Race and Law from the Bottom Up in the Nineteenth-Century South: A Review Essay

These four books examine civil cases involving African Americans in the South between the early nineteenth century and 1950. A central theme unites them: What should historians make of courtroom victories by African American civil parties in the nineteenth-century South? African Americans—slave or free—had the deck stacked against them when they entered the courtroom in this period, especially in southern states. Courts were an improbable source of justice for African Americans in a system of white social and political domination, and criminal law was a key instrument of African American oppression. Courts are rightly remembered as sites that legitimated violence against African American individuals and the entire black population. And yet African Americans who were plaintiffs and defendants in civil suits sought justice in these unlikely locales with surprising frequency, and even more surprisingly they sometimes found it.

The books under review here share a principal goal, which is to prove that African Americans were active participants in southern legal culture and not simply passive targets of the law's disciplinary apparatus. As such, these studies join a body of recent scholarship that takes a bottom-up approach to the historical study of American law in order to consider how everyday people engaged with and interpreted the law. Taking a page from a much longer historiographical tradition rooted in social history, this approach reflects an understanding that individuals without formal social or political power can be agents of historical change. In the context of legal history, looking at popular legal processes involves shifting the lens away from the examination of formal rules emanating from a central authority and toward the people who experienced the law in courts and other legal contexts, recognizing that they, too, might be a source of legal authority.¹ For scholars of the South, this perspective has often involved demonstrating that people who were nonwhite, poor, and/or women participated in the shaping of legal culture. In these four books, African Americans who entered the courtroom for civil trials transformed and at times generated legal knowledge to articulate and defend rights, make claims on property, formalize bonds of kinship, and more.

Kimberly M. Welch's Black Litigants in the Antebellum American South focuses on African American civil litigants. She examines cases in which African Americans filed suits against white people, using courts, for example, to pursue monetary damages for personal injury, settle breaches of contract and property disputes, or recover debt. In contrast to criminal cases, in which the state is the adversarial party to a criminal defendant (since crimes are understood to be offenses against the state), civil cases see one person seek court-ordered redress from another. Unlike criminal cases, in which the court can order criminal penalties, courts have a broader range of options for remedies under civil litigation, where the goal is equity and fairness rather than punishment.

Welch looks at lower court cases in the Natchez district—two counties in Mississippi and two parishes in Louisiana. Finding African...