Status without Rights: African Americans and the Tangled History of Law and Governance in the Nineteenth-Century U.S. South

During the Civil War and Reconstruction, black southerners regularly made claims through formal legal channels. The documentary record—which is voluminous at the federal, state, and local levels—has inspired a new generation of scholarship that explores how former slaves used the legal system to express and pursue their goals as free people.[1] Generally, historians place African Americans’ actions against the backdrop of the era’s dramatic legal changes—the abolition of slavery, the extension of civil and political rights with the Fourteenth and Fifteenth amendments, and the democratization of southern state governments. Few of us, however, have stopped to consider why African Americans thought to make their claims in legal forums in the first place. Yet the fact that African Americans could use the legal system does not explain why they did. Why law? In this regard, the scholarship has followed general trends in the historiography, which tend to assume freedpeople’s desire to use the legal system as a foregone conclusion: of course they would resort to law, as soon as they were able to do so; if they did not, it was because of barriers that stood in their way. It is odd, however, to assume anyone’s natural affinity for the legal system, given its reputation for alienating rules and esoteric logic. That assumption is particularly problematic when applied to former slaves. In other times and places, people from rural societies have avoided the intricacies of modern legal systems in favor of more traditional forms of conflict resolution. Considering the experiences of slavery, moreover, it would be more understandable if freedpeople shunned the legal system, seeing it as hostile and arbitrary, of little use to them personally or in the post-emancipation society they hoped to build. It is all the more interesting, then, that African Americans in the U.S. South became such savvy legal operators so soon after the end of slavery.

We must look to the legal culture of the slave South to explain this anomaly. In so doing, we can build on several strands of historical scholarship: work in U.S. history that roots freedpeople’s activism in the period before the Civil War,[2] feminist analyses that emphasize the gendered construction of individual rights,[3] and scholarship that reconsiders the legal and political traditions associated with modern nation-states.[4] In shifting the analytical focus to the slave South, we should not discount or dismiss the dramatic effects of top-down, Reconstruction-era policy initiatives. It is hard to overstate the impact of emancipation or the formal extension of civil and political rights to former slaves. Yet there are understudied aspects of the existing legal culture that shaped how African Americans and other southerners experienced those policy changes. The procedural practices and the conceptual logic of that legal culture have much to tell us, particularly the area of law that dealt with public matters. In the parlance of the times, such matters concerned the maintenance of the peace, not the protection of individual rights. In this area of law, nuisances such as wandering livestock or redolent latrines shared quarters with violent neighbors, abusive husbands, recalcitrant slaves, and those accused of felonies such as rape and murder. Southerners had regular, direct contact with such matters, because the legal process was so localized that it involved people—including slaves, free blacks, and other subordinates—who did not have the rights necessary for participation in other legal matters and at other levels of the legal system. Even if they were never directly involved in a case themselves, most southerners, black and white, witnessed such hearings and trials on a regular basis.

This localized legal culture provides the context for understanding the politics of the post-emancipation period. Like other southerners, freedpeople were familiar with the legal process and viewed the system in terms of the maintenance of the peace, not just the protection of individual rights. Those expectations explain why former slaves thought that they could make use of the legal system after the Civil War even when they could not claim the individual rights that historians now identify as its basic foundation.

The persistence of antebellum legal culture also provides new insights into the contested history of civil rights and political democracy in the nineteenth-century United States, challenging central historiographical frameworks that not only emphasize the acquisition and extension of civil and political rights to individuals, but also associate the possession of those rights with personal agency, inevitable social progress, and access to governing institutions at the state and national levels. Questioning those assumptions in the realms of economic and political life, scholarship on the post-emancipation period has begun to explore aspects of freedpeople’s political culture that rejected individualism. Many of these historians also question the analytical link between civil status and the ability to influence law and politics.[5] Broader claims, however, can also be made. African Americans’ use of the legal system sheds new light on important elements of nineteenth-century political culture more generally: freedmen and freedwomen involved themselves in the legal system, even when they could not claim individual rights, because neither they nor other southerners understood the political terrain exclusively in those terms.[6]

The U.S. South seems an unlikely place to look for a legal culture that included slaves. The region has a well-deserved reputation for its profoundly hierarchical legal order. In their statutes and appellate decisions, southern states not only denied individual rights to enslaved men and women, but also restricted the civil and political rights of free black and poor white men as well as all free women. From this perspective, the system was rigid and exclusionary, disciplining those on the margins while prohibiting them from using the law in their own interests. Statutes and appellate decisions, however, provide only a partial view of southern legal culture. Those texts tend to emphasize individual rights in their most abstract form, as the law’s primary fulcrum, thereby obscuring key elements of what was, in fact, a highly localized system that rooted legal culture directly and concretely in daily life.[7]

Both law and government operated in close physical proximity to ordinary southerners, because the basic institutional structures of state government in the slave South were so localized. In matters other than law, North Carolina and South Carolina were very different. South Carolina was British North America’s premier colony, with close ties to Europe and a thriving economy based on staple crop culture. By contrast, North Carolina was something of a backwater, with a reputation as a refuge for other colonies’ misfits and failures. The two states nevertheless represent broader trends in the legal culture of the South after the American Revolution. In these two states, as elsewhere, lawmakers decentralized the most important functions of government during the Revolution, drawing equally on Revolutionary ideology, established elements of Anglo-American law, and undercurrents of local political unrest.[8] The results reflected a blatant disregard for distinctions that would later become so important in government, not only allowing local custom, politics, and law to mingle freely, but also blurring the demarcation between “local administration” and “state government.” In their basic design and daily operations, the two state governments placed legal authority in local institutions, directed political matters to those venues, and gave them considerable autonomy over a wide range of public matters. As a result, the state level was largely dependent on local jurisdictions, particularly in the period between 1787 and 1830. Statutes, for instance, often responded to individual and local concerns and often had limited effect beyond a specific issue or area. Similarly, appellate decisions resolved issues in particular cases without necessarily establishing an authoritative guide for other cases elsewhere in the state. Legislation and appellate decisions then accumulated piecemeal, full of inconsistencies and contradictions, without constituting a systematic body of state law.[9]

In this system, local legal practice was not some quaint, folksy exception to a formalized, rational body of state law, as is commonly assumed. Local decisions, like legislation and appellate decisions, were central components of state law, because state governments—as well as the national government—were relatively weak in this period and delegated so much authority to local jurisdictions. Although historians have often associated the South with “localism,” this approach was not peculiarly “southern” at the time. Similar arrangements characterized both the theory and practice of law and government throughout the United States in the post-Revolutionary period.[10]

Not all southerners, however, were happy with legal localism. Between the Revolution and the Civil War, a dedicated group of reform-minded legislators in North Carolina and South Carolina worked to change that situation. Reformers in these two states actually were part of a national network that sought to rationalize law and centralize the operations of state governments.[11] By the 1830s, Carolina reformers had made significant progress in creating unified bodies of law, intended to apply throughout their states. The effort included not only the organization of statutes and the creation of stronger appellate courts with the power to set precedent, but also the elevation of the state level over the local level as the place where a uniform body of law was created and interpreted. In the resulting statute collections and appellate decisions, lawmakers relied heavily on the rubric of individual rights, taking the legal principles that had governed civil matters involving property since the Revolution and applying them to areas of law that had been left to local areas, namely criminal matters and other public issues. These legal texts, however, did not necessarily describe or govern practice in the area of public law, even in the 1840s and 1850s. In fact, reformers were most successful at the ideological level, particularly in their efforts to legitimize the concept of a unified body of state law as desirable and even inevitable. In terms of actual institutional change, their accomplishments were uneven. Local areas retained considerable authority throughout the antebellum period. On the eve of the Civil War, counties and districts or municipalities remained important loci of government authority: major questions about the public welfare were still aired and decided at the local level.[12]

Within this localized system, a large portion of government business was handled in what are now considered “legal” venues. The most visible were the circuit courts, which met on a regular schedule in county seats or court towns and which held jury trials. Not only did circuit courts provide obvious symbols of government authority, but their grand juries also made recommendations for the enforcement and modification of laws at the local, state, and even national levels. Grand juries interpreted their authority broadly: they issued pronouncements on foreign policy, trade, and federal legislation; they advised legislatures to pass statutes on a range of issues, usually related to local concerns about slavery, transportation, crime, and family relations; and they dispatched local officials to investigate abused apprentices, unreported births, distributions to the deserving poor, unkempt roads, and other suspicious situations, such as “disorderly” houses, which usually involved some combination of noise, sex, liquor, violence, and gambling. But circuit courts were only the most conspicuous part of a system dominated by even more localized legal proceedings, including magistrates’ hearings and trials, inquests, and other ad hoc legal forums. Magistrates not only screened cases and tried minor offenses, but also kept tabs on the orphaned, ill, and poor as well as matters involving markets, health, and morals. It was in all these informal, nominally legal arenas that southerners did the business of “keeping the peace,” a well-established concept in Anglo-American law that expressed the ideal order of the metaphorical public body, subordinating everyone (in varying ways) within a hierarchical system and emphasizing social order over individual rights.[13]

This legal system was everywhere and nowhere. There was no single location for localized law or the government authority it represented. Towns where circuit courts met were likely to have courthouses, but that was not always the case. The practice of law was not associated exclusively with courthouses anyway, because most legal matters were conducted elsewhere.[14] The legal system moved around promiscuously, following the officials who oversaw it and the people it served. When people had a complaint, they initiated the legal process by going to find a magistrate—the officials who presided at the first, busiest level of the legal system. Magistrates heard complaints when and where they received them, in the fields where they had been working or even from the beds where they had been sleeping. They then held hearings and trials in convenient spots that could accommodate a crowd—taverns, country stores, front porches, a room in the magistrate’s house if it was large enough, or outside under a canopy of trees if it was not.[15] Legal reformers cringed, seeing disrespect in the informality of these proceedings. “The places of trial,” wrote one observer through gritted teeth, “are usually some tavern or some such place, where such scenes are sometimes exhibited, as justice never before witnessed.”[16]

That was the point. Such locations pushed law physically into the community and into the lives of the people there. As a result, the bulk of legal business was conducted in those places where ordinary southerners were most likely to be: in houses, yards, fields, or other community meeting places. Legal forums, for instance, often crystallized at community gatherings, emerging from the interactions of those who were there. Inquests provide excellent examples. When a death occurred, neighbors gathered to pay their respects, to clean and dress the body, and to grieve. That process also could reveal evidence of wrongdoing. Sometimes the signs were easily spotted by those who first saw the body. Sometimes they were uncovered by the women whose job it was to ready the body for burial. And sometimes they emerged through the mourners’ conversations, as information was shared and the pieces began to form ominous patterns. When doubts coalesced into something more serious, the coroner—or someone designated to act as one—was called, if he was not already there. The gathering then reconstituted itself as a legal hearing: a jury was formed, often from among those in attendance, and mourners became witnesses. One by one, they offered their observations, repeating for the record what had already been said. And so law arrived at the wake, at the invitation of no one and everyone.[17]

The physical proximity of the legal system did not mean that individuals had equal access to it or enjoyed equal treatment within it. To the contrary, the system was designed to maintain a rigid social order based on stark inequalities. The distribution of individual rights fell out along that same hierarchy, simultaneously reflecting and buttressing status within the social order. Many of those individual rights involved private property or were related in some way to private property: in addition to the rights to buy, sell, and own were rights to one’s body and to the products of one’s labor, as well as rights to contract. Other procedural rights—including those to have a trial, to face one’s accusers, to know the charges against one, to bring charges, and to testify—also had strong associations with private property, in the sense that they created predictable rules for its protection. Legal officials scrupulously safeguarded such rights in civil suits involving private property in its various forms, whether real estate, movable goods, perishable items, other people’s bodies, or one’s own body. These matters were “private” in the sense that they involved the private property of specific individuals—and were thus titled with the names of those individuals, such as John Smith v. William Brown. Individual rights, particularly those involving procedure, also applied in criminal cases and other public matters, where they were an important component, even at the local level, providing crucial avenues of access and influence within the system. The difference was that individual rights were not the only consideration in this body of law. In theory, public matters involved offenses against the peace, the metaphorical public body—a fact signaled in the cases’ titles, such as State v. Mary Jones. In practice, public offenses encompassed everything but civil suits involving private property, and included all criminal matters as well as a range of ill-classified infractions that were judged to disturb the peace in some way. The interests of peace, which made the cases public, provided other points of entry and standards of evaluation.

