Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865. By Christopher Tomlins. New York: Cambridge University Press, 2012. 636 pp. $36.99 paper.

I am indebted to Holly Brewer, Michelle McKinley, Kinch Hoekstra, and Michael Meranze for their considered assessments of Freedom Bound. I thank them of course for their kind words, but also, more importantly, for the questions they have raised. Above all I thank them for the care with which they have approached my work. Taking nothing for granted, their comments dive deeply into the book and engage with it as critically as any I have seen.¹ Unsurprisingly, given their own interests (and this forum) they interrogate the book not simply as history but as legal history—indeed as an attempt to undertake a historicized theorization of law. The result is four commentaries that, collectively, address not only particular details and points of argument, but raise questions at the highest level of scholarly representation and purpose.

To facilitate a response I have chosen to arrange their commentaries on a gradient, as it were, that will move the discussion precisely along a line ascending from legal history as an exercise in socio-cultural inquiry, to history as a means of apprehending law, thence to the theorization of law that history may enable, and finally to the theory that informs this history. I do so in the hope that this will assist me in explaining why Freedom Bound assumed the form I chose for it. Whether I am successful in that larger purpose I will leave for the reader to judge. I hope that I will at least be found responsive to some of the many intermediate questions—that famous middle level!—these readers have raised.

Holly Brewer generously devotes two thirds of her comment to summarizing the book's main themes. Not only does this relieve me from the necessity of doing so, it also allows readers who have not yet encountered the book to enjoy the critical comments of McKinley, Hoekstra and Meranze with some sense of perspective and context. As Brewer explains, Freedom Bound is about how the English colonized early mainland America (the book focuses quite traditionally on the eastern seaboard). More specifically, it is about the centrality of law to the process of colonizing, of labor to colonizing's practical realization, and of both to the nature of the civic identities that resulted. It presents colonizing both as an extrinsic process of intrusion and claim, and as an interior process (an “inside narrative”) of the colonizer's own social and ideological transformation as a result of settlement. It attempts to parse the interaction between these outside and inside stories.

Law and labor have been twinned concerns of mine for thirty-five years of research and across more than half a millennium of Anglo-American history. In Freedom Bound I attempted for the first time to supplement the close readings of case, statute, and treatise law that I have engaged in elsewhere (see, e.g., Tomlins 1985, 1993) with sustained attention to demographic history, namely to the transoceanic migrations—forced and unforced—that founded settler colonies and created laboring populations. Together, law and demography are the twin constituents of what I have termed “the legal culture of work” in early America. Both are highly variable, as Brewer's description indicates; the history of English colonizing is marked by its plurality. I try in particular to moderate a whole series of assumptions about the ubiquity of indentured servitude and the unrelievedly coercive nature of the employment relation in early-modern Anglo-American law that have been baked into early American history.² But the history of English colonizing also has certain clear overarching and interrelated themes—of territorial dispossession and possession, of civic freedom and unfreedom (both in degree and kind), and above all of relentless geographic extension—that discipline its plurality. The plural triptych of law, work, and civic identity is painted on the canvas of those overarching themes.

Brewer's generous summary leaves her space to develop only one searching criticism: in all of this legal, intellectual, sociological, economic, and even literary history, where is the political? Political, that is, in two senses: political as institutional distributions of power, and political as practices consciously intended to effectuate outcomes by mobilizing power. Brewer is not the only critic to raise this question (see Adams 2011) and I think I must concede the point. I will not concede it completely, by any means: the political does have a presence in Freedom Bound. But it is present primarily as structure (jurisdiction) and theory (philosophy-ideology) rather than practices and behavior. In the matter of slavery, I deal with variations among different colonies and regions (and it is not as clear to me as it is to Brewer that slavery in Pennsylvania was so very different from its middle-colonies neighbors—New Jersey and New York—except in numbers) but I do not dwell in any great detail on post-Restoration imperial policy (Tomlins 2010, 426–427). Whether doing so would decisively alter the dialectic of freedom and slavery that Patterson, Morgan and I have inspected must await Brewer's own work on the subject, to which I look forward with anticipation.

