Tuesday, August 18, 2009

Laura Edward, on writing The People and Their Peace

Laura Edwards, Duke University, author of The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South, out this year from the University of North Carolina Press, shares her experience about writing the book in a series of guest posts, starting today. About the book, Giselle Roberts recently wrote in Civil War Book Review:

The People and Their Peace is a complex yet deeply rewarding work, meticulously researched and carefully executed. Edwards’s ability to flesh out the agency of ordinary people in the localized legal processes of the post-revolutionary South reminds us that the law and its institutions were not a “constant, unchanging background against which important, meaningful conflicts played out,” but rather a dynamic set of contradictory and often competing elements (30). The significance of Edwards’s findings both enrich and complicate our understanding of southern society not only in the post-revolutionary period but throughout the nineteenth century, making The People and Their Peace a valuable addition to the bookshelves of all students and scholars of American history.
Here's Laura Edwards:

The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South is not the book that I intended to write when I began research on the project in 1995. I had imagined a book focused more exclusively on the changing legal status of domestic dependents—slaves, wives, children, and menial laborers—in the nineteenth century South, rather than a book that dealt with broader developments in legal culture in the post-Revolutionary period. Domestic dependents and other legally marginalized people without the full array of individual rights remain at the center of The People and Their Peace. But the research took me in different directions, down unmapped dirt roads to long forgotten places in the past. That so few of these places had maps made the journey both fascinating and challenging. What I want do here is to share some challenges of that experience.

Embracing Disorganization: The Challenge of Local Courts

Most historians I know appreciate order. It is central to what we do. A basic faith in order characterizes even those of us with hopelessly disorderly desks, book cases, and research files. As historians, we take disparate pieces of evidence and then put them together to tell a coherent story about the past. We reward scholarship that makes sense of the inexplicable by explaining connections among issues and then linking them to larger historical dynamics. In fact, the very nature of our discipline assumes the presence of order at a fundamental level. We enter into our research certain that it is possible to find patterns in the past if we just look hard enough—if we just do enough research and interpret the materials properly.

I am no different. So imagine my consternation when the records I initially intended as the core of my project stubbornly refused to form patterns. The records in questions were local court records in North Carolina and South Carolina. My research plan did not depend solely on these records. I had also been working through the appellate and statute law as well as the papers of prominent legal officials. But I conceived of those other materials more as necessary background that would allow me to construct the legal structure in which to place local cases. By contrast, I saw local cases as the dynamic part of the project, because they provided graphic information about people’s interaction with the law.

The local records do not resemble the printed, organized state-level legal documents that are more familiar to historians. Local records are written in a crabbed hand and sometimes streaked with water damage and age, on paper that is stained, torn, or just plain dirty. The researcher reads around mildew and the past depredations of large insects and small mammals, while piecing together information that innovative spelling and decades of bad record keeping conspire to keep locked in the past. In North Carolina, the criminal records are collected together in record groups that include magistrates’ trial records, coroners’ inquests, and criminal records from the circuit court. They are organized by date, with the documents for any given case scattered through the files. At some point, the archivists went through the material and separated out cases that involved slaves and free blacks, creating a separate record group that seems as if it is reflective of legal practices at the time (it is not) and comprehensive of all such cases (it is not). In South Carolina, the criminal records for the circuit court tend to be grouped by case, with all the documents collected together in a single file. But the coroners’ reports, magistrates’ court papers, and other materials are filed in separate record groups, with minimal, if any, organization.

