Slaves as plaintiffs.

• Author: Brophy, Alfred L.
• Position: Book review

REDEMPTION SONGS: SUING FOR FREEDOM BEFORE DRED SCOTT. By Lea VanderVelde. New York: Oxford University Press. 2014. Pp. xii, 210. $31.95.

INTRODUCTION

Lea VanderVelde's Redemption Songs: Suing for Freedom Before Dred Scott (1) tells the story of about 300 suits filed in St. Louis--in the forty years before the Civil War--by people held as slaves who were claiming they were free. The book poses bold challenges to several broad themes in American legal history. First, VanderVelde concentrates on enslaved peoples' arguments about their freedom, reframing our understanding of those who count as interpreters and remakers of the law. This approach gives significant credit to enslaved people for promoting freedom and turns attention away from the judges, slave owners, and politicians who are so frequently the focus of legal history. (2) Related to this, VanderVelde suggests that the enslaved could draw powerful slave owners into court and thus upend traditional power structures (pp. 1-8). This resurrects a world of African American history where those frequently treated as objects of law and regulation become wielders of power.

Redemption Songs is one of the finest of several recent studies that are causing us to rather dramatically rethink the legal history of free people of African descent in the South during the years of slavery. (3) It is part of a wholesale rethinking of Southern and African American history. Redemption Songs has implications for legal historians' assessment of the ways that the law of race operated in the South, and just how much statutes, dictates of judges and local law enforcement, community norms, and interpersonal dealings worked for those in the twilight zone between slavery and freedom. Therein lies a story.

Much literature on African American slavery emphasizes the brutality of slavery. (4) Recently, that literature has also emphasized how economic interests shaped the law of slavery to promote the interests of the slave-owning classes. (5) A parallel literature on proslavery ideology, especially in the judiciary, (6) details slave owners' and Southern legal leaders' harsh ideas. That literature links the brutality of slavery to the legal system. (7) Yet other works emphasize very different pieces of the African American experience with slavery. For instance, Annette Gordon-Reed's The Hemingses of Monticello focuses on the lives and ideas of enslaved people independent of slavery, while also acknowledging the brutality and inhumanity of slavery as an important subtheme. (8)

A number of studies, including Redemption Songs, focus on the legal system as it relates to African Americans in the Old South. They suggest--rather counterintuitively, given Justice Taney's statement in Dred Scott (9)--that African Americans did have some rights that white men (and courts) were obligated to respect. One of the first works to begin this bold reinterpretation was Melvin Ely's Israel on the Appomattox, a study of a community of free people in Prince Edward County, Virginia, in the pre-Civil War era. (10) Ely based his study of the hundreds of free people largely on land records, wills, and the occasional civil suit or criminal prosecution. The community prospered even as slavery persisted all around." Other more recent work has developed the theme of the economic, social, and property options of free people in Virginia--and their ability to maintain a life despite Virginia laws that required both registration of free people and removal of recently freed people. (12) In 2012, Kirt von Daacke expanded Ely's analysis of the role of free people of color in pre-Civil War Virginia to Albemarle County: the home of the University of Virginia. (13) His revealingly titled book, Freedom Has a Face, turned to legal records to detail the involvement of free people of color in the county's economic and social life. (14)

Although Gordon-Reed, Ely, and von Daacke relied heavily on legal records, the operation of the law was not central to their books. (15) Others have turned more explicitly to the operation of the legal system to depict greater rights for free people--and those claiming to be free--than we might expect. For the states in the "Deep" North, like Massachusetts, the use of courts to secure freedom is perhaps unsurprising. (16) Emily Blanck is one of the most recent of a series of scholars who depict how Massachusetts judges ended slavery in the state beginning around 1780. (17) Important to Blanck's story, as well as to VanderVelde's, is that the enslaved people combined action--such as running away and disappearing into the African American community--with court challenges to gain freedom. (18) The story that emerges is one where humble enslaved people--those with so seemingly little power--use multiple strategies to make their freedom a reality. Sometimes the strategies involved appeals to law; and when they did, those appeals were sometimes successful, in part, because the enslaved people advanced a theory that appealed to the court. Massachusetts was primed in 1780 to find that the principles of liberty behind the Revolution encompassed the state's enslaved people as well. (19)

