Studies in the Legal History of the South – serie

Federal Law and Southern Order, first published in 1987, examines the factors behind the federal government's long delay in responding to racial violence during the 1950s and 1960s. The book also reveals that it was apprehension of a militant minority of white racists that ultimately spurred acquiescent state and local officials in the South to protect blacks and others involved in civil rights activities. By tracing patterns of violent racial crimes and probing the federal government's persistent failure to punish those who committed the crimes, Michal R. Belknap tells how and why judges, presidents, members of Congress, and even Justice Department and Federal Bureau of Investigation officials accepted the South's insistence that federalism precluded any national interference in southern law enforcement. Lulled into complacency by the soothing rationalization of federalism, Washington for too long remained a bystander while the Ku Klux Klan and others used violence to sabotage the civil rights movement, Belknap demonstrates.In the foreword to this paperback edition, Belknap examines how other scholars, in works published after Federal Law and Southern Order, have treated issues related to federal efforts to curb racial violence. He also explores how incidents of racial violence since the 1960s have been addressed by the state legal systems of the South and discusses the significance for the contemporary South of congressional legislation enacted during the 1960s to suppress racially motivated murders, beatings, and intimidation.

Federal Judge Frank M. Johnson of Alabama decided many of the most important civil rights and liberties cases in twentieth-century American history. During the 1950s and 1960s, his decisions supported Martin Luther King Jr. and other civil rights fighters in their struggles for justice and equality. Johnson extended the Constitutional defense of individual rights for women, students, prisoners, mental health patients, poor criminal defendants, and voters during his active judicial career in Alabama and the South, which lasted until 1991.This collection assembles some of Johnson's most thought-provoking and insightful essays, many of which explain and defend a number of his decisions. Also included in this volume is the first published transcript of a 1980 public television interview with Bill Moyers. Meticulously detailed and documented, yet accessible to a wide range of readers, this book explores the constitutional ideals that Johnson forged and defended as he persistently overcame public officials' resistance to constitutional rights and social change.

It is remarkable that the most serious intervention by the federal government to protect the rights of its new African American citizens during Reconstruction (and well beyond) has not, until now, received systematic scholarly study.In The Great South Carolina Ku Klux Klan Trials, Lou Falkner Williams presents a comprehensive account of the events following the Klan uprising in the South Carolina piedmont in the Reconstruction era. It is a gripping story—one that helps us better understand the limits of constitutional change in post-Civil War America and the failure of Reconstruction.The South Carolina Klan trials represent the culmination of the federal government's most substantial effort during Reconstruction to stop white violence and provide personal security for African Americans. Federal interventions, suspension of habeas corpus in nine counties, widespread undercover investigations, and highly publicized trials resulting in the conviction of several Klansmen are all detailed in Williams's study.When the trials began, the Supreme Court had yet to interpret the Fourteenth Amendment and the Enforcement Acts. Thus the fourth federal circuit court became a forum for constitutional experimentation as the prosecution and defense squared off to present their opposing views. The fate of the individual Klansmen was almost incidental to the larger constitutional issues in these celebrated trials. It was the federal judge's devotion to state-centered federalism—not a lack of concern for the Klan's victims—that kept them from embracing constitutional doctrine that would have fundamentally altered the nature of the Union.Placing the Klan trials in the context of postemancipation race relations, Williams shows that the Klan's campaign of terror in the upcountry reflected white determination to preserve prewar racial and social standards. Her analysis of Klan violence against women breaks new ground, revealing that white women were attacked to preserve traditional southern sexual mores, while crimes against black women were designed primarily to demonstrate white male supremacy.Well-written, cogently argued, and clearly presented, this comprehensive account of the Klan uprising in the South Carolina piedmont in the late 1860s and early 1870s makes a significant contribution to the history of Reconstruction and race relations in the United States.

