The Negro and the Law

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The Negro and the Law  (1903) 
by Wilford H. Smith

An essay from The Negro Problem, by Booker T. Washington, et al., a collection of essays written in 1903 by leading African Americans.

The Negro and the Law


The law and how it is dodged by enactments infringing upon the rights guaranteed to the freedmen by constitutional amendment. A powerful plea for justice for the Negro.


The colored people in the United States are indebted to the beneficent provisions of the 13th, 14th and 15th amendments to the Constitution of the United States, for the establishment of their freedom and citizenship, and it is to these mainly they must look for the maintenance of their liberty and the protection of their civil rights. These amendments followed close upon the Emancipation Proclamation issued January 1st, 1863, by President Lincoln, and his call for volunteers, which was answered by more than three hundred thousand negro soldiers, who, during three years of military service, helped the Union arms to victory at Appomattox. Standing in the shadow of the awful calamity and deep distress of the civil war, and grateful to God for peace and victory over the rebellion, the American people, who upheld the Union, rose to the sublime heights of doing justice to the former slaves, who had grown and multiplied with the country from the early settlement at Jamestown. It looked like an effort to pay them back for their years of faithfulness and unrequited toil, by not only making them free but placing them on equal footing with themselves in the fundamental law. Certainly, they intended at least, that they should have as many rights under the Constitution as are given to white naturalized citizens who come to this country from all the nations of Europe.

The 13th amendment provides that neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist in the United States or any place subject to their jurisdiction.

The 14th amendment provides in section one, that all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States, and of the State 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 to any person within its jurisdiction the equal protection of the law.

The 15th amendment provides that the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State on account of race, color, or previous condition of servitude.

Chief Justice Waite, in the case of the United States vs. Cruikshank, 92nd U.S. 542, said:—

"The 14th amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the law. The equality of the rights of citizens is a principle of republicanism. Every Republican government is in duty bound to protect all its citizens in the enjoyment of this principle if within its power."

The same Chief Justice, in the case of the United States vs. Reese, 92nd U.S. 214, said:

"The 15th amendment does not confer the right of suffrage upon anyone. It prevents the States or the United States from giving preference in this particular to one citizen of the United States over another, on account of race, color or previous condition of servitude. Before its adoption this could be done. It was as much within the power of a State to exclude citizens of the United States from voting on account of race and color, as it was on account of age, property or education. Now it is not."

Notwithstanding the manifest meaning of equality of citizenship contained in the constitutional amendments, it was found necessary to reinforce them by a civil rights law, enacted by the Congress of the United States, March 1st, 1875, entitled, "An Act To Protect All Citizens In Their Civil and Legal Rights." Its preamble and first section are as follows:—Preamble: "Whereas, it is essential to just government we recognize the equality of all men before the law, and hold that it is the duty of government in its dealings with the people to mete out equal and exact justice to all, of whatever nativity, race, color or persuasion, religious or political, and it being the appropriate object of legislation to enact great fundamental principles into law, therefore,

"Be it enacted that all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances on land or water, theatres and other places of public amusement, subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless to any previous condition of servitude."

The Supreme Court of the United States has held this salutary law unconstitutional and void as applied to the States, but binding in the District of Columbia, and the Territories over which the government of the United States has control.—Civil Rights cases 109 U.S. 63. Since the Supreme Court's ruling, many Northern and Western States have enacted similar civil rights laws. Equality of citizenship in the United States suffered a severe blow when the civil rights bill was struck down by the Supreme Court. The colored people looked upon the decision as unsound, and prompted by race prejudice. It was clear that the amendments to the Constitution were adopted to secure not only their freedom, but their equal civil rights, and by ratifying the amendments the several States conceded to the Federal government the power and authority of maintaining not alone their freedom, but their equal civil rights in the United States as well.