Given the acknowledged place of individual rights in public law, however, it is not surprising that white men from the middling ranks of society were the most likely to summon the legal system to resolve their problems. Their rights gave them access to it, while their social status brought the process within easy reach. White women from that social stratum also tended to approach the law with an air of proprietary familiarity, based more on their status than on their formal legal rights, which were few. They routinely called on legal officials for aid and provided information about the problems of others. By contrast, the legal experiences of slaves, free blacks, and poor whites were likely to affirm their subordination, precisely because it was crucial to the maintenance of social order as it was defined in this system. In general, slaves’ and free blacks’ participation in law was not voluntary: they were summoned by the legal system; they did not summon it. Brute force often characterized their legal encounters, as they were yanked out of their daily routines, tried, and sentenced by white people with whom they worked and worshiped. The process then transformed familiar domestic settings into menacing sites of interrogation and punishment. Poor whites often met up with law on unfavorable terms as well.[18] Some poor whites and African Americans nonetheless mobilized the legal system on occasion. When they did, however, it was not because their rights had been violated, but because legal officials considered their problems a threat to the larger social order.

The legal system’s proximity and accessibility wove the practice of law into the fabric of daily life and familiarized southerners with it. The emphasis on social order also had the effect of combining formal law with local custom, particularly in the area of law that dealt with public matters. Lawyers had not yet claimed this legal terrain and professionalized it—in contrast to the situation in civil matters involving private property, a lucrative area that constituted the bulk of lawyers’ incomes.[19] Public offenses still were governed by common law in its traditional sense as a flexible, customary collection of principles rooted in local practice. In most issues, the parties represented themselves. If lawyers entered into the picture, it was in the very final stages, if the case went to a jury trial, which was unlikely. Public law thus had deep cultural roots. As an institution, a process, and a body of knowledge, this area of law existed as an extension of those mechanisms through which communities maintained social order.[20]

That was exactly how southerners, white and black, used this area of law. In fact, a wide range of people expected the legal system to enforce their notions of the public order, which were usually defined in terms of their own needs and interests. Those expectations produced an endless stream of complaints to magistrates and grand juries about threats to community health, welfare, and order. Depending on the informants’ predilections, these ran the gamut from the absurd to the serious: from dilapidated fences and ill-kept roads, to neighbors with a penchant for late nights, drinking, or pilfering, to threats or actual instances of physical violence. Among those offenses worthy of legal intervention were domestic issues. Masters filed charges against hired servants and slaves whom they could not control; white and free black wives filed charges against husbands; and free children informed on their parents. Free families brought their feuds to court for resolution, with wives, husbands, parents, children, siblings, aunts, uncles, and cousins all lining up to air their dirty laundry. Neighbors routinely involved legal officials in their quarrels, sometimes using the system in combination with insults, threats, and violence, as yet another weapon in an ongoing conflict. In all these instances, southerners marched off to magistrates, certain that the legal system would cure what ailed them: legal action could keep a lazy man at work, a philanderer from tempting young girls, a bully from terrorizing his neighbors, a husband from beating his wife, or a drunk from his whiskey bottle. Those expectations represent a remarkable leap of faith.[21]

The influential literature on southern honor has pointed historians in another direction, leading many to assume all southerners’ distance from legal institutions and their disdain for law. This culture of honor supposedly encouraged white men to prefer individual acts of retribution to legal action. While claiming rights for themselves, these men questioned a system of law that limited their actions by recognizing those rights in others, even other white men. They also excluded African Americans, granting them neither honor nor rights in an underdeveloped legal system that was clearly subordinate to the whims of elite white men. The result was African Americans’ deep alienation from the law. Yet Bertram Wyatt-Brown, the historian most closely associated with the scholarship on southern honor, does not actually posit an irreconcilable contradiction between honor and law.[22] That is partly because his analysis of the legal system includes localized legal proceedings. At this level, in contrast to appellate courts, the process was not just about the protection of individual rights and universalizing legal abstractions, the elements of law that other scholars characterize as foreign to southern culture and at odds with honor. The scholarship, notably the work of Ariela Gross, has further reduced the distance between the mechanisms of law and the dynamics of daily life in southern society, showing how honor and law comfortably coexisted.[23] Moreover, the denial of rights to slaves and free blacks did not necessarily result in their rejection of law as a conceptual system of rule. In fact, many of those on the margins still had faith that the system could work for them, under the proper circumstances.

If anything, however, law was more deeply embedded in southern culture than even this scholarship suggests, because the difference between local legal venues and other means of governing misconduct was not always evident or meaningful. Magistrates and local courts, for instance, handled the same kinds of offenses as church disciplinary hearings—drunkenness, sexual impropriety, and conflicts within families and among neighbors. In fact, most offenses in local courts emerged out of otherwise ordinary encounters involving otherwise ordinary people who knew each other well. In theory, calling in the magistrate represented a significant escalation of an issue, transforming it into a formal legal matter. In practice, however, the results were not always distinguishable from the services offered by churches or the mediation of neighbors or family members. Magistrates usually handed out nothing more than sympathy or censure. When they took action, they were likely to issue a peace warrant, which labeled the perpetrator’s actions a potential, yet unrealized, public offense. The errant individual then secured a bond for good behavior for a specified period of time, but did not incur any criminal penalty unless he or she broke the peace thereafter.[24]

This approach to crime derived from a cultural milieu that accepted misconduct as a part of everyday life, rather than a deviation from it. Disorderly behavior was a regrettable but inescapable aspect of the human condition, because original sin made all human beings susceptible to evil. What distinguished crime from other forms of disorder was the venue in which it was handled: it became crime when it met the legal system.[25] Criminal behavior, moreover, did not necessarily make the offender into a criminal. All those guilty of misconduct—criminal or otherwise—could be forgiven, even excused, as long as they confessed and repented. Then community members could receive them back into the fold. That last step was crucial, because the remedy for individual offenders was integration back into the community, not expulsion from it. That logic, for instance, underlay peace bonds, which threw enforcement back on the community, summoning family, friends, and neighbors to police troublemakers. Bonds required one or more other people to put up part of the amount, making them liable if the accused broke the peace again. That economic obligation represented the signers’ promise to keep the offender in line. Peace bonds put everyone else on notice as well, investing them with the responsibility to monitor the situation and make sure that the offender was successfully reintegrated into community life.[26] Even capital punishment, which severed the offender’s social ties permanently, did not have that intent: death was punishment for the offense, not a means of eliminating a dangerous criminal from society.[27]

The detection and prosecution of crime also required community participation. Because the legal system construed the maintenance of order as a public responsibility, it gave police power to ordinary people in local communities as well. They, not legal professionals, identified wrongdoing, investigated crimes, and conducted prosecutions. Knowledge about legal procedure was so widely diffused that southerners knew exactly what to do when they encountered a suspicious event. The first step was to announce the crime—to give “information” about it to a legal official. “Information” was a recognized legal term that covered complaints about offenses as well as facts that supported those charges, including physical evidence and other details about the crime and those involved. People assumed that the discovery of a crime entailed the responsibility to investigate and gather evidence—all part of “information.” They followed through, doing what was necessary, pursuing tracks, hunting down witnesses, searching houses for stolen items, sorting through burned coals for the charred remains of missing livestock, measuring footprints against the shoes of suspects, and reconstructing fights to gauge the order, reach, and severity of participants’ blows. The formal use of community policing also tended to legitimize customary forms of discipline. In fact, the difference between unsanctioned customary action and sanctioned forms of community policing was not always clear.[28]

Even slaves and free blacks, who were blocked from formal participation in court, shared in legal duties at this level. That is what Joe, a South Carolina slave, did when he found another slave, Israel, dead in a field. At the inquest, Joe explained that Israel “was dead when he found him, and that he did not touch him, but went to Mr. Gordon’s to give information.” Joe may have left Israel untouched for any number of reasons, ranging from squeamishness to superstition. But his use of the term “information” indicates a familiarity with the legal process and suggests that he knew to leave the body as he had found it, so that the coroner’s jury could investigate and determine the cause of death.[29] Because “information” was different from sworn testimony, people who could not legally testify could supply it. Not only did they bring crimes to the attention of legal authorities, but they also found and provided the information necessary in determining cases. Slaves occasionally provided information—as distinct from testimony—in cases involving whites, bypassing restrictions against their sworn testimony. It was more common, though, for information to reach the courtroom through the testimony of whites, in ways akin to those described by other historians for civil cases. Slaves nonetheless played crucial roles in cases that involved offenses against them and other African Americans, where their information framed how and whether the issues would go forward in law.[30]

The legal system rested on the initiative of local people in less direct but no less important ways. For legal proceedings to have the desired effect of restoring order, a range of community members needed to be there to fill the role of a classical chorus, witnessing and commenting on events. The entire neighborhood turned out for this phase of the legal process, which began at magistrates’ hearings where information was aired and evaluated. Sometimes people brought others with them when they filed complaints. Cases also could attract quite a crowd as they moved from complaint to hearing. If the magistrate acted on a complaint, he compiled a list of witnesses and then summoned them to give information on the matter. Those lists could be extensive, although the ability to give sworn testimony depended on the race of the accused. But an invitation was not always necessary, as people insinuated themselves into the process at all levels of the system. They did not “participate,” in the sense of taking time out from their daily lives to perform a civic duty. Rather, involvement in the legal process was part and parcel of established community dynamics, in which people made it a point to keep tabs on everyone else, because they assumed that it was their duty to do so. They showed up at hearings, whether summoned or not, expecting to say their piece, even if the information qualified as hearsay, appeared to be irrelevant, or duplicated what others had said. The repetition and accumulation of details were central to the process, which was as much about airing the conflict, repairing a rift, and establishing order as it was about determining the facts of the crime.[31]

Hearings and trials turned on local gossip networks that produced knowledge about individuals. That knowledge occupied a formal place in the legal system as “common reports”—information that was widely held to be true, even though positive proof was lacking. The mechanisms of gossip that produced “common reports” were so efficient and influential that evangelical Protestant churches regularly disciplined their members for spreading false rumors.[32] True rumors were an altogether different matter, although the distinction between a true rumor and a false one was less about verifiable facts and more about the extent to which others believed the story. The true rumors lodged in local information exchanges, where they circulated until they became common reports. In this way, the gossip produced and conducted through community networks became the information that provided an evidentiary basis for legal decisions.[33]

The close connection between cultural knowledge and legal practice drew a range of southerners into the system, allowing them to influence the terms through which conflicts were interpreted, even when they could not participate directly in institutional arenas where such issues reached a formal resolution. In this context, for instance, slaves figured into a wide range of legal matters, because they created and passed along rumors that ultimately shaped legal cases. As people heard gossip and repeated it, the source became increasingly obscure and increasingly irrelevant. That was why Elizabeth Arrants, a white woman in Kershaw District, South Carolina, prosecuted Elley, a slave, for slander. According to white and black witnesses, Elley had repeatedly called Arrants a “blasted whore” and claimed that her children were illegitimate. The insults had circulated first among slaves and then more widely to whites. Elley, at least, had recently bragged that “white people had heard what she said.” It was at that point that Arrants—whose position as a female head of household made her particularly vulnerable to insults of this kind—filed charges. The danger for her was that white people would repeat Elley’s charges, spreading them and giving them legitimacy in the process. That information then shaped the context for understanding why Arrants filed charges against Elley: what Elley said could turn Arrants’s actions into disorderly conduct that required legal intervention.[34]

Those people without individual rights left their imprint at the very early stages of the process, when written records were less likely to be kept. Their presence became less obvious as cases moved through the legal system and away from the localized proceedings in their communities. By the time those cases went to trial in circuit courts, the influence of such people over the proceedings could be difficult to discern, as propertied white men took over the process at that stage. Yet at that point, the cases usually had already been all but decided anyway. Both white and black southerners who did not testify at trials were crucial in laying the groundwork for them, providing the context for defining the charges and interpreting the evidence. Having set the stage, they sat back and watched the results, knowing that it was their input that turned a fight into assault or a death into murder.[35]

