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Oral history interview with McNeill Smith by Kevin Costello


Date: January 3, 1987

Interviewee: John McNeill Smith, Jr.

Biographical abstract: John McNiell Smith, Jr. (1918- ) practiced law in Greensboro from 1945 to 1998 and served in the NC House and Senate from 1970-1978.

Interviewer: Kevin Costello

Description:

In this transcript of a January 3, 1987, oral history interview conducted by Kevin Costello with McNeill Smith, Smith recalls the unique history and race relation of his hometown of Robeson County, NC, and details his work with the United World Federalist Movement and NC Civil Rights Advisory Commission. He also discusses at length North Carolina’s progressive history in regards to civil and human rights case law..

Subjects:

Format of original: Oral History

Collection: GreensboroVOICES Collection

Repository: The University of North Carolina at Greensboro

Item#: 1.10.577

Rights: It is responsibility of the user to follow the copyright law of the United States (Title 17, U.S. Code). Materials are not to be reproduced in published works without written consent, and any use should credit Civil Rights Greensboro and the appropriate repository.



Oral history interview with McNeill Smith by Kevin Costello

[Begin Tape 1, Side A]

KEVIN COSTELLO:

This is January third and I'm with McNeill Smith.

[recording paused]

KC:

—is your recollections of, I guess we could start with growing up. Did you grow up in Greensboro?

MCNEILL SMITH:

No.

KC:

Did you grow up in the South?

MS:

Yes.

KC:

Okay. I'd be interested to know what your recollections are growing up—exposure to blacks, et cetera.

MS:

You view this as an inquiry about blacks or whites? Relations to blacks?

KC:

Yes. Yeah. Well, no, exposure, your relations with them, certainly, not that that is any generalization, but just a recollection.

MS:

So this is really not a constitutional law inquiry as much as an interview about what was my own experience with different races? Well, I grew up in Robeson County, which is down in eastern North Carolina, southeast. We had four school system based on race. We had white schools, Negro schools, Indian schools, and a class shown by the State Superintendent of Public Instruction as “other”. But in our county it was the Smiling's School. That grew to about a hundred people that had their own separate school.

They had three different entrances to movie houses. Actually, when I was very small we had no movie at all in the town I lived in. You had to go to Dillon, which is in South Carolina, nine miles away, to the movies. We had separate barbershops, although the best barbers were blacks sometimes, but they were serving only whites. And of course, very segregated churches, separate churches for whites, not just denominational separation but racial.

And there were in that county, in that area, from the very earliest times, back in the eighteenth century, church services were given in four different languages in the white churches. So you had not only the racial difference, but you had language differences. You had—the services would be given at Ashpole [Presbyterian] Church, which was in Rowland, in French for the Huguenots; they'd been run out by Catholics in France. They had Indian, another service in Indian. They had Gaelic and that was for the Scots. And English. That would make four. So the area I grew up in was very rich in diversity of language and, and race.

The Indians were concentrated largely around a place called “Scuffletown,” which is known as Pembroke. And they were not called Indians so much as they were called Croatans, because they had a legend of being the descendents of the Lost Colony [of Roanoke]. And in the period 1865 to 1875, there was a revolt by the Indians, led largely by a man named Henry Berry Lowry [or Lowrie]. Many plays had been written about the Scuffletown outlaws. Paul Green wrote one [The Last of the Lowries]. Bill Norment [Cox] from Rowland, who was at one time the sports editor of the Greensboro Daily News and then he later was editor of the Norfolk, Virginia, Pilot, wrote a very fine play, probably as good or better than Green's. And then there was another one by a man named Scott, I believe, in the, in the 1940s about the guerilla warfare that went on, because the Indians or Croatans—incidentally, they don't like to be called that now. They got the legislature to pass a law to call them Lumbee. And I'm quoting this because you asked me how I grew up and what I knew when I grew up.

Now the Croatans were thought to be dying out when I was very little. And I talked many times to blacks who thought that there was going to be two races. Smilings were such a smaller family and such a small group, so they wouldn't count, and I'll tell you about how they got to be separated. The Indians seemed to be smaller in number. But they have made a substantial comeback in this century and have dominated the politics in Robeson County.

See, Robeson County is unique in that everyone there is in the minority, racially, in a racial minority. No one race constitutes the majority of the population. So if you want to get elected to public office you've got to bring blacks or Indians or if you can bring both of those together in some way, then you've got a good combination to win.

But the Croatans were known as very good pay. My father was a country doctor, charged two dollars for an office call and five dollars for calls to the house. And he practiced out of a car with two black bags, one for pills and one for surgical instruments. And he practiced in an area, I suppose a radius of twenty miles or so around Rowland, maybe not, maybe twenty would be on the edge of it. And I remember very well him waking me up with my sister to show us a hundred dollar bill, and this was big money [inaudible]. Of course, he had delivered a baby and he had to make change, because he didn't charge but fifty dollars, I guess, for delivering in the home. And the Indians paid well, I remember that.

They also fought a great deal. And when I was a freshman at [The University of North Carolina at] Chapel Hill [UNC], I wrote a piece for the Carolina magazine. It was the first published article I had when I was in school. Later I had some other articles when I was later editor of The Daily Tar Heel, which was the daily student newspaper. But the first article I wrote was Red, White and Black in Robeson. I don't know whether I would agree with what I wrote then or not, but that was when I was sixteen or seventeen years old. But it was, it was very conscious of the differences in people, but I think I was unconscious of the extent to which this was a caste system such as you have in India or as you have in South Africa today, apartheid. I just think that it was a system that was in place and I grew up with it.

I remember playing with black children and having a good time. But when I would walk down the street to the middle of our little town some of the white men would kid me about being one of the “Gold Dust Twins.” Now the Gold Dust Twins was the name of some washing powder or soap that was highly advertised, and it had two little black boys or a black boy and a girl on the cover. That was the symbol for the Gold Dust Twins. So I remember being teased about that.

We always had good help at home. They were black. Sometimes when I was very little—I don't know if I can remember this, but I remember hearing about it—we had a black couple that would live in a small house in the back. And the man would, the man would be a barber in town or he would drive cars on ceremonial occasions, or he helped serve when we'd have entertainment. And his wife would be the cook. And if they had to go by train to take patients—when my father took patients to a hospital somewhere it was usually by train—he might go with him, or to go away for a wedding. Weddings were big things then. You could have a long weekend, even a week of parties because you were marrying—the groom would marry somebody who lived in a different county way off from Robeson County.

Cars were pretty rare things. My father had the first Buick in Robeson County. I've got a picture of it here in the office. We also kept horses for a long time after that, because horses were more, allowed us to get in to people's houses that would live in, in the country.

KC:

Roads were pretty bad?

MS:

Yeah, and there were no numbering systems for roads. I've got an old 1920 American Automobile Association book that describes how you go from place to place. For example, to go from Greensboro to High Point, the route is described by going out a certain street and you pass certain people's homes and you turn at a certain corner by a church and you pass a millpond. And the idea of taking a Route 29 or 70 was a later invention. I'm not talking about interstates now. I'm just talking about any kind of numbers. First we had some state numbers and then we had a U.S. highway later down the line.

But getting back to the race thing, my own experience was brought more clearly into focus by the existence of the caste system that we had at the time of my service in India during the war. I had eighteen months in India, Burma, and China, most of it in and out of Calcutta. And I realized that what the structure of society there was, was not too different from what we had in North Carolina, in the South, and to some extent the rest of the country. But it was legalized in the South.

