Reformers in these two states actually were part of a national network that sought to rationalize law and centralize the operations of state governments. The effort included not only the organization of statutes and the creation of stronger appellate courts with the power to set precedent, but also the elevation of the state level over the local level as the place where a uniform body of law was created and interpreted.
In the resulting statute collections and appellate decisions, lawmakers relied heavily on the rubric of individual rights, taking the legal principles that had governed civil matters involving property since the Revolution and applying them to areas of law that had been left to local areas, namely criminal matters and other public issues. These legal texts, however, did not necessarily describe or govern practice in the area of public law, even in the s and s. In fact, reformers were most successful at the ideological level, particularly in their efforts to legitimize the concept of a unified body of state law as desirable and even inevitable.
In terms of actual institutional change, their accomplishments were uneven. Local areas retained considerable authority throughout the antebellum period. On the eve of the Civil War, counties and districts or municipalities remained important loci of government authority: major questions about the public welfare were still aired and decided at the local level.
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The most visible were the circuit courts, which met on a regular schedule in county seats or court towns and which held jury trials. Not only did circuit courts provide obvious symbols of government authority, but their grand juries also made recommendations for the enforcement and modification of laws at the local, state, and even national levels. But circuit courts were only the most conspicuous part of a system dominated by even more localized legal proceedings, including magistrates' hearings and trials, inquests, and other ad hoc legal forums.
Magistrates not only screened cases and tried minor offenses, but also kept tabs on the orphaned, ill, and poor as well as matters involving markets, health, and morals. This legal system was everywhere and nowhere. There was no single location for localized law or the government authority it represented. Towns where circuit courts met were likely to have courthouses, but that was not always the case. The practice of law was not associated exclusively with courthouses anyway, because most legal matters were conducted elsewhere. When people had a complaint, they initiated the legal process by going to find a magistrate—the officials who presided at the first, busiest level of the legal system.
Magistrates heard complaints when and where they received them, in the fields where they had been working or even from the beds where they had been sleeping. They then held hearings and trials in convenient spots that could accommodate a crowd—taverns, country stores, front porches, a room in the magistrate's house if it was large enough, or outside under a canopy of trees if it was not.
That was the point. Such locations pushed law physically into the community and into the lives of the people there. As a result, the bulk of legal business was conducted in those places where ordinary southerners were most likely to be: in houses, yards, fields, or other community meeting places. Legal forums, for instance, often crystallized at community gatherings, emerging from the interactions of those who were there. Inquests provide excellent examples. When a death occurred, neighbors gathered to pay their respects, to clean and dress the body, and to grieve.
That process also could reveal evidence of wrongdoing. Sometimes the signs were easily spotted by those who first saw the body. Sometimes they were uncovered by the women whose job it was to ready the body for burial. And sometimes they emerged through the mourners' conversations, as information was shared and the pieces began to form ominous patterns. When doubts coalesced into something more serious, the coroner—or someone designated to act as one—was called, if he was not already there.
The gathering then reconstituted itself as a legal hearing: a jury was formed, often from among those in attendance, and mourners became witnesses. One by one, they offered their observations, repeating for the record what had already been said. And so law arrived at the wake, at the invitation of no one and everyone.
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The physical proximity of the legal system did not mean that individuals had equal access to it or enjoyed equal treatment within it. To the contrary, the system was designed to maintain a rigid social order based on stark inequalities. The distribution of individual rights fell out along that same hierarchy, simultaneously reflecting and buttressing status within the social order. Many of those individual rights involved private property or were related in some way to private property: in addition to the rights to buy, sell, and own were rights to one's body and to the products of one's labor, as well as rights to contract.
Other procedural rights—including those to have a trial, to face one's accusers, to know the charges against one, to bring charges, and to testify—also had strong associations with private property, in the sense that they created predictable rules for its protection. Legal officials scrupulously safeguarded such rights in civil suits involving private property in its various forms, whether real estate, movable goods, perishable items, other people's bodies, or one's own body.
William Brown. Individual rights, particularly those involving procedure, also applied in criminal cases and other public matters, where they were an important component, even at the local level, providing crucial avenues of access and influence within the system. The difference was that individual rights were not the only consideration in this body of law. In theory, public matters involved offenses against the peace, the metaphorical public body—a fact signaled in the cases' titles, such as State v.
