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Signposts: New Directions in Southern Legal History

Copyright Date: 2013
Pages: 480
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  • Book Info
    Book Description:

    In Signposts, Sally E. Hadden and Patricia Hagler Minter have assembled seventeen essays, by both established and rising scholars, that showcase new directions in southern legal history across a wide range of topics, time periods, and locales. The essays will inspire today's scholars to dig even more deeply into the southern legal heritage, in much the same way that David Bodenhamer and James Ely's seminal 1984 work, Ambivalent Legacy, inspired an earlier generation to take up the study of southern legal history. Contributors to Signposts explore a wide range of subjects related to southern constitutional and legal thought, including real and personal property, civil rights, higher education, gender, secession, reapportionment, prohibition, lynching, legal institutions such as the grand jury, and conflicts between bench and bar. A number of the essayists are concerned with transatlantic connections to southern law and with marginalized groups such as women and native peoples. Taken together, the essays in Signposts show us that understanding how law changes over time is essential to understanding the history of the South. Contributors: Alfred L. Brophy, Lisa Lindquist Dorr, Laura F. Edwards, James W. Ely Jr., Tim Alan Garrison, Sally E. Hadden, Roman J. Hoyos, Thomas N. Ingersoll, Jessica K. Lowe, Patricia Hagler Minter, Cynthia Nicoletti, Susan Richbourg Parker, Christopher W. Schmidt, Jennifer M. Spear, Christopher R. Waldrep, Peter Wallenstein, Charles L. Zelden.

    eISBN: 978-0-8203-4584-0
    Subjects: Law

Table of Contents

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  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
  3. List of Illustrations
    (pp. xi-xii)
  4. Acknowledgments
    (pp. xiii-xiv)
  5. Introduction
    (pp. 1-16)
    Sally E. Hadden and Patricia Hagler Minter

    Nearly thirty years ago, James W. Ely Jr. and David Bodenhamer hosted a conference at the University of Southern Mississippi on southern legal history that invigorated a promising yet relatively unexplored subject. Prior to their conference, southern legal history was less visible as a field, appearing only sporadically in history journals. Scholars working in the field were few, and the “vastness of the research which remain[ed] to be done” was daunting. Ely and Bodenhamer’s great shared complaint was the lack of legal history studies outside New England, which meant that “a body of literature from other regions still does not...


    • In My Mother’s House: Dowry Property and Female Inheritance Patterns in Spanish Florida
      (pp. 19-44)
      Susan Richbourg Parker

      Proverbial Spanish wisdom admonishes betrothed couples in rhythm and rhyme, Antes de casar, ten casa de morar (Before marrying, have a house to live in). The residents of Spanish Florida developed ways to address this universal concern through combining the laws of the Spanish empire with local realities in the colonial period. In St. Augustine, brides, not grooms, often were the source of the homes for the new family. In part, the reliance on females for homes was a pragmatic response to the number of landless men. In the last quarter of the seventeenth century, men began arriving in Florida...

    • The Law and Order Campaign in New Orleans, 1763–1765: A Comparative View
      (pp. 45-64)
      Thomas N. Ingersoll

      In the summer of 1763, New Orleans authorities began an unusual crackdown on suspected criminals. The ensuing arrests, torture, convictions, and executions reveal an eighteenth century at its least enlightened and provide a context in which to explore several comparative themes. First, compared with the parish’s immediate past and future, the crackdown was an isolated exception; it did not reflect routine judicial activism in Louisiana, for it was a product of sudden imperial flux. Those of the local planter class had achieved mastery and had rational hopes of postwar economic recovery, when suddenly a decision in Paris threw their basic...

    • Using the Faculties Conceded to Her by Law”: Slavery, Law, and Agency in Spanish New Orleans, 1763–1803
      (pp. 65-88)
      Jennifer M. Spear

      In September 1773, Catherina, a thirty-six-year-old slave of the estate of Jean Baptiste Destrehan, petitioned the estate’s executors for freedom for herself and her five-year-old daughter, Felicité. Gabriel Fazende, one of the estate’s two executors, quickly consented, but the second executor, Estevan Boré, who was married to one of Destrehan’s daughters, refused. Asking the court to dismiss Catherina’s petition, Boré declared that “in no manner will he consent to giving her her freedom considering her bad conduct, her iniquity, [and] her dissimulation.” Two days later, Catherina filed a response. She proclaimed that she had “merited the right to buy her...

