by Dale Baum. Baton Rouge, LA: Louisiana State University Press, 2009. 320pp. Cloth $45.00 ISBN: 9780807134054.
Reviewed by Doris Marie Provine, School of Justice & Social Inquiry, Arizona State University. Email: marie.provine [at] asu.edu.
What is law when litigants pack the courtroom with armed men to intimidate witnesses, when voters are routinely beaten, and when employers argue that hanging a worker by his thumbs is a sound business practice? COUNTERFEIT JUSTICE is a solemn reminder that courts and legislatures can still operate in these circumstances. Legal documents can be duly recorded and lawyers can practice law. Racial apartheid actually requires a dual system that provides the protections of law for whites and systematically withholds those protections from non-whites. COUNTERFEIT JUSTICE is the history of a person who challenged this system, freedwoman Azeline Hearne. She is an unusual hero, a Rosa Parks of litigation who claimed the most prosaic of rights in a situation of extreme inequality, and in the process exposed the legal system’s tolerance for virulent racism. The difference is that Azeline Hearne is a forgotten heroine, lost in the history of her time.
Ms. Hearne became one of the nation’s wealthiest former slaves when she inherited Samuel R. Hearne’s estate shortly after the conclusion of the Civil War. Hearne owned one of the most profitable cotton plantations in Texas when he died. He was Azeline’s master, and also the father of her four children, only one of whom survived to adulthood. Before he died, Samuel Hearne, a bachelor, acknowledged his relationship with Azeline, implicitly challenging the prevailing Southern racial mythology, which placed Blacks in near sub-human status.
Most of the legal action in this saga took place in the Reconstruction era in Robertson County, a rural agricultural area of northern Texas that grew wealthy in the aftermath of the Civil War. The place was virtually unchanged by the War, which never reached this part of Texas. During the conflict, in fact, hundreds of slaves were “refugeed” to Robertson County plantations in order to protect the interests of their owners. The Reconstruction effort came late to this place, but eventually the Freedman’s Bureau did arrive. Azeline Hearne’s legal struggle thus occurred against the backdrop of a federal commitment to extend equality to the freed slaves. It was, in some ways, a valiant effort to re-configure the racial order through law. But the government’s effort fell far short of its ambitions, as the story of this ultimately unsuccessful litigant poignantly reveals.
This story has many missing pieces. One can only speculate about the domestic relationship between Azeline and Sam Hearne. It would be easy to over-simplify this relationship, which began in bondage but ended in a kind of partnership in which Sam gave his entire [*403] estate to their only surviving son Dock, with a life interest for Azeline. For this relationship, Sam Hearne was rejected by his family and community. He was accused of being an alcoholic and mentally ill. Azeline herself is also a mystery. There are no pictures of her and few records. She was probably illiterate. Her son died shortly after reaching adulthood. She was soon forgotten by her contemporaries.
Dale Baum, a skilled historian, nevertheless constructs a persuasive picture of rural life in the South during the Civil-War era. He constructs the story from court documents, deeds, diaries, government documents, news accounts of the time, and other original documents and historical sources. He is careful to warn the reader when the trail is faint, offering speculations of various possible scenarios when necessary.
For socio-legal scholars, the juxtaposition of law and non-law is the most startling element of the story. Thus Sam Hearne’s last will was dutifully recorded and treated as valid (much to the dismay of his family, who wanted that land for themselves). The Freedman’s Bureau adhered more or less to its legal mandate, attempting, from time to time, to force the judicial system to render justice to Ms. Hearne. Lawyers did not always behave unethically toward Azeline Hearne. One lawyer, who had previously sought to swindle Ms. Hearne, later became her staunch defender in court. The struggle to divest her of the rich productive, bottom land that made up the bulk of her estate was conducted entirely peacefully, with skilled lawyers taking unconscionable fees, but always recording their agreements in perfect legal order.
For many of the ex-slaves, conflicts with whites were settled with violence. Freedmen who believed the promise of Union soldiers that they could contact freely for their labor were routinely cheated and sometimes beaten or killed when they complained. Voting Republican was dangerous for these freedmen and their white supporters. Those who openly resisted the Ku Klux Klan and white landowners took even greater risks. Consider the fate of George Edward Brooks, one of Robertson County’s three voter registrars and a charismatic Methodist minister who had served in the Union army. His efforts to achieve justice for his people frightened the white establishment, and so a posse hunted him down with blood hounds, tortured him by stripping the flesh from his body, broke both of his legs, and then hung him as a warning to others. No Robertson County whites were ever punished for this or any other attack on their Black fellow citizens.
Azeline Hearne was not alone in her struggle for justice. Lawyers did represent her and she received some assistance from the Freedman’s Bureau. But no one worked assiduously for long on her behalf. The Freedman’s Bureau failed to assist her in paying off the debts of the estate or keeping proper records. Her lawyers filed papers, but only for extortionate fees. Sam Hearne had tried to convince his doctor, a man he trusted, to be executor of the estate, but he refused, fearing loss of friendship with other members of the Hearne clan. The basic problem was that the enthusiasts of the Confederacy, who endorsed slavery [*404] and believed in their own racial superiority, continued to hold most of the reins of power throughout Reconstruction. The federal government was a temporary presence, and often not very effective even when it was present. After years of legal struggle, Azeline Hearne lost her final appeal. She was defeated by the greed of the people she trusted to represent her. She died at about 65 years old a pauper, a tenant at will on her own former land.
COUNTERFEIT JUSTICE can be read as a straightforward historical account of a curious lawsuit that occurred during the unsettled period when slavery came undone legally, but not socially. It can also be read as an account of how ostensibly color-blind law can be manipulated to maintain extraordinary disadvantage. The book is much less self-consciously reflective about the historical role of law in constructing and maintaining inequality than, for example, to Ian Haney López’s WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE, or MANIFEST DESTINIES (2006) or Laura Gomez’s recent inquiry into New Mexico’s racial history (2008). Its illumination of racial relations and the construction of inequality is more indirect, in the style of Linda Gordon’s THE GREAT ARIZONA ORPHAN ABDUCTION (2001).
Readers may be somewhat deterred by parts of this book where Baum goes into detail about the series of cases filed against Azeline and her ultimately futile efforts to fight back. The details drive home the point that law can be obtuse, even when ostensibly searching for a just result. The reality of structural inequality is also brought home to the reader in these details. Fortunately, even with the weight of perhaps too much information about the movement of cases through the system, the story does shine through. This is a historical account that is both sad and revealing in demonstrating the power of racism, gender inequality, and the power of a determined elite to defeat honorable intentions.
Gomez, Laura. 2008. MANIFEST DESTINIES: THE MAKING OF THE MEXICAN AMERICAN RACE. New York: NYU Press.
Gordon, Linda. 2001. THE GREAT ARIZONA ORPHAN ABDUCTION. Cambridge, MA: Harvard University Press.
Haney-López, Ian. 2006. WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE. 10th Anniversary Edition. New York: NYU Press.
© Copyright 2009 by the author, Doris Marie Provine.