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From Slave to Litigant: African Americans in Court in the Postwar South, 1865–1920

Published online by Cambridge University Press:  06 September 2012

Melissa Milewski
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In 1859, after the death of his mistress, a slave named Mat Fine was taken to the Jefferson, Kentucky, County Court House “in the inventory of Lucy Fine's estate as her property.” There, he was inventoried along with her other possessions. Only a few years later, just after the Civil War, Fine returned to the local court house as a defendant in a civil case over the money his former mistress had left him in her will. There he stood before the civil court, as a person, rather than a piece of property, boldly laid out the terms of the will, and claimed his portion. Both the local court and state supreme court ruled in his favor.

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Law and History Review , Volume 30 , Issue 3 , August 2012 , pp. 723 - 769
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Copyright © the American Society for Legal History, Inc. 2012

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References

1. Monohon v. Caroline (of color), 65 Ky. 410 (1867).

2. My conclusions resulted from a thorough search conducted on the electronic legal database Lexis-Nexis of state supreme court cases involving African Americans in eight states in the United States South. I searched for keywords in all state supreme court cases between 1865 and 1920 in eight states: Alabama, Arkansas, Georgia, Kentucky, Mississippi, North Carolina, Tennessee, and Virginia. Keyword searches included (but were not limited to): slave, slavery, Negro, Africa, African, Liberia, colored, freedman, freedmen and freedwoman. I examined each case that resulted from such searches, using the summaries of cases in the state court reports (also on Lexis-Nexis). I then visited archives in all eight states, where I examined the surviving cases in their original manuscript form. Although I do not claim to have found every civil case involving a black litigant during this time period, an effort was made to find every case possible.

3. Of the 618 civil cases involving black litigants between 1865 and 1920, 69% (428 cases) took place between a black litigant and a white litigant and 31% (190 cases) were cases between two or more black litigants. These 618 civil appellate cases involving black litigants formed approximately 0.5% of the total criminal and civil appellate cases in the eight states examined during this time period (618 out of 128,567 cases, or approximately 1 out of every 200 cases). Within these 618 civil cases, the percentage of cases involving only black litigants grew over time, with 76 cases between black litigants (27% of the total cases during that time) from 1865 to 1900 and 114 cases between black litigants (34% of the total cases during that time) from 1900 to 1920. In these appellate civil cases between black litigants from 1865 to 1920, sixty cases involved disputes over property dealings or economic transactions, seventy-four cases involved inheritances, eight cases took place over child custody, twenty-two cases involved black fraternal organizations, twenty-three cases involved black churches, and four cases involved sexual relations between African Americans.

4. Between 1865 and the end of Reconstruction (1877), black Southerners won 69 out of 108 cases against white litigants (64%) in the states' highest courts. In cases that took place after the end of Reconstruction (1878 to 1899), black Southerners won 56 out of 102 of their suits (55%). From 1900 to 1920, black litigants won in 138 out of 218 higher court cases (63%), approximately the same rate as they had in the earlier years after the Civil War. When all these suits between black and white litigants from 1865 to 1920 are analyzed together, black litigants won in the higher court in 263 out of 428 cases (61%).

5. The primary debate among historians has been over when black Southerners lost the rights gained during Reconstruction. In his landmark study, The Strange Career of Jim Crow (New York: Oxford University Press, 1955)Google Scholar, C. Vann Woodward argued that because of the absence of laws enforcing segregation in the last decades of the nineteenth century, many of the new, more egalitarian practices of Reconstruction continued even after Reconstruction ended, through the end of the nineteenth century. In contrast, Rabinowitz, Howard claimed in Race Relations in the Urban South (New York: Oxford University Press, 1978)Google Scholar that de jure segregation was the “logical culmination” of the de facto segregation that had been taking place since the beginning of Reconstruction. More recently, historians such as Litwack, Leon, in Trouble in Mind: Black Southerners in the Age of Jim Crow (New York: Alfred A. Knopf, 1998)Google Scholar, have emphasized the brutality and violence inflicted on African Americans in the post-Reconstruction period while largely ignoring the victories of Reconstruction or the possibility of continued opportunities for Southern blacks after Reconstruction. Others, such as Hahn, Stephen in A Nation Under Our Feet: Black Political Struggles in the Rural South, From Slavery to the Great Migration (Cambridge, MA: Harvard University Press, 2003)Google Scholar, have emphasized the freedom and collective organization enjoyed by Southern blacks during the Reconstruction and post-Reconstruction periods, juxtaposing the rise of the Ku Klux Klan with African Americans' involvement in union leagues. Even historians such as Hahn, however, view African Americans as having largely lost their formal political and legal rights by 1910.

6. Most historians writing about the post-Reconstruction period and the era of Jim Crow have emphasized black Southerners' loss of legal rights and the injustices blacks experienced in the courts. Scholars such as Barbara Welke and Mary Frances Berry also argue that the law undergirded white male privilege and white supremacy in the postwar period. These scholars' analyses are largely based on a limited sample of cases, celebrated cases (including cases involving civil rights), anecdotal evidence, and/or the records of criminal cases. See, for example, Welke, Barbara, Law and the Borders of Belonging in the Long Nineteenth Century United States (New York: Cambridge University Press, 2010)CrossRefGoogle Scholar; Welke, Barbara, “Law, Personhood, and Citizenship in the Long Nineteenth Century: The Borders of Belonging,” in Cambridge History of Law in America, vol. 2, ed. Grossberg, Michael and Tomlins, Christopher (Cambridge: Cambridge University Press, 2008), 345–86CrossRefGoogle Scholar; Berry, Mary Frances, Black Resistance/White Law: A History of Constitutional Racism in America (New York, Appleton-Century-Crofts, 1971)Google Scholar; Litwack, Leon, Trouble in Mind: Black Southerners in the Age of Jim Crow (New York: Alfred A. Knopf, 1998), 246–70Google Scholar; and Oshinsky, David M., “Worse Than Slavery”: Parchman Farm and the Ordeal of Jim Crow Justice (New York: Simon & Schuster, 1996)Google Scholar. Three exceptions to the general conclusion that the courts played a role in constraining African Americans' rights during this period are Wertheimer, John W., Law and Society in the South: A History of North Carolina Court Cases (Lexington, KY: The University Press of Kentucky, 2009), 9–10Google Scholar; Pincus, Samuel N., The Virginia Supreme Court, Blacks and the Law, 1870–1902 (New York: Garland Publishing, 1990), 17–120Google Scholar; and Ranney, Joseph A., In the Wake of Slavery: Civil War, Civil Rights, and the Reconstruction of Southern Law (Westport, CT: Praeger, 2006), 157Google Scholar. Wertheimer argues that the courts actually “played an underappreciated role in limiting the reach of white supremacy” whereas Pincus writes that “the Virginia Supreme Court attempted to uphold the legal and equitable rights of blacks” between 1870 and 1902 (Wertheimer, Law and Society, 9–10; Pincus, Virginia Supreme Court, 119). Both Wertheimer and Pincus based their conclusions on the study of actual cases during this time period. Wertheimer conducted an in-depth study of a handful of state supreme court cases in North Carolina, including examining the trial records and newspaper coverage of the cases, whereas Pincus examined a wide swath of judicial opinions in Virginia civil cases involving white and black litigants, but did not examine the transcripts of the trial records.

