A Cultural History of Law

Out now with Bloomsbury is A Cultural History of Law, a six-volume collection examining law in western societies from antiquity to the modern age. From the press: 

How have legal ideas and institutions affected Western culture? And how has the law itself been shaped by its cultural context? 

In a work spanning 4,500 years, these questions are addressed by 57 experts, each contributing an authoritative study of a theme applied to a period in history. Supported by detailed case material and over 230 illustrations, the volumes examine trends and nuances of the culture of law in Western societies from antiquity to the present. 

Individual volume editors ensure the cohesion of the whole, and to make it as easy as possible to use, chapter titles are identical across each of the volumes. This gives the choice of reading about a specific period in one of the volumes, or following a theme across history by reading the relevant chapter in each of the six. 

The six volumes cover: 1 - Antiquity (2500 BCE-500 CE); 2 - Middle Ages (500-1500); 3 - Early Modern Age (1500-1680); 4 - Age of Enlightenment (1680-1820); 5 - Age of Reform (1820-1920); 6 - Modern Age (1920-present). 

Themes (and chapter titles) are: Justice; Constitution; Codes; Agreements; Arguments; Property and Possession; Wrongs; and the Legal Profession. 

A Cultural History of Law is part of the Cultural Histories Series. 

More on each volume after the jump:

Pfeifer on lynching around the world

Michael J. Pfeifer (John Jay College of Criminal Justice and the CUNY Graduate Center) published Global Lynching and Collective Violence. Vol.2: The Americas and Europe with the University of Illinois Press in 2017. From the publisher:

In this second volume of the groundbreaking survey, Michael J. Pfeifer edits a collection of essays that illuminates lynching and other extrajudicial "rough justice" as a transnational phenomenon responding to cultural and legal issues.

The volume's European-themed topics explore why three communities of medieval people turned to mob violence, and the ways exclusion from formal institutions fueled peasant rough justice in Russia. Essays on Latin America examine how lynching in the United States influenced Brazilian debates on race and informal justice, and how shifts in religious and political power drove lynching in twentieth-century Mexico. Finally, scholars delve into English Canadians' use of racist and mob violence to craft identity; the Communist Party's Depression-era campaign against lynching in the United States; and the transnational links that helped form--and later emanated from--Wisconsin's notoriously violent skinhead movement in the late twentieth century.

Praise: 

"Global Lynching and Collective Violence, Volume 2 broadens our perspective on lynching beyond the American South. The essays in the collection are theoretically sophisticated and well documented. This book will be a standard work in the field." -Margaret Vandiver

"This impressive collection greatly contributes to our understanding of lynching, calling attention to its long-neglected global and transnational dimensions. It is an indispensable resource for anyone interested in studying mob violence from an international perspective." -Simon Wendt

Further information is available here.

Teaching Resource: Excerpts from Case File of City of Harrodsburg v. Sallee

As part of my guest blogging this month about the research in my new book Litigating Across the Color Line, I'm sharing excerpts from some of the archival case files of civil cases involving African Americans that I feature in my book. During the next few weeks, I'll also be sharing additional case file excerpts that could be used for teaching on my personal website, www.melissamilewski.com.

Today, I'm sharing an excerpt from the Kentucky case of City of Harrodsburg v. Sallee, which is

featured in Chapter 7, my chapter that examines African Americans' personal injury cases against white southerners between 1900 and 1920. You can read more about the case in my recent post on the Black Perspectives website. Here is a brief excerpt from the archival record of the case:

"City of Harrodsburg v. Sallee, 142 Ky. 829 (1911)

Courtesy Kentucky Dept. for Libraries and Archives

Petition: Rebecca Sallee Plaintiff vs. City of Harrodsburg Defendant

The Plaintiff Rebecca Sallee states that the Defendant City of Harrodsburg is a corporation duly organized under the laws of the State of Kentucky, and by the terms of its charter authorized and empowered to make contracts, to sue and be sued and to do all things necessary or pertaining to such a corporation, that by virtue of the laws under which it is incorporated the Defendant is and was at the times of the matters hereinafter complained of required to keep its side-walks and other public ways free from obstructions of every kind and in a reasonable safe condition, for the use of persons using and traveling thereon.

