Phillip Swing

Swing was the federal judge who first heard Wood v. Ward before the Circuit Court in 1878.

Following notes from alexander2005, p. 63:

The two judges who presided over the U.S. District Court for the Southern District of Ohio during this era represented the conservative-to-balanced orientation of Ohio politics. Phillip B. Swing, serving from 1871 to 1882, was, from boyhood, a close personal friend of President Ulysses S. Grant, who appointed him to replace Judge Leavitt. Raised in rural Ohio, Swing remained a small-town lawyer and then prosecuting attorney in Batavia before his appointment as a federal judge. But his thriving practice included admiralty and patent as well as general civil and criminal law. After Swing’s death on October 30, 1882, political wrangling left the judicial seat open until February 1883, when President Chester A. Arthur nominated George R. Sage, of Lebanon, to fill the vacancy.

According to table at back of alexander2005, Swing had no college or law school education, but was a Republican with political experience as a party leader and town councilman. He was appointed at age 51 and served 11 years.

Swing was fairly conservative in his rulings in favor of business, but he “took a progressive stance” on matters of race, according to alexander2005, p. 73:

In 1871, he appointed George W. Hays the first African American to have a position in the District Court for the Southern District of Ohio. A former fugitive slave, having escaped from the Confederate Army during the Civil War, Hays served as crier of the court from 1871 until his death, at the age of eighty-two, in 1929.1

Far more significant was Swing’s judicial decision in Gray v. Cincinnati Southern Railway Co. The case came to trial when an African American woman sued the railroad company for violating her rights under the Civil Rights Act of 1875. Silena Gray had purchased a first-class, round-trip ticket from Lexington, Kentucky, to Cincinnati. The trip to Cincinnati was uneventful. But when this woman of “lady-like … appearance and bearing” tried to board the train in Cincinnati for her return to Kentucky, carrying her sick child and accompanied by her Baptist minister husband, the brakeman and the conductor stopped her. They insisted she ride in the second-class car filled with men, most of whom were smoking, rather than in the first-class ladies’ car which carried ladies and gentlemen. The brakeman admitted that the only reason they denied her admittance to the ladies’ car was because she was “colored.” Grey refused to ride in the smoking car, returning home via another mode of transportation.

Despite his record of upholding “separate but equal” interpretations of the Civil Rights Act of 1875, Swing’s charge to the jury reminded them of common law principles in Ohio that held the railroad was supposed to provide Gray with accommodations like those offered to white women. Gray was then awarded “the then quite significant sum of $1,000 in damages, covering not only the cost of her ticket but also the loss of her time.”2

  1. Footnote here points to George W. Hays, Reminiscences of Hon. George W. Hays from 1890 to 1929, compiled by Angy A. Smith and Lucia B. Keys (Cincinnati: Wm. P. Houston Printing, n.d.), 18-20.

    According to M’Lissa Kesterman at Cincinnati History Library and Archives, p. 18 reads as follows:

    Beginning life as a slave in Louisiana, although his father was a freeman, his career has been highly creditable from boyhood.

    At 14 he escaped from the Confederate Army and took service with the Union cause. At the close of the war he took steps to secure an education. He was appointed to his present position by Judge Swing in 1871, and remaining as his faithful employee until his death and was continued as such by Judge Sage until succeeded by Judge Thompson just as by the former Judges as one of the important cogs in the Federal Court wheel. …

    This excerpt comes from the section the section “History of George W. Hayes [sic]” by J. M. Thompson, U.S. Deputy Marshal. Kesterman also says Hayes died in 1933, not 1929, and provided an obituary from the Cincinnati Enquirer to show it.

  2. alexander2005, p. 74. For more information on the case, see Patricia Hagler Minter, “The Failure of Freedom: Class, Gender, and the Evolution of Segregated Transit Law in the Nineteenth-Century South,” Chicago-Kent Law Review 70 (1995): 993-96; Joseph William Singer, “No Right to Exclude: Public Accommodations and Private Property,” Northwestern University Law Review 90 (Summer 1996): 1283-1495; John Hope Franklin, “The Enforcement of the Civil Rights Act of 1875,” Prologue 6 (Winter 1974), 225-35.