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Contents Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . VII B ROOK T HOMAS Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IX J ULIA R EINHARD L UPTON The Minority of Caliban: Thinking with Shakespeare and Locke . . . . . 1 V ICTORIA S ILVER ‘Unequal Proceedings’ and Equitable Interpretations in the Seventeenth Century . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 C HRISTOPHER H UNTER Reevaluating Press Freedom in Colonial America . . . . . . . . . . . . . . . . . . 73 D ICKSON D. B RUCE , J R . Lorette: Anti-Catholicism and Religious Freedom in Antebellum America . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 J OE L OCKARD Jacksonian Mobs, Free Speech, and the Rise of American Antislavery Poetry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 J OHN C YRIL B ARTON The Anti-Gallows Movement in Antebellum America . . . . . . . . . . . . . . 145 L EN G OUGEON Emerson and the British: Challenging the Limits of Liberty. . . . . . . . . . 179 B ROOK T HOMAS Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 C AROLYN K ARCHER Bricks Without Straw: Albion Tourgée’s “Black Reconstruction” . . . . . 241 H ERBERT G RABES Melodrama Against the Revival of Racism? : Bartley Campbell’s The White Slave (1882) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 VI C ONTENTS T IMOTHY D EINES Interrogating the Moral Contract in Ruiz de Burton’s The Squatter and the Don . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 269 B YRON C AMINERO -S ANTANGELO Of Freedom and Oil: Nation, Globalization, and Civil Liberties in the Writing of Ken Saro-Wiwa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293 S COTT M ICHAELSEN AND A NTHONY S ZE -F AI S HIU The Devil’s Traxionary (Civil Liberties Cut). . . . . . . . . . . . . . . . . . . . . . . 309 Contributors B ARTON , J OHN C YRIL . Department of English, 5100 Rockhill Road, University of Missouri - Kansas City, Kansas City, MO 64110. B RUCE , D ICKSON D. Department of History, University of California, Irvine, CA 92697. C AMINERO -S ANTAGELO , B YRON . Department of English, University of Kansas, Lawrence, KS 66045. D EINES , T IMOTHY . Department of English, Michigan State University, 201 Morrill Hall, East Lansing, MI 48824. G OUGEON , L EN . Department of English, University of Scranton, Scranton, PA 18510. G RABES , H ERBERT . Institut für Anglistik und Amerikanistik, Justus-Liebig- Universität Giessen, Otto-Behagel-Str. 10B, 35394 Giessen, Germany. H UNTER , C HRISTOPHER . Program in Comparative Literature and Theory, University of Pennsylvania, 720 Williams Hall, Philadelphia, PA 19104. K ARCHER , C AROLYN . Department of English, University of Maryland, College Park, MD 20742. L OCKARD , J OE . Department of English, Arizona State University, Tempe, AZ 85287. L UPTON , J ULIA R EINHARD . Department of English, University of California, Irvine, CA 92697. M ICHAELSEN , S COTT . Department of English, 201 Merrill Hall, Michigan State University, East Lansing, MI 48824. S HIU , A NTHONY S ZE -F AI . Humanities Department, Springfield College, 263 Alden St., Springfield, MA 01109. S ILVER , V ICTORIA . Department of English, University of California, Irvine, CA 92697. VIII C ONTRIBUTORS T HOMAS , B ROOK . Department of English, University of California, Irvine, CA 92697. Foreword The histories of literatures written in English are interwoven with the history of civil liberties and civil rights. Essays in this volume treat a wide range of authors, from Shakespeare and Milton to Franklin, Emerson, and Lincoln to Saro-Wiwa. They also treat popular musical lyrics and lesser known works of abolitionist poetry and anti-gallows fiction as well as lesser known authors, such as George Bourne, Bartley Campbell, Albion W. Tourgée, and Maria Ruiz de Burton. Contributors examine literary works in conjunction with questions of minority rights and the rights of minorities, capital punishment and charges of treason, freedom of speech, freedom of the press, and freedom of religion. Some also relate various issues of civil rights and civil liberties: for instance, how in the United States the movement to abolish slavery affected arguments for freedom of the press or how in Nigeria environmental rights are linked to tribal rights. To help place the essays in context, this foreword will briefly clarify a couple of important terms and describe some of the historical conflicts involving civil rights and civil liberties. The traditional history of civil liberties in England posits a contest between the sovereign and the people, the one for royal prerogative, the other for the rights of personal liberty. This contest produced the Magna Charta, the Petition of Rights in the era of Charles I, and the Declaration of Rights and the Act of Settlement in 1688. Its terms also structure the American Declaration of Independence, which proclaims the rights of the people against the despotism of the King, decrying his attempts to curtail the legislative powers of the populace. The history was complicated, however, by the rise of popular sovereignty. After all, when the people are sovereign it makes little sense to speak of a contest between the sovereign and the people. Even so, as John Stuart Mill pointed out in On Liberty, popular sovereignty does not eliminate threats to civil liberties; it does, however alter the way that threat is understood. No longer posed as a contest between the sovereign and the people, the conflict is now seen in terms of competing claims of the people: the right to civil liberties, on the one hand, and the need to maintain civil order on the other. Civil liberties are threatened when the government, the supposed representative of the people, gets those competing claims out of balance by stressing order over liberty. This way of formulating the conflict reminds us that civil liberties are, by definition, liberties within civil society. Their very existence depends on willing submission to rule by law. As Blackstone summarized, “Civil liberty … is nothing more than the impartial administration of equal and expedient X B ROOK T HOMAS laws” (Dickson 513). As important as this idea is, the belief that civil liberties are possible only through submission to rule by law was seriously challenged by the existence of slavery, which, along with its lingering effects, is the topic of a number of essays in the volume. Condoned by municipal law, slavery suggested that liberty for some was possible only outside of civil society as presently constituted. As a result, abolitionists frequently appealed to a tradition of natural rather than civil rights, a reminder that the ideal of liberty derives from at least two, at times competing, traditions. On the one hand, in English-speaking countries, liberty has frequently been seen as a birthright of Englishmen, confirmed by the Magna Charta but traceable to around 450 A.D. when Britons invited from the continent the liberty-loving Angle warriors Hengst and Horsa. Within this tradition, the common law is seen as the protector and depository of liberty and the English literary tradition as a form of its expression. On the other hand, the ideal of liberty has been associated with a cosmopolitan tradition, traceable to the Stoics and eventuating in doctrines of the “rights of man” and “human rights,” rights that can be evoked to challenge unfair laws. Slavery and its aftermath also affected the meaning of “civil rights” and “civil liberties” themselves. In The Rights of Man, when Thomas Paine refers to what today we associate with civil liberties - such as freedom of speech - he calls them civil rights. Indeed, up until the American Civil War, civil rights were not distinguished from civil liberties but from political rights, with political rights having to do with rights in relation to the government, such as the right to vote, and civil rights having to do with rights within civil society. This distinction was, in turn, related to Blackstone’s distinction between civil and political liberty. Political liberty, for him, involved people’s participation in rule, whereas civil liberty, as we have seen, simply meant the impartial administration of equal laws. In fact, Blackstone himself used the term “civil privileges” to refer to “the right of personal security, the right of personal liberty, and the right of private property.” In 1833 the American Anti-Slavery Society’s constitution drew on Blackstone to demand the equality of “civil privileges” for whites and blacks (Dickson 513). In the meantime, various states set the stage for our present distinction between civil liberties and civil rights when, either authorized by or providing support for Justice Taney’s famous declaration in Dred Scott that African Americans had no rights that a white man had to respect, they began to use “civil rights” to designate privileges and immunities guaranteed to whites but not to free blacks. For instance, in 1859 a court in Mississippi held that “free negroes or persons of color … are entitled to no such rights. They are to be regarded as alien enemies or strangers prohibiti, and without the pale Foreword XI of comity, and incapable of acquiring or maintaining rights of property in this State” (Dickson 513). With the end of the Civil War, in order to undo such rulings as well as Justice Taney’s declaration in Dred Scott, which covered free blacks as well as slaves, the nation ratified the Fourteenth Amendment and Congress passed various “civil rights” acts designed to guarantee equal rights for freedmen. As a result, “civil rights” began to be distinguished from the “civil liberties” guaranteed by the Bill of Rights. The Civil Rights Movement of the twentieth century reinforced this distinction, so that in 1968 Milton Konvitz could write, “Although the terms ‘civil rights’ and ‘civil liberties’ are often used interchangeably, when they are differentiated the latter generally denotes the rights of individuals, while the former refers to the constitutional and legal status and treatment of minority groups that are marked off from the majority by race, religion, or national origin” (Konvitz 1968, 312.) At the same time, the Civil Rights Movement also helped to efface the traditional distinction between civil and political rights. Dictionary entries as late as the early 1960s maintained Blackstone’s distinction between political and civil liberty by defining civil rights as non-political rights guaranteed by a government. But, since blacks were clearly denied the franchise because of their status as a group, present definitions refer to civil rights as those rights guaranteed by the Fifteenth Amendment as well as by the Thirteenth and Fourteenth Amendments. A complicated history, the history of civil liberties and civil rights is, as the essays in this volume illustrate, illuminated by and helps to illuminate various works of literature. 1 1 For more on the history of civil liberties and civil rights, see Brooks, Corwin, Cushman, Konvitz, Lieber, Mackinnon, and Whipple. XII B ROOK T HOMAS Works Cited Brooks, Alexander D. Civil Rights and Civil Liberties in the United States: An Annotated Bibliography. New York: Civil Liberties Educational Foundation, 1962. Corwin, Edward S. Liberty Against Government: The Rise, Flowering and Decline of a Famous Juridical Concept. Baton Rouge: Loiusiana State U.P., 1948. Cushman, Robert E. Civil Liberties in the United States: A Guide to Current Problems and Experience. Ithaca: Cornell U.P., 1956. Dickson, John. “Civil Rights.” Encyclopedia of the Social Sciences, ed. Edwin R.A. Seligman. New York: Macmillan, 1930. Konvitz, Milton R. A Century of Civil Rights. New York: Columbia U.P., 1961. —. “Civil Rights.” In International Encyclopedia of the Social Sciences, ed. David L. Sills. New York: Macmillan, 1968. Lieber, Francis. On Civil Liberty and Self-Government. Philadelphia: Lippincott, Grambo, 1853. Mackinnon, James. A History of Modern Liberty. 3 vol. London: Longmans, Green, 1906-8. Mill, John Stuart. On Liberty. Arlington Heights, IL: Arlan Davidson, 1947 (1859). Paine, Thomas. The Rights of Man. ed. Eric Foner. New York: Penguin, 1984 (1791-2). Whipple, Leon. Our Ancient Liberties: The Story of the Origin and Meaning of Civil and Religious Liberty in the United States. New York: H.W. Wilson, 1927. J ULIA R EINHARD L UPTON The Minority of Caliban: Thinking with Shakespeare and Locke The single mother And what will become of this Paternal Power …. in those parts of America, where when the Husband and Wife part, which happens frequently, the Children are all left to the Mother, follow her, and are wholly under her Care and Provision? (S. 65) The wild child To turn the child loose to an unrestrain’d Liberty, before he has Reason to guide him, is not the allowing him the priviledge of his Nature, to be free; but to thrust him out amongst Brutes, and abandon him to a state so wretched, and as much beneath that of a Man, as theirs. (S. 63) The foster father [Paternal Power] belongs as much to the Foster-Father of an exposed Child, as to the Natural father of another: So little power does the bare act of begetting give a Man over his Issue, if all his Care ends there, and this be all the Title that he hath to the Name and Authority of a Father. (S. 65) from John Locke, “Of Paternal Power,” Second Treatise of Government 1 This cast of characters drawn from Locke’s Second Treatise of Government finds its counterpart in Shakespeare’s The Tempest: the single mother Sycorax, the wild child Caliban, and the foster father Prospero. The Tempest, dated around 1611, and The Treatise, published in 1690, were written in the same century, but from opposite shores of the breach created by the English Civil War. Each text works through models of political power and obligation by testing the analogy between family and state from novel angles, projects that led both authors to probe the psychology and philosophy embedded in non-normative domestic arrangements. Moreover, both Shakespeare and Locke had economic and intellectual interests in the American colonies, and they chose to stage their texts in experimental settings mapped by a mix of Old and New World coordinates and questions, decisions that have placed the texts of both authors at the center of post-colonial rereadings of early modern letters. The post-colonial moment has forever altered our modes of accessing and navigating these texts. Fundamentally acknowledging the 1 All citations from the Two Treatises are taken from Peter Laslett’s edition and are cited by paragraph number. 2 J ULIA R EINHARD L UPTON epochal power of such readings, I focus on a secondary theme - the minority or nonage of Caliban - a problem both opened up by the post-colonial attention to Caliban’s position in the play, and obscured by the post-colonial emphasis on Caliban’s subjection to Prospero. Using Locke’s exploration of paternal duties and filial rights in relation to his accounts of personhood and pedagogy in Some Thoughts Concerning Education and An Essay Concerning Human Understanding, 2 this essay approaches Shakespeare’s Caliban as a minor. I define “minor” as a childsubject, in possession of certain rights, privileges and immunities, under the care of a guardian, but presumed capable of rational autonomy and legal enfranchisement at an appointed date in the future. The minor is the bearer of equality in potentia, an unrealized capacity for independence sheltered and supported by the institutions of family life and protected when necessary by law. In Locke’s words, children are “not born in this full state of Equality, though they are born to it” (S. 54). The very checks to a minor’s freedom during his childhood serve to designate and defend his future capacity for freedom in adulthood; as the great eighteenth-century lawyer Blackstone put it, “ INFANTS have various privileges, and various disabilities: but their very disabilities are privileges; in order to secure them from hurting themselves by their own improvident acts” (I.17.3). Using Locke’s discourse to conceptualize Caliban as a minor under the guardianship of Prospero allows us to consider Caliban’s legal disabilities and privileges within a graduated scheme of transition from “nonage” into adulthood. This approach also limits Prospero’s sovereignty over Caliban and holds him accountable for unlawful infringements on the estate of the minor in his care. The Tempest is Shakespeare’s most self-consciously Jacobean play, performed before and reflecting on the sovereignty of James I. Reading Locke’s critique of absolutist patriarchalism back into Shakespeare’s play delivers both a counter-Jacobean Prospero, chastened by his imperfect exercise of paternal duty, as well as a rights-bearing Caliban, whose passionate passage through the disparate conditions of the orphan, the foster-child, and the slave ultimately establish his participation in personhood, understood as both a legal category and a subjective possibility. “Minority” designates the period of nonage, but also a dissenting opinion to a court decision (the “minority ruling”), a smaller voting bloc or interest 2 I do not attempt here a synthesis of these three complex and sometimes contradicatory texts. For one such attempt, see Joseph Carrig. On Locke and the family, see especially Gordon Schochet, plus more recent work by David Foster. Feminists have criticized the contractualism of Locke (see especially Carol Pateman); other have read the tradition more generously (see Victoria Kahn and Constance Jordan). On Locke and childhood (from an educational rather than a political perspective), see Margaret Ezell. The Minority of Caliban: Thinking with Shakespeare and Locke 3 group dominated by a larger one (the “minority” protected by James Madison in Federalist Paper Number 10), or, most commonly today, an ethnic group in a plural social body. To these legal and political meanings we might add the aesthetic resonances of “minor-key” and “minor variation,” which ring a secondary sound and signification from a major theme or movement. Caliban’s relationship to ethnic minority has held center stage in recent criticism. By recasting Caliban’s minority in terms of legal nonage, I aim to grant Caliban a different dignity - the dignity of the rights-bearing person - than that afforded him by the particularizing impulses of much recent work on the play. Legal personhood itself has a history, changing over time through cases, commentaries, and statutes and in response to social, political, and philosophical sea changes. Yet definitions of personhood, unlike accounts of culture, aim at universality even when acknowledging the situated arbitrariness of their own formulations. My Lockean analysis and defense of Caliban, conducted within the terms and conditions of Shakespeare’s play, aims to release a liberal potentiality within The Tempest’s romance with fatherhood. This reading also intends to bring forward emancipatory elements in Locke’s discourse, supplementing current accounts of the philosopher as a colonial apologist and possessive individualist. 3 By creatively and critically recalibrating Shakespeare’s absolutism from the perspective of Lockean liberalism, while also recovering from Locke a liberalism other than colonial, the speculative figuration of Caliban as a legal minor performs a “minor” variation on the major ideologies that cross The Tempest, The Treatise, and their trans-Atlantic afterlives. The liberalism of this reading is “minor” in relation to the “major” patriarchal and absolutist themes in the play, but 3 Colonial readings of the play are legion; Stephen Orgel summarizes some of the literature in his magisterial edition of the play, including Mannoni, Greenblatt, and Fiedler (Orgel, ed., 24). More recent offerings include Peter Hulme, Colonial Encounters, and Jonathan Goldberg, Tempest in the Caribbean. Alden T. Vaughan and Virginia Mason Vaughan have argued against “American” readings of the play. My own reading accepts the validity of the American frame, but supplements the cultural politics of colonialism with a more universal discussion of the rights of minors. The thesis of “possessive individualism” as the essence of Locke’s political theory was put forward by C.B. Macpherson in 1962. The sheer volume of critical responses and qualifications indicates the power of the thesis. Earlier accounts of Locke in America evaluate his influence on the Revolution (e.g., John Dunn). More recent accounts emphasize Locke’s ideological usefulness to the economic enterprises in which Locke and his circle participated (e.g., Lebovics, Tully). The best of this work acknowledges the tension in Locke’s work between colonial apology and a genuinely emancipatory and universal discourse of rights that would extend to indigeneous Americans (Lebovics 579; Tully 176). Gillian Brown develops this alternative strand in The Consent of the Governed: The Lockean Legacy in Early American Culture, to which my own essay attempts to add a Shakespearean footnote. 4 J ULIA R EINHARD L UPTON also “minor” in relation to the post-colonial discourse that frames much current debate about both Shakespeare and Locke. Writing against the main stream of current Shakespeare studies, the analysis pursued here is neither historical nor cultural. This essay is an assay, an imaginative thought-experiment, whose layering of Locke and Shakespeare aims to bring out new truths about the nature of political and domestic rights and obligations in both authors. The Tempest and The Treatise are themselves thought-experiments, in which the New World setting serves as a laboratory for testing the essential components and dynamics of human sociality. 4 I am not concerned to establish direct textual links between Locke and Shakespeare, though the ruptured contiguity of preand post-Civil War England frames the project and grants it a certain chronological coherence. This essay is part of a broader enterprise I call “thinking with Shakespeare,” which invites us to think with or along side Shakespeare about matters of continuing urgency - subjectivity and sexuality, creation and creativity, sovereignty and citizenship, politics and personhood - in both their foundational framings and their contemporary unfolding. Thinking with Shakespeare entails reading Shakespeare “with” other figures, including Aristotle, Freud, Arendt, and, in the case of this essay, Locke, not in order to historicize Shakespeare but rather to link his plays genetically and conceptually to ongoing cognitive and political possibilities for human being. Thinking with Shakespeare and Locke about minority allows us to litigate Prospero for failures in fatherhood and to secure certain protections for Caliban in the court of criticism, entering the play into the dialogue between literature and civil liberties staged by this volume. As an imperfect person, a subject on the road to citizenship, the figure of the minor is a lightening rod that repeatedly condenses the brute fact of social inequity with the struggle for emancipation in the literary imagination of liberalism. 5 When transferred from legal minors to ethnic minorities, the paternalistic protections of nonage can simply justify the colonial interests of self-appointed guardians. The “major key” reading of the play treats Caliban allegorically, as a representative of the indigenous peoples of the New World; in such a scene, the theme of childhood, extended to a race or people, reinforces paternalistic and exploitative patterns of colonization. The “minor key” reading, however, stages Caliban in relation to real rather than allegorical childhood, encountering 4 See Rosalie Colie’s marvelous essay on the form of the essay in Locke’s Essay Concerning Human Understanding. Montaigne represents a reference common to both Locke and Shakespeare. 5 Examples from later British and American literature include: the heroine of Richardson’s Clarissa, the monster in Mary Shelley’s Frankenstein, Nell in The Old Curiosity Shop, and the hero of Richard Wright’s Black Boy. My thanks to Debra Ligorsky for helping generate this list. The Minority of Caliban: Thinking with Shakespeare and Locke 5 him as a young person who has minimally survived orphaning, foster care, and juvenile incarceration. In this scenario, a different set of concerns comes into view, involving parental responsibilities and children’s rights rather than colonial power and indigenous subjection. My larger aim is to uncover minority as a valid template for political reform and activism, as when the rights and protections of temporary minors (elite male children) are transferred to “permanent” minors (to women, to prisoners, to the children of the poor, or to the disabled). Indeed, we could say that the Minor embodies the paradox of “Liberty Ltd.,” personifying the lived historical constraints of liberty in all its necessity and force, but always pointing forward, through the promise of enfranchisement, to liberty’s future expansion. My point is not to overturn patriarchal accounts of Shakespeare and Locke in favor of a liberalism that remains deeply complicit with capitalism and imperialism, but rather to broaden and variegate the political vocabularies and progressive potentialities of childhood in response to both seventeenth-century and contemporary horizons of thinking, being, and doing. 1. Such a wondered father, and a wife Locke begins his discussion of paternal power by challenging the appropriateness of the word “paternal” itself: It may perhaps be censured as an impertinent Criticism in a discourse of this nature, to find fault with words and names that have obtained in the World: And yet possibly it may not be amiss to offer new ones when the old are apt to lead Men into mistakes, as this of Paternal Power probably has done, which seems so to place the Power of Parents over their Children wholly in the Father, as if the Mother had no share in it, whereas if we consult Reason or Revelation, we shall find she hath an equal Title. (II.52) 6 The target of the Two Treatises is the patriarchal theory of sovereignty, in which the unilateral and indivisible rule of the father over his household authorizes the absolute sovereignty of the monarch, in turn supported by the heavenly King and Father above. The prooftext for patriarchal theorists such as Sir Robert Filmer, as well as the garden-variety patriarchalism that permeated social, political, and religious life under the Ancien Regime, is the Fifth Commandment, “Honor thy father and mother,“ often conveniently shortened to the simpler formulation, “Honor thy father.” 7 If the 6 Locke’s emphasis here on clarifying language use echoes key themes from the Essay concerning Human Understanding; cf. Chapter X, “Of the Abuse of Words.” 7 Locke never tires of pointing out the ideological convenience of the abbreviation: “I hope ‘tis no Injury to call an half Quotation an half Reason, for God says, Honour thy Father and Mother; but [Filmer] contents himself with half, leaves out Mother quite, 6 J ULIA R EINHARD L UPTON indivisible sovereignty of the king derives from the inalienable and indivisible authority vested by God and nature in fathers, then Locke is concerned to point out that the father’s power is inherently divided, shared with the mother, “who hath an equal Title.” The real interest of his chapter “Of Paternal Power” lies, of course, not in reforming domestic management or defending the rights of children, but rather in chipping away at the paternal analogy authorizing absolutism. In order to do this, however, Locke finds his way through varieties of family life in Old and New World settings that anticipate future transformations of domesticity under liberalism. Then as now, liberal parenting and liberal politics keep house together. 8 And so we meet the single mother: And what will become of this Paternal Power in that part of the World where one Woman hath more than one Husband at a time? Or in those parts of America, where when the Husband and Wife part, which happens frequently, the Children are all left to the Mother, follow her, and are wholly under her Care and Provision? If the Father die whilst the Children are young, do they not naturally every where owe the same Obedience to their Mother, during their Minority, as to their Father were he alive? (II.65) Locke travels here a path from the most exorbitant case (wives with multiple simultaneous husbands, an idea so outlandish that he names no locale), to the more palatable “American” situation, in which indigenous women separated from their mates raise the children on their own, to the deeply familiar case of fatherless children who “naturally every where” obey the surviving widow “during their Minority.” By insisting on the feminine instance of parental power, Locke forcefully divides it from the “power of the Magistrate, of which the Father hath not so much as the shadow” (S. 65). Having established the mother’s title, he goes on to clarify the limits of the father’s power: “His Command over his Children is but temporary, and reaches not their Life or Property. It is but a help to the weaknesses and imperfection of their Nonage, a Discipline necessary to their Education” (II.65). The parent’s command is not an independent power in its own right, but rather a secondary supplement to the imperfect freedom of the child, filling in for and protecting the minor’s potential for liberty so that it can it be effectively realized when the child arrives at “the infranchisement of the years of discretion” (II.65). In Locke’s counter-patriarchal scheme, the as little serviceable to his purpose” (I.6; I.11, I.61). I develop the civil consequences of Locke’s rereading of the Fifth Commandment in my essay “Rights, Commandments, and the Literature of Citizenship.” 8 In a 1989 publication, the Population Council placed Locke’s chapter in the context of “recent international efforts to codify ‘the rights of the child,’” pointing out the ongoing relevance of Locke’s largely symbolic political analysis of childhood to the legal rights of real children. The Minority of Caliban: Thinking with Shakespeare and Locke 7 flow of obligation arises from the right of the child to shelter and education rather than from the absolute sovereignty of the father over his offspring. 9 The Tempest features two single parents, Prospero and Sycorax. In the major, “Jacobean” movement of the play, Prospero’s status as a widower heightens and highlights the providential character of his rule over Miranda and the island. In this reading, his absent wife might have ranked first among the “four or five women” that Miranda recollects in the dark backward and abyss of time, the mistress of her household but not an equal partner with the Duke (I.ii.47). 10 Miranda’s mother remains unrepresented because she is not necessary; with a father like Prospero, who needs a mother past birth? As Stephen Orgel points out, such parental majesty evokes the sovereign metaphors beloved by King James I: “‘I am the husband, and the whole island is my lawful wife; I am the head, and it is my body’” (cited Orgel, Introduction, 39). In the play’s Jacobean self-presentation, to be a single father is to embody the full authority, fruitfulness, and consequences of patriarchy, self-sufficient and self-contained. Sycorax is another matter altogether. Banished from Algiers, she was “hither brought with child,” where she took control of Ariel, ultimately confining him in a pine tree until Prospero liberated him, in effect giving Ariel a second birth into a new and more enlightened servitude: “It was mine art, / When I arrived and heard thee, that made gape / The pine and let thee out” (I.ii.269-85). As critics have pointed out, Sycorax and Prospero sport parallel biographies: both have been exiled, both use their magic to take control of Ariel and the island’s resources, and both run single-parent households. The case of Sycorax can be used simply to reinforce the Jacobean reading: fathers, not mothers, exercise right rule and thus embody the essence of sovereignty. If we bring in the Lockean frame, however, the picture changes in “minor” ways that nonetheless free up major resources for building a liberal interpretation of the play. Locke presents the single American mother as one paradigm of solo parenting within a spectrum of possible norms of parental authority; he does not judge her maternal skills, 9 These arguments, like so much in The Second Treatise, are not original to Locke. Pufendorf’s 1672 Law of Nature and Nations includes a chapter “Of Paternal Power” (VI.ii.8) that also emphasizes alienability of parental duties to nurses and tutors, the division of sovereignty between mother and father, and the rights of children in relation to the duties of their parents. Pufendorf also uses New World as well as mythological references. Locke’s accent on these themes is decidedly more “liberal”: he is much less definitive on the father’s superior sovereignty in relation to the mother, for example, and he seems to grant more normative value to the non-European exempla than does Pufendorf. Laslett notes the debt, 310n. 10 All citations from The Tempest are from Stephen Orgel’s edition. On the question of Miranda’s mother, see Orgel’s essay, “Prospero’s Wife.” 8 J ULIA R EINHARD L UPTON instead taking her very existence as further proof that by definition parental power is distributed among distinct agencies. Read through Locke, the presence of Sycorax serves to demonstrate not the singular self-sufficiency of Prospero, but rather his qualified status as one half of a couple, always shadowed by the missing mother whose absence leaves his parenting incomplete. Prospero himself seems to acknowledge his insufficiency when he compares his tragic overconfidence in his ambitious brother to the trust exercised by “a good parent” towards his child (I.ii.94). The “good parent” is too good, his or her propensity to trust the child requiring counterbalance in another parental voice or instance of authority. 11 As Harry Berger, Jr. observes, both Sycorax and Prospero “are equally antisocial, both have withdrawn into themselves, have proved unfit for, or inadequate to, social and political existence” (16). Prospero finds himself on the island because of his own failures as a Duke at home, and his sojourn here involves his own re-education in the limits and responsibilities of rule in its parental and political valences. Ferdinand puts the case for dual parenthood a little differently when he exclaims at the conclusion of the Wedding Masque, “Let me live here ever. / So rare a wondered father and a wife / Makes this place paradise” (IV.i.123- 8). The reading of “wife” in place of the Folio’s “wise” (an error attributed to the breakdown of the letter f in the course of printing) was reintroduced in 1978, a consequence not only of advances in editorial practice, but also, Orgel argues, of changes in the political climate: “after 1895 the wife became invisible: bibliographers lost the variant, and textual critics consistently denied its existence until six years ago … We find only what we are looking for or are willing to see. Obviously it is a reading whose time has come” (“Prospero’s Wife” 13). 12 The prospect of a self-sufficient Prospero who is both wondered and wise speaks to the play’s Jacobean scenario. The insertion of the “wife” into the scenario works in another direction. It reminds us again of Prosper’s absent wife, and addresses Miranda not in her present condition as Prospero’s dependent but in her future condition as Ferdinand’s spouse. To counter the wondered father with an equally wonderful 11 Many of us are familiar with good cop / bad cop parenting. Consider also the ideal promoted by British psychologist Donald W. Winnicott of the “good-enough mother.” Locke travels related territory in Some Thoughts Concerning Education when he suggests that parents treat smaller children with severity, and older children with familiarity: “So shall you have him your obedient Subject (as is fit) whilst he is a Child, and your affectionate Friend when he is a Man” (S. 40). 12 See also Jonathan Goldberg’s commentary on the crux, who claims rather differently that the eighteenth-century editors “put ‘wife’ there to assure the domestic relationship and the propriety of Ferdinand’s remarks. They make his future wife present in order to police the male-male relations between Ferdinand and Prospero” (57). The Minority of Caliban: Thinking with Shakespeare and Locke 9 (miranda) wife is to suggest a distribution of authority both within and across generations, as the daughter prepares to leave her father’s household for her husband’s. Preparing for this transition is one work performed by the action of the play, and it is linked not only to Miranda’s sexual maturation, but also to her late education in her own life-story. For Locke, the essence of parenting is education. (We might note here that Locke himself was never a father, but performed the office of education for the sons of Shaftesbury and Sir John Banks, and authored a major treatise on education. 13 ) In the chapter on paternal power, Locke writes, The first part then of Paternal Power, or rather Duty, which is Education, belongs so to the Father that it terminates at a certain season; when the business of Education is over it ceases of itself, and is also alienable before. (II.69) Notice the qualifying movement of the sentence: Locke redefines “power” as “duty,” a set of responsibilities that effectively limit rather than aggrandize the father’s authority. He then insists that education, forming the “first part” of this duty, is both temporary and alienable: transferable to a responsible delegate, as Locke well knew from his tutoring jobs. Prospero, a genuine home-schooler, lacked the opportunity to hire a tutor for Miranda: Here in this island we arrived, and here Have I, thy schoolmaster, made thee more profit Than other princes can that have more time For vainer hours, and tutors not so careful. (I.ii.171-74) Prospero uses “tutor” in its familiar educational sense, to mean one who is “employed in the supervision and instruction of a youth in a private household” (OED I.3). Yet “tutor” also has an older legal meaning, designating one half of the duties of a guardian for a minor in Roman law. As Blackstone explains, “The guardian with us performs the office both of the tutor and curator of the Roman laws; the former of which had the charge of the maintenance and education of the minor, the latter the care of his fortune […]the tutor was the committee of the person, the curatore the committee of the estate” (I.17.1). Hannah Arendt picks up on this distinction in “The Crisis of Education” when she argues that children are born into a relationship not only to life (as animals are) but also to a world: “The child shares the life of becoming with all living things … But the child is new only in relation to a world that was there before him, that will continue after his death, and in which he will spend his life” (185). Tutoring effectively de-links education from the biological instance of paternity by distributing it to representatives, 13 On bachelor Locke’s experiences observing and educating the children of others, see Yolton and Yolton, eds, “Introduction,” Some Thoughts Concerning Education 5-9. 10 J ULIA R EINHARD L UPTON who participate in the child’s acclimations to the world of traditions, meanings, and responsibilities that precede it. Alone on the island, Prospero has performed the tasks of both tutor and curator for Miranda without help from surrogates or helpmeets, once again embodying the self-sufficiency of royal fatherhood. Yet his reference to the fundamental alienability of education, its normative transfer to another party, brings into play one of the elements that qualifies paternal power for Locke and for the Western legal tradition. Enunciating his paternal supremacy (the play’s Jacobean major key), Prospero exposes the legal limits of fatherhood (the play in liberal minor key). And the motif recurs in major and minor throughout The Tempest. In the romantic epilogue to the distended expositions of Act One, Scene Two, Prospero, in a moment of sovereign pseudo-pique, chastises the love-struck Miranda for defending Ferdinand: “What, I say -/ My foot my tutor? ” (I.ii.470). According to Prospero, Miranda’s mild intervention threatens to turn the Jacobean body politic upside down. The daughter, the “foot” or lowliest appendage of the household-state, has behaved as a “tutor,” or official delegate of paternal authority, to her own father. Orgel’s note to the line (which never fails to perplex undergraduates) cites the proverb, “Do not make the foot the head.” The difference brought into view by the Lockean frame is Shakespeare’s substitution of “tutor” for “head,” bringing substitution as such into the scene of paternal power via the forensic vocabulary of guardianship even while snatching an old tune from popular patriarchalism. More immediately pertinent to the dynamics of paternal sovereignty in the play, however, is Locke’s second qualification of the educational duties of the father, namely its built-in temporal limit, “terminat[ing] … when the business of Education is over” (II.68). Prospero’s lengthy lecture to Miranda in Act One, Scene Two is one of several scenes of explicit education in the drama. Although his monologue flows from father to daughter in a mode that could hardly be called Socratic, it is, in contemporary educational parlance, “developmental,” aimed at Miranda’s particular moment of intellectual, moral and even biological readiness. Miranda describes the conditions of her ignorance: You have often Begun to tell me what I am, but stopped, And left me with a bootless inquisition, Concluding, ‘Stay, not yet.’ And Prospero explains, The hour’s now come; The very minute bids thee ope thine ear. Obey, and be attentive. (I.ii.33-38) The Minority of Caliban: Thinking with Shakespeare and Locke 11 The “time” or “tempus” of The Tempest is kept according to several clocks. One is the service contract binding Ariel to Prospero and resulting in the emancipation anticipated at the end of the play (“Then to the elements / Be free, and fare thou well” [V.i.317-18]). Another, noted in this interchange, is the period of minority binding Miranda to Prospero, terminating in her equally anticipated marriage at the end of the play. Prospero chooses this “hour” and “minute” to tell Miranda the story of her life not only because objective conditions (“the accident most strange” of the shipwreck) invite their return to Milan, but also because her subjective capacities have reached the point where he judges her ready to understand and absorb this story, to make it her own. In education, as Locke and Hamlet knew, “Readiness is all.” 14 Moreover, the telling of the story, directed at a moment of ripeness in Miranda’s own development, aims ultimately to emancipate Miranda from her father’s governance (“Obey, and be attentive”) if only be delivering her into the “true contract” of her marriage with Ferdinand, passing her from one form of minority to another. In Locke’s formulation, the father’s command “is but temporary, and reaches not their Life or Property. It is but a help to the weakness and imperfection of their Nonage, a Discipline necessary to their Education” (65). In “The Crisis of Education,” Hannah Arendt makes a similar argument about the qualified inequality that characterizes the scene of education, which deploys “a concept of authority and an attitude toward the past which are appropriate to it but have no general validity and must not claim a general validity in the world of grown-ups.” 15 The education of Miranda announces the approaching termination of Prospero’s sovereignty over her, a familiar Shakespearean theme brought into greater political focus by the Lockean lens. Although the forceful intimacy of Prospero’s single parenting and homeschooling primarily serves to demonstrate the exclusivity of paternal rule on this unsceptred isle, the Lockean framework points up the limits of paternity in the fact of maternity, the pathos of obligation, and the alienable and self-terminating character of education. Though Locke gives these topoi a markedly liberal expression in The Second Treatise that substantially distin- 14 Locke’s educational theories emphasize active engagement of the senses in relation to children’s “inadvertency, forgetfulness, unsteadiness, and wandering of Thought” (S. 167). He describes his in-house observations of a mother using a globe to teach her son geography: “being only an exercise of the Eyes and Memory, a child with pleasure will learn and retain [facts] …. It is a good step and preparation to [further study], and will make the remainder much easier, when his Judgment is grown ripe for it” (S. 178). The mother in question was Lady Masham, Locke’s hostess in 1693 (Yolton 235n). The Yoltons evaluate Locke’s relationship to developmentalism (38-43). 15 Hannah Arendt, “The Crisis of Education.” Cited Brook Thomas, American Literary Realism and the Failed Promise of Contact, 295. 12 J ULIA R EINHARD L UPTON guishes his writing from that of Shakespeare, his formulations on childhood are largely drawn from older educational, philosophical and legal traditions that both men shared. What Gillian Brown says concerning the state of the child in Locke could equally be said of the family in Shakespeare: “Once the parental function becomes an obligation, a moral response to and respect for a potentially rational creature, all relations and conditions, familial and political statuses, appear as provisional states” (22). If such provisionality characterizes the play’s most regular parent-child relationship, it has even deeper implications for the odder couple formed by Prospero and Caliban. 2. The Minority of Shakespeare’s Creature To speak of Caliban as a minor uncomfortably recalls the Victorian project of narrating the lost childhoods of Shakespeare’s heroines. The risk here is not only engagement in a form of imaginative speculation foreign to the rigors of formalism and historicism alike, but also the false imposition of a modern conception of childhood onto Shakespeare’s play. 16 Carolyn Steedman writes of the Victorian period that “Child-figures, and more generally the idea of childhood, came to be commonly used to express the depths of historicity within individuals … ‘Childhood’, ‘the child’, as this kind of configuring of the past, emerged at the same time as did the modern idea of history” (Strange Dislocations 12). Childhood in this modern sense is not the same as legal minority, whose distinctive shaping of social relations tends to be exterior rather than interior, related to a set of domestic and civil instances and charted by formal more than affective markers of development. 17 Yet legal minority remains part of the deep structure of childhood conceived psychologically; debates about child labor laws, for example, were fueled by emotional identification with the Child, taken as a universal stage of human experience. The Child-Minor fuses sense and sensibility, tendering both legal and emotional claims on our attention. Moreover, legal minority only becomes a literary element when it resonates with broader cognitive and emotional patterns of recollection, consciousness, and conscience (as it does, I argue, in both Shakespeare and Locke). Gillian Brown identifies citizenship with thinking as such: “the key point in Locke’s liberalism [is] the citizen’s continuous labor of crediting and discrediting ideas. 16 See the classic text by Mary Cowden Clarke, The Girlhood of Shakespeare’s Heroines. 17 Historians of childhood distinguish between “childhood” (understood as the concept) and “children” (taken empirically). See Cunningham 1, 13. The classic social history of childhood remains Philippe Ariès, Centuries of Childhood. The Minority of Caliban: Thinking with Shakespeare and Locke 13 The citizen of the liberal state emerges in the processes of thought, which, in Locke’s view, distinguish humans from other animals” (8). Education in citizenship is education in thinking, and vice versa. Attending to the debts and promises, memories and missions, binding the Minor to the Child through the politics and poetics of education represents one strand of the project initiated here. Minority and childhood intersect in the idea of the “person,” a legal category that developed in increasingly psychological directions, in part under the impact of Locke’s philosophy. In the Western legal and philosophical traditions, “personhood” implies the protected and responsible exercise of individual freedom in civil society. 18 Locke defines “person” in the Essay Concerning Human Understanding as: a Forensick Term appropriating Actions and their Merit; and so belongs only to intelligent Agents capable of a Law, and Happiness and Misery. This personality extends it self beyond present Existence to what is past, only by consciousness, whereby it becomes concerned and accountable, owns and imputes to it self past Actions, just upon the same ground, and for the same reason, that it does the present. (II.xxvii.26) Locke specifies the “Forensick” origins of the concept of “person,” which he identifies here with the moral and legal accountability of a free agent, a concept with its roots in Roman law. Locke’s definition bears comparison with that of the jurist Samuel von Pufendorf, on whom Locke often drew: “Among the lawyers mainly, a person is said to be someone who has civil standing, that is, personal freedom - by which token slaves are classified as things” (Political Writings 39). Pufendorf then specifies a series of distinct status-types that define a person in Roman law, including gender, “moral status in time” (age-appropriate behavior), “moral position in the civil state,” (as citizen, resident alien, or foreigner), “moral position in the family,” and “lineage.” In Pufendorf’s socially calibrated definition, persons are free but not equal, distinguished from each other by their location in a status-scape variegated by age, sex, class, filial and civic relations. In Roman civil law, the highest form of personhood would belong to an adult male citizen of noble birth, while a slave would not be a legal person at all. 19 18 John Rawls summarizes the tradition, explicitly linking personhood with the capacity for citizenship: “Since Greek times, in both philosophy and law, the concept of the person has been understood as the concept of someone who can take part in, or who can play a role in, social life, and hence exercise and respect its various rights and duties. Thus, we say that a person is someone who can be a citizen, that is, a fully cooperating member of society over a complete life” (59). 19 On personhood and its disabilities in Roman law, see Jane Gardner, Being a Roman Citizen. Status distinctions also continue to differentiate men and women, as well as adults and children, in Locke’s scheme. 14 J ULIA R EINHARD L UPTON Like Pufendorf, Locke’s definition takes its bearings from the legal tradition; and like Pufendorf, Locke assumes a social dimension to achieved personhood, involving “Actions and their Merit” in relation to a recognized law. This “law” might be natural, revealed, or civil - the last implied by the “Forensick” reference, the first by the emphasis on rationation, and the middle by the concern with conscience. Locke’s definition differs, however, by not explicitly linking personhood to status, and by elaborating the psychological dimension of what he calls “personal identity” within the legal vocabulary inherited from the jurists (Essay, II.xxvii.9). (Status nonetheless returns in Locke’s text in various guises, as MacPherson demonstrated in 1962.) 20 Locke’s person “extends it self beyond present Existence to what is past” through acts of conscientious recollection. Not yet carrying the layered emotional historicity of the Victorian inner child, Lockean personhood does enfold the meaningful accretion of memories over time, and is thus already something more than Pufendorf’s purely juridical description. It is perhaps worth noting as well how far this vision of personhood is from “possessive individualism,” a term that has become synonymous with the Lockean legacy. The “ownership” involved in “own[ing] and imput[ing] to it self past Actions” resembles not the owning of a piece of land or a car, or even the possession of rights, but rather owning up to or acknowledging an action as one’s responsibility. 21 Such a person is not born but made. John and Jean Yolton place Locke’s “novel account of ‘person’ as a forensic term, in other words as a term for identifying the locus of responsibility,” at the dynamic intersection of his political and educational programs: “If civil society has the task of protecting the person, education has the task of producing persons” (18). They link the passage in the Essay to Locke’s discussion of the exposed or abandoned child in the Second Treatise: To turn the child loose to an unrestrain’d Liberty, before he has Reason to guide him, is not the allowing him the priviledge of his Nature, to be free; but to thrust him out amongst Brutes, and abandon him to a state so wretched, and as much beneath that of a Man, as theirs. This is what puts the Authority into the Parents hands to govern the Minority of their Children. (S. 63; Yolton) The liberty of the homeless orphan is not the reserved and protected freedom of the minor living within family and civil society, but rather a state of 20 See MacPherson’s demonstration of “differential rights and rationality” among laborers and land-holders, 229-38. 21 Brown, also qualifying the Locke of possessive individualism, writes on Lockean personhood: “Locke imagines no fixed locus, private or public, for the mental operations of persons because he regards individual deliberations as dynamic, always interactive, even though issuing from a person’s particular place in the world” (9). The Minority of Caliban: Thinking with Shakespeare and Locke 15 unguarded license, preand anti-social in character, and hence akin to the life of beasts. 22 Such a creature, even if reaching the biological age of adulthood, would likely not have had the opportunity to make the transition from human being to person that Locke counts as the work of education, since such a child would not yet be “concerned and accountable” for his actions to himself and to others. Gillian Brown argues that the child holds a special place in Locke’s conceptions of consent (in its ambiguity, fragility and urgency) and personhood (as a formal envelope of rights and duties whose fruition in freedom is by no means assured): “In authorizing the ongoing agency of individuals within and against society, Locke’s consent theory credits and demands the mental faculties of individuals, who must be educated from childhood for their consensual office” (28). Using Locke’s definition, Caliban before the arrival of Prospero would have been a person only imperfectly, a person in process. This does not mean that he was a child in years. Orgel makes the following calculations: Miranda is not yet fifteen - she and Prospero have been on the island for twelve years, and at the time of their expulsion from Milan she was ‘not out three years old’. Since Sycorax was pregnant when she came to the island, and died before Prospero arrived, and imprisoned Ariel in the cloven pine a dozen years before that, Caliban is more than ten years older than Miranda, or at least twenty-four. (Tempest 28n) Orgel posits a Caliban born on the island to his refugee mother and orphaned soon after, at least twelve years old when the Italians arrive. Caliban does not describe a childhood under his mother’s care, but rather a period spent alone, as “mine own king” (I.ii.342). The phrase implies selfgovernance and self-sufficiency, supported by his intimate knowledge of the resources and habitats of the island to which he was born, with its “fresh springs, brine pits, barren places and fertile” (I.ii.338) - vital elements in colonial readings of the play. Yet without a social arena in which to test his interests and capacities, Locke might have judged Caliban to have achieved a practical but not a moral autonomy, demonstrating the remarkable self-reliance of the survivalist but not the deliberative rationality of an adult person interacting with others in a social scene organized by several forms of law. Caliban’s use of language is one indicator of this personhood in process. Miranda describes his speech when they first met him: When thou didst not, savage, Know thine own meaning, but wouldst gabble like A thing most brutish, I endowed thy purposes With words that made them known. (I.ii.354-59) 22 Elsewhere I have discussed the “creaturely” estate of Caliban (Citizen-Saints 161- 80). 16 J ULIA R EINHARD L UPTON Her account may simply reflect a European’s disdainful misapprehension of a foreign tongue, an approach developed by Stephen Greenblatt in his essay “Learning to Curse” (23-26). 23 Caliban’s pre-contact “gabbling” might also, however, indicate an arrested linguistic development, the rudimentary beginnings of a language learned from Sycorax (perhaps Arabic mixed with bits of an indigenous tongue? ), but left to turn upon itself in isolation. Caliban recalls Prospero teaching him “how / To name the bigger light and how the less / That burn by day and night” (I.ii.334-36), a formulation that implies a fundamental lack of terms for “sun” and “moon” prior to the arrival of the Italians on his shore. Caliban’s early education is all garten, no kinder, lacking the socializing dimension of formal or informal schooling. 24 Understood this way, Caliban combines features of the medieval romance figure of the “Wild Man” - an adult trapped in speechlessness due to exposure as an infant - with the “Wild Child” of the Enlightenment, tended and documented out of a post-Lockean concern with the rhythms and hazards of childhood development. 25 Although he lacks the ethereal purity of Ariel, and might seem therefore to be a lesser creature, many critics have argued that his being is more closely and clearly tied to the human condition as such. 26 Caliban’s association with the earth links him to Adam, the felt heaviness of his being figuring forth what Locke calls “the Clay Cottage” of human embodiment, of liberty limited by flesh (Thoughts 2). Caliban, I 23 For similar accounts of Caliban’s language as a misrecognized native tongue replaced by a colonial tongue, see Kim Hall (44-45) and Goldberg (132). 24 On the kindergarten movement in the history of progressive education, see Michael Steven Shapiro. He notes that the “infant-schools” of the early nineteenth century combined Lockean psychology, object theory, and social reform (12). The kindergartens of the later part of the century often merged with the social settlement movement, with urban kindergartens serving as a “social wedge” into the neighborhood (103). By the early twentieth century, “No symbol of humanitarianism was more meaningful to progressives than childhood”; public kindergarten was conceived within a sequence of urban institutions that included family courts, playgrounds, and day care centers (171). 25 On the medieval Wild Man, see Greenblatt 21; Bernheimer; Cheney. Doctor Jean- Marc Itard took over the care and tutelage of Victor, “the Wild Boy of Averyon,” in 1800, when Victor was about 11 or 12 years old, perhaps a little younger than Caliban when first encountered by Prospero. Itard applied principles from Locke’s Essay Concerning Human Understanding in his treatment of Victor, who responded only minimally to the educational program of sensory, social, and linguistic stimulation. Steedman 163-4; Itard, The Wild Boy of Aveyron, 55. 26 Harry Berger, Jr. cites Daivd Williams on this point: Ariel is “‘an airy spirit,’ once imprisoned in a pine, and aspiring towards total liberty.’ Caliban, on the other hand, ‘is capable of not a few human conditions … so that his appearance, however brutal, must indicate an aspiration towards human nature, whereas Ariel’s is away from it’” (12). The Minority of Caliban: Thinking with Shakespeare and Locke 17 have argued elsewhere, is a “creature” in the play, a term whose theological provenance still resonates in Locke’s treatment of childhood. 27 The special creatures we call children may be the responsibility of their parents, but they are “created” by God, as Locke reminds us: “But to supply the Defects of this imperfect State, till the Improvement of Growth and Age hath removed them, Adam and Eve, and after them all Parents were, by the Law of Nature, under an obligation to preserve, nourish, and educate the Children, they had begotten, not as their own Workmanship, but the Workmanship of their own Maker, the Almighty, to whom they were to be held accountable” (II.56). By reminding us that children are creatures of God, not of their progenitors, Locke uses political theology to limit rather than expand the sovereignty of fathers by emphasizing parental accountability. In our secular version of this creaturely triangle, the state represents the third party to whom parents are, in situations of abuse and abandonment, “held accountable.” If the creature whom Prospero and Miranda first encountered on the island was still in the “imperfect state of childhood” (Second Treatise S. 58), he had not yet been afforded the protections of a minor, which, like the moral and legal personhood they are meant to promote, exist only in civil society and in relation to family life - even or especially when family services must be supplied by other means. In the first phase of their life together, Prospero institutes something like a guardianship over this young man, neither fully adult nor fully child in his development, and essentially abandoned to nature by the circumstance of his mother’s exile and death. In Locke’s phrase, Prospero becomes “the Foster-Father of an exposed Child,” a parenting arrangement that he includes in the list of alternative domestic scenarios, placing Prospero’s guardianship along with Sycorax’s maternal parenting in a set of possible exceptions to classical patriarchy (S. 65). In this first phase of their relationship, Caliban has indeed been afforded some of the benefits of a minor. Prospero claims that he “used” Caliban “with humane care, and lodged [him] in [his] own cell” (I.ii.344-45). “Humane” characterizes both Prospero’s moral bearing towards Caliban (he acted humanely) and his expectations for Caliban’s moral aptitude (he treated Caliban as a human, capable of personhood). “Care” and “curator” share the same Latin root, cura; in the terms of Roman law, Prospero exercised the duties of a “curator,” while he largely delegated to Miranda the duties of a “tutor,” since it is she, we learn, who “took pains to make [him] speak.” 28 27 See “Creature Caliban,” in Citizen Saints 161-80. 28 A long critical tradition reassigned these duties to Prospero, but the delegation to Miranda has been confirmed by current editorial practice. On this crux, see Goldberg 119-20. 18 J ULIA R EINHARD L UPTON By housing Caliban and Miranda in the same cell, moreover, Prospero granted at least provisional equality to his adopted and his natural child during this period of guardianship. In contemporary parlance, we might say that Caliban was an “au pair” rather than a servant, invited to sit at the table with his new-created family while nonetheless contributing rather more than his share to the household economy, as foster children often did. Caliban’s education, such that it was, has already ended when the play begins, brought to a halt not (as in Miranda’s case) by the natural termination of a curriculum that has run its course and done its person-producing work, but rather arrested by Caliban’s act and Prospero’s response to it. Caliban, we learn, had made some sort of advance on Miranda: the three had lived together in one cell, family-style, until Caliban “didst seek to violate / the honour” of Miranda (I.ii.347-48). Caliban’s education into moral personhood, defined as being “accountable … for Actions,” appears to have been incomplete, while Caliban’s present response to the repeated charge reveals a continued failure of accountability: O ho, O ho! Would’t had been done! Thou didst prevent me - I had peopled else This isle with Calibans. (I.ii.349-347) The “major key” colonial reading would put the emphasis on Caliban’s unregenerate incorrigibility; not only his action in the past but his total lack of compunction in the present justify that he be “deservedly confined in this rock” (I.ii.360), reduced from adopted son and brother in a scene of provisional equality to a prisoner and slave without hope of emancipation. Miranda’s rejection of Caliban as an “Abhorrèd slave, / Which any print of goodness will not take” establishes in advance the limits of a Lockean pedagogy based on the inscription of sensory experience on the blank slate of the mind. 29 A post-colonial defense might emphasize to the contrary the politics of Caliban’s act: to “people the island with Calibans” is to reclaim it from the usurpers, repopulating it in his own image and for his own offspring. The problem with this defense of Caliban from both a Lockean and a feminist perspective is Caliban’s initial and continued lack of regard for Miranda’s person, a personhood to be represented and communicated in some form of consent, whether verbal or gestural. The current post-colonial framing of the debate has difficulty defending Caliban without implicitly or 29 Goldberg links the line to traditions of humanistic pedagogy that form the background to both Shakespeare’s and Locke’s texts (124-6). Enforcing the Jacobean reading from a post-colonial point of view, Goldberg argues that “Miranda’s humanist pedagogy underwrites the program of colonialist education. It also anticipates Enlightenment distinctions between those who have and those who lack reason” (126). The Minority of Caliban: Thinking with Shakespeare and Locke 19 explicitly blaming Miranda, or at the very least diminishing any injury to her person, taken here in the moral as well as physical sense. Thus Goldberg cites Fanon: “Whoever says rape, says Negro” (139), effectively shifting the focus from Miranda’s injury to her motives and prejudices. 