Mary Jones. In practice, public offenses encompassed everything but civil suits involving private property, and included all criminal matters as well as a range of ill-classified infractions that were judged to disturb the peace in some way. The interests of peace, which made the cases public, provided other points of entry and standards of evaluation. Given the acknowledged place of individual rights in public law, however, it is not surprising that white men from the middling ranks of society were the most likely to summon the legal system to resolve their problems.
Their rights gave them access to it, while their social status brought the process within easy reach. White women from that social stratum also tended to approach the law with an air of proprietary familiarity, based more on their status than on their formal legal rights, which were few. They routinely called on legal officials for aid and provided information about the problems of others.
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By contrast, the legal experiences of slaves, free blacks, and poor whites were likely to affirm their subordination, precisely because it was crucial to the maintenance of social order as it was defined in this system. In general, slaves' and free blacks' participation in law was not voluntary: they were summoned by the legal system; they did not summon it. Brute force often characterized their legal encounters, as they were yanked out of their daily routines, tried, and sentenced by white people with whom they worked and worshiped.
The process then transformed familiar domestic settings into menacing sites of interrogation and punishment. Poor whites often met up with law on unfavorable terms as well. When they did, however, it was not because their rights had been violated, but because legal officials considered their problems a threat to the larger social order. The legal system's proximity and accessibility wove the practice of law into the fabric of daily life and familiarized southerners with it. The emphasis on social order also had the effect of combining formal law with local custom, particularly in the area of law that dealt with public matters.
Lawyers had not yet claimed this legal terrain and professionalized it—in contrast to the situation in civil matters involving private property, a lucrative area that constituted the bulk of lawyers' incomes. In most issues, the parties represented themselves. If lawyers entered into the picture, it was in the very final stages, if the case went to a jury trial, which was unlikely. Public law thus had deep cultural roots.
As an institution, a process, and a body of knowledge, this area of law existed as an extension of those mechanisms through which communities maintained social order. That was exactly how southerners, white and black, used this area of law. In fact, a wide range of people expected the legal system to enforce their notions of the public order, which were usually defined in terms of their own needs and interests. Those expectations produced an endless stream of complaints to magistrates and grand juries about threats to community health, welfare, and order.
Depending on the informants' predilections, these ran the gamut from the absurd to the serious: from dilapidated fences and ill-kept roads, to neighbors with a penchant for late nights, drinking, or pilfering, to threats or actual instances of physical violence. Among those offenses worthy of legal intervention were domestic issues. Masters filed charges against hired servants and slaves whom they could not control; white and free black wives filed charges against husbands; and free children informed on their parents.
Free families brought their feuds to court for resolution, with wives, husbands, parents, children, siblings, aunts, uncles, and cousins all lining up to air their dirty laundry. Neighbors routinely involved legal officials in their quarrels, sometimes using the system in combination with insults, threats, and violence, as yet another weapon in an ongoing conflict. In all these instances, southerners marched off to magistrates, certain that the legal system would cure what ailed them: legal action could keep a lazy man at work, a philanderer from tempting young girls, a bully from terrorizing his neighbors, a husband from beating his wife, or a drunk from his whiskey bottle.
Those expectations represent a remarkable leap of faith. The influential literature on southern honor has pointed historians in another direction, leading many to assume all southerners' distance from legal institutions and their disdain for law. This culture of honor supposedly encouraged white men to prefer individual acts of retribution to legal action.
While claiming rights for themselves, these men questioned a system of law that limited their actions by recognizing those rights in others, even other white men. They also excluded African Americans, granting them neither honor nor rights in an underdeveloped legal system that was clearly subordinate to the whims of elite white men. The result was African Americans' deep alienation from the law. Yet Bertram Wyatt-Brown, the historian most closely associated with the scholarship on southern honor, does not actually posit an irreconcilable contradiction between honor and law.
At this level, in contrast to appellate courts, the process was not just about the protection of individual rights and universalizing legal abstractions, the elements of law that other scholars characterize as foreign to southern culture and at odds with honor. The scholarship, notably the work of Ariela Gross, has further reduced the distance between the mechanisms of law and the dynamics of daily life in southern society, showing how honor and law comfortably coexisted.