The Supreme Court's 1857 Dred Scott decision denied citizenship to African Americans and enabled slavery's westward expansion. It has long stood as a grievous instance of justice perverted by sectional politics. Austin Allen finds that the outcome of Dred Scott hinged not on a single issue—slavery—but on a web of assumptions, agendas, and commitments held collectively and individually by Chief Justice Roger B. Taney and his colleagues.Allen carefully tracks arguments made by Taney Court justices in more than 1,600 reported cases in the two decades prior to Dred Scott and in its immediate aftermath. By showing us the political, professional, ideological, and institutional contexts in which the Taney Court worked, Allen reveals that Dred Scott was not simply a victory for the Court's prosouthern faction. It was instead an outgrowth of Jacksonian jurisprudence, an intellectual system that charged the Court with protecting slavery, preserving both federal power and state sovereignty, promoting economic development, and securing the legal foundations of an emerging corporate order—all at the same time. Here is a wealth of new insight into the internal dynamics of the Taney Court and the origins of its most infamous decision.

This groundbreaking study of the law and culture of slavery in the antebellum Deep South takes readers into local courtrooms where people settled their civil disputes over property. Buyers sued sellers for breach of warranty when they considered slaves to be physically or morally defective; owners sued supervisors who whipped or neglected slaves under their care.How, asks Ariela J. Gross, did communities reconcile the dilemmas such trials raised concerning the character of slaves and masters? Although slaves could not testify in court, their character was unavoidably at issue—and so their moral agency intruded into the courtroom. In addition, says Gross, "wherever the argument that black character depended on management by a white man appeared, that white man's good character depended on the demonstration that bad black character had other sources."This led, for example, to physicians testifying that pathologies, not any shortcomings of their master, drove slaves to became runaways. Gross teases out other threads of complexity woven into these trials: the ways that legal disputes were also affairs of honor between white men; how witnesses and litigants based their views of slaves' character on narratives available in the culture at large; and how law reflected and shaped racial ideology. Combining methods of cultural anthropology, quantitative social history, and critical race theory, Double Character brings to life the law as a dramatic ritual in people's daily lives, and advances critical historical debates about law, honor, and commerce in the American South.

Fathers of Conscience examines high-court decisions in the antebellum South that involved wills in which white male planters bequeathed property, freedom, or both to women of color and their mixed-race children. These men, whose wills were contested by their white relatives, had used trusts and estates law to give their slave partners and children official recognition and thus circumvent the law of slavery. The will contests that followed determined whether that elevated status would be approved or denied by courts of law.Bernie D. Jones argues that these will contests indicated a struggle within the elite over race, gender, and class issues—over questions of social mores and who was truly family. Judges thus acted as umpires after a man's death, deciding whether to permit his attempts to provide for his slave partner and family. Her analysis of these differing judicial opinions on inheritance rights for slave partners makes an important contribution to the literature on the law of slavery in the United States.

In 1906 a white lawyer named Dabney Marshall argued a case before the Mississippi Supreme Court demanding the racial integration of juries. He carried out a plan devised by Mississippi’s foremost black lawyer of the time: Willis Mollison. Against staggering odds, and with the help of a friendly newspaper editor, he won. How Marshall and his allies were able to force the court to overturn state law and precedent, if only for a brief period, at the behest of the U.S. Supreme Court is the subject of Jury Discrimination, a book that explores the impact of the Civil War and Reconstruction on America’s civil rights history.Christopher Waldrep traces the origins of Americans’ ideas about trial by jury and provides the first detailed analysis of jury discrimination. Southerners’ determination to keep their juries entirely white played a crucial role in segregation, emboldening lynchers and vigilantes like the Ku Klux Klan. As the postbellum Congress articulated ideals of national citizenship in civil rights legislation, most importantly the Fourteenth Amendment, factions within the U.S. Supreme Court battled over how to read the amendment: expansively, protecting a variety of rights against a host of enemies, or narrowly, guarding only against rare violations by state governments. The latter view prevailed, entombing the amendment in a narrow interpretation that persists to this day.Although the high court clearly denounced the overt discrimination enacted by state legislatures, it set evidentiary rules that made discrimination by state officers and agents extremely difficult to prove. Had these rules been less onerous, Waldrep argues, countless black jurors could have been seated throughout the nation at precisely the moment when white legislators and jurists were making and enforcing segregation laws. Marshall and Mollison’s success in breaking through Mississippi law to get blacks admitted to juries suggests that legal reasoning plausibly founded on constitutional principle, as articulated by the Supreme Court, could trump even the most stubbornly prejudiced public opinion.

