The Faculty Lounge

More Negro Motorist Green Books Available

From the Journal of Southern History's twitter feed @JourSouHist I see that the Schomberg Library in New York has put a bunch of editions of the Negro Motorist Green Book up on the net.  For more on these travel guides for African Americans in the waning days of Jim Crow, here's a discussion about them from the radio show Your Weekly Constitutional.  I've been looking through editions to see what places listed there still exist -- and through the magic of google maps street view I'm seeing that a lot are now gone.   This testifies to me how much urban renewal changed the face of African American communities -- and in some cases erased them.

The image is of the Southern Queen Hotel in the Shake Rag section of Bowling Green, Kentucky.  It was listed in the Negro Motorist Green Book.

More on Appomattox at 150

As a footnote to Al's post on the 150th anniversary of Appomattox, two nice pieces were recently posted about Appomattox and Reconstruction in memory and history: The Unlikely Paths of Grant and Lee by Jamelle Bouie over at Slate and The Civil War Isn't Over by historian David Blight writing in The Atlantic.  Definitely worth a read.

Black Originalism, Part IV: South Carolina Convention of 1865

Alonzo Ransier

In my last post I discussed the Nineteenth Century Black Convention Movement and how the 1864 National Convention in Syracuse started a brief but important series of conventions.   For this post I look at one of the more prominent of the state conventions, held in Charleston, South Carolina, in November of 1865. 

Richard Cain

The Charleston Convention is frequently cited both because it produced an interesting set of substantive documents and because it included several future political leaders in Reconstruction South Carolina, such as Richard  H. Cain, Francis L. Cardozo, and Alonzo J. Ransier.    

Francis Cardozo

This convention has received some attention by originalists because it mentions the right to bear arms, and it is the one black convention from the period to have made its way into a Supreme Court footnote (in McDonald).  The problem, however, as I discuss below the fold, is that extracting the right to bear arms from the document in this way does not do justice to either the richness of the document or the role and context of the right to bear arms for the members of the convention.  

Black Originalism Part 3: The Syracuse Convention of 1864

Having set the stage in prior posts (here and here), I want to delve a bit into texts from the Civil War/Reconstruction black public sphere.  The first I will highlight is the National Convention of Colored Men, held in Syracuse in October 1864. 

The Black Convention Movement of the nineteenth century is an important and undervalued source of public debate in the black public sphere.  The movement itself arose as part of the abolitionist movement, and a number of important conventions had been held in the north prior to the war.  (The Colored Conventions Project at the University of Delaware has a wonderful resource webpage for these conventions here.)  Both because it was held as the war’s end was in sight, and because of the issues addressed, the Syracuse Convention of 1864 can be seen as the first Reconstruction black convention.  In the ensuing five years many more—local, state, and national—would follow (including the Colored National Labor Union Convention of 1869, pictured to the right), in part as an extension of the civil society movement the Syracuse Convention aided by founding the National Equal Rights League at Syracuse. These leagues, along with Union Leagues, were critical focal points for early Reconstruction black activism and community-building. 

Black Originalism, Part 2

Crispus Attucks

In my last post I introduced the idea of “black originalism.”  Before delving more into some of the materials I am looking at, I want highlight what are likely to be some key points that frame the project.  Some of these might be described as methodological, others normative.  But in either event from what I have looked at so far, I think these provide a bit of the framework for the project (subject to ongoing revisions, of course!).       

John Brown

First, Black Originalism as a project should prioritize the Reconstruction Amendments and their implementation.    A common theme of black writers and speakers from the 1860s is that the antebellum United States—not just the South, but the entire country—contained important parallels to British America, with the Civil War being a second Revolution.  As activist and lawyer John Rock said, “the John Brown of the second Revolution is but the Crispus Attucks of the first.”   Reconstruction was a second founding, and should be treated as such.  This will be a markedly different view than is usually taken by originalists, who tend to privilege the founding and see Reconstruction as a restoration to a more correct (more perfect?) constitution without slavery.  

Black Originalism, Part 1

In prior posts I wrote about two speeches/dialogues from 1865: Henry Garnett’s speech and sermon in the House (here and here), and the exchange between William Sherman and Garrison Frazier in Savannah.   As I mentioned, these are two sources that I am looking at in my project of exploring African-American writings, speeches, and actions from the period to help think about the possible meanings of the Reconstruction Amendments.  I'll now take a break from my 150-year anniversary posts to give an overview of the project.

