Law in Mississippi has reflected the confusions, disagreements, and contradictions characteristic of all Americans’ ambivalence about the role of law in society.
Mississippi’s lawyers have sometimes distinguished themselves as among the best in the nation and at other times have disgraced themselves with racist appeals. At the same time that Mississippi’s judges and lawyers built the state’s judicial edifice, the state saw more lynchings than anywhere else in the Union. Lynching measures ordinary citizens’ lack of faith in law, and that brutal record is just as much a part of Mississippi’s legal history as the learned opinions published by the state supreme court.
From its beginnings, Mississippi law had an uncertain connection to the nation’s organic laws. Mississippi’s court system has its roots in the Mississippi Organic Act of 1798, which established a territorial government. This law authorized Pres. John Adams to appoint three territorial judges and a governor. By all accounts, Adams chose badly. Historians have described Gov. Winthrop Sargent from Massachusetts as overly authoritarian and judges Peter Bryan Bruin, Daniel Tilton, and William McGuire as representing varying degrees of incompetence. Bruin may have been an alcoholic and was certainly untrained in the law, while McGuire, who was educated as a lawyer, stayed in Mississippi for only a few months in 1799, returning to Virginia to complain that he could not live on the salary provided. Working largely without law books, Sargent, Bruin, and Tilton authored Sargent’s Code, the harsh series of statutes, often criticized as unconstitutional, that comprised Mississippi’s first set of laws.
Mississippi’s supreme court has its roots in an 1814 law that created the Mississippi High Court of Errors and Appeals. Judges serving on Mississippi’s High Court militantly and aggressively defended the basic ideas of Mississippi’s white society, making the court a bastion of the states’ rights ideology associated with John C. Calhoun. At the same time, Mississippi’s highest court adopted and accepted many of the most cherished ideals enshrined in the US Constitution, defending due process and judicial review. Mississippi’s High Court defended due process in an 1855 case sparked by a Vicksburg city ordinance directing a marshal to seize stray hogs. The judges struck down the ordinance as unconstitutional, pointing out that it failed to provide proper notice or a trial before authorizing the sheriff to take private property.
Judicial review fared as well in Mississippi as it did before the US Supreme Court. The High Court first held an act of the legislature unconstitutional in Runnels v. State (1823), articulating the necessity for judicial scrutiny of legislative acts, a position staked out by the US Supreme Court and many other state courts decades earlier. Judge Powhatan Ellis approached the task with “caution and circumspection” and with concern for the “delicacy of the situation.” Although he had repeatedly expressed “diffidence and reluctance” toward legislative acts, the legislature could not exercise unlimited discretionary power without converting “our boasted freedom and independence” into “a mere delusion.”
While upholding due process and judicial review according to national standards, Mississippi’s highest court articulated its own version of popular sovereignty. The court equated the state with its white population. The states are the people, the court said, and the people cannot speak other than through their states.
In criminal law, the Mississippi High Court of Errors and Appeals did very well, turning in well-written and carefully researched opinions that relied on precedent drawn from many states and showed impressive research. The judges ruled that those accused in capital cases were entitled to counsel and based their denunciation of double jeopardy on the US Constitution, which was “the paramount law of the land.” The court also protected suspects’ rights against self-incrimination.
In George (a Slave) v. State (1859), however, Mississippi’s High Court ruled that slaves never had the rights articulated in English common law except in “one or two very early cases” where overly “humane” North Carolina indulged itself in “unmeaning twaddle.” But Mississippi’s judges acted under common law influences when they required magistrates to warn slaves that their statements might be used against them in court. The judges, in fact, thought that the mere presence of armed and hostile white men around a slave prisoner made any confession questionable. The High Court told Mississippi magistrates that they must establish “very clear and strong evidence” that they had cautioned slaves against confession before admitting those confessions into evidence. From its beginnings the court recognized a problem with private individuals working in concert with state officers to extract confessions from accused persons.
Mississippi, like all other states, also maintained a system of inferior courts, operated by magistrates or justices of the peace (JPs). JPs were supposed to be accessible, close to the people, and efficient. JPs held court in the backs of stores, under trees, or in their homes. Magistrates could try suits for breach of contract, for the recovery of personal property or for damage done by wandering livestock, or for injury to personal property where the damage did not exceed fifty dollars. Much of these courts’ business involved small debts. The JPs also heard minor criminal complaints. For example, they could jail vagrants for ten days or fine anyone caught selling liquor within two miles of a church.
