Hamilton v. Alabama Petition for Writ of Certiorari tothe Supreme Court of Alabama

    I n the

(Ciuirt nf %  United Butts
October T erm, 1963 

No.-----

Mary H amilton,
Petitioner,

—v.-

Alabama.

PETITION FOR WRIT OF CERTIORARI TO 
THE SUPREME COURT OF ALABAMA

J ack Greenberg 
Norman C. Amaker 
J ames M. Nabrit, III 
Charles H. J ones, J r.

10 Columbus Circle 
New York 19, New York

Oscar W. Adams, J r.
1630 Fourth Avenue, North 
Birmingham, Alabama

Attorneys for Petitioner



I N D E X

PAGE

Opinion Below.................... -.................—.....— ...........  1

Jurisdiction ..................... .............................*..............1

Questions Presented  ....................................................  2

Constitutional and Statutory Provisions Involved...... 3

Statement  ............................................................. .......  4

Reasons for Granting the Writ ... ..............—...............  7
I. This case involves a significant form of racial 

discrimination affecting the fair administra­
tion of justice in the courts and petitioner’s 
contempt conviction sanctioned such discrim­
ination in violation of the Fourteenth Amend­
ment ...... - .....- ..................................................  7

II. The failure to afford petitioner notice and a 
hearing before punishing her for contempt 
was a denial of due process of law ........ ......... 19

Conclusion ................ ........... -....... ............................. ...... 24

Appendix..........................................................................  25
Opinion Below........................................... ..............  25
Judgment ................................................... - .... -...... 28
Denial of Rehearing ................................ .......... —- 29



T able of Cases

page

Alford v. United States, 282 U. S. 687 ......................... 17

Bell v. State, 16 Ala. App. 36, 75 So. 181 ...... ........... 17
Berger v. United States, 295 U. S. 78 ....... ........... .....  17

Cassell v. Texas, 339 U. S. 282 ........ .............. ............  9
Cooke v. United States, 267 U. S. 517 ....... ............. . 20

Ex parte Dickens, 162 Ala. 272, 50 So. 218 (1909) .... 6
Ex parte Terry, 128 U. S. 289 ................... ..................... 20

Garret v. State, 268 Ala. 299, 105 So. 2d 541 ..... ......... 17
George v. Clemmons, 373 U. S. 241 ........................... 8

Havens v. State, 24 Ala. App. 288, 134 So. 814, cert, 
denied 134 So. 815, 323 Ala. 98 (1930) .....................  18

In re McConnell, 370 U. S. 230 ...... ............................. 23

Jencks v. United States, 353 U. S. 657 ........................  17
Johnson v. Virginia, 373 U. S. 61 _______ _____ ____8,17

Loeb v. Webster, 213 Ala. 99, 104 So. 25 .....................  17

Napue v. Illinois, 360 U. S. 264 ....................................  8

O’Neil v. State, 189 Wis. 259, 207 N. W. 280 (1926) .... 17

Panico v. United States, 375 U. S. 29 ........... .............1, 22
People v. LaFrance, 8 Cal. 839, 92 P. 2d 465 .............. 17

Re Green, 369 U. S. 689 .................... ..........................  21
Re Oliver, 333 U. S. 257 ...........................................20, 21, 22

11



I l l

Sanford v. State, 38 Ala. 332, 83 So. 2d 254 .............. 17
Shelley v. Kraemer, 334 U. S. 1 ............................. . 8
State v. Bessa, 115 La. 259, 38 So. 985 (1905) ........... 17
State v. King, 222 S. C. 108, 71 S. E. 2d 793 .............   17
State v. Murdock, 183 N. C. 779, 111 S. E. 610__  17
Strauder v. West Virginia, 100 U. S. 303 .................. 8,9

Taliaferro v. United States, 47 F. 2d 699 (1931) ___  17
Thomas v. Dorsey, 15 Ala. App. 419, 73 So. 747 ......  17
Tribue v. State, Fla. App., 106 So. 2d 630 ..........    17

Ungar v. Sarafite, 375 U. S. 809 .......... ..... ................... 23

Viereck v. United States, 318 U. S. 236 .................. . 17
White v. State, 135 Tex. Cr. 210, 117 S. W. 2d 450 

(1938) ........................ .... ...........................................  17

Statutes I nvolved

18 U. S. C. §401 ......................................       23
28 U. S. C. §1257(3) ....................      1
42 U. S. C. §1981 (Civil Rights Act of 1870) .    16
Federal Rules of Criminal Procedure 42(a) ......  23
Ala. Code of 1940, Tit. 13, Section 2 ....................... 3
Ala. Code, Tit. 15, Sec. 341 (1958) ...........    5
Ala. Code, Title 7, §442 (1958) ...     18
La. Stats. Anno. R.S. 14:317 .......................................  9
S. C. Code (1962), §58-1333

PAGE

9



IV

Other Authorities

page

21 Ala. Lawyer 193 (1960) ....... ........................... ........ 17
Baldwin, Go Tell It on the Mountain (1954) ........... . 13
Baldwin, Nobody Knows My Name (1963) ............... . 13
Bentham, Rationale of Judicial Evidence, Volume II, 

Chapter V ........... ....... .............. ..... .............................. 17
A. Davis & Dollard, Children of Bondage (1940) .......  13
A. Davis, B. Gardner & M. Gardner, Deep South (1941) 13
Dawes, “Titles and Symbols of Prestige in 17th Cen­

tury New England”, William and Mary College 
Quarterly (Jan. 1949) .........    14

Dollard, Caste and Class in a Southern Town (3rd ed. 
1957) ........................................................................   10

Doyle, The Etiquette of Race Relations in the South 
(1937) ...............       11,12

Elkins, Slavery (Universal Library Ed. 1963).......... . 16
Ellison, The Invisible Man (1947) ............................  13
1 Encyclopedia Britannica, University of Chicago 

(1963 ed.) ....................................    14
C. S. Johnson, Patterns of Negro Segregation (1943) ..10,13
Johnson, Growing Up in the Black Belt (1941) ..........  13
Johnson, To Stem This Tide (1943) ............ ................  13
Moton, What the Negro Thinks (1929) .....................12,13
Myrdal, An American Dilemma (1944) .......... ......... 10
Nettels, The Roots of American Civilization: A His­

tory of American Colonial Life (1938) .....................  14



V

New York Times Magazine, Dec. 8, 1963 _____ ___
Patterson, Colour and Culture in South Africa (1953)
Richmond, The Colour Problem (1955) ...................
Smith, Strange Fruit (1948) ....... ................................
Wigmore on Evidence.................................
Wright, Native Son (1957) .................................... ....
Wright, Black Boy (1951) .........................................