I went to school at Columbia Law School after Chapel Hill, and that was an interesting experience. But I, you know, I, I don't remember any problems, except feeling that when I was at Columbia I'd been somehow, I had missed out on some things that some very bright boys—and a few girls, but mostly boys—had learned when they went to prep school and places like Princeton or Yale or Harvard.

Ultimately, I think I was able to catch up with some of them. I was elected the president of the class and the chairman of student council. And they even asked me, some of them, if I would go to a meeting during the Christmas holiday. It was one of the years I was in law school. It was going to be at Howard University. And I kept thinking they were talking about Harvard University, because I just was insensitive to the role that this great black university, Howard, was playing in the life of the country.

I think that many of the Northerners voted for me because I was a Southerner, and they figured that I was safe on economics and race and everything else. And maybe the folks that were terribly interested in eliminating the caste system thought that they knew that either I was too dumb to know differently or I would be usually an agreeable sort of fellow.

I had a job that enabled me to know everybody, because I was the clerk in a residence hall for at least fifteen hours a week, sometimes a little longer. And everybody had to—came to get their mail or get their messages or—I handled the telephone so I kept up with everybody. And that, that was probably—but I had no sense of being engaged in discrimination or being prejudiced one way or the other.

My mother and my aunts, all had very good relations with blacks. But they were all usually of the servant class. There were no social equals [unclear]. But my mother and my aunts would say, “I love black people or brown people so long as they are in their place.” And the idea of place was very important, not just in race, but I think it's important in classes, too, you know.

If you played with somebody, your parents might very well comment about who they were, whether their, whether their father drank all the time, or whether he was the little Jewish boy, or whether the father was the town atheist, or whether they were poor white trash, or whether the girls were fat. I mean, you learn a lot from your parents in just off-hand remarks, and you build this system of peck order, if you want to call it, or structured society, mostly by these off-hand comments which are remembered and carried forward.

I remember being a great admirer of Frank Graham [president of UNC] when I was at Chapel Hill. And I was upset that he was criticized for having had lunch with a black man. But I don't remember being worked up about it, or that the students were very much worked up about it.

When I came to Greensboro in 1945, even after my experience in India—and I had a little bit of this recognition of subordination in authority when I was in the Middle East. I spent a lot of time in Arabic lands east of Cairo, [unclear] with the British Eighth Army who came across the Western Desert. And I spent a lot of time with the South African Bomb Explosives Company, which handled all the bomb explosive work for the British Eighth Army. And they had six or eight squads, and the captain of the navy was in charge, and they were all South African and white, but they had batmen [a military officer's servant] who were black. Their attitude towards the black man was like the attitude towards the servants in a way, but somehow even rougher than anything I remembered at home.

I remember one South African officer who I found extremely delightful, and he would kid his servants, his batmen. If you couldn't find something, he'd say, “Go get your pistol, I'm going to have to shoot you today.” And the fellow would say “Yessir.” You know, he was speaking Afrikaans, but I could pick up some. And they would kid back and forth about it, but it was clearly a master/servant relationship.

But I'd say when I came to Greensboro I was very interested, and I still am, in the need for world law, because I don't believe that we can overcome the anarchy in the world community without a system of law with some enforcement. And it doesn't have to take the exact form of the governments that we're used to. But we have to control violence by limiting the use of and control of arms, if it's done within the city of Greensboro or the State of North Carolina and the United States. And this is one of the lessons from history.

So I worked very hard for many years in the United World Federalists Movement. It wasn't called the United World Federalists then. But in late '45 and '46 and '47, we had World Federalists USA, World Federalists of North Carolina, and then there was Americans United for World Government and various other groups, Students for World Government. And we had a meeting in Asheville in 1947 on George Washington's birthday. And it was very well-attended by very prominent people from all over the country. And Asheville was a good spot, because North Carolina had passed the Humber Resolution in 1941 calling for the World Federation to come out of the war. We were not in the war, but it was obvious that after the war we were going to have to do something to provide an institution that at the world level could make into a law. And North Carolina ought to be remembered as being the first legislative body anywhere in the world that said this is what we had to do. And we owe a debt to Humber, later [North Carolina state] Senator Robert [Lee] Humber, of Greenville, who was a Rhodes Scholar and went to Wake Forest, for having proposed this. He got about twenty-five other legislatures to adopt similar resolutions.

But the great textbooks on international politics, some of them had in their frontispiece a quotation from the North Carolina March[?], a resolution. And I bragged about this many times in those days. My partner, Beverly Moore, would say, "Well, don't get too excited, because I was in that legislature in 1941. And we also passed a resolution making the caterpillar the state worm, so that's not too much."

But the point of this story, in regard to race, is that Oscar Merritt, who was the head of the biggest mill in Mount Airy, wanted to support the study of world government by sponsoring a high school World Peace Day and speaking program, where the prize each year would be for each school district a trip to the United Nations by the teacher and student who was the best in that school district. And that program is still going on, and it's been very useful. And graduates of that program are people who've gone, students who have gone—I see them from time to time.

But I remember the problem of what came to us was how were we going to transport the winners to New York? Because we were planning to use buses, and we were going to rent two buses, maybe three buses. And they would assemble in Greensboro and Raleigh and maybe one from Charlotte and pick up the winners on the way. And they were going to have to spend the night and eat en route.

And I remember being very comfortable with the solution that the black winners would go by train and the white winners would go on the bus. Because we didn't know for sure whether we could stop the bus and take all the students and their teachers in to eat or to sleep on the way. And this carried on into the, into the fifties, early fifties anyway. It was a very practical problem.

And I mention that as illustrating how you could be terribly concerned about the needs of the world government in order to control violence at the world level. And I remember one of the little brochures that we had, “Suppose you had no cop on the corner.” If you had none, you would really be fighting to get a government. Otherwise you'd have to come armed for every meeting like this today, barricade your home. All sorts of things would have to be different. And you would not be able to have this capitalism, free enterprise, economic system that you talked about earlier this morning, if you didn't have a system of law. And we were very concerned.

And I remember saying in some of the meetings when we were working out the details for transporting these high school winners, the teachers and the students, was, “Look, we've got enough problems to explain the idea of the need for world government and world law without taking on the race problem. So let's just let the black students and the black teachers go by train and meet in New York.” See, they could sleep and eat together in New York. And not fight that battle and mess up our promotion of the need for world law. And we were trying to put priorities on the things that the world needed to worry about.

And of course, we were very concerned that we were going to have another nuclear war. It'd been—we'd just dropped two atomic bombs. We just had had some more tests. And we'd come up shortly afterwards with the hydrogen bomb. The Russians had it. And we were terribly concerned about how we could bring the governments together, with or without the Russians. We're still working on that problem.

But the problem of the caste system and how to break it up in this country and be truthful to the ideals of the American Revolution and the Declaration of Independence and the principles of the Constitution took a second place in our thinking, in my thinking, at that time. And I suppose I never really concentrated on what to do about racial segregation until the sit-ins started in Greensboro in February, February 1, 1960.

