Jeannine Marie DeLombard, English Department, University of Toronto
(From book manuscript in progress. Please do not quote without permission from the author.)
VI. Be it further enacted, That no negro, mulatto, or indian, either a slave or free, shall hereafter be admitted in any court of this colony, to be sworn as a witness, or give evidence in any cause whatsoever, except upon the trial of a slave, for a capital offence […]
“An Act […] to disable certain Persons […] to be Witnesses,” May 1732,
William Waller Hening, The Statutes at Large; Being a Collection of all the Laws of Virginia (1820)
I remember the first time I ever witnessed this horrible exhibition. […] It was the first of a long series of such outrages, of which I was doomed to be a witness and a participant.
Frederick Douglass, Narrative of the Life of Frederick Douglass,
An American Slave, Written by Himself (1845)
I want to add my testimony to that of abler pens to convince the people of the Free States what Slavery really is.
At a time when blacks were prohibited from testifying against whites in many American courtrooms, what did it mean for former slaves to present themselves as “witness[es]” and their narratives as “testimony” to “what Slavery really is”?
That is the question that gave rise to the present study.
From Cotton Mather’s 1721 pamphlet sermon for a“Miserable African, just Going To Be Executed for a most Inhumane and Uncommon Murder” to the extensive press coverage of hearings involving Anita Hill, Clarence Thomas, Rodney King, and O.J. Simpson in the 1990s, American print culture has evinced — and encouraged — a fascination with extralegal narratives of race and justice. For, whether telling the story of convicted wife-murderer Joseph Hanno (Mather’s “miserable African”) or brutalized L.A. motorist King, these accounts speak to larger concerns about the meaning of citizenship — and civic exclusion — in a constantly changing “America.” Extending from the colonial era to the present, such concerns were particularly pressing in the three decades before the Civil War. And nowhere, perhaps, did the ideals of Jacksonian democracy clash so starkly with the reality of slavery as in the era’s most infamous court case, Dred Scott v. Sandford (1857), in which Supreme Court Chief Justice Roger B. Taney ruled that African Americans “had no rights which the white man was bound to respect.”1 But even as Dred Scott marked the nadir of African-Americans’ legal status prior to Emancipation, the antebellum period saw unprecedented authority and credibility granted to the black voice outside the courtroom. Tracing “the quest for black authority — for an authoritative literary persona and a distinctive black perspective” from 1680 to the Civil War, Dickson Bruce finds that “the distinctive claim of African Americans to an authoritative voice” is “most clearly conveyed in the narratives of fugitive slaves” that appeared in the late 1830s and early 1840s (xi, 238-39).
The particular fascination that the intersection of race, law, and print culture exerted in the antebellum period arose from two complementary sets of circumstances. The era saw the development of a widely circulated Penny Press that throve on the era’s sensational legal scandals, such as the trials of Reverend Ephraim Avery in the highly suspicious death of New England mill girl Sarah Cornell (Halttunen 72, 89, 229) and of clerk Richard P. Robinson for the arson-murder of New York prostitute Helen Jewett (P. Cohen). At the same time, the emergence of a national anti-slavery movement gave rise to an abolitionist print campaign which in turn devoted thousands of pages of print to the seemingly endless legal crises involving slavery, from the 1831 trials of slave insurrectionist Nat Turner and abolitionist editor William Lloyd Garrison to the 1859 treason trial of John Brown. In a cultural climate where “Robinsonian Juntos” sported cloaks and hats in the style of the Jewett murder suspect and crowds vied for a splintered “relic” of the murdered prostitute’s charred footboard (P. Cohen 302-304), the similarly sensational legal crises involving slavery did not go unnoticed. Quite the contrary: the defendants in the Amistad murder trials were featured in phrenological profiles; the Anthony Burns fugitive slave case became the basis for a patent medicine advertising slogan; and the guestbook for Pennsylvania’s Moyamensing Prison recorded more than five hundred visitors for abolitionist martyr Passmore Williamson.2 And just as the murder of “beautiful cigar girl” Mary Rogers inspired Edgar Allan Poe’s “The Mystery of Marie Roget” (1842-43), the legal crises of slavery generated fiction of their own, from Harriet Beecher Stowe’s Uncle Tom’s Cabin (1852) and Dred (1856), to now-forgotten novels like F.C. Adams’ Manuel Pereira; or, The Sovereign Rule of South Carolina. With Views of Southern Laws, Life, and Hospitality (1853) and William O’ Connor’s Harrington (1860).