7. No other historians have conducted an in-depth, thorough examination of civil cases involving African American litigants in multiple postwar Southern state supreme courts during this period. For examples of studies that focus on cases specifically involving race, see Hodes, Martha, White Women, Black Men: Illicit Sex in the Nineteenth-Century South (New Haven: Yale University Press, 1997)Google Scholar; Pascoe, Peggy, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York: Oxford University Press, 2009)Google Scholar; Elliott, Michael A., “Telling the Difference: Nineteenth-Century Legal Narratives of Racial Taxonomy,” Law & Social Inquiry 24:3 (Summer, 1999): 611–36CrossRefGoogle Scholar; and Gross, Ariela J., What Blood Won't Tell: A History of Race on Trial in America (Cambridge, MA: Harvard University Press, 2008)CrossRefGoogle Scholar. Other legal scholars have studied blacks' participation in civil cases not overtly involving issues of race during this time period, but their analysis has 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 Pincus, Virginia Supreme Court, xxii–xxiii, xxix. Similarly, Laura Edwards focuses only 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)Google Scholar. Dylan Penningroth examines African Americans' claims in provost and Freedmen's Bureau courts after the Civil War, but he focuses on their informal methods of resolving property disputes before and after the war as well as their claims to the Southern Claims Commission. See Penningroth, Dylan C., The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South (Chapel Hill: The University of North Carolina Press, 2003)Google Scholar. Scholarship on Southern state courts during the postwar period also includes a number of histories of individual state appellate courts, Joseph A. Ranney's overview of the southern legal system, In the Wake of Slavery, Nieman, Donald G., ed. Black Southerners and the Law, 1865–1900 (New York: Garland Publishing, 1994)Google Scholar, John W. Wertheimer's examination of key cases in North Carolina legal history, Law and Society in the South: A History of North Carolina Court Cases, and Christopher Waldrep's study of local court cases in Mississippi in the years immediately after Reconstruction, “Substituting Law for the Lash: Emancipation and Legal Formalism in a Mississippi County Court” The Journal of American History 82 (1996): 1425–51CrossRefGoogle Scholar. Historians have also examined African Americans' involvement in criminal cases during this period. See David M. Oshinsky, “Worse Than Slavery”; Christopher Waldrep, Roots of Disorder: Race and Criminal Justice in the American South, and Waldrep, Christopher and Nieman, Donald G., eds., Local Matters: Race, Crime, and Justice in the Nineteenth-Century South (Athens, GA: The University of Georgia Press, 2001)Google Scholar.

8. Between 1865 and 1877, there were approximately 53 female litigants out of 108 appellate cases between white and black litigants in the eight states examined (49%). Between 1878 and 1899, there were approximately 47 female litigants out of 102 such cases (46%). Between 1900 and 1920, there were approximately 89 female litigants out of 218 such cases (41%).

9. Between 1865 and 1877, black litigants served as plaintiffs in 68 out of 108 civil cases in state supreme courts (63%). Between 1878 and 1899, they served as plaintiffs in 74 out of 102 cases (73%). Between 1900 and 1920, they were plaintiffs in 182 out of 218 cases (83%). Overall, they served as plaintiffs in 324 out of 428 cases (76%).

10. Although free blacks exercised many of the rights of citizens in the colonial and antebellum era, particularly in the United States North, the United States Supreme Court declared that they were not United States citizens in the decision in Dred Scott v. Sandford, 60 U.S. 393 (1857). The Fourteenth Amendment to the United States Constitution, adopted on July 9, 1868, expanded previous definitions of citizenship and overruled the decision in Dred Scott v. Sandford. Citizenship remained contested after the passage of this amendment. In the 1869 Georgia case of Green v. Anderson, for example, the white defendant's legal brief excepted to a ruling in favor of a former slave, arguing that the black litigant was not a citizen and so could not sue. See Green v. Anderson, 38 Ga. 655 (1869).

11. Cowan v. Stamps, 46 Miss. 435 (1872). See also Cochreham v. Kirkpatrick, 48 Tenn. 327 (1870).

12. Freedmen's Committee to Major General John Pope, July 7, 1867, Records of the Assistant Commissioner of Georgia, Bureau of Refugees, Freedmen and Abandoned Lands, 1865–1869, roll 18, record group 105, microfilm publication 798, National Archives. Black newspapers also frequently criticized decisions of state and federal courts, as well as reporting on black litigants' victories in civil and criminal cases, praising decisions of specific judges, and expressing their support for cases challenging Jim Crow. See also “Introduction,” in Nieman, Black Southerners and the Law, vii–xii.

13. Abercrombie v. Carpenter, 150 Ala. 294 (1907).

14. For an examination of blacks' attitudes toward the law, as seen in African American writing, see Suggs, Jon-Christian, Whispered Consolations: Law and Narrative in African American Life (Ann Arbor: The University of Michigan Press, 2000)CrossRefGoogle Scholar. For an examination of African Americans' concern for law and equal rights, see Donald G. Nieman, “The Language of Liberation: African Americans and Equalitarian Constitutionalism, 1830–1950,” in Nieman, Black Southerners and the Law.

15. Viewing itself as temporary, the Bureau focused on helping black people gain justice in the Southern court system. In certain Southern states, the Freedmen's Bureau succeeded in pushing local and state courts to allow black testimony. Abbott, Martin, The Freedmen's Bureau in South Carolina, 1865–1872 (Chapel Hill: The University of North Carolina Press, 1967), 103–5Google Scholar; Pierce, Paul Skeels, The Freedmen's Bureau: A Chapter in the History of Reconstruction (New York: Haskell House Publishers, 1971), 143–49Google Scholar; and Foner, Eric, Reconstruction: America's Unfinished Revolution, 1863–1877 (New York: Harper & Row, 1988), 148–49Google Scholar. For more on blacks' attitudes toward the law, as seen in their interactions with the Freedmen's Bureau, see Penningroth, The Claims of Kinfolk, 112–14; Crouch, Barry A., “Black Dreams and White Justice,” Prologue: Journal of the National Archives 6 (1974): 256–65Google Scholar.

16. Victor B. Howard, “The Black Testimony Controversy in Kentucky, 1866–1872,” in Nieman, Black Southerners and the Law, 154–57.

17. For example, in Virginia, where the Virginia General Assembly elected the states' judges, the black representatives in the General Assembly from 1869 to 1890 helped to choose these judges. Pincus, Virginia Supreme Court, 6. During the period from 1865 to 1920, most of the eight states examined here had popular elections for judges.

18. For examples of black newspaper coverage of suits involving African Americans, see the coverage of the Atlanta Independent and the Richmond Planet. Articles in these newspapers about celebrated cases involving African Americans include: “Simon Walker Saved!” Richmond Planet, November 16, 1889, 1; “The Kentucky Jim Crow Car Law,” The Richmond Planet, June 9, 1894, 2; “The Prisoners. Stirring Scenes in The Court-Room,” The Richmond Planet, November 23, 1895, 1; “New Trial Granted,” The Richmond Planet, November 30, 1895, 1; “The Day Set. Another Chapter in the Lunenburg Case,” The Richmond Planet, February 22, 1896, 1; “Judge Emory Speer's Opinion. The Fourteenth Amendment. A Colored Man Released,” The Richmond Planet, July 23, 1904, 1; and “A White Man The Victim. U.S. Supreme Court and the Caleb Powers Case,” The Richmond Planet, March 17, 1906, 1. Articles in these black newspapers about local cases involving African Americans include: “A Sunday Murder!” The Richmond Planet, March 1, 1890, 1; “Sued the Editor and Lost,” The Richmond Planet, November 17, 1900, 1; and “In the recorder's court…” Atlanta Independent, February 13, 1904.