Circuit courts were more formal and more distant from daily life. At this level, the possession of individual rights became more important to the legal process, circumscribing the participation of slaves and free blacks as well as white women and children. Courtrooms were also noisy, opinionated places, which some historians have associated with the distinctly masculine culture of white, southern men. But the swirl of activity surrounding court sessions was not limited to white men.[36] Criminal trials spiced up the dull routines of rural life, and people followed the proceedings with the same addictive attention now reserved for television soap operas. White women, for instance, routinely attended criminal trials for that reason. Court also provided an excuse to go to town, to relax, shop, trade, visit, or gawk—the crowds included slaves and free blacks as well as white women and children. There was always conversation to be had about the cases, the guilt or innocence of the accused, the evidence presented, and the performance of the lawyers and judges. Gossip permeated the parlors of respectable households, where white matrons entertained friends and relatives in town for court. Similar conversations could be overheard down the street in modest houses and shanties as well as in the back rooms and kitchens of the wealthy, where slaves worked and visited. The discussions then extended beyond the town’s boundaries, involving people in the countryside who could not be in town for court, but who eagerly awaited the latest grist to put into the gossip mill.[37]

White and black southerners also knew enough about the circuit court to appreciate its limits. The gossipy crowds on court days had a distinct role in the legal culture, shaping the reception of trials’ outcomes. In fact, a trial did not necessarily mark the end of a case. Pardons constituted an alternative appeals process: like cases presented in appellate courts, pardon petitions contested a trial’s outcome, although they did so by skipping over legal points and going directly to either the facts of the case or its social context. Petitioners constructed these appeals as if they were making extraordinary requests: they described the situations as singular, emotional, and urgent, which was why they were begging the governor to intercede with mercy. The language, however, can be misleading. Petitions circulated after every court session in a routine as predictable as clockwork. They followed specific rhetorical conventions, resulting in something akin to a handwritten legal form, in which the petitioners themselves churned out the appropriate boilerplate and then filled in the necessary details.[38]

Although white male property owners signed these petitions, their names did not represent their interests and opinions alone. Petitions also reflected currents of gossip that had become something more tangible, as community members evaluated the reputations of both the guilty offender and the victims. In these calculations, everything mattered: age, personality, family responsibilities, demeanor, church attendance, work habits, family ties, and community connections. Other people’s opinions on these issues concerned the elite white men who usually made out pardon petitions, because their own reputations depended on the same gossip networks that produced common reports about the people involved in criminal cases. For those outside these tight circles of local knowledge, the conclusions can seem arbitrary: Why did communities rally around one convicted murderer but not another? Why did whites occasionally come to the defense of certain slaves? Why did they ignore the offenses against certain white men? The answers lie less in the abstractions of race, gender, class, or rights and more in the networks of personalized information produced about specific individuals by the people who knew—or thought they knew—them.[39] In this legal culture, neither the process nor its outcomes were confined to the boundaries of the courtroom.

The South’s legal system neither protected the interests of slaves nor recognized their rights. Yet localized legal culture still incorporated slaves and other subordinates into its basic workings, because they were part of the social order that the legal process was charged with maintaining. One result was that slaves and free blacks had intimate knowledge of the legal system: they not only knew the process, but also understood its underlying logic, in which individual rights provided access and privileges, but which nonetheless elevated the maintenance of social order over the interests of individuals.

In theory, the peace was both hierarchical and inclusive. While the term was common in post-Revolutionary southern legal culture, it was based in a long-standing, highly gendered construction of government authority, which subordinated everyone to a sovereign body, just as all individual dependents were subordinated to specific male heads of household. That metaphorical body was represented first through the king, and then, after the Revolution, through “the people,” via the agency of the state—although the state’s form was still an open question in the post-Revolutionary decades, a situation that made it possible to locate so much governing authority at the local level. The sovereign body, however, was always a patriarch, whatever its location or physical embodiment. That remained the same, whether sovereignty resided in local jurisdictions or centralized institutions, or whether it took the form of a male king, a female queen, or a combination of men and women from different social ranks as “the people.”[40]

The peace was inclusive only in the sense that it was an equal opportunity enforcer, enclosing everyone in its patriarchal embrace and raising its collective interests over those of any given individual. Typical was John Haywood’s North Carolina magistrates’ manual, published in 1808, which identified the “peace” as “a quiet and harmless behavior towards the government, and all the citizens under its protection.” The substitution of “citizen” for “subject” was more a Revolutionary flourish than a substantive change, since the manual explicitly incorporated domestic dependents and other subordinate groups within the peace, including free blacks and slaves: not only were they accountable to law, but they were also under its protection. Separate entries in justices’ manuals covered every conceivable legal category of people, including wives, widows, women, children, wards, students, free blacks, slaves, Indians, and servants. While extending the peace to all those people, the entries also made the hierarchical structure abundantly clear, by focusing on the restrictions unique to those in each legal category. The combination underscored the importance of coercion in this system: everyone had a place, and force was necessary to keep them there.[41]

Yet, it was precisely because the patriarchal peace combined rigid hierarchy with coercive inclusion that subordinates, even slaves, could play active roles in the system. They could trump the authority of their immediate patriarchs by appealing to the higher patriarchal authority of the peace. Slaves, free blacks, and white wives and children who could not testify, for instance, regularly gave information that initiated cases and shaped their outcome. Even when they could not prosecute cases in their own names, they made complaints that resulted in prosecutions and convictions for their injuries. In such instances, subordinates did not use the law in their own right. When legal officials acted on such information and complaints, they did so by invoking the larger interests of the peace. The source of the information was irrelevant if the peace was threatened. Those dynamics were particularly evident in cases involving injured subordinates who were unable to prosecute in their own names: although the injury was to a specific individual, officials prosecuted by making the legal offense the theoretical damage to the peace, in its guise as the metaphorical public body. The injured peace thus replaced the actual victim and prosecuted the case. At issue was who could act in law. The metaphorical public body could do so when the actual, corporal bodies of subordinates could not. This legal form erased injured subordinates only in theory. In practice, they still remained central, because the damage to the public body was done through their flesh and blood. Always present, yet unacknowledged—this convenient legal fiction allowed subordinates a central role in the legal order, without disturbing the hierarchies that also defined it.[42]

Local officials routinely invoked the interests of the peace when they confronted offenses against subordinates—white women, free blacks, slaves, and free children of both races. The concept accounts for the otherwise mystifying array of cases in local courts, such as incest, child abuse, wife-beating, and violence by masters against slaves. At least, that is the best explanation for what local officials did, a conclusion based on the distillation of ideas from action, since magistrates, sheriffs, and circuit court judges did not stop to record what they were doing or why. A liberal application of the peace, for instance, likely explains two separate rape cases involving enslaved women, Annis and Juno, in Chowan County, North Carolina. By casting the offense as one against the public order, it was legally possible to prosecute the rapes.[43] In this legal logic, of course, Annis’s and Juno’s injuries were not the basis of the prosecution. The crime consisted in the virtual violence done to the metaphorical public body through the two women’s injuries. That framework nonetheless assumed these enslaved women’s place within the peace and made their experiences visible as public crimes.

Those cases, however, did not alter Annis’s and Juno’s legal status or the status of slaves generally. Local officials considered complaints on a case-by-case basis, righting specific wrongs done to the metaphorical public body without extending or denying rights to any category of individuals. The interests of the peace thus drew unique boundaries around each case, circumscribing the legal implications for the rights and status of the people involved. Their individual rights were not at issue; it was the good order of the peace that governed the cases. Acting on behalf of the peace, local officials could follow up on the complaints of one white wife or one enslaved woman. They could undercut the domestic authority of one husband or one master. But those circumstantial assessments did not translate into universal statements about the rights of all wives, all slaves, all husbands, or all masters in all like conditions. That was because such cases were about the peace, not the rights of the individuals involved. The logic emphasized the collective order, rather than specific individuals within it. In the name of the peace, subordinates could move out from under the legal purview of their household heads and acquire a direct, if momentary, relationship to law and government.[44]

It was possible for anyone’s personal problems—even those we would expect to be private—to emerge and assume public significance, given the right circumstances, because localized legal culture subsumed everything within the public order. Personal matters were always present within the public order, although not always legally relevant to it. In the localized legal system, people established and expressed legal relevance through the categories “private” and “public.” The concepts were a means rather than an end. They provided useful tools to establish and to rank the seriousness of problems, determining how they would be treated within the legal process: private issues either remained with those immediately involved or became civil matters; public matters, which affected the good order of the peace, had wider ramifications and merited collective intervention of some kind. Beyond that, the consensus broke down, because southerners invariably disagreed about what, exactly, should be private and public in any given situation. In local legal practice and common parlance, then, the terms did not refer to normative principles or specific categories of people (such as domestic dependents) or places (domestic spaces) that were inherently private or public. Any given matter could be either one or the other, depending on the circumstances. In the context of localized law, a domestic matter was not, by its nature, private. What made it private was the decision that outside intervention was inappropriate or unnecessary. Those determinations were part of a dynamic process—the ongoing negotiations necessary in maintaining order within communities. In fact, the terms “private” and “public” themselves expressed conflict rather than consensus. It was at those moments when the distinction between these concepts was the most unclear that people tended to invoke them the most forcefully: they appeared when there was the least agreement about them.

That construction of “private” and “public” is more apparent in people’s use of localized law than it is in the legal texts produced at the state level, on which historians usually rely. Southerners used the legal system with the assumption that all personal matters were potentially public. That immanent connection explains why free southerners felt so comfortable moving their own problems—what later would be private—into the legal system, without any sense that they were challenging the social order. That is also why they peppered their legislatures with requests for new laws to resolve individual problems and local issues.[45] The challenge lay in convincing legal officials that the issue would go forward in the system, which usually meant categorizing it as a public issue, not a private one. Consider the divorce petitions that occasionally appeared on South Carolina’s legislative agenda, even though the state’s laws did not allow for divorce. Petitioners were not necessarily naive or ignorant of the state’s prohibition on legal divorce. Rather, they hoped that the legislature would use its power to make a new law, specifically designed for them. At least one petitioner indicated his awareness of what he was asking. “Your petitioner,” he wrote, “is well aware that your Honorable body by no means are in favor of dissolving the matrimonial tie.” He nonetheless thought that his personal problems deserved special consideration and their own statute.[46]

READ MORE: History of Divorce Law in the USA

This conception of private and public is different from the one now current in the historiography of the nineteenth-century South. This scholarship tends to construe the interests of domestic dependents and the dynamics involving dependents within households—including wife-beating, child abuse, incest, and violence against slaves—as inherently private, insofar as they were separate and excluded from the public realm of law and politics. As a result, one tendency in the scholarship is to assume either that the legal system did not handle such issues or that it gave them cursory attention. The other is to assume that they represented either a disruption or a challenge to the public order when they did appear. In the context of the slave South, historians explain that situation in terms of the concept of dependency, which incorporates race and class as well as gender. Only those who could be independent—that is, white men with property or the capacity to acquire it—could claim the civil and political rights necessary to participate directly in matters on the public side of the line. Excluded from public participation were all those people—slaves, white women, free blacks, and even propertyless white men—whose gender, race, and class marked them with dependency, which signaled the incapacity for self-governance and, by extension, the governance of others.[47]

In fact, domestic dependents and domestic issues are categorized as private in the legal texts on which nineteenth-century historians have tended to rely—appellate decisions, statutes, and the writings of reformers who favored changes that would elevate those bodies of law. But those sources are limited in their representation of southern legal culture. At issue is the fact that appellate courts and legislatures were not the only or even the primary locus of legal authority in the South for much of the period between the Revolution and the Civil War. Nor did the statutes and decisions produced in these arenas define a comprehensive body of law applicable throughout the entire state, although they held more sway in property issues than they did over criminal matters and other public legal issues. While appellate decisions and statutes acquired more legal authority in all areas of law by the 1830s, they did not assume their place at the top of the legal hierarchy until Reconstruction. Indeed, scholarship that includes local court records provides a very different picture of the legal process.[48]

Even in the late antebellum period, when statutes and appellate decisions became more authoritative, they still underscored the continued importance of localized law, particularly in the broad area of public matters. Specifically, appellate cases and statutes settled conflicts that could not be resolved at the local level. In the resulting texts, appellate cases and statutes tended to use the terms “private” and “public” as if they were settled, mutually exclusive abstractions. In fact, however, lawmakers had to use “private” and “public” in that way, because the point was to impose order on local conflicts, generated because some people thought that their concerns rose to the level of public issues and others did not. Regardless of what statutes advised and what appellate courts ruled in any particular case, the peace still made it possible for similar kinds of private problems to become public in other cases. All those private issues were already part of the peace; it was just a question of whether they were problematic enough to become a public concern: that included petty disputes (which might be considered private because of their seeming insignificance) as well as the complaints of domestic dependents and even problems associated with private property. Such private matters routinely became public—including legal issues that were assumed by historians to be private because they did not appear at all in statutes or appellate cases or that were explicitly labeled private in these legal texts. In localized law between the Revolution and the Civil War, the public realm of the peace was littered with issues that many historians have considered outside its bounds. If anything, those matters were the defining element of public law, rather than exceptions to it.

