Literature and Law English 391

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Writing About Race in Nineteenth-Century America:

Literature and Law

English 391

Spring 2003 Instructor: Terry Oggel TTh 12:30-1:45pm; Bus 3142 Office: Hibbs 348 Office Hours: TTh 2-3:15pm Phone: 828-1331

The Americans with Disabilities Act of 1990 requires Virginia Commonwealth University to provide a "reasonable accommodation" to any individual who advises us of a physical or mental disability. If you have a physical or mental limitation that requires an accommodation or an academic adjustment, please arrange a meeting with me at your earliest convenience.

Texts for Required Reading

Boucicault, Dion. The Octoroon (1859) in Nineteenth-Century American Plays. Ed. M.

Matlaw. Applause, 1985.

Chesnutt, Charles W. The Marrow of Tradition (1901). Penguin, 1993.

Stowe, Harriet B. Dred (1856). Penguin, 2000.

Tourgée, Albion. A Fool’s Errand (1879). Waveland, 1991.

Twain, Mark. Pudd’nhead Wilson and Those Extraordinary Twins (1894). Ed. S. Berger.

Norton, 1980.

On VCU Reserve

Accomando, Christina. “The Regulations of Robbers”: Legal Fictions of Slavery and

Resistance. 2001.

Buck, Paul. Road to Reunion: 1865-1900. 1937.

Davis, Mary Kemp. Nat Turner Before the Bar of Judgment: Fictional Treatments of the

Southampton Slave Insurrection. 1999.

Dred Scott v. Sandford: A Brief History with Documents. Ed. P. Finkelman. 1997.

Dred Scott v. Sandford (1857) in Cases Argued and Decided in the Supreme Court of the

United States (U.S. Supreme Court Reports). Vol. 60: 691-795.

Finkelman, Paul. Slavery and the Founders: Race and Liberty in the Age of Jefferson.


Harris, Robert J. The Quest for Equality: The Constitution, Congress and the Supreme

Court. 1960. Rpt. 1977.

Kluger, Richard. Simple Justice: The History of the Brown v. Board of Education and

Black America’s Struggle for Equality. 1987.

Logan, Rayford. The Betrayal of the Negro. 1965.

Logan, Shirley Wilson. “We Are Coming”: The Persuasive Discourse of Nineteenth-

Century Black Women. 1999.

Miller, Loren. The Petitioners: The Story of the Supreme Court of the United States and

the Negro. 1966.

The Thin Disguise: Turning Point in Negro History. Plessy v. Ferguson: A Documentary

Presentation (1864-1896). Ed. O. Olsen. 1967.

Paulson, Ross Evans. Liberty, Equality, and Justice: Civil Rights, Women’s Rights, and

the Regulation of Business 1865-1932. 1997.

Plessy v. Ferguson: A Brief History with Documents. Ed. B. Thomas. 1997.

Slavery and the Law. Ed. P. Finkelman. 1997.

Stokes, Mason. The Color of Sex: Whiteness, Heterosexuality, and the Fictions of White

Supremacy. 2001.

Sundquist, Eric. To Wake the Nations. 1993.

With Pen and Voice: A Critical Anthology of Nineteenth-Century African-American

Women. Ed. S. Logan. 1995.

Other Resources


Reference (non-circulating)

In print:

Landmark Briefs and Arguments of the Supreme Court of the United States: Constitu-

tional Law. Eds. P. Kurland and G. Gasper. Vol. 3 (Dred Scott), Vol. 13 (Plessy).
Supreme Court Reporter. Vol. 3 (“The Civil Rights Cases”), Vol. 16 (Plessy).

[N.B. Regarding these two: VCU does not at the moment have “The Civil Rights Cases” in the Landmark Brief series, though that volume has been ordered and might be here by the beginning of spring semester. The Supreme Court Reporter series does not go back as far as Dred Scott.]

Great American Trails. Ed. E. Knappman. 1994.

United States Supreme Court Decisions: An Index. 2nd ed. Ed. N. Guenther. 1983.
On microfiche:

United States Reports. Vol. 60 (Dred Scott), Vol. 109 (“The Civil Rights Cases”), Vol.

163 (Plessy). Found in Government Documents microfiche, currently located on the

second floor in Periodicals (call number Ju 6.8).  The fiche is in a black metal fiche

cabinet, around the corner to the left behind the service desk. There are microfiche

reader/printers in that room as well. (At the moment, one of the cards for Dred Scott is

missing. A replacement it is on order.)