19. Freedmen's Committee to Major General John Pope, July 7, 1867, Records of the Assistant Commissioner of Georgia, Bureau of Refugees, Freedmen and Abandoned Lands, 1865–1869, roll 18, record group 105, microfilm publication 798, National Archives. See also Mr. Miller to unknown recipient, January 12, 1867, Records of the Assistant Commissioner of Georgia, Bureau of Refugees, Freedmen and Abandoned Lands, 1865–1869, roll 30, record group 105, microfilm publication 798, National Archives.

20. In at least five appellate cases between 1865 and 1920, black litigants involved in suits with whites came before the court or gave depositions without counsel. See Cunningham's Administrator v. Speagle, 106 Ky. 278 (1899); Hays v. Callaway, 58 Ga. 288 (1877); Cauley v. Dunn, 167 N.C. 32 (1914); Hudson v. Hodge, 139 N.C. 308 (1905); and Lattimore v. Dixon, 65 N.C. 664 (1871).

21. Lattimore v. Dixon, 65 N.C. 664 (1871).

22. Some black lawyers were Northerners who had moved to the South after the Civil War. Many others were Southern born and had achieved their legal expertise by training with a practicing lawyer or attending law schools such as Howard University, Atlanta University, the University of Chicago, or the University of South Carolina. The 1900 census found 266 “Negro” lawyers in the eight states examined: 6 in Alabama, 27 in Arkansas, 33 in Georgia, 25 in Kentucky, 24 in Mississippi, 25 in North Carolina, 73 in Tennessee, and 53 in Virginia. Black lawyers formed only a very small part of the overall bar in such states (approximately 1.7%); the 1900 census identified 15,242 white male lawyers in these eight states. Smith, J. Clay, Emancipation: The Making of the Black Lawyer, 1844–1944 (Philadelphia: University of Pennsylvania Press, 1993), 624–25Google Scholar. For more on black lawyers during this period, see Pincus, Virginia Supreme Court, 39–43; Smith, Emancipation: The Making of the Black Lawyer, 1–20, 191–343; Finkelman, Paul, “Not Only the Judges' Robes were Black: African American Lawyers as Social Engineers,” Stanford Law Review 47 (1994): 161CrossRefGoogle Scholar; Kilpatrick, Judith, “(Extra) Ordinary Men: African American Lawyers and Civil Rights in Arkansas Before 1950,” Arkansas Law Review 53 (2000): 299Google Scholar; Burke, W. Lewis Jr., “The Radical Law School: The University of South Carolina School of Law and Its African American Graduates, 1873–1877,” in At Freedom's Door: African American Founding Fathers and Lawyers in Reconstruction South Carolina, ed. Underwood, James Lowell and Burke, W. Lewis Jr. (Columbia, SC: University of South Carolina Press, 2000), 90–115Google Scholar; and John Oldfield, “The African American Bar in South Carolina,” in Underwood and Burke, At Freedom's Door, 116–29.

23. A notable exception to this rule was the appearance of prominent black lawyer Scipio Jones in the Arkansas case of Cook v. Ziff Colored Masonic Lodge, 80 Ark. 31 (1906). Jones also testified in favor of the white litigant and against the black litigants in the cases of Storthz v. Arnold, Arnold v. Storthz, 74 Ark. 68 (1905). In addition, Jones appeared in at least two appellate cases in which both litigants were black. See Grand Camp of Colored Woodmen v. Johnson, 109 Ark. 527 (1913); and Grand Camp Colored Woodman v. Ware, 107 Ark. 102 (1913).

24. They are listed together as her solicitors, “Caruthers & Talbot, Sols.” but the court record specifies only Caruthers' race, later referring to a Ned Caruthers “(col'd).” The only Ned Caruthers listed in the 1870 census for Madison County, Tennessee is a 50-year-old black man, described as a laborer. In 1880, this Ned Caruthers is listed as having the occupation of farming. It is possible that despite this Ned Caruther's occupation as a farmer, he may also be the lawyer described in this case. It was difficult for black lawyers in the post-Civil War South to work as full-time lawyers because of the poverty of their generally black clientele. 1870 United States Census; 1880 United States Census; Oldfield, “The African American Bar in South Carolina,” 119–20; and Deberry v. Hurt, 66 Tenn. 390 (1874).

25. The higher courts also heard some cases that did not involve large amounts of money. For an example of a higher court case not involving a significant sum of money, see the case of Andrews v. Page, in which the black female litigant litigated as a pauper. Andrews v. Page, 49 Tenn. 634 (1871).

26. Wertheimer, Law and Society in the South, 5.

27. Lattimore v. Dickson, 63 N.C. 356 (1869); Lattimore v. Dixon, 65 N.C. 664 (1871); Nelson v. Nelson, 7 Ky. Op. 384 (1873).

28. Thweatt v. Redd, 50 Ga. 181 (1873); Munroe vs. Phillips, 64 Ga. 32 (1879); Munroe v. Phillips, 65 Ga. 390 (1880)

29. 1870 United States Census; Ancestry.com, Confederate States Field Officers, http://search.ancestrylibrary.com/search/db.aspx?dbid=4537, accessed June 1, 2009; Georgia Supreme Court Case Files; Deen, Braswell D. Jr. and Henwood, William Scott, Georgia's Appellate Judiciary: Profile and History (Norcross, GA: The Harrison Company, 1987)Google Scholar; and “Memorial of Hon. M.H. Blandford” in 120 Ga. 1085.

30. There were a few exceptions to this rule, such as the Kentucky lawyer Aubrey Hester and North Carolina lawyer W.P. Bynum, who each represented black litigants in appellate cases at least four times.

31. Blandford was a member of the Supreme Court of Georgia from 1883 to 1891. Deen and Henwood, Georgia's Appellate Judiciary; “Memorial of Hon. M.H. Blandford” in 120 Ga. 1085. As an appellate court judge, Blandford wrote the opinion on at least two civil cases involving black litigants. In both of these cases the Supreme Court of Georgia ruled in favor of the black litigant. See The Georgia Railroad & Banking Co. v. Dougherty, 86 Ga. 744 (1890); and Yon v. Blanchard, 75 Ga. 519 (1885).

32. Reed, John C., Conduct of Lawsuits Out of and In Court: Practically Teaching, and Copiously Illustrating, The Preparation and Forensic Management of Litigated Cases of All Kinds (Boston: Little, Brown, and Company, 1885), 39–41Google Scholar.

33. From 1865 to 1877, approximately half of the civil cases between white and black Southerners in the eight appellate courts examined (fifty cases, or 46% of such cases) involved disputes over wills and trusts, usually between former slaves and the white heirs of a former master. Approximately one third of cases between white and black Southerners during Reconstruction (34 out of 108 court cases, or 31%) involved disputes over transactions or property dealings (this includes 3 cases involving charges of fraud in property disputes). Apprenticeship cases also accounted for eighteen court cases, forming 17% of cases between white and black Southerners during Reconstruction. In the post-Reconstruction South (1878 to 1899), thirty-one cases involved personal injury (30% of suits), thirty-four cases involved disputes over transactions or property dealings (33% of cases– this includes thirteen cases involving charges of fraud in property disputes during this time), and twenty-seven cases involved disputes over wills and trusts (26% of cases). Throughout the period of 1865 to 1900, eleven civil cases also involved issues of civil rights.

34. Of the 210 appellate cases between white and black litigants in the eight higher courts examined (from 1865 to 1899), 77 cases (37%) involved wills or trusts. Of these cases, forty-seven involved antebellum wills in which slaveholders had left funds for the emancipation of their slaves. Thirty-nine of these cases involving antebellum manumission took place during Reconstruction and eight manumission cases were litigated in the post-Reconstruction South (1878–1899).