The Federal Supreme Court put a narrow interpretation on the Constitution, rather than a liberal one in favor of equal rights; in marked contrast to a recent decision of the Appellate Division of the Supreme Court of New York in a civil rights case arising under the statute of New York, Burks vs. Bosso, 81 N.Y. Supp, 384. The New York Supreme Court held this language: "The liberation of the slaves, and the suppression of the rebellion, was supplemented by the amendments to the national Constitution according to the colored people their civil rights and investing them with citizenship. The amendments indicated a clear purpose to secure equal rights to the black people with the white race. The legislative intent must control, and that may be gathered from circumstances inducing the act. Where that intent has been unvaryingly manifested in one direction, and that in the prohibition of any discrimination against a large class of citizens, the courts should not hesitate to keep apace with legislative purpose. We must remember that the slightest trace of African blood places a man under the ban of belonging to that race. However respectable and whatever he may be, he is ostracized socially, and when the policy of the law is against extending the prohibition of his civil rights, a liberal, rather than a narrow interpretation should be given to enactments evidencing the intent to eliminate race discrimination, as far as that can be accomplished by legislative intervention."

The statutory enactments and recent Constitutions of most of the former slave-holding States, show that they have never looked with favor upon the amendments to the national Constitution. They rather regard them as war measures designed by the North to humiliate and punish the people of those States lately in rebellion. While in the main they accept the 13th amendment and concede that the negro should have personal freedom, they have never been altogether in harmony with the spirit and purposes of the 14th and 15th amendments. There seems to be a distinct and positive fear on the part of the South that if the negro is given a man's chance, and is accorded equal civil rights with white men on the juries, on common carriers, and in public places, that it will in some way lead to his social equality. This fallacious argument is persisted in, notwithstanding the well-known fact, that although the Jews are the leaders in the wealth and commerce of the South, their civil equality has never, except in rare instances, led to any social intermingling with the Southern whites.

Holding these views the Southern people in 1875, found means to overcome the Republican majorities in all the re-constructed States, and practically drove the negroes out of the law-making bodies of all those States. So that, now in all the Southern States, so far as can be ascertained, there is not one negro sitting as a representative in any of the law-making bodies. The next step was to deny them representation on the grand and petit juries in the State courts, through Jury Commissioners, who excluded them from the panels.

To be taxed without representation is a serious injustice in a republic whose foundations are laid upon the principle of "no taxation without representation." But serious as this phase of the case must appear, infinitely more serious is the case when we consider the fact that they are likewise excluded from the grand and petit juries in all the State courts, with the fewest and rarest exceptions. The courts sit in judgment upon their lives and liberties, and dispose of their dearest earthly possessions. They are not entitled to life, liberty or property if the courts should decide they are not, and yet in this all-important tribunal they are denied all voice, except as parties and witnesses, and here and there a negro lawyer is permitted to appear. One vote on the grand jury might prevent an indictment, and save disgrace and the risk of public trial; while one vote on the petit jury might save a life or a term of imprisonment, for an innocent person pursued and persecuted by powerful enemies.

With no voice in the making of the laws, which they are bound to obey, nor in their administration by the courts, thus tied and helpless, the negroes were proscribed by a system of legal enactments intended to wholly nullify the letter and spirit of the war amendments to the national organic law. This crusade was begun by enacting a system of Jim-Crow car laws in all the Southern States, so that now the Jim-Crow cars run from the Gulf of Mexico into the national capital. They are called, "Separate Car Laws," providing for separate but equal accommodations for whites and negroes. Though fair on their face, they are everywhere known to discriminate against the colored people in their administration, and were intended to humiliate and degrade them.

Setting apart separate places for negroes on public carriers, is just as repugnant to the spirit and intent of the national Constitution, as would be a law compelling all Jews or all Roman Catholics to occupy compartments specially set apart for them on account of their religion. If these statutes were not especially aimed at the negro, an arrangement of different fares, such as first, second and third classes, would have been far more just and preferable, and would have enabled the refined and exclusive of both races to avoid the presence of the coarse and vicious, by selecting the more expensive fare. Still these laws have been upheld by the Federal Supreme Court, and pronounced not in conflict with the amendments to the Constitution of the United States.

City ordinances providing for separate street cars for white and colored passengers, are in force in Atlanta, New Orleans, and in nearly all the cities of the South. In all the principal cities of Alabama, a certain portion of the street cars is set apart and marked for negroes. The conductors are clothed with the authority of determining to what race the passenger belongs, and may arrest persons refusing to obey his orders. It is often a very difficult task to determine to what race some passengers belong, there being so many dark-white persons that might be mistaken for negroes, and persons known as negroes who are as fair as any white person.

