“Now, I should like to know,” Cowan continued. “Because I have been puzzled for a long while and have been unable to determine exactly, either from conversation with those who ought to know, who have given this subject their attention, or from the decisions of the Supreme Court, the lines and boundaries which circumscribe that phrase, ‘citizen of the United States.’”
Cowan’s quandary was not addressed, and the next day the Senate approved the amendment by a vote of 32 to 10. Two years later, on July 9, 1868, an amendment to the United States Constitution was ratified that read as follows:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty or property without due process of law, nor deny any person within its jurisdiction the equal protection of the laws.
Had Senator Cowan been more popular, his issue with the amendment’s vague definition of citizenship may have resulted in an entirely different Fourteenth Amendment, one that outlined the status of immigrants and their respective constitutional rights. Instead, Cowan was silenced and the amendment passed, leaving his question to be answered more than a half century later by a man named Earl Brewer, as he fought for one of the most disenfranchised of citizens, the nine-year-old daughter of Chinese immigrants.
Earl Brewer poured himself a glass of milk. A curl of smoke issued from the stub of a cigar in an ashtray on the desk in front of him. Brewer rarely wrote down early drafts of his arguments or speeches, preferring instead to sort out the words by talking to himself. His voice was low and gruff and hardly carried above a whisper. He told his colleagues it was because he wanted to save all his bellowing for the courtroom. In reality, a doctor in Memphis told Brewer his throat was as tanned as leather. The smoking had taken its toll.
Sometimes when Brewer struggled with stringing words together, he left the confines of his office and made his way down Second Street, crossing the bridge over the Sunflower River, and headed north along Oakhurst Avenue toward the Oakridge Cemetery. It was there, pacing back and forth between the rows of headstones, that Brewer could gather his thoughts.
The case, he decided, should begin with Martha. The entire suit depended on the character of the child. She was an exemplary student and of pure Chinese descent, no mixed blood. Brewer had to make her seem just like any other white child in the state. He had to humanize her.
Martha Lum is of good moral character and is a good, clean, moral girl between the ages of five and twenty-one years and a native born citizen of the United States and the State of Mississippi, and that as such citizen and educable child it becomes her father’s duty under the law to send her to school. And that she is an educable child of the said district and desires to attend the Rosedale Consolidated High School.
Brewer’s long stride slowed when he was deep in thought. The residents along Oakhurst Avenue had grown accustomed to seeing the large man treading through the town’s burial grounds, muttering in a half-audible drone. One by one, he passed the grave markers, the procession of lives once lived in Clarksdale: To the memory of my husband, Rev R. P. Mitchell, whose body now sleeps in the cemetery . . . Here lies Frank N. Alford. Corp. in U.S. Army . . . Our baby, Bertha A. Prichard, blessed are the pure in heart . . . Finally, Brewer came to the wide block letters etched into marble on a headstone on the north side of the cemetery, a life he knew better than all the rest.
MOTHER. MARY ELIZABETH BREWER. BORN SEPT. 27, 1841. DIED JAN. 14, 1920.
A lifetime had passed since Brewer had toiled in the fields beside his mother, but he had always stayed fast to his principles as the world changed around him. His country now dreamed of the fast life, propelled by celebrity, riches, and cosmopolitan ideals. His three little girls were now rouged young women, who bobbed their hair, drank, and danced to jazz music. He still advocated for progressive reform, but his policies were now branded Bolshevism, as newspapers and politicians traded on Americans’ fears that the communist revolution in Russia would spread to the United States. He watched as his old colleagues fanned the flames of postwar nationalism, promoting the rise of nativism and violent hostility toward immigrants, blacks, Catholics, and Jews. All across the country, the ranks of a reawakened Ku Klux Klan surged to five million strong, capitalizing on national anxieties about threats to true Americanism.
In the fall of 1924, at the very moment Brewer decided to represent the Lum family, the KKK was at the height of its power, a potent force in both local and national politics. The year had been a triumphant one for the Klan, culminating in the recent passage of the Johnson-Reed Act. Its restrictive immigration quotas had codified the very nativism they espoused. With the rise of such extremism, there was no use for Brewer to retain any of his old political ties. Earl Brewer the politician was dead, but Earl Brewer the crusader was just coming to life.
She is advised that notification had been issued by Mr. W. F. Bond, State Superintendent of Education of the State of Mississippi, to the superintendent, Mr. J. H. Nutt, and to the Board of Trustees, whose names are above set forth, to deny her this right solely and exclusively on the ground that she is of Chinese descent, and she is therefore discriminated against directly and denied the valuable right and privilege which she is entitled to, as a citizen of the State of Mississippi, on account of her race.
This case, unlike Brewer’s previous cases, would have to hinge almost exclusively on the Fourteenth Amendment. While the original intention of the amendment was to guarantee freed slaves the “privileges and immunities” of citizenship and “equal protection of the law,” Brewer expanded its definition to include children of immigrants. Taking the argument a step further, he established that Martha’s right to attend school was also guaranteed by Mississippi’s constitution.