Plaintiff states that on the 7th day of October 1909 and for sometime prior thereto therewas, in or near the edge of the pavement on side-walk on the East side of College Street in front of lot of Chas. S. Vanarsdall a hole dug the depth of about two feet, and on the pavement was piled dirt, brick and piping making a dangerous and unsafe condition of said side-walk for the traveling public, that said obstruction were known by the defendant, its officers and agents, negligently suffered and permitted said hole and dirt heap to remain on said sidewalk for a considerable time, up to and including the night of October 7th 1909, when the injury hereinafter complained of occurred.

Plaintiff states that while said side-walk was thus obstructed to-wit, on the night of October 7th 1909, while the plaintiff was using said side-walk and was traveling thereon, from her home on Cornishville, street to the town, and without fault on the part of the Plaintiff, she stumbled over the said pile and heap of dirt, brick and piping and fell over same into the hole, whereby her limbs and body, were bruised and hurt and her back was wrenched and injured, producing thereon a large lump, and so violently wrenching, straining and spraining, plaintiff’s limbs and body, and by the shock to plaintiff’s nerves her kidneys were caused thereby to be disturbed and diseased and by reason of said fall and consequent injury as stated, plaintiff suffered great bodily pain and mental anguish, and has sustained loss of time and labor and was compelled to incur indebtedness for medical aid and attention, and her power to earn money has been permanently lessened. All of which was without the fault of plaintiff and was because of the negligence of defendant and to the damage of Plaintiff in the sum of Fifteen Hundred dollars.

Wherefore she prays judgement against the defendant for said sum of Fifteen Hundred Dollars, for her costs herein and for all proper relief.

B.F. Roach, Attorney for Plff.
______________________________________________

Official Stenographer’s Report of Testimony.

Be it remembered that on the trial of the above action at the May term 1910, of the Mercer Circuit Court, the Plaintiff testified on her own behalf and introduced witnesses on her behalf, as follows:

Rebecca Sallee, Examined by Atty for Plff.
1-Q- Where do you live?
Ans – On Cornishville pike.
2-Q- What is your age?
Ans – I was born in 1862.
3-Q- You are the wife of Jim Sallee?
Ans- Yes sir.
5-Q- And how many children have you?
Ans – Sixteen
6-Q- Where do you work?
Ans – For Mr. C.D. Thompson.
7-Q- What position did Mr. Thompson occupy in the City of Harrodsburg during last year.
Ans – He was Mayor of the City.

Teaching Resource: Excerpts from case file of Leonard v. Roebuck

As part of my guest blogging this month about the research in my new book Litigating Across the Color Line, I wanted to share excerpts from some of the archival case files of civil cases involving black litigants that I feature in my book. On my personal website, www.melissamilewski.com, I'll also be sharing more case file excerpts in the next few weeks that could be used alongside my book for teaching.

Courtesy Alabama Dept. of Archives & History

Today, I'm sharing an excerpt from the Alabama case of Leonard v. Roebuck (1907), which is featured in Chapter 6, my chapter examining African Americans' fraud cases against white southerners between 1900 and 1920. After inheriting 80 acres of land from her father, the plaintiff, Lurena Roebuck, encountered a series of threats to her land. One morning in 1906, while she was still trying to fend off local whites' claims to her land, a white saloon owner named John Leonard came to her house and tried to buy 20 acres that were in dispute. Eventually he pressured her into signing a document selling the land. However, Roebuck remained unsatisfied with the transaction and soon consulted a white lawyer. He discovered that the document she had signed had transferred all 80 of her acres to the white saloon owner. In response, Roebuck brought a civil case against the white saloon owner, alleging fraud. In her testimony, Roebuck emphasized her lack of business understanding, seemingly to strengthen her legal claims of fraud. At the same time, she asserted her legal rights and her ideas of economic justice. Here are excerpts from her testimony in the trial proceedings:

"Lurener Roebuck v. John F. Leonard ) In Chancery in Birmingham, Ala.