    • South Carolina’s Grand Jury Presentments: The Eighteenth-Century Experience
      (pp. 89-110)
      Sally E. Hadden

      In the contemporary world, we have grown used to hearing about grand jury indictments. Between media scandals and procedural television programs such as Law and Order that follow the accused from arraignment to trial, individuals in our age are sometimes overly informed about indictments of public figures or fictional characters who have run afoul of the law. Indictments are the result of information provided to a grand jury, usually by the local prosecutor’s office. The grand jurors (not to be confused with regular, or petit, jurors, who sit during an ordinary trial) are shown the amassed evidence of a possible...

    • Guarding Republican Liberty: St. George Tucker and Judging in Federal Virginia
      (pp. 111-134)
      Jessica K. Lowe

      Judge St. George Tucker had just left the bench late in the evening of September 3, 1791, when he scrawled a short message to attorney Charles Lee in the flickering candlelight. “In a cooler moment,” he wrote, “it is not improbable you may be convinced that in my official conduct I have neither deserved the Imputation of partiality, nor of blood-thirstyness—if so,” he continued, “I have a right to expect from your candor, an acknowledgement that those expressions which you this Evening made use of at the bar, and which in my interpretation of them may have a tendency...


    • The Shades of Loyalty: Elisha W. Chester and the Cherokee Removal
      (pp. 137-170)
      Tim Alan Garrison

      In 1841, the Advocate of Moral Reform printed an editorial describing how the New York Female Moral Reform Society, the group that published the newspaper, was involved in a bitter dispute with its publishing agent. The society had relieved Charles Yale from his position for certain financial irregularities; Yale, in retaliation, had published a pamphlet condemning the society and accusing it of using funds offered for philanthropic purposes for the private benefit of its trustees. The editor noted that a local lawyer and member of the society, Elisha W. Chester, chaired a committee that had investigated Yale, and that Chester...

    • The Material Conditions of Dependency: The Hidden History of Free Women’s Control of Property in the Early Nineteenth-Century South
      (pp. 171-192)
      Laura F. Edwards

      On August 11, 1844, Elizabeth Cooley sat down to write in her diary, which she did regularly from the age of seventeen until her death at age twenty-three. That day, she and her mother had gone “to town a trading” and purchased knives and forks as well as calico to make dresses for Elizabeth and her sister, Amanda. The town was likely Hillsville, tucked into the southwest corner of Carroll County, Virginia, near the point where Tennessee, North Carolina, and Virginia meet. Given the difficult terrain of the Blue Ridge Mountains and the distance to town, shopping really was an...

    • Democracy, and Lynching, in America
      (pp. 193-218)
      Christopher R. Waldrep

      For most of American history, the Constitution has symbolized the nation’s commitment to liberty and the rule of law, a fundamental pledge to make freedom a national principle. Since 1985, though, questions about whether the Constitution should be properly seen as a freedom document have gained momentum.¹ Much of this criticism cites the powerful role played by white southerners at the 1787 Constitutional Convention in Philadelphia. According to this portrait of the founding, the Three-Fifths Clause gave white southerners an unfair advantage in elections; the Fugitive Slave Clause sanctioned slavery; Article I, Section 9, protected slave imports for twenty years;...

    • The World Made by Laws and the Laws Made by the World of the Old South
      (pp. 219-240)
      Alfred L. Brophy

      For a generation now, a group of scholars has reinvigorated the study of thought in the Old South. That is a tough task for at least two reasons. First, as the title of Drew Faust’s A Sacred Circle implies, selfidentified intellectuals were relatively few. Second, and this is more a product of our limitation than of their world, we have difficulty understanding how smart and well-educated people could support an institution that is so clearly, well, inhuman. Thus, we have difficulty seeing antebellum southerners as intellectuals or as serious thinkers.

      Moreover, the actors did themselves a disservice in the way...

    • Peaceful Revolution and Popular Sovereignty: Reassessing the Constitutionality of Southern Secession
      (pp. 241-264)
      Roman J. Hoyos

      The debate over the constitutionality of southern secession has long been a question of political morality. To say that secession was or was not constitutional is to say that the Civil War was or was not justified. Thus, two poles have come to define the interpretation of secession’s constitutionality. Beginning shortly after the war in works by, among others, Albert Taylor Bledsoe, Alexander Stephens, and Jefferson Davis, former secessionists denied that slavery was the cause of the war, admitting only that it was the circumstance for separation. In this view, secession was simply a way to protect states’ constitutional rights,...

