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Review of Paul Finkelman’s “Supreme Injustice”

In America, American History, Arts & Letters, Book Reviews, Books, Dred Scott, Historicism, History, Humanities, Jurisprudence, Justice, Law, Laws of Slavery, liberal arts, Nineteenth-Century America, Politics, Scholarship, Southern History, The South, Writing on August 8, 2018 at 6:45 am

This review originally appeared here in the Los Angeles Review of Books.

Paul Finkelman is an anomaly: a historian with no law degree who’s held chairs or fellowships at numerous law schools, testified as an expert witness in high-profile cases, and filed amicus briefs with several courts. Federal appellate judges, including justices on the United States Supreme Court, have cited his work. Liberal arts professors anxious about the state and fate of their discipline might look to him to demonstrate the practical relevance of the humanities to everyday society.

Finkelman specializes in American legal history, slavery and the law, constitutional law, and race and the law. His new book, Supreme Injustice, tells the story of three United States Supreme Court Justices — John Marshall, Joseph Story, and Roger B. Taney — and their “slavery jurisprudence.” Each of these men, Finkelman argues, differed in background and methodology but shared the belief that antislavery agitation undermined the legal and political structures instituted by the Constitution. Had they aligned their operative principles with the ideals of liberty, equality, and justice enshrined in the Declaration of Independence, liberty rather than racism and oppression might have defined antebellum America.

Finkelman insists that the legacy of Marshall, Story, and Taney had enormous implications for the state of the nation, strengthening the institutions of slavery and embedding in the law a systemic hostility to fundamental freedom and basic justice. These are strong allegations, attributed to only three individuals. Yet the evidence adds up.

Start with Marshall, a perennially celebrated figure who, unlike many of his generation, in particular his occasional nemesis Thomas Jefferson, has escaped scrutiny on matters of race and slavery. Finkelman submits that scholarship on Marshall is “universally admiring” — an overstatement perhaps, but one that underscores the prevalence of the mythology Finkelman hopes to dispel.

Finkelman emphasizes Marshall’s “personal ties to slavery” and “considerable commitment to owning other human beings.” He combs through numerous records and presents ample data to establish that Marshall, a life member of the American Colonization Society, “actively participated in slavery on a very personal level.” Finkelman then turns to Marshall’s votes and opinions in cases, several of which challenged state laws and rulings that freed slaves. In fact, Marshall would go so far as to overturn the verdicts of white Southern jurors and the judgments of white Southern judges who, in freedom suits, sided with slaves and against masters.

Marshall could be an ardent nationalist attempting to effectuate the supremacy of federal law. One is therefore tempted to attribute his rulings against state laws in cases about slavery to his longstanding desire to centralize federal power. But that is only part of the story. Finkelman brings to light exceptions, including when Marshall selectively deferred to state law if doing so meant that slaves remained the property of their masters. Finkelman highlights these decisions to show that Marshall was hypocritical, compromising his otherwise plenary nationalism to ensure that contractual and property arrangements regarding slaves were protected by law.

Story was also a nationalist, having evolved from Jeffersonianism to anti-Jeffersonianism and eventually becoming Marshall’s jurisprudential adjunct. Unlike Marshall, however, Story could sound “like a full-blown abolitionist.” His opinion in United States v. La Jeune Eugenie (1822) was “an antislavery tour de force,” decrying slavery and the slave trade as “repugnant to the natural rights of man and the dictates of judges.”

Yet he prioritized radical nationalism over the rights of humans in bondage. In Prigg v. Pennsylvania (1842), writing for the Court, he deemed unconstitutional a state ban on the extradition of blacks out of Pennsylvania for purposes of slavery. Story jumped at the chance to pronounce the primacy of federal law over state law even if it meant employing the Supremacy Clause to validate the Fugitive Slave Act of 1793. “A justice who had once thought slavery was deeply immoral,” Finkelman bemoans,

rewrote history, misstated precedents, and made up new constitutional doctrine to nationalize southern slave law and impose it on the entire nation. The decision jeopardized the liberty of every black in the North, whether free or fugitive. The injustice of this opinion was profound.

Author of the notorious Dred Scott opinion, Taney is the most predictable of Finkelman’s targets. By the end of the Civil War, he was vehemently denounced and widely despised. Progressives in the early 20th century, most notably Felix Frankfurter, rehabilitated his reputation in part because progressive economic policy during that era promoted Taney’s approach to states’ rights and political decentralization. The mood has changed; most historians now probably agree that Taney “aggressively protected slavery” and “made war on free blacks.” Few law professors would recall Taney’s “early ambivalence about slavery and his defense of the Reverend Jacob Gruber,” who was arrested for sermonizing against slavery at a Methodist camp meeting and subsequently charged with inciting slave rebellion. Finkelman’s chapter on Taney thus runs with the grain, not against it.

