By Christopher Tomlins. New York: Cambridge University Press, 2010. 636pp. Paperback. $36.99 ISBN 9780521137775
Reviewed by Lawrence M. Friedman, Marion Rice Kirkwood Professor, Stanford Law School, Stanford University. Email: lmf [at] stanford.edu.
Freedom Bound is a rich, dense, and significant book. It has already won at least two prestigious prizes. The depth of the research is astonishing. Many of the ideas set out in the book are bold and original. But it is not an easy book to sum up; or to fit into a neat little pigeon-hole, which is something scholars (and reviewers) love to do.
What is the book about? The subtitle tells us: law, labor, and civic identity. The period is 1580 to 1865. The locale is “colonizing English America.” Not colonial English America, but colonizing America, an America which was itself a colonial enterprise. In hindsight – an occupational disease of historians – we see the long years between Jamestown and Bunker Hill, as “the colonial period;” in it, a collection of colonies were founded, as part of the British Empire. Then came the glorious American revolution, and we were free to form our own independent country. Tomlins looks at the period somewhat differently. The English were colonizers, of course. But so were the settlers. All of them were at work, imposing their rule on part of North America, subjugating it, replacing or exterminating the native populations, and turning the land to their own uses.
This colonizing process, with some differences, had already been at work in places like Barbados, and would later be at work in Nigeria and the Indian subcontinent, among other locales.
This colonizing process is, indeed, one of the themes of the book – especially how it was done; and, moreover, how the brutal and decisive conquest of the continent was justified and explained. Tomlins’ curiosity about the theory of conquest, or the theory of imperialism, if you will, leads him into a rather long voyage on the murky waters of the intellectual history of international law and its expositors. We get quite a few pages on Hugo Grotius and Francisco de Vitoria and Alberico Gentili. Tomlins also pays close attention to the legal forms of colonization: the charters and grants from the royal government, what they said, and how they said it. English settlement “did not occur in vacant legal-conceptual space, any more than it did in vacant physical space. The Crown’s charters were license and blueprint, declarations of intent and maps of desire” (p.185). Tomlins here constructs a complex argument; he wants to show how strands of thought, ideas, theories, and treatises created a template which influenced legal arrangements; and how these arrangements – these blueprints, these “maps of desire”-- in turn influenced the course of events, and the nature of life, in colonial America.
But there is more to the story than simply the history of ideas. And, indeed, it is not [*668] clear (to me, at any rate) exactly how much weight Tomlins wants to place on his excursus into intellectual history. If Hugo Grotius had never lived, or if the English and continental writers had come to different conclusions, would our history have been very different, slightly different, or not different at all? I am not sure what the answer is; or, more to the point, what answer Tomlins would give. The same question can be asked about the various forms of charter, grant, and founding document, which differentiated, say, Massachusetts from Pennsylvania and New York from Georgia. They certainly played a role. But was it a big one or a little one? Is it possible to argue that events and situations – and the very context of colonial life – could and did overrule, so to speak, the formal legal language of charters and patents?
Tomlins also explores, in close detail, the English background of the settlers; in particular, whether they came from “pastoral” legal cultures, or “arable” cultures. The “pastoralists” came from parts of England with poor, thin soil; here were grasslands for grazing; in other parts of England, the soil and weather permitted regular farming; these were the “arable” cultures. The pastoralists influenced New England, while early Virginia showed the impact of the arable legal culture: “manorialism, hierarchical social relations, strong county elites” (pp.258-259). The literature on colonial America has, for some time, looked closely at where the colonists came from. This has been used, for example, to explain certain bold legal innovations in the colonies. But as far as I know emphasis on the difference between the “pastoral” and the “arable” in England, and its impact on the colonies, is Tomlins’ own contribution. It supplements the line of argument that derived from charters and patents. Surprisingly, Tomlins does not make very much of differences in climate and topography, between north and south, which surely had some influence, first, on the kind of crops that were grown, and second, on land tenure systems and the like.
