



41

cuted for violating them. These laws were the heart 
and soul of the Provisional Government of Mississippi 
in 1865, the year before the removal Statute was passed.72 
They were not repealed there until 1867.73 They were in 
turn, however, replaced by the vagrancy laws and Stat­
utes which required freedmen without a yearly labor con­
tract to secure a license.74

Additionally Negroes were required by law to appren­
tice their minor children under pain of severe penalties.75 
This act was written explicitly for and applied to the 
children of Negroes only.

Wharton in his work,76 at page 84 writes:

“. . . it cannot be denied that county courts 
by arbitrary decisions as to the ability of the 
freedmen to provide for their children might 
easily have delivered most of the Negro minors 
into the hands of their former masters.”

Negroes over eighteen years old were, under the sec­
ond series of Black Codes, required to have homes and 
to find lawful employment by the . . . “Second Monday 
in January, 1866 . . .” or be deemed a vagrant.77 Negroes
72Trumbull fu r th e r  describes the rem oval ac t a t  page 474 of the Globe on 

Ja n u a ry  29th 1866:
“Since th e  abo lition  of slavery  the L egisla tu res w hich have as . 
sem bled in  the in su rrec tio n a ry  s ta te s  have passed Law s re la tin g  
to  the  F reedm en and in nearly  a ll of the s ta tes  they  have dis­
crim inated  aga in s t them . They deny them  certa in  rig h ts , subject 
them  to severe penalties, and  s till im pose upon them  th e  very 
re s tric tio n s  w hich w ere im posed upon them  in  consequence of the 
existence of slavery, and  before i t  w as abolished. The purpose 
of th e  bill u nder consideration  is to destroy a ll these d iscrim ina­
tions . . .”

73Notes Nos. 29 and  30 supra.
74W harton, op cite, p. 91.
75Mississippi Session Law s R egu lar Session, 1865, § 86-90 (N ovem ber 

22, 1865).
760p. cite.
77Mississippi Session Laws, op. cite. § 90L93.



42

were also by the codes required to pay a . . capita­
tion tax not to exceed one dollar annually, on each and 
every freedman, free Negro, or mulatto . . for the 
support of the Negro paupers.78

Finally Negroes were required to have written evi­
dence of employment, i.e. a labor contract, on or before 
the second Monday in January, 1866 or be deemed a 
vagrant.79 Considering these requirements of the Black 
Codes all together, it is difficult to recall any other set 
of laws more inconsistent with the Fourteenth Amend­
ment except the slave codes themselves.

The refusal to do these acts of indentur, apprentice- 
ment, registration or payment a head tax were natu-< 
rally widespread among the hundreds of thousands of 
newly freed slaves who were without jobs, cash or the 
rudiments of an education. These people did not only re­
fuse to perform, they simply could not, and the white su­
premacists knew it. That was why they drew the Black 
Codes the way they did. This was the first “Mississippi 
Plan”, and that is why the last part of Subsection 2 of 
§ 1443 seems, but is not, “exquisitely obscure.”

This part of Subsection (2) of § 1443 can then be 
said historically, to apply to the great masses of freed 
Negro slaves, wandering about the South in the after- 
math of a great civil war, who like the children of Israel 
were being herded, prosecuted and impressed by their 
former masters. This removal was to be their individual 
relief. This law was designed to lift the burden of the
IKWharton, op. cite, p. 85.
7§Wharton, op. cite, p. 87. See also th e  speech hy S enator Donnelly 

{Cong. G lote  2 /1 /66  p. 588, 39th Congress) w here in  he gives a de­
ta iled  and  m oving descrip tion  of the p lig h t of th e  freedm an  and 
carefu lly  decsribes th e  slave-like charac te r of the B lack Codes.



43

thousands of petty charges descending upon them from 
the white power structure like a plague of locusts. These 
are the prosecutions this language was designed to stop.

The same is true, in a modern context, in this case. 
These petitioners refused to move on, refused to con­
form to the hundreds of petty harassments of daily life 
in Mississippi, and finally and most importantly, refused 
to desist from assisting in voter registration drives among 
Negroes because such an act would be inconsistent with 
the clear provisions of the Fourteenth Amendment, The 
Civil Rights Acts of 1957 and 1960, and their own com­
mitment of conscience thereto.

CONCLUSION

For the foregoing reasons, the judgment of the Court 
of Appeals for the Fifth Circuit should be affirmed in 
part and reversed in part.

Respectfully submitted:

BENJAMIN E. SMITH AND JACK PEEBLES 
for SMITH, WALTZER, JONES & PEEBLES 
1006 Baronne Building 
New Orleans, Louisiana

CLAUDIA SHROPSHIRE and GEORGE CROCKETT 
for GOODMAN, CROCKETT, EDEN, ROBB 
& PHILO
3220 Cadillac Tower 
Detroit, Michigan



LEN ROSENTHAL 
406 West Capitol Street 
Jackson, Mississippi

44

WILLIAM ROSSMORE of
STAVIS, RICHARDSON, KOENIGSBERG &
ROSSMORE
744 Broad Street
Newark, New Jersey

FAY STENDER of 
GARRY, DREYFUS & McTERNAN 
501 Fremont Building 
San Francisco, California



45

CERTIFICATE

Undersigned Counsel certifies that he has served a copy 
of the above brief on Mr. Hardy Lott of Lott and Saun­
ders, Counsel for the City of Greenwood by placing same
in the U.S. Mail postage prepaid this _______  day of
March 1966.

Benjamin E. Smith