Testimony taken before the Register 11/17/1906.
Lurener Roebuck, being first duly sworn testified:
I am the complainant in this cause and am 22 years of age and reside in Jefferson County, Alabama. Mr. John F. Leonard, the respondent, is over the age of 21 years of age and resides in Jefferson County, Alabama. I live about a mile and a half in the Country above East Lake. I was living there on and prior to the 30th day of May, 1906. Prior to that date I was the owner of the NE 1/4 of the SE 1/4 and the SE 1/4 of the SE 1/4, Sec.30, Tp. 17, R. 1 West, in Jefferson County, Alabama. I am the only child of Jackson Ellard, deceased. He owned the land in his life time; he entered it. I know Mr. John F. Leonard. On the 30th day of May, 1906, he came out to my house to see me. He came to my house at about 11 A.M. on that day and asked me would I sell him my claim in 20 acres of land that Mr. Dougherty was in possession; I told him I did not know what about it; that I did not want to sell it; and he said that makes no difference he wanted to buy it; that Mr. Dougherty sent him out there. I told him that I did not know anything about it; that my uncle was attending to it, and he said that Mr. Dougherty said he had already seen my uncle about it and he said it would be all right. I told him I didn’t want to sell it unless I could see my uncle. And he said, Oh well I want to buy it, and Mr. Dougherty sent me out here; and he said that he would give me $10.00 down then if I would sell it. He said that if it was not agreeable to my husband that he would give me the money back; I told him that I did not want to take that, and he told me to take it anyhow and me and my husband could come into town and sign that I was willing to take it. He went ahead and gave me $10.00 and told me to sign my name that he had paid me ten dollars, and I signed my name and he told me then to come into town and get the rest of the money if my husband was willing to it.

When we came into town he was not willing to take that for it, and I offered him the money back and he agreed to give $35.00, and paid $5.00 that day, and I came back and he paid me the other $20.00; he paid me in all $35.00. I told him that I was not satisfied with it. He says well you have got to be; I have got the whole forty now. I told him I did not sell but 20 acres. He did not ask me to sell him but 20 acres. Mamma told him that she had something to say in it, and she was going to see if she could not get it back. He said all right that he had done bought it and had the whole thing. We come on away then and left him alone.

We then come to see Mr. Terry about it. He told me he would do all he could for me. He said he would come over here and see how much the deed was for. (Objection by Mr. Vary to what Mr. Terry said on ground that it is hearsay evidence, and that it is irrelevant and immaterial and because the witness W.K. Terry is here to testify himself.) Mr. Terry came back and wrote to me that the deed called for 80 acres. (Objected to on ground that it is not responsive to the question.)

I went back to Mr. Leonard and told him I would give him his money back. Before that time I thought I had sold him 20 acres. Before I went to Mr. Terry’s office I did not know that I had deed him more that 20 acres. After I found out that I had deeded him more than 20 acres, I went to see Mr. Leonard when I came back to town, after receiving a letter from Mr. Terry. I told him that he had got the whole 80 and I did not know I was deeding him the whole 80. He said, “Well you have.” I asked him then would he give me the land back and take his money and he said “No. if I lose, I lose.” that he would not take the money back. I told him I wanted him to take it back, or I would try the law about it, and he said for me to tell my lawyer to pop his whip. I told him all right. Then I left. I told him I would give him back the money, but I did not have it with me at that time. He said he did not want it.