... 15 
.. 14
... 14
... 14 
18,19 
.. 13 
.. 13

PAGE



I n  th e

(Em it! ni %  United
October T erm, 1963 

No.-----

Mary H amilton,
Petitioner,

—v.—

Alabama.

PETITION FOR WRIT OF CERTIORARI TO 
THE SUPREME COURT OF ALABAMA

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Alabama which was 
entered September 26, 1963, rehearing of which was de­
nied October 31, 1963.

Opinion Below

The opinion of the Supreme Court of Alabama of Sep­
tember 26, 1963, is reported at 156 So. 2d 926 and is set 
forth in the appendix, infra p. 25. No opinion was given 
by the Circuit Court of Etowah County, Alabama..

Jurisdiction

The Supreme Court of Alabama entered its judgment on 
September 26, 1963 (R. 8), and denied rehearing on Oc­
tober 31, 1963 (R. 14). The jurisdiction of this Court is 
invoked pursuant to 28 U. S. C. §1257(3), petitioner having



2

asserted below and here the deprivation of rights, privi­
leges, and immunities secured by the Constitution of the 
United States.

Questions Presented

Whether petitioner was denied rights protected by the 
due process and equal protection clauses of the Fourteenth 
Amendment when she was summarily fined and imprisoned 
for contempt of court in the following circumstances:

1. Petitioner, a Negro, was a witness in her own behalf 
at a habeas corpus hearing in an Alabama court. Through­
out the hearing the solicitor representing the State per­
sisted in the degrading custom of addressing ail Negro 
witnesses by their first names, declining to call them “Mr.” 
or “Miss” or to use their surnames as he did with all white 
witnesses, and was sustained in this conduct by the trial 
judge. Petitioner was held in contempt of court when the 
prosecutor insisted upon addressing her as “Mary” and she 
said that she would not answer his questions until he ad­
dressed her “correctly.”

2. The trial judge ordered petitioner to answer, and 
upon her statement that she would not answer until she 
was “addressed correctly,” immediately and summarily 
held her in contempt and sentenced her to a fine and im­
prisonment, without affording her notice of the contempt 
charge or a hearing.



3

Constitutional and Statutory Provisions Involved

1. This case involves section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

2. This case involves Alabama Code of 1940, Title 13, 
Section 2, which provides:

Powers of court to inflict summary punishm ent — 
The powers of the several courts in this state to issue 
attachments and inflict summary punishment for con­
tempts, does not extend to any other cases than:

Disrespectful, contemptuous, or insolent behavior in 
court, tending in anywise to diminish or impair the 
respect due to judicial tribunals, or to interrupt the 
due course of trial.

A breach of the peace, boisterous conduct, violent 
disturbance, or any other act calculated to disturb or 
obstruct the administration of justice, committed in 
the presence of the court, or so near thereto as to have 
that effect.

The misbehavior of any officer of the court, in his 
official transactions, or the disobedience or resistance 
of any officer of the court, party, juror, witness, or any 
other person, to any lawful writ, process, order, rule, 
decree, or command thereof.

Deceit, or the abuse of the process of the proceed­
ings of the court, by any person or party, or any un­
lawful interference with the process or proceedings of 
the court.

Refusing to be sworn, or to answer, either in the 
court or before the grand jury, any lawful question as 
a witness or garnishee.

When summoned as a juror in a court, improperly 
conversing with a party to an action, to be tried at



4

such court, or with any other person in relation to the 
merits of such action, or receiving a communication 
from a party, or other person, in respect to it, without 
immediately disclosing same to the court.

Conversing with a juror, knowing him to be such, in 
relation to the merits of any action which he is en­
gaged in the trial o f; or supplying any juror with any 
refreshments of any kind, except water, during the 
time he is engaged in the trial of any cause, without 
leave of the court.

Statement

On June 25, 1963, petitioner was held in contempt of the 
Circuit Court of Etowah County, Alabama and sentenced 
to five days in jail and a fine of fifty dollars (R. 2). On that 
day petitioner was a witness in her own behalf at a hear­
ing on a petition for a writ of habeas corpus, during which 
the state solicitor persisted in addressing all Negro wit­
nesses by their first names. When petitioner’s counsel 
objected the trial judge overruled him (R. 2, 3), saying on 
one occasion, “I ’m not going to tell a lawyer how to address 
a witness” (R. 3). The solicitor addressed only the Negro 
witnesses by their first names (R. 3).

When the solicitor began cross-examining petitioner he 
asked her name and she replied, “Miss Mary Hamilton” 
(R. 2). Addressing her as “Mary,” he asked who arrested 
her (id.). She replied that her name was Miss Hamilton 
and said, “Please address me correctly” (id.). Ignoring this 
request, the solicitor repeated his question, this time add­
ing “Mary” at the end (id.). She said she would not 
answer “until I am addressed correctly” and one of her 
attorneys interjected that her name was Miss Hamilton 
(id.). The judge then said, “Answer the question” (id.).



5

Petitioner again said she would not answer unless ad­
dressed correctly (id.). The judge said, “You are in. con­
tempt of court.” One of petitioner’s attorneys attempted 
to speak at this point saying, “Your honor—your honor—”, 
but the court immediately sentenced petitioner to jail and 
to a fine.1

Petitioner immediately began serving the sentence and 
completed the five day jail term, but was admitted to bond 
pending review of the conviction before serving additional 
time in jail for nonpayment of the fine2 (R. 1).

