Black Litigants in the Antebellum American South by Kimberly M. Welch (review)

Kimberly M. Welch ends Black Litigants in the Antebellum American South with the story of how it began, with digging through rotting documents stored loosely in boxes or garbage bags and dusted with the droppings of various pests. The book is based on Welch’s study of over one thousand civil lawsuits filed by black litigants between 1800 and 1860 in the Natchez district, defined here as Adams and Concordia Counties in Mississippi and Iberville and Point Coupee Parishes in Louisiana. To find those lawsuits, she traveled not only to established archives, but also to courthouses and storage sheds where she found crumbling nineteenth-century legal records stashed and still folded in three, largely forgotten even by the clerks who possessed them.

What Welch found in those previously unexplored records is a story that, she argues, historians have also forgotten: in the antebellum South, black litigants frequently entered courtrooms to pursue damages, to recover money they had loaned to white defendants, to enforce contracts, to petition for divorce or family recognition, to report kidnappings, and to sue for freedom. Many black litigants succeeded by appealing both to their local reputations and to their rights as property holders.

Welch uses these findings to argue that relations between white and black residents in the Natchez district were more complex than a simple case of total domination, on the one hand, and total subordination, on the other. She challenges Eugene Genovese’s view of antebellum southern courts as “instruments of white hegemony” (13) and joins more recent legal historians, including Ariela Gross and Laura Edwards, in arguing that the courts were never fully controlled by any one group. For Welch, law ultimately “reflects the messiness and the contradictions of local communities and lived experience” (13).

To be sure, while hundreds of black litigants succeeded in Natchez district courts, those same courts protected slaveholders’ property rights and ordered auctions at which people were sold. But courts sometimes became an “arena of possibility” in which black litigants could claim rights, enforce those claims even against white defendants, and somewhat improve their living conditions (166). In these “fleeting, hard-won moments of recognition,” black litigants turned inconsistencies and tensions within the southern legal system to their momentary advantage (59). Instead of focusing on what white southerners would allow, Welch focuses on what black litigants actually said and did to advocate for their interests.

This book belongs to a growing body of scholarship on black litigiousness in the American South, both before and after the Civil War. Like Anne Twitty’s Before Dred Scott: Slavery and Legal Culture in the American Confluence, 1787–1857 (2016) and Kelly Kennington’s In the Shadow of Dred Scott: St. Louis Freedom Suits and the Legal Culture of Slavery in Antebellum America (2017), which examines approximately three hundred freedom suits in antebellum St. Louis, Welch’s work demonstrates the importance of looking at local courts for evidence of how the law worked in slave states. (Welch’s database includes roughly 128 freedom suits, about half of which were successful, but the bulk of the suits she surveyed involved free black litigants.) In Natchez, as in St. Louis, law was a part of daily life, and knowledge about the law was widespread among black southerners, free and enslaved. Welch even found at least two cases of free black men appearing as attorneys of record before courts, despite being unable to sign their own names. “While many people of African descent in the slave South could not and did not go to court,” she writes, “the legal activity of people of color—their claims-making and self-advocacy—had a long and robust history . . . that did not begin with the Thirteenth and Fourteenth Amendments and the extension of formal rights” (192).

Indeed, together with Martha Jones’s Birthright Citizens: A History of Race and Rights in Antebellum America (2018) on free black litigiousness in antebellum Baltimore...