In fact, many of those on the margins still had faith that the system could work for them, under the proper circumstances. If anything, however, law was more deeply embedded in southern culture than even this scholarship suggests, because the difference between local legal venues and other means of governing misconduct was not always evident or meaningful.
Magistrates and local courts, for instance, handled the same kinds of offenses as church disciplinary hearings—drunkenness, sexual impropriety, and conflicts within families and among neighbors. In fact, most offenses in local courts emerged out of otherwise ordinary encounters involving otherwise ordinary people who knew each other well. In theory, calling in the magistrate represented a significant escalation of an issue, transforming it into a formal legal matter.
In practice, however, the results were not always distinguishable from the services offered by churches or the mediation of neighbors or family members. Magistrates usually handed out nothing more than sympathy or censure. When they took action, they were likely to issue a peace warrant, which labeled the perpetrator's actions a potential, yet unrealized, public offense. The errant individual then secured a bond for good behavior for a specified period of time, but did not incur any criminal penalty unless he or she broke the peace thereafter.
This approach to crime derived from a cultural milieu that accepted misconduct as a part of everyday life, rather than a deviation from it. Disorderly behavior was a regrettable but inescapable aspect of the human condition, because original sin made all human beings susceptible to evil.
What distinguished crime from other forms of disorder was the venue in which it was handled: it became crime when it met the legal system. All those guilty of misconduct—criminal or otherwise—could be forgiven, even excused, as long as they confessed and repented. Then community members could receive them back into the fold.
That last step was crucial, because the remedy for individual offenders was integration back into the community, not expulsion from it. That logic, for instance, underlay peace bonds, which threw enforcement back on the community, summoning family, friends, and neighbors to police troublemakers. Bonds required one or more other people to put up part of the amount, making them liable if the accused broke the peace again.
That economic obligation represented the signers' promise to keep the offender in line. Peace bonds put everyone else on notice as well, investing them with the responsibility to monitor the situation and make sure that the offender was successfully reintegrated into community life.
The detection and prosecution of crime also required community participation. Because the legal system construed the maintenance of order as a public responsibility, it gave police power to ordinary people in local communities as well. They, not legal professionals, identified wrongdoing, investigated crimes, and conducted prosecutions.
Knowledge about legal procedure was so widely diffused that southerners knew exactly what to do when they encountered a suspicious event. The formal use of community policing also tended to legitimize customary forms of discipline. In fact, the difference between unsanctioned customary action and sanctioned forms of community policing was not always clear. Even slaves and free blacks, who were blocked from formal participation in court, shared in legal duties at this level. That is what Joe, a South Carolina slave, did when he found another slave, Israel, dead in a field.
Gordon's to give information. Not only did they bring crimes to the attention of legal authorities, but they also found and provided the information necessary in determining cases. Slaves occasionally provided information—as distinct from testimony—in cases involving whites, bypassing restrictions against their sworn testimony.
It was more common, though, for information to reach the courtroom through the testimony of whites, in ways akin to those described by other historians for civil cases. Slaves nonetheless played crucial roles in cases that involved offenses against them and other African Americans, where their information framed how and whether the issues would go forward in law. The legal system rested on the initiative of local people in less direct but no less important ways. For legal proceedings to have the desired effect of restoring order, a range of community members needed to be there to fill the role of a classical chorus, witnessing and commenting on events.
The entire neighborhood turned out for this phase of the legal process, which began at magistrates' hearings where information was aired and evaluated. Sometimes people brought others with them when they filed complaints. Cases also could attract quite a crowd as they moved from complaint to hearing. If the magistrate acted on a complaint, he compiled a list of witnesses and then summoned them to give information on the matter. Those lists could be extensive, although the ability to give sworn testimony depended on the race of the accused.
But an invitation was not always necessary, as people insinuated themselves into the process at all levels of the system. Rather, involvement in the legal process was part and parcel of established community dynamics, in which people made it a point to keep tabs on everyone else, because they assumed that it was their duty to do so. They showed up at hearings, whether summoned or not, expecting to say their piece, even if the information qualified as hearsay, appeared to be irrelevant, or duplicated what others had said. The repetition and accumulation of details were central to the process, which was as much about airing the conflict, repairing a rift, and establishing order as it was about determining the facts of the crime.