Michelle McKinley also draws attention to the matter of slavery, to which her own work on Peru in particular (e.g., McKinley 2010) and Iberian New World colonizing in general brings an important comparative perspective. Her comparative perspective leads her, however, to begin with general comments on the process of colonizing that Freedom Bound describes. I believe the book is as sensitive to McKinley's preferred trope of place/displacement as it is to the sequential “manning, planting, keeping” (borrowed from the elder Richard Hakluyt, a key Elizabethan propagandist of English colonizing), explanation of which dominates Freedom Bound's first 200 pages. For English colonizers, manning (placing populations in claimed territories) and planting (using those territories in English ways) were the basis for successful keeping, both vis-à-vis displaced erstwhile inhabitants and European competitors. Spanish displacements were less categorical, in that indigenous peoples were to be recreated as a subaltern laboring population rather than displaced: a matter of substituting new for existing structures of authority rather than expelling preexisting inhabitants. Historians have begun to develop a comprehensive account of English attempts to recruit an indigenous workforce during the seventeenth and eighteenth centuries (see, e.g., Chaplin 2005; Gallay 2002), and had the English encountered better organized indigenous populations in the northern mainland littoral it is conceivable they would have attempted something similar to the Spanish, in which case the history of the northern mainland might have been less one of the introduction of new populations. But a century of pathogens introduced by Spanish forays into the northern interior and incidental European coastal contacts had resulted in northern mainland indigenous populations far more depleted and disorganized than those subdued by the Spanish a century earlier far to the south (see generally Taylor 2001). The vast majority of the managed laboring populations of the English colonies were migrants and their creole descendants.

Given the variety on display in those migrations McKinley prefers Bernard Bailyn's term, peopling, to my own manning to describe transatlantic population transfers (see Bailyn 1986). Peopling, of course, carries the unfortunate connotation that the regions in question were empty of people before the migrants arrived—I know that is not McKinley's intent but far too much early American history has been written (at least until recently) as if that were actually the case. I needed a different term and took manning from a contemporary source (Hakluyt [the elder] 1585). Although to our ears it is uncomfortably gender-specific, manning's proponents never imagined population transfer confined to men (Hakluyt [the younger] 1584). From the point of view of a book about laboring populations, manning also carries the connotation of working—as for example in the case of a crew than “mans” a ship.

In the history of contact zones, McKinley points out, sexuality has been the subject of considerable recent attention, part of a sustained attempt to recover the history of the subjectivities of managed populations. Why not in Freedom Bound? In part because my overall approach to history in the book is structural and material: my goal was to show an appreciation for a plurality of fragments but also to show how the fragments could be made to coalesce. I do not engage sexuality as terrain to recover relations among subject groups because the overall goal is less one of socio-cultural recovery (telling the stories of subaltern populations) than of large-scale explanation. As I have put it elsewhere (Tomlins 2011b), one of my own quarrels with early American history is that it produces richly particularized studies that are insufficiently generalizable. This is not to say that I ignore subjectivities, because I do not: the second part of Freedom Bound engages with socio-legal circumstance on a progressively more and more “granular” level. But the circumstance on which I concentrate is circumstance relevant to the large themes—of work and of the work of law—rather than to relations within populations as such. Nor do I ignore sex and gender, I simply choose to address both where they matter most in my account—in the construction of civic identity at the level of ideology and political-legal theory rather than in quotidian practice (Tomlins 2010, 335–400).

McKinley's commentary on the similarities between the legalities of indentured servitude that I describe and the Hispanic urban slavery on which she is expert are fascinating, and may well bear extended comparative study. The default legal condition of the indentured servant, of course, was freedom on the expiration of the indenture—though many died in service, and others had their exit deferred by laws that added time to original contract terms to compensate masters for unauthorized departures. The default legal condition of the slave was, in contrast slavery. Where the two conditions appear to stretch toward each other is in the Hispanic practice of labor-only subcontracting and purchased freedom. Was this the case in Anglo-America? Slave self-management—subcontracting—is certainly in evidence on the northern mainland, but it is not clear it was accompanied by opportunities to purchase freedom. Servitude and slavery certainly overlapped, although in aggregate they were chronologically (and, over time, regionally) distinct labor forms. Finally, slaves were certainly to be found in northern mainland urban centers, but in Anglo-America urban slavery was very much “a minority experience in a predominantly rural world” (Morgan 1998: 663).

