Questioning Organization: The Challenge of State-Level Records
Legal historians write about the law. So do historians in a range of other fields. But what is the law? Many of my students are certain that they have the answer: they identify statutes and appellate decisions at the state and national levels of government as the law. Actually, their favored term for these materials is “the real law.” If you had asked me this question a few years ago, I probably would not have admitted that I, too, was working with the same assumption. But I was.
My research in local records forced me to confront both that assumption and the reasons why I had accepted it so easily. I had been doing research in statutes and appellate cases in North Carolina and South Carolina while I was doing local research. Those two tasks, however, had been on parallel tracks. I had a good sense of the development of state law—both appellate decisions and statutes—on matters relating to cases regarding domestic dependents. I also had a good sense of the legal logic that guided the localized system. But I was utterly unclear about the relationship between these two, obviously distinct, legal arenas. At first, I didn’t understand why it was so hard to see any relationship between state law and localized law. Then I realized that my sources on state law—newspapers, legal treatises, and the papers of prominent legal professionals and state leaders, as well as statutes, appellate decisions, and other state records—were conspiring against me. The professionally trained lawyers and like-minded state leaders who created these sources had an agenda: to promote their own, particular vision of the law and to elevate it over other conceptions, particularly localized legal practice. I was inclined to accept these reformers’ conclusions because their vision of the law duplicated the one that seemed so self-evident to me and my students—and probably many of you as well. The overlap is no coincidence. Legal reformers from that time period worked very hard to promote their vision of the law and to make it seem like the only viable option. The sources they left told a powerful story of progress that became the basis for later academic histories and continues to shape current scholarship. It is only when the reformers’ vision of the law is compared with localized legal practices that the claims to superiority and the carefully constructed trappings of inevitability begin to fall away. That’s when the story got really interesting to me: the law, as we now see it, has a much more interesting history than I ever imagined.
My research on state law became a project of cultural excavation—a matter of slowly and carefully stripping away layers of historical interpretation that had been applied, one on top of the other, over two centuries. Most of these records were created by a core group of professionally trained lawyers who were prominent in state politics, whose networks reached outward to the national level, and who sought to dismantle legal localism. They wished to create rationalized bodies of law that were based in the protection of individual rights, particularly property rights. They wanted to centralize the operations of government at the state level to regularize the creation and dissemination of that body of law. They also recognized the importance of history to their project, compiling documentary sources and crafting narratives that cast localized law as an archaic throwback, which inevitably gave way to progressive change as laws were standardized and rights were uniformly defined and applied. Reformers’ views, infused with objectivity and progress, seemed enlightened and reasonable to later generations. No wonder, then, that their voices acquired resonance over time, as historians relied on their archive, followed their lead, and ignored—even dismissed—legal localism.
The elite’s prominence in the historical record, though, owes as much to their own efforts at self-preservation and aggrandizement as it does to their political importance at the time. Their lives and work are easy to track, because they left such an impressive historical record. Their documentary record not only exaggerates their importance at the time, but also obscures the most profound historical implications of their legal agenda. Their sources—newspapers, appellate decisions, statutes, political pamphlets, legal treatises, and their own collected papers and correspondence—actively promoted the systematization and centralization of law at the state level. The admission of change, however, ends there. These sources wrap the discussion in the rhetoric of progress, with such strong Whiggish undertones of inevitability that it reads as a negation of any human agency in the conception or direction of change: law and government simply assumed the form they were always intended to have, aided by those who had access to the plan. That form, moreover, had been determined long ago, in the distant past. As such, it represented the extension of existing ideas, not anything substantively new or different. That was not the case.