30 The casting of Caliban as minor supplements the post-colonial defense of Caliban with an argument that protects the potential for personhood on the parts of both Caliban and Miranda, sacrificing neither’s dignity to salvage the other’s. Such a defense would run like this: if Caliban was a “minor” at the time of the attempt, he should have been tried as a juvenile, not an adult. Caliban had received some of the benefits of education under Prospero’s guardianship, including a movement into fuller language and sociality, but he did not yet understand his own impulses or how to express them civilly when he approached Miranda; he was not yet, in Locke’s phrase, “concerned and accountable.” After the attempted rape, however, Prospero handed him a permanent sentence of imprisonment and enforced servitude, further stunting his capacities for moral growth. Prospero’s ruling brutally replaced personhood as social process with the imputation and enforcement of slavery as a “natural” condition, substituting the intimate cell of the foster family with the deprivations of solitary confinement. Denied “humane care” in its objective and subjective senses - treatment as a person by a fellow person - Caliban has started to become the animal-thing that Prospero, at this terrible juncture in their relationship, has judged him to be. Prospero’s judgment diminishes the humanity of both parties. Would such a defense have held water in a court presided over by either Shakespeare or Locke, and if so, in what sense? The answer in strictly historical terms is No, if we follow Holly Brewer’s recent study of children, consent, and the law. Brewer argues that minors were tried as adults until the nineteenth century, but that major conceptual shifts concerning the age of consent and reason began to occur in the later seventeenth and eighteenth 30 Kim Hall provides a more balanced version of the same argument: “Caliban’s threat ‘to people the isle’ with his offspring clearly suggests that he would control the island by creating a new ‘mixed’ race and rebuts Prospero on his own terms. Territorial claims here are backed by a need for patriarchal control over women” (143). A postcolonial critic might further say that the consent that Caliban fails to procure from Miranda is a “Western” construct, to which I would respond that post-colonial movements of liberation have succeeded in part by taking up Lockean concepts of consent (if channeled through more republican Rousseauean traditions) as part of their own arsenal of self-determination. See for example Michael Dodson, who discusses the use of Western political theory in Latin American liberation theology: “Their vision of the good society follows along the path indicated by Rousseau rather than Locke. They reject relations of what C.B. Macpherson would call ‘bourgeois man’” (403). The reference to Macpherson indicates that a particular Locke, the Locke of possessive individualism, is at stake here. 20 J ULIA R EINHARD L UPTON centuries, partly under Locke’s influence. 31 It is in this virtual space of conceptual change and possibility (rather than in the real space of Jacobean courts) that I am retrying Caliban’s case. Blackstone’s Commentaries, written in the eighteenth century partly in response to Locke, but synthesizing centuries of English law, addresses the culpability of minors in his chapter “Of the Persons Capable of Committing Crimes.” 32 Children rank first among those who lack the understanding to be held legally responsible: FIRST we will consider the case of infancy, or nonage: which is a defect of the understanding. Infants, under the age of discretion, ought not to be punished by any criminal prosecution whatsoever. What the age of discretion is, in various nations is matter of some variety. (IV.ii.1) Calculated in absolute terms, the age of discretion appears to reach back into puberty: “During the other half stage of childhood, approaching to puberty, from ten and an half to fourteen, they were indeed punishable … but with many mitigations, and not with the utmost rigor the law. During the last stage (at the age of puberty, and afterwards [14 and upwards, according to Blackstone]), minors were liable to be punished, as well capitally, as otherwise” (IV.ii.1). In number of years, Caliban would have fallen in this last category, or even have been classified as an adult, depending on his age and the severity of the attempted rape. (We do not know how violent, if indeed violent at all, Caliban’s advances may have been. 33 ) The act itself, as the expression of an “adult” urge, itself seems to place Caliban in the “age of consent” - which, we might aver, involves his capacity not only to express his own consent, but to listen for consent in others. 34 Yet Blackstone acknowledges that biological years and moral development do not always correspond: “But by the law, as it now stands, and has stood at least ever 31 See Holly Brewer, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority, especially Chapter Six, “Understanding Intent: Children and the Reform of Guilt and Punishment,” 181-229. 32 Robert Wilman insists that Blackstone rejected key aspects of Locke’s political philosophy, including his theory of property. Wilman is writing in response to other scholars who have suggested stronger ties between Blackstone and Locke. In either case, it seems fair to say that Blackstone’s comments on the rights of minors are not in conflict with Locke’s, and reflect the legal traditions that they both shared. For another perspective on Blackstone and property, see Carol M. Rose. 33 Hulme cites Mark Taylor on the question of violence: “Mark Taylor questions whether ‘violation’ may not be Prospero’s interpretation of ‘a perfectly honourable action’, on the grounds that ‘Caliban’s pursuance of the normal forms of courtship, with or without Miranda’s responding positively to them, would be seen by him, Prospero, as an effort to violate her” (126). 34 I owe this particular point to my student Brian Oglesby, who wrote a brilliant paper on Locke and The Tempest entitled “The Locke of the Rape.” The paper was written in the context of a seminar on tragedy and citizenship. The Minority of Caliban: Thinking with Shakespeare and Locke 21 since the time of Edward the third, the capacity of doing ill, or contracting guilt, is not so much measured by years and days, as by the strength of the delinquent’s understanding and judgment” (IV.ii.1). A Caliban who has spent half his life living in the wild, then reaches sexual maturity in the proximity of Miranda, might have been old enough in years, but not in “understanding and judgment,” to gauge the force and meaning of his response to her, while Miranda’s own awkward age may also have heightened the tenor of her reaction. In such a situation of dual minority, a sentence “with many mitigations, and not with the utmost rigor of the law” might have led Caliban into the age of consent, whereas the treatment he has received has had the opposite effect. His instrumentalizing attitude towards Miranda’s childbearing capacities has hardened precisely to the degree that his own laboring being has been harnessed by Prospero. Prospero and Miranda judge Caliban to be incorrigible, and hence deserving of permanent enslavement. One train of thought in Locke supports this position. Jonathan Goldberg has applied Locke’s chapter “On Slavery” to Prospero’s reduction of Caliban from person in potentia to slave in perpetuity. Glossing Miranda’s horrified address to Caliban as an “abhorred slave,” Goldberg uses Locke’s justification of slavery in wartime to explain Caliban’s treatment: those who emerge from the just war provoked by an attempted infringement on ‘my’ liberty remain, according to Locke, forever barred from civil society, forever in the state of war that marked their condition when they assaulted ‘me.’ …. The slave - the person who does not recognize my liberty - is abhorrent, deserving to be put to death. Because he is not a person, he cannot be harmed by slavery. (134) This is the Locke of possessive individualism, signaled by the critically punctuated “‘me,’” who is also the Locke with economic interests in the slave-holding colony of Carolina and hence concerned to justify both the enslavement of Africans and the expropriation of the Indians. 35 This is a major Locke indeed, and Goldberg’s book is important among other reasons for establishing with such clarity and urgency Locke’s relevance to the colonial legacy of The Tempest. A “minor” Locke, however - the Locke of 35 Locke was actually used on both sides of the slavery debate in America, but seems to have been associated more clearly with the abolitionist argument (Loewenberg). Goldberg devotes several careful footnotes to the debate concerning Locke’s role in the institutions of slavery during his own lifetime and in his legacy (181n, 182n). I am not denying that Locke’s theory of liberty is seriously compromised by his defense of slavery, nor that this complicity has had a structural impact on American politics. I am insisting, however, that this reading does not exhaust either the meaning of Locke’s texts or his significance for counter-strains in American liberal and progressive politics, including abolitionism and feminism. 22 J ULIA R EINHARD L UPTON minority - can also be brought to bear on Caliban’s condition, even within the confines of Prospero’s severe judgment concerning Caliban’s capacities for moral education. In Locke and the legal tradition he develops, not all minors reach majority: But if through defects that may happen out of the ordinary course of Nature, any one comes not to such a degree of Reason, wherein he might be supposed capable of knowing the Law, and so living within the Rules of it, he is never capable of being a Free Man, he is never let loose to the disposure of his own Will … but is continued under the Tuition and Government of others, all the time his own Understanding is uncapable of that Charge. And so Lunaticks and Ideots are never set free from the Government of their Parents. (S. 60) Blackstone makes a similar point in his commentary on English law, and Locke himself cites Hooker’s Of the Laws of Ecclesiastical Polity. 36 Locke’s point here is not to defend the rights of the mentally disabled, but rather to suggest that their situation of continuous dependence is a special case that cannot be used to prove the permanent and inviolable sovereignty of fathers (and of monarchs who would derive their claims from patriarchal arguments). Nonetheless, the case of the permanent minor in Chapter Six is rather different from that of the slave who “puts himself into a State of War” in Chapter Three (II.17). Madmen, for example, “which for the present cannot possibly have the use of right Reason to guide themselves, have for their Guide, the Reason that guideth other Men which are Tutors over them, to seek and prepare their good for them” (S. 60; emphasis added). The language of guardianship is here explicitly applied to the mentally incompetent. Note that Locke’s guardian acts not simply as a “curator” (attending, in Arendt’s terminology, to the minor’s life-functions), but also as a “tutor” (responsible, Arendt tells us, for orienting the minor to a world). As Locke puts it, tutor-guardians are enjoined to seek and prepare “their good for them,” the word “good” implying a shared world of values and responsibilities. The permanent minor, unlike the slave captured in a just war, retains a quotient of personhood; it is a creaturely personhood that remains in potentia, perhaps forever unrealized, yet still reserving a dignity and harboring a good 36 Locke cites Hooker almost verbatim: “Children which are not as yet come unto those years whereat they may have [reason]; again innocents which are excluded by natural defect from ever having; thirdly mad men which for the present cannot possibly have the use of right reason to guide themselves, have for their guide the reason that guideth other men, which are tutors over them to seek and to procure their good for them” (I.7.4). Hooker’s comments occur in the context of a discussion of the will in relation to reason; he is not concerned per se with either the culpability of permanent minors (Blackstone’s emphasis) or the limited character of paternal rule (Locke’s emphasis). The Minority of Caliban: Thinking with Shakespeare and Locke 23 that requires care and protection - in some cases including legal protection from the neglect or exploitation of the guardian himself. The presumption of personhood on the part of the disabled, including critical work on the normative elasticity of personhood as concept and content, is a foundational tenet of the modern disability movement, which offers still another “minor” framework for addressing the perceived deformity and monstrosity of Caliban’s moral and physical person. 37 Of course there is no evidence that Shakespeare represents Caliban as an “Ideot” or a “Lunatick,” as a creature deprived of reason in the long or the short term. My point is rather that the paradigm of guardianship that governs the first phase of the Caliban-Prospero relationship, even if put under almost intolerable pressure by Caliban’s advances to Miranda, need not have been abandoned in favor of an argument for slavery in just war (the enslavement argument negating personhood, the disabled minor argument preserving personhood in deferred or suspended form). In other words, Prospero’s judgment that Caliban’s action has proved him incapable of reason need not have led him to neglect his obligation to “seek and prepare [Caliban’s] good for [him].” The special circumstances of Caliban’s extraordinary childhood, coupled with the unusual pressures of his cohabitation with Miranda, the only female on the island, might have issued instead in a change in living arrangements, a gentler “confinement” conceived in tutorial and curatorial rather than punitive terms. The comparison of the estates of the minor and the slave raise many issues that I cannot address fully here. Anthony Pagden, for example, has argued that comparative ethnology in the seventeenth century shifted from conceptualizing indigenous peoples as “nature’s slaves” to “nature’s children,” requiring civilizing education by their European betters (57-108). My reconstruction of a “minor” Caliban might seem to repeat this same shift: yes, a minor has more dignity than a slave, but the relation remains fundamentally paternalistic and ideologically suspect. The difference here, however, is that I am not conceiving of Caliban as a metaphorical minor, 37 The modern sense of “the disabled” as a specific group with certain rights and immunities is modern (draft addition to the OED, 2002, first use attributed to 1922). “Disability” carries a specifically legal sense from Roman law, meaning “Incapacity in the eye of the law, or created by the law; a restriction framed to prevent any person or class of persons from sharing in duties or privileges which would otherwise be open to them; legal disqualification” (OED 3; see Jane Gardner on disability in Roman law). Legal disability in this sense would apply to such persons as felons, women, minors, madmen, etc. “Disability” in its modern sense is thus a reversal of the original legal sense, involving not the removal but the affirmation and protection of rights for this group. It is a classic case of emancipation operating by transferring the future status of the temporary minor (the propertied white male child) to a class of “permanent” minors (the physically or mentally disabled). 24 J ULIA R EINHARD L UPTON that is, as an indigeneous person perceived to be child-like in his culture and moral development, along with others of his race whom he represents. Rather, as a supplement to the allegory of colonialism, I am using Locke on paternal power in order to retrace the lines of the narrative actually given to us in Shakespeare’s play, in which Caliban appears as an orphan subsisting alone on the island since his early years, carrying the rudiments of a mother tongue, perhaps suffering from physical impairments or irregularities, certainly exhibiting distinctive behavior and limited speech, and first encountered by other human beings in his puberty or early adulthood. The attributes of minority accruing to such a person may indeed be applied to the condition of native peoples in general, perhaps by Shakespeare himself and certainly by later readers, but this expansion does not exhaust the attributes of nonage borne by Caliban nor their consequences for our critical re-evaluation of Prospero. Moreover, the translation of these features into aspects of “culture” (the culture of indigenous peoples as perceived by Europeans on the road to inventing historicism) effaces the different role these same features can play in a legal tradition that aims for definitions of personhood distinct from, though always grounded in, cultural particulars. 38 My suggestion that we consider Caliban’s minority in terms of nonage involves both a special way of imagining his life story and a special way of making arguments about the nature of right and obligation in the play. 39 38 There is thus in Pagden’s analysis a certain complicity between the “relativism” that he attributes to the European ethnographer and his own historicist approach. 39 Another layer in the slave-minor crux concerns the complex relation between abolitionism and children’s rights movements in modernity. Hugh Cunningham has demonstrated the borrowings and rivalries between anti-slavery and anti-child-labor activists in nineteenth-century Britain. Arguing against earlier studies that placed abolitionism as the source of emancipatory language that was then extended to new groups such as children, debtors, factory workers, and women, Cunningham argues for a more “dynamic” relationship in which analogies traveled among movements: “In the 1830’s, then, the language of slavery was contested. There was no smooth transition from a concern for slaves who were black to those who were white. Rather, the fight for the emancipation of both coincided in time, and … there were many whose energies and sympathies lay with black slaves or white slaves, but emphatically not with both” (Children of the Poor 81). The slave and the child, taken separately and together, have represented both empirical institutions of exploitation and powerful metaphors to motivate emancipation. These nineteenth-century debates have no immediate relevance to the case of Caliban, but they do place the conceptual terms of his predicament within the larger drama of Liberty Ltd. charted in this volume. The Minority of Caliban: Thinking with Shakespeare and Locke 25 3. The majority of Caliban Despite the attempt by some critics to identify Prospero’s judgment of Caliban with Shakespeare’s, the play does not finally rule that Caliban is incorrigible. (The play is not so generous to Prospero’s unreconciled brother Antonio.) Prospero’s judgment against Caliban at the crucial moment prior to the play’s action is not identical with the state of affairs for both Prospero and Caliban at the end of the play. 40 Caliban’s collaborations with Trinculo and Stephano constitute the experimental period of the play - which is also the time or tempus of the play proper - in which Caliban’s personhood has become unfrozen, going into process once again. Caliban’s confinement is by no means complete, and he manages to act freely in relation to Trinculo and Stephano, seizing on their presence as an opportunity to exercise his own will. Much of the episode unfolds as a parodic replay of Caliban’s first encounter with Prospero, as he attempts not to resist mastery as such but rather to install a new master in place of the old. In the refrain of his exultant song at the end of the first scene with the sailors, Caliban sings, ‘Ban, ‘Ban, Ca-Caliban, Has a new master - get a new man! Freedom, high-day! High-day, freedom! Freedom, high-day, freedom! (II.ii.179-8) The “new master” is Stephano, while the “new man,” Orgel notes, would be the servant whom Prospero must find to replace Caliban. Yet “new man” cannot help but resonate with the personhood of Caliban himself, who is also undergoing transformation in his search for freedom through political interaction with others. (As landless laborers, Trinculo and Stephano suffer their own political disabilities.) Flawed though this project is, Caliban increasingly assumes a directorial role, planning the details of the coup and attempting to keep the distracted sailors on track through persuasion and exhortation. It is within the drama of this experimental phase that Caliban delivers his most beautiful speech. Frightened by the ghostly sounds of Ariel, Caliban reassures his co-conspirators: Be not afeard, the isle is full of noises, Sounds, and sweet airs, that give delight and hurt not. Sometimes a thousand twangling instruments Will hum about mine ears; and sometime voices, That if I then had waked after long sleep, Will make me sleep again, and then in dreaming 40 See for example Goldberg: “Caliban’s attempted rape thus offers evidence that he is Aristotle’s natural slave” (133). Does the play, however, end with this judgment, or rather begin with it? 26 J ULIA R EINHARD L UPTON The clouds methought would open and show riches Ready to drop upon me, that when I waked I cried to dream again. (III.ii.321-41) This extraordinary passage has undergone multitudinous interpretations, from the gorgeous appreciation offered by Harry Berger Jr. to its post-colonial debunking as colonialist accommodation by Paul Brown. 41 Closest to my purposes is John Gillies in his essay, “Shakespeare’s Virginian Masque,” one of the least polemical of the contributions to the debate concerning The Tempest’s American references. Gillies writes, “The Tempest shows us two landscapes: the moral landscape in its various phases and a physical landscape of unimaginable strangeness and mystery - the landscape of Caliban … Poetically speaking, it is Caliban, not Prospero, who possesses the island” (702). The language of possession here recalls the Locke of the Second Treatise - not the chapter on paternal power but the chapter on property. Locke’s labor theory of property was taken up into the main stream of capitalist economic theory (Macpherson), and was also used to defend the expropriation of Indian lands in the New World, under the argument that European forms of labor were more efficient than indigeneous ones (Tully). Yet a “minor” Locke subsists in these pages as well, a Locke who handles a syntax and vocabulary of property whose creative and ethical dimensions have been largely lost in the possessive tradition. Early in the chapter, Locke attributes property to the Indians, in the form of hunting and gathering, and indeed in the form of eating as such: “The Fruit, or Venison, which nourishes the wild Indian, who knows no Inclosure, and is still a Tenant in common, must be his, and so his, i.e., a part of him, that another can no longer have any right to it” (26). Although he will later rate the efficiency of different types of labor, here he credits property to anyone who labors, indeed, to anyone who eats. Locke thus attributes an inalienable minimal quotient of property and personhood to the indigenous inhabitants of the Americas. At the same time, property in Locke’s discourse embraces the ethical dimension of its cognate “propriety” - manners, appropriateness, fitness, decorum - and encompassing “Life, Liberty and Estate,” not just land or money (S. 87). Macpherson ascribes this expansive definition to a “confusion in [Locke’s] mind between the remnants of traditional values and the new bourgeois values” (220). But we might also see the complexity and layeredness of the language of property in Locke as a resource for contemporary rereadings of 41 Goldberg summarizes Brown’s position: “rather than indicating that Shakespeare granted Caliban humanity in exalted poetry, [the lines] show instead how fully Caliban is represented as having accommodated himself to colonial inanition, where he can only dream of dreaming” (186n). The Minority of Caliban: Thinking with Shakespeare and Locke 27 liberalism that aim to engage creatively as well as critically with the impulses of early capitalism. 42 There is certainly a creative dimension to Locke’s own thinking. By deriving property from human labor rather than mere occupancy, Locke imagines a creative dimension to property that works both objectively (on the possessed world) and subjectively (on the laboring person). Thus he writes in a syntax whose complex mapping of agency has long disappeared into the reified grammars of ownership that we speak today: “The labour that was mine, removing them out of that common state they were in, hath fixed my Property in them” (S. 28). In this laborious sentence, “Labour” holds the place of the grammatical subject, the subject of possession coming into being as an effect rather than a cause of laboring. Labor “fixes” “my” “property” in the world, not only establishing my formal title to the land or object so worked upon, but also, more creatively, imprinting my subjective “properties” or attributes on the world. These actions in turn expand and elaborate the catalogue of properties that make up “me.” Lockean labor acts on the subject in the process of creating objects, affixing the distinctive features of a personality to the purely formal structure of the person. In what senses can Locke be used to support Gillies’ claim that, “poetically speaking” - that is, through the action of his own poetic language - Caliban “possesses” the island? First, as a hunter and gatherer, Caliban achieves the minimal personhood-in-property that Locke attributes to the Indians. This personhood consists not only in surviving on the foodstuffs of the island, but also in the special knowledges that attend and support this survival. Through the ruminative intimacy of hunting and gathering, Caliban “fixes his property” in the island, removing or extracting foodstuffs from the world he inhabits, incorporating them within himself, and newcreating them as his. In addition, through a form of intellectual labor, Caliban takes possession of the island through the poetic work of his language, fixing his subjective properties in the island in ways that have resonated for generations of readers of the play. Caliban in effect holds the copyright on the island’s poetry of place. As Lockeans, we believe him when he claims, “This island’s mine” (I.ii.333), though we might urge him to claim title not through birthright (“by Sycorax my mother”), but rather through the 42 Brook Thomas makes a similar argument: “‘Traditional’ values are not simply a residual element of a system that is completely determined by the market. They are a crucial part of bourgeois thought. … Locke’s slippery use of ‘property’ has contributed to liberalism’s great resiliency, allowing it to use verbal slippage endlessly to defer the resolution of a contradiction that Macpherson feels should be overcome by a new dialectical synthesis” (95). 28 J ULIA R EINHARD L UPTON appropriative and subjectivizing labor that he of all the characters most fully enacts and embodies in the play. Finally, there is the recollective dimension traveled by the passage in question, which returns us to the subjective temporality of personhood posited by Locke in the Essay Concerning Human Understanding. In the speech, we listen to Caliban recalling the music of his childhood - not the rhythmic lullabies of a mother or a tutor, but the ambient sounds made by the island itself, remixed through Caliban’s linguistic and imaginative capacities into a music we too can begin to hear. A child-like mood saturates the speech, signed above all by the poignantly infantile image of “crying” in order to “dream again.” Yet the speech also unfolds as a series of temporal breaks, including the painful break of the cry itself, that distinguish the chaotic mix of early memory from the ego recollecting the past in the present. In Caliban’s speech, we glimpse the phenomenology of an awakening consciousness yearning for sleep, but reconstructed with great labor in the present tense of personhood. In The Tempest, to awaken is to rouse oneself from minority into majority, through the risk and challenge of political experiment, deliberative dialogue, and linguistic expression. Shakespeare affirms this majority in the final scene of the play. Two lines are crucial here: Prospero’s “acknowledgment” of Caliban, and Caliban’s final response. Prospero reintroduces Caliban to the stage in the play’s final scene: These two fellows [Stephano and Trinculo] you Must know and own; this thing of darkness I Acknowledge mine. (V.i.274-77) The Lockean framework of minority allows us to give special weight to the parental meanings of the word “acknowledge.” To “acknowledge” Caliban as “mine” is to re-assume the duties of guardianship after their dereliction. The lines can thus be read to record not only Prospero’s quasi-legal acknowledgement of Caliban (as a father would “acknowledge” his bastard, according him certain rights and dignities previously denied), but also an acknowledgment on Prospero’s part that he has not fulfilled his responsibilities vis á vis Caliban. He “owns” Caliban not in the major key of possessive individualism, but rather in the minor key of the person who “owns and imputes to it self past Actions” (Essay II.xxvii.26). The acknowledgment remains painfully partial; Caliban is still, in Prospero’s vocabulary and perhaps in the play’s as well, a “thing of darkness,” not fully included in the realm of persons. Yet the political and ethical momentum of acknowledgment as a public act, working towards both commonality and responsibility in relation to felt differences and witnessed by assembled others, might ultimately perform some work on “personhood” as such, stretching the range The Minority of Caliban: Thinking with Shakespeare and Locke 29 of its norms to re-include Caliban within it. In any case, the “fatherhood” delivered at the end of such a process of tested and delayed acknowledgment is a chastened and limited one, not the naturalized sovereign paternity of absolutist apologetics but the temporary, artificial, and fundamentally obligated guardianship of the tutor and the curator. And what of the minor Caliban? Has he, along side his step-sister, reached some form of majority by the end of the play? He accepts Prospero’s command that he “trim” the cell in anticipation of Prospero’s pardon: Ay, that I will; and I’ll be wise hereafter, And seek for grace. What a thrice-double ass Was I to take this drunkard for a god, And worship this dull fool! (V.i.294-97) These lines have left post-colonial critics unsatisfied; the speech must be either a cynical ventriloquism of the status quo, or a mock-obsequy mouthed by an unregenerate Caliban who continues to resent the powers of Prospero. 43 In a powerful return to some of the play’s originary impulses and vocabularies of agency and obligation, David Evett has suggested that Prospero, far from simply humiliating Caliban, has in effect placed him in charge of setting the cell aright, “confirmed in a kind of superiority for which his de facto leadership of the retainer raid has prepared him” (200). So too, according to Evett, Caliban’s final lines reveal not an incorrigible “native” constructed and constrained as such by his colonial exploiters, but rather has proven himself to be eminently educable: the speech “is not simply incantatory … but something grounded in discipline and experience” (201). The “discipline and experience” in question comes from participating in a failed rebellion that has taught him the limits of the drunken sailors’ imitative politics. He has, in Locke’s words, learned something of “The Ways, the Humors, the Follies, the Cheats, the Faults of the Age he is fallen into” (Some Thoughts S. 94). He has also gotten a crash course in cooperation and leadership, skills “acknowledged” when Prospero places him in charge of tidying the cell. David Evett describes the pedagogical function of Caliban’s political adventure: “Socially, the process depends on the superiority of experience to precept and of love to fear as pedagogical devices; the Caliban who declined to respond to Prospero’s exhortations or to his cramps and pinches is persuaded by his time with Stephano and Trinculo that the willing service of a worthy master can elevate rather than demean the servant” (201-02). Locke would agree on the linked pedagogies of expe- 43 Evett summarizes the recent post-colonial consensus on these lines, 201 and 259n. Although my own stance differs from Evett’s in emphasizing proto-liberal rather than Christian-conservative conceptualizations of obligation in the play, I am in sympathy with Evett’s deeply responsive reading of the play’s conciliatory strands. 30 J ULIA R EINHARD L UPTON rience and love, though he might want to associate the “wisdom” sought by Caliban with a form of rational autonomy distinct from the self-subordination of service. In any case, when Prospero leaves the island, Caliban will in effect have no master. Like Ariel, he has been emancipated, not only “by” Prospero, but through his own powers of expression and deliberation. What Gillian Brown argues for Locke is also, I suggest, true for Shakespeare: “by recognizing and protecting an embryonic form of agency in the child, Locke establishes a basis for the principle of self-determination” (“Thinking in the Future Perfect” 116). If Caliban lives free on the island, he may nonetheless live alone - perhaps cooperating with Ariel, but likely without a helpmeet or a political community. Hannah Arendt - no Lockean, but writing in a tradition of politics sympathetic with the line I have developed here - offers a typology of living alone that may illuminate our speculations concerning Caliban’s biography before and after the action of the play. At the end of The Origins of Totalitarianism, Arendt distinguishes between solitude, isolation, and loneliness. Solitude is the leisure of the philosopher, who enjoys being alone with himself because he can return to the sensus communis of likeminded others, their communal interaction providing the basis of political action. Isolation is the mark of homo faber, the artisan who finds himself alone with his work, excluded by choice or necessity from politics but still in possession of a private life, a social world, and his own creative activity. Loneliness is the condition of totalitarianism, whose subjects are reduced to pure labor devoid of a creative dimension (the condition of the slave and the camp inmate) and who no longer even have access to a private or domestic sphere. 44 In his childhood on the island, Caliban, I would suggest, existed in isolation: his own king, he had no community in which to develop patterns of cooperation and compromise, but he performed his survivalist labor according a rhythm that he set himself in intimate response to the exigencies of the island. This isolation was relieved during his minority in the cell of Prospero, but the community built there was shattered when Prospero reduced the Minor to the Slave. During this next phase, Caliban was subjected to the radical loneliness of bare life, no longer accorded the rights and immunities of a minor and forced to labor without the minimal dignity of self-possession. When the sailors arrive, he breaks out of his loneliness and enters into political relationship; the political project fails, but he has exercised his personhood and begun to enter into a new majority. When the Italians finally leave him to himself, we might imagine that he has gained the capacity for solitude, the at-one-ness of the philosopher, whose higher sapientia echoes in Caliban’s pledge to “be wise hereafter.” In any case, thanks 44 Arendt, Origins, 474-9. The Minority of Caliban: Thinking with Shakespeare and Locke 31 to his own efforts and those of Ferdinand, a great deal of wood has been cut - the land cleared perhaps for new kinds of labor, new forms of property, and new styles of poetry and personhood. 4. Coda: Caliban in America There have been two major waves of scholarship on Locke in America: the first, classically political in focus, entails evaluating the impact of Locke’s thought on the American Revolution (Dunn), and the second, economic, social, and cultural in focus, looks at the use of Locke in justifying (or in some cases protesting) expropriation of Indian land and maintaining slavery as an institution (Lebovic, Tully). Gillian Brown’s Consent of the Governed has restored the political emphases of Locke, but within the socially grounded frameworks of education and civil society, and in relation to groups traditionally disenfranchised by political philosophy, including women, children, Indians, and slaves. Following Brown’s inquiries into Locke in America, I have tried to conceive of Caliban in legal and political rather than cultural terms, but around a figure - the figure of the Minor - whose political rights come embedded in specific economic structures (that of the oikos, the foundation of “economy” as such). The Minor’s protected reservation of rights in relation to a citizenship to come stakes out a powerful model of emancipatory transformation through education that has been extended repeatedly from the “model minor” (a white male child of property) to various classes of “permanent” minors, such as slaves, working children, women, non-citizens, racial minorities, prisoners, and the disabled. The figure of the minor as a cipher of potential freedom requiring both the discipline and the protection of the law lies at the heart of the liberal project. It has been put to the worst of uses when the social education of minors is conducted in a paternalistic mode cynically designed to constrain rather than promote liberty, a strategy some critics have discerned in Shakespeare’s play. Yet the minor’s special capacity to focus and synthesize the affective identifications of diverse subjectivities around the common denominator of a stage of life taken to be universal has made discourses of and around the rights of minors an important resource in progressive political programs around the world, especially when those programs require the rallying of distinct parties around a common cause. Ernesto Laclau writes of the importance of universal markers in catalyzing the identifications that make political action across groups possible: If social struggles of new social actors show that the concrete practices of our society restrict the universalism of our political ideals to limited sectors of the population, it becomes possible to retain the universal dimension while widening 32 J ULIA R EINHARD L UPTON the spheres of its application - which in turn will define the concrete elements of such universality. Through this process, universalism as a horizon is expanded at the same time as its necessary attachment to any particular content is broken. The opposite policy - that of rejecting universalism in toto as the particular content of the ethnia of the West - can only lead to a political blind alley. (34) I am suggesting that the minor represents a particularly potent case of the universal moment that galvanizes progressive and emancipatory movements within plural polities and across global interests. There is a strong sentimental element here, of course: the face of an African child dying of hunger may be a more palatable icon for foreign aid than the spectral visage of the same child’s mother or father dying of AIDS. But the sentimental face of the child floats atop the more muscular structure outlined by the legal claims of the minor, giving the composite figure of the child-minor an integrative political potential whose effects are considerably more than imaginary. My Caliban in America is: a homeless child surviving the best he can in the wilderness of modernity; a survivor of foster-care; a juvenile tried as an adult; a prisoner deprived of rights; a disabled “monster”; a child-laborer both reduced to and alienated from his work. My Caliban is also: in pursuit of happiness and on the road to citizenship through the recollective and self-creating resources of a language that he has made his own and through the chances for civic education that he has found despite as well as because of his self-appointed educators. In each of these formulations an aspect of “childhood” in its psychological and developmental dimensions borrows its political urgency from a set of rights associated with legal “minority.” In the court of criticism, my American Caliban may ultimately be judged a “minor” one: insufficiently historical, unabashedly liberal, founded on the Enlightenment drama of rights rather than the Romantic cult of culture. Perhaps this minor Caliban, however, will reach his majority precisely because he aims for personhood in ways that resonate across authors and interests, continents and centuries, and hence that we can acknowledge as our own - identify with his passion, and take responsibility for his pain, across and in response to the differences made by age, ability, education, and access. This essay has developed out of my graduate and undergraduate teaching at the University of California, Irvine. I am especially grateful to my colleagues Brook Thomas, Vivian Folkenflik, Bob Moeller, and Ann Van Sant and to my students, especially Debra Ligorsky and Paul Dahlgren, for their interest in this topic. I would like to dedicate this essay to the memory of Gillian Brown, whose book on Lockean childhoods in America instigated the train of thought pursued here. 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V ICTORIA S ILVER ‘Unequal Proceedings’ and Equitable Interpretations in the Seventeenth Century “The concept of a living being has the same indeterminacy as that of a language.” Wittgenstein, Zettel #326 This is an argument about interpretive ethics - the importance of doing justice to the sense of another person’s expressions - and it begins with a quotation from Judge Learned Hand’s testimony at a Senate subcommittee hearing on “an unusually low state of public morals in 1950-51” (Dillard 225). The approach he recommends to such issues has the weight of experience behind it, coming as it does from so remarkable a jurist, after decades on the Second Circuit of the Federal Appeals Court, during which time he reviewed hundreds of lower court rulings not only for their legitimacy but for their fairness: There is, however, one thing I should like to add which I feel deeply and which is indeed only a corollary: we never shall get along in matters of large public interest, if we proceed by generalizations, indeed, if you insist, by principles, put forward as applicable in all circumstances. Human affairs are too complicated for that; we cannot see far enough ahead so to deal with them. Rather let us say with Cardinal Newman: “One step enough for me.” The consequence is that the only way that public affairs can be successfully managed is by treating each case by itself. … a number of accredited heroes of the past seem to me to have agreed. They have not been anxious to find, and they did not know how to find, abstract principles valid for all situations. They were very largely compromisers. Erasmus was one, for instance; and I always like to think of a man, not so well known, the Marquis of Halifax, George Savile, who wrote the Character of a Trimmer. I should rate Robert Walpole as another; yet he was a maker of the England of the 18th Century. You may think it fantastic of me to include Oliver Cromwell. Let me hasten to say why I do so. He went step to step, and he did not attempt to deal with his material in general terms. Let me give you, as an instance, one utterance of his which has always hung in my mind. It was just before the Battle of Dunbar; he beat the Scots in the end, as you know, after a very tough fight; but he wrote them before the battle, trying to get them to accept a reasonable composition. These were his words: “I beseech ye in the bowels of Christ, think that ye may be mistaken.” I should like to have that written over the portals of every church, every school, and every court house, and, may I say, of every legislative body in the United States. I should like to have every court begin, “I beseech ye in the bowels of Christ, think that we may be mistaken.” (Spirit 229) 38 V ICTORIA S ILVER The affinity of Judge Hand’s approach with a particular strain of seventeenth-century exegetical thought, both religious and civil, extends beyond the reference to Cromwell, who headed, in the words of Sir Charles Firth, “the most tolerant government which had existed in England since the Reformation” (Firth 360); or to Lord Halifax, whose conciliatory Letter to a Dissenter helped persuade the nonconformist community that James II’s specious Declaration of Indulgence presaged no end to the intolerance in which they languished. However posterity chooses to regard the various figures Judge Hand names as “accredited heroes” and “very largely compromisers,” the approach he ascribes to them enjoyed a certain currency, frequently - although by no means exclusively - associated with the principle of equity or epieikeia, Aristotle’s term in the Nicomachean Ethics (1137b). Milton for one shares their approach, as does that English touchstone of reformed theology, William Perkins, who in his little pastoral treatise, Epieikeia (1602), identifies the “moderation of mind” Judge Hand extols as equity, “a rare and excellent virtue whereby men use a true mean and equal moderation in all their affairs and dealings with men, for the maintaining of justice and preservation of peace” (Perkins 481-82). In the locus classicus of English equity jurisprudence, Doctor and Student (1518), Christopher Saint Germain extends the sense of this civil virtue to the ethics of legal judgments, as “a right wiseness that considereth all the particular circumstances of the deed, the which also is tempered with the sweetness of mercy” (Saint Germain 45). That is, equity attends to the just claims of an exceptional or anomalous case over the general categories and formal procedures of the law, when these are simply inapplicable or their application would itself result in injustice. Recalling Aristotle, Saint Germain explains that this principle “is called also by some men epieikeia; the which is no other thing but an exception of the law of God, or the law of reason, from the general rules of the law of men, when they by reason of their generality, would in any particular case judge against the law of God or the law of reason: the which exception is secretly understood in every general rule of every positive law. And so it appeareth, that equity taketh not away the very right, but only that that seemeth to be right by the general words of the law.” (Saint Germain 45-46) In doing so, the practice of equity acknowledges the irreducible complexity of human affairs, whose eventualities no universal rule can fully anticipate or represent (Ethics 1137b), owing not least to the unpredictability of human choice which, as Aristotle argues, renders this species of knowledge particular and so indefinite (Ethics 1112a-b). The law is as fallible as its makers; and equity intervenes to rectify the application of the law when its necessary generality renders a decision deficient in justice - that is, when a discrepancy arises between what the law ordains and what the circumstances of a given ‘ Unequal Proceedings’ and Equitable Interpretations … 39 case rightly demand. Moreover, as extraordinary justice, equity’s determinations are confined to the exceptional instance: originally they constituted a grace, not a precedent, since precedent inexorably inclines in its use to a general rule. As Judge Hand observes of commissions, courts and humanity as a whole: “Like all of us - and that is constantly the fault charged, and properly charged, against courts - after they have proceeded a while they get their own sets of precedents, and precedents save ‘the intolerable labor of thought,’ and they fall into grooves, just as the judges do” (Spirit 241). As I remarked, Milton not only shares but consistently maintains the force of this principle in “matters of large public interest,” most famously in the Areopagitica. However, perhaps the most illustrious of Milton’s present exponents, Stanley Fish, does not, who in his reading of that tract - not to mention seventeenth-century literature as a whole - pays lip service at best to the implications of such complexity, while (gleefully) controverting them by his own professional assumptions and approach. That charge is nothing new to Fish, who handles it with his usual practiced assurance; but I would like to suggest that the consequences of his reading are more than interpretive, more than academic, and in a manner seventeenth-century writers of Judge Hand’s equitable stripe would greet with concern. On that head, Aristotle remarks that “This is also the reason why not everything is guided by law,” since “on some matters legislation is impossible, and so a decree is needed”: “For the standard applied to what is indefinite is itself indefinite, as the lead standard is in Lesbian building, where it is not fixed, but adapts itself to the shape of the stone; likewise, a decree is adapted to fit its objects. (Ethics 1137b) If “Lesbian rule” came to signify expedience in the worse, interested sense, Aristotle’s own usage is not derogatory: rather, he has in mind a certain circumstantial order of judgment or “comprehension,” associated with the capacity to learn things, which he calls “consideration” and links to sungnome or pardon (Ethics 1143a; Irwin 418). That is because the equitable person “is not an exact stickler for justice in the bad way” (Ethics 1137b), but as Terence Irwin observes, “will often find something pardonable in cases where the inflexible application of a rule that is only [usually] true would result in mistaken blame” (Irwin 418). In Irwin’s precise phrase, Aristotle conceives the ‘usual’ (hos epi to polu) as “a universal judgement that is true for the most of the cases it applies to, but not for all,” which in law takes the form of a paradigmatic sense inferred and declared as such, such as precedent (a judgment used to guide future decisions in like cases) or presumption (a supposition or prima facie significance used to characterize like facts in like cases). Both precedent and presumption are in this way forensic short-cuts which substitute for “the intolerable labor of thought,” with precedent the form of doing justice in matters of law, and presumption the form of proof in matters of fact. And both argue 40 V ICTORIA S ILVER a likeness or analogy between previous decisions and the issues of law and fact raised by an individual case - Bracton’s reasoning a similibus ad similia, or like matters decided in like fashion (Bracton 2: 21). The problem to which Learned Hand points is that, whether out of convenience or conviction, we tend to treat the usual as the necessary and true - to mistake the form of justice for the actuality, and ascribe definitiveness, conclusiveness, to what is merely received. By their simple institution, then, precedent and presumption can become an obstacle, not an auxiliary to justice, inasmuch as their formulations are used to impose false necessities on inference. This is certainly Hobbes’ objection to both: “all the Sentences of precedent Judges that have ever been, cannot all together make a law contrary to natural Equity: Nor any examples of former Judges, can warrant an unreasonable Sentence, or discharge the present Judge of the trouble of studying what is Equity (in the case he is to Judge,) from the principles of his own naturall reason” (Hobbes 324). More recently, James Thayer stipulates in the case of presumption that, while it “accomplishes for the moment at any rate, the work of reasoning and evidence, it should be remarked … that neither this result, nor the rule which requires it, constitutes, in itself either evidence or reasoning” (Thayer 337). The exercise of consideration in Aristotle’s sense is directly opposed to such legal formulae and the moral complacency which admits them as truth; for the equitable person will extenuate the gravity of an offense by inquiring into all its particular circumstances, and will do so against received notions and procedures where these fail to do justice. As Irwin notes, not just facts but moral valuations lie for Aristotle in the perception of particulars, insofar as “the trained judgement of an intelligent person will be able to identity the perceptual features that are morally relevant, and will realize that they are” (Irwin 419). Since I cannot improve on Irwin’s examples, I will quote them - “‘This isn’t harmless teasing, but wanton cruelty’, or ‘Giving him the book would be a kind thing to do’” (Irwin 419) - from which it should be clear that Learned Hand’s insistence on consideration and compromise does not make him a libertine or antinomian in the disguise of a judge. On the contrary, what he says assumes the settled parameters of law, within which he offers an ethical approach to its understanding and application: “treating each case by itself,” going “step by step” and eschewing “generalizations.” It is a maxim of equity that aequitatis sequitur legem, “equity follows the law” (Story 1: 60) ; yet, as captured by Judge Hand, equity is more than a set of precepts. Just before he makes these comments to the subcommittee, Hand discounts Bentham’s notion, if not his polemical gesture, of a utilitarian calculus of pain and pleasure (Spirit 228). For as Aristotle observes, the formal rationality that obtains in mathematics is different from the deliberative intelligence of phronesis or prudence, the faculty required for effectively ‘ Unequal Proceedings’ and Equitable Interpretations … 41 negotiating the indefinite realm of ethics and politics (Ethics 1142a). Learned Hand observes elsewhere to the same effect: “We know well that an objective calculus of human values is impossible, and if it were available, would be so thin and speculative that men would not accept it” (Spirit 71). Whether we do indeed know this remains to be seen, since there are still professional minds engaged in the project of such a calculus, whose efforts do not communicate beyond their own discipline for the reason Judge Hand mentions: they operate in the experiential void of the office and the lab, not in the vital, entrancing, desirable, and moral world of human perception and action. Such a project clearly has no appeal for the judge, who offers in its place a disposition or mentality exemplified by the speech and conduct of historical persons, which includes a concern for the human viability of legislation and precedent; a resistance to legal universalism, that is, “abstract principles valid for all situations”; a reciprocal insistence on particular, delimited and methodical answers as against sweeping solutions to such problems as may arise; and as a consequence of this scepticism about the generalized or categorical, a willingness to compromise by focusing on the available grounds of agreement as against the achievement of complete unanimity. There is yet a further aspect of equity that Hand mentions later on in his testimony, which at once motivates and undermines the very concept of an objective calculus, whose presumption to certainty he implicitly castigates here: namely, the legal actuality that “We have to deal with words, and there is nothing more fluid than words” (Spirit 238). It is not that he deplores this egregious fact of civic life: indeed, he celebrates the question - “What are the meanings of words? ” - as “the great issue of interpretation - that fascinating issue which has made 40 years of doing it still to me not altogether dull” (Spirit 245-46). This question is equity’s meat, which “as contradistinguished from mere law, or strictum jus, is applied to the interpretation and limitation of the words of positive or written laws; by construing them, not according to the letter, but according to the reason and spirit of them,” as Joseph Story explains (Story 1: 6): The general words of a law may embrace all cases; and yet it may be clear that all could not have been intentionally embraced, for if they were, the obvious objects of the legislation might or would be defeated. So words of a doubtful import may be used in a law, or words susceptible of a more enlarged or of a more restricted meaning, or of two meanings, equally appropriate. The question in all such cases must be, in what sense the words are designed to be used; and it is the part of a judge to look to the objects of the Legislature, and to give such a construction to the words as will best further those objects. This is an exercise of the power of equitable interpretation. (Story 1: 7) It had been Judge Hand’s job to do just that, one that he believes belongs to the nation’s courts, and not to ad hoc commissions, both of whose practical 42 V ICTORIA S ILVER limits he knows all too well: “I think we sometimes can deceive ourselves into supposing that administration is just a question of getting a man and having him learn the facts and following a perfectly definite rule” (Spirit 238). Experience has taught him that no law is self-evident in its application, but like Aristotle’s Lesbian rule, requires us to adapt its terms to the circumstances which obtain in each case - an interpretive predicament that is naturally as fluid as the meanings of the words themselves. The consequence is a superabundance of official language and its ceaseless interpretation, both of which are conditions endemic to government and therefore a civil exigency, but no unrelieved evil to Learned Hand, because the regulatory language of law also serves as a bulwark against the arbitrary exercise of political power: “The result of statutes and regulations is a wilderness of words, although indeed that is inevitable, since it is the only protection of the individual against the unlimited discretion of small officials” (Spirit 247). Any attempt by government to dictate the daily choices of individuals is totalitarianism, tyranny at its most officious, at once intimate and insidious. As the general parameters of law must constrain the discretionary power of equity, so the manifold interpretation of the law hems in and restricts the arbitrary power of government over the governed. But the humility and scepticism informing Hand’s approach to law - “think that we may be mistaken” - is one usually lacking in those who propose to achieve an ideal polity or social harmony by positively legislating human conduct. Such legislators, as Judge Hand comments, are inclined to suspect others’ capacity for right action but not their own; thus he adjures the Senators to “remember that we are all inferior creatures, we are humans and our imperfections will come out in one way or another” (Spirit 231). Again, both the law and its administrators are finite and fallible; and this is the force of the equitable change Hand effects in Cromwell’s language, replacing the second person pronoun “you” with “we,” since “We cannot expect more of other people than we have ourselves” (Spirit 231). It makes the same point with which he concludes his testimony, in rejecting the truism that “the only teaching of history is that history does not teach anything” (Spirit 249). On the contrary, he argues, “history does give us education in this sense: it teaches us skepticism about any easy explanations”; for “if we are going to get along, it can only be by the growth of skepticism; and skepticism comes best from acquaintance with the past” (Spirit 249-50). In this spirit, Learned Hand quotes from a document that was three hundred years old at the time of the hearings - Cromwell’s letter of 31 August 1650, addressed to the General Assembly of the Kirk of Scotland, and in lieu of this body, to their commissioners: “I beseech you, in the bowels of Christ, think it possible you may be mistaken” (Cromwell 2: 96). It is also in this spirit that I raise the question of seventeenth-century understandings of the relationship between law ‘ Unequal Proceedings’ and Equitable Interpretations … 43 and equity as they apply to the constructions placed on authoritative texts, which are used to justify an intent other than the one they express. For the activity of interpretation can be more ostensible than real, and its results worthy of our scepticism. As Judge Hand anticipates, the inclusion of Cromwell in his list of worthies may seem “fantastic,” especially as the letter to which he refers is consequent upon the New Model Army’s preemptive invasion of Scotland, precipitated by the Kirk’s embrace of the teenage Charles II, who armored with an equal cynicism, had duly assimilated himself to the Solemn League and Covenant. The New Model had already suffered in 1648 from what it regarded as Presbyterian duplicity, when at the connivance of likeminded parliamentarians, the Scots joined with Charles I to invade England. So the commonwealth government felt justified in discounting the oath all had sworn to the Covenant at the outset of the English civil war; in its eyes, the Scots had broken their sworn word, and released the English from theirs. Command fell to Cromwell, whose distinctive voice S. R. Gardiner detects in the parliamentary proclamation of war against the Scots: “‘We cannot but think,’ Parliament was asked to say in justification of the proposed invasion, ‘that an interest of dominion and profit under a pretense of presbytery and the Covenant, is by these men of more value and esteem than the peace and love of the Gospel, to which all that may be called discipline or government in the Church is, and ought to be subordinate; and for which the least violation of the love and peace before mentioned ought not to be’” (Gardiner 1: 260). For Cromwell’s letter to the Kirk contains these very ideas, questioning whether the Scots were moved by the venal motive to aggrandize themselves at the expense of peace between the two nations, and to the inequitable end of imposing a Presbyterian theocracy on England. But he goes still further, arguing that the Kirk’s dogmatism exacts the same price from its own people, violating the “peace and love of the Gospel” by denying the Scots that liberty of conscience exercised by the New Model, and which the Protectorate will subsequently seek to secure for its own Protestant citizens. Although Cromwell declares that “The Lord hath not hid His face from us since our approach so near unto you,” in the shape of those special providences which the general regularly invokes (and for which he is as regularly ridiculed), his letter challenges the leaders of the Kirk in the dogmatic construction they place on the words of scripture and so their religious claims, as well as the wisdom of their civil policies (Cromwell 2: 96). That challenge may seem hypocritical, given the pervasive pietism of the New Model; but unlike his furious hosts, and despite his ceaseless scanning of the horizon for intimations of God’s will, Cromwell recognizes the insuperable constraint placed on any such inference by the very fact of conflict with those 44 V ICTORIA S ILVER whom he views as his co-religionists. Were the signs of divine sanction so unequivocal at this juncture - what with Leslie holding his position while bad weather forces Cromwell to retreat to his supplies, confirming in the Kirk’s eyes that God fights for the Scots - no such conflict could occur, nor would the English have won at Dunbar against more than twice their own number (Gardiner 1: 282). But the significance things have for us is hostage to the exigencies of circumstance. So although he never desists from reading the signs of the times - a conceptual habitus common to most human beings in that age and this - it seems to me, especially as the Protectorate wore on and experience taught him still greater scepticism, that while he may infer from events, he is too shrewd to conclude from them. Cromwell does not suppose that theology wins battles, nor does the Council of State that employs, funds, arms and levies troops for him. He makes no decision on the grounds of any sign’s putatively supernatural force, but waits on the hand of providence, which is to say that he suspends judgment until the outcome is achieved and known in the ordinary way. And in this case, the actual as against predicted outcome once again proves the functional superiority of the New Model to its opponents - for all that it was “a poor, shattered, hungry, discouraged army” - as it does the skilled tenacity of Cromwell’s own generalship (Gardiner 1: 282). Inevitably, there are echoes of Agincourt in the accounts of Dunbar, where the Scots lost thirteen thousand men (ten thousand of them prisoners) to the English, two hundred colors, enormous amounts of artillery, baggage and arms, while according to Cromwell, the invaders’ own losses amounted only to about twenty men (Gardiner 1: 295). But there is also a distinctive theopathic twist to the battle, which here substitutes Presbyterian dogmatism for French complacency as the underlying cause of their foe’s defeat. For Leslie’s army, possessed of an able, experienced commander and vastly greater numbers, was unfortunately “split asunder in heart and mind by the wedge of faction,” as enforced by the Kirk’s Committee of Purging, a situation Gardiner describes with no little irony: “Wherever the veil is lifted the Scottish army is seen to be cleft asunder by the spirit of party, the clergy and the members of the Committee of Estates who sympathised with them distrusting the more worldly-minded soldiers as Malignants and Engagers; whilst the more worldly-minded soldiers writhed under the yoke of the fanatics and, bearing in mind the interviews of the strictly covenanting officers with the English commanders, even suspected them of a settled intention to betray the army to the enemy” (Gardiner 1: 283). This is reading signs with a vengeance, nor did the Scots spare their actual enemy. Thus Cromwell complains to the Kirk that “by your hard and subtle words, you have begotten prejudice in those who do too much, in matters of conscience - wherein every soul is to answer for itself to God, - depend upon you. So ‘ Unequal Proceedings’ and Equitable Interpretations … 45 that some have already followed you, to the breathing out of their souls: ‘and’ others continue still in the same way wherein they are led by you, - we fear, to their own ruin.” (Cromwell 2: 95) By the phrase, “matters of conscience,” Cromwell alludes to that Pauline liberty of religious understanding and choice to which Luther gave ardent life in his Freedom of a Christian (1520), and which in this context evokes doctrinal matters not judged dogmatic but left to the judgment of each believer, as inessential to salvation and so susceptible of latitude in individual opinion and practice - adiaphora or “things indifferent” in the contemporary phrase. It is a doctrinal restraint upon the expansion of dogma that, according to Maurice Ashley, defined for Cromwell the intent of his own civil policies: “in all his political compromises and even during the period of Puritan military government which he imposed, Oliver Cromwell never departed from the principle that he held dear, that of ‘liberty of conscience’” (Ashley 105): “Soon after the battle of Dunbar, arguing with those who said that if you gave people liberty freely to preach the Gospel of Jesus Christ error might step in. Cromwell answered: ‘Your pretended fear lest error might step in is like the man who would keep all wine out of the country lest men should be drunk.’ And in a speech to Parliament in 1654, he said: ‘Notions will hurt none but them that have them.’ In these two sentences is the essence of the modern ideas of toleration; can we think of any other ruler of his time who would have talked to parliament or to his people in that sort of way? ” (Ashley 105) Indeed, Firth remarks that “The originality of the Protector’s ecclesiastical policy lay in this attempt to combine the two principles of toleration and comprehension,” a tolerance which “was not the result of scepticism or indifference, but arose from respect for the consciousness of others” (Firth 361-62). So the letter Cromwell addresses to “them as fear the Lord” charges the Kirk with exercising and aggravating by “hard and subtle words” a doctrinal rigor that already intrudes upon liberty of conscience, enforced by “those who do too much” in the way of imposing this orthodoxy, to the extent of precluding a political rapprochement with the more ecumenical English, who are represented “to the people as if we were monsters of the world,” an “Army of Sectaries and Blasphemers” (Carlyle 2: 89). Cromwell accordingly points out that no debate was admitted within the Scots camp (“you can find it in your hearts to conceal from your own people the Papers we have sent you, who might thereby see the bowels of our affections to them”), while the English have allowed the Kirk freely to distribute its justifications among the members of the New Model (Cromwell 2: 95): “Send as many of your Papers as you please amongst our; they have a free passage. I fear them not. What is of God in them, would it might be embraced and received! ” (Cromwell 2: 95) And finally, he is moved to the 46 V ICTORIA S ILVER reproach and plea that Judge Hand would have engraved on every public building but especially every court in the United States, while Cromwell himself cites in a similar spirit Isaiah 28: 5-15, where the prophet condemns the false pride and immoderation of Jerusalem’s religious and civil leaders, who collude with Egypt on the eve of the Assyrian invasion: Your own guilt is too much for you to bear: bring not therefore upon yourselves the blood of innocent men, - deceived with pretences of King and Covenant; from whose eyes you hide a better knowledge! I am persuaded that divers of you, who lead the People, have laboured to build yourselves in these things; wherein you have censured others, and establish yourself “upon the word of God.” Is it therefore infallibly agreeable to the Word of God all that you say? I beseech you, in the bowels of Christ, think it possible you may be mistaken. Precept may be upon precept, line may be upon line, and yet the Word of the Lord may be to some a Word of Judgment; that they may fall backward, and be broken and be snared and be taken! There may be a spiritual fulness, which the World may call drunkenness; as in the second chapter of the Acts. There may be, as well, a carnal confidence upon misunderstood and misapplied precepts, which may be called spiritual drunkenness. There may be a Covenant with Death and Hell! I will not say yours was so. But judge if such things have a politic aim: To avoid the overflowing scourge; or, To accomplish worldly interests? And if therein we have confederated with wicked and carnal men, have respect for them, or otherwise ‘have’ drawn them in to associate with us, Whether this be a Covenant of God, and spiritual? Bethink yourselves; we hope we do. (Cromwell 2: 96) Isaiah 28 pervades Cromwell’s criticism of the Scots, in the very implication that they have dealt corruptly with the Commonwealth by dealing with Charles II, once again making themselves a by-word for political expedience - Marvell’s Pict who “no shelter now shall find / Within his parti-coloured mind” (“An Horatian Ode” 55-58). For the “Covenant with Death and Hell” to which Cromwell alludes is that with which the prophet reproaches Israel’s secular leaders, who fondly imagine they can play the great powers of Assyria and Egypt off against each other, even as the Scots would do with royalists and commonwealth-men. So Isaiah has the apostate governors of Jerusalem (“you scoffers”), who have repudiated the Lord’s guidance, expose their own inevitably faithless strategies (Is.28: 14): “‘We have made with a covenant with death, / and with Sheol we have an agreement; / when the overwhelming scourge passes through / it will not come to us; / for we have made lies our refuge, / and in falsehood we have taken shelter’” (Is. 28: 15). But unlike his opponents, Cromwell conspicuously refrains from lambasting in Isaiah’s terms the Solemn League and Covenant, not to mention the motives of its promulgators and adherents. Rather, he chooses to repudiate the scriptural reading that would identify his own army - caricatured as so many enthusiasts and libertines, false prophets and antichrists - ‘ Unequal Proceedings’ and Equitable Interpretations … 47 with Isaiah’s corrupt priest and prophet, who “stagger with strong drink; / they err in vision, / they stumble in giving judgment” (Is. 28: 7). But as Cromwell remarks, scripture talks about more than one kind of drunkenness. For Isaiah’s religious rulers do not reel and sway with the “spiritual fulness,” the ecstatic power of revelation, as did the apostles at Pentacost who, like the New Model, were called drunkards and judged licentious. Rather, in Cromwell’s account, the “spiritual drunkenness” Isaiah pictures, which covers the altars and holy places with vomit and filth, manifests the opposite condition: a religion that has been evacuated of moral and spiritual meaning, worshipping the mere letter of the law and so devolving upon an empty, ineffectual iteration of words, and only words. In support of that contention, Cromwell quotes nearly all of Isaiah 28: 13: “the word of the LORD will be to them / precept upon precept, precept upon precept, / line upon line, line upon line, / here a little, there a little; / that they may go, and fall backward, / and be broken, and snared, and taken.” By this language, the prophet evokes a mechanical exegesis - not altogether unlike that Judge Hand calls “the dictionary school” of legal interpretation (Spirit 107) - which divides up God’s expressions into arbitrary, trivial and monotonous measures which, no longer instinct with divine meaning and power, are repeated but not understood, serving only to reproduce in the people the religious void, fragmentation and impotency of their leaders. Then, in Cromwell’s interpolation, the scriptural word can become a “Word of Judgment” upon its exponents, who commit the very faithlessness against which they inveigh, “a carnal confidence upon misunderstood and misapplied precepts.” In such a way, he implies, the Kirk and its commissioners have abused their authority to pervert the perception of the Scottish people, who are “deceived with pretences of King and Covenant,” while simultaneously denied the “better knowledge” of English intentions, clearly and amply evidenced by the New Model’s public declarations. For, he observes, “divers of you … have laboured to build yourselves in these things, wherein you have censured others, and established yourselves ‘upon the Word of God,’” which is to pervert religious things to “a politic aim” and “worldly interests.” Yet once again, Cromwell does not apply Isaiah’s picture of Judaic corruption directly or necessarily to the Kirk; for he has cast the whole of the thirteenth verse in the conditional or subjunctive mood of its final lines (with “may” displacing Isaiah’s unqualified assertion), framing it as a warning that the Kirk must beware the consequences of dogmatism - of laying claim to truth and censoring others as if it had the ear of God. So with a scepticism and self-suspicion like that to which he exhorts assembly and commissioners, he insistently inquires of them: “Is it therefore infallibly agreeable to the Word of God, all that you say? I beseech you, in the bowels 48 V ICTORIA S ILVER of Christ, think it possible you may be mistaken.” He concludes his argument with the equitable adjuration, “Bethink yourselves; we hope we do,” and his adieu is charity itself: “The Lord give you and us understanding to do that which is well-pleasing in His sight” (Cromwell 2: 96). On this head, Learned Hand argues that justice consists in the ability of the legal profession to make “that most difficult of adjustments,” without which the practice of law becomes “a barren scholasticism” - namely, “an understanding of and sympathy with the purposes and ideals of those parts of the common society whose interests are discordant with its own” (Spirit 17): Yet nothing can be more certain than that its authority as interpreter of customary law must in the end depend upon its power to learn precisely that adaptation. As mediator it must grasp from within the meaning of each phrase of social will; it must divine the form of what lies confused and unexpressed and must bring to light the substance of what is half surmised. To adjust and to compromise, to balance and to value, one must first of all learn to know, not from the outside, but as the will knows. … Moreover, as we are coming now to learn, no human purpose possesses itself so completely in advance as to admit of final definition. Life overflows its moulds and the will outstrips its own universals. Men cannot know their own meaning till the variety of its manifestations is disclosed in its final impacts, and the full content of no design is grasped till it has got beyond its general formulation and become differentiated in its last incidence. (Spirit 17) A judge not only interprets the words of the law but also its motives, circumstances, implications, precedents, and what is more, its capacity to meet the needs of dissenting constituencies and new emergencies. This is equitable interpretation; and the best interpreter is one who does not read superficially, according to the letter alone, but who fully imagines the occasion that brought a given statute or decision into being. Such a reader will also be the law’s best adjudicator; for having learned how to negotiate between all the criteria we ordinarily and almost unconsciously use to make sense of human expressions, that person will bring this complex understanding to the equally manifold and often unanticipated contingencies which the law is asked to meet. For its actual significance is not general but particular to every occasion of judgment, when the law is made vividly intelligible, not to mention effectual by its application. The issue of the law’s public intelligibility is crucial for all who are called to the bar, whether lawyers or judiciary, but still more so for those who have chosen to subject themselves to its governance, the people who must live it out. For despite the vicissitudes of interpretation, legal language is not algebra or esoterica, nor would Learned Hand have it become such: “Much might be gained in precision, for example, if we could use a technical terminology like that of science, whose conquests depend so largely upon its coined symbols, free from the emotional connotations of colloquial speech. ‘ Unequal Proceedings’ and Equitable Interpretations … 49 This can not be. There is something monstrous in commands couched in invented and unfamiliar language; an alien master is the worst of all.” (Spirit 56) Aristotle also argues that the pursuit of mathematical accuracy or precision is not only misguided in the indefinite realm of human affairs (since the aptitude of a decision depends on outcomes as yet unknown and therefore subject to deliberation), but potentially immoral insofar as it is programmatically oblivious to those particular aspects of meaning on which moral valuations depend (Ethics 1142a). Indeed, Hand’s last remark makes newly apposite Cromwell’s comment about the “pretended fear” that doctrinal error will prove a religious and moral contagion, thus justifying intolerance and the forcible regulation of opinion. A tolerationist himself, John Milton shares Cromwell’s disdain for such civil precisionism, and in the tract where he memorably argues the separation of church and state, A Treatise of Civil Power (1659), observes in almost the same words that “as a preface to force, it is the usual pretence, That although tender consciences shall be tolerated, yet scandals thereby given shall not be unpunished, prophane and licentious men shall not be encourag’d to neglect the performance of religious and holy duties by color of any law giving libertie to tender consciences” (Milton 7: 267). And like Cromwell, he dismisses the repressive invocation of scandal, equitably insisting that “to heal one conscience we must not wound another” (Milton 7: 267). Learned Hand also criticizes this conservative tendency to link the exertion of such constraints on interpretation and opinion, especially the law’s strict construction, with the rigorous exercise of judicial integrity - equating obedience to the letter with obedience to the right - as if admitting the irreducible contingency of interpreting and applying the words of the law were the slipperly slope to judicial license and unwarranted activism. Yet such judges will jettison their literalist scruples with all the licentious verve imputed to their liberal colleagues when the conservation of the letter would interfere with the conversation of the status quo. As Hand observes: “Ulpian might take as the constitutive principle of justice the steady and eternal purpose to give each man his own, but no a priori concepts can determine in advance what each man’s own shall be, and the form of justice will be without content till we fill it with the ardor of life” (Spirit 15). So it is interesting to consider how that equation of strictum jus with rigorous thought and interpretive integrity, which contends that there can be only one precedent and right meaning to any human expression or predicament, is not confined to the arbiters of law, whether religious or civil. It extends to literary criticism, where the notional superiority of the critic’s presumptions authorizes interpretion no less expediently to substitute its own meanings for the intent of any expression not of its making. Here is a sentence from Milton’s Areopagitica (1644), addressed to the predominantly 50 V ICTORIA S ILVER Presbyterian Long Parliament, which had seen fit to reinstate the crown’s practice of licensing under its own ordination in 1643, owing to “the great late abuses and frequent disorders in Printing many false, forged, scandalous, seditious, libellous, and unlicensed Papers, Pamphlets, and Books to the great defamation of Religion and Government” (Firth and Rait 1: 184). Encouraged by the Long Parliament’s campaign against religious dissent and other acts of public immorality, the Stationers’ Company had complained about the publication of unlicensed tracts at the expense of its monopoly, mentioning Milton and one other by name, which apparently led the Lords to call for his examination by a judge, with members of the Stationers’ Company present as witnesses (Parker 1: 264-65). We know nothing further, except that Milton was at what he must have felt to be fragile liberty in 1644, at the time that he composed this tract. The sentence in question expands a comparison Milton makes of truth to the new Proteus: “give her but room,” he says, “& do not bind her when she sleeps, for then she speaks not true, as the old Proteus did, who spake oracles only when he was caught & bound, but then rather she turns herself into all shapes, except her own, and perhaps tunes her voice according to the time, as Michaiah did before Ahab, untill she be adjur’d into her own likenes” (Milton 2: 563). The bondage of Proteus to which Milton alludes is of course censorship, a practice with its own incoherence since it assumes the perfect transparency of truth in order to preserve us from truth’s perfect dissimulation. To that end, the ordinance declares that no “Book, Pamphlet, paper, nor part of any such Book, Pamphlet, or paper shall from henceforth be printed, bound, stitched or put to sale by any person or persons whatsoever, unless the same be first approved of and licensed under the hands of such a person or persons as both, or either of the said Houses shall appoint for the licensing of the same, and entred in the Register Book of the Company of Stationers, according to ancient custom, and the Printer thereof to put his name thereto” (Firth and Rait 1: 185). In response, Milton argues (as he always does in my experience) that any undue constraint placed on human expression will generate only arbitrary or opportunistic meanings, still more remote from that godlike truth - one, essential, immutable and absolute - which humanity likes to envision for itself. This vision of a transcendent truth he seems to share, at least until the next sentence when Milton proves himself every censor’s worst nightmare: “Yet is it not impossible that she may have more shapes than one” (Milton 2: 563). Double negatives are a favorite device of his, whose initial ambiguity here would seem to suggest that truth may have more shapes than one in Milton’s own statement. The reader’s dilemma could be put this way: do we read the phrase as “yet isn’t it impossible,” or as “yet is it not impossible”? Given the ‘ Unequal Proceedings’ and Equitable Interpretations … 51 initial analogy of the protean to the false, it could be argued that the sentence rejects the multiplicity of truth, which (to complete the comparison where Milton does not) would happily unify if it were not forcibly and inexpertly regulated by the parliamentary censors. Such a reading would certainly confirm one prevalent idea of the Areopagitica, namely, as an Enlightenment polemic in which human reason, given the rightful liberty of its own natural estate, summarily banishes the false gods of custom and prejudice. But Milton is not describing truth per se, which for him has the status of a religious postulate, not a human actuality. Instead, his subject is truth’s expressions in this world - the copious, proliferating ways in which we as individuals make some enduring sense of our experience, whose figure is a truth-telling yet unconstrained Proteus. So it is fitting that Milton’s peculiar kind of truth would intervene to save the sense of Milton’s statement, as he asks, “What else is all that rank of things indifferent, wherein Truth may be on this side, or on the other, without being unlike her self? ” (Milton 2: 563). As I mentioned above, the phrase “things indifferent” refers to the theological principle granting believers an individual latitude of observance in matters deemed inessential to salvation, a latitude that the image of a manifold truth handily affirms and extends. For in a deft show of expressive liberty, Milton now uses that protean figure to an apparently opposed purpose, which is to argue that we never apprehend truth as single and immutable anyway - that it is something more often emergent than a priori, contingent than axiomatic, occasioned by the particular circumstances of each person’s understanding and choice. Consequently, we must bring to our experience a temperance not only of body but of mind, that instrumental scepticism about ourselves, not others, which Judge Hand advocates, and which resists the impulse arbitrarily to resolve the natural ambiguity of our expressions by excluding other viable meanings, and prematurely to assert the identity of truth in a world where it may have more shapes than one - as many, in other words, as there are persons who honestly pursue it. This strategy typifies the Areopagitica, whose argument is figural, associative, ramifying - in other words, exemplary of that manifold possibility of significance that Milton has just evoked, whose most considerable image is the building of the Lord’s temple: Where there is much desire to learn, there of necessity will be much arguing, much writing, many opinions; for opinion in good men is but knowledge in the making. Under these fantastic terrors of sect and schism, we wrong the earnest and zealous thirst after knowledge and understanding, which God hath stirr’d up in this City. What some lament of, we rather should rejoyce at, should rather praise this pious forwardnes among men, to reassume the ill deputed care of their Religion into their own hands again. A little generous prudence, a little forbearance of one another, and som grain of charity might win all these diligences to 52 V ICTORIA S ILVER joyn, and unite into one generall and brotherly search after Truth; could we but forgoe this Prelaticall tradition of crowding free consciences and Christian liberties into canons and precepts of men. … Yet these are the men cried out against for schismaticks and sectaries; as if, while the Temple of the Lord was building, some cutting, some squaring the marble, others hewing the cedars, there should be a sort of irrationall men who could not consider there must be many schisms and many dissections made in the quarry and in the timber, ere the house of God can be built. And when every stone is laid artfully together, it cannot be united into a continuity, it can but be contiguous in this world; neither can every peece of the building be of one form; nay rather the perfection consists in this, that out of many moderat varieties and brotherly dissimilitudes that are not vastly disproportionall arises the goodly and the gracefull symmetry that commends the whole pile and structure. (Milton 2: 554-55) As he did earlier, Milton indicts the “irrational” demand for a single, definite and transparent or immediate knowledge, which does nothing short of traduce human being, whose finite existence does not permit such seamless unity. He calls the demand irrational because it extravagantly misrepresents the ordinary conditions of human understanding, which are not “continuous” but “continguous” in this life - that is to say, not identical but manifold, not transcendent but contingent, not innate but artistic in the Aristotelian sense. In this life, Milton argues, we can’t simply assert the unity of human knowledge, but must gradually fashion its coherence out of our abundant yet disparate experience. By contrast, censorship’s implicit requirement of correctness imagines an automatic because innate, ideal or axiomatic truth, leaping fully-formed from the head of man or god, or at least from the minds of those who claim to uphold it, but who actually enforce what Milton calls the “canons and precepts of men.” This is that “barren scholasticism” to which Isaiah, Cromwell and Judge Hand all take exception, and to whose mechanical rationalism Milton opposes the humane and reasonable values of prudence, forbearance and charity, which allow individuals to join together without prejudice in a community of knowledge - the concord captured by Milton’s figure of the Lord’s temple. For sociability is the instinctive need on which all politics depends, to which law conduces by negotiating between that profound human imperative and the no less insistent and profound consideration of human individuality. In doing so, law must itself be made reasonable, and that entails the acknowledgment of its own limitations: thus Milton exhorts parliament, as Cromwell does the Kirk, to “think it possible you may be mistaken.” This is the force of Milton’s memorable observation that “Good and evill we know in the field of this World grow up together almost inseparably; and the knowledge of good is so involv’d and interwoven with the knowledge of evill, and in so many cunning resemblances hardly to be discern’d, that ‘ Unequal Proceedings’ and Equitable Interpretations … 53 those confused seeds which were impos’d on Psyche as an incessant labour to cull out, and sort asunder, were not more intermix’t” (Milton 2: 514): It was from out the rinde of one apple tasted, that the knowledge of good and evill as two twins cleaving together leapt forth into the World. And perhaps this is that doom which Adam fell into of knowing good and evill, that is to say of knowing good by evill. As therefore the state of man now is; what wisdome can there be to choose, what continence to forbeare without the knowledge of evill? He that can apprehend and consider vice with all her baits and seeming pleasures, and yet abstain, and yet distinguish, and yet prefer that which is truly better, he is the true warfaring Christian. (Milton 2: 514-15) From this twinned myth of the fall as humanity’s entry into the historical predicament of moral discernment and decision, we might reasonably infer that rationality in the Areopagitica is neither ideal nor mechanical, but practical, flexible, and eloquently so; “for reason is but choosing” (Milton 2: 527), and thus involves not one conceptual act but a whole train - apprehending, considering, abstaining, distinguishing and preferring. It is something we do in the world as against something we possess of ourselves - a perpetual activity, not a property of human being - which is why Milton insists on ideas first having public room in which to maneuver and contend before judgment is given on their value, even as this latitude of inquiry can be no more absolute than any other human thing, given that freedom itself is only a value within community, not without it. Accordingly, he makes the limits of both liberty and authority those voluntary constraints on human thought and action which Milton has advocated at least since 1634, when he wrote Comus - namely, temperance and charity or moderation and mercy, which are the equitable principles enabling us to fashion and sustain a common life. And here Milton does not scruple to speak of perfection; but the perfection he evokes is moral and civil, not logical or metaphysical, having to do with how we ought to achieve and conduct those shared understandings we call knowledge. Yet some readers, who more than a little resemble those “irrational men” Milton decries, prefer to construe his expressive contingencies as contradiction and indeterminacy, and so to proclaim the collapse as against the creation of meaning and community in the Areopagitica. This is a different sort of scepticism from that cognizance of human fallibility, that instructive selfsuspicion, to which Judge Hand enjoins us all: its purpose is not tolerant or inclusive but restrictive, exclusive, and its method a version of strictum et summum jus which argues that our experiences and expressions must mean in one way and one way only if they are true, in the presumption that this correct significance cannot be the sense we intend, which the sceptic exposes as insufficiently rigorous, self-contradictory, deluded or fraudulent. But as the Areopagitica predicts, the appearance of untruth or contradiction in 54 V ICTORIA S ILVER such cases is fostered by our own dogmas of truth, which demand that the text observe the order of meaning we ourselves embrace when it is in the midst of arguing another. An always compelling example of this insistence is the irrepressible Stanley Fish, who argues “that Milton is finally, and in a profound way, not against licensing, and that he has almost no interest at all in the ‘freedom of the press’ as an abstract or absolute good (and, indeed, does not ambiguously value freedom at all); and that his attitude towards books is informed by none of the reverence that presumably led the builders of the New York Public Library to have this sentence from the tract preside over their catalogue room: ‘A goode Booke is the pretious life blood of a master spirit, imbalm’d and treasur’d up on purpose to a life beyond life’” (Fish 235). This statement is not altogether perverse; for as William Parker observes of Milton: “He agreed that the printer’s (and perhaps the author’s) name should be registered; he was convinced that mischievous or libellous books should be punished and suppressed. But only after publication. It was the licensing, the pre-publication censorship, that seemed to him an affront to all learning.” (Parker 1: 266) But those are not the grounds on which Fish builds or unbuilds his Areopagitica: the warrant for his thesis is neither factual, nor even discursive in the ordinary way, but precisely logical; and yet it involves a contradiction of its own. For only by imposing an extrinsic, antipathetic canon of sense on Milton’s writings, can Fish manage to reveal in them the presence of an antinomian theology - the “doctrine of the inner light” (Fish 236) - whose strict abstinence from sense frees him to draw the following conclusion: that Milton’s “entire career can viewed as an exercise in vigilance in which he repeatedly detects in this or that political or social or ecclesiastical program one more attempt to substitute for the authority of the inner light the false authority of some external and imposed rule” (Fish 236). With his typical panache, Fish calls this exercise (after a phrase in Tetrachordon) “being driven from the letter” (Fish 243), whose semantic asceticism perfectly suits him because it is what he himself does, professedly after Derrida (Fish 252). Thus, in Milton’s name, he imposes upon us an austere interpretive discipline that Fish identifies as Miltonic ethics, which proceeds to despoil the text of any sense that is not notionally indeterminate and therefore saliently senseless. As an example of such chaste semantics, here is how he understands the Areopagitica’s analogy comparing truth to Proteus: Truth in short has receded from our view, but the rhetoric of the passage still allows us to assume that she will once again come into focus if only we allow “the wars of truth” to continue without prior restraint. The point is made by a comparison of truth with Proteus, the notorious shape-shifter and emblem of deception. Proteus, Milton reminds us, would only appear in his own shape when he was bound; but in the case of truth it is exactly the reverse; if you bind or con- ‘ Unequal Proceedings’ and Equitable Interpretations … 55 strain her, “she turns into all shapes except her own” . … The moral is clear: “give her but room,” allow those who claim to know her to contend in the field, and she will soon be discernible. But that moral becomes unavailable with the very next sentence. “Yet, it is not impossible that she may have more shapes than one.” But if she has more shapes than one, then she has no shape, and is exactly like Proteus, a figure who escapes every attempt to bind her, even when that attempt takes the form of a carefully staged battle at the end of which she is to emerge; and when Milton concludes this sequence by declaring that “Truth may be on this side, or on the other, without being unlike herself,” the reflexive pronoun is an almost mocking reminder that the object of our quest has never more escaped us than when we think to have it in view, and is always unlike herself. (Fish 245) Either Fish’s edition is itself driven from the letter of the Areopagitica (“Yet, it is not impossible”), or he himself automatically resolves Milton’s ambiguity. Be that as it may, his resolution clarifies where our readings of the sentence diverge: on the categorical grounds that a manifold truth can be no truth at all, Fish reveals that Milton’s figure is a cunning device, a confidence trick that for our own good denies us access to the very truth it promises, and on which seemingly depend the justification of books, a free press, not to mention the “classical liberal vision” of the Areopagitica (Fish 248). As Fish describes this figural duplicity, it involves expressions which purport to exemplify truth even as they confound it by violating all the logical laws of thought: the law of identity, in that truth is not what it is if it is various; the law of noncontradiction, in that truth cannot be opposed to itself and still be truth; and the law of excluded middle, since truth cannot be true and untrue at the same time and in the same way. Fish can do this by treating Milton’s figure of speech not as an expression - a way of speaking or making sense of our experience like Cromwell’s special providences - but as a peculiarly discrete entity that behaves like a body moving in space and time and so objectively, causally, symbolically. That is why “she” cannot “be on this side, or on the other, without being unlike herself” - at least not according to Fish’s Newtonian physics. Where the meanings we usually make acknowledge only grammatical parameters (and with a great deal of expressive latitude), symbolic meanings of this order observe the same constraints as the perceived reality to which they are assimilated. So when the letter of Milton’s text fails in simple and exact determinacy of sense, which it must because it does not speak the mensurable, categorical language of Fish’s syllogistic, humanity’s only recourse is an extreme, or rather immoderate display of temperance, a virtuous retreat into the transcendental liberty and ethical void of solipsism - what Fish calls “modes of being, inward dispositions, conditions of a heart that is always yearning for new revelations,” which are “only futile if we conceive of it as a search for something external to us” (Fish 246). We are thus effectively consigned to quietism, if not quiescence, where we 56 V ICTORIA S ILVER must remain conceptually continent until “our Master’s second coming,” at which apocalyptic juncture we too will become “a living oracle” like him (Fish 252). This solipsistic consummation begs the question of virtue’s audience and purpose: to whom and to what effect can we possibly be oracular except ourselves? But as everyone knows, Milton follows his account of the “true warfaring Christian” with the remark that he cannot praise “a fugitive and cloister’d vertue, unexercis’d & unbreath’d, that never sallies out and sees her adversary, but slinks out of the race, where that immortall garland is to be run for, not without dust and heat” (Milton 2: 515). Now Fish never says that his version goes unexercised: on the contrary, the inner light is kept frenetically busy negating all “external” claims to meaningfulness; yet by Fish’s own logic, virtue cannot sally out to combat these claims because it has categorically repudiated any ‘out’ to which it can sally - no intelligible world or mind besides its own. Thus, in the Areopagitica, Fish’s Milton enacts for our sakes a thoroughly intransitive and so oxymoronic virtue, in which he resembles nothing so much as the Wittgenstein of the Tractatus, whose transcendental solipsist never appears in its world but serves instead as the inarticulate boundary or limit of what can be said. And like Fish’s Milton, the early Wittgenstein regards what can be said as merely trivial or relative. But if we set aside this categorical logic and simply try to make sense of what Milton does say, which Fish seems curiously reluctant to do, his expressions argue that Milton would scorn Fish’s transcendentalism as “but a blank vertue, not a pure; her whitenesse … but an excrementall whitenesse,” because neither solipsism nor the eschaton proposes - if I may steal a phrase - to transform the public sphere but simply to vacate it (Milton 2: 515-16). At the same time, Fish would have the conduct of Milton’s trope prescribe the conduct of Milton’s reader, whose existence must still be postulated if the Areopagitica is to do its work of disabusing and disappointing, so that we too will rigorously resist the seductions of language, history and politics in favor of an inward and inexpressive state of grace. We do this by imitating Fish, our own living oracle, and refusing to rest in the discursive appearance of meaningfulness as though it were real and effectual - part and parcel of what the critic dismisses as the “classic liberal plea” for which he substitutes this antinomian refusal (Fish 234). And the Areopagitica is the symbolic enactment of that refusal, which “involves encouraging the reader to a premature act of concluding or understanding which is then undone or upset by the introduction of a new and complicated perspective” (Fish 246). “The result is, of course, disorienting, but” - Fish avers - “it is also (or so Milton’s claim would be) salutary, for in the process of being disoriented the reader is provoked to just the kind of labor and exercise that is necessary to the constitution of his or her own virtue” (Fish 246). Now this could ‘ Unequal Proceedings’ and Equitable Interpretations … 57 just mean that Milton’s arguments are complex, his expressions difficult to parse, and the mental effort we expend in making sense of both strenuous; but it seems there is no sense to be had: “the tract becomes at once an emblem and a casualty of the lesson it teaches, the lesson that truth is not the property of any external form, even of a form that proclaims this very truth” (Fish 246). According to Fish, then, the Areopagitica is a kind of critique of our assumptions about truth, a thesis with which I would agree up to a point - the point at which Fish converts contingency of meaning into sheer indeterminacy, which is the same point at which I always diverge from his blindingly plausible accounts of seventeenth-century literature, when he has decimated the viable sense of the text with a magisterial aplomb that always manages to make his enforced contradictions appear inescapably, transcendentally true. For he himself is no less expert at driving us from the letter than his Milton. The paradox is of course vintage Fish, with the Areopagitica joining the ranks of self-consuming artifacts as a pious example of semantic self-denial whose validity consists in the endless deferral of meaning to some other plane of existence than the one for which it was originally, if only ostensibly intended - all of which, I would argue, is the vicarious effect of Fish’s logic-chopping virtuosity. Meanwhile, Milton’s “mode of being” in writing and publishing a tract on liberty of publication approaches that of a brain in a vat, deluded into supposing that it walks and talks, inasmuch as Fish has declared in the author’s name “the lesson that knowledge and truth are not measurable or containable entities, properties of this or that object, characteristics of this or that state” (Fish 246). Yet for all that he not inappropriately describes Milton as “continually alert to the danger of reifying some external form into the repository of truth and value” (Fish 236), it is the relentlessly objective, categorical and commensurable that remains Stanley Fish’s sole canon of sense, whose interpretive purpose is not to inquire into the meaning of the text, but ingeniously to police it in the fashion he projects for Milton. Fish does so by means of “this fierce anti-literalism [that] turns into an even fiercer anti-literaryism” which he ascribes to Milton (Fish 237), and whose epitome is that most virtuous of Milton’s heroes, our saviour in Paradise Regained, at whose second coming we will all be assimilated into truth’s “incorporate body” - but not before (Fish 246-47). Yet as Judge Hand observes, with any “objective calculus of human value,” the result of the calculation can appear “thin and speculative,” notwithstanding the undeniable flair with which it is performed, whether by Bentham or Fish. Thus the once consummate significance of the Lord’s temple becomes by Fish’s calculation yet one more emblem of expressive “insufficiency and incompleteness” that “must be at once lamented and pro- 58 V ICTORIA S ILVER tected” by his own superb rhetoric: “lamented because it is the sign of our distance from bliss, protected because as such a sign it is a perpetual reminder that bliss awaits us in a union we can achieve (precisely the wrong word) only when we are absorbed by another into a structure not made by hands” (Fish 247) - and this because its coherence is merely human and contingent as against divine and absolute. It is perhaps indicative then that ‘another’ is Fish’s euphemism for Milton’s God, whose proper name is presumably elided here as insufficient to its metaphysical referent, although the Judaic scriptures would have it divinely bestowed upon us as right and proper to our use, which is how Milton views the Lord’s temple - as a figure of human endeavor as intelligent, artistic and meaningful as his own expressions. But Fish is not the first person in three centuries of criticism to try those expressions by an extrinsic logic that finds their overt sense wanting. As it happens, he admits to competing at contradiction with Christopher Kendrick and Francis Barker (Fish 237): indeed, all three of them are doing what Fish calls “thematizing” ideology in Milton (Fish 250), which means engaging in analysis that is “properly oppositional” - virtuous in the manner of strictum et summum jus and so immune to “the lure of the text’s surface coherence” (Fish 248). For as we have been brought to realize, only a radical controversion of sense will do, as having more integrity than other kinds of critique because more abstemious of Milton’s wonted meaning. As Fish describes it, “thematizing” involves the presumption that the true yet alien valence of the Areopagitica’s expressions is disguised by their intended ideological significance, an interpretive predicament which requires the rigorous critic to disclose this superior because oppositional meaning by locating what Fish calls semantic “tensions,” “discontinuities,” “eruptions” and - of course - “fissures” in the language of the text (Fish 248). By the exercise of such “fierce anti-literalism,” even “anti-literaryism,” the tract is shown to be a curiously incontinent symbology of that suppressed or repressed truth, inexorably revealed by analysis to be a virtual facsimile of the critic’s own interpretive commitments and procedures. These somehow enjoy an indubitable status and force, the only difference being that Fish modestly confines himself to local contradictions in Milton’s text, while those exposed by Kendrick and Barker are epochal in origin and scope. However, for their own good, such “external” claims Fish is obliged to deny both critics, which he does at the essay’s end, where we find ourselves suddenly confronted - or we would if we had not all been party to the professional apotheosis of Stanley Fish - with a literary critic for whom the institution of literature departments is not a “narrow, self-enclosed, hegemonic, self-serving” entity (Fish 252), nor the lamentable “gap” between promise and fulfillment, letter and spirit, to which his version of the Areopagitica predestines us (Fish 247). They are the sole ‘ Unequal Proceedings’ and Equitable Interpretations … 59 “incorporate body of truth” we have, our brave new world, sufficient unto the day; for it turns out that Fish’s antinomian subject was simply preparing the way for Fish’s institutional solipsist, who proceeds to argue against his rivals in contrariety that the significance of literary criticism is its general insignificance to anyone “external” to the profession (as the lists and sales of university publishers would seem to confirm). That is to say, its significance is academic, disciplinary, institutional, and can no more escape its own happy insufficiency to a wider public and truth than Milton’s intended meaning can elude the notional indeterminacies and contradictions of the Areopagitica. In other words, Fish controverts Milton’s declared belief in the expressiveness of the written word precisely because it argues for the pursuit of a common knowledge - “the discovery that might bee yet further made both in religious and civill Wisdome” (Milton 2: 492) - through those “wars of truth” in which Milton himself engages by writing and publishing the Areopagitica (Milton 2: 562), and which are the functional antithesis of what Fish has dubbed interpretive communities, and his own professional justifications. So he effectively parodies Milton’s views by replacing them with an intention more uncompromising, more absolute, more ‘ideal’ than the one for which Milton himself contends, reifying the tract’s language in order to void it. Fish’s reasoning seems to be that, if the point of the Areopagitica is that we should stop trying to make public sense, then literary critics like Kendrick and Barker should acquiesce with a good grace in institutional solipsism - the last refuge of literary critics, as their detractors contend - and not seek or claim for their views any broader significance. This seclusion from the world is not without its own satisfactions, because the interpretive politics of contradiction leave us, if not “disoriented” as Fish claims, then lost in dazzled admiration at the “totalizing power” of the critic’s intention (if no less ignorant of the author’s) (Fish 248). For, in spite of his stated objection to such speciousness, Fish on the Areopagitica exemplifies exactly how a text can embody “the pretious life-blood of a master spirit.” However, in law, the pursuit of the writer’s intention is neither liberal naivete run amok nor the last word in professional cynicism, but what distinguishes justice from injustice, guilt from innocence, since the eduction of intent either from the particular circumstances of legislation or the commision of a crime helps us to understand the nature of both. As Bracton observes in the case of “homicide through misadventure and accident”: “a crime is not committed unless the intention to injure exists, <It is will and purpose which mark maleficia, nor is a theft committed unless there is an intention to steal. … In crimes, the intention is regarded, not the result.” (Bracton 2: 384) In Leviathan, Hobbes argues what had long been the equitable view - that “it is not the Letter, but the Intendment, or Meaning; that 60 V ICTORIA S ILVER is to say, the authentique Interpretation of the Law (which is the sense of the Legislator,) in which the nature of the Law consistenth” (Hobbes 321-22): In written Lawes, men use to make a difference between the Letter, and the Sentence of the Law: And when by the Letter, is meant whatsoever can be gathered from the bare words, ‘tis well distinguished. For the signification of almost all words, are either in themselves, or in the metaphoricall use of them, ambiguous; and may be drawn in argument, to make many senses; but there is only one sense of the Law. But if by the Letter, be meant the literall sense, then the Letter, and the Sentence or intention of the Law, is all one. For the literall sense is that, which the Legislator intended, should by the letter of the Law be signified. Now the Intention of the Legislator is alwayes supposed to be Equity. … (Hobbes 326) What Hobbes calls “the Letter” does not mean construing “the bare words” or mere elements of the text as Fish does - a practice which, Judge Hand presciently observes, “may either pervert what was plainly their general meaning, or leave undisposed of what there is every reason to suppose they meant to provide for” (Spirit 106). Rather, by the “literall sense” of the law, Hobbes understands a deliberate use of language to a publicly intelligible purpose, which he identifies as “the Intention of the Legislator,” and whose necessary generality places upon those who administer the law the burden of discerning and articulating the scope of this intention as it applies to each individual case in which the law is invoked. Thus it is not only the substance but also the activity of construing and applying the law that Hobbes defines as equity - “the Justice of an Arbitrator” who “if he performe his Trust, he is said to distribute to every man his own,” in Ulpian’s phrase (Hobbes 208). I need hardly remark that this is not what Fish does with Milton practically or programmatically, although he professes to pursue Milton’s “authorial strategy” despite the expected disapproval of “properly oppositional” criticism, which locates the tract’s sense in the operation of larger, objective, determinate - indeed, “external” - forces (Fish 248). But the equitable sort of interpretation advocated by Learned Hand conceives intention as the communal activity of making sense in which legislators and judges, writers and readers, together engage, with intent the meaning made available and probable by the complex of usage and circumstance which characterize any human expression or action. To quote Grotius, “Interpretatio est collectio mentis ex signis maxime probabilius”: that is, interpretation itself is “a collecting of the intent from the most probable signs or marks” (Thayer 580). Indeed, as F.Vaughan Hawkins argues, this activity “bears a strong analogy … to the course of equity”: “Interpretation is in truth a species of equity, just as equity may be said to be a liberal interpretation of the law” (Thayer 587). In his Epieikeia, Perkins makes the same point in assigning equity the essential role of countering the claims of ‘ Unequal Proceedings’ and Equitable Interpretations … 61 strictum et summum jus, “the extremity of the law,” which he describes as those occasions “when any law of man is urged and executed straitly and precisely, according to the literal sense and strict form of words and the exactest meaning that can be made out of the words, without any manner of relaxation at that time when there is good and convenient cause of mitigation in regard of the person offending” (Perkins 485). Fish’s Milton may refute literalism, but Fish himself practices it in the manner of strictum et summum jus, the rule construed and applied unconditionally, and the result is predictably arbitrary in the perjorative sense - as Perkins puts it, “so far from justice, as indeed it is flat injustice” (Perkins 485). “And herein,” he comments, “is the proverb true, summa jus, summa injuria: that is, the extremity of the law is extreme injury” (Perkins 485). By contrast, equity recognizes that “men’s laws, coming from their own wits, are imperfect and so in all cases they do not hold the same equity; and therefore must needs be executed with a discreet and wise moderation” (Perkins 489). In that spirit, Judge Hand reminds the Senate, “we are all inferior creatures,” susceptible of being mistaken (Spirit 231); and we must take what Perkins calls our “natural infirmities” into account when we make judgments, whether public or private (Perkins 491). It is such selfsuspicion that urges us to “apprehend,” “consider,” “abstain,” “distinguish” and “prefer” all the possibilities of meaning which attend on any human expression, including the law’s, a process which begins in the assumption that another’s speech, gestures and actions are meaningful in more than a negative or deceptive manner: for the concept of expression entails not only the means - language, preeminently - but the sociable intent to communicate, to make viable sense of our experiences and understandings so that, in Hobbes’ famous phrase, our lives are not “solitary, poore, nasty, brutish, and short” (Hobbes 186). Some centuries later, Hawkins agrees with him that “the convention on which usage of language rests is not a single or fixed one, but is the aggregate of an innumerable number of lesser conventions, which intersect and conflict with each other, and are continually shifting and changing from year to year. The usages of the same words at different times, in different places, by different writers, vary greatly.” (Thayer 585) In short, our expressions do not all work in precisely the same way, whose inevitable result is the need to interpret them whenever we find their sense “in any degree ambiguous, obscure, or deficient” (Thayer 586); otherwise we cannot use them as they were indubitably intended - to communicate across the seeming abyss of our separable lives. As Hawkins wryly observes: “A law, therefore, which enjoined a perfect written expression, would be impossible to be obeyed, and the command which gives rise to the necessity of the letter, in a legal writing, must itself be interpreted according to the spirit” (Thayer 587). And that is the principle of equitable interpreta- 62 V ICTORIA S ILVER tion, which is to do justice by giving others’ expressions what is due them, namely, an effort to discern their viable and to that extent intended sense. On the same principle, if we are to establish the fact of self-contradiction, we must admit not only the distinctive terms of an argument but the mediating, and not infrequently competing factor of our own interpretive presumptions, an admission which presupposes the antipathetic possibility that truth may have more shapes than one, and that not all arguments may work in exactly the same way. For such presumptions can peremptorily reduce the text to tautology, consigning us not to truth but to solipsism, as I believe Fish’s contrarian logic does; nor is my own reading invulnerable to that charge, insofar it fails adequately to address all the semantic facts of the case because I have embraced a precedent idea of meaning and value which blinds me to Milton’s. But last seen, it was Milton who in the Areopagitica contends that there is no Archimedean point from which the truth of an argument can be determined in advance of its reception; Milton who regards both accusation and asceticism as the postures, not the actuality of virtue; and Milton who observes that, “To sequester out of the world into Atlantick and Eutopian polities, which never can be drawn into use, will not mend our condition; but to ordain wisely as in this world of evill, in the midd’st whereof God hath plac’t us unavoidably” (Milton 2: 526). Simply imposing on a text some notionally superior because interpretive logic supplies evidence not of self-contradiction, but the text’s inevitable conflict with that arbitrary standard, whose presumptive truth strangely goes undemonstrated except by the circular proof of denying whatever else could be meant under the circumstances. Such a categorical logic will inevitably catch us in a false dilemma, an either/ or which compels us to choose between seeming truth and untruth, or what passes for the same thing, between the arguable sense made by the text and the no less arguable sense made by the critic, whose own integrity is unquestioned. And that is because the negative or critical argument always has the greatest appeal, since it saves us “the intolerable labor of thought” involved in making sense of someone else’s words, while allowing us the appearance of exposing a fraud, and thus the stature of stating what is really the case. “For to accuse,” as Hobbes remarks, “requires less Eloquence (such is mans Nature) than to excuse; and condemnation, than absolution more resembles Justice” (Hobbes 243). Fish’s adamant refusal to let the Areopagitica make any public sense but the demonstration of its senselessness justifies the tacit inability of his own literary interpretations to do the same, and argues by extension the incapacity of public speech to convey anything other than its own strangely patent fraudulence. This is an academic exercise in every sense; for while literary interpretation may be insignificant outside the classroom, it has always had its proper, profound and ‘ Unequal Proceedings’ and Equitable Interpretations … 63 truly public force in educating the members of any society, which is why the New York Public Library (my emphasis) proclaims Milton’s words from its rafters. The subcommittee hearing also illustrates this fact when Senator Douglas slightly misquotes the Areopagitica - “You remember the passage from Milton that the immortal garland is not to be won without sweat and heat” - which Hand then silently corrects to “dust and heat” (Spirit 251). That shared conversance with what used to be called humane learning is not only in keeping with Milton’s own explicit convictions about education, but with Judge Hand’s, who in an address entitled “Sources of Tolerance” (1930), observes that “it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject” (Spirit 81). And these are his reasons: I conceive that there is nothing which gives a man more pause before taking as absolute what his feelings welcome, and his mind deems plausible, than even the flicker of a recollection that something of the sort has been tried before, felt before, disputed before, and for some reason or other has now quite gone into Limbo. … The liberation is not in the information but in the background acquired, the sense of mutability, and of the transience of what seems so poignant and so pressing today. One may take sides violently over the execution of Charles the First, but he has been dead a long while; the issue is not bitter unless we connect it with what is going on today. … In short, I argue that the political life of a country like ours would get depth and steadiness, would tend to escape its greatest danger, which is the disposition to take the immediate for the eternal, to press the advantage of present numbers to the full, to ignore dissenters and regard them as heretics, by some adumbration of what men have thought and felt in other times and at other places. (Spirit 79-80) The dogmatic kind of scepticism Fish practices is opposed to this humility about ourselves, our devices and desires, in which Judge Hand believes history and letters can instruct us. For Fish’s scepticism is truly academic insofar as no one can live out its consequences, least of all the critic whose denial of sense must yet be legible, intelligible to others. The fact that “Nothing is perfect” - no human artifact or institution, including the law - as he remarks to Senator Aiken, does not incline Learned Hand or his hearers to embrace the antinomianism Fish imputes to Milton, or the institutional solipsism to which he invites Kendrick and Barker and all the rest of us - a gesture, if there ever was one, of indifference in Fish’s sense of apathy (Spirit 237). On the contrary, as Senator Aiken confirms, “Nothing is perfect, fortunately; otherwise, we would not have anything to strive for” (Spirit 237). The distinction in scepticisms appears again in another more heated exchange with Senator Fulbright, who clearly advocates creating the commission, and who 64 V ICTORIA S ILVER had earlier confessed disingenuously that as a “young and inexperienced and a naive young man,” he had perhaps allowed the current state of public morals to make “too much of an impression on me” (Spirit 231). Indeed, Fulbright here epitomizes the unreflective, “uncompromising conviction” that excites Judge Hand’s concern (Spirit 79): in the face of the latter’s temperate resistance to what Hand considers the superfluous expedient of a commission, Fulbright grows exasperated, wresting the sense of his witness’ words into a sarcastic either/ or of which Fish himself might approve - “that perhaps the world is better than I think it is, and even if it is not, there is nothing you can do about it” (Spirit 233). Such notionally youthful immoderation moves Judge Hand to protest the caricature of his response: “I do not want to say that nothing can be done about it. I do not want to throw up the fight, if that is what you mean.” (Spirit 233) Nor does Milton (or secretly, the Stanley Fish of The New York Times Op-ed section). The refusal to accept the contingency of human meaning and value, treating our expressions as incoherent or insufficient to their common use, has more than academic consequences, which are at the heart of Milton’s argument against the licensing ordinance. In the Areopagitica, law is not merely the dead letter to be opposed in refining an autarchic individualism because Milton is a republican and constitutionalist, for whom law as civil reason alone creates the effectual conditions of polity. And like every other human expression, it has an instrumental and artistic status, which is why he writes to change it; for neither Milton’s language nor his politics can afford to be academic in Fish’s manner, since he writes to defend “the living labours of publick men,” which is to say on his own behalf and against his own political silencing (it is the second and unregistered edition of his ever-scandalous plea for reform of the divorce laws that lands him on parliament’s index). So he argues that crucial republican relation, linking the intelligence of law with the intelligence of those under law. It is implicit in his history of censorship as a legal restraint that must be exerted with “warinesse” (Milton 2: 492). This balance he evokes in his own republican manifesto, The Ready and Easy Way (1659), by the phrase “all due libertie and proportiond equalitie” (Milton 7: 424). The equilibrium of right and justice, freedom and order, individual and community, articulated in that figural balance testifies to the ethical contingency of human actions and institutions in his thought. These are neither exact nor devoid of meaning - the only options Fish allows. Rather, Milton’s emphasis on the subjective justification of law, on the moral claims of the whole person to civil significance and justice, assumes the value of such representations even as it provides the impetus to their reform. Consider in this light the subject of one of Milton’s sonnets, that passionate republican and complete tolerationist, Sir Henry Vane, who was ‘ Unequal Proceedings’ and Equitable Interpretations … 65 excepted by Charles II from the Act of Oblivion and Indemnity, indicted and arraigned on the charge of high treason - and this despite the fact that Vane had publicly refused the Oath of Abjuration, had removed himself from the judicial proceedings aganst Charles I, and repudiated Cromwell, his erstwhile friend and colleague, as a tyrant after Pride’s Purge of the Long Parliament, with the consequence that he was imprisoned under the Protectorate. However, it appears that Charles II peculiarly blamed him for parliament’s revolt against the late king his father, especially the impeachment and execution of Strafford, whose death warrant Charles I signed to his final, public regret. Notwithstanding his own Declaration at Breda, the son was not above revenge in this case, so Vane was incarcerated again for almost two years on the Isle of Jersey, where a writ of habeas corpus could not reach him, until the moment when both parliament and judiciary were willing to oblige the king in securing his death. To that end, the crown concocted what seems at this distance a dubious charge, especially given that a number of Vane’s former colleagues in the Rump - described by the court as “a few of the House, shutting out their Fellows, and usurping the Government” (Tryal 35) - went scot free in the general amnesty (Rowe 236). As the prisoner observes, although his case involves “no Act of any private person, of his own head” (Tryal 63), the crown claimed that Vane in his own right “did levy War against the Peace,” and therefore “did compass and imagine the Death of our said sovereign Lord the King, and the ancient frame of Government of this Realm, totally to subvert and keep our said sovereign Lord from the exercise of his Regal Government” (Tryal 19). There is a further proof of the crown’s ingenuity, in that the indictment refers not to Charles I, for which accusation Vane had prepared himself, but Charles II, with the outcome a foregone conclusion whose political piquancy was enhanced by the date (the anniversary of the battle of Naseby) and the spot (on which Strafford lost his life) of Vane’s execution (Rowe 241). However, his heroic defense of himself - ten hours on his feet, without stop or refreshment and no counsel but his own - and despite official abuse, his serene defiance of death on the scaffold, right down to “a Scarlet silk Wastcoat (the victorious colour) shewing it self at the breast” (Tryal 86), rendered his prosecution “as much blamed” as the indemnifying of Milton was “much censured,” according to Bishop Burnet, who reports of Vane that “he died with so much composure that it was generally thought the government lost more than it had gained by his death” (Burnet 1: 286). But there is also a legal history behind Vane’s indictment and execution for high treason. William Holdsworth describes how, during the sixteenth and seventeenth centuries, efforts to adapt the medieval treason statute, 25 Edward 3, had become increasingly difficult because both the state and 66 V ICTORIA S ILVER the challenges to its legitimacy exceeded in complexity the Act’s initial three clauses and criteria, of which the first is at once the most crucial and most pertinent because it raises the question of intent (Holdsworth 8: 310): “When a man doth compass or imagine the death of the King, or of his wife, or of their eldest son and heir … or if a man levy war against the king in this realm, or be adherent to the King’s enemies in his realm, giving to them aid and comfort in the realm and elsewhere, and thereof be probably attainted of open deed by men of his condition … the cases above rehearsed ought to be judged treason” (Cay s.v. “Treason,” my emphasis). This political situation gave birth to the doctrine of constructive treason, the radical extension of the law’s meaning and force: “Even in the medieval period, the judges had seen that the fact that the gist of the offence was an intention to kill the king, could be used to extend its scope; for they had held that the mere speaking of words might be an overt act which evidenced such an intention. They had seen as clearly as their successors that such an intention can be proved only by overt acts, ‘for the thought of man