by Thomas Quirk
In 1937 an important case involving the validity of racist deed covenants was heard at The New York State Supreme Court in White Plains. The case involved a lawsuit brought against Mrs. Pauline T. Cockburn by Mrs. Marion A. Ridgway of The Edgemont Hills neighborhood in Greenburgh, New York. According to a New York Times article 23 May 1937, Ridgway sued her neighbor Pauline T. Cockburn because she had violated a common deed covenant attached to neighborhood properties that stated “No part of said parcels shall ever be leased, sold, rented, conveyed or given to Negroes or any persons of the Negro race or blood, except that colored servants may be maintained on the premises.”
Pauline Cockburn had purchased the property on April 16th 1933. She and her husband Joshua built a $20,000 home there and moved in on December, 31st 1936. Marion Ridgway explained to the press that she thought she had purchased a home in a “very exclusive neighborhood.” Pauline Cockburn was reported by the Times to be “extremely light skinned“. She later testified in court that her mother was Italian and her father had some Negro blood.
The Cockburns had an excellent defense team. Arthur Garfield Hays of The American Civil Liberties Union was lead counsel and his assistant counsel was a young N.A.A.C.P. attorney named Thurgood Marshall. Their goal was to call into question the fact that the United States had no legal definition of what a Negro actually was.
The New York Age reported on 4 March, 1933 that Hays had written Walter White, the blonde haired blue eyed secretary of the N.A.A.C.P to state why he wanted to try the case: “ I do not quite understand why the question has never been raised before, but it is about time that someone raised the point that there are practically no Negroes in The United States. You people call yourselves Negroes just like a lot of us call ourselves Jews, who come from a certain race and belong to a minority group. In other words, we are not willing to desert an oppressed group even if we have the opportunity to do it. Nobody knows what a Negro is, even Negroes themselves, any more than anyone knows what a Jew is, and I’d like to be helpful in getting the courts to do away with artificial distinctions among people of the human race.” In his 1942 autobiography City Lawyer Hays states that “for illustrative purposes, on the first day of the trial a large number of light skinned Negroes and an equally large number of dark Italians.” His goal was to demonstrate that color alone could not be a determining factor with regard to a person’s race.
Racially restrictive deed covenants first came into use in 1917 after The United States Supreme Court ruled that municipalities could not assign specific areas to specific racial groups. Negroes and Jews were often barred from certain neighborhoods due to deed covenants attached to residential properties. The Supreme Court had found such covenants legal in 1926.Joshua and Pauline Cockburn had come to Ellis Island from The Bahamas in 1919. They had been living in Lagos, Nigeria. Joshua had served with distinction as a Ship Master in the Cameroon Campaign during World War I. The couple had married in Liverpool, England in 1911. According to sociologist Paul Gilroy, the dockside neighborhoods of Liverpool were a unique place in the English speaking world of the late 19th and early 20th centuries because people of different races from all over the British Empire mingled together. One phenomenon of this experience was that black sea captains often married local white women. Pauline later told Arthur Garfield Hays that although she was white in appearance, she had always considered herself to be a Negro because that is whom she had associated with all her life.
Upon arriving in New York Joshua Cockburn met Marcus Garvey, the charismatic leader of The United Negro Improvement Association (U.N.I.A.). Garvey was impressed to meet a black sea captain. He and Cockburn embarked on creating The Black Star Line, an all Negro shipping line that would serve the dual purpose of being financially viable and uplifting the Negro Race. This was no small task at anytime, but probably no more so than in 1919, the year of the infamous Red Summer. Race riots occurred in cities throughout The United States and Great Britain. In Liverpool, mobs of white men had specifically targeted Black sailors who had white wives.
