Race and the Law in South Carolina

Front matter

{GHM WILLIAM WERTHEIMER

SOU i CAROLINA as SP a as SPOTS

From Slavery emam to mema Jim Crow

Preface

Introduction: Continuity and Change in the Palmetto State 1. State v. Posey: Slavery’s Criminal Bargains 2. Willis v. Jolliffe: Slavery’s Inheritance

3. Burgess v. Carpenter: The Reconstruction of South Carolina Labor Law

4. Tucker v. Blease: Jim Crow Schools 5. State v. Sanders: Jim Crow Juries 6. Tessie Earle v. Greenville County: Lynching and Antilynching

Index

Acknowledgments

Each of this book’s six chapters began as a class-wide collaborative project in HIS 455: Law and Society in American History, an undergraduate research seminar that I teach in the History Department at Davidson College. In all, eighty students cowrote these pages. My greatest debt is to them.

Chapter 1, “State v. Posey, originated in HIS 455 in the fall of 2015. Jean Atkinson, Tait Jensen, Wells King, Wade Leach, John S. Marsh, Daniel Martin, J. G. Walker Mogen, Caroline Turner, Molly B. Walker, E. B. Whitener, Robby Woodward, and Hugh Xu brought the troubling story of Martin Posey and Appling to life. Molly Walker proposed the topic in the second week of class. Late in the semester, Mark Jones and Cristy Russell visited campus and helpfully discussed a rough draft with us. The class also presented its work to the Davidson College History Forum, prompting useful feedback from Dan Aldridge, Robin Barnes, Vivien Dietz, Amy Kohout, Sally McMillen, Anelise Shrout, Trish Tilburg, and Alice Wiemers. Students Daniel Martin and Walker Mogen worked on the project over the summer of 2016, funded by the Davidson Research Initiative. That fall, Daniel Martin, Molly Walker, and I presented a short version of our paper to the American Society for Legal History (ASLH) at its annual meeting in Toronto, and Walker and I presented a longer version to the Triangle Legal History Seminar, which the University of North Carolina Law School hosted that day. These presentations prompted valuable feedback from Al Brophy, Ed Balleisen, Elizabeth Dale, Andrew Fede, Sally Hadden, and others. Back in Davidson, Paul Finkelman and Dan Rodgers provided suggestions during serendipitously timed campus visits.

Chapter 2, “Willis v. Jolliffe” began in HIS 455 in the fall of 2008. Chad Barnes, Kevin Birney, Caitlyn Culbertson, Patrick de Visscher, Owen Fitzpatrick, Daphne Fruchtman, Andrew Gorang, and Andrew Kengeter collaborated on the initial draft. At the beginning of the semester, Daphne vi Acknowledgments

Fruchtman proposed this topic. At the end, Carol Higham visited class and provided helpful feedback. Daphne Fruchtman subsequently did additional research and then presented the project at the Philadelphia meeting of the ASLH, on a panel organized by Lyndsay Campbell and Tony Freyer. Campbell and Freyer then skillfully coedited a book in which a version of this chapter appeared. I wrote a song called “Swing Low,” about this chapter's dramatic story. An informal recording of “Swing Low; sung by Daphne Fruchtman, is available upon request. To commemorate our collaborative work on this project, Patrick de Visscher gave me a beautiful historical print called Scenes on the Ohio, Above and Below Cincinnati. It hangs in my office in the Chambers Building.

Chapter 3, “Burgess v. Carpenter; emerged from the Law and Society seminar in the fall of 2011. Heidi Rickes proposed the topic and then helped to research it, along with classmates Akoua Enyo Abalo, Aaron Jordan, Alexander Kaplan, Ellis Martin, Claire McDonald, James Mietus, James P. Mooney IV, Bryan Wesley Reynolds II, and Anna Van Hollen. Late in the semester, Al Brophy drove over from UNC Law School and commented on a preliminary draft. The Davidson Research Initiative subsequently enabled William H. Mogen to advance the project. He presented his research at the 2013 ASLH meeting, in Miami, where Robert Steinfeld provided commentary. After doing some additional work, I presented different versions of this project to the Princeton History Department and the Duke Law School, respectively. Various professors and students there—among them Walter Johnson, Sarah Igo, Dan Rodgers, James McPherson, and Guy-Uriel E. Charles and his smart Duke Law students—provided challenging feedback.