At times Finkelman exaggerates or wishfully portrays the role of judges. He asserts that, prior to the Civil War, courts rather than Congress or the executive had “room for protecting the liberty of free blacks, liberating some slaves, providing due process for alleged fugitive slaves, enforcing the federal suppression of the African slave trade, or preventing slavery from being established in federal territories.” This claim may hold up in some of the cases Finkelman discusses (e.g., LaGrange v. Choteau [1830], in which Marshall declined the opportunity to enforce federal law that could have freed a slave who had traveled into free territory), but not in all of them. If a judge were faced with a problem of statutory construction, he (there were only male judges then) could have asked what the language of the statute meant, how it applied to the concrete facts and material rules before him, and whether it was constitutional, but anything more would have arguably exceeded the scope of his office.

The Constitution was silent about slavery until the Civil War Amendments, also known as the Reconstruction Amendments. Prior to them, any attempt to render slavery unconstitutional would have required appeals to natural law, natural rights, or other like doctrines that appear in the Constitution only in spirit, not in letter. The abolitionist William Lloyd Garrison believed the Constitution was affirmatively proslavery, calling it a “covenant with death” and “an agreement with Hell.” If this is true, then when judges swear an oath to defend the Constitution (the basic framework of government with which all other laws in the United States must comport), they are also inadvertently vowing to defend the institution of slavery — unless the law is more than what statutes and the Constitution provide, in which case these judges could reach beyond the positive law to principles pre-political and universal.

Finkelman suggests another alternative: that certain constitutional provisions supplied a basis in positive law for antislavery strategies and stratagem. He cites, among other things, the congressional powers exercised in the reenactment of the Northwest Ordinance and the enactment of the Missouri Compromise and Oregon Territory; the admission of new free states into the United States; the due process guarantees of the Fifth Amendment; the rights of criminal defendants protected by the Sixth Amendment; the Privileges and Immunities Clause; and the guarantees of the First Amendment.

Each of these would have been problematic during the period Finkelman covers. There was not yet a 14th Amendment through which provisions of the Bill of Rights could have been incorporated to apply against the several states, although state constitutions contained protections of fundamental rights that federal judges recognized and affirmed. Moreover, the provisions Finkelman enumerates empowered Congress, not the courts, to pursue robust antislavery measures. Courts could have responded to and interpreted actions and directives of Congress, but they could not have initiated legislation or litigation. Had the Constitution enabled federal judges and the United States Supreme Court to strike down proslavery laws and regulations with ease, the Civil War Amendments might not have been necessary. But they were necessary to facilitate the demise of slavery.

Finkelman speculates about what the courts could have done to advance antislavery causes, but courts cannot do anything unless the right litigants bring the right cases with the right facts before the right tribunals while making the right arguments. Judges do not commence lawsuits but handle the ones brought before them. Finkelman could have examined some cases more closely to reveal how the facts, issues, reasoning, and holdings should have differed in rationale, not just in result. Too many cases receive only cursory treatment; lawsuits are more than picking winners and losers.

At one point, Finkelman accuses Marshall of reading a statute “in favor of slavery and not freedom,” but the statute isn’t quoted. Readers will have to look up the case to decide if Marshall’s interpretation was reasonable or arbitrary — if, that is, his hermeneutics adequately reflected a common understanding of the statutory language or intolerably controverted congressional purpose and prerogative. Finkelman chides departures from precedent, but rarely analyzes the allegedly controlling cases to verify that they are, in fact, dispositive of the later controversy by analogy of received rules.

One is regularly left with the impression that the only issue in the cases Finkelman evaluates was whether a slave should be free or not. Many of the cases, however, involved procedural and jurisdictional complexities that had to be resolved before grand political holdings implicating the entire institution of slavery could be reached. We’re still debating the ambiguities of federalism (e.g., how to square the Supremacy Clause with the Ninth and 10th Amendments) that complicate any exposition of the interplay between state and federal law, so it can seem anachronistic and quixotic to condemn Marshall, Story, or Taney for not untangling state and federal law in a manner that in retrospect would appear to have occasioned more freedom and less bondage.