By the 1860s African Americans had built a well-established discourse and activist community in the North.  It developed with the abolitionist movement, but it also functioned as a support network for building African-American civil society in the Jim Crow culture of the North.  With the end of slavery, southern black communities immediately engaged in public discussions and debates about the meaning and implementation of freedom and citizenship.  And with Reconstruction, black representation in local, state, and national government was brief but substantial. The ideas discussed and advanced within the black public sphere provide an important source for how freedom and citizenship were being thought about at the time by the people for whom it meant the most.  And while historians have been exploring black history from this period for a number of years, very little of this has made its way into legal or constitutional analysis.

The main exception to this has been the use of African-American sources in the Second Amendment cases, Heller and McDonald, relying in part on work by scholars (Akhil Amar, Robert Cottrol & Raymond Diamond, and others), and in Justice Thomas’s opinions on affirmative action (e.g. Grutter).  Both the majority opinion and Justice Thomas’s concurrence in McDonald cite black newspapers and black conventions to support an individual rights reading of the amendment as incorporated through the Fourteenth Amendment.  I don’t know about you, but this struck me as odd. 

Henry Highland Garnet’s Speech, Part 2

Last week  I noted the anniversary of Henry Highland Garnet’s sermon/discourse in the House of Representatives from 1865.  Carla Peterson also had a piece as part of the NYT Disunion series about Garnet’s work before this speech and the speech itself, which I definitely recommend.  For this post I will reflect on the portion of Garnet’s speech that I quoted last time.  There are several themes running through this passage, themes which, standing alone, will be familiar to modern readers, but when woven together are likely to create confusion or dissonance for us today.     

For instance, Garnet employs the basic theme of legal or formal equality: the cause of antislavery reformers will be secured, he asserts, “when all invidious and prescriptive distinctions shall be blotted from our laws, whether they be constitutional, statute, or municipal laws.”  He similarly argues against “class-legislation” and for a time when blacks “shall be equal before the law, and shall be left to make his own way in the social walks of life.”  This sounds today much like the conservatism promoted by Justice Thomas, among others, particularly in opposition to government programs and affirmative action (Thomas cited a similar passage from Frederick Douglass in Grutter for this point—more on that below). 

But Garnet weaves this theme with others that are not so commonly advocated by modern conservatives: voting rights, government supports, and eradication of private prejudice.  Immediately after his first mention of formal equality, Garnet states that the demands of reformers will be met “when emancipation shall be followed by enfranchisement, and all men holding allegiance to the government shall enjoy every right of American citizenship.”  Voting, and its concomitant, political power, was an essential component for enforcing and maintaining equality and freedom, and was itself a basic right of citizenship.   This sounds much more like the arguments made by supporters of the Voting Rights Act.  And in the same breath that Garnet states that blacks should be left to make their own way, using a poetic metaphor of storms and ships he askes that blacks also “be furnished with rudder, helm, and sails, and charts, and compass.  Give us good pilots to conduct us to the open seas; lift no false lights along dangerous coasts.” This resembles arguments made in support of the Great Society and War on Poverty, arguments about an equal opportunity society championed by modern liberals.

“Let the Monster Perish”: Henry Highland Garnet’s Memorial Discourse to Congress

Today marks the 206^th anniversary of Abraham Lincoln’s birth, which also makes it the 150^th anniversary of his last birthday in 1865.  Not coincidentally, it is also the 150^th anniversary of Henry Highland Garnet’s landmark sermon/speech in the House of Representatives (extended excerpt available here), in which he exhorted Congress to "Emancipate, Enfranchise, Educate.”

To commemorate the recent passage by the House of the Thirteenth Amendment on January 31^st, the House chaplin, with support of congressional Republicans and the Administration, invited Henry Highland Garnet to be the first African-American to deliver a Sunday sermon in the House to a general audience (apparently a common use of the chamber when the House was not in session), and to do so on Lincoln’s birthday. 

Garnet was in many ways an unusual choice for this role.  He had been a leader of what is often described as the black nationalist wing of the abolition movement.  In 1843 he had famously called for slave rebellion and praised Denmark Vesey and Nathanial (Nat) Turner.  And he had been a founder of the antebellum emigrationist movement. 

The fact that he was invited to deliver this speech shows just how far things had moved by 1865.  The war had affirmed Garnet’s violent resistance position and  obviated the immediate need for emigration. Garnet had worked to establish black army units and recruit black soldiers.  He was also serving as minister at the Fifteenth Avenue Presbyterian Church in Washington, D.C.  Accompanied by his church's choir (which was considered one of the best in the country), Garnet spoke to a standing-room audience.  By all accounts they rocked the House.  

