My Face Is Black Is True

by Mary Frances Berry

  Instead of accepting the jury verdict, Judge John Ethridge McCall, who presided over the case, ordered a new trial. McCall appeared as uneasy as Fisher about the government prosecution of a lawyer on such a minor charge while the lawyer was suing the government in the underlying matter of the tax case then before the U.S. Supreme Court. McCall cared about the reputation of the judicial branch. A sixty-year-old Republican and native Tennessean, he attended the University of Tennessee and read law. After admission to the bar he began editing a newspaper, The Tennessee Republican. He savored the reputation of having “distinguished himself as a fearless fighter for principles which he believed to be right.” He also practiced law privately for about two years and served one two-year term in the state legislature before accepting a succession of political posts. He served as U.S. attorney, one term as a member of Congress, and ran unsuccessfully for governor in 1900. President McKinley had appointed McCall as a district collector of internal revenue before President Theodore Roosevelt nominated him to the district court. According to the Memphis Commercial Appeal, locals saw him as “a courageous foe of the liquor traffic back in the days when it required courage to take a stand against the system. He fought the liquor interests from the platform with great effectiveness and many Memphians will remember his forensic assaults here 15 years ago during the wide-open regime.” He thought it important that his behavior at all times reinforce public confidence in the integrity of the court.22

  Thus McCall was reluctant to accept a conviction, and in the next term U.S. Attorney Fisher decided not to prosecute the case further. Jones’s reputation and connections served him well. Each time Fisher had moved forward with the prosecution, a number of respectable African-American witnesses had gathered in Memphis to testify for Jones, including Calvin Chase of the Washington Bee and the Washington, D.C., justice of the peace Emanuel Hewlett. Their support, naturally, contrasted sharply with the negative racial tone of reports in the local Memphis Commercial Appeal. One article began, “The members of the race have been prone from time immemorial to strive to get something for nothing.” Now the government had charged Jones with “fleecing thousands of the members of his race out of hard earned dollars.” If he had confined his efforts to personal appeals, the newspaper concluded, Jones might have escaped, but the letter writing had sent the postal authorities after him. The newspaper likened Jones and Mrs. House’s suit to stories Harris Dickson of Vicksburg wrote regularly in The Saturday Evening Post that portrayed his belief in the stupidity, laziness, dishonesty, and childlike behavior of “big, black, credulous” African Americans. According to the Commercial Appeal, Dickson’s work included a series of “negro get-rich-quick schemes revolving about one Rev. Criddle and Virgil Custard” that “rocked the sides of readers of a well known publication for many a month.”23

  The Memphis Commercial Appeal of January 18, 1917, reported the first delay in the prosecution with a headline saying that Jones had been “Released but Warned.” The newspaper inadvertently gave evidence of the grassroots support for the movement, reporting that the ex-slave pension cause had become quite popular, with huge numbers of African Americans turning out for meetings. In Canton, Mississippi, in September 1916, masses gathered to hear Jones who composed a song for the occasion and sold copies for five cents each to support the cause. “Every emotion, which would stir the negro soul, was brought out in the several stanzas and chorus contained within the covers of the little pamphlet.” Under the title “Voices from the Tomb of the Slaves,” the first stanza expressed the mission of the ex-slave movement:

  Do you hear those voices calling

  From their lone and musty graves

  Urging us to note the toilings

  Of the poor neglected slaves?

  Despite the hostile press, the government’s final decision not to prosecute Jones ended the matter. The lawyers involved survived the experience and even prospered. Hubert Fisher’s reputation remained intact; elected and reelected, he served in Congress from 1917 to 1931. Despite the Post Office Department’s threats to pursue Jones, no record has surfaced of any further prosecution of Jones in the Southern District of Alabama or elsewhere. The Washington Bee reported in 1920 that Jones, described as chief counsel of the cotton case, wanted to revive the issue of a home for ex-slaves in the District of Columbia. He also participated in subsequent litigation against segregated schools in Oklahoma.24

  The effort to gain pensions had failed again, but Callie House had been correct in her belief that the litigation would help to grow the movement. Ex-slaves were even more firmly convinced that they should continue to gather petitions seeking pensions and to continue to strengthen the Association’s local chapters. In addition, the cause gained favorable publicity among African-American leaders based on Jones’s respectable reputation. Because he was a successful male professional, blacks applauded his leadership role. With the failure of the litigation, the movement again concentrated on pursuing legislation.

  However, there was still another case under way as the government was prosecuting Jones and as he pursued an appeal to the Supreme Court in the cotton tax case. At the same time that the government decided to prosecute Jones they also decided to bring charges against Callie House. Mrs. House lacked Jones’s status of black male respectability, and she did not have his legal standing as attorney representing a client in a case before the federal courts. Mrs. House was just a black woman with the audacity—and no money—to stand firmly on claims of citizenship rights for herself and freedmen and-women. She had much to fear.

  CHAPTER 8

  Jailed for Justice

  [I]f the government were to punish all those who use the mails to defraud, it would round up those energetic business men who flood the mails with promises to give eternal youth and beauty to aging fat matrons, to make Carusos and Galli Curcis of members of church choirs, and to make masterminds of morons.

