Abstract and Keywords
In 1903, Isham Hodge had farmed his own land in Black River Township, North Carolina, for 23 years. Up until a few years before, 63-year-old Hodge had likely also cast his vote in local and state elections. But at the end of the nineteenth century, the balance of power in the state shifted. By 1900, North Carolina had managed to disfranchise most African American men like Hodge through a constitutional amendment and registration changes....
In 1903, Isham Hodge had farmed his own land in Black River Township, North Carolina, for 23 years. Up until a few years before, 63-year-old Hodge had likely also cast his vote in local and state elections. But at the end of the nineteenth century, the balance of power in the state shifted. By 1900, North Carolina had managed to disfranchise most African American men like Hodge through a constitutional amendment and registration changes.1 Perhaps with this in mind, in April 1903, an unfamiliar white man from a neighboring county appeared in Hodge’s cornfield. The intruder claimed to have bought an old mortgage on the black landowner’s farm and said he now owned the property. If Hodge didn’t sign a document agreeing to pay him rent, the white man—a 55-year-old doctor named William L. Hudson—threatened to eject Hodge from the land and put him in the penitentiary. Hodge initially refused to be bullied. The mortgage in question was over 20 years old and he had paid it back—and then some—years ago. He told the doctor that before he would pay rent to him, “I would give the land up.” Undeterred, the white man returned again and again, continuing to make threats, until finally Hodge signed a document. As Hodge was illiterate, he was unable to read what he signed.2
He soon found out that it had been a deed to all of his land. While the white man did not have a real claim to all the land before, now he had a signed deed for the land from Hodge. When Dr. Hudson attempted to take control of the property, however, Isham Hodge and his son-in-law Jim Woodward forbade him from stepping onto the land. When Hudson still appeared to try to collect rent, Woodward told him that they would “pay no rent.” The white man replied that he would “get the rent.” In response, Woodward told him that if he did so “it would be by law.”
Indeed, both sides brought their claims to a court of law. Hodge and Woodward hired a prominent local white lawyer and filed suit against Hudson, claiming that he had obtained the deed to the land through fraud. Even though their political rights had been curtailed, the black farmers clearly believed that they still had legal rights and they might be able to regain the land in a courtroom. (p.2) Meanwhile, W. L. Hudson brought an action before a justice of the peace for the rent he claimed they owed him. When the justice dismissed his action, Hudson appealed to the Cumberland Superior Court. The white doctor likely felt optimistic that a southern court would uphold his claim against a black man.3
In many ways, the southern legal system appeared nearly impenetrable to people of color like Isham Hodge in the eight and a half decades after the Civil War. The juries who decided some of the cases were largely white until the 1890s and almost entirely white for decades after that. The judges who oversaw proceedings and decided other cases were even more likely to be white; only a very small number of black judges served in the South before 1950. Apart from during Reconstruction, judges were generally appointed by largely white, Democratic legislatures and governors or voted into office by typically Democratic-leaning electorates. And the vast majority of lawyers in the South were white. Many had served in the Confederate Army during the war and had owned slaves or were the children and grandchildren of slave owners and Confederate veterans. With almost exclusively white gatekeepers, it seemed unlikely that people of color could get very far through the system.
The legal system had played a central role in upholding and legitimizing slavery in the South. Then, from the moment the Civil War ended, African Americans were sentenced in criminal cases and put in southern jails in vastly disproportionate numbers. In a practice that rivaled slavery in its cruelty, many states hired out their largely black prison populations for profit. Moreover, in the decades after Reconstruction, southern state courts and federal courts largely allowed segregation to proceed in schools, parks, housing, and transportation. The courts also enabled massive constitutional disfranchisement throughout the South at the end of the nineteenth and the beginning of the twentieth centuries.
But African Americans’ experiences with the judicial system in the nineteenth and first half of the twentieth centuries were deeper and more complicated than the courts simply denying them rights. For nearly a century after the Civil War, some black southerners continued to believe that there was a chance for justice in civil cases in southern courts. When the financial futures of their families were on the line, black litigants took on other African Americans in civil suits, and even more often—in cases that reached southern states’ highest courts—litigated civil suits against white southerners.
Most often, these cases took place between black and white southerners over disputes that originated from their daily lives. The outcome of the case would usually have an immediate impact only on the families involved in the suit, but it was often life changing. The results of African Americans’ litigation would determine whether they would have their own land under their feet, funds to replace missing wages when they were injured, or be paid for a year’s work. Other cases (p.3) decided whether they would be able to obtain property left to them in a will or if they had a legitimate claim to ownership of a horse or mule.
As they litigated these cases, African Americans operated within a system in which the actors making decisions often had very different interests than their own. Consequently, black litigants found that, in contrast to the broad range of civil cases litigated between whites, they had the most success bringing certain kinds of cases against whites. Frequently the cases they were able to litigate aided whites’ interests in some way or did not threaten whites. The kinds of cases they could bring also shifted as the societal constraints they operated under changed.4 Black litigants further found that presenting themselves in particular ways and making certain arguments made it more likely for whites to hear their suits and rule in their favor.
By carefully negotiating this system, black men and women found some of the justice they sought in both local and state courts. Former slaves brought cases against former masters and, at times, won. Sharecroppers gained justice from white landowners. Men and women who could not read successfully fought back when they were cheated out of their property by whites. Indeed, when civil cases between black and white litigants came before them between 1865 and 1950, eight southern state supreme courts decided in black litigants’ favor more often than not.5 Viewed another way, together these eight southern supreme courts upheld trial decisions in favor of black litigants and reversed decisions against black litigants more often than they did so for the white litigants in these suits. In a society in which almost everything was rigged against them, the rates in which state supreme courts reversed and upheld lower courts’ decisions in these civil cases between black and white litigants were similar to appellate reversal rates throughout the nation.6 In slightly over half of these civil cases that made it to their state’s highest court, these black litigants had also won against whites at the local court level.7
Thus, in a tremendously constrained environment where they were shut out of other government institutions, seen as racially inferior, and segregated, African Americans found a way to fight for their rights. As they did so, they often displayed immense pragmatism and savvy in understanding how to get whites on their side. This book examines how African Americans adapted and made a biased system work for them under enormous constraints. It explores the types of civil cases that black litigants were able to litigate at different times and how they maximized their chances by working with their lawyers and testifying in court. At the same time, it considers the limitations of working within a discriminatory white-dominated system and the choices black litigants had to make to have their cases heard.
This is also a story about the white participants in these cases and about the operations of white supremacy.8 While I initially focused on the black litigants, (p.4) I soon found that, to truly tell this story, I would also have to examine the actions and motivations of the white litigants, judges, lawyers, witnesses, and jury members who played central roles in these suits. Only through their dealings with southerners on the other side of the color line would the black litigants’ suits gain traction in southern courts. These cases show white southerners seeking to use the legal system for their own benefit and to uphold white supremacy. At times, though, white men and women also treated certain individual African Americans with a measure of fairness, sometimes to uphold the very system of racial inequality.
Until now, these stories have been largely untold. Most legal analyses of the post–Civil War South have examined African Americans’ experiences in the criminal justice system in which they had little choice in their participation in the court system.9 In civil cases, by contrast, one or more of the litigants chose to initiate the case. But because it seemed so difficult for African Americans to access the southern legal system for their own benefit during much of this period, most scholars have assumed that individual African Americans litigated few civil cases in southern courts in the post–Reconstruction South and usually experienced stark injustice in the cases they were able to litigate. Scholars have reached these conclusions, in part, because when they have examined civil cases involving African Americans in the post–Civil War South, they have largely focused on cases in which the issue of race itself was central: cases over racial classification, sexual liaisons across the color line, and racial discrimination.10 But these are only a small portion of all of the civil cases in which black litigants took part in the post–Civil War South and are often the types of suits in which African Americans fared the worst. In fact, African Americans litigated a range of cases that reflected their many concerns in addition to racial inequality—jobs, money, illness, custody, inheritance, property, and debt. Even though race was not at the forefront in most of these cases, the racism built into the structure of life in the South had a deep impact on these suits as well.11
Putting the pieces of this story together has challenges. Historians can determine what happened in the past only from the evidence that is left behind. In legal action, there is both too much and too little left behind to make putting the pieces of the puzzle together easy. African Americans first entered the court system at the local level, having their cases heard by local magistrates or justices of the peace and tried in county courts, presided over by judges. Many of the records of local courts survive in county and state archives and county courthouses throughout the South. Yet, while some local court records contain petitions and even testimony, large leather-bound minute books with summaries of the cases or microfilm copies of the minute books are often all that survive. Moreover, my examination of the post–Civil War minute books of two superior (p.5) courts found that, even in a highly racially conscious time, the litigants in these records were rarely identified by race.12
There is another type of legal source available that is both more accessible and more problematic: the cases heard by the highest court in each southern state. Unlike local records that usually must be painstakingly pored through, I was able to search the summaries and opinions of these appeals cases through LexisNexis, a legal database created for modern legal research. Many of the summaries and opinions of these cases mention the race of the litigants, allowing a keyword search to find cases involving African American litigants in the records of eight state supreme courts.13
Because these cases reached their states’ highest court, the full original lower- court trial record, including in most cases, the lower-court proceedings and testimony, lower-court petitions, and the lower-court decision, as well as the lawyer’s appeals to the higher court and the higher-court opinion, have been frequently preserved together in case files. Instead of being scattered around the state like local case records, the original files from these cases are often preserved in one central state archive. Thus, after conducting research in legal databases, I turned to archives in each of the eight states, where I examined the surviving case files of suits involving black litigants that reached the eight state supreme courts. Fortunately, the vast majority of the case files have survived and are available in the state archives. As the case files normally include the full record of the initial trial, the files were often several inches thick and numbered 200 or 300 pages, or more. A number of the cases were still tightly knotted in faded ribbon and seemed to have gone untouched for generations.14
Although much easier to access, these cases that reached appellate courts are not representative of the full range of cases litigated by black southerners in local courts. The black litigants who were able to appeal were not completely typical: They may have been more knowledgeable about the legal system, better connected to whites in the community, more desperate, or had lawyers more willing to appeal.15 Additionally, cases involving African Americans that reached appellate courts, like cases that reached appeals courts generally, often had strong legal claims and undoubtedly received greater consideration than most cases heard only in lower courts. Higher-court judges also likely gave heightened attention to factors such as precedent, as the decision in the case could set a precedent of its own.