    • Strategic Litigation and the Death of Reconstruction
      (pp. 265-288)
      Cynthia Nicoletti

      Reconstruction offered hope of meaningful change in the American South. With the federal government in control of the states of the former Confederacy, social, political, and even economic relations in southern society could have been profoundly altered. African Americans could have achieved some significant and lasting measure of equality with their former masters if federal legislators had remained committed to a program of Radical Reconstruction, undergirded by a federal military presence in the states of the former Confederacy. As historian Eric Foner has argued, “Like the Revolution, Reconstruction was an era when the foundations of political life were thrown open...

    • Homestead Exemption and Southern Legal Culture
      (pp. 289-314)
      James W. Ely Jr.

      Scholars have long examined whether and to what extent southern legal culture had unique dimensions.¹ Understandably, much attention has been focused on race and caste as a dominant theme in fashioning law in the southern states.² Yet this emphasis may obscure another characteristic—chronic indebtedness—that profoundly shaped the evolution of legal norms in the South.³ It is easy to forget today that until the post–World War II era, the South was a debtor region. The credit needs of an agricultural society and the capital-intensive nature of slavery fastened indebtedness on many in the region before the Civil War....


    • A Place for Themselves in the Modern World: Southern Women and Alcohol in the Age of Prohibition, 1912–1933
      (pp. 317-344)
      Lisa Lindquist Dorr

      In 1920, a white woman in Andalusia, Alabama, reported that she had been raped by a black man. When the governor sent two officers to investigate, they reported back that the woman involved had been intimate with two white men, one of whom apparently became very angry that he was sharing her affections. “It is generally believed that he beat this woman up himself and, in order to protect him from being arrested, she claimed to have been assaulted by a negro. [They] were very much under the influence of drink.”¹ Sexual promiscuity and alcohol consumption overrode her incendiary charge...

    • Race, Property, and Negotiated Space in the American South: A Reconsideration of Buchanan v. Warley
      (pp. 345-368)
      Patricia Hagler Minter

      In October 1914, Charles Buchanan, a white real estate agent, and William Warley, an African American postal employee, began a real estate transaction that would end at the Supreme Court of the United States. On May 11 of that year, the city of Louisville, Kentucky, located on the Ohio River, the historic border between North and South, enacted an ordinance that prohibited white property owners from selling to African Americans if the property was located in a white neighborhood. Black leaders quickly mobilized to fight what they viewed as an assault on their equal protection and property rights. With the...

    • Race, Law, and Southern Public Higher Education, 1860s–1960s
      (pp. 369-392)
      Peter Wallenstein

      During the century from the 1860s through the 1960s—the hundred years after universal emancipation—the law of race and higher education in the U.S. South went through a series of substantial changes. In various configurations, three forces or groups lined up to shape the law of race and higher education in the region: (1) black southerners, (2) white policy makers in southern states, and (3) federal authorities (mostly Congress or the courts).¹ To be sure, none of the three groups can be assumed to be a monolith. White students, school administrators, alumni, politicians, and judges might be divided, among...

    • The Southern Roots of the Reapportionment Revolution
      (pp. 393-416)
      Charles L. Zelden

      In July 1961, only thirteen states had constitutional or statutory rules requiring the apportionment of the upper houses of their legislatures to be based on population alone; for the lower houses, the number stood at just twelve. An additional seven states mandated that their upper houses take population figures into account but allowed for “minor” variations based on other factors—there were only four additional corresponding provisions for the lower houses. All other states based their apportionment schemes on geographic factors such as county lines or town and regional groupings, used other nonnumerical standards such as taxes paid, or placed...

    • Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement
      (pp. 417-446)
      Christopher W. Schmidt

      On July 2, 1964, after more than a year of national debate, Congress passed and President Lyndon B. Johnson signed into law the Civil Rights Act of 1964. The most controversial part of the law was the public accommodations provision (Title II), which prohibited racial discrimination in most of the nation’s restaurants and hotels. One business affected by this new federal antidiscrimination requirement was the Pickrick, an Atlanta restaurant locally famous for its fried chicken and owned by one Lester Maddox. The Pickrick only served whites, and Maddox had no intention of changing this policy. Within days of the passage...

  9. Contributors
    (pp. 447-452)
  10. Index
    (pp. 453-473)