EJI Report: Lynching as Terrorism

The Equal Justice Initiative released a major report yesterday on lynching as terrorism, titled  Lynching in America: Confronting the Legacy of Racial Terror.  Like the EJI report from 2013 on the slave trade in Montgomery, this is a remarkable piece of applied history.  It comprehensively documents almost 4000 lynchings of African-Americans as part of the terrorist campaign against blacks to enforce Jim Crow and white supremacy.  Lifting from the EJI web page: 

EJI researchers documented 3959 racial terror lynchings of African Americans in Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, Tennessee, Texas, and Virginia between 1877 and 1950 – at least 700 more lynchings of black people in these states than previously reported in the most comprehensive work done on lynching to date.

Lynching in America makes the case that lynching of African Americans was terrorism, a widely supported phenomenon used to enforce racial subordination and segregation.  Lynchings were violent and public events that traumatized black people throughout the country and were largely tolerated by state and federal officials.

Bryan Stevenson and the people at EJI do great work in so many areas.  Just based on the summary document available online, there is a lot of important research and analysis in this report.  In addition to the painstaking historical research involved, as a piece of history-based advocacy it makes a powerful case for how capital punishment and the criminal justice system more generally today are the direct consequence of the racial terrorism that was lynching.  The report also advocates for public history and the use of historical markers to remember the victims and the fact of our own collective responsibilities, something about which Al and others on this blog have written about so effectively.  The NYT also has an editorial on the report today that's worth a look. 

Go Set a Watchman

I should probably leave it to Steven Lubet, the faculty lounge's resident expert on Harper Lee and To Kill a Mockingbird to discuss this.... The internets are lighting up right now with the announcement that a novel written by Harper Lee before To Kill a Mockingbird is set for publication this July.  The novel is called Go Set a Watchman.  It deals with Scout as an adult and is set in the 1950s -- some years after the plot of To Kill a Mockingbird.  Actually, it was this novel that led to Mockingbird when an editor, intrigued by flashbacks to Scout's early life in Go Set a Watchman suggested that Lee write a novel about Scout's early life.  Lee thought the novel was lost, though a copy was recently found by her lawyer, apparently attached to a manuscript of Mockingbird.

I'm going to be mighty interested in this -- for all sorts of reasons.  First, I'll be interested in the amount of law there -- and particularly whether there are the kinds of issues raised by Mockingbird, where the focus on civil rights advocacy may have overshadowed the efforts to free Tom Robinson.  If there's any significant amount of law in the novel, there's going to be a feeding frenzy among professional responsibility, trial advocacy, civil rights, and critical race scholars.  Second, I'm going to be interested in seeing how the depictions of the civil rights movement appear and what Lee makes of the generational divide between Scout and her father and whoever else populates the novel.  

I was talking recently with one of my colleagues about Tony Amsterdam's legendary memo from the mid-1970s about the future of challenges to the death penalty and how many of those challenges he accurately forecast.  It'll be exciting to see how the views that Lee lays out in the novel match up with our understanding of those difficult -- but still optimistic years -- and also how they match up with our current understandings of the options and challenges of race and equality today.

Ladies and Gentlemen, start your word processors.  The image is of the Monroe County Courthouse in Harper Lee's hometown of Monroeville, Alabama.  It's from our friends at wikipedia.

Update: Richard McAdams speculates on how our view of Atticus Finch may change when we view him in the setting of the 1950s rather than the 1930s at Huffington Post.

"Your Weekly Constitutional" Discussion of Negro Motorist Green Book

Professor Stewart Harris of Appalachian School of Law hosts a weekly public radio discussion of law and often history, known as "Your Weekly Constitutional."  This week his discussion is about the Negro Motorist Green Book and I had the pleasure of speaking with him about it -- and really about Jim Crow segregation more generally.  This week's discussion is available here.  The full catalog of podcasts of past discussions are here.

Late Nineteenth Century University Building Trivia

Digging deep in my stock of nineteenth century university buildings here.... Faculty are asking that this building, which was built at the end of the nineteenth century and then renamed for a famous turn-of-the-century politician just after World War II, be renamed.  What campus is it on and who's it named after?

Though I'm generally against renaming (it permits forgetting), I think these decisions should be made by the University's community.  One way of changing names, of course, is by use.  That is, whatever the name on the building (or on university maps) is, students can call it whatever they want.  Along those lines, I'm surprised to see that this University's wikipedia page hasn't yet been altered to reflect the new (actually old) proposed name.  Student activism just isn't what it used to be.