Chapter 4, “Tucker v. Blease,’ was one of two chapters whose seeds were planted in HIS 455 in the fall of 2007. Harper Addison proposed that we study this case. Joining her in working on the paper in class were Jessica Bradshaw, E. Dudley Colhoun, Samuel Diamant, Andrew Gilbert, Jeffrey Higgs, and Nicholas Skipper. Shep McKinley of the University of North Carolina at Charlotte commented on an early draft. The Davidson Research Initiative funded Jess Bradshaw and Allyson Cobb's summer work with me in 2008. Dillon County genealogist Helen Belden Moody provided valuable research suggestions. The following fall, Jess and I presented the paper at the ASLH meeting in Ottawa, Canada, where Ariela Gross provided wonderful commentary. We then published a version of that paper in the Law and History Review, enabling us to benefit from the thoughtful suggestions

Acknowledgments vii of editor David Tanenhaus and two anonymous reviewers, as well as the published remarks of Ariela Gross and Peter C. Caldwell.

Chapter 5, “State v. Sanders, has the books most complicated origin story. It resulted from the hard work of two different groups of seminar students. In the fall of 2009, Peter Bruton, Andrew Jones, Emily May, Kayla McCann, Alexander Merritt, Lee Mimms, Rex Salisbury, Alex Sineath, and David Warren tackled the daunting topic of Jim Crow juries through the case State v. Middleton (South Carolina, 1946), which Andy Jones originally proposed. Jim Goodman of Rutgers-Newark visited class that fall and commented on our paper. At the Davidson College History Forum, my History Department colleagues Dan Aldridge, Vivien Dietz, Ralph Levering, Sally McMillen, and wonderful visitor Michael Meng commented on our collaborative research presentation. Davidson College’s then president Tom Ross also contributed his thoughts. Right at the end of that semester, class member David Warren discovered some “jury books” in a South Carolina archive. These handwritten tomes were compiled by jury commissioners in South Carolina counties as part of the jury-selection process. Although we did not have time to dig deeply into these books that semester, I took note of David's discovery. In the spring of 2014, a different group of HIS 455 students—Gerardo Alvarez Sottil, Katy Boyle, Katie Burwick, Bridget Flynn Kastner, Daniel Guenther, Katherine Herold, William Mahler, Everett Muzzy, Robin Malloch, Cameron Parker, CT Talevi, and Lawrence Wall— chose to study the history of Jim Crow juries in South Carolina through a different case, this one proposed by Bridgett Flynn Kastner: State v. Sanders (South Carolina, 1915). Thanks to the efforts of the 2009 group, I knew to direct the 2014 group directly to the jury books. Steven Weinberg commented on an early draft that spring. The following fall, Bridget Flynn Kastner, Katherine Herold, Cam Parker, Everett Muzzy, Daniel Guenther, Will Mahler, and CT Talevi joined me for a road trip to Durham, to copresent a revised version of our paper to the Duke University History Department. Duke historians Ed Balleisen, Nancy MacLean, John Jeffries Martin, and others received us with good questions and lunch.