With Kinch Hoekstra's comments we move a step along my gradient to the history/law interface. Like Brewer, Hoekstra draws attention to my attempts to widen the ambit of English legal argumentation in support of claims to possess the northern mainland beyond the specifically English texts investigated by John Juricek in pioneering work in the 1970s³ to texts with pan-European resonance, specifically the Roman-law inflected work of Francisco de Vitoria and Alberico Gentili. Where Brewer takes me to credit Vitoria and Gentili with creating a doctrine of terra nullius, Hoekstra notes that what I am engaged upon is a critique of that concept, and its rather cavalier invocation by historians of early-modern colonizing, that attempts to turn our attention instead toward the law of war. But Hoekstra finds my intellectual history of early-modern European texts bearing on the legality of New World intrusions too schematic and too one-sided. It is true that the logic of my research was to concentrate primarily on those texts which had a life (or afterlife) in English colonizing discourse—Freedom Bound is, after all, a history of English colonizing, and not framed as comparative history—which means that my discussion of Iberian texts did not do anything like justice to the detail of sixteenth century intra-Iberian debates such as, for example, the famous 1550 disputation between Bartolomé de las Casas and Juan Ginés de Sepúlveda at Valladolid. I did try to deal in depth with those texts—notably Vitoria's—that are imprinted on English discourse, and I want to dissent gently from the implication (intended or not) that I treat Vitoria as a theorist of colonial aggression, because I actually work quite hard (including an extended critical discussion of Tony Anghie's work on the subject—see Anghie 2005; Tomlins 2010, 122–28) to separate Vitoria from that reading. What I do try to show is how Vitorian scholastic analysis from the 1530s turns up in vulgarized form and turned on its head fifty years later when it is pressed into service to create a specifically English discourse of colonizing. Concentration on the transit of ideas rather than their original tempero-spatial locations may indeed create de-contextualized and over-schematic intellectual history, but that is what the English were actually doing at the time—using de-contextualized Vitorian law of nations arguments to write briefs for the legality of their own colonizing practices.

Hoekstra finds my analysis of the law of English colonizing not only schematic but also cynical. I do try not to reduce “complex works of legal theory” to legitimating “tactics”—hence my dissent from his reading of my analysis of Vitoria. I do not assume, however, that early-modern legal texts necessarily have sharp back edges. To posit early-modern law as necessarily double-edged, manifold and multi-directional, seems to me to assess it with a very modern eye. I am more disposed to look first to the empirical instance. I do not wish to appear intolerant of Hoekstra's argument—though at one point I think he stretches a bit.⁴ To go along with him in a way that is also compatible with the thrust of the book, I try to show that the law that furthers English aims and opportunities also furthers freedoms—“every man … master and owner of his owne labour and land” (Tomlins 2010: 338–339)—that outrun in obvious ways the ambitions of projectors of colonies. I describe such freedoms as “the touchstone of Lockean civic modernity.” This both acknowledges their importance but also insists upon their specifically English definition. Here is two-edgedness all right, but appropriately within a specific compass. The specificity of the compass is no less essential a part of the history than the modern desire that law be seen as enabling no less than restrictive, buckler as well as sword.⁵

Clearly Kinch Hoekstra and I have quite different ideas about law, and perhaps also about history. I suppose it is true that the space outside law in the book is “a rare place” (rare indeed!)⁶ “of romantic radical heroism” embodied in a fictive slave who resists slavery and is tortured to death for his pains, and a president who reluctantly but determinedly pursued a war against the slave power. “God help us if these are our models for action,” Hoekstra comments. Certainly, one hopes one might have happier alternatives. But when happier alternatives are not available—well, what's a slave to do? Accept his lot? What was Lincoln's better course of action? Stoically submit? I prefer to endorse the push back—as perhaps my response to Hoekstra's comments indicate! But I also note the great generosity which frames his critique, and it would be churlish not to acknowledge that he has given me much to think about.

As indeed has Michael Meranze! Meranze finds my account of “the material construction and reconstruction of colonial societies and populations” praiseworthy, but his focus is on the bigger game, the critical-theoretical ambitions of the work. Specifically, Meranze focuses on my attempt to write the legal history of English colonizing from a perspective informed by Walter Benjamin's philosophy of history, an attempt to create “a new sort of historical materialist legal history, one simultaneously reductionist and fantastical, overwhelming in its attention [to] law's detail yet dismissive of law's autonomy, sensitive to the political frame of societies yet ultimately skeptical that they make much difference at all.” The attempt is explicit in the book: Meranze has not invented it. I am not entirely happy with his characterization of the attempt, but the larger question is whether he is correct that the attempt fails, that the book is, sadly, flawed.

