Paul Finkelman

Evading the Ordinance: The Persistence of Bondage in Indiana and Illinois

This article explores the Ordinance of 1787, Article VI of which prohibited slavery and involuntary servitude in the Northwest Territory. However, based on the will of the people, it did not abolish slavery in either Indiana or Illinois as the leaders allowed de facto slavery through long-term indentures, rental contracts, enforcement statutes, and recognition of slave status for those brought in as slaves before 1787. The territories were able to justify the practice under the full faith and credit clause and the legal fiction of respecting allegedly voluntary contracts originating from other states. The petitioners in the northeast argued that if Congress allowed short term slavery, they would support gradual emancipation (as the children of life servants would be free though indentured through adulthood), to which they argued would benefit their local economy, encourage settlement east of the Mississippi, and benefit the nation by diffusing the concentration of blacks in other parts of the U.S.

His soul goes marching on : responses to John Brown and the Harpers Ferry raid

Much has been written about John Brown and his ill-fated raid on Harpers Ferry, but as Brown himself recognized, his power would be greater in death than in life. This is the first book length examination of Browns legacy: what different segment of American society, with their differing aspirations, fears, and purposes, made of Browns attempt to foment a slave rebellion and his subsequent trial and execution.

Terrible Swift Sword: The Legacy of John Brown

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Not Only the Judges' Robes Were Black: African-American Lawyers as Social Engineers

In this review essay, Professor Finkelman praises J. Clay Smith’s Emancipation: The Making of the Black Lawyer for collecting and organizing a vast amount of information on the African-American lawyers in the century following 1844. Smith’s book offers insights on the most famous African-American lawyers of this period and presents new biographical information on many previously unknown lawyers. Professor Finkelman presents additional historical context for Smith’s research and shows how African-American attorneys often had to fight prejudice within the profession even as they represented African-American clients before an often biased and obstinate judiciary. Additionally, Professor Finkelman criticizes the often illogical and confusing organization of the work. Still, he calls Smith’s book an important resource for students of the transformation of civil rights law.

The Law of Freedom and Bondage: A Casebook.

BOOK BRIEFS The Law of Freedom and Bondage: A Casebook. By Paul Finkelman. New York, London, and Rome: Oceana Publications, Inc., 1986. Pp. 281

Lincoln, Emancipation, and the Limits of Constitutional Change

30.00- (Cloth) (Paper

Civil Liberties and Civil War: The Great Emancipator as Civil Libertarian

15.00) Reviewed by Judith K. Schafer* Scholars interested in the impact of slavery on the United States during the antebellum period and the thorny legal issues that bondage raised in free and slave states will be pleased by the appearance of Paul Finkelmans The Law of Freedom and Bondage: A Casebook. Although less complete than Helen T. Catteralls classic five-volume Judicial Cases Concerning American Slavery and the Negro, Finkelmans book is useful because it is organized by topics rather than by states and because it includes statutes and other primary materials on the law of slavery as well as reports of cases. The author chooses to omit the leading federal cases dealing with slavery in favor of little known and less accessible state cases because slavery had its greatest impact on state law during the antebellum period. The selections show that the perpetuation of slavery necessitated the passage of specific statutes to maintain the institu- tion and existing laws had to be interpreted to accommodate the peculiarities of the institution. The result of the authors efforts is a useful and interesting collection of important materials on the law of slavery. Finkelman concentrates on four broad topics: the origin of slavery, the abolition of slavery in the North, manumission of slaves in the South, and the criminal law of slavery. The first section presents materials that show how early colonial courts grappled with the complex legal issues presented by the conflict between slavery and common law precedents. For example, although common law precedent held that children followed the condition of the father, colonial slave law required children to follow the condition of slave mothers. As early as 1740, South Carolina law held that slaves shall follow the condi- tion of the mother 1, which came to be the law in all slave states. In the section on the abolition of slavery in the North, Finkelman presents cases and statutes arising from the abolition of slavery in England, the gradual abolition of slavery in the northern states, the passage of the Northwest Ordinance, and the problem of the status of a slave who entered a free state and was freed by touching free soil. Southern courts increasingly denied the liberating effect of free soil as they became more defensive about the institution of slavery. This issue would finally be decided in the United States Supreme Courts landmark decision in Dred Scott v. Sanford 2 . The section on manumission deals with freedom suits based on transpor- tation of a slave to a free state or territory as well as the growing tendency of * Visiting Lecturer in Law, Acting Director, Murphy Institute of Political Economy, Tulane University. 1. P. FINKELMAN, THE LAW OF FREEDOM AND BONDAGE 7 (1986). 2. 60 U.S. (19 How.) 393 (1856).

World War I and the Origin of Civil Liberties in the United States

This article examines the policy behind President Lincoln’s Emancipation Proclamation. Lincoln wrote the Emancipation Proclamation with the assumption that it would be challenged legally, while this never happened because its legality became moot after the ratification of the Thirteenth Amendment, Lincoln aimed to keep the proclamation as narrowly focused and constitutionally solid as possible. The article explores constitutional limitations on emancipation, the conditions leading up to emancipation, and the lasting effects of the emancipation during and following the Civil War.

Crime and Law Enforcement in the Colony of New York, 1691-1776

This essay is a review of Mark E. Neelys The Fate of Liberty: Abraham Lincoln and Civil Liberties (1991), and argues that Lincolns abuse of civil liberties during the Civil War has been generally misunderstood and exaggerated. The article also shows that Lincoln was essentially a fried of civil liberties, just as he was an enemy of slavery. But, just as he had to tolerate some cooperation with slavery in the border slave states to win the Civil War, so too did he have to implement and support some deprivation of civil liberties. The article explains how the friction and abrasion (as Lincoln called it) that helped destroy slavery also threatened personal and civil liberties. The lesson of the Lincoln years, set out in Neelys book, is that war threatens individual liberties, even when the chief executive is sensitive to democracy and disinclined to be oppressive. When the chief executive cares less for freedom, or worse yet, is openly hostile to individuals and organizations dedicated to its preservation, the climate during wartime can become truly oppressive.

Slavery and the Founders: Race and Liberty in the Age of Jefferson

Clarifies the reasons why the first attempt to secure meaningful civil liberties occurred in the World War I era.