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

Americans have always been a litigious bunch. But until recently, historians had largely ignored the black people, both free and enslaved, who went to court in the antebellum South. Both white supremacy and southern statutes, we reasoned, rendered black litigants few and far between. In the last fifteen years, such assumptions have been shaken by the scholarship of Dylan Penningroth, Laura Edwards, and, more recently, this reviewer, Kelly Kennington, and Martha Jones. By putting black litigants front and center, however, Kimberly Welch has provided the first comprehensive treatment of black litigiousness in the antebellum South.

Battling dead rats and live snakes, Welch took to the courthouse basements, storage sheds, and trailers where so many of America's local court records are slowly deteriorating to identify, clean, and photograph suits filed by or against black litigants in Iberville and Pointe Coupee Parishes in Louisiana and Adams and Claiborne Counties in Mississippi between 1800 and 1860. Her efforts yielded more than one thousand cases—mostly civil matters—across two different legal regimes: the civil-law tradition in Louisiana and the common-law system in Mississippi.

Black litigants, Welch reveals, came from all walks of life. They were free and enslaved, wealthy and poor, male and female, native and foreign. Some, like William Johnson, the famous Natchez barber, or Rose Belly, an African-born woman who became the wife of a white planter who eventually freed her, enjoyed significant privilege, but many did not. They sued and were sued to recover debts, to protect real or personal property, to obtain payment for labor, to secure freedom, and to sever marital ties. They pursued actions and were pursued by fellow black litigants and white southerners alike.

No matter who they were, what kind of legal proceedings they participated in, or who they faced off against, however, black litigants employed the rhetoric of property by asserting ownership of their money, their land, their moveable goods, their labor, their person, and their marriages. This strategy, Welch argues, was a calculated response to a southern legal system rooted in the protection of private property, specifically slaveholders' property. When black litigants went to court, they challenged the racial order by insisting that they be treated like white litigants. Their claims might have been dismissed outright—judges and juries could have simply disregarded black litigants as legal persons. By framing their demands around property, however, black litigants forced the issue. When given the choice between defending white supremacy by denying them legal redress or shoring up property rights—even black property rights—the courts chose the latter every time. As such, Welch asserts, property became central to black claims-making in the antebellum South.

By defending their property rights in court and compelling white southerners to take them—and their claims—seriously, black litigants were actively seeking recognition of their personhood. The experience they obtained while pursuing private legal matters in the antebellum era, moreover, helped prepare them for the much more public legal battles for civic inclusion during the long civil rights movement.

In addition to invoking the rhetoric of property, black litigants also pursued a variety of specific tactics to advance their claims. While navigating the courts, black litigants consciously crafted narratives about "gender, freedom, property, and citizenship" that were legible to the white southerners who presided over their cases and opened up "new worlds with expanded possibilities for people of color" (59). They also, on occasion, acted as their own attorneys, and, in other instances, employed white attorneys to represent them. But perhaps most captivatingly, black litigants leveraged both good reputations and ties to the community. In the antebellum South, where personalism reigned, Welch shows, black litigants were hardly interchangeable. Some black litigants, as a result of their wealth, personal connections, and conduct, might even have more "credit" than the white people they faced off against in court. Obtaining this "credit" meant behaving as the white community wished, which often...