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Studies in the Legal History of the South

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Studies in the Legal History of the South

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Elbert Parr Tuttle

Chief Jurist of the Civil Rights Revolution

Anne Emanuel

This is the first—and the only authorized—biography of Elbert Parr Tuttle (1897–1996), the judge who led the federal court with jurisdiction over most of the Deep South through the most tumultuous years of the civil rights revolution. By the time Tuttle became chief judge of the United States Court of Appeals for the Fifth Circuit, he had already led an exceptional life. He had cofounded a prestigious law firm, earned a Purple Heart in the battle for Okinawa in World War II, and led Republican Party efforts in the early 1950s to establish a viable presence in the South. But it was the inter­section of Tuttle’s judicial career with the civil rights movement that thrust him onto history’s stage.

When Tuttle assumed the mantle of chief judge in 1960, six years had passed since Brown v. Board of Education had been decided but little had changed for black southerners. In landmark cases relating to voter registration, school desegregation, access to public transportation, and other basic civil liberties, Tuttle’s determination to render justice and his swift, decisive rulings neutralized the delaying tactics of diehard segregationists—including voter registrars, school board members, and governors—who were determined to preserve Jim Crow laws throughout the South.

Author Anne Emanuel maintains that without the support of the federal courts of the Fifth Circuit, the promise of Brown might have gone unrealized. Moreover, without the leadership of Elbert Tuttle and the moral authority he commanded, the courts of the Fifth Circuit might not have met the challenge.

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Fathers of Conscience

Mixed-Race Inheritance in the Antebellum South

Bernie D. Jones

Fathers of Conscience examines high-court decisions in the antebellum South that involved wills in which white male planters bequeathed property, freedom, or both to women of color and their mixed-race children. These men, whose wills were contested by their white relatives, had used trusts and estates law to give their slave partners and children official recognition and thus circumvent the law of slavery. The will contests that followed determined whether that elevated status would be approved or denied by courts of law.

Bernie D. Jones argues that these will contests indicated a struggle within the elite over race, gender, and class issues--over questions of social mores and who was truly family. Judges thus acted as umpires after a man's death, deciding whether to permit his attempts to provide for his slave partner and family. Her analysis of these differing judicial opinions on inheritance rights for slave partners makes an important contribution to the literature on the law of slavery in the United States.

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Gender and the Jubilee

Black Freedom and the Reconstruction of Citizenship in Civil War Missouri

Sharon Romeo

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

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James McHenry, Forgotten Federalist

Karen E. Robbins

A Scots-Irish immigrant, James McHenry determined to make something of his life. Trained as a physician, he joined the American Revolution when war broke out. He then switched to a more military role, serving on the staffs of George Washington and Lafayette. He entered government after the war and served in the Maryland Senate and in the Continental Congress. As Maryland’s representative at the Constitutional Convention, McHenry helped to add the ex post facto clause to the Constitution and worked to increase free trade among the states.

As secretary of war, McHenry remained loyal to Washington, under whom he established a regimental framework for the army that lasted well into the nineteenth century. Upon becoming president, John Adams retained McHenry; however, Adams began to believe McHenry was in league with other Hamiltonian Federalists who wished to undermine his policies. Thus, when the military buildup for the Quasi-War with France became unpopular, Adams used it as a pretext to request McHenry’s resignation.

Yet as Karen Robbins demonstrates in the first modern biography of McHenry, Adams was mistaken; the friendship between McHenry and Hamilton that Adams feared had grown sensitive and there was a brief falling out. Moreover, McHenry had asked Hamilton to withdraw his application for second-in-command of the New Army being raised. Nonetheless, Adams’s misperception ended McHenry’s career, and he has remained an obscure historical figure ever since—until now. James McHenry, Forgotten Federalist reveals a man surrounded by important events who reflected the larger themes of his time.

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Jury Discrimination

The Supreme Court, Public Opinion, and a Grassroots Fight for Racial Equality in Mississippi

Christopher Waldrep

In 1906 a white lawyer named Dabney Marshall argued a case before the Mississippi Supreme Court demanding the racial integration of juries. He carried out a plan devised by Mississippi’s foremost black lawyer of the time: Willis Mollison. Against staggering odds, and with the help of a friendly newspaper editor, he won. How Marshall and his allies were able to force the court to overturn state law and precedent, if only for a brief period, at the behest of the U.S. Supreme Court is the subject of Jury Discrimination, a book that explores the impact of the Civil War and Reconstruction on America’s civil rights history.