is not triable’; and that the statute could be extended by inferring an intention to kill from overt acts which were only remotely connected, if they were connected at all, with a formed intention to kill the king.” (Holdsworth 8: 308) While the language of the statute is sufficiently coordinated to allow some such extension, “the fact that it was the intention to kill the king, and not his murder, which was made treason, was the main reason why this clause could be so extensively construed” (Holdsworth 8: 311). For intention is of course the spacious domain of interpretation; and it is is possible to infer an intent to kill the king from the most innocuous circumstances, even as it is possible to turn the argument of the Areopagitica into mysticism. The only bar to extrapolation is probability - what inferences the facts, both textual and circumstantial, can fairly be made to bear - which along with intent forms the canon of equitable interpretation. And in the seventeenth century, the facts were occasionally made to bear a great deal, since treasonous intent could be imputed to circumstances which, however disabling of the monarch’s safety, were merely coincidental or unfortunate as against premeditated and conspiratorial (Holdsworth 8: 311). Vane himself queries “Whether the Case now in question, be a Treason literally within the words of the Statute, 25. Ed. 3. or at most, any other than an interpretative and new Treason” (Tryal 57). For when the circumstances invoked as an overt act can be better understood as indifferent or ordinary in their tendency, then the court itself is guilty of prepossession, which is to say that it entertains a desire or expectation of the defendant’s guilt. The crown was certainly prepossessed in Vane’s case, for whom it became a material fact against him - evidence of levying war against the king in this realm, and so compassing and imagining the king’s death - that in Southwark, on ‘ Unequal Proceedings’ and Equitable Interpretations … 67 the eve of Charles II’s return, he told his captain to give five pounds to the militia members who had made him their colonel, so that they might buy themselves a drink to celebrate what Vane represents as his informal review at their request (Tryal 49). But in the technical construction of the crown, by this incident, Vane “levied open and actual War, in the head of a regiment,” which “is not only a treason of itself, but an evidence of all these other treasons he stands charged with in the Indictment” (Tryal 27). Vane’s conviction thus hung preposterously on the slender evidentiary thread of arranging to buy a round of drinks, which the indictment extravagantly represented as his joining “with a multitude, to the number of a thousand persons, to the Jurors unknown, in warlike manner assembled, and arrayed with Guns, Trumpets, Drums, &c. did levy War against the Peace” (Tryal 19). Setting aside the hyperbole at once gratuitous and conventional to this peculiar legal genre, there is a perceptible difference between levying war against the king, and Vane reviewing a militia regiment on parade, of which he is the nominal colonel, having never led it or any other such armed force into battle, as he argues in his own defense: “The assembling of men together, without any hostility or injury offered to any person, but for a man’s own security and defence, in a time of confusion and distraction, is not Levying War, or Treason at the Common Law, or by that Statute. Yea, in this Case, and at the season wherein such an Act as this is alledged, it might be suppposed to be done for the King’s Restoration as well as in opposition thereunto; and the most favourable and advantagious construction ought to be made and put upon the Prisoner’s actings or words, where there is ambiguity, so that they may be taken or interpreted divers wayes. For the Law always presumeth actions to be innocent, till the contrary be manifestly proved.” (Tryal 68) Given the human fact of ambiguity, exacerbated by the crown’s attempt to impose the language of 25 Edward 3 on “the Prisoner’s actings or words,” which he himself argues is inapplicable, these expressions are susceptible of more than one construction, which is as much as to say that the truth may have more shapes than one. As Vane remarks, it is equity to recognize as much, and in giving to the circumstances of the case their duly proportioned significance, extenuate accordingly for his speech and actions. For the crown’s other evidence devolves upon Vane’s official actions under the Long Parliament and the late rule of the Rump, which were otherwise covered by the Act of Indemnity and Oblivion. But the arbitrary constructions of the court do not stop with Vane’s “actings or words”: they are extended to the language of the treason statute as well, where the letter of the law is “thematized” into a symbolic absolute, possessed of ontological force. I refer to the title “king” as it appears in 25 Edward 3, of which one judge declares: “to compass the Death of the King as a natural person was Treason; to compass his Death in his Politick capac- 68 V ICTORIA S ILVER ity, as to depose him, was Treason: and both provided for by the Act of 25. Ed. 3. That in the same instant the late King expired, in the very same his now Majesty was King de facto. …” (Tryal 35) The normal inference would be that Charles II was king de jure, since he was not regnant, did not possess the supreme power, and therefore was not king de facto between 1649 and 1660. But because the statute in its various clauses defines the charge of treason both in terms of the king’s “natural” and “politic” capacities - it is treason in the politic sense to seek the death of the queen or the king’s heir apparent - those capacities are conflated with the terms de facto and de jure, which were used to distinguish the conditions of governance, not the conditions of the king’s title. In other words, because the statute defines an attempt to kill the king as treason, who can only die in his natural capacity, the court symmetrically, categorically, conflates the term de facto with the king’s natural person, thus assimilating crucial differences of usage to a single presiding likeness in the manner of symbolism. One could call this a version of Fish’s own practice of “anti-literaryism,” whose categorical logic converts Milton’s figure of truth’s body into an object governed by the laws of classical physics. Even if the term de facto is taken in the titular sense - as arguing that there were no other claimants to Charles’ crown at the time - the court proceeds to extrapolate improbably from that legal category, with the result that the title becomes an ontological reality maintained regardless of the facts on the ground. The king accordingly is as god, assuming in his natural person transcendental capacities that are humanly impossible, and which prove a fruitful source of absurdity and injustice, since now the king in his natural, not just his politic capacity, can and cannot die. This is the metaphysical literalism of which both Hobbes and Milton despair, and which characterizes a class of royalist apology whose entire method Vane as a commonwealth-man disdains. He prefers instead to argue his case from the legal phrase and, as he sees it, conciliar relation, “king-in-parliament,” which allows to parliament a legislative authority coequal and coextensive with the king’s executive power, according to the republican principle of mixed or balanced government, confirmed in his view by Charles I’s Answer to the Long Parliament’s Nineteen Propositions: “The King in conjunction with the Parliament, is Maxime Rex, and is supported in the Throne and exercise of his Regal Power, by the joynt concurrence of both Houses” (Tryal 39). Given that his judges were king’s men and his jury handpicked royalists, this tack means that Vane makes his last stand on the constitutional issues over which the civil war was fought, which he declares “is such a new and extraordinary case, evidently above the Track of the ordinary Rules, contained in the positive and municipal Laws of England, there can be no colour to bring it within the Statute of 25 Ed.3.cap.2” (Tryal 43). ‘ Unequal Proceedings’ and Equitable Interpretations … 69 The court, however, ruthlessly narrows argument to technical questions by ruling that the Rump was no parliament but an illegal cabal. Such distinctions, of course, have always played a legitimate role in political trials; but insofar as the crown’s argument depends upon the axiom that Charles II was king de facto, it offers a case study in the sort of incoherence “properly oppositional” criticism pursues. For despite its ruling, the court nonetheless insists that if the king is deposed in his politic person or dies in his natural person, parliament as the extension of either is thereupon dissolved: parliament’s existence ends with the king’s who called it, and is therefore contingent and finite. But given that Charles is king de facto, although he is not in possession of the supreme power, neither of the events which would normally end his reign - namely, deposition or death - can do so. The court’s judgment in effect eliminates the automatic causes of parliament’s dissolution, allowing it to sit indefinitely under the king’s authority, legislating whatever acts and ordinances it pleases, including its own self-ordained longevity. This was an actual concession to the principle of shared governance made by Charles I in his Answer, as Vane points out, and the Long Parliament became at least in its own eyes an autonomous legal body (Tryal 39), which is why it is on the notionally defunct authority of the reconvened Long Parliament that proceedings to restore Charles II were inaugurated. But neither of these events could or need occur by the court’s ruling, since the king had somehow been exercising complete sovereignty ever since his father’s death. Yet the indictment itself recognizes that an interregnum did occur, insofar as Vane is charged with having sought “totally to subvert and keep out our said sovereign Lord from the exercise of his Regal Government,” and to have “consulted to bring the King unto destruction, and to hold him out from the exercise of his Regal Authority, and then and there usurped the Government” (Tryal 19). Even allowing for Charles II’s indivisible and inalienable sovereignty in law, the accusation that the parliament or cabal in which Vane participated kept the king from the exercise of his regal authority and government, usurping both, would seem to require the legal recognition of that traitorous entity’s de facto rule, and thus an interregnum in which Vane’s allegiance was legally owed to whatever power actually governed the nation at the time. But not here, where legality is utterly divorced from fact, and enjoys its own version of institutional solipsism. In this distortion of the eucharistic logic informing the doctrine of the king’s two bodies, the court’s reading of the statute argues something very like the “real presence” of Charles in England when he was actually wandering the continent, so that, as Vane puts it, he finds himself accused of keeping the king out of his realm when Charles was already in it, albeit categorically and transcendentally: “The words of his Indictment ran thus, that he endeavoured to keep 70 V ICTORIA S ILVER out his Majesty; and how could he keep him out of the Realm, if he were not out? ” (Tryal 54). Moreover, while the king can be deposed in his politic capacity, he can only die in his natural capacity, which if the court is not to render the application of 25 Edward 3 entirely absurd, means that for Vane to be convicted of compassing and imagining the death of the king, Charles in his natural capacity must somehow be present in “this realm,” so that the defendant’s heading a regiment in Southwark can be an overt act bringing “the King unto destruction,” in the extended construction of the treason statute. As Vane objects, “All this is very far from that Indifferency in Tryal, and from that Equality which the Law requires, and they are bound by their Oath to afford me” (Tryal 55), and moreover bears out Judge Hand’s criticism of those judges whose adamant insistence on the letter expediently converts to interpretive license at the least hint of a threat to the status quo. Such “unequal Proceedings,” as Vane calls them (Tryal 56), in every respect violate the principle of justice ex aequo et bono - “from the fair and the good” - whose inequitable consequence, the taking of Vane’s life, is hardly academic. If contingency of meaning were always indeterminacy, then the entire realm of civil life to which Milton and Vane appeal would indeed be vacant, meaningless, and their equal determination to resist political silencing perfectly absurd. Everyone would already have been consigned to Rousseau’s inarticulate state of nature, or more likely to Hobbes’ version, the war of all against all, which is itself an emblem of contradiction but lacking in any possibility of individual transcendence, since the luxury of antinomian virtue presupposes the law’s protection of person and property. Without belaboring the point, we would hardly bother to construe the passing expression of a face if it were not fully capable of a significance more than negative, more than institutional, which affects us profoundly for good and ill. Reciprocally, no human being can relinquish the freedom and responsibility of making sense without losing all humanity in the eyes of the world, and suffering what amounts to a social death. It is this conviction that inspires that red-letter passage in which Fish contends that Milton is being unlike himself. When he says, “as good almost kill a Man as kill a good Book” (Milton 2: 492), he makes a plea that we seek to understand someone besides ourselves - to do justice by equitably considering what another person’s expressions may intend. So in the face of his judges’ prepossession, Vane is obliged to declare the intent of his own “actings or words”: “Far be it therefore from me, to have knowingly, maliciously, or wittingly offended the Law, rightly understood and asserted: much less, to have done anything that is malum per se, or that is morally evil” (Tryal 26). No more than Vane is Milton’s concern with some ideal entity, but with the individual’s lived condition under law, whose claims to justice ex aequo et bono this preemptive order of licensing would deny in his view. Obviously, if only inward ‘ Unequal Proceedings’ and Equitable Interpretations … 71 virtue and transcendent liberty were Milton’s desiderata, as Fish says they are, he would never have bothered to write, much less publish the Areopagitica, or indeed any of his tracts. But as Milton knows from his own recent bout with the law, human identity is a shared understanding that requires the constant, intelligible expression of self to others. To do anything else is simply to give up the world - and not just for the academic life - which is finally what Fish’s Areopagitica recommends, but not John Milton’s. 72 V ICTORIA S ILVER Works Cited All biblical citations are from the Revised Standard Version. Aristotle. Nicomachean Ethics. Trans. and ed. Terence Irwin. Indianapolis, Ind.: Hackett, 1985. Ashley, Maurice. England in the Seventeenth Century. 3rd rev. ed. Harmondsworth, England: Penguin, 1967. Bracton, [Henry de]. On the Laws and Customs of England. Trans. Samuel E. Thorne. Ed. George E. Woodbine. 3 vols. Cambridge, Mass.: Belknap P, Harvard UP, 1968. Breward, Ian, ed. The Work of William Perkins. Courtenay Library of Reformation Classics. Abingdon, England: Sutton Courtenay P, 1970. 479-510. Cay, John. An Abridgement of the Public Statutes in Force and Use. 2 vols. London: Edward Sayer, 1739. Carlyle, Thomas, ed. Oliver Cromwell’s Letters and Speeches, with Elucidations. [Ashburton edition of Thomas Carlyle’s Works, 17 vols.] 3 vols. London: Chapman Hall, 1886. Dillard, Irving, ed. The Spirit of Liberty: Papers and Addresses of Learned Hand. 2nd ed. New York, Knopf, 1953. Firth, Sir Charles. Oliver Cromwell and the Rule of the Puritans in England. 1900. Oxford: World’s Classics, Oxford UP, 1953. Firth, C.H. and R.S. Rait. Acts and Ordinances of the Interregnum, 1642-1660. 3 vols. London: Stationery Office, 1911. Fish, Stanley. “Driving from the letter: truth and indeterminacy in Milton’s Areopagitica.” Remembering Milton: Essays on the Texts and Traditions. Ed. Mary Nyquist and Margaret W. Ferguson. New York: Methuen, 1987. 234-54. Gardiner, S.R. History of the Commonwealth and Protectorate. 4 vols. 1903. Adlestrop, England: Windrush, 1988. Hawkins, F. Vaughan. “On the Principles of Legal Interpretation.” Rpt. in Thayer, 577-605. Hobbes, Thomas. Leviathan. Ed. C.B. Macpherson. Harmondsworth, England: Penguin, 1968. Holdsworth, W.S. A History of English Law. 9 vols. Boston: Little, Brown, 1926. Marvell, Andrew. The Complete Poems. Ed. Elizabeth Story Donno. Harmondsworth, England: Penguin, 1972. 55-58, ll.105-6. Parker, William Riley. Milton: A Biography. Ed. Gordon Campbell. 2 vols. 2nd ed. Oxford: Oxford U P, 1996. Rowe, Violet A. Sir Henry Vane the Younger. University of London Historical Series. London: Athlone P, University of London, 1970. [Saint Germain, Christopher]. Doctor and Student. 17th ed. 1787. Birmingham, Ala.: Legal Classics Library, 1988. Story, Joseph. Commentaries on Equity Jurisprudence. Ed. Melville M. Bigelow. 2 vols. 13th ed. 1886. Littleton, Colo.: Fred B. Rothman, 1988. Thayer, James Bradley. A Preliminary Treatise on Evidence at the Common Law. 1898. New York: Rothman Reprints, Augustus M. Kelley, 1969. The Tryal of Sir Henry Vane, Kt. 1662. Wolfe, Don M., et al., eds. Complete Prose Works of John Milton. 8 vols. New Haven: Yale UP, 1953-82. C HRISTOPHER H UNTER Reevaluating Press Freedom in Colonial America Introduction: A Contentious Legacy “What signifies a declaration that ‘the liberty of the press shall be inviolably preserved? ’ What is the liberty of the press? ,” a skeptical Alexander Hamilton challenged readers of “Federalist” 84. “Who can give it any definition which would not leave the utmost latitude for evasion? ” 1 When he wrote those words in 1788 Hamilton was fighting a losing battle against the Bill of Rights, which he considered not only unnecessary but potentially dangerous. But Hamilton sounded a prophetic note when he concluded that the liberty of the press, “whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. And here, after all… must we seek for the only solid basis of all our rights.” 2 Advocates of unpopular causes have found this guarantee cold comfort indeed. The aim of this study is to provide an overview of the theory and practice of press freedom during the colonial period. Thanks in large part to the vibrant scholarly traditions in a variety of fields, including the history of the book, legal and constitutional history, and Early American political science and political philosophy, the complications attending such a project are at least as much interpretive as evidentiary. Much of the difficulty has hitherto been located in the first term of “Liberty of the Press,” in defining its precise limits and contours, but there is also a profound terminological confusion inherent in the phrase’s second term. Is “press” simply shorthand for “printing press,” a device for reproducing words and images (which can, as in the case of moveable type and copperplate engravings, in fact compass two distinct technologies)? Or does it refer to the institution of the press, a concatenation of presses and people fulfilling a culturally-specific set of social roles (including uniting the imagination and organizing the temporality of the citizens of the modern nation-state it constructed, disseminated, and managed)? Attempts to define ideologically fraught concepts like “the liberty of the press” are invariably inflected by the position of the writer vis-à-vis the context in which they are written. As such, the history of the 1 Publius [Alexander Hamilton, James Madison, John Jay], The Federalist (New York, 1788) 349-50. 2 Publius 349-50. 74 C HRISTOPHER H UNTER freedom of the press in America is inextricably linked to - indeed, is inseparable from - the historiography of press freedom. Twentieth-century answers to Hamilton’s difficult questions have attempted to define the phrase as it appears in the First Amendment to the Constitution: “Congress shall make no law… abridging the freedom of speech, or of the press.” Beginning with Zechariah Chafee, Jr.’s Freedom of Speech, American scholars produced a series of works whose primary aim, as one recent commentator has described his own project, is to explain the changing definitions of “the freedom of the press” and the “competing understandings of the justifications of free expression” those definitions imply - to produce, that is, “a conceptual history of press liberty.” 3 Published just two years after the passage of the 1918 Sedition Act, Chafee’s book argues for the widest possible construction of the First Amendment, defining the meaning of “freedom of speech” in broadly libertarian terms that could be applied to contemporary cases. Freedom of Speech argues that the First Amendment “was written by men to whom Wilkes and Junius were household words, who intended to wipe out the common law of sedition, and make further prosecutions for criticism of the government, without any incitement to law-breaking, forever impossible in the United States of America.” 4 Unhappily for its author, in the wake of World War I “Red” and “Menace” were household words. Chafee’s critics were not slow to react to what they perceived as his dangerous radicalism, if not outright bolshevism. Edward S. Corwin, writing in the Yale Law Journal, found it “very improbable that [the Founders] had entertained any such idea” 5 as banishing the crime of sedition. The New York Times Book Review dismissed Freedom of Speech as “thoroughly untrustworthy as an analysis of either law or the facts relating to the subject matter treated.” 6 Chaffee was the subject of a Justice Department probe, and the Bureau of Investigation’s dossier on him was later used in an unsuccessful attempt by conservative Harvard Law alumni to secure his ouster. As the threat of bolshevism waned and Americans became less hostile to contemporary critics, they also became more willing to accept such toleration from their Revolutionary forebears. In the years between the World Wars Chafee’s views gained respectability, and when the revised edition of Freedom of Speech was published in 1940 it 3 Robert W.T. Martin, The Free and Open Press: The Founding of American Democratic Press Liberty, 1640-1800 (New York: New York UP, 2001) 3. 4 Zechariah Chafee, Freedom of Speech (New York: Harcourt, Brace and Howe, 1920) 21. 5 Edward S. Corwin, “Freedom of Speech and Press under the First Amendment: A Resume,” Yale Law Journal 30 (1920): 48. 6 Archibald E. Stevenson, “The World War and Freedom Of Speech,” New York Times Book Review and Magazine 13 Feb. 1921: 19. Reevaluating Press Freedom in Colonial America 75 was hailed in the American Political Science Review as “the Areopagitica of the present hour.” 7 The comparison to John Milton’s 1644 attack on prior restraint was more apt than the reviewer intended: like Areopagitica, Chafee’s book places history in the service of propaganda. In a country eager to contrast its ancient liberties with Soviet suppression, the book’s portrait of a tradition of tolerance stretching back to the Revolution was both timely and appealing, and its author, safe now from charges of Anti-Americanism, assumed his place in the pantheon of defenders of civil liberties. Freedom of the Press remained the definitive work on the subject until Leonard Levy challenged Chafee’s findings in his 1960 Legacy of Suppression. 8 Levy’s central claim in Legacy, which he modifies but does not repudiate in its 1985 revision Emergence of a Free Press, 9 is that “a broad libertarian theory of freedom of speech and press did not emerge in the United States until the Jeffersonians, when a minority party, were forced to defend themselves against the Federalist Sedition Act of 1798.” 10 This claim, in these uncharacteristically conciliatory terms, may seem less than revolutionary today, but it was no less than that when it first appeared, couched in Levy’s often willfully inflammatory rhetoric. Levy flatly rejects Chafee’s claim that the revolutionary generation meant to wipe out the crime of sedition, contending they would have found nothing objectionable in William Blackstone’s assertion that the liberty of the press “consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published.” 11 For the authors of the Bill of Rights, as for the oracle of the common law, “Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.” 12 If the Framers differed from Blackstone as to what they considered “improper, mischievous, or illegal,” this difference is of quality, not of kind. The analogy Blackstone’s borrows from Jonathan Swift illustrates the hostility to licentiousness Levy contends persisted into the Early Republic: “A man (says a fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials.” 13 Up to a point 7 R.E. Cushman, American Political Science Review 36.1 (1942): 136. 8 Leonard W. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (Cambridge: Belknap-Harvard UP, 1960). 9 Leonard W. Levy, Emergence of a Free Press (New York: Oxford UP, 1985). 10 Levy, Emergence x. 11 William Blackstone, Commentaries on the Laws of England, vol. 4 (Oxford: Clarendon Press, 1769) 151. 12 Blackstone 151-52. 13 Blackstone 152. 76 C HRISTOPHER H UNTER Americans tolerated the bracing tonic of a lively opposition to invigorate the emerging public sphere of rational debate, but they reserved and regularly exercised the right to punish “poisonous” licentiousness. This alone was reason enough for Levy to draw a conclusion that has lost little of its stridency: “American experience with freedom of political expression,” he announces, “was as slight as the theoretical inheritance was narrow.” 14 As might be expected from a direct assault on what had become comfortingly conventional wisdom, Legacy reinvigorated the study of press freedom in Early America. Historians, including Merrill Jensen, pointed out that Levy’s focus on the law blinded him to the “nearly epidemic degree of seditious libel that infected American newspapers after Independence” and the fact that American presses “operated as if the law of seditious libel did not exist.” 15 Levy responded that the crime of seditious libel persisted even if offenses were rarely punished. Others noted that Levy’s revision ignores the insights of such historians as Bernard Bailyn and Gordon Wood, whose studies of republican ideology animated a quarter-century of historical work between Legacy and Emergence of a Free Press. 16 In spite of the profusion of hostile reviews none of Levy’s gainsayers produced a work of comparable scope to Legacy and Emergence until Robert W.T. Martin’s The Free and Open Press: The Founding of American Democratic Press Liberty, 1640-1800 appeared in 2001. Martin argues that those who uncritically marshal examples of seditious speech, simply “rescue old myths by stressing the grand struggle for republican liberty while largely ignoring Levy’s solid evidence of recurrent suppression.” 17 Martin’s solution is to divide the discourse of press liberty into “a predominately ‘republican’ stress on public liberty and the public good (free press doctrine) and a more nearly ‘liberal’ notion of individual rights (open press doctrine).” 18 He contends that these two strains “coexisted in a single, ambivalent tradition throughout much of the eighteenth century.” 19 Then, “the arrival of the crisis in imperial relations in the 1760’s brought these vague ideals down to the sullied and imperfect level of specificity and pragmatism. The struggle for control of the colonies was the long-expected battle between power and liberty. And … the ambiguous unity of free and open press tradition would not survive unscathed.” 20 Martin’s thesis attempts to reconcile the two sides of the debate that had 14 Levy, Legacy vii. 15 Levy, Emergence x. 16 David M. Rabban, “The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History,” Stanford Law Review 37.3 (1985): 795-856. 17 Martin 10. 18 Martin 11. 19 Martin 11. 20 Martin 47. Reevaluating Press Freedom in Colonial America 77 had little to say to one another and it connects those traditions to the mainstream of Early Republican scholarship. Martin praises Stephen Botein’s essay “‘Meer Mechanics’ and an Open Press: The Business and Political Strategies of Colonial American Printers” 21 for identifying a distinct strain of “open press” doctrine in the writing of Eighteenth Century newspaper publishers. By emphasizing the physical nature of their profession - its mechanical quality as opposed to its intellectual one - publishers of newspapers were able to postpone open partisanship and avoid alienating either side of an increasingly polarized readership. But Botein, Martin writes, got it backwards: “whereas Botein saw economics as the main determinant of press theory and practice … [t]he main forces of change were ideological and political.” 22 This argument, for all its rhetorical force, is tautological. Martin reduces Botein’s argument to an economic base and ideological superstructure and then inverts its terms, reinforcing the logic of his own project without questioning the dichotomy on which it is premised, concluding that “it is only by examining these concepts that we can begin to explain the pivotal conceptual evolutions of the eighteenth century.” 23 Of course an examination of concepts will result in a better understanding of conceptual change; what it will not do is resolve the still too-great distance between our understanding of the material conditions of textual production and dissemination and the kind of freedom or suppression actually enjoyed or suffered by the speakers, writers, and printers whose textual legacy it examines. The present work differs from Chaffee, Levy, and Martin in that it is not primarily “conceptual.” Its purpose is instead to illuminate the relationship between the rhetoric and practice by treating the conceptual and practical not as separate elements in a causal chain but as an indivisible whole. By covering only the Colonial period, I hope to avoid the temptation to interpret Colonial developments in light of the later debates over Constitutional hermeneutics that overshadow previous accounts. The Seventeenth Century: From the Penumbra of Other Liberties Speech was the object of official regulation and popular restraint in Colonial America well before the arrival of the first press provided the technological condition of possibility for the restraint of the press. Such regulation and 21 Stephen Botein, “‘Meer Mechanics’ and an Open Press: The Business and Political Strategies of Colonial American Printers,” Perspectives in American History 9 (1975): 127-225. 22 Martin 9. 23 Martin 9. 78 C HRISTOPHER H UNTER restraint provide much-needed insights into the context within which early discussions of press liberty emerged. Larry Eldridge, who reviews over 1,200 colonial court records of seditious speech prosecutions in his book A Distant Heritage, 24 notes that speech was only one of the behaviors Colonial governments attempted to control “to uphold prevailing moral and social values, to preserve public peace, to maintain respect for authority.” 25 Clothing, comportment, sexual behavior, and a wide spectrum of other non-verbal acts were also objects of official sanction. These behaviors were constrained not only in Puritan New England, and not only, as we might imagine, in the early part of the century. Behavior, including expression, was the object of oversight in all the colonies of British North America throughout the seventeenth century. In practice, verbal crimes held a conspicuous place within this wide array of offenses. In Protecting the Best Men, an interpretive history of the law of libel, legal scholar Norman Rosenberg identifies the colonists’ persistent interest in the “small politics” of personal status. The “politics of reputation” 26 made up a significant proportion of colonial legal proceedings because, as an oft-cited 1647 Rhode Island statute has it, “[a] good name is better than precious ointment, and slanders are worse than dead flies to corrupt and alter the savour thereof.” 27 Civil actions did not result in sensational sentences of ear cropping, tongue boring, arm breaking, and other forms of “bodily correction” that occasionally accompanied criminal libel judgments and commonly enliven modern accounts of colonial jurisprudence. 28 In the small, closely-knit communities of seventeenth-century America libel cases were utterly ubiquitous, an inescapable corollary to the vital importance of reputation. Early America was not so much litigious as collaborative: policing expression was a community project. In addition to civil infractions, colonists recognized a number of crimes arising form mere words. There were three principle types of criminal libel: blasphemous libels were statements against religion, obscene libels which militated against public morality, and seditious libels, which assaulted the policies or members of the government. In practice, purely personal libels 24 Larry D. Eldridge, A Distant Heritage: The Growth of Free Speech in Early America (New York: New York UP, 1994) 3. 25 Eldrigde 5. 26 Norman L. Rosenberg, Protecting the Best Men: An Interpretive History of the Law of Libel, Studies in Legal History (Chapel Hill: University of North Carolina Press, 1986) 12-28. 27 John Russell Bartlett, ed., Records of the Colony of Rhode Island and Providence Plantations, vol. 1 (Providence, 1856) 184. 28 Only 3.3 percent of all seditious speech offenders before 1660 suffered bodily correction (excluding whippings) and that none did after 1660 (Eldridge 97). Reevaluating Press Freedom in Colonial America 79 between common citizens were rarely if ever treated as criminal, and magistrates and legislators in criminal cases did not always take great care to distinguish between the different classes of libel. The medieval English statutes commonly known as Scandalum Magnatum outlawed “False News or tales whereby discord or occasion of discord or slander may grow between the King and his People or the Great Men of the Realm.” 29 Because of the emphasis on false news, a defendant who could prove the truth of an alleged libel was innocent as a matter of law. In England truth remained a defense against libel until the 1606 Star Chamber case de Libellis Famosis established a range of new precedents. Among these was the provision that the truth of the libel is at best immaterial and at worst an aggravation of the crime. The criminality of a libel lies in its “bad tendency” to incite breaches of the peace or a diminution of respect for authority, and true libels are more likely to be believed than false ones. 30 This precedent became so rooted in Colonial jurisprudential practice that fifty years after the Zenger case the idea that truth could be defense for libel struck James Madison and John Adams as an “innovation.” 31 Separate prohibitions against spreading false news were enacted as early as 1645 - almost 60 years before the first sustained newspaper appeared. Citizens of Massachusetts “of the age of discretion, which is accounted fourteen years, who shall wittingly and willingly make or publish any lie which may be pernicious to the public weal… shall be punished.” 32 The law, with minor variations, was adopted by Plymouth in 1653. 33 The Frame of Government of Pennsylvania’s “Laws Agreed Upon in England” (May 5, 1682) provided that “all scandalous and malicious reporters, backbiters, defamers and spreaders of false news, whether against Magistrates, or private persons, shall be accordingly severely punished as enemies to the peace and concord of this province.” 34 Virginia enacted a similar measure in 1649, as did New York in 1664, and South Carolina in 1692. Punishments ranged from a fine of 10 shillings for a first offense in New York to death in Virginia for “false reports and malicious rumors… tending to the change of government or to the lessening of the power and authority of the Governor 29 Fredrick Seaton Siebert, Freedom of the Press in England, 1476-1776, the Rise and Decline of Government Controls (Urbana: U of Illinois P, 1952) 118. 30 Siebert 119. 31 Levy, “On the Origins of the Free Press Clause” 200, 205. 32 Eldridge 31. 33 Eldridge 31. 34 Francis Newton Thorpe, The Federal and State Constitutions, colonial charters, and other organic laws of the state[s], territories, and colonies now or heretofore forming the United States of America, vol. 5 (Washington: Govt. Print. Off., 1909) 3062. 80 C HRISTOPHER H UNTER or government.” 35 As with criminal libels, a conviction for spreading false news could result in fines, imprisonment, exclusion from public office, banishment, corporal punishment, humiliation, or some combination of these. In the specie-strapped monoculture of the Chesapeake, statutes accompted fines in pounds of tobacco, though “country pay” was accepted in every colony. Although laws of criminal libel and false news governing both speech and print remained more or less consistent throughout the century, the frequency and severity of actual penalties for seditious words waxed and waned. In Virginia in the wake of Bacon’s rebellion, for example, Governor Berkeley’s Council stiffened the penalties for verbal crimes. In language foreshadowing Washington’s 1794 justification of military action against “certain self-created societies,” 36 the statute of 1677 noted that “seditious and scandalous libels are the usual forerunners of tumult and rebellion” and held that none “shall presume to speak, write, disperse or publish by words, writing or otherwise any matter tending to rebellion, or in favor of the late rebels or rebellion.” 37 Although the firm prohibition against criticism of officials remained throughout the century, the enforcement of those prohibitions was not so consistent. The law itself indicates the government’s understanding of the gap between law and practice. Rightly fearful that the tremendous power and authority centered in Jamestown was not translating into control of the backcountry, Virginia’s 1677 seditious speech law added that county court justices who did not enforce its provisions would be subject to double the fine the offender would have faced. 38 British North America’s first application of the sedition laws to printed matter occurred in Massachusetts in 1650. The General Court found William Pynchon’s The Meritorious Price of Our Redemption (London, 1650) to be “erronyous and hereticale,” and ordered it “burned by the common executioner in the market-place in Boston.” 39 Unwilling to reform his opinions about the sufferings of Christ to the extent demanded by the legislature, Pynchon had to emigrate to England to avoid prosecution. In the years leading up to the 1662 Half-Way Covenant and the 1664 uncoupling of church membership and citizenship book burnings became increasingly common. Massachusetts authorities were as creative in their use of discipli- 35 William W. Henning, ed., The Statutes at Large, Being a Collection of all the Laws of Virginia, vol. 1 (Richmond, 1809) 361. 36 James D. Richardson, ed., A Compilation of the Messages and Papers of the Presidents 1789-1897, vol. 1. (Washington [D.C.]: U.S. Govt. Print. Off., 1896) 162. 37 Eldridge 36-37. 38 Eldridge 24. 39 Clyde Augustus Duniway, The Development of Freedom of the Press in Massachusetts (1906; New York: B. Franklin, 1969) 32. Reevaluating Press Freedom in Colonial America 81 nary categories as they were religiously intolerant. On August 24, 1654, the General Court ordered “that all & euery the inhabitants of this jurisdiction that haue any of the bookes in their custody that haue lately bin brought out of England vnder the names of John Reeues & Lodowick Muggleton” had to surrender them to the magistrate or else “forfeit the sume of ten pounds for euery such booke that shalbe found, or knowne to be in the hands of any inhabitant after one moneths publication hereof.” Well aware of the difficulty of finding the pamphlets, the Court put a bounty on the books, in effect enlisting Massachusetts inhabitants as executors: “the one halfe to the informer, the other halfe to the country.” As with The Meritorious Price of our Redemption, Reeves and Muggleton’s books were “to be burned by the executiono r , at Boston.” 40 The pair were prolific pamphleteers, and at least five of their tracts had been published in the three years immediately preceding the General Court’s injunction against them. 41 As part of their campaign against heterodoxy the Court further ordered that anyone in its jurisdiction who possessed or imported “any Quakers bookes or writings concerning theire diuilish opinions” would have to pay £5. 42 Book burnings, dramatic demonstrations of the governmental power, were part of a largely rear-guard action to combat apostasy and steadily declining church membership. The effects of these ritualistic purgations were more symbolic than real. Colonial America remained a provincial book market until well into the eighteenth century, and as such imported more printed matter than it produced. Benjamin Franklin would recall in his Autobiography that in 1730 “there was not a good Bookseller’s Shop in any of the Colonies to the Southward of Boston. In New-York & Philad a the Printers were indeed Stationers, they sold only Paper, &c. Almanacks, Ballads, and a few common School Books. Those who lov’d Reading were oblig’d to send for their Books from England.” 43 Local authorities could not possibly hope to regulate England’s presses, and their attempts to control the products of those presses were not particularly successful, as Hugh Amory’s brief catalogue of some of the more unusual items in colonial 40 Duniway 36. 41 The pamphlets are: A Transcendent Spiritual Treatise upon Severall Heavenly Doctrines from the Holy Spirit of the man Jesus, the only true God (London, 1652), A letter presented unto Alderman Fouke, Lord Mayor of London (London, 1653), A Remonstrance from the Eternall God, declaraing severall spirituall transactions unto the Parliament, and Common-wealth of England (London, 1653), A General Epistle, from the Holy Spirit: unto all prophets, ministers, or speakers in the world (London, 1653), and Answers to Several Queries (London, 1654). 42 Duniway 36-37. 43 Benjamin Franklin, Writings, ed. J.A. Leo Lemay (New York: Library of America, 1987) 1379. 82 C HRISTOPHER H UNTER libraries suggests: “John Usher imported a salacious novel, The London Jilt, a pornographic classic, Venus in the Cloister, and the Earl of Rochester’s libertine Poems. Massachusetts and Connecticut ports were officially closed to Catholic, Quaker, and Baptist books, but Benjamin Lynde, a future Massachusetts chief justice, had acquired copies of Dryden’s agnostic poem, Religio Laici (1682) and his allegorical apology for Catholicism, The Hind and the Panther (1687) shortly after their publication.” 44 During this period of regular (if infrequent) book burnings, Massachusetts’ presses remained free of regulation. This was not, however, out of regard for the liberty of the press. The first significant event of 1639 John Winthrop records in his Journal is that “a printing house was begun at Cambridge by one Daye at the charge of Mr Glover who died on sea hitherward. The first thing which was printed was the freeman’s oath, the next was an almanack made for New England by Mr. Peirce, mariner - the next was the Psalms newly turned into metre.” 45 Winthrop’s catalogue of the first products of Colonial America’s first press provide a fairly representative picture of its early output: the oath, a broadside blank form with a space for a signature, is the administrative instrument conferring full citizenship, including the right to vote and hold public office, on one meeting its stringent religious, economic, and social criteria; 46 an almanac; and the Bay Psalm Book, a product of the collaboration between the colony’s leading divines. Although potentially dangerous or disruptive material could easily be imported, there was little chance of such material issuing from the presses at Cambridge. Glover’s widow married Henry Dunster, the first president of Harvard College. After her death the press remained under Dunster’s control until it was purchased by the college. The appearance and proliferation of acts regulating colonial presses is not simply a sign that the liberty of the press was in eclipse, for there was little enough liberty to begin with. It is, rather, a sign that the authorities apprehended a danger from private commercial printing and sought to minimize its disruptive potential. On October 1662 the General Court ordered that “For prevention of irregularities & abuse to the authority of this country by the printing press… henceforth no copie shall be printed but by the allowance first had & obteined under the hands of Capt- Daniel Gookin & Mr 44 Hugh Amory 84. 45 John Winthrop, Journal of the Transactions and Occurrences of the Settlement of Massachusetts (Hartford, 1790) 171. 46 I am fully in mind of Hugh Amory’s caution about the “powerful implication” of firsts - the first product of the Massachusetts press was also its last Freeman’s Oath. Blank forms, however, continued to make up a significant portion of the output of colonial presses. Amory 109-11. Reevaluating Press Freedom in Colonial America 83 Jonathan Mitchel, vntil this Court shall take further order therein.” 47 The Court reconsidered shortly thereafter, ordering on May 27, 1663, “that the printing presse be at liberty as formerly, till this Court shall take further order, & the late order is heereby repealed.” 48 Prior censorship was reinstated two years later in an order apparently passed for the express purpose of supervising Marmaduke Johnson. Johnson, who had come to work on Eliot’s Indian Bible, had gotten himself into trouble by seducing Samuel Green’s daughter. After completion of the book he returned to England, but he reappeared in the Bay Colony with all the equipment necessary to open a printing office. As the historian of press freedom in Massachusetts notes, “[p]rior to May, 1665, there was no strictly private commercial ownership of a press in Massachusetts.” 49 The colony’s two presses were under the control of the college, and Johnson too was forced to set up shop in Cambridge. After a number of petitions, Johnson was allowed to relocate his press to Boston in 1674, and Thomas Thatcher, and Increase Mather were added as licensers to supervise him. Johnson died shortly thereafter, but the press had found its permanent home. When Governor Edmund Andros arrived with royal instructions to regulate the press, the Council put them into effect: “no Papers, Bookes Pamphlets &c should be printed in New England untill Licensed according to Law, and that no printer have Liberty to print till he hath given five hundred pounds security to his Maj tie to observe that order.” 50 The terms were “[t]hat Coppyes of Books &c. a to be printed be first p. r used by m r Dudley late President & vpon his allowance of them for the pres that one Coppy thereof So allowed and attested by him be brought to y. e Secr. y office. to be left on record and receave from him an Imprimatur.” 51 The situation with Pennsylvania and New York’s first presses was in many ways similar to that of Massachusetts. In 1685 the London-trained printer William Bradford arrived in Pennsylvania with his press, types, and paper. He carried instructions from George Fox to print for the Friends, who, in turn, were to provide him a ready market for his product. Not only did they not keep his press occupied, they took turns with the Provincial Council censoring the publications he printed on his own account. As James Green summarizes the situation in his excellent essay “The Book Trade in the Middle Colonies, 1680-1720” in The History of the Book in America, Vol. I, “the introduction of printing in New York and Pennsylvania did not immediately foster a vital print culture… [F]or all but a few years the press 47 Duniway 41-42. 48 Duniway 46. 49 Duniway 47. 50 Duniway 66. 51 Duniway 66. 84 C HRISTOPHER H UNTER was in the hands of one family, and for all but a few months it was carefully circumscribed by religious and civil authorities, who regarded it primarily as a helpful administrative tool.” 52 During the few months Bradford’s press was at liberty, he used it to support George Keith in his dispute with the Philadelphia Meeting. In a printed defense of his conduct Bradford insisted that in spite of the one-sidedness of the printed record, he was non-partisan: And whereas it is reported, That the Printer being a favourer of G.K. he will not print for any other, which is the reason that the other party appear not in Print as well as G.K. These are to signifie, that the Printer hath not yet refused to print any thing for either party; and also signifies that he doth not refuse, but is willing and ready to print any thing for the future that G.K.’s Opposers shall bring to him. 53 This open press discourse would become a standard feature of Colonial printers’ defense of their conduct, even (perhaps especially) in cases where they did not practice it. In 1692 one of Keith’s pamphlets brought a charge of seditious libel against Bradford. During his trial Bradford argued that that the jury was empowered to decide the law as well as the facts of the case - that is, whether the pamphlet in question was seditious and not merely whether Bradford had in fact printed it. He was acquitted, however, on the grounds that his involvement in the printing could not be proved. Shortly thereafter Pennsylvania’s first printer dismantled his press and moved to New York where he became “a salaried public employee (at £40 a year) subject to dismissal at any time.” 54 The Friends, evidently, had learned the dangers that attended even a licensed independent press. Pennsylvania’s next press, and its types, was owned by the Friends, who also purchased paper and hired a printer. 55 Virginia took an even more direct route to control the dissemination of libelous prints. In 1682 John Buckner and William Nuthead arrived at Jamestown with a press and the intent to set up shop. When word reached the Governor that Nuthead had begun to print the Acts of the Assembly in spite of explicit instructions not to publish anything without prior authorization, Buckner was summoned before the Council. He informed them that he had only printed two sheets, which he was going to submit to the gover- 52 James Green, “The Book Trade in the Middle Colonies,” Hugh Amory and David D. Hall, eds., A History of the Book in America, vol. 1 (Cambridge: Cambridge UP, 2000) 199. 53 A True Copy of Three Judgments Given forth by a Party of Men, called Quakers, against George Keith and His Friends ([Philadelphia], [1692]) [16]. 54 Green 212. 55 Green 215-16. Reevaluating Press Freedom in Colonial America 85 nor for his approval before continuing with the book. This apparently satisfied the Council, but they ordered Buckner “for prevention of all troubles and inconveniences, that may be occasioned thorow the liberty of a presse” to post a bond of £100 and to print nothing further “of what nature soever, in the aforesaid presse or any other in this Colony, un till the signification of his Maj’ties pleasure shall be known therein.” 56 When the new governor arrived the next year his letters of instruction from the King included the first royal order concerning printing in America: “whereas We have taken notice of the inconvenience that may arise by the Liberty of Printing in that Our Colony, you are to provide by all necessary orders and Directions that no person be permitted to use any press for printing upon any occasion whatsoever.” 57 This order was later amended to provide for licensing of the press rather than its outright prohibition, but it was clear to Nuthead that the business climate of Virginia was inhospitable to one in his trade. He moved to Maryland, and from that time, Virginia was without a resident printer until, nearly 50 years later, the governor invited one. Royal instructions to colonial governors included such orders relating to the licensing of the press for decades after the 1694 expiry of the licensing act removed the statutory support for such prior restraint in England. 58 “Forasmuch as great inconveniences may arise by the liberty of printing in our said province, you are to provide by all necessary orders that no person KEEP any press for printing, NOR that any book, pamphlet, or other matters whatsoever be PRINTED without your especial leave and license first obtained.” 59 In much the same way as early charters did not correspond to the geographical reality of North America (a form of imaginative world-making that invariably led to contentious boundary disputes between neighboring colonies), the eighteenth-century governors who arrived carrying these instructions found that they didn’t conform to the political realities of colonial American life. Likewise, printers found ways to circumvent Royal instructions and good behavior bonds, including importation and false or absent imprints. 60 56 Lawrence C. Wroth, A History of Printing in Colonial Maryland, 1686-1776 (Baltimore: Typothetae, 1922) 1-2. 57 Leonard Woods Labaree, Royal Instructions to British Colonial Governors, 1670- 1776, vol 1 (New York: D. Appleton-Century, 1935) 495. 58 On the circumstances surrounding the expiration of the Licensing Act in England, see Siebert 260-263. 59 Labaree 495. These orders were in effect in Maryland, 1691-98; Massachusetts, 1691- 1730; New England, 1686-89; New Hampshire, 1692-1730; New Jersey, 1702-32; New York, 1686-1732; Virginia 1683-1698. 60 In 1692 Samuel Willard’s Some Miscellany Observations on Our Present Debates was printed with the imprint “Philadelphia: Printed by William Bradford for Hezekiah Vsher.” David Hall notes that the imprint is “transparently false, since Hezekiah 86 C HRISTOPHER H UNTER Recognizable libertarian declarations of press liberty were utterly unknown in seventeenth-century British America, in part because the press did not exist as a recognizable institution. Furthermore, freedom was not necessarily good for business. In the absence of a Colonial Stationer’s Company or copyright protection, printers relied on governmental regulation to protect themselves. As Hugh Amory has noted, “[w]hatever its other virtues, freedom of the press does not pay: the margin of profit shrinks as the market grows more competitive.” 61 Expansion of the freedom of the press made poor economic sense before the commercial development of the American press. So long as printers acted as only printers they had an economic disincentive to anger their patrons. The same was true, but to an even greater degree, for salaried public printers. At the end of the century critics of the prevailing order in Massachusetts had to send their criticisms to another colony to be printed, but the weren’t forced to flee as Pynchon had been in 1650. 62 “Colonists thus came to experience a much greater degree of political free speech across the seventeenth century as a result of a coalescence of historical trends. Yet the growth of free speech before 1700 was largely unexpected and unwanted by colonial authorities, and probably only semiconsciously enjoyed and appreciated by ordinary colonists at the time. The growth of free speech in the seventeenth century, the expansion of freedom to criticize, to challenge verbally, to hold government accountable - these were not the progeny of volition. They were, rather, the fruits of circumstance.” 63 The Eighteenth Century: From Censorship to Punishment By the turn of the century press licensing was already beginning to wane. In 1700 Bartholomew Green refused to print the anonymous Gospel Order Revived, a response to Increase Mather’s The Gospel Order Professed and Practiced by the Churches of Christ in New England Justified, without either the authors’ names or an Imprimatur. When Bradford finally published the pamphlet in New York, the “Advertisement to the Reader” criticized Green. Green printed a handbill justifying his conduct by citing precedent, including Samuel Sewall’s Phœnomena Apocalyptica, half a sheet of which had to be reset and reprinted because the censor demanded altera- Senior had been dead for twenty years, while Hezekiah Jr., a merchant who appears in no other imprints, jad fallen under suspicion of witchcraft and fled for his life to New York.” Hall 130. 61 Hugh Amory, “Printing and Bookselling in New England, 1638-1713” 104 62 Hugh Amory 95. 63 Eldridge 142. Reevaluating Press Freedom in Colonial America 87 tions. 64 Thomas Brattle replied in print that “nothing can be more evident from these Depositions, which say, The said Printer after he had positively agreed for the Printing said Answer, fell off from his Bargain, and declin’d to Print it, because it would displease some of his Friends, and particularly the Mathers, who are known by all to have been his particular Friends and Imployers.” 65 Bartholomew Green replied that “the Maintenance of my self & Family of small Children, depending under God, upon the good will of them that please to set me on Work I have no intent to provoke or affront any person or Order of men; but to oblige them so far as is consistent with clearing of my Reputation; which (as little and low as I am) ought to be more eligible to me than much gainful business.” 66 Most of the imprints of the Boston press - including (as Brattle and Colman pointed out) Mather’s Gospel Order Professed - did not receive an imprimatur. That Green should feel compelled to justify his conduct is a sign that the Boston press was at least marginally independent, and that the open press discourse Bradford promulgated in Pennsylvania was gaining traction among Colonial America’s few printers. Green’s critics, however, had a point: the Mathers were good customers. According to a survey of NAIP records, Cotton Mather wrote 95 works published in the decade from 1701-1710, and Increase Mather another 29. Together, they represent over one-third of all works of personal authorship, and one-fifth of all records, 67 and they financed many of these imprints in whole or in part. Whatever may have been the laws requiring prepublication approval of all prints, in practice only a small fraction ever received an imprimatur and the punishments for unlicensed printing were declining in severity. In 1688 Marmaduke Johnson was called to account for the production of his press and was fined £5 for reprinting The Isle of Pines, Henry Neville’s far-fetched tale of shipwreck, without first obtaining a license, an offense for which his press might have been seized. 68 It was evidently the lack of a license and not the description of the manner in which William Pine’s wife’s “privities were hid” 69 that galled the Council. Johnson later appealed for a return of the 64 Duniway 75. 65 Bartholomew Green, Printer’s Advertisement (Boston, 1701) 6. 66 Green, Printer’s Advertisement 10. 67 A History of the Book in America, 517. Cotton Mather, with 95 recorded imprints, was far and away the most popular author of the decade, representing 26.91% of personally authored works and 15.83% of all imprints. The next most published author was Increase Mather, with 8.22% and 4.83%. The apparent precision of such statistics belies significant interpretive issues, but the importance to a printer of authors responsible for such an incredible volume of printed material is as clear today as it was to Green’s critics. 68 Duniway 52-53. 69 Henry Neville, The Isle of Pines (London, 1668) 4. 88 C HRISTOPHER H UNTER fine, insisting that he meant no offense but merely hoped to turn a profit. By 1700 legislative resistance to colonial governors opened a space within which presses could operate with a relative degree of freedom. The death knell of licensing in Massachusetts came in 1721, when Governor Samuel Shute, whose commission still instructed him to censor the press, appealed to the Massachusetts General Court for a new licensing law. The House, in a carefully worded response, conceded that licentiousness was indeed a problem but refused to grant the request. Why Shute felt the need for a new law is unclear; in 1719 he had approved no fewer than three publications, including Some Reasons and Arguments, written by Benjamin Colman and printed by James Franklin for Samuel Gerrish and John Edwards. 70 The House’s response to Shute’s request betrays a wry sense of humor: it adopts the language of Shute’s Royal instructions, but in such a way as to reframe the debate. The Royal Instructions noted that “great inconveniences may arise by the liberty of printing,” but for the legislature, the same body that had enacted British America’s first licensing law over half a century earlier, the real danger was a powerful executive. The House noted “the innumerable inconvenienceies and dangerous Circumstances the People might Labour under” were the governor in control of the press. 71 As the representatives of the people, the House was no doubt thinking at least in part of themselves, but by protecting their own access to the technology of the press they left room for its institutional expansion as well. Boston printers were not long in exploiting this fortuitous development. Were it not for the notable series of events for which it served as the catalyst, the forty-fifth issue of The New England Courant might have passed as a fairly typical example of America’s most atypical paper. Published on June 11, 1722, it carried what had become that paper’s characteristic variety: editorials, salacious gossipy “Foreign Affairs,” accounts of deaths from smallpox inoculations, an advertisement, and the shipping news. “We are advis’d, from Boston,” one note begins in the editor’s already characteristic first-person plural, “that the Government of the Massachusetts are fitting out a Ship to go after the Pirates, to be commanded by Capt. Peter Papillon, and ’tis thought he will sail sometime this month, if Wind and Weather permit.” 72 The Massachusetts legislature, some member of whom was obviously an assiduous newspaper reader, recognized the satire for what it 70 The other two are Thomas Paine, Almanack (Boston: Printed by T. Fleet, 1719); N. Whittemore, Almanack (Boston, 1719). The next year the second edition of John Williams’s staggeringly popular A Faithful History of Remarkable Occurrences appeared (Boston: Printed by T. Fleet for Samuel Phillips, 1720) with its dedicatee J. Dudley’s conspicuous Imprimatur, a vestige of its 1707 first edition. 71 Martin 38. 72 New England Courant 45 (June 11, 1722). Reevaluating Press Freedom in Colonial America 89 was. The next day the hapless publisher was haled before the legislature’s upper house, who judged the reflection on the weakness of their resolve “a High affront to this Government.” 73 The House of Representatives concurred with the Council, and ordered that “the Sherriff of the County of Suffolk do forthwith Committ to the Goal [sic] in Boston the Body of James Franklyn Printer, for the Gross affront offered to this Government, in his Courant of Munday last, there to remain during this Session.” 74 The Council concurred, the Governor assented, and Franklin was detained for the next four weeks without the benefit of a trial or the possibility of appeal. Franklin continued to rankle the legislature, and in 1723 a joint committee made up of members from the Council and the House drafted an order that Franklin not to print the Courant “except it be first Supervised by the Secretary of this Province.” 75 Shortly thereafter, the paper ran a preface to one of its anonymous contributions stating that “[t]he late Publisher of this Paper, finding so many Inconveniencies would arise by carrying the Manuscripts and publick News to be supervis’d by the Secretary, as to render his carrying it on unprofitable, has intirely dropt the Undertaking.” 76 The statement is amusingly, even provokingly equivocal. Did “The Late Publisher,” readers might have wondered, drop the undertaking of carrying manuscripts to the Secretary, or did he drop the undertaking of publishing the Courant? In fact, he did both. “There was a Consultation held in our Printing-House,” Franklin’s apprentice recalled in his Autobiography nearly 50 years after the event, where members of James Franklin’s “hellfire club” “propos’d to evade the Order by changing the Name of the Paper; but my Brother seeing Inconveniences in that, it was finally concluded on as a better Way, to let it be printed for the future under the name of Benjamin Franklin.” Because Benjamin Franklin was his elder brother’s apprentice, “to avoid the censure of the Assembly, that might fall on him as still printing it by his apprentice,” James came up with what struck his younger brother as “a very flimsy scheme.” “The contrivance was that my old indenture should be returned to me, with a full discharge on the back of it, to be shown on occasion; but to secure to him the benefit of my service, I was to sign new indentures for the remainder of the term, which were to be kept private.” 77 Franklin soon realized that his secret indentures could not be enforced without exposing the ruse and subjecting James to further 73 Duniway 163. 74 Duniway 163. 75 Duniway 164. 76 New England Courant 80 (Feb. 11, 1723). 77 Franklin, Writings 1324-25. 90 C HRISTOPHER H UNTER punishment, and he seized the opportunity to flee his brother’s overbearing and abusive dominion. The young apprentice managed the paper while his brother was in jail. During that time, he “made bold to give our Rulers some Rubs in it, which [James] took very kindly, while others began to consider [him] in an unfavorable Light, as a young Genius that had a Turn for Libeling and Satyr.” 