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American History, American South, Appellate Courts, Ariela Gross, History, jurisprudence, Laura F. Edwards, law, Laws of Slavery, Local Law, Localism, Mark Tushnet, North Carolina, Paul Finkelman, Slavery, South Carolina, State Law, The People and Their Peace, Thomas D. Morris, University of North Carolina Press

BOOK REVIEW: Laura F. Edwards. The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill, North Carolina: University of North Carolina Press, 2009).

In Advocacy, American History, Arts & Letters, Book Reviews, Civil Procedure, History, Humanities, Jurisprudence, Law, Laws of Slavery, Nineteenth-Century America, Politics, Rhetoric, Slavery, Southern History, The South on September 28, 2011 at 10:41 am

Since Mark Tushnet revived the study of slave laws in the American South, several historians, most notably Paul Finkelman, Thomas D. Morris, and Ariela Gross, have followed in his footsteps. Laura F. Edwards’s The People and Their Peace is a book that extends this trend in scholarship. Focusing on North and South Carolina from roughly 1787 to 1840, and more specifically on three North Carolina counties and four South Carolina counties during that time, Edwards situates local law in contradistinction to state law, portraying the former as polycentric and heterogeneous and the latter as centralized and homogenous. Edwards suggests that state law was more aspirational than practical in the early nineteenth-century Carolinas because it failed to inform ordinary legal practice at the local level in the same way that resident culture or custom did.

Pitting “reformers” (elite individuals who sought to create a uniform and consolidated body of rules that appellate courts could enforce at the state level) against locals, Edwards demonstrates that the legal system was bottom-up and not top-down and that law on paper or in statutes was different from law in practice. On paper or in statutes, law subordinated lower courts to appellate courts and seemed, in keeping with the reformers’ ideals, systematized into a unitary, integrated order that reflected the supposedly natural and inevitable unfolding of history. Reformers selectively compiled local laws and practices into lengthy works to forge the impression that law was a set of consistent, underlying principles. In practice, however, law was variable, contingent, and contextual. It emerged from the workaday and quotidian operations of individuals in towns and communities. Law was therefore as messy as it was unpredictable, and it cannot be understood today without a deep knowledge of interpersonal relationships and cultural conditions in locales where courts sat. Slave codes, for instance, did not reflect realities on the ground because they were handed down by state legislatures and could not account for the reputations and routines of people in local communities—people who cared less about consistency in the law or about fixed principles than about their personal stake in any given legal matter.

This book is a corrective to histories interested principally in local legal sources but neglectful of the particularities that brought about these local sources. It marshals evidence from legal documents—especially case decisions, including appellate opinions—while considering why and how those documents were produced. The development of state law became increasingly important during the antebellum years, but the rise in state law—which privileged narratives of individual rights, standardized legal principles, and enabled southern distinctiveness—does not make sense apart from local data. Local data reveals much about the processes (as opposed to philosophies) of law. Put differently, local law remained discretionary because it was fluid and not subject to abstract and purely notional mantras about rights. Read the rest of this entry »

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Catharine Clinton and Michele Gillespie, David Brion Davis, Edmund S. Morgan, Elizabeth Fox-Genovese, Eugene Genovese, Fogel and Engerman, Historiography, Interracial Sex, Ira Berlin, James Hugo Johnston, Laws of Slavery, Loving v. Virginia, Miscegenation Laws, Orlando Patterson, Paul Finkelman, Peter Kolchin, Slavery, Stanley Elkins, Virginia, Winthrop Jordan

The Place of Miscegenation Laws within Historical Scholarship about Slavery

In American History, Arts & Letters, Book Reviews, Communication, Economics, History, Law, Laws of Slavery, Legal Education & Pedagogy, Nineteenth-Century America, Politics, Slavery, The Literary Table, Thomas Jefferson, Western Civilization on May 17, 2011 at 8:28 am

The following post appeared at The Literary Table.