JPs also functioned as a kind of slave court. Any white person could complain to a magistrate when assaulted verbally by a slave or by a free person of color. Upon receipt of such a complaint, a justice would summon two slave owners to sit as judge and jury; they could administer thirty-nine lashes or order the defendant pilloried. These JP courts subjected slaves to informal procedures and lax processes that would not have been tolerated for white defendants.
Magistrates also heard cases headed for circuit court. White victims of felonies began their journey through their state’s criminal justice system by taking their complaints to their local JP, who would decide whether the complaint sounded reasonable enough to order an arrest. He also would decide whether the accused person awaited trial in jail or out on bond. Waiting in jail could mean months of incarceration, since circuit courts met only twice a year.
Antebellum Mississippi had no police force. JPs encouraged ordinary citizens to investigate crimes and bring evidence to justify issuance of a warrant to be served by a constable. Mississippi did, however, maintain slave patrols, with leaders selected by county governing bodies known as boards of police. Patrol leaders made lists of all persons in their districts eligible for duty and once a month assembled patrols to search slaves’ quarters. Patrol leaders simply rounded up a body of citizens, with no supervision from political leaders. Slave patrols kept no records and swiftly administered whatever punishments they saw fit. They could order whippings on the spot. As with JP courts, slave patrollers administered a kind of informal justice that the state would not have tolerated for white suspects.
In fact, race relations in Mississippi before emancipation rarely passed before any kind of judicial review. Slave owners disciplined their slaves largely outside the criminal justice system. Slave patrols and the JPs’ slave courts largely kept slaves who somehow escaped their owners’ discipline from entering circuit court. Even circuit courts meeting in counties with black-majority populations had few black defendants because Mississippi allowed slaves access to circuit court only when charged with the most serious crimes: murder, arson, and rape. Though sanctioned by law, slavery was essentially a lawless institution in Mississippi in the sense that slave owners faced few regulations on their relations with their slave property.
Emancipation put an end not only to slavery but to white Mississippians’ primary system for controlling their state’s black population. White Mississippians tried to use law to do what had once been done outside the law—that is, to discipline their labor force. Between 22 November and 1 December 1865, Mississippi passed what northerners described as Black Codes—six laws that attempted to substitute law for the lash. For the first time, African Americans were permitted to marry, but marriage across racial lines was forbidden. Black plaintiffs could testify when they sued white people but under no other circumstances. The new laws defined vagrancy to include insufficient vigor by employees, so that a person with a job might be deemed a vagrant if his employer thought he was not working hard enough.
Mississippi’s Black Codes included a statute creating a system of county courts that would always be in session and therefore always accessible to the white victims of black criminals. These courts would make it easy for complainants to file charges—a simple, half-page “information” sheet substituted for the cumbersome grand jury system required in circuit court. Whites intended their new county courts to control blacks’ supposed propensity for thievery and other small crimes, tendencies previously shackled by slavery’s chains.
The Black Codes tried but failed to institutionalize race relations within the law. Mississippi withdrew its Black Codes in the face of the US Civil Rights Act of 1866, which defined citizenship in a way that made obviously discriminatory state laws illegal. Most white Mississippians likely had grown disenchanted with their legal approach to labor control even before Congress acted. Whites called the county courts “nigger courts” and complained about their cost. White defendants found themselves hauled before county courts about as often as blacks did. Creditors used the new courts as a handy way to pursue debtors, much to the disgust of white debtors. Black parents used the courts to pry their children out of the hands of former slave owners through the habeas corpus process. And lawyers readily defended blacks accused of crimes in county courts, regularly winning acquittals. Many whites began looking to vigilantism and lynching as a more effective way to control blacks. The Ku Klux Klan, organized in 1866 in Tennessee, became active in Mississippi in 1868.
The federal civil rights law marked the beginnings of a change in national policy. Congress took control of Reconstruction policies in 1867, leading to Republican government in Mississippi. Former slaves served on juries and as justices of the peace. In 1870 Mississippi organized a Supreme Court after the adoption of a new constitution in 1869. Mississippi’s Republican-dominated legislature passed a state civil rights law in 1873. Black Mississippians wasted little time in testing its provisions, seating themselves in previously all-white public accommodations and at times sparking violent reactions from angry whites.
By 1877 white “Redeemers” had come to power in Mississippi, largely through illegal means, and had ousted Republicans from office. For years Democrats joked about stealing votes and cheating at the polls to end Reconstruction. Some argued that Mississippi needed a new state constitution to eliminate black voting by legal rather than illegal means. The 1890 constitution accomplished this goal, but electoral irregularities continued.