On July 25, 1963, petitioner sought review of her sen­
tence of contempt by filing a petition for writ of certiorari 
in the Supreme Court of Alabama (R. 1), the method under

1 The entire sequence of events appears in the following lines of 
the record (R. 2) :

“Cross examination by Solicitor Rayburn;
Q. What is your name, please?
A. Miss Mary Hamilton.
Q. Mary, I believe—you were arrested—who were you arrested

by?
A. My name is Miss Hamilton. Please address me correctly.
Q. Who were you arrested by, Mary?
A. I will not answer a question—

By Attorney Amaker: The witness’s name is Miss Hamil­
ton.

A. —your question until I am addressed correctly.
The Court: Answer the question.
The Witness: I will not answer them unless I am ad­

dressed correctly.
The Court: You are in contempt of court—
Attorney Conley: Your Honor—your Honor—
The Court: You are in contempt of this court, and you 

are sentenced to five days in jail and a fifty dollar fine” 
(R. 2).

2 Petitioner is liable to serve an additional 20 days in jail in 
default of payment of the fine. Alabama Code, Title 15, Section 
341 (1958).



6

Alabama law for securing review of a contempt conviction 
(Ex parte Dickens, 162 Ala. 272, 50 So. 218 (1909)). The 
Alabama Supreme Court denied the petition for writ of 
certiorari on September 26, 1963 (R. 8) with an opinion on 
the merits (R. 5).

The petition for certiorari filed with the Alabama Su­
preme Court alleged that petitioner’s contempt conviction 
violated the equal protection and due process clauses of 
the Fourteenth Amendment, asserting inter alia:

Petitioner avers that her conviction of contempt in 
these circumstances was erroneous, unjustified, illegal, 
null and void, contrary to the decision of this Court 
and violated her right to the equal protection of the 
laws and due process of law guaranteed under the 
Fourteenth Amendment to the Constitution of the 
United States (R. 2-3).

The verified petition filed in the Alabama Supreme Court, 
which alleged the circumstances of the contempt conviction 
was not contradicted by the State and was accepted by the 
court below as true. Briefs were filed, and the court below 
ruled on the merits against petitioner’s claims, holding that 
the trial court had power to inflict summary punishment 
under Alabama Code, Title 13, Section 2, and saying that 
(R.7):

* * * the question was a lawful one and the witness 
invoked no valid legal exemption to support her re­
fusal to answer it.

The record conclusively shows that petitioner’s name 
is Mary Hamilton, not Miss Mary Hamilton.

Many witnesses are addressed by various titles, but 
one’s own name is an acceptable appellation at law. 
This practice is almost universal in the written opin­
ions of courts.



7

In the cross-examination of witnesses, a wide latitude 
is allowed resting in the sound discretion of the trial 
court and unless the discretion is grossly abused, the 
riding of the court will not be overturned. * * * We 
hold that the trial court did not abuse its discretion 
and the record supports the summary punishment in­
flicted.

Petitioner’s application for rehearing and for stays pend­
ing review in this Court were denied without opinion (R. 
12, 14), but petitioner has remained at liberty and has not 
yet served the remaining portion of the sentence.

Reasons for Granting the Writ
I. This case involves a significant form  of racial discrim­

ination affecting the fair administration of justice in the 
courts and petitioner’s contempt conviction sanctioned such 
discrimination in violation of the Fourteenth Amendment.

Petitioner was convicted of contempt for refusing to 
respond to questions as a witness when the solicitor repre­
senting Alabama insisted upon addressing her by her first 
name. It is uncontroverted that the solicitor took such 
familiarities only with the Negro witnesses who testified 
at the hearing, and that he persisted notwithstanding ob­
jections. Indeed, it is patent that the solicitor, who insisted 
upon calling petitioner “Mary” even when she asked him 
not to, was deliberately making a point of addressing her 
familiarly by her first name. While the significance of this 
differential treatment is apparent only in the context of 
the racial caste system, on the surface it is clear that there 
was a racial discrimination. A public official, the solicitor 
representing the state in proceedings in its courts, and as 
such accountable for his conduct under the Fourteenth



8

Amendment (cf. Napue v. Illinois, 360 U. S. 264), accorded 
petitioner and other Negroes a different treatment than 
that accorded white witnesses. A state court, also subject 
to the Fourteenth Amendment (cf. Shelley v. Kraemer, 
334 XJ. S. 1), sanctioned and enforced the solicitor’s dis­
criminatory conduct by punishing petitioner for contempt 
when she refused to submit to the prosecutor’s umvarrant- 
edly familiar mode of addressing her.

The decision belowT clashes sharply with two interrelated 
lines of authority in this Court. First, Johnson v. Virginia, 
373 U. S. 61, and George v. Clemmons, 373 U. S. 241, hold 
that the State may not inflict the penalty of contempt upon 
a Negro because he refused to obey an order relegating 
him to a segregated section of the courtroom. Second, 
Strauder v. West Virginia, 100 U. S. 303, holds that the 
judicial process may not be used to brand a stamp of 
inferiority on a Negro party litigant. Both are different 
aspects of a common concern that the State, and particularly 
its instruments of justice, must keep out of the business of 
maintaining a racial caste system in the United States.

Johnson v. Virginia, supra, was, of course, not concerned 
merely with the abstract question of whether persons may 
be separated from one another physically. A court may 
invoke the rule of exclusion and require witnesses to leave 
the courtroom. If the court had decided to seat spectators 
in alphabetical order, or to separate them according to 
whether they were plaintiffs or defendants without regard 
to race, Johnson certainly would have had no complaint. 
The constitutional vice in separating Johnson from others 
was that it enforced a racial caste status, with all the in­
feriority which that has come to imply in the light of our 
history.