Examining race in these records has challenges as well. With a few exceptions, I only found the state supreme court cases in which black litigants had been labeled by race in the court report. More civil suits involving black litigants undoubtedly exist in which the litigants’ racial classification went unnoted in the official court summary and opinion.16 Assigning racial categories to these (p.6) participants based on the court record is also problematic. Lawyers, judges, and witnesses labeled each other during the trial and in legal documents based on their long-standing knowledge of one another, the reports of others, and observations about the person’s appearance, companions, and behavior.17
Nevertheless, because working with appellate cases allows for an examination of a much broader and longer swath of cases from around the South and the records are far richer, this book focuses on both the local trials and appeals of cases that reached southern state supreme courts, while remaining mindful of these suits’ many limitations. I tackle the court records’ subjective use of racial categories by using the terms “black” and “white,” based on how the cases and the laws of the states characterized litigants and witnesses. I employ these classifications to show how the legal system—and southern society—labeled these men and women during their legal action. The records of these appellate cases are also more representative in certain ways than one might think. For one, the backgrounds of black litigants in these suits are fairly representative of African Americans in the South at the time—many of them were former slaves or the children of former slaves and presented themselves as illiterate and poor. If they did have any unusual quality, it was their ties with local whites that they leveraged to hire lawyers and litigate suits. Perhaps even more important, during the nineteenth century, southern appellate courts heard a wide range of cases, including suits involving only small amounts of money. Not all cases were appealed, (p.7) but many of the cases that litigants attempted to appeal were taken up by state supreme courts during much of the period under examination.18
Examining legal sources has its own challenges. Most texts used by historians are unreliable in different ways, based in part on how they were created and the purposes behind their creation. In the case of trial testimony and petitions, lawyers and the litigants involved shaped their testimony to achieve a certain end—to win their cases. Witnesses, too, shaped their testimony based on their relationship with the person they were testifying about, financial consequences such as losing their jobs, their own personal views, and their actual knowledge of what they testified about. Because there are two sides to almost every case, two different groups of people were shaping their words for opposite ends. As a result, in many—if not most—cases, the statements of material facts by both sides contradict each other. But rather than rendering these cases useless as a historical source, the ways that litigants and lawyers shaped their cases provide important information. I plumb their testimony and petitions to examine how they sought to shape their cases to win their suits and to better understand their knowledge of the law and race relations in their communities. As I read legal decisions, I recognize too that, even as judges sought to give authority and legitimacy to one side in the dispute by drawing on precedent and couching their words in legal language, such decisions are subjective. The outcome of cases is based on the unequal resources of the two different sides and the judges’ and jury members’ ideas, experiences, and relationships as well as on the law itself.19
Because of the subjective nature of many court records, materials beyond the legal record assist in interpreting and contextualizing court transcripts. This book uses the records of white and black newspapers throughout the South to better understand attitudes toward the courts, illuminate responses to African Americans’ legal action, and learn more about the trials and aftermaths of certain cases. In addition, I searched the records of the Freedmen’s Bureau to discover how the Bureau helped set the stage for African Americans’ access to southern courts and traced claims that were appealed to both the Bureau and state courts. I also studied records written by or about by the participants in lawsuits, including census data, local histories, letters, speeches, and wills. Finally, I used contemporary legal manuals, texts, and memoirs to better comprehend the legal process of the time and gain insights into the decisions of southern judges.
Through a search of the records of eight southern state supreme courts between 1865 and 1950, I unearthed the surviving trial records and appeals of 1,377 civil cases litigated by African Americans during this period.20 Although this number is much higher than historians have assumed, these cases still only made up a small proportion of overall suits in southern appeals courts. In all, these civil appellate cases involving black litigants made up about 1 of every 162 civil and (p.8) criminal cases in the state supreme courts in which they were litigated between 1865 and 1950.21 The vast majority of these courts’ business involved civil disputes between whites.22
Slightly less than one-third of these civil appeals cases involving African American litigants (397 suits) were litigated between two or more black litigants.23 By far the greatest number of appellate civil suits between black litigants were disputes over wills and estates. For decades after slavery ended, a large number of these inheritance suits between black litigants dealt with the aftermath of the ban on slave marriage. If formerly enslaved men and women did not marry after the Civil War and died without wills in place, their partners and children struggled at times to inherit. Slave sales of fathers and mothers away from their families also resulted in some former slaves having more than one family who claimed an inheritance. Disputes over property formed another fifth of suits between black litigants, reflecting the importance of property ownership to black southerners throughout much of this period and southern courts’ continuing respect for property rights. An additional fifth of suits involved black churches or black fraternal organizations, which played central roles in African American communities.24
The remaining 71 percent of civil cases involving black litigants in the eight state supreme courts (980 suits) occurred between white and black litigants. These suits are the focus of this book. Despite important differences among the states, what stood out most in these suits was how consistent the patterns in these cases were across eight widely varied southern states. Although all had been slave states, in many ways the states’ contrasts were just as great as their similarities. One of the states—Mississippi—had a majority-black population throughout much of the period examined and several others, such as Alabama and Georgia, had almost as many black residents as whites. Other states, like Arkansas and Kentucky, had far more white than black citizens.25 In states such as Virginia and Georgia on the Eastern Seaboard, white communities had been established for centuries before the Civil War. In contrast, states farther west like Mississippi and Arkansas were not part of the original thirteen colonies and did not achieve statehood until the first decades of the nineteenth century. While seven of the states fought for the Confederacy, Kentucky did not secede during the war. During the era of Reconstruction (1865 to 1877), Republican control ended earlier in some states than others, as Democrats gradually took back much of their power in state after state. Throughout the South, African Americans’ political power also varied: In states like Georgia, their role in politics weakened far earlier than in North Carolina, where black voters continued to wield significant political power through the 1890s.26 Even with these vast demographic and political differences, though, patterns of litigation by African Americans in southern state supreme courts were surprisingly similar and shifted over time as a region.
(p.9) Throughout the eight states, many civil cases that reached appellate courts took place between former slaves and their former masters. In two-thirds of these cases during the Reconstruction era and about a third of cases in the two decades after Reconstruction, men and women who had been considered property sued the very people who had owned them or their former owners’ heirs.27 They brought into courtrooms their long histories together during slavery. Black litigants also brought suits against white employers, neighbors, city officials, landowners, speculators, and shopkeepers. In other civil cases, white southerners initiated the legal action, and black southerners fought back against whites’ claims. At a time when white men dominated the courtroom, black women litigated 41 percent of these suits, at times explicitly using their gender to elicit sympathy from the court.28
Before entering the courtroom, black southerners had often sought other ways to settle their disputes with whites. One black plaintiff explained that he and other “colored citizens” in Louisville, Kentucky, had tried to settle the issue of segregated parks “in divers ways and means” before bringing it to court.29 Black southerners also faced many barriers to entering a courtroom. Even if black men and women wanted to bring their dispute before a court, they often lacked the money to hire a lawyer or pay court fees. Certain kinds of cases were difficult to bring before white-dominated courts. And in the post–Civil War South, the threat of violent repercussions was ever-present.
Nonetheless, some black southerners continued to turn to the courts in their disputes because they saw them as a possible realm for justice. Throughout this period, African Americans were challenging inequality in the nation on many fronts, experimenting in diverse forums and with various strategies. They soon found that certain methods worked best at different times and places. Litigation, in particular, remained a viable strategy in the South even after many other political avenues had been closed to them.
Black southerners also were willing to take on the expense and risk of legal action because they saw civil cases as having hugely significant financial consequences for their families. Isham Hodge’s and Jim Woodward’s case could completely change their family’s finances, turning them from landowners into renters.30 Other suits could allow black litigants to gain thousands of dollars left to them in wills, funds to provide for their families in the wake of debilitating injuries, or money they were owed from a cotton crop.
Even as they held out a measure of hope in the courts, black litigants were realistic. Although Union occupation temporarily shifted the balance of power in the South during Reconstruction (in some states longer than others), the courts remained dominated by white lawyers and judges, and most jurors continued to be white. No doubt some black southerners noticed the difficulties they faced in litigating cases that appeared threatening to whites: Black men and (p.10) women were being given much longer sentences than whites in criminal cases and were often unsuccessful in cases they litigated over racial discrimination.31 Their cases over contracts, personal injury, and property were much less threatening to white southerners. But even in these suits, African Americans had to gain the support of white lawyers, witnesses, judges, and juries to have a chance at winning. In many kinds of civil cases, it was not possible to win whites’ support at all, limiting the types of civil suits black men and women were able to litigate.
Instead of giving up on the legal system altogether, black litigants continued to pursue the kinds of cases in which they could participate. Clear patterns in what kinds of cases black southerners could litigate and the strategies they used to win their suits emerged across the South. In the 35 years after the Civil War, many cases centered around bequests left to freedpeople in a former master’s will, appealing to white men’s rights to leave funds and property to whom they wanted. Other cases between black and white southerners took place over transactions, contracts, and property (unrelated to white people’s wills) and asserted black litigants’ ideas of economic equality and independence. But as the decades passed, the ties between former slaves and former masters became more distant. By the end of the nineteenth century and the beginning of the twentieth century, segregation and disfranchisement had become entrenched throughout the South. As a result, in the first two decades of the twentieth century, the types of civil cases black southerners could litigate became even more limited. The vast majority of cases now involved cases of personal injury or fraud in which black southerners had to emphasize their ignorance and vulnerability to gain white support for their cases. Beginning in the 1920s, the types of cases that black southerners could litigate broadened once again. Between 1921 and 1950, more and more seemingly everyday kinds of suits over personal injury, property, contracts, and wills began to include challenges to the racial status quo.32
Along with litigating the kinds of cases that were acceptable to whites at different periods of southern history, the black litigants whose cases would make it to appellate courts frequently sought to make their civil suits as appealing to white juries and judges as possible. Although such pragmatic decisions enabled their cases to be heard, they narrowed the range of arguments and cases and at times reinforced white supremacy. Having a white lawyer was key to making their civil cases acceptable. Black litigants had white attorneys in almost every civil suit between white and black litigants that made it to an appellate court. Often these lawyers were prominent men in their communities. Isham Hodge’s attorney, 40-year-old Neil Angus Sinclair, came from a respected local family and served as the state senator from Cumberland County the year he tried Hodge’s case before the appeals court. Sinclair was well known for his oratorical skills, which he put to use in the courtroom and in political speeches around the state.33
(p.11) During the lower-court trial, black litigants worked with their lawyers to shape their testimony and their case to appeal to white jurors and judges. In the decades immediately after the Civil War, this often meant emphasizing their ties with local whites, including the family of their former masters, and finding white witnesses to testify in their favor. As they testified, black litigants and witnesses also frequently shaped their words to conform with white jury members’ and judges’ ideas about race. At times, they asserted that they had acted the way they had because they had trusted whites. Isham Hodge, for one, testified that when the white doctor and another white man had read over the papers for him to sign, they “didn’t say I was deeding away the land.” Particularly in the first two decades of the twentieth century, declarations of ignorance and illiteracy by black litigants and their witnesses helped to give black southerners their day in court. Isham Hodge testified to the court, for instance, that when the white doctor had brought papers to his farm for him to sign, “a heap of it I didn’t understand.”34 But even when they played to white expectations of black ignorance, some black litigants used legal knowledge to improve their cases’ chances of being heard and to bolster their legal claims.
In the end, these cases continued in southern courts in large part because of a stark disjuncture in how many black and white litigants viewed them. Because black litigants saw their participation in civil cases as having life-altering economic consequences, they usually did all they could to win their suits. In contrast, white judges and jury members typically did not see the civil cases that black litigants were especially successful at litigating as dangerous or having the power to upset the status quo. To them, many of these cases appeared to support white supremacy. In their view, cases over white men’s bequests to their former slaves and employees upheld white men’s property rights. An occasional suit over a labor contract made little difference in the face of widespread violence and harsh economic realities within the southern labor system and could be used as evidence of legal elites’ paternalism and benevolence toward poor black laborers. Suits over fraud and personal injury in which black litigants testified about losing their land or receiving grievous injuries reinforced many of whites’ own ideas about black southerners’ ignorance and dependence on them. This disconnect played a crucial role in allowing black litigants to continue to participate in—and sometimes win—civil cases, even after they had lost power in other areas of government in the South. By carefully calibrating their testimony and arguments, black litigants and their white lawyers played an important part in perpetuating this disjuncture.