How is the attempt manifested? It is hinted in the book's Prologue and in epigraphs. Though not fully engaged until the final chapter, it is manifest, structurally, as it were, in the method. My dense attention to demographic detail—the book's material substrate—and to the legalities in which civic identities are expressed is akin to Benjamin's determination in The Arcades Project to locate the origins of socio-cultural institutions “in the economic facts” (Benjamin 1999: 462 [N2a,4]). This sounds like reductionism. It is not. One has to start somewhere and facts are as convenient a starting point as any. But “the economic facts” are not causally related to the meanings (in my case the civic identities) under investigation. Nor, however, are the latter “fantastical.” They do not float free. The relation between civic identities (culture) and demography (the material) is not causal but expressive or “physiognomic”: the meaning of the material aggregate can best be apprehended through its expression in what we can apprehend directly; that is, the legal. In other words, “[i]t is not the economic origins of culture that [is] presented, but the expression of the economy in its culture” (460 [N1a,6]).

Meranze argues that there is a fracture at the heart of the book (a broken-hearted book!). I should be pleased: anyone who aspires to write in a Benjaminian vein knows the distinction Benjamin drew between classical “auratic” artworks and the allegorical art of the Baroque: the former highly resistant to critical intrusion, the latter “broken,” hence open, prefiguring critique, exposing its secrets far more readily (Jennings 1987: 168–178; and see Tomlins 2013). Indeed my resort to allegory in the final chapter, which spins out a relationship between Dred Scott and The Tempest, Taney and Prospero, colonizers and Caliban, to create a beginning and a (momentary) transfigurative end for the book—the romantic radical heroism that disturbed Kinch Hoekstra—is precisely an attempt to expose “secrets” of American history, that is its metaphysics, to which American history's auratic works are indeed highly resistant. Still, no one likes to hear his work is flawed. So let me examine the detail of Meranze's critique.

I do not have major quarrels with Meranze's description of the book, or of its essential inspirations, or indeed of its argumentative tactics. And in my response to Brewer I have already conceded the importance of Meranze's substantive criticism that politics is in some important degree (though by no means entirely) missing. But I am not disposed to concede the fundamental critical-theoretical failing which Meranze reads into the relative absence of his kind of politics.

Meranze describes the rhythm of the book as a movement from dispersion to sameness. I agree. On an occasion well prior to reading Meranze's comment I described it in almost precisely those terms, as a book about the transformation of plurality into sameness (Tomlins 2011a). This is very much a historical process, although not one we necessarily associate with American history, which tends to celebrate the multiplication of diversity. (One cannot help but notice in Meranze's remarks on slavery the assumption that history should be about difference, and that history which is not is “empty.”) The displacement of plurality by similitude is a process that I associate with the birth of the modern—and for me at least this book is about the origins of modern America. The characteristic of modernity, in my view, is the attempt first to state and then to spread, to universalize, sameness. The ideologies of modernity—capitalism, communism, democracy—are precisely ideologies of similitude, whether of production or consumption, or of condition, or opportunity. Modern systems of social thought—classical economics, orthodox Marxism and so forth—are similarly universalizing discourses that hinge on universal solvents. The huge appeal of post-modernism lay, of course, in its deconstruction of endless similitude.

To say that the transformation of plurality into sameness is a historical process is to say that it is a temporal process. This is, therefore, a good place to disagree emphatically with Meranze's contention that Freedom Bound is indifferent to temporality, that, e.g., “in Chapter 7 … when a legal case occurred appears to carry no significance.” If it carried no significance then my demonstration (in Chapter 7) that quitting was not legally encumbered in the eighteenth century but was in the nineteenth—a reversal of normalized assumptions—would be so many wasted pages. And at the general level the movement from plurality to sameness would not be detectable—it would simply be chaos. Freedom Bound is not slavishly chronological but it is temporally organized. Another critic has described it as “a moving equilibrium a quarter of a millennium long” (Adams 2011: 701, emphasis added).

As a matter of research and composition I began with what is now the middle of the book, which I think of as the most conventional—the social and legal history of work and labor. I began there because initially all I wanted to know was whether or not the law of work and labor in early America differed from that of England. I was pretty confident it did and I had already broached the argument in earlier work (Tomlins 1993), but I knew from that earlier work that the question could only really be answered archivally. As I thought about the data I had quarried out of mounds of early American court records, however, I began to encounter questions I could not answer archivally. Why was it different? And how had these people that I was reading about ended up where they were? And so, as is usual with me, I began to work simultaneously sideways and backwards. I moved sideways into the history and demography of migration and labor force composition, and backwards into the origins of English colonizing: the political and legal processes by which colonies were defined, the arguments with which colonizers' intrusions were justified, the plural political economies—metropolitan and colonial, imagined and actual—that resulted.