For years before Mississippi convened its 1890 constitutional convention, whites debated how to eliminate black voting without violating the US Constitution’s Fifteenth Amendment barring racial discrimination in voting. The solution—poll taxes and literacy tests—was supposed to obviate the need for vote stealing and other corrupt practices common in Mississippi elections. The lone black delegate at the convention, Isaiah T. Montgomery, endorsed voting restrictions in hopes that whites would curb their vigilante violence. Instead, lynching became more open and prominent in Mississippi.
Article III of the 1890 constitution articulated an extensive bill of rights. Section 26 guaranteed that no Mississippi citizen could be compelled to give evidence against himself—in other words, it forbade police torture of suspects. Nonetheless, Mississippi law enforcement officers routinely flouted the constitution, torturing suspects to elicit confessions. In Brown v. Mississippi (1936), which went to the US Supreme Court, a sheriff’s deputy testified in court that he had beaten three black suspects, a procedure so routine that he did not hesitate to speak on the record as a court reporter transcribed his words. The Supreme Court threw out the convictions.
In 1888 Mississippi’s legislature amended its laws to require that train companies segregate passengers by race and authorized railroad conductors to enforce segregation. Railroads resisted, but the Mississippi Supreme Court ruled that segregation was constitutional in Louisville, New Orleans and Texas Ry. Co. v. State of Mississippi (1889). The railroad contended that only Congress could legislate on questions involving interstate commerce, but the Mississippi court rejected this argument, authorizing segregation in Mississippi for three-quarters of a century.
Through much of the twentieth century courts across the state failed to try the killers of African Americans and civil rights workers. Not until 2005 did state authorities make an arrest in the 1964 murders of James Chaney, Michael Schwerner, and Andrew Goodman. In 1964 prosecutor William Waller unsuccessfully prosecuted Byron De La Beckwith for the murder of Medgar Evers the preceding year. When Waller asked prospective jurors if they thought it was a crime to “kill a nigger” in Mississippi, some thought so, some did not, and some were not sure. When African American Reuben V. Anderson began practicing law in 1967, some Mississippi courthouses still maintained segregation and refused to allow Anderson use the same bathroom as his white colleagues. Anderson ultimately watched the fall of legal segregation, and in 1985 he became the first African American to serve on the Mississippi Supreme Court.
At the end of the twentieth century another Mississippi lawyer, John Grisham, wrote a series of legal thrillers depicting the continuing corruption in courthouses and law firms. But even Grisham recognized that Mississippi law was changing profoundly. Mississippi allowed blacks and women to serve on juries. In 1992 the Mississippi Supreme Court ruled 4–3 that prosecutors could retry De La Beckwith for Evers’s murder, and De La Beckwith was subsequently convicted. Mississippi also became the first state to sue tobacco companies to recover smokers’ health care costs. Mississippi attorney general Michael Moore engineered this strategy, endorsed by the Mississippi Supreme Court in 1997 and copied by scores of other states and the federal government.
At the end of the twentieth century Mississippi became notorious for its tort litigation. Large law firms set up offices in counties known for generous awards, seeking to pursue lucrative cases. Business groups routinely ranked Mississippi last when judging states’ fairness in tort lawsuits. Critics identified judicial campaigning as contributing to the problem. Since 1832 Mississippians have elected their state judges, and these campaign costs have risen astronomically—from an average of twenty-five thousand dollars in 1990 to one million dollars in 2002. Business groups and lawyers have made large contributions to the judges before whom they litigate. One tort reform association labeled several Mississippi counties “judicial hellholes.” In 2004 Mississippi enacted a law restricting malpractice awards to five hundred thousand dollars and awards in other cases to one million dollars, a provision that Gov. Haley Barbour said he hoped would make Mississippi more attractive to business.
Like courts, lawyers, judges, and litigants in every other corner of the nation, Mississippi has only occasionally lived up to the ideals enshrined in the state and federal constitutions.
- Howard Ball, Murder in Mississippi: United States v. Price and the Struggle for Civil Rights (2004)
- Richard Cortner, A Scottsboro Case in Mississippi: The Supreme Court and Brown v. Mississippi (1986)
- Meredith Lang, Defending the Faith: The High Court of Mississippi, 1817–1975 (1977)
- Dunbar Rowland, Courts, Judges, and Lawyers of Mississippi, 1798–1935 (1935)
- Maryanne Vollers, Ghosts of Mississippi: The Murder of Medgar Evers, the Trials of Byron De La Beckwith, and the Haunting of the New South (1995)
- Christopher Waldrep, Roots of Disorder: Race and Criminal Justice in the American South, 1817–80 (1998)