Strauder v. West Virginia, 100 U. S. 303, written with 
the memory of the slave system still fresh, recognized that 
the vice in segregation (in that case in the form of exclu­



9

sion from juries) is not gross physical separation, or 
indeed prejudice to a particular litigant in the sense that 
members of another race might be most likely to vote 
against him. Rather, the evil was that exclusion of Negroes 
from juries “is practically a brand upon them, affixed by 
law; an assertion of their inferiority, and a stimulant to 
that race prejudice which is an impediment to securing to 
individuals of the race that equal justice which the law 
aims to secure to all others” (100 U. S. at 308).3

Of course, a racially inferior caste status can be imposed 
in ways other than physical separation. A familiar exam­
ple of discrimination without separation is the law which 
allows Negro servants or employees to occupy facilities 
otherwise limited to whites.4 The crux of the matter is 
status, not spatial separation.

Petitioner’s reaction to being called “Mary” in a court­
room where, if white, she would have been called “Miss 
Hamilton,” was not thin-skinned sensitivity. She was re­
sponding to one of the most distinct indicia of the racial 
caste system. This is the refusal of whites to address Ne­
groes with titles of respect such as “Miss,” “Mrs.” or “Mr.” 
and to refer to them as “boy” or “girl.”

The literature of race relations abounds with recogni­
tion of the key role played by this difference in modes of 
address. Myrdal writes:

3 That the line of eases descending from Strcmder does not rest 
upon a concept of injury to a particular defendant is evidenced 
by Cassell v. Texas, 339 U, S. 282. In that case there was indict­
ment by a grand jury from which Negroes had been systematically 
excluded (indeed, there was also systematic inclusion of Negroes), 
but no claim of such exclusion or inclusion with respect to the 
petit jury. See Justice Jackson’s dissent, 339 IT. S. at 298, et seq.

4 See, e.g., S. C. Code (1962), §58-1333 (a Negro woman can 
ride in white car of train if accompanying white child) and La. 
Stats. Anno. R. S. 14:317 (exception to residential segregation law 
for employees).



10

The Negro is expected to address the white person by 
the title of “Mr.,” “Mrs.,” or “Miss.” The old slavery 
title of “Master” disappeared during Deconstruction 
entirely and was replaced by “Boss” or sometimes 
“Cap” or “Cap’ll.” From his side, the white man ad­
dresses the Negro by his first name, no matter if they 
hardly know each other, or by the epithets “boy,” 
“uncle,” “elder,” “aunty,” or the like, which are ap­
plied without regard to age. If he wishes to show a 
little respect without going beyond the etiquette, he 
uses the exaggerated titles of “doctor,” “lawyer,” 
“professor,” or other occupational titles, even though 
the term is not properly applicable. [2 Myrdal, A x 
A mericas' D ilemma 611 (1944).]

* # m * #
In all articulate groups of Negroes there is a demand 
to have white men call them by their titles of Mr., 
Mrs., and Miss; to have white men take off their hats 
on entering a Negro’s house; to be able to enter a white 
man’s house through the front door, rather than the 
back door, and so on. [1 Myrdal, A x Americax 
Dilemma 64 (1944).]

and John Dollard makes the same point in Caste and Class
in a Southern Town:

In Southerntown the use of “Mrs.” as a white-caste 
mark and the omission of it in speaking to Negroes 
have great emotional value. The Negroes know that to 
omit the “Mr.” in referring to a white man would al­
ways mean that the addressee could enforce his right 
in some uncomfortable way. The main fact is that 
behind deference from the Negroes is the demand for 
deference by the whites and the ability to secure it by



11

force if it is not willingly given. [Dollard, Caste and 
Class in  a Southern T own 179 (3rd ed. 1957).]

-Sf. Jf. M.W  • * .  W  •TV'

Negroes are called by their first names without respect 
to their wishes, as are children. (Id., p. 435.)

In Patterns of Negro Segregation, Charles S. Johnson has 
written:

Otherwise, only a few whites, usually those who are 
socially or economically secure, can freely use titles of 
respect in addressing Negroes. This taboo is deep- 
seated, involving in a complicated manner, the status, 
self-interest, and self-conception of the individual 
white person. [C. S. J ohnson, P atterns of Negro 
Segregation 140 (1943).]

# # # # #
Formal salutations in letters also fall under the eti­
quette. When a letter is being addressed to a person 
known to be a Negro, “My dear” and “Sir” are self­
consciously omitted. The letter begins simply “John,” 
or there is no salutation at all, and the envelope carries 
no title for the name. A prominent Negro woman, 
president of a state parent-teacher organization in 
Louisiana, wrote the governor, regarding a question of 
public concern. She received a reply from the gover­
nor’s secretary addressing her, without formal saluta­
tion, simply as “Huggins.” (Id., p. 143.)

In The Etiquette of Race Relations in the South, B. W. 
Doyle has written:

Negroes normally greet white men with the title “Mis­
ter.” . . . Occasionally, however, “cap” or “eap’n” or 
even the round term “boss” may be substituted for 
“mister,” or even just “white folks” may be used. If the



12

white persons are well known, Negroes may address 
them by the intimate “Mr. John” or “Miss Mary,” 
as the case may be. If, however, formality is required 
the forms may be changed to “Mr. So-and-so” or 
“Miz . . . So-and-so.” [Doyle, T he E tiquette of 
R ace R elations in  the South 142 (1937).]
On the other hand, white persons are not expected 
to address Negroes as “mister” ; but “boy” is still 
good usage as a term to address Negro males of all 
ages. Even “nigger” is occasionally used. . . . This 
term does not strictly conform to what is accepted, 
for Negroes resent it occasionally. Where these terms 
are not used, the ubiquitous “Jack” and—as on Pull­
man cars—“George” and “boy” are in good form. 
{Id., pp. 142-143.)