Blee, Kathleen. Women of the Klan: Racism and Gender in the 1920s. 1991.

For convenience and cost, we will use on-line versions for the texts of the decisions of

the cases we will study. We will access them from LexisNexis, via VCU Libraries

homepage. The LexisNexis text is fundamentally the “United States Supreme Court

Reports” (Lawyers’ Edition) text, though each of the non-electronic versions of U.S.

Supreme Court decisions (available at both VCU and UR) has additional valuable

information not included in the LexisNexis version. Consulting these print forms

would be valuable.

At the University of Richmond law library

Reference (non-circulating)

Landmark Briefs and Arguments of the Supreme Court of the United States: Constitu-

tional Law. Eds. P. Kurland and G. Gasper. Vol. 3 (Dred Scott), Vol. 8 (“The Civil

Rights Cases”), Vol. 13 (Plessy).

Cases Argued and Decided in the Supreme Court of the United States [“United States

Supreme Court Reports”]. Lawyers’ Edition. Book 15 (Dred Scott), Book 27 (“The

Civil Rights Cases”), Book 41 (Plessy).

Supreme Court Reporter. Vol. 3 (“The Civil Rights Cases”), Vol. 16 (Plessy).

United States Reports…. Vol. 60 (Dred Scott), Vol. 109 (“The Civil Rights Cases”), Vol.

163 (Plessy).

United States Statutes At Large. Fugitive Slave Act, approved 18 Sep 1850 (Vol. IX:

462-465); Kansas-Nebraska Act, approved 30 May 1854 (Vol. X: 277-290); Civil

Rights Act, approved 1 Mar 1875 (Vol. XVIII, pt. 3: 335-337).

Readings in the Philosophy of Law. Ed. John Arthur and William Shaw. 1984.


This Course Description and its accompanying Course Outline will be distributed in class in print form. They will also be available on my Website,, where they will be updated during the semester as necessary.


This class, in conjunction with my other classes this spring on the same theme, will be connected via e-mail for discussions and for dissemination of information. In effect, we’ll form our own mini-listserv. By e-mail, I’ll forward to you Websites focusing on people, events and texts both literary and legal that are relevant to our study.
Course Description

This course will investigate issues of race as they were treated in two modes of writing—legal and literary—during the second half of America’s nineteenth century, the period when the United States moved from slavery through Reconstruction to post-Reconstruction. Selected federal laws and U.S. Supreme Court decisions will be studied and discussed in class, from the Compromise of 1850 and Dred Scott v. Sandford (1856) to Plessy v. Ferguson (1896), and including, among others, the Emancipation Proclamation (1863) and three Constitutional Amendments—13 (1865), 14 (1868), and 15 (1870). Alongside these legal texts, prominent literary engagements with race will be examined, from Harriet Beecher Stowe’s novel Dred (1856) and Dion Boucicault’s play The Octoroon (1859) to Charles W. Chesnutt’s novel The Marrow of Tradition (1901). Familiarity with Stowe’s Uncle Tom’s Cabin (1852) and Twain’s Adventures of Huckleberry Finn (1885) would be a plus, since they are major points of reference in a study of this topic, but it is not assumed.