Then again, it’s hard to fault Finkelman for subjecting these giants of the law to such high standards. That men like Marshall and Story have not been investigated as their contemporaries have in light of the horrors and effects of slavery speaks volumes about the willful blindness of the legal profession and the deficiencies of legal scholarship. Finkelman remains an important voice in legal education and has pushed scholarly conversations about slavery in new directions. At 68, he’s likely got more books left in him. Anxious readers await the next.

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Review of “Emigration to Liberia” by Matthew F.K. McDaniel

In American History, Arts & Letters, Book Reviews, Books, Georgia, Historicism, History, Humanities, Laws of Slavery, Politics, Scholarship, Slavery, Southern History, Southern Literary Review, The South, Writing on November 26, 2014 at 8:45 am

Allen 2

This review originally appeared here at Southern Literary Review.

Emigration to Liberia is the story of the nearly 500 African-Americans who left Columbus, Georgia, and Eufaula, Alabama, from 1853 to 1903, to emigrate to Liberia, the West African nation that was founded in 1822 by United States colonization.

Matthew F.K. McDaniel marshals evidence from written correspondence and newspapers to piece together the first narrative treatment of those African-American emigrants from this specific region, which he calls the “Chattahoochee Valley.” He contends that the establishment of Liberia united many Northerners and Southerners for different reasons, namely, in the North, for the gradual abolition of slavery, and, in the South, for the stability of the slave system once freed African-Americans were removed from the purview of their brothers and sisters in bondage.

Liberian emigrants from the Chattahoochee Valley made up roughly ten percent of the total number of emigrants to Liberia from the entire United States; therefore, the story of the migration from this region reveals much about the overall characteristics of the entire emigrant movement and provides clues as to why many emigrants decided to leave in the first place.

“To blacks,” McDaniel explains, “the prospect of Liberia was escape, safety, and opportunity. They could own their own land in their own country and be governed by their own people. Liberia was a new start and a new future for families, far from the whites who had oppressed them.”

McDaniel supplies enough historiography to interest and benefit historians working in the field, but enough narrative to engage non-specialists. At only 64 pages, excluding the highly useful notes and bibliography, his book can be read in a single sitting. Its brevity has to do with the fact that it began as a 2007 master’s thesis in history at the Louisiana State University. Credit must be given to the editors at NewSouth Books for having the wisdom, faith, and generosity to take a chance on such a short but important work.

Settled by Europeans between 1816 and 1823, Eufaula fell into the hands of whites after the 1832 Treaty of Cusseta forced the Creek Indians off their ancestral land. Columbus was founded in 1828, six years after the founding of Liberia. The future of the African Americans who remained in Eufaula and Columbus turned out to be much different from that of the emigrants to Liberia, many of whom suffered or returned to America.

“Liberia was neither American or African,” McDaniel submits, “but a strange medley of the two worlds, and it disappointed many of the Chattahoochee Valley emigrants,” who became stuck “within a stringent social hierarchy” that was “similar to the one they had escaped from.” They were not used to the tropical climate and were not skilled in the work that was specific to the region; they discovered, too, that the native Liberian elite “mimicked the customs and styles of the whites who had once looked down upon them.”

An appendix rounds out McDaniel’s research by listing the names, ages, sexes, and, among other things, occupations of all the emigrants who sailed in either the 1867 or 1868 voyages to Liberia aboard the ship Golconda. To run your finger down the list, slowly, is to invite questions about who these people were, what they were like, what they did for entertainment, what their wishes and dreams were, what they were leaving behind and hoping to accomplish with their move to Africa, and what happened to them after they arrived there. Facts and data are limited, so, in many cases, we cannot know for sure.

McDaniel has done well with what information he had available to him. Let’s hope he’s inspired others to pick up where he left off. This is a story worth telling and knowing.

Book Synopsis: Miller, William Lee. Arguing About Slavery: The Great Battle in the United States Congress. New York: Alfred A. Knopf, 1996.

In America, American History, Arts & Letters, Book Reviews, Books, Historicism, History, Humanities, Law, Nineteenth-Century America, Politics, Scholarship, Slavery, Southern History, The South on October 30, 2013 at 8:45 am

Allen 2

This is the story of America’s struggle to end slavery without destroying the union.  The book deliberately focuses on the rhetoric of white male politicians and thus does not purport to tell the “whole” story, but only that part of the story which is most recoverable and hence most knowable.  Many early 19th century politicians averred that the Northern textile industry, which was roughly as powerful as today’s oil industry, depended on Southern slavery.  An industry with such power and control over the financial interests of the country can, Miller argues, cause social changes to come about more slowly.  When talking about slavery, Miller submits, American politicians of the time had to deal with inherent contradictions in the American tradition: a nation that celebrated equality and the virtues of the “common man” had to come to terms with the fact that African slaves, officially excluded from citizenry, embodied the “common man” ideal but were not permitted to climb the social and economic ladder.  Most politicians did not believe slavery could end abruptly but would end gradually as economic dependence turned elsewhere.  Slavery went against all the principles and rhetoric of America’s founding documents, and yet there it was, a thriving and ubiquitous industry.