In the State of Georgia, a negro cannot purchase a berth in a sleeping car, under any circumstances, no matter where his destination, owing to the following statute enacted December 20th, 1899: "Sleeping car companies, and all railroads operating sleeping cars in this State, shall separate the white and colored races, and shall not permit them to occupy the same compartment; provided, that nothing in this act shall be construed to compel sleeping car companies or railroads operating sleeping cars, to carry persons of color in sleeping or parlor cars; provided also, that this act shall not apply to colored nurses or servants travelling with their employers." The violation of this statute is a misdemeanor.

Article 45, section 639 of the statutes of Georgia, 1895, makes it a misdemeanor to keep or confine white and colored convicts together, or to chain them together going to and from work. There is also a statute in Georgia requiring that a separate tax list be kept in every county, of the property of white and colored persons. Both races generally approve the laws prohibiting inter-marriages between white and colored persons, which seem to be uniform throughout the Southern States.

Florida seems to have gone a step further than the rest, and by sections 2612 and 2613, Revised Statutes, 1892, it is made a misdemeanor for a white man and a colored woman, and vice versa, to sleep under the same roof at night, occupying the same room. Florida is entitled to credit, however, for a statute making marriages between white and colored persons prior to 1866, where they continue to live together, valid and binding to all intents and purposes.

In addition to this forced separation of the races by law, "from the cradle to the grave," there is yet a sadder and more deplorable separation, in the almost universal disposition to leave the negroes wholly and severely to themselves in their home life and religious life, by the white Christian people of the South, distinctly manifesting no concern in their moral and religious development.

In Georgia and the Carolinas, and all the Gulf States (except Texas, where the farm labor is mostly white) the negroes on the farms are held by a system of laws which prevents them from leaving the plantations, and enables the landlord to punish them by fine and imprisonment for any alleged breach of contract. In the administration of these laws they are virtually made slaves to the landlord, as long as they are in debt, and it is wholly in the power of the landlord to forever keep them in debt.

By section 355, of the Criminal Code of South Carolina, 1902, it is made a misdemeanor to violate a contract to work and labor on a farm, subject to a fine of not less than five dollars, and more than one hundred dollars, or imprisonment for not less than ten days, or more than thirty. It is also made a misdemeanor to employ any farm laborer while under contract with another, or to persuade or entice a farm laborer to leave his employer.

The Georgia laws are a little stronger in this respect than the laws of the other States. By section 121, of the Code of Georgia, 1895, it is provided, "that if any person shall, by offering higher wages, or in any other way entice, persuade or decoy, or attempt to entice, persuade or decoy any farm laborer from his employer, he shall be guilty of a misdemeanor." Again, by act of December 17th, 1901, the Georgia Legislature passed a law making it an offense to rent land, or furnish land to a farm laborer, after he has contracted with another landlord, without first obtaining the consent of the first landlord.

The presence of large numbers of negroes in the towns and cities of the South and North can be accounted for by such laws as the above, administered by ignorant country magistrates, in nearly all cases the pliant tools of the landlords.

The boldest and most open violation of the negro's rights under the Federal Constitution, was the enactment of the grand-father clauses, and understanding clauses in the new Constitutions of Louisiana, Alabama, the Carolinas, and Virginia, which have had the effect to deprive the great body of them of the right to vote in those States, for no other reason than their race and color. Although thus depriving him of his vote, and all voice in the State governments at the South, in all of them his property is taxed to pay pensions to Confederate soldiers, who fought to continue him in slavery. The fact is, the franchise had been practically taken from the negroes in the South since 1876, by admitted fraudulent methods and intimidation in elections, but it was not until late years that this nullification of the amendments was enacted into State Constitutions.

This brings me to the proposition that it is mainly in the enforcement, or the administration of the laws, however fair and equal they may appear on their face, that the constitutional rights of negroes to equal protection and treatment are denied, not only in the South but in many Northern States. There are noble exceptions, however, of high-toned honorable gentlemen on the bench as trial judges, and Supreme Court justices, in the South, who without regard to consequences have stood for fairness and justice to the negro in their courts.