The peace was as capricious as it was capacious. Enfolding the entire range of conflicts that characterized community life in the slave South, it was contradictory and conflicted, just like the people who composed it. Even as it reflected and enforced rigid hierarchies, the peace was never defined solely in terms of the rights or interests of individual patriarchs. Of course, the interests of the peace and the rights of individual patriarchs often coincided, because elite white men were the ones who wielded public authority, oversaw the interests of the peace, and played an influential role in defining the public order. But at this particular historical moment, those men held that position, at least in part, at the behest of the public order; they did not yet possess patriarchal authority solely by individual right, at least not in public matters as they were adjudicated in localized law. In fact, individual white men acquired their status through their own particular form of subordination to the peace: their domestic authority was necessary to the maintenance of order, just as dependents’ submission was. Yet the peace encompassed them, as it did everyone else, and demanded their acquiescence as well. Thus, the peace could never be defined solely in terms of individual patriarchs’ interests—whatever they might be.

By contrast, historians often describe the post-Revolutionary South in terms of an individualized version of patriarchy, one in which the interests of propertied white men and the goals of law and government were the same. Such men, it is assumed, could label the concerns of “their” dependents and other subordinates as “private” and exclude them from the realms of law and politics. To be sure, many southerners at this time saw white men’s authority in exactly those terms. Some of the region’s most prominent and prolific residents expounded on such views at great length. Many more expressed them through their daily interactions with each other. White men habitually acted as if their domestic authority were an individual right, one among many that their government was bound to uphold. Their aspirations found support in certain areas of law and political theory. Between the Revolution and the Civil War, for instance, property law emphasized the protection of individual rights—rights fully claimed only by those white men with the resources to support dependents. Some Revolutionary-era political principles went a step further, identifying the protection of individual rights as the central purpose of law and government. From there it was a short leap to a public order defined exclusively in terms of the interests of propertied white men, since they were the only ones who could claim the full range of rights as legally recognized individuals.

Given the popularity of this individualized version of patriarchy among those southerners who left most of the records, it is no wonder that it now takes up so much space in the historiography. But rhetoric and desire were not sufficient to make it so, no matter how forcefully expressed. Within the institutional structures of law and government, individualized forms of patriarchy occupied only certain limited spaces. Before the Civil War, they shared legal quarters with other conceptions, including the one that emphasized everyone’s subordination to the peace of the public body and, by extension, the notion that the legal system was about the maintenance of a social order more broadly defined than just the protection of individual rights. Even if the system did not always acknowledge everyone’s claims on it, the logic still obtained. It was difficult for even the most subordinated people within this system not to see themselves as part of this public order, if only because it was so difficult for them to escape it. For them, familiarity with this legal order was a product of coercion—but familiarity is often acquired in that way.

That familiarity is what is so striking about the legal culture of the slave South: even those on its margins assumed that they were part of it, whether for good or for ill. Free blacks regularly tried to use the system, sometimes with surprising success, despite the denial of rights that limited their access. Slaves did not so much use law as survive legal proceedings they had no choice but to endure. Their acceptance of the system might better be termed resignation. Although they knew that the legal system was capricious, they nonetheless lived with its processes and understood it as a means to regulate the communities in which they lived. They had to, because legal practice was so thoroughly integrated into the rhythms of daily life. Ordinary problems were legal because the localized legal system was supposed to maintain peace by resolving all the ordinary problems generated within it. Within the localized system, legal questions involved concrete relations within households and communities, not abstract concepts that existed outside of people’s lives. The legal adjudication of all these issues rested on local knowledge created through informal community networks. As a result, African Americans contributed regularly to southern legal culture. Whether slave or free, they were integral to the base of local knowledge on which localized law depended.

This backdrop is crucial for understanding African Americans’ use of law during Reconstruction. During and after the Civil War, African Americans made use of law in new ways, initiating cases and trying to mobilize the system on their own behalf. They did so even before emancipation, during the Civil War, with refugees and black soldiers firing off letters and complaints to federal officers and agencies. They continued after the Civil War, before the passage of the Fourteenth Amendment and under the notorious state Black Codes, which limited freedpeople’s individual rights and barred them from using local and state courts in most instances. Freedpeople nonetheless brought complaints to federal Freedmen’s Bureau officials, turning them into legal intermediaries. After the passage of the Fourteenth Amendment and the democratic restructuring of southern state governments, freedpeople made valiant efforts to use all the new legal arenas open to them, at the local, state, and federal levels. As the scholarship suggests, freedpeople made substantive claims about the post-emancipation social order in these legal arenas that went beyond their individual rights: they made powerful statements about economic justice, racial equality, and political democracy.[49] Freedpeople turned to the legal system because of the dramatic policy changes of the era, which not only granted them individual rights that allowed new kinds of access, but also encouraged them to think that the system could now be a more reliable ally. As important as those changes were, however, they constitute only part of the story. African Americans’ past experiences also encouraged them to look to the legal system. Like other southerners, they were familiar with the system’s workings. More than that, they had experienced law as a system designed to protect community order. After emancipation, African Americans had every reason to think that they could assume more active roles in defining the public order, even when their claims to individual rights were tenuous.

Those expectations are particularly pronounced in the actions of freedwomen, who did not acquire the full range of rights that freedmen did. In fact, African American women shed the legal bonds of slavery only to acquire all the legal disabilities of other free women. Yet, as records indicate, freedwomen used courts not just to assert civil and political rights, but also to address a range of domestic issues: they filed for divorce, brought charges against their husbands for neglect and abuse, informed on annoying neighbors, testified in cases involving community conflicts, and prosecuted neighbors and even family members on behalf of their children. These uses of the legal system were strikingly similar to those of white southern women of poor to modest means, who had expected the system to resolve such problems before the Civil War and continued to bring such cases afterward.[50]

African Americans’ use of the legal system is important, given the trajectory of Reconstruction. The same Reconstruction-era lawmakers who extended civil and political rights to African Americans also made other changes that were not as democratic. Legislation in the late nineteenth century centralized state authority and systematized a body of state law around the concept of individual rights. Those changes built on trends from the late antebellum period, spearheaded by reform-minded southern lawmakers who tried to move governing authority away from local jurisdictions and create a uniform body of state law that slotted individuals into generic categories. Ironically, the efforts of these southern statesmen were not fully realized until after the Civil War, as part of the systematic reform of the region under the terms of the congressional Reconstruction plan and the dramatic revision of state constitutions under Republican rule. The institution of capitalist labor relations and the extension of individual rights to former slaves required a hierarchical legal system, which construed law as a set of universal rules, consistently applied within defined categories. Although most southern legal reformers who lived through the Reconstruction era bitterly opposed the abolition of slavery, the Fourteenth and Fifteenth amendments, and other changes that came with Republican rule, their basic vision of the legal system was similar to that of Reconstruction-era Republicans. It is no coincidence that Democrats left these changes in place when they took over after Reconstruction.[51]

Within the political context of the post-Reconstruction era, this new version of state authority did not necessarily work to the benefit of most southerners. Consider the experience of African American men during and after Reconstruction. The extension of civil and political rights to them also formally linked possession of those rights with citizenship—in the broader sense that civil and political rights were considered essential markers of citizenship and, more than that, prerequisites to participation as full members in the polity, whether at the state or the national level. That link between individual rights and citizenship actually redefined the basis of participation in law and governance. As Redemption and Jim Crow rolled back the legal changes of the Reconstruction era, the subsequent denial of those individual rights had devastating effects for men, denying them what had become the only entry to law and governance. That outcome highlights the problems of relying on the conventional, theoretical legal subject—a (masculine) individual with an unrestricted array of civil and political rights—as the historical standard against which to measure historical change. In legal practice, most men were more like women, in the sense that they never enjoyed the full array of rights associated with that theoretical individual. Assessing change in those terms—that is, the acquisition or loss of individual rights—fails to capture the complexities of most Americans’ legal status and the radical changes they experienced in that regard. Moreover, the trajectory of change in the Reconstruction-era South suggests the limits inherent within legal changes that emphasized individual rights and that usually are associated with democracy and political progress. Although individual rights held great promise, they arrived with new legal institutions that undermined other forms of access to law that had existed within a localized system. In that localized system, a person’s subordination and lack of rights were not always a barrier either to making claims on the community or to participation in the basic processes of community governance.

The emphasis on southern legal culture and African Americans’ position within it thus reveals an important historical counternarrative, one in which individual rights were only one way to imagine and produce claims on the state. African Americans’ persistent use of the legal system reveals not just the fight to obtain individual rights, but also the presence of a broader legal culture in which citizenship and participation in governance were not defined exclusively in those terms. Local court records indicate that many white southerners approached the legal system and other institutions of state governance before and after the Civil War laden with the same expectations. White women marched off to local officials to demand redress for the various problems in their lives. During the Civil War, they sent off missives to state leaders and Confederate officials, with every expectation that the government would deal with their personal problems. White men did so as well, requesting favors, transfers, and leaves as if the war should accommodate their desires. Even though white men could rely on their individual rights for access and could assume that their interests were central in defining the social order, they were accustomed to operating in a legal system in which individual rights were not the only way to define justice. Of course, white southerners’ conceptions of that public order were very different from those of African Americans. But the way they viewed the process of achieving that order—however it might be defined—was strikingly similar. Turning our attention to people at these local levels provides a different understanding of legal and political history. In this history, ordinary men and women without civil and political rights would have more substantive roles. This history also would be based in a different narrative of political development, one defined through expansive historical contests over the content of the public order, instead of the acquisition of individual rights.

This article first appeared as a paper for the Fourth Avignon Conference on Slavery and Forced Labor, Avignon, France, October 2002. I would like to thank Michael Grossberg, Robert Schneider, and the reviewers for the AHR, whose thorough, thoughtful critiques challenged me to clarify the central arguments in this piece. I thank Priscilla Wald, Dylan Penningroth, Giovanna Benadusi, Joe Miller, Chris Tomlins, Adrienne Davis, Gunther Peck, Jolie Olcott, the audience at the Jean Gimbel Lane Humanities Lecture at Northwestern University (2006), and the participants at the Political History Workshop at the University of Chicago (2006) for their invaluable comments. The biggest debts are to John McAllister, whose insights were crucial in shaping the article, and to Jacquelyn Hall, who read innumerable drafts and whose thoughts on writing and history have been an inspiration. I also thank Kirsten Delegard, Kelly Kennington, and Alisa Harrison for research assistance. A National Endowment for the Humanities Postdoctoral Fellowship, a Mellon Postdoctoral Fellowship in the Humanities at the Newberry Library, and leaves from Duke University provided time to research and write.
Laura F. Edwards is Professor of History at Duke University. She is author of Gendered Strife and Confusion: The Political Culture of Reconstruction (1997) and Scarlett Doesn’t Live Here Anymore: Southern Women and the Civil War Era (2000). She is currently working on a new book project, The People and Their Peace: The Re-constitution of Governance in the Post-Revolutionary U.S. South.