According to the state’s compulsory-education law, it was illegal for a child between the ages of five and eighteen to be kept from school. When Martha was barred from Rosedale High, Brewer contended that she was in fact denied her constitutional right as an American and a Mississippian.
Said consolidated high school, is denying her, a native born resident citizen of the United States and the State of Mississippi, the privileges and immunities of her citizenship. . . . On account of her race or descent she is being denied the equal protection of the law, and contrary to the provisions of the constitution of the United States. . . . Your petitioners are entitled to have a writ of mandamus issued from this Court commanding the defendants and each of them to admit the said Martha Lum into the said school as a pupil and to desist from discriminating against her on account of her race or ancestry, and to accord to her the same rights and privileges accorded to other educable children.
Whether Brewer was ready or not, he would have to file the case quickly. September was drawing to a close and the court went into recess in October. Under pressure to file a case that Brewer so desperately needed to win, he was not going to be able to craft the perfect argument nor shape his sentences into perfect prose. Whatever draft Brewer had by Sunday evening was going to have to be good enough to bring to court on Monday. Where there wasn’t perfection, there was prayer.
Now that the scaffolding had been removed from the Bolivar County courthouse, Brewer could see where five giant slabs of limestone formed gleaming steps that sprawled nearly the entire front facade of the building. Recently renovated in polished granite and sandstone, Rosedale’s courthouse was untouched by the grit of the town that was designed around it. At right angles to the limestone stairs were twin cement blocks. Each served as the base for a shining white column, which supported an ornate cornice that circled the roof.
Carrying five recently typed pages, Brewer entered through two large wooden doors and turned right. The fresh scent of pine stain drifted from pores in the timber and followed Brewer into a wide hallway th
at encircled a central courtroom. Brewer had argued cases in the old courthouse many times, but the fresh paint and sparkling floors of the new building appeared foreign to him. His heavy footsteps made a muffled echo against the tall wooden walls of the corridor.
Brewer walked down the hall to the second door on the right, the county clerk’s office. Charles Jacobs, the county clerk, was a deeply religious man. He and his wife were founding members of the Bolivar County Calvary Episcopal Church, which had no actual church building, so they held services in a different public space every Sunday. Jacobs took the pages from the lawyer’s hands. Peering over stacks of red-bound docket books scattered around the office, Brewer watched his words become legal record to the clatter of Jacobs’s typewriter.
The clerk collected the papers in a folder and passed it to Brewer for his signature. Jacobs then took the file from Brewer and added his own seal. Brewer paid the clerk five dollars as an advance to the county sheriff, who would require payment for delivering summonses to school board members L. C. Brown, G. P. Rice, and Henry McGowen. With Brewer’s deposit, Jacobs filed the petition and Brewer exited down the hallway and out the large wooden doors. Now all he could do was wait.
When Brewer’s daughters were young, he used to tell them stories. Not one for fairy tales, he would regale the three girls with stories from his youth on the farm, and from the early days of his law practice in Water Valley, and the old jokes he used to share with his brother Claude. Every now and then, when the mood was right, Brewer would tell the story of his hero, a Scottish general from the great Wars of the Three Kingdoms, a man named James Graham, the Marquess of Montrose.
During the middle of the seventeenth century, a youthful James Graham was named lieutenant-governor of Scotland and captain-general of its military. His first mission was to build up the Scottish army, so he set out to gather men and supplies for the war against England. James Graham traveled far and wide, taking long trips across Europe to Denmark, Sweden, and Poland. But in the end his travels proved fruitless. The young general found two supporters, the King of Denmark and Queen Christina of Sweden, who offered him little more than encouragement.
Upon his return to Scotland, James Graham knew he did not have nearly enough men or supplies to sustain an army. Still, in April of 1650, against all reason, he mounted a battle against the British. Preparing his ranks for war, he ordered the words Nil Medium inscribed on his army’s banners: “There is no middle way.” As Graham’s men marched onto the battlefield, their entire force was cut to pieces. General Graham was quickly captured by British forces, taken to Edinburgh, and condemned to death.
On May 21, 1650, James Graham, the Marquess of Montrose, took his last breaths in front of the rickety wooden gallows erected on High Street, on the east side of the Market Cross. As the executioner strapped the noose around the condemned man’s head, he paused to string the general’s biography across his chest. A minute later, Graham was hanged, his own life story dangling from his broken neck. The general’s body was dragged from the gallows and torn to pieces by the crowd.
It was said that before entering that fateful April battle, James Graham wrote a poem to a distant lover. Centuries later, as if speaking for his own Scottish ancestors, Brewer recounted its lines: “He either fears his fate too much or his portion is but small, who dares to put it to the touch and win or lose it all.”
CHAPTER VI
AUTUMN, 1924
EARL BREWER THUMBED THROUGH the stack of Saturday papers scattered across his dining room table. On weekends, after pulling himself from bed, Brewer spent his mornings riffling through the various editions of Delta newspapers. When his daughters were at home, they used to request he read the articles aloud. Now Brewer simply sat by himself, remarking on the assortment of local controversies to no one in particular.