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Miscegenation laws, also known as anti-miscegenation laws, increasingly have attracted the attention of scholars of slavery over the last half-century. Scholarship on slavery first achieved eminence with the publication of such texts as Eric Williams’s Capitalism and Slavery (1944), Frank Tannenbaum’s Slave and Citizen (1946), Kenneth Stampp’s The Peculiar Institution (1956), Stanley Elkins’s Slavery: A Problem in American Institutional and Intellectual Life (1959), and Leon F. Litwack’s North of Slavery (1961). When Winthrop D. Jordan published his landmark study White Over Black in 1968, miscegenation statutes during the era of American slavery were just beginning to fall within historians’ critical purview. The Loving v. Virginia case, initiated in 1959 and resolved by the U.S. Supreme Court in 1967, no doubt played an important role in activating scholarship on this issue, especially in light of the Civil Rights movement that called attention to various areas of understudied black history.

In Loving, the Supreme Court struck down Virginia’s miscegenation statutes forbidding marriage between whites and non-whites and ruled that the racial classifications of the statutes restricted the freedom to marry and therefore violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment. In the wake of Loving, scholarship on miscegenation laws gained traction, although miscegenation laws during the era of American slavery have yet to receive extensive critical treatment. Several articles and essays have considered miscegenation laws and interracial sex during the era of American slavery, but only a few book-length analyses are devoted to these issues, and of these analyses, most deal with interracial sex and miscegenation laws in the nineteenth-century antebellum period, or from the period of Reconstruction up through the twentieth-century. This historiographical essay explores interracial sex and miscegenation laws in the corpus of historical writing about slavery. It does so by contextualizing interracial sex and miscegenation laws within broader trends in the study of slavery. Placing various historical texts in conversation with one another, this essay speculates about how and why, over time, historians treated interracial sex and miscegenation laws differently and with varying degrees of detail. By no means exhaustive, this essay merely seeks to point out one area of slavery studies that stands for notice, interrogation, and reconsideration. The colonies did not always have miscegenation laws; indeed, miscegenation laws did not spring up in America until the late seventeenth-century, and they remained in effect in various times and regions until just forty-four years ago. The longevity and severity of these laws make them worthy our continued attention, for to understand miscegenation laws is to understand more fully the logic and formal expression of racism. Read the rest of this entry »

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Outline and Summary of Thomas D. Morris, Southern Slavery and the Law: 1619-1860 (Chapel Hill and London: University of North Carolina Press, 1996).

In American History, Arts & Letters, Book Reviews, History, Jurisprudence, Law, Laws of Slavery, Legal Education & Pedagogy, Nineteenth-Century America, Politics, Slavery, Western Civilization on April 20, 2011 at 4:23 pm

Introduction

The introduction serves as a brief historiographical essay that situates Morris’s text alongside other prominent texts and authors in the field. Morris uses the introduction to familiarize readers with, among other things, the differences between common law and courts of equity, the differences between civil and criminal law, and other relevant information such as the fact that statutes in England and America are mostly products of the nineteenth century. Morris believes that slavery reinforced English racism in that the English were predisposed to view Africans as inferior and so used the law to categorize racial difference and justify slave property. Morris suggests that experts can skip most of his introduction probably because the introduction is, as I have suggested, a piece about historiography rather than a history in itself.

PART ONE

Sources: Racial and Legal

Chapter One: The Function of Race in Southern Slave Law

Popular science maintained that blacks were inferior, and this understanding was reflected in law. Indians were not enslaved as often or in the same numbers as blacks. The presumptions and definitions of “slave” had to do with blackness; therefore, the legal status of mulattoes was often in flux. Law had to define people by race and then determine their free or slave status afterwards. Several Southern states adopted laws allowing free blacks to sell themselves as slaves.

Chapter Two: The Sources of Southern Slave Law

Some Southern slave law derived from Roman law; some derived from English common law. The origins of Southern slave law are traceable to at least Virginia. The degree to which Virginia followed or revised the common law is debatable. In early Virginia, many blacks were treated as indentured servants, not slaves. Not until the mid-seventeenth century did blacks become routinely associated with slavery. There is little evidence to suggest that Virginians had a sophisticated understanding of ancient Roman or other European legal traditions. A child’s status as free or slave followed the mother under the judicial principle of partus sequitur ventrem. The traditional common law rule was that the child’s status followed the father. Some appellate courts tried to link their opinions to the precedents of civil law or the Roman law on slavery. Some judges analogized slavery to English villenage. The roots of slavery in Hebraic tradition and Biblical literature had an enormous influence among nineteenth-century Southern whites. Read the rest of this entry »