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Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights

As a result of the violence, segregation, and disfranchisement that occurred throughout the South in the decades after Reconstruction, it has generally been assumed that African Americans in the post-Reconstruction South litigated few civil cases and faced widespread inequality in the suits they did pursue. In this groundbreaking work, Melissa Milewski shows that black men and women were far more able to negotiate the southern legal system during the era of Jim Crow than previously realized. She explores how, when the financial futures of their families were on the line, black litigants throughout the South took on white southerners in civil suits and, at times, succeeded in finding justice in the Southern courts. 

Between 1865 and 1950, in almost a thousand civil cases across eight southern states, former slaves took their former masters to court, black sharecroppers litigated disputes against white landowners, and African Americans with little formal education brought disputes against wealthy white members of their communities. As black southerners negotiated a legal system with almost all white gate-keepers, they found that certain kinds of cases were much easier to gain whites' support for than others. But in the suits they were able to litigate, they displayed pragmatism and a savvy understanding of how to get whites on their side. Their negotiation of this system proved surprisingly successful: in the civil cases African Americans litigated in the highest courts of eight states, they won more than half of their suits against whites throughout this period.

Litigating Across the Color Line shows that in a tremendously constrained environment where they were often shut out of other government institutions, seen as racially inferior, and often segregated, African Americans found a way to fight for their rights in one of the only ways they could. Through these suits, they adapted and at times made a biased system work for them under enormous constraints. At the same time, Milewski considers the limitations of working within a white-dominated system at a time of great racial discrimination--and the choices black litigants had to make to get their cases heard.

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"From Slave to Litigant: African Americans in Court in the Post-War South, 1865-1920" Law & History Review 30, no. 3 (Aug. 2012): 723-769.

This article draws on more than 600 higher court cases in eight southern states to show that African Americans succeeded in litigating certain kinds of civil cases against white southerners in southern appellate courts between 1865 and 1920.  While historians have often concentrated on cases involving issues of race, the much more common, seemingly prosaic civil suits African Americans litigated against whites over transactions, wills, and property also had important implications for race relations.  Through these suits, black southerners continued to successfully assert the legal rights they gained during Reconstruction long after Reconstruction had ended.  Moreover, I found that black litigants won the majority of civil cases litigated against white southerners in higher state courts – not only during Reconstruction, but, astonishingly, during the post-Reconstruction and Jim Crow eras as well.  I examine how the legal system itself, and the varied actions of participants in the legal system, allowed African Americans to litigate, and win, such cases.  This article has important implications for our understanding of the judicial system’s relationship with politics and race and for its insights into the role of the courts in African Americans’ centuries-long struggle for rights.

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Before the Manifesto: The Life Writings of Mary Lois Walker Morris

Mary Lois Walker Morris was a Mormon woman who challenged both American ideas about marriage and the U.S. legal system. Before the Manifesto provides a glimpse into her world as the polygamous wife of a prominent Salt Lake City businessman, during a time of great transition in Utah. This account of her life as a convert, milliner, active community member, mother, and wife begins in England, where her family joined the Mormon church, details her journey across the plains, and describes life in Utah in the 1880s. Her experiences were unusual as, following her first husband's deathbed request, she married his brother as a plural wife in the Old Testament tradition of levirate marriage. Mary Morris's memoir frames her 1879 to 1887 diary with both reflections on earlier years and passages that parallel entries in the day book, giving readers a better understanding of how she retrospectively saw her life. The thoroughly annotated diary offers the daily experience of a woman who kept a largely self-sufficient household, had a wide social network, ran her own business, wrote poetry, and was intellectually curious. The years of "the Raid" (federal prosecution of polygamists) led Mary and Elias Morris to hide their marriage on "the underground," and her to perjury during Elias's trial for unlawful cohabitation. The book ends with Mary Lois's arrival at the Salt Lake Depot after three years in exile in Mexico with a polygamist colony.

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