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A Degraded Caste of Society traces the origins of twenty-first-century cases of interracial violence to the separate and unequal protection principles of the criminal law of enslavement in the southern United States. Andrew T. Fede explains how antebellum appellate court opinions and statutes, when read in a context that includes newspaper articles and trial court and census records, extended this doctrine to the South’s free Black people, consigning them to what South Carolina justice John Belton O’Neall called “a degraded caste of society,” in which they were “in no respect, on a perfect equality with the white man.” This written law either criminalized Black insolence or privileged private white interracial violence, which became a badge of slavery that continued to influence the law in action, contrary to the Constitution’s mandate of equal protection of the criminal law. The U.S. Supreme Court enabled this denial of equal justice, as did Congress, which did not make all private white racially motivated violence a crime until 2009, when it adopted the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act. Fede’s analysis supports that law’s constitutionality under the Thirteenth Amendment, while suggesting why—during the Jim Crow era and beyond—equal protection of the criminal law was not always realized, and why the curse of interracial violence has been a lingering badge of slavery.
William E. Nelson's first volume of the four-volume The Common Law of Colonial America (2008) established a new benchmark for study of colonial era legal history. Drawing from both a rich archival base and existing scholarship on the topic, the first volume demonstrated how the legal systems of Britain's thirteen North American colonies-each of which had unique economies, political structures, and religious institutions -slowly converged into a common law order that differed substantially from English common law. The first volume focused on how the legal systems of the Chesapeake colonies--Virginia and Maryland--contrasted with those of the New England colonies and traced these dissimilarities from the initial settlement of America until approximately 1660. In this new volume, Nelson brings the discussion forward, covering the years from 1660, which saw the Restoration of the British monarchy, to 1730. In particular, he analyzes the impact that an increasingly powerful British government had on the evolution of the common law in the New World. As the reach of the Crown extended, Britain imposed far more restrictions than before on the new colonies it had chartered in the Carolinas and the middle Atlantic region. The government's intent was to ensure that colonies' laws would align more tightly with British law. Nelson examines how the newfound coherence in British colonial policy led these new colonies to develop common law systems that corresponded more closely with one another, eliminating much of the variation that socio-economic differences had created in the earliest colonies. As this volume reveals, these trends in governance ultimately resulted in a tension between top-down pressures from Britain for a more uniform system of laws and bottom-up pressures from colonists to develop their own common law norms and preserve their own distinctive societies. Authoritative and deeply researched, the volumes in The Common Law of Colonial America will become the foundational resource for anyone interested the history of American law before the Revolution.
This new book by Andrew Fede considers the law of freedom suits and manumission from the point-of-view of legal procedure, evidence rules, damage awards, and trial practicein addition to the abstract principles stated in the appellate decisions. The author shows that procedural and evidentiary roadblocks made it increasingly impossible for many slaves, or free blacks who were wrongfully held as slaves, to litigate their freedom. Even some of the most celebrated cases in which the courts freed slaves must be read as tempered by the legal realities the actors faced or the courts actually recognized in the process. Slave owners in almost all slave societies had the right to manumit or free all or some of their slaves. Slavery law also permitted people to win their freedom if they were held as slaves contrary to law. In this book, Fede provides a comprehensive view of how some enslaved litigants won their freedom in the courtand how many others, like Dred and Harriet Scott, did not because of the substantive and procedural barriers that both judges and legislators placed in the way of people held in slavery who sought their freedom in court. From the 17th century to the Civil War, Southern governments built roadblock after roadblock to the freedom sought by deserving enslaved people, even if this restricted the masters' rights to free their slaves or defied settled law. They increasingly prohibited all manumissions and added layers of procedure to those seeking freedomwhile eventually providing a streamlined process by which free blacks "voluntarily" enslaved themselves and their children. Drawing on his three decades of legal experience to take seriously the trial process and rules under which slave freedom cases were decided, Fede considers how slave owners, slaves, and lawyers caused legal change from the bottom up.
Includes reports of the annual meetings.