Chapter 6, “Tessie Earle v. Greenville County, originated in HIS 455 in the fall of 2007. Charles Horwitz proposed the case and subsequently worked on it along with classmates Jess Bradshaw, Kathryn Finnigan, Joe Harvey, Randall McLeod, Sam Morris, and Madeline Stough. Shep McKinley commented on a rough draft. Will Gravely and Christopher Waldrep viii Acknowledgments helped us with our research. With funding from the Davidson Research Initiative, Joe Harvey and Gabrielle Jones conducted additional research over the following summer. Joe and I then copresented our research at the Organization of American Historians’ 2009 meeting in Seattle, Washington, where we received helpful feedback from Bobby Donaldson, Kari Frederickson, Will Gravely, and Bryant Simon. Years later, in the spring of 2018, I returned to this chapter’s topic in a course called Filming Southern History, in which my students and I collaboratively produced a documentary film, in partnership with filmmakers Thomas Espy and Colin Sylvester, who, at the time, were graduate students in the Documentary Film Program at nearby Wake Forest University. Davidson undergraduates EJ Canny, Francis Scalia Carroll, Hannah Cohen, Olivia Coral Daniels, Cassandra M. Harding, Stephanie Jefferis, William Stuart Kaskay II, Emilee Lord, Nate MacKenzie, Bryce Simmons, Ellen M. G. Spearing, and Seth W. Stancil took that course. The research that they did while making that film contributed to this chapter. Dan Aldridge, E. M. Beck, Myisha Eatmon, Kari Frederickson, Will Gravely, Kenneth Janken, Mark Jones, Kuba Kabala, Steve Kantrowitz, Fuji Lozada, Bryant Simon, Melissa Milewski, and Molly Walker all provided research consultation during that exciting semester. The ultimate result of that filmmaking exercise was Remembering Willie Earle (2020), a powerful documentary short directed by Frank Carroll, Cassie Harding, Stevie Jefferis, and Thomas Espy. Remembering Willie Earle won Best Documentary Film in the “History Plus” category at the 2021 Longleaf Film Festival of Raleigh, North Carolina, and was an official selection at six other film festivals, mostly in the Carolinas. Throughout this long research-and-filmmaking process, we benefited greatly from the generous collaboration of Dr. Will Gravely, the world’s leading expert on the history of the Willie Earle lynching. And without the extraordinary help of the late Acquillious “AQ” Jackson, we never could have made Remembering Willie Earle. AQ’s memories anchor that film and inform the narrative that we provide in chapter 6.

I began experimenting with collaborative-research pedagogy in 1997. The Davidson College History Department’s support was immediate and enduring. I thank its members, past and present.

I also thank the many funders whose generosity made these projects possible: the Davidson Research Initiative, the George L. Abernethy Research Fund, the Bacca Foundation Visiting Scholar and Artist Program, the Andrew W. Mellon Foundation, the Malcolm Lester fund, the William R. Kenan Jr. Charitable Trust, and the Mark Jones Mentorship Fund.

Acknowledgments ix

Four of this book’s six chapters debuted as presentations at annual meetings of the American Society for Legal History. Although few undergraduates attend ASLH conferences, and fewer still present research there, the legal history community has consistently received my undergraduate copresenters with respect and warmth. In their interactions with my students, legal historians such as Constance Backhouse, Ed Balleisen, Laurie Benton, Al Brophy, Lyndsay Campbell, Elizabeth Dale, Dan Ernst, Andrew Fede, Tony Freyer, Sally Gordon, Michael Grossberg, Sally Hadden, Dirk Hartog, Michelle McKinley, Patti Minter, Matthew Mirow, Dylan Penningroth, Gautham Rao, Reuel Schiller, Chris Schmidt, Rebecca Scott, David Tanenhaus, Chris Tomlins, Barbara Welke, and others embodied the legal history community’s reputation for taking mentorship seriously. I thank them all.

With good humor and an editor’s eye, Reuel Schiller helped me to think through the challenges that I would face while weaving six independently written chapters into a coherent book. Thanks, Reuel. Once I started weaving, Beth Bouloukos and her editorial team at Lever Press—Trevor Perri, Hannah Brooks-Motl, and two anonymous reviewers—provided valuable assistance. I appreciate their patience with me, their commitment to liberal arts education, and their determination to get it right. At the end of the process, my sharp-eyed departmental colleague Ralph Levering provided valuable proofreading.

Mark Jones, an exemplary Davidson College undergraduate, took my collaborative research seminar in the spring of 2000 and taught me by example how exciting it can be when student-faculty collaboration works. As an alumnus, Mark has continued to support my collaborative teaching by volunteering his considerable expertise whenever asked and by encouraging me to continue this sort of mentorship.

Year after year, my father, Richard Wertheimer—affectionally known to generations of Davidson College students as “Ihe Esquire”—visited my classes and showed my students (and me) how to read and write about the law. We thank him.

At home in Davidson, Glenda, Sharad, and Marco Wertheimer provided love and support, as did my parents down the street, Richard and Loretta Wertheimer. To them all I say, gracias.

Preface

This book has unusual origins. Each chapter originated as a collaborative research project in my legal history seminar at Davidson College. Whenever I teach this course, a dozen or so advanced undergraduates and I collaboratively explore a single topic. I designed this seminar to teach students, in a hands-on way, how to research, analyze, and write about the legal past. When designing the course, I expected students to learn a ton—and they do. I expected them to enjoy working together to create something important—and they do. What I did not expect was that the resulting scholarship would be worth sharing—but it is. The first batch of collaboratively produced essays to emerge from this seminar concerned North Carolina's legal history. In 2009, the University Press of Kentucky published these essays as a book.! You are reading the South Carolina follow-up.