The black individuals who held onto hope that the courts might change their lives for the better and the white judges and jury members who saw the courts as upholding the system of white supremacy both had valid points. On the one (p.12) hand, white southerners were all too correct in their realization that these civil cases had enormous limitations. Even in states with majority black populations, these civil cases made up 1 percent or less of the total civil and criminal appeals during this period.35 When black men and women could litigate civil suits, they almost always had to use white lawyers and make their testimony and claims in a way that white southerners found acceptable. By presenting themselves as vulnerable and ignorant in these cases, black litigants reinforced many white stereotypes about their race. The decisions themselves often reinforced the ideas of inequality manifested in white supremacy. In the opinion in one of Isham Hodge’s 1905 cases, for instance, the justice began by noting the vast difference in knowledge between the two litigants. “The plaintiff was an illiterate colored man,” he explained, while the white defendant was “an educated man and a physician.”36 These civil cases also exacted costs from black participants. During courtroom battles, black men and women at times found their sexual histories aired, their reputations questioned, and their bodies publicly exhibited.
The very dependence on precedents and formal procedures that allowed black litigants to sometimes prevail in civil suits gave the courts a misleading guise of impartiality. This lent a veneer of legality to a system based at its core on white supremacy. An apparently objective court was a powerful tool of social control: If ordinary citizens believed they might be able to gain justice in the courts, they might not turn to extralegal measures or take part in social unrest.37 Because these cases made up only a small proportion of the overall cases heard by southern appeal courts, the benefits of allowing such cases to gain favorable decisions may have outweighed the losses to individual whites.38
In cases that had real potential to affect southern society, black southerners struggled to have their cases heard throughout much of this period or habitually ended up on the losing side. As a result, during most of the period between 1865 and 1950, black men and women were able to litigate only a small number of civil cases in the eight state appellate courts examined that directly challenged racial discrimination. When they could litigate such cases, they won them only 36 percent of the time across this period.39 Criminal cases involving black defendants, on the other hand, seem to have come before southern state supreme courts more often than civil cases with black litigants. In the state supreme courts of Alabama and Georgia between 1865 and 1950, criminal cases made up two-thirds of suits involving African Americans, while civil suits accounted for one-third of black litigants’ suits.40 This was far higher than the proportion of criminal cases in state supreme courts as a whole.41 But in appellate criminal cases, black defendants ordinarily received significantly less favorable decisions than in appellate civil cases involving black and white litigants. Between 1865 and 1950, black litigants won 59 percent of their civil cases on appeal in the eight state supreme courts examined, but only 38 percent of their criminal (p.13) cases before the supreme courts of Georgia and Alabama.42 For certain kinds of crimes, such as the rape of a white woman, the reversal rate for black defendants was even lower.43 Moreover, in many of the criminal cases in which the higher court overturned the sentence, their cases were sent back to the lower court for a retrial, where in many cases they may have still received a hefty sentence.
The differing success in civil and criminal appellate cases was affected by trial court outcomes and who appealed. But these numbers also reflect that whereas black litigants’ civil cases often seemed unthreatening, white southerners had long thought of African Americans as naturally inclined toward crime and saw criminal law as one of the few tools they had to control such tendencies.44 The criminal justice system also played an outsized role in regulating the southern labor market. Laws that criminalized leaving before completing a labor contract, for instance, gave whites considerable control over black workers. Furthermore, black convicts made huge sums of money for southern states and local law enforcement, who sold their labor to private corporations and individuals for profit. As a result, black southerners often received vastly unequal justice in criminal cases, and the number of black convicts in southern prisons soared.45
Yet black southerners had valid reasons to turn to the courts in civil actions, even after losing the vote and seeing segregation written into law. After 1890, the courts were often more accessible to oppressed groups in the American South than other branches of government. In large part, this was because whites did not view the legal system, stacked with white judges, lawyers, and juries, as capable of upsetting the status quo. As a result, a black litigant was much less threatening than a black voter. The structure of the legal system itself also played a part in the courts’ accessibility. Southern judges were more insulated from politics than popularly elected politicians. In some cases, they were appointed by the legislature or governor. Even elected judges rarely had to run in competitive elections in the South, and their terms often lasted a decade or more. The American legal system’s reliance on precedent—the decisions of the past—could work in black litigants’ favor, too. In civil cases that did not have the potential to shake up society, judges often decided cases involving African Americans just as they decided the other suits that came before them—relying on precedent and the merits of the case as well as their own personal opinions of justice. Even in jury trials, judges relied on these factors as they gave instructions to the jury.46
Thus, southern courts had some insulation from the changes that set in around the South during and after Reconstruction. Even as Democrats regained political power, the kinds of cases litigated by African Americans remained much the same. Only at the end of the nineteenth century, when it became nearly impossible for most black men in the South to vote, did the tenor of court cases involving black and white southerners dramatically change. Even then, civil cases involving black people continued and black litigants continued to win; only the (p.14) types of cases and content of the testimony shifted. Clearly, the legal system did not operate completely in tandem with the politics of its time. Yet neither did it function entirely outside of politics; the black loss of the vote manifested itself in every trial heard before its courts.
Despite their limitations and costs, black southerners’ suits had important economic and social consequences for the individuals involved and influenced other people who observed or read about them. Throughout their legal battles, black and white southerners worked out their new relations with each other. When black litigants won, direct actions followed, as they took possession of property, obtained a legacy promised in a will, regained custody of a child, or obtained damages. Even when black litigants lost, they had gained legal knowledge, exercised their rights as citizens, and stood up to local whites. Other black people in the community also recognized their own legal power as they watched and read about their black neighbors and acquaintances gaining favorable verdicts against local whites.
The case of Isham Hodge realized some of African Americans’ hopes in the legal system. The two suits between Isham Hodge and Jim Woodward and W. L. Hudson—one brought by the white doctor and the other by the black landowners—were heard by a Cumberland County court in the spring of 1905 in Fayetteville, a midsize city in central North Carolina.47 Although the county was almost half black, none of the jurors seem to have been African American. Black jurors were very occasionally called to juries in North Carolina in 1900, but, as one North Carolina court clerk noted, only rarely, “as talisman.”48 The outcome of the suit, then, would be decided by whites in a state where black men no longer had political power.
In a confusing move, juries decided in favor of the plaintiffs in both the white doctor’s suit and in the black landowners’ suit—deciding that the black litigants owed the white doctor $5 in rent and that the deed to the land on which the white litigant based his claim for rent had been fraudulently obtained and was invalid. Many members of the community likely heard about the case. The Fayetteville Weekly Observer devoted two paragraphs to the white doctor’s suit, noting that the trial had “consumed the morning and afternoon sessions” of the local court. The newspaper noted, too, the race of the black defendants, and the fact that the white plaintiff and his lawyers were from another county. “Though the amount is small,” the newspaper concluded, “much law is involved.”49
Both cases were then appealed to the state’s highest court, the Supreme Court of North Carolina. Located in an imposing courthouse in the state capital of Raleigh, the state supreme court was made up of five justices, who were elected every 8 years.50 These white justices validated Woodward’s hope that some fairness could be obtained through the legal system, as they dismissed the white doctor’s claim to any rent and canceled the deed in which Isham Hodge had (p.15) signed over his land to Hudson. Justice C. J. Clark explained in the opinion canceling the deed that “it appears from the defendant’s evidence that he paid the plaintiff nothing.” The white jury’s decision for the black plaintiff also played a part in swaying the state justice. To support his decision, Clark cited the jury’s finding in the lower-court trial that “the deed from plaintiff to the defendant was procured by the fraudulent misrepresentation of the defendant.” Several newspapers around the state briefly noted the outcome of the cases.51
In the end, Isham Hodge’s family would keep their land—although its ownership would remain embattled. Five years later, a 70-year-old and reportedly somewhat senile Isham Hodge would sell what he believed to be 10 acres of his land for $75, only to discover that the white buyer had misled him and the deed conveyed all 76 and 1/2 acres of his property. After his death, his heirs would turn to the state’s highest court in 1914 to defend their claim against this fraudulent deed. As in 1905, they would prove successful in preserving their property rights through the courts.52
In addition to mattering to the people involved, these suits have important implications for African American history and the history of the US South. Court battles involving African Americans have often been seen as the battleground of elite civil rights lawyers, far removed from everyday people’s lives.53 These cases, however, showcase the central role that the courts played in many ordinary African Americans’ lives and their active involvement in initiating civil suits and testifying in trials against local whites.
These cases also reimagine African Americans’ ability to work within a white-controlled institution at a time when they lived under tremendous restrictions. In the past, scholars have largely dismissed African Americans’ ability to participate meaningfully in any government institutions in the Jim Crow South.54 This book shows that African Americans’ participation in the southern legal system—limited as it was—was one exception to their larger inability to engage with white Southern institutions. African Americans negotiated the justice system by recognizing the interests of the people wielding power and framing their claims to appeal to such parties.
African Americans’ civil litigation also connects earlier struggles for rights in the US South with later twentieth-century battles over rights. In the traditional narrative, black southerners worked within politics and the courts until the end of the nineteenth century, then largely turned inward to their own communities and began to move to the North or West before mobilizing once again in the mid-twentieth century. During the past decades, however, historians and legal scholars have begun to show a struggle for legal, political, and economic rights in the South in the 1920s, 1930s, and 1940s.55 Recently, scholars have also started to unearth African Americans’ challenges to the status quo in the (p.16) South at the end of the nineteenth and beginning of the twentieth centuries.56 Taking black southerners’ participation in civil cases into account further challenges a narrative in which the struggle for rights in the South stops and starts. Every case litigated by a black person against a white man or woman in a southern court had implications for African Americans’ legal rights. Many cases also claimed African Americans’ economic rights—the right to gain and hold on to property, the right to make contracts without being defrauded, and the right not to pay taxes for schools that their children were not allowed to attend. African Americans’ civil litigation, then, shows a continuous grassroots struggle by individuals for rights in the South, from the Civil War to the civil rights movement.
Primarily litigated by individuals without support from any larger organizations, these cases contrast sharply with the group-based actions, such as boycotts, marches, voting registration drives, and civil rights test cases, that receive the lion’s share of attention in the struggle for African American rights. This book builds on histories documenting both the opportunities and limitations of individual action.57 Because these cases were litigated by individuals and ordinarily concerned only their own families, they were relatively unthreatening and could proceed when collective action often failed. In addition, such cases arguably involved ordinary African Americans more than test cases orchestrated by elites. At the same time, the plaintiffs were constrained by limited resources, lack of coordination, and narrower claims.
These civil cases also provide insight into a disadvantaged group’s complicated relationship with the courts. In particular, they help clarify why, despite experiencing massive injustice in the criminal justice system, African Americans turned to the courts repeatedly to assert their rights and challenge inequality. As segregation set in at the end of the nineteenth century, black litigants challenged racial segregation in cases such as Plessy v. Ferguson. Multiple national organizations working for racial justice at the end of the nineteenth and beginning of the twentieth centuries, including the Afro-American League, Afro-American Council, and Niagara Movement, used litigation as a strategy to confront discrimination. From the beginning of the twentieth century through the civil rights movement, the National Association for the Advancement of Colored People (NAACP) focused much of its attention on assaulting discrimination through the courts.58 Although criminal cases do little to explain these actions, the civil cases that flowed through southern appellate courts help show why African Americans often sought justice in courts.