Now there had been prior to that time an interracial commission in Greensboro, which went back into the forties. And the Troy sisters, who were great missionaries, and their family had been prominent in the history of Greensboro, who lived on Mendenhall Street in one of the oldest houses in Greensboro. They're living on South Mendenhall now. And I knew those four sisters, and they were the last ones left in that family. It was a big family. They were very active in the YWCA [Young Women's Christian Association] and in using, through the “Y”, the promotion of the interracial commission. And their campaigns during the late forties and fifties were to try to get rid of the colored and white drinking fountain that was in the courthouse. That was a simple thing.

And I expect, in all candor, if it hadn't been for the sit-ins and the demonstrations of 1960 and 1963, in which Greensboro was a leader—and I think it's something to be proud of, as well as to know this about our history—we would still be talking about getting rid of separate bathrooms, separate toilets.

To use an illustration, going back to Rowland, the Atlantic Coastline [Railroad Company] has merged with the Seaboard [Railroad Company] and then they did have some subsequent mergers. But that was a high speed main line of the railroad going from New York to Florida. And it was a double track. And I remember being so proud when I was at Carolina [UNC] that we had double tracks in Rowland, whereas the people in Hamlet, on the Seaboard, had only a single track. But as, you know, as the trains got faster and as the price of steel, I guess, made it attractive to take up some of those tracks during the time—either when they would sell it to the Japanese to send back to us as weapons or after the war when there was still a demand for steel.

At any rate, they had, in addition to the price, they had a lot of serious accidents. Because the very high speed trains going a hundred miles an hour, going in opposite directions, if one car got off the track or the truck became sideways, they would run into each other and wipe out a side of a train. If it was a passenger train, you'd have a lot of wrecks. So they have taken that double track down. But the Coastline was something that I was very proud of when I lived in Rowland.

Now, [recording paused] the Atlantic Coastline has dismantled or abandoned a number of their stations. Rowland had a brick station right in the center of the little town, beside the railroad. And it is now the Rowland Historical Museum and it's a very interesting museum. They've got a lot of pictures and maps and things from the old days.

One of the things that they have there is an advertisement for an excursion from Rowland to Charleston, South Carolina. All day—lunch, go swimming on the beach, and come back late at night—for two dollars. But the sign says “for white people only.” Then it has a list of sponsors. Now my guess is that somebody got up that excursion. But it was still using the railroads which had built the track from Rowland to Maine.

I don't think it ever occurred to any of those people that that somehow was wrong. But this was say 1901 or 1902. And the Plessy [v.] Ferguson, which was decided by the Supreme Court in 1896, racial segregation was by law perfectly all right, so long as there was equal use of separate facilities.

But today, children come, young people, even adults, come to that museum—and I know the fellow that's running it—and they are absolutely mystified as to why there are two sets of toilets. You know, that's four toilets. Men, women—why four? And why have these separate rooms that seem to be all about the same size? They don't have any recollection that even in a small station like the one at Rowland, just a brick station, they had to double-up on the expenses of putting in the plumbing system, in order to accommodate at least two races.

And what the poor Indians or the Smilings did, I don't know. But my guess is they went to the black facility. Because in, in India, for example, I kept seeing “officers,” “other ranks,” and “colored.” They had three systems. Now the officers would be the English officers or the Indian Army officers, who would be colored, but they were officers. Other ranks meant you were not an officer, NCOs [noncommissioned officer], something like that. And then you have colored, I guess, for everybody else. And that was broke down.

And I, I remember this now looking back on it, is we had somewhat similar in the stations all over the South. And when you'd come from New York, coming home on the day coach, when you passed Baltimore, the blacks would have to get up and go back into a separate car.

KC:

At Baltimore?

MS:

Or go forward. Between Baltimore and Washington. Washington was the [?] for whites.

But while you're talking about separate but equal though, in 1958, after Congress had passed the Civil Rights Act of 1957—this is during the Eisenhower administration—the United States Civil Rights Commission was established. And in accordance with the act, an advisory committee was to be established in every state. Well, they were quickly established in many of the Northern and Western states, they seemed to be more moderate. But the Southern states were slower.

And I was asked to serve on the advisory committee for North Carolina. It happened that one of the staff members was someone from Columbia Law School who had been in a moot court, and I'd been the chief justice of that moot court. He was probably a vice-chairman[?] or something. We were both students and he was in the class behind me or so. And I knew him, and he called me and asked me if I wanted to serve. A lot of people raised eyebrows around here. I said, “Well, you know, whatever the civil rights are we certainly ought to be for them. We ought not to be for civil wrongs. And if we can do any good finding out what our conditions are and take a look at them, then we ought to do it ourselves and not bring foreigners, outsiders, interfering.” That was my response.

Well, at the first meeting of that committee I was elected chairman. I think this staff member had something to do with it. I think that there was some reluctance on the part of the people who later became my very close friends and the people that I admire a lot, like Marion Wright.

Marion Wright was a lawyer from South Carolina who had moved to North Carolina and lived up in the mountains. But he had been far ahead of me and most everybody else working with the Southern Regional Council. Now the Southern Regional Council was really formed out of a group that was brought together by Howard Odom in Chapel Hill and Frank Graham in the forties and were sort of sponsoring things like the interracial commission that I mentioned earlier in Greensboro. But they had moved to Atlanta, had the headquarters there. They started in Durham.

And the Southern Regional Council was doing an enormous amount of work in basic studies about what the issue was all about, probably supporting some of the schools' litigation that was going on. The interesting thing about school litigation is that in 1901, in a case from Greenville, North Carolina—Hooker [v. Town of] Greenville—the Supreme Court of North Carolina, which had five members on the bench, held that all tax dollars had to be spent equally, according to pupil, regardless of race. It was a very forward opinion.

And what they did was invalidate a bond issue to build a school in Greenville, because that school was going to be for white children. The Supreme Court said you can't do this unless you build a school for black children and spend the same amount per pupil, per child, as you do on the white children. So keep in mind that that court in 1901—

[End of Tape 1, Side A—Begin Tape 1, Side B]

MS:

—that controlled North Carolina politics, both the governor's office and the legislature. And there may have been some Democrats on there, but my guess is that that was the prevailing influence, but that's after Plessy [v.] Ferguson. But it's a North Carolina thing. But by 1905, only four years later, politics had changed and both parties had adopted racial segregation. The Republicans [unclear] in their party platform. They appealed to the whites, because the Democrats had come back to power by adopting the Populist economic program, but coupling it with strict racial segregation.

So there was another case in 1905, from Kernersville, which is right near Greensboro, involving a bond issue for a white school. And the Supreme Court of North Carolina said regardless of that Greenville—Hooker [v.] Greenville case, all we have here are affidavits from the school board that they will try to take care of the black children as soon as they can. And we have no reason to doubt their good faith. And we have decided on the affidavits that the bond issue for the white school can go forward and we will not look beyond that. And there was not a single case, although there were about fourteen of these decisions released by the Supreme Court, that invalidated a school bond issue for a separate school.

In fact, along about 1920, when Platt Walker, who was a very good Supreme Court judge, wrote beautiful opinions, he wrote an opinion which said something like, “I'm glad we don't have to go any further than the affidavits. We just rely on the affidavits, an affidavit for the school board. We're going to do the best we can, so we don't have to look at actually whether the conditions are equal or not, whether these schools are separate but equal.”