The book begins in 1835, when Congress deliberated over petitions to abolish slavery in the District of Columbia.  Congress took on these petitions reluctantly, unwilling to address a contentious and divisive issue that would disrupt congressional and governmental harmony.  Congress wished the issue would just go away—but realized that it could not.  During this congressional session, most of the speechmaking came from proslavery Southerners, since Northern politicians were, generally, too afraid to take a stand one way or the other.

Major figures from this session include the following:

President Andrew Jackson

John Fairfield: Congressman from Vermont who introduces the petitions to abolish slavery in D.C.

Franklin Pierce: Eventually the fourteenth President, he is, at this time, serving in the U.S. House of Representatives.  He is a Northerner with Southern sympathies.

James Henry Hammond: Congressman from South Carolina who opposed Fairfield and Adams.

John Quincy Adams: A former president (the nation’s sixth), he is, at this time, a U.S. Representative from Massachusetts.

Henry Laurens Pinckney: A Congressman from South Carolina who opposed Fairfield and Adams but who also did not get along with John C. Calhoun.

John C. Calhoun: A U.S. Senator from South Carolina, having resigned from the Vice Presidency.

Martin Van Buren: Eventually a U.S. President (the nation’s eighth), he is, at this time, the Vice President under Andrew Jackson.

James K. Polk: Eventually a U.S. President (the nation’s eleventh), he is, at this time, a member of the U.S. House from the State of Tennessee.

The debates in Congress were fueled by abolitionist literature (written by people like John Greenleaf Whittier, William Lloyd Garrison, and Elizur Wright, Jr.) and oration that maintained not only that slavery was wrong (as people had maintained for decades) but also that its demise was the nation’s highest priority.  Congress could not “sit on its hands” while abolitionists protested and demanded change; it had to respond, albeit reluctantly, to an institution that many congressmen assumed was already doomed.  The demise of slavery was supposed to be inevitable, according to the common logic, yet it persisted; therefore, the abolitionists forced Congress to address slavery, the demise of which, the abolitionists argued, was not as inevitable as people supposed.

The Senate also faced petitions.  Senator Calhoun became the most colorful and powerful figure opposing these positions.  Calhoun and his followers often employed “liberal” rhetoric on the Senate floor.  Henry Laurens Pinckney authored the gag rule, which was an attempt to stop citizens from submitting antislavery petitions.  (Calhoun despised Pinckney so much that he endorsed unionist candidates to take over Pinckney’s Congressional seat.)  The gag rule was adopted by a 117-68 vote, thus suggesting that the nation was more united on the issue of slavery than popular thought maintains.  The gag rule required congressmen to set aside slavery petitions immediately, without so much as printing them.  John Quincy Adams would spend the following years in Congress battling the so-called gag rule.

At this point in the book, Adams becomes the central figure.  Adams, then a distinguished ex-president, was in his 60s and 70s as he fought against the gag order.  He maintained that not only abolitionists but also slaves could petition.  Miller argues that this position shows the extent to which Adams was willing to risk his reputation and what was left of his career in order to stand up to the Southern gag order.  Other congresspersons were slow to join Adams in his fight.  During these debates, very little was said of African Americans, and most of the debates focused on the rights and roles of government and ignored the human persons that that government was supposed to serve and protect.

After Martin Van Buren became president, succeeding Andrew Jackson, he announced that he would veto any bill involving the issue of slavery in D.C. or the slave states.  Nevertheless, the petitions continued to pour in.  Adams himself began submitting petitions.  The gag resolutions had to be passed each session, but a gag rule was announced in 1840 that, in essence, made the “gagging” permanent.  Adams led the effort to rescind this rule.  He grew closer and closer to the abolitionists as he precipitated disarray in the House.  He also made several speeches despite threats against his life.  Adams’s opponents tried to get the entire House to censure him, but they failed.  Adams used the censure trials as an occasion to bring slavery to the forefront of Congressional debate.  In 1844, Adams succeeded in having the gag rule abolished.