Hearings and trials turned on local gossip networks that produced knowledge about individuals. The true rumors lodged in local information exchanges, where they circulated until they became common reports. In this way, the gossip produced and conducted through community networks became the information that provided an evidentiary basis for legal decisions. The close connection between cultural knowledge and legal practice drew a range of southerners into the system, allowing them to influence the terms through which conflicts were interpreted, even when they could not participate directly in institutional arenas where such issues reached a formal resolution.
In this context, for instance, slaves figured into a wide range of legal matters, because they created and passed along rumors that ultimately shaped legal cases. As people heard gossip and repeated it, the source became increasingly obscure and increasingly irrelevant. The insults had circulated first among slaves and then more widely to whites.
The danger for her was that white people would repeat Elley's charges, spreading them and giving them legitimacy in the process. That information then shaped the context for understanding why Arrants filed charges against Elley: what Elley said could turn Arrants's actions into disorderly conduct that required legal intervention. Those people without individual rights left their imprint at the very early stages of the process, when written records were less likely to be kept.
Their presence became less obvious as cases moved through the legal system and away from the localized proceedings in their communities. By the time those cases went to trial in circuit courts, the influence of such people over the proceedings could be difficult to discern, as propertied white men took over the process at that stage. Yet at that point, the cases usually had already been all but decided anyway. Both white and black southerners who did not testify at trials were crucial in laying the groundwork for them, providing the context for defining the charges and interpreting the evidence.
Having set the stage, they sat back and watched the results, knowing that it was their input that turned a fight into assault or a death into murder. Circuit courts were more formal and more distant from daily life. At this level, the possession of individual rights became more important to the legal process, circumscribing the participation of slaves and free blacks as well as white women and children. Courtrooms were also noisy, opinionated places, which some historians have associated with the distinctly masculine culture of white, southern men.
But the swirl of activity surrounding court sessions was not limited to white men. White women, for instance, routinely attended criminal trials for that reason. Court also provided an excuse to go to town, to relax, shop, trade, visit, or gawk—the crowds included slaves and free blacks as well as white women and children. There was always conversation to be had about the cases, the guilt or innocence of the accused, the evidence presented, and the performance of the lawyers and judges.
Gossip permeated the parlors of respectable households, where white matrons entertained friends and relatives in town for court. Similar conversations could be overheard down the street in modest houses and shanties as well as in the back rooms and kitchens of the wealthy, where slaves worked and visited. The discussions then extended beyond the town's boundaries, involving people in the countryside who could not be in town for court, but who eagerly awaited the latest grist to put into the gossip mill.
White and black southerners also knew enough about the circuit court to appreciate its limits. The gossipy crowds on court days had a distinct role in the legal culture, shaping the reception of trials' outcomes. In fact, a trial did not necessarily mark the end of a case. Pardons constituted an alternative appeals process: like cases presented in appellate courts, pardon petitions contested a trial's outcome, although they did so by skipping over legal points and going directly to either the facts of the case or its social context.
Petitioners constructed these appeals as if they were making extraordinary requests: they described the situations as singular, emotional, and urgent, which was why they were begging the governor to intercede with mercy. The language, however, can be misleading. Petitions circulated after every court session in a routine as predictable as clockwork. They followed specific rhetorical conventions, resulting in something akin to a handwritten legal form, in which the petitioners themselves churned out the appropriate boilerplate and then filled in the necessary details.
Although white male property owners signed these petitions, their names did not represent their interests and opinions alone. Petitions also reflected currents of gossip that had become something more tangible, as community members evaluated the reputations of both the guilty offender and the victims. In these calculations, everything mattered: age, personality, family responsibilities, demeanor, church attendance, work habits, family ties, and community connections.
Other people's opinions on these issues concerned the elite white men who usually made out pardon petitions, because their own reputations depended on the same gossip networks that produced common reports about the people involved in criminal cases. For those outside these tight circles of local knowledge, the conclusions can seem arbitrary: Why did communities rally around one convicted murderer but not another?