And the first case to pull that a school was not equal for black children was Wheeler [v.] Durham [City Board of Education]. And it was decided by Judge Johnson J. Hayes, who was the judge for the middle district of North Carolina, the federal judge, located in Greensboro, lived in Greensboro. He was born in, he came from Wilkesboro, but he practiced in our firm for a little while, the predecessor of this firm, and was appointed by [President Herbert] Hoover to be the federal judge. And he was a great big strong man, a very dominant, dominating, powerful judge, “Lincoln-esque”, big Baptist, Baptist, big Baptist. And he held that the Durham schools, although purportedly equal, were not equal, but they were certainly separate—1951, that's three years before the Brown case.

And so you have a whole, what, fifty years there from 1901 to 1951, where they, where they talked about “separate but equal” but really didn't look at it after that, that Greenville case, with the North Carolina courts. And the federal courts didn't touch it either until Hayes in 1951.

Now that Wheeler, my guess is, is the same John Wheeler who died here several years ago that was a powerful leader in black groups in Durham. John Wheeler was a wonderful man. He did not serve on the North Carolina Advisory Committee, but he came to most of the meetings and spoke and made suggestions. I'm talking about the Advisory Committee with the Civil Rights Commission. And he was very strong on the Southern Regional Council, co-chair at that time. But he was also head of the Merchants and Farmers Bank, or Farmers and Merchants, rather Mechanics and Merchants Bank in Durham, which is a big, black-owned and operated bank, which, incidentally, helped to serve Greensboro when the bank holiday of Roosevelt came on in 1933. We had no banks in Greensboro.

KC:

They were all shut down.

MS:

They were all shut down and they didn't open up. But the biggest bank in North Carolina was the North Carolina Bank and Trust Company, which had its headquarters in the Jefferson building. And it paid off a hundred percent, but it never reopened.

The head of that bank was Angus McLean who had been governor of North Carolina in the 1920s and who was responsible largely for the budget reforms and the establishment of the Advisory Budget Commission, and the system of determining the North Carolina budget. They give him a lot of credit for that now. But his son, Hector McLean, is the head of, is the chairman of the Southern National Bank, which is a piece of the old North Carolina Bank and Trust Company. Another piece was Security National Bank, which became NCNB [North Carolina National Bank]. And another piece was Guilford Bank. I don't know, it's probably merged in there, too, now. But these different small pieces opened up afterwards with some of the same people.

But Hector McLean served on the Civil Rights Advisory Committee with me. And he and I are good friends. He's a great historian. And he's written a lot and he's caused other people to write by benefaction about the history of Robeson County. And I've been reading about the history of the Lowry uprising, and there is a McLean who was thought to be friendly to the Robeson County Indians during that period. I guess he is kin to Hector and Angus McLean, I'm not sure. He may have been the sheriff for part of that time.

But I have a gun which I'll show you in a minute—it's in the office—which came out of my attic. And my father always said that it was Henry Berry Lowry's gun, but he had a lot of guns. And he held off twenty or thirty of the posse at a time by going into the swamps and getting down in the water, and shooting from behind the logs that were floating, you know, that sort of thing.

But at one point the white people in Robeson County were so upset about the kind of Robin Hood burnings and the stealing of corn and other supplies from the white farmer. Robeson is not a big, rich, farming plantation county. It's a lot of small farmers. But there had been a few slaves where there were Indians [?]. Most were of them were Scotch farmers.

But the Indians were disappointed after the Civil War that the Federal troops who occupied the state for quite some time, until about 1877—that's not as long as we've been in Germany since World War II, but it's still a long time—the Federal troops treated the Indians just like they were black. The Indians didn't like that. They thought they had been loyal to the Feds. At least they hadn't taken part in the Confederacy. And yet they were put to work on roads and various other things. And they revolted against everybody there for a while, and especially when they had some food problems and work problems, they just took it. But Henry Berry Lowry was the Robin Hood outlaw leader.

There are big ditches near Maxton that I can remember my father showing me when I was a child. He would say, now, when the Lowry gang was loose they could ride horses in these big ditches and disappear. You couldn't find them.

Mr. Lowry, Henry Berry Lowry, disappeared by going to Mexico, leaving Rowland on the train—or, more likely, he was shot and killed by some white man from Maxton who hid under the house of the girl that he was courting, his wife, and shot him through a hole in the floor. There are several different versions. But he was sort of a legendary character.

Several years ago, I got a call from a white woman in Robeson County whose tenant farmer was an Indian, whose child had been run over by the wife of a white lawyer. And this person called me and said, “You know, I think they need a lawyer and they need somebody outside of Robeson County, because the white lawyer and his whole family are intimately connected with the court system and the judges. And they just would feel better off.”

The child that was run over was Henry Berry Lowry the III or IV. And I saw a picture of him when I went down there to see them—beautiful child, blonde hair and blue eyes, which makes you think maybe there's something to the Lost Colony tradition. But he ran out in the road and he was struck by a car. And I feel sorry for the lady that was driving it. And we settled the case on the courthouse steps.

The lawyer on the other side, his name was Clay, so it's a small world. Generally, they—[clears throat]—okay, I've talked a lot. Let me get some coffee.

KC:

Okay.

[recording paused]

MS:

I told you about the formation of the North Carolina Advisory Committee that became the Civil Rights Commission. There is a committee that's still going on now. I was the chairman for four years. Then I was succeeded in the middle or late 1963 by Francis Pascal, who was a Duke Law professor. And then there've been several chairmen since then. You can get that record. And I think the first committee had an advantage, in the sense that we were able to write on a somewhat clean slate as far as any kind of state committee taking a look at equal protection under the laws of North Carolina. And that's what I thought our mission was: let's just see whether the laws are being applied equally or whether there is discrimination on account of race or religion. I don't suppose we went into sex at that time.

And the committee was an excellent one. We had two blacks, we had businesspeople like Hector McLean, and a lawyer named Bill Thornton down in Rocky Mount. And we had Paul Ervin, who was a fine lawyer in Charlotte, now dead, who was connected with the school board and different things down there, and he was strong in the Methodist church. Marion Wright, he's up in the mountains, who is a lawyer, but who'd grown up in South Carolina. But he had a rich history, of interest in race problems based on his, his own experience of growing up in Conway and Columbia, South Carolina, working with the Southern Regional Council. I think the committee achieved a lot of credibility, because we tried to document what we were reporting. We met every month or two months in a different city in North Carolina. And we invited participants, anybody who had any kind of information or complaint, to come forward.

And I remember the first meeting we had in Raleigh. We'd met in Durham. We had even met in Charlotte. We later met in Greensboro. But the first meeting that got a lot of publicity in the state press was in Raleigh, when some young black children came down from one of the mountain counties dressed in white, very attractive. And every black child in that county was being transported by bus to Asheville to school, because although they had public schools in the county, they had none for blacks. And this got on the front page of all the papers.

They also gave a lot of publicity to the fact that the National Guard, which was funded by federal funds, had no blacks. Not National Guard, I'm talking about the [North Carolina] State Highway Patrol. The National Guard also had some problems, but the—and it may have been the National Guard, too—we need to look at it. But I think it was the National Guard. I'll come back to it. We did both. But that was an interesting point. Nobody had ever brought that up before.

And I remember the editors were saying no one heard of this committee until they started pointing out things like this, you know. And—but they were fairly respectable, because my aim, and I think the committee agreed on this, was we absolutely acted on the facts and understate the claims. Don't get rhetorical about the thing.

And we, you know, we would condition some of our reports by saying, “If this is discrimination, then we certainly got this here,” which is a little bit less than shouting and raising the roof. And over a period of three years or more we published reports on voting, administration of justice, employment, housing, several reports on education, who the uneducated were and where illiteracy was, very interesting studies. You see a lot of it today.