I am colored. I have never had any experience in business affairs. I know nothing about land numbers. I do not know how many acres of land there are in quarter sections. Mr. Leonard read that deed over to me. When he read it over to me, I did not know how many acres there were in the deed. He said 20 acres. Mr. Leonard said that he was buying the 20 acres that Mr. Dougherty was in possession of. I relied on what Mr. Leonard told me. I sold it to him for 20 acres because he told me it was 20 acres. That land is worth $30.00 per acre. The 30th of May, 1906, it was worth $30.00 an acre..."*

For more of the case to use for research and teaching, see an extended excerpt and scans of several pages of the case (provided with the permission of the Alabama Department of Archives & History) on my personal website, www.melissamilewski.com.

*Leonard v. Roebuck, 152 Ala. 312 (1907). The full archival case file is located in the Alabama Department of Archives & History, Montgomery, Alabama.

What Kinds of Civil Cases Black Southerners Litigated Against Whites in Southern Courts, 1900-1950

Yesterday, my blog post discussed the kinds of civil cases black southerners most frequently litigated against whites in eight southern state supreme courts between 1865 and 1899. Today, I'm drawing on the research in my new book Litigating Across the Color Line to discuss the most common kinds of appellate civil cases litigated by African Americans against whites between 1900 and 1950, and how black southerners' cases shifted during this period.

Courtesy: Library of Congress

Black southerners had litigated a range of appellate civil cases against whites between 1865 and 1899, and often asserted their rights in such cases boldly. But as disfranchisement and segregation increasingly set in at the end of the 19th century, the kinds of civil cases black litigants were most able to litigate against whites in their state's highest courts shifted. During the first two decades of the 20th century, in particular, the types of appellate civil cases between black and white southerners narrowed significantly. Now, almost three-fourths of the appellate civil cases examined involved personal injury or fraud in property dealings. To a limited degree, this reflected larger legal trends, including the nationwide growth in tort cases. However, I argue that fraud and personal injury cases occurred especially frequently in appellate civil cases between black and white litigants during this period because the legal claims necessary to support these cases also sometimes supported whites' ideas about racial inequality. According to the law, it was difficult to bring a case of fraud if both parties in the transaction stood on an equal footing. Similarly, in personal injury cases, litigants needed to demonstrate that they had suffered injuries that caused them pain and loss of income. As a result, black litigants in such cases had strong motivations to present themselves as particularly vulnerable, and/or uneducated, which they almost uniformly did in cases that reached southern state supreme courts. Such presentations supported both their legal claims and white jury members' and judges' ideas about race, allowing black southerners to litigate cases against whites even at the height of Jim Crow.

In one 1907 Alabama fraud case, the white defendant J.W. Abercrombie had defrauded the elderly black plaintiff, 81-year-old Andrew Carpenter, by telling him that he was signing a mortgage when he was actually deeding away his property. In response, Carpenter brought a civil suit against Abercrombie. In his testimony, just as in the testimony of almost every other black litigant in an appellate fraud suit during this period, Carpenter emphasized his lack of business knowledge, stating “I do not know anything about the significance of deeds and mortgages, or legal papers.” But even as they emphasized their lack of education in such suits, African Americans' defiance and assertions of their rights still sometimes clearly came through. Carpenter also testified that when he confronted the white man about the fraud, Abercrombie had offered to pay him a small fraction of the costs of the property. Carpenter then testified, “I told him I would not take $100 but before I took that I would die first.” He continued, “I came on then to see if I could get any rights in court.”*  Despite such assertions of individual rights, however, most such cases during the first two decades of the 20th century made no larger claims for African American rights as a whole.