Perhaps this is why the Cockburns decided to try their luck in New York City. According to The Marcus Garvey Papers (University of California at Berkley Press) He hired Cockburn to be ship’s captain and tasked him with purchasing a ship and the necessary maritime papers for sailing it. Cockburn was in Garvey’s employ for six months. He purchased The Yarmouth, a run down coal ship that was rechristened The Frederick Douglass. The ship did make a few voyages with Cockburn at the helm but the Black Star Line Venture was beset with a multitude of administrative problems. According to The New York Times 23 March 1923 Cockburn was a witness at Marcus Garvey’s trial when the United States Government charged him with mail fraud. Cockburn testified that Garvey had badly mismanaged The Black Star Line. Garvey maintained that his former skipper had received kickbacks from the ship’s previous owners for negotiating a price five times what it had been actually worth. Cockburn did testify that he had received a payment from the Green River Distillery for loading 900 tons of Whiskey onto The Frederick Douglass in record time in order to get out of port before Prohibition set in. That first voyage had been a disaster, as the ship hit a reef and had to unload its cargo before being towed back to port. According to The Marcus Garvey Papers Vol.III , Garvey accused Cockburn of having the whiskey taken away in tugboats that had been waiting 100 miles from the harbor. He accused Cockburn of being a “drunk”. The two men had been bitter enemies since Garvey had sacked Cockburn during the summer of 1920. Cockburn had been a willing witness for The U.S. Government, although he had always refused to provide evidence that Garvey had violated The Mann Act, despite repeated requests from J.Edgar Hoover that he do so. The Black Star Line was bankrupt, Garvey was indicted for mail fraud, imprisoned and eventually deported to Jamaica. Joshua Cockburn became a wealthy Harlem real estate magnate.
Newspapers often reported the Cockburn’s activities during the twenties and thirties. The New York Times reported that Joshua had made a $5,000 contribution towards the construction of The Episcopal Cathedral of St. John the Divine in memory of his only son who had died and been buried at sea. He had done so as a by donating through the committee of the Episcopal Church of St.Phillip in Harlem. Joshua had donated a large silver cup to The New York Tennis Association in 1926. The Cockburn Cup Tennis matches became an annual interstate tennis tournament in upper Manhattan. They were still being held the year The Cockburn trial took place. The Cockburns were also listed in the society pages of Negro Newspapers and The Business Pages of The New York Times and TheYonkers Herald Statesman. Joshua and Pauline established The Pauline Realty Company. Marcus Garvey had charged that the seed money for this company came from money Cockburn had earned from bootlegging the whiskey that had been “lost” on The Frederick Douglass’s maiden voyage. For Garvey, the proof for this charge was the fact that Joshua Cockburn put the company in his wife’s name. However, it is also conceivable that putting a real estate company in the name of a spouse who looked white was sound business sense in the hyper-racist atmosphere of the western world in the early 1920’s. During the late 1930’s Joshua purchased The Old Tree Inn in Yonkers with two female business partners. He had opened Harlem’s first post prohibition liquor store. According to the 1940 census Pauline Cockburn listed her occupation as “retail liquor” so it is safe to assume that she worked at or operated the store.
Marion Ridgway sought an injunction to force the Cockburns from their home at The New York State Supreme Court on February, 1st 1937. Pauline Cockburn was the only person named in the suit because Joshua’s name had not been listed on the deed. Ridgway and her attorney Morris Orenstien asked Judge Raymond E. Aldrich to issue an injunction to prevent the Cockburns from residing at their home on Fort Hill Road. Indicative of the world situation during the late 1930′s, Attorney Hays referenced Nazi Germany. The Yonkers Herald Statesman reported on 2 February, 1937 that he had argued “No one but the Nazis of Germany can be certain about a race.” The Herald Statesman’s headline stated the goal of the Cockburn’s defense team Supreme Court Asked to Rule on Question: What is Negro?
Expert testimony was provided by noted anthropologist Dr.Franz Boas of Columbia University. He and his protégé Professor Otto Klineberg testified that scientifically speaking, the only true Negroes came from central Africa. The New York Times reported 10 February, 1937 that Justice Raymond E. Aldrich refused to grant the injunction, stating that to do so “might very well be a gross injustice.” The trial began in March.