If, as one former editor feared, expanded press coverage of all manner of legal events made antebellum print culture a “Typographical Tribunal” (Wilmer 237), significant changes in American jurisprudence provoked extensive extralegal commentary. In particular, the growing professionalization of the bar and bench, heightened controversy over the respective powers of judges and juries, and an increasingly complex, adversarial trial structure overlaid popular scrutiny of the era’s courtroom dramas with broader legal and political significance. Here again, abolitionists joined the fray by linking these legal controversies to the debate over slavery. Thus, anti-slavery lawyer Lysander Spooner’s Essay on the Trial by Jury (1852) mounted a flank attack on the Fugitive Slave Law, while lawyer and literary abolitionist Richard Hildreth weighed in on a particularly infamous slave case by publishing an American edition of Atrocious Judges: Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression. Compiled from the Judicial Biographies of John Lord Campbell, Lord Chief Justice of England — “With an Appendix Containing the Case of Passmore Williamson”(1856).
It is in such print and legal contexts that we need to understand the witnessing posture of former slaves like Frederick Douglass and Harriet Jacobs. For the testimonial rhetoric of the slave narrative was only one part of an elaborate juridical metaphor by which antebellum Americans — especially, but not exclusively, abolitionists — structured the national debate over slavery. Imagining that debate as occurring in a vast courtroom, those who deployed the trope figured slavery as a crime, slaveholders as perpetrators and defendants, abolitionists as advocates for the slave, and slaves as victims and eyewitnesses. The primary purpose of this study will be to consider the implications of this pervasive and remarkably resilient metaphor for antebellum cultural production, with particular attention to literary abolitionism.
If the juridical metaphor’s rhetorical power derived from the real-life legal dramas and debates that pervaded antebellum print culture, its convenience lay in its orderliness and legibility: most Americans, regardless of education or background, would have been familiar with the basic elements of the criminal trial (see D. Cohen 37). The order that the juridical metaphor imposed on the debate over slavery was, however, a deeply equivocal one. For even as the trope appeared to offer a model for interracial collaboration and the black civic agency so persistently denied by American law, it also threatened to circumscribe that agency by subordinating the public contributions of African-American “witnesses” to that of their white “advocates.”
Depicting the slavery controversy as a vast, ongoing trial offered a way around many of the challenges facing organized abolitionism. The national anti-slavery movement that began in the early 1830s centered on the Garrisonian goal of the immediatism. But as the movement’s early rejection of the emigrationist and colonizationist agendas of previous anti-slavery efforts suggests, the abolitionist project raised larger questions about the place of African Americans — slave and free — in American society. It was impossible, as commentators since Thomas Jefferson had acknowledged, to address the problem of slavery without simultaneously addressing the status of free people of color in the American polity. Questions of race as well as slavery were at the forefront of many abolitionists’ minds largely because theirs was the first large-scale national reform movement in which blacks and whites collaborated closely for political and social change. Such collaboration required a series of complex, and often unspoken, negotiations of shared public space, from hotel rooms, dinner tables, and steamship decks to lecture stages, newspaper columns, and book pages (Henkin 122-23). The racial division of this discursive space intensified in the late 1830s and early 1840s, with the increasing public involvement of African-American agents on the anti-slavery lecture circuit and the emergence of the slave narrative as popular genre of literary abolitionism. In a movement that devoted a disproportionate amount of its resources to print, collaboration could easily become competition — for readers and sales as well as for authority and recognition.