This study is the first to show how state courts enabled the mass expulsion of Native Americans from their southern homelands in the 1830s. Our understanding of that infamous period, argues Tim Alan Garrison, is too often molded around the towering personalities of the Indian removal debate, including President Andrew Jackson, Cherokee leader John Ross, and United States Supreme Court Justice John Marshall. This common view minimizes the impact on Indian sovereignty of some little-known legal cases at the state level.Because the federal government upheld Native American self-dominion, southerners bent on expropriating Indian land sought a legal toehold through state supreme court decisions. As Garrison discusses Georgia v. Tassels (1830), Caldwell v. Alabama (1831), Tennessee v. Forman (1835), and other cases, he shows how proremoval partisans exploited regional sympathies. By casting removal as a states' rights, rather than a moral, issue, they won the wide support of a land-hungry southern populace. The disastrous consequences to Cherokees, Creeks, Choctaws, Chickasaws, and Seminoles are still unfolding.Important in its own right, jurisprudence on Indian matters in the antebellum South also complements the legal corpus on slavery. Readers will gain a broader perspective on the racial views of the southern legal elite, and on the logical inconsistencies of southern law and politics in the conceptual period of the anti-Indian and proslavery ideologies.

The five essays in Slave Laws in Virginia explore two centuries of the ever-changing relationship between a major slave society and the laws that guided it. The topics covered are diverse, including the African judicial background of African American slaves, Thomas Jefferson’s relationship with the laws of slavery, the capital punishment of slaves, nineteenth-century penal transportation of slaves from Virginia as related to the interstate slave trade and the changing market for slaves, and Virginia’s experience with its own fugitive slave laws. Through the history of one large extended family of ex-slaves, Philip J. Schwarz’s conclusion examines how the law shaped the interaction between former slaves and masters after emancipation.Instead of relying on a static view of these two centuries, the author focuses on the diverse and changing ways that lawmakers and law enforcers responded to slaves’ behavior and to whites’ perceptions of and assumptions about that behavior.

Founded in 1847 in Lebanon, Tennessee, the Cumberland School of Law holds a unique place in the history of American legal education. As the premier law school in the South in the nineteenth century, Cumberland trained two United States Supreme Court justices, nine senators, a secretary of state, and scores of other federal and state judges, representatives, and governors.Cumberland is among the oldest law schools in the southeast and is the first law school to have been sold outright from one university to another, passing from Cumberland University to Birmingham, Alabama's Howard College (now Samford University) in 1961. This book is a comprehensive narrative analysis of the school's pedagogical and social history in the context of legal education throughout the South and the nation.

Founded in 1847 in Lebanon, Tennessee, the Cumberland School of Law holds a unique place in the history of American legal education. As the premier law school in the South in the nineteenth century, Cumberland trained two United States Supreme Court justices, nine senators, a secretary of state, and scores of other federal and state judges, representatives, and governors.Cumberland is among the oldest law schools in the southeast and is the first law school to have been sold outright from one university to another, passing from Cumberland University to Birmingham, Alabama's Howard College (now Samford University) in 1961. This book is a comprehensive narrative analysis of the school's pedagogical and social history in the context of legal education throughout the South and the nation.