But I remember we went to sources that had not been tapped before, like the radio and TV programs in this state who were trying to teach people to read in the early morning hours. And the kind of letters that came in, just poignant letters. We printed a lot of those letters. That might have been anecdotal rather than statistical, but it made wonderful stories. It made good reports.

We also took driver's licenses. You know, who took, who takes the oral test because they can't read and write? That was an approach to illiteracy that had not been publicized before. There's been a lot of it lately since that time. But to me, it was coming at it from our own resources in a different way than to have somebody engaged in a polemical attack to see, you know, the disadvantages to the operation of our system by illiteracy and where the illiteracy was concentrated.

They studied housing [?] by using maps we could show where the substandard housing was. And I remember that our congressman at that time said, “Well, don't, don't be too critical, because in the South you don't need indoor plumbing or indoor toilets. They have a good upbringing. And I grew up,” he said, “where we had an outside privy.”

Now he was joking in a way. But in another way he was expressing a kind of an excuse that we'd been living with for a long time. And when you look at housing in the South, in particular the southeast, you're looking at a different part of the world. Sort of like you might could do a map of the world and you'd have certain black places where the housing is substandard. And North Carolina fitted in with that picture, and it was startling.

One resource that I remember we used was the Army's analysis of literacy and the intelligence test. It was used in the first, World War I and then in World War II. And in the United States, the chief cause of draft rejection was syphilis. But in North Carolina it was education deficiency. And that was startling and embarrassing. Until at one PTA [Parent Teacher Association] meeting here in Greensboro, where I gave out that statistic, someone in the audience, a teacher, said, “Well, you can prove anything by statistics, Mr. Smith. All we need in North Carolina is more syphilis. Then we'll be in the mainstream.” Okay. Well, that may have also been said in jest. You have to laugh at some things that are too painful, so I liked this teacher. She was, statistically she was right. All we needed was, was more syphilis.

But one of the more interesting studies was equal protection of the law in medical care. No other state committee had done this. Walter Gelmore, one of my favorite teachers at Columbia, suggested this might be something we'd look at. And we got one of the doctors at Chapel Hill, who was in public health, I believe. And he came in with a very interesting report, but it was very bland.

And one of the resources that we had was some other doctors in North Carolina, particularly a doctor named Raymond Wheeler in Charlotte, who was a very well-to-do surgeon. And he took this report and he really pointed out some things that I think the figures showed. He suggested that the language ought to be entirely more forceful. And so my job was to help put the thing together using the comments of Dr. Wheeler, and there'd been some other comments.

And so when we issued the report it got wide publicity. A man at Chapel Hill accepted the changes with some grace, although I think he was a little annoyed that we had made it much more readable. And Dr. Wheeler was upset that I had used his comments, and perhaps it caused some rift between him and another member of the medical profession. But as time went on, I think both of the doctors became good friends of mine and realized that we'd done an important piece of work.

The report has been cited once in the Supreme Court of the United States and I think maybe more than that. And is also used, or was used, in the Cone Mills—not Cone Mills, but [Moses] Cone Hospital case here in Greensboro having to deal with claims of staff discrimination or admissions policies, which was way back now. And Cone, Cone Hospital has a great record. My daughter's a nurse there and the staff should be very proud of Cone Hospital. But I'm saying that going back to '59, the question of whether medical care, subsidized by the government, was being dispensed in a way that discriminated against anyone on account of race.

Then we had a series of reports on discrimination in cities and towns, city ordinances. And it was surprising what some of the ordinances that had been on the books—some may have still been on the books, but not enforced. And they represented hangovers from the pre-1960, no, pre-1865 times and the Black Codes of 1865. Do you know what I'm talking about when I'm talking about the Black Code?

KC:

Vaguely.

MS:

Well, we started off this morning before you turned the tape recorder on trying to find out what you meant by civil rights, as opposed to civil liberties, or as opposed to criminal rights, or the rights of criminal defendants. And I suppose that it's worth noting that in our English law tradition, we've got the Petition of Right and we've got the U.S. Constitution's first eight amendments called the Bill of Rights. You have various fundamental rights that writers have been talking about. But in this area, I think you have to be precise. I would like to know whether there were civil rights bills prior to 1866, using the words “civil rights.” I suspect that there were.

You might say that the antecedents were the bills that would guarantee certain rights of civilians or certain rights of citizenship. But after the surrender of [Gen. Joseph E.] Johnston's army to [Gen. William T.] Sherman here, which was reported in all the Northern newspapers as taking place in Greensboro—but as we know, it took place on a farm, in a farm between here and Durham [Bennett Place], and probably closer to Durham, much closer to Durham. But this was the railhead and the telegraph was here, so all the Northern newspapers reported it as occurring in Greensboro.

That was a much bigger surrender than Lee's surrender to Grant in Appomattox. There were more troops involved. And for a short period of time Greensboro had more people in it in 1865 than it had until about 1945, because it had Sherman's army, and the surrendering Confederate army. And why—and the population of the town, I'm sure, was less than three thousand—why they didn't have an outbreak or some kind of epidemic I don't know, because they had a lot of people here in that time. My recollection is that when Johnston's army—and they had twenty-five or twenty-six thousand in it. Sherman had that many, too. And you had a lot of people here in Greensboro, not counting the hangers-on.

All right. Immediately thereafter, the legislature in North Carolina and the legislature in most of the Southern states—all of them I think, except maybe Tennessee, which had already come back into the Union—had Black Codes, which had—they recognized that slavery was gone, but blacks were not to testify in court. They were not to have certain other civil rights, you might put it, that white people had.

And there was a tremendous reaction against the Black Code by the Republicans in the North. It was not that, not only that they were reacting against the restrictions on the new free, newly-freed slaves, which was in the period of 1865, but just right after the surrender. But they were also concerned about the restrictions which had been imposed on the states by white people in the South.

This is something most of us don't realize, but slavery enslaved the white people, as well as the blacks. In order to preserve slavery, laws were passed, [unclear], laws requiring the return of slaves, or justifying certain punishment by master of the slaves. And people who preached sermons in the churches, who wrote newspaper articles, who wrote books were made criminals by some of the state legislators.

And one of the big controversies was whether or not the first eight amendments of the U.S. Constitution protected white people, not just white immigrants from the North who might be coming down here in North Carolina for a trip, but white people who might want to debate these issues before the Civil War, whether the first eight amendments prohibited state legislation and state executive and court action against white people who would criticize the slave system.

So the Republicans debated in 1866 the enactment of a civil rights act, or passing a civil rights bill, so it would become a Civil Rights Act which would guarantee certain equal rights to the newly-enfranchised—or they weren't enfranchised—the newly-freed slaves so they should have the same rights as white people in certain respects—buying and selling property, testifying in court—those were rights which were spelled out in the civil rights bill which became the Civil Rights Act of 1866.

Well, there were a lot of people that said, “Well, this is all mighty fine, but where does Congress, which can only exercise delegated power, where does it get the authority to limit the states, the state legislature in the manner of the Civil Rights Act?” So simultaneously when passing the Civil Rights Act, they proposed and submitted to the states that required before the Southerners could be readmitted to the Union that they ratify the Fourteenth Amendment.