These cases illustrate, too, the varied ways in which white supremacy operated in everyday southerners’ lives. Not only could it be manifested as violence and election fraud, but white supremacy could underpin a court’s decision in a black litigant’s favor. White members of the community who had owned slaves and believed fervently in the inequality of people of color could testify in favor (p.17) of black litigants whom they had known for years. Similarly, white lawyers at the height of their profession could take on landless black laborers as clients and represent them well. This complexity does not make the South any less violent or white supremacy any less harsh. Rather, it shows that, even as racial segregation set in, black and white southerners’ lives remained entwined in relationships of unequal power.59
In addition to being a story about the US South and African American history, this is a story about law. Black litigants’ stories have not been fully told because of the ways legal historians have defined their sources. For many years, scholars of legal history looked largely at the laws enacted by legislatures and at judges’ decisions in appellate cases, leaving aside the litigants themselves and the many other participants in court cases.60 But in recent years, with the rise of cultural and social history, there has been a sea change in how scholars examine the law. Many legal historians are now concerned with how the law played out in people’s lives. Legal historians are especially aware that the law written down in statutes and proclaimed in higher-court legal opinions was not necessarily the law carried out on the ground in particular localities. The new cultural legal history also draws on ideas of performance and uses techniques of close reading when analyzing courtroom testimony.61 In many instances, these works hone in on one case or a small number of cases to allow historians to examine the events in their larger societal context and analyze the multiple players within the courtroom.62
My work draws from both these older and newer approaches. Like scholars of previous generations, to see patterns across the South and across time, I examine a broad range of cases that reached appellate courts across multiple states. Unlike earlier legal scholars though, I am not just concerned with judges’ opinions, but also pay attention to the lower-court trial records of these cases and the actions and words of the litigants, witnesses, jury members and lawyers, and the judges involved in these cases. When discussing key cases, I firmly place the trial participants in specific locations and within the politics and ideologies of their time. My work also examines the performative aspect of African Americans’ testimony and considers why black litigants and witnesses framed their testimony as they did.63
The book begins by tracing how African Americans accessed southern courts during and in the wake of the Civil War and how they held on to some of these rights even after Reconstruction ended. Chapter 2 follows the legal journey of African Americans who succeeded in litigating cases against whites from the end of the Civil War to the end of the nineteenth century. I show how they hired lawyers, testified before crowded courtrooms, and appealed their suits to their states’ highest courts. But to truly understand African Americans’ participation in southern courts during the decades after the Civil War, we must (p.18) look at the kinds of civil cases they were most frequently able to litigate against whites. Chapter 3 examines suits involving white men’s wills, focusing on cases in which masters had set aside money in their wills for their slaves to be emancipated and sent to Liberia upon their owners’ death. After the war, the chapter reveals, former slaves used these wills to go to court against their former masters’ heirs over the funds. From Reconstruction to the end of the nineteenth century, African Americans throughout the South also litigated cases in state supreme courts that asserted their right to participate in the postwar economy on an independent, equal basis. Chapter 4 investigates suits in which black litigants disputed transactions of land or livestock that they had conducted with white southerners, battled over contracts, and demanded fair payment for their work.
A significant shift in black southerners’ litigation occurred not as Reconstruction ended in state after state, but at the close of the nineteenth century. Part II examines African Americans’ civil cases after this pivotal shift. Chapter 5 shows how the types of civil cases African Americans were able to litigate in southern courts narrowed as black men largely lost the right to vote in the South and segregation was increasingly written into law. In the first two decades of the twentieth century, for instance, almost three-fourths of their appellate civil suits involved particularly egregious cases of fraud in property dealings or personal injury claims and highlighted black people in dependent, vulnerable positions. Chapter 6 examines the fraud cases black southerners litigated, accusing whites of deception in property dealings. In case after case, black litigants testified about their diligence in attempting to understand the contract, their own ignorance and vulnerability to deception, and their trust in the defendant. As such testimony appealed to white judges’ and jury members’ ideas of racial superiority and paternalism, as well as the legal claims needed to prove fraud, their cases often proved successful. Chapter 7 explores their cases involving personal injury, noting that, although the racial discrimination and segregation of the Jim Crow South often influenced their cases, these black litigants largely sought compensation only for their own injuries, rather than challenging discriminatory practices themselves. During their trials, they shaped their testimony to meet the legal basis of personal injury, emphasizing their own caution at the time of the accident, their chronic pain and weakness from the injury, and the loss of income they suffered. As in fraud cases, their claims of weakness and vulnerability reinforced white judges’ and jury members’ ideas about racial inequality.
Finally, Chapter 8 traces African Americans’ continuing civil litigation in southern courts from 1921 to 1950. During these decades, the vast majority of cases still involved seemingly prosaic claims of personal injury, property, and insurance. But beginning in the 1920s, African Americans began to litigate a wider range of civil cases against whites in southern state supreme courts. They (p.19) were no longer forced to rely so heavily on stereotypes and claims of ignorance and vulnerability to win cases. Moreover, during this period, black litigants’ seemingly ordinary appellate civil cases increasingly protested intimidation and violence against African Americans or made claims for larger groups beyond just the individuals litigating the suit. A few cases even directly challenged discriminatory racial regimes, employing the techniques they had used to win other kinds of civil cases over the past decades. Although some of these cases were orchestrated by racial justice organizations like the NAACP, many others were brought by individuals. The chapter concludes by linking these cases with the NAACP’s legal victories. Just like the civil litigation during the century preceding it, the civil rights movement’s legal action affirmed some African Americans’ hope in the courts as a path to justice while remaining limited in many ways.
(1.) Isham Hodge appears on the 1870, 1880, 1900, and 1910 censuses in Black River Township, Cumberland County, where he is listed as a “farmer.” 1870 United States Federal Census; 1880 United States Federal Census; 1900 United States Federal Census; 1910 United States Federal Census, all published online by Ancestry, Provo, Utah. According to Roy Parker, “In 1884, 1,219 blacks and 1,794 whites [in Cumberland County] paid poll taxes.” In contrast, he writes, “by 1916 only 631 whites and 205 blacks paid poll taxes.” Roy Parker Jr., Cumberland County: A Brief History (Raleigh, NC: Division of Archives and History, 1990), 86–87. In 1898 and again in 1900, white Democratic politicians in North Carolina ran on campaigns of limiting political participation to whites. For more on political campaigns in Cumberland County and in North Carolina as a whole in 1898 and 1900, see also Parker, Cumberland County, 86–87; J. Morgan Kousser, The Shaping of Southern Politics: Suffrage Restriction and the Establishment of the One-Party South, 1880–1910 (New Haven, CT: Yale University Press, 1974), 182–195, 239. See also James L. Hunt, “Disfranchisement,” in William S. Powell, ed., Encyclopedia of North Carolina (Chapel Hill: University of North Carolina Press, 2006), http://ncpedia.org/disfranchisement.
(2.) According to a 1905 newspaper account of the superior court proceedings, William L. Hudson lived in Dunn, North Carolina, in Harnett County. Harnett County borders Cumberland County on the north. Hudson is listed on the 1900 US Census as a white, divorced, 52-year-old physician living in Harnett County. 1900 United States Federal Census, published online by Ancestry, Provo, Utah; Hudson v. Hodge, 139 N.C. 308 (1905); Hodge v. Hudson, 139 N.C. 358 (1905); “Superior Court Notes: Important Decisions by Judge Ferguson,” Fayetteville Weekly Observer (Fayetteville, NC), April 6, 1905, 1. When I refer to cases in the notes in this book, I am referring to the case file in an archive as well as to the record of the case in the court reporter (with a few exceptions when the original case file was not available—in that case I am referring only to the published account in a court reporter). For reasons of space, I have not included the specific archives each of the cases is located in, but a list of the archives containing the state supreme court case files is included in the Bibliography under “Manuscripts.” For more on my methodology and sources, see Appendix A: Notes on Methodology, Sources, and Findings.
(3.) Hudson v. Hodge, 139 N.C. 308 (1905); Hodge v. Hudson, 139 N.C. 358 (1905). For more on Hodge’s lawyer, Neil Angus Sinclair, see R. D. W. Connor, History of North Carolina, vol. 6 (Chicago: Lewis Publishing Co., 1919), 70–72.
(4.) For instance, my research found that 36 percent of cases between white and black litigants in the eight southern supreme courts examined from 1865 to 1899 involved wills and estates—almost always over a bequest left by a white person to an African American man or woman (77 of 212 cases between black and white southerners in the eight southern appeals courts examined). (p.234) In contrast, cases over inheritance and estates comprised approximately 6 percent of appeals suits litigated by Americans between 1870 and 1900, according to a sampling of cases from sixteen state supreme courts throughout the continental United States. Through random sampling, the authors of a study analyzed almost 6,000 appellate cases in sixteen state supreme courts between 1870 and 1970 and found 118 cases involving wills and estates between 1870 and 1900 out of 1,872 cases (6 percent of cases) in the state supreme courts examined during this period. For the methodology of the study of the case load of the sixteen state supreme courts and an analysis of the kinds of cases litigated in the sixteen representative state supreme courts across the United States between 1870 and 1970, see Robert A. Kagan, Bliss Cartwright, Lawrence M. Friedman, and Stanton Wheeler, “The Business of State Supreme Courts, 1870–1970,” Stanford Law Review 30, no.1 (1977): 121–156, particularly the tables broken down by type of case and period on pp.133–135. To compare other types of cases, see Tables B.6 and B.32 (tables that are prefaced with “B” are given in Appendix B).
(5.) When the eight states are examined together, black litigants won 59 percent of their civil cases against whites in the eight southern appellate courts examined between 1865 and 1950 (582 of 980 cases). Despite variations across the eight states and shifts as society changed, this pattern held true in every state examined in the South between 1865 and 1950. When one averages the outcomes of appellate civil cases between white and black litigants in each state across the entire period from 1865 to 1950, black litigants won over 50 percent of the time in all eight southern states examined. African Americans’ civil suits against whites in state supreme courts were slightly more successful in certain states than others. Between 1865 and 1950, black litigants won most often in Georgia (68 of 104 cases or 65 percent of the time), North Carolina (79 of 124 cases or 64 percent), Arkansas (60 of 96 cases or 63 percent), and Virginia (46 of 74 cases or 62 percent). Black litigants won slightly less often in Tennessee (39 of 66 cases or 59 percent), Mississippi (80 of 135 cases or 59 percent), Alabama (107 of 184 cases or 58 percent) and Kentucky (103 of 197 cases or 52 percent). See Table B.20. To view this in another way, of these 582 cases, in 376 suits the appellate court was upholding the decision of the trial court (65 percent of the time), and in 150 cases the trial court was reversing the lower court (26 percent of the time). When all eight states are averaged together, black litigants also won more than 50 percent of their civil appellate cases against whites in each of the four periods examined. During Reconstruction (1865 to 1877), black litigants won 69 of 108 such cases (64 percent of suits). Their rate of success then dropped slightly during the two decades after Reconstruction (1878 to 1899), when black litigants won 56 of 104 such cases (54 percent of suits). Then, during the first two decades of the twentieth century (1900 to 1920), black litigants won 138 of 220 such cases (63 percent of suits). Finally, between 1921 and 1950, black litigants won 319 of 548 such cases (58 percent of suits). For more on this data, see Tables B.16, B.18, B.19, B.20, B.22, and B.23. The data on these cases are based on a thorough examination of the appellate cases between black and white litigants in the state supreme courts of the following eight states: Alabama, Arkansas, Kentucky, Georgia, Mississippi, North Carolina, Tennessee, and Virginia. After finding the cases on LexisNexis, I then examined all of the surviving original transcripts of the suits. For more on my sources and method, see Appendix A: Notes on Methodology, Sources, and Findings.
