In 1881, an African-American named Tony Pace was charged, along with Mary Cox, a Caucasian, with the criminal offense of living in adultery and fornification. Had Pace been white, Alabama law imposed a term of imprisonment of no more than six months in the county jail. But, because he was black, Pace was exposed to the Alabama law which imposed a term of imprisonment of two years in the state penitentiary.
Pace appealed the indictment to the Alabama Supreme Court, on the ground that the Alabama law in question deprived him, under the 14th amendment to the U.S. Constitution, of equal protection of the laws. Justice Somerville, speaking for the unanimous court, wrote this:
"The fact that a different punishment is affixed to the offense of adultery when committed between a negro and a white person, as compared to the same offense committed between two white persons, does not constitute a discrimination against or in favor of either race. The discrimination is not directed against the person of any particular color, but against the offense, the nature of which is determined by the opposite color of the adulterous couple. (Huh?) (Italics and editing for clarity added.)"
The language the Alabama Supreme Court wrote here, is an excellent example of the ease with which the courts, the United States Supreme Court included, can twist reasonable meanings of words and the application of logic to them, into silliness. The discrimination is not because one of the adulterers was black but because one of the adulterers was black?
"No", the Court shouts with irritation; "the offense is more serious because the man is black!" So the Court is saying that when a black person fornificates with a white person the adulterers deserve more punishment by the State than ought to be meted out if both adulterers were white? But the fact that one person is black has nothing to do with the fact the punishment is enhanced?
"No, No!" Justice Somerville shouts in exasperation as he writes:
"The evil tendency of the crime is greater when a black person fornificates with a white person."
Huh? How is that again?
"The result may be the amalgamation of the two races."
Oh, I get it! The fornification might produce a child which is half black and half white, whereas fornification between two white persons cannot produce this. Therefore, the punishment for the first couple should be substantially greater than that meted out to the second couple, because amalgamation is an evil that the second couple has not risked.
Now Justice Somerville makes everything perfectly understandable and clear.
"Amalgamation of the two races will produce a mongrel population and a degraded civilization, the prevention of which is dictated by sound public policy affecting the highest interest of government and society." See Pace v. State (1881) 69 Ala. 231.)
The 1881 Alabama Supreme Court
Alabama Governor Seavy and his Administration, in 1881
In 1883, the United Supreme Court reviewed the decision of the Alabama Supreme Court and, in a paragraph written by Justice Field, dismissed Pace's petition on the following ground.
"The two sections of the Alabama criminal code are perfectly consistent: one section punishes fornification between sexes while the other punishes fornification between the races. The punishment is directed against the offense (i.e., creating the risk of almalgamation) and not against the person."
So it was that until the 1960s, the Supreme Court of the United States happily enforced the racist policies of the States which rigged their domestic institutions against the African-American citizen. What did these white men, generation after generation, perceive was an evil behind the African-American's skin? Something about the structure of the man's mind? Some communicable disease in the man's DNA? Something horrible in his blood? How exactly did these white men think the African was abhorrently different from them, beyond the simple fact of the color of his skin?
And what accounts for the sudden change in the Court's willingess to perpetuate this racist public policy?
Though the 1960 African-American population was 19 million, it represented only ten percent of the total population. In 1790, it represented nineteen percent. The explanation does not lie in numbers then. Probably it lies in the failure of the parents of the 60s generation—parents for the most part who passed through the human horrors of World War II―to pass on to their children the virulent racist prejudices of their parents. So war is good for something after all.