The history of race in the nineteenth-century United States is often told as a story of black and white in the South, and white and Indian in the West, with little attention to the intersection between black and Indian. This article explores the history of nineteenth-century America's “little races”—racially ambiguous communities of African, Indian, and European origin up and down the eastern seaboard. These communities came under increasing pressure in the years leading up to the Civil War and in its aftermath to fall on one side or the other of a black-white color line. Drawing on trial records of cases litigating the racial identity of the Melungeons of Tennessee, the Croatans/Lumbee of North Carolina, and the Narragansett of Rhode Island, this article looks at the differing paths these three groups took in the face of Jim Crow: the Melungeons claiming whiteness; the Croatans/Lumbee asserting Indian identity and rejecting association with blacks; the Narragansett asserting Indian identity without rejecting their African origins. Members of these communities found that they could achieve full citizenship in the U.S. polity only to the extent that they abandoned their self-governance and distanced themselves from people of African descent.

The writs of entry are of interest chiefly because they offer an example of how, in the first century of its history, the common law grew by the creation of new writs. The first writs of entry were among the earliest writs to be invented after the legal reforms of Henry II. Further writs of entry were created after 1217. The distinctive feature of a writ of entry was that it challenged what plaintiff thought was the basis of defendant's claim to the land in dispute. A writ of entry alleged that defendant “had no entry” into the land other than by a transaction or taking that did not authorize him to hold the land.

Three decades ago, John Langbein published an influential book on medieval and early modern judicial torture. Before Langbein, Enlightenment philosophers such as Beccaria and Voltaire had traditionally been credited with the final abolition of judicial torture in the leading European states during the latter part of the eighteenth century. Langbein dismissed the traditional explanation as a “fairy tale,” claiming that the use of torture had in fact declined in major European countries since the sixteenth and seventeenth centuries, well before its formal abolition. In the medieval statutory or Roman-canon theory of proof, judicial torture was originally designed to produce confessions in cases of serious crime in which “full proof” in the form of confession or two eyewitnesses was needed to convict. The argument that Langbein advanced is that the emerging new modes of punishment for serious crime, such as forced labor, transportation, and imprisonment, enabled European criminal courts to take full advantage of the medieval legal institution of extraordinary punishment, poena extraordinaria, which could be imposed without confession if the evidence was otherwise convincing. Extraordinary punishment was by definition something else than the ordinary punishment, usually less than capital punishment. In practice this meant milder punishment on less evidence. Langbein's pivotal point is that the rise of the extraordinary punishment rendered torture unnecessary in many cases, although it still remained legal. Causing a revolution in the law of proof, free judicial evaluation of evidence thus in fact developed alongside the old statutory theory of proof, which now lost its monopoly.

In his inaugural lecture as Downing Professor of the Laws of England at the University of Cambridge, delivered in October 1888, Frederic Maitland offered a set of provocative and now familiar reflections on “Why the history of English law is not written.” According to Maitland, although English archives possessed “a series of records which for continuity, catholicity, minute detail[,] and authoritative value” had “no equal…in the world,” the “unmanageable bulk” of these sources had “overburdened” aspiring historians of English law. As a result, “large provinces” of English legal history remained to be “reclaimed from the waste.” With few willing to undertake such reclamation efforts, the historiography of English law remained as bleak and barren as the bogs from which Maitland's Cambridgeshire had itself only reluctantly emerged.