Robert Moton, too, describes this phenomenon in What 
the Negro Thinks:

It is to be expected that those persons who find it 
impossible to give the same consideration in cold 
type to Negroes which they give to people of other 
races will find it no more easy to give them the same 
consideration in personal contacts and in the ac­
cepted amenities of our order of civilization; for 
which reason these same people simply refuse to refer 
to or address any Negro man or woman as “Mr.” or 
“Mrs.” or “Miss,” regardless of any legal signifi­
cance in those terms, especially the title “Mrs.” The 
habit of slavery days was to address the slave by 
a given name—few of them had any other. If any 
distinction was to be made between slaves of the same 
given name on different plantations, the master’s name 
was employed in the possessive as “Thompson’s



13

John” or “Hightower’s Jim.” With advancing years, 
if endowed with sufficient personal dignity and other 
elements of character, that individual became “Uncle 
Jim,” and in the case of women “Aunt Harriet,” 
instead of simply “Harriet.” When the slave became 
a free man, many of them simply adopted the names 
of their former masters, but in the order charac­
teristic of a free man; and so he styled himself John 
Thompson or James Hightower. With it also they 
adopted the titles of Western democracy “Mr.,” 
“Mrs.,” and “Miss.” There are many who regard this 
as a presumption, but in the mind of the Negro it 
registers not only his respect for himself but Ms re­
spect also for both men and women in his own race_
a distinct gain over the lack of respect characteristic 
of the status of a slave. [Moton, W hat the Negro 
T hinks 190-191 (1929).]

See also: A. Davis & Dollard, Children of B ondage 
18-19, 239 (1940); A. Davis, B. Gardner & M. Gardner, 
Deep South 22, 23, 24 (1941); J ohnson, P atterns of Negro 
Segregation 121,122,135, 138,139,140-143, 206, 207 (1943); 
J ohnson, Growing U p in the B lack Belt 277, 278 (1941); 
J ohnson, T o Stem T his T ide 112 (1943); Moton, W hat 
the Negro T hinks 190-192, 194-196, 215 (1929).

The social effects of maintaining status in this way 
have been noted elsewhere in American literature as a 
particularly distinctive indication of racial caste. See: 
W right, Native Son 57-58, 177, 258-260, 285 (1957); 
W right, Black B oy 199-200, 208-209 (1951); see also: 
Baldwin, Nobody K nows My Name 28, 112 (1963); B ald­
w in , Go Tell I t on the Mountain 146-147 (1954); E llison,



14

T he I nvisible Man 384 (1947); Sm ith , Strange F ruit 16, 
84-85, 92, 141 (1948).

The maintenance of racial caste status by means of titles 
of address is not unique to the United States.5 With re­
spect to British colonial countries, Anthony H. Richmond in 
The Colour Problem has written:

Many Europeans show marked discourtesy to Africans 
and demand an excessively servile demeanour from 
them. The European tends to use forms of address, 
such as “boy,” “nigger,” “wog,” and “kaffir,” when ad­
dressing or talking about Africans, who very much 
resent these expressions and the tone of voice that 
goes with them. [R ichmond, T he Colour P roblem 150 
(1955).]

And see Sheila Patterson’s Colour cond Culture in South 
Africa:

In addressing or referring to other whites whom they 
do not know well, Afrikaners use the titles Meneer, 
Mevrou and Mejuffrouw, for “Mr.,” “Mrs.,” and 
“Miss” respectively. It is one of the biggest griev­
ances of urban Coloureds who have achieved some 
status within their own community that comparatively 
few Afrikaners will accord them these titles. Low- 
class whites are said to ignore all titles, but better- 
educated ones will sometimes use such titles as 
“Reverend,” “Doctor” and so on, wherever it is possi­
ble. [P atterson, Colour and Culture in  South 
A frica 140 (1953).]

5 For origin of the title “Mr.” as used in the United States see: 
NETTBLS, THE ROOTS OF AMERICAN CIVILIZATION: 
A HISTORY OF AMERICAN COLONIAL LIFE 327 (1938); 
DAWES, “TITLES AND SYMBOLS OF PRESTIGE IN 17TH 
CENTURY NEW ENGLAND,” WILLIAM AND MARY COL­
LEGE QUARTERLY 69-83 (Jan. 1949); 1 ENCYCLOPAEDIA 
BRITANNICA, University of Chicago 134d (1963 ed.).



15

Indeed, more recently, upon Kenya becoming an inde­
pendent nation, the Minister of Justice and Constitutional 
Affairs mentioned prominently among the indicia of racial 
discrimination there the mode of address which had come 
into usage during colonial days, and directly compared it 
to that in the United States:

Many U. S. citizens will know the sort of thing we had 
to put up with: the separate queues and counters, the 
exclusion from hotels, restaurants and clubs in our 
own country. Hospitals, schools, housing and social 
services were provided on a descending scale of ade­
quacy—Europeans, Asians, Africans. An individual 
African’s ability to pay opened no doors for him. To 
the racialist settlers, he was a Black, just a “boy,” 
hardly human. [N. 7. Times Magazine, December 8, 
1963, pp. 24, 112.]

In the United States this use of the term “boy” and the 
omission of titles of respect when ordinarily they would be 
accorded whites, has its roots in slavery. In the recent, 
authoritative evaluation of slavery’s role here Stanley M. 
Elkins has written:

The Negro was to be a child forever. “The Negro . . . 
in his true nature, is always a boy, let him be ever so 
old. . . . ” “He is . . .  a dependent upon the white race; 
dependent for guidance and direction even to the pro­
curement of his most indispensable necessaries. Apart 
from this protection he has the helplessness of a child 
—without foresight, without faculty of contrivance, 
without thrift of any kind.” Not only was he a child; 
he was a happy child. Few Southern writers failed to 
describe with obvious fondness the bubbling gaiety of 
a plantation holiday or the perpetual good humor that 
seemed to mark the Negro character, the good humor



16

of an everlasting childhood. [E lkins, Slavery 132 
(Universal Library Ed. 1963).]

w  w  w  w

Might the process, on the other hand, be reversed? It 
is hard to imagine its being reversed overnight. The 
same role might still be played in the years after slav­
ery—we are told that it was6—and yet it was played to 
more vulgar audiences with cruder standards, who 
paid much less for what they saw. The lines might be 
repeated more and more mechanically, with less and 
less conviction; the incentive to perfection could be­
come hazy and blurred, and the excellent old piece 
could degenerate over time into low farce. There could 
come a point, conceivably, with the old zest gone, that 
it was no longer worth the candle. The day might 
come at last when it dawned on a man’s full waking 
consciousness that he had really grown up, that he was, 
after all, only playing a part. {Id., at 133.)