Rugged Individualism in Slave Narratives

In American History, Arts & Letters, Emerson, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Slavery on August 1, 2012 at 8:45 am

Allen Mendenhall

The transcendental idealism of Emerson and Thoreau found its most illuminating expression and drew its most ardent followers before the Civil War would temper the spirits of many Americans.  Emerson and Thoreau both advocated for removing oneself from the constraints of society and for realizing an inner drive and power for epistemological, spiritual, and political purposes.  This individualism had more credence in New England than it did in the Southern states, and it is therefore not surprising that 19th century slave narratives would seek to appropriate that discourse of individualism in order to explain and condemn the realities of slavery.  Slavery could be cast as a symptom of the collective mindset, an evil that clearly could be seen as such if only individuals would separate themselves from conformity with the social unit and prevailing ideology.

Frederick Douglass, in both Narrative of the Life and his later work My Bondage and My Freedom, reveals that his childhood in slavery was relatively relaxed compared to that of other slaves, yet as he moved from master to master and was denied education—that is, as he grew into a man—the regulation of his body became harsher and more violent.  Douglass, who, as a lecturer, impressed upon his listeners a sense of rugged masculinity, uses his narratives to show how an individual can stand up to an entire institution.  In both narratives he vividly depicts his battle with Mr. Covey, a vicious overseer who was determined to train Douglass into docile submission by means of overwhelming violence.  It is an inner will as much as brute strength that brings about Douglass’s triumph over Covey, and it is Douglass’s determination to read and to learn that allows him to circumvent white law to achieve the literacy that made both of these works possible.

As an anti-slavery advocate in the North, having attained his freedom, Douglass expressed his individualism in a variety of ways, not least of which in his insistence to remain independent of William Lloyd Garrison and other abolitionists with whom Douglass had, as it were, a falling out.  Douglass also articulated a desire for blacks to embrace the ideal of personal responsibility and to look to their own personhood as a means for pulling themselves out of their unfortunate condition.  His enabling rhetoric was intended to be inspirational and to imitate the rhetoric and values of New England whites, without whose support neither he nor other slaves could mobilize political action.  Other authors of slave narratives such as William Wells Brown (who, it should be mentioned, had a falling out with Douglass) employ similar tactics and strategies regarding the appeal to individualism.  Brown also promoted himself as a masculine figure who realized his autonomy and drew strength from his own will to deliver himself from bondage.

Harriet Jacobs’s narrative couches individualism in more ambiguous terms.  She gives herself the name Linda Brent in the narrative, which is addressed explicitly to the “women of the North.”  Her narrative is replete with apostrophes to these women readers and, therefore, with signals and coded references meant to gain sympathy and provoke anger at the institution of slavery.  When Linda’s master attempts to take her in as his sex slave, she goes so far as to have an affair with a white man, Mr. Sands, as a form of resistance.  Knowing the decorum of her audience and the precariousness of her status as a freed slave, Linda repeatedly acknowledges the sinfulness of her act but stresses, too, that she cannot be held to the same standards as white women, who enjoy the freedom to make moral choices.  In a system of slavery, Linda suggests, there are no moral choices because one is reduced to selecting between one bad act or another.  Like Douglass, Linda finds freedom in the North, and, like Douglass, she spends time in England, where, she indicates, freedom flourishes, at least in relation to the United States.  Jacobs’s narrative can be taken as an urgent statement on the agency of slaves in the face of seemingly insurmountable obstacles, and the image of the strong woman that she cultivates (not just in herself but in the person of her grandmother) resonates as a powerful trope that others would pick up on. Read the rest of this entry »

Additional Thoughts on Gary W. Gallagher’s The Union War

In American History, Arts & Letters, Book Reviews, Historicism, History, Nineteenth-Century America, Slavery, Southern History, The South, Western Civilization on December 23, 2011 at 10:50 am

Allen Mendenhall

Recently I reviewed Gary W. Gallagher’s The Union War (Harvard University Press, 2011) for The University Bookman.  The review (“Why the Union Soldiers Fought”) is available here.  I have not said all I mean to say about Gallagher’s book, so this post records some additional thoughts.

I began my review with the tale of the “Lost Women and Children of Roswell.”  It was difficult as a child, knowing this story and others like it, to view the Union Army as completely righteous and pure, or to justify the eradication of certain evils like slavery with other widespread and destructive evils like war.  Despite being a Southerner with ancestors who fought for the Confederacy, I’m ambivalent about the War because of the various and totalizing perspectives that were thrust upon me when I was young, and because of my general opposition to war and nationalism, to say nothing of the complex figuring of race that played a defining role in bringing about the conflict.