Because the juridical metaphor effectively assigned each of the participants a specific position from which to enter the controversy, it appeared to reduce the need to negotiate the slavery debate’s discursive spaces. At the same time, the figure provided an important model for black civic agency by emphatically rejecting legal restrictions on African-American procedural rights. In practice, however, by offering black and white abolitionists equally central — but nonetheless racially demarcated — roles in the debate, the trope contributed to what Bruce has characterized as the “reinscription of race within abolitionism,” a process in which white activists, even while “celebrating racial equality, nevertheless reinforced ideas of racial difference” (215, 219). In particular, even as the prevalent emphasis on the testimonial quality of former slaves’ contribution to the slavery debate provided a platform for black political participation, it limited formerly enslaved African American abolitionists to that comparatively confined, racialized discursive space. The juridical metaphor thus provided a highly vexed means by which to structure interracial discursive relationships both within the anti-slavery movement and in the larger controversy.
In order to understand how both abolitionists and apologists for slavery simultaneously adopted and contested the juridical metaphor in their literary contributions to that debate, it is necessary to appreciate the specific meanings attached to the roles assigned to each within that trope. Viewing each of these roles from the perspective of legal history, as well as from the vantage point of specific legal crises over slavery, Chapter One examines what it meant for formerly enslaved black “witnesses” and their Northern white “advocates” to meet “the perpetrators of slaveholding villainy” at the bar of public opinion (Douglass, Bondage 367). A legal historical approach is crucial here because, by the nineteenth century, both the structure of the criminal trial and the meanings of crime and race had undergone profound transformation in American jurisprudence — changes that, in turn, inflected the very juridical rhetoric that structured the print debate over slavery. [NB: A draft of this chapter is available in the longer 60 pp. version of this paper distributed to ILH Workshop members.]
Taking early articulations of juridical rhetoric by fledgling anti-slavery editor William Lloyd Garrison as its point of departure, Chapter Two examines how, through such rhetoric, the anti-slavery movement exploited antebellum print culture’s sensationalist fascination with legal spectatorship even as it sought to reanimate the moribund values of an earlier republican print culture. Appealing to the adjudicative role of the reader and the supervisory role of the press, this juridical rhetoric resonated with the broader concern that a tyrannous judiciary was usurping the authority of democratic juries. Throughout the antebellum period, from the cluster of pamphlets published in response to Garrison’s 1830 libel trials to the flurry of publications that attended Boston’s fugitive slave crisis of the 1850s — including, most notably, Henry David Thoreau’s “Slavery in Massachusetts” (1854) — abolitionists urged the Northern reading public to consider the press as an alternative to the corrupt legal system — as, in effect, an appellate court of public opinion.
By the 1840s, testifying former slaves had become ubiquitous on the abolitionist lecture circuit and in the anti-slavery press. Not surprisingly, it is the exemplary Narrative of the Life of Frederick Douglass, an American Slave, Written by Himself (1845) that most fully develops the ex-slave’s self-fashioning as witness. Juxtaposing Douglass’ depiction of an eye injury young Frederick receives from a brutal beating and Ralph Waldo Emerson’s well-known figure of the “transparent eyeball,” Chapter Three contrasts the embodied subjectivity of the African-American author with the universal subjectivity available to the Transcendentalist poet. In both Garrisonian abolitionism and Emersonian Transcendentalism, I suggest, metaphors of sight are central to the project of American authorship. But, drawing on theories of vision and visuality to complicate a Foucauldian understanding of subjectivity, I suggest that whereas vision produces transcendence for the implicitly white, male, bourgeois universal subject figured by Emerson’s “transparent eyeball,” for the formerly enslaved African-American author cast as “eye-witness to the cruelty” of Southern slavery, vision only reinforces his or her vexed corporeality in the Northern court of public opinion. Thus, in close readings of a series of witnessing scenes in the Narrative, I demonstrate how Douglass draws on the juridical metaphor only to reject his position in that metaphor on the final page of his text, when he exchanges the metonym of authorship from eye to voice and thus begins to shed the role of witness in order to claim that of advocate — a role that had traditionally been reserved for his white colleagues in the anti-slavery movement.