State leaders’ accounts are accurate in the sense that state law became more elaborate, sophisticated, and influential between 1787 and 1840. At the end of the Revolution, there was no coherent body of law at the state level to deal with public matters. But neither was there anything inherent in the decentralized, localized system that precluded the development of such a body of law within state-level institutions. So reformers set about creating a body of state law based in rights. Beginning with the area of property law, they created the necessary institutional structure at the state level. By the end of the 1820s, state leaders had made considerable progress in rationalizing the legal system at the state level, even in the realm of public matters. Then they secured popular support for that project through highly visible political campaigns: the Nullification campaign of 1827-32 in South Carolina and the 1835 state constitutional convention in North Carolina.
As lawmakers extended the reach of state law, they imposed the rubric of individual rights on matters formerly governed by collective conceptions of the peace, as defined in local contexts. The logic behind the developing body of state law turned white men’s patriarchal authority and civic participation into individual rights, akin to their already established property rights. White men’s rights expanded at this level of the legal system, increasing their claims on the legal system and to state protection of their interests. In the political rhetoric of the 1830s, they became “freemen,” legally recognized individuals who were the paradigmatic citizens, at least within the realm of state law. At the same time, dependents’ legal status, particularly their lack of rights, became the rationale for their exclusion from law and government. State law defined them as altogether different categories of legal persons and subordinated them according to the abstract categories of race, class, and/or gender. White women, African Americans, and the poor found it difficult to make themselves heard and their concerns visible within the body of state law, because they were excluded from the category of people with rights that the state was designed to protect.
The denial of rights to the vast majority of southerners and their exclusion from the polity masked even more profound inequalities at the state level. White men were constituted as freemen through their rights over those without rights. In extending this legal framework, state leaders applied the precepts of liberal individualism to the patriarchal structure of localized law. They abstracted the authority white men already exercised in social context, through their obligations to the peace in localized law, and individualized both its privileges and restrictions. By the 1830s white men could claim rights not just in their property and their own labor in state law, but also in the labor and bodies of their dependents and, through the abstractions of gender and race, over the lives of other subordinate people as well. Their authority in this body of law extended over all black persons, slave or free, and no black person fully possessed his or her own body or the product of his or her labor. The rhetoric of party politics construed rights broadly, linking them to freedom, liberty, and equality among white men, whether propertied or not. In practice, though, state leaders’ vision of democracy did not include fundamental changes in the economic or social structure that would put all white men on equal footing. Legislators and jurists defined rights narrowly, so as to affirm existing inequalities among white men and to protect the property interests of the wealthy, particularly slavery. By the 1830s freemen could look to the state to protect their rights, defined in the limited, abstract terms of law at that level of the system. But many of the white men included in this category could not count on those rights as a means to articulate, let alone promote, their interests.
State leaders were less successful in practice than their writings and their influence on later historians suggest. State law took up more institutional space by the 1830s, but it did not triumph over localized law: the legal system, which still included localized legal practices, did not work as state leaders wished and represented, particularly in the broad area of public law. Localized law continued to have considerable influence in the antebellum period and long afterward, because it was embedded in the culture in ways that made it very difficult to eliminate. To further complicate matters, localized law had always accommodated multiple—even conflicting—legal traditions, so it was possible for southerners to embrace rights discourse, as developed at the state level in the 1830s, while still adhering to conflicting tenets of the local system. People might represent their interests in local courts in terms of rights, but the localized system continued to incorporate their claims just as it had always done with other claims on the peace.
The development of state law is, nonetheless, a crucial and historically neglected story. Not only did it operate by a very different logic—the logic of individual rights—than did localized law, it also cast its subjects in a different relationship to law and the government. State law would become more influential over time, as this level of government became more entrenched and more powerful. But it is not so much the relative influence of state law as the timing of its emergence that is the important story. Although scholars usually treat state law as primary, it did not emerge in the broad area of public matters until the 1820s (in appellate law and statutes) and the 1830s (in the discursive realm of politics). This periodization changes our view not only of people’s influence over governance and the development of rights within the nation’s political culture, but also the relationship of slavery and the South to the rest of the nation—and that will be the subject of the next installment.