On August 29, 1868, two white men by the names of John Blyew and George Kennard entered the house of the Foster family, an African American home in Lewis County, Kentucky.^[1] The two white men had a woman with them, and they were arguing with the Foster family insisting they needed to house the woman.^[1] The two white men attacked the family with an axe; four African-Americans died and many were injured, including children.^[1] Kennard used an axe and another 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, hid 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: 8-year-old Laura Foster, who hid, and her 6-year-old sister Amelia, who was hacked in the head, but lived.^[2]

The case was heard before the U.S. Supreme Court in April 1872 addressing the civil rights of African Americans, as well as states' rights issues. The case involved the testimony of African-American victims of the attack. At the time of the murders, Kentucky law prohibited the testimony of a "Negro" against a white man and barred African Americans from serving on juries (the law was repealed in 1872) The testimony revealed that among the reasons for the murders was retaliation for the American Civil War and the potential for another war about African Americans. According to Blyew, Kennard had declared that "he thought there would soon be another war about the niggers; that when it did come, he intended to go to killing niggers, and he was not sure that he would not begin his work of killing them before the war should actually commence."^[3] The case was eventually moved to federal court, where the attackers were convicted. Both men were sentenced to death by hanging.^[4]

The State of Kentucky then appealed the case to the Supreme Court citing states' rights in defense of its laws prohibiting African Americans from testifying against whites. The case was a test of the Civil Rights Act of 1866. The Supreme Court ruled that victims were not entitled to protection from the state law because the word "affected" in the law did not apply to victims of crimes who are not defendants in a case.^[5] Noah Swayne (the first Republican appointed to the Supreme Court) and Joseph Bradley dissented.^[1] Civil rights legislation was subsequently modified and comments in the dissent are noted for putting forth a group right to the adequate protection of the law.^[6] Justice William Strong wrote that any case involving an African American witness could be brought to a Federal Court if the court had ruled for the victims and upheld the right of African Americans to testify in court.^[7]

The case was moved back to state court. Blyew's case ended in a hung jury. In 1873, however, before he could be retried, he escaped from prison with several other inmates.^[8] He was recaptured in 1890, found guilty of murder, and sentenced to life in prison. Blyew was pardoned by Governor William Jackson Worthington, who had expressed doubts over the evidence used to convict him, on December 8, 1896. He was reported living with his daughter in Ohio in 1900. In 1876, Kennard was found guilty of murder and sentenced to life in prison with hard labor. According to one report at the time, his refusal to escape when he had the judge may have been in a factor in the jury's decision to spare his life. Kennard was pardoned by Governor Luke P. Blackburn on health grounds on March 28, 1885, and died on April 5, 1923, at the age of 82.^[9]

• The Family of Jack and Sallie Foster, Blyew v. United States," Notable Kentucky African Americans Database, accessed March 7, 2018
• Goldstein, Robert D. (February 1989). ""Blyew": Variations on a Jurisdictional Theme". Stanford Law Review. 41 (3): 469–566. doi:10.2307/1228879. JSTOR 1228879.
• Blyew v. United States, 80 U.S. 13 Wall. 581 (1871)