The Family of Jack and Sallie Foster [Blyew v. United States]
(born: 1868)In Lewis County, KY, during the summer of 1868, five members of the Foster family were attacked by John Blyew and George Kennard, who used a carpenter's ax and some other bladed tool to hack at the bodies of the family members. Jack, his wife Sallie, and his grandmother Lucy Armstrong, who was blind, were killed outright. Richard, the Foster's 16-year old son, took shelter under his father's body. He later regained consciousness and crawled 300 yards to a neighbor's house for help but died two days later. The two youngest children were the only survivors: Laura Foster, 8-years old, hid and was unharmed, while her 6-year old sister Amelia was hacked about the head but lived. A posse was formed and Blyew and Kennard were arrested and indicted on four counts of murder.
The court hearings began October 26, 1868, with the following evidence presented: Richard Foster's dying statements, Laura Foster's written testimony [it was illegal in Kentucky for African Americans to give testimony against whites during criminal proceedings], and the testimony of those who investigated the crimes. One of the reasons given for the murders was retaliation for the Civil War and the potential for another war about African Americans.
The trial was held in U.S. Court for the District of Kentucky before Judge Bland Ballard. The prosecuting attorney was Benjamin H. Bristow, who later became the first U.S. Solicitor General and served as Secretary of the Treasury in the Grant Administration before becoming a Republican presidential nominee in 1876. Two years prior to the Foster family murders, Congress had passed the Civil Rights Act of 1866, which gave jurisdiction to federal courts for all causes, civil and criminal, affecting persons who are denied or cannot enforce any of the rights secured to them in the courts or judicial tribunals of the state or locality, wherever they may be.
The understanding of the provisions of the act was why Blyew and Kennard were tried in a federal court. Their case was presented to an all-white jury. [It was still illegal to have African American jurors in such cases in Kentucky.] None of the jury members were from Lewis County. Blyew and Kennard were found guilty and sentenced to hang.
The case was appealed to the U.S. Supreme Court as a Writ of Error. Blyew v United States was one of the first cases for the full court to analyze the provisions of the Civil Rights Act of 1866. Kentucky Governor J. W. Stevenson called for a special legislative session, and funds were appropriated to hire the distinguished lawyer Judge Jeremiah S. Black to represent Kentucky's sovereign rights as a challenge to the constitutionality of the Civil Rights Act of 1866. The governor and many of the Kentucky legislators concluded that the 1866 Act exceeded the authority of Congress and was an unconstitutional intrusion of authority. The U.S. Supreme Court deliberated for more than a year before rendering a judgment on April 1, 1872, that reversed the convictions of Blyew and Kennard with a 5-2 majority.
Prior to the decision, the Negro testimony law in Kentucky was repealed, and Blyew and Kennard were indicted and scheduled to be tried in the Lewis County Circuit Court in 1873. In Blyew's case there was a hung jury, and the case was then to be prosecuted in federal court. But before the retrial could take place, Blyew escaped.
In George Kennard's case, he was convicted and sentenced to hard labor for his natural life but pardoned by Governor Blackburn in 1885 because of his health. Kennard died of senility on April 5, 1923 in Carter County, KY, according to his death certificate.
John Blyew was recaptured in 1890, and the Lewis County Circuit Court convicted and sentenced him to life in prison. Governor W. J. Worthington pardoned Blyew in 1896, and Blyew, his wife Emma, and granddaughter Mary were residing in Cincinnati, OH in 1900, according to the U.S. Federal Census.
The surviving Foster sisters, Laura and Amelia, were taken in by a white family named Ruggles. Laura, who was born around 1860, is reported to have died of measles after living with the Ruggles for a few years, but according the U. S. Census, she was with the Ruggles' family as a servant up to 1880. Amelia (1862-1936), described as having horrendous scars on her head, was single and remained in Lewis County doing housework up until 1934 when she became ill, according to her death certificate.
For more see Blyew v. United States, 80 U.S. 13 Wall. 581 (1871) [full-text at Justia.com]; R. D. Goldstein, "Blyew: variations on a jurisdictional theme," Stanford Law Review, vol. 41, issue 3 (Feb. 1989), pp. 469-566; and Race, Law, and American Society, by G. J. Browne-Marshall.