78 Having a turn for libeling and satire would once have virtually guaranteed a punitive response from the authorities, but by the 1720s Colonial power was no longer the unified force it once was. One of the “rubs” Franklin gave his rulers was the first American reprinting of the essay “Of Freedom of Speech: That the same is inseparable from Publick Liberty,” written by English Radical Whigs John Trenchard and Thomas Gordon’s under the pseudonym “Cato.” In the guise of “Silence Dogood,” Franklin quoted approvingly, “WITHOUT Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; which is the Right of every Man, as far as by it, he does not hurt or control the Right of another. And this is the only Check it ought to suffer, and the only bounds it ought to know.” 79 The rampant reprinting of “Cato” provided the vocabulary and ideological framework for a discourse on the freedom of the press as an institution, an institution that in 1721 was only beginning to emerge from governmental control. Since Bradford’s 1692 defense, printers had used open press doctrine to justify their professional conduct, but “Cato” went further, arguing for the structural role of the printing press that in time became the metaphor of the Fourth Estate familiar to students of the Early Republic. Andrew Hamilton, who was steeped in Cato’s Letters, would use them his 1735 defense of John Peter Zenger against a charge of seditious libel. Hamilton won his case in part by arguing, as Bradford had done, that the jury should be empowered to decide on the law as well as the facts of the case. In this, as in so many previous cases, the jury had proved a useful check on governmental power, but only because the interests of jurors coincided with those of the printers. Whatever progress the dissemination of “Cato” may have signaled for American free press discourse, John Trenchard and Thomas Gordon’s Whig tracts did not necessarily serve as a libertarian clarion call, as Benjamin Franklin’s own career illustrates. Franklin, of course, went on to become the most successful printer in Colonial America. One might therefore assume that his economic as well as his ideological position would make him gravitate towards a libertarian understanding of “the liberty of the press.” Such was not the case. In later 78 Franklin, Writings 1324. 79 New England Courant 49 (July 9, 1721). Reevaluating Press Freedom in Colonial America 91 life Franklin would uphold legislative privilege, the very same repressive power whose exercise against his brother he so much resented. Representing the Pennsylvania Assembly in London, Franklin worked behind the scenes in the 1758-59 case of his one-time friend William Smith and William Moore who had published works critical of the Quaker-dominated assembly’s pacifism. Smith and Moore were jailed for contempt of the Pennsylvania Assembly. Moore appealed his case in London, questioning the power of the assembly summarily to jail for breaches of privilege. Franklin noted in a letter to the Pennsylvania Assembly that had taken care that the solicitors representing the Assembly: should be well instructed; they performed very well, showed that the present Assembly were not Quakers; that the Libel against them was a Breach of Privilege; that all Representative Bodies must have incident to them the Powers exercis’d by the Assembly… That the Powers of Assembly were granted by our Charters and confirm’d by our Laws; and that the Power in Question was, and always had been, exercis’d by all the Assemblies in America, of which Instances were produc’d, which I had furnished. And upon the whole hoping that His Majesty would not be advis’d to infringe the Liberties and Privileges of a whole People in their Representative Body, to gratify a single factious Person, who was a common Dealer in Libels and Disturber of the publick Peace, contrary to the Duties of his Profession.” 80 Franklin’s letter reflects what R.W.T. Martin identifies as the emerging conflict between freedom and openness. Franklin certainly would have agreed with “Cato” that the free press was the people’s “bulwark” against the encroachment of tyrannical power. He would also have conceded that public liberty was endangered when personal liberty became licentious. The free press could not be absolutely open. The Assembly, as the representative of the people, had to have the power to punish abuses of the press. Too much liberty was none at all; it became licentiousness. Without the power to restrain such excesses “common dealers in libels” could infringe “The Liberties and Privileges of a whole People” by slandering their representatives. Wary of the increasing power of colonial Assemblies, the Privy Council disagreed with Franklin and ruled that the inferior Assemblies in America did not have the powers of the House of Commons to jail for breach of privilege. In a 1771 Letter To Joseph Galloway, Franklin would remember the incident. In so doing, however, he did not show any sign that he had changed his mind about the basic principle. If anything, the power of the Colonial Assemblies became even more important as imperial tensions increased. 80 Benjamin Franklin, The Papers of Benjamin Franklin, ed. Leonard W. Labaree et al., vol. 3 (New Haven: Yale UP, 1961) 61-62. 92 C HRISTOPHER H UNTER “Parliament has enough to do with the City of London concerning the Power of the House to imprison for Contempts,” he remarked, noting the jurisdictional dispute that arose when the House of Commons imprisoned an alderman and the Lord Mayor of London to the Tower. Franklin was, he owned “a little diverted in seeing that Power disputed; since… [the] Government here [e.g. in London] would not allow it to our Assemblies… what was then thought Sauce for the Goose, is now found to be Sauce for the Gander.” 81 As amused as Franklin may have been, he did not support John Wilkes, the chief architect of the dispute. Although celebrated by many in the Colonies as a martyr for free speech, Wilkes was no favorite of Franklin. In a letter to his son he wrote that he was sorry to read that Americans were “so indiscreet as to distinguish themselves in applauding his No. 45, which I suppose they do not know was a Paper in which their King was personally affronted, whom I am sure they love and honour. It hurts you here with sober sensible Men, when they see you so easily infected with the Madness of English Mobs.” 82 William Franklin agreed, and published his father’s comment in the Pennsylvania Chronicle. 83 Whatever Franklin’s personal feelings on the subject may have been, the fact that he could read about the debate in American newspapers shows how far the freedom to discuss political affairs in print had come. The first newspaper in the Colonies, a printed version of the then-common manuscript newsletter entitled Publick Occurrences both Forreign and Domestick, was printed in 1690 by Richard Pierce for Benjamin Harris and immediately suppressed. There was nothing scandalous in this; the order for its suppression printed. 84 Boston’s first continuously published newspapers, John Campbell’s Boston Newsletter (April 24, 1704) and William Brooker’s Gazette (Dec 21, 1719) were both authorized publications put out by postmasters. William Bradford’s son Andrew published the American Weekly Mercury in Philadelphia beginning in December 22, 1719, the day after Brooker’s Gazette first appeared. 85 Shortly thereafter, newspapers were being established as organs of political opposition. Such was Zenger’s New 81 Benjamin Franklin, The Papers of Benjamin Franklin, ed. Leonard W. Labaree, Helen C. Boatfield, and James H. Hutson, vol. 12 (New Haven: Yale UP, 1967) 77. 82 Benjamin Franklin, The Papers of Benjamin Franklin, ed. William B. Wilcox et al., vol. 15 (New Haven: Yale UP, 1972) 224. 83 Pennsylvania Chronicle (Dec 26, 1768). 84 “Whereas Some Have Lately Presumed to Print and Disperse a Pamphlet, Entituled, Publick Occurrences, Both Forreign and Domestick: Boston, Thursday, Septemb. 27th. 1690. Without the Least Privity or Countenance of Authority. The Governour and Council… Order That the Same Be Suppressed and Called in” (Boston, 1690). 85 Frank Luther Mott, American Journalism; a History of Newspapers in the United States through 250 Years, 1690-1940 (New York: Macmillan, 1941) 11-26. Reevaluating Press Freedom in Colonial America 93 York Weekly Journal and such was the second Virginia Gazette, published by William Rind, the official printer to the house of Burgesses. In the years preceding the Revolution, newspapers had long been a part of every day life in the colonies. By 1765 all but two colonies (Delaware and New Jersey) had at least one paper, and the larger cities had more than one. 86 By Frank Luther Mott’s count, “there were thirty-seven newspapers in course of publication in the colonies on April 19, 1775, the day of the battles of Lexington and Concord.” 87 In the decades before the war, the increasing availability and openness of American newspapers facilitated a widespread political discussion. During the War, this relative openness radically contracted to the almost complete exclusion Loyalist material. As Arthur Schlesinger put it in a pithy and much-quoted passage, “liberty of speech belonged solely to those who spoke the speech of liberty.” 88 Patriots were more than willing to sacrifice the hard-won openness of their presses on the altar of the greater liberty, and vigilantism ran rampant. Mobs led by Isaac Sears twice attacked loyalist printer James Rivington, and smashed his press. Samuel Loudon, publisher of the New York Packet had a print run of 1,500 copies of an anti-independence rebuttal to Thomas Paine’s Common Sense stolen and burned on New York Common. 89 These were by no means isolated incidents, and the British Army was equally assiduous in suppressing their opponents in the cities under their control. Just as in the seventeenth century, actions against printers were only a minute fraction of the much larger campaign to police not only the printed word but also behavior and speech. In Conclusion Neither ideological nor disciplinary structures are purely reactive. Such defenses of the liberty of the press as are to be found in he Colonial period occur in and around attempts to inhibit the practice of that freedom. It is axiomatic that liberty and suppression are mutually constituting; their relationship is dialectical, not causal. It is no less true in the case of William 86 “There were four papers in Boston and three in New York; while in Philadelphia there were two papers in English and one in German, with another German paper in nearby Germantown. In New England, Connecticut, and Rhode Island each had two papers; and in the South, the two Carolinas each had two. The other four colonies each had one paper, published at its seat of government, making a total of twentythree newspapers. All of them were weeklies” (Mott 43). 87 Mott 95. 88 Arthur M. Schlesinger Jr., Prelude to Independence (New York: Knopf, 1958) 189. 89 Martin 90. 94 C HRISTOPHER H UNTER Bradford in 1692 than Zechariah Chafee in 1920 that clearly articulated rights claims in the absence of a perceived infringement of those rights are just as infrequent as repressive measures without an accompanying threat. Hamilton’s great insight in Federalist 84 is that concepts, like Constitutional amendments, are meaningless so long as they remain abstract. Their significance depends on the very practices to which they give meaning. I have purposely tried to outline the shifting structures of freedom and restraint without fitting them into a teleological narrative of progressive liberalism whose consonance with the expanding empire for liberty are more fortuitous than apt. More than one hundred people were convicted under the Sedition Act of 1918 for every one jailed under the Sedition Act of 1798, and in a country whose founding document includes that allegation that its former monarch “excited domestic insurrections” it remained criminal to publish or disseminate abolitionist material in the South until after the Civil War. In the seventeenth century, when prior censorship was the norm, the idea of the press as the legitimate agent for popular oversight of the government was utterly unknown for the simple reason that the press as an institution did not yet exist. Even within this restrictive atmosphere printers began to think of themselves as separate from the governments at whose behest or sufferance they practiced their profession, a necessary precondition for the development of a public sphere. An emergent “open press” doctrine actually predated and in part facilitated a broader understanding about the uses and limits of the freedom of the press, but even in the eighteenth century that freedom was far from absolute. Just as the restraint of the press has its roots in other kinds of controls, so too does the concept of the liberty of the press emerge from the penumbra of other liberties. In the eighteenth century, prior restraint weakened and disappeared, but it was replaced by an ad hoc combination of subsequent punishments that were, perhaps, not much less effective. Overt acts supplanted bad tendency as the test in sedition cases only in the twentieth century, but this only begs the question of what constitutes a criminally actionable “clear and present danger.” Leonard Levy’s persistence in the conviction that the crime of sedition is anathema to the liberty of the press invited charges of the anachronistic application of modern standards of libertarianism to the eighteenth century, but one might be forgiven for asking, with some of that alleged anachronism, whether we can take seriously a republican claim to liberty that disregards individual rights in favor of a “greater good” - whether, that is, “free” is really an apt designation for a press that is not “open,” or for a political culture that condones the use of all available means including violence to silence opposition. It is not a question Colonial Americans would have asked themselves, but it is a question we should not flinch from asking of Colonial America. Reevaluating Press Freedom in Colonial America 95 Works Cited A True Copy of Three Judgments Given forth by a Party of Men, called Quakers, against George Keith and His Friends. [Philadelphia]: [1692]. Amory, Hugh. “Printing and Bookselling in New England, 1638-1713.” A History of the Book in America. Ed. Hugh Amory and David D. Hall. Cambridge: Cambridge UP, 1999. 83-116. Bartlett, John Russell, ed. Records of the Colony of Rhode Island and Providence Plantations. Vol. 1. Providence, 1856. Blackstone, William. Commentaries on the Laws of England. Vol. 4. Oxford: Clarendon Press, 1769. Botein, Stephen. “‘Meer Mechanics’ and an Open Press: The Business and Political Strategies of Colonial American Printers.” Perspectives in American History 9 (1975). 127-225. Chafee, Zechariah. Freedom of Speech. New York: Harcourt, Brace and Howe, 1920. Corwin, Edward S. “Freedom of Speech and Press under the First Amendment: A Resume.” Yale Law Journal 30 (1920). 48-55. Cushman, R.E. Rev. of Free Speech in the United States, by Zechariah Chafee American Political Science Review 36.1 (Feb, 1942). 136-138. Duniway, Clyde Augustus. The Development of Freedom of the Press in Massachusetts. 1906; New York: B. Franklin, 1969. Eldridge, Larry D. A Distant Heritage: The Growth of Free Speech in Early America. New York: New York UP, 1994. Franklin, Benjamin. The Papers of Benjamin Franklin. Ed. Leonard W. Labaree et al. Vol. 3. New Haven: Yale UP, 1961. —. The Papers of Benjamin Franklin. Ed. Leonard W. Labaree, Helen C. Boatfield, and James H. Hutson. Vol. 12. New Haven: Yale UP, 1967. —. The Papers of Benjamin Franklin. Ed. William B. Wilcox et al. Vol. 15. New Haven: Yale UP, 1972. —. Writings. Ed. J.A. Leo Lemay. New York: Library of America, 1987. Green, Bartholomew. Printer’s Advertisement. Boston, 1701. Green, James, “The Book Trade in the Middle Colonies, 1680-1720.” A History of the Book in America. Ed. Hugh Amory and David D. Hall. Cambridge: Cambridge UP, 1999. 199-223. Henning, William W. ed., The Statutes at Large, Being a Collection of all the Laws of Virginia. Vol. 1. Richmond, 1809. Labaree, Leonard Woods. Royal Instructions to British Colonial Governors, 1670-1776. Vol 1. New York: D. Appleton-Century, 1935. Levy, Leonard W. Emergence of a Free Press. New York: Oxford UP, 1985. —. Legacy of Suppression: Freedom of Speech and Press in Early American History. Cambridge: Belknap-Harvard UP, 1960. —. “On the Origins of the Free Press Clause.” 32 UCLA Law Review. (1984). 177-218. Martin, Robert W.T. The Free and Open Press: The Founding of American Democratic Press Liberty, 1640-1800. New York: New York UP, 2001. Mott, Frank Luther. American Journalism; a History of Newspapers in the United States through 250 Years, 1690-1940. New York: Macmillan, 1941. New England Courant 49 (July 9, 1721). —. 45 (June 11, 1722). —. 80 (Feb. 11, 1723). Neville, Henry. The Isle of Pines. London, 1668. 96 C HRISTOPHER H UNTER Paine, Thomas. Almanack. Boston, 1719. Pennsylvania Chronicle. (Dec 26, 1768). Publius [Hamilton, Alexander, James Madison, John Jay]. The Federalist. New York, 1788. Rabban, David M., “The Ahistorical Historian: Leonard Levy on Freedom of Expression in Early American History.” Stanford Law Review 37.3 (1985). 795-856. Reeves, John and Lodowick Muggleton. Answers to Several Queries. London, 1654. —. A General Epistle, from the Holy Spirit: unto all prophets, ministers, or speakers in the world. London, 1653. —. A letter presented unto Alderman Fouke, Lord Mayor of London. London, 1653. —. A Remonstrance from the Eternall God, declaraing severall spirituall transactions unto the Parliament, and Common-wealth of England. London, 1653. —. A Transcendent Spiritual Treatise upon Severall Heavenly Doctrines from the Holy Spirit of the man Jesus, the only true God. London, 1652. Richardson, James D., ed., A Compilation of the Messages and Papers of the Presidents 1789-1897. Vol. 1. Washington [D.C.]: U.S. Govt. Print. Off., 1896. Rosenberg, Norman L. Protecting the Best Men: An Interpretive History of the Law of Libel. Studies in Legal History. Chapel Hill: University of North Carolina Press, 1986. Schlesinger Jr., Arthur M. Prelude to Independence. New York: Knopf, 1958. Siebert, Fredrick Seaton. Freedom of the Press in England, 1476-1776, the Rise and Decline of Government Controls. Urbana: U of Illinois P, 1952. Stevenson, Archibald E. “The World War and Freedom Of Speech.” Rev. of Free Speech in the United States, by Zechariah Chafee. New York Times Book Review and Magazine. (13 Feb., 1921). 9. Thorpe, Francis Newton. The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the State[s], Territories, and Colonies Now or Heretofore Forming the United States of America. Vol. 5. Washington [D.C.]: Govt. Print. Off., 1909. “Whereas Some Have Lately Presumed to Print and Disperse a Pamphlet, Entituled, Publick Occurrences, Both Forreign and Domestick … Order That the Same Be Suppressed and Called in.” Boston, 1690. Whittemore, N. Almanack. Boston, 1719. Willard, Samuel. Some Miscellany Observations on Our Present Debates. Philadelphia, 1692. Williams, John. A Faithful History of Remarkable Occurrences. Boston, 1720. Winthrop, John. Journal of the Transactions and Occurrences of the Settlement of Massachusetts. Hartford, 1790. Wroth, Lawrence C. A History of Printing in Colonial Maryland, 1686-1776. Baltimore: Typothetae, 1922. D ICKSON D. B RUCE , J R . Lorette: Anti-Catholicism and Religious Freedom in Antebellum America From the colonial period through much of the twentieth century, anti- Catholicism has been a potent force in American social and political life. But at no time was it more potent than in the period between about 1825 and the late 1850s when, apart from the conflict over slavery, it was among the most divisive forces in American politics. Culminating, famously, with the great success of the American, or “Know Nothing” party in the mid-1850s, anti- Catholicism was a force to be reckoned with throughout the period. Antebellum anti-Catholicism is often popularly conflated with a concomitant growth in “nativism,” that is, with increasing anti-immigrant, especially anti-Irish sentiment during the era, and there is a measure of truth in the equation. But the conflation is also misleading. For one thing, anti- Catholic activity was far from continuous during the period, and some of the earliest outbursts of antebellum anti-Catholicism, from roughly the late 1820s to about 1840, predate the most significant waves of Irish immigration (Bennett 29; Moore 54). While they betrayed anxiety about foreign and immigrant “threats” to America, these early outbursts tended to represent reactions to what were perceived as increasing Catholic efforts in areas of outreach and education (Franchot 99-100). As a result, this early anti- Catholicism also tended to focus far more heavily on religious and political conflicts than on immigration as such, reflecting controversies that had at their heart questions of religious freedom and church-state relations. These early controversies provided a framework for anti-Catholic propaganda throughout the period and a context for understanding deeper themes of religious freedom in a difficult time. Anti-Catholic activity took various forms during this critical period of the 1820s and 1830s, from the founding of journals to the creation of political organizations to severe outbreaks of mob violence, most notably the burning of the Ursuline Convent and School in Charlestown, near Boston, in 1834. All of this activity was supplemented - and, some historians would argue, stimulated - by the emergence of a substantial body of literature, including fiction (occasionally represented as fact), that conveyed anti-Catholic ideas and anti-Catholic images to a very broad audience (Billington 68-76). And the audience was very broad indeed. The most notorious of these works, Maria Monk’s Awful Disclosures of the Hotel Dieu Nunnery of Montreal, was, according to Frank Luther Mott, the 98 D ICKSON D. B RUCE , J R . best-selling book in America during the year of its publication, 1836 (306). It continued to sell well for most of the era, up to the time of the Civil War. But Monk’s work was, in many ways, anticipated by a no less influential book from a few years before, George Bourne’s 1833 novel Lorette: The History of Louise, Daughter of a Canadian Nun: Exhibiting the Interior of Female Convents. Described by literary historian David S. Reynolds as “the prototype” for most later anti-Catholic fiction - including Monk’s Awful Disclosures (181) - Bourne’s novel combined sensationalism with exposition with motifs of sentimentalism and evangelical piety to create a rich brew of anti-Catholic rhetoric, and a particularly revealing one as well. Bourne played a major role in the burgeoning anti-Catholicism of the late 1820s and early 1830s. Born in England in 1780 and moving to America in 1804, Bourne had lived variously in Maryland, Virginia, Pennsylvania, and Quebec before finally settling in New York City in 1829. In January, 1830, he became founding editor of one of the first anti-Catholic newspapers, The Protestant, and a leading figure in the anti-Catholic movement. He was active in the 1836 creation of the first national anti-Catholic organization, the American Society to Promote the Principles of the Protestant Reformation, and was a prolific publicist for the cause. In addition to Lorette, he had a hand in the creation of Monk’s Awful Disclosures, taking notes from her, perhaps contributing to its content (Billington 53, 96-97; Griffin 33). But Lorette achieved its own success. Though not the year’s best-seller - that honor belonged to John S.C. Abbott’s Christian advice manual, The Mother at Home - it was among those Mott considered the “runners up.” And, joining such other works as David Crockett’s Autobiography, Timothy Flint’s Daniel Boone, and Lydia Sigourney’s Letters to Young Ladies, it was the best-selling novel on the list (Mott 315, 318). But Bourne’s authorship of Lorette adds a dimension to the novel’s significance that is equally important to note. For all Bourne’s importance to the anti-Catholic movement, his claim on the American historical memory has always rested more heavily on his role in that still more potent force in antebellum America, the fight against slavery. Bourne was an early and ardent enemy of slavery. Entering the Presbyterian ministry shortly after his arrival in America, Bourne became convinced by 1809 or 1810 that slavery - which he consistently referred to as “manstealing” (1 Tim. 1.10 [KJV]) - was incompatible with Christianity. By 1815 - the date is not entirely certain - he had begun to exclude slaveholders from his church in Lexington, Virginia. In 1815, he also attended the Presbyterian General Assembly in Philadelphia, where he denounced slaveholding and condemned slaveholders as sinners and hypocrites, urging their exclusion from the church at large (Christie and Dumond 15-25). Lorette: Anti-Catholicism and Religious Freedom in Antebellum America 99 Bourne lost his post in Virginia, but not his enthusiasm for the cause. In 1816, he published “The Book and Slavery Irreconcilable”, delineating slavery’s brutality and sinfulness and, as the title indicates, its inconsistency with Scripture. It was also one of the first American tracts to demand immediate emancipation, doing so in an era when even gradualism seemed radical. Some time in the next decade or so, it was to take its place among the most significant sources for William Lloyd Garrison’s conversion to immediatism. “The more we read it,” Garrison said, “the higher does our admiration of its author rise” (Mayer 69-70) and, with that admiration, an awareness that anything short of immediate emancipation represented a compromise with sin (Christie and Dumond 75, 78-79). Even as Bourne took on his labors as an anti-Catholic agitator, he maintained his commitment to abolitionism. The Protestant, though focused mainly on anti-Catholicism, contained its share of pieces denouncing the “generation of Man Stealers” who continued to hold their victims in bondage (1: 405). One of his most important works, Picture of Slavery in the United States of America (including a revision of The Book and Slavery) appeared in 1834, only a year after Lorette. In 1837, only a year after he had coached Maria Monk to best-sellerdom, he published his Slavery Illustrated in Its Effects Upon Woman and Domestic Society, a blistering denunciation of slaveholder sexual licentiousness. In the meantime, he had joined Garrison and others at the end of 1833 in creating the American Anti-Slavery Society, and was one of the original signers of its “Declaration of Sentiments.” Asserting that “every American citizen, who retains a human being in involuntary bondage” should be considered, according to the Bible, “a Man-Stealer,” the document showed evidence of Bourne’s influence, as well (in Bourne, Picture, 225, 227). His biographers, John W. Christie and Dwight L. Dumond, report that he was a frequent if often anonymous contributor to The Liberator, and even suggest that he wrote parts of Garrison’s Thoughts on African Colonization (1832), one of the abolitionist movement’s founding documents (84, 97-98). Donald Yacavone, in a sketch of Bourne for the American National Biography, has emphasized the connections between Bourne’s abolitionist and anti-Catholic efforts. Bourne treated both slavery and Catholicism as totalitarian institutions; he argued that both created and dehumanized innocent victims, and that both entailed, especially, the brutal sexual exploitation of women by those in power (3: 255; see also Franchot 102-103). These connections are important to recognize because, while not all prominent anti-Catholics shared Bourne’s radical abolitionism - and not all abolitionists his ardent anti-Catholicism - such links represent themes in antebellum anti-Catholicism going beyond nativist racial or ethnic bigotry, for all the nativist racial and ethnic bigotry to be found there. And, again, in Bourne’s 100 D ICKSON D. B RUCE , J R . case this is especially important to remember. As editor of The Protestant, Bourne focused almost exclusively on religious issues, avoiding nativism altogether, and Lorette, for its part, did nothing to connect anti-Catholicism to nativist fears, however much such fears helped define the context for his work. It is probably to the point that, in his anti-slavery writings, Bourne was a consistent advocate of racial equality and African-American citizenship, as well. But such connections also help to illuminate what seems to be one of the more paradoxical features of anti-Catholicism during the 1820s and 1830s, its relationship to ideas of religious liberty and to problems of church and state. Put briefly, Bourne and others presented their anti-Catholicism not as intolerance of religious differences but, rather, as a defense of American religious freedom against an authoritarian Catholic onslaught. Lorette is an important dramatic statement of what they believed this meant. As a novel, Lorette is loosely structured, draws on an array of formal sources, and moves, often awkwardly, from narrative to polemic, and back again. Parts of the novel are told from the perspective of a third-person narrator; parts in the form of a “memoir” left by the story’s main character, Louise, after her death. There are elements of the gothic (though nothing like those in Monk’s Awful Disclosures), of the captivity narrative, and, notable given Bourne’s abolitionism, of the fugitive slave narrative (Griffin 31). The connections with the slave narrative are particularly striking. Lorette’s protagonist Louise, for example, makes much of not knowing her parentage or her exact birth date. Seeking to escape the clutches of the Church, she must live as a fugitive in the wilderness, constantly threatened with betrayal. Detailing episodes of sexual exploitation, Bourne portrays confrontations between Louise and lascivious priests that clearly anticipate Harriet Jacobs’s 1861 accounts of her confrontations with lascivious slaveholders in Incidents in the Life of a Slave Girl (Franchot 154-55). Because the novel is not well known today, a brief synopsis may be useful. Set in Canada, the novel begins with an encounter near the Indian village of Lorette between two young men, Diganu and Chretien, and Louise, whom they find insensible. She has a small cross “punctured” on the top of her forehead, marked with the letter M; Diganu has a similar cross, marked with a D. Though she is vague about where she has come from, she begs them to shelter her, which they agree to do. When, however, she finds that they have furnished her room with a crucifix and other Catholic paraphernalia, she removes everything, burning “the Mass-book, the Images and the rosary.” The young men had also supplied her with holy water, which she “cast into the street.” She tells the astonished Diganu and Chretien, “if you knew as much as I do of the Priests and their pretended religion, you would do the same” (21). Lorette: Anti-Catholicism and Religious Freedom in Antebellum America 101 Louise remains with Diganu and Chretien for several months. During this time, the principals engage in several debates on Catholicism and, especially, on the authority of the priests. In addition, Louise and Diganu soon fall in love, Diganu ultimately proposing marriage. At the same time, Louise becomes increasingly subject to a scheme, guided by a wily Jesuit, to steal her away. She is, readers learn, a novice who has fled from the convent at “Point aux Trembles,” and the Church wants her back. At this point, Bourne interrupts his story to let Louise provide a brief narrative of her life. Ignorant of parents, birthplace, and age, and knowing herself only as Louise, she says, she was raised by nuns at Point aux Trembles and Quebec. And she had found life in the convent increasingly repellent. Initially, this was due to the influence of an old nun, Marguerite, who recounted her own miseries to the young Louise, telling a tale of sexual terrorism, of young women held in physical and psychological bondage, of priests who used their power and authority to force nuns to submit to lives of licentious exploitation. But soon, Louise relates, she was to learn for herself the truth of Marguerite’s tale. With the connivance of the Mother Superior, she was brought to a priest who had taken an interest in her. The priest did everything he could to “extirpate” her “delicacy” (58), which she resisted. Still, he persisted, tormenting her “with his wicked proposals and forced caresses. He adduced,” she said, “all the varied deceptions which Marguerite had detailed. He boasted of the authority of his Church, the blessedness of his absolution, the comfort of enjoying a Priest’s favor, and the satisfaction of a Nun’s life, with its glorious reward” (62). When such blandishments failed, he threatened to take her by force, imprisoning her, plotting her ruin. Through a combination of luck and determination, she was able to escape, making her way blindly to Lorette. Her escape is to be temporary. Diganu and Louise make their way to be married, but the plot against them is in motion. At the church, they are met by two priests who seize her, separating her forcibly from Diganu. The priests declare that Diganu and Louise are brother and sister - the crosses on their foreheads tell the tale! Diganu is distraught and now, for himself, begins to question the authority of the priests and the Church, confronting the Bishop in an effort to get Louise released. The Bishop dismisses Diganu’s challenge: “know you not that resistance to the authority of the lawful Priests is rebellion against God, not to be tolerated in thought, much less in word and action? ” (91). Persisting, Diganu will soon be branded a “heretic”: before long, he will glory in the brand. Returned to the convent, Louise begins a new “narrative” of her experiences, reflecting deeply on the world in which she must now live. She thinks about the outward appeal of what appears, on the surface, to be 102 D ICKSON D. B RUCE , J R . “a haven of quietude” and “the garden of an earthly paradise,” all the product of “Jesuitical artifices and seductions” (127). At the same time, she perceives the “deadening” power of a life dominated by the tedium of tightly structured, “monastic” routines (128). And she is especially critical of the seductive power of the Confessional, which she sees as an essential feature of the convent system: “Artful questions are asked” to penetrate the innermost recesses of the mind, to manipulate innocent young women into submissiveness. “Often are the young women made to believe that they are an inferior race to the men, and only created to administer to their enjoyments” (131). Only a few things help Louise to resist. First, she has learned to reject the convent’s ceremonials. She prays her own prayers, placing her hope in God alone. And she has her Bible, which she reads constantly. Here, for Bourne, is Louise’s most critical resource. As he asserts at several points, Louise’s personal devotion to the Scriptures places her severely at odds with her Catholic oppressors. Priests, he claims, do not want their people to read the Bible. Priestly authority depends on an exclusive right to read and interpret Scripture. Marguerite had directed Louise to the undefiled source; Louise had done the same for Diganu and Chretien. The Bible was to be Louise’s chief source of solace in the totalitarian world of the convent. And its power was to provide the basis for much of what would follow in Bourne’s novel. Louise is never to receive physical release from convent life, but she is soon allowed a kind of emotional escape when, after seven years, she is reunited with her long-lost mother, a nun named Therese. The two are allowed to live together in Therese’s convent at Trois Rivieres. At this point, too, Bourne shifts his novel from plot to exposition. Therese, like Louise, has found little but misery in convent life. Louise will ultimately learn that Therese was also the daughter of a nun and, “trained” in the “vile associations” of the convent (205), was the mother of both Diganu and Louise, by two different priests. By this time, Therese’s health is poor, her constitution weak, and her religion offers her little consolation. It is for Louise to reveal to her mother the alternative of Protestant Christianity. Therese remains wedded to the authority of the priests and the Church, or at least is afraid to let them go, but Louise is not to be deterred. She decries the meaninglessness of Catholic practices. She condemns the blind obedience of the people, their vulnerability to the externals of rituals and images: “the Church is a theatre,” she declares, “and the Priest and his assistants are only actors” (158). Louise draws sharp contrasts between Catholicism and the Protestant alternative as she seeks to win her mother’s soul, not only away from Catholicism but also for salvation. Again, the Scriptures play a central Lorette: Anti-Catholicism and Religious Freedom in Antebellum America 103 role. The Bible itself exposes the “idolatrous and corrupt practices” of the Church, Louise tells Therese; the Scriptures provide no real foundation for “Popery” (165). But the Bible is the only true basis, Louise asserts, for genuine Christian faith and practice. No less significant is Louise’s effort to replace Catholicism’s “theatre” with a more inward faith. Priestly mediation and, especially, practices of Confession and absolution deaden the conscience and, more importantly, blind people to the need for an “evangelical” repentance of their sins through a new birth in Christ. It is not enough to know Scripture. Through prayer and constant effort, one must learn to appreciate the “experimental application of the divine oracles” in order to experience the “work of Divine mercy” in her heart (188, 192). In essence, Louise works to help Therese on the way to a direct experience of God’s power, unmediated by Church structures and external authority. Louise’s own life is a testimony to the workings of divine grace and, in the end, by persuasion and example, she succeeds in bringing her mother around, “the instrument in God’s hands,” as Therese proclaims, “to convert a sinner” (199). Therese’s conversion is to be the climax of her life. Over the next year, her health steadily deteriorates and soon she must face death. A priest comes to offer last rites, but Therese refuses. She does not want her last moments sullied “by a rite which Christianity condemns” (233). Instead, she dies at peace, Louise by her side, confident in having found “acceptance in Christ” (234). Only months will pass before Louise joins her mother in death, looking forward to the time when she, Diganu, and Therese will meet again, and be “present with the Lord” (242). In Bourne’s novelistic case against Catholicism, several key themes stand out. One, clearly, has to do with what Bourne presents as the sexually exploitative character of the convent system. As Marie Anne Pagliarini has detailed, the theme was ubiquitous in the anti-Catholic literature of the day (98, 112). Again, Yacavone notes Bourne’s indictment of the exploitation of women in both abolitionist and anti-Catholic writings, and such an indictment occupies a central place in Lorette. At one level, this story of exploitation drew on rather old traditional themes in anti-Catholicism, themes which occasionally showed up in Bourne’s Protestant, and it probably need not be stated that the story had much more to do with anti-Catholic tradition than with any facts of convent life. At the same time, however, Bourne told the story in a way that had great literary resonance in his own time, entailing a peculiar version of the sentimental seduction fiction that had appealed to Anglo-American audiences since at least the middle of the eighteenth century. Just as that fiction centered on vulnerable young women confronting seducers who used promises of love and marriage to lure their prey to ruin, Bourne’s story returned, 104 D ICKSON D. B RUCE , J R . ceaselessly, to episodes in which innocent victims faced “artful” priests who, promising absolution and rewards to come, were lured to ruin through a false sense of security. Bourne also drew heavily on gender conventions from such stories. Describing her misery to Louise, Therese laments, “Had I then possessed the smallest particle of becoming feminine sensibility or of sound rational intellect, I must have glimpsed enough of my own foolishness, at least, to have guarded me against the direct assaults of unveiled iniquity” (157), a recognizable lament in the literary setting of the day. But Therese’s lament is rich in its implications in the context of Bourne’s novel, because it ties in, more specifically, with his larger case against the Church. Bourne continually seeks to demonstrate that the whole force of Catholicism is directed, methodically, toward blunting both “feminine sensibility” and “rational intellect.” The techniques for the former were harsh, because, for Bourne, women had natural tendencies toward purity and tenderness that had to be overcome. He made this point in his works on slavery, especially in his 1837 Slavery Illustrated in Its Effects on Women, as he detailed the anguish every female slave felt in the face of the institution’s endemic, aggressive sexual brutality; he made it in Lorette, as well. For his nuns, the training to accept that “vile association” between priests and nuns that Therese had bemoaned was part of a process of overcoming such tendencies, sexual exploitation leading to sexual corruption. No less critical, according to Bourne, were approaches to dealing with the unwanted offspring of corrupt liaisons. Although Bourne retailed, briefly, legends of Jesuits who murdered their own children (much as he told about slaveholders who willingly sold theirs), he spent far less time with that hoary anti-Catholic motif than he did with condemning what he described as the near instantaneous separation of mother from infant - much as both Therese and Louise had themselves experienced. The effect, Bourne wrote, was to destroy “all their tender sensibilities,” creating a “callous” character all the more willing to participate in the convent’s vile system of “female seduction and ruin” (163). Such an argument would have had great potential within the framework of antebellum American gender ideals, which celebrated maternal instincts. This was, after all, a world that accorded best-seller status to John S.C. Abbott’s The Mother at Home, the book that beat out Lorette on the 1833 list. Purposefully offering advice from a perspective “usually denominated evangelical” (5), Abbott urged that “no one else can possibly have the influence which a mother may possess,” asserting that “maternal affection is the most eloquent pleader” in the inculcation of good character and true piety (108). Bourne’s convent system was aimed at destroying both, and destroying their effects, as well. Lorette: Anti-Catholicism and Religious Freedom in Antebellum America 105 The destruction of a “sound rational intellect” was more complex. There was, at least in part, what Bourne portrayed as the unrelieved tedium of convent life, with its deadening force. Just as crucial, however, was the power of imagery to seduce the mind, even as “priestcraft” destroyed virtue. Capturing a more generally held antebellum fear of the deceptive power of appearances (Halttunen 37-39), Bourne argued that young people were especially vulnerable to such powers: “Youth merely glance at the surface, and all appears robed in the very witchery of delight,” Louise says. The “conventual system,” as she sees it, “involves a species of infatuation bordering on lunacy, unless it is more appropriately transferred to vice” (127). Louise, it may be recalled, signals her escape from that system by ridding herself of the crucifix, mass-book, images, beads, rosary, and holy water that Diganu and Chretien, helpfully they believed, had provided for her room. She had even earlier marked her emancipation from error, as she later tells Therese, when she “secretly rejected the adoration of images” even as she appeared to join in the rites of the Church (183). Getting rid of “idolatrous trash” is, she urges, an essential first step toward receiving the “evangelical substitute” for what she describes as the “monstrous absurdities” of the Catholic faith (187, 180, 181). What, then, did Bourne offer as that “substitute”? As the story of Louise’s psychological escape and Therese’s conversion makes clear, what Bourne offered was, above all, the Bible. It is impossible to overemphasize the Bible’s significant and recurring place, thematically, in Lorette. Again, Louise saw the Bible as the ground of her own faith; her knowledge of the Scriptures gave her the strength to resist the priests’ efforts at seduction. It was the chief vehicle whereby Therese came to “evangelically” repent of her sins. Bourne also made much of what he portrayed as Catholicism’s priestly control over access to the Bible, its denial, as he saw it, to the laity. Early in Louise’s life, the older Marguerite, seeking to protect the young woman from corruption, had urged her to read the Bible, but had stressed that it must be done in secret. As a young woman herself, Marguerite had been discovered with a Testament, causing an uproar. Priests and nuns had raged against her, confiscating the offending book. Louise, during her exile, must similarly resort to secrecy. Therese, of course, has never read the Bible for herself prior to Louise’s arrival. If, according to Bourne, the prohibition was, in part, the product of priestly self-protection, it was also, he claimed, part of more general efforts to create a certain kind of follower, one whose loyalty was given blindly to the Church rather than, as a result of knowledge and experience, to God. Louise refers constantly to Therese’s “ignorance” of Christianity, an ignorance which can be cured only by direct exposure to the Word of God 106 D ICKSON D. B RUCE , J R . driven by what Louise describes as “an inquiring mind” (170), a mind seeking religious truth, a “sensible” rather than a “superstitious” mind. Such Biblicism was common in the anti-Catholic literature of the day. Maria Monk, not surprisingly given Bourne’s influence, stressed the denial of the Bible to the nuns in her convent. The priests, she said, saw it “as a most dangerous book, and one which never ought to be in the hands of the common people” (56). Sarah J. Hale, soon to become, as editor of Godey’s Lady’s Book, one of antebellum America’s most influential journalists, published an 1835 short story, “The Catholic Convert,” in which a young convent-raised woman tells her Protestant mentor that she had actually been taught that Bible-reading was a sin (76). The leading anti-Catholic Lyman Beecher - Harriet Beecher Stowe’s father - charged that, under Catholicism, “none may read the Bible but by permission of the priesthood, and no one be permitted to understand it and worship God according to the dictates of his own conscience” (Beecher 67). The charge was deeply rooted in the Protestant tradition out of which Bourne and other anti-Catholics came. It was also, of course, disingenuous. Bible reading was and had been urged on Catholics for centuries. As New York’s combative Bishop John Hughes pointed out in 1836, the Church itself had long sponsored translations of the Bible into many languages so that it might be accessible to the laity (Hughes and Breckinridge 222-25). Undoubtedly, what the charge did was to adapt - and to exaggerate - the Church’s assertion of its “teaching authority” in the interpretation of the Scriptures (Whealon 514), and to contrast that assertion with the Protestant Biblicism Bourne and others championed, the view that individuals could and should interpret the Bible for themselves, without any mediating authority. But this, in itself, was important to Bourne. In The Protestant, he had condemned “Popery” for refusing “the right of individual examination and private judgment, in the concerns of religion” (1: 91), a point consistent with his presentation in Lorette. It was a view that even provided links between his hostility to Catholicism and his opposition to slavery, where his language, even from his earliest writings, anticipated what he said in Lorette. He accused defenders of slavery of protecting their own interests by “handling the word of God deceitfully,” of basing their case on “a sophistical interpretation of the sacred volume” (Bourne, Book, 111, 186). In his Picture of Slavery, a work roughly contemporary with Lorette, he made the links especially clear when condemning the religious instruction Southern churches offered to slaves: “The preaching slavites have professed to open a sort of schools for the oral instruction of the coloured citizens. This incomparable theological tragic-comic farce is only matched by that Jesuitical imposture, a Popish Sunday school” (173). The slaves, he said, Lorette: Anti-Catholicism and Religious Freedom in Antebellum America 107 were taught to be good slaves, just as Catholic education taught children to be good “Popish” subjects, through a manipulative rendering of the Word and a denial of access to the real thing. The significance of such views for Bourne’s Biblical anti-Catholicism is made more fully intelligible by another comment from his first important antislavery work, “The Book and Slavery Irreconcilable”. “Revealed religion,” he wrote, “is predicated upon the natural equality, the individual responsibility, and the reciprocal duties of the human family, and the paramount claims of the most high God to the services, and the obedience of all his creatures“ (166). In many ways, Lorette is a gloss on these ideas, tailored to fit the specific needs of Bourne’s anti-Catholic case. Like the Bible, and underlying Bourne’s Biblicism, religious individualism and responsibility represent recurring themes in Lorette. So, too, do reciprocity and concern for an egalitarian religious community. Lorette shows, in its contrasts, the main contours of Bourne’s thinking on these issues. In demanding priestly authority, celebrating hierarchical infallibility, and, especially, in standing between the believer and God, the Church, as portrayed by Bourne, is exactly what an evangelical faith is not. At one point, Louise learns that, to Therese, sin is simply equated with offending the Church and its leaders, something quite distant from Louise’s own understanding of sin as disobedience to God. Louise, in response, tries to teach Therese that conscience, not submission to authority, is crucial to that “individual responsibility” upon which “revealed religion” is predicated. So, too, are reciprocity and equality, both of which Bourne represents as repeatedly violated in Catholic faith and practice. His emphasis on deception and manipulation as endemic to the Church is part of the story. “Reciprocal duties” demand honest dealings on both sides. Priests who, like all seducers, take advantage of those who offer respect and obedience, exemplify the failings of a church that, for Bourne, does not meet the evangelical standard. But hierarchy and the demand for submission, central to his portrayal of the Church, in themselves contradict the faith Bourne presents as ideal. The language of “family” is far from trivial here. The convent system, like slavery, is presented as the antithesis of family ties and family feeling. In an era that was increasingly celebrating domesticity and affection and even using the family unit as a rhetorical model for everything from the religious to the national community, Bourne’s presentation of a system in which affection and mutuality were systematically violated created links between social and religious ideals similar to - even drawing on - those related to gender. And, again, Bourne was not alone in creating such links. Sarah Hale, in “The Catholic Convert,” did so, too. One of the most important contributors to the development of antebellum ideals of domesticity, Hale had one of 108 D ICKSON D. B RUCE , J R . her characters reflect on the techniques of convent education by describing it as a system of force, urging, by contrast, that “to make men wiser, happier, and better, we must cultivate the benevolent and social affections. This can only be done by kindness and persuasion” (92). Here was an imperative that underlay much of Bourne’s writing in Lorette, embodied fully in Louise’s nurturing approach to her mother’s ultimate conversion and salvation. Though eschewing nativism, Bourne’s Lorette captured and dramatically summarized much of the anti-Catholic thought of the age, especially insofar as religious concerns were at issue - and Bourne’s novel helps to stress the extent to which they were. In addition to shared indictments of Catholicism’s purported denial of the Bible to all believers, everyone focused on what they saw as the Church’s hierarchy and authoritarianism and, as they saw it, its dismissal of individual rights of conscience in favor of priestly dictation and external theatrics. Even such radical nativists as Beecher and Samuel F.B. Morse, raising dire specters of foreign conspiracy and Catholic domination, drew on these ideas to portray the Catholic threat. But how are we to understand this thinking and its place in American ideas about religious freedom? To approach this question, it is necessary to place Lorette within a larger political and religious framework, one that helps to define further the issues on which Bourne’s anti-Catholicism appears to have been based. America was moving in a number of key, and interrelated directions during the period in which Bourne wrote his novel. In religion, an Arminian theology, with its stress on individual choice and freedom of the will, was coming to supplant the older Calvinist orthodoxy, undermining theological traditions of human depravity and predestination. A growing market economy, stressing individual responsibility as well as voluntarism and reciprocity in contractual obligations was coming to pervade every aspect of American life (Sellers). All found obvious echoes in Bourne’s religious ideals. Most significantly for issues of religious freedom, however, the 1830s represented an era of rapid political change that also related closely to Bourne’s concerns. It was a “democratizing” world, at least so far as white males were concerned (and, ideologically, for others, too, democratic ideals serving as a foundation for both emerging abolitionist and women’s rights movements). The years during which Lorette and other early anti-Catholic works appeared marked a highpoint in this process of democratization, signaled for many by the political triumph of Andrew Jackson, elected to the presidency in 1828 and reelected in 1832. His was, famously, the platform of the “common man” against “aristocratic” institutions, and it suffused politics throughout the era, celebrating equality, majoritarianism, and “common sense.” Jacksonian ideology was particularly dismissive of the kind of Lorette: Anti-Catholicism and Religious Freedom in Antebellum America 109 monopoly on authority Bourne’s priests repeatedly claimed. Bourne’s fellow anti-Catholic William Nevins - also writing in the early 1830s and turning yet again to the Bible question - put the issue in a way that also helps to highlight the democratic impulses behind Lorette: “If it be so hard to understand what God says, how was the divine Savior able to make himself understood by the common people who heard him? ” (14). Synthesizing Protestant tradition with Jacksonian predilections, Nevins and others were certain that common sense made Scripture accessible to anyone who had the “inquiring mind” to seek its truth. But, as historian Nathan Hatch has shown, political democratization was matched by a “democratization of American Christianity” during this period, and this process, too, had many dimensions. Giving greater power and influence to the laity over the clergy, even in doctrinal matters, it was a process that increasingly framed those perquisites of “revealed religion” Bourne cited in the language of popular democracy (9-10). Even Catholicism was touched by this trend. The American Church had been rocked by the development of the “trustee system” during the 1820s, a system that gave great autonomy to local congregations, including the right to appoint or to dismiss priests (Dolan 166-67). Denunciation of trusteeism by Pius VII in 1822 and the 1829 endorsement of the Pope’s actions by the First Provincial Council of American Bishops were widely viewed as confirming the Church’s “antidemocratic” character, and probably served as one stimulus to outbursts of anti-Catholicism over the next several years (Stokes and Pfeffer 217-18; Billington 38-39). It is in terms of such issues that one may begin to look more closely at the implications of such a work as Lorette for thinking about religious freedom and civil liberties in antebellum America. In this era of democratizing Christianity, religious ferment was also an important fact of life, providing a context not only for Lorette but also for an array of efforts to come to grips with the complexities of American religious circumstances. The religious ferment of the antebellum era had many sources, took many forms, and went well beyond the divisions between Protestants and Catholics that began to peak in the 1830s. Questions of religious freedom were themselves important, called to the fore, for example, by such events as the bitter and protracted debates over disestablishment it Massachusetts in 1833, the year of Lorette’s publication (Stokes and Pfeffer 77-78) or, only a short time before, by controversy over the Sunday mail question in 1829. This controversy grew out of a series of petitions to Congress from religious groups urging that post offices be closed on Sunday in observation of the Sabbath. In a widely circulated response, Kentucky Senator Richard Johnson, a staunch Jacksonian, opposed the petitioners’ demands as a potentially serious violation of American religious freedom. He refused 110 D ICKSON D. B RUCE , J R . to grant Congress the right to “a controlling power over the consciences of others,” which he believed any Sunday legislation would entail (275). Alluding to religious persecutions of past times - including the Inquisition - he condemned, especially, assaults on rights of conscience “under the pretext of holiness” (277). Here was a rhetoric that clearly anticipated Bourne’s, even if the issue was, on the surface, different. One of Johnson’s supporters, the radical Fanny Wright, looked still more directly toward Bourne when she referred to efforts to curtail Sunday mails as betraying “the whole soul of priestcraft” (in Stokes and Pfeffer 255). The emergence of anti-Catholicism also cohered with the growth of a movement that was, in its way, almost as potent, if its significance was shorter-lived. This was the movement against Freemasonry, which also achieved great strength during the late 1820s and early 1830s. Creating a literature of its own, and evoking some of the same fears of hierarchy, conspiracy, and even ritualism, anti-Masonry also linked the order to Catholicism - despite official papal opposition to it going back to the mid-eighteenth century (Davis 146-47; Stokes and Pfeffer 256). Lumping, as did one editorialist, “Masonry, Roman Catholic Faith, Monks, and the Inquisition” (in Bennett 49-50) as a united front against religious liberty, anti-Masonry achieved some political success in the early 1830s, even as the movement contributed to the larger pattern of anxiety about the health of religious freedom. But no less critical issues, and more general ones, were essentially definitional. Most serious was the explosion of denominationalism that had come to characterize religious life since the early years of the American republic. In this emerging denominational system, even relatively minor religious differences were inflated into matters of Christian integrity and purity of doctrine, serving as bases for conflict both within and between religious organizations, serving as bases for the formation of new religious bodies. The result was a religious environment marked by schism and competition, as different groups vied for popular support. There is no question that many people found religious diversity troubling. As the scholar Candy Gunther Brown has shown, the explosion of denominations was accompanied by an explosion in evangelical print culture - devotional literature, fiction, and other forms - intended to create a textual community that overcame denominational lines while defining the core of an evangelical identity (11-12, 18; see also Bennett 10-11). Brown omits anti-Catholic works from her study, but a novel such as Bourne’s certainly fits her model. In its stress on Scripture over doctrine it proffers a foundation for Christian belief that lies below the surface of denominational divisions. In those lengthy expositional sections where Louise seeks to acquaint Therese with the beauty and necessity of “evangelical repentance,” it adheres closely to the core evangelical tradition Brown has defined. Lorette: Anti-Catholicism and Religious Freedom in Antebellum America 111 Still, despite such efforts toward a common evangelical identity, rivalries and divisions remained and, in some places, led to fierce disputations and confrontations along doctrinal and denominational lines. Even within mainstream Protestantism, a residual Calvinism still tended to create powerful tensions within what had become a largely Arminian consensus (Conkin 250), and David Reynolds has documented a body of anti-Calvinist polemical fiction that actually shared motifs with the roughly contemporary but larger body of anti-Catholic works (175-76). Catholicism, as even its critics understood, occupied a special place in the complex interplay of similarity and difference created by antebellum religious diversity. Most obvious, of course, was the fact that it was both Christian and something other than Christian from the anti-Catholic point of view (Griffin 9-10). Sharing a common vocabulary and similar basic beliefs, Catholicism’s fundamentals could not be easily divorced from a largely Christian framework; hence, to many anti-Catholics, its power to deceive, in an environment where definitions of “true” Christian faith were already unclear and contested. This concern would have been especially meaningful to such an individual as Bourne, who had been involved in conflicts over what was truly “Christian” since the earliest days of his ministerial career. Having vociferously asserted the “unchristian” character of slaveholding religion for well over a decade, he could only have been powerfully affected by the substantial growth of a Catholicism that, from his perspective, appeared to share in some of the same “anti-Scriptural” and authoritarian features. One of the most common disclaimers on the part of anti-Catholic writers was the assertion that, to quote Lyman Beecher, they had no intention “that the civil and religious rights of the Catholics should be abridged or violated” (61). Their concern was, they said, focused on Catholic expansion at the expense of, as they saw it, Protestant rights. The disclaimer was, of course, disingenuous. Beecher was as hostile to what he defined as Catholicism’s authoritarian, “unscriptural” principles as anyone. But the disclaimer was also impossible - at least within the antebellum American context - and for reasons Lorette helps make clear. In Bourne’s novel, “Christianity” entailed more than a set of beliefs and practices. Instead, as Louise ultimately proves to Therese - and as she herself had learned from Marguerite - it was a way of believing, even, as Kwame Anthony Appiah has said of religion generally, an “alternative epistemology” (86-87) compared to its Catholic rival. And it was, as well, an epistemology to be thought about. Even as religious diversity forced people to look for a core of evangelical belief, even as the Catholic “threat” forced them to think about the meaning of Christianity as such, this was an era of mounting secularism. As Mark Hanley 112 D ICKSON D. B RUCE , J R . and others have shown, many Americans believed a religious perspective - a religious “epistemology” - to be under fire as science and commerce conspired to take the divine out of everyday life (7, 27). Bourne and his compatriots dramatized an approach to the world in which everything was to be pervaded by an individual experience of divine power and divine will. Their portrayals of Catholicism, emphasizing the role of ritual drama and the externals of faith, gave to the Church a kind of materialism of its own, and served as a powerful means for defining precisely what Christianity should be by placing a fairly well demarcated “spirituality” at the center of the religious life. And, again, Bourne and others went beyond simple matters of doctrine, or even structure, to portray a religious “way” that should represent the true Christian, religious experience. As their works show, Bourne and his colleagues had a real need to find an identity for themselves in the turbulent religious world of antebellum America, and it is not surprising that they should have reached for and found a “common enemy” that could serve as both a foil for defining “true” as opposed to “false” religion while creating a basis for unity among what they feared were otherwise too disparate groups. People have done this, seemingly, forever. But the distinct character of antebellum religion gave the effort a specific shape. For one thing, American Protestants were almost duty-bound to accept religious diversity, and of a fairly high order. Not only was denominationalism institutionalized, but, in its American incarnation at least, religious individualism suggested a right of, even an obligation to spiritual self-determination that clearly implied the acceptability of differences of religious opinion. And here, a deeper tension arose, because such an acceptance of diversity was at odds with the truth-claims at the heart of any religious system, including Bourne’s. In The Protestant, for example, he characterized the “distinguishing Protestant doctrines” as representing, “the only true interpretation” of the Bible (1: 38). Predicated on the possession of some kind of ultimate truth about the world, about the course of events, about the nature of human existence, religion raises difficult questions for its adherents, especially in a pluralistic religious setting. How much diversity, for example, can any religion tolerate before its claims to truth are compromised? How will it define those perspectives that move beyond the pale? How will it incorporate diverse “truths” into a single social order? Such questions would have been particularly pressing for people in antebellum America, where many, including the leading anti-Catholics, believed that freedom of religion did not, and should not mean discarding religious standards as bases for moral, social, and political judgments (Handy 37-38). As the influential nineteenth-century Unitarian William Ellery Channing argued, rejecting the imposition of a “national Christianity” did not Lorette: Anti-Catholicism and Religious Freedom in Antebellum America 113 mean rejecting the idea of America as a “Christian nation” (Hamburger 270). The tension such questions betray, the tension between truth and toleration, is complex and, perhaps, even impossible to resolve, especially when, as Appiah says, society is forced to deal with a variety of alternative and competing epistemologies, sacred and profane (86-87). Embracing the desirability of a Christian nation that was ideologically grounded in both community and autonomy, Bourne and his compatriots tried to find a resolution through a radical Biblicism and an experiential spirituality that appeared to allow lots of room for religious self-determination while doing so within what was understood to be a clear framework of revealed and historically-grounded truth. And they used what they represented as the dictatorial, externalized “way” of Catholicism to define more clearly what they meant. There are many ways of thinking about religious freedom. We have become accustomed to viewing it, as Philip Hamburger has pointed out, primarily in terms of the “separation of church and state,” a difficult idea and, as both Hamburger and Appiah have argued, an idea that creates problems of its own, evading rather than addressing the claims religion makes on its adherents and on society (Hamburger 486-89; Appiah 83). The work of Bourne and other anti-Catholics helps to emphasize this point. Declaring themselves to be intolerant only of intolerance, they nevertheless defined a religious freedom that set its own exclusionary boundaries based on what they understood to be ideals of free will and self-realization, ideals found in many areas of American life. In creating such a definition, Bourne and other anti-Catholics rendered inadequate if not irrelevant any effort to realize religious freedom by striving for neutrality in the face of competing religious and secular demands. At a time when, for better or for worse, issues of religious freedom are as pressing as they have ever been in American history, Bourne and his colleagues should help us to realize how complex those issues can be. 114 D ICKSON D. B RUCE , J R . Works Cited Abbott, John S.C. The Mother at Home; or, the Principles of Maternal Duty Familiarly Illustrated. New York: American Tract Society, 1833. Appiah, Kwame Anthony. The Ethics of Identity. Princeton: Princeton UP, 2005. Beecher, Lyman. A Plea for the West. 1835. New York: Arno, 1977. Bennett, David H. The Party of Fear: From Nativist Movements to the New Right in American History. Chapel Hill: U of North Carolina P, 1988. Billington, Ray Allen. The Protestant Crusade, 1800-1860: A Study in the Origins of American Nativism. 