Tomlins is one of the foremost scholars on the history of labor law and labor arrangements in the colonial period and the early Republic. In this book he sums up and adds a great deal to his earlier work. His scholarship here, as everywhere in the book, is careful and meticulous. We learn an awful lot about forms of labor, especially in the colonial period. He argues – convincingly – that indentured servitude was much less of a factor in the world of work than most of us have supposed. It was nowhere dominant. Free labor – wage labor – was, on the other hand, more important than most us thought. Labor systems varied a good deal from place to place. Tomlins here too emphasizes charters, grants, and the like; and also the role of English regionalism. He puts it this way: the “inside story” of labor arrangements in the colonies was the result of “successive seedings of mainland North America with a plurality of legal cultures;” these cultures expressed “the designs of projectors,” but were also “heavily influenced by migrants’ regional English origins” (p.296). And what was the nature of these “differentiated legal cultures of work?” They ran the gamut from wage labor to slavery. Most of the “unfree” were slaves; many others were young people: apprentices, indentured servants, and the like. But for most of these non-slave “servants,” the condition [*669] was temporary. They could, and did, graduate into the ranks of free labor.
Colonial labor law and practice was thus complex: a mélange, a mixture, a kaleidoscope. “Labor” was “not a single form of relationship” in the colonial period; but “multiple forms,” some of which were temporary, some were relationships that allowed “abuse and abasement;” still other labor statuses allowed and fostered “autonomy and self-discipline.” Only in the 19th century did a new and more uniform legal culture of labor emerge, and a general body of legal doctrine. A body of “generic rules" of “master and servant” (or, as we would call it, employment law) had been cobbled together. Doctrine implemented “uniform relations of subjection;” “provincial differences” were replaced by “widely applicable principles” (pp.331, 357).
Many hundred pages into the book, after an exhaustive discussion of other labor arrangements, Tomlins turns his attention to the one giant and missing piece of the story: black African slavery. Tomlin’s treatment of slavery is, characteristically, exhaustive and erudite. The contrast with free labor was, from a very early date, both stark and depressing. Law played a crucial role in the development of rules to govern the institution of slavery. Law was “a technology of colonizing.” The settlers drew on a number of sources to generate this new field of law. A lot of it was novel; and yet, in Tomlins’ view, slavery was very much “in the tradition of Anglo-American colonizing;” both “master and slave are products of colonizing’s ‘civilizing process,’ its declaration of war on brutes” (pp.506-507).
Slavery was a cruel and total system. It was a form of “social death.” It allowed the master to be “he who stands over, whips, dismembers, and destroys (if he so wishes) the slaved body that is the object of his attention” (p.507). Yet, as we have seen, slavery in a way was a natural product of the enterprise of “colonization.” It was, in a sense, present at the creation. This reading of the nature of slavery, and its history, helps explain why (perhaps to the reader’s surprise) Tomlins pays so much attention to Mark Graber’s iconoclastic reading of the infamous Dred Scott case. Chief Justice Taney’s opinion in Dred Scott has not worn very well, to say the least. In its day, of course, it was already enormously controversial. Modern scholars have generally speaking flayed it mercilessly. Graber – and Tomlins – have a different take on the case. Granted, Taney might have been morally wrong. Granted, too, that his view of the federal system and its relationship to slavery was jaundiced and racist. But his argument, alas, was not necessarily bad history, as some scholars have felt. No, says Tomlins, Taney may have gotten his history right. The United States was a “loose, largely autonomous coalition of expansive settler societies,” with “relatively distinct political-legal cultures.” These “settler societies” forged for themselves a “decentralized, bisectional republic.” The republic “manned, planted, and secured the mainland for its settler colonists.” In the first place, it displaced and destroyed native populations. Secondly, it crafted a kind of colonial labor system, which sharply distinguished between slave labor and free labor (pp.524-525). Slavery was thus a kind of original sin within the domain of a colonizing settler society. Lincoln and the armies of the north in the Civil War tried to destroy this [*670] “bisectional republic,” and create a new order, a new union, and one that rejected the “formative conjunction of law and colonizing” (p.525). This “new order,” to be sure, never really took hold.
These fascinating lines of argument, and more, jump from the pages of Freedom Bound. This is a book which finds room not only for 16th century legal theory, and the influence of Barbados on colonial slave codes; but also for Elizabethan masques, Titus Andronicus, The Tempest and the work of Daniel DeFoe. At times, perhaps, there might be a bit too many tangents. Also, it would have really helpful to have a few pages at the very beginning – clear, concise, and specific pages, telling us exactly what the main themes were going to be, and how we would get from here to there. Freedom Bound is not, I am afraid, an easy book to read. The sentences are often long and complex. The book itself is long and complex. But it is worth the effort. The work is suffused with an extraordinary and subtle sensibility; and there are even flashes of downright poetry. This is an important book. Awesome, in fact. And also enriching: a real contribution.
Graber, Mark. 2006. Dred Scott and the Problem of Constitutional Evil. New York: Cambridge University Press.
© Copyright by the Author, Lawrence M. Friedman.