Then, between 1921 and 1950, the kinds of cases that black southerners could litigate in southern appellate courts broadened once again. In addition, more and more seemingly everyday kinds of suits litigated by individuals over personal injury, property, contracts, and wills began to include challenges to the racial status quo. Unlike the personal injury cases of the first decades of the 20th century, for instance, Ethel New's mid-1940's personal injury case challenged racial discrimination as well as claiming damages for the plaintiff's injury. New’s husband was stationed in Virginia as WWII came to an end and when the incident occurred, she had been returning from a visit to him, three months pregnant. She stood up for the first 81-mile leg of her bus journey as there were no seats in the section on the back of the bus reserved for African Americans. Finally, in Lynchburg, Virginia, she obtained a seat in the second to last row. A few minutes later, though, a bus driver ordered her to move to the last row of the bus to accommodate the white passengers who had just boarded. Seeing that the back bench was hard and did not recline, New refused to move. In response, the bus driver and an officer dragged her off the bus by her shoulders and legs. After reaching her destination of Kentucky, New’s back and leg ached and she suffered a miscarriage. She hired a lawyer to file a personal injury suit. The suit protested not only her own treatment and the loss of her unborn child, but also the segregation laws that required her to sit in the back of the bus. Indeed, the suit stated that New’s injuries had been a direct result of her race. While New's case was ultimately unsuccessful in both the trial and appellate courts, she had asserted not only her own individual rights, but the rights of African Americans to equal treatment on public transportation.**

These largely individual-led civil cases challenging discrimination during the 1920s, 1930s, and 1940s existed alongside the NAACP's legal efforts to challenge discrimination. Ethel New's law firm, for instance, also played a part in representing Irene Morgan in the 1946 NAACP-led suit Morgan v. Virginia over interstate bus travel. In general, though, the civil suits during this time that challenged discrimination in southern appellate courts seem to have been brought by individuals who had economic stakes in the suits, as well as concerns over equal rights. In these ways, these suits had many similarities to the many civil appellate suits between black and white southerners that had occurred in the decades before.

 

* Abercrombie v. Carpenter, 150 Ala. 294 (1907).

** New v. Atlantic Greyhound Corporation, 186 Va. 726 (1947)

What Kind of Civil Cases Black Southerners Litigated Against Whites in Southern Courts, 1865-1899

As black southerners litigated civil cases against whites in southern appellate courts from the end of the Civil War to the mid-20th century, they found it far easier to litigate certain kinds of civil cases against whites than others. The types of civil cases that they could litigate in appellate courts also shifted over time.

Courtesy: Library of Congress

A baseline for what kinds of cases state supreme courts around the country were hearing can be

established from an extensive study of almost 6,000 cases heard by 16 state supreme courts around the U.S. (including several in the South) completed during the 1970s. An analysis of the kinds of cases found to be coming before these courts between 1870 and 1970 appeared in the January 1977 Stanford Law Review. In contrast, the research for my new book Litigating Across the Color Line found the proportions of different kinds of appellate civil cases litigated by black southerners significantly diverged from the proportions of such cases documented in U.S. state supreme courts as a whole.

The most frequent types of appellate civil suits litigated by black southerners against whites between 1865 and 1899 were suits over wills/bequests, cases over transactions/contracts, property dispute cases, and cases over personal injury. In particular, during this period, African Americans litigated appellate civil cases against whites over wills and estates far more often than such cases appeared in general appellate litigation. While the 1977 study found cases over inheritance/estates made up 6% of overall cases between 1870 and 1900, inheritance/estates cases made up approximately 36% of black litigants' appellate civil cases against white litigants in the 8 courts examined between 1865 and 1899. In such cases, black litigants frequently litigated suits against white heirs to obtain a bequest left in a former master or former employer's will. For instance, a number of former slaves who had been left money in former masters' wills to facilitate their migration to Liberia brought civil suits after the Civil War to claim the bequests without having to move to Liberia.  I argue that such cases made up a large proportion of black southerners' litigation because they drew on the power of a white person's will and appealed to respected legal precedents around bequests.