The information saved for any given case varies widely. The records were created by local officials, of different degrees of literacy, who added another layer of interpretation as they wrote, when they wrote at all. Records tend to be most complete at the circuit court level, where recordkeeping was institutionalized in the form of an appointed clerk. Even then, cases at this level appear and then disappear without a trace, let alone an explanation. These records also tend to describe the process, not the reasoning behind it: they often include perfunctory summaries of the complaint, the charge, the outcome, and sometimes even the evidence and testimony, but not the lawyer’s arguments or the judge’s charge. When testimony from circuit court proceedings appears in the records, it was usually written after the fact by clerks who were preparing case summaries for appeals. The records of magistrates, coroners, and other officials, which are often attached to circuit court cases, are both more uneven and more revealing of the cases’ dynamics. They are also maddeningly tantalizing, because it is impossible to know the number and type of cases local officials at other levels of the system mediated, but failed to record, making quantitative analyses of the remaining material pointless. Sometimes magistrates and other local officials simply copied out legal forms in longhand, filling in the blanks with the barest of details: the complainant’s name, the accused, the offense, the location, and the date. More industrious officials took down complaints as well as other evidence and testimony in a form that approached verbatim transcription. Those records have the feel of a person speaking, with informal phrasing, graphic descriptions, obvious colloquialisms, and even noticeable accents, all written in a hurried hand. All of that gives the records a sense of tactile immediacy: the physical construction of the records gives you a sense of the world from which they came.

After working through such materials—for years—it seemed reasonable to expect results. I expected that the race, class, and gender of those involved would explain the cases’ outcomes. More specifically, I had expected that the cases would fall out into definitive patterns would illustrate the differential treatment of slaves, free blacks, white women, children, and poor people as well as their changing legal status over time. But I ran into problems. It was not that race, class, and gender were unimportant. It was that the exceptions and complications made it impossible to generalize or to see any clear trajectory of change. I should have been forewarned. It is a commonplace in the literature that local courts were provincial and unprofessional, a combination that resulted in inexplicable verdicts that followed no particular logic and that were often at odds with state law. I had dismissed conventional wisdom, certain that it said more about the limitations of the historiography than the promises of the evidence. At this moment in the research, however, I despaired at my hubris. Maybe local court cases could tell me only about the vagaries of local prejudices and nothing about the history of law? Maybe local court cases were not about the law—and therefore, legal change—at all?

I was both right and wrong. The problem was that I was looking in the wrong places. What I had imagined to be the problems were the clues pointing to a solution. The uneven documentation, the obsessive focus on gathering information and statements before the trial, the idiosyncratic outcomes, the apparent disregard for state law, and the routine petitioning for pardons, among other things, formed their own legal logic. But the logic of what I call localized law was so different from my own vision of law that I had dismissed it as not really “logical” or “legal” at all. Above all, localized law did not represent—or even aim to represent—a uniform, systematic body of the law, intended to protect individual rights and defined primarily in outcomes which then became precedents for all courts in the entire state. Localized law recognized multiple sources and sites of legal authority, including customary arrangements as practiced, on the ground, in local communities. Instead of protecting the rights of legally recognized individuals, localized law maintained the social order—the “peace,” a well‑established Anglo‑American concept that expressed the ideal order of the metaphorical public body.

Localized law depended on information conveyed orally by ordinary people—even subordinates without rights—who were all considered necessary to the legal process of maintaining the peace. Legal professionals and authoritative texts were important, but they did not represent the final word on the law. When oral proceedings in localized law were reduced to writing, the resulting records did not have the authority of written legal texts today: writing remained secondary, as a reminder of oral knowledge that had determined the process. Localized law focused on the process that preceded the verdict, and not as much on the verdict itself. The adjudication of cases followed the same ritualized procedures, which were widely known and considered central to maintaining the local order—or the peace. Verdicts were the culmination of that process, but they did not carry broader implications for other cases because they were so closely tied to the specific facts and dynamics that emerged from the process itself. The concept of universality that we now assume was not so much foreign as irrelevant in localized law. How could the verdict that applied to one white woman, for instance, possibly be applied to another white woman, when all the circumstances surrounding those two women obviously made them different? Jane was Jane. Alice was Alice. The fact that they were both white, married women was important; but it was not enough to erase everything else about their place in particular communities that made them Jane and Alice.

Cracking the logic of localized law made everything else look different. Its order lay in its apparent disorder. Ultimately, those insights made me go back and rethink what I thought I knew about other parts of the legal system, and I started to question the order that I had taken for granted, namely the legal order as expressed by statutes and appellate cases at the state level.