As I went from middle school to high school, and then college to graduate school, the less likely I was to reduce the causes of the War to one or two factors, and the more likely I was to believe that anyone’s view of the War is already tainted by biases and assumptions.  Over time, I learned never to rule out alternate ways of viewing the War or the Confederacy.  I decided that no one would ever discover the intellectual trump card that would prevail over other viewpoints about the War that killed more men than all other wars in American history, combined.

There’s always more than one way of looking at a conflict, be it this War or some other one.  And our imperfect understanding of conflicts—of anything, really—always consists of generalizations based on the confines of personal experience.  We can read about the events encompassing the War, and we can guess at the logic and beliefs that explain those events.  But we can never relive the War or experience it in real time; and if we are honest, we must say that we can never read all there is to read about the period, never fully know the way a nineteenth-century mind thought, never entirely understand the quotidian realities of the men and women of all races at those times and in those places.  Being human, moreover, we make mistakes and assumptions.  Most of us revise our errors when we notice them.  But some don’t.  Some try to rationalize the logic of the unrealities to which they cling.  Read the rest of this entry »

BOOK REVIEW: Laura F. Edwards. The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill, North Carolina: University of North Carolina Press, 2009).

In Advocacy, American History, Arts & Letters, Book Reviews, Civil Procedure, History, Humanities, Jurisprudence, Law, Laws of Slavery, Nineteenth-Century America, Politics, Rhetoric, Slavery, Southern History, The South on September 28, 2011 at 10:41 am

Allen Mendenhall

Since Mark Tushnet revived the study of slave laws in the American South, several historians, most notably Paul Finkelman, Thomas D. Morris, and Ariela Gross, have followed in his footsteps.  Laura F. Edwards’s The People and Their Peace is a book that extends this trend in scholarship.  Focusing on North and South Carolina from roughly 1787 to 1840, and more specifically on three North Carolina counties and four South Carolina counties during that time, Edwards situates local law in contradistinction to state law, portraying the former as polycentric and heterogeneous and the latter as centralized and homogenous.  Edwards suggests that state law was more aspirational than practical in the early nineteenth-century Carolinas because it failed to inform ordinary legal practice at the local level in the same way that resident culture or custom did.

Pitting “reformers” (elite individuals who sought to create a uniform and consolidated body of rules that appellate courts could enforce at the state level) against locals, Edwards demonstrates that the legal system was bottom-up and not top-down and that law on paper or in statutes was different from law in practice.  On paper or in statutes, law subordinated lower courts to appellate courts and seemed, in keeping with the reformers’ ideals, systematized into a unitary, integrated order that reflected the supposedly natural and inevitable unfolding of history.  Reformers selectively compiled local laws and practices into lengthy works to forge the impression that law was a set of consistent, underlying principles.  In practice, however, law was variable, contingent, and contextual.  It emerged from the workaday and quotidian operations of individuals in towns and communities.  Law was therefore as messy as it was unpredictable, and it cannot be understood today without a deep knowledge of interpersonal relationships and cultural conditions in locales where courts sat.  Slave codes, for instance, did not reflect realities on the ground because they were handed down by state legislatures and could not account for the reputations and routines of people in local communities—people who cared less about consistency in the law or about fixed principles than about their personal stake in any given legal matter. 

This book is a corrective to histories interested principally in local legal sources but neglectful of the particularities that brought about these local sources.  It marshals evidence from legal documents—especially case decisions, including appellate opinions—while considering why and how those documents were produced.  The development of state law became increasingly important during the antebellum years, but the rise in state law—which privileged narratives of individual rights, standardized legal principles, and enabled southern distinctiveness—does not make sense apart from local data.  Local data reveals much about the processes (as opposed to philosophies) of law.  Put differently, local law remained discretionary because it was fluid and not subject to abstract and purely notional mantras about rights. Read the rest of this entry »

Nicole N. Aljoe on Legal Discourse and Testimony in Early West Indian Slave Narratives

In Advocacy, American History, Arts & Letters, Civil Procedure, History, Humanities, Jurisprudence, Law, Law-and-Literature, Laws of Slavery, Literary Theory & Criticism, Nineteenth-Century America, Politics, Rhetoric, Slavery, The West Indies on July 5, 2011 at 7:21 pm

Allen Mendenhall

Nicole N. Aljoe has published an intriguing article in Volume 46 (issue no. 2) of Early American Literature (2011), which is published by the University of North Carolina Press.  The article is titled “‘Going to Law’: Legal Discourse and Testimony in Early West Indian Slave Narratives.”  It is available here on Project Muse.  The abstract is below:

