On Sources, Silences, & Research Spaces

     When white Americans and European immigrants began to settle on the Great Plains in the nineteenth century, they were so unnerved by the deathly silence, broken only by the keening wind, that some of them went mad. Or at least this is the proposition investigated in a recent article by paleoanthropologist Alex Velez. Since he neither fully replicated their sensory experiences (omitting howling wolves as well as the creatures that shared settlers' sod homes) nor considered the cultural and historical context that would have conditioned their interpretations of said experiences, his study doesn't really explain the reports of "prairie madness."

    But it does raise questions about what counts as silence, how silences are created, and how that relates to the physical spaces in which we find ourselves. Scholars have been, well, voluble about silences in the archives over the past several years. Therefore when I was writing my book The Dreadful Word and attempting to mentally reconstruct eighteenth-century criminal speech prosecutions, I was acutely aware of whom I was largely not hearing: white women, indigenous people, and African-descended people. Why were their voices so rarely in these records? And what would this silence have signified in eighteenth-century courts?

    I also began wondering where, if not in prosecutions, I might hear these people's profane, abusive, or vulgar speech, or alternately, what sources might record their legally or politically significant behavior. I'm currently attending the Bright Institute at Knox College, a summer workshop for professors of early American history at liberal arts colleges. This year's theme is material culture, and in the course of our discussions I've had occasion to consider an inherited cupboard, a gifted dress, and stolen cloth as potential sources for legal history, particularly when trying to better hear the voices of women and enslaved people.

    The spaces where our sources for legal history exist is especially on my mind this summer, as joyful tweets about "returning to the archive at last!" pop up in my timeline. These tweets are often accompanied by a photograph of a repository of documents, text-based sources with which legal historians are perhaps most comfortable. I intend to work in just such an archive in a few weeks. But I'm also thinking about what spaces might hold other kinds of sources that allow different voices to be heard. I'm wondering about the implications of marginalized people using objects to exercise legal power, and what it would mean to write their actions into the story of colonial New England.

    None of these ideas is fully fleshed out; I'm essentially sitting in my sod house, listening to the wind and the wolves, trying to sort out my thoughts (without all the settler colonialism, I hope). I am beginning work on my next book, focusing on women's testimony in eighteenth-century New England courts. I am especially interested in the kinds of knowledge and expertise they brought to legal settings (both civil and criminal), how they established their credibility, and how the nature and extent of their participation in court business changed over time.

    This is my final guest post for LHB. Thanks again to Dan Ernst for offering me the opportunity to guest blog this past month; I've really enjoyed the experience. 

--Kristin A. Olbertson

A Better Book: The Home Institution

              A choice I did not make that profoundly shaped Almost Citizens was that of USC Gould School of Law to hire me. Here, I lucked out. Writing the book I wanted required time, money, inspiration, guidance, autonomy, infrastructure, and publicity. Fortunately, my home institution was well stocked with all seven. (If your school takes a different approach to these questions or your recipe for success calls for different ingredients, please share in the comments.)

              Time was what I needed most. But it was easy to overinvest in teaching and service. I wanted to serve students and please senior colleagues, and there were so many new, interesting ways to contribute. Gould protected me against myself.  The dean assigned junior professors light service obligations and never asked them to develop new courses beyond their original three (we have a 2-1 load). Senior faculty protested any perceived erosion of the norm. And I got a semester-long sabbatical halfway through.

              I also found that my research, writing, and physical book all benefited from money.  Paid research assistants facilitated broader searches and more thorough reviews. Money for travel bought archival trips and conference presentations. It took funds to hire development editors and improve the book through subventions.  While I couldn’t spend my way to a good book, I could have been starved into a weaker one. Fortunately, I had a dean and institution that invested in scholarship. I never had a prepublication request denied. That support let me put my best foot forward, plan with confidence, and avoid the stress of committing personal funds to professional advancement.

              My book was also shaped by the scholarly cultures and institutionalized intellectuals spaces of the institutions where I researched and wrote. It was while taking part in Gould’s healthy culture of office, hallway, and faculty lounge chats that I had many important epiphanies. I gained key interlocutors and inspiration through my participation in USC’s Center for Law, History and Culture and the multi-institution Law and Humanities Junior Scholars Workshop that the center cosponsors. Gould also gave me the chance to present in an internal workshop each year. And every year the school’s senior faculty read and responded to all my works in progress.  As a result, I received an additional mountain of helpful tips and questions.