About halfway through the Bolivar County Democrat, a blunt headline glared back from the page: CHINESE BARRED FROM ROSEDALE SCHOOLS. It had been less than a week since Brewer delivered the writ of mandamus to the Bolivar courthouse, and already the county was up in arms. News traveled quickly for such a slow-going town.
“A test case will be tried so as to settle the status of the Chinese as to school rights,” the article read.
It is also stated, and we believe it true, that Ex-Governor Earl Brewer will espouse the cause of the Chinese in the controversy. This [is] fit and proper. A man who could not carry a single precinct in the State in his alleged race for Senator is surely the right man to try to force the white children of Mississippi to share their schools with the Chinese. And he will come as near to winning his case in court as he did being nominated for Senator at the primary election in August.
Fit and proper. A man who could not carry a single precinct in the State . . . The editor had nerve. To his credit, he was right. Brewer was precisely the “fit and proper” lawyer to take such a controversial case. The very fact that he lost the Senate race was motivation enough to bring such a fight against the county. If the Democrat thought that Brewer was going to recede into the shadows and wallow in his own defeat, they had the wrong man. Already a pariah, Brewer had not a shred of dignity left to destroy. He feared nothing because he had nothing—and in this way he was stronger than he had ever been.
On Monday, October 13, 1924, the rival Clarksdale Register published a response to the Democrat. Written by a young law student from Rosedale named Greek Rice Jr. and his classmate, I. J. Brocato, the editorial denounced the paper for its “malicious attack” on Brewer.
“You, as well as any other, and every citizen of the United States,” they wrote, “have sworn, in every particular to uphold and sustain the constitution. This you have entirely and wholly failed to do, when you attempt to deprive and deny the Chinese, or any race or people under God’s sun, the inherent right of equal and competent representation in any tribunal in the land.”
They wrote that although they were also of the mind-set that Chinese should not attend white schools, every man had the right to a lawyer. If Brewer was going to be so bold as to file the suit, it was his professional prerogative.
There was an irony to the fact that Greek Rice Jr. was the man to defend Brewer from such an “unethical and unprincipled attack.” Two days after Greek’s article was published, the Bolivar County sheriff delivered summonses to his father, Greek Rice Sr., as well as L. C. Brown and Henry McGowen. They were charged with violating the constitutional rights of nine-year-old Martha Lum and ordered to appear at Rosedale’s courthouse on November 5 for trial.
Setting the date for November was strategic. The judiciary would be in recess and would stay so until the end of the year. The Bolivar County judge was under no obligation to rule on the case until the court resumed session. Without a judge, the school board could delay the trial indefinitely. But on October 28, the Bolivar County court issued a notice that Judge William A. Alcorn of Coahoma County had agreed to take the case, despite the fact that court was not in session.
“The said cause shall be tried in vacation as in term time,” read an announcement issued by Rosedale’s first district court. “Judgments shall be entered therein in vacation as could be entered in term time.”
While there is no record of any private conversation between Earl Brewer and the judge from his home district, it is likely Brewer had something to do with the fact that Alcorn decided to hear the case. Both men attended the same Presbyterian church in Clarksdale. They both began their public legal careers together in Mississippi’s Eleventh District Court, and it was there they remained, aging into the twilight of their lives together.
Despite years of friendship, for Alcorn to assist Brewer by agreeing to hear the case, he was committing political suicide. Any other judge would have politely declined, using the excuse that the court was not in session. In doing so, he would avoid jeopardizing the support of the town’s white electorate while still saving face with the local Chinese. There was no logical reason for why William Alcorn risked his entire career to hear a
case he could have so easily ignored, but that is because Alcorn’s reasoning had nothing to do with logic. It had all to do with history.
Born William Aristides Alcorn Jr. on October 20, 1868, the boy who would one day become a judge came into the world during the worst year of his father’s short life. The first child of George and Mary Alcorn, young William, or Willie as he was called by his father, was burdened from birth as being the only glimmer of hope in a family devastated by war. The Alcorns of Friar’s Point were once slaveholding planters, controlling great tracts of fertile cottonland in the Mississippi Delta. By the time William was born, the tables had turned and the Alcorns were vilified enemies of the Confederacy.
William’s father, George Alcorn, and George’s older brother, William Aristides, first moved to the Delta during the outbreak of the Civil War in April 1861. As Confederate troops opened fire on Fort Sumter, the two boys left Kentucky, the only home they had ever known, to live with their father, Randolph Alcorn, on his plantation at Friar’s Point. Their uncle, James Alcorn, journeyed with them from the farmlands of Kentucky into the wilds of Mississippi.
“My uncle [brought us] to the Delta that day,” William Aristides later wrote. “He led a horse with a side saddle on. My sister rode the horse . . . and I rode behind my uncle on his horse.”
Uncle James had only one son, James Lusk, who also lived at a plantation on Friar’s Point. In fact, it was James Lusk who was responsible for bringing the entire Alcorn family to the Delta—and it would be James Lusk who would come near to having the family exiled.
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