Despite the fact that the courts had not proven consistently helpful in their quests for freedom, British West Indian slaves frequently consulted them in order to invoke the rule of law and pursue their rights. Several Caribbean historians have documented the ways in which slaves in the West Indies participated in formal legal arenas almost from the initial days of colonization and claimed the courts as one of their own forums for resolving disputes and asserting those few rights written into the various parliamentary acts intended to ameliorate the conditions of the enslaved and passed in England and its Caribbean colonies from 1788 onward. Indeed, slaves in the West Indies participated in the courts systems as plaintiffs as well as defendants more frequently than previously thought. And although the courts were certainly used by those in power to oppress slaves, women, children, and the poor, as well as to “legitimate [the] blatantly repressive regime” of slavery, they nevertheless provided a forum for those who did not write the laws in question to use the courts to ensure the legal protection of their “natural rights” (Lazarus-Black, “John Grant’s” 154). Thus, in another of the seemingly endless paradoxes inherent to the British imperial slave system, slaves—objects of property, yet human subjects—could, in certain situations, use the courts in the West Indies and in England on their own behalf, as legal agents to affirm their status as legal subjects deserving of the law’s unbiased protection, and judgment.

Outline and Summary of David F. Ericson’s The Debate Over Slavery (New York University Press, 2000)

In American History, Arts & Letters, Book Reviews, Communication, History, Humanities, Laws of Slavery, Liberalism, Nineteenth-Century America, Politics, Rhetoric, Rhetoric & Communication, Slavery on June 7, 2011 at 10:44 am

Allen Mendenhall

Ericson, David F.  The Debate Over Slavery:  Antislavery and Proslavery Liberalism in Antebellum America.  New York:  New York University Press, 2000.

 “The slavery issue in the antebellum United States was defined centrally by the failure of a people to bear witness to its own liberal principles” (90).

Chapter One

Rhetoric matters, and this book is about the anti- and pro- slavery rhetoric during the antebellum period.  Ericson argues that rhetoric separated a nation that was not so “divided against itself” as people assume.  Both anti- and pro-slavery rhetoric appealed to “liberalism,” according to Ericson, and thus the overall discourse at that time, in this country, under those circumstances, smacked of “liberty” and “equality”: concepts rooted in the mores of Christianity, Republicanism, and discursive pluralism.  Today we might lump these concepts into classical liberalism or neo-liberalism, but Ericson suggests that we should not lump concepts the way “consensus scholars” do; rather, he suggests that we accept that liberalism, in all its manifestations, is a complex and multifarious tradition inherited and adapted in many ways and for many purposes.  He endorses the approach of “multiple-traditions” scholars that reveals how advocates on both sides of the slavery debate attempted to conform their arguments to the tradition of liberalism.

Chapter Two

Ericson spells out liberalism and distinguishes it from “non-liberal” thought:  “I define liberal ideas as a general set of ideas that appeal to personal freedom, equal worth, government by consent, and private ownership of property as core human values.  Conversely, nonliberal ideas appeal to some notion of natural inequality based on race, gender, ethnicity, religion, or birthright that denies those liberal values to significant numbers of human beings” (14).  The proslavery liberal logic went as follows: “The institution was a just institution because slavery was the status in which African Americans could enjoy the most practical liberty in light of their present circumstances, which rendered them incapable of prospering as free men alongside European Americans” (14-15).  The antislavery liberal logic went as follows:  “The Southern institution of racial slavery was an unjust institution because it effectively denied that African Americans were men with a birthright to freedom equal to that of European Americans” (14).  The antislavery non-liberal logic went as follows:  “The Southern institution of racial slavery was an unjust institution because it effectively denied African Americans the opportunity to work, worship, and learn at the feet of a superior white/Anglo-Saxon/Protestant race” (15).  The proslavery non-liberal logic went as follows:  “The institution was a just institution because African Americans constituted an inferior race consigned by nature or God to be the slaves of a superior white/Anglo-Saxon/Protestant race” (15).  Read the rest of this entry »

The Place of Miscegenation Laws within Historical Scholarship about Slavery

In American History, Arts & Letters, Book Reviews, Communication, Economics, History, Law, Laws of Slavery, Legal Education & Pedagogy, Nineteenth-Century America, Politics, Slavery, The Literary Table, Thomas Jefferson, Western Civilization on May 17, 2011 at 8:28 am

Allen Mendenhall

The following post appeared at The Literary Table.