These books develop slowly. They begin in class. Students start by rummaging through old state supreme court reports, itself an eye-opening experience for them. I instruct them to look for cases that touch on important historical issues, raise interesting legal questions, and concern intriguing people. Each student identifies such a case and presents it to the group. After extensive discussion, the group selects a winner. Year after year, between 2007 and 2015, students gravitated to race-related cases, reflecting both the bounty of such cases contained in South Carolina court records and the values that my students brought with them to class.

Topic in hand, we research. Like physicians in training, students cycle through secondary, primary, and archival research rotations. Some start with secondary sources. They read scholarly books and journal articles and start to sketch the historical background against which our case will be set.

1. Law and Society in the South: A History of North Carolina Court Cases (Lexington: University Press of Kentucky, 2009).

xi xii Preface

Others start with primary sources. They might seek old press accounts of our case or comb legal records, in search of similar cases. Still others head to the state archives in Columbia, South Carolina, to pan for gold. After several rotations, we know enough about our story to build a working outline. By design, the number of sections in our outline equals the number of students in the course. Students draw lots to determine the order in which they select writing assignments. They then spend the rest of the semester researching and writing their assigned segments—an individual task serving a collective end. Communication is constant, particularly among writers of adjacent sections. Research finds get passed around. Unexpected discoveries here demand revisions there. Two-thirds of the way through the term, an outside reader visits class to critique an inevitably ragged draft. Smart feedback results. Near the end of the term, we present our work on campus, prompting additional smart feedback.*

The semester ends; work continues. Thanks to Davidson College's generous support for undergraduate research, one or two students usually continue to work on the paper, often over a summer. Summer students deepen our excavations, especially in the archives. Sometimes, their digging undermines classroom assumptions, compelling us to rethink our arguments.

The students then leave the paper with me. I do additional research. I take the paper apart and reassemble it. I discard much and add new material. Some papers shrink to half their original length. Others double in size. On my good days, I sharpen the analysis. On my best days, I make it sing.

I then prepare a condensed version to test-drive before an academic audience and invite student coauthors to copresent. All of the chapters in this book debuted either as invited lectures on university campuses or as parts of research panels at academic conferences. Although undergraduates rarely present in such contexts, my students regularly do. They always perform marvelously. Sometimes, conference presentations serendipitously lead to publications.’

2. For a more detailed discussion of this course’s mechanics, see John Wertheimer, “The Collaborative Research Seminar,’ Journal of American History 88 (March 2002): 1476-81.

3. “Willis v. Jolliffe: Love and Slavery on the South Carolina-Ohio Borderlands,” in Freedom’ Conditions in the U.S.-Canada Borderlands in the Age of Emancipation, ed. Tony Freyer and Lyndsay Campbell (Durham, NC: Carolina Academic Press, 2011), 257-84; and “The Law Recognizes Racial Instinct’: Tucker v. Blease and the Black-White Paradigm in the Jim Crow South,’ Law and History Review 29, no. 2 (2011): 471-95.

Preface xiii

The final stage in the evolution from seminar project to scholarly book is the fusing of the separate papers. I assemble the chapters in chronological order. Because all of the chapters touch on the same general theme, the relationship between racial distinctions and the law in South Carolina history, patterns quickly emerge. Stories interweave. Locations recur. Characters with leading roles here reappear in cameos there. This synergy binds the book. I revise each chapter in light of all others, write section-to-section transitions, and prepare an introduction and a conclusion. Feedback from wise readers polishes my glasses along the way. Some former students stay in touch and offer helpful advice. Despite all of this help, flaws remain. Those are mine alone.

John Wertheimer Davidson, North Carolina

Introduction

Although the scale of federal litigation in the United States has grown immeasurably since the nation’s birth, state litigation remains far more common. For every case filed in a federal court, a hundred are filed in state courts.’ That federal-to-state imbalance surely was even greater during the century or so covered in this book, from the 1840s to the 1940s, a stretch of South Carolina's history that began during slavery and ended during Jim Crow.

