Thanks to Mary Dudziak's post at Legal History Blog, I learned the very exciting news on Friday that Chris Tomlins' Freedom Bound won the Bancroft prize in American history -- along with Eric Foner's The Fiery Trial: Abraham Lincoln and Slavery and Sara Dubow's Ourselves Unborn: A History of the Fetus in Modern America. This is most exciting news for legal historians.
This is particularly important for legal historians, because it is pretty rare that works of legal history win the Bancroft prize. Michael Klarman's From Jim Crow to Civil Rights won in 2005; David Kyvig's Explicit and Authentic Acts: Amending the US Constitution, 1776-1995 won in 1997; Edmund Morgan's Inventing the People: The Rise of Popular Sovereignty in England and America won in 1989, along with Foner's Reconstruction. The last time a work of "pure" legal history (as opposed to constitutional history) won the prize was, I think, Morton Horwitz' The Transformation of American Law, 1780-1860, back in 1978? (The prize winners from 1948 to 2010 are here.)
A number of other books in which law is important have won lately -- including Stephen Hahn's A Nation Under Our Feet (about Jim Crow) in 2004, David Blight's Race and Reunion (about reconciliation in the wake of the Civil War) in 2001, Linda Gordon's The Great Arizona Orphen Abduction in 2000, Roger Lane's The Roots of Black Violence in 1987 and Kenneth Jackson's Crabgrass Frontiers -- a book I have assigned to my first years in property a couple of times -- won in 1986. Suzanne Lebsock's The Free Women of Petersburg, which relies heavily on probate records, won in 1985, and John Demos' Entertaining Satan, which relies heavily on criminal prosecutions for witchcraft in New England, won in 1983.
Looking at the list of winners now, it strikes me just how much slavery, Jim Crow, and Native Americans have dominated recent prizes. All good from my perspective, of course -- and even thanks to Michael O'Brien's Conjectures of Order, the occassional work on proslavery thinkers wins attention!
One of the many things that interests me about the list of winners is that in 1975 two very different books -- Fogel and Engerman's Time on the Cross and Eugene Genovese's Roll, Jordan, Roll -- won. Both were about the lives of enslaved people, but they came from drastically different political and methodological perspectives.
Turning now to Chris' book, which I pulled down off my shelf Thursday evening to read in honor of the announcement -- a couple of things are really interesting here. Tomlins places the legal regulation of labor at the center of his sprawling narrative -- which begins in the early seventeenth century and then moves up systematically through the Revolution and early years of the nineteenth century, then jumps forward in the final chapter to Dred Scott and Civil War. I'm obviously incredibly biased in this, but I like the way that what is central to the narrative of American history is labor and particularly our shifting relationship with slavery. I will not be heard to argue against the centrality of slavery -- believe me I won't. But I do wonder how we fit other narratives, including Enlightenment, industrialization, and Romanticism into this story. (Romanticism was central to Michael O'Brien's Conjectures of Order, which won the Bancroft in 2005.) Second, I wonder how this will shift what legal historians (and others) study? What's the framework that people will now argue against? Or write within?
Freedom Bound inspires a lot of thoughts -- one of them is how to compare it to other works that engage with migration in early America. For instance, there's a very different story here from the one that Bernard Bailyn tells in Voyagers to the West. Where Bailyn sees the project as one of peopling America and optimism, Tomlins is much more circumspect. And Freedom Bound also invites comparison with Richard Morris' 1946 Government and Labor in Early America -- another book that placed unfree labor at the center of a narrative about colonial America. Chris writes of the ways that demographic reality and ideas of colonization are built on a platform of law. He sees a relatively unbroken narrative of bound (slave) labor up to the time of the Civil War, when there is a possibility of freedom, not quite realized, of course, but at least put into motion. In this way he's linked with Mark Graber -- explicitly because Tomlins cites Graber -- and the idea that Dred Scott was a mainstream decision that drew up ideas in common circulation at the time. Ok -- time for point of contention here. I'm in agreement with Chris on the "slavery was central to the American mission up to the time of Civil War" point, but what I see in the Revolution and pre-war period is a growing disjunction between American missions. There were some groups for whom Dred Scott was a natural result of long-standing ideas and doctrine; for others, that opinion was outside of their decades-old ideas about freedom. Where Chris sees a national narrative, I see more of a sectional one. This is one of my points in University, Court, and Slave -- that southern intellectuals, particularly legal thinkers, helped expand ideas about the need for slavery and the utter impracticality of freedom, and they secured those ideas in place, even as the world around them was moving in the opposite direction. As with Chris, my scholarship focuses on the bound part of the story -- how the powerful and mighty thought about the importance of slavery and how they justified their world. But I see more people departing from that world earlier than does Chris. To put this provocatively and simplistically, a key point of contention that this book raises is -- did the Revolution or Civil War make the United States anti-slavery?
Another hope for this book is that it furthers the revival of interest in ideas of colonization -- in the ways that the powerful set up ideas on top of economic realities to create a whole system for economic development and for political control.
Freedom Bound is a very literary, as well as quantitative and empirical, book -- it begins with talk of narratives of Jamestown and the concluding chapter discusses two plays performed around the time of James I's daughter, Elizabeth's, marriage in 1613 -- The Memorable Maske and The Tempest -- which help to frame the ideas of conquest and colonization that Tomlins deals with. Obviously we're going to be living with this book for a very long time and, like a lot of the other great works of history, it's a book that we'll need to read many times to begin to understand (Michael O'Brien's Conjectures of Order again comes to mind).
Now, on a separate issue, the former book reviews editor in me wonders ... what will the Michigan Law Review annual book review issue do with Freedom Bound?
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