(6.) Between 1865 and 1950 in the civil suits examined, state supreme courts reversed 20 percent of cases to decide in favor of the black litigants, whereas they reversed only 15 percent of cases to favor the white litigants. Similarly, in upholding lower-court decisions, the southern state supreme courts examined were more likely to uphold cases in which the lower court had decided in favor of black litigants (in 38 percent of suits) than to uphold lower court decisions that favored white litigants (in 19 percent of suits). See Table B.23. As for how representative these suits were of overall reversal rates in the nation, the authors of a study that examined a sampling of cases every five years in sixteen representative state supreme courts throughout the United States between 1870 and 1970 found that the courts affirmed approximately 61.5 percent of suits and reversed approximately 38.5 percent of suits. See “Courting Reversal: The Supervisory Role of State Supreme Courts,” The Yale Law Journal 87, no.6 (1978): 1198 and Table B.33. As Table B.22 demonstrates, the suits between black and white southerners that I examined in eight southern appellate courts between 1865 and 1950 had a similar reversal rate of 35 percent (342 of 980 cases were reversed) and a similar 57 percent (p.235) rate of lower-court decisions being upheld (563 of 980 suits were upheld). For more on these data, see Tables B.16, B.18, B.19, B.20, B.22, and B.23.
(7.) Throughout this period of 1865 to 1950, in an average of 56 percent of civil cases between black and white litigants that reached a state supreme court, the lower court had decided in favor of the black litigant (552 of 980 cases). They lost their initial trials in 40 percent of civil cases between black and white litigants that reached a state supreme court between 1865 and 1950 (388 of 980 cases). In the remaining cases, the results of the initial trial were split or unclear. See Table B.16.
(8.) In this book, I seek to examine the lives of black and white southerners together, instead of separately. In part, I was inspired by Nell Irvin Painter’s call to do this in Southern History Across the Color Line. See Nell Irvin Painter, Southern History Across the Color Line (Chapel Hill: University of North Carolina Press, 2002), 1–4. Similarly, Howard Rabinowitz and Fitzhugh Brundage have called for historians to examine “the fluidity” in the interactions between black and white southerners during the Jim Crow era. See W. Fitzhugh Brundage, Lynching in the New South: Georgia and Virginia, 1880–1930 (Urbana: University of Illinois Press, 1993), 13; Howard N. Rabinowitz, “More than the Woodward Thesis: Assessing the Strange Career of Jim Crow,” Journal of American History 75 (Dec. 1988): 848. For examples of other historians also examining the lives of black and white southerners together, see Peggy G. Hargis, “For the Love of Place: Paternalism and Patronage in the Georgia Lowcountry, 1865–1898,” The Journal of Southern History 70, no.4 (2004): 825–864; Erskine Clarke, Dwelling Place: A Plantation Epic (New Haven, CT: Yale University Press, 2005).
(9.) See, for instance, David Oshinsky, “Worse Than Slavery”: Parchman Farm and the Ordeal of Jim Crow Justice (New York: Simon & Schuster, 1996); Christopher Waldrep, Roots of Disorder: Race and Criminal Justice in the American South (Urbana: University of Illinois Press, 1998); Christopher Waldrep and Donald G. Nieman, eds., Local Matters: Race, Crime, and Justice in the Nineteenth-Century South (Athens: University of Georgia Press, 2001); Randall Kennedy, Race, Crime, and the Law (New York: Vintage Books, 1997); Edward L. Ayers, Vengeance & Justice: Crime and Punishment in the 19th-Century American South (New York: Oxford University Press, 1984); Douglas A. Blackmon, Slavery By Another Name (New York: Doubleday, 2008); Neil R. McMillen, Dark Journey: Black Mississippians in the Age of Jim Crow (Urbana: University of Illinois Press, 1989); Talitha A. LeFlouria, Chained in Silence: Black Women and Convict Labor in the New South (Chapel Hill: University of North Carolina Press, 2015); Sarah Haley, No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity (Chapel Hill: University of North Carolina Press, 2016); and Martha A. Myers, Race, Labor & Punishment in the New South (Columbus: Ohio State University Press, 1998).
(10.) No other historians have conducted an in-depth, thorough examination of all kinds of civil cases involving African American litigants in multiple postwar southern state supreme courts during this period. For examples of studies that include an examination of civil cases in the postwar South in which race was in the forefront, see Martha Hodes, White Women, Black Men: Illicit Sex in the Nineteenth-Century South (New Haven, CT: Yale University Press, 1997); Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York: Oxford University Press, 2009); Michael A. Elliott, “Telling the Difference: Nineteenth-Century Legal Narratives of Racial Taxonomy,” Law & Social Inquiry 24, no.3 (1999): 611–636; Ariela J. Gross, What Blood Won’t Tell: A History of Race on Trial in America (Cambridge, MA: Harvard University Press, 2008); Julie Novkov, Racial Union: Law, Intimacy, and the White State in Alabama, 1865–1954 (Ann Arbor: University of Michigan Press, 2008); J. Morgan Kousser, Dead End: The Development of Nineteenth-Century Litigation on Racial Discrimination in Schools: An Inaugural Lecture Delivered Before the University of Oxford on 28 February 1985 (Oxford: Clarendon, 1986); Mark V. Tushnet, The NAACP’s Legal Strategy Against Segregated Education, 1925–1950 (Chapel Hill: University of North Carolina Press, 1987); Barbara Welke, “When All the Women Were White, and All the Blacks Were Men: Gender, Class, Race, and the Road to Plessy, 1855–1914,” Law and History Review 13 (1995): 261–316; Susan D. Carle, Defining the Struggle: National Organizing for Racial Justice, 1880–1915 (Oxford: Oxford University Press, 2013); and Shawn Leigh Alexander, An Army of Lions: The Civil Rights Struggle Before the NAACP (Philadelphia: University of Pennsylvania Press, 2012). (p.236) Other legal scholars have studied black men’s and women’s participation in all kinds of civil cases during this period, but their analysis has generally not been systematic across multiple states, and it has often been limited to judicial opinions or a small sample of local cases. For example, Samuel Pincus also emphasizes the importance of looking at all kinds of civil cases, rather than only ones focusing on race, but focuses only on judicial opinions in Virginia. See Samuel N. Pincus, The Virginia Supreme Court, Blacks, and the Law, 1870–1902 (New York: Garland, 1990), xxii–xxiii, xxix. Similarly, Laura Edwards focuses on Reconstruction-era cases in Granville County, North Carolina, in Gendered Strife and Confusion: The Political Culture of Reconstruction (Urbana: University of Illinois Press, 1997). Dylan C. Penningroth is currently researching black people’s encounter with the law and the making of African American legal cultures from the 1830s to the 1960s. See, for instance, his examination of local civil cases between black litigants over divorce in Virginia and Washington DC: Dylan C. Penningroth, “African American Divorce in Virginia and Washington DC, 1865–1930,” Journal of Family History 33, no. 1 (2008): 21–35.
(11.) In his seminal article, “On Agency,” Walter Johnson cautions against focusing too much on resistance, as it can lead historians to fail to notice other aspects of their subjects’ lives. See Walter Johnson, “On Agency,” Journal of Social History 37, no.1 (2003): 113–124. However, even these suits not overtly focused on resisting and challenging the system of white supremacy are not in complete compliance with white southerners. James C. Scott recognizes that “Most of the political life of subordinate groups is to be found neither in the overt collective defiance of powerholders nor in complete hegemonic compliance, but in the vast territory between these two polar opposites.” See James C. Scott, Weapons of the Weak: Everyday Forms of Resistance (New Haven, CT, and London: Yale University Press 1985), 136.
(12.) These conclusions are based on my examination of a sampling of the superior court records of Troup County, Georgia, and Liberty County, Georgia, between 1860 and 1940. See Superior Court Minute Books, Superior Court Records. Troup County, Georgia, 1827–1937, Troup County Archives, LaGrange, Georgia, and Superior Court Minutes, Liberty County, Georgia, 1859–1935, RH 774–778, Microfilm drawer 30, boxes 48–52, Georgia Archives, Morrow, Georgia.
(14.) In Kentucky, for instance, the microfilm index for cases from the 1930s and 1940s was missing and the cases could not be found without it; an archivist noted that no one else seemed to have noticed or requested it since the indexes were first made several decades ago. The original transcripts of the state supreme court cases are generally held in the state archives of each state or in a law library in the state capitol. For a description of where the archival case files for these suits can be found, see the manuscript section of the Bibliography. For more on my research process, see Appendix A: Notes on Methodology, Sources, and Findings.
(15.) Cases that were appealed seem to be more likely to involve large amounts of money, more likely to involve white lawyers and white witnesses, and the legal basis of the cases was likely especially strong. In certain states, at different times, appeals courts were more likely to hear appeals of cases involving certain types of law. Unsuccessful white litigants probably had the resources to appeal cases more often than black litigants, further skewing the results. For examinations of the factors that could lead certain parties to appeal more often than others and skew the representativeness of appeals, see “Courting Reversal,” The Yale Law Journal, 1199, and Marc Galanter, “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” Law & Society Review 9, no.1 (1974): 97–104. Another article points out that in many states certain types of appeals “are preferred by law. Some states provide for direct SSC [state supreme court] review of all capital cases; others provide for direct appeal to the SSC for workmen’s compensation cases; in still another, disputes over taxation received direct review for most of the period” from 1870 to 1970. See Kagan et al., “The Business of State Supreme Courts, 1870–1970,” 154.
(16.) For a discussion and examples of state supreme court civil cases involving black litigants in which the case record did not mention that one of the litigants was black, see Barbara Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920 (Cambridge: Cambridge University Press, 2001), 296. In two of the cases included in my (p.237) dataset the court report did not include the litigants’ race. Instead, I verified through other means that one of the litigants was African American. See Hannon v. Grizzard, 96 N.C. 293 (1887) and O’Hara v. Powell, 80 N.C. 103 (1879). In both cases, a black politician challenged election fraud in their county.
(17.) For more on racial classifications in the courtroom, see Hodes, White Women, Black Men, 96–122; Ariela Gross, What Blood Won’t Tell; and Walter Johnson, “The Slave Trader, the White Slave, and the Politics of Racial Determination in the 1850s,” The Journal of American History 87, no.1 (2000): 13–38.