35. See, for instance, Green v. Anderson, 38 Ga. 655 (1869) and Anderson v. Green, 46 Ga. 361 (1872).

36. Certain Southern states had passed laws in the decades before the Civil War directing that slaves could only be emancipated to Africa. As a result, wills emancipating slaves in these states ordered former slaves to be sent to Liberia and provided funds for their migration. White heirs also used such laws to challenge cases, frequently arguing that the emancipations directed in wills were illegal at the time of the testator's death. Cases involving migration to Liberia during this time period included: Lynch v. Burts, 48 Tenn. 600 (1870); Berry v. Hamilton, 64 Ky. 361 (1866); Cowan. v. Stamps, 46 Miss. 435 (1872); Armstrong v. Pearre, 47 Tenn. 171 (1869); Hargroves v. Redd, 43 Ga. 142 (1871); Estill v. Deckerd, 63 Tenn. 497 (1874); Whedbee v. Shannonhouse, 62 N.C. 283 (1868); Todd v. Trott, 64 N.C. 280 (1870); Milly v. Harrison, 47 Tenn. 191 (1869); Neely v. Merritt, 72 Ky. 346 (1872); Redd v. Hargroves, 40 Ga. 18 (1869); Shannonhouse v. Whedbee (1867); Strong v. Middleton, 51 Ga. 462 (1874); Thweatt v. Redd, 50 Ga. 181 (1873); Jones's v. Jones's, 92 Va. 590 (1896); Urey's Adm'r v. Urey's Ex'r, 86 Ky. 354 (1887); and Walker v. Walker, 66 Ga. 253 (1880).

37. Brown, Robert T., Immigrants to Liberia, 1843–1865, an Alphabetical Listing (Philadelphia: Institute for Liberian Studies, 1980), 60Google Scholar; and Walker v. Walker, 66 Ga. 253 (1880).

38. Walker v. Walker, 66 Ga. 253 (1880). The local and higher courts decided differently in Walker's case. In 1880, a jury decided in favor of the former slaves, finding that the former slaves were entitled to recover $39,987 from the defendants. When the white heirs appealed the verdict to the Georgia Supreme Court, the higher court reversed the earlier decision. In the end, William Walker returned to Liberia empty handed.

39. Out of 210 civil appellate cases between whites and blacks in eight appellate courts, sixty-eight involved property dealings or transactions unrelated to wills (this includes fraud cases). Of these sixty-eight cases, twenty-four cases (35%) involved black and white litigants who had been tied together as masters and slaves in the antebellum South. Fourteen cases involving former slaves and former masters took place during Reconstruction (1865–1877) and ten cases took place in the post-Reconstruction period (1878–1899).

40. Smith v. Summerlin, 48 Ga. 425 (1873)

41. At times, the contracts between white and black Southerners were oral, therefore making it more difficult for black laborers to enforce their rights. See Goluboff, Risa L., The Lost Promise of Civil Rights (Cambridge, MA: Harvard University Press, 2007), 59Google Scholar.

42. For an analysis of black Southerners' loss of rights during this time, see Perman, Michael, Struggle for Mastery: Disfranchisement in the South, 1888–1908 (Chapel Hill: University of North Carolina Press, 2001)Google Scholar; Klarman, Michael J., From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (Oxford: Oxford University Press, 2004)Google Scholar; and Hale, Grace Elizabeth, Making Whiteness: The Culture of Segregation in the South, 1890–1940 (New York: Pantheon Books, 1998)Google Scholar.

43. Of 218 cases between black and white litigants in eight Southern states between 1900 and 1920, 63 cases involved fraud and 97 involved personal injury. Cases involving fraud or personal injury therefore made up a combined 73% of all cases involving black litigants during this time. During this period, other civil cases between white and black litigants in the appellate courts of the eight states examined included twenty-one civil rights cases, six suits involving black fraternal organizations, nine inheritance suits, and twenty-one suits over transactions or property dealings (not involving claims of fraud).

44. See Welke, Barbara, Recasting American Liberty: Gender, Race, Law and the Railroad Revolution, 1865-–1920 (New York: Cambridge University Press, 2001)Google Scholar; and Ely, James W. Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights (New York: Oxford University Press, 1998), 101–18Google Scholar.

45. Black women were litigants in 33 out of the 63 higher court fraud cases (52 percent) between 1900 and 1920.

46. For examples of appellate cases between white and black litigants from 1900 to 1920 in which black landowners did not mean to or want to sell their property, see: McKinnon v. Henderson, 145 Ga. 373 (1916); Dixon v. Green, 178 N.C. 205 (1919); Culberth v. Hall, 159 N.C. 588 (1912); and Pearsall v. Hyde, 189 Ala. 86 (1914).

47. Bryan v. Hobbs, 72 Ark. 635 (1904).

48. For examples of fraud cases in which property was sold for a price later claimed to be too low, see: Storthz v. Williams, 86 Ark. 460 (1908); Broughton v. Walker, 197 Ala. 284 (1916); and Cox v. Morton, 193 Ala. 401 (1915).

49. Leonard v. Roebuck, 152 Ala. 312 (1907).

50. Although personal injury cases had made up only 4 out of 108 total appellate cases between white and black litigants (4% of suits) between 1865 and 1877, 31 such personal injury cases took place between 1878 and 1899 out of 102 total cases (forming 30% of these suits between 1878 and 1899), and 97 of these personal injury cases occurred between 1900 and 1920 out of 218 total cases during this period. In this article, I am looking only at cases that alleged actual injury, whether physical or mental or both. Therefore, some lawsuits by African Americans during this period (especially involving the railroad) that only allege discrimination and do not claim damages for injuries are not included in this article. In contrast, Barbara Welke studies the broad spectrum of railroad suits in the United States that alleged discrimination in her book Recasting American Liberty.

51. Welke, Recasting American Liberty, 30–39; and Aldrich, Mark, Death Rode the Rails: American Railroad Accidents and Safety, 1828–1965 (Baltimore: The Johns Hopkins University Press, 2006), 183–84Google Scholar.

52. Bland v. City of Mobile, 142 Ala. 142 (1904).

53. “The News of Mobile,” The Montgomery Advertiser (May 27, 1905), 5.

54. During Reconstruction (between 1865 and 1877), 67% of civil cases between white and black Southerners in the eight appellate courts examined took place between former slaves and their former masters or their former masters' heirs (72 out of 108 cases). In the two decades after Reconstruction (1878 to 1899), 35% of these cases involved former slaves and their former masters (36 out of 102 cases). Between 1865 and 1899, therefore, 108 out of 210 cases (51%) involved former slaves and their former masters.

55. For instance, the suit of Dush v. Fitzhugh, 70 Tenn. 307 (1879), contains allegations of sexual misconduct on the part of the black female plaintiff made by the white defendant.

56. Cochran v. Henry, 107 Miss. 233 (1914); Cobb v. Battle, 34 Ga. 450 (1866); and Ray v. Commissioners of Durham County, 110 N.C. 169 (1892).

57. For example, in an 1869 Georgia case, a group of former slaves attempted to claim part of their former masters' land, which he had left them in his will. In their petition, the black litigants charged that in January 1869, a white man named Abner Underwood told them that a white heir “would probably claim the inheritance left to your Orators.” Underwood then stated that he was a lawyer and offered to defend their inheritance in court. Despite his promises, the lawyer was actually working against their interests, for the white heirs. Briley v.Underwood, 41 Ga. 9 (1869). Even some black lawyers did not deal honestly with black litigants. See Storthz v. Arnold; Arnold v. Storthz, 74 Ark. 68 (1905); and Johnson v. Hall, 87 Miss. 667 (1905).

