Published online by Cambridge University Press: 08 May 2020
I applaud Scott's contributions. In this comment, I would like to take them up and push them further. Doing so points to a very different understanding of people's relationship to law and the legal system in the nineteenth century than is now current in much of the historiography. That perspective, I argue, can transform our understanding of the law and legal change in the Civil War era and in the nineteenth century more broadly.
She wishes to thank Amy Chazkel, Gautham Rao, and Rebecca Scott for including her in this project. She also thanks Maggie Blackhawk, Naomi Lamoreaux, and Kim Welch.
1. See, for example, Edwards, Laura F., “The Reconstruction of Rights: The Fourteenth Amendment and Popular Conceptions of Governance,” Journal of Supreme Court History 42 (2016): 310–28CrossRefGoogle Scholar; Jones, Martha S., All Bound Up Together: The Woman Question in African American Public Culture, 1830–1900 (Baltimore, MD: Johns Hopkins University Press, 2007)CrossRefGoogle Scholar; Jones, Martha S., Birthright Citizens: A History of Race and Rights in Antebellum America (New York: Cambridge University Press, 2018)CrossRefGoogle Scholar; Gronningsater, Sarah Levine, “’On Behalf of His Race and the Lemmon Slaves’: Louis Napoleon, Northern Black Legal Culture, and the Politics of Sectional Crisis,” Journal of the Civil War Era 7 (2017): 206–41CrossRefGoogle Scholar; Gronningsater, Sarah Levine, “’Expressly Recognized by Our Election Laws’: Certificates of Freedom and the Multiple Fates of Black Citizenship in the Early Republic,” William and Mary Quarterly 75 (2018): 465–506CrossRefGoogle Scholar; Kantrowitz, Stephen, More than Freedom: Fighting for Black Citizenship in a White Republic, 1829–1889 (New York: Penguin, 2012)Google Scholar; Masur, Kate, An Example for All the Land: Emancipation and the Struggle Over Equality in Washington, D.C. (Chapel Hill: University of North Carolina Press, 2010)Google Scholar; Tetrault, Lisa, The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848–1898 (Chapel Hill: University of North Carolina Press, 2014)Google Scholar; Dawn M. Winters, “Armed with Truth, Justice, and Hatchets”: A New History of Antebellum Temperance and Woman's Rights” (PhD diss., Carnegie Mellon University, 2018).
2. For recent work, see, for example, Kennington, Kelly, In the Shadow of Dred Scott: St. Louis Freedom Suits and the Legal Culture of Slavery in Antebellum America (Athens: University of Georgia Press, 2017)Google Scholar; Twitty, Anne, Before Dred Scott: Slavery and Legal Culture in America's Confluence, 1787–1857 (New York: Cambridge University Press, 2016)CrossRefGoogle Scholar; Daacke, Kirt Von, Freedom Has a Face: Race, Identity, and Community in Jefferson's Virginia (Charlottesville: University Press of Virginia, 2012)Google Scholar; and Welch, Kimberly, Black Litigants in the Antebellum South (Chapel Hill: University of North Carolina Press, 2018)CrossRefGoogle Scholar. Also see Block, Sharon, Rape and Sexual Power in Early America (Chapel Hill: University of North Carolina Press, 2006)Google Scholar; Bynum, Victoria E., Unruly Women: The Politics of Social and Sexual Control in the Old South (Chapel Hill: University of North Carolina Press, 1992)Google Scholar; Lyons, Clare A., Sex Among the Rabble: An Intimate History of Gender and Power in the Age of Revolution in Philadelphia, 1730–1830 (Chapel Hill: University of North Carolina Press, 2006)Google Scholar; Maris-Wolf, Ted, Free Blacks and Re-Enslavement Law in Antebellum Virginia (Chapel Hill: University of North Carolina Press, 2015)CrossRefGoogle Scholar; Rothman, Joshua D., Notorious in the Neighborhood: Sex and Families Across the Color Line in Virginia, 1787–1867 (Chapel Hill: University of North Carolina Press, 2003)Google Scholar; and Sommerville, Dianne Miller, Rape and Race in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 2004)Google Scholar.