1 African Americans’ use of law—at the local, state, and federal levels—is a common element in the literature on the Civil War and Reconstruction. The Cambridge University Press series “Freedom: A Documentary History of Emancipation, 1861–1867” emphasizes African Americans’ involvement with various government institutions and legal forums at the federal, state, and local levels; see, for instance, Ira Berlin, Joseph P. Reidy, and Leslie S. Rowland, eds., The Black Military Experience (New York, 1982); Ira Berlin, Barbara J. Fields, Thavolia Glymph, Joseph P. Reidy, and Leslie S. Rowland, eds., The Destruction of Slavery (New York, 1985); and see Ira Berlin, Stephen F. Miller, and Leslie S. Rowland, “Afro-American Families in the Transition from Slavery to Freedom,” Radical History Review 42 (1988): 89–121. Subsequent scholarship also has relied extensively on legal materials, produced at various levels of government; see, for instance, Nancy D. Bercaw, Gendered Freedoms: Race, Rights, and the Politics of Household in the Delta, 1861–1875 (Gainesville, Fla., 2003); Laura F. Edwards, Gendered Strife and Confusion: The Political Culture of Reconstruction (Urbana, Ill., 1997); Barbara J. Fields, Slavery and Freedom on the Middle Ground: Maryland during the Nineteenth Century (New Haven, Conn., 1985); Noralee Frankel, Freedom’s Women: Black Women and Families in Civil War Era Mississippi (Bloomington, Ind., 1999); Dylan Penningroth, The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South (Chapel Hill, N.C., 2003); Hannah Rosen, “‘Not That Sort of Women’: Race, Gender, and Sexual Violence during the Memphis Riot of 1866,” in Martha Hodes, ed., Sex, Love, Race: Crossing Boundaries in North American History (New York, 1999), 267–293; John C. Rodrigue, Reconstruction in the Cane Fields: From Slavery to Free Labor in Louisiana’s Sugar Parishes, 1862–1880 (Baton Rouge, La., 2001); Julie Saville, The Work of Reconstruction: From Slave to Wage Laborer in South Carolina, 1860–1870 (New York, 1994); Diane Miller Sommerville, Rape and Race in the Nineteenth-Century South (Chapel Hill, N.C., 2004), 147–175; Leslie A. Schwalm, A Hard Fight for We: Women’s Transition from Slavery to Freedom in South Carolina (Urbana, Ill., 1997), 147–268; Christopher Waldrep, “Substituting Law for the Lash: Emancipation and Legal Formalism in a Mississippi County Court,” Journal of American History 82 (March 1996): 1425–1451.
2 Recent work has rooted African Americans’ post-emancipation activism in the slave period, emphasizing both slaves’ distinct cultural values and their engagement in the broad cultural and political currents in the antebellum U.S. more generally. See, in particular, Steven Hahn, A Nation under Our Feet: Black Political Struggles in the Rural South from Slavery to the Great Migration (Cambridge, Mass., 2003). Also see Stephanie M. H. Camp, Enslaved Women and the Geography of Everyday Resistance in the Plantation South, 1830–1865 (Chapel Hill, N.C., 2004); Penningroth, The Claims of Kinfolk; William A. Link, Roots of Secession: Slavery and Politics in Antebellum Virginia (Chapel Hill, N.C., 2003); Joseph P. Reidy, From Slavery to Agrarian Capitalism in the Cotton Plantation South: Central Georgia, 1800–1880 (Chapel Hill, N.C., 1992); Heather Williams, Self-Taught: African American Education in Slavery and Freedom (Chapel Hill, N.C., 2005).
3 Feminist scholarship has focused on the gendered nature of citizenship within emerging, modern nation-states and the resulting difficulties in extending individual rights not only to women, but to others on the social margins as well. See, in particular, Carole Pateman, The Sexual Contract (Stanford, Calif., 1988). Feminist historians of the United States have taken up these insights, although they differ in their assessments of the possibilities for women of liberal conceptions of citizenship: Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge, Mass., 2000); Nancy Isenberg, Sex and Citizenship in Antebellum America (Chapel Hill, N.C., 1998); Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York, 1998); Alice Kessler-Harris, In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in 20th-Century America (New York, 2001). The gendered critique of rights is particularly pronounced in the context of the post-emancipation South; see Bercaw, Gendered Freedoms; Jane Dailey, Before Jim Crow: The Politics of Race in Post-emancipation Virginia (Chapel Hill, N.C., 2000); Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (New York, 1998).
4 This article explores state formation in the post-Revolutionary period, as a process by which the concept of nations—and states—needs to be created and then naturalized. See Benedict Anderson, Imagined Communities: Reflections on the Origins and Spread of Nationalism (London, 1983); Etienne Balibar, “The Nation Form: History and Ideology,” in Etienne Balibar and Immanuel Wallerstein, Race, Nation, Class: Ambiguous Identities (London, 1991), 86–106. The analysis also draws on the insights of James Vernon and other scholars of nineteenth-century British political history, who focus on reconstructing those processes that were later obscured, particularly the importance of local governance, informal political arenas, and decentralized conceptions of law, all of which were later delegitimized in a process of nation building that centralized governing authority. See, for instance, Vernon, Politics and the People: A Study in English Political Culture, c. 1815–1867 (Cambridge, 1993); Vernon, ed., Re-reading the Constitution: New Narratives in the Political History of England’s Long Nineteenth Century (Cambridge, 1996). As argued by Bonnie Smith, The Gender of History: Men, Women, and Historical Practice (Cambridge, Mass., 1998), the historical narratives linked to nation building were deeply gendered, in ways that marginalized not only women but also particular subjects and methods associated with them, such as the dismissal of local history as “particular” rather than “general,” the realm of “amateurs” rather than “professionals.” All these insights are finding their way into a new legal and political history of the United States. See, for instance, Meg Jacobs, William J. Novak, and Julian E. Zelizer, eds., The Democratic Experiment: New Directions in American Political History (Princeton, N.J., 2003); Jeffrey L. Pasley, Andrew W. Robertson, and David Waldstreicher, eds., Beyond the Founders: New Approaches to the Political History of the Early American Republic (Chapel Hill, N.C., 2004).
5 For analyses that emphasize an approach to political action that depends neither on formal political participation nor on the rights necessary to claim access to the formal political process, see Elsa Barkley Brown, “Negotiating and Transforming the Public Sphere: African American Political Life in the Transition from Slavery to Freedom,” Public Culture 7 (Fall 1994): 107–126; Robin D. G. Kelly, “‘We Are Not What We Seem’: Rethinking Black Working-Class Opposition in the Jim Crow South,” Journal of American History 80 (June 1993): 75–112; Glenda Elizabeth Gilmore, Gender and Jim Crow: Women and the Politics of White Supremacy in North Carolina, 1896–1920 (Chapel Hill, N.C., 1996). Much of the post-emancipation literature critiques liberal notions of citizenship, arguing that former slaves were unfamiliar with the concept and suggesting the presence of alternatives to that model: Berlin et al., The Destruction of Slavery; Fields, Slavery and Freedom on the Middle Ground; Eric Foner, Nothing but Freedom: Emancipation and Its Legacy (Baton Rouge, La., 1983); Thavolia Glymph, ed., Essays on the Postbellum Southern Economy (College Station, Tex., 1985); Thomas D. Holt, The Problem of Freedom: Race, Labor, and Politics in Jamaica and Britain (Baltimore, Md., 1992); Saville, The Work of Reconstruction.
6 This article is based on legal records and a range of other sources from North Carolina and South Carolina, at both the local and state levels, 1787 to 1840. Materials from the local level are from Orange, Granville, and Chowan counties in North Carolina and Kershaw, Anderson-Pendleton, and Spartanburg districts in South Carolina. The research includes extensive runs of court documents from those areas. Unlike sampling, which abstracts cases from context, this intensive approach reveals information that is essential in understanding the underlying conflicts and their resolutions. Such an approach also allows insight into the ways that people defined law, on the ground, in the years following the Revolution. That perspective is particularly important because so many areas of law were left to local discretion in this period. The research then extends outward to other counties to include divorce, apprenticeship, poorhouse, and church records. At the state level, the materials cover statutes, appellate decisions, and various published legal sources; state government documents such as governors’ correspondence, legislative committee reports, pardons, and petitions; newspapers; and the diaries and letter collections of various leaders in state law and politics. Although the article focuses on particular examples from these source groups, the analysis is representative of larger patterns within the research more generally.
7 Laura F. Edwards, “Enslaved Women and the Law: The Paradoxes of Subordination in the Post-Revolutionary Carolinas,” Slavery & Abolition 26 (August 2005): 305–323.
8 The trend embraced a unique blend of Revolutionary ideology, the Anglo-American legal tradition, and the politics of the 1760s Regulator Movement. For these points, see Lars C. Golumbic, “Who Shall Dictate the Law? Political Wrangling between ‘Whig’ Lawyers and Backcountry Farmers in Revolutionary Era North Carolina,” North Carolina Historical Review 72 (January 1996): 56–82; Rachel N. Klein, Unification of a Slave State: The Rise of the Planter Class in the South Carolina Backcountry, 1760–1808 (Chapel Hill, N.C., 1990); Walter F. Pratt, Jr., “The Struggle for Judicial Independence in Antebellum North Carolina: The Story of Two Judges,” Law and History Review 4 (1986): 129–159; James P. Whittenburg, “Planters, Merchants, and Lawyers: Social Change and the Origins of the North Carolina Regulation,” William and Mary Quarterly 34 (April 1977): 215–238.
9 In North Carolina, localism persisted into the 1830s; see William J. Adams, “Evolution of Law in North Carolina,” North Carolina Law Review 2 (1923–1924): 133–145; Atwell Campbell McIntosh, “The Jurisdiction of the North Carolina Supreme Court,” North Carolina Law Review 5 (1926–1927): 5–29; Walter Parker Stacy, “Brief Review of the Supreme Court of North Carolina,” North Carolina Law Review 4 (1925–1926): 115–117; George Stevenson, “Higher Court Records,” in Helen F. M. Leary, ed., North Carolina Research: Genealogy and Local History (Raleigh, N.C., 1996), 331–344. The situation is more complicated and uneven in South Carolina, where legislators made more radical changes in the system more often. Despite the trend toward greater centralization and systematization over time, localism also persisted there; see Lacy K. Ford, Jr., Origins of Southern Radicalism: The South Carolina Upcountry, 1800–1860 (New York, 1988); Klein, Unification of a Slave State, 109–237; Donald Senese, “Building the Pyramid: The Growth and Development of the State Courts System of Antebellum South Carolina, 1800–1860,” South Carolina Law Review 24 (1972): 357–389. The frequency and the dramatic nature of such changes are apparent in the revised statute collection, a project begun in the 1830s: Thomas Cooper and David J. McCord, eds., Statutes of South Carolina, 22 vols. (Columbia, S.C., 1836–1898), 7: 290–300. For similar trends in Virginia, see F. Thornton Miller, Juries and Judges versus the Law: Virginia’s Provincial Legal Perspective, 1783–1829 (Charlottesville, Va., 1994); Christopher M. Curtis, “Jefferson’s Chosen People: Legal and Political Conceptions of the Freehold in the Old Dominion from Revolution to Reform” (Ph.D. diss., Emory University, 2002).
10 Until recently, the historiographical presumption has been that southern states lagged behind in strong, centralized governing institutions. But recent scholarship has suggested that they were not as undeveloped as previously thought; see Peter Bardaglio, Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South (Chapel Hill, N.C., 1995); Paul D. Escott, Many Excellent People: Power and Privilege in North Carolina, 1850–1900 (Chapel Hill, N.C., 1985). New trends in legal and political history have emphasized the importance of localism throughout the United States, suggesting that the South was not so distinctive; see Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (New Haven, Conn., 2001); Jacobs, Novak, and Zelizer, The Democratic Experiment; William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill, N.C., 1998).