(18.) Different state supreme courts had varying policies about what constituted grounds for an appeal, which changed over time. At certain times in certain states, appeals courts heard every case that was appealed. Other states, at certain times, allowed only certain errors, such as an error of “law,” to be grounds for an appeal. Generally, though, throughout much of the nineteenth century, US state supreme courts had little choice in the cases that were heard before them. Only when case volumes increased exponentially as state populations grew at the beginning of the twentieth century, did many states in the United States begin to allow their highest courts more discretion in what cases to take. For an examination of how much discretion state supreme courts had in the United States between 1870 and 1970 and the change in this over time, see Kagan, “The Business of State Supreme Courts,” 128–132. The Mississippi Code of 1880, for instance, states that “writs of error as heretofore used are abolished, and all cases, civil and criminal, at law and in chancery, shall be taken to the supreme court by appeal … and shall be dealt with by said court without regard to the manner of removing said cases to such court.” An 1890 legal manual notes that appeals could be made to the Tennessee Supreme Court, “In all cases in which the jurisdiction of the county court is concurrent with the circuit or chancery courts, or in which both parties consent.” For more on appeals to the state supreme courts of Mississippi and Tennessee, see James R. Chalmers, The Probate Law and Practice in the Courts of Mississippi and Tennessee (Rochester, NY: The Lawyers’ Co-Operative Publishing Company, 1890), 401, 407–408. In North Carolina, the state supreme court accepted all cases that were appealed to it from 1810 to 1868. After 1868, the jurisdiction of the Supreme Court of North Carolina was limited to “appeals on matters of law or legal inference.” Cecil J. Hill, When the North Carolina Supreme Court Sat In The Capitol (West Publishing Company, 1984), 10 (quote is from p.10); Kemp P. Battle, “An Address on the History of the Supreme Court Delivered in the Hall of the House of Representatives, February 4th, 1889, At the Request of the members of the Court and Of the Bar, In Commemoration of the First Occupancy By the Court of the New Supreme Court Building, March 5th 1888” (Raleigh, NC: Edwards & Broughton, Printers, 1889), 50–51, compiled in Clark Battle, Supreme Court of North Carolina (Chapel Hill: University of North Carolina, North Carolina Collection). For more on individual state appellate court’s policies about which cases to take at different times, see also John B. Harris, ed., A History of the Supreme Court of Georgia (Macon, Ga.: J. W. Burke:1948), 56; Abram Whitenack Cozart, Georgia Practice Rules as Laid Down by the Supreme Court and Court of Appeals of Georgia (Atlanta, GA: Harrison Company, 1918), 87–94; and Judith Kelleher Schafer, Slavery, the Civil Law, and the Supreme Court of Louisiana (Baton Rouge: Louisiana State University Press, 1994), xi–xii.
(19.) Walter Johnson famously described court cases as “sworn lies given in support of high-stakes legal action” in Soul by Soul: Life Inside the Antebellum Slave Market (Cambridge, MA: Harvard University Press, 1999), 12–13. In addition, in the article, “Inconsistency, Contradiction, and Complete Confusion: The Everyday Life of the Law of Slavery,” Walter Johnson notes: “Laws and legal decisions are documents that erase the trace of ongoing contests with the languages of precedent, resolution, and progress: as guides to the reality they purport to represent, they are unreliable.” See Walter Johnson, “Inconsistency, Contradiction, and Complete Confusion: The Everyday Life of the Law of Slavery,” Law and Social Inquiry 22, no.2 (1997): 430. For a brilliant analysis of the factors in judges’ decisions and the legitimacy that such decisions give to that side of the dispute, see Pierre Bourdieu, “The Force of Law: Toward a Sociology of the Juridical Field,” trans. Richard Terdiman, Hastings Law Journal 38 (July 1987): 827–828, 830–833.
(21.) The 1,377 civil appellate cases in which the case record notes that one of the litigants was black formed approximately 0.62 percent of the total criminal and civil appellate cases in the eight states examined between 1865 and 1950 (1,377 of 223,331 total civil and criminal appellate cases in the state supreme courts examined, or approximately 1 of every 162 cases). This ratio shifted over time. The proportion of appellate civil cases involving black litigants decreased in the two decades after Reconstruction, only to begin to rise again at the beginning of the twentieth century. The proportion changed from 1 in every 163 cases between 1865 and 1877 to an average of 1 in every 303 cases from 1878 to 1899. The proportion then rose again to an average of 1 in every 193 cases between 1900 and 1920, and an average of 1 in every 120 cases between 1921 and 1950. See Table B.1. Certain states also had higher proportions of civil cases with black litigants in their appellate courts. Mississippi had almost triple the number of civil suits involving black litigants than Georgia. While 1 percent of all cases before Mississippi’s highest court from 1865 to 1950 were civil suits involving black litigants, only 0.34 percent of cases, or 1 of every 295 cases, before the Supreme Court of Georgia were civil suits involving African American litigants (see Table B.2). Although the number of appellate civil suits between black and white litigants remained less than 1 percent of all civil and criminal cases in each of the courts examined in the 85 years after the Civil War, the number of appellate cases involving only black litigants was much lower still. Between 1865 and 1950, the number of appellate civil suits between black litigants averaged approximately 0.18 percent, or 1 of every 562 civil and criminal appellate cases in the appeals courts examined. The number of these suits in the eight appellate courts examined grew somewhat over time, from an average of two such suits a year (out of all eight courts) during the period of Reconstruction, to an average of approximately seven such cases a year during the period between 1921 and 1950.
(22.) One study of US state supreme courts analyzed 5,904 cases across sixteen representative states between 1870 and 1970 and found that civil cases made up 86 percent of overall appellate court business, whereas criminal cases made up 14 percent of court business. See Table B.32 and Kagan, “The Business of State Supreme Courts, 1870–1970,” 133–135. While African Americans litigated more criminal appellate cases than civil appellate cases in the two states where I examined criminal cases, they were still vastly outnumbered by whites’ civil suits. In the state supreme courts of Alabama and Georgia between 1865 and 1950, criminal cases made up 67 percent of suits involving African Americans whereas civil suits accounted for 33 percent of black litigants’ suits. See Table B.26.
(23.) Twenty-nine percent of these civil appeals cases involving African American litigants (397 of 1,377 suits) were litigated between two or more black litigants, with no white litigants participating. For data on the proportion of civil appellate cases between black litigants versus the proportion of civil appellate cases between black and white litigants, see Table B.3. For data on the number of appellate civil cases between two or more black litigants by state and period, see Table B.4.
(24.) By far the greatest number of appellate civil suits between black litigants were disputes over wills and estates. Over the period from 1865 to 1950, 40 percent of their suits (158 of 397) involved wills and estates. In addition, disputes over property formed 21 percent of these appellate civil cases between black litigants (84 of 397), reflecting the importance of property ownership to black southerners throughout much of this period and southern courts’ continuing respect for property rights. Ten percent of suits also involved black churches (38 of 397), and 9 percent of suits (37 of 397) involved black fraternal organizations. Finally, 8 percent of their suits involved divorce or custody (30 of 397), 4 percent of suits involved insurance (15 of 397), 3.5 percent of suits involved fraud (14 of 397), 1 percent of suits involved debt, 1 percent involved transactions and contracts, and 1 percent involved personal injury. For more data on the types of civil suits between black litigants that reached the state supreme courts examined, see Table B.5. For an examination of cases between black litigants over divorce in Virginia and Washington, DC, between 1865 and 1930, see Penningroth, “African American Divorce in Virginia and Washington D.C., 1865–1930,” 21–35.
(25.) (p.239) According to the 1860 US Census, 437,404 “colored” people lived in Mississippi out of a total state population of 791,305. Joseph C. G. Kennedy, Population of The United States in 1860, Compiled from the Original Returns of The Eighth Census (Washington, DC: Government Printing Office, 1864), iv, xiii. According to the 1900 census, there were 907,630 people classified as “Negro” in Mississippi and 641,200 people classified as “white” in Mississippi in 1900. The 1900 census also reported several states in which the black population came near to the population of “white” men and women, including Alabama, (1,001,152 “white” residents and 827,307 “Negro” residents) and Georgia (1,181,294 “white” residents and 1,034,813 “Negro” residents). States in which whites vastly outnumbered African Americans in the 1900 census included Arkansas (944,580 “white” residents and 366,856 “Negro” residents) and Kentucky (1,862,309 “white” residents and 284,756 “Negro” residents). For a population breakdown by state and race in 1900, see “Table 41: Population Classified by Sex and Race: 1900,” Abstract of The Twelfth Census of the United States 1900 (Washington, DC: US Government Printing Office, 1902), 43.
(26.) Georgia instituted a cumulative poll tax in 1877 that disfranchised many African American voters (as well as many white voters). For more on disfranchisement in Georgia and North Carolina, see Kousser, The Shaping of Southern Politics, 65–68, 182–195, 239.
(27.) Seventy-two of 108 civil cases in the eight appellate courts examined between 1865 and 1877 involved former slaves and their former masters or their former masters’ heirs (67 percent). Thirty-six of 104 such cases between 1878 and 1899 involved former slaves and their former masters or their former masters’ heirs (35 percent). For more data on how many of these cases involved former masters and their former slaves or the heirs of former masters and former slaves and how this changed over time, see Table B.11.
(28.) Between 1865 and 1950, black women were at least one of the litigants in 404 of 980 civil suits in the eight appellate courts examined (41 percent of suits). For a breakdown of the proportion of female litigants in these civil suits by period, see Table B.12. Black women’s involvement in almost half of these suits is a stark contrast to their involvement in criminal cases with black defendants during this period. Of 561 appellate criminal cases with black defendants in Alabama and Georgia supreme courts from 1865 to 1950, only 29 cases (5 percent of suits) included black female defendants and 95 percent of cases (532 cases) had black male defendants. For data on the gender of black defendants in criminal cases in these two appellate courts, see Table B.29.
(29.) Sweeney v. City of Louisville, 309 Ky. 465 (1949).
(30.) Hudson v. Hodge, 139 N.C. 308 (1905); Hodge v. Hudson, 139 N.C. 358 (1905).
(31.) Black litigants had more success bringing cases over discrimination before state courts in the Midwest, where the Republican Party still needed black votes to win elections. For an examination of African Americans’ success in school integration cases in the nineteenth century, see J. Morgan Kousser, “Why Were There So Many Legal Cases on School Integration in Nineteenth-Century America?,” unpublished paper prepared for delivery at the Social Science History Association Convention, Washington DC, October 1997, and Kousser, Dead End, 5–12, 59.
(32.) A limited number of cases between 1921 and 1950 also continued to directly demand equal rights. Despite the slightly lower percentage of cases focusing on racial discrimination from 1921 to 1950, compared with the period between 1878 and 1920, a larger actual number of cases directly involving racial injustice were heard by southern appeals courts during the period of 1921–1950, and many other cases not explicitly revolving around issues of equal rights began to bring issues of racial equality into the courtroom. This latter phenomenon was also occurring in criminal cases between 1921 and 1950. Although none of the criminal appeals cases in the Alabama or Georgia state supreme courts during this time explicitly centered around arrests for challenges to equal rights, 24 of the 206 other kinds of criminal cases (12 percent of cases) included challenges to the racial status quo, including alleging jury discrimination or unjust treatment in the legal system because of their race. For data on the numbers of civil cases explicitly demanding racial justice in these state supreme courts during different periods, see Tables B.7, B.8, B.9, and B.10.
(p.240) (34.) Similarly, in a later, 1914 case over Isham Hodge’s land, too, Jim Woodward testified that in his last years, Isham Hodge’s “mind would come and go” and “His wife acted sorter queer to me. She did not act like a bright woman.” Hudson v. Hodge, 139 N.C. 308 (1905); Hodge v. Hudson, 139 N.C. 358 (1905); Hodges v. Wilson, 165 N.C. 323 (1914).
(36.) Hodge v. Hudson, 139 N.C. 358 (1905).