With the population of the South distinctly divided into two classes, not the rich and poor, not the educated and ignorant, not the moral and immoral, but simply whites and blacks, all negroes being generally regarded as inferior and not entitled to the same rights as any white person, it is bound to be a difficult matter to obtain fair and just results, when there is any sort of conflict between the races. The negro realizes this, and knows that he is at an immense disadvantage when he is forced to litigate with a white man in civil matters, and much more so when he is charged with a crime by a white person.

The juries in the South almost always reject the testimony of any number of negroes if given in opposition to that of a white witness, and this is true in many instances, no matter how unreasonable or inconsistent the testimony of the white witness may be. Jurors in the South have been heard to admit that they would be socially ostracized if they brought in a verdict upon colored testimony alone, in opposition to white testimony.

Perhaps it can be best explained how the negro fares in the courts of the South by giving a few cases showing how justice is administered to him:

A negro boy was brought to the bar for trial before a police magistrate, in a Southern capital city, charged with assault and battery on a white boy about the same age, but a little larger. The testimony showed that the white boy had beat the negro on several previous occasions as he passed on his way to school, and each time the negro showed no disposition to fight. On the morning of the charge he attacked the negro and attempted to cut him with a knife, because the negro's mother had reported to the white boy's mother the previous assaults, and asked her to chastise him. The colored boy in trying to keep from being cut was compelled to fight, and got the advantage and threw the white boy down and blacked his eyes. The magistrate on this evidence fined the negro twenty-five dollars. The mother of the negro having once been a servant for the magistrate, found courage to rise, and said: "Jedge, yo Honer, can I speak?" The magistrate replied, "Yes, go on." She said, "Well, Jedge, my boy is ben tellin' me about dis white boy meddlin' him on his way to school, but I would not let my boy fight, 'cause I 'tole him he couldn't git no jestice in law. But he had no other way to go to school 'ceptin' gwine dat way; and den jedge, dis white chile is bigger an my chile and jumped on him fust with a knife for nothin', befo' my boy tetched him. Jedge I am a po' woman, and washes fur a livin', and ain't got nobody to help me, and can't raise all dat money. I think dat white boy's mammy ought to pay half of dis fine." By this time her voice had become stifled by her tears. The judge turned to the mother of the white boy and said, "Madam, are you willing to pay half of this fine?" She answered, "Yes, Your Honor." And the judge changed the order to a fine of $12.50 each, against both boys.

A celebrated case in point reported in the books is, George Maury vs. The State of Miss., 68 Miss. 605. I reproduce the court's statement of the case:—"This is an appeal from the Circuit Court of Kemper County. Appellant was convicted of murder and sentenced to imprisonment for life. He appears in this court without counsel. The facts are briefly these: One, Nicholson, a white man, accompanied by his little son seven years old, was driving an ox team along a public road; he had occasion to stop and the oxen were driven by his son; defendant, a negro, also in an ox wagon, was going along the road in an opposite direction, and met Nicholson's wagon in charge of the little boy. It was after dark, and when the wagons met, according to the testimony of Nicholson, the defendant insultingly demanded of the boy to give the way, and cursed and abused him. Nicholson, hearing the colloquy, hurried to the scene and a fight ensued between him and Maury, in which the latter got the advantage, inflicting severe blows upon Nicholson. This occurred on Thursday, and on the following Sunday night, Nicholson, in company with eleven or twelve of his friends, rode to the farm of Maury, and after sending several of their number to ascertain if he was at home, rode rapidly into his yard and called for him. Not finding him, they proceeded to search the premises, and found several colored men shut up in the smoke house, the door of which some of the searching party had broken open. Maury, the accused, was not found there, and about that time some one called out, "Here is George." Some of the party then started in the direction of the cotton house from which the voice proceeded, when a volley was fired from it, and two of the searching party were killed, one of whom was the son of the former owner of the defendant, and the other a brother-in-law of Nicholson. The members of the raiding party testified that their purpose in going to the home of the defendant was merely to arrest him. It was, however, shown that Nicholson, immediately after the fight on Thursday, informed Cobb, and Cobb between Thursday and Sunday night collected the men who joined in the raid. No affidavit for the arrest of Maury had been made, and none of the party had any warrant, or made any announcement to the defendant or his family, of the object of their visit. The accused who testified in his own behalf, denied that he was at home at the time of the shooting, and says he fled before the raiding party arrived. He also contradicted Nicholson in his account of the difficulty with him, and denies that he spoke harshly to the child." Chief Justice Campbell, in delivering the opinion of the court said, "It is inconceivable that the crime of murder is predicable of the facts disclosed by the evidence in this case. The time and place and circumstances of the killing forbid any such conclusion as a verdict of guilty of murder." The judgment of the trial court was reversed.