11 The following names are familiar to southern historians, because these men authored the publications and archival collections that they now use: James Iredell, Sr., John Haywood, Thomas Ruffin, William Gaston, and David Swain of North Carolina; William Loughton Smith, John Faucheraud Grimké, Thomas Cooper, Langdon Cheves, David J. McCord, Henry William DeSaussure, and John Belton O’Neall of South Carolina. Many of these men were educated in the Northeast, either at colleges such as Princeton or at law schools there. A few were educated in England, at the Inns of Court. But even those who trained in their own states had ties beyond the region, through their business, social, or political connections. What united them was an intellectual stance, bounded by basic assumptions about law and the legal system. They all tended to see law in scientific terms, as an internally consistent set of universally applicable principles, although they often disagreed bitterly on the specifics of those principles. They also favored a hierarchical institutional structure, with authority located in trained professionals at the top of the structure to ensure uniformity, although many still thought that the system should be flexible enough to allow room to achieve justice in particular circumstances at the lower levels. The power of the judiciary relative to the legislature divided reformers throughout the period, particularly at the height of partisan conflict between Federalists and Jeffersonian Republicans before the War of 1812 and during the nullification crisis in South Carolina. So did the question of states’ rights, specifically the authority of southern states relative to the nation. Despite these differences, however, reformers as a group tended to support the creation of a clearly defined, definite body of state law, enforced by some institution—usually a strong appellate court—at the apex of the judicial pyramid. That body would decide points of law in decisions that would be enforced by lower levels of the system, which fell out in orderly layers beneath, descending from district or superior courts to individual magistrates in local neighborhoods, with each level subordinate to the one above. Reformers had such confidence in this vision of the legal system that they described it in normative terms: since there was no other option, the system evolved naturally—if somewhat haltingly and fitfully—in this direction.
12 See n. 9 above.
13 For the overlap between law and politics in this period, see Novak, The People’s Welfare.
14 Many districts and counties had neither courthouses nor other public buildings, such as jails, in the first decades of their existence. Courts met in whatever available buildings were large enough. If there were courthouses, they were modest structures initially, replaced later by more imposing buildings in the wave of courthouse construction that took place in the last decades of the antebellum period. John Faucheraud Grimké noted the lack of courthouses in South Carolina, as new districts were being formed: J. F. Grimké, “Rough Draft of Address on the European Situation and Fear of Slave Revolt Due to French Intervention,” 11/172/33, Grimké Family Papers, 1761–1866 (1040.00), South Carolina Historical Society [hereafter SCHS]. Also see William Drayton, “Remarks in a Tour through the Back Country of the State of South Carolina,” 1784–1789 (34/630), SCHS, 41–52, which include notes on his trip through the northern circuit courts as a judge in 1789. Even when there were courthouses, they were not always in the best condition, and grand juries routinely issued demands to the state legislature for funds to remedy the situation: Kershaw County, Grand Jury, April 1805, South Caroliniana Library [hereafter SCL]; Charleston, Grand Jury Presentment, in South Carolina State Gazette, and Timothy and Mason’s Daily Advertiser, February 5, 1794; List of Statutes, South Carolina State Gazette, and Timothy and Mason’s Daily Advertiser, June 12, 1794. Given the complaints, it is difficult to imagine that such structures were the imposing symbols of state authority that they later came to be. Although colonial-era North Carolina counties, particularly in the eastern part of the state, were likely to have a structure that expressed government authority in its architecture, piedmont and western counties did not erect such public buildings until later in the antebellum period—around the 1830s and 1840s. See Robert Paschal Burns, 100 Courthouses: A Report on North Carolina Judicial Facilities, 2 vols. (Raleigh, N.C., 1978), 1: 243–244, 435. Vernon, Politics and the People, makes a similar point about nineteenth-century England, noting that town halls and other such formal government buildings were linked to changes that formalized the political process.
15 The statute collections and codes of both states summarize the duties of the local courts and local officers. For South Carolina, see Cooper and McCord, The Statutes at Large of South Carolina, vol. 7, which lists significant legislative changes in the structure of the courts from the colonial period to 1840; for relevant changes to law courts between 1785 and 1840, see 211–241, 243–245, 245–246, 247–249, 253–257, 260–270, 283–289, 290–293, 293–300, 300–303, 325–328, 334–337, 339–341. For North Carolina, see the appropriate headings in Laws of the State of North-Carolina, 2 vols. (Raleigh, 1821), and The Revised Statutes of the State of North Carolina, 2 vols. (Raleigh, 1837). The actual dynamics emerge from the local court records. The descriptions of local courts in the following paragraphs are drawn from records in Criminal Action Papers, Granville County, 1790–1840; Criminal Actions Concerning Slaves and Free Persons of Color, Granville County, 1800–1839; Superior Court Minutes, Granville County, 1790–1840; Criminal Action Papers, Orange County, 1787–1808; Superior Court Minutes, Orange County, 1787–1840; all in North Carolina Department of Archives and History [hereafter NCDAH]. County and Intermediate Court, Sessions Docket, Kershaw District; County and Intermediate Court, Common Pleas Docket, Kershaw District; County and Intermediate Court, Indictments, Kershaw District; Magistrates and Freeholders Court, Trial Papers, Kershaw District; Court of General Sessions, Indictments, Kershaw District; Court of General Sessions, Journal, Kershaw District; Court of General Sessions, Coroner’s Inquisitions, Kershaw District; all in South Carolina Department of Archives and History [hereafter SCDAH]. Court of Magistrate and Freeholders, Trial Papers, Anderson/Pendleton District; Court of General Sessions, Indictments, Anderson County, 1828–1913; Court of General Sessions, Peace Bonds, Anderson County, 1828–1905; Court of General Sessions, Coroner’s Inquisitions, Pendleton District; Court of General Sessions, Coroner’s Inquisitions, Anderson District; Magistrates and Freeholders Court, Vagrancy Trials, Anderson District, 1829–1860; County and Intermediate Court, Indictments, Pendleton District, 1790–1799; Court of Common Pleas, Pleadings and Judgments, Pendleton District, 1799–1805; Court of General Sessions, Coroner’s Inquisitions, Pendleton District; Court of General Sessions, Indictments, Pendleton District, 1800–1828; Journals of the County and Intermediate Court, Pendleton District, 1790–1793; County and Intermediate Court, Peace Bonds, Pendleton District, 1792–1797; Court of General Sessions, Peace Bonds, Pendleton District, 1807–1827; Magistrates and Freeholders Court, Vagrancy Trials, Pendleton County; all in SCDAH.
16 Raleigh Register, October 25, 1822.
17 These patterns are drawn primarily from Court of General Sessions, Coroner’s Inquisitions, Kershaw District; Court of General Sessions, Coroner’s Inquisitions, Pendleton District; Court of General Sessions, Coroner’s Inquisitions, Anderson District; all in SCDAH. In North Carolina, coroners’ reports are not filed separately, but are sometimes attached to murder cases.
18 These patterns are drawn from the records listed in n. 15. The compulsory and brutal qualities of law are obvious in cases with slave defendants. Those inequalities are well documented in the scholarship as well; see, for instance, Edward L. Ayers, Vengeance and Justice: Crime and Punishment in the Nineteenth-Century American South (New York, 1984); Michael Hindus, Prison and Plantation: Crime, Justice and Authority in Massachusetts and South Carolina, 1767–1878 (Chapel Hill, N.C., 1980); Thomas D. Morris, Southern Slavery and the Law, 1619–1860 (Chapel Hill, N.C., 1996); Christopher Waldrep, Roots of Disorder: Race and Criminal Justice in the American South, 1817–80 (Urbana, Ill., 1998). For a haunting description of these dynamics, although in the realm between culture and law, see Walter Johnson, Soul by Soul: Life inside the Antebellum Slave Market (Cambridge, Mass., 1999). The literature also underscores the legal disadvantages of poor whites; see Victoria Bynum, Unruly Women: The Politics of Social and Sexual Control in the Old South (Chapel Hill, N.C., 1992); Charles C. Bolton, Poor Whites of the Antebellum South: Tenants and Laborers in Central North Carolina and Northeast Mississippi (Durham, N.C., 1994).
19 Civil suits involving property constituted the bulk of court business in most southern jurisdictions. Ayers estimated that there were about three or four civil cases for every criminal case in a typical southern court; Vengeance and Justice, 32. Also see Ariela Gross, Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (Princeton, N.J., 2000), 23. The preponderance of civil cases, however, actually reflected the relative inaccessibility of property law. Property law had been professionalized before the Revolution, which was one of the North Carolina Regulators’ chief complaints; see Whittenburg, “Planters, Merchants, and Lawyers.” Lawyers then solidified their hold on economic matters in the decades following the Revolution, given the unsettled state of the economy, the scarcity of cash and credit, and the uncertainty of land titles in the Carolinas. The situation continued into the nineteenth century, largely because of the widespread use of notes, mortgages, and other instruments of debt as the primary means of economic exchange and capital formation. As a result, property law became even more elaborated and professionalized. The place of lawyers in a wide range of economic exchanges is also apparent in their practices, which are composed largely of property matters; see, for instance, Letter Book, William Gaston Papers, #272, box 7; Cameron Family Papers, #133, subseries 1.2, boxes 4–28 (business-related correspondence); both in the Southern Historical Collection [hereafter SHC].
20 Robert W. Gordon, “Critical Legal Histories,” Stanford Law Review 36 (January 1984): 57–125. For the customary nature of criminal law as well as its professionalization in the early nineteenth century, also see Lawrence M. Friedman, A History of American Law, 2nd ed. (New York, 1985), 280–294; Michael Meranze, Laboratories of Virtue: Punishment, Revolution, and Authority in Philadelphia, 1760–1835 (Chapel Hill, N.C., 1996); Allen Steinberg, The Transformation of Criminal Justice: Philadelphia, 1800–1880 (Chapel Hill, N.C., 1989).
21 This analysis is based on the local court records listed in n. 15. Southerners’ embrace of the legal system as a mechanism of social control also echoes Christopher L. Tomlins’s emphasis on a broad construction of police power and his characterization of law as a “primary modality of rule” in the early republic; see Tomlins, Law, Labor, and Ideology in the Early American Republic (New York, 1993).
22 Bertram Wyatt-Brown, Southern Honor: Ethics and Behavior in the Old South (New York, 1982), esp. 401. Traditionally, southern historians have tended to link honor to premodern culture and approaches to justice, and thus to posit a conflict between honor and a modern, institutionalized legal system. The same presumptions that emphasize white men’s preoccupation with honor also imply African Americans’ exclusion from honor and southern law (except as criminal defendants): Ayers, Vengeance and Justice; Kenneth Greenberg, Honor and Slavery: Lies, Duels, Noses, Masks, Dressing as a Woman, Gifts, Strangers, Humanitarianism, Death, Slave Rebellions, the Proslavery Argument, Baseball, Hunting, and Gambling in the Old South (Princeton, N.J., 1996); Hindus, Prison and Plantation; Peter Kolchin, American Slavery, 1619–1877 (New York, 1993). Scholarship that focuses on the blatant inequalities in slave law does not always deal with African Americans’ view of law, but given the nature of the sources, the analyses understandably tend to assume that such inequalities resulted in African Americans’ alienation from the system. In addition to the above, see Bardaglio, Reconstructing the Household; Bynum, Unruly Women; Melton McLaurin, Celia: A Slave (Athens, Ga., 1991); Morris, Southern Slavery and the Law; Mark Tushnet, The American Law of Slavery, 1810–1860: Considerations of Humanity and Interest (Princeton, N.J., 1981); Waldrep, Roots of Disorder.
23 For the compatibility of honor and law in the South, see Gross, Double Character. Also see Sharon Block, Rape and Sexual Power in Early America (Chapel Hill, N.C., 2006); Joshua D. Rothman, Notorious in the Neighborhood: Sex and Families across the Color Line in Virginia, 1787–1867 (Chapel Hill, N.C., 2003); Sommerville, Rape and Race. For work that links honor to institutions and practices associated with the modern nation-state, including a legal system that dispenses impersonal forms of justice, see William M. Reddy, The Invisible Code: Honor and Sentiment in Postrevolutionary France, 1814–1848 (Berkeley, Calif., 1997); Freeman, Affairs of Honor.
24 These generalizations are based on the local court records explained in n. 15.