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Miscegenation laws, also known as anti-miscegenation laws, increasingly have attracted the attention of scholars of slavery over the last half-century.  Scholarship on slavery first achieved eminence with the publication of such texts as Eric Williams’s Capitalism and Slavery (1944), Frank Tannenbaum’s Slave and Citizen (1946), Kenneth Stampp’s The Peculiar Institution (1956), Stanley Elkins’s Slavery: A Problem in American Institutional and Intellectual Life (1959), and Leon F. Litwack’s North of Slavery (1961).  When Winthrop D. Jordan published his landmark study White Over Black in 1968, miscegenation statutes during the era of American slavery were just beginning to fall within historians’ critical purview.  The Loving v. Virginia case, initiated in 1959 and resolved by the U.S. Supreme Court in 1967, no doubt played an important role in activating scholarship on this issue, especially in light of the Civil Rights movement that called attention to various areas of understudied black history. 

In Loving, the Supreme Court struck down Virginia’s miscegenation statutes forbidding marriage between whites and non-whites and ruled that the racial classifications of the statutes restricted the freedom to marry and therefore violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.  In the wake of Loving, scholarship on miscegenation laws gained traction, although miscegenation laws during the era of American slavery have yet to receive extensive critical treatment.  Several articles and essays have considered miscegenation laws and interracial sex during the era of American slavery, but only a few book-length analyses are devoted to these issues, and of these analyses, most deal with interracial sex and miscegenation laws in the nineteenth-century antebellum period, or from the period of Reconstruction up through the twentieth-century.  This historiographical essay explores interracial sex and miscegenation laws in the corpus of historical writing about slavery.  It does so by contextualizing interracial sex and miscegenation laws within broader trends in the study of slavery.  Placing various historical texts in conversation with one another, this essay speculates about how and why, over time, historians treated interracial sex and miscegenation laws differently and with varying degrees of detail.  By no means exhaustive, this essay merely seeks to point out one area of slavery studies that stands for notice, interrogation, and reconsideration.  The colonies did not always have miscegenation laws; indeed, miscegenation laws did not spring up in America until the late seventeenth-century, and they remained in effect in various times and regions until just forty-four years ago.  The longevity and severity of these laws make them worthy our continued attention, for to understand miscegenation laws is to understand more fully the logic and formal expression of racism. Read the rest of this entry »

Outline and Summary of Thomas D. Morris, Southern Slavery and the Law: 1619-1860 (Chapel Hill and London: University of North Carolina Press, 1996).

In American History, Arts & Letters, Book Reviews, History, Jurisprudence, Law, Laws of Slavery, Legal Education & Pedagogy, Nineteenth-Century America, Politics, Slavery, Western Civilization on April 20, 2011 at 4:23 pm

Allen Mendenhall

Introduction

The introduction serves as a brief historiographical essay that situates Morris’s text alongside other prominent texts and authors in the field.  Morris uses the introduction to familiarize readers with, among other things, the differences between common law and courts of equity, the differences between civil and criminal law, and other relevant information such as the fact that statutes in England and America are mostly products of the nineteenth century.  Morris believes that slavery reinforced English racism in that the English were predisposed to view Africans as inferior and so used the law to categorize racial difference and justify slave property.  Morris suggests that experts can skip most of his introduction probably because the introduction is, as I have suggested, a piece about historiography rather than a history in itself. 

PART ONE

Sources: Racial and Legal

Chapter One: The Function of Race in Southern Slave Law

Popular science maintained that blacks were inferior, and this understanding was reflected in law.  Indians were not enslaved as often or in the same numbers as blacks.  The presumptions and definitions of “slave” had to do with blackness; therefore, the legal status of mulattoes was often in flux.  Law had to define people by race and then determine their free or slave status afterwards.  Several Southern states adopted laws allowing free blacks to sell themselves as slaves.

Chapter Two: The Sources of Southern Slave Law

Some Southern slave law derived from Roman law; some derived from English common law.  The origins of Southern slave law are traceable to at least Virginia.  The degree to which Virginia followed or revised the common law is debatable.  In early Virginia, many blacks were treated as indentured servants, not slaves.  Not until the mid-seventeenth century did blacks become routinely associated with slavery.  There is little evidence to suggest that Virginians had a sophisticated understanding of ancient Roman or other European legal traditions.  A child’s status as free or slave followed the mother under the judicial principle of partus sequitur ventrem.  The traditional common law rule was that the child’s status followed the father.  Some appellate courts tried to link their opinions to the precedents of civil law or the Roman law on slavery.  Some judges analogized slavery to English villenage.  The roots of slavery in Hebraic tradition and Biblical literature had an enormous influence among nineteenth-century Southern whites. Read the rest of this entry »

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