1938. Gloucester: Peter Smith, 1963. Bourne, George. “The Book and Slavery Irreconcilable.” 1816. In George Bourne and The Book and Slavery Irreconcilable. By John W. Christie and Dwight L. Dumond. Wilmington: Historical Society of Delaware, and Philadelphia: Presbyterian Historical Society, 1969. 103-206. —. Lorette: The History of Louise, Daughter of a Canadian Nun: Exhibiting the Interior of Female Convents. New York: Wm. A. Mercein, 1833. —. Picture of Slavery in the United States of America. 1834. Detroit: Negro History P, 1972. Brown, Candy Gunther. The Word in the World: Evangelical Writing, Publishing, and Reading in America, 1789-1880. Chapel Hill: U of North Carolina P, 2004. Christie, John W., and Dwight L. Dumond. George Bourne and The Book and Slavery Irreconcilable. Wilmington: Historical Society of Delaware, and Philadelphia: Presbyterian Historical Society, 1969. Conkin, Paul K. The Uneasy Center: Reformed Christianity in Antebellum America. Chapel Hill: U of North Carolina P, 1995. Davis, David Brion. From Homicide to Slavery: Studies in American Culture. New York: Oxford UP, 1986. Dolan, Jay P. The American Catholic Experience: A History from Colonial Times to the Present. Garden City: Doubleday, 1985. Franchot, Jenny. Roads to Rome: The Antebellum Protestant Encounter with Catholicism. Berkeley: U of California P, 1994. Griffin, Susan M. Anti-Catholicism and Nineteenth-Century Fiction. Cambridge, Eng: Cambridge UP, 2004. Hale, Sarah Joseph. Traits of American Life. Philadelphia: Carey and Hart, 1835. Halttunen, Karen. Confidence Men and Painted Women: A Study of Middle-Class Culture in America, 1830-1870. New Haven: Yale UP, 1982. Hamburger, Philip. Separation of Church and State. Cambridge: Harvard UP, 2002. Handy, Robert T. A Christian America: Protestant Hopes and Historical Realities. New York: Oxford UP, 1971. Hanley, Mark Y. Beyond a Christian Commonwealth: The Protestant Quarrel with the American Republic, 1830-1860. Chapel Hill: U of North Carolina P, 1994. Hatch, Nathan O. The Democratization of American Christianity. New Haven: Yale UP, 1989. Hughes, John, and John Breckinridge. A Discussion: Is the Roman Catholic Religion Inimical to Civil or Religious Liberty? Is the Presbyterian Religion Inimical to Civil or Religious Liberty? 1836. New York: Da Capo, 1970. Johnson, Richard M. “Sunday Observance and the Mail.” In Social Theories of Jacksonian Democracy: Representative Writings of the Period 1825-1850. Ed. Joseph L. Blau. 1954. Indianapolis: Hackett, 2003. 274-81. Lorette: Anti-Catholicism and Religious Freedom in Antebellum America 115 Mayer, Henry. All on Fire: William Lloyd Garrison and the Abolition of Slavery. New York: St. Martin’s, 1998. Monk, Maria. Awful Disclosures of the Hotel Dieu Nunnery of Montreal. Rev. ed., 1836. New York: Arno, 1977. Moore, R. Laurence. Religious Outsiders and the Making of Americans. New York: Oxford UP, 1986. Mott, Frank Luther. Golden Multitudes: The Story of Best Sellers in the United States. New York: Macmillan, 1947. Nevins, William. Thoughts on Popery. 1836. New York: Arno, 1977. Pagliarini, Marie Anne. “The Pure American Woman and the Wicked American Priest.” Religion and American Culture, 9 (1999), 97-128. The Protestant. 2 vols. New York: 1830-32. Reynolds, David S. Faith in Fiction: The Emergence of Religious Literature in America. Cambridge: Harvard UP, 1981. Sellers, Charles. The Market Revolution: Jacksonian America, 1815-1846. New York: Oxford UP, 1991. Stokes, Anson Phelps, and Leo Pfeffer. Church and State in the United States. New York: Harper, 1964. Whealon, J.F. “Bible, VII (Papal Teaching),” New Catholic Encyclopedia. 18 vols. New York: McGraw-Hill, 1967. 2: 513-18. Yacavone, Donald. “Bourne, George,” American National Biography. Ed. John A. Garraty and Mark C. Carnes. 24 vols. New York: Oxford UP, 1999. 3: 254-55. J OE L OCKARD Jacksonian Mobs, Free Speech, and the Rise of American Antislavery Poetry As a body, antislavery poetry in the antebellum United States presents a fascinating and largely unexplored intersection between emergent concepts of civil liberties, the impetus of political events, and their interpretation through poetic imagination. It is a body of poetry that numbers at least 10,000 individual poems by US authors appearing between 1810-1860, probably the largest group of topical poems published in the United States during the nineteenth century. Yet this is not poetry that has worn well with time. Save for a few specimens such as Julia Ward Howe’s now ubiquitous “John Brown’s Body” or John Greenleaf Whittier’s still-heavily anthologized “From Massachusetts to Virginia,” antislavery poetry remains ignored today by both the reading public and American literature critics. 1 Its tone, by turns sentimental and strident, alienates. Its imagery frequently derives from evangelical Christianity; religious antislavery poets often represent emancipation as spiritual ennoblement, rather than realization of a human right. Its characterization of blacks often indulged racial patronization. Inasmuch as then-contemporary political topics animated much US antislavery poetry, a need for detailed historical knowledge represents an obstacle for many present-day readers. There are still other obstacles relating to readership, first among them being author obscurity. Aside from a few figures such as Longfellow and more recently Frances E.W. Harper, nearly all antislavery poets are obscure at best, and more frequently anonymous. Given social strictures against women publishing under their own names, or the consequences of expressing ‘radical’ opinions opposed to slavery, a possible majority of antislavery poets employed pseudonyms or initials. Finally, since modernist criticism dismissed nearly the entire body of nineteenth-century American poetry, save Whitman and Dickinson, antislavery poetry was just more slag on the literary heap. Modernist criticism, to the negligible extent that US antislavery poetry even gained mention, regarded it as an amalgam of sentimental moralizing and atrocious verse-writing. 1 In terms of critical literature, I refer here only to the dearth of treatments of US antislavery poetry. British antislavery poetry, by contrast, has received extensive critical discussion. 118 J OE L OCKARD Antislavery poetry, like other sub-genres, has an aesthetic that requires knowledge of its traditions and a developed taste. James Basker observes acutely of antislavery poetry that “[W]hatever the unevenness in aesthetic value, because poetry fills the interstices of our culture, from public spaces to private corners, in moments of high ceremony and in the spontaneous effusions of popular culture, this material maps the emergence of a collective awareness, the gradual appropriation of a subject charged with aesthetic and moral power, and the spread of that awareness through the collective imagination of the Enlightenment.” 2 Not only does it map such a collective social awareness, but its out-of-hand rejection frames a desire to remain unaware on the part of those who prefer to overlook the massive intersection of slavery with American literature. Pejorative characterization of an extensive body of literature on the basis of minimal sampling, particularly as the great bulk of antislavery poetry remains uncollected and inaccessible to general readers, reveals rejection based more on critical prejudice than informed engagement. The Enlightenment-born ‘awareness’ that Basker identifies lies in a consciousness of human rights as a necessary and legitimate subject of imaginative literature, and of poetry as one means among many contributing towards expansion of those rights. As part of antislavery literature, this poetry is part of the first body of literary production in the United States where black and white writers published together in common cause: it represents the origins of US multicultural literature. While much antislavery literature represented whites discussing race slavery with other whites, it also embodied a cultural intermingling of black and white writers and inter-racial discourse in ways that had not previously prevailed in American literary production. 3 The ‘racial aesthetic’ introduced by antislavery poetry incorporated issues and metaphors relating to individual, racial, and national conscience and self-cognizance; antagonistic social relations between whites and blacks, or whites and whites; heroicization of the antislavery struggle and its participants; and a struggle for means to express potentially radical implications within abolitionist thought. 2 Basker [ed.], Amazing Grace: An Anthology of Poems about Slavery, 1660-1810 (New Haven, CT: Yale University Press, 2002) xxxiii-xxxiv. 3 The degree to which US antislavery poetry incorporated multicultural participation is an open research question since a probable majority of antislavery poets were anonymous and remain unidentified. Given that there is no current evidence upon which to establish identities for these poets, there is no basis to sustain any hypothesis about the racial or gender identities of these hundreds or thousands of anonymous writers. It is a reasonable observation, however, that antebellum black poets had even more social risk considerations than whites that might cause them to conceal their authorial identity. Jacksonian Mobs, Free Speech, and the Rise of American Antislavery Poetry 119 This public poetry movement manifests an unanswered and troublesome historical question, one that is especially relevant to the history of civil liberties in the United States. Why did antislavery poetry rise to its first prominence in the United States only during the Jackson era? A wide variety of British reform writers had been publishing significant amounts of antislavery poetry since at least the 1770s, and their attention to the issue of slavery increased with the development of the Romantic movement. Discussion of the relationship between slavery and the Romantic imagination has been extended recently by Moira Ferguson, 4 Debbie Lee, 5 and others, 6 but this is a discussion that lies beyond present purview. It suffices for instant purposes to note that US antislavery poetry lagged substantially behind British antislavery poetry. The reasons for this lag may lie either in the earlier development of the abolitionist movement in Great Britain, or in the preponderant influence of radical Protestantism in early American antislavery poetry as contrasted with the more secular adoption of liberational themes in British Romantic poetry. Irrespective of the question of why such poetry did not develop earlier, on the North American continent antislavery poems remained isolated and rare productions in the latter eighteenth century. Phyllis Wheatley published various antislavery poems during the late 1760s and 1770s; obscure religious poets such as Jane Dunlap voiced early Methodist antislavery sentiments; early Federalist poets such as Philip Freneau, Joel Barlow, Timothy Dwight, and David Humphreys included in their work passages opposing slavery; and Quaker poet Joseph Samson published his long poem A Poetical Epistle to the Enslaved Africans in 1790. 7 A well-known poet like Sarah Wentworth Apthorp Morton published ‘The African Chief’ in 1792, 8 a poem that was to become much cited among abolitionists for its portrayal of African nobility in the face of slavery, but which was the only antislavery poem in a volume of nearly 300 pages. A few other late eighteenth-century writers published occasional anonymous antislavery poems in newspapers and journals. More Federalist-era antislavery poetry trickled into publica- 4 Ferguson, Subject to Others: British Women Writers and Colonial Slavery, 1670-1834 (New York and London: Routledge, 1992). 5 Lee, Slavery and the Romantic Imagination (Philadelphia: University of Pennsylvania Press, 2002). 6 Carey, Brycchan; Markman Ellis; and Sara Salih [eds.], Discourses of Slavery and Abolition: Britain and its Colonies, 1760-1838 (Basingstroke: Palgrave Macmillan, 2004). 7 Samson, A Poetical Epistle to the Enslaved Africans, in the Character of an Ancient Negro, Born a Slave in Pennsylvania, but liberated some Years since, and instructed in useful Learning, and the great Truths of Christianity (Philadelphia, 1790). 8 Sara Wentworth Morton, My Mind and its Thoughts, in Sketches, Fragments, and Essays (Boston: Wells and Lilly, 1823) 201-203. 120 J OE L OCKARD tion early in the nineteenth century. Richard Dinmore’s Select and Fugitive Poetry, an anthology published in 1802, 9 contains several antislavery poems whose inclusion reflects the radical politics of its journalist-anthologist. 10 Joshua Marsden, under lifelong influence from a conversion to Methodism at age twenty, included antislavery poetry in his Leisure Hours collection published in 1812. 11 This antislavery poetry remained the exception. It awaited establishment of abolitionist journals until a coherence within this body of US literary production could achieve visibility. When it did become more visible, antislavery verse arrived as public poetry published mainly in newspapers and periodicals rather than in books. These columns were the first substantive concentration of antislavery poetry. Benjamin Lundy’s monthly antislavery newspaper The Genius of Universal Emancipation (1826-1839), bravely published in pro-slavery Baltimore, provided the first regular column for antislavery poetry. Although it featured the work of Elizabeth Margaret Chandler, Lydia Sigourney, and others, the column’s contents were limited by comparison to later abolitionist journals. 12 The Genius of Universal Emancipation editorialized specifically on the role of women and women’s poetry in promoting public discussion of slavery. “We would recommend the female advocates of Emancipation,” stated the preface to one poetry column, … as one means by which they may much advance the cause for which they are interested, occasionally to devote a few hours during the long evenings of the present season, to composing, or transcribing from authors who have written on the subject of slavery such extracts as may appear to them calculated to produce a good effect, and to send them for insertion to some newspaper or periodical, not expressly devoted to that subject; as by this means they might be read by persons, who would have in no other way their attention, or memory, awakened to the oppression of their brethren and sisters. 13 This writing community of women called into action against slavery was already at this date providing the majority of antislavery poems, and poetry 9 Dinmore, Select and Fugitive Poetry - A Compilation: with Notes Biographical and Historical (Washington: Franklin Press, 1802). 10 Dinmore [ed.], Select and Fugitive Poetry. A Compilation (Washington: 1802). 11 Marsden, Leisure Hours (New York: 1812). 12 For example, excluding textual citation of verse fragments, Universal Genius of Emancipation published 20 poems in 1833, 11 in 1834, 3 in 1835-6, 26 in 1837, and 11 in 1838. During this same period Garrison’s The Emancipator published 3-4 poems weekly, evidencing a political dynamism that attracted more submissions and an editorial policy that placed much more emphasis on poetry. 13 Unsigned, “The Long Evening,” The Genius of Universal Emancipation, vol. 2, no. 9, 3 rd series, February 1832, 149. Jacksonian Mobs, Free Speech, and the Rise of American Antislavery Poetry 121 contributions had become a means of political participation by reform-oriented women who were otherwise denied a forum. Only with inauguration of Garrison’s The Liberator in 1831 and publication of Whittier’s Poems Against Slavery in 1836, it being the first US antislavery poetry volume to receive significant national attention, did antislavery poetry begin to appear in a regular newspaper feature and in widelysold book form. During the 1840s the generic expansion of antislavery poetry continued with publication of anthologies such as Jairus Lincoln’s Anti-Slavery Melodies: For the Friends of Freedom (1843), 14 George Washington Clark’s heavily-reprinted The Liberty Minstrel (1844), 15 and William Wells Brown’s The Anti-Slavery Harp (1848). 16 The following decade of the 1850s witnessed a massive expansion of antislavery poetry, including popular verse responding to slavery-related political crises and long poems. Slave narratives often included fragments or whole poems; 17 controversial literature and public speakers frequently cited well-known antislavery verses. By the 1850s antislavery verse had become a well-established part of the American cultural scene. The question here, however, is how did antislavery poetry begin its emergence as a noticeable body of public poetry during the decade of the 1830s? There are several reasons. First, at the structural and organizational level, antislavery poetry rose together with an energized antislavery movement in the United States. There were new publishing opportunities available as the Garrisonian abolitionist movement, local antislavery organizations, and antislavery religious groups consolidated themselves and were able to find subscribers or financial means to print journals, annuals, tract series, and occasional productions. Contemporary readers need to be reminded of the eventual dimensions of this publishing development. Literally millions of antislavery tracts were printed and distributed. In a crude instrumental sense, the increasing organizational coherence of the antislavery movement throughout the 1830s both created a demand for political expression and provided the means for its fulfillment and distribution. Additionally, during this decade, antislavery 14 Lincoln [ed.], Anti-Slavery Melodies: For the Friends of Freedom (Hingham, MA: Elijah B. Gill, 1843). 15 Clark, The Liberty Minstrel (New York: Published by author, 1844). This anthology was reprinted in six editions within its first two years. In 1848 Clark also published The Free Soil Minstrel (New York: Martyn & Ely), a 228-page volume of antislavery and Free-Soil Party songs. 16 Brown [ed.], The Anti-Slavery Harp: A Collection of Songs (Boston: Bela Marsh, 1848). 17 Fugitive ex-slave William Green, for example, concludes his narrative with a 10-stanza “Anti-Slavery Song’ that summarizes the social conclusions of his story. Narrative of Events in the Life of William Green, (Formerly a Slave) Written by Himself (Springfield, MA: L.M. Guernsey, 1853) 22-23. 122 J OE L OCKARD poetry increasingly appears outside reform journals; prompted by controversy, daily or weekly newspapers exhibited a new interest in printing or reprinting occasional verse on the subject of slavery. Second, at the level of political environment to which this public poetry responded, it provided a rhetorical outlet for passionate demonization of slave-holding society. It sought to create or solidify among reform-minded white readers intense political and religious antipathies towards slavery. The 1830s in the United States were a period of contradiction for antislavery politics, since on one hand there was clear demonstration of an advance towards general emancipation with the end of slavery in Great Britain’s Caribbean colonies, with presentation of the ‘Report on the Extinction of Slavery’ to the House of Commons in 1832, 18 passage of the Slavery Abolition Act of 1833, and the official end of slavery in British territories in 1838. Counterpoised against what appeared a march towards human progress in the Caribbean during this decade, however, were the expansion and consolidation of slavery in the South; the clearances of native tribes in Georgia, Alabama and Mississippi, to open land for slave-based agriculture; and the emergence of the Republic of Texas in 1836 as a new slave power. In the United States, human progress seemed perversely frustrated; if the antislavery movement was growing rapidly, slavery appeared to be expanding even more quickly. Antislavery ‘ultras’ represented a small minority discourse during the 1830s and the frustration of a minority evidences itself frequently in poetic expressions. This is a poetic canon whose imagery frequently describes slave-owning society and its advocates as demonic classes, slaves as their martyred prey, and the Southern states as a diorama of cruel, degraded and morally polluted scenes. The work of public poetry here lies in creating what Trotsky, writing of pre-revolutionary literature, called its role of generating “a spirit of social hatred.” 19 Yet this was not a pre-revolutionary poetry, unless evangelical eschatology is treated as a revolution. Most frequently hatred and demonization emerges in a religious language of sin and coming divine retribution, a language that re-cast the experience of African peoples under slavery as prefiguring the punishing enactment of divine justice. Third, in respect to generic politics and readership, US antislavery poetry arose as an event-driven sub-genre that formulated participatory citizenship as topical verse. Whereas early British antislavery poetry emerged from 18 House of Commons, Report from Select Committee on the Extinction of Slavery Throughout the British Dominion with Minutes of Evidence, Appendix and Index (London, 1832). 19 Leon Trotsky [William Keach, ed.], Literature and Revolution (Chicago: Haymarket Books, 2005) 188. Originally published 1925, International Publishers, New York. Jacksonian Mobs, Free Speech, and the Rise of American Antislavery Poetry 123 evangelical “moral cause” verse and Romantic political identification with oppressed subjects, beginning most notably in the 1830s American antislavery poetry employed these received British aesthetic formulae within the social impetus provided by US political events. Poetry columns and occasional poetry appearing in antislavery serials provided significant and crystallizing reaction to major political debates on slavery, and they dramatized incidents of civil conflict particularly from the Jackson administration forward. Public poetry became a leading means of defining social images of slave-owners and slaves, one that functioned especially effectively for antislavery reformers. It had noticeable effect in discomfiting consciences, if not in obtaining political conversions. New York City diarist William Templeton Strong, who strewed contemptuous references to blacks through his writing, read Longfellow’s poems on slavery in 1842, and was moved to write “It’s a puzzling subject, this same Abolitionism: there is but one question involved in it: Is slavery morally right or wrong? ” 20 Strong, then a 22 year-old law clerk, answered that question through equivocation and dismissal; his reaction no doubt paralleled that of many other Longfellow readers. Yet what public poetry against slavery accomplished was to bring such readers to the threshold of that moral question, even if they did not resolve it. While there is no doubt that most antislavery poetry during this stage of the abolitionist movement was preaching to the choir, it contributed towards the expansion of expressive paradigms that would find greater acceptance among later readers. Antebellum Mobs and the State of Exception The explanations above pertain to antislavery-movement publishing, aesthetic demands on poetry opposing slavery, and the readership of public poetry. In the secular US public sphere of the 1830s, central for our discussion of poetry and civil liberties, antislavery poetry functioned in response to the conflict between a newly militant abolitionist movement and violent reaction from pro-slavery, anti-black, or just anti-abolitionist mobs. When antislavery meetings stood to sing the then-popular movement anthem “I Am an Abolitionist,” sung to the tune of “Auld Lang’s Syne” with new verses provided by William Lloyd Garrison, they were expressing group solidarity through song. Indeed, many renditions of that song were likely inspired as a vocal response to a mob outside throwing stones and eggs at the building. Abolitionists emphasized that they stood as polite society 20 Strong, The Diary of William Templeton Strong, Allan Nevins and Milton Halsey Thomas [eds.] (New York: Macmillan, 1952) 1, 194-195. 124 J OE L OCKARD arrayed against the mob, a position from which they could condemn simultaneously slavery, lawlessness, and street roughs. Poetry and song served to emphasize an elevation above the political street. Among the varieties of Jacksonian street violence, Michael Feldberg observes, “During the 1830s, riots against abolitionists were numerically the most common form of collective violence.” 21 Anti-abolitionist riots were in various degrees, according to social context, manifestations of pro-slavery racism, pro-Union antagonism towards Garrisonian disunion, 22 class warfare, and bourgeois moral outrage over unacceptable radicalism. These mobbings during the 1830s notably included three days of anti-black and anti-abolitionist attacks in New York City in July 1834, leading to the burning of sixty buildings and six churches; 23 attacks on Prudence Crandall’s school in Canterbury, Connecticut, in September of the same year; serious anti-abolitionist riots in Utica, New York, in 1835; and the burning of Pennsylvania Hall in May 1838. John Greenleaf Whittier stood in disguise with salvaged papers beneath his coat as Pennsylvania Hall was burning and listened to shouts of “Hang Whittier! ”, 24 likely the last known occasion an American mob cared sufficiently to want to lynch a poet. Between 1834 and 1838, some forty-six major anti-abolitionist riots occurred, making this the commonest type of public mobbing during the middle of the decade. 25 At least thirteen presses and newspaper offices were destroyed by mobs, from Kentucky to New York State. 26 Hundreds more local disturbances against abolitionist speakers were recorded only in local newspapers and correspondence. The riots were so common that they took a central role in abolitionist consciousness and self-understanding as guardians of the frontiers of liberty. As Wendell Phillips phrased this consciousness, “We had heard, at a time of profound peace, in the midst of our most crowded cities, the voice of the multitude once and again overwhelm the voice of the laws, almost without the shadow of an attempt at resistance 21 Feldberg, The Turbulent Era: Riot and Disorder in Jacksonian America (New York: Oxford University Press, 1980) 43. 22 J.T. Headley’s accounts of the anti-abolitionist riots, while antagonistic towards abolitionists, emphasize the role of nationalist sentiments. See Headley, Pen and Pencil Sketches of the Great Riots (New York: E.B. Treat, 1882) 79-83ff. 23 Paul A. Gilje, The Road to Mobocracy (Chapel Hill, NC: University of North Carolina Press, 1987) 162-170. 24 John Pickard [ed.], The Letters of John Greenleaf Whittier (Cambridge: Belknap Press, 1975) 1, 278. 25 David Grimsted, American Mobbing, 1828-1861 (New York: Oxford University Press, 1998) 35. 26 Ibid. Jacksonian Mobs, Free Speech, and the Rise of American Antislavery Poetry 125 on the part of the civil magistrate.” 27 The rights of petition and free speech, integral to white male cultural self-comprehension in the United States, were under attack to quiet a dissident political minority. There were few deaths in these confrontations, however, in large part because most of the anti-abolitionist riots followed a predictable course with set roles, which historian Paul Gilje describes as follows: “Rioters outside a meeting hall shouted charivari-like, screamed, and blew horns and tin trumpets. Borrowing tactics from theater disturbances, the rioters pelted rotten eggs and rocks at the abolitionists, who relished acting as martyrs, and stood bowed but unshaken under this bombardment.” 28 Many of these smaller anti-abolitionist riots were like those the followed the antislavery agents James A. Thome and John W. Alvord, as they lectured in small towns and churches of rural Ohio during 1836. Alvord provided a representative description of one such a church meeting in Middlebury, Ohio: A goodly number soon gathered in, and Bro. Thome proceeded to lecture. All [was] still until about 8 [o’clock] when in came a broadside of Eggs. Glass, Egg shells, whites and yolks flew on every side. Br. Thome’s Fact Book received an egg just in its bowels and I doubt whether one in the House escaped a spattering. 29 There were regular injuries, as when Theodore Weld was hit in the head by a stone while lecturing in Circleville, Ohio, in March 1835. 30 Weld continued lecturing for days despite bouts of dizziness. Mob violence targeted individual abolitionists as well as attacks on meetings. In New York City during the 1834 riots, for example, a mob attacked the house, broke the furniture, and destroyed the possessions of antislavery figure Lewis Tappan. 31 The following year, on October 21 William Lloyd Garrison famously became the target of a mob that broke into a meeting of the Boston Female Anti-Slavery Society. 32 Within a day of his bare escape from the mob, an anonymous sonneteer, possibly a woman admirer, wrote: 27 Phillips, Speeches, Lectures, and Letters, 2 nd series (Boston: Lee and Shepard Publishers, 1891) 2. 28 Paul Gilje, Rioting in America (Bloomington, IN: Indiana University Press, 1996) 81. 29 Alvord to Theodore Weld, 9 February 1836, in Gilbert H. Barnes and Dwight L. Dumond [eds.], Letters of Theodore Dwight Weld, Angelina Grimké Weld, and Sarah Grimké, 1822-1844 (Gloucester, MA: Peter Smith, 1965) 260. 30 Weld to Elizur Wright, 2 March 1835, ibid 206-207. 31 Tappan to Weld, 10 July 1834, ibid 153-155. 32 Wendell Phillips Garrison and Francis Jackson Garrison, William Lloyd Garrison, 1805-1879, The Story of his Life Told by his Children, vol. 2 (New York: The Century Co., 1885) 4ff. 126 J OE L OCKARD … but yesterday, I saw thee go Surrounded by that fierce, insensate throng, Drunk with the wine of wrath, for evil strong, I felt my soul with bitterest fears overflow. O! with what earnestness of passion went, Forth from my heart, my whole soul after thee! (lines 6-10) 33 The poet’s professed admiration - “… a strange feeling, half of joy arose, / That friend of mine should have such men his foes” (lines 11-12) - was widespread. Demonstrated ability to face the mob without retreating contributed to an abolitionist speaker’s reputation for fearless perseverance. For the Garrisonian antislavery movement, whether in collective or individual confrontations with a mob, these were the occasions of a moral drama between the righteous forces of freedom and the anti-democratic tyranny of the streets. Rather than intimidate, such mobbings only served to confirm for abolitionists that their arguments were unanswerable. Furthermore, for those evangelical abolitionists who believed in non-resistance as an expression of Christian faith, a mob was an occasion to exhibit their principles in public. Political repugnance against anti-abolitionist riots began to take hold. Exemplifying that growing repugnance, a young Abraham Lincoln deplored the pervasive spread of mob actions as an interference with the public’s attachment to its government and stated “There is no grievance that is a fit object of redress by mob law.” 34 This type of riot faded from the national scene throughout the 1840s, a decade that saw more nativist riots than antiabolitionist disturbances. Occasionally it was Northern abolitionists who took direct action on the streets to free slaves, and they were sometimes cheered on by songs. One such poem by an anonymous author, titled “Rescue the Slave,” applauds Boston mob threats in 1843 to free by force the fugitive slave George Latimer. Such action, the poem argues, would constitute fulfillment of the American Revolution’s promise of freedom: Freemen, arouse ye, before it’s too late; Slavery is knocking, at every gate, Make good the promise, your early days gave, Boston boys! Boston boys! rescue the slave. 35 33 Anonymous, “To W.L. Garrison,” Garrison and Garrison, ibid 45. 34 Lincoln, “Address Before the Young Men’s Lyceum of Springfield, Illinois,” 27 January 1838, in Lincoln, Speeches and Writings, 1832-1858, Don E. Fehrenbacher [ed.] (New York: Modern Library of America, 1989) 33. 35 Anonymous, “Rescue the Slave! ” 28-29 in Brown, ibid. For a parodic antislavery poem addressing the Latimer case, see Daniel Mann (‘Mr. Latimer’s Brother’), The Virginia Philosopher, or, Few Lucky Slave-Catchers: A Poem (Boston: n.p., 1843). Jacksonian Mobs, Free Speech, and the Rise of American Antislavery Poetry 127 Thus, according to this author, if justice were unavailable from the law, then the same mob actions against British authorities that preceded the Revolutionary war would rise to the defense of a fugitive slave. In such verse, invocation of the mob comes round-about, with a right-spirited crowd rising to liberate a fugitive slave. For both antiand pro-slavery mobs, the law remained inadequate to challenges against a just social order, and thus exception - voiced as popular will - governed public response. What this mob history and its poetics emphasize is the pre-eminence of moral arguments for a state of exception, whether in defense of or opposition against slavery. Agamben argues that one of the essential characteristics of a state of exception lies in its provisional abolition of the distinction between legislative, executive, and judicial powers. 36 This is a particularly useful concept for discussion inasmuch as that collapse of distinction corresponds directly to the local mobocracy that arose - or was stirred - to govern many American cities, towns and villages during the Jacksonian era. The difference between a “state of exception” and “mobocracy” is that the first is textual, formal, and national, whereas the latter is oral, informal, and local. Both claim temporary and exceptional justification for their refusal to acknowledge normal rule of law. In the absence of any effective political desire to control anti-abolition mobs, a localized state of exception governed. However, this argumentative equation with mobocracy is not sufficient of itself, for there are two basic versions of a state of exception that appear in Jacksonian antislavery poetry. First, according to Garrisonian and immediatist antislavery thought, it was slave-owning society itself that constituted an exception to norms of both natural law and positive US constitutional law. Thus the imagery associated with slave-owning society employs terms of excoriation, characterizing the South as a land where “the blood of the slave smokes from thy ground,” 37 as “lands that are scathed with a curse,” 38 and home of “the Moloch of Slavery.” 39 As a society founded on the institution of slavery, its very existence constituted an exception to divine justice and embodied evil. Theology and civil demonization interweave in the formulation of these images; they provide the necessary conditions for exception. Protection of slavery negated the legitimacy of the legal systems in slave states, and many poems decried the law as much as slavery. 36 Giorgio Agamben, State of Exception (Chicago: University of Chicago Press, 2005) 7. 37 C.M.S., Untitled poem, The Liberator 6 (February 20, 1836) 8: 32, line 13 (“From the Ohio Atlas”). 38 X., “Fourth of July, 1836,” The Liberator 6 (September 10, 1836) 37: 148, line 22 (“From the Times and Independent Press”). 39 J.B.G., “The Bereaved Father,” The Liberator 8 (December 7, 1838) 49: 196, line 58. 128 J OE L OCKARD One such poem by an anonymous writer poured vitriolic scorn on “democrats” who defended slavery and the means by which such nominally republican politics hollowed out legal protections while claiming an historic mantle of American freedoms: And her pure, democratic sons, whose cry Is long and loud for holy liberty, Rifle the mail - destroy the press - apply The lighted torch to ‘Freedom’s hall’ - decry The man who pleads for right in Congress halls - Hunt and shoot down the man of God who calls On them to “let th’ oppressed go free” - cowhide The unoffending traveler - deride, Insult, and lynch the victims of their rage - Trample on law and equal rights - and wage Eternal war with all that’s good. 40 The writer argues here that a state of exception to legal order in both the South and North is systemic in slave societies that rely on violence to maintain themselves. An unresolved contradiction governs a public sphere where white citizens claim the benefit of historic liberties while employing anti-democratic means such as postal censorship, press breaking, arson and all variety of assault in order to suppress dissent. The mob that coalesces at signs of dissent against slavery, according to this poet, is a constant force that betrays realization of the nation’s original promise. In its contention against the law, the mob raises itself whenever citizens seek to realize the law’s purposes of fair and equal treatment. The second state of exception constituted by pro-slavery mobs was that of moral anarchy in rebellion against a divinely-mandated order of human freedom. The mob represents the spectre of an ungoverned state that stands in opposition to this righteousness. Sin is the exceptional state that will be rectified by divine intervention on behalf of the slave and to punish the unrighteous. The mob is a hellish clan that demands blood sacrifice and martyrs. As the creators and shapers of this disturbance against a just social order, a mob collectively collapses legislative, executive, and judicial capacities into a counter-force to the justice that abolitionists are attempting to introduce into US society. Antislavery poetry of martyrdom depicts heroic failure in resistance against the mob, together with a promise that efforts will continue until justice has been achieved and the mobocracy’s state of exception is relieved. As one poem phrases this challenge to the mob, 40 J.W.B., “To the God of the Oppressed,” The Liberator 8 (November 30, 1838) 192, lines 26-36. “Freedom’s hall” (line 30) refers to the burning of Pennsylvania Hall in Philadelphia in May 1838. Jacksonian Mobs, Free Speech, and the Rise of American Antislavery Poetry 129 … shall the ruffian mob, by slavites led, With rank and fashion marshaled at its head, Sweep the proud monuments of freedom down, Unchecked, unchallenged, and almost unknown? 41 The appropriation of American traditions of direct popular action and violence by local political elites, this poet argues, reversed their use in the defense of freedom and now directed it against largely middle-class reformers who sought to confront political reaction. The purpose of this appropriation lies in the maintenance of a racial hierarchy that the antislavery movement threatened. As historian Edward Countryman has argued concerning the transatlantic applicability of E.P. Thompson’s discussion of moral economies, there was a new racially-defined version of a moral economy arising in the early United States, one defined by the intersection of white supremacy with an ideology of community self-control. 42 Antiabolitionist mobs embodied, at core, racial and racist demands for local community control of the color line that defined race relations throughout the United States. For abolitionists, the oppositional force in this moral economy, the task lay in struggling with white popular sovereignty nearly as much as with the institution of slavery. The likely prospect of mobbing served as a source of unity within the abolitionist movement. As Whittier phrased this sentiment, “It would be pitiful policy to quarrel among ourselves, when the hoofs of the mob are on the threshold of our meetings.” 43 When Whittier described abolitionists as “brethren of a common tongue” (line 10) in his poem “The Moral Warfare”, 44 he implicitly defined the embattled antislavery voice as alienated from but determined to conquer popular sentiment. The “common tongue” that Whittier emphasized as necessary for moral victory was a minority discourse claiming divine approval, a discourse whose construction relied heavily on images of sacrifice, martyrdom, and sanctification. The opponent in this drama, the mob, became an image of false democracy, a raging monster, and a killer of heroes. One poem described this force: 41 Anonymous, Untitled poem, The Liberator 8 (May 4, 1838) 18: 72, lines 60-63 (“From ‘Slavery Rhymes’”). 42 Countryman, “Moral Economy, Political Economy, and the American Bourgeois Revolution,” 147-165, esp. 158-160, in Adrian Randall and Andrew Charlesworth [eds.], Moral Economy and Popular Protest: Crowds, Conflict and Authority (New York: St. Martin’s Press, 2000). 43 Whittier to Elizabeth Neall, 10 February 1839, The Letters of John Greenleaf Whittier, John Pickard [ed.] (Cambridge: Belknap Press, 1975) 1, 323. 44 Whittier, The Poetical Works (Boston: Houghton, Mifflin and Co., 1892) 57. 130 J OE L OCKARD Mobocracy, by nothing awed, In hellish fury stalks abroad, And hence do Abolitionists Encounter feathers, tar, and fists. Nought sacred in its jaundiced eye - Property burns, and martyrs die. 45 This was a poetry of battle joined, a demand for an end to the state of exception that enabled both mob rule and slavery. Alton’s Public Poetry As evidence for the preceding arguments, we shall turn here to a discussion of the poetry of martyrdom that appeared in The Liberator and other newspapers beginning early December 1837 after the murder of abolitionist newspaper publisher Elijah Lovejoy in Alton, Illinois. This was the first occasion where white sectors of the abolitionist movement addressed a white abolitionist’s death for the antislavery cause or encountered questions concerning the terms of racial privilege in antislavery work. While such abolitionist addresses may evidence an intrinsic social myopia, one that focused on a single white man’s death while leaving millions of black deaths without address, it is equally true that Lovejoy’s murder created what John Quincy Adams called “a shock as of an earthquake across the continent.” 46 The indisputable effect that a white minister’s death had testifies eloquently to the mass social blindness that prevailed due to racial hierarchy, one in which white abolitionists shared. The widespread idolization of Lovejoy crossed ideological boundaries too. Poetry mourning or celebrating Lovejoy appeared in The Liberator despite Garrison’s personal opposition to Lovejoy on grounds of his willingness to respond with violence in self-defense. Shortly after hearing the news of Lovejoy from Illinois in mid-November Garrison wrote to Hannah Fifield, an active abolitionist in Massachusetts, that “I am shocked and filled 45 Anonymous, ‘Extract from the Carrier’s Address of the Ohio Repository,” The Liberator 8 (January 26, 1838) 4: 16. A ‘Carrier’s Address’ was a popular poetic form throughout nineteenth-century US journalism. They appeared in newspaper supplements commonly printed at Christmas or New Years for the benefit of paper carriers, who used it to ask for holiday gratuities. These poems usually concerned topical politics and reflected a newspaper’s political position, so lengthy antislavery passages frequently appeared in such ‘Carrier’s Addresses’. This is an excerpt from such a poem. 46 Adams, ‘Introduction,’ at 12 in Joseph Lovejoy and Owen Lovejoy, Memoir of the Rev. Elijah P. Lovejoy; Who was Murdered in Defence of the Liberty of the Press, at Alton, Illinois, Nov. 7, 1837 (1838). Jacksonian Mobs, Free Speech, and the Rise of American Antislavery Poetry 131 with sorrow to learn, that he first took life before he lost his own, and that this reliance for victory in the darkest hour of the conflict was upon powder and ball.” 47 Nonetheless, despite a pacifism that was to gain organizational expression in the form of the Non-Resistance Society established in September 1838, Garrison found grounds to defend Lovejoy’s actions as more facts came to light. In correspondence with his close friend, the abolitionist and Unitarian minister Samuel May, Garrison argued that the deputization Lovejoy received before his death conferred civil authority upon him. Garrison described the death as a deadly consequence of a state of exception, one where Lovejoy and a well-ordered state fell together. Grasping at inadequately-stated facts, Garrison wrote, “He died, not as an abolitionist, but as one of the police of Alton, regularly enrolled by the Mayor, with others, to sustain the supremacy of law against anarchists and ruffians. When he fell, and the murderers triumphed, government fell.” 48 This distinction characterized Garrison’s comments on Lovejoy in The Liberator, 49 but he also recognized his view was a minority within the American Antislavery Society. Eventually he settled on the formulation that “Lovejoy was certainly a martyr, but, strictly speaking, he was not - at least in our opinion - a Christian [italics in original] martyr.” 50 This mantle of civil martyrdom Garrison wrapped about Lovejoy enabled him, as The Liberator’s editor, to publish without qualm a broad selection of Lovejoy commemorative poetry, both what contributors sent directly to his newspaper and what he reprinted from other journals. And poetry flowed. Lovejoy’s death in the midst of a direct confrontation with a pro-slavery mob animated angry antislavery imaginations. The Lovejoy poetry they produced employed evangelical imagery of social conflict and calls for the state to awaken to its imminent risk, such as were to become commonplace a generation later. But most crucially, the poetry frequently raised the Alton riot as an issue of conflict between “a merciless mob” and dissident citizenship demanding free expression. By elevating an individual abolitionist to martyrdom, public antislavery poetry advocated a concept of democratic citizenship based on individual expression and resistance to mob censorship. Public poetry provided a mode of both condemnation and heroic self-representation that appealed to white abolitionists drawn into antislavery activism despite, or sometimes because of, the social alienation, risks, and ostracism that such activity entailed. 47 Garrison to Hannah Fifield, 21 November 1837, Louis Ruchames [ed.], The Letters of William Lloyd Garrison, vol. 2 (Cambridge: Belknap Press, 1971) 328. 48 Garrison to Samuel J. May, 30 December 1837, in Ruchames [ed.], The Letters of William Lloyd Garrison, vol. 2, 331-332. 49 Liberator 7 (December 22, 1837) 52: 205. 50 Garrison and Garrison, 190. 132 J OE L OCKARD After Elijah Lovejoy’s murder on November 7, 1837, US antislavery poetry encounters its first truly native abolitionist hero, one whose life turned into journalistic hagiography. The summary facts of Lovejoy’s life and death are that he was born, raised and educated in Maine, where he graduated from Waterville College (now Colby College) as his class laureate in 1826. He worked briefly as a teacher, then departed westwards in 1827 to take up teaching once again in St. Louis. Lovejoy’s poetry suggests a personality on fire, a preoccupation with achieving personal knowledge of his divine blessing, and a foreboding that his life would be short. 51 In 1832 Lovejoy returned east to the Theological Seminary of Princeton for studies; he was ordained in 1833 as a Presbyterian minister. Quite the religious bigot, Lovejoy was determined to convert the entire world to his faith, particularly the heathen Papists of Europe. 52 Europe was spared, as he began his crusade by heading west again. By 1835 Lovejoy was a circuit riding minister in Missouri and the editor of The Observer, a St. Louis reform newspaper he endowed with twin hatreds of slavery and Catholicism. 53 When local opposition arose, Lovejoy wrote that “The fire that is now blazing and crackling through this city, was kindled on Popish altars, and has been assiduously blown by Jesuit breath.” 54 After being burned out of his offices by a St. Louis mob, Lovejoy moved on to Alton, Illinois, where a mob greeted the now well-known abolitionist crusader by burning his new press on the dock. Mobs burned Lovejoy’s premises twice more in 1837 before he died on November 7 of 51 See his poem “My Mother,” 34-37 in Joseph and Owen Lovejoy, Memoir of the Rev. Elijah P. Lovejoy; Who was Murdered in Defence of the Liberty of the Press, at Alton, Illinois, Nov. 7, 1837 (1838). 52 Ibid 81-88. 53 For discussion of the effects of Lovejoy’s fanning of anti-Catholicism in Saint Louis, see William Barnaby Faherty, “Nativism and Midwestern Education: The Experience of Saint Louis University, 1832-1856,” History of Education Quarterly 8 (Winter 1968) 4: 447-558, 551ff. 54 Ibid 149. This aspect of Lovejoy’s beliefs, the attribution of a Catholic conspiracy in support of slavery, has been either overlooked or downplayed by writers attracted to Lovejoy as a martyr in the cause of freedom. Former senator Paul Simon, himself a Lovejoy biographer, both recognized and dismissed this issue on brief consideration: “He was particularly intolerant of Catholics. It was not simply a matter of disagreeing on certain doctrines; he condemned anyone associated with the Catholic Church. It was characteristic of the age he lived in to express extreme opinions, and his were extreme.” Simon, Lovejoy: Martyr to Freedom (St. Louis, MO: Concordia Publishing House, 1964) 25, also 138. While Simon recognizes the humanity in such an error, like other Lovejoy writers he avoids exploring the intellectual link between anti-Catholic and antislavery discourses. For more on the same, see Jenny Franchot, Roads to Rome: The Antebellum Protestant Encounter with Catholicism (Berkeley, CA: University of California Press, 1994) 102-105. Jacksonian Mobs, Free Speech, and the Rise of American Antislavery Poetry 133 that year, shot by a mob that had gathered to destroy a fourth new press just arrived in a storehouse. The City of Alton prosecuted twelve of Lovejoy’s supporters and eight defendants alleged to have participated in the mob: all were found not guilty. Without any single defendant accountable for Lovejoy’s death, many abolitionists held responsible the City of Alton and its mobs. His brother Owen Lovejoy, who was to become a leading political abolitionist and a founding figure of the Republican Party, pointed an accusing finger at the city itself in his “Open Letter to the Citizens of Alton, Illinois.” Owen’s knowledge was based on personal residence in Alton during the events leading to the death of his brother. Alton, he wrote, had been overcome by forces of social darkness: A tumultuary, lawless, fanatic power, over-mastering or overawing the civil authority, enslaving public sentiment - paralyzing the public conscience - freezing with fear the sympathies of even the generous, the intelligent, and the good, and, with a few noble exceptions, making the mind of your whole city to hold its breath, and crouch in silence before it - ferocity victorious over right, brute force over free opinion - a gang of ruffians claiming to be regulators of free speech and the press, usurping the name of the people, and grasping in the same polluted clutch, the functions of accuser, judge, and executioner - ‘Making night hideous’ with their loathsome triumph … Such are the images that now start at the name of A LTON . 55 With rhetorical fires fueled by such damning phrases, Alton became synonymous with an American Sodom. Although no worse than many other US cities and better than a significant number of other cities in its treatment of abolitionists, not to mention black residents, 56 it was Alton that suffered long-lasting national stigma and became synonymous with intolerance of free speech. Scare headlines such as appeared in The Liberator - “F URTHER FROM A LTON - H ORRID S TATE OF S OCIETY - C HRISTIANS F LEEING TO S AVE T HEIR L IVES ! ” 57 - characterized the vituperation abolitionists heaped on the city. Years later an Alton minister was traveling in Ohio, stated where he was from, and heard the response “Alton! It is covered with blood! ” 58 But denunciations of Alton manifested a substitution: the city and the violence 55 William F. and Jane Ann Moore, His Brother’s Blood: Speeches and Writings 1838-64 - Owen Lovejoy (Urbana, IL: University of Illinois Press, 2004) 5. 56 There were few antebellum poems dealing with inflictions by specific cities against blacks. One example, following the arson of a black school, was Garrison’s ‘Sonnet on reading an account of the disgraceful proceedings at New-Haven, relative to the Afric-American College,’ The Liberator 1 (October 8, 1831) 41: 161. 57 The Liberator 7 (December 1, 1837) 49: 195. 58 Melvin Jameson, Elijah Lovejoy as a Christian (Rochester, NY: Wetmore and Co., 1907) 8. 134 J OE L OCKARD against Lovejoy substituted for the whole territory of slavery. Rhetoric and poetry that localized guilt within Alton simultaneously spoke to a far broader distribution of responsibility for slavery. Henry Clarke Wright, one of the more perceptive antislavery activists, spoke to the hypocrisy inhering in this simultaneous martyization of Lovejoy and demonization of Alton: May the whole nation feel deeply this tragedy; but millions of our citizens are daily being offered on the same altar on which Lovejoy was offered, and sacrificed to the same demon to which he was sacrificied. Who feels for the slave? The poor Indian - who feels for him? … a whole nation almost exterminated, butchered, MURDERED by the American church and republic. Who feels? The murder of one clothes the nation in sympathetic sorrow; the murder of thousands, ay, millions, fills it with shouts of joy and triumph. Two men are butchered, and the nation is disgraced forever - a whole people is butchered, and the nation is covered with glory! 59 Lovejoy rose as Alton declined. Whether because of or despite his fervent pursuit of martyrdom, Lovejoy became for his contemporaries the symbol of embattled abolitionism and a willingness to die in the assault upon slavery. The unsightly aspects of Lovejoy’s political writings, such as bigoted charges that “Judge Lawless is a Papist”, 60 disappeared in his elevation to a hero who stood for free speech against pro-slavery mobs and who communed with God before confronting the mob. This was the political appreciation that prevailed in the aftermath of his murder and that has continued to define the historical understanding of Lovejoy’s death in Alton. Michael Kent Curtis describes Lovejoy’s death as having “crystallized support for a broad and general view of free speech in the North and dramatically strengthened the view that mobs and the institution of slavery threatened liberty and representative government.” 61 The transformational power of the Alton Riot, Curtis argues, lay in the creation of a new social emphasis on protection of free speech and access to public forums. These themes do appear in the poetry about Lovejoy and the Alton Riot, but in more complex form: they arrive conjoined with themes of social heroism, martyrdom, gothic ghoulishness, and spiritual damnation caused by slavery. With these themes, poetry about Lovejoy animates the imagery of violated human rights, especially in its figuration of the mob. 59 Wright, ‘Case of Br. Lovejoy,’ The Liberator 7 (December 8, 1837) 50: 1. 60 Ibid 176. The reference here is not to a mob but rather to Judge Luke Edward Lawless, an unfortunate name for the holder of a judicial appointment. Lawless was a controversial pro-slavery judge in Missouri who defended lynching blacks and publicly attacked Lovejoy’s newspaper. 61 Michael Kent Curtis, Free Speech, ‘The People’s Darling Privilege’ (Chapel Hill, NC: Duke University Press, 2000) 241-247. Curtis provides an excellent and detailed treatment of Lovejoy and Alton in chapters 10 and 11. Jacksonian Mobs, Free Speech, and the Rise of American Antislavery Poetry 135 In The Liberator, Lovejoy’s idolization began with a poem from Alonzo Lewis, a now largely unremembered poet and regional historian whose Romantic verse on Massachusetts landscapes was quite popular throughout the nineteenth century. 62 Lewis’s poem “Lovejoy” characterizes him as a noble defender of human rights “which God has given” (line 4). 63 “’Twas joy to thee to bleed” (line 5), writes Lewis, employing a trope that was to become repetitive among later commemorative poems. Lewis’s 32-line poem in rhyming quatrains, probably the first poem on Lovejoy published, has little to recommend itself as memorable. The poem voices fairly standard themes of sacrificial patriotism, masculine affirmation of freedom, and martyrdom for the nation. It invokes Washington and Lafayette, and promises that Lovejoy’s name will become “the battle word, / To lead our spirits on! ” (lines 31-32). The use Lewis made of Lovejoy as a rallying call paralleled the rhetoric of other Garrisonian abolitionists, and the presence of Lewis - “the Lynn Bard” - added literary gravitas to the call. From December 1837 through the following year, over twenty poems concerning or referencing Lovejoy and Alton appeared in the pages of The Liberator. Many more appeared in other antislavery journals and the general press. By the occasion of the Boston antislavery fair at year’s end, a commemorative print of Lovejoy featuring the words of his mother - “’Tis well! I would rather my son had fallen a martyr to his cause, than that he had proved recreant to his principles” - together with a martyr-poem was available for purchase by fairgoers. 64 The thematic trajectory of momentous sacrifice and martyrdom established itself from the beginning. Lovejoy was not only instantly canonized, but served to exemplify the true height of commitment demanded of abolitionists. A poem by W.H.T. Barnes entitled “Addressed to the Co-Workers of the Martyred Lovejoy” 65 mourned “For human rights he did fall” (line 14) and enjoined others to exhibit similar willingness to confront injury or death at the hands of proslavery mobs. Lovejoy’s death served, in rather predictable verse, as an occasion to urge the antislavery movement forward: 62 Lewis (1794-1861) was a well-known intellectual figure, poet, historian, justice of the peace, newspaper editor, teacher, and civil engineer from Lynn, Massachusetts. His publications included Poems (1823), The History of Lynn (Boston: J.H. Eastburn, 1829), and Love, Forest Flowers and Sea Shells (Boston: B.B. Mussey, 1850), which went through ten editions. Lewis was an active member of the American Anti-Slavery Society. 63 The Liberator 7 (December 8, 1837) 50: 200. 64 The Liberator 8 (January 12, 1838) 2: 6. 65 W.H.T. Barnes, ‘Addressed to the Co-Workers of the Martyred Lovejoy,’ The Liberator 8 (February 9, 1838) 6: 24. 136 J OE L OCKARD At Lovejoy’s grave, O! linger not to weep, But man the pulpit and the noble press, O’er slavery first a holy conquest reap, And heal the wounds of millions in distress. (lines 21-24) Another poet responded months later to these sentiments with verse meant to stir abolitionist spirits: A thousand hearts are beating high, Nerv’d for the contest, stern and strong, Firmly resolved to “do or die” - A mighty and unflinching throng, Ready to fall as Lovejoy fell; Their lives for human rights to sell. 66 Such antislavery poetry treated human rights as a concept that needed no further exploration than the ritual damnation of slavery. There were fewer poems that pursued the interpretive work of explaining precisely what human rights were or why they might be worthy of considerable sacrifice. Poems that did discuss specific freedoms tended to treat them both metaand ahistorically as a national heritage, as freedoms once realized and now under assault: The precious legacy, Bequeathed by holy sires - Freedom of speech! Right to discuss, and right to publish truth! This precious legacy, tyrants would rob Us of - they boldly bid us hold our tongues! And threaten D EATH to such as dare avow Their hatred to the foul fiend S LAVERY … (lines 8-14) 67 Here the Republic is in danger and it is the sacred task of abolitionists to rise to the defense of constitutionally-guaranteed liberties. The tone of these poems is usually positive, defiant, and in a fighting mood - “…millions, roused, shall pledge upon thy grave / Death to oppression! Freedom to the slave! ” 68 Such defiant words were common, but in a few poems social despair seeps through. The failure of the law and civic institutions to protect Lovejoy warned that no abolitionist was safe engaging in antislavery campaigning, especially those in western towns with substantial pro-slavery sentiment and less-established civic peacekeeping capacities. As one poet wrote: 66 U.G.B., ‘My Country,’ The Liberator 8 (June 18, 1838) 27: 108. Reprinted from the Quincy Patriot. 67 R., ‘The American Republic,’ The Liberator 8 (March 9, 1838) 10: 40. 68 W.H.B., ‘Sonnets,’ The Liberator 7 (December 29, 1837) 53: 212. Jacksonian Mobs, Free Speech, and the Rise of American Antislavery Poetry 137 There is no safety in the strength of laws, Else, why did Lovejoy die in Freedom’s cause? There is no safety for the pen or press, If deeds like this, the laws cannot repress… (lines 9-12) 69 State sovereignty has disappeared; legitimate sovereignty disappears when a populist dictatorship nullifies the legal protection under which Lovejoy functioned. The poet, like other abolitionists, writes to articulate the difficulties of a situation where law effectively has been suspended for those engaged in antislavery agitation. Yet, like other poets regretting the state’s failure to protect Lovejoy, the pseudonymous “Arion” fails to recognize that blacks have lived under a state-sanctioned state of exception as patrol laws, Black codes, and lynch violence created legal and extra-legal means for whites to exercise a racialized state of exception for blacks. If Lovejoy’s death represented a massive failure in the protection of civil liberties, then a civic evil was abroad that had violated those liberties. Poetic figuration of that evil provided a rich psychological vein of images. In Dover, New Hampshire, at a commemoration meeting held in the Congregationalist church on November 29, another public poem, “Dirge,” 70 written for the occasion, raised Lovejoy as a figure whose sacrifice upheld divine law in the midst of slavery’s lawlessness. The poem’s imagery is startling, dark and demonic. It begins “from Freedom’s western plain, / Sounds of direful tumult come” (lines 1-2) before entering into a description of slavery’s supporters as fiendish demons invading the territories of freedom. “Hark! - a hundred demons’ yell / rends afar the midnight air…” (lines 5-6) Moreover, Lovejoy’s death is a cannibalistic feast that the blood-stained pro-slavery party is now enjoying: L OVEJOY bleeds! - now Slavery quaffs Deeply from the Martyr’s veins! 71 Wild the bloody Demon laughs, Loud the joy infernal reigns! (lines 9-12) Such imagery converts to new use the regular appearance of cannibalistic tropes in antislavery poetry. In one anti-sugar poem, for example, the poet 69 Arion, ‘The Alton Riot,’ The Liberator 7 (December 22, 1837) 52: 208. 70 E. Mack, ‘Dirge,’ The Liberator 7 (December 8, 1837) 50: 200. 