In early-nineteenth-century America, and especially in the Old South, the use of oratory appealed to legal professionals—judges as well as advocates. Consistent with the humanism proclaimed in classical and neoclassical works, appellate judges perceived their civic duties to demand oratorical skill as well as legal expertise. In A Peculiar Humanism, William E. Wiethoff assesses the judicial use of oratory in reviewing slave cases and the struggle to fashion a humanist jurisprudence on slavery despite the customary restraints placed on judicial advocacy.Drawing attention to a neglected intersection of law and letters, Wiethoff analyzes the proslavery discourse embedded in antebellum judicial opinions by examining the public addresses, judicial narratives, and private papers of sixty-nine appellate judges. By contrasting the judges’ proslavery appeals in a variety of cases in the upper and deep South, Wiethoff shows how context shaped the judges’ perceptions, priorities, and arguments. An outstanding contribution to the literature on law and slavery, A Peculiar Humanism testifies to the character of the legal profession in the Old South and serves as an index of the beliefs and attitudes that coexisted with legal decision making.

In 1906 a white lawyer named Dabney Marshall argued a case before the Mississippi Supreme Court demanding the racial integration of juries. He carried out a plan devised by Mississippi’s foremost black lawyer of the time: Willis Mollison. Against staggering odds, and with the help of a friendly newspaper editor, he won. How Marshall and his allies were able to force the court to overturn state law and precedent, if only for a brief period, at the behest of the U.S. Supreme Court is the subject of Jury Discrimination, a book that explores the impact of the Civil War and Reconstruction on America’s civil rights history.Christopher Waldrep traces the origins of Americans’ ideas about trial by jury and provides the first detailed analysis of jury discrimination. Southerners’ determination to keep their juries entirely white played a crucial role in segregation, emboldening lynchers and vigilantes like the Ku Klux Klan. As the postbellum Congress articulated ideals of national citizenship in civil rights legislation, most importantly the Fourteenth Amendment, factions within the U.S. Supreme Court battled over how to read the amendment: expansively, protecting a variety of rights against a host of enemies, or narrowly, guarding only against rare violations by state governments. The latter view prevailed, entombing the amendment in a narrow interpretation that persists to this day.Although the high court clearly denounced the overt discrimination enacted by state legislatures, it set evidentiary rules that made discrimination by state officers and agents extremely difficult to prove. Had these rules been less onerous, Waldrep argues, countless black jurors could have been seated throughout the nation at precisely the moment when white legislators and jurists were making and enforcing segregation laws. Marshall and Mollison’s success in breaking through Mississippi law to get blacks admitted to juries suggests that legal reasoning plausibly founded on constitutional principle, as articulated by the Supreme Court, could trump even the most stubbornly prejudiced public opinion.

In Signposts, Sally E. Hadden and Patricia Hagler Minter have assembled seventeen essays, by both established and rising scholars, that showcase new directions in southern legal history across a wide range of topics, time periods, and locales. The essays will inspire today's scholars to dig even more deeply into the southern legal heritage, in much the same way that David Bodenhamer and James Ely's seminal 1984 work, Ambivalent Legacy, inspired an earlier generation to take up the study of southern legal history.Contributors to Signposts explore a wide range of subjects related to southern constitutional and legal thought, including real and personal property, civil rights, higher education, gender, secession, reapportionment, prohibition, lynching, legal institutions such as the grand jury, and conflicts between bench and bar. A number of the essayists are concerned with transatlantic connections to southern law and with marginalized groups such as women and native peoples. Taken together, the essays in Signposts show us that understanding how law changes over time is essential to understanding the history of the South.Contributors: Alfred L. Brophy, Lisa Lindquist Dorr, Laura F. Edwards, James W. Ely Jr., Tim Alan Garrison, Sally E. Hadden, Roman J. Hoyos, Thomas N. Ingersoll, Jessica K. Lowe, Patricia Hagler Minter, Cynthia Nicoletti, Susan Richbourg Parker, Christopher W. Schmidt, Jennifer M. Spear, Christopher R. Waldrep, Peter Wallenstein, Charles L. Zelden.