  E. FRANKLIN FRAZIER

  (1926)

  WHILE CALLIE HOUSE REJOICED over the positive effect the cotton tax court fight had on the grassroots ex-slave pension movement, federal government officials saw the matter differently. In their view, the cotton tax suit was further evidence of Mrs. House’s arrogance and refusal to submit. At this point, the broad public was concentrating on “the War to End all Wars,” in which Jim Crowed African Americans served. Blacks at home remained economically deprived and subject to lynching and disfranchisement, and in the midst of all this Mrs. House struggled to keep the ex-slave pension movement alive. But government officials by now had decided to stop the movement once and for all. They would break her spirit and end her defiance and the pension cause. They would jail Callie House.1

  Even in the face of this climactic attack, African-American newspapers and civil rights leaders still did not speak out to aid or defend Mrs. House or the pension movement. African-American leaders’ praise was limited to Cornelius Jones; it did not extend to his clients, the ex-slaves. And the endorsement of the reparations effort by a credible star did not translate into increased acceptability for the movement.2

  Perhaps the unusual nature of Mrs. House’s role as a leader of the association undermined the group’s acceptance. There had been militant organizations of black women before. As early as 1866, laundresses in Jackson, Mississippi, announced a collective agreement to maintain prices of $1.50 a week and $15 a month for a family’s washing. Eleven years later, women in Galveston, Texas, organized when threatened by Chinese laundries and steam laundries. In 1881, in Atlanta, washerwomen struck, joined by cooks, nurses, and servants. Like these women Callie House was also a laundress and seamstress, and she, too, was poorly educated and working class. Unlike them, however, Mrs. House became the leader of a membership organization of black men and women, one not defined by occupation but an explicit political cause.3

  In addition, she was a single head of household, a widow with children. Mrs. House went when and where she pleased to advocate the pension cause, and seemed oblivious to criti
cism. Perhaps her lack of what Melinda Chateauvert and Evelyn Brooks-Higginbotham describe as “respectability” in the education and gendered manners displayed by middle-class contemporaries did not help. However, so-called respectability did not always suffice, as Ida Wells-Barnett, a leader of antilynching campaigns, learned when the founders of the NAACP in 1908 studiously failed to include her. Mary White Ovington, the only woman among the five charter members (which included only one African American, W.E. B. Du Bois), wrote later that Wells-Barnett was a “powerful” personality, “Perhaps not suited to the restraints of organization.” Perhaps, the acknowledged power and influence of Booker T. Washington over everything concerning African Americans played a role in Mrs. House’s isolation. Washington opposed the pension movement as undermining his accommodationist, up-by-the-bootstraps philosophy. Perhaps, independently, African-American leaders and newspapers simply believed the federal government’s claims that the entire pension movement was misguided and probably crooked besides.4

  For whatever reasons, African-American leaders uttered no objections when in February 1916, federal prosecutors used the strategy they had practiced against Jones. Instead of relying on fraud orders to strangle the movement, they decided to prosecute Callie House. Essentially the government punished her for exercising her constitutional right to petition the government and teach the other ex-slaves to do so. Mrs. House, like Cornelius Jones, was charged with obtaining money or property by false or fraudulent pretenses or promises, by “placing or causing to be placed, any letter…in any post office.” She had, in the government prosecutors’ view, used the mails to promise that which the postmaster considered impossible to perform and which she had no intention of performing. Using the mails to defraud exacted a penalty of $1,000 or imprisonment for not more than five years or both. Callie House and the association saw the freedpeople as victims of slavery whose exploitation needed reparation. Federal officials also characterized ex-slaves as victimized—but by the ex-slave pension movement.5

  However, federal officials still had no evidence that House actually intended to obtain funds by claiming Congress had passed a pension bill or that she had assured payment to the exslaves. Then, in February 1916, Alexander Pitts, the U.S. attorney in Mobile, Alabama, suggested to the Justice Department that the newer modified fraud law language could possibly be used to prosecute Mrs. House. This, federal officials reasoned, would kill the association once and for all.6

  Postmaster General Albert Sidney Burleson, a former Texas congressman appointed by President Wilson, agreed. Burleson wrote Attorney General Thomas Gregory that the association had been “investigated for years and now was the time to get an indictment in order to close the case.” He ordered the U.S. attorney in Nashville, Lee Douglas, to investigate and to prepare indictments in the case. He also ordered Mrs. House and other association officers arrested. Burleson calculated that the arrests would lead to some confessions and this would place the government in the advantageous position of not having to prove a violation. Douglas had no qualms about violating House’s citizenship rights. He believed she was automatically guilty because the movement’s cause was impossible. In the charges he included the unfounded, unsupported assertion of his belief that “most, if not all, of the profits of this scheme have been collected and converted by Callie House.”7

  Douglas presented the case against House to a federal grand jury in Nashville in March 1916. As before, he claimed she had collected dues and fees knowing that pensions would never be awarded. He introduced no evidence of her wealth or income and nothing on the association’s expenditures for lobbying efforts, its lawsuit, officers’ salaries, or locally funded burials and medical care. Essentially, he simply speculated that Mrs. House had used organizational funds for herself. Three months later, the all-white, male grand jury returned an indictment charging House with violating the postal laws of the United States. The indictment charged her with obtaining money from a number of ex-slaves “by means of false and fraudulent pretenses” sent through the mails of the United States. Callie House, individually and in conspiracy with others in the organization, according to the indictment, had acted to obtain money from “ignorant, illiterate, aged, and credulous” freed-men, by means of false and fraudulent pretenses. House had sent through the mails the Association’s printed matter that used a “descriptive insignia” that could appear to “ignorant, illiterate” African Americans to represent a connection to the U.S. government, according to the charges.