71 This sort of provocative imagery was calculated to rouse Southern anger. One South Carolina poet who responded was William Grayson, who wrote sarcastically “The slaveholders are man-stealers, why not man-eaters? […] The topic is recommended to Messrs. Greeley and Garrison, and particularly to Mrs. Stowe in her next story. It will be as authentic as the rest of her facts, and as readily believed by her Northern and European readers.” Grayson, The Hireling and the Slave, Chicora, and Other Poems (Charleston, SC: McCarter and Co., 1856) 161-162. 138 J OE L OCKARD revolts at the thought of eating the blood of slaves, where a conserve “is sprinkled o’er with human blood- / A brother’s or a sister’s warm life’s blood: / The purple current, coloring the ground / They’re forced to till. -And, knowing this, shall I / Assist in riveting the chain? ” 72 Lovejoy’s murder here serves both to nourish slavery and to stir the nation to rise against slavery. Although his slain body comes to rest, its murder causes “Freedom’s G ENIUS ” to “cry blood” at his grave (lines 28-31) and the animating spirit of his spilled blood “Wakes Jehovah’s Arm of R IGHT ! ” (line 32). The poem suggests a transcendent economy of transference between a martyred body, the nation, and a divine spirit that will bring salvation to both. Equally macabre is another poem, “The Voice of Blood,” which appeared in mid-December as a reprint from The Philanthropist, the antislavery newspaper that James G. Birney and Gamaliel Bailey had established the previous year in Cincinnati and that was also sacked by a mob. 73 The poem’s anonymous author conceives of Alton and the entire state of Illinois as being visited by an amorphous spirit-voice of death that casts a darkness over the land as it passes. At Alton, site of Lovejoy’s death, when the voice of blood arrives - … the child, when he hears it, shall cry for light! Tho’ the sun is high and the day is bright; And the mother, in frantic mood, Shall shriek as it mutters, the cradle near, In a whisper so loud that the dead might hear; “I AM BLOOD ! T HE VOICE OF BLOOD ! ” (lines 11-16) The stanza imaginatively fuses two biblical plagues of Egypt, the rivers of blood and death of first-born children (in this case imputed), together with a prophetic voice that has substance, that can shadow out the sun. That voice floods the prairies with its force and fear, demanding that the state’s citizens rouse themselves in the name of freedom. This is a Poe-esque vision-poem that urges a citizenry to awake from a potential nightmare of blood, or face their own death in consequence of neglecting the call of freedom. The poem carries very much the same tone as parts of the “Open Letter” where Owen Lovejoy warned the city where his brother had been murdered that “Yea, in the L AST G REAT C ONGREGATION the gory phantom will start forth and arraign you at the bar of eternal justice.” 74 Yet the malignant force of “The 72 ‘Edna’, untitled, The Genius of Universal Emancipation 3 (May 1833) 7, 3 rd series, 112. For a similar anti-sugar poem with cannibalistic imagery, see ‘Ela’, ‘Oh Press Me Not to Taste Again,’ The Genius of Universal Emancipation 3 (November 1832) 1, 3 rd series, 13. 73 For a history of the three anti-abolitionist riots and press sackings conducted against The Philanthropist, in 1836 and 1841, see Grimsted 58-64. 74 Moore and Moore, 13. Jacksonian Mobs, Free Speech, and the Rise of American Antislavery Poetry 139 Voice of Blood” remains disembodied, as an imaginative expansion upon a single death: the poem misses a larger specificity, that being the unimaginable mass of deaths caused by centuries of slavery. Other antislavery poems had a broader vision that did not make such omission. For comparative example, Peter Randolph’s “The Blood of the Slave” prose-poem, published in his slave narrative, Sketches of Slave Life: or, Illustrations of the “Peculiar Institution”, voices a jeremiadic cry for recognition of past, present, and future blood spilled and that names this mass of victims: The blood of the slave cries unto God from the ground, and it calls loudly for vengeance on his adversaries. The blood of the slave cries unto God from the rice swamps. The blood of the slave cries unto God from the cotton plantations. (lines 1-6) The poem continues: The blood of the slave cries unto God from the huntingdogs that run down the poor fugitive. The blood of men, women and babes cries unto God from Texas to Maine. Wherever the Fugitive Slave Law reaches, the voice of its victims is heard. 75 (lines 18-22) The power of Randolph’s prose-poem, by contrast with ‘The Voice of Blood,’ lies in its Whitman-esque invocation of a series of images from slavery, an image series that rolls forward as a therapeutic tempest. Unlike ‘The Voice of Blood,’ the scene is national rather than local. This specification of national experience over specificity of local place raises an important issue relating to the poetry of the Alton riot: how does geographic delimitation of the site of violated liberties, where in fact these violations are widespread, configure a poem’s power? Is this Lovejoyand Alton-related poetry less powerful for its focus on one death, one town, and one history, given the near limitless violations of liberties throughout the United States? If ‘The Voice of Blood’ seems an Illinois gothic, ‘The Blood of the Slave’ is a national jeremiad where blood stretches “from Texas to Maine.” Is ‘The Voice of Blood’ or Lovejoy poetry parochial or less compelling for its narrow focus? This question points to the use of public poetry for political and religious sanctification of the murder of an abolitionist by an Illinois mob, a use that functioned by converting a local incident into a national cause. Thomas Stone, a minister in Lovejoy’s native Maine, captured this expansion-via- 75 Peter Randolph, Sketches of Slave Life: or, Illustrations of the ‘Peculiar Institution’ (Boston: Published for the Author, 1855) 80-81. 140 J OE L OCKARD sanctification in a memorial sermon entitled “The Martyr of Freedom,” first delivered in late November, 1837. Noting first the early Christian tradition of using “martyr” as a synonym for “witness”, Stone argues that Lovejoy was precisely such an apostolic witness: “Grant that Lovejoy were as rash and imprudent as has been alleged, yet certainly he died in attestation and defense of the great truth, G OD DEMANDS IN THE G OSPEL OF HIS S ON , THE REDEMPTION OF SLAVES FROM A CRUEL OPPRESSION .” 76 In meeting his death in defense of this truth, Stone argued, Lovejoy had met the fundamental test of martyrdom. Martyrdom begins within the local, but the martyrmaking process stretches towards the social horizons for greater meaning. The truth that a martyr attests cannot be permitted to remain local; for an ideological movement to succeed, that truth must be celebrated on an everextending basis in order to attain an expansive recognition. An integral part of this process, public poetry served as a leading vehicle in the antislavery movement’s elevation of Lovejoy. From this perspective, both “The Voice of Blood” and “The Blood of the Slave” can be viewed as points along an expressive continuum where martyrdom begins with the individual and local, and moves towards the collective and national. If freedom is a universal right, then martyrdom contributes towards a universal human benefit. It is this potential universality of meaning in the act of martyrdom that works against the local: Lovejoy inevitably means more than Alton. An aesthetic consequence of this imagistic shift can be found in a poem such as Eliza Lee Follen’s “To the Martyrs of Freedom”, 77 which she renders as “a free translation from the German of T.G. Salis”. 78 The poem, which counsels those “who in evil times were born” (line 9) on due patience in the fight for human rights, creates an unspecific environment where principles alone define its geography: In the cloud-tent of distant skies, Truth calmly waits, with balance true, Casts off traditionary lies, And gives to Justice homage due. Reason proclaims eternal laws; Mad mobs and tyrants, in their hour - Aye, for whole ages, hurt her cause, But never can destroy her power (lines 25-32). 76 Thomas Stone, The Martyr of Freedom: A Discourse Delivered at East Machias, November 30, and at Machias, December 7, 1837 (Boston: Isaac Knapp, 1838) 3-4. 77 Follen, ‘To the Martyrs of Freedom,’ 34-37 in The Liberty Bell (1843). 78 The reference here is to Johann Gaudenz Salis-Seewis (1762-1834), whose Gedichte (Carlsruhe: Christian Gottlieb Schmieder, 1799) was a popular volume of German romantic poetry in print throughout the nineteenth century. Jacksonian Mobs, Free Speech, and the Rise of American Antislavery Poetry 141 What Alton provides that this unspecific geography does not is an instant case of “mad mobs” that impede the cause of reasoned justice and human rights. It is this geographic specificity, appearing for the first time in US antislavery poetry in other than pejorative references to southern states or laudations of northern ones, that marks Alton/ Lovejoy poetry as a milepost. Thus an anonymous January 1838 poem such as “Mob Notoriety of Certain Places” 79 mentions as minor prefaces to Alton such cities as Canterbury, Connecticut, where Prudence Crandall’s school was destroyed; New York City, where anti-black and anti-abolitionist riots had occurred; and Vicksburg, Mississippi, which had shortly before lynched gamblers. However, Alton alone is with the laurel crowned: Here, only Blood is crying from the ground! This city, crimsoned now with scarlet dyes, Reflects its image on the vaulted skies (lines 23-26). Such a focus on one geographic site repeats the entire imaginative process that selects one individual as a representative martyr, and so turns one incident among many into a didactic example of tragedy. Yet Lovejoy’s death and the Alton Riot were a negligible part of the daily redundancies of violence experienced by black slaves, who lived within a permanent state of exception. The prominence of Lovejoy and Alton derives as much from the privilege granted to a white martyr and his value for abolitionist propaganda as from confrontation over civil liberties such as free speech and free press. If the body of poetry about Alton and Lovejoy represents a notable milepost in antislavery poetics, it also instantiates the absence of systemic outlook that looked beyond white lives, an infatuation with religious oppositions of Christian good and demonic evil, and the frequent weaknesses of such poetry. The Alton Riot unquestionably produced a wave of public reaction that focused attention on realization of the free speech guarantee in the First Amendment to the United States constitution. Harriet Martineau, surveying the United States and its society for her British readers, wrote in The Martyr Age of the United States (1839) that “The anniversary of Lovejoy’s death will be a sacrament day for his comrades till slavery shall be no more…” and that the shock created by the murder of a minister exercising free speech would carry into the minds of US citizens “some notion that they are living in remarkable times, and that they have some extraordinary neighbors.” 80 Martineau’s observation that Lovejoy’s case spoke to the remarkable nature 79 Anonymous, ‘Mob Notoriety of Certain Places,’ The Liberator 8 (January 9, 1838) 3: 12. 80 Martineau, Writings of Slavery and the American Civil War, Deborah Anna Logan [ed.] (DeKalb, IL: Northern Illinois University Press, 2002) 71. 142 J OE L OCKARD of the times has continued to characterize treatments of the case as a civil liberties landmark. It is this spirit of documenting remarkable history and citing it as cautionary example for present-day civil liberties issues that brought Paul Simon, in his earnest, tolerant and profoundly decent Midwestern liberalism, to write a Lovejoy biography. Writing in 1964, in the midst of the Civil Rights Movement to which he contributed, Simon cited Martin Luther King’s calls for racial equality and found in Lovejoy’s fight “a struggle for human dignity for the oppressed.” 81 Later, others standing in opposition to women’s rights employed Lovejoy and Alton to their own ends: the case has been cited in anti-abortion legal argument as an instance of the suppression of free speech kindred to “restrictions upon the First Amendment rights” of abortion clinic protestors, 82 part of the anti-abortion movement’s persistent misappropriation of abolitionist history. Yet the symbolic contribution of the Lovejoy case continues to be felt in free speech cases into the twenty-first century, appearing in legal contexts as varied as pornography and attempts to secure parade permits for gays and lesbians. 83 But that symbolism has, for the most part neglected the imagery used in anti-slavery poetry as it created a Christian martyr of his face-to-face confrontation with mob violence. Acknowledgements and thanks to A. Robert Lee and Sarah Liu for their comments. 81 Simon, 141. Simon’s concluding chapter, “Does the Spirit of Elijah Lovejoy Still Live? ” (137-142), discusses Lovejoy as an inspiration in civil rights work. 82 Lynn Wardle, “The Quandry of Pro-Life Free Speech: A Lesson from the Abolitionists,” 62 Alb. L. Rev. 853, at 915, 922. 83 Re pornography, see Haberman v. Hustler Magazine, Inc., 626 F. Supp. 201, 1986 U.S. Dist. LEXIS 30902; 229 U.S.P.Q. (BNA) 15; State of Oregon v. Charles Robert Ciancanelli, Oregon Supreme Court S49707; re parade permits, see South Boston Allied War Veterans Council v. City of Boston, 875 F. Supp. 891; 1995 U.S. Dist. LEXIS 709. Jacksonian Mobs, Free Speech, and the Rise of American Antislavery Poetry 143 Works Cited Agamben, Giorgio. State of Exception. Chicago: University of Chicago Press, 2005. Barnes, Gilbert H. and Dwight L. Dumond [eds.]. Letters of Theodore Dwight Weld, Angelina Grimké Weld, and Sarah Grimké, 1822-1844. Gloucester, MA: Peter Smith, 1965. Basker, James G. [ed.]. Amazing Grace: An Anthology of Poems about Slavery, 1660- 1810. New Haven, CT: Yale University Press, 2002. Brown, William Wells [ed.]. The Anti-Slavery Harp: A Collection of Songs. Boston: Bela Marsh, 1848. Carey, Brycchan; Markman Ellis; and Sara Salih [eds.]. Discourses of Slavery and Abolition: Britain and its Colonies, 1760-1838. Basingstroke: Palgrave Macmillan, 2004. Clark, George Washington. The Liberty Minstrel. New York: Published for the author, 1844. —. The Free Soil Minstrel. New York: Martyn & Ely, 1848. Countryman, Edward. “Moral Economy, Political Economy, and the American Bourgeois Revolution,” 147-165 in Moral Economy and Popular Protest: Crowds, Conflict and Authority, Adrian Randall and Andrew Charlesworth [eds.] New York: St. Martin’s Press, 2000. Curtis, Michael Kent. Free Speech, ‘The People’s Darling Privilege’. Chapel Hill, NC: Duke University Press, 2000. Dinmore, Richard. Select and Fugitive Poetry - A Compilation: with Notes Biographical and Historical. Washington: Franklin Press, 1802. Feldberg, Michael. The Turbulent Era: Riot and Disorder in Jacksonian America. New York: Oxford University Press, 1980 Ferguson, Moira. Subject to Others: British Women Writers and Colonial Slavery, 1670- 1834. New York and London: Routledge, 1992. Franchot, Jenny. Roads to Rome: The Antebellum Protestant Encounter with Catholicism. Berkeley, CA: University of California Press, 1994. Garrison, Wendell Phillips and Francis Jackson Garrison. William Lloyd Garrison, 1805- 1879, The Story of his Life Told by his Children, vol. 2. New York: Century Co, 1985. Gilje, Paul A. The Road to Mobocracy. Chapel Hill, NC: University of North Carolina Press, 1987. —. Rioting in America. Bloomington, IN: Indiana University Press, 1996. Grayson, William. The Hireling and the Slave, Chicora, and Other Poems. Charleston, SC: McCarter and Co, 1856. Green, William. Narrative of Events in the Life of William Green, (Formerly a Slave) Written by Himself. Springfield, MA: L.M. Guernsey, 1853. Grimsted, David. American Mobbing, 1828-1861. New York: Oxford University Press, 1998. Headley, J.T. Pen and Pencil Sketches of the Great Riots. New York: E.B. Treat, 1882. Jameson, Melvin. Elijah Lovejoy as a Christian. Rochester, NY: Wetmore and Co, 1907. Lee, Debbie. Slavery and the Romantic Imagination. Philadelphia: University of Pennsylvania Press, 2002. Lewis, Alonzo. Poems. Portsmouth, NH: Harrison Gray & Eben. L. Childs, T.H. Miller, 1823. —. The History of Lynn. Boston: J.H. Eastburn, 1829. —. Love, Forest Flowers and Sea Shells. Boston: B.B. Mussey, 1850. Lincoln, Abraham. Lincoln, Speeches and Writings, 1832-1858, Don E. Fehrenbacher [ed.] New York: Modern Library of America, 1989. 144 J OE L OCKARD Lincoln, Jairus [ed.]. Anti-Slavery Melodies: For the Friends of Freedom. Hingham, MA: Elijah B. Gill, 1843. Lovejoy, Joseph and Owen Lovejoy. Memoir of the Rev. Elijah P. Lovejoy; Who was Murdered in Defence of the Liberty of the Press, at Alton, Illinois, Nov. 7, 1837. New York: J.S. Taylor, 1838. Mann, Daniel [‘Mr. Latimer’s Brother’]. The Virginia Philosopher, or, Few Lucky Slave- Catchers: A Poem. Boston: Published for the author, 1843. Marsden, Joshua. Leisure Hours. New York: Published for the author, 1812. Martineau, Harriet. 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A Poetical Epistle to the Enslaved Africans, in the Character of an Ancient Negro, Born a Slave in Pennsylvania, but liberated some Years since, and instructed in useful Learning, and the great Truths of Christianity. Philadelphia, Joseph Crukshank, 1790. Simon, Paul. Lovejoy: Martyr to Freedom. St. Louis, MO: Concordia Publishing House, 1964. Stone, Thomas. The Martyr of Freedom: A Discourse Delivered at East Machias, November 30, and at Machias, December 7, 1837. Boston: Isaac Knapp, 1838. Strong, William Templeton. The Diary of William Templeton Strong, Allan Nevins and Milton Halsey Thomas [eds.] New York: Macmillan, 1952. Trotsky, Leon. Literature and Revolution, William Keach [ed.] Chicago: Haymarket Books. Original edition 1925, International Publishers, New York, 2005. United Kingdom, House of Commons. Report from Select Committee on the Extinction of Slavery Throughout the British Dominion with Minutes of Evidence, Appendix and Index. London, 1832. Wardle, Lynn. “The Quandry of Pro-Life Free Speech: A Lesson from the Abolitionists,” 62 Alb. L. Rev. 853, 1999. Whittier, John Greenleaf. The Poetical Works. Boston: Houghton, Mifflin and Co., 1892. Serials The Genius of Universal Emancipation, Baltimore, 1826-1839 [16 vols.] The Liberator, Boston, 1831-1865 [35 vols.] J OHN C YRIL B ARTON The Anti-Gallows Movement in Antebellum America Put the scaffold on the Common, Where the multitude can meet; All the schools and ladies summon, Let them all enjoy the treat. What’s the use of being “private”? Hanging is a righteous cause; Men should witness what you drive at, When you execute the laws. - Anti-gallows poem (1849) I. Capital punishment has played an important role in American cultural and political life ever since the inception of the United States. During the colonial period and in the early years of the Republic, “Hanging Day” and its concomitant practices - the execution sermon, the condemned’s last words or dying confession, the public spectacle of the execution itself, and official narratives or popular broadsides documenting the event - served to promote religious order and good citizenship. 1 However, the role and place of the death penalty changed dramatically in the decades following the Revolutionary War. In the late eighteenth and early nineteenth centuries, the Enlightenment ideal of a less severe, more proportional government and the belief in the benevolence of human beings, coupled with a Republican disdain for the so-called “right” of a State to take its citizens’ lives, led prominent thinkers from Benjamin Franklin, Thomas Jefferson, and James Madison to John Quincy Adams, Lydia Maria Child, Wendell Phillips, and Margaret Fuller to challenge the scope and legitimacy of capital punishment. The reformation of penal codes and capital statutes had long been a concern in Pennsylvania (in 1794 the state abolished the death penalty for all offenses except first-degree murder), but the reform movement became a topic of national interest in the nineteenth century. In the 1820s, influential lawyer and politician Edward Livingston presented landmark arguments for 1 My historical overview of the death penalty draws from the work of Banner, Masur, Halttunen, Mackey, and Davis. 146 J OHN C YRIL B ARTON the abolition of capital punishment before the Louisiana state legislature, and the spirit of reform later peaked in the 1830s, 40s, and early 50s when social organizations such as the New York and Massachusetts Societies for the Abolition of Capital Punishment were formed and debates about the death penalty spread across the nation. During this time, many Northern and some Southern states began revising capital statutes and moving executions from the public square to the enclosed, “private” space of the prisonyard (a practice ridiculed in the anti-gallows poem cited as my epigraph). Moreover, New York, Massachusetts, and New Hampshire came close to abolishing capital punishment in the 1830s and 40s (Davis Homicide 296), while bills calling for abolition passed or nearly passed during this time in one of the legislative houses in New Jersey, Vermont, Ohio, and Connecticut (Mackey Voices xxii). In 1837, Maine passed a bill that sentenced those convicted of capital crimes to solitary confinement and made executions require an executive warrant issued by the governor one year after the pronouncement of a death sentence. The “Main Law,” as it came to be known, helped prevent any death sentence in the state from being carried out for twenty-seven years. By 1853, three states - Michigan in 1847, Rhode Island in 1851, and Wisconsin in 1853 - abolished the death penalty; and it was largely due to the impending Civil War and the inevitable violence associated with the effort to abolish slavery, a movement with which the reformation of capital punishment was intimately connected, that death-penalty abolitionism lost its momentum, not fully to return to the public spotlight until populist and progressive ideas at the turn of the twentieth century prompted a more scientific attitude toward crime and social behavior. 2 2 In Rites of Execution, Louis P. Masur emphasizes the connections between the antigallows movement and the movement to abolish slavery. “In the minds of abolitionists such as William Lloyd Garrison and Wendell Phillips,” he writes, “one campaign, against slavery or the gallows, was inseparable from the other. Both slavery and capital punishment, they argued, represented systems of brutality that coerced individuals, and both institutions merited attack” (157). As Masur notes elsewhere in his study, other prominent opponents of slavery, such as Theodore Parkman and Lydia Maria Child, also spoke out against the death penalty. Among those discussed in Masur’s work, we could add to the list Frederick Douglass, the preeminent African American orator of the day, who, long with Susan B. Anthony, organized an anti-death penalty meeting in Rochester, New York, in 1858. At that meeting, Douglass delivered his essay, “Capital Punishment is a Mockery of Justice.” It is important to note, however, that the political alliances between these two abolition movements were not always so clear cut. For instance, John L. O’Sullivan, the leading proponent for abolishing the death penalty in the 1840s, would later sympathize with the South and support the Confederacy, whereas George Barrell Cheever, the foremost defender of the gallows in the 1840s, would become a leader in the anti-slavery cause and join forces with The Anti-Gallows Movement in Antebellum America 147 This essay examines the anti-gallows movement in antebellum America. It focuses on legislative reports, political writings, and imaginative journalism concerning the death penalty as well as poetry and especially fiction that represent or respond to capital punishment. The death penalty has a discourse as rich and contentious as any in the history of the United States, and the legal, political, and literary texts I investigate were written at a time when the question of capital punishment was hotly debated and the movement for abolition was advancing its cause on many fronts. Abolitionists during this time drew on religious and political arguments to claim that capital punishment violated both human and civil rights. They also challenged arguments about deterrence, while insisting that the death penalty made juries reluctant to convict criminals of capital crimes. Among the many important legal and political writers of the period, I will concentrate on Robert Rantoul, Jr., who made innovative arguments about the inappropriateness of capital punishment in a republic, and John L. O’Sullivan, a prominent New York Democrat and editor of the influential The United States Magazine and Democratic Review. Famous literary figures who contributed to the debate by publishing in O’Sullivan’s journal include Nathaniel Hawthorne, John Greenleaf Whittier, and Walt Whitman. Others, such as Henry Wadsworth Longfellow and Herman Melville, criticize the death penalty in their work, while some popular writers - notably George Lippard, Sylvester Judd, and William Gilmore Simms - interrogate the use and purpose of the gallows in their novels. The campaign to abolish capital punishment, I will conclude, should be seen as an important part of the context that helped bring about the American Renaissance. In fact, in some ways that campaign reveals as much about the democratic assumptions informing the American Renaissance as the campaign to abolish slavery. I begin, however, by looking closely at an early popular American novel that portrays an execution scene and, in presenting elaborate commentary on it, sets the stage for arguments to follow. II. The final chapter of David Brion Davis’ Homicide in American Fiction (1957) provides the starting point for any study of U.S. antebellum literature many of those with whom he formerly disagreed about capital punishment. It is also important to note that Phillip English Mackey, another recent historian of the death penalty in America, attributes the gradual demise of the anti-gallows movement to the Mexican-American War. “The reasons were many,” Mackey writes in reference to the movement’s loss of momentum, “but the paramount problem was the Mexican War and the factionalism and sectionalism it fostered” (Voices xxvii). 148 J OHN C YRIL B ARTON and the death penalty. As its title suggests, Homicide in American Fiction attends primarily to questions about murder; but in its final chapter, Davis turns to the subject of capital punishment, claiming that “American fiction in the second quarter of the nineteenth century reveals a curious synthesis of … two positions”: “reformers who emphasized the effect of environment on moral behavior, arguing that criminals should be cured instead of being punished, and traditionalists who finally abandoned the rationalistic theory of deterrence and fell back upon a doctrine of intrinsic and absolute justice” (299). As helpful as this formulation is, it needs to be complicated. More than a “curious synthesis,” U.S. fiction written during this time responded to and participated in cultural debates over capital punishment. A case in point can be found in John Neal’s Logan: A Family (1822), a popular novel that dramatizes a scene of public execution and offers an extended discussion of it. Early in Volume II of Logan, Neal’s protagonist, Harold, witnesses the hanging of several men convicted of piracy while on board a ship heading to England. The narrator vividly portrays the executions, describing how the condemned were “successively drawn up … and then let down part way, with a sudden jerk, which caused the dislocation of their necks, like the report of a pistol” (8). At the sight and sound of these acts, Harold’s “blood curdled” and his “heart turned sick, cold, cold as ice” (8). After the last of the men is hanged (one is pardoned at the last moment), Harold tells a stranger near him that he feels as if he “were a witness against these men” (9). In response, the stranger asks: “And what think you of the reprieve? ,” to which Harold replies: “I like that. I love mercy. I could kneel down and thank them for sparing one life. And the very sailors - see how they are affected by it! The populace too, in the boats - they are crying” (9). The sentiment of Harold’s answer prompts a firm rejoinder from the stranger: “No. You are deceived. … That reprieve was injudicious. Punishment should be certain. Certainty does more than quantity, in penal codes, to counterbalance temptation. Were there but one man in a million pardoned, every criminal would hope that himself would be that man. Each expects the prize in a lottery. No! these people are not weeping. … They love sensation - they love spectacles” (emphasis original 9). As Harold persists in his objections, the dialogue takes shape as an object lesson in Enlightenment attitudes toward hanging and the deleterious psychological effects of public executions. In this exchange, Harold represents the young romantic subject (Byron’s Childe Harold serves as a model), while the older stranger plays the role of the wise and skeptical philosopher who has thought much about the institution and practice of capital punishment. When Harold insists that the sympathy of the spectators for the condemned at an execution reflects society’s innate love of humanity and abhorrence The Anti-Gallows Movement in Antebellum America 149 of a justice system that inflicts death for crime, the stranger again corrects him: “The populace,” he tells Harold, “will assemble to execute a felon to day, with their own hands, and to morrow beset the throne of justice for his pardon. I have seen this, again and again. I have seen ten thousand people in tears because a handsome boy was to be executed; and I have seen the officer who brought his pardoned, hooted and pelted from the ground, by a part of the same mob. Men sometimes sit down to cry - and it is dangerous to disappoint them. They have made up their minds to be sentimental, and woe to him who interferes or interrupts them” (9). The stranger’s remarks on the psychology of the death penalty’s spectacle of violence occasion further commentary about its harmful effects: “The are several things to condemn in this affair,” he later says. “In the first place, all the pirates are represented as penitent, and assured of heaven. In the next place, he who is pardoned is kept in ignorance of it, till the last moment” (emphasis original 10). The dramatic effect of the pardon prompts Harold to interrupt the stranger in order to comment on the spectacle they just witnessed: “not the criminal only,” Harold says, “but the populace [will] remember it, with greater seriousness,” since the pardoned convict “has suffered all but death: - the ignominy, the anticipation, the horrour, and the pain of such a death is nothing, absolutely nothing” (11). In fact, Harold adds, the executions themselves were relatively uneventful and even merciful when compared to the hangings themselves: “I felt relieved when their necks were snapped. I expected something a thousand times more horrible - but how instantly they were motionless! Oh, there is no death so easy! ” (11). Yet Harold’s sentiment perfectly illustrates the stranger’s argument against both the mode in which capital punishment is presently administered and the popular practice of issuing last-minute pardons: “Right, young man,” the stranger replies, “hence the glaring impolicy of such executions; hence too the frequency of suicide by hanging. Poor wretches! they see that the pain is momentary; all feel as you did, at the sight of the first execution. They expect to fall down, when the signal is given, and yet they find that the reality is nothing to the terrours of their own imaginations. But let me proceed. By delaying the reprieve until the last moment, for a presumptuous and idle piece of dramatick effect - they teach every man, at the gallows, to expect, even to the last moment, the very last, a reprieve.” (emphasis original 11) The exchange between Harold and the stranger in Logan highlights some of the concerns which would come to preoccupy the anti-gallows movement in the decades preceding the Civil War: (1) the horrors and deleterious affects of public executions and staged reprieves; (2) the implication of spectators as witnesses in the executions themselves; (3) the Enlightenment principle of certainty over quantity or severity in punishment as a useful deterrent; (4) the base desires of violence and spectacle to which public 150 J OHN C YRIL B ARTON hangings cater; and (5) the false pretense of forgiveness and salvation the ritual of lethal public violence instills upon the criminal mind. As the dialogue continues, Harold’s response to the stranger’s argument helps to bring out this fifth and final point: “Gracious God,” he exclaims, “Hence, every man goes out of the world unprepared, in reality! ,” to which the stranger replies: “Yes - and hence too, the hardihood and carelessness, with which the most detestable ruffians go out of it; depriving the scene of all its terrours, making it a brutal farce, a trial of insensibility” (11). When Harold goes on to ask why the stranger should condemn the condemned’s repentance, the stranger replies that he does not in principle, but does so in practice because such “penitence” is likely to be affected and insincere: “Listen to me,” he urges Harold: “Our system of punishment, reprieve, and penitence produces in every villain’s heart just this process of reasoning: - “I will indulge my mortal appetite for blood - because at the worst, if I cannot escape suspicion - cannot bribe the witnesses, nor the jury - and if my lawyer cannot get me clear by his wicked eloquence, by some flaw in the proceedings - and if I cannot get a new trial - nor escape by subornation - nor break prison - nor bribe the gaoler - nor get a pardon - nor a reprieve - nor a commutation of punishment - nor get clear by some revolution, political or moral, why, at the worst I can repent, and go to heaven, at any rate, with the whole publick opinion in my favour, and the passport of many a pious clergyman in my behalf; nay, who knows? I may have a procession, a monument, an epitaph, be interred in consecrated ground, and pass for a martyr, a martyr to what! to the inexorable cruelty of my country’s laws. -A pretty way to have those laws respected! a most effectual antidote to temptation, and profligacy, indeed! ” (emphasis original 11-12) Logan was published in 1822, the same year Edward Livingston presented the first of his influential arguments against capital punishment before the Louisiana state legislature. A former congressman and mayor of New York forced to Louisiana by financial scandal, Livingston was elected a member of the state Assembly in 1820. In 1821, he drafted a revision of the state’s criminal statutes. A year later he delivered his Report on the Plan of a Penal Code, a lengthy section of which called for the abolition of the death penalty. Eloquently written and powerfully argued, Livingtson’s Report centered on the psychological effect of public executions. Like the stranger in Logan, Livingston found the current administration of capital punishment to be barbarous and ineffective. Livingston, however, attended to the criminal passions (notably ambition and avarice) aroused in the spectators of executions. When the “inflection of death” becomes frequent “it loses its effect,” Livingston claimed; “the people become too much familiarized with it to consider it as an example; it is changed into a spectacle, which must frequently be repeated to satisfy the ferocious taste it has formed” (43). At the The Anti-Gallows Movement in Antebellum America 151 same time, when executions are infrequent and “kept for great occasions, and the people are seldom treated with the gratification of seeing one of their fellow-creatures expire by the sentence of the law; a most singular effect is produced; the sufferer, whatever be his crime, becomes a hero or a saint; he is the object of public attention, curiosity, admiration, and pity” (44). In either case, Livingston argued against public hangings; and in this respect, he echoed the general arguments against such punishment in Neal’s novel, especially the claim that the condemned becomes an object of sympathy - a hero or martyr even - in the eyes of the populace. 3 “Thus the end of the law is defeated,” Livingston concluded, “the force of the example is totally lost, and the place of execution is converted into a scene of triumph for the sufferer, whose crime is wholly forgotten, while his courage, resignation, or piety, mark him as the martyr, not the guilty victim, of the laws” (45). Livingston and Neal, one from law and the other from literature, speak out against the death penalty near the beginning of a reform movement that would come to occupy a prominent place in the cultural politics of the 1830s and 40s. Indeed, as a Pennsylvania paper declared in 1844: “The subject of capital punishment is claiming much and increasing attention, not only in our own State, but in many other parts of the country” (qtd. in Masur 117). Drawing on such statements, historian Louis P. Masur writes: “During the 1840s, books, pamphlets, and reports by scores of writers flooded the public with arguments against capital punishment. Ministers, editors, and lecturers better known for their devotion to other moral and social causes adopted the anti-gallows movement as their own” (117). If the anti-gallows reform movement came to fruition in the 1840s, it had its origins before then. Reflecting upon his life in an 1866 autobiography, Neal credited Logan with prompting a particular development within that reform: the movement of executions from the public square to the enclosed, less public space of the prison yard. “I believe that the changes which have followed,” Neal writes, “year after year, both abroad and at home, in the mode of execution, originated with my ‘Logan’” (Wandering Recollections 390). 3 It is important to note that both Neal and Livingston are making an argument about the spectacle of sovereign violence inflicted upon the body of the condemned long before Foucault developed that argument in the opening chapters of Discipline and Punish. It should also be noted that Livingston’s writings against the death penalty were extremely influential in France when that country experienced its own movement to abolish capital punishment, from roughly 1826 to 1831. Indeed, Livingston’s work, which was widely reviewed and discussed in French newspapers (most notably Le Globe), helped initiate the debate in that country. For a discussion of Livingston’s impact on the abolition movement in France, see Sonja Hamilton’s La Plume et le Couperet, 71-73. 152 J OHN C YRIL B ARTON In his autobiography, Neal also identifies himself as someone who has “written much, and not a little to the purpose; having no belief in the wisdom of strangulation, for men, women, and children, however much they might seem to deserve it, and being fully persuaded that the worst men have most need of repentance, and that they who are unfit to live, and still more unfit to die” (390). Moreover, Neal describes the experience which both inspired his anti-death penalty politics and served as the source for the gallows scene in Logan: When I wrote “Logan,” after having seen two pirates, and two young men strangled by law, in the midst of a noisy, riotous crowd in Baltimore, at noon-day, with the blue heavens, the green earth, and the golden sunshine testifying against their dread “taking off,” I urged our lawgivers, if they would still insist upon strangling men, women, and children, to do it within the walls of a prison, at midnight, and with the tolling of a large, ponderous bell, or the sound of cannon, like minute-guns at sea; that murderers, and ravishers, and house breakers, and thieves, and highwayman, might be startled from their sleep, and set a-thinking; or be disturbed in their midnight revels, or their unaccomplished depredations, as by a voice from the other world, filling them with dismay, or with a mysterious unutterable horror, according to their guilt, in their dread loneliness and desolation. (390) Neal’s suggestion here echoes an idea for a more effective means of administering capital punishment hinted at by the stranger in Logan: “Another defect is this,” the stranger tells Harold; “men are executed in daylight, and the mob go home, about their usual occupations. … But let executions be conducted at night, by torch light, with tolling bells, at midnight, and what would be their sensations then! ” (13). This idea, of course, was never implemented, although the argument for prohibiting public executions in Logan preceded the first actual state law of that kind by more than ten years. 4 Even 4 Mackey provides a description of public executions and legislative responses to them that resonates with Neal’s account in Logan and is therefore worth quoting at length: “To many Americans in the 1820s and 1830s,” Mackey explains, “the most obvious flaw in the institution of capital punishment was public executions, which, intended as a sobering and edifying ceremony, had too often turned into a disgraceful scene of commercialism, riot, and bloodlust. A scheduled hanging could be expected to draw thousands, sometimes tens of thousands, of eager viewers. Exploited by local merchants, plied with drink and excited by the prospect of a bloodcurdling event, witnesses often become unruly. Pushing and fighting were not uncommon as the victim was led to the scaffold or as the crowds surged to view the corpse. Cursing onlookers might revile the widow or tear at the scaffold and rope for souvenirs. Drunkenness and violence at times ruled the town far into the night after such a display of public justice” (Voices xx). Following this description, Mackey then writes: “Appalled by such scenes, legislators in northern states, beginning with Rhode Island in 1833, Pennsylvania in 1834, and New York, Massachusetts, and New Jersey in 1835, enacted laws calling for private hangings” (xx). The Anti-Gallows Movement in Antebellum America 153 so, the anti-gallows movement in the United States has a richer, more complex history than Neal suggests. It is to that history, especially as it relates to questions of civil liberties, that I shall now turn. III. The origins of the movement to abolish capital punishment in antebellum America can be found in Cesare Beccaria’s On Crimes and Punishment, a short treatise on the reformation of criminal law first published in 1764. Upon its publication in Italy and translation throughout Europe, Beccaria’s book attracted much attention and sparked heated debates about criminal law reform and the death penalty on the European continent. Interest in Beccaria’s ideas were every bit as keen in England and colonial America. The first English edition of On Crimes and Punishment was published in London in 1767 and was advertised in New York in 1773. The first American editions of Beccaria’s treatise were published in Charleston in 1777 and in Philadelphia in 1778. What is more, On Crimes and Punishment was widely catalogued by American booksellers in the 1780s, “and newspapers such as the New Haven Gazette and Connecticut Magazine serialized Beccaria for their readers” (Masur 52). 5 Drawing upon Montesquieu’s The Sprit of Laws (1748), Beccaria argued for less severe, more proportionate punishments in criminal law and reasoned that the death penalty was neither necessary nor useful. Capital punishment was not necessary, he claimed, because in times of peace life imprisonment would sufficiently protect society from any of its dangerous members. 6 Similarly, it was not useful because the harshness of the penalty did not leave a lasting impression upon those whom it intended to deter. In Beccaria’s words, “It is not the severity of punishment that has the greatest impact on the human mind, but rather its duration, for our sensibility is more easily and surely stimulated by tiny repeated impressions than by a strong but temporary movement” (49). Thus, according to Beccaria, life imprisonment provided a more effective deterrent to crime because the punishment would be “spread out over a lifetime,” whereas “capital punishment exercises all its powers in an instant” (50). If, as Montesquieu repeatedly stated in Spirit of Laws and Beccaria reiterated in On Crimes and Pun- 5 See also Spurlin for a reception history of Beccaria’s On Crimes and Punishment in eighteenth-century America. 6 Beccaria found the death penalty justifiable only in times of war when the imprisonment, rather than execution, of a condemned political figure jeopardized the security of the state or when the execution of a condemned citizen was “the one and only deterrent to dissuade others from committing crimes” (48). 154 J OHN C YRIL B ARTON ishment, any punishment that was unnecessary was “tyrannical,” the death penalty epitomized that tyranny. 7 Beccaria’s utilitarian attack on the death penalty challenged the social contract theories of Montesquieu and Rousseau. Like Rousseau, he subscribed to a theory of government in which citizens renounced part of their individual liberty in order to form a social compact. According to Beccaria, however, members of a social contract never gave the State the right to take their lives. To do so would be to contradict the underlying principle of the contract itself. “By what alleged right can men slaughter their fellows? ,” Beccaria asked in criticizing the all-but-universal practice of capital punishment. “Certainly not by the authority from which sovereignty and law derive. That authority is nothing but the sum of tiny portions of the individual liberty of each person; it represents the general will, which is the aggregate of private wills. Who on earth has ever willed that other men should have the liberty to kill him? How could this minimal sacrifice of the liberty of each individual ever include the sacrifice of the greatest good of all, life itself? ” (48). As his repeated emphasis upon “liberty” suggests, Beccaria’s argument against the death penalty hinged upon the rights and individual liberties the social contract was initially created to protect. First and foremost among these liberties was the right to life, “the greatest good of all.” From this line of reasoning, Beccaria drew the following conclusion: “The death penalty, then, is not a right … but rather a war of the nation against a citizen, a campaign waged on the ground that the nation has judged the destruction of his being to be useful or necessary” (48). This description of capital punishment as a civil war between a nation and its citizens must have caught the attention of Beccaria’s many liberalminded American readers, for whom the death penalty was made anathema to a republican ideal of government. As Masur notes: “No less a figure than Thomas Jefferson credited Beccaria with awakening the world to the unnecessary severity of capital punishment” (53). When once asked as President in 1806 for a list of authors whose works were essential to understanding the 7 Montesquieu takes up the general question of sovereign authority in relation to civil and criminal laws in Volume 1, Book VI of The Spirit of Laws. He writes specifically about tyranny in Book XIX, in the course of which he coins the influential phrase: “All punishment which is not derived from necessity is tyrannical” (Montesquieu 299). Beccaria makes this broad point the specific focus of On Crimes and Punishments. For instance, he begins Chapter II, “The Right to Punish,” with the following claim: “Every punishment which does not derive from absolute necessity, says the great Montesquieu, is tyrannical. The proposition may be made general thus: every act of authority between one man and another that does not derive from absolute necessity is tyrannical. Here, then, is the foundation of the sovereign’s right to punish crimes: the necessity of defending the depository of the public welfare against the usurpations of private individuals” (Beccaria 8). The Anti-Gallows Movement in Antebellum America 155 proper “organization of society in civil government,” Jefferson responded with only five names: Locke, Sidney, Chipman, the Federalist Papers, and Beccaria (53). Benjamin Rush was another influenced by Beccaria’s utilitarian arguments against the death penalty. The foremost physician in America in the late eighteenth century and, like Jefferson, a signer of the Declaration of Independence, Rush emerged as the first great spokesperson for the antigallows movement in the newly formed United States. He first aired his views on the death penalty in an essay he delivered on March 9, 1787, at the home of Benjamin Franklin (the essay was later published as An Enquiry into the Effects of Public Punishments upon Criminals and upon Society). However, it was not until 1792, a year after the Bill of Rights was ratified, that Rush published Considerations on the Injustice and Impolicy of Punishing Murder by Death, his definitive statement for the abolition of capital punishment. Clearly influenced by Beccaria (Rush references him twice in the essay), Rush added the claim that mandatory death sentences for capital convictions made juries less willing to reach guilty verdicts as well as the argument that the death penalty encouraged murder by those who, believing suicide a graver offense than murder, took a life in order that the state might take their life in turn. His attack, however, was centered around moral and religious objections to punishment by death - a dominant line of reasoning in the abolition movement from the late eighteenth to the midnineteenth century and one to which I will return later in this essay. But with the question of capital punishment and civil liberties in mind, I want, at this point, to consider only the conclusion of Rush’s Considerations, which draws an extended comparison between monarchical and republican forms of government. In that conclusion, Rush claims: [C]apital punishments are the natural offsprings of monarchical governments. Kings believe that they possess their crowns by divine right; no wonder, therefore they assume the divine power of taking away human life. Kings consider their subjects as their property; no wonder, therefore, they shed their blood with as little emotion as men shed the blood of their sheep or cattle. But the principles of republican governments speak a very different language. They teach us the absurdity of the divine origin of kingly power. They approximate the extreme ranks of men to each other. They restore man to his God - to society - and to himself. They appreciate human life, and increase public and private obligations to preserve it. They consider human sacrifices as no less offensive to the sovereignty of the people, than they are to the majesty of heaven. They view the attributes of government, like the attributes of the deity, as infinitely more honoured by destroying evil by means of merciful than by exterminating punishments. The united states have adopted these peaceful and benevolent forms of government. It becomes them therefore to adopt their mild and benevolent principles. (emphasis original 18-19) 156 J OHN C YRIL B ARTON To highlight the disparity between monarchies and republics in terms of capital punishment, Rush closes his essay with the following comparison: “An execution in a republic is like a human sacrifice in religion. It is an offering to monarchy, and to that malignant being, who has been stiled a murderer from the beginning, and who delights equally in murder, whether it be perpetrated by the cold, but vindictive arm of the law, or by the angry hand of private revenge” (16). By likening an execution in a republic to a “human sacrifice in religion,” Rush calls attention not only to the moral horror of capital punishment but also to its logic of give and take - a logic that, for him, is deeply problematic, because only God has legitimate power over life and death. Yet perhaps the most telling aspect of the analogy comes in the final image of the king himself as a “malignant being” and “murderer.” Such a conflation of licit and illicit forms of capital punishment suggests an undeniable similarity between them - a similarity the State tries to mask by building elaborate rituals and formal procedures around the lawful administration of punishment by death. Beccaria’s and Rush’s attacks on capital punishment laid the foundation for what we can call the republican argument against the death penalty. Many antebellum reformers, including Livingston, would draw upon this argument. But it reached its fullest expression in the legal and political writings of Robert Rantoul, Jr., a prominent lawyer and leading Democrat in Massachusetts who was the foremost opponent of the gallows in the 1830s. Indeed, Rantoul’s writings were foundational to the antebellum campaign for abolition, and for this reason his work deserves close attention. Rantoul, Jr. grew up in a home committed to the reformation of capital punishment. Both his parents supported abolition, and his father publicly expressed his views in 1809, his first year as a member of the House of Representatives. Rantoul, Sr. represented Massachusetts in the House or the Senate for the next twenty-four years, and in 1829 he was appointed to a house judiciary committee to consider revising Massachusetts’ penal code, particularly its capital statutes. Six years later, Robert Rantoul, Jr. followed in his father’s footsteps. In 1834 he was elected to the House as a representative for Massachusetts, and the following year he chaired a committee to consider the “expediency of repealing all … laws” that “provide for the inflection of the punishment of death” (Memoirs 428). From 1835 to 1838, Rantoul delivered annual reports in favor of the abolition of capital punishment. The most famous was his 1836 Report on the Abolition of Capital Punishment. It was printed several times and “obtained a high reputation in Europe,” writes Luther Hamilton, Rantoul’s nineteenth-century biographer, “being considered standard authority, and quoted as such in France, Belgium, Germany, and Italy” (429). The Anti-Gallows Movement in Antebellum America 157 Rantoul begins his 1836 Report by identifying the question of capital punishment “as one of momentous importance, - deeply concerning the general welfare of society by its connection with, and influence upon the prevailing standard of moral rectitude” (436-37). This question, for Rantoul, is paramount because it involves “not only each legislator, but every member of the community [who] ought to feel a solemn interest and an individual responsibility” when weighing the “ultimate decision” over life or death (437). Emphasizing the “individual responsibility” citizens bear when an execution is carried out in their names situates the question of capital punishment in relation to sovereign authority and the people’s responsibility, a vexed and complicated relation since the people in this case are the sovereign. Drawing upon utilitarian and social contract theorists, Rantoul defines society as “nothing but a partnership” - “a limited partnership” - created and maintained for “benevolent and philanthropic” purposes; and the United States, he contends, has accomplished these goals “more uniformly and completely, and with less unnecessary suffering or avoidable injustice, than any association of men that has ever preceded us” (439). Nonetheless, as “the work of finite human faculties,” the laws and administration of any government bear room for improvement, and Rantoul aligns his committee’s report with a “class of reasoners” who “hold the infliction of capital punishment to be one of the most obvious vices in our present mode of administering the common concerns” (439). This preamble on the role and place of government sets up the central question that Rantoul’s Report seeks to address: “We are all of us members, they say,” Rantoul says, “of the great partnership. Each one of us has not only an interest, but an influence, also, in its proceedings. Shall the partnership, under certain circumstances which will probably happen now and then, proceed deliberately, with much ceremony, and in cold blood, to strangle one of its partners? Has society the right to take away life? ” (439). As his attention to society’s deliberate, ceremonious, cold-blooded administration of capital punishment suggests, Rantoul’s answer to the question is a resolute “No.” He goes on to support that answer by elaborating two propositions of Jeffersonian democracy, the first being: “The whole object of government is negative” (439). The purpose of government, Rantoul explains, “is for the protection of property, life, and liberty. It is not for the destruction of any of them. It is not to prescribe how any one may obtain property, how long one may enjoy life, under what conditions he may remain at liberty. It was precisely to prevent the strong from controlling the weak in all these particulars, that government was instituted. It is to take care that no man … shall injure the person, or shorten the life of another” (439). This description of what government is and is not culminates with 158 J OHN C YRIL B ARTON an image of the potential danger to which any government that encroaches upon civil liberties is susceptible: “It is not to become itself the most terrible invader of the interests it was created to protect, acting the part which the lion acted when he was made king of the beasts; nor, except where men are sunk in beastly degradation, will they permit it to usurp and monopolize all the prerogatives which elevate man above the brutes, and make him lord of the lower world” (439). Rantoul’s emphasis on the negative objective of government and its potential for despotism brings him to his second proposition of democracy: “Government is a necessary evil” (439). In elaborating this tenet, Rantoul identifies “protection” as “the only object of society” and claims that we, as citizens, surrender “only so much liberty as it is necessary” in order to preserve “our natural rights” (440). Rantoul, in this respect, follows Montesquieu and Beccaria in invoking a social contract model of government; and like Beccaria, he rejects the notion that “any people has entered into a compact giving unlimited powers for all possible purposes to its government” (440). Rantoul associates this particular position with Rousseau, who “supposes that in consequence of the social contract between the citizens and society, life becomes ‘a conditional grant of the State,’ to be given up whenever the State shall call for it” (440). He belittles this idea as “an obvious absurdity” and denounces Rousseau’s theory as “anti-republican and slavish” (440). The death penalty, for Rantoul, epitomizes this “obvious absurdity” given that it destroys rather than punishes, thereby depriving a citizen of the essential liberty the social contract was designed to protect. Because the social contract only makes sense insofar as it protects the lives of its members, Rantoul claims that the burden of “positive proof” (443) lies with those who support capital punishment by virtue of a social contract theory. In his words, “Let there … be shown some reason for supposing that any sane man has of his accord bartered away his original right in his own existence” (442). According to Rantoul, such an argument presupposes a “preposterous sacrifice,” and he takes this point a step further by examining the question of society’s right to execute its condemned citizens from the perspective of Christian morality: “Not only has no man actually given up to society the right to put an end to his life,” he argues, “not only is no surrender of this right under a social compact ever to be implied, but no man can, under a social contract, or any other contract, give up this right to society, or to any constituent part of society, for this conclusive reason, that the right is not his to be conveyed” (443). That right, Rantoul claims, belongs only to God, the absolute sovereign who alone can take life since he gave it. Thus, by situating an analysis of the death penalty via the social contract within a Christian paradigm, Rantoul redefines the subject positions of individuals and society The Anti-Gallows Movement in Antebellum America 159 as a whole. If, on the one hand, no individual has the right to relinquish life and, on the other, society has no right to take it, then any social contract under which a death sentence is enacted “would involve the one party in the guilt of suicide, and the other in the guilt of murder” (433). 8 To bolster his argument for abolition, Rantoul cites the opening sentence of Massachusetts’ State Constitution, emphasizing its declared protections of “natural rights, and the blessings of life” (emphasis original 450). He then shows, on the one hand, that the “celebrated instrument” in no way implies that individuals “surrender” this right and, on the other, that the state possesses no right “to take away any natural right of an individual, much less the last and dearest, or to debar him … from life itself.” Rantoul supports this point by referencing Federal law and citing the “first article of the declaration of rights” which protects a citizen’s “liberties” and “those natural, essential, and unalienable rights which are common to all mankind” (450). This reference to the Declaration of Rights is followed in turn by a direct invocation of the U.S. Constitution and its protections of civil liberties. The Bill of Rights, Rantoul argues, is constructed around protecting a citizen’s “unalienable right of enjoying and defending life.” That “right,” he acknowledges, “may be abridged, by the iron rule of stern necessity, when it comes in direct conflict with the same right in another, but, according to our Constitution, it can never be alienated. Let it not be said our Constitution does not forbid capital punishment; for neither does it, by that name, forbid slavery, or the whipping-post, or the pillory, or mutilation, or torture, yet all these are confessedly contrary to the spirit of the Constitution” (450). Claims of capital punishment as barbaric and as a remnant of despotic regimes of bygone eras were common enough in the nineteenth century; but, as death-penalty critic Hugo Adam Bedau suggests, Rantoul was perhaps the only abolitionist prior to the mid-twentieth century to argue against capital punishment on the grounds that it was inconsistent with the Constitution’s Bill of Rights (v). In his Report, this argument becomes overt when Rantoul goes on to associate the death penalty with the Eighth Amendment and its prohibition of cruel and unusual punishment: “The whipping-post and the pillory survived, for a period, the constitutional prohibition of cruel and unusual punishments. They have disappeared, and the gallows, which is more unusual than either of those barbarities had been, and infinitely more cruel and revolting, must soon follow in their train” (451). In turning from Rantoul to the proliferation of anti-gallows arguments in the 1840s, we will 8 Rantoul’s Christian argument was popularized by Charles Spear in Essays on the Punishment of Death (1844), a study that, by May 1845, had sold over 5,000 copies and by 1846 had gone through seven editions (Masur 136-37). 