Now the Fourteenth Amendment has in it an opening, a very short phrase, that no state shall abridge the privileges and immunities of the United States citizenship. But what are they? Are they just what was in the Civil Rights Act, or do they include all of the first eight amendments to the Constitution? And there were many Republicans who had argued all along that the first eight amendments did apply against state action, even before the Civil War. But the Supreme Court of the United States had not agreed with that position.

And the argument today is a very real one, because Attorney General [Edwin] Meese—whose speech was written for him by Terry Eastland, who was the editor of the Greensboro Record—on saying we should go back to the original ten, and that the Congress who submitted the Fourteenth Amendment never really intended to incorporate the first eight amendments to the Constitution, which are restrictions on the federal government, to make them restrictions on the state government.

And yet, if you read the debate as has been brilliantly collected by Michael Curtis of Greensboro and published by the Duke University Press this year [No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights], you will see that if you start with the premise that the Republicans who were in control of Congress were trying to make sure that their view that the first eight amendments were binding on the states is incorporated in that phrase, “no states shall abridge the privileges and immunities of citizens of the United States.” But that's the debate that's going on right now.

And Raul Berger from Harvard, who took up legal history after he was forty years old, said that it's all bunk, that Meese is right, and that there's no basis for, that the first eight amendments are incorporated by the Fourteenth Amendment, and [unclear] on today. Charles Fairman, who wrote a very influential law review article in 1949 [Does the Fourteenth Amendment Incorporate the Bill of Rights?: The Original Understanding] said it's very ambiguous and not clear that—and what I still am wrestling with is why the Supreme Court went so slow to figure that the purpose of the Fourteenth Amendment was to make sure that all the states, including particularly the Southern states, could not violate the first eight amendments because those amendments were now incorporated as limitations on the states by the Fourteenth Amendment.

But it all goes back to trying to figure whether the Civil Rights Act was the coextensive and the limitations of the Fourteenth Amendment or whether the Fourteenth Amendment, which had broader language, was to, was not only to validate the Civil Rights Act, but was to put in place of the first eight amendments so that the restrictions on separation of church and state, free exercise of religion, the right of the free press, the right of free speech, the right to petition, the right to assemble, the right not to have troops quartered in your home, the right to bear arms, the right not to have unreasonable searches and seizures—unreasonable being unreasonable [unclear] argument—the right to due process and equal protection—but due process is in the Fourteenth Amendment specifically, and equal protection is in the Fourteenth Amendment but not in the Fifth Amendment—the right to a jury trial, the right not to suffer cruel and unusual punishment.

And Charles Fairman, in this article in 1949, which he's modified some in this volume on the history of the Supreme Court in the Reconstruction Period, [has] taken out some criticisms that were made of it early on. But it's ridiculous that Congress should propose an amendment that every state had to provide a jury trial where the amount involved was over twenty dollars. But there are many people that think that's exactly what the radical Republicans and the Republican majority of the Congress wanted to do when they drafted—

KC:

So they forced this upon the states?

MS:

Yeah.

KC:

Particularly the Southern states.

MS:

But the view that the whites in the South were being denied privileges and immunities of United States citizenship by state legislation and state executive action because they were critical of the slave system is a very important part of our history that we ought to know about. You know the most, one of the most interesting books about the uneconomic aspect of the slave system was printed and published in Mocksville, North Carolina, by Hinton Rowan Helper, who had a print shop, and it was called The Impending Crisis [of the South]. And what—

[End of Tape 1, Side B—Begin Tape 2, Side A]

MS:

—destroyed. This is in the 1850s. I mean he was a white man. And he was operating his own business and he's printing his own expense. But they beat him up and beat up his press and banned his books. And who is going to preach? Who is going to talk? Who's going to run for office?

My daughter was married in Chapel Hill, and the reception was held at the old Horace Williams House, which belongs to the university now. But that house was built by a man who was on the faculty. And he supported [John C.] Fremont for president in 1856, and he was let go, turned out of the faculty. That was the Free Soil Free Party [sic, Free Soil Party] candidate in 1856.

And we've got a great tradition of freedom at the University of North Carolina at Chapel Hill. And the students there lead the Speaker Ban suit [challenge to a law banning Communists from speaking at state-supported colleges] and I'm very proud of that and the role that I had to represent them. But there was a time when to advocate a Republican candidate for president was enough to get you fired from the faculty, especially if that was a Free Soil Free Party candidate. The Republican Party's changed its colors some since, and I don't know whether you can use that label as a litmus test anymore.

You know, there were two waves of demonstrations in Greensboro. And the eighteen—in the 1960 one was against the lunch counter, and the 1963 demonstrations were for sit-down restaurants, motels, hotels, movie houses, and other places of public accommodation. We had more people in downtown Greensboro in the late spring—May, say, of 1963 than we've had at any time since then. We were on national television every night. Cameras from the major networks—CBS, NBC, ABC—all outside the building here at the corner of what is now Friendly Avenue and Elm Street.

KC:

And that didn't happen to that extent in 1960, it was '63 when it really got coverage?

MS:

Well, I think there was more coverage in '63 on TV. TV was also a bigger then. The news coverage on TV was bigger. But what happened in 1960, beginning on February the first, was extremely interesting, because it swept the Southern schools, where there were southern schools like A&T, overnight.

I remember going to Durham on the way to Raleigh. I stopped to talk to Dr. Asa Spaulding [president of the North Carolina Mutual Life Insurance Company], he was a member of our Civil Rights Advisory Committee. And he said, “I just”—I think he was Republican. He was an old line Republican from way back. He said, “I don't understand it. Where do they get the word so quickly?” He's a black man, very, very fine man.

And we had people from Nashville, black, coming in and talking to these students here, flying back and forth. And it didn't take a week before this thing was being tested all around the South. And by a month or so we had sit-ins going—we all had sit-ins going everywhere. And it was a very fine experience for all of us.

These were well dressed, well-behaved, wonderfully controlled students. And the crowds that would gather around and were jeering them, the whites, were really poorly dressed, pants tied up with ropes or chains. I don't want to use the word redneck, but I suppose that's a way of describing it.

And there was a lot of debate that hadn't been going on. I remember people saying, you know, if this thing—where will it all end? Look what happened to Hitler when he came to power. I couldn't figure out what the connection was there. I think it's going to all end when we have a more open society with people being judged not on the basis of their color and being classified somehow because of their color or their race.

But there were people that would say, you know, we have such a nice church here, such a good choir, our children grew up in it. If all the barriers were taken down, the church would disappear. There was a meeting at the West Market Street [United Methodist] Church of the United Church Women. And I remember that one of their prominent women, whose husband was the head of the textile mills nearby, not in Greensboro, but nearby, came to the pastor and said, “Look, our Missionary Society, our Woman's Society, is supposed to serve this meal. And my husband will never forgive me if I wait on black women who are coming as members of the, of the group, United Church Women.” And the pastor, who was Dr. [Eugene C.] Few, said “Don't worry about it. I'll serve them. You don't have to do nothing.” The meeting went on fine. But that was the kind of tension that was going on.

I employed, to help me with the committee of which I was chairing, a black secretary. And we had offices in the Jefferson building, and we had offices across the street in the building where the first, where the old telephone company had been, and later was where the First Citizen's Bank—First Citizen's just built a new building but they built it up closer to Elm Street. This was on the corner of Greene and Market.

