Nothing More than Freedom: The Failure of Abolition in American Law

In the closing weeks of the Civil War, a Black man named Henry Parker found a mule that the US Army had abandoned near his home in Fayetteville, North Carolina. A white man named John Buie, believing he owned Parker, claimed the animal for himself. Parker, believing he was a free man, sued Buie for the mule. After years of litigation, during which time the United States adopted the Thirteenth and Fourteenth Amendments, the North Carolina Supreme Court held that the animal belonged to Parker. The court reasoned that Parker had become free under the terms of the Second Confiscation Act the moment the US Army conquered Fayetteville, which occurred two days before he found the mule. Had Parker found it a few days earlier, or had he lived somewhere in North Carolina the US Army had not yet subdued, it would have belonged to Buie. It was due only to contingency, then, not the Federal Constitution, that Henry Parker “had every right to do with it whatever he pleased” (109).In Nothing More than Freedom, Guiliana Perrone analyzes roughly seven hundred southern appellate decisions to trace how private law undermined emancipation despite the efforts of a cohort of abolitionist judges committed to a broad interpretation of the Reconstruction Amendments. Perrone defines abolitionist judges esoterically but with great promise. These men were not members of antebellum antislavery societies, nor were they Republican partisans. Instead, they shared a commitment to the “Constitution as it had become, not as it was”—meaning a document that recognized neither slavery nor its vestiges (4). The judge who allowed Henry Parker to keep his mule was no abolitionist. By locating Parker’s right in the Second Confiscation Act, not the Reconstruction Amendments, he resisted his colleagues who would have preferred to “recognize citizenship and equality for Black Americans in law and society” (172). One of this book’s many achievements is locating and defining this postbellum abolitionist jurisprudence.Perrone’s eight chapters can be sorted into two couplets and a quartet. The first two chapters center on contract law. This was the principal mechanism by which nonabolitionist judges defanged the Thirteenth Amendment. Throughout Reconstruction, courts increasingly held that although enslaved people were no longer property, their value remained recoverable at law. The next two chapters examine the relationship between secession, abolition, and state sovereignty. In order to enforce contract law, southern judges had to decide when and how slavery was abolished in their state. The answers to these questions—whether abolition came by ordinance, by state constitutional amendment, or by the force of the US Army—had implications for postwar federalism. The final four chapters turn their attentions to Black rights. Courts repeatedly based decisions about marriage, inheritance, and criminal punishment on freedpeople’s status as former slaves rather than as current citizens. Although individual freedpeople could and did protect themselves and their families, as a class they continued to be treated distinctly from their white neighbors.Nothing More than Freedom makes clear that it did not have to be this way. Indeed, most former Confederate states—including Louisiana and South Carolina with their majority-Black constitutional delegations—initially decided against honoring contracts for enslaved people after abolition. However, a series of state court decisions, followed by the US Supreme Court in Hart v. White (1868), determined that this was a violation of the Federal Constitution’s contracts clause. Jurists’ commitments to “commercial law doctrine and tenets of liberal capitalism” limited abolition’s reach by bringing slavery’s law into Reconstruction (44). Nobody understood this more intimately than Dilly Page, who in 1871 learned that she remained liable for the debt her late husband had incurred when he purchased her freedom in 1857—no matter the Thirteenth Amendment. As Perrone puts it, Page still had to “pay for the freedom that the Constitution of the United States had already guaranteed” (35). The state may have retroactively recognized her marriage, but it was as a freedwoman, not an equal citizen.This is one of those impressive books that examines what you might have thought was a straightforward question only to reveal a dizzying set of answers. For example, when did slavery legally end in the rebelling states? It turns out that in precisely none of them is the answer “the ratification of the Thirteenth Amendment.” Local and state courts throughout the former Confederacy determined their own Juneteenths, and none landed on December 18, 1865. Instead, the Thirteenth Amendment abolished slavery only in the border states of Delaware and Kentucky (and, I would add, in New Jersey and Pennsylvania). Perrone compiles emancipation dates for the fifteen slaveholding states and the District of Columbia, including legal standards and relevant cases, into table 3.1, which is reason enough to add this book to your collection.Like recent scholarship by Loren Schweninger and Warren Milteer, Nothing More than Freedom reminds us just how much difference a phrase like “the South” can elide. Besides disagreeing over the meaning of abolition, the judges Perrone studies proposed half a dozen theories of federalism, fought over the laws of war, and contested the legality of secession itself. With time, these disagreements became less salient as most judges decided to prioritize the continuity of contract law over the revolution threatened by Reconstruction constitutionalism. Indeed, they so prized continuity, as Justin Simard has shown, that judges today continue to cite antebellum slave cases as good law.Readers of this journal might wish Perrone’s analysis had included more workers. Although her sources are mostly published court reports, Perrone balances her discussion of precedent with discussion of plaintiffs—the freedpeople who exercised their hard-won rights throughout the former Confederate states. The result is a grounded legal history that succeeds in describing the terrible failure of abolition in American law without losing sight of those whom the law failed.