Update:  Now that Josh Rothman (via twitter) and Brant Hellwig (via comments) have identified this building, maybe it's time to talk a little about the discussion on Clemson's campus about this building.  It was built in 1894 and was known as Main or Old Main until 1946 when it was renamed Tillman Hall in honor of Senator Ben Tillman, who was instrumental to the University's founding. Here's a very good article on the discussion about renaming at Clemson.  The comments cover a lot of ground and as I told someone yesterday, they're shockingly thoughtful for anonymous comments on the internet.  In fact, you could write a very good article about the competing visions and uses of history out of those comments.

Meanwhile, in Chapel Hill there continues discussion over the name of Saunders Hall here on our campus. There's going to be a rally on Friday at noon at the Confederate monument on campus. UNC's naming policy, which will frame the University's response, is here.

WAPO on Johnson on Racially Restrictive Covenants

Just in time for the beginning of property class comes this article from the Washington Post on an estate that LBJ and Lady Bird Johnson purchased in -- do I have this right, 1961 -- with a racially restrictive covenant on it. The Johnsons filed a declaration that the covenants were not enforceable legally or morally. Of course that was true. By 1961 the covenants had been unenforceable for nearly fifteen years. Perhaps this article should have mentioned that, rather than repeating one of the Johnsons' lawyers statements that he could not have purchased a home in the area at the time.

I'm going to see Selma when it opens in Chapel Hill. Though I almost never see movies in the theater I make and exception for ones about slavery (even when they are fiction) and Jim Crow so I need to reserve my though on just how unfair the movie is to Johnson. I'm always sad when historical figures are unfairly maligned and it seems that Selma may be particularly unfair. But I'm not convinced that the restrictive covenant in this case robustly tests Johnson's attitudes towards integration.

Still, all of this reminds me of some work I'm doing on the fight against racially restrictive covenants in Oklahoma City from the late 1920s through and just past Shelley v. Kraemer. While the house the Johnsons purchased was quite expensive, what strikes me as particularly poignant is that much of the fight against integration in Oklahoma City took place over relatively modest housing stock.  The illustration, for instance, is the home of one of the plaintiffs in a suit to enforce covenants in northeast Oklahoma City back in the 1930s.  I hope to post a bunch more photos from the 1930s and also of the neighborhood today later in the semester when I talk about the work I'm doing on the suits regarding restrictive covenants.

Muslims in the Antebellum South

I've been enjoying reading Khaled A. Beydoun's new article on Muslims in the Pre-Civil War south and in particular their relationship to law. It is called "Antebellum Islam."  Cribbing now from his abstract:

America’s first Muslims were slaves. Social scientists estimate that 15 to 30 percent of the Africans enslaved in the Antebellum South practiced Islam. Research indicates that the Muslim slave population could have been as high as 1.2 million. Despite their considerable presence in the Antebellum South, the history of Muslim slaves has been largely neglected within legal scholarship.

This Article argues that the omission of Muslim slaves from legal scholarship is a consequence of the legal segregation of Black and Muslim identity during the Antebellum Era. Two factors brought about this segregation. First, the law remade Africans into Black slaves, and state slave codes criminalized their religious activity and stripped slaves of their religious identities. Second, the state adopted a political conception of Muslim identity that converted it from a religious into a racial identity in the narrow profile of “Arabs” and “Turks” – a non-white class that racially restrictive naturalization laws barred from accessing citizenship. Muslim slaves lived at the intersection of these two irreconcilable racial configurations.

There is a lot to talk about here. First off I want to note Khaled's emphasis on the southern state laws that limited the religious rights of enslaved people. While he is obviously correct that the legal system -- statues and police practices -- sought to limit meetings of enslaved people for worship when they were unsupervised by white people, there was also great emphasis in the white community on encouraging African Americans to participate in Christian churches under the supervision of white people.  Thus, I see the story as the wiping out of prior religious ideas and the substitution of Christianity for those ideas.  (I've written some about the ways that church meetings were used to supervise and how white ministers attempted to control free and enslaved people in the context of the Nat Turner rebellion.)