Christopher Waldrep traces the origins of Americans’ ideas about trial by jury and provides the first detailed analysis of jury discrimination. Southerners’ determination to keep their juries entirely white played a crucial role in segregation, emboldening lynchers and vigilantes like the Ku Klux Klan. As the postbellum Congress articulated ideals of national citizenship in civil rights legislation, most importantly the Fourteenth Amendment, factions within the U.S. Supreme Court battled over how to read the amendment: expansively, protecting a variety of rights against a host of enemies, or narrowly, guarding only against rare violations by state governments. The latter view prevailed, entombing the amendment in a narrow interpretation that persists to this day.

Although the high court clearly denounced the overt discrimination enacted by state legislatures, it set evidentiary rules that made discrimination by state officers and agents extremely difficult to prove. Had these rules been less onerous, Waldrep argues, countless black jurors could have been seated throughout the nation at precisely the moment when white legislators and jurists were making and enforcing segregation laws. Marshall and Mollison’s success in breaking through Mississippi law to get blacks admitted to juries suggests that legal reasoning plausibly founded on constitutional principle, as articulated by the Supreme Court, could trump even the most stubbornly prejudiced public opinion.

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Legal Ideology of Removal

The Southern Judiciary and the Sovereignty of Native American Nations

Tim Alan Garrison

This study is the first to show how state courts enabled the mass expulsion of Native Americans from their southern homelands in the 1830s. Our understanding of that infamous period, argues Tim Alan Garrison, is too often molded around the towering personalities of the Indian removal debate, including President Andrew Jackson, Cherokee leader John Ross, and United States Supreme Court Justice John Marshall. This common view minimizes the impact on Indian sovereignty of some little-known legal cases at the state level.

Because the federal government upheld Native American self-dominion, southerners bent on expropriating Indian land sought a legal toehold through state supreme court decisions. As Garrison discusses Georgia v. Tassels (1830), Caldwell v. Alabama (1831), Tennessee v. Forman (1835), and other cases, he shows how proremoval partisans exploited regional sympathies. By casting removal as a states' rights, rather than a moral, issue, they won the wide support of a land-hungry southern populace. The disastrous consequences to Cherokees, Creeks, Choctaws, Chickasaws, and Seminoles are still unfolding.

Important in its own right, jurisprudence on Indian matters in the antebellum South also complements the legal corpus on slavery. Readers will gain a broader perspective on the racial views of the southern legal elite, and on the logical inconsistencies of southern law and politics in the conceptual period of the anti-Indian and proslavery ideologies.

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Local Matters

Race, Crime, and Justice in the Nineteenth-Century South

Edited by Christopher Waldrep and Donald G. Nieman

Much of the current reassessment of race, culture, and criminal justice in the nineteenth-century South has been based on intensive community studies. Drawing on previously untapped sources, the nine original papers collected here represent some of the best new work on how racial justice can be shaped by the particulars of time and place.

Although each essay is anchored in the local, several important larger themes emerge across the volume--such as the importance of personality and place, the movement of former slaves from the capriciousness of "plantation justice" to the (theoretically) more evenhanded processes of the courts, and the increased presence of government in daily aspects of American life.

Local Matters cites a wide range of examples to support these themes. One essay considers the case of a quasi-free slave in Natchez, Mississippi--himself a slaveowner--who was "reined in" by his master through the courts, while another shows how federal aims were subverted during trials held in the aftermath of the 1876 race riots in Ellenton, South Carolina. Other topics covered include the fear of black criminality as a motivation of Klan activity; the career of Thomas Ruffin, slaveowner and North Carolina Supreme Court Justice; blacks and the ballot in Washington County, Texas; the overturned murder conviction of a North Carolina slave who had killed a white man; the formation of a powerful white bloc in Vicksburg, Mississippi; agitation by black and white North Carolina women for greater protections from abusive white male elites; and slaves, crime, and the common law in New Orleans.

