“So Forcibly Presented by His Counsel, Who Are of His Race”: Cornelius Jones, Forgotten Black Supreme Court Advocate and Fighter for Civil Rights in the Plessy Era

Abstract

“So Forcibly Presented by His Counsel, Who Are of His Race”: Cornelius Jones, Forgotten Black Supreme Court Advocate and Fighter for Civil Rights in the Plessy Era James A. Feldman (bio) On April 13, 1896, the Supreme Court heard argument in Plessy v. Ferguson, now best known for its approval of the separate-but-equal doctrine and for Justice John Marshall Harlan’s stirring dissent. But something else happened at the Court that day as well: It decided two companion cases: Gibson v. Mississippi and Smith v. Mississippi.1 On their face, they presented procedural issues regarding the civil rights removal statute and the scope of the Ex Post Facto Clause. Justice Harlan, the writer of the famed Plessy dissent, wrote the rather technical (and unanimous) opinions in Gibson and Smith, rejecting the defendants’ claims. Gibson and Smith would have been fairly routine cases, but they shared an important feature: The defendant in each case was Black, and the underlying claims arose from attacks on the disfranchisement of Black voters that occurred under the notorious Mississippi Constitution of 1890, which was expressly adopted to “legally”—i.e., in effect but not on its face—disfranchise African Americans. In the last paragraph of Gibson, Justice Harlan reaffirmed that “the Constitution of the United States, in its present form, forbids, so far as civil and political rights are concerned, discrimination ... against any citizen because of his race.”2 Then he concluded: We recognize the possession of all these rights by the defendant; but upon a careful consideration of all the points of which we can take [End Page 97] cognizance, and which have been so forcibly presented by his counsel, who are of his race, and giving him the full benefit of the salutary principles heretofore announced by this court in the cases cited in his behalf, we cannot find from the record before us that his rights secured by the supreme law of the land were violated.3 This may be the only Supreme Court opinion that has referred to the race of the attorneys who presented the case, and Gibson and Smith were the second and third cases that Black advocates had ever argued before the Court. Who were these counsel who “so forcibly” presented Gibson and Smith and were “of the same race” as the defendants? Mississippi attorney Cornelius J. Jones was primarily responsible for both cases, though he argued only Smith and enlisted Washington, D.C., attorney Emanuel M. Hewlett to argue Gibson. Jones is largely forgotten in the history books, but he was a remarkable figure. Mississippi’s 1890 Constitution provided the model for “legally” disfranchising Black voters throughout the South over the next fifteen years. Jones, who himself was born into slavery, fought that movement in every way he could. He was one of six African Americans in the Mississippi House when the state legislature called a constitutional convention with the avowed purpose of disfranchising Black voters, and he made a dramatic and highly-praised speech opposing it. He then brought four cases to the Court in the succeeding ten years, of which three challenged the disfranchisement. At the same time, he ran for Congress twice and contested his losses before the House, again challenging the exclusion from the franchise of Black citizens, who were an overwhelming majority of the electorate in his district. He was later active in the fight for equal voting rights and against Jim Crow in Oklahoma as it was preparing for statehood, and he spearheaded the first significant legal effort to obtain reparations for ex-slaves in the 1910s, which he took all the way to the Supreme Court. In the late nineteenth and early twentieth centuries, the time was not ripe for our legal system to live up to its promise of equality under the law, and Jones lost all of those fights. But his lifelong struggle in the most difficult possible conditions exemplified the highest traditions of the legal profession. Early Life and Becoming a Lawyer According to a typed, unsigned document entitled “Obituary” in family papers that found their way into the collection of the Schomburg Library in New York City, Jones was born into slavery in Vicksburg...