Arthur Garfield Hays of The American Civil Liberties Union (A.C.L.U.) was better known than Thurgood Marshall in 1937. He had participated in The Scopes Trial and many other civil rights cases during the twenties and thirties, Hays was passionate about making The United States Government and its state governments honor the Bill of Rights. His 1928 book Let Freedom Ring detailed the myriad of ways those sacred rights were dishonored by state and federal authorities on a daily basis. Hays argued that the Cockburns had every right to live in Edgemont Hills because they were American Citizens (they had become citizens in 1926.)
Hays and Marshall put Dr.Klineberg on the witness stand to make their case that the Cockburns could not truly be considered Negroes. According to The Yonkers Herald Statesman 23 March 1937, Klineberg testified that 70% of the people in The United States classified as Negroes were actually mixtures of several different races. Morris Orenstien then cross examined Klineberg. He asked Joshua Cockburn to stand and said “Would you say this man was a Negro?”
“I would guess he is about three-quarter Negro.” Dr.Klineberg answered.
“Undoubtedly Captain Cockburn has Negro ancestry , but whether he would qualify as a member of the Negro race I could not state and neither do I believe could anybody else.”
Dr.Klineberg then amplified his statement by pointing out that in the same family blood brothers and sisters may differ markedly, some having distinct Negro characteristics and some lacking them almost entirely.
Hays then asked Joshua Cockburn if he thought he was a Negro.
“I don’t know,” Cockburn replied.
At that point Justice Lee Parsons Davis said to Hays interjected “Don’t you think he is trifling with the court, Mr. Hays?”
Hays explained to the judge that he had instructed his client to answer the question in the negative to prove the defense team’s contention that Negro is an uncertain term with no legal basis. Although some southern states did provide criteria for determining if a person had Negro blood, the state of New York did not.
Justice Lee Parsons Davis presided over The Cockburn’s trial. He was serving his first term as a New York State Supreme Court Justice. He had been a successful attorney for many years. His New York Times Obituary would later state that as the Prosecutor for Westchester County he had sent 35 men to the electric chair. After becoming a defense attorney he took part in many celebrated cases during the 1920’s. According to author Elizabeth M. Smith-Pryor in her book Property Rites; The Rhinelander Trial Passing, and The Protection of Whiteness two of those trials involved persons of mixed racial backgrounds. In the Rhinelander Trial of 1925 Davis had successfully prevented a former maid, Alice Rhinelander from having to have her marriage to a wealthy New York aristocrat annulled because she was found to have Negro Blood. Davis had won the case by having Alice Walker disrobe in front of the all white male jury to prove that one could tell she had Negro blood if they looked closely enough. He later won an annulment trial for a Westchester socialite who had married a baggage handler with Negro blood. In both cases he had successfully argued that one could tell a person of Negro ancestry simply by looking at them. In the case of Professor Klineberg’s testimony, Davis said he would reserve judgment.
After realizing that his primary argument of “What is a Negro?” had failed to persuade judge Davis, Hays put Norman W.Zaubler, president of The Certified Homes Corporation on the stand. The Mt. Vernon Daily Argus reported on 23 March 1937 that Zaubler testified that Joshua Cockburn had told him he would surround his home with guns after hearing that the other residents of his Fort Hill Road neighborhood were hostile to his presence there. Hays got Zaubler to admit that he had unsuccessfully bid for the Cockburn’s building contract back in 1933. He asserted that the developer had been responsible for generating hostility towards the Cockburn’s presence in Edgemont Hills out of spite. The New York Times 23 March 1937 reported that Hays also charged that Marion Ridgway and Zaubler had been involved in an attempt to force The Cockburns to buy more property from them. Residents of Fort Hill Road had packed the court room because they wanted to see the deed covenant honored. They asserted that The Cockburns would bring down property values if they were allowed to live in the neighborhood. Arthur Garfield Hays conceded that this was true, but that other considerations such as The Cockburn’s civil rights under the 13th and 14th amendment must take precedent.