(37.) See, for instance, “Letter to Bv’t Maj. O. H. Howard from Georgia Freedmen’s Bureau Agent G. Ballou, October 1868,” in LaWanda Cox and John H. Cox, eds., Reconstruction, the Negro, and the New South (New York: Harper & Row, 1973), 275–278.
(39.) Cases directly challenging racial discrimination, for instance, made up approximately 7 percent of civil appellate cases between black and white litigants between 1865 and 1950. I found 69 civil appellate cases centering around issues of racial discrimination between 1865 and 1950, of a total of 980 cases. Between 1865 and 1877, 1 percent of cases involved such issues; between 1878 and 1899, 12 percent of cases involved such issues; between 1900 and 1920, 10 percent of cases involved such issues; and between 1921 and 1950, 6 percent of cases centered around racial discrimination. Despite the slightly lower percentage of cases focused on racial discrimination from 1921 to 1950, a larger number of cases centering on other issues, such as personal injury, brought issues of racial equality into the courtroom during these three decades than in the preceding decades. For an analysis of these data and how the number of cases focused on discrimination varied over time, see Tables B.6–B.10. Moreover, while black litigants won 59 percent of their civil cases on appeal between 1865 and 1950 in the eight states examined, in civil appellate cases directly challenging racial discrimination between 1865 and 1950, African Americans won only 36 percent of the cases examined (twenty-five of sixty-nine). Black litigants were often more successful in bringing and winning discrimination cases in nonsouthern state courts—particularly in the Midwest—during the three and a half decades after the Civil War. See Kousser, Dead End, 5–12, 59, and Kousser, “Why Were There So Many Legal Cases on School Integration in Nineteenth-Century America?,” 1–28. For more on African Americans’ national fight for rights in the courts at the end of the nineteenth and beginning of the twentieth centuries, see Carle, Defining the Struggle, and Alexander, An Army of Lions. For a discussion of the issues with putting cases on racial discrimination and racial justice during the Jim Crow era under the umbrella of “civil rights,” see Christopher Schmidt, “Legal History and the Problem of the Long Civil Rights Movement,” Law & Social Inquiry 41 (2016): 1081–1103.
(40.) In the state supreme courts of Alabama and Georgia between 1865 and 1950, criminal cases made up 67 percent of suits involving African Americans whereas civil suits accounted for only 33 percent of black litigants’ suits. More specifically, between 1865 and 1950, I found 280 civil cases involving black litigants in the state supreme courts of Alabama and Georgia, of a total of 841 civil and criminal appeals cases involving African Americans. During this same period, I found 561 criminal cases involving black defendants in the Alabama and Georgia State Supreme Courts. See Table B.26.
(41.) One study of state supreme courts throughout the country between 1870 and 1970 found that civil cases made up 86 percent of overall appellate court business, whereas criminal cases made up only 14 percent of court business. The study authors found that criminal cases made up 10.7 percent of the cases examined between 1870 and 1900, 11.6 percent of cases examined between 1905 and 1935, and 18.2 percent of cases examined between 1940 and 1970. The proportion of appellate criminal cases involving African Americans was thus about five times higher than the proportion of criminal cases involving the general population in state supreme courts throughout the United States during this period. See Table B.32 and Kagan, “The Business of State Supreme Courts,” 135, 145–146.
(42.) In Georgia and Alabama, black litigants won 64 percent of their civil cases on appeal between 1865 and 1950. Similarly, in the eight states examined black litigants won 59 percent of their civil cases on appeal between 1865 and 1950. In contrast, of the 561 criminal cases involving black defendants that I found in the state supreme courts of Georgia and Alabama during that period, black defendants received a decision in their favor from the appellate court in only 38 percent of their suits (in 211 cases). See Tables B.18, B.27, and B.30.
(p.241) (43.) The Alabama and Georgia supreme courts, for example, ruled in favor of the black defendants in only 24 percent of appeals cases in which the black defendants had been convicted of raping a white woman. In contrast, they were more likely to rule in favor of the black defendant in cases in which black defendants had been convicted of raping a black woman. Black defendants received an appellate court ruling in their favor in approximately 63 percent of the cases examined in the Georgia and Alabama supreme courts between 1865 and 1950 in which black defendants had been convicted of raping a black woman compared with 24 percent of cases in which they had been convicted by the lower court of raping a white woman. Surprisingly, though, in the Georgia and Alabama appellate courts between 1865 and 1950, black defendants were more likely to receive a higher-court decision in their favor in cases in which they had been convicted of murdering a white person than in cases in which they had been accused of murdering a black person. Black defendants won 35 percent of appellate suits in which the black defendant had been accused of murdering a white person compared to 27 percent of verdicts in which the black defendant had been accused of murdering a black person. For more data on the impact of the race of victims on the outcome of criminal cases in the Georgia and Alabama appeals courts, see Table B.31. For more on the types of criminal cases involving black defendants in the state supreme courts of Georgia and Alabama between 1865 and 1950, see Table B.28.
(45.) For instance, David Oshinsky writes that one 1882 study of Georgia convicts found that “coloreds” had been given sentences “twice as long as whites for burglary and five times as long for larceny.” Oshinsky, “Worse Than Slavery,” 60, 63 (quote is on p.63). See also the graph showing the increase in the black prison population in four states in the South from 1865 to 1900 in Ayers, Vengeance & Justice, 170, and Blackmon, Slavery By Another Name, 56–112.
(46.) For another analysis of cases in which the structure of the legal system and ideas of professionalism played an important role in allowing a disadvantaged group access to the courts, see Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995).
(47.) For more on the Cumberland County courthouse that was used in 1905, see Roy Parker, “Old Courthouse Lives On,” The Fayetteville Observer, June 27, 1993, and Parker, Cumberland County, 88–89. See also Hudson v. Hodge, 139 N.C. 308 (1905); Hodge v. Hudson, 139 N.C. 358 (1905).
(48.) Whites formed a slight majority in Cumberland County—but only just barely. Roy Parker writes that “In 1880 black citizens comprised 47 percent of the county population of 23,836” and “By 1910, the total population of Cumberland had reached 32,284, of which 43 percent were black.” Parker, Cumberland County, 80. For more on segregation in southern courtrooms, see Gilbert Thomas Stephenson, Race Distinctions in American Law (New York: Appleton and Company, 1910), 237–238. The quote from the North Carolina court clerk is from Stephenson, Race Distinctions in American Law, 266. In 1900, Gilbert Thomas Stephenson wrote to the court clerk in all the counties in the South that had majority-black populations to inquire about black jury service. Of the sixty-five court clerks who replied, twenty reported that a very limited number of black men still served on their juries. All of these twenty also reported, though, that jury service by black men had decreased in their county in the past few years. For the reports from North Carolina clerks, see Stephenson, Race Distinctions in American Law, 265–267.
(49.) Hudson v. Hodge, 139 N.C. 308 (1905); Hodge v. Hudson, 139 N.C. 358 (1905); “Superior Court Notes: Important Decisions by Judge Ferguson,” (p.242) Fayetteville Weekly Observer, April 6, 1905, 1.
(50.) For more on the Supreme Court of North Carolina and the building where it was housed at this time, see Hill, When the North Carolina Supreme Court Sat In The Capitol, 10–16; Walter Clark, History of the Supreme Court of North Carolina (Raleigh, NC: Reprinted from the N.C. Booklet, 1919), 26–28.
(51.) Hudson v. Hodge, 139 N.C. 308 (1905); Hodge v. Hudson, 139 N.C. 358 (1905). The Fayetteville Weekly Observer (Fayetteville, NC), The Wilmington Messenger (Wilmington, NC), and The Morning Post (Raleigh, NC) all very briefly noted the state supreme court decisions in the Hodge v. Hudson and Hudson v. Hodge suits. See “Cumberland Supreme Court Decisions,” Fayetteville Weekly Observer, Oct. 19, 1905, 2; “Supreme Court Opinions,” The Wilmington Messenger, Oct. 20, 1905, 6; “Digest Supreme Court Decisions,” The Morning Post, Oct. 29, 1905, 10.
(52.) For the later case involving Hodge’s land (litigated by his heirs after his death), see Hodges v. Wilson, 165 N.C. 323 (1914). The higher court’s decision in this suit upheld the lower court’s cancellation of the deed.
(53.) See, for instance, Judith Kilpatrick, “(Extra) Ordinary Men: African American Lawyers and Civil Rights in Arkansas Before 1950,” Arkansas Law Review 53 (2000): 299–399; Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford: Oxford University Press, 2004); Gary M. Lavergne, Before Brown: Heman Marion Sweatt, Thurgood Marshall, and the Long Road to Justice (Austin: University of Texas Press, 2010); and Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer (Cambridge, MA: Harvard University Press, 2012).
(54.) Instead, a number of scholars have focused on white southerners’ hostility and violence toward African Americans during the century after the Civil War. If they have looked at government institutions, they have generally portrayed them as oppressive and largely impenetrable to African Americans by the end of the nineteenth century. Other scholars show African Americans resisting white domination, but still portray black southerners as almost entirely separated from white institutions by the period of Jim Crow. The “political” action and resistance that they portray during this time largely lies in labor unions, all-black organizations, emigration movements, and black churches. Leon Litwack and Joel Williamson, for instance, see white attitudes toward African Americans as largely forming a hostile consensus. See Leon F. Litwack, Been in the Storm So Long: The Aftermath of Slavery (New York: Knopf, 1980), and Joel Williamson, The Crucible of Race: Black-White Relations in the American South Since Emancipation (New York: Oxford University Press, 1984). More recently, scholars such as Mary Louise Wood, Grace Elizabeth Hale, and Fitzhugh Brundage have examined lynching during the Jim Crow period. Other scholars, such as Darlene Clark Hine, Hannah Rosen, and Crystal Feimster have highlighted sexual violence against black women. In addition, scholars such as David Oshinsky, Randall Kennedy, Douglass Blackmon, Sarah Haley, and Talitha LeFlouria have highlighted the violence and inequality within the criminal justice system. On the other hand, scholars such as Steven Hahn, Evelyn Higginbotham, and Tera Hunter have done important work on how African Americans themselves resisted in the post–Civil War decades, but have largely looked at resistance outside of white institutions during the Jim Crow years. In A Nation Under Our Feet, for instance, Steven Hahn examines African Americans’ largely separate political mobilization from whites at the end of the nineteenth and beginning of the twentieth century. Glenda Gilmore’s Gender & Jim Crow: Women and the Politics of White Supremacy in North Carolina, 1896–1920 is an exception to this general trend. Gilmore examines the role of middle-class African American women in North Carolina local political action. Sarah Haley’s No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity also shows black women’s sabotage and deliberate self-presentation within the realm of the criminal justice system. See Steven Hahn, A Nation Under Our Feet, Black Political Struggles in the Rural South From Slavery to the Great Migration (Cambridge, MA: Harvard University Press, 2003); Glenda Gilmore, Gender & Jim Crow: Women and the Politics of White Supremacy in North Carolina, 1896–1920 (Chapel Hill: University of North Carolina Press, 1996); Haley, No Mercy Here.