Together, these studies offer new insights into the nature of law and the fate of due process at different stages of a highly racialized society.

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The Long, Lingering Shadow

Slavery, Race, and Law in the American Hemisphere

Robert J. Cottrol

Students of American history know of the law’s critical role in systematizing a racial hierarchy in the United States. Showing that this history is best appreciated in a comparative perspective, The Long, Lingering Shadow looks at the parallel legal histories of race relations in the United States, Brazil, and Spanish America. Robert J. Cottrol takes the reader on a journey from the origins of New World slavery in colonial Latin America to current debates and litigation over affirmative action in Brazil and the United States, as well as contemporary struggles against racial discrimination and Afro-Latin invisibility in the Spanish-speaking nations of the hemisphere.

Ranging across such topics as slavery, emancipation, scientific racism, immigration policies, racial classifications, and legal processes, Cottrol unravels a complex odyssey. By the eve of the Civil War, the U.S. slave system was rooted in a legal and cultural foundation of racial exclusion unmatched in the Western Hemisphere. That system’s legacy was later echoed in Jim Crow, the practice of legally mandated segregation. Jim Crow in turn caused leading Latin Americans to regard their nations as models of racial equality because their laws did not mandate racial discrimination— a belief that masked very real patterns of racism throughout the Americas. And yet, Cottrol says, if the United States has had a history of more-rigid racial exclusion, since the Second World War it has also had a more thorough civil rights revolution, with significant legal victories over racial discrimination. Cottrol explores this remarkable transformation and shows how it is now inspiring civil rights activists throughout the Americas.

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Origins of the Dred Scott Case

Jacksonian Jurisprudence and the Supreme Court, 1837-1857

Austin Allen

The Supreme Court's 1857 Dred Scott decision denied citizenship to African Americans and enabled slavery's westward expansion. It has long stood as a grievous instance of justice perverted by sectional politics. Austin Allen finds that the outcome of Dred Scott hinged not on a single issue—slavery—but on a web of assumptions, agendas, and commitments held collectively and individually by Chief Justice Roger B. Taney and his colleagues.

Allen carefully tracks arguments made by Taney Court justices in more than 1,600 reported cases in the two decades prior to Dred Scott and in its immediate aftermath. By showing us the political, professional, ideological, and institutional contexts in which the Taney Court worked, Allen reveals that Dred Scott was not simply a victory for the Court's prosouthern faction. It was instead an outgrowth of Jacksonian jurisprudence, an intellectual system that charged the Court with protecting slavery, preserving both federal power and state sovereignty, promoting economic development, and securing the legal foundations of an emerging corporate order—all at the same time. Here is a wealth of new insight into the internal dynamics of the Taney Court and the origins of its most infamous decision.

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Rise of Judicial Management in the U.S. District Court, Southern District of Texas, 1955-2000

Steven Harmon Wilson

This is the first book-length study of a federal district court to analyze the revolutionary changes in its mission, structure, policies, and procedures over the past four decades. As Steven Harmon Wilson chronicles the court's attempts to keep pace with an expanding, diversifying caseload, he situates those efforts within the social, cultural, and political expectations that have prompted the increase in judicial seats from four in 1955 to the current nineteen.

Federal judges have progressed from being simply referees of legal disputes to managers of expanding courts, dockets, and staffs, says Wilson. The Southern District of Texas offers an especially instructive model by which to study this transformation. Not only does it contain a varied population of Hispanics, African Americans, and whites, but its jurisdiction includes an international border and some of the busiest seaports in the United States. Wilson identifies three areas of judicial management in which the shift has most clearly manifested itself. Through docket and case management judges have attempted to rationalize the flow of work through the litigation process. Lastly, and most controversially, judges have sought to bring "constitutionally flawed" institutions into compliance through "structural reform" rulings in areas such as housing, education, employment, and voting.

Wilson draws on sources ranging from judicial biography and oral-history interviews to case files, published opinions, and administrative memoranda. Blending legal history with social science, this important new study ponders the changing meaning of federal judgeship as it shows how judicial management has both helped and hindered the resolution of legal conflicts and the protection of civil rights.

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