The New York Times reported Justice Davis’s 1,600 word ruling on 8 June 1937. Davis found for Marion Ridgway on all counts. He found that Pauline Cockburn had not admitted that she had Negro blood when she purchased her property in Edgemont Hills. Davis found no conflict with the deed covenant and the 14th amendment to the constitution. “There can be no doubt that the defendant is partly “colored.” She considers herself an octoroon; that is , a person with one-eighth Negro-blood. She concedes that she belongs to the ‘colored race’ and has in the past called herself a ‘colored person.’ Her husband, Joshua Cockburn is concededly a ‘colored man’ The proof indicates that he has at least three-quarters Negro blood. In every outward appearance he is what would be called, in common speech, a Negro. There is no reflection whatever on the character of either the defendant or her husband, nothing to indicate they are anything other than an entirely respectable couple. The plaintiff brings this action simply to enforce a covenant, and asks an injunction restraining the defendant and others assisting her from using or occupying the premises.”
Despite losing the case Arthur Garfield Hays won the The Cockburns the right to remain in their home in Edgemont Hills. He states in his autobiography that the plaintiffs knew he planned to appeal the verdict and that if he won it would be “ an invitation for colored people to flock to the section involved. Consequently our opponents never entered an order on the judge’s decision and the Cockburns are still living in Scarsdale.” (although Edgemont Hills is located in Greenburgh it has a Scarsdale address and post office) .
Although they were able to keep and live in their Edgemont Hills home there was trouble in The Cockburn’s future. The Yonkers Herald Statesman reported 11 July 1939 that Pauline T. Cockburn hit Theresa Bertell with her automobile while she crossing the street in upper Manhattan. Pauline was not charged at the scene but when Bertell died of a skull fracture a few days later she was charged with Automotive Homicide and had to post $500 bail.
A 1941 New York Age society page entry states that The Cockburns hosted a New York Society couple at their home in Westchester. Joshua Cockburn died in 1942 at the age of 62. In 1946 the Town of Greenburgh got into a dispute with Pauline Cockburn over its desire to build a sewer line on a corner of her Fort Hill Road property. She asked for $2,000 but the town refused and “began condemnation proceedings.” An easement was listed in the land records for Westchester County in 1946.
In 1948 The United States Supreme Court ruled that racist deed covenants attached to residential properties were not legally enforceable. The justices’ reasoning was much like the reasoning that Hays and Marshall tried to use during the 1937 case. Racial terms such as Negro had no legal definition in The United States so legal documents listing them could not be enforced by the courts. In 1949 The Town of Greenburgh purchased the Cockburn’s home on Fort Hill Road. It is reasonable to conjecture that the property was taken due to non-payment of taxes.
In 1953 a California case much like the Cockburns case was brought before The U.S. Supreme Court. The justices ruled 6-1 that the racist covenant was invalid. The New York Times 16 June 1953 quoted Thurgood Marshall’s response to the decision “This case is a natural sequel to the other restrictive covenant cases. We are quite sure that we can meet other attempts to circumvent these decisions. On the other hand we are certain that die-hard white supremacists will come forth with some other ingenious scheme which we will have to meet. We will not stop until Negroes are entirely free to live wherever they have the money to buy or rent.” Although a battle had been one, Marshall recognized that the war was ongoing.
One year later Marshall won The landmark Brown v. Board of Education Supreme Court decision which ruled that segregation in public education was unconstitutional. Research conducted by Dr.Otto Klineberg that compared the achievement of Negroes who were educated in the south with that of Negroes educated in the North was instrumental in helping to convince the members of The Warren Court that people of color were harmed by segregation in education.
Residency records indicate that Pauline Cockburn was living in Pawtucket, Rhode Island in 1960. She died there in 1967, one year before The Federal Fair Housing Act made racially restrictive deed covenants illegal.
For more information, see Thomas-Quirk.com