58. Reed, Conduct of Lawsuits, 66–67.

59. See for example, Munroe v. Phillips, 64 Ga. 32 (1879); Munroe v. Phillips, 65 Ga. 390 (1880).

60. Caruthers, Abraham, History of a Lawsuit, revised by Martin, Andrew B., 4th ed. (Cincinnati: The W.H. Anderson Company, 1903), 33, 240Google Scholar; Caruthers, Abraham, History of a Lawsuit in The Circuit Court of Tennessee On the Basis of The Code (Nashville, TN: A.A. Stitt, 1860), 184–85Google Scholar.

61. “Editorial Correspondence,” The Daily Telegraph (Macon, Georgia), October 25, 1865, 2. See also Pincus, Virginia Supreme Court, 27–29; and Mangum, The Legal Status of The Negro, 350–55.

62. In an 1895 Virginia case, for example, the jury and higher court rulings both accepted the testimony of a black witness to a man being run over by a train and did not believe the testimony of the train's white engineer. Seaboard & R.R.R. v. Joyner's Adm'r, 92 Va. 354 (1895). Black witnesses were important enough for litigants to sometimes try to influence black witnesses to fabricate their testimony. See, for example, the case of Davis v. Franke, 74 Va. 413 (1880). For more on black witnesses' importance in cases involving both black and white litigants, see Pincus, Virginia Supreme Court, 31–33; and Charles S. Mangum, Jr., The Legal Status of the Negro (Chopel Hill: The University of North Carolina Press, 1940), 355.

63. In the rural South, in particular, personal relationships played a crucial part in the outcome of cases, as the participants had often known one another from birth. Kent Leslie also argues that personal relations played an important part in a black litigant's postwar case. See Leslie, Kent Anderson, Woman of Color, Daughter of Privilege: Amanda America Dickson, 1849–1893 (Athens: University of Georgia Press, 1995)Google Scholar. For more about the long-term connections between white and black Southerners that began during slavery and continued after emancipation, see Clarke, Erskine, Dwelling Place: A Plantation Epic (New Haven, Conn.: Yale University Press, 2007)Google Scholar and Fox-Genovese, Elizabeth, Within the Plantation Household: Black and White Women of the Old South (Chapel Hill: The University of North Carolina Press, 1988)Google Scholar.

64. Mary Ray v. The Commissioners of Durham County, 110 N.C. 169 (1892); Briley v. Underwood, 41 Ga. 9 (1869); Cowan v. Stamps, 46 Miss. 435 (1872); and Simmons v. Hessey. Hessey's Exr. v. Simmons, 11 Ky. Op. 40 (1881).

65. Simmons v. Hessey. Hessey's Exr. v. Simmons, 11 Ky. Op. 40 (1881).

66. Munroe v. Phillips, 64 Ga. 32 (1879); and Munroe v. Phillips, 65 Ga. 390 (1880). Black litigants also used long-term ties with local white people to find out information for their cases. The plaintiff in one case, William Walker, noted conversations with the white defendants (his cousins) regarding how they obtained the property he claimed and about the lands' value, concluding, “I know pretty well all of Defts [Defendants].” Urey's Adm'r v. Urey's Ex'r, 86 Ky. 354 (1887).

67. In doing so, black Southerners appealed to the antebellum ideology of paternalism. Eugene Genovese lays out the doctrine of paternalism in his book Roll, Jordan, Roll: The World The Slaves Made (New York: Vintage Books, 1972)Google Scholar. According to Genovese, in the slave South, masters claimed that they took care of slaves, who were unable to adequately take care of themselves. The idea of paternalism is now regarded as an ideology that the slave owning class used to justify and defend slavery. At the turn of the century, white Southerners experienced a revival of the glorification of antebellum times and the “Lost Cause.” See McElya, Micki, Clinging to Mammy: the Faithful Slave in Twentieth-Century America (Cambridge, MA: Harvard University Press, 2007)CrossRefGoogle Scholar; and Blight, David W., Race and Reunion: The Civil War in American Memory (Cambridge, MA: Harvard University Press, 2001)Google Scholar. For examples of cases in which black litigants appealed to paternalism, see Culberth v. Hall, 159 N.C. 588 (1912); Broughton v. Walker, 197 Ala. 284 (1916); Kirby v. Arnold, 191 Ala. 263 (1915); Pearsall v. Hyde, 189 Ala. 86 (1914); Johnson v. Smith, 190 Ala. 521 (1914); Leonard v. Roebuck, 152 Ala. 312 (1907); Abercrombie v. Carpenter, 150 Ala. 294 (1907); and Industrial Mutual Indemnity Company v. Thompson, 83 Ark. 575 (1907).

68. Abercrombie v. Carpenter, 150 Ala. 294 (1907)

69. Smith, John W., A Treatise on The Law of Frauds and The Statute of Frauds (Indianapolis: The Bobbs-Merril Company, 1907)Google Scholar; Black, Henry Campbell, A Treatise on the Rescission of Contracts and Cancellation of Written Instruments (Kansas City, Mo.: Vernon Law Book Company, 1916), Vol. 1Google Scholar; Browne, Causten, A Treatise on the Construction of the Statute of Frauds (Boston: Little, Brown, and Company, 1895)Google Scholar.

70. Leonard v. Roebuck, 152 Ala. 312 (1907).

71. Watson, Archibald Robinson, A Treatise on the law of Damages for Personal Injuries, Embracing a Consideration of the Principles Regulating the Primary Question of Liability, As Well as the Measure and Elements of Recovery After Liability Established (Charlottesville, Va.: The Michie Company, 1901)Google Scholar; Hopkins, John L., The Law of Personal Injuries and Incidentally Damage to Property by Railway-Trains (Atlanta, Ga.: Foote & Davies Company, 1902)Google Scholar; Hopkins, John L., The Law of Personal Injuries and Incidentally Damage to Property by Railway-Trains (Atlanta, Ga.: The Harrison Company, 1912)Google Scholar. See also statutes on fraud during this time, such as “Statute of Frauds” in Park's Annotated Code of The State of Georgia, Vol. II (Atlanta: The Harrison Company, 1918), 1617–1631Google Scholar.

72. Mills, Receiver Ft. Smith & Western Rd. Co., v. Franklin, 130 Ark. 80 (1917).

73. Coast Line R.R. v. Boston, 83 Ga. 387 (1889).

74. Examples of black Southerners gaining knowledge through consulting with lawyers include Lattimore v. Dixon, 65 N.C. 664 (1871). Examples of black Southerners gradually gaining knowledge during the legal process include Briley v. Underwood, 41 Ga. 9 (1869); and Thomas v. Turner's Adm'r, 87 Va. 1 (1890). Freedpeople could also gain knowledge of the law by being present when their former masters or mistresses dictated or signed a will or deed benefiting the freedperson. See, for example, Briley v. Underwood, 41 Ga. 9 (1869) and Davis v. Strange's Ex'r, 86 Va. 793 (1890).