3. Hartog's, Hendrik pathbreaking article, “Pigs and Positivism,” Wisconsin Law Review 4 (1985): 899–935Google Scholar, is exemplary, as is Gordon, Robert W., “Critical Legal Histories,” Stanford Law Review 36 (1984): 56–107Google Scholar. Subsequent work built on those conceptual shifts. For the nineteenth century, see, for example, Gross, Ariela J., Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (Princeton, NJ: Princeton University Press, 2000)Google Scholar; Grossberg, Michael, A Judgment for Solomon: The d'Hauteville Case and Legal Experience in Antebellum America (New York: Cambridge University Press, 1996)CrossRefGoogle Scholar; Hartog, Hendrik, Man and Wife in America: A History (Cambridge, MA: Harvard University Press, 2000)Google Scholar; Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996)Google Scholar; Penningroth, Dylan C., The Claims of Kinfolk: African American Property and Community in the Nineteenth-Century South (Chapel Hill: University of North Carolina Press, 2003)Google Scholar; Tomlins, Christopher L., Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (New York: Cambridge University Press, 2010)CrossRefGoogle Scholar; and Welke, Barbara Y., Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920 (New York: Cambridge University Press, 2001)Google Scholar.
4. My own work is an excellent example of that tension. See Edwards, Laura F., The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009)Google Scholar.
5. Elizabeth Lumpkin Motely Bagby Commonplace Book, 1824–1832, Virginia Historical Society, Richmond, Virginia (hereafter VHS).
6. See, for example, the literature in notes 2, 3, and 4.
7. Rao, Gautham, National Duties: Custom Houses and the Making of the American State (Chicago: University of Chicago Press, 2016)CrossRefGoogle Scholar; and Welch, Black Litigants. Also see Novak, William J., “The Legal Transformation of Citizenship in Nineteenth-Century America,” in The Democratic Experiment: New Directions in American Political History, ed. Jacobs, Meg, Novak, William J., and Zelizer, Julian (Princeton, NJ: Princeton University Press, 2003), 85–119Google Scholar.
8. Benton, Lauren, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (New York: Cambridge University Press, 2011)Google Scholar; Bilder, Mary S., The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge, MA: Harvard University Press, 2004)Google Scholar; Green, Jack, Negotiated Authorities: Essays in Colonial Political and Constitutional History (Charlottesville: University Press of Virginia, 1994)Google Scholar; Gould, Eliga, “Zones of Law, Zones of Violence: The Legal Geography of the British Atlantic, cira 1772,” The William and Mary Quarterly 60 (2003): 471–510CrossRefGoogle Scholar; Gould, Eliga, “Entangled Histories, Entangled Worlds: The English-Speaking Atlantic as a Spanish Periphery,” American Historical Review 112 (2007): 764–68CrossRefGoogle Scholar; Hseuh, Vicki, Hybrid Constitutions: Challenging Legacies of Law, Privilege, and Culture in Colonial America (Durham, NC: Duke University Press, 2010)CrossRefGoogle Scholar; and Hulsebosch, Daniel, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005)Google Scholar. For Native American history, see, for example, Sleeper-Smith, Susan, Barr, Juliana, O'Brien, Jean M., Shoemaker, Nancy, and Stevens, Scott Manning, eds., Why You Can't Teach United States History Without American Indians (Chapel Hill: University of North Carolina Press, 2015)Google Scholar.
9. Katz, Stanley N., “Explaining the Law in Early American History: Introduction,” William and Mary Quarterly, Law and Society in Early America 50 (1993): 6Google Scholar. Also see David Thomas Konig's insightful summary of the field, “A Summary View of the Law of British America,” William and Mary Quarterly, Law and Society in Early America 50 (1993): 42–50Google Scholar. For South Carolina, see Klein, Rachel N., Unification of a Slave State: The Rise of the Planter Class in the South Carolina Backcountry, 1760–1808 (Chapel Hill: University of North Carolina Press for the Institute of Early American History and Culture, 1990)Google Scholar.