Why did whites occasionally come to the defense of certain slaves? Why did they ignore the offenses against certain white men? The answers lie less in the abstractions of race, gender, class, or rights and more in the networks of personalized information produced about specific individuals by the people who knew—or thought they knew—them. T he S outh's legal system neither protected the interests of slaves nor recognized their rights. Yet localized legal culture still incorporated slaves and other subordinates into its basic workings, because they were part of the social order that the legal process was charged with maintaining.
One result was that slaves and free blacks had intimate knowledge of the legal system: they not only knew the process, but also understood its underlying logic, in which individual rights provided access and privileges, but which nonetheless elevated the maintenance of social order over the interests of individuals. In theory, the peace was both hierarchical and inclusive. While the term was common in post-Revolutionary southern legal culture, it was based in a long-standing, highly gendered construction of government authority, which subordinated everyone to a sovereign body, just as all individual dependents were subordinated to specific male heads of household.
The sovereign body, however, was always a patriarch, whatever its location or physical embodiment. The peace was inclusive only in the sense that it was an equal opportunity enforcer, enclosing everyone in its patriarchal embrace and raising its collective interests over those of any given individual. Separate entries in justices' manuals covered every conceivable legal category of people, including wives, widows, women, children, wards, students, free blacks, slaves, Indians, and servants.
While extending the peace to all those people, the entries also made the hierarchical structure abundantly clear, by focusing on the restrictions unique to those in each legal category.
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The combination underscored the importance of coercion in this system: everyone had a place, and force was necessary to keep them there. Yet, it was precisely because the patriarchal peace combined rigid hierarchy with coercive inclusion that subordinates, even slaves, could play active roles in the system.
They could trump the authority of their immediate patriarchs by appealing to the higher patriarchal authority of the peace. Slaves, free blacks, and white wives and children who could not testify, for instance, regularly gave information that initiated cases and shaped their outcome.
Even when they could not prosecute cases in their own names, they made complaints that resulted in prosecutions and convictions for their injuries. In such instances, subordinates did not use the law in their own right. When legal officials acted on such information and complaints, they did so by invoking the larger interests of the peace.
The source of the information was irrelevant if the peace was threatened. Those dynamics were particularly evident in cases involving injured subordinates who were unable to prosecute in their own names: although the injury was to a specific individual, officials prosecuted by making the legal offense the theoretical damage to the peace, in its guise as the metaphorical public body. The injured peace thus replaced the actual victim and prosecuted the case. At issue was who could act in law.
The metaphorical public body could do so when the actual, corporal bodies of subordinates could not. This legal form erased injured subordinates only in theory. In practice, they still remained central, because the damage to the public body was done through their flesh and blood. Always present, yet unacknowledged—this convenient legal fiction allowed subordinates a central role in the legal order, without disturbing the hierarchies that also defined it. Local officials routinely invoked the interests of the peace when they confronted offenses against subordinates—white women, free blacks, slaves, and free children of both races.
The concept accounts for the otherwise mystifying array of cases in local courts, such as incest, child abuse, wife-beating, and violence by masters against slaves. At least, that is the best explanation for what local officials did, a conclusion based on the distillation of ideas from action, since magistrates, sheriffs, and circuit court judges did not stop to record what they were doing or why. A liberal application of the peace, for instance, likely explains two separate rape cases involving enslaved women, Annis and Juno, in Chowan County, North Carolina.
By casting the offense as one against the public order, it was legally possible to prosecute the rapes. The crime consisted in the virtual violence done to the metaphorical public body through the two women's injuries. Some activists even demanded that compensation be paid to the enslaved. Many antislavery members of parliament, such as Thomas Fowell Buxton and William Clay, spoke out vociferously against slave-owner compensation.
The decision to compensate slave owners was not just an inevitable expression of the widespread beliefs of those times. Political decisions reflect who is in the room when the decisions are being made. The Reform Act of drastically transformed the British electoral system and extended the franchise, to the detriment of the West India interest.
But even in the reformed House of Commons, scores of MPs still had close financial or family ties to slave ownership. On the other hand, it bears remembering that the first black Britons were not elected to the House of Commons until near the end of the following century, more than years later. Other slave-owning states, including France, Denmark, the Netherlands and Brazil, would follow the British example of compensated emancipation in the coming decades.