75. Thomas v. Turner's Adm'r, 87 Va. 1 (1890).

76. As Mary Ray and her family members brought their suit to court multiple times, they displayed knowledge of the due process of law guaranteed by the United States Constitution. In 1876, Ray's mother and brother sued the executor to regain the property, but after two years, they lost. Not being a party to the former suit, in 1890, Mary Ray initiated litigation to enforce her own property rights. She apparently understood that due process gave her, and not her relatives, the right to bring the case to court on similar grounds a second time. Ray v. The Commissioners of Durham County, 110 N.C. 169 (1892); “William N. Pratt Estate Records,” Orange County, North Carolina. North Carolina State Archives.

77. Ray v. The Commissioners of Durham County, 110 N.C. 169 (1892). See also the case of Fitzgerald v. Allman, 82 N.C. 492 (1880), in which the black litigants argued that they could not get a fair trial in a state court because “the plaintiffs are white persons, and in whose favor there is great partiality existing in this locality, and the defendants, your petitioners, are persons of color against whom there is existing in the locality a great prejudice on account of their color.” The Fitzgerald v. Allman case was removed to federal court.

78. For more on nuncupative wills, in which a testator orally declares his will before witnesses while on his deathbed, see Caruthers, History of a Lawsuit, 559–61. This contemporary manual for lawyers states that such a will “must be made in his last sickness. It must be in apprehension of speedy dissolution. If he recovers, the will is not valid.”

79. Thomas' Adm'r v. Lewis, 89 Va. 1 (1892).

80. Several newspapers surmised that Lewis's legal victory made her the wealthiest black person in Virginia. For newspaper coverage of this case, see “Current News and Comment,” Shenandoah Herald, October 10, 1890, 2; Augusta County Argus, January 13, 1891; “Bettie Thomas–Lewis,” The Times–Richmond, Va., June 19, 1892, 6; “Bettie Thomas Lewis Case,” The Times– Richmond, Va., July 21, 1892, 2; “Bettie Will Be Rich,” The Richmond Dispatch, July 24, 1892, 8; and “Bettie Thomas Lewis Case,” The Times–Richmond, Va., November 17, 1892, 2.

81. “Bettie Thomas–Lewis,” The Times–Richmond, Va., June 19, 1892, 6. For more on how celebrated cases could provoke widespread interest and public debate, see Grossberg, Michael, A Judgment for Solomon: The D'Hauteville Case and Legal Experience in Antebellum America (Cambridge: Cambridge University Press, 1996)CrossRefGoogle Scholar.

82. The appellate cases examined do not form a representative sample of lower court cases. However, of the 428 appellate cases involving black and white litigants between 1865 and 1920, judges decided approximately 190 cases (44%) and juries decided approximately 208 cases (49%). Between 1865 and 1877, seventy cases (65%) were decided by a judge and thirty-two cases (30%) by a jury. Between 1878 and 1899, forty-three cases (42%) were decided by a judge and fifty-five cases (54%) by a jury. Between 1900 and 1920, 77 cases (35%) were decided by a judge and 121 cases (56%) by a jury. In a certain number cases, it could not be determined who decided the case. At times cases were decided by more than one lower court before they reached the state's highest court. In at least four cases involving black litigants, suits were decided in one lower court by a judge and in another lower court by a jury.

83. A few exceptions to this included Jonathan Jasper Wright, who became the first black state supreme court justice when he was elected justice of the Supreme Court of South Carolina in 1870, and George Lee, who became the first black to sit on a superior court when the South Carolina legislature elected him as a superior court judge in 1872. See Richard Gergel and Belinda Gergel, “‘To Vindicate the Cause of the Downtrodden,’: Associate Justice Jonathan Jasper Wright and Reconstruction in South Carolina,” in Underwood and Burke, At Freedom's Door, 36–71; Just The Beginning Foundation, From Slavery to the Supreme Court Online Exhibit, http://www.jtbf.org/index.php?submenu=Slavery&src=gendocs&link=FromSlaverytotheSupremeCourtOnlineExhibit&category=Main, accessed, April 30, 2009. Historian Kermit Hall found that approximately 67.2% of Southern judges between 1832 and 1920 were from the upper middle class (“sons of successful professionals, planters, merchants and bankers”), 15% were from elite families, and 17.7% came from modest origins. Hall, Kermit L., “The ‘Route to Hell’ Retraced: The Impact of Popular Election on the Southern Appellate Judiciary, 1832–1920,” in Ambivalent Legacy: A Legal History of the South, ed. Bodenhamer, David J. and Ely, James W. Jr. (Jackson: University Press of Mississippi, 1984), 245–47Google Scholar.

84. In Georgia, for example, Joseph Emerson Brown (1868–1870) and Henry Kent McCay (1868–1875) both seem to have broken from the Democratic Party during Reconstruction. Another Reconstruction Era justice, Osborne Augustus Lochrane (1871–1872), had migrated to Georgia from Ireland as a young man and cooperated with the Republican Party after the Civil War, and yet another, Robert P. Trippe (1873–1875), had been a Whig before the Civil War. For more about the political sympathies of Georgia Supreme Court and Superior Court judges during Reconstruction, see Deen, Georgia's Appellate Judiciary; and Grice, Warren, The Georgia Bench and Bar: The Development of Georgia's Judicial System, vol. 1 (Macon, GA.: The J.W. Burke Company, 1931), 338–47Google Scholar.

85. In some states, such as Tennessee, judges favoring the Unionist cause were ousted as early as 1870. However, in other states, such as Florida, Reconstruction judges continued in their positions on the Florida Supreme Court until 1885. In Georgia, for example, Reconstruction judges were replaced at different times, with two judges resigning in 1870 and 1875 and the third remaining on the court until he died in 1881. Brown, R. Ben, “The Tennessee Supreme Court During Reconstruction and Redemption,” in A History of the Tennessee Supreme Court, ed. Ely, James W. Jr. (Knoxville, TN: The University of Tennessee Press, 2002), 100–31Google Scholar; Ranney, In the Wake of Slavery, 18–28, 126–28, 154–56; and Huebner, Timothy S., The Southern Judicial Tradition: State Judges and Sectional Distinctiveness, 1790–1890 (Athens: The University of Georgia Press, 1999), 1–4, 8–9, 186–91Google Scholar.

86. Kermit Hall contrasts the lack of competitiveness in most Southern judicial elections, with judicial elections in the Midwest during this time, which were much more competitive and partisan. The lack of more than one competitive political party in the South during much of this time was an important factor in this difference. Hall, “The ‘Route to Hell’ Retraced,” 238–43.

87. See Karsten, Peter, Heart versus Head: Judge-Made Law in Nineteenth-Century America (Chapel Hill: The University of North Carolina Press, 1997), 26–128Google Scholar; Waldrep, “Substituting Law for the Lash,” 1432–33; Howington, Arthur F., What Sayeth the Law: The Treatment of Slaves and Free Blacks in the State and Local Courts of Tennessee (New York: Garland Publishing, 1986), iv–v, 1–27Google Scholar; and Finkelman, Paul, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill, NC: University of North Carolina Press, 1981), 181–235Google Scholar.

88. Pincus, Virginia Supreme Court, xxvii; Waldrep, “Substituting Law for the Lash,” 1444–49.

89. Cowan v. Stamps, 46 Miss. 435 (1872).

90. State supreme court judges expressed opinions about the importance of a testator's intention in deciding cases litigated by former slaves who desired to inherit without migrating to Liberia in the cases of Lynch v. Burts, 48 Tenn. 600 (1870); Milly v. Harrison, 47 Tenn. 191 (1869) and Urey's Adm'r v. Urey's Ex'r, 86 Ky. 354 (1887).