25 These ideas, common in the Christian tradition, were accepted parts of legal culture that were so obvious that they needed no explanation. This analysis also is based on the minutes of about forty-five Evangelical Protestant churches in North Carolina and South Carolina, from the collections at the SCL, SHC, and NCDAH. They include Baptist, Primitive Baptist, Methodist, and Presbyterian churches, although the majority are Baptist and Primitive Baptist. Also see John B. Boles, The Great Revival, 1787–1805: The Origins of the Southern Evangelical Mind (Lexington, Ky., 1972); Donald G. Matthews, Religion in the Old South (Chicago, 1977); Jean E. Friedman, The Enclosed Garden: Women and Community in the Evangelical South, 1830–1900 (Chapel Hill, N.C., 1985); Klein, Unification of a Slave State, 269–302; Ford, Origins of Southern Radicalism, 19–43.
26 For South Carolina, see County and Intermediate Court, Peace Bonds, Pendleton District, 1792–1797; Court of General Sessions, Peace Bonds, Anderson County, 1828–1905; both in SCDAH. In North Carolina, peace bonds are mixed in with the other court documents: Criminal Action Papers, Orange County; Criminal Action Papers, Granville County; Criminal Actions Concerning Slaves and Free Persons of Color, Granville County; all in NCDAH.
27 North Carolina’s John Clary, for instance, was treated to a pointed visit from the extended family of the young woman whom he impregnated, an action that many historians would designate as “extralegal.” Although Clary prosecuted the mob and they were convicted for riot, the entire group was later pardoned by the governor. The pardon owed in part to the nature of Clary’s offense. It also reflected the ambiguity between extralegal violence and legally sanctioned policing—and, in a larger sense, the legal system’s deep customary roots within local communities. David Stone, Pardon of Nixon, White, Copeland, Copeland, Townsend, and Jordan, October 31, 1809, Governor’s Letter Book, vol. 17, 115, NCDAH. The point is similar to, but not the same as, the one made by Wyatt-Brown, Southern Honor, 366, that extralegal sanctions replaced legal punishments within the southern criminal justice system without undermining the integrity of law. In contrast to Wyatt-Brown, I am arguing that the distinction between “legal” and “extralegal” was less meaningful, because of the institutional structures of law.
28 The process of private detection was similar to that described by Cynthia Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (New York, 1987), 67–92. Also see Steinberg, The Transformation of Criminal Justice, who describes the process of private prosecution and community-based policing in Philadelphia in the early republic. These generalizations about the process are based on the local court records explained in n. 15.
29 Inquest of Israel, slave of James Gordon, 1845, Court of General Session, Coroner’s Inquisitions, Anderson County, SCDAH.
30 Magistrates and grand juries both identified community problems that required legal action, based on “information” that had been given to them. An “information” was one of the ways to establish a criminal charge in British law. In its strict sense, “information” was the charge brought by one individual against another. That information was then investigated by the magistrate, who determined whether the case would go forward. In practice, in the post-Revolutionary Carolinas, “information” acquired a broader definition, encompassing all the evidence given at the investigatory hearing. See Arthur P. Scott, Criminal Law in Colonial Virginia (Chicago, 1930), 72–75. For a brilliant analysis of the way that slaves’ words entered court in civil cases despite restrictions on their testimony, see Gross, Double Character.
31 These observations are based on local court records explained in n. 15. For similar dynamics, see Block, Rape and Race; Rothman, Notorious in the Neighborhood. The process also was similar to the kind of social witnessing that slaves used to claim property that Penningroth describes in The Claims of Kinfolk, 91–109.
32 The term “report” figured prominently in church hearings, suggesting the influence of legal culture on religious practice: members reported on themselves and others; church members investigated those reports to find out whether they were true or false; they also charged people with false reports or false swearing. For particularly illustrative examples, see New Hope Baptist Church, Purleer, Church Minutes, 1830–1930, Wilkes County, North Carolina, Cane Creek Baptist Church, Minutes and Membership Roll, 1829–1941, Orange County, North Carolina; Brassfield Baptist Church, History and Minutes, 1823–1948, Creedmore, Granville County, North Carolina; Wheeley’s Primitive Baptist Church, Roxboro, Session Minutes and Roll Book, 1790–1898, Person County, North Carolina; all in NCDAH. First Baptist Church, Barnwell County, Minutes; Cashaway Baptist Church, Record Book, Darlington [Craven] County; Methodist Church, Darlington County and Florence County, Darlington Circuit; Big Creek Baptist Church, Williamston, Anderson County, Records; Methodist Church, Florence County, Lynch’s Creek Circuit; Thomas Memorial Baptist Church, Marlboro County, Bennettsville, Church Book; all in SCL.
33 The scholarship on the nineteenth-century South, in particular, has emphasized the importance of local custom in the legal process. See, in particular, Ariela Gross, “Beyond Black and White: Cultural Approaches to Race and Slavery,” Columbia Law Review 101 (2001): 640–689, 640. Also see Block, Rape and Sexual Power; Gross, Double Character; Johnson, Soul by Soul; Penningroth, The Claims of Kinfolk; Rothman, Notorious in the Neighborhood; Sommerville, Rape and Race. As other legal historians have emphasized, custom continued to play a central role in local venues; see Michael Willrich, City of Courts: Socializing Justice in Progressive Era Chicago (New York, 2003). The implications for law’s content, however, were different in the late nineteenth and twentieth centuries, because local courts occupied a different place within the institutional structures of law.
34 State v. Elley, 1807, #6, Magistrates and Freeholders Court, Trial Papers, Kershaw District, SCDAH. For other, similar cases in which whites prosecuted slaves for spreading rumors, see State v. Peter and Demce, 1815–1816; State v. Nowell, 1810–1812; both in Criminal Actions Concerning Slaves and Free Persons of Color, Granville County, NCDAH. State v. Patt, 1825, case #14, reel 2916; State v. Fed, 1828, case #37, reel 2916; State v. Cain, 1835, case #75, reel 2916; State v. Toney, 1838, case #97, reel 2916; State v. Spencer, 1839, #106, reel 2916; State v. Fanny and Richmond, 1839, case #109, reel 2916; State v. Margret, 1840, case #115, reel 2916; all in Trial Papers, Court of Magistrates and Freeholders, Anderson/Pendleton District, SCDAH. State v. Titus, 1833, case #8, reel 2920; State v. Chang, 1835, case #13, reel 2920; State v. Jacob, 1835, case #15, reel 2920; State v. Tom, 1841, case #35, reel 2920. Also revealing are William Valentine’s fears, after a fight with his landlady, about how she will publicize the incident and what that will do to his reputation; see William D. Valentine Diaries, #2148, SHC, June 4, 1842.
35 A South Carolina slave named Sylva, for instance, managed to mobilize local gossip networks to implicate her overseer in her own death. See Inquest on Negro Sylva, the Property of John Brown, 1822, Court of General Sessions, Coroner’s Inquisitions, Kershaw District, SCDAH. Likewise, Annis and Juno, two North Carolina slaves, appear to have had a hand in defining violence against them as rape. At least, it is difficult to imagine how the women’s owners or white court officials arrived at that particular charge without some input from the two women. For Annis and Juno, see State v. George, 1826; State v. Tom, 1824; both in Criminal Action Papers, Chowan County, NCDAH. Many scholars have noted the acceptance of rape and the idea of the sexual accessibility of black women among whites. Also see Edwards, “Enslaved Women and the Law.”
36 Diaries of David Schenck and William D. Valentine, both of North Carolina, contain descriptions of trials and courtrooms; see David Schenck Papers, #652, SHC, Diaries, series 1, folder 2, vol. 1, particularly 7–8, 33, 80–82, 137–140, 151. William D. Valentine Diaries, #2148, SHC, April 14, 1837, August 16, 1837, September 21, 1837, March 23, 1838, May 16, 1838, September 21, 1838. The patterns echo those in colonial Virginia described so well by A. G. Roeber, “Authority, Law, and Custom: The Rituals of Court Day in Tidewater Virginia, 1720–1750,” William and Mary Quarterly 37 (January 1980): 29–52, although early national and antebellum courts seem to have been less decorous. Also see Gross, Double Character, 22–46; Rhys Isaac, The Transformation of Virginia, 1740–1790 (Chapel Hill, N.C., 1982).
37 For court day as an occasion to exchange gossip and for gossip about court cases and court officials, see John Hill Wheeler to David S. Reid, in Lindley S. Butler, ed., The Papers of David Settle Reid, 2 vols. (Raleigh, N.C., 1993), 1: 207–210, 222–224, 229–230. William Henry Hoyt, ed., The Papers of Archibald D. Murphey, 2 vols. (Raleigh, N.C., 1914), 1: 93–95, 168–170. David Schenck Papers, #652, Diaries, series 1, folder 2, vol. 1, 151. Raleigh Register, July 14, 1808, contains a suggestive article regarding the governor’s attempts to gauge public opinion through circuit judges and their contact with people and gossip at court. Newspapers also reported on notorious cases in a way that suggested the larger swirl of gossip that surrounded them. Even out-of-state cases, republished in local papers, indicate the way trials functioned as local entertainment. See, for instance, Raleigh Register, July 12, 1810, October 11, 1810, February 22, 1822, April 9, 1824, April 12, 1825, November 12, 1829, April 8, 1830, May 20, 1830, October 7, 1830. Also see State Gazette of South Carolina, March 17, 1791, April 21, 1791, October 3, 1791, November 29, 1792; South Carolina State Gazette, and Timothy and Mason’s Daily Advertiser, March 29, 1794; Charleston Courier, December 20, 1822; South Carolina State Gazette and Columbia Advertiser, May 5, 1827, September 27, 1828. William Valentine’s evaluations of judges’ and lawyers’ abilities also suggest the entertainment value of court dynamics; see, for instance, William D. Valentine Diaries, #2148, SHC, August 16, 1837, September 21, 1837, August 18, 1837, May 16, 1838, September 21, 1838, October 29, 1841, September 27, 1845, March 18, 1846, October 12, 1846, March 26, 1847, June 1, 1848, June 6, 1848, December 20, 1848.
38 This analysis is based on about 650 letters and petitions related to pardon requests to North Carolina governors from 1787 through 1845. This correspondence is in two different record groups, Governors’ Papers and Governors’ Letter Books, vols. 6–36, NCDAH.
39 The concept of credit was crucial to deliberations about who would receive pardons and who would not. External indices of social status—such as gender, race, age, and property—all figured prominently in establishing credit, just as they had for centuries in the legal culture of both England and continental Europe. But they provided only the starting point. What determined any given individual’s credit was specific knowledge about that person, disseminated through the exchange of gossip among those who knew him or her. The personal and impersonal aspects of credit worked together, creating a unique balance in each instance. That was why local courts routinely included testimony about the reputations of witnesses, as well as defendants and victims, if their information was crucial to the case. Such character witnesses were believed necessary to establish the reliability of key accounts, a practice that suggests the personal connotations of credit: who someone was, at a very personal level, was essential in evaluating what that person said in court—and determining the implications and consequences of what he or she was judged to have done. See, in particular, Craig Muldrew, The Economy of Obligation: The Culture of Credit and Social Relations in Early Modern England (London, 1998). Credit, then, carried over into the legal evaluation of other kinds of information; see Laura Gowing, Domestic Dangers: Women, Words, and Sex in Early Modern London (Oxford, 1996), 50–52, 232–262; Cynthia B. Herrup, A House in Gross Disorder: Sex, Law, and the 2nd Earl of Castlehaven (New York, 1999). Also see Barbara Shapiro, “Beyond Reasonable Doubt” and “Probable Cause”: Historical Perspectives on the Anglo-American Law of Evidence (Berkeley, Calif., 1991), 6–12, 114–185.
40 This summary draws on the scholarship that uses gender to illuminate the status of women and their relation to government in the early modern period and the age of revolution. See, for instance, Susan Dwyer Amussen, An Ordered Society: Gender and Class in Early Modern England (Oxford, 1988); Kathleen M. Brown, Good Wives, “Nasty Wenches,” and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia (Chapel Hill, N.C., 1996); Nancy Fraser and Linda Gordon, “A Genealogy of Dependency: Tracing a Keyword of the U.S. Welfare State,” Signs 19 (Winter 1994): 309–336; Carol Karlsen, The Devil in the Shape of a Woman: Witchcraft in Colonial New England (New York, 1987); Linda K. Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America (Chapel Hill, N.C., 1980); Joan B. Landes, Women and Public Sphere in the Age of the French Revolution (Ithaca, N.Y., 1988). Also see Edwards, “Enslaved Women and the Law.”