  The indictment alleged that Mrs. House had guaranteed the payment of pensions and promised that holders of certificates issued by the Association would be paid before non-certificate holders. The indictment identified no one who had actually been victimized by the association’s alleged fraudulent scheme. Instead, the government charged that Mrs. House had mailed a misleading circular to Mrs. Alice Williams, a black woman, at the Hotel Imperial in Knoxville, Tennessee. The supposedly misleading circular contained an eagle in the upper-left-hand corner but included nothing regarding a forthcoming federal pension payment. Apparently, by federal standards the condemning words from Mrs. House were that “the national convention was represented from every section of the government by delegates and many proxies.”8

  In preparation for the trial, U.S. attorney Douglas used photographic copies of House’s handwriting to compare it with other Association materials. The Association’s membership badge also became evidence. This badge consisted “of a scroll from which is suspended a crescent upon which is the legend National Ex-Slave Mutual Relief, Bounty and Pension Assn.” A star within the crescent read “of the U.S.A.” Projecting the worst possible interpretation of Mrs. House’s actions, Douglas described the use of patriotic symbols to represent the organization as a means of fooling a largely illiterate membership.

  The official badge of the association. It was cited by the prosecution against House as misleading members into thinking the group was an official government body because of its design containing the words “of the U.S.A.”

  The complaint seemed to suggest that the government was unaware that national political parties and other organizations routinely used the American eagle on promotional literature.9

  On Thursday afternoon, August 3,1916, Deputy U.S. Marshal James M. Southall arrested Callie House at her home in South Nashville. The Tennessee American, in reporting the arrest, described her as “a dusky woman of ample avoirdupois.” In addition to noting Mrs. House’s weight, the paper invoked from the grave the judgment of the Wizard of Tuskegee against her, surmising, “It is said the organization was denounced by Booker T. Washington a short time before his death.”10

  If House had enriched herself by collecting thousands of hard-earned dollars from the old ex-slaves, her lifestyle showed no signs of it. Her family still lived in the same house in the same poor working-class neighborhood she had lived in since coming to Nashville. The Association had to scrape together resources to pay her travel expenses, and her grown children worked as laborers, pressers, servants, or taking in laundry. After Mrs. House had spent two weeks in jail, her son, Thomas House, persuaded a local pawnbroker and bondsman to post her $3,000 bond. U.S. District Judge Edward T. Sanford set a trial date in September 1916.11

  In the days leading up to the trial, House hired H. P. Stephens, a local white attorney, to defend her. Prosecutor Douglas exulted to his superiors that this was good news. He thought Stephens had persuaded her to enter a guilty plea in exchange for a light sentence. Stephens, who had represented Callie House for some years with federal investigators, knew that long ago they had determined to punish her and that no amount of information concerning the legality of association activities would dissuade the government from its attack. Apparently this was enough for those who had dealt with Stephens to assume he would advise her to plea bargain. Prosecutor Douglas, certain of her acceptance, told various postal and pension officials that they would not have to appear in court.12

  However, the government’s plans
went awry. If Stephens did urge Mrs. House to plead guilty in exchange for a light sentence, it was to no avail. When House stood before Judge San-ford, she denied the charges against her. Douglas angrily reported to his superiors in Washington that she “denied any moral turpitude.” Judge Sanford seemed to believe that she was puzzled about the actual stages of congressional action. Callie House asserted that “she was merely rendering a service to the negroes in making it possible with little effort to secure the money the Congress had appropriated for them.” Since she denied any guilt, Judge Sanford rejected the attorneys’ statements that she wished to plead guilty and ordered her placed on trial.13

  In his eagerness to put Mrs. House away, Douglas did not reckon on her independence or Judge Sanford’s predilections. Edward T. Sanford, later an associate justice of the U.S. Supreme Court from 1923 to 1930, is remembered, if at all, for his majority opinion in the 1925 case Gitlow v. United States. This First Amendment case was the first to apply one of the guarantees of the Bill of Rights to the states. Sanford saw himself as a benevolent judge who overtly tried to act with scrupulous fairness no matter the status of the client. He gloried in being called the most impartial judge in the South.14

  Like other federal judges, Sanford came from an upper-middle-class background. Born in Knoxville, Tennessee, on July 23, 1865, he had the best education available. He went to private schools, the University of Tennessee, Harvard College, and Harvard Law School, where he served as editor of the Harvard Law Review. After some years of corporate practice, in 1905 he agreed to serve as an assistant attorney general in the U.S. Justice Department, litigating major cases.15