Despite the submerged bulk of state law, federal law remains the iceberg’s looming tip in popular memory. Utter the phrase “the legal history of slavery” to an American and you are likely to evoke such infamies as the three-fifths clause (a federal constitutional provision), the Fugitive Slave Act (a federal statute), and Dred Scott (a federal court case). Yet state law, which built on colonial law, was vastly more important to the history of US slavery than was federal law. Likewise, for all of the retrospective attention paid to the US Supreme Court's infamous “separate but equal” reasoning in Plessy v. Ferguson (1896), the Jim Crow system was, first and foremost, a state-level creation. Plessy segregated nothing. It merely permitted states to continue segregating. When asked why he robbed banks, the celebrated thief Willie Sutton allegedly replied, “Because that’s where the money is? ‘The present exploration of race and the law, from slavery through Jim Crow, focuses on state law for a similar reason: that’s where the legal history is.

1. Fitz Tepper, “Legalist Is Making It Easier for Lawyers to Find State Court Records,” Tech Crunch, July 19, 2016, https://techcrunch.com/2016/07/19/legalist-is-making-it-easier-for-la wyers-to-find-state-court-records/; Dana H. Shultz, “What Percentage of Court Cases in the United States Are Heard by Federal Courts?” Quora, Aug. 5, 2016, https://www.quora.com/ What-percentage-of-court-cases-in-the-United-States-are-heard-by-federal-courts.

This book examines various ways in which perceived racial distinctions interacted with the law in South Carolina, from the 1840s through the 1940s. For much of the twentieth century’s second half, scholars snapped together these historical eras—slavery, Reconstruction, Jim Crow—in a configuration that zigged and zagged but ultimately bent toward justice. Slavery, standard accounts held, poisoned the new nation. Thankfully, the Civil War did away with it, allowing freedom fleetingly to sprout during the post-Civil War Reconstruction period, when a newly powerful federal government enforced equality and civil rights. Before long, however, a reactionary “Redemption” movement, led by southern Democrats, violently plowed under these tender shoots, allowing the noxious weeds of Jim Crow to spread across the South and beyond. The plowed-under sprouts of Reconstruction, America’s “unfinished revolution,’ however, would not die. By the mid-twentieth century, they had resurfaced, and a “Second Reconstruction” bloomed.”

Around 2000, in response to the sputtering out of Civil Rights—era progress, a different and less hopeful interpretation emerged. Frustrated by what one scholar dubbed the “permanence of racism,’ writers asked themselves, “Why has formal legal equality been achieved in most spheres while social and structural inequalities persist?”* Race scholars, Black and white, including historians of whiteness, concluded that American white suprem-

2. The phrase “unfinished revolution” comes from the subtitle of Eric Foner’s Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York: Harper & Row, 1988). The phrase “Second Reconstruction” comes from C. Vann Woodward, “The Political Legacy of Reconstruction,’ Journal of Negro Education 26, no. 3 (Summer, 1957): 231-40. For a discussion of the conventional scholarly wisdom surrounding Reconstruction, see Susan J. Pearson, “Review Essay: A New Birth of Regulation: The State of the State after the Civil War,’ Journal of the Civil War Era 5, no. 3 (September 2015): 422. For a discussion of the conventional scholarly wisdom about the relationship between Reconstruction and the mid-twentiethcentury civil rights movement, see Kenneth W. Mack, Representing the Race: The Creation of the Civil Rights Lawyer (Cambridge, MA: Harvard University Press, 2012), 3.

3. Derrick Bell, Faces at the Bottom of the Well: The Permanence of Racism (New York: Basic Books, 1995).

4. Cornelia H. Dayton and Lisa Levenstein formulated this rhetorical question, capturing the perspective of progressive scholars who were frustrated by the lack of social justice progress in many fields. Dayton and Levenstein, “The Big Tent of U.S. Women’s and Gender History: A State of the Field; Journal of American History 99, no. 3 (Dec. 2012): 793-817, at 802.

acy is an “intractable problem”® that morphs and mutates but never dies.° White supremacy simply “reproduce[s]” itself in a “new form in every era,” allowing the color line to remain “an organizing principle of U.S.-American life?’ Scholars drove this point home rhetorically by connecting historical dots. “Slavery became ‘separate but equal;” Jennifer Harvey wrote early in the twenty-first century, “which now has become color-blindness.”? David Roediger drew a similarly continuous line from “slave patrols to lynchings to contemporary mass incarceration!” US racial history was a story of continuity. The “preferential treatment of white people” survived emancipation and remained a force “so fundamental to America that it is difficult to imagine the country without it? wrote Ta-Nehisi Coates.'! Racialized “privilege and subordination” were among the nation’s most “fundamental continuities? added Barbara Welke.'* Ibram X. Kendi surveyed American history and found that patterns of racial discrimination were “stamped from the beginning” and persisted.’