That a white reformer like Harriet Beecher Stowe also felt ambivalent about the racial hierarchy the juridical metaphor imposed on antebellum anti-slavery discourse is evident in her post-Uncle Tom’s Cabin literary abolitionism. Chapter Four highlights the increasingly legal emphasis of Stowe’s anti-slavery writing in the 1850s to argue that Stowe’s critically neglected second anti-slavery novel reflects its author’s profound ambivalence about both black speech and white claims to represent that speech. With the character of Edward Clayton, a slaveholding lawyer whose only clients are slaves, Dred conflates the roles of two of the central figures in the juridical metaphor, suggesting that the paternalism of the Southern apologist for slavery is not far removed from that of the sympathetic white advocate for the slave. Analyzing the novel’s portrayal of a series of interracial legal partnerships, the chapter suggests that Dred reflects Stowe’s growing awareness that white advocacy and black testimony often worked at cross-purposes, with the former frequently containing and curtailing the latter. Such a reading is encouraged by Stowe’s decision to include slaveholding lawyer Thomas R. Grey’s ventriloquized Confessions of Nat Turner (1831) in Dred’s appendix. Contrasting Dred with Frederick Douglass’ “The Heroic Slave” (1853), the chapter contends that although the novel registers the restriction of black discursive autonomy, it nevertheless reinscribes that restriction through its own unsatisfactory conclusion, in which white paternalism effectively suppresses African-American speech and black political action.
A proslavery novel published in the same year as Dred illustrates both the pervasiveness of the juridical metaphor and the extreme reluctance of Southern apologists to frame their own contributions to the slavery controversy within its logic. With White Acre vs. Black Acre. A Case at Law (1856), DeBow’s Review editor William McCreary Burwell parodies the trope by allegorizing the sectional struggle over slavery as a court case between abolitionist White Acre and slaveholding Black Acre. As Chapter Five suggests, by imagining the case before the court of public opinion as a civil as opposed to a criminal suit, Burwell’s allegory reinforces sectional claims that slavery was primarily a question of economics (specifically that of Southern property rights versus Northern greed), thus rejecting Northern efforts to depict the South’s “peculiar institution” as a crime against God and man. Indeed, leveling the counter-accusation of barratry, champerty, and maintenance, the novel suggests that the case against slaveholders should be dismissed altogether, as an undue imposition on the popular tribunal.
The debate over slavery ended not through a judicial decision, but with the bloodiest war in American history. The book concludes, therefore, with a close reading of the representation of John Brown’s invasion on Harper’s Ferry as it appeared in Frank Leslie’s Illustrated Newspaper over the winter of 1859-60. Analyzing the newspaper’s quasi-military portrayal of the insurrection and its exhaustive coverage of the trials of Brown and his co-conspirators, I conclude this study by suggesting that, at the close of the antebellum period, the apparent failure of the American legal system to dispense justice demonstrated the necessity to the Northern reading public of a military, rather than legislative or judicial, response to the problem of slavery.
In the thirty years that separated William Lloyd Garrison’s libel trial from the treason trials of the Harper’s Ferry insurgents, former slaves, white abolitionists, and apologists for slavery all registered profound disease with the juridical metaphor in their literary contributions to the debate over slavery. Tellingly, however, in their writing Douglass, Stowe, and Burwell consistently sought to revise the trope, destabilizing it rather than discarding it altogether. These revisions offer competing visions of American citizenship by imagining different forms of civic inclusion — or exclusion — for African Americans. For Burwell, as for legislators and judges both South and North, the impossibility of black civic agency renders African-American citizenship inconceivable. Despite her highly self-conscious ambivalence, Stowe, too, seems incapable of imagining a civic identity for African Americans that does not depend for its existence upon white paternalism. But it is precisely his recognition of the urgent need for such black political autonomy that ultimately leads Douglass to seek to exchange the role of anti-slavery witness for that of abolitionist advocate.