In addition, cases over contracts and transactions occurred about twice as often in African Americans' appellate civil cases during Reconstruction than they occurred in general appellate cases during this time. In these cases over contracts and transactions, black litigants presented themselves as able to function competently and independently in the postwar economic realm and at times boldly challenged economic injustice. In one such contract suit in 1873, a black sharecropper named Moses Summerlin did not tend his crops for several weeks after his wife died. He soon returned to the fields but when he asked William Smith, the white owner of the land, to aid him in hauling the cotton and corn, Smith refused and accused the sharecropper of producing only half of the crop that he could have. In response, Moses Summerlin brought a civil case against Smith that appealed to the law of contract to gain his portion of the crop. In his testimony, Summerlin emphasized his economic abilities, stating that he had employed “five or six hands” to work for him. At great personal risk, Summerlin also told the court that when he had asked the white landowner to give him his portion of the crop, Smith ordered him out of the yard and told him “if he came back he would kill him.”  In the end, the county court ordered the white landowner to pay $113.18 and legal costs to Summerlin, and on appeal, the Georgia state supreme court upheld the decision. While this was significantly less than the amount the sharecropper had claimed, Summerlin had shifted -- in some small way -- the terms upon which he and Smith operated.* Through his litigation and testimony, he had also publicly expressed his own ideas about how the post-war southern economy should function.  At the same time, by hearing such suits and at times ruling in favor of the black litigant, white jury members and judges could show the supposed justice of southern courts and seek to elide widespread unfairness in the labor system and property transactions.

I'll be back tomorrow morning to discuss the kinds of appellate civil cases black litigants most frequently litigated against whites in southern courts between 1900 and 1950.

*Smith v. Summerlin, 48 Ga. 425 (1873).

The American Historian magazine's November issue on Law and the Courts

Cover Design: Ashlee W. Smith; Photo: Emmanuel Huybrechts        

The Organization of American Historians' magazine, The American Historian, has focused its November 2017 issue (out online today) on Law and the Courts. The issue includes resources for teaching legal history, including a discussion of several scholars' favorite court cases to use in the classroom and an article by Robert Cohen and Laura Dull that encourages including Ruth Bader Ginsburg when teaching about the women’s rights revolution.

Additionally, the issue contains a roundtable in which three scholars discuss "Historians in Court," including the ethical difficulties posed by historians’ participation in the courtroom and how effective historians’ testimony is in the courtroom. As part of the roundtable, Tomiko Brown-Nagin discusses her experience filing amicus briefs with the U.S. Supreme Court in cases dealing with discrimination and affirmative action in education, Linda Gordon talks about amicus briefs she has participated in in abortion cases, and Kenneth Mack explains his experiences supervising a professional historian’s expert report as a young lawyer and later signing amicus briefs from scholars and historians to the US Supreme Court. 

My own article in this issue, “Rethinking the Role of the Courts in the Lives of Black Southerners,” discusses how black southerners’ civil cases reframe the traditional narrative of African American political participation.  In the traditional narrative, black southerners move from institutional engagement during Reconstruction and its aftermath to a fight largely outside of government institutions in the US South, only to take up the fight for the vote again in the decades immediately before the Civil Rights movement. I argue that looking at black southerners’ engagement in southern courts shifts this story, showing continuing engagement with one southern government institution – the courts – from Reconstruction to the Civil Rights movement. In addition, the magazine contains an article by Susan J. Pearson on "Anticruelty Organizations and Statebuilding in Gilded-Age America” and a consideration of the history of felon disfranchisement laws and prison gerrymanders by Christina Rivers. 

The full issue can be accessed by OAH members on the OAH website here, but non-members can also look out for selected articles from the issue that may be released to the public on the magazine's website.

How Black Litigants Shaped Their Civil Cases Against Whites

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-20^th 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 20^th 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 19^th 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 19^th 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.

---

[i] Lynch v. Burts, 48 Tenn. 600 (1870).

Why African Americans Were Able To Litigate and Win Civil Cases Against Whites in the Jim Crow South

I’m back again today guest blogging about some of the research in my new book, Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights. In my last blog post, I discussed how I found the almost one thousand civil cases between black and white southerners highlighted in my book. Today, I wanted to discuss why African Americans continued to be able to litigate -- and win -- these cases against whites in the Jim Crow South.