During slavery the southern states are said to have uni­
versally prohibited slaves from testifying in court, except 
against each other (Elkins, op. cit. supra 57), and the Civil 
Rights Act of 1870 addressed itself to this by providing 
that “all persons . . . shall have the same right . . .  to sue, 
be parties, give evidence . . .  as is enjoyed by white citi­
zens___ ” (42 U. S. C. §1981).

It is no more the legitimate business of the states’ courts 
to maintain the racial caste system by using the contempt 
power in support of racially demeaning forms of address­
ing Negroes by public officials than it is the states’ busi­

6 Even Negro officeholders during Reconstruction, according to 
Francis B. Simians, “were known to observe carefully the etiquette 
of the Southern caste system.” “New Viewpoints of Southern 
Reconstruction,” Journal of Southern History V (February, 1939), 
52. [This footnote is from the original.]



17

ness to do the same thing by physical segregation. Johnson 
v. Virginia, 373 U. S. 61.

The trial court had two choices, to compel the witness to 
answer by contempt, or to require the prosecutor to cease 
his racial abuse. That the latter course would have been 
correct, is dictated by well accepted legal principles gov­
erning examination of witnesses as well as by the Four­
teenth Amendment. This Court has held that a prosecuting 
attorney is a quasi-judicial officer of the court and under a 
duty not to prejudice a party’s case through overzealous 
prosecution, Berger v. United States, 295 U. S. 78; Jencks 
v. United States, 353 U. S. 657; Taliaferro v. United States, 
47 F. 2d 699 (1931); see also: O’Neil v. State, 189 Wis. 259, 
207 N. W. 280 (1926).7

Moreover, the prosecutor has a responsibility not to 
detract from the impartiality of the courtroom atmos­
phere.8

It is the plain duty of the court to interfere, on objec­
tion or without, if an attempt is made by counsel to brow­
beat, insult, or intimidate witnesses. Alford v. United

7 Because of the special relationship between prosecuting attor­
ney and court the prosecutor must avoid conduct which is abusive 
to the witness, People v. LaFrance, 8 Cal. 839, 92 P. 2d 465- 
State v. Murdock, 183 N. C. 779, 111 S. E. 610; State v. King, 222 
S. C. 108, 71 S. E. 2d 793; Tribue v. State, Fla. App., 106 So. 2d 
630; not engage in undignified conduct; Garret v. State, 268 Ala. 
299, 105 So. 2d 541; Sanford v. State, 38 Ala. 332, 83 So. 2d 254; 
Bell v. State, 16 Ala. App. 36, 75 So. 181; or conduct himself in 
an harassing, intimidating, or insulting manner; Bentham, Ra­
tionale of Judicial Evidence, Volume II, Chapter V.

8State v. Bessa, 115 La. 259, 38 So. 985 (1905) ; White v. State, 
135 Tex. Cr. 210, 117 S. W. 2d 450 (1938); (see 21 Ala. Lawyer 
193 (1960) address by Judge Walter P. Jones, Montgomery, Ala­
bama) ; he must avoid making inflammatory argument to the jury, 
Viereck v. United States, 318 U. S. 236; and appeals to racial 
prejudice during the course of his argument, Loeb v. Webster, 
213 Ala. 99, 104 So. 25; Thomas v. Dorsey, 15 Ala. App. 419, 73



18

States, 282 U. S. 687; Havens v. State, 24 Ala. App. 288, 
134 So. 814 , cert, denied 134 So. 815, 323 Ala. 98 (1930).

The Alabama courts have indicated recognition of the 
higher interests to he served, as between allowing a wit­
ness to be intimidated or harassed, or exempting the wit­
ness from testimonial compulsion. In Havens, supra, the 
court said:

The court should refuse to compel a witness to an­
swer a question which is put for the purpose of har­
assing him rather than testing his credibility. The 
foregoing questions were so apparently for the pur­
pose of humiliating or harassing the witness, rather 
than for the purpose of impeachment, that the court 
properly exercised his discretion in refusing to per­
mit the witness to answer. Havens v. State, supra, at 
815.®

The Alabama legislature has erected protections around 
the witness to support the same policy. Alabama Code, 
Title 7, §442 (1958) reads:

It is the right of the witness to be protected from 
improper questions and from harsh or insulting de­
meanor.

This case does not present the often difficult question 
posed by Fifth Amendment or First Amendment claims of 
privilege, for in those cases if the claim is upheld, the court 
will be deprived of evidence which may lead to ascertaining 
the truth. In other words, in those cases it is held, in 9

9 These considerations have a general importance in the admin­
istration of justice in that potential witnesses often walk away 
from a situation concerning which they may be called to testify, 
and potential litigants forego rights because going to court involves 
the possibility of harassment and abuse. See: Wigmore on Evi­
dence, §2192, p. 67.



19

effect, that the social interest in protecting the witness 
is greater than the interest in learning the facts. See 
Wigmore on Evidence, §2196, p. 111. In this case the 
truth can he secured by forbidding racial abuse of the 
witness. But racial abuse of the witness cannot be stopped 
except by following the course which Miss Hamilton under­
took in this case and by reversing the conviction of con­
tempt.

II. The failure to afford petitioner notice and a hearing be­
fore punishing her for contempt was a denial of due 
process of law.