The “auratic” history of early America is one of overcoming old ways of living and being, usually represented hierarchically. The era of the Revolution and the early republic is usually identified as the greatest moment of overcoming, presaging an unbinding of multiplicitous opportunity. Gordon Wood, for one, has made a career of writing this way (Wood 1969, 1992, 2009). In Freedom Bound, in contrast, I stress the plurality of early modernity and of Anglo-America. I represent that plurality as something that begins turning toward the sameness of modernity during the early eighteenth century in England, during the late eighteenth and early nineteenth in America.⁷ But this was not the sameness of equality (or opportunity), it was the sameness of relation, notably of contractualism. And contractualism is in my view a highly massaged discourse of relation that coexists easily with profound hierarchies—of class, of race and ethnicity, of gender, and of age—that contain, hem in, the possibility of egalitarianism.

I knew that eventually I would have to find my endpoint, so that I could hold the entire research enterprise in my mind and know it was indeed one structure that belonged together. For too long the book seemed to me too much like distinct pieces jostling together uneasily. And so the last, allegorical, chapter is an attempt to recover the book's material wholeness and, simultaneously transcend it—to hack into American history and expose its secrets and their metaphysical potential. To do so I use Dred Scott to stand for the simultaneity of law with colonizing, and Lincoln's rejection of Dred Scott to stand for law's (momentary but momentous) transfiguration—an “epistemological break” instated by revolutionary violence. I analogize Dred Scott to The Tempest and to a companion, less well-known Jacobean masque, and the latter to Benjamin's Critique of Violence. I explain to the reader that I am engaged in allegory, that is, that these various texts gathered from the beginning and the end of the epoch with which I am concerned and assembled in a single configuration, are signifiers that point outside themselves. My hope is that readers will see that they point precisely at the history they have been reading, and that they recreate that history in the form of a constellation in which the reader—who I address directly in the book's last two paragraphs—is also present, in the “now” of reading. This is, of course, a Benjaminian ambition.

Meranze certainly senses the intent. Near the beginning of his critique Meranze refers to a formulation of what would become one of Benjamin's best known theses on the concept of history, and he is correct that it is crucial to my attempt to write the history of law as a materialist legal history: “The historical materialist blasts the epoch out of its reified ‘historical continuity,’ and thereby the life out of the epoch, and the work out of the lifework. Yet this construct results in the simultaneous preservation and sublation [Aufhebung] of the lifework in the work, of the epoch in the lifework, and of the course of history in the epoch” (Benjamin 2002: 262). The “blasting out” is, I hope, apparent in my description of the book's final chapter. At the end of his critique, however, Meranze comments that I have failed to achieve the Benjaminian project of preserving the life, the life-work, and the epoch. But the Benjaminian project is not preservation, it is preservation and sublation—the Aufhebung (preservation/destruction, transcendent resolution) of the Hegelian dialectic—in constellation. Nor is it to preserve (and sublate) the life, the life-work, and the epoch, but the lifework in the work, the epoch in the lifework, and the entire course of history in the epoch; in other words, the work, like an inverted Babushka doll, contains the entire course of history. That is why in Benjamin's last formulation of the idea Meranze references (I can quote Benjamin too) the passage Meranze draws to our attention is preceded by the following: “Thinking involves not only the movement of thoughts but their arrest as well. Where thinking suddenly comes to a stop in a constellation saturated with tensions, it gives that constellation a shock, by which thinking is crystallized as a monad. The historical materialist approaches a historical object only where it confronts him as a monad. In this structure he recognizes the sign of a messianic arrest of happening, or (to put it differently) a revolutionary chance in the fight for the oppressed past” (Benjamin 2006: 396 [xvii], emphasis added). This is the theory of the book. It gains its final expression in the sprung of the tensions of the final chapter where the endless sameness Taney offers meets Lincoln's retort—a revolutionary civil war. I see no fracture here, nor an elderly judge mistaken for a theoretician.⁸

I have argued the point vigorously because it is important to me. But I quite concede that it may not be important to the reader, so I hope that the comments of Brewer, McKinley and Hoekstra demonstrate that it is quite possible to understand Freedom Bound, to engage with it, criticize it, even (I hope) enjoy it—without having the least interest in the Benjaminian arcana that enthuse Michael Meranze and me. It remains only for me to thank all of the readers once more. Simply by devoting their time and energy to my book they have paid me the highest possible compliment.