Second, the article begins with a vignette about an enslaved man, Omar ibn Said, who wrote an autobiography, which begins with his life in Africa and then carries through to his life here in North Carolina.  A lot of people use the autobiography because it is such an amazing story and because there are so few other sources like it. But what I'm really excited about is that a story about Said (also known as Uncle Moreau) was published in the University of North Carolina's student literary magazine, the North Carolina University Magazine in the 1854. The magazine introduced the autobiography with a short biographical statement, which spoke of his conversion to Christianity (though that is now in doubt).  Though, of course, it has been reprinted many times since then.  One thing that I think might also worth looking at is the treatment of Muslims in the fictional literature of the old south. I'm now not remembering where I saw this, but I recall a novel that had a paragraph written in Arabic in it, I think that was supposed to have been written by a slave.  I need to look through my notes on this one; I want to say it might have been in George Tucker's Valley of the Shenandoah. And I think southern proslavery Christian literature also will convey the sense that the religious ideas of enslaved people was one marker that justified (in the minds of the slaveowners) the subordination of enslaved people. That is, I think there may have been more realization among the leaders of southern society than we now know realize about enslaved people's religious background -- even though they did not respect such ideas.

Third, there is a growing fictional literature that places enslaved people in the context of Islam.  For instance, Sharon Ewell Foster's The Resurrection of Nat Turner deals with Turner's ancestors and their religious beliefs in Africa.  And fourth, as I've thought about this some more, one of the few books that remains from the University of Alabama's pre-Civil War library (most of it was burned during the War, but a few books that were checked out have survived), is a copy of the Koran.  Perhaps that's an indicator that there was more interest -- perahaps inspired by the religious of ideas of slaves? -- than we have previously appreciated.  Along those lines, I think that it's worth looking again at the writings of proslavery academics like Thomas R. Dew of William and Mary to see what they saw about Islam and then ask how those views might be related to the cultural exchanges they had with enslaved people.

Anyway, take a look at Khaled's paper. I think you'll really find this exciting in a lot of ways.

The image is of one of the literary society buildings here on the UNC campus, which was built before the Civil War.  Thus, it is a building in existence when the students here were reading about Said in the North Carolina University Magazine.

H/t Rob Luther.

Judith Kelleher Schafer (1942-2014)

I am saddened and stunned to report that legal historian Judith Kelleher Schafer has passed away. Judith was one of the first people I met when I attended my very first American society for Legal History meeting back in 1995 and I remember well how kind she was in talking to me and taking an interest in my work, then in pretty early stages on proslavery legal thought. Judith is legendary for her kindness to newer scholars and for her important work on the legal history of free people of African descent and on enslaved people, particularly in New Orleans. Just this year I relied heavily on her Becoming Free, Remaining Free: Manumission and Enslavement in New Orleans, 1846-1862. She was an important pioneer on the rights (such as they were) of enslaved people to call their "owners" to account through law.  And recent work, on freedom suits by a host of historians, such as Lea VanderVelde's important Redemption Songs, builds on Judith's earlier research that demonstrated a surprising number of lawsuits for freedom (to me, anyway, who wouldn't have expected any lawsuits).  I am looking forward to the retrospectives on her work and how she reshaped our understanding of slavery and law.

H/t Diana Williams.

Update: Here is Judith's Times-Picayune obituary. H/t Leslie Harris.

Jim Crow Trivia Question

I'm going to start off December right -- that is, with a trivia question.  This one combines two of my passions -- courthouses and Jim Crow.  I think I have this story put together correctly.  First off, I was reading a series of opinions (of a state court and also the U.S. Supreme Court) in a semi-famous case involving a laughably biased prosecution of an African American man for assult of a white woman.  The prosecution, which took place only hours after the alleged crime, led to a death sentence.  (Later the judge who issued the death sentence said he was afraid of the kind of mob violence he'd remembered from about a decade earlier.)  That guilty plea, which was based on a coerced confession, was overturned at the state level.  Then, following a trial -- in another county -- where the man was convicted and again sentenced to death, the conviction was overturned by the United States Supreme Court.  Then I realized that the guilty plea took place in a county I visited recently.  I'm pretty sure they took place in the courthouse pictured here.  So this is a two-part question.  First, where is this courthouse?  And second -- and once we get the first one figured out, the second will be easy -- whose case was tried there?  (Or maybe you'll want to reverse-engineer this and think about what criminal procedure case fits those facts and then work backwards to where this was.  At any rate, there's more to this story than I'd initially thought.  Next time I'm back in those parts I want to look into this case in a little more depth.) Sorry about the quality of this picture -- I have a better one of the back of the courthouse (where the sun was in my favor), but I don't know as that one would give a good enough hint because all the images I can find are of the front.