160 J OHN C YRIL B ARTON find a range of attacks upon the institution of capital punishment deployed by reformers; none of them, however, will explicitly invoke the Bill of Rights as Rantoul does. IV. If Robert Rantoul, Jr. was the leading opponent of the gallows in the 1830s, John L. O’Sullivan was the foremost advocate for abolition in the 1840s. Like Rantoul, O’Sullivan was trained as a lawyer and deeply committed to the Democratic party; however, he came to politics as a young newspaper and periodical editor. In 1840, O’Sullivan ran for a seat in the New York State Assembly. He won, and the campaign that secured him the election was largely based on the reformation of capital punishment. During his two years in office, O’Sullivan dedicated most of his time to effecting that reform. In 1841, he was appointed chair of a special committee to consider the expediency of abolishing the death penalty in New York. That committee exhaustively researched the subject and presented an abolition bill that, after considerable delay in the House and negative publicity by opponents, was defeated by a slim margin. O’Sullivan was convinced that the measure would pass the following year, but it failed by the same margin. O’Sullivan’s labor, however, was not wasted. It resulted in the production of his Report in Favor of The Abolition of the Punishment of Death by Law, an eloquent compendium of, in his words, “the leading arguments and evidences, derived from revelation, reason, and experience, which are necessarily involved in the general discussion of the subject of Capital Punishment” (Report 5). First printed in great number for presentation before the New York state legislature on April 14, 1841, O’Sullivan’s Report was reprinted as a book for popular consumption later that year. By October, “being called for by public demand” (4), a second edition of O’Sullivan’s book was published, and for the next twenty years it served as the standard reference in debates about the legitimacy and place of capital punishment in the United States (Sampson 101). The strength of O’Sullivan’s Report lies in its popular appeal as well as its reformulation and polishing of powerful arguments developed earlier by Beccaria, Rush, Livingston, Rantoul, and others. For instance, O’Sullivan closely attends to “scriptural evidence” to argue that the Bible condemns rather than supports capital punishment. He also points to historical precedent, showing not only that ancient Rome and Egypt experimented with periods of abolition but that abolition in contemporary Tuscany, Belgium, and even despotic Russia (under Elizabeth and the Catherine II) has led to decreased rates of crime and murder. Turning to the United States, The Anti-Gallows Movement in Antebellum America 161 O’Sullivan claims that the drastic reduction in the number of capital statutes over recent years and the increasing reluctance of juries to convict in capital cases reflect evolving standards of morality. Such evidence, he reasons, suggests that changing the maximum punishment from death to life imprisonment would result in lower crime rates and higher rates of conviction. In addition to these arguments, O’Sullivan calls attention to the horrors of executing the innocent, emphasizing the fact that once a death sentence is carried out there is no way to undo it in the event of error. In this way, he synthesizes disparate arguments in favor of abolition - and he does so through a range of approaches. Part statistical analysis and use of utilitarian and republican arguments against the death penalty, and partly moral anecdote and exegesis of Biblical authority on capital punishment, the Report makes appeals to sympathy, reason, and historical example in its broadscale assault upon the gallows in America. While deploying a range of arguments and rhetorical strategies, the Report is centered around the question of deterrence and the psychological impact of executions, a mainstay in debates about the death penalty and an argument developed at length by Edward Livingston, from whose work O’Sullivan draws heavily. The punishment by death for murder, Livingston had argued in his introduction to the Codes of Crimes and Punishment, not only “fails in any repressive effect, but … promotes the crime” (201). Livingston made this point after citing a recent incident published in a Pennsylvania newspaper in which a man committed murder on the way back from witnessing a public execution. This example, Livingston claimed, illustrates the proclivity of the human mind “to imitate that which has been strongly impressed on the senses,” and it led him to conclude: “The lawgiver, therefore, should mark this … propensity of human nature; and beware how he repeats, in his punishments, the very acts he wishes to repress, and makes them examples to follow rather than to avoid” (201-02). Reformulating and quoting Livingston at length (he even cites the example from the Pennsylvania paper), O’Sullivan lays out his argument about the death penalty’s failure as a deterrent and its adverse psychological affects roughly halfway through his Report. In doing so, one gets the sense that he has built up to this argument as he singles it out as the “strongest objection against the punishment of death” (84) and spends considerable time working through all its implications. In fact, he condenses the multiple dimensions of the argument into a pithy statement that he italicizes and repeats verbatim some fifteen pages later: “the executioner is the indirect cause of more murders and more deaths than he ever punishes or avenges” (85, 98). This statement sums up a central objection to the gallows in a memorable trope. It turns the very instrument intended to deter capital crimes into an “indirect cause” of them. As the language of the trope indicates, O’Sullivan 162 J OHN C YRIL B ARTON is more interested in the executioner than the gallows itself. Highlighting the role of the executioner calls attention to human agency; it places responsibility for the death penalty as a failed deterrent not only upon the actual hangman who stands upon the scaffold and executes the law but, more importantly, upon anyone who stands in support of the gallows in the face of the surging reform movement. O’Sullivan’s figure of the executioner as “indirect cause” is further complicated by the fact that, in many states in the early 1840s, the death penalty was no longer enacted publicly, as it was at the time when Livingston was writing his reports. But just because executions were no longer performed publicly in states such as New York, to whose legislature O’Sullivan’s Report is addressed, by no means made them “private.” For one thing, the common designation of “private” is a misnomer, because executions were still carried out in the name of “the people” and through civil or public authority. There is, however, even more at stake here. As executions moved from the public square to the enclosed space of the jail-yard, where fewer spectators could see them, print media became the central means by which executions were made public. To be sure, capital crimes and capital punishment had been newsworthy and represented or documented - in some form - since colonial times. Advances in print technology and the emergence of the penny press in the 1830s, however, contributed substantially to the proliferation of “gallows literature”: that is, representations of, or responses to, the cultural ritual of capital punishment in newspapers, magazines, trial reports and pamphlets, short stories, poems, and novels. Thus, precisely when the actual spectacle of lawful executions moved behind prison walls and became less and less visible, the gallows as trope and discursive topic of debate became more and more visible, thereby rendering executions and the controversy surrounding them more public than ever. At the center of these debates was The United States Magazine and Democratic Review, a leading antebellum journal founded and edited by O’Sullivan. In the 1840s, the Democratic Review published dozens of articles advocating the abolition of the death penalty, including feature essays devoted to the subject, reviews of important books on the topic, proceedings from anti-gallows conventions, and reports from legislative committees. O’Sullivan wrote some of these articles himself, such as “Capital Punishment” (April 1843), an extended reflection upon the cultural wars surrounding the death penalty, and “The Anti-Gallows Movement” (April 1844). The latter took shape as an “Address to the Public” (430), which called to action reform-minded Americans through the announcement of Anti-Draco, a new “monthly” to be published by The American Society for the Collection and Diffusion of Information in Relation to the Punishment The Anti-Gallows Movement in Antebellum America 163 of Death. 9 O’Sullivan was the corresponding secretary of the society; its president was the famous poet William Cullen Bryant; and other committee members included Horace Greely, a well-known lecturer and the founding editor of both The New Yorker and the New York Tribune, and William H. Channing, a Unitarian clergyman with strong ties to Emerson and the Transcendental movement. O’Sullivan’s journalism in the Democratic Review did much to galvanize public opinion about the death penalty. Perhaps nothing was more stimulating than “The Gallows and the Gospel: An Appeal to Clergymen Opposing Themselves to the Abolition of the One, in the Name of the Other,” the lead article in the journal’s March 1843 issue. During the antebellum period, abolitionists and retentionists alike relied heavily on biblical authority and Christian morality; and we can get a clear idea about how O’Sullivan appealed both to the Bible and Christianity through a comparative analysis of “The Gallows and the Gospel” and the scriptural arguments he developed earlier in his 1841 Report to the New York State Legislature. Framed as “An Appeal,” “The Gallows and the Gospel” begins by attacking the position of clergymen who, in face of the growing reform movement, have recently come out in defense of the death penalty. “Some of you,” O’Sullivan writes, “appear to have felt especially called upon to cast yourselves in the path of this advancing movement of opinion; to have taken the institution in question under your particular professional patronage and protection, and marshalling yourselves in organized array, as it were, around the foot of the Scaffold, have seemed ambitious to assume the function of the very Body-Guard of the Hangman” (227). As his language indicates, O’Sullivan envisions the debates surrounding capital punishment as a virtual war: on one side, reformers such as himself firing salvos at the gallows; on the other, retentionist clergymen “marshalling” themselves around the scaffold to serve as the Hangman’s “Body-Guard.” Such imagery calls to mind O’Sullivan’s memorable trope from the Report (i.e. “the executioner is the indirect cause of more murders and more deaths than he ever punishes or avenges” [O’Sullivan 85, 98]), thus implicating these clergymen in a process which, from the reformers’ perspective, produces rather than deters the crime of murder. Although ostensibly addressed to clergy opposed to abolition, O’Sullivan’s main audience turns out to be “the large number of the undecided and indifferent, who may never have had a combined opportunity and disposition” to interrogate the death penalty through “Biblical criticism” and applied Christian ethics (228). He seeks to 9 The Society soon changed its name to the New York State Society for the Abolition of Capital Punishment. The Anti-Draco, edited by O’Sullivan, was not published beyond its maiden issue of March 1844. 164 J OHN C YRIL B ARTON provide that opportunity by presenting “an outline of the Scriptural Argument by which we refute the common objections opposed to us from the Bible, and on which we claim the right to invoke their favor and co-operation with these efforts” (228). The argument O’Sullivan outlines in “The Gallows and the Gospel” is essentially an elaboration of the position he asserts at the outset of his Report. That position holds that, contrary to popular opinion, the Bible condemns rather than sanctions the death penalty. For instance, O’Sullivan claims that “the Bible contains no injunction nor sanction of the practice of capital punishment; but … the very reverse is most unequivocally impressed upon its pages, in their outset as in their close” (29). Rehearsing a familiar argument of Benjamin Rush and others, he reads Genesis 9: 6 (“Whoso sheddeth the blood of man, by man his blood shall be shed”) as prophecy rather than injunction. That is, the verse serves as a prediction or a denunciatory warning of a possible future event, much like the proverb derived from Matthew 26: 52, “He who lives by the sword dies by the sword,” or the one from Revelations 13: 10, “He that leadeth into captivity shall go into captivity.” It does not function as a universal commandment, such as “Thou Shall Not Kill” (Exodus 20: 13). As one might expect, the sixth commandment plays a crucial role in O’Sullivan’s scriptural argument. That commandment stands, he says, “naked and sacred” in its “simplicity” and is “absolute, unequivocal, universal” (Report 22). It cannot be transformed into “Thou shall not commit murder - but mayest kill him who has committed murder” (22). To be sure, it contains “no proviso - no exception - no qualification” (22). O’Sullivan also finds evidence against capital punishment in the story of Cain and Abel, which he identifies in “The Gallows and the Gospel” as the “lesson set by the example of God himself in the case of the first murder” (233). In the Report, O’Sullivan had pushed this reading further: “Yet was death the sentence of Cain? ,” he asks rhetorically. “On the contrary, his doom is written that he should be ‘a fugitive and a vagabond in the earth,’ the earth ceasing to yield her strength to his tillage and a mark being set on him, ‘lest any finding him should kill him’” (Report 28). What is more, O’Sullivan points out, God reiterated the proscription against taking Cain’s life with these words: “Whoso slayeth Cain, vengeance shall be taken on him seven-fold …” (28). In “The Gallows and the Gospel,” O’Sullivan adds to and complicates his biblical criticism through a linguistic analysis of Genesis 9: 6. He begins this line of argument by situating the verse within its supportive context, reminding readers that it should not be interpreted “in the absolute imperative sense for which our opponents contend - and made universal and perpetual, as they interpret its intended application” (“Gallows” 299). He then attends to the linguistic construction of the verse in its original Hebrew and The Anti-Gallows Movement in Antebellum America 165 provides a literal translation of it: “Shedding blood of man in man his (or its) blood will be shed” (299). To produce the common English translation of the verse, O’Sullivan argues, three assumptions must be made - none of them “necessarily resid[ing] anywhere in the terms of the Hebrew itself” (299). Those assumptions are: 1. the participle shedding is not only made personal and masculine, but it is confined to the personal and masculine sense, in the words, “whoso sheddeth; ” 2. The verb which in the original is the simple future tense, so as to be rendered in Latin effundetur and in English will be shed, must receive an imperative sense so as to be read, shall be shed; and 3. The expression which is literally in man in the original, must be made to denote agency, by selecting and assigning to the preposition employed one only of its numerous meanings, so as to be converted into “by man.” It is only after the performance of this triple process that the original Hebrew … becomes translated, or rather transformed, into the common English reading of our Bibles. (229) Of these three assumptions, O’Sullivan focuses on the second. The third is important because it denotes human agency and limits the traditional application of the verse, while in the original Hebrew the object pronoun (him/ its) could be granting permission to put to death beasts - not men - who kill men. But the second assumption goes to the heart of the matter: should Genesis 9.6 be read as an injunction and thereby given “imperative force” (299); or should it be interpreted as simply declarative of some “denunciatory future”? (230) By rigorously analyzing the mode and mood of the Hebrew verb shophaich (i.e. shedding/ will shed/ may shed), O’Sullivan attends to what we would call today the performative force of the biblical verse in question. To do so, however, is not merely to engage in an academic exercise in splitting theoretical hairs. It goes to the heart of the matter by questioning the Biblical authority upon which many prominent defenders of the gallows have staked their claims. In a powerful analogy that challenges the performative force often granted to Genesis 9.6, O’Sullivan links his Biblical criticism to the republican argument against the death penalty: “To give it [shophaich] the imperative sense,” he claims, “and then to claim our obedience as a command is not only to beg the whole question, but even impiously to clothe in the garb of a divine authority that which is the mere imposture of human assumption. In the present application of it, it may not unfairly be compared to an act of forging a sovereign’s signet to a death warrant” (230). By likening traditional interpretations of Genesis 9.6 as divine injunction to “the forging of a sovereign’s signet to the death warrant,” O’Sullivan goes so far as to imply perjury, charging those who continue to insist upon the verse as a commandment of “impiously” dressing up a mere “human assumption” in the garb of “divine authority.” In doing so, he broaches the complicated ques- 166 J OHN C YRIL B ARTON tion of civil liberties and capital punishment - a question he, like Livingston and especially Rantoul before him, takes up in his Report, but one that lies beyond the scope of his analysis in “The Gallows and the Gospel.” In his spirited assault upon traditional interpretations of Genesis 9.6, O’Sullivan certainly had in mind Reverend George Barrell Cheever, a Presbyterian minister and the foremost defender of the gallows who had recently authored Punishment by Death: Its Authority and Expediency (1842). In that book, the most famous defense of capital punishment in American history, Cheever unequivocally champions the gallows, building his argument primarily around an appeal to divine authority by virtue of Genesis 9.6. But it was not just the recent publication of Punishment by Death that would have prompted O’Sullivan to think of Cheever. A month before “The Gallows and the Gospel” was published, O’Sullivan had publicly debated Cheever in New York City on the question, “Ought Capital Punishment to Be Abolished? ” 10 The debates - which were held at the Broadway Tabernacle and took place on January 27, February 3, and February 17 - were well attended and generated much press and further coverage for some time to come. In fact, we get a literary rendition of the O’Sullivan-Cheever debate from the pen of Nathaniel Hawthorne, a close friend of O’Sullivan as well as a contributor of over twenty works to the Democratic Review, including “Egotism, or the Bosom Serpent,” which was published alongside of “The Gallows and the Gospel” in the March 1843 issue of the magazine. 11 The allusion to the O’Sullivan-Cheever debate occurs in a pivotal moment in “Earth’s Holocaust,” Hawthorne’s 1844 tale which recounts its nar- 10 In his public debate with O’Sullivan at the Tabernacle, Cheever built his defense of the gallows around divine authority, identifying Genesis 9.6 as the “citadel of the argument, commanding and sweeping the whole subject” (Capital Punishment 39). In the introduction to the Second Part of Punishment by Death, Cheever had first made this argument in light of opposing interpretations of Genesis 9.6 as prediction rather than command: “It is argued by our opponents that the statute in Genesis is simply and merely permissive, but not an injunction. But it follows, according to this construction, that God gives to any and every man the permission to kill the murderer” (120). For discussions of the O’Sullivan-Cheever debate, see Masur, Sampson, and Mackey (Hanging). 11 Between October 1837 and April 1845, Hawthorne contributed twenty-three works to the Democratic Review (Hawthorne Selected Letters 139). In addition to “Egotism, or the Bosom Serpent,” Hawthorne’s “The Artist of the Beautiful” was published along with “Capital Punishment: The Proceeding of the Recent Convention of the Friends of the Abolition of the Punishment of Death” in the Democratic Review’s June 1844 issue. In August 1846, moreover, an article Hawthorne edited, “Papers of an Old Dartmoor Prisoner,” was published alongside “An Essay on the Ground and Reason of Punishment,” a featured work which attacked the death penalty and advocated for its abolition. The Anti-Gallows Movement in Antebellum America 167 rator’s journey to the American Midwest to witness the immolation of all the world’s “worn-out trumpery,” its “condemned rubbish” (Mosses 381). Midway through the tale, following the successive destruction of signs of rank and social prestige, liquors and tea, articles of high fashions, and instruments of war, the body of reformers responsible for maintaining the great bonfire - this “Earth’s Holocaust” - turns its attention to instruments of capital punishment: “old implements of cruelty - those horrible monsters of mechanism - those inventions which it seemed to demand something worse than man’s natural heart to contrive, and which had lurked in the dusky nooks of ancient prisons, the subject of terror-stricken legends” (392). Halters, headsmen’s axes, and the guillotine are among the instruments of death thrown into the fire, but the imminent destruction of the gallows generates the most interest from the crowd, even sparking a debate between two men likely drawn from Cheever and O’Sullivan respectively: “Stay, my brethren! ,” cries a defender of capital punishment as the gallows is about to be thrust into the fire. “You are misled by a false philanthropy! - you know not what you do. The gallows is a heaven-oriented instrument! Bear it back, then, reverently, and set it up in its old place; else the world will fall to speedy ruin and desolation! ” (393) In response to these assertions, “a leader in the reform” commands his brethren: “Onward, onward! … Into the flames with the accursed instrument of man’s bloody policy! How can human law inculcate benevolence and love, while it persists in setting up the gallows as its chief symbol! One heave more, good friends, and the world will be redeemed from its greatest error! ” (393). The gallows is finally pushed into the fire, and this act appears to be a good thing, as Hawthorne’s narrator had moments earlier applauded the destruction of halters, axes, and the guillotine, commenting that their immolation in the fire “was sufficient to convince mankind of the long and deadly error of human law” (392). Yet one cannot say for certain that this radical reform is a good thing, since the tale slips unmistakably into parody as marriage certificates, written constitutions of all kinds, works of literature, and even the Bible later become fuel to feed the reformers’ fire. While it might be a stretch to call “Earth’s Holocaust” abolitionist in orientation, one could say that about Hawthorne’s “The New Adam and Eve,” a story first published just one month before O’Sullivan’s “The Gallows and the Gospel” in the February 1843 issue of the Democratic Review. In that story, Hawthorne imagines the return of the world’s primogenitors after the “Day of Doom has burst upon the globe, and swept away the whole race of men” (Mosses 247). Roughly midway through the tale, the “New” Adam and Eve are depicted as they enter a prison and wander through its bleak corridors and narrow cells. The novelty of Adam and Eve’s experience provides Hawthorne’s narrator with the opportunity to comment generally 168 J OHN C YRIL B ARTON on the sad state of crime and punishment with which the recently deceased world was plagued, but nothing within the prison provokes strong reaction from either Adam and Eve or the narrator. All that changes, however, when, “passing from the interior of the prison into the space within its outward wall, Adam pauses beneath a structure of the simplest contrivance, yet altogether unaccountable to him” (255). This structure, we are told, “consists merely of two upright posts, supporting a transverse beam, from which dangles a cord” (255). The menacing object that Adam finds “altogether unaccountable” is, of course, the gallows; and its foreboding presence elicits the following exchange between Adam and Eve: “Eve, Eve! ” cries Adam, shuddering with a nameless horror. “What can this thing be? ” “I know not,” answers Eve; “but, Adam, my heart is sick! There seems to be no more sky, - no more sunshine! ” (255) Without knowledge of the world to which the gallows belongs, neither Adam nor Eve can place “this thing” within their interpretive frame. Nonetheless, intuition into the instrument’s cruel design sends a “nameless horror” through Adam and affects Eve with heartache and a momentary sense of despair. Adam and Eve’s response prompts the narrator to justify the couple’s reaction: Well might Adam shudder and poor Eve be sick at heart; for this mysterious object was the type of mankind’s whole system, in regard to the great difficulties which God had given to be solved - a system of fear and vengeance, never successful, yet followed to the last. Here, on the morning when the final summons came, a criminal - one criminal, where none were guiltless - had died upon the gallows. (255) This authorial intrusion serves not only to endorse Adam and Eve’s moral response but also to raise questions about the institution of capital punishment, “a system,” the narrator asserts, “of fear and vengeance, never successful, yet followed to the last.” Such a description calls attention to negative affects of the death penalty (i.e. “fear” and “vengeance”), and these affects are given dramatic expression through the example of that “final summons” when “a criminal - one criminal, where none were guiltless - had died upon the gallows.” By shifting mid-sentence from the indefinite, “a criminal,” to the definite, “one criminal,” the narrator at once suggests the finality of all executions and the singularity of this one, while the emphasis upon the universal guilt of humanity undercuts the position of moral superiority from which a society typically justifies the death penalty. In addition to Hawthorne, other prominent literary figures of the day wrote anti-gallows work for the Democratic Review. Four months before The Anti-Gallows Movement in Antebellum America 169 the publication of “The New Adam and Eve,” John Greenleaf Whittier published “Lines, Written on Reading Several Pamphlets Published by Clergymen Against the Abolition of the Gallows” in the October 1842 issue of the journal. Through an appeal to sympathy and compassion, and by situating the gallows at the tail end of a history of torture and cruelty inflicted by men in the name of God, Whittier indicts the practice of capital punishment in contemporary America, asking those of “milder faith” near the poem’s end: “Will ye become the Druids of our time? / Set up your scaffold-alters in our land, / And, consecrators of Law’s darkest crime, / Urge to its loathsome work the Hangman’s hand? ” (“Lines” 375). Besides writing this poem in reaction to clergymen defending capital punishment, Whittier’s anti-gallows poetry (he also published the anti-gallows poem, “The Human Sacrifice,” in 1843) was motivated by the great British poet William Wordsworth, who had recently written a series of sonnets in support of the death penalty. In fact, in the March 1842 issue of the Democratic Review, Whittier attacked the renowned poet’s position in a featured essay titled “Wordsworth’s Sonnets on the Punishment of Death.” Whittier begins the essay by expressing sad regret that the “great English master” has written “in justification and support of the practice of Capital Punishment,” a practice which Whittier calls “one of the most hideous and horrible barbarisms yet lingering to disgrace the statute-books of modern civilization” (“Wordsworth’s Sonnets” 272). Whittier acknowledges that, because of “the strongly conservative cast of his mind and political opinions,” one could not expect Wordsworth to come out in favor of abolition. “Yet,” he continues, “to behold him take to the sacred lyre, and attune its chords to the harsh creaking of the scaffold and the clanking of the victim’s chains, seems almost a profanation and a sacrilege - as though a harp of heaven were transported from its proper sphere and its congenial themes, to be struck by some impious hand to the foul and hideous harmonies of hell” (273). Following these introductory remarks, Whittier cites in full Wordsworth’s fourteen “Sonnets on the Punishment of Death” and then offers a stanza-by-stanza analysis of them. In doing so, he does not focus on the tone and meter of Wordsworth’s verse, as one might expect him to do given his metaphor of the “sacred lyre” and his description of the “harsh creaking of the scaffold and the clanking of the victim’s chains” to which, he claims, Wordsworth’s poems are attuned. Rather, he attends primarily to the assumptions informing Wordsworth’s position and to the arguments his poetry produces, exposing the false premises he finds in the sonnets and providing counterarguments to them. For instance, when Wordsworth’s speaker at one point celebrates the gallows as an instrument of deterrence, Whittier references empirical evidence suggesting the contrary and 170 J OHN C YRIL B ARTON evokes the memorable image of the executioner as “indirect cause” which O’Sullivan first coined in his Report: “that the executioner has been himself the very cause of a far greater number [of murders] than he has ever punished or avenged” (279). Near the end of the essay, however, Whittier employs a different strategy by citing in full an anti-gallows poem by Lydia Huntley Sigourney. By quoting Sigourney’s “The Execution” and by later writing his own anti-gallows poems, Whittier attempts to displace Wordsworth’s “Sonnets” with memorable imagery and poetic language that argue for abolition. Whittier was not the only famous poet to publish an anti-gallows essay in the Democratic Review. In November 1845 Walt Whitman published “A Dialogue,” an imaginative essay that stages a conversation between a condemned murderer and society on the eve of the condemned’s scheduled execution. An analysis of Whitman’s essay returns us to and complicates a central argument of my essay: that the high stakes and sharply delineated contours of capital punishment dramatize the confrontation between the citizen-subject and sovereign authority in its starkest terms. Like Hawthorne’s “The New Adam and Eve,” Whitman’s “A Dialogue” is framed as a parable. It begins by posing the following question: “What would be thought of a man who, having an ill humor in his blood, should strive to cure himself by only cutting off the festers, the outward signs of it, as they appeared upon the surface? ” (360) Starting off in this way enables Whitman to foreground questions about social complicity and responsibility for criminal acts; the “man” represents society as a whole, whereas the “festers” signify criminals who are, in turn, “outward signs” of a diseased social body. As Whitman explains: “Put criminals for festers and society for the diseased man, and you may get the spirit of that part of our laws which expects to abolish wrong-doing by sheer terror - by cutting off the wicked, and taking no heed of the causes of the wickedness” (360). Following this short preamble, Whitman proceeds with the dialogue, which takes shape as an exchange between “the imposing majesty of the people speaking on the one side, a pallid, shivering convict on the other” (360). The convict initiates the discussion by admitting to have committed a “wrong … in an evil hour” when “a kind of frenzy came over me, and I struck my neighbor a heavy blow, which killed him” (360). Summarizing the convict’s crime in this manner emphasizes murder as typically an act perpetrated in a heat of passion and committed by a person much different in mind and disposition than the one now awaiting execution. To the convict’s admission of guilt, society flatly responds: “you must be killed in return” (361). When the convict then asks, “Is there no plan by which I can benefit my fellow-creatures, even at the risk of my own life? ,” society again replies tersely in the negative: “None … you must be strangled - choked to death. The Anti-Gallows Movement in Antebellum America 171 If your passions are so ungovernable that people are in danger from them, we shall hang you” (361). To this response the condemned asks “Why? ,” suggesting that incarceration in a strong prison would protect society from him and that he would gladly work while in prison to defray the expense of housing him there. Once again, society gives its blunt response of “No,” adding this time that “we shall strangle you; your crime deserves it” (361), to which the “murderer” (as Whitman now refers to him) replies: “Have you, then, committed no crimes? ” (361) Putting society on the defensive enables Whitman’s murderer to implicate “the people” in the production of crime. The dialogue now shifts to a discussion of a variety of crimes that, in society’s words, have not “come within the clutches of any statute,” but nonetheless lead daily to the ruination and even death of many (361). This inadvertent admission of guilt provides the convict the opportunity not only to comment generally on social responsibility, thereby implicating society in the cause of crimes such as the one for which he himself is to be executed; it also enables Whitman to expose a double standard in a theory of justice which holds that an individual, when sinned against, should forgive, while society ought to withhold forgiveness and exact payment in kind for murder. When the convict argues this latter point and asks why should not the people, like the individual, be guided by the principle of forgiveness, society responds: “The case is different. … We are a community - you are but a single individual. You should forgive your enemies” (361). The condemned then poses a rhetorical question which he answers by way of analogy: “And are you not ashamed,” asks the culprit, “to forget that as a community which you expect me to remember as a man? When the town clock goes wrong, shall each little private watch be abased for failing to keep the true time? What are communities but congregated individuals? And if you, in the potential force of your high position, deliberatively set examples of retribution, how dare you look to me for self-denial, forgiveness, and the meekest and most difficult virtues? ” (361) The convict’s comparison of the “town clock” to “each little private watch” is telling. It suggests that the internal watches (or alarm clocks) of each private citizen are set according to the town clock which is set up high as a model. Therefore, when society sets the example of retribution when a murder is committed, how can the people expect an individual, when provoked or enraged, to act according to a different and higher standard? The convict reinforces this point by saying that he killed simply because his “blood was up” (361), even though he knew the lawful penalty for such a crime would be death. With society now squarely on the defensive, the convict mounts an assault upon the death penalty, deploying a series of questions which the 172 J OHN C YRIL B ARTON people cannot answer satisfactorily. Readers of the Democratic Review are thus left with a clear sense of the moral horrors and contradictions of a justice system that not only condemns lethal violence by using such violence itself, but also demands forgiveness from its private citizens for acts it deems unforgivable. Near the end of “A Dialogue,” the conversation takes an interesting turn when the issue of the death penalty’s spectacle of violence is broached. Both the convict and society agree that such a spectacle is “degrading and anti-humanizing” (362), and the people congratulate themselves on the passage of recent laws making executions in many states private. The convict, however, points out that executions are still public in many states and, more importantly, that so-called “private” executions are by no means private when “everybody reads newspapers, and every newspaper seeks for graphic accounts of these executions” so that “such things can never be private” (362). Continuing in this vain, the convict accuses newspapers and various print media in carrying out, as it were, “literary executions” (my phrase). Thus, he disabuses the people of the notion that executions have become private and less visible in society. In fact, the convict argues precisely the opposite point, using press coverage of political acts in Congress as a heuristic analogue: “What a small portion of your citizens are eye-witnesses of things done in Congress; yet they are surely not private, for not a word officially spoken in the Halls of the Capitol, but is through the press made as public as if every American’s ear were within hearing distance of the speaker’s mouth. The whole spectacle of these … executions is more faithfully seen, and more deliberately dwelt upon, through the printed narratives, than if people beheld it with their bodily eyes, and then no more. Print preserves it. It passes from hand to hand, and even boys and girls are imbued with its spirit and horrid essence. Your legislators have forbidden public executions; they must go farther. They must forbid the relation of them by tongue, letter, or picture; for your physical sight is not the only avenue through which the subtle virus will reach you. Nor is the effect lessened because it is more covert and more widely diffused. Rather, indeed, the reverse. As things are, the masses take it for granted that the system and its results are right.” (362-63) By advocating restrictions upon the press and its coverage of executions, Whitman’s convict pushes the argument forbidding the representation of lawful executions further than Whitman himself would take it. 12 After all, 12 In light of the convict’s argument, it is interesting to note that, for a short time in the nineteenth century, the state of New York did make it illegal for the press to represent or provide the details of an execution. As legal scholar Michael Madow explains: “In 1888, the New York legislature, having grown impatient with what it believed were sensationalistic news reports, made it a crime for any newspaper to publish the details of an execution. The New York press defied the ban and waged a vigorous and successful campaign for its repeal on behalf of ‘the people’s right to know’” (467). The Anti-Gallows Movement in Antebellum America 173 in publishing “A Dialogue” Whitman participates in the very discursive activity against which the convict speaks. And Whitman, the journalist, did go on to publish other such pieces, including a bitterly sarcastic article, “Hurrah for Hanging! ,” in the March 23 issue of the Brooklyn Daily Eagle (1846). That article, Whitman writes in the piece, was occasioned by “the butcher[ing] of five human beings last week in Cayuga co., in this state - as we have already published the dark and dreadful narrative” (Uncollected Poetry and Prose 108). He went on to conclude the Daily Eagle report by ironically urging readers to “let the law keep up with the murderer, and see who will get the victory at last” (109). Yet Whitman’s political agitation did not stop there. He also promoted the discussion of reports concerning capital punishment in the meetings and social activism of the Brooklyn Association for the Abolition of the Death Penalty, an organization Whitman co-founded in 1846. Nonetheless, the point Whitman’s sympathetic convict makes is an important one: the so-called “privatization” of lawful hangings in no way diminishes the psychological impact they may have upon society. Indeed, the proliferation of “printed narratives” (“A Dialogue” 34) of executions occurred in large part because the actual spectacle of lawful violence had moved behind prison walls and had therefore become much less visible. For this reason, and due to the unprecedented debates about capital punishment in the decades preceding the Civil War, one could follow the convict and say that executions in the 1840s and early 50s had never before been so public. V. More public than ever before, but today these debates are largely forgotten by critics of American literature. Yet a case can be made that the controversy surrounding the death penalty should be seen as a crucial part of the context for the flowering of the so-called “American Renaissance” in the early 1850s. Whitman, of course, was a crucial figure in that movement, and if, as David S. Reynolds has suggested, Whitman’s 1846 article “Hurrah for Hanging! ” was likely influenced by “Hurrah for the Gallows! ” (Quaker xxxi), a sardonic chapter lampooning capital punishment in George Lippard’s The Quaker City (1845), then the debates about capital punishment themselves lie “beneath the American Renaissance” and constitute some of the roots which lead to the invigoration of American literature at mid-century. In fact, these debates have left an indelible imprint on many works by classic American Renaissance writers. There is, for instance, the famous opening scene in Nathaniel Hawthorne’s The Scarlet Letter (1850), which 174 J OHN C YRIL B ARTON stages the scene of capital punishment, even though an execution itself does not occur. Drawing upon the dramaturgy of the death penalty, the scene begins with the image of “The Prison Door,” out of which Hester Prynne emerges like a “condemned criminal” coming “forth to his doom” (36). Readers are then told that the crowd gathered to witness Hester’s punishment “betokened nothing short of the anticipated execution of some noted culprit, on whom the sentence of a legal tribunal had but confirmed the verdict of public sentiment” (37). And just before the punishment commences, some of the spectators push their way forward as if to be “nearest to the scaffold at an execution” (38). Even the dialogue among these spectators concerns the place and purpose of capital punishment: “This woman has brought shame upon us all and ought to die,” a matronly woman declares. “Is there not law for it? Truly there is, both in the Scripture and the statute-book.” In response, a man from the crowd asks, “is there no virtue in woman, save what springs from a wholesome fear of the gallows? ” (39). Hester, of course, is not executed; neither she nor the crowd expects such a punishment to occur. Nonetheless, her presence upon the scaffold around which the community gathers plays off and becomes part of the cultural ritual of capital punishment that is dramatized in many novels and romances of the period, such as Lippard’s The Quaker City, Sylvester Judd’s Margaret: A Tale of the Real ands the Ideal (1845; 1851), James Fenimore Cooper’s The Ways of the Hour (1850), and William Gilmore Simms’ Beauchampe; or the Kentucky Tragedy (1842; 1856). Hawthorne certainly knew the writings of Rantoul as well as those of O’Sullivan. After all, Rantoul served as an attorney for the defense in Salem’s famous Joseph Knapp murder trial (1830), an important source Hawthorne drew upon when writing The House of the Seven Gables (1851). What is more, while an undergraduate at Bowdoin College, Hawthorne was an avid reader of John Neal, the author of Logan, whose execution scene and dialogue I began this essay by analyzing. 13 Yet the most overtly dramatic enactment of a death sentence in antebellum fiction occurs in a scene from White Jacket (1850), Herman Melville’s autobiographical novel of his tour aboard a U.S. frigate in 1843-44. That scene takes place in Chapter 70, “Monthly Muster Round the Capstan.” In it, White Jacket, Melville’s principled yet good-natured narrator, describes an event singular but hardly exceptional in the world of a man-of-war: the reading of the Articles of War, the U.S. Navy’s code of prohibitions and 13 In “P.’s Correspondence,” Hawthorne pays odd homage to Neal: “How slowly our literature grows up! Most of our writers of promise have come to untimely ends. There was that wild fellow, John Neal, who almost turned my boyish brain with his romances; he surely has long been dead, else he never could keep himself so quiet” (Mosses 426). For accounts of Neal’s influence on Hawthorne, see Reynolds and Lease. The Anti-Gallows Movement in Antebellum America 175 punishments. The scene dramatizes a subject’s direct confrontation with the death sentence as such, and for this reason it is worth citing at length. It begins by staging the solemnity of the monthly muster, “which is rendered even terrible,” White Jacket says, “by the reading of the Articles of War by the captain’s clerk before the assembled ship’s company, who, in testimony of their enforced reverence for the code, stand bareheaded till the last sentence is pronounced” (295). White Jacket then continues: To a mere amateur reader the quiet perusal of these Articles of War would be attended with some nervous emotions. Imagine, then, what my feelings must have been, when, with my hat deferentially in my hand, I stood before my lord and master, Captain Claret, and heard these Articles read as the law and gospel, the infallible, unappealable, dispensation and code, whereby I lived, and moved, and had my being on board of the United States Ship Neversink. Of some twenty offences - made penal - that a seaman may commit, and which are specified in this code, thirteen are punishable by death. “Shall suffer death! ” This was the burden of nearly every Article read by the captain’s clerk; for he seemed to have been instructed to omit the longer Articles, and only present those which were brief and to the point. “Shall suffer death! ” The repeated announcement falls on your ear like the intermitting discharge of artillery. After it has been repeated again and again, you listen to the reader as he deliberately begins a new paragraph; you hear him reciting the involved, but comprehensive and clear arrangement of the sentence, detailing all possible particulars of the offence described, and you breathlessly await, whether that clause also is going to be concluded by the discharge of the terrible minute-gun. When, lo! it again booms on your ear - shall suffer death! No reservations, no contingencies; not the remotest promise of pardon or reprieve; not a glimpse of commutation of the sentence; all hope and consolation is shut out - shall suffer death! (emphasis original 295-96) The passage begins with marked solemnity, as White Jacket notes how each sailor’s subjectivity is constituted through the Articles of War, a document “read as the law and gospel, the infallible, unappealable, dispensation and code, whereby I lived, and moved, and had my being on board of the United States Ship Neversink.” The passage also starts off matter-of-factly, stating the number of penal offenses under military law and specifying that thirteen of the twenty are “punishable by death.” It then shifts dramatically in tone and perspective as White Jacket cites the operative phrase of these thirteen statutes, “Shall suffer death! ,” and provides his subjective response to it. In doing so, he moves from the first-person, past tense to the second-person, present tense in order to put readers in the position of the sailors (the potentially condemned) upon whose ears the death sentence falls “like the intermitting discharge of artillery,” and to whom they (“you”) “listen to the reader as he deliberately begins a new paragraph,” which ends with the same terrible sentence, “shall suffer death! ” Within the scene, the “reader” (i.e. 176 J OHN C YRIL B ARTON captain’s clerk) plays the role of the executioner as his reading takes shape as a carefully delivered performance that maximizes fear and promotes terror. Indeed, White-Jacket tells us the reader seems even “to have been instructed to omit the longer Articles, and only present those which were brief and to the point.” Again, particularly to the point is the Articles’ operative phrase, “shall suffer death! ” Exclamatory and italicized throughout, the repeated phrase embodies the letter of the law and, within the context of the scene, functions as a sort of poetic refrain. In addition to influencing the works of Whitman, Hawthorne, and Melville, the debate over capital punishment also affected Henry David Thoreau. Holding a theory of individual rights and the state very close to Rantoul’s and using the motto of O’Sullivan’s Democratic Review to start his famous essay on civil disobedience, Thoreau made his own argument against hanging as a deterrent to crime in “A Plea for John Brown” (1859). In that speech, which was delivered on several occasions in the weeks following the raid upon Harper’s Ferry, Thoreau turned the imminent execution of John Brown into a call for continued and even violent disobedience to laws supporting slavery. He also deified Brown, transforming him into a martyr as well as an executioner of a higher law. Indeed, near the end of the plea, Thoreau went so far as to say: “Some eighteen hundred years ago Christ was crucified; this morning, perchance, Captain Brown was hung. These are two ends of a chain which is not without its links” (156). Considerable energy has been devoted - and rightly so - to revising our understanding of the American Renaissance in terms of the movement to abolish slavery. In this essay, I have tried to lay the groundwork for understanding the American Renaissance in terms of that “other” antebellum abolition movement, a movement still unfulfilled in a country that once was a worldwide leader in a campaign to keep the state from exercising the power to curtail the most important civil liberty of all - life. 14 I thank Ryan Davidson for timely research assistance and Martha Johnson- Olin for her careful proofreading. I am especially grateful to Brook Thomas for his comments and suggested revisions on the penultimate draft of this essay. 14 Alexis de Tocqueville provides an international perspective on the anti-gallows reform movement in the second volume of Democracy in America (1840): “There is no country where criminal justice is administered with more kindness than in the United States. Whereas the English seem to want to preserve carefully the bloody traces of the Middle Ages in their penal legislation, the Americans have almost made the death penalty disappear from their codes. North America is, I think, the sole region on earth where for fifty years the life of not a single citizen has been taken for political offenses” (538). The Anti-Gallows Movement in Antebellum America 177 Works Cited Banner, Stuart. The Death Penalty: An American History. Cambridge: Harvard UP, 2002. Beccaria, Cesare. On Crimes and Punishments. Ed. David Young. Indiana: Hackett Publishing Company, 1986. Bedau, Hugo Adam. Preface. Voices Against Death: American Opposition to Capital Punishment, 1787-1977. Ed. Philip English Mackey. New York: Burt Franklin, 1977. Cheever, George Barrell. Capital Punishment: The Argument of Rev. George B. Cheever, in Reply to J.L. O’Sullivan. New York: Saxton and Miles, 1843. —. Punishment by Death: Its Authority and Expediency. New York: John Wiley, 1842. Cooper, James Fenimore. The Ways of the Hour. Boston: Houghton, Mifflin and Co. 1880. Davis, David Brion. Homicide in American Fiction. Cornell: Cornell UP, 1957. —. “The Movement to Abolish Capital Punishment in America, 1787-1861.” The American Historical Review 63: 1 (1957): 23-46. Douglass, Frederick. “Capital Punishment is a Mockery of Justice.” The Frederick Douglass Papers. Vol. 3. Ed. John W. Blassingame. New Haven: Yale University Press, 1979. 242-48. Foucault, Michel. Discipline and Punish: The Birth of the Prison. Trans. Alan Sheridan. New York: Pantheon Books, 1977. Hawthorne, Nathaniel. The House of the Seven Gables. Columbus: Ohio State UP. —. Mosses From an Old Manse. Columbus: Ohio State UP, 1974. —. “P.’s Correspondence.” Mosses from an Old Manse. Vol. 2 of Hawthorne’s Works. Boston: Houghton, Mifflin, 1882. —. The Scarlet Letter and Other Writings. Ed. Leland S. Person. New York: W.W. Norton and Company, 2005. —. Selected Letters of Nathaniel Hawthorne. Ed. Joel Myerson. Columbus: Ohio State UP, 2002. Halttunen, Karen. Murder Most Foul: The Killer and the American Gothic Imagination. Cambridge: Harvard UP, 1998. Hamilton, Sonja. La Plume et le Couperet: Enjeux Politiques et Littéraires de la Peine de Mort Autour de 1830. Ph.D. diss, Johns Hopkins U, 2003. Judd, Sylvester. Margaret: A Tale of the Real and Ideal, Bight and Bloom. Revised Ed. Boston: Phillips, Sampson, 1851. Lease, Benjamin. That Wild Fellow John Neal and the American Literary Revolution. Chicago: U of Chicago Press, 1972. Livingston, Edward. The Complete Works of Edward Livingston on Criminal Jurisprudence. Vol. 1. Reprint Series in Criminology, Law Enforcement, and Social Problems. New Jersey, Patterson Smith, 1968. Lippard, George. The Empire City; or, New York by Night and Day. Freeport, N.Y.: Books for Libraries Press, 1969. —. The Quaker City; or the Monks of Monk Hall. Ed. David S. Reynolds. Amherst: U of Massachusetts Press, 1995. Longfellow, Henry Wadsworth. “The Ropewalk.” The Complete Poetical Works of Longfellow. Boston: Houghton, Mifflin and Company, 1893. Mackey, Philip English. Hanging in the Balance: The Anti-Capital Punishment Movement in New York State, 1776-1861. New York: Garland Publishing, 1982. Mackey, Philip English, Ed. Voices Against Death: American Opposition to Capital Punishment, 1787-1977. New York: Burt Franklin, 1977. 178 J OHN C YRIL B ARTON Masur, Louis P. Rites of Execution: Capital Punishment and the Transformation of American Culture. New York: Oxford UP, 1989. McFeely, William S. Frederick Douglass. New York: Norton, 1991. Madow, Michael. “Forbidden Spectacle: Executions, the Public and the Press in Nineteenth Century New York.” Buffalo Law Review 43 (Fall 1995): 462-562. Melville, Herman. White Jacket; or the World in a Man-of-War. New York: Oxford UP, 1990. Montesquieu, Baron de. The Spirit of Laws. New York: Prometheus Books, 2002. Neal, John. Logan: A Family History. 2 Vols. Philadelphia: H.C. Carey and I. Lea, 1822. —. Wandering Recollections of a Somewhat Busy Life: An Autobiography. Boston: Roberts Brothers, 1869. O’Sullivan, John L. “The Anti-Gallows Movement.” United States Magazine and Democratic Review 14 (April 1844): 429-431. —. “Capital Punishment.” United States Magazine and Democratic Review 12 (April 1843): 409-424. —. “The Gallows and the Gospel.” United States Magazine and Democratic Review 12 (March 1843): 227-236. —. Report in Favor of The Abolition of the Punishment of Death by Law. New York: Arno Press, 1974. Rantoul, Robert, Jr. Memoirs, Speeches and Writings of Robert Rantoul, Jr. Ed. Luther Hamilton. Boston: J.P. Jewett, 1854. Reynolds, David S. Beneath the American Renaissance: The Subversive Imagination in the Age of Emerson and Melville. New York: Knopf, 1988. Rush, Benjamin. Considerations on the Injustice and Impolicy of Punishing Murder by Death. Philadelphia: Carey, 1792. —. An Enquiry into the Effects of Public Punishments upon Criminals and Upon Society. Philadelphia: Joseph James, 1787. Sampson, Robert D. John L. O’Sullivan and His Times. Kent: Kent State UP, 2003. Simms, William Gilmore. Beauchampe; or the Kentucky Tragedy. Chicago: Donohue, Henneberry, 1890. Spear, Charles. Essays on the Punishment of Death. Boston: Spear, 1844. Spurlin, Paul. “Beccaria’s Essay on Crimes and Punishments in Eighteenth-Century America.” Studies on Voltaire and the Eighteenth Century 27 (1963): 1489-1504. Thoreau, Henry David. “A Plea for John Brown.” Political Writings. Ed. Nancy L. Rosenblum. Cambridge: Cambridge UP, 1996. Tocqueville, Alexis de. Democracy in America. Trans. Harvey C. Mansfield and Delba Winthrop. Chicago: U of Chicago P, 2000. Whitman, Water. “A Dialogue” United States Magazine and Democratic Review 17 (November 1845): 360-364. —. The Uncollected Poetry and Prose of Walt Whitman. Ed. Emory Holloway. Vol. 1. New York: Peter Smith, 1932. Whittier, John Greenleaf. Complete Poetical Works of John Greanleaf Whittier. Boston: Houghton, Mifflin and Co., 1881. —. “Lines, Written on Reading Several Pamphlets Published by Clergymen Against the Abolition of the Gallows.” The United States Magazine and Democratic Review 11 (October 1842): 374-375. —. “Wordsworth’s Sonnets on the Punishment of Death” The United States Magazine and Democratic Review 10 (March 1842): 272-288. L EN G OUGEON Emerson and the British: Challenging the Limits of Liberty In August of 1844, Ralph Waldo Emerson committed himself publicly to the abolition of slavery in America. In a major address titled “Emancipation of the Negroes in the British West Indies,” he celebrated the tenth anniversary of the abolition of slavery in the British Empire. Emerson was hopeful that a similar development would eventually occur in America. In his address, he presented a detailed history of the events that led to West Indian emancipation. As Emerson noted, Great Britain’s decision to abolish slavery throughout its vast empire had come about as the direct result of a persistent grass-roots movement led by Thomas Clarkson and supported in Parliament by William Wilberforce. 1 The British government at the time was technically a Constitutional Monarchy, but historical forces were moving it in the direction of representative democracy. The franchise had been expanded through the Reform Act of 1832 and efforts like the Chartist Movement (1838-1848) pushed for further reforms, including universal male suffrage. During this period, the Parliament was not oblivious to the will of the people. In his abolition address, which was informed in part by his reading of Clarkson’s History of the Rise, Progress and Accomplishment of the Abolition of the African Slave Trade (1808), Emerson recounts how the British populace “was roused to enthusiasm” by Clarkson’s campaign and the resulting debates in Parliament. As a result of these efforts, “three hundred thousand persons in Britain pledged themselves to abstain from all articles of island produce.” The result was that “the planters were obliged to give way” and a bill abolishing the slave trade was passed in 1807 (AW 13). Unfortunately, the suffering of slaves in the British Empire continued despite this measure. As Emerson goes on to note, “These outrages rekindled the flame of British indignation” and again, the common people spoke out. “Petitions poured into Parliament; a million persons signed their names to these” and in 1833 a bill providing for emancipation of slaves throughout the empire was debated and passed (AW 14). For Emerson, Clarkson’s campaign was further evidence of the irresistible progress of liberty in a democratic society. He believed that freedom 1 For Emerson’s historic 1844 speech, see Emerson’s Antislavery Writings, 7-38. For a discussion of the circumstances leading to Emerson’s commitment to the antislavery cause at this time, see Gougeon, “Emerson’s Antislavery Conversion.” 180 L EN G OUGEON is an innate human imperative. Therefore, in a state where citizens are able to express their wishes through their government, ever greater degrees of liberty will result. In his address, Emerson compared England and America. “[I]n the last few days that my attention has been occupied with this history [of British emancipation]” he noted, “I have not been able to read a page of it without the most painful comparisons. Whilst I have read of England, I have thought of New England. Whilst I have meditated in my solitary walks on the magnanimity of the English Bench and Senate, reaching out the benefit of the law to the most helpless citizen in her world-wide realm, I have found myself oppressed by other thoughts” (AW 23). Those “other thoughts” included the realization that America had yet to follow the magnanimous example of the mother country. While he expressed his belief, reinforced by the British example, that in a democracy, “What the masses of men wish done, will be done,” and that “government exists to defend the weak and the poor and the injured party” (AW 26, 28), so far that was not the case in America. The national government had failed to meet this primary obligation. The reason for this anomaly, as Emerson saw it, was that the representatives of the Free States allowed themselves to be cowed and intimidated by the more aggressive representatives of the Slave States. Additionally, the political clout of the Southerners had been enhanced over the years by the effects of the three-fifths clause of the Constitution. This provision allowed Southerners to include three-fifths of the slave population when calculating their representation in Congress. 2 The result of this “three-fifths compromise” over the decades following ratification of the Constitution was that Southern representatives came to office in larger numbers, promoting policies and laws that were actually dictated by a relatively small number of people. To many Northerners, the ostensibly democratic South was actually ruled by an oligarchy. Indeed, John Gorham Palfrey (a man for whom Emerson would actively campaign when he ran for Congress on the Free Soil ticket in 1851) made this very argument. Writing in the Boston Whig in 1846, Palfrey held that “the so-called free people, both of the free and of the slave States, amounting to some eighteen millions in number, are subjects of an oligarchy of about one hundred thousand owners of men. There are perhaps three hundred thousand slaveholders in the country,” he noted. “Allowing for minors and women, probably not far from one-third the number are voters, and they administer our 2 According to this provision, “Representatives … shall be apportioned among the Several States … according to their respective Numbers which shall be determined by adding the whole Number of free Persons … and … three fifths of all other Persons.” The “other Persons” were slaves (Article 1, Section 2). Emerson and the British: Challenging the Limits of Liberty 181 affairs.” 3 As a result of this influence, the Federal government had become, in the eyes of many Northerners, the instrument of Southern will. A compelling example of this influence came in 1845 when, despite the protests of abolitionists and many others in the Free States, Texas was annexed and added to the ranks of the Slave States, further enhancing their influence. War with Mexico soon followed. By 1847 it was clear that the inevitable American victory in the conflict would soon add yet more new territories, all potentially Slave States. The Federal government, in Emerson’s view, was dominated by a corrupt and tyrannical minority. As he noted in his journal, “The name of Washington city in the newspapers is every day of blacker shade. All the news from that quarter being of a sadder type, more malignant. It seems to be settled that no act of honor or benevolence or justice is to be expected from the American Government, but only this, that they will be as wicked as they dare” (JMN 10: 29). In response to his depression and anger at these developments, Emerson decided to get away for awhile. As he wrote in his journal, “In this emergency, one [friend] advises Europe, & especially England. If I followed my own advices … I should sooner go toward Canada. I should withdraw myself for a time from all domestic & accustomed relations & command an absolute leisure with books - for a time” (JMN 10: 29). As it turned out, his choice was England. Emerson departed on 5 October 1847 and would remain in England, lecturing, visiting with friends, and touring, until his return in July of 1848. While his purpose was to take his mind off of political affairs in America, the turmoil in England made that almost impossible. Demonstrations by the Chartists, and the various revolutions that swept the rest of Europe in 1848, especially that in France, would have a profound effect on his thinking about social reform and the future of American democracy. While in England, Emerson attended sessions of the House of Lords and the House of Commons, as well as meetings of the radical Chartists. The Chartist Movement was the world’s first independent movement for the rights of the working class. The group had been formed in 1838 and their “People’s Charter” called for six specific reforms: voting by ballot, universal male suffrage, annual Parliaments, equal electoral districts, no property qualifications for members of Parliament, and payment of members. During Emerson’s stay in England, the Chartists were bolstered by news of the social uprisings in other European countries where a variety of reforms were demanded, including greater representation of the working class in 3 Papers on the Slave Power: First Published in the Boston Whig, 1846, pamphlet in the Birney Anti-Slavery Collection, Eisenhower Library, Johns Hopkins University. For further information on the effects of the three-fifths clause see, Garry Wills, “Negro President”: Jefferson and the Slave Power (Houghton Mifflin, 2003). 182 L EN G OUGEON government. Emerson attended a Chartist gathering on 9 March 1848, called to celebrate recent events in France. During this volatile period, there were Chartist demonstrations in London almost every day. Emerson was moved by this agitation and felt that the scholars of the day should support the demand for greater liberty. He observed in his journal, “I fancied, when I heard that the times were anxious & political, that there is to be a Chartist revolution on Monday next, and an Irish revolution in the following week, that the right scholar would feel, - now was the hour to test his genius. His kingdom is at once over & under these perturbed regions. Let him produce its Charter now, & try whether it cannot win a hearing, & make felt its infinite superiority today, even today” (JMN 10: 310-11). Despite this initial enthusiasm, when the demonstrations came to little more than the breaking of shop windows and the stealing of goods, Emerson disapproved (Reynolds, Revolutions, 28). Perhaps drawn by the dramatic events taking place there, Emerson traveled to Paris in early May 1848. During his stay he visited the Louvre, listened to lectures at the Sorbonne, and attended plays. In addition to these more mundane pastimes, Emerson also observed meetings of the National Assembly and attended various radical gatherings at such places as the Free Trade Club and the Barbes Club. What he heard had a profound effect on his social consciousness (Reynolds, Revolutions, 33ff.). In a long letter to his wife, Lidian, Emerson described the excitement of the place, where he witnessed “streets full of bayonets, and the furious driving of the horses dragging cannon towards the National Assembly,” as an attempted coup d’etat failed to gain popular support. He also noted, though I have been to many places I find the clubs the most interesting - the men are in terrible earnest. The fire & fury of the people, when they are interrupted or thwarted, are inconceivable to New England. The costumes are formidable. All France is bearded like goats & lions, then most of Paris is in some kind of uniform red sash, red cap, blouse perhaps bound by red sash, brass helmet, & sword, and every body suppose to have a pistol in his pocket. But the deep sincerity of the speakers who are agitating social not political questions, and who are studying how to secure a fair share of bread to every man, and to get the God’s justice done through the land, is very good to hear. (L 4: 73-74) These French demonstrations for the rights of the workingman, especially those that involved the use of violent force in the pursuit of social justice, had a significant impact on Emerson. They gave him a new way of viewing the goals of liberal democracy and how they might best be reached. In his journal he notes, “I have been exaggerating the English merits all winter, & disparaging the French. Now I am correcting my judgment of both, & the French have risen very fast” (JMN 10: 327). When he returned to England, Emerson was clearly more sensitive to the enormous class disparity there, a Emerson and the British: Challenging the Limits of Liberty 183 sharp contrast to his New England environment where democracy ruled. In his journal he recorded the following: In England, every man is a castle. When I get into our first class cars on the Fitchburg Road, & see sweltering men in their shirt sleeves take their seats with some well drest men & women, & see the very little difference of level that is between them all, and then imagine the astonishment that would strike the polished inmates of English first class carriages, if such masters should enter & sit beside them, I see that it is not fit to tell Englishmen that America is like England… . England is the Paradise of the first class; it is essentially aristocratic… . In England, every man you meet is some man’s son; in America, he may be some man’s father. (JMN 