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00 freyer campbell cx4 12/14/10 9:05 AM Page i Freedom’s Conditions in the U.S.-Canadian Borderlands in the Age of Emancipation 00 freyer campbell cx4 12/14/10 9:05 AM Page ii 00 freyer campbell cx4 12/14/10 9:05 AM Page iii Freedom’s Conditions in the U.S.-Canadian Borderlands in the Age of Emancipation Edited by Tony Freyer and Lyndsay Campbell Carolina Academic Press Durham, North Carolina 00 freyer campbell cx4 12/14/10 9:05 AM Page iv Copyright © 2011 Tony Freyer and Lyndsay Campbell All Rights Reserved Library of Congress Cataloging-in-Publication Data Freyer, Tony Allan. Freedom's conditions in the U.S.-Canadian borderlands in the age of eman - cipation / Tony Freyer, Lyndsay Campbell. p. cm. Includes bibliographical references and index. ISBN 978-1-59460-772-1 (alk. paper) 1. African Americans--Legal status, laws, etc.--History--19th century. 2. Blacks--Legal status, laws, etc.--Canada--History--19th century. I. Campbell, Lyndsay. II. Title. KF4757.F74 2010 342.7308'73--dc22 2010030053 Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America 00 freyer campbell final 12/28/10 1:09 PM Page v Contents Acknowledgments ix Contributor Biographies xi 1 • Introduction Tony Freyer and Lyndsay Campbell 3 The United States 11 Canada 22 Contributions 28 References 30 I The Shadows of Law: Governance in the Borderlands 2 • Constituting the Free-State Borderlands: New York, Pennsylvania, and Ohio Tony Freyer 35 Ambivalent State Sovereignty and States’ Rights 36 New York 41 Pennsylvania 47 Ohio 54 Conclusion 58 References 60 Appendix —County Population Maps 65 3 • The State the Slaveholders Made: Regulating Fugitive Slaves in the Early Republic Gautham Rao 85 Runaway Regulation: The Public Good 88 “Protecting and Supporting” Private Property Rights 94 Conclusion: Fugitive Slaves and the Early American State 100 References 103 v 00 freyer campbell cx4 12/14/10 9:05 AM Page vi vi CONTENTS Published Cases and Statutes 108 Unpublished Cases 108 Archival Collections 108 4 • Governance in the Borderlands: Upper Canadian Legal Institutions Lyndsay Campbell 109 Upper Canada 111 The Growth of the State 115 Courts 117 Law and Lawyers 120 Institutions of Local Governance 121 Implications for Governance and the Administration of Justice 122 Policing 125 Conclusions: Extradition 130 References 134 5 • British Rights and Liberal Law in Canada’s Fugitive Slave Debate, 1833–1843 Bradley Miller 141 Introduction 141 Imperial Structures and Fugitive Slaves 144 British Justice and British Rights 147 Liberal Law and the Fugitive Slave Question 154 The Imperial and Colonial Reply: Individualism, Liberalism, and Equality 157 Conclusion 165 References 165 II Persons, Places 6 • Constrained Choices: New England Slavery Decisions in the Antebellum Era Aviam Soifer 173 Immediate Freedom? 178 Choice of Law Issues 180 Reprise: Betty’s Case 188 Conclusion 191 References 191 00 freyer campbell final 12/28/10 1:30 PM Page vii CONTENTS vii 7 • The Northern Borderlands: Canada West Lyndsay Campbell 195 Threads in Legal Historiography 199 The Parameters of Citizenship 204 Education 210 The Criminal Justice System 214 The Impact of Prejudice 220 References 220 8 • The Judicial Construction of Whiteness in the Borderlands of the Northwest Territory, 1803–1860 Stephen Middleton 227 References 252 9 • Willis v. Jolliffe: Love and Slavery on the South Carolina–Ohio Borderlands John Wertheimer, Daphne Fruchtman, et al. 257 Amy and Elijah 258 Elijah’s First Will 260 Dr. Brisbane 262 Cincinnati 263 John Jolliffe 266 Elijah’s Second Will 268 The Jacob Strader 269 In the South Carolina Courts: Round One 270 Round Two 273 Round Three 276 Conclusion 279 References 281 Conclusion Tony Freyer and Lyndsay Campbell 285 Index 293 00 freyer campbell cx4 12/14/10 9:05 AM Page viii 00 freyer campbell cx4 12/14/10 9:05 AM Page ix Acknowledgments Many debts are incurred in the creation of such a collection. Lyndsay Camp - bell and Tony Freyer acknowledge the contribution of Harry N. Scheiber and his seminal scholarship on shared sovereignty and federalism as working systems. Our paths first crossed at a conference in honour of Harry at Boalt Hall, at the University of California, Berkeley. Harry, therefore, deserves some credit, but surely no blame, for the existence of this project. We are delighted to dedicate the book to him. We also must thank the American Society for Legal History for the opportunity to assemble the panel in Ottawa in 2008 that brought together many of the various scholars here for the first time and led us to the others. Over the last couple of years, ongoing conversations have improved the collection and deepened our understandings of the various threads running through this complex material. We have both gained from the insights others have supplied into our seemingly