(55.) By focusing on individual’s assertions of their rights in the courts, this book thus connects studies of African Americans’ struggles for their rights during Reconstruction to the scholarship of the long twentieth-century civil rights movement. Scholarship that examines African Americans’ struggle for rights until the end of the nineteenth century includes W. E. B. Du Bois, Black Reconstruction: An Essay Toward a History of the Part Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860–1880 (New York: Russell & Russell, 1935); Elsa Barkley Brown, “To Catch a Vision of Freedom: Reconstructing Southern Black Women’s Political History, 1865–1880,” in Ann Gordon et al., eds., African American Women and the Vote, 1837–1960 (Amherst: University of Massachusetts Press, 1997), 66–99; Hahn, A Nation Under Our Feet; Tera Hunter, To ’Joy My Freedom: Southern Black Women’s Lives and Labors After the Civil War (Cambridge, MA: Harvard University Press, 1997); and (p.243) R. Volney Riser, Defying Disfranchisement: Black Voting Rights Activism in the Jim Crow South, 1890–1908 (Baton Rouge: Louisiana State University Press, 2010). More and more studies are beginning to show groups mobilizing for economic, legal, and political rights in the 1920s, 1930s, and 1940s, decades before the traditional civil rights narrative usually begins. In a path-breaking 2005 article, Jacquelyn Dowd Hall called for scholars to reframe the civil rights movement as beginning decades earlier than it has previously been framed and to study the participation of ordinary men and women, rather than focusing on the largely male black leadership of the 1950s and 1960s. See Jacquelyn Dowd Hall, “The Long Civil Rights Movement and the Political Uses of the Past,” The Journal of American History 91, no.4 (2005): 1233–1263. Even before the publication of Hall’s article, scholars like Charles Payne, Adam Fairclough, and Robin D. G. Kelley were examining the grassroots mobilization of ordinary black southerners in the 1920s and 1930s. See Charles M. Payne, I’ve Got the Light of Freedom: The Organizing Tradition and the Mississippi Freedom Struggle (Berkeley: University of California Press, 1995); Adam Fairclough, Race & Democracy: The Civil Rights Struggle in Louisiana, 1915–1972 (Athens: University of Georgia Press, 1995); Robin D. G. Kelley, Hammer and Hoe: Alabama Communists During the Great Depression (Chapel Hill: University of North Carolina Press, 1990). Since Hall’s article, a number of scholars have analyzed the civil rights movement’s early twentieth-century roots further, often locating the movement’s roots in the 1920s, 1930s, and 1940s. See Glenda Gilmore, Defying Dixie: The Radical Roots of Civil Rights, 1919–1950 (New York: Norton, 2008); Tomiko Brown-Nagin, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement (Oxford: Oxford University Press, 2011); Risa L. Goluboff, The Lost Promise of Civil Rights (Cambridge, MA: Harvard University Press, 2007); Danielle L. McGuire, At the Dark End of the Street: Black Women, Rape, and Resistance—A New History of the Civil Rights Movement From Rosa Parks to the Rise of Black Power (New York: Knopf, 2010); Patricia Sullivan, Lift Every Voice: The NAACP and the Making of the Civil Rights Movement (New York: New Press, 2009). Other scholars, however, have questioned and problematized the helpfulness of the long civil rights framework for legal and historical scholarship. See Schmidt, “Legal History and the Problem of the Long Civil Rights Movement,” and Eric Arnesen, “Reconsidering the Long Civil Rights Movement,” Historically Speaking 10, no.2 (2009): 31–34.
(56.) Historians and scholars who have recently examined African Americans’ challenges to the southern status quo at the end of the nineteenth century and in the first two decades of the twentieth century include Blair Kelley, Right to Ride: Streetcar Boycotts and African American Citizenship in the Era of Plessy v. Ferguson (Chapel Hill: University of North Carolina Press, 2010); Greta de Jong, A Different Day: African American Struggles for Justice in Rural Louisiana, 1900–1970 (Chapel Hill: University of North Carolina Press, 2002); Gilmore, Gender & Jim Crow; Carle, Defining the Struggle; Alexander, An Army of Lions; Sullivan, Lift Every Voice.
(57.) In Bloody Lowndes, Hasan Jeffries, for one, notes that “at the moment of emancipation, [freedpeople] reflected on their enslavement and identified their freedom rights, or those civil and human rights that slaveholders denied them.” In the decades after emancipation, he writes, black southerners’ “primary focus remained the guarantee of freedom rights.” But at any given moment, Jeffries writes, black southerners did not fight for all of these freedom rights “with equal vigor. Instead, they carefully assessed the risks and rewards associated with each.” Similarly, in “To Catch a Vision of Freedom,” Elsa Barkley Brown argues that African Americans had their own unique vision of what freedom looked like. In the years after emancipation, she writes, they placed special value on their economic independence, choosing to move from job to job in many cases to preserve it. Likewise, Robin D. G. Kelley’s book Freedom Dreams shows how African Americans’ visions of freedom informed individuals’ participation in and support for various social movements such as the Back to Africa Movement, Communism, and Black Feminism. See Brown, “To Catch a Vision of Freedom,” in Unequal Sisters, 3rd ed., 127; Hasan Kwame Jeffries, Bloody Lowndes: Civil Rights and Black Power in Alabama’s Black Belt (New York: New York University Press, 2009), 7–37; Robin D. G. Kelley, Freedom Dreams: The Black Radical Imagination (Boston: Beacon Press, 2002). See also Eric Foner, “Rights and the Constitution in Black Life During the Civil War and Reconstruction,” The Journal of American History 74, no.3 (1987): 863–883.
(p.244) (58.) For more on the use of litigation by national organizations fighting racial injustice at the end of the nineteenth and beginning of the twentieth centuries, see Carle, Defining the Struggle, and Alexander, An Army of Lions. For more on the NAACP’s rationale for turning to the courts, see NAACP Annual Report for 1926, 3. This report is quoted in Tushnet, The NAACP’s Legal Strategy Against Segregated Education, 1–2.
(59.) For a discussion of the results of examining black and white southerners’ history in concert, see Painter, Southern History Across the Color Line, 1–4. For an analysis of the dynamism of white supremacy and the variation in how it was carried out, see “Introduction,” in Jane Dailey, Glenda Elizabeth Gilmore, and Bryant Simon, eds., Jumpin’ Jim Crow: Southern Politics From Civil War to Civil Rights (Princeton, NJ: Princeton University Press, 2000), 3–4.
(60.) See, for instance, Mark Tushnet, The American Law of Slavery, 1810–1860: Considerations of Humanity and Interest (Princeton, NJ: Princeton University Press, 1981); Thomas D. Morris, Southern Slavery and the Law, 1619–1860 (Chapel Hill: The University of North Carolina Press, 1996). In addition, see the scholarship of legal scholar A. Leon Higginbotham.
(61.) Hendrik Hartog set out important ideas about law-in-action with his path-breaking article “Pigs and Positivism,” Wisconsin Law Review 4 (1985): 899–935. Walter Johnson also played an important role in this shift through his critique of the focus on appellate judges’ opinions in his review of Thomas Morris’s Southern Slavery and the Law (1996). Johnson argues that Morris’s approach ignores the actions of African Americans in contesting the law and elides the confusion and contradiction that occurred in trials in local courtrooms around the South as judges sought to justify and deal with cases involving slavery. See Johnson, “Inconsistency, Contradiction, and Complete Confusion: The Everyday Life of the Law of Slavery,” 405–433. Laura Edwards also forcefully argues for recognizing the difference between the laws written in statutes and opinions and how the law was experienced by ordinary people in local areas. Edwards also demonstrates how slaves and other individuals could affect and influence legal processes at the local level in her articles “Status without Rights” and “Enslaved Women and the Law” and her book The People and their Peace. Ariela Gross pioneered the new field of cultural legal history in her article “Beyond Black and White: Cultural Approaches to Race and Slavery,” Columbia Law Review 101 (April 2001): 640–690. For examples of this new legal history, see Ariela Gross, Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (Princeton, NJ: Princeton University Press, 2000); Laura Edwards, “Status Without Rights: African Americans and the Tangled History of Law and Governance in the Nineteenth-Century U.S. South,” The American Historical Review 112, no.2 (2007): 365–393; Laura Edwards, “Enslaved Women and the Law: The Paradoxes of Subordination in the Post-Revolutionary Carolinas,” Slavery & Abolition 26 (August 2005): 305–323; Laura Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009); Dylan Penningroth, The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 2003); Rebecca J. Scott, Degrees of Freedom: Louisiana and Cuba after Slavery (Cambridge, MA: Belknap Press of Harvard University Press, 2005); Brown-Nagin, Courage to Dissent. For a discussion of the use of theories of text in the context of legal history, see Steven Wilf, “Law/Text/Past,” UC Irvine Law Review 1, no.3 (2011): 543–564. For a thought experiment on law and performance, see Barbara Welke, “Owning Hazard, A Tragedy,” UC Irvine Law Review 1, no.3 (2011): 693–762. For a discussion of how this new legal history has played out in examinations of the civil rights movement, see Risa Goluboff, “Lawyers, Law, and the New Civil Rights History,” Harvard Law Review 126, no.8 (2013): 2312–2335.
(62.) For examples of new legal histories that focus on one case or a small number of cases and examine the cases in context, see Kevin Boyle, Arc of Justice: A Saga of Race, Civil Rights, and Murder in the Jazz Age (New York: Holt, 2004); Michael A. Ross, The Great New Orleans Kidnapping Case: Race, Law, and Justice in the Reconstruction Era (New York: Oxford University Press, 2015); Michael Grossberg, A Judgment for Solomon: The D’Hauteville Case and Legal Experience in Antebellum America (Cambridge: Cambridge University Press, 1996); Hodes, White Women, Black Men. On the other hand, Ariela Gross’s book Double Character, examining hundreds of cases involving slavery in one Mississippi county, and Walter Johnson’s examination of the domestic slave trade, Soul by Soul, both draw on ideas of the new cultural–legal (p.245) history while still examining many trial court cases in a systematic manner. Similarly, Kali Gross’s Colored Amazons: Crime, Violence, and Black Women in The City of Brotherly Love, 1880–1910 (Durham, NC: Duke University Press, 2006) examines the criminal records of black women in Philadelphia between 1880 and 1910 using techniques of social and cultural history.
(63.) In addition, I use nonlegal sources to better understand the context of these suits, to discern the meaning of witnesses’ and litigants’ testimony, and to follow the participants in particular suits before and after their trials. In placing law firmly within the social world, rather than discussing “law and society,” I have been influenced by Robert Gordon’s foundational “Critical Legal Histories,” as well as the work of scholars responding to his work at a 2002 Law & Social Inquiry Symposium. See Robert W. Gordon, “Critical Legal Histories,” Stanford Law Review 36 (Jan. 1984): 57–125; Hendrik Hartog, “Introduction to Symposium on ‘Critical Legal Histories,’” Law & Social Inquiry 37 (Winter 2012): 147–154; Laura F. Edwards, “The History in ‘Critical Legal Histories,’” Law & Social Inquiry 37 (Winter 2012): 187–197; Susanna L. Blumenthal, “Of Mandarins, Legal Consciousness, and the Cultural Turn in U.S. Legal History,” Law & Social Inquiry 37 (Winter 2012): 167–183. I have also been influenced by the conception of “Law as …” discussed in the UC Irvine Law Review Symposium Issue in September 2011. See, for instance, Catherine L. Fisk and Robert W. Gordon, “‘Law As …’: Theory and Method in Legal History,” UC Irvine Law Review 1, no. 3 (2011): 519–541.