The scholarly emphasis on continuity has had a huge impact, both within and beyond the academy. Its unwavering spotlight has illuminated some important truths: racial inequality in the United States survived emancipation. It survived the Equal Protection Clause of the Fourteenth Amendment. It survived the demise of Jim Crow and the passage of civil rights laws in the 1960s. At no point—no point—in American history have Black people, by any meaningful metric, experienced equality with white

5. Jennifer Harvey, “Race and Reparations: The Material Logics of White Supremacy,’ in Disrupting White Supremacy from Within: White People on What We Need to Do, ed. Jennifer Harvey, Karin A. Case, and Robin Hawley Gorsline (Cleveland: Pilgrim Press, 2004), 92.

6. Jacqueline Jones, “Back to the Future with The Bell Curve: Jim Crow, Slavery, and G, in Critical White Studies: Looking behind the Mirror, ed. Richard Delgado and Jean Stefancic (Philadelphia: Temple University Press, 1997), 179.

7. George Lipsitz, The Possessive Investment in Whiteness: How White People Profit from Identity Politics (Philadelphia: Temple University Press, 1998), 3.

8. Harvey, “Race and Reparations,” 111.

9. Ibid.

10. David Roediger, Colored White: Transcending the Racial Past (Berkeley: University of California Press, 2002), 23.

11. Ta-Nehesi Coates, “The Case for Reparations,” The Atlantic, June 2014, https://www.th eatlantic.com/magazine/archive/2014/06/the-case-for-reparations/361631/.

12. Barbara Young Welke, Law and the Borders of Belonging in the Long Nineteenth Century United States (New York and Cambridge: Cambridge University Press, 2010), 2, 13.

13. Ibram X. Kendi, Stamped from the Beginning: The Definitive History of Racist Ideas in America (New York: Nation Books, 2016).

people.'* This powerful message has done important political work. By its very nature, however, continuity scholarship deemphasizes historical distinctions among different systems of racial hierarchy. It also deemphasizes the processes by which the coil of history turns.

Take education. Antebellum South Carolina had some of the nation’s strictest laws limiting the education of Black people.’® The state made it illegal for anyone to teach an enslaved person to read or write.'® It also restricted educational opportunities for so-called free Negroes.'? Emancipation brought dramatic change. Black delegates to the states Constitutional Convention of 1868 pushed hard for a system of “free public schools throughout the state”!8 The resulting system of public education persisted even after Reconstruction fell. South Carolinas Jim Crow constitution of 1895 mandated that “separate schools” be provided “for children of the white and colored races.”!? Without question, the spirit of white supremacy infused South Carolina’s system of education under both slavery and Jim Crow. Thanks largely to the efforts of Black leaders, however, education went from being illegal to being constitutionally mandated—segregated, yes, and always insultingly unequal, but nominally free and compulsory “for all children”? And these constitutional promises were not entirely empty. Although Black literacy trailed white literacy throughout, it advanced dramatically during the century under study.”! That change seems

14. See Nicholas Kristof’s multipart series, “When Whites Just Don't Get It” New York Times, 2014 and 2016, https://impactamerica.com/the-new-york-times-when-whites-just-do nt-get-it-parts-1-7/

15. Walter Edgar, South Carolina: A History (Columbia: University of South Carolina Press, 1998), 299. Note that some white South Carolinians defied the laws and taught enslaved people to read, particularly for purposes of religious instruction. An estimated 5 percent of the state's Black population had some level of literacy as of 1860.

16. John Belton O’Neall, The Negro Law of South Carolina (Columbia, SC: J. G. Bowman, 1848), 23.

17. Edgar, South Carolina, 176, 299.

18. A. A. Taylor, “The Convention of 1868,” Journal of Negro History 9, no. 4 (Oct. 1924): 390-94. For the quoted words, see S. Carolina Const. , art. X, § 3 (1868); S. Carolina Const. , art. X, “Education” (1868).