It has generally been assumed that African Americans litigated few civil cases against white southerners in the post-Reconstruction South, and faced widespread inequality in the cases that they did pursue. However, the civil cases involving black southerners that historians and legal scholars have examined in the greatest depth often explicitly revolve around issues of race or racial justice and are the kinds of cases that black litigants found particularly difficult to litigate and often fared the worst in. 

In fact, I found that the vast majority of appellate civil cases that black southerners were able to litigate against whites between 1865 and 1950 took place over economic disputes that originated from their daily lives: cases over contracts, bequests, transactions, personal injury, and property. The outcome of most of their cases would usually have an immediate impact only on the families involved in the suit. Black litigants were also surprisingly successful in civil suits that reached southern state supreme courts. Of the 980 state supreme court cases I examined across eight states during this period, black litigants won 59% of their appellate suits against whites.  

 So why were black southerners not only able to litigate these suits but often won them as well?  There were a number of factors, including the nature of the legal system itself. Undoubtedly, these appellate suits are also not completely representative of black litigants' lower-level suits -- although in these suits, African Americans had often won in trial courts as well. However, the fact that black southerners could litigate and win suits against whites at any level during the era of Jim Crow was also due in large part to the ways that white southerners and black litigants viewed these suits.   

In part because of the limited scope of most of these suits, they often seemed relatively unthreatening to white southerners.  African American access to the courts also seemed much less dangerous than their access to the ballot box because most cases would be mediated by white judges and juries. White southerners argued that generally white judges and juries could be trusted to make the “right” decisions in black southerners’ cases.  Moreover, at times, black southerners’ civil cases actually seemed to uphold white people’s rights.  In cases claiming bequests left in a white man’s will, for instance, a decision for the black litigant upheld the white testator’s right to leave a bequest to whom he pleased. In other instances, whites viewed black litigants’ cases as upholding the system of white supremacy, even as they inconvenienced a few individual whites.  In fraud cases in which African Americans emphasized their ignorance and lack of business understanding, black litigants’ testimony arguably strengthened white claims about black inequality.

At the same time, the outcome of these suits could often have a life-changing effect on the families and finances of the black litigants involved. The results of African Americans’ litigation would determine whether they would have their own land under their feet, funds to replace missing wages when they were injured, or be paid for a year’s work.  Other cases decided whether they would be able to inherit property that had been left them in a will or if they had a legitimate claim to ownership of a horse or mule.

I argue that the very discrepancy between how white and black southerners viewed these suits played an important part in allowing them to continue.  As a result of their view of these suits as relatively unthreatening – and sometimes even beneficial – to white supremacy, white southerners allowed African Americans to continue to access the civil courts even after black men were largely disfranchised throughout the South at the end of the 19^th and beginning of the 20^th centuries.  At the same time, because African Americans had important economic stakes in the outcomes of their suits, they often did everything they could to achieve a favorable decision. This included hiring white lawyers, emphasizing connections with prominent whites in their communities, shaping their testimony based on their understanding of the relevant law, and using their knowledge of white southern racial attitudes to present themselves in ways that would elicit favorable responses from largely white juries and judges.

I’ll be back in a few days to discuss in greater detail the ways that a number of black litigants adeptly negotiated an often hostile legal system in which the actors making decisions often had very different interests than their own. 

How to Find Civil Cases Between White and Black Southerners in State Court Records

I’m excited to be guest blogging all month here at the Legal History Blog. I am a lecturer in American History at the University of Sussex in England and my new book Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights is releasing this month. My book examines almost one thousand civil cases between black and white southerners that took place across eight southern state supreme courts from 1865 to 1950. In these hitherto largely unexamined cases, individual black and white southerners contested economic matters central to their lives including disputes over property, contracts, transactions, personal injury, and bequests.  These suits between black and white southerners continued to regularly take place in southern courts even after disfranchisement set in around the South. My book considers how African Americans were able to litigate and win suits against whites in the Jim Crow South – and the limitations they met and compromises they had to make in order to do so. 