The Supreme Court of Alabama held:
Here, the question was a lawful one and the witness 
invoked no valid legal exemption to support her re­
fusal to answer it . . . [T]he record supports the 
summary punishment inflicted (E. 7).

The juxtaposition of these two sentences illumines the 
fundamental procedural unfairness of petitioner’s con­
viction.

It is true that petitioner was summarily convicted.
It is also true that petitioner was given no reasonable 

opportunity to prepare and present a defense invoking a 
“valid legal exemption to support her refusal to answer.” 
Her lawyer was given no opportunity to consult with her, 
no opportunity to prepare a defense, no opportunity to call 
witnesses, introduce evidence or otherwise present a de­
fense. In fact, the petitioner’s attorney attempted to speak 
but the court disregarded him and imposed sentence im­
mediately upon the petitioner’s refusal to answer (E. 2).

This failure to provide her an opportunity to present a 
defense and to invoke a state or federal “exemption” was 
a denial of due process of law.



20

A person’s right to a reasonable opportunity to be heard 
in his defense is basic in our system of jurisprudence. 
Except for a narrowly limited category of contempts, due 
process of law requires that one charged with contempt 
of court be advised of the charges against him, have a 
reasonable opportunity to meet them by way of defense or 
explanation, and have a chance to testify and call other 
witnesses in his behalf.

It is true that courts have long exercised a powrer sum­
marily to punish certain conduct committed in open court 
without notice, testimony or hearing. Ex parte Terry, 128 
U. S. 289. But the holding in the Terry case is not to be 
considered an unlimited abandonment of basic procedural 
safeguards in contempt cases. Special circumstances were 
presented in that case. There Terry assaulted the court 
marshal who was attempting to remove a heckler from the 
courtroom. This violent misconduct occurred under the eye 
of the court and physically disrupted the trial court’s busi­
ness. Under these circumstances, this Court held that the 
judge had power to punish an offender at once, without 
notice and hearing.

That this departure from accepted standards of due 
process was to be limited to cases of court-disrupting 
conduct was re-emphasized in Cooke v. United States, 267 
U. S. 517. The court stressed that the Terry rule reached 
only such conduct as created “an open threat to the orderly 
procedure of the court in such a flagrant defiance of the 
person and presence of the judge before the public [that 
if] not instantly suppressed and punished, demoralization 
of the court’s authority will follow” (267 U. S. at 536).

Re Oliver, 333 U. S. 257, crystallized the rule in this way:
The narrow exception to these due process require­
ments [notice and hearing] includes only charges of



21

misconduct in open court in the presence of the judge 
which disturbs the court’s business, where all of the 
essential elements of the misconduct are under the 
eye of the court, are actually observed by the court, 
and where immediate punishment is essential to pre­
vent “demoralization of the court’s authority before 
the public.” 333 U. S. at 275.

In Oliver, a Michigan judge, conducting a “one-man 
grand jury” investigation in accordance with statutory 
authority, summarily adjudged Oliver, a witness before 
the “grand jury”, to be in contempt of court because of 
the apparent inconsistency of his testimony with that of 
other witnesses. This Court held that the failure to afford 
Oliver a reasonable opportunity to defend himself against 
the charge of false and evasive swearing was a denial of 
due process of law.

More recently, in Be Green, 369 U. S. 689, this Court 
said, reversing an Ohio contempt conviction for lack of a 
hearing:

We said in Ee Oliver, 333 U. S. 257, 275, 92 L. ed. 682, 
695, 68 S. Ct. 499, that procedural due process “re­
quires that one charged with contempt of court be 
advised of the charges against him, have a reasonable 
opportunity to meet them by way of defense or ex­
planation, have the right to be represented by coun­
sel, and have a chance to testify and call other wit­
nesses in his behalf, either by way of defense or ex­
planation.”
Petitioner was guilty of no misconduct that fell within 
the category of acts which constitute contempt in 
open court, where immediate punishment is neces­
sary to prevent “demoralization of the court’s author­
ity” (id. 333 U. S. at 275) or the other types of eon-



22

tempt considered in Brown v. United States, 359 U. S. 
41, 3 L. ed. 2d 609, 79 S. Ct. 539 (369 U. S. at 691-92).

To sum up, the test which this Court has promulgated 
is that summary convictions will only be permitted when 
essential to prevent “demoralization of the court's au­
thority before the public.”

Such a case is not presented by disobedience of a judge’s 
order to answer questions, such as occurred here.

A refusal to answer questions may be privileged, either 
as a matter of state or federal law. Put another way, one 
of the essential elements of misconduct arising out of a 
refusal to answer is that the refusal be without justifica­
tion. Thus, a refusal to answer does not present a case 
“where all the essential elements of the misconduct are 
under the eye of the court.” 10

This proposition leads to a more central one. Simply 
stated, permitting a witness to be heard in his own defense 
does not demoralize the court’s authority; rather, it ren­
ders that court more worthy of respect. This simple yet 
fundamental proposition apparently impelled Mr. Justice 
Black to caution in Re Oliver, supra:

The right to be heard in open court before one is 
condemned is too valuable to be set aside under the 
guise of “demoralization of the court’s authority.” 
333 U. S. at 278.

10 Another case where all the essential elements of the miscon­
duct are not under the eye of the Court is where insanity is prop­
erly interposable as a defense against a charge of contemptuous 
misconduct. This was illustrated in the federal system by the case 
of Panico v. United States, 375 U. S. 29. There, this Court held 
that summary punishment could not be imposed for undisputedly 
contemptuous misconduct in open court if some question existed 
as to sanity of the putative eontemnor.



23

The guarantees of the due process clause, as we have 
seen, may only be curbed through imperative necessity.11 
Such necessity did not exist in this case. Petitioner’s re­
fusal to answer did not require instant punishment. Her 
attempt to justify her refusal to answer did not require 
instant suppression. Her case does require reaffirmation 
of the traditional constitutional right to notice and a 
hearing before imposition of a jail sentence.12

11 What constitutes such necessity in the federal system was 
limned by In Be McConnell, 370 U. S. 230, where it was held un­
warranted to punish by summary proceeding under 18 U. S. C. 
§401 and Federal Rules of Criminal Procedure, Rule 42(a) the 
refusal of counsel to abandon a line of questioning forbidden by 
the judge. There this Court said:

[BJefore the drastic procedures of the summary contempt 
power may be invoked to replace the protections of ordinary 
constitutional procedures there must be an actual obstruction 
of justice . . .

