Add John Wertheimer's book to a much-needed list of scholarship focusing on law and cultural norms at the state and local levels. This one digs deeply into eight North Carolina cases from slavery times to the end of the civil rights era, and is the product of a collaborative research seminar Wertheimer teaches at Davidson College. Together with his students, Wertheimer seeks to expand and sometimes upend our understanding of the roles of race, gender, class, and the law in people's daily lives. He does so primarily by abandoning the heavy reliance on statutes and published appellate decisions that so often animates our discussions. Instead, the stories told here are largely crafted from underutilized and often difficult-to-find sources: trial records, deeds, divorce petitions, marriage records, briefs, newspaper accounts, and so on. The result is a textured and nuanced telling of the complex interplay between law and society, with a particular eye on how regular people participated in the laws that governed them.
The book is divided into three parts, largely based on the chronology of the cases but held together by common themes within the different eras. Part I focuses on early efforts to keep the races separate – legal ‘line-drawing’ during slavery, Reconstruction, and Jim Crow. In each of the three chapters in this part, Wertheimer illustrates the threadbare truth that we can only take the law on the books so far. Indeed, in North Carolina, like in other southern states, legal elites sought to ban the efforts of whites and blacks to marry and to live next to one another. But their efforts were never entirely successful; people in various communities invariably found that they shared things in common, and the stories told in this part of the book demonstrate how much we have to learn by studying the margins. Pinkney and Sarah Ross's story is illustrative. He was black and she was white, but they fell in love, and so they crossed over to South Carolina and got married. Their legal troubles began when they returned – they were charged with fornication – but the interesting aspect of the case has less to do with the result than with how the community responded. By recreating the events and the players, Wertheimer allows us to see firsthand how the rigid racial lines drawn by the legislatures were actually much more fluid than is traditionally thought.
Parts II and III pick up on this theme about the ‘law as lived in society’, with Part II looking at cultural clashes between the two world wars and Part III focusing on civil rights activism. Each chapter, like those in Part I, is designed to get us thinking about the ways in which law and society interact. Wertheimer's description of the Samarcand arson case in Part II, for example, makes agents out of young, working-class women, showing us how they effected legal change by burning down a reform school when conditions became intolerable. Or consider the intriguing story in Part III of James R. Walker, a local African-American lawyer who mounted an attack on the state's literacy test. Wertheimer calls him a ‘grassroots litigator’ because he challenged local laws on his own, without the benefit and support of groups like the NAACP. His success – like that of the unruly women at Samarcand – adds great richness to how we view the law, especially how ordinary people invoked it and used it to make a difference.
Still, those of us with law degrees might occasionally get bogged down in some of Wertheimer's legal analysis. One example is the reading he gives to a pair of pre-Civil War cases in which husbands sought to divorce their white wives after their children turned out to be biracial. In explaining why the court rejected Marville Scroggins' claim and allowed Jesse Barden's to go forward, Wertheimer turns Justice Ruffin into a crafty politician worried less about legal reasoning than about the incredibly far-sighted concerns of ‘inoculat[ing] his court against democratic reform’ in the age of Jackson (p. 14). Yet my reading of the cases illustrates something much more mundane – that Barden, quite simply, alleged something in his complaint that Scroggins did not: that his wife had tricked him into believing the child was his. This subtle difference – between marrying someone one knew to be ‘unchaste’, only to be surprised by the results, and marrying someone on the belief, as Barden alleged, that the child ‘was his own, and that this belief was created by the artful representations of the defendant’ – is the difference between a cuckolding and a fraud. The latter was grounds for divorce; the former was not.
In the end, though, objections of this sort should not stand in the way of appreciating a thoughtful and illuminating work. Wertheimer's strength lies in his attention to detail – to giving life to the people who were actually involved in these disputes. After reading it, one cannot go back to simply examining statutes and canonical cases and hope to understand the times.