And this secretary would come and work on weekends and at night, and use my office in the Jefferson building. And several people, well meaning I'm sure, but got upset about it. So they had several meetings. I remember a number of the white men would say, you know, “I have nothing against this myself, but my secretary's white and it's a problem for them, and their husbands are upset that they are working at the same job, same type of work, same desk, she's using the same bathroom.”

I said, “Well, I will have this young lady work in our office across the street.” And I was one of the owners of that building. And so I, I fixed up a place where she could work. She was doing work for me, the chairman of this committee, working on the committee, some other personal things. And I was paying her.

And she hadn't been over there very long before one of the tenants in that building—he had a contracting business. He was building houses in Greensboro. He came to me and he said, “Either you're going to lose me as a tenant in the building, or you're going to get rid of this black secretary that you've got here.”

And I said “What's the problem?”

And he said, “Well, it doesn't make any difference to me, but I've got a white secretary and they're using the same bathroom.”

And I said, “Well, let me talk to this woman.”

And the white secretary came to me and she said, “Mr. Smith, I don't know why it is. Maybe it's the way I grew up, but I just get sick on my stomach at the thought of my sitting on the same toilet seat where this black woman has sat.”

And I said, “Well, let me talk to her. Let me talk to the young lady who's the black secretary, and see what we can do about it.”

Well, I told her about it and she kind of laughed. She said, “Don't worry. I won't use it. Put a lock on it. I'll go somewhere else.” So we put a lock on the woman's room in that building, which was later the First Citizen's Bank building. And they did some work on it after I bought it. But it had been a building in Greensboro, it was the telephone company building when it was built.

It hadn't been more than a month after we put the lock on it before the, the white woman came in and said, “Look, I've met this lady. She's all right. And I'm sorry I put up the fuss that I did, and I want you to take the lock down. Take it off.”

I said “Okay, that's all right with me, but now you were the one that everybody says they didn't want to share the restroom.”

And she said, “Well, I'll feel better if you'll do that,” and we did.

That was an interesting, interesting experience. I wasn't really as aware until that kind of experience. And I'm sure it was repeated many, many times, where I think genuinely the white woman did get sick on her stomach, because she'd been brought up to believe it.

I remember when the first black lawyer was taken into the Greensboro Bar Association. My guess is that was around 1963 or '64. The president, who was Herman Smith—and you might want to talk to him, he's a retired magistrate. He solicited secret ballots. And some of those ballots came in with letters or with notes written on them anonymously. And I remember one old bar member wrote—I could tell he was an old man—“I am voting for the admission of Henry Frye because I know it's the right thing to do, but it goes against all of my training, because I was taught to believe that to associate with blacks was lower than being a black itself.” I'm paraphrasing, but that's substantially the message. And he ended up something like, “I'm getting too old to carry this burden any longer,” something like that. I mean it was really a very revealing, pathetic comment.

Now that man is on the Supreme—Henry Frye is on the Supreme Court of North Carolina now. He's made an excellent state senator, state representative, founded a bank. His wife is a very fine and wonderful, bright development officer at A&T. And they have two fine children. You couldn't get more delightful companions or useful citizens.

But he grew up in Richmond County and was appointed, I guess during the Johnson Administration, to be Assistant United States Attorney before 1964. And whenever court was held—the Federal Court was held in Rockingham—he didn't have a place to eat. When the court and the court officials, even the defendants in the case, would go out and eat lunch, there was no place he could go. He said, “That's all right. I grew up in this county and I'll go out to the farm where my father lives.” Later he taught constitutional law down at North Carolina Central [University]. And I'd taught some at Chapel Hill, the same course, so we talked a lot.

That whole experience over the four years, working on those reports on different stages of life in North Carolina, on the subject of equal protection of the law was a very good learning experience for me. Not just visiting the different parts of the state and listening to people talk, but trying to write reports that would be fair and unimpeachable and still bring about a learning experience for the reader, as it brought about a learning experience for me, was one of the most valuable experiences of my life.

I certainly learned more about North Carolina and about North Carolina history and our present situation than anything I learned at school. I just don't think you learn these things by having somebody hit a few ambiguous points and then move on to something else. I read a lot during this period, stuff that I should have studied earlier, but it had no meaning for me. Now I had to, I had to make up my mind about it. The mantle was on my shoulders in a way, at least I felt charged with that duty to learn something.

And a lot of people have been working in the area. C. Vann Woodward, who is maybe the best historian in the country, was a graduate student at Chapel Hill when I was there. I had no idea of what good work he was beginning to do in those days. And one of the great books is the Origins of the New South, and it covers the period from 1877 to 1917. That's pretty much a blank in my high school and college education. Between the surrender of the Confederates to the Yankees in 1865 to General Pershing landing with the American Expedition in the, to rescue Europe in the European War of 1914 to 1918, it's just a blank, pretty much.

Well, I suppose I read Thomas Dixon's novels like The Clansman and The Leopard's Spots and those things, but they would reinforce any prejudice you might have against blacks. They were highly popular. They were combined and made into a movie called The Birth of a Nation, exciting movie, but wrong. Much better to read The Fool's Errand by Albion Tourgée. That's about Greensboro. It's called “Verdenton.”

KC:

Verdenton?

MS:

Which is Greensboro, very poor disguise. And the characters in there are names that can be identified—Albrights and Mendenhalls and all the rest.

Tourgée was the fool, who was on the fool's errand. Because he had been in, I believe, in the prison at Salisbury and was released and went back North. And probably got married and came back as kind of a missionary to help organize and reform the South, starting, he thought, the ideal place was Greensboro. And he served in the Constitutional Convention of 1868 which ratified the Fourteenth Amendment. He served on a special commission of three. He was one, and William Rodman was another later on in the courts of North Carolina, and a third person, to draw up the Code of Civil Procedure. That is how, what rules are there for getting to court and serving papers and deciding cases. And he copied, pretty much, the field code from New York. And that Code of Civil Procedure stayed in effect without any substantial changes until 1970, over a hundred years.

Then he was appointed a Superior Court judge. And even his enemies, former Confederate lawyers—that is if you had been on the Confederate side—said he was a good judge. And I think the historians miss something if they can't read the law cases, because the law cases show the kind of controversies that were getting to court and getting appealed so that you had some treatment by an appellate court reviewing a record in a specific case and coming down with what they thought the law ought to be. And they'll write an opinion in which they explain how they came to that decision. Great sources for understanding what was going on.

I mentioned the Greenville, Hooker [v.] Greenville, and the Kernersville case, illustrating the way we changed our approach from a realistic one to an idealistic one on the subject of separate but equal schools. Well, when Tourgée was a Superior Court judge, he had one case in particular that I remember reading about during this period when I was chairman of the Civil Rights Commission, in which a man had owned a farm. And he had made a contract with his tenant that if the tenant did not suit him or any member of his family, he could be fired at will. And the plaintiff had been fired, because he didn't suit the teenage daughter.

And Tourgée heard the case. He held that the contract was unconscionable and should be set aside. The Supreme Court of North Carolina reversed it, and wrote an opinion in which the court said that in an earlier day and in another dispensation we might have agreed with Judge Tourgée that this contract was unconscionable. But now we're in a new era and everyone is free and independent. And if they make their bed, they must lie in it. If they agree to something that has a trigger in it, like satisfying the teenage daughter, if it was enough of an excuse, then by golly, we're going to enforce it just like it's written. And we're not going to practice any kind of reform movement through the courts by rewriting contracts that people make. Everybody's on their own. Watch out. It was a very interesting case.