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The remainder of the Introduction (not distributed to workshop members) reviews relevant scholarship in African-American Studies, American Studies, legal history, and critical race theory. The introduction then concludes by analyzing the iconography of the courthouse in representations of slavery in antebellum newspapers, engravings, fiction, and courtroom testimony.
The longer version of this paper distributed to workshop members includes the complete first chapter of the book, which examines each of the roles assigned to disputants in the slavery controversy in the light of nineteenth-century jurisprudence, paying particular attention to the rhetorical challenges the trope posed for black advocacy and Southern defenses of slavery. Combining literary critical and legal historical approaches in its analysis of the various components of the juridical metaphor (e.g., ex-slave testimony, abolitionist advocacy), the chapter opens by addressing how figurative invocations of the law intersected with more familiar aspects of anti-slavery rhetoric grounded in evangelical moral suasion and Enlightenment philosophy.
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Barber, John W. A History of the Amistad Captives: Being a Circumstantial Account of the Capture of the Spanish Schooner Amistad, by the Africans on Board…. New Haven: E.L. and J.W. Barber, 1840.
Bruce, Dickson D., Jr. The Origins of African American Literature, 1680-1865. Charlottesville: UP of Virginia, 2001.
[Burwell, William McCreary.] White Acre vs. Black Acre: A Case at Law, Reported by J.G., Esq., A Retired Barrister, of Lincolnshire, England. Richmond, 1856.
Cohen, Daniel A. Pillars of Salt, Monuments of Grace: New England Crime Literature and the Origins of American Popular Culture, 1674-1860. New York: Oxford UP, 1993.
Cohen, Patricia Cline. The Murder of Helen Jewett: The Life and Death of a Prostitute in Nineteenth-Century New York. New York: Vintage-Random House, 1998.
Douglass, Frederick. My Bondage and My Freedom. 1855. Autobiographies. Ed. Henry Louis Gates, Jr. New York: Library of America, 1994. 103-452.
———. Narrative of the Life of Frederick Douglass, an American Slave, Written by Himself: Authoritative Text, Contexts, and Criticism. Ed. William L. Andrews. New York: W.W. Norton, 1997.
Halttunen, Karen. Murder Most Foul: The Killer and the American Gothic Imagination. Cambridge, MA: Harvard UP, 1998.
Hening, William Waller. The Statutes at Large; Being a Collection of All the Laws of Virginia, from the First Session of the Legislature, in the Year 1619. Vol. IV. Richmond, 1820.
Jacobs, Harriet A. Incidents in the Life of a Slave Girl, Written by Herself. Ed. Jean Fagan Yellin. Cambridge, MA: Harvard UP, 1987.
Mather, Cotton. Tremenda. The Dreadful Sound with which the Wicked Are To Be Thunderstruck. In a Sermon Delivered unto a Great Assembly, in which Was Present, a Miserable African, Just Going to be Executed for a most Inhumane and Uncommon Murder. Boston, 1721.
Stowe, Harriet Beecher. Dred: A Tale of the Great Dismal Swamp. 1856. Ed. Judie Newman. Exeter: Edinburgh UP, 1999.
———. Uncle Tom’s Cabin: Authoritative Text, Backgrounds and Contexts, Criticism. Ed. Elizabeth Ammons. New York: W.W. Norton, 1994.
Von Frank, Albert J. The Trials of Anthony Burns: Freedom and Slavery in Emerson’s Boston. Cambridge, MA: Harvard UP, 1998.
Wilmer, Lambert A. Our Press Gang; Or, A Complete Exposition of the Corruptions and Crimes of the American Newspapers. Philadelphia: J.T. Lloyd, 1859.
1 Scott v. Sandford 60 U.S. 393, 407 (1857), cited in Higginbotham 6.
2 Barber 9-15; Von Frank 173. The Moyamensing register is in the Chester County Historical Society. My thanks to Phillip Lapsansky of the Library Company of Philadelphia for calling this document to my attention.