But the compensation that Britain paid to its slave owners was by far the most generous. Britain stood out among European states in its willingness to appease slave owners, and to burden future generations of its citizens with the responsibility of paying for it.
The owners of slaves in British society were not just the super-rich. Recent research by historians at University College London has shown the striking diversity of the people who received compensation, from widows in York to clergymen in the Midlands, attorneys in Durham to glass manufacturers in Bristol. Still, most of the money ended up in the pockets of the richest citizens, who owned the greatest number of slaves.
Among the descendants of the recipients of slave-owner compensation is the former prime minister David Cameron. T he decision to emancipate slaves by treating them like property, and not like persons, was no mere theoretical exercise. Rather than putting a sudden end to their suffering, the process of emancipation marked a new phase of British atrocities and the terrorisation of blacks. The emancipation process was minutely orchestrated by government bureaucrats. In September , less than a month after the government received its loan, slave owners began their feeding frenzy as they obtained compensation cheques at the National Debt Office.
Payment amounts were determined based on application forms that asked claimants to itemise the number and kinds of enslaved people in their possession, and to provide certificates from the slave registrar. There were some 47, recipients of compensation in total. In addition to money, slave owners received another form of compensation: the guaranteed free labour of blacks on plantations for a period of years after emancipation.
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The enslaved were thus forced to pay reverse reparations to their oppressors. The arrangement was initially to last for 12 years, but was ultimately shortened to four. During this period of apprenticeship, Britain declared it would teach blacks how to use their freedom responsibly, and would train them out of their natural state of savagery. But this training involved continued unpaid labour for the same masters on the very same plantations on which they had worked the day before. With the Slavery Abolition Act, the duty to punish former slaves now shifted from individual slave owners to officers of the state.
A state-funded, person corps of police, jailers and enforcers was hired in Britain and sent to the plantation colonies. If apprentices were too slow in drawing water, or in cutting cane, or in washing linens, or if they took Saturdays off, their masters could have them punished by these magistrates. This torture device, which was supposed to inculcate a work ethic, was a huge turning wheel with thick, splintering wooden slats. If they fell or lost their step, they would be battered on their chest, feet and shins by the wooden planks.
The punishment was often combined with whippings. The treadmill was used more during the apprenticeship period than it ever was under slavery, precisely because it was said to be a scientific, measurable and modern form of disciplinary re-education, in line with bureaucratic oversight. One apprentice, James Williams, in an account of his life published in , recalled he was punished much more after than before. Indeed, it is likely that slave-owners sweated their labour under apprenticeship, in order to squeeze out the last ounces of unpaid labour before full emancipation finally came in While the British state, even after emancipation, still failed to see black people as persons, the enslaved themselves inhabited a complex society of their own creation.
And during the barbarity, they developed their own internal banking and legal systems. They created extensive trading relations between towns and villages, and across plantation enclaves. They had their own spiritual practices, such as Obeah, an Afro-centric repertoire of divination and social communion cultivated alongside the religion bestowed by the Christian missionaries. Slaves had their own rich musical forms and traditions of storytelling. They were engineers, chemists and medics on the plantation fields they inhabited.
Many of their innovations contributed to making life under slavery livable, such as the architectural design of the tapia house in Trinidad. Even if the official white gaze could not see the , persons that lived in the plantation colonies, those persons still persisted. It is hardly surprising, then, that the British establishment has been so resistant to hearing calls for reparations for slavery.
In , manacled human remains were found on a beach in Devon. It was soon determined that the bones were those of enslaved blacks who had probably been kept in the hold of The London, a vessel shipwrecked in The enslaved people, who were probably from the Caribbean, were supposed to be sold on the British slave market. Labour MP Bernie Grant, a reparations advocate and one of the first black members of parliament, took the occasion to make a pilgrimage to Devon, and to renew the call for reparations. Complete Sample Documents. About the Authors. Few slave-mothers know anything of the months of the year, nor of the days of the month.
They keep no family records, with marriages, births, and deaths. Pension Bureau Files Elizabeth A. Slavery and Emancipation. The Civil War.
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