This Article uses private law as a lens and a guide to excavate an unfamiliar story about labor and racial violence in the post-slavery south. It is the story of farmers like Colonel Bishop, whose landlord attacked him in the middle of the night in an effort to coerce him into breaching his contract. Violent breaches of contract such as these were not uncommon in the post-slavery south. Indeed, historians have thoroughly documented the violence in this period. Yet much less is known about the doctrinal implications of this violence, particularly in the context of private law. Even less explored are the ways that the ordinary, vulnerable, and marginalized farmers who experienced these breaches bravely sought redress in one of the few legal avenues available to them: private common law claims.
Consequently, this Article reckons with the role of labor violence in the post-slavery south, cataloging both the phenomenon of breach by violence as well as farmers’ extraordinary efforts to remedy these breaches with private law. To that end, this Article documents and analyzes a set of cases that has never been considered systematically. These twenty-four cases, arising between the end of the Civil War and the start of the Great Depression, show how sharecroppers and tenant farmers who were denied benefits under their contracts, and who had been assaulted, forcibly evicted, and robbed, were seeking legal remedies in the language of private law. As a dataset, this group of cases is a new window into the history of both private law and civil rights.
This Article offers two insights into this underexplored history. First, in a context such as the Jim Crow south—where neither criminal law nor civil rights legislation were able to protect vulnerable claimants, actions rooted in private common law rights could offer a partial remedy. Second, although private law was many plaintiffs’ last best option for receiving redress, certain private law doctrines may themselves have been complicit in the violence that permeated the Jim Crow south. Ultimately, this history suggests that private law may be a central actor in the story of the law’s relationship to violence