Much of the current reassessment of race, culture, and criminal justice in the nineteenth-century South has been based on intensive community studies. Drawing on previously untapped sources, the nine original papers collected here represent some of the best new work on how racial justice can be shaped by the particulars of time and place.Although each essay is anchored in the local, several important larger themes emerge across the volume—such as the importance of personality and place, the movement of former slaves from the capriciousness of "plantation justice" to the (theoretically) more evenhanded processes of the courts, and the increased presence of government in daily aspects of American life.Local Matters cites a wide range of examples to support these themes. One essay considers the case of a quasi-free slave in Natchez, Mississippi—himself a slaveowner—who was "reined in" by his master through the courts, while another shows how federal aims were subverted during trials held in the aftermath of the 1876 race riots in Ellenton, South Carolina. Other topics covered include the fear of black criminality as a motivation of Klan activity; the career of Thomas Ruffin, slaveowner and North Carolina Supreme Court Justice; blacks and the ballot in Washington County, Texas; the overturned murder conviction of a North Carolina slave who had killed a white man; the formation of a powerful white bloc in Vicksburg, Mississippi; agitation by black and white North Carolina women for greater protections from abusive white male elites; and slaves, crime, and the common law in New Orleans.Together, these studies offer new insights into the nature of law and the fate of due process at different stages of a highly racialized society.

After the Civil War, Republicans teamed with activist African Americans to protect black voting rights through innovative constitutional reforms—a radical transformation of southern and national political structures. The Trial of Democracy is a comprehensive analysis of both the forces and mechanisms that led to the implementation of black suffrage and the ultimate failure to maintain a stable northern constituency to support enforcement on a permanent basis.The reforms stirred fierce debates over the political and constitutional value of black suffrage, the legitimacy of racial equality, and the proper sharing of power between the state and federal governments. Unlike most studies of Reconstruction, this book follows these issues into the early twentieth century to examine the impact of the constitutional principles and the rise of Jim Crow. Tying constitutional history to party politics, The Trial of Democracy is a vital contribution to both fields.

Students of American history know of the law’s critical role in systematizing a racial hierarchy in the United States. Showing that this history is best appreciated in a comparative perspective, The Long, Lingering Shadow looks at the parallel legal histories of race relations in the United States, Brazil, and Spanish America. Robert J. Cottrol takes the reader on a journey from the origins of New World slavery in colonial Latin America to current debates and litigation over affirmative action in Brazil and the United States, as well as contemporary struggles against racial discrimination and Afro-Latin invisibility in the Spanish-speaking nations of the hemisphere.Ranging across such topics as slavery, emancipation, scientific racism, immigration policies, racial classifications, and legal processes, Cottrol unravels a complex odyssey. By the eve of the Civil War, the U.S. slave system was rooted in a legal and cultural foundation of racial exclusion unmatched in the Western Hemisphere. That system’s legacy was later echoed in Jim Crow, the practice of legally mandated segregation. Jim Crow in turn caused leading Latin Americans to regard their nations as models of racial equality because their laws did not mandate racial discrimination— a belief that masked very real patterns of racism throughout the Americas. And yet, Cottrol says, if the United States has had a history of more-rigid racial exclusion, since the Second World War it has also had a more thorough civil rights revolution, with significant legal victories over racial discrimination. Cottrol explores this remarkable transformation and shows how it is now inspiring civil rights activists throughout the Americas.

