by Tony Freyer and Lyndsay Campbell (eds.) Durham: Carolina Academic Press 2011. 344pp. Cloth $45.00. ISBN: 9781594607721.
Reviewed by Greg Marquis, Department of History and Political Science, University of New Brunswick Saint John, gmarquis [at] unb.ca.
This volume of original research essays, which began to germinate when legal history scholars met at a conference in 2008, is a useful addition to a growing list of studies on North American borderlands in general and, more specifically, the borderlands of law, legal thinking and legal institutions. It takes its title in part from the recurring theme of how borders and borderlands affected the condition of freedom for black people. Editors Freyer and Campbell, American and Canadian legal history specialists respectively, contributed not only a co-written introduction and conclusion, but also research chapters. Three of the remaining chapters focus on Canada (specifically Upper Canada or Canada West-Ontario prior to 1867) and three are case studies of U.S. states or regions. The disciplines represented include history, African American Studies and law. The focus is on how the status of free and emancipated persons of African descent was controlled and contested on three levels: the international borderlands shared by the United States and British North America; the borderlands between free and slave territory within the antebellum United States and within free state regions such as the Northwest Territory and New England. The sources used, in addition to secondary literature in several disciplines, include legal decisions, constitutional and legal treatises, legislation, newspapers, narratives of 19th century slaves and immigrants, census records, petitions and official correspondence. As with any topic involving African Americans and African Canadians, especially in the first half of the 19th century, researchers are challenged to find useful sources, especially those produced by members of minority cultures in a white-dominated legal and political system.
Most historians trace the borderlands approach to studying North America back to pioneering work of American historian Herbert Eugene Bolton who published an influential study in 1921 on the Spanish borderlands that stretched from California to Mexico. The approach has become popular in recent year, judging by search results on the database America: History and Life, which reveals several hundred ‘hits.’ A borderlands perspective suggests that on issues such as racial identity and status, distinct national and sub-national territories influence adjacent and even distant territories. A borderland can signify a geographical/legal space or lines on a map, as well as a contested socio-legal condition, such as that experienced by free blacks in the U.S. Midwest prior to the Civil War. The existence of ‘free’ British territory in Upper Canada, where refugees from slavery expected a degree of formal legal and political equality, influenced not only behaviour and legal activity in adjacent free states in the U.S. North, but [*317] also attitudes, laws and legal practices in the slave states of the South. In the words of the editors, “these interdependent yet distinct borderlands were constituted by different systems of republican and imperial governance, systems that were characterized by different kinds of formal and informal legal constraints” (p.3).
To various degrees, the collection raises the issue of the fluid nature of identity, race relations and their associated legal issues. These issues were less ambiguous in the slave-owning states, where slavery was based on race and where mixed-race persons usually were categorized as non-white. Legal issues were complicated by the movement of people within and across state and international borders. Frayer and Campbell make a distinction between “high” law, “the formal law, the written law, and the law of nations,” (p.6) and low law – as interpreted and enforced locally by justices of the peace, constables, sheriffs, juries, lawyers (or groups of citizens engaged in extralegal action). In both spheres law was used to enforce slavery and freedom. During the period which is the focus of the essays, the 1830s, 1840s and 1850s, the United States added territory and created new slave and free states, adding to political tensions that would ultimately produce civil war and the constitutional extinction of slavery. Upper Canada experienced not only migration of American blacks seeking the supposed benefits of “British justice” (see Chapter 5 by Bradley Miller) but also of immigrants from Scotland, Ireland and England, which made the frontier colony more British. ‘Upper Canada’ (joined with Lower Canada in the early 1840s to form the United Canadas) achieved a large measure of internal autonomy in the late 1840s, but the Imperial government retained important constitutional controls, including the appointment of colonial governors. The latter were responsible for diplomatic relations, including the extradition of fugitive criminals. Both the Canadian and British governments between 1833 and 1843, as Miller explains, balanced the expectations of fugitive slaves and their allies against the rule of law and the realities of international relations, especially with the negotiation of the Webster-Ashburton Treaty of 1842. The movement of slaves, fugitive slaves and free blacks within borderlands and across borders, according to Freyer and Campbell, raised fundamental American constitutional issues, notably whether sovereignty was divided or unitary and the degree to which states exercised police powers (p.7).