[TJhere was nothing in petitioner’s conduct sufficiently dis­
ruptive of the trial court’s business to be an obstruction of 
justice. It is true that petitioner stated that counsel had a 
right to ask questions that the judge did not want asked and 
that “we propose to do so unless some bailiff stops us.” The 
fact remains, however, that the bailiff never had to interrupt 
the trial by arresting petitioner, for the simple reason that 
after this statement petitioner never did ask any more ques­
tions along the line which the judge had forbidden. And 
we canot agree that a mere statement by a lawyer of his 
intention to press his legal contention until the court has a 
bailiff stop him can amount to an obstruction of justice. . . . 
370 U. S. at 234-236.

12 That this case involves issues of constitutional importance is 
evidenced by the noting of probable jurisdiction in TJngar v. 
Sarafite, 375 U. S. 809 (October 14, 1963), which involves issues 
similar to those presented here.



24

CONCLUSION

For the foregoing reasons it is respectfully submitted 
that the writ of certiorari should be granted.

Respectfully submitted,

J ack Greenberg 
Norman C. A maker 
J ames M. Nabrit, III 
Charles H. J okes, J r.

10 Columbus Circle 
New York 19, New York

Oscar W. Adams, J r.
1630 Fourth Avenue, North 
Birmingham, Alabama

Attorneys for Petitioner



APPENDIX



APPENDIX

September 26,1963

T he State op Alabama—J udicial Department 

T he Supreme Court op Alabama 

Special Term, 1963

7 Div. 621

Ex parte Mary H amilton

PETITION FOR WRIT OF CERTIORARI 
TO ETOWAH CIRCUIT COURT

Merrill, Justice.
Petition for writ of certiorari to the Circuit Court of 

Etowah County to review a conviction of contempt of 
court.

Petitioner, Mary Hamilton, filed a petition for writ of 
habeas corpus in the Circuit Court of Etowah County. 
She was a witness in her own behalf and on cross examina­
tion she refused to answer the third question propounded 
to her. The trial court adjudged her to be in contempt and 
sentenced her to serve five days in jail and fined her $50. 
She has served the jail sentence.

The cross examination of petitioner was as follows:
“Q. What is your name, please! A. Miss Mary 

Hamilton.
Q. Mary, I believe—you were arrested—who were 

you arrested by! A. My name is Miss Hamilton. 
Please address me correctly.

Q. Who were you arrested by, Mary! A. I will not 
answer a question—



26

By Attorney Amaker: The witness’s name is Miss 
Hamilton.

A. —your question until I am addressed correctly.
The Court: Answer the question.
The Witness: I will not answer them unless I am 

addressed correctly.
The Court: You are in contempt of court—
Attorney Conley: Your Honor—your Honor—
The Court: You are in contempt of this court, 

and you are sentenced to five days in jail and a fifty 
dollar fine.”

The power of the several courts to inflict summary 
punishment upon a witness for refusing to answer a lawful 
question is specifically authorized in Tit. 13, §2, Code 1940.

“It is every man’s duty to give testimony before a duly 
constituted tribunal unless he invokes some valid legal 
exemption in withholding it.” Ullmann v. United States, 
350 U. S. 422, 76 S. Ct. 497,100 L. Ed. 511.

Here, the question was a lawful one and the witness in­
voked no valid legal exemption to support her refusal to 
answer it.

The record conclusively shows that petitioner’s name is 
Mary Hamilton, not Miss Mary Hamilton.

Many witnesses are addressed by various titles, but one’s 
own name is an acceptable appellation at law. This practice 
is almost universal in the written opinions of courts.

In the cross examination of witnesses, a wide latitude is 
allowed resting in the sound discretion of the trial court 
and unless the discretion is grossly abused, the ruling of 
the court will not be overturned. Blount County v. Camp­
bell, 268 Ala. 548, 109 So. 2d 678; Kervin v. State, 254 Ala.



27

419, 48 So. 2d 204. We hold that the trial court did not 
abuse its discretion and the record supports the summary 
punishment inflicted.

P etition for W rit of Certiorari Denied.

Lawson, Goodwyn and Harwood, JJ., concur.



28

T he Supreme Court oe Alabama 

Thursday, September 26, 1963

T he Court Met in Special Session 
P ursuant to Adjournment

Present:
Chief Justice L ivingston and 

Associate Justices L awson, S impson, Goodwyn, 
Merrill, Coleman and H arwood

7th Div. 621

Ex parte: 
Mary H amilton,

Petitioner.

PETITION FOE WEIT OF CERTIOBABI 
TO ETOWAH CIRCUIT COURT

Comes the petitioner, by attorneys, and the Petition for 
Writ of Certiorari to the Circuit Court of Etowah County, 
Alabama, being submitted and duly examined and under­
stood by the Court,

I t is considered and ordered that the Petition be, and the 
same and the same, is hereby denied, at the costs of the 
petitioner, for which costs let execution issue.



29

T he Supreme Court oe Alabama 

Thursday, October 31, 1963

T he Court Met P ursuant to A djournment

Present: All the Justices
7th Div. 621

Ex parte:
Mary H amilton,

Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE 
CIRCUIT COURT OF THE SIXTEENTH JUDICIAL 
CIRCUIT OF ALABAMA, ETOWAH COUNTY, 
ALABAMA

(Re: Mary Hamilton vs. State of Alabama) 
Etowah Circuit Court

I t is ordered that the application for rehearing filed on 
October 9, 1963, be and the same is hereby overruled.

No Opinion Written on Rehearing.



â J8^£> 38