Students of American history know of the law’s critical role in systematizing a racial hierarchy in the United States. Showing that this history is best appreciated in a comparative perspective, The Long, Lingering Shadow looks at the parallel legal histories of race relations in the United States, Brazil, and Spanish America. Robert J. Cottrol takes the reader on a journey from the origins of New World slavery in colonial Latin America to current debates and litigation over affirmative action in Brazil and the United States, as well as contemporary struggles against racial discrimination and Afro-Latin invisibility in the Spanish-speaking nations of the hemisphere.Ranging across such topics as slavery, emancipation, scientific racism, immigration policies, racial classifications, and legal processes, Cottrol unravels a complex odyssey. By the eve of the Civil War, the U.S. slave system was rooted in a legal and cultural foundation of racial exclusion unmatched in the Western Hemisphere. That system’s legacy was later echoed in Jim Crow, the practice of legally mandated segregation. Jim Crow in turn caused leading Latin Americans to regard their nations as models of racial equality because their laws did not mandate racial discrimination— a belief that masked very real patterns of racism throughout the Americas. And yet, Cottrol says, if the United States has had a history of more-rigid racial exclusion, since the Second World War it has also had a more thorough civil rights revolution, with significant legal victories over racial discrimination. Cottrol explores this remarkable transformation and shows how it is now inspiring civil rights activists throughout the Americas.

This remarkable, hard-to-find resource is an exhaustive compilation of state laws and local ordinances in effect in 1950 that mandated racial segregation and of pre-Brown-era civil rights legislation.The volume cites legislation from forty-eight states and the District of Columbia, and ordinances of twenty-four major cities across the country. The complete text of each law or ordinance is included, along with occasional notes about its history and the extent to which it was enforced.Other relevant information found in the volume ranges widely: the texts of various Supreme Court rulings; international documents; federal government executive orders, departmental rules, regulations, and directives; legislation related to aliens and Native Americans; and more.In his introduction Davison M. Douglas comments on the legislation compiled in the book and its relevance to scholars today and also provides biographical background on Pauli Murray, the attorney who was the volume's original editor.

Gender and the Jubilee is a bold reconceptualization of black freedom during the Civil War that uncovers the political and constitutional claims made by African American women. By analyzing the actions of women in the urban environment of St. Louis and the surrounding areas of rural Missouri, Romeo uncovers the confluence of military events, policy changes, and black agency that shaped the gendered paths to freedom and citizenship.During the turbulent years of the Civil War crisis, African American women asserted their vision of freedom through a multitude of strategies. They took concerns ordinarily under the jurisdiction of civil courts, such as assault and child custody, and transformed them into military matters. African American women petitioned military police for “free papers”; testified against former owners; fled to contraband camps; and “joined the army” with their male relatives, serving as cooks, laundresses, and nurses.Freedwomen, and even enslaved women, used military courts to lodge complaints against employers and former masters, sought legal recognition of their marriages, and claimed pensions as the widows of war veterans. Through military venues, African American women in a state where the institution of slavery remained unmolested by the Emancipation Proclamation, demonstrated a claim on citizenship rights well before they would be guaranteed through the establishment of the Fourteenth Amendment. The litigating slave women of antebellum St. Louis, and the female activists of the Civil War period, left a rich legal heritage to those who would continue the struggle for civil rights in the postbellum era.

Tyrannicide uses a captivating narrative to unpack the experiences of slavery and slave law in South Carolina and Massachusetts during the Revolutionary Era. In 1779, during the midst of the American Revolution, thirty-four South Carolina slaves escaped aboard a British privateer and survived several naval battles until the Massachusetts brig Tyrannicide led them to Massachusetts. Over the next four years, the slaves became the center of a legal dispute between the two states. The case affected slave law and highlighted the profound differences between how the “terrible institution” was practiced in the North and the South, in ways that would foreground issues eventually leading to the Civil War.Emily Blanck uses the Tyrannicide affair and the slaves involved as a lens through which to view contrasting slaveholding cultures and ideas of African American democracy. Blanck’s examination of the debate analyzes crucial questions: How could the colonies unify when they viewed one of America’s foundational institutions in fundamentally different ways? How would fugitive slaves be handled legally and ethically? Blanck shows how the legal and political battles that resulted from the affair reveal much about revolutionary ideals and states’ rights at a time when notions of the New Republic—and philosophies about the unity of American states—were being created.