Freyer’s chapter examines African American “freedom struggles” in New York, Pennsylvania and Ohio, arguing that these efforts, combined with those of native-born white Protestants, helped incremental expansion of “rights claims” (p.35). Victories included repeal of much of Ohio’s Black Codes and resistance to expanding Southern slave power. The chapter includes a useful appendix of county population maps depicting numbers of free blacks, foreign-born persons who were not naturalized and free whites. Gautham Rao’s chapter on Chief Justice Taney’s dissenting opinion in Prigg v. Pennsylvania (1842) concludes that Taney, despite legal momentum that favoured the right of slave owners to recover their fugitives slaves from free states, recognized slavery’s “looming crisis” (p.100). Rao stresses that the political power of slave owners, despite [*318] their opposition to taxes, contributed to governance and state building in the antebellum era. In Chapter 4 Campbell examines the shifting structure of governance in Upper Canada as context for a number of attempts by American authorities to extradite “sometime slaves” for allegedly committing criminal offences. The first half of the anthology ends with Miller’s essay on political crises surrounding extradition in the 1830s and 1840s. He notes that black claims to the protections of British justice were couched in terms of group rights and loyalty to the Crown, such as remaining loyal during the 1837 Upper Canadian rebellion. In contrast to many U.S. states, blacks in Upper Canada not only served in the militia, they helped to suppress the rebellion. Abolitionists were frustrated by the decision of the colonial and British governments to treat blacks in extradition cases no differently than whites.
The volume’s second half, “Persons, Places,” begins with Adam Soifer’s essay on slavery decisions in antebellum New England. Soifer stresses the fluidity of legal issues surrounding fugitive slaves, even in the abolitionist North, where the outcomes of fugitive slave cases often depended on circumstance. Campbell’s second essay, “The Northern Borderlands: Canada West,” contrasts the colony’s reputation for formal legal equality with the actual situation faced by its black inhabitants. Recent scholarship suggests that 25% of the black population of Canada West moved to the United States following the U.S. Civil War, in part because of their limited opportunities in the British colony. Despite its reputation among slaves and abolitionists, and its own self-congratulatory legal and political rhetoric, Canada West according to Campbell was not colour blind in terms of legal process, especially outside of the major city of Toronto. Blacks could vote, testify in court against whites and in theory serve on juries, but there is evidence of discrimination in terms of other civil rights. Permissive legislation and local community input meant that separate public schools for black children became common. All the same, Campbell credits law (and by implication political and legal elites) with offering blacks a level of protection from the popular prejudices evident in northern states in the U.S.
Stephen Middleton’s chapter on the judicial construction of whiteness in the antebellum Midwest, specifically Ohio, Indiana, Illinois and Michigan, reveals that prior to the white supremacist era of the late 19th century, racial identities for mix-race people were somewhat fluid. The Midwest had no tradition of slavery, but it did restrict the rights of free blacks. The idea of flexible racial boundaries was evident in decisions such as Anderson v. Milliken (1859), where the Ohio Supreme Court held that a man whose mother was one-quarter “African” could not be denied voting rights. Judges, in defiance of white public opinion, refused to “enforce a version of the one-drop rule as it was later applied in the United States” (p.236). Elites also maintained a flexible approach to persons of Indian lineage. Ohio’s black laws were more restrictive but even in Michigan blacks could note vote or serve in the militia and blacks and whites were barred from intermarrying. The final research essay is a case study of a borderlands property inheritance case by John Wertheimer and several fellow researchers. In Willis v. Joliffe (1860) a [*319] South Carolina court ruled decidedly against white opinion in allowing a deceased slave owner’s former slave, with whom he had co-habited and fathered children, to inherit his estate. Planter Elijah Willis moved with his partner Amy and their children briefly to Baltimore in 1853, but returned to South Carolina. Willis made a second will through a Cincinnati-based antislavery lawyer, Joliffe. Joliffe agreed to be an executor of his estate. In 1855 Willis, in the process of moving his family to Cincinnati, died of a heart attack. The executors of his first will in South Carolina and a jury rejected the Ohio will and a second court ruled that Amy and her children, despite residing in Ohio, remained slaves under South Carolina law and could not inherit property. The 1860 decision of the South Carolina Court of Appeals of Equity that validated the second will placed much emphasis on evidence that supported Willis’s intentions to “confer freedom” (p.279) on his slaves.
The editors and authors are to be credited for bringing legal history perspectives to the complicated issues of the racial identity, racial control and African American resistance and agency in the U.S.-Canada borderlands in the 19th century. The editors conclude that despite legal, political, economic and social barriers, “the courts were important in promoting African American agency” (p.291). Readers with a background in legal history may be most comfortable with this collection, but overall the essays are highly readable and instructive.
Anderson v. Milliken 9 Ohio 568 (1859).
Prigg v. Pennsylvania 41 U.S. 539 (1842).
Willis v. Joliffe 1 Rich. Eq. 447 (S.C. Ct. App. 1860).
Copyright by the Author, Greg Marquis.