And there are lots of them if you can read those cases. The trouble with a lot of historians is that they get hung up by the phrases. Sometimes the old Latin or French and English phrases that begin an opinion that recite how the case got to court, certain motions that were made—I remember when I first started in Greensboro practicing law I'd go to the city court. And they'd call out a case and the defendant would not be there, and the judge would say, [unclear-Latin] and double the amount of the bond. I thought it'd make a wonderful operetta song.

KC:

[laughter]

MS:

But those were shorthand ways of making the record clear that the case had been called, the defendant did not appear, the court issues an order for an instantaneous arrest and to bring the body in. That's where the capias part comes in. And doubling the bond means “don't let him out again without making him put up an even bigger bond.” So it's a very quick way of doing it. But unless you know what those code words are, you say, “My, I'm going to quit reading this case!” But if you get into it so that you understand the facts and can milk the facts by what you must—you read into the opinion must have been the controversy, then you get a rich load of what actually were the conditions.

See, if you read that opinion in reversing Tourgée, to me at least, you get a feeling that here is the Supreme Court of the state saying we're no longer going to look after tenants who were overreached by their masters. We're no longer going to look after—I don't even know whether this plaintiff was a black or not—but we are certainly not going to go out of our way to try to rewrite harsh agreements that are made. We're going to let them stand.

There are some good cases, though, where the Supreme Court recognized civil rights, if you want to call it, you might not call it. There was case from Wilmington, where, I guess this was 1875 or 1880, Van Bokkelen [v.] Canady. The city council in Wilmington reorganized the voting wards. And they set up the city council—Wilmington was probably the biggest city in North Carolina—they had nine members of the council, three from each ward. They would have maybe a thousand people in ward one, a thousand people in ward two, three thousand people or five thousand people in ward three. Ward three was where all the blacks lived. Well, the Supreme Court of North Carolina said this, this can't be right. This certainly denies equal protection of the laws [unclear] them and you do it under a North Carolina Constitution as well as the federal government. That's a good case.

There's another case in which the North Carolina Supreme Court somewhat later went before the Supreme Court of the United States, invalidated a city ordinance which said that no house within a block could be sold to anyone who wasn't the same race as the majority in that block. And Justice, Chief Justice Clark, Walter Clark, wrote an opinion in which he said this ordinance is invalid, because it is an attempt to establish something like the Irish Pale or the ghetto laws in Russia. And we don't have anything like that in North Carolina. We—any kind of an ordinance that says that property cannot be sold freely to someone who's able to pay for it because of their race is unenforceable in North Carolina.

Now that's before the Supreme Court of United States got to that point, I mean two or three years before. I think it was about 1912. But it's an interesting case. But he didn't do it on the grounds of “I want to protect blacks” or “I want to protect the civil rights of people on account of race.” “I want to protect the free enterprise system; I want people to be able to sell property. And all you're doing is trying to perpetuate ghettos here where property values can't be recognized in the market.”

I love to come back to these cases, because I think you learn a lot from them. And I like to find a case where North Carolina judges have been thinking ahead and not being run from the outside. I mentioned earlier that the blacks were really disfranchised after 1900. When [Charles B.] Aycock ran for governor in 1900, there was a movement in places like Durham, and I believe Gastonia and several other towns, to pass ordinances that schools would be supported by taxes according to race. Black taxes would pay for black schools, and white taxes would pay for white schools. And Aycock said “I will withdraw as candidate for governor on the Democratic ticket if this is part of the Democratic platform. That is wrong. And we must build our society so that”—and this is a quote—“every child born on earth shall have an equal opportunity to burgeon out all that's in him.” That's a great quotation.

Now he said it many times in many speeches. And he died on a platform saying that. But he says, “Every child born on earth.” And I heard somebody quote him once as saying, “Every child born on earth shall have a right to bludgeon out all that's in him,” instead of burgeon out. And some think that's what they're trying to do. But that's a great idea.

But at the very time that he was elected, North Carolina put into—adopted an illiteracy test. Nineteen hundred, not 1865 or 1875, but in 1900. And Judge Connor, Henry [Graves] Connor, was one of the great North Carolina Supreme Court judges, said, I think as early as 1902 or 1904, somewhere along in there right after the illiteracy test was put in, that he did not see how a race or any group would survive when they were disfranchised, when they were really purposely denied the vote. He may have said any race or group or party that's denied.

But of course, the Republican Party was cut terribly by that amendment, because most of the blacks, following the Lincoln leadership, all had been Republicans. And it was the Democrats under Roosevelt who, with the relief program and various other things, began to get the blacks back, not necessarily to desegregate, but to provide opportunities for them.

And there were a lot of people that thought, as I think people in Greensboro did, that we ought to do right by blacks in jobs, at least give them some jobs. And we ought to see that they're fed and not starving. And we ought to provide band uniforms for the A&T band. But the very idea that they could demand equal rights at Woolworth lunch counter to serve a longtime client, that was going too far. That was not a civil right.

I may myself had thought when the sit-ins started that—and I think I wrote an article for the United Press which was widely circulated—that this was not a civil right, but it was a moral obligation of all of us to consider what was fair, something like that. And that the community had to change its patterns or think about its patterns. And that there were storeowners' rights to sell to customers that he wanted to and be protected. The difficulty with my analysis, which I think was shortsighted at that time, is that the storeowner is being subjected to a white boycott if he is afraid to serve all customers regardless of race.

And when Boyd Morris, who ran the most popular café, [Mayfair] Cafeteria at the time, which is where the present First Union Bank is, the demonstrations in 1963 were concentrated around his place. And Jesse Jackson, now running for president of the United States, was standing there speaking to Boyd and he'd say, “Boyd, I've got customers for you.” And Boyd would say, “You know I can't serve you—what it would do to my, my business. My [unclear].”

Now there is the controversy. Here was Boyd Morris, the [former] mayor of Greensboro, but the owner of the best cafeteria, saying, “Look, if I serve you, I will lose my white trade.” Now who is boycotting who? If it's the whites who are threatening to withdraw their patronage, are they the ones that are boycotting, committing an anti-trust or anti-trade violation by refusing to patronize a place which serves other people who are willing to pay and able to pay? That was the national TV picture of the demonstrations of 1963.

I remember, though, one of my friends who lived in Irving Park couldn't understand why she couldn't take her maid home. With all the crowd that was downtown at night, she had to go round and around Robin Hood's barn in order to get to the section of town where her maid lived, and that was what was upsetting her about this.

I remember, again going back to 1960, when all the crowds were on the street outside of Woolworth and Kress's and the other stores, but mainly Woolworth and Kress's where they had lunch counters, a member of the [Guilford] County Board of Commissioners stood on the street with me and shook his head and said, “I just can't understand those students from A&T. After all we've done to give them new uniforms for the band and help them get new buildings, why they would want to upset things and upset everybody.”

Now I'm recording these recollections not to point a finger at anybody—they can be pointed to me—but to kind of keep in mind the difficult problems that some people were having because of the way they had come to view things. And it's not only in relations, race relations, or in dealing with the problems of bringing government to the world level, but in our attitude toward science and the importance of education and all sorts of other values. We get locked into Maginot Lines [lines of defense between French boarders with Germany and Italy] of thinking. And then somebody comes along somewhere with a radically different idea and we accuse them of heresy. We say God must burn you at the stake, because you're thinking wrong. And the heresies are not dead—

[End of Interview]