The Law of Freedom and Bondage: A Casebook by Paul Finkelman

Abstract

BOOK BRIEFS The Law of Freedom and Bondage: A Casebook. By Paul Finkelman. New York, London, and Rome: Oceana Publications, Inc., 1986. Pp. 281 $30.00- (Cloth) (Paper $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 Finkelman's The Law of Freedom and Bondage: A Casebook. Although less complete than Helen T. Catterall's classic five-volume Judicial Cases Concerning American Slavery and the Negro, Finkelman's 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 author's 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 Court's 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).