One of the  challenges of taking full advantage of opportunities for feedback at Gould was the knowledge that I was inviting criticism from the same people who would vote on my tenure case. Fortunately, engagement with my colleagues turned out to be a way to elevate my work while pleasing my electorate. Gould’s senior faculty stressed that I should ignore any advice that proved unhelpful.  The dean repeatedly insisted that it was the scholar’s job to bring critical judgment to the array of conflicting suggestions received. Never did I hear a complaint that I had ignored someone’s suggestion.

              Gould’s service-oriented library multiplied my research productivity. Its librarians acquired obscure sources, secured high-resolution scans of illustrations, undertook foreign-language correspondence with overseas repositories, and filed Freedom of Information Act requests. Whenever I asked them to compile reading lists, find statistics, create maps, or undertake targeted research, I could trust that it would be done and done well. In fact, Gould’s librarians were often better than me at finding sources and digging up facts. Having such skill on staff was the result of a decision to prioritize personnel above collection size. But Gould’s smaller collection never hampered me. Interlibrary loan, mass digitization, and the school’s willingness to buy otherwise inaccessible materials always did the trick. The end result was that I saved considerable time and mental energy. 

              When I was on the entry-level market, it never occurred to me to evaluate law schools in terms of their public-relations teams.  My mistake! After years of obscurity as a grad student, law clerk, and post-doc, my arrival as a professor brought ready access to the public sphere.  As I soon learned, I could give interviews, discuss topics on background, write op-eds and articles, post to blogs, secure press coverage and book reviews, do public events, send out promotional materials, and much more. (I invite those of you more media-savvy than me to take up the possibilities in the comments.)  I was enthusiastic to raise my profile and spread my ideas. But I worried about PR becoming a time sink, or worse, about making a fool of myself before a large audience.

Gould’s PR team helped me enter the public eye efficiently and on my own terms. They took care of logistics, safeguarded my time, and focused on how I could have an impact. They initially held my hand, practicing with me what I would say and helping me set expectations with reporters. As my confidence grew, my scholarship progressed, and world events unfolded, they had endless ideas about how to give me and my work a broader platform. With their help, I gravitated toward interviews and op-eds (a subject of an upcoming post). I eschewed forums that treated intellectual exchanges as battles, and sought out those favored conversational interactions. They even helped me be heard despite my general absence from most social media (LHB notably excepted!).

              --Sam Erman

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.

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. 

Red River Court Records

Readers interested in indigeneity, the North American west, and Canadian legal history will find rich primary-source material in a volume published by McGill-Queen’s University Press in 2015. The publisher calls Law, Life and Government at Red River, Volume 2, edited by the University of Manitoba’s Dale Gibson, “a new view of frontier justice in western Canada’s first major settlement through the eyes of its courts and witnesses.” 

Here’s more:  

Inhabited by a diverse population of First Nations peoples, Métis, Scots, Upper and Lower Canadians, and Americans, and dominated by the commercial and governmental activities of the Hudson’s Bay Company, Red River - now Winnipeg - was a challenging settlement to oversee. This illuminating account presents the story of the unique legal and governmental system that attempted to do so and the mixed success it encountered, culminating in the 1869-70 Red River Rebellion and confederation with Canada in 1870. 

In Law, Life, and Government at Red River, Dale Gibson provides rich, revealing glimpses into the community, and its complex relations with the Hudson’s Bay: the colony’s owner, and primary employer. Volume 2 provides a complete annotated, and never-before-published transcription of testimony from Red River’s courts, presenting hundreds of vignettes of frontier life, the cases that were brought before the courts, and the ways in which the courts resolved conflicts. 

A vivid look into early settler life, Law, Life, and Government at Red River offers insights into the political, commercial, and legal circumstances that unfolded during western expansion.

Praise for the book:

“The comprehensiveness of Law, Life, and Government at Red River provides an excellent, all-in-one, legally focused discussion for researchers in the fields of legal history, Canadian history, colonial histories of the British Empire, and aboriginal law.” -Janna Promislow

"The legal perspective offers a fresh approach to a subject that historians have covered extensively. Recommended." -Choice

"In [Gibson’s work] there appear to be no prejudices or presumptions, the absence of which is a sign of both scholarship and academic discipline. Gibson's lengthy tome is sound social observance. The first volume is a retelling of Red River's history especially as it relates to law and government, including key cases. The second volume is something that has never been done: the publication of the complete official court records of the General Quarterly Court of Assiniboia from 1844 to 1872, with commentary. This volume is a catalogue of human experiences in frontier life, from the tragic to the comical." -Winnipeg Free Press

Further information is available here.