Throughout the month, I’ll be blogging about different aspects of my research, including the role of black women in these suits, the frequent suits brought by former slaves against their former masters, how these suits shifted over time, the strategies used by black southerners that helped them to win suits against whites, and these suits' links to the U.S. Civil Rights movement. I’ll also be providing links to some excerpts from the archival case files of some key cases examined in my book, which highlight what these sources look like and may be useful for teaching.

Before discussing what I found in my research, though, I wanted to start by discussing how I found these court records. These appellate civil cases are a very rich source in which much further research remains to be done. While the suits themselves are not representative of all civil cases litigated by African Americans in lower courts, they allow analysis of African Americans’ experiences in both trial and appellate courts. The archival case files of suits that reached southern supreme courts generally include the full trial records of the lower court case as well as records of the appeal. Often, the archival records for each case number 200 or 300 pages and include extensive trial testimony from African Americans as well as others in their communities.

I found these civil cases involving African Americans by doing advanced keyword searches on the LexisNexis database in the state supreme court records of each of the states examined. The search terms I used included “slave, freedman, freedwoman, Negro, black, Africa, African, color, colored and Negress.” As these cases took place over 85 years, certain terms were more common during certain periods than others.

After these keyword terms produced thousands of cases on LexisNexis, I then went through the LexisNexis record of the court cases to determine if the case actually involved a black litigant, and whether it took place between black litigants or between one or more black and white litigants. In many cases it was possible to determine this from the LexisNexis record, but in some cases it was necessary to look at the archival record or census data to determine the racial identity that southern courts and southern society assigned to the litigants.

Courtesy of the Kentucky Dept. for Libraries and Archives.

After compiling long lists of cases that might involve African Americans for each of the eight states, I then turned to archives in each state to examine the original archival case files. Generally, the case files were held by the state archives of that particular state. In Arkansas, however, the records were at the University of Arkansas at Little Rock’s Law Library and in Virginia, records were held by the Virginia State Law Library, The Library of Virginia, and the University of Richmond’s William Taylor Muse Law Library (for a complete list of all the archives I consulted, see the Bibliography of Litigating Across the Color Line).  Fortunately, the vast majority of case files involving African Americans that I sought at these archives and law libraries still survived.  Some case files were still tied in what seemed to be their original faded ribbon, and several archivists noted that these records had only rarely been requested.  I concluded my search for these cases here at the archives by examining the case files to check the racial identities assigned to the litigants. As a result of this research, I found 980 appellate civil cases between black and white litigants and 397 appellate civil cases between two or more black litigants in the state supreme courts of eight southern states from 1865 to 1950.

I’ll be back again in a few days with more about how I analyzed this data and what I found in these cases. 

Cairns on Legal Transplants

Back in 2015, John W. Cairns, University of Edinburgh, published Codification, Transplants and History: Law Reform in Louisiana (1808) and Quebec (1866) with Talbot Publishing. From the press:

When Louisiana enacted its Digest of the Civil Laws in 1808 and Quebec its Civil Code of Lower Canada in 1866, both jurisdictions were in a period of transition - economic, social and political. In both, the laws had originally been transplanted from European nations whose societies were in many ways different from theirs. This book offers the first systematic and detailed exploration of the two new codes in light of social and legal change. Cairns examines the rich, complex, and varying legal cultures -- French, Spanish, Civilian and Anglo-American -- on which the two sets of redactors drew in drafting their codes. He places this examination in the context surrounding each codification, and the legal history of both societies. Cairns offers a detailed analysis of family law and employment in the two codes, showing how their respective redactors selected from a defined range of sources and materials to construct their codes. He shows that they acted relatively freely, attempting to inscribe into law rules reflecting what they understood to be the needs of their society from an essentially intuitive and elite perspective. While not propounding a universal theory of legal development, Cairns nonetheless shows the types of factors likely to influence legal change more generally.

Further information is available here.