This same Chief Justice, in the case of Monroe vs. Mississippi, 71 Miss. 201, where a negro was convicted of rape, makes use of the following brave and noble language, reversing the case on the ground of the insufficiency of the evidence: "We might greatly lighten our labors by deferring in all cases to the verdict approved by the presiding judge as to the facts, but our duty is to administer justice without respect of persons, and do equal right to the poor and the rich. Hence the disposition, which we are not ashamed to confess we have, to guard jealously the rights of the poor and friendless and despised, and to be astute as far as we properly may, against injustice, whether proceeding from wilfulness or indifference."

The country has produced no abler jurist, nor the South no greater man than Ex-Chief Justice Campbell of Mississippi. If the counsel of such men as he and Chief Justice Garret of the Court of Civil Appeals of Texas, could obtain in the South, there would be no problem between the races. All would be contented because justice would be administered to the whites and blacks alike.

In the administration of the suffrage sections under the new Constitutions of the South by the partisan boards of registrars, the same discrimination against negroes was practiced. Their methods are of more or less interest. The plan was to exclude all negroes from the electorate without excluding a single white man. Under the Alabama Constitution, a soldier in the Civil War, either on the Federal or Confederate side, is entitled to qualification. When a negro goes up to register as a soldier he is asked for his discharge. When he presents it he is asked, "How do we know that you are the man whose name is written in this discharge? Bring us two white men whom we know and who will swear that you have not found this paper, and that they know that you were a soldier in the company and regiment in which you claim to have been." This, of course, could not be done, and the ex-soldier who risked his life for the Union is denied the right to vote.

The same Constitution provides that if not a soldier or the legal descendant of one, an elector must be of good character and understand the duties and obligations of citizenship under a Republican form of government. When a negro claims qualifications under the good character and understanding clauses he is put through an examination similar to the following:

"What is a republican form of government?

"What is a limited monarchy?

"What islands did the United States come into possession of by the Spanish-American War?

"What is the difference between Jeffersonian Democracy and Calhoun principles, as compared to the Monroe Doctrine?

"If the Nicaragua Canal is cut, what will be the effect if the Pacific Ocean is two feet higher than the Atlantic?" Should these questions be answered satisfactorily, the negro must still produce two white men known to the registrars to testify to his good character. A remarkable exception in the treatment of negroes by the registrars of Dallas county, Alabama, is shown in the following account taken from the Montgomery Advertizer:—

"An old negro barber by the name of Edward E. Harris, stepped in before the registrars, hat in hand, humble and polite, with a kindly smile on his face. He respectfully asked to be registered. He signed the application and waited a few minutes until the registrars had disposed of some other matters, and being impressed with his respectful bearing, some member of the board commenced to ask a few questions. The old man told his story in a straight forward manner. He said: "Gentlemen, I am getting to be a pretty old man. I was born here in the South, and I followed my young master through all of the campaigns in Virginia, when Mas' Bob Lee made it so warm for the Yankees. But our luck left us at Gettysburg. The Yankees got around in our rear there, and I got a bullet in the back of my head, and one in my leg before I got out of that scrape. But I was not hurt much, and my greatest anxiety was about my young master, Mr. John Holly, who was a member of the Bur Rifles, 18th Mississippi. He was a private and enlisted at Jackson, Miss.