19. S. Carolina Const. art. XI, § 7 (1895).

20. “Constitution of the State of South Carolina, Ratified in Convention, Dec. 4, 1895, art. XI, § 5 (Abbeville, SC: Hugh Wilson, 1900), 43.

21. See chapter 4 in this monograph.

worth noting. The role of Black South Carolinians in bringing it about also seems worth noting.

In part, this book supplements continuity scholarship’s top-down focus on white supremacy and its persistence by highlighting the historically variable experiences of nonwhite actors, including attorneys, plaintiffs, defendants, jurors, and even a state supreme court justice. When viewed from their perspectives, the needle measuring racial oppression during the century under study jumps around dramatically. The degree of Black access to the public sphere goes a long way toward explaining the timing of these jumps. Under slavery, Black South Carolinians had essentially no claims-making ability. The public sphere briefly opened wide to them during Reconstruction. Then it reclosed, though only partially. Continued Black legal agency, combined with at least partial buy-in to the “rule-of-law” ideal on the part of some white leaders, moderated some of the worst abuses of Jim Crow. This moderation arguably strengthened Jim Crow in the short run but weakened it in the long run, paving the way for the civil rights and post-civil rights eras that followed.

Slavery

This book's first two chapters explore slavery in antebellum South Carolina. They show that the Old South’s reputation for racist oppression is richly deserved. According to black-letter law, enslaved people in South Carolina were their masters’ personal property. They could be bought, sold, inherited, rented out, and “stolen”? Enslaved people could not marry,” make contracts,” or, as previously mentioned, be “taught to read or write?” Worse still, enslavement, under South Carolina law, was entirely racialized.” Legal experts had good reason for labeling it “negro slavery [empha-

22. John Belton O’Neall, The Negro Law of South Carolina (Columbia, SC: J. G. Bowman, 1848), 17-18, 43.

26. “An Act for the Better Ordering and Governing Negroes and Other Slaves in this Province,’ in The Statutes at Large of South Carolina, vol. 7, Containing the Acts Relating to Charleston, Courts, Slaves, and Rivers, ed. David J. McCord (Columbia, SC: A. S. Johnston, 1840), 397.

sis added]? Skin color, as one legal expert noted, was “prima facie evidence,’ that the “party bearing the color of a negro, mulatto or mestizo [was] a slave.” White people could not legally be enslaved.” The “burden of proof of freedom” rested heavily on the shoulders of Black people “claiming to be free.”* Slavery’s racialization may have been its most enduringly vile feature.

The legal abuse of so-called free Negroes in antebellum South Carolina compounded the system’s racial vileness. Free Negroes were a negligible portion of the state’s population, consistently below 2 percent of the total.*! They faced stark legal disabilities that did not apply to whites. They could not legally migrate into the state.’ If they left South Carolina, they were “forever prohibited from returning?” They could not “lawfully strike any white person,” even if the white person struck first.** They could not hold certain jobs** or own certain things.*° In short, the so-called free Negro, though not formally enslaved, was, as one South Carolina jurist matter-offactly noted in 1848, “subject to all the disabilities of the degraded class .. . into which his color thrusts him?” None of this was veiled or coded. State leaders unapologetically chiseled racism into the white marble of law. And South Carolina was hardly alone. Whereas slavery divided the states, unequal legal treatment of “free Negroes” existed nationwide, though to different degrees.**®

South Carolina’s roller-coaster movement up and down the axes of

27. O’Neall, The Negro Law of South Carolina, 12.

29. The existence of some cases in which arguably white people were enslaved, perhaps due to racial ambiguity, does not change the legal presumption that whites were ineligible for enslavement. For some instances in which arguably white people were enslaved, see Carol Wilson and Calvin D. Wilson, “White Slavery: An American Paradox,” Slavery and Abolition 19, no. 1 (1998): 1-23.

30. O’Neall, The Negro Law of South Carolina, 8.

31. Donald J. Senese, “The Free Negro and the South Carolina Courts, 1790-1860, South Carolina Historical Magazine, vol. 68, no. 3, July 1967, 140.

32. O’Neall, Negro Law, 15, quoting an 1835 state law.

38. Timothy Walker, Introduction to American Law, Designed as a First book for Students (Philadelphia: P. H. Nicklin & T. Johnson, 1837), 166.