Update: Here's the Oklahoma Court of Criminal Appeals opinion following the first Okmulgee trial.  One of the prosecutors said during that trial "What are you going to do?  I don't want life imprisonment in this case because that is too uncertain--would rather you would turn him loose.  I think probably somebody might take care of him.  I don't know."

The Long Search

    About six months ago, Al Brophy posted an interesting short piece on African Americans’ difficulties in finding accommodations during the Jim Crow era. In the article, he included a link to the Green Book, a publication from the era that listed where success could be had.

    Al’s piece and the Green Book itself made me wonder about the similar issues that supposedly occurred for Jews as they traveled around the U.S. in the early 1900s. During my upbringing in the 1950s and 60s, I was often told stories, particularly by my grandparents, of how difficult travel was as so many facilities had signs that stated that they were for “Christians only” or other similar verbiage. Similarly, the Green Book stated that “[the] Jewish press has long published information about places that are restricted ...” Well, after an unexpected months-long search, maybe not so much.

    Without a doubt, there are some examples of travel establishments refusing to serve someone because they were Jewish. The most widely known of these events would be the Hilton-Seligman controversy of the 1870s surrounding the Grand Union Hotel in Saratoga, NY. Mr. Seligman, a well-established member of the New York City business community and a Jew, was denied a room in the hotel specifically because of his religion. To assert that this was commonplace, however, cannot be sustained, at least based on the records I have been able to find.

    First, I examined the reference in the Green Book to comparable publications from the Jewish press. I found numerous travel books published during the early to mid-1900s with a Jewish audience in mind. All of these, however, were not oriented towards where Jews could find facilities that would be willing to serve them despite their religion; rather, they were oriented towards where synagogues and Kosher restaurants could be found. Unlike the Green Book, therefore, these travel guides were not to help Jews avoid discrimination, they were designed to help them find religiously compliant facilities.

    Second, although there are examples of antisemitism being practiced by travel facilities from the 1800 and 1900s (and even from the 2000s), these examples appear to be just that—individual decisions by a particular facility to discriminate based on religion. No state adopted laws designed to create a Jim Crow-like system of discrimination against Jews as was done against African Americans just as there were no “Jewish divisions” in the miliary of the 1940s as was required of African-Americans. My relatives have served in the Army, Navy and Marines without any limitations because of their religion.

    Since I found nothing, you may be wondering about why I have bothered to post anything on the Lounge. Again, there are two reasons. As I did the research, numerous people and organizations unselfishly gave of their time to assist me. This openness stands in stark contrast to a country where discrimination is acceptable and should be noted. More importantly, however, was the broader reminder that my research gave me. All too often we tend to compare our histories of discrimination. Comparison here means nothing—all group-based discrimination achieves nothing.

    This was recently reinforced in several episodes of Henry Louis Gates’s PBS show, Finding Your Roots. It became explicit as Tony Kushner’s roots were explored. The trail of his family ended with the information from the time his family immigrated to the United States as all of the records before that were destroyed by the Nazis. Only one Jewish guest’s roots could be extended back (Carol King) as there were some Russian records that had survived. Similarly, for all of the African Americans who have been on the show, the family roots ended with slavery. Here, however, DNA has allowed some jump across the ocean as it gives some indication of what areas of Africa are represented within each person’s family. Of course, knowing your country of origin is not the same as knowing your family. Kushner and Gates discussed this in the episode. Kushner said:

    Genocide is a specific thing. Slavery is a specific thing. [Slavery is] a kind of soul murder that is unlike other forms of oppression. The holocaust is a near successful attempt to obliterate ... [i]n less than a decade an entire civilization. This is beyond human comprehension. And you don’t repress the fact that it happened, but you allow a ring of unknowing to surround it because you can’t… you know what was it like on a slave ship… what was it like in Auschwitz. Our great good fortune in a way is to not actually know directly.

The full transcript can be found here.

    I wish I knew more about my family before we came to the U.S. beyond knowing that my Father’s family came from Roumania and my Mother’s family came from Ukraine and Austria. Similarly, I am sure that many African-Americans would love to know their familial background and, for many, their country of origin within Africa. The reality is that none of us will ever know this. So the end of the long search left me knowing, more surely than ever, that there is a great loss when you are cut off from your personal history. At times, to recover from this, we generate a myth that there was a pattern of discrimination. Whether these myths heal or whether they just hide the wounds does not, in the long-term, matter.

Interpreting Cornelius Sinclair's Freedom Suit

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.

The full paper on Cornelius Sinclair's odyssey is up on ssrn.  And now is out in Mississippi Law Journal. The image is the Wilcox County Courthouse (now library).