Today I’m guest blogging about how black southerners negotiated the post-Civil War legal landscape. In particular, I want to consider how they worked to shape their civil cases against whites. This research is laid out in greater detail in my new book, Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights.
As African
Americans litigated civil cases against whites in the U.S. South from the end of
the Civil War to the mid-20th century, they saw that the outcomes of
their cases would often have enormous economic effects on their families. At
the same time, black litigants generally seem to have recognized the
difficulties of operating within the southern legal system – an institution in
which those making decisions generally had very different interests than their
own. To give their cases the best possible chance, then, black litigants in almost one thousand civil cases that reached eight southern appellate courts between 1865 and 1950 often employed a range of
strategies. While their lawyers undoubtedly
played a key part in many of these strategies, black litigants played an important
role in shaping and executing them as well.
First,
in almost every civil case between black and white southerners that I found in
eight southern state supreme courts, black litigants had hired white lawyers to represent them. The white lawyers involved were often prominent members of the
community and seem to have generally taken on a few black litigants’ cases
alongside their larger practice of cases involving white litigants. Often, white lawyers seem to have taken on
black clients because their cases promised to yield a large financial reward. At
times, however, they seem to have also been influenced by personal connections,
paternalism, ideas of professionalism, or very occasionally, to have genuinely
sympathized with the causes of their black clients. Using a white lawyer helped
make black litigants’ cases seem less threatening and more acceptable to white
judges and juries. At the same time, it limited the kinds of cases they could
bring and the types of arguments that their suits could make.
A
number of black litigants also emphasized connections with prominent whites in
their communities. While this occurred
particularly often in cases during the three and a half decades after the Civil
War, such strategies were also occasionally employed in the first half of the
20th century. At times, black
litigants mentioned their ties with local whites in their testimony, including
at times their connections to former masters. In other cases, black litigants may have played a part in identifying the white witnesses who frequently testified in their favor in such cases.
Black
litigants also shaped their testimony based on their understanding of the
relevant law. Case files suggest that they gained some knowledge of the law
from coaching and conversations with their lawyers. They also learned from participating
in legal actions and daily experiences in a law-saturated society. Black litigants then often worked with their
lawyers to shape their testimony to meet the demands of the law for their
particular case. In suits over bequests, for example, black litigants’
testimony sometimes helped to establish the testator’s intention to leave the
bequest to them, an element that one 19th century Tennessee judge
called “the great rule in the construction of wills.”[i] In fraud cases, on the
other hand, black litigants’ testimony often worked to establish proof of
physical injury and loss of income, two important elements to proving such a
claim.
Finally,
some black litigants used their knowledge of white southern racial attitudes to
present themselves in ways that would elicit favorable responses from largely
white juries and judges. In the decades after the Civil War, they occasionally presented themselves as having been loyal to their former masters, even after
the end of the war. At other times they
presented themselves as hardworking, “respectable,” or unthreatening. The ways
in which they presented themselves also shifted over time. During the two
decades after widespread disfranchisement occurred at the end of the 19th
century, black litigants often presented themselves in their testimony as more ignorant, more
vulnerable, and more trusting of whites than they actually were.
These strategies played a part in some
African Americans’ continuing ability to litigate and win civil cases against
whites in the Jim Crow South, even after black men largely lost the right to
vote. At the same time, these strategies sometimes limited their cases in important ways. Moreover, even as they carefully negotiated the southern legal landscape, black
litigants found that in contrast to the broad range of cases litigated between
whites, they
had the most success bringing certain kinds of cases against whites. The kinds of cases they could litigate
shifted over time, as well, as the constraints they operated under changed. I’ll be back talking about this
in my next blog post in a few days.