91. Cowan v. Stamps, 46 Miss. 435 (1872).

92. For examples of cases between white and black litigants that cite property or contract suits between white litigants as precedents, see the state supreme court judges' opinions in Dudley v. Abner, 52 Ala. 572 (1875); Sweetser v. Shorter, 123 Ala. 518 (1898); and Cunningham's Adm'r v. Speagle, 106 Ky. 278 (1899). Other judges' opinions did not cite specific precedents, but drew on the opinions of noted legal authorities or established law about these topics. See, for example, Yon v. Blanchard, 75 Ga. 519 (1885). In other suits between black and white litigants, the state supreme court's opinion was based on procedural grounds. Judges affirmed or dismissed appeals that objected to how a jury was empanelled, or claimed that the grounds for a new trial had not been met. See Capehart v. Stewart, 80 N.C. 101 (1879) and; Smith v. Summerlin, 48 Ga. 425 (1873).

93. Cunningham's Adm'r v. Speagle, 106 Ky. 278 (1899). See also Yon v. Blanchard, 75 Ga. 519 (1885).

94. Cunningham's Adm'r v. Speagle, 106 Ky. 278 (1899). For more examples of cases in which judges cited precedents involving white litigants in their opinions, see Dudley v. Abner, 52 Ala. 572 (1875); Sweetser v. Shorter, 123 Ala. 518 (1898); and Talley v. Robinson's Assignee, 63 Va. 888 (1872).

95. Ayers, The Promise of the New South, 134.

96. Storthz v. Williams, 86 Ark. 460 (1908); and Mann v. Russey, 101 Tenn. 596 (1898).

97. See Harrison v. Rodgers, 162 Ala. 515 (1909) and discussion of this case in Royal Dumas, “The Muddled Mettle of Jurisprudence: Race and Procedure in Alabama's Appellate Courts, 1901–1930,” Alabama Law Review 58 Ala. L. Rev. 417 (2006): 417, 440–1. See also Broughton v. Walker, 197 Ala. 284 (1916); and Morgan v. Gaiter, 202 Ala. 492 (1919).

98. Pincus, Virginia Supreme Court, 18.

99. During this period, black jury members' service remained contested on a state level as well as within individual cases. In Virginia, for example, black members of the General Assembly unsuccessfully introduced resolutions on multiple occasions during the 1870s to prevent blacks from sometimes being excluded from juries. For an examination of black people gaining the ability to serve on juries, and the opposition to their service on juries, see Ranney, In the Wake of Slavery, 51, 145–46; Pincus, Virginia Supreme Court, 18–27; Mangum, The Legal Status of The Negro, 308–35; and Nieman, Donald G., “Black Political Power and Criminal Justice: Washington County, Texas, 1868–1884,” in The Journal of Southern History 55 (1989), 398–406CrossRefGoogle Scholar.

100. As this article only examines lower court cases that were accepted by a higher court on appeal, there is not a representative sample to judge how often black litigants won their cases in lower courts. Of the lower court cases appealed to the higher court, black litigants won 46 out of 108 cases at the lower court level (43%) between 1865 and 1877, 57 out of 102 cases at the lower court level (56%) between 1878 and 1899 and 129 out of 218 cases at the lower court level (59%) between 1900 and 1920. Of the 190 court cases involving judges at the lower court level between 1865 and 1920, black litigants lost 101 cases (53%) and won 78 cases (41%). Of the 208 lower court cases involving juries, black litigants lost 58 cases (28%) and won 142 cases (68%). The cases not accounted for here had a split decision at the lower court level or it could not be determined what body made the lower court judgment. Judges still influenced jury trials, sometimes even directing juries to decide for or against a black litigant.

101. African American litigants were the sole party appealing the case in 52 out of 108 cases (48%) between 1865 and 1877, 41 out of 102 cases (40%) between 1878 and 1899 and 85 out of 218 cases (39%) between 1900 and 1920. These numbers do not include the instances in which both parties appealed the case (this occurred in at least seven cases between 1865 and 1920). Some cases were heard as many as three times by an appeals court. In my research, cases involving former masters and former slaves were more likely to be appealed multiple times than other types of cases. For examples of cases that were appealed to the lower and higher courts multiple times, see Munroe v. Phillips, 64 Ga. 32 (1879); Munroe v. Phillips, 65 Ga. 390 (1880); Shannonhouse v. Whedbee (1867); Whedbee v. Shannonhouse, 62 N.C. 283 (1868); Black's Admr. v. Virginia Portland Cement Co., 104 Va. 450 (1905); and Black's Admr. v. Virginia Portland Cement Co., 106 Va. 121 (1906).

102. In his manual for lawyers, Reed, a contemporary Georgia jurist, advised other attorneys that lawyers should discourage their clients from appealing “unless you see that the verdict is really wrong.” Reed, Conduct of Lawsuits, 402.

103. Caruthers, History of a Lawsuit (1860), 278.

104. In Virginia, the legislature elected appellate judges throughout the period from 1865 to 1920. In Georgia, appellate judges were elected by the legislature until 1896, when the state adopted the method of popular election. Mississippi had a system of popular election until 1868, when it changed to having appellate judges appointed by the governor. Mississippi changed back to the system of popular election in 1914. In Tennessee, North Carolina, Alabama, Kentucky, and Arkansas, appellate judges were elected by popular vote during this period. In many of these states, governors could appoint judges to the court if vacancies occurred between elections. Ely, James W. Jr., ed., A History of the Tennessee Supreme Court (Knoxville, TN: The University of Tennessee Press, 2002), 84–89, 101–105Google Scholar; Harris, John B., ed., A History of the Supreme Court of Georgia (Macon, GA: The J.W. Burke Co.: 1948), 54–55, 171–74Google Scholar; Clark, Walter, History of the Supreme Court of North Carolina (Raleigh, NC: 1919), 5–8Google Scholar; Pincus, Virginia Supreme Court, 4; J. Ed Livingston, “A History of the Alabama Judicial System” http://judicial.alabama.gov/docs/judicial_history.pdf, accessed January 10, 2009; Third Constitution of Kentucky (1850); Present Constitution of the Commonwealth of Kentucky (1891); Constitution of the State of Arkansas of 1874; Mississippi Constitution of 1868; Mississippi Constitution of 1890; and Hall, “The ‘Route to Hell’ Retraced,” 229–55.

105. State policies on this changed during the nineteenth and early-twentieth centuries. From 1810 to 1868, for example, the North Carolina Supreme Court accepted all cases that were appealed to its court. The North Carolina Constitutions of 1868 and 1876, however, limited the North Carolina Supreme Court's jurisdiction “to appeals on matters of law or legal inference.” 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” in Clark Battle, Supreme Court of North Carolina (Chapel Hill, NC: North Carolina Collection, UNC–Chapel Hill), 50–51. See also Caruthers, History of a Lawsuit (1860), 256, 264; and Harris, John B., ed., A History of the Supreme Court of Georgia (Macon, GA: The J.W. Burke Co., 1948), 56Google Scholar.

106. In Georgia, for example, lawyers from each side appeared before the state supreme court to read a brief to the judges. Other parts of the record of the lower court proceedings could also be read. Caruthers, History of a Lawsuit (1860), 271–72, 532.