endless chapter revisions. Lyndsay owes a considerable debt to Tony Freyer, Constance Backhouse, Brad Miller, Gautham Rao, Mary Stokes, and Patrick Connor for their thoughtful feedback on drafts of parts or all of her chapters, and for their guidance on key issues —and especially to Mary for her quick and detailed responses to questions about local government. Stephen Middleton caused Lyndsay to think not only about what she was saying but about how she was saying it. Lyndsay would also like to thank Jim Phillips for the opportunity to present an earlier version of the chapter on Upper Canadian legal institutions at a meeting of his Toronto legal history group in January 2010: the feedback from that illustrious assemblage of minds was invaluable. Tony is grateful to Lyndsay Campbell for patient and probing readings of his contribution to their book; he also thanks Gautham Rao for an invaluable critique, Jon Ray for research, and Walter Nugent for a helpful reading of an early draft of his chapter. Thanks must also be addressed to the University of Calgary for supporting Lyndsay’s travel to the Archives of Ontario and to the 2009 meeting of the American Society for Legal History in Dallas, where the themes of this vol - ume became clear. For time to write Tony acknowledges the sabbatical for fall 2009, authorized by the University of Alabama’s College of Arts and Science Dean, Robert F. Olin; History Department Chairperson, Michael Mendle; ix 00 freyer campbell cx4 12/14/10 9:05 AM Page x x ACKNOWLEDGMENTS and Vice President-Provost, Judy L. Bonner. For financial support he thanks Law School Dean Kenneth C. Randall, University of Alabama Law School Foundation, and the Edward Brett Randolph Fund. We also thank Keith Sipe for his patient support of the project through bad economic times. Finally, Lyndsay wishes to thank Cullen, Naomi, and Rory for their patient tolerance of this project and its many demands. The passage of time heightens Tony’s gratitude to Edward F. Sherman, whose leadership first revealed the U.S.-Cana - dian borderlands as places more removed from the shadows of war. Lyndsay Campbell, Calgary and Tony Freyer, Tuscaloosa Summer 2010 00 freyer campbell cx4 12/14/10 9:05 AM Page xi Contributor Biographies Lyndsay Campbell is an Assistant Professor at the University of Calgary in western Canada. She teaches in the undergraduate program in Law and Soci - ety and in the Faculty of Law. She holds law degrees from the University of British Columbia, where she practiced briefly and clerked for the B.C. Court of Appeal. She did her doctoral work at the University of California, Berkeley, under the supervision of Harry N. Scheiber. Her dissertation explored the legal and extralegal regulation of expression in Massachusetts and Nova Scotia in the 1820s and 1830s. Recent work has appeared in the Dalhousie Law Review and in The Grand Experiment: Law & Legal Culture in British Settler Societies , edited by Hamar Foster, Ben Berger, and Andrew Buck (UBC Press, 2008). Tony Freyer is University Research Professor of History and Law at the Uni - versity of Alabama. He received the Ph.D. in 1975 from Indiana University. His publications include eleven authored, co-authored, or edited books, including Antitrust and Global Capitalism , 1930 –2004 (Cambridge, 2006), and about sixty refereed book chapters, journal articles, and reviews. He received the Univer - sity of Alabama’s 1991 Distinguished Faculty Award; the Hughes-Gossett Award for the best article in the 2008 Journal of Supreme Court History ; and the 2008 Best Book Award from the Arkansas Historical Association for Little Rock on Trial : School Desegregation and Cooper v. Aaron (1958) (Kansas, 2008). He has taught at the London School of Economics; the University of California, Los An - geles; the University of Arkansas at Little Rock; and Warsaw University. He held senior Fulbright Awards for the United Kingdom (1986), Australia (1993), and Poland (2000); an Abe Award (1994–96) for research in Japan; the Harvard-New - comen Award, 1975–76, at the Harvard Business School; and a Research Fel - lowship Award, 1981–82, at the Charles Warren Center, Harvard University. Daphne Fruchtman graduated from Davidson College in 2009. She ma - jored in History. Stephen Middleton is Professor of History and Director of African Ameri - can Studies at Mississippi State University. He earned the Doctor of Philoso - phy degree in American Constitutional History from Miami University (Ohio). He completed the first year of law school at New York University School of xi 00 freyer campbell final 12/28/10 1:13 PM Page xii xii CONTRIBUTOR BIOGRAPHIES Law where he was a Samuel I. Golieb Fellow in Legal History. His research in- terest involves race and the American legal system. He received the Otto A.

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