I've spent some time talking about Cornelius Sinclair's odysessy, from free person in Philadelphia to temporarily enslaved person in Tuscaloosa, and then -- thanks to the intervention of ministers in Tuscaloosa and countless people back home in Philadelphia -- back to free person. Sinclair's triumphant return to Philadelphia was capped off by participating in the prosecution of one of his kidnappers. A remarkable story and so rare. So rare.
I want to spend some time talking about what this means for the literature on southern legal history. As I've mentioned before, there's a growing body of work that looks at the lives of free people in the slave-owning south, often through their presence in court records. For some decades the reigning interpretation was that of John Hope Franklin and Ira Berlin that free people were (in the words of Berlin's epic book) "slaves without masters." That began to change -- in part through Franklin's own work with Loren Schweninger and Schweninger's outstanding separate work, too -- that traced the ways that free people participated in the court system in south. The system was laughably biased. One of the most terrifying aspects of this is that recently free people often faced the prosect of re-enslavement if they didn't leave the state. (Little aside here, this is one impetus to the holding of people in quasi-slavery -- that is, people had a formal "owner" but the "owner," such as a Quaker meeting, allowed the "slaves" to do whatever they wanted. Jessica Thompson has a terrific paper on this and I've written some about this in a paper on Thomas Ruffin some years ago -- more is on its way.)
There is also a growing body of literature that looks at free people more generally. A lot of it circles around St. Louis, where hundreds of people filed freedom suits in the years before Civil War. Kelly Kennington has an important article about the St. Louis freedom suits in this month's issue of the Journal of Southern History, for instance. Next month will bring Lea VanderVelde's long-awaited book Redemption Songs: Suing for Freedom Before Dred Scott about the suits. I have rarely been so excited to see a forthcoming book and I'll be talking about it as soon as it comes out. There are also a series of books that take long looks at free people in the old South, such as Melvin Ely's Israel on the Appomattox and Kirt von Daacke's Freedom Has a Face, which is about free people in Albemarle County, Virginia (where UVA is located). (Look for a thoughtful essay review of von Daacke in the November issue of the Journal of Legal Education. wink) These are exciting works that recover a history that has been almost completely forgotten about. And believe me, I love studies that locate legal change in the humble people and their calls to hold the mighty accountable....
However, as a person who writes about the extraordinary violence of Jim Crow and the violence in the wake of rebellions -- as well as the southern academy's and judiciary's deep adherence to proslavery ideas -- I am skeptical of just how much autonomy free people had in the southern legal system and what content there was to the rule of law for free people. (Martha Jones' forthcoming book on the legal status of free people in Maryland is going to be focus more on the law than either Ely or von Daacke and, judging from the pieces I've seen and her other work, looks more deeply at the limitations the legal system imposed on free people than another of the other recent works, so I am classifying her as different from the recent works I cited in the paragraph above.) Thus, I want to use Cornelius Sinclair's suit as an opening into talking about southern law in those years before the south headed into the worst depths of proslavery ideas and action. We should be quite limited in drawing inferences from an n of one -- although a lot of legal history gets written these days from a single lawsuit -- but let me try out a little bit of my explanation of what was happening here.
A couple of lines of thought converge in the efforts to free Sinclair -- looking at this from the southern perspective, there's just antislavery sentiments at least from Reverend Joshua Boucher (and probably from Reverend Robert Kennon and maybe the parishioner who puts up a bond to help free Sinclair); then there's the Whigish sentiments that sought to subordinate everyone to the rule of law -- and that might in some instances benefit African American individuals. North Carolina Supreme Court Justice William Gaston is a great example of such sentiments -- and perhaps Justice John Gayle was as well, at least before he became governor and sought to take even more land from Native Americans than did President Andrew Jackson. Then there was a wide-spread abhorence in antebellum though to crime and disorder. (Laura Edwards speaks about this as the principle of the "peace.") I think that explains a lot of the anti-kidnapping sentiment -- it did not need to be so much about sentiments favoring enslaved people as sentiments abhoring the chaos that ensued when property rights were not respected. Even in Twelve Years a Slave Solomon Northup wrote about a judge in his parish who disdained kidnapping. I think that desire -- I'm tempted to say need -- for order explains well the trials in the wake of the Nat Turner rebellion. There's also a huge amount of writing (and speaking) by judges and lawyers in this era about the need for order, and of course this fits with the political theory of the slave-owning south, which emphasized that liberty was promoted by the restraint of slaves (and this applied to criminals as well). I think the success of Sinclair's suit owes a lot to the Tuscaloosa community's concern for disorder. Now a couple of decades later the concern over calling into question owners' property rights would likely lead to another result. And I think that's what Kennington and I'm guessing Lea VanderVelde, too, see in the declining success of freedom suits in St. Louis.