41 John Haywood, The Duty and Office of Justices of the Peace, Sheriffs, Coroners, Constables, &c.; According to the Laws of the State of North Carolina (Raleigh, N.C., 1808), quote from 191. Haywood’s was the standard guide in North Carolina. In South Carolina, one of the most popular guides was John Faucheraud Grimké, The South Carolina Justice of the Peace (Philadelphia, Pa., 1788). The manuals were usually based on either Michael Dalton, The Countrey Justice, or Richard Burn, The Justice of the Peace, and Parish Officer. They also duplicated earlier colonial guides; see William Simpson, The Practical Justice of the Peace and Parish-Officer, of His Majesty’s Province of South-Carolina (Charleston, S.C., 1761). The guidelines in Blackstone were much less detailed; see Sir William Blackstone, Commentaries on the Laws of England, 4 vols. (repr., Chicago, 1979), vol. 3 on private wrongs and vol. 4 on public wrongs. Also see Scott, Criminal Law in Colonial Virginia, which describes procedural elements that continued to guide the process between the Revolution and the Civil War in the Carolinas.
42 The logic was laid out clearly in contemporary justices’ manuals, which drew on rules from the earlier British guides. See n. 41 above. Also see Laura F. Edwards, “Law, Domestic Violence, and the Limits of Patriarchal Authority in the Antebellum South,” Journal of Southern History 65 (November 1999): 733–770.
43 State v. George, 1826; State v. Tom, 1824; both in Chowan County Criminal Action Papers, NCDAH. These rape cases are just one example of prosecutions at the local level, which seem legally marginal, if not altogether impossible, given the status of the victim and the accused. In the mid-1820s, when charges were filed, North Carolina statutes and case law remained silent as to the criminal status of the rape of an enslaved woman by an enslaved man, although existing elements of slave law militated against such prosecutions. Prosecuting the cases as offenses against the peace bypassed those issues. Morris, Southern Slavery and the Law, 305–307, notes the loopholes in rape laws that allowed for such prosecutions and discusses several cases, including an 1859 Mississippi case in which the Mississippi State Supreme Court overturned a local judge’s ruling, which allowed for the trial and conviction of an enslaved man for the rape of an enslaved child under ten years old, on the basis that statute and common law did not apply to slaves; and six Virginia cases, between 1790 and 1833, in which enslaved men were tried for raping free black women. Morris characterizes all the Virginia cases as exceptions and the Mississippi State Supreme Court decision as the rule. Given the changes in the court structure, however, another interpretation would be that local jurisdictions retained the ability to define and prosecute such incidents as rapes until the appellate courts (1) acquired the power to say they could not, and (2) heard cases relating to the matter and, like the Mississippi State Supreme Court, rendered decisions that specifically disallowed prosecution. Within a year from the Mississippi court’s decision, the legislature passed a statute that established the rape of any African American female under twelve by an African American man as a crime. Given their assumptions about the structure and logic of the legal system, Morris and other historians concluded that this statute extended new rights. For a discussion of the Mississippi statute, also see Bardaglio, Reconstructing the Household, 67–68. An alternate explanation is that the statute codified local practice and framed it in the language of rights. Sommerville, Rape and Race, 64–68, notes rape cases involving African American females, although she emphasizes the age of the victims and attributes prosecution to social proscriptions that categorized the rape of children as a different, particularly heinous offense.
44 This analysis is based not only on local court records, cited in n. 15, but also on the relationship between those cases and state appellate decisions. The legal implications of local cases were confined to the cases at hand, a situation that reform-minded state lawmakers tried to remedy throughout the period between the Revolution and the Civil War in a number of ways: by abolishing courts of conference, which reviewed problematic cases, offered suggestions, and then returned them to the district courts; by replacing it with an appellate court; by strengthening the appellate court’s power to set precedent; and by elevating both appellate decisions and statutes as a single consistent, authoritative body of law that applied throughout the state.
45 Individual requests for laws took up most of the state legislatures’ business. Petitioners identified problems that they considered of public import and requested action in the form of new laws. If successful, those requests usually resulted in statutes labeled as “private” acts, which far outnumbered public ones. Private acts ranged as widely as complaints brought to magistrates, and included the incorporation of voluntary organizations, the chartering of businesses, grants of manumission, divorce, legitimization of children, and suspensions of existing laws in particular instances. But the categorization of “private acts” and “public acts” was imposed after the fact, by the lawmakers, the terms of an existing process, or those publishing and organizing the statutes. The terminology was not that of the petitioners. As such, it can be misleading, because it implies a clear dichotomy that did not always exist in practice. In theory, the terms attempted to define the implications of legislation, along the same lines that distinguished private issues from public ones in other areas of law: “private” referred to the scope of enforcement, which applied only to those named, rather than to everyone in the state, as did “public” acts. But the line between private acts and public acts was not always well maintained. Public acts were initiated in the same way as private ones, through local initiative, usually petitions and grand jury presentments. The difference was that the sources of public law usually came through a request authored by a group—rather than an individual—which claimed to represent the interests of a particular area or constituency. Yet many public acts, like private ones, addressed specific, highly localized problems. The Raleigh Register, which provided day-by-day updates on the Assembly’s business, started separating out “private acts” from “public acts” only around 1809. Until then, it mixed them together, even when it listed the new laws published at the end of each legislative session. It is easy to see why the Register did not bother to make the distinction, considering the nature of so many “public acts.” Whether labeled public or private, statutes resulted from a process similar to that in the localized legal system. Individuals or small groups requested outside legal intervention in personal or highly localized matters, by linking them to the maintenance of the peace.
46 Quote from Curtis Winget, Petition for Divorce, 1830, General Assembly Records, SCDAH. Other petitions for divorce or arrangements that approximated divorce came in infrequently but optimistically: Rachel Teakle, Petition for Divorce, 1802; Henry Gable and Nancy Gable, Petition for Divorce, 1810; Richard Hembree Hughes, Petition for Divorce, 1818; Mary Wilson, Petition for Divorce, 1821; Elizabeth Hamilton, Petition for Annulment and Exoneration from Her Husband’s Debts, 1813; William Chick, Petition for Divorce, 1821; Thomas Miller, Petition for Divorce, 1841; Wilson Bartlett, Petition for Divorce, 1844; Marmaduke James, Petition for Divorce, 1847; all in General Assembly Records, SCDAH. Those same expectations explain why the North Carolina legislature still fielded divorce petitions long after the state moved jurisdiction over such matters to the superior courts.
47 Nineteenth-century historians once assumed that “public” and “private” were separate realms, configured in a hierarchical arrangement, much like that posited by liberal political theorists, notably John Locke: the “private” realm of the household was distinct from and subordinate to the “public” world of politics and commerce. The influence was apparent within southern history, where the traditional focus on political history and the men who figured in law and party politics focused on the “public” side of the equation. Later work on social history moved in the other direction, back toward the “private” sphere, although broadly conceived to include matters such as economic production, labor, and the slave system as well as the daily lives of all those enmeshed in that system, particularly slaves and their white mistresses. Where earlier scholarship on the South accepted that distinction as a given, later work in the field has used the analytical lens of gender to explain its presence, the resulting dynamics, and their wider implications. These historians construe private and public as products of politics and culture rather than expressions of nature, distinct spheres, or actual physical space. As a result, they have focused on the ideological assumptions that underlay the concepts, how they changed, and how they were used. In the context of the slave South, historians have linked the dynamics of private and public to the concept of dependency, which incorporates race and class as well as gender. Yet the scholarship still tends to assume that the legal system in the slave South treated all problems of domestic dependents as “private” and thereby either excluded them or did its best to ignore or limit them when they did appear, a situation that did not change until after Reconstruction. See, in particular, Bardaglio, Reconstructing the Household. Also see Bercaw, Gendered Freedoms; Brown, Good Wives, “Nasty Wenches,” and Anxious Patriarchs; Bynum, Unruly Women; Dailey, Before Jim Crow; Edwards, Gendered Strife and Confusion; Elizabeth Fox-Genovese, Within the Plantation Household: Women in the Old South (Chapel Hill, N.C., 1988); Frankel, Freedom’s Women; Gilmore, Gender and Jim Crow; Stephanie McCurry, Masters of Small Worlds: Yeoman Households, Gender Relations, and the Political Culture of the Antebellum South Carolina Low Country (New York, 1995); Schwalm, A Hard Fight for We; Stanley, From Bondage to Contract; Lee Ann Whites, The Civil War as a Crisis in Gender: Augusta, Georgia, 1860–1890 (Athens, Ga., 1992).
48 Gross, “Beyond Black and White.” Also see Block, Rape and Sexual Power; Stephanie Cole, “Keeping the Peace: Domestic Assault and Private Prosecution in Antebellum Baltimore,” in Christine Daniels and Michael V. Kennedy, eds., Over the Threshold: Intimate Violence in Early America (New York, 1999), 148–169; Gross, Double Character; Johnson, Soul by Soul; Penningroth, The Claims of Kinfolk; Rothman, Notorious in the Neighborhood; Sommerville, Rape and Race.
49 Berlin et al., The Black Military Experience; Berlin et al., The Destruction of Slavery; Ira Berlin, Thavolia Glymph, Steven F. Miller, Joseph P. Reidy, Leslie S. Rowland, and Julie Saville, eds., The Wartime Genesis of Free Labor: The Lower South (New York, 1991). Also see Bercaw, Gendered Freedoms; Edwards, Gendered Strife and Confusion; Fields, Slavery and Freedom on the Middle Ground; Foner, Nothing but Freedom; Hahn, A Nation under Our Feet; Thomas C. Holt, Black over White: Negro Political Leadership in South Carolina during Reconstruction (Urbana, Ill, 1977); Rodrigue, Reconstruction in the Cane Fields; Saville, The Work of Reconstruction; Schwalm, A Hard Fight for We.
50 Berlin et al., “Afro-American Families in the Transition from Slavery to Freedom”; Bercaw, Gendered Freedoms; Victoria Bynum, “Reshaping the Bonds of Womanhood: Divorce in Reconstruction North Carolina,” in Catherine Clinton and Nina Silber, eds., Divided Houses: Gender and the Civil War (New York, 1992), 320–333; Edwards, Gendered Strife and Confusion; Frankel, Freedom’s Women; Susan Eva O’Donovan, “Transforming Work: Slavery, Free Labor, and the Household in Southwest Georgia, 1850–1880” (Ph.D. diss., University of California, San Diego, 1997); Elizabeth Regosin, Freedom’s Promise: Ex-Slave Families and Citizenship in the Age of Emancipation (Charlottesville, Va., 2002); Rosen, “‘Not That Sort of Women'”; Sommerville, Rape and Race, 147–175; Schwalm, A Hard Fight for We, 147–268; Karin L. Zipf, Labor of Innocents: Forced Apprenticeship in North Carolina, 1715–1919 (Baton Rouge, La., 2005). For white women, see Drew Faust, Mothers of Invention: Women of the Slaveholding South in the American Civil War (Chapel Hill, N.C., 1996); George C. Rable, Civil Wars: Women and the Crisis of Southern Nationalism (Urbana, Ill., 1989); Edwards, “Law, Domestic Violence, and the Limits of Patriarchal Authority.”
51 Accounts focusing on the development of the state’s courts usually note this point. See, for instance, Adams, “Evolution of Law in North Carolina”; McIntosh, “The Jurisdiction of the North Carolina Supreme Court”; Orth, “North Carolina Constitutional History”; Senese, “Building the Judicial Pyramid.”