The focus of the course will not be only on individual texts in both modes but also on the interplay between texts in the two modes—the influence of one on the other, or the parallels and analogs between the two modes. For example, imaginative worlds dealing with race after the Compromise of 1850 and its Fugitive Slave Act will be much different than ones before that turning-point—characters and events will reflect this change, as will narratorial tensions and anxieties. As part of this, we will compare law’s use of language with literature’s, asking, What does law try to do? What literature? The idea of duality is an example: during the last half of the nineteenth century, the U.S. Supreme Court interpreted the Constitution to authorize different citizenship rights for individuals on the state and on the national levels. This same theme might be treated imaginatively in literature by tropes in language, with disguises, and with characters of mixed bloods and crossed-genders. Such interaction between the two modes of writing is elsewhere shown by explicit references in literature to specific laws like the Fugitive Slave Act of 1850 and the Nebraska-Kansas Act of 1854. Among the several legal writings in the course, we will focus on the Dred Scott and the Plessy Supreme Court decisions—both the decisions themselves (including concurring and dissenting opinions) and, for Plessy, the briefs filed with the Court for oral arguments, as well.
Speaking of “legal writing”—what does that mean? For this course, by “legal writing” we’ll mean four categories of legal documents: the Constitution and its Amendments, legislation passed by the U.S. Congress [“Acts”], decisions by the U.S. Supreme Court together and the arguments leading up to those decisions, and presidential proclamations.
In addition to reading and discussing the required literary and legal texts, students will engage in independent research and writing. There is a good deal of relatively uncharted territory here. For instance, students will be encouraged to pursue intertextuality of a sort opposite to what I suggest above; that is, of the influence of literature on law. Or to consider the possibility that social class might have been used nearly interchangeably with race as a legal and literary determinant, sometimes employed as a camouflage to hide underlying racial prejudice. Or to examine the ways that burgeoning capitalism affected the largely Northern U.S. Supreme Court’s consistently conservative decisions during the period. Or to investigate the striking emphasis on gender in the period: for example, what role(s) did white women play in establishing and enforcing laws and social conventions about race; what role(s) did black women play in “racial uplift”? Or to delve into the extraordinary way organized religion contended with the matter of slavery and its aftermath. As appropriate, individual classes will feature student-led discussions and reports on students’ reading and thinking.
At least four major public events of the period (besides the Civil War itself) will also receive attention: Nat Turner’s Rebellion (1831), the Mexican War (1846-48); John Brown’s raid at Harper’s Ferry and his trial and execution in 1859; and the Atlanta Cotton Exposition of 1895.
As ancillary events, the course might include two field trips, one to the U.S. Supreme Court in Washington, D.C., for a day’s hearings when the Court resumes sessions in January; and in the spring, a day’s visit to Harper’s Ferry.

Methods, Objectives and Requirements

By way of a reminder: this is one of three courses on the same topic that are involved in this joint enterprise this spring semester—a junior-level topics course, a senior seminar and a graduate seminar. There will be some overlap, with all three courses reading some of the same texts, but there will be differences, too, both quantitative and qualitative, with different texts, different assignments and different requirements.
This course will begin by studying the U.S. Constitution, paying particular attention to the way it treats race and related issues—property, voting rights, and the like—not only in the first ten Amendments (“Bill of Rights”) but, just as importantly, in the document itself. Our work takes off from this—everything we study will be in the context of the Constitution. Besides that document, the legal writings we will study are modifications of it (Amendments), Acts of Congress made in presumed compliance with it, Supreme Court decisions interpreting (adjudicating) it, or presidential proclamations enforcing it. The literature we will study is within that same context, though the literary approach is very different.
Our primary focus will be on literature in the context of law. To gain a grasp of that context, we will study selected legal writings and touch on their
contexts—social, political and military. When we examine legal and literary writings, we will read between the lines, looking for attitudes and predispositions, looking for meanings that are disguised and camouflaged, listening to silences—for what isn’t said. The legal writings are carefully conceived and written—they have social and political purposes and in their own way they approach art in their craftedness. Gradually through the semester, we will gain a firmer grasp of both modes and will find ourselves making comparative observations. By this intertextual method, we will become more sophisticated readers of literature and of its interrelatedness with another, contemporary mode of writing and thinking. We will understand the profound role race has had on the development of America in the nineteenth century (and lasting unto today), even when race seems not to be an issue.
For this course to succeed, students will need to be prepared for each class and then they will need to participate. Class participation by everyone will be crucial. There will be lecturing, but as much as possible the emphasis will be on the exchange of ideas among students. Students will have the opportunity to make oral presentations in class; segments of some meetings will be led by students, alone or in groups of two or three. Needless to say, class attendance is required. Missed classes must be explained, in advance when possible and afterwards when not. As a policy, missed work cannot be made up.
By about one-third of the way through the semester, students should begin to focus on some aspect of the course’s core topic for their independent research. This will develop with guidance from the instructor. Students are encouraged to consider a broad range of areas to study. Focusing on literature and race or literature and law and race is fine. Finding other combinations is tempting, too: there are many possibilities, including gender, class, economics, religion, industrialism, politics, immigration, Native Americans and many others. The literature of the time reflects it all. The only requirement is that the topic correspond to the focus of the course. Toward the end of the semester, class time will be devoted to reports by students on their research and writing. The research paper, around 15 pages including notes and list of works cited, will be the single most important piece of work produced. There will probably be a midterm and a final.
Grades will be determined from the research paper, the oral presentations, exams, and, very importantly, from class participation day in and day out. Unless otherwise noted, assigned readings must be read in toto by the day they are assigned.


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