"He could not be found the first day; I looked all among the dead on the battle field for him and he was not there. Next day I got a permit to go through the hospitals, and I looked into the face of every soldier closely, in the hope of finding my young master. After many hours of searching I found him, but he was dangerously wounded. I stayed by his side, wounded as I was, for three long weeks, but he gradually grew worse and then he died. I went out with the body and saw it buried as decently as I could, and then I went back to Jackson and told the young mistress how brave he was in battle, how good he was to me, and told her all the words he had sent her, as he lay there on that rude cot in the hospital. That is my record as a Confederate soldier, and if you gentlemen care to give me a certificate of registration, I would be much obliged to you." It is needless to say that old Ed. Harris got his certificate.

It is insisted upon by the leaders of public opinion at the South, that negroes should not be given equal political and civil rights with white men, defined by law and enforceable by the courts; but that they should be content to strive to deserve the good wishes and friendly feeling of the whites, and if the South is let alone, they will see to it that negroes get becoming treatment.

While there is a large number of the high-toned, chivalrous element of the old master class yet living, who would stand by the negro and not permit him to be wronged if they could prevent it, yet they are powerless to control the great mass of the poor whites who are most bitter in their prejudices against the negro. They should also bear in mind that the old master class is rapidly passing way, and that there is constantly an influx of foreigners to the South, and in less than fifty years the Italians, or some other foreign nationality, may be the ruling class in all the Southern States; and the negro, deprived of all political and civil rights by the Constitution and laws, would be wholly at the mercy of a people without sympathy for him.

In order to show the fallacy and the wrong and injustice of this doctrine, and how helplessly exposed it leaves the negro to the prejudices of the poor whites, I relate a tragedy in the life of a friend of mine, who was well known and respected in the town of Rayville, Louisiana.

Sewall Smith, for many years ran the leading barber shop for whites in the town of Rayville, and was well-liked and respected by the leading white men of the entire parish. At the suggestion of his customers he bought Louisiana state lands while they were cheap, before the railroad was put through between Vicksburg and Shreveport; and as the road passed near his lands he was thereby made a rich man, as wealth goes in those parts. His good fortune, however, did not swell his head and he remained the same to his friends. He became so useful in his parish that there was never a public gathering of the leading white business men that he was not invited to it, and he was always on the delegations to all the levee or river conventions sent from his parish. He was chosen to such places by white men exclusively; and in his own town he was as safe from wrong or injury, on account of his race or color, as any white man.

After the trains began to run through Rayville, on the Shreveport road, he had occasion to visit the town of Ruston, in another parish some miles in the interior, and as he got off at the depot, a barefoot, poor white boy asked to carry his satchel. Smith was a fine looking mulatto, dressed well, and could have easily been taken for a white man, and the boy might not have known at the time he was a negro. When he arrived at his stopping place he gave the boy such a large coin that he asked permission to take his satchel back to the train on the following day when he was to return. The next day the boy came for the satchel, and they had nearly reached the depot about train time, when they passed a saloon where a crowd of poor whites sat on boxes whittling sticks. The sight of a negro having a white boy carrying his satchel quite enraged them, and after cursing and abusing Smith and the boy, they undertook to kick and assault Smith. Smith defended himself. The result was a shooting affair, in which Smith shot two or three of them and was himself shot. The train rolled up while the fight was in progress, and without inquiring the cause or asking any questions whatever, fully a hundred white men jumped off the train and riddled Smith with bullets. That was the end of it. Nobody was indicted or even arrested for killing an insolent "nigger" that did not keep his place. That is the way the affair was regarded in Ruston. Of course, the people of Rayville very much regretted it, but they could not do anything, and could not afford to defend the rights of a negro against white men under such circumstances, and the matter dropped.

I have preferred not to mention the numerous ways and many instances in which the rights of negroes are denied in public places, and on the common carriers in the South, under circumstances very humiliating and degrading. Nor have I cared to refer to the barbarous and inhuman prison systems of the South, that are worse than anything the imagination can conceive in a civilized and Christian land, as shown by reports of legislative committees.

If the negro can secure a fair and impartial trial in the courts, and can be secure in his life and liberty and property, so as not to be deprived of them except by due process of law, and can have a voice in the making and administration of the laws, he shall have gone a great way in the South. It is to be hoped that public opinion can be awakened to this extent, and that it may assist him to attain that end.

This work is in the public domain in the United States because it was published before January 1, 1926. It may be copyrighted outside the U.S. (see Help:Public domain).