107. For examples of dissenting opinions by judges who did not agree with a decision against a black litigant, see Welborn v. Mayrant, 48 Miss. 652 (1873); Paxton v. Meyer, 58 Miss. 445 (1880); Arnold v. Storthz, 74 Ark. 68 (1905); St. Louis & San Francisco Railroad Company v. Petties, 99 Ark. 415 (1911); Yazoo & M. V. R. Co. v. Walls, 110 Miss. 256 (1915); and Louisville, N. & G. S. R.R. Co. v. Fleming, 82 Tenn. 128 (1884). For examples in which a judge dissented with a decision in favor of a black litigant, see Maddox v. Neal, 45 Ark. 121 (1885); The Georgia Railroad & Banking Co. v. Dougherty, 86 Ga. 744 (1890); Slade v. Sherrod, 175 N.C. 346 (1918); Lawrence v. Western Union Telegraph Company, 171 N.C. 240 (1916); and Hayley v. Hayley, 62 N.C. 180 (1867).

108. Between 1865 and 1877, higher courts upheld lower-court decisions in favor of African American litigants in thirty-two cases and reversed lower court decisions against black litigants in thirty-two cases. During this time, higher courts reversed lower court decisions for black litigants in fourteen cases and upheld lower court decisions against black litigants in twenty cases. Between 1878 and 1899, higher courts upheld lower court decisions in favor of African American litigants in thirty-five cases and reversed lower court decisions against black litigants in twenty-one cases. During this time, higher courts reversed lower court decisions for black litigants in twenty-two cases and upheld lower court decisions against black litigants in twenty cases. Between 1900 and 1920, higher courts upheld lower court decisions in favor of African American litigants in eighty-nine cases and reversed lower court decisions against black litigants in forty-five cases. During this time, higher courts reversed lower-court decisions for black litigants in forty cases and upheld lower court decisions against black litigants in thirty-four cases. Twenty-four cases between 1865 and 1920 had split decisions at the local or appellate level, or the records were inconclusive about the outcome.

109. Out of 428 appellate cases between 1865 and 1920, higher courts upheld lower court decisions in favor of African American litigants in 156 cases (36% of cases) and reversed lower court decisions against black litigants in 98 cases (23% of cases). During this time, higher courts reversed lower court decisions for black litigants in 76 cases (18% of cases) and upheld lower court decisions against black litigants in 74 cases (17% of cases). These statistics do not include other cases in which either the lower- or higher-court decision was split or inconclusive.

110. In cases between white and black litigants from 1865 to 1920, black litigants won more than 50% of the time in all eight Southern states examined. Freedpeople's suits were slightly more successful in certain states than in others. Black litigants won most often in North Carolina (fifty-three out of seventy-one cases or 75% of the time), Alabama (twenty-six out of thirty-seven cases or 70%), Tennessee (twenty-five out of thirty-nine cases or 64%), Georgia (forty-five out of seventy-three cases or 62%), and Arkansas (twenty-two out of thirty-six cases or 61%). Black litigants won slightly less often in Kentucky (forty-six out of eighty-five cases or 54%), Mississippi (thirty-two out of sixty cases or 53%), and Virginia (fourteen out of twenty-seven cases or 52%).

111. Legal scholars have long debated the nature of the relationship between the legal sphere and the larger society. Whereas some scholars emphasize the limitations of legal action on the surrounding society, other scholars contend that the law works to define power relations in people's everyday interactions with each other. The realist and law and society schools of thought, as well as the school of formalism, often emphasize the limits of legal action. Whereas the field of critical legal history emphasizes the “indeterminate” nature of the relationship between law and society (the difficulty of finding consistent patterns in this relationship that will necessarily reoccur), they note the importance of law in structuring everyday power relations. Gordon, Robert W., “Critical Legal Histories,” Stanford Law Review 36 (1984): 100–19, 124–25CrossRefGoogle Scholar. Here, I follow Michael J. Klarman in looking at the direct and indirect consequences of these cases. Klarman discusses the direct and indirect effects of landmark twentieth-century Supreme Court cases about civil rights. See Klarman, From Jim Crow to Civil Rights, 7.

112. The codes of Southern states set out the way court decisions should be enforced. In Tennessee, for example, land was recovered through a writ of possession that commanded the sheriff to deliver the land to the winning party. If the losing party did not deliver the land, the sheriff had the authority to take any necessary action to obtain the land, including taking away the losing party's other property. Caruthers, History of a Lawsuit, 282–83.

113. See note 101.

114. See note 18.

115. See, for example, the comments of former Virginia judge John H. Gwathmey about the skill of certain black litigants in answering lawyer's questions in Legends of Virginia Courthouses (Richmond: Press of the Dietz Printing Company, 1933), 18, 59–61, 78–79Google Scholar. White Southerners also discussed legal cases with each other. As a Georgia jurist wrote in 1885, “the leading facts of an exciting case circulate widely from mouth to mouth.” John C. Reed, Conduct of Lawsuits, 181.

116. See testimony in Armstrong v. Pearre, 47 Tenn. 171 (1869); Deberry v. Hurt, 66 Tenn. 390 (1874); Thomas' Adm'r v. Lewis, 89 Va. 1 (1892); “Editorial Correspondence,” The Daily Telegraph (Macon, GA), October 25, 1865, 2; “South Carolina Letter” The Atlanta Constitution, August 4, 1869, 1; and “Negro Lawyers,” The Atlanta Constitution, October 31, 1869, 1.

117. See, for example, the following white newspaper coverage of state supreme court cases between white and black litigants: “C.C. Duncan, administrator, et al, v. Sallie Pope, Equity, from Bibb,” Georgia Weekly Telegraph, Septmber 10, 1872, 1; “Kilpatrick et al v. Strozier et al,” The Atlanta Constitution, December 16, 1881, 6; “Asks $5,000 for Imprisonment,” The Atlanta Constitution, August 16, 1898, 10; “Bland v. City of Mobile,” The Montgomery Advertiser, March 25, 1903, 10; “Ayer v. James,” The Atlanta Constitution, July 14, 1904, 10;; “City of Harrodsburg v. Sallee,” The Lexington Herald, April 11, 1911, 3; and “Mary M. Lee v. M.M. Wilkinson,” The Daily Herald (Gulfport, MS), March 13, 1912, 2.

118. The 1873 Georgia Supreme Court opinion in Thweatt v. Redd, 50 Ga. 181 (1873) cites the previous appellate cases Green v. Anderson, 38 Ga. 655 (1869) and Redd. v. Hargroves, 40 Ga. 18 (1869). Likewise, in ruling that a group of former slaves could recover the property set aside for their migration to Liberia, a North Carolina appeals court justice cited three earlier North Carolina Supreme Court cases brought by black litigants who sought to gain bequests tied to their emigration to Africa. As his court had ruled in favor of the black litigants' right to the bequests in the three previous cases, the justice asserted that it “would be a work of supererogation” in the case at hand “to adduce arguments to show that the plaintiffs are entitled to recover something in this suit.” See Todd v. Trott, 64 N.C. 280 (1870).

119. “Reconstruction in Georgia,” The New Georgia Encyclopedia, http://www.georgiaencyclopedia.org/nge/Article.jsp?id=h-2533, accessed February 25, 2011.

120. Carle, Susan D., “Race, Class, and Legal Ethics in the Early NAACP (1910–1920),” in Lawyers' Ethics and the Pursuit of Social Justice, ed. Carle, Susan D. (New York: New York University Press, 2005), 114–19Google Scholar; Tushnet, Mark V., The NAACP's Legal Strategy Against Segregated Education, 1925–1950 (Chapel Hill: University of North Carolina Press, 1987)CrossRefGoogle Scholar; Sullivan, Patricia, Lift Every Voice: The NAACP and the Making of the Civil Rights Movement (New York: The New Press, 2009), 101–44Google Scholar; and Goluboff, The Lost Promise of Civil Rights.