10. Articles of Confederation, March 1, 1781, http://avalon.law.yale.edu/18th_century/artconf.asp (accessed April 10, 2020). For police powers, see Dubber, Markus Dirk, Police Power: Patriarchy and the Foundations of American Government (New York: Columbia University Press, 2005)CrossRefGoogle Scholar; Edwards, The People and Their Peace; Masur, Kate, “State Sovereignty and Migration before Reconstruction,” Journal of the Civil War Era 9 (December 2019): 588–611CrossRefGoogle Scholar; Novak, The People's Welfare; and Tomlins, Christopher L., Law, Labor, and Ideology in the Early American Republic (New York: Cambridge University Press, 1993)CrossRefGoogle Scholar.
11. See Edwards, Laura F. “Sarah Allingham's Sheet and Other Lessons from Legal History,” Journal of the Early Republic 38 (2018): 121–47CrossRefGoogle Scholar. Also telling is Novak, William J., “The American Law of Association: The Legal–Political Construction of Civil Society,” Studies in American Political Development 15 (2001): 163–88CrossRefGoogle Scholar.
12. John Faucheraud Grimké, December 15, 1789, Charge to the Charleston Grand Jury, October 1789, Pennsylvania Packet and Daily Advertiser, John Faucheraud Grimke Papers, South Caroliniana Library. Petition for the Pardon of Thomas Gallion, to James Iredell, August 3, 1828, 117–18, vol. 27, Governor's Letter Book, North Carolina State Archives. Naomi R. Lamoreaux and John Joseph Wallis, “Fixing the Machine that Would Not Go of Itself: State Constitutional Change and the Creation of an Open-Access Social Order in the Mid-Nineteenth-Century United States,” unpublished working paper in possession of the author, presented at the Tobin Project on American Democracy, Cambridge, Massachusetts, May 2018. Masur, “State Sovereignty and Migration before Reconstruction.”
13. See, in particular, Edwards, “Sarah Allingham's Sheet.”
14. McKinley, Maggie, “Lobbying and the Petition Clause,” Stanford Law Review 68 (2016): 1165–205Google Scholar; and McKinley, Maggie, “Petitioning and the Making of the Administrative State,” Yale Law Journal 127 (2018): 1538–637Google Scholar. Maggie McKinley is now known by her married name of Maggie Blackhawk.
15. For the general point about the written word and the law, see Mann, Bruce H., Neighbors and Strangers: Law and Community in Early Connecticut (Chapel Hill: University of North Carolina Press, 1987)Google Scholar. For the developing importance of published texts within governing institutions in the United States, see Edwards, The People and Their Peace, ch. 2. Also see Turner, Felicity, “Rights and the Ambiguities of Law: Infanticide in the Nineteenth-Century U.S. South,” Journal of the Civil War Era 4 (2014): 350–72CrossRefGoogle Scholar; Welch, Kimberly, “William Johnson's Hypothesis: A Free Black Man and the Problem of Legal Knowledge in the Antebellum United States South,” Law and History Review 37 (February 2019): 89–124CrossRefGoogle Scholar.
16. The analysis here relies on research for my new book project, “Only the Clothes on Her Back: Textiles, Law, and Commerce in the Nineteenth Century United States.” For elements of the analysis, see Edwards, “Sarah Allingham's Sheet” and Edwards, , “Textiles: Popular Culture and the Law,” Buffalo Law Review 64 (2015): 193–214Google Scholar. See Edwards, The People and Their Peace, for the operation of public law.
17. Edwards, The People and Their Peace.
18. For the importance of credit, which tied people to the hierarchies of their communities, see Edwards, The People and Their Peace, particularly ch. 4. Also see Welch, Black Litigants, ch. 2.
19. Jones, Birthright Citizens. Also see Gronningsater, “’Expressly Recognized by Our Election Laws’"; Masur, “State Sovereignty and Migration before Reconstruction”; and Oakes, James, Freedom National: The Destruction of Slavery in the United States, 1861–1865 (New York: Norton, 2013)Google Scholar.
20. Masur, An Example for All the Land. For the movement of the kind of claims made in public law to the rubric of rights, see Edwards, Laura F., A Legal History of the Civil War and Reconstruction: A Nation of Rights (New York: Cambridge University Press, 2015)CrossRefGoogle Scholar; and Edwards “The Reconstruction of Rights.”