The more surprising story comes from southern and western states. Martha Jones has a series of articles detailing the participation of enslaved and free African Americans in the legal system, often as plaintiffs. (20) Running parallel to that work, Jones has also discussed how African American women wielded sophisticated ideas about law and legal thought. (21)

A series of scholars who, like VanderVelde, have focused on St. Louis freedom suits, have found greater flexibility in slavery in the Old South than we are accustomed to hearing about. (22) Their scholarship focuses on the blurred lines between slavery and freedom along the Mississippi River and the ways that slaves challenged their bondage, often by escaping along the River, but sometimes by filing lawsuits. (23) To be sure, there has been some literature on freedom suits in other parts of the country. Judith Schafer (24) and, more recently, Kenneth Aslakson (25) have uncovered freedom suits in New Orleans. Recently, Judson Crump and I have recovered the story of a child kidnapped in Philadelphia and sold into slavery in Alabama, who was then freed in Tuscaloosa, Alabama, in 1827. (26) Together, these stories suggest there were legal processes allowing free people--and those claiming to be free--some access to courts in the Old South. Yet, in the 1840s and 1850s, legislatures and courts were tightening the opportunities for freedom suits. (27) A parallel literature examines the role of outsider intellectuals as they challenged slave law. (28) Those studies look to formerly enslaved people like Frederick Douglass, (29) antislavery women like Harriet Beecher Stowe, (30) philosophers like Henry David Thoreau, (31) and antislavery lawyers like William Goodell. (32) That is, as scholars have explored the social and legal history of slaves' challenges to slavery, they have also developed a sophisticated literature that explores how outsider intellectuals--black and white, female and male--challenged the American law of slavery. There is, of course, a continuous strain of legal-historical writing that focuses on the limitations of the legal system in the Old South.

1. INTERPRETING SLAVES AS PLAINTIFFS IN ST. LOUIS

   This is where Lea VanderVelde's work on lawsuits filed by people held in slavery in St. Louis, Missouri, enters the debate. More than a decade ago, VanderVelde uncovered these suits with the help of archivists in Missouri. (33) A handful of these cases were known because the Missouri Supreme Court had heard them and decided many in favor of freedom. (34) Historians had also known about some of the lower court cases for decades. (35) In one improbable interpretation, Allen Johnson of Yale University's Department of History concluded in 1921 that border states like Missouri treated petitioners fairly. (36) Now we know that there were many times more suits than even he was aware of. Many of those suits were successful, (37) others were unsuccessful, and some had unrecorded results.

   It is Vander Velde who had the wisdom to use these cases to reveal calls for freedom. Redemption Songs develops the metaphor of enslaved people "singing" songs of redemption by filing lawsuits to claim their freedom in Missouri courts. (38) Missouri law allowed people held in slavery to file suit challenging their owners' rights to hold them. (39) Early on, Missouri law provided for the appointment of a lawyer for indigent slaves, and even allowed them to remain free during the pending litigation. (40) Later, the legislature tightened the laws so that a court could require the slaves themselves to post a bond in case they lost their suit. (41)

   The next twelve chapters of Redemption Songs focus on specific cases where slaves sued in Missouri, mostly successfully, for their freedom. (42) VanderVelde tells the story of some of the better-known (though by no means well-known) cases, such as Winny, a slave born in the Carolinas, who was later held for a few years in slavery in the free territory of Illinois. (43) With a petition filed around 1818, Winny successfully called her "owner" and the owners of her children to account. (44) Her claim was that she was held in territory that the Northwest Ordinance made free--and she and her children were thus free (p. 61). This set the precedent for those with similar claims for several decades. Other plaintiffs, such as Lydia Titus, successfully used the courts to assert freedom based on her service in a free territory before arriving in Missouri (pp. 67-69). Titus, who won her freedom in Illinois territory around 1807, successfully sued in Missouri to reclaim her children, who had been captured on charges of being runaways in the early 1830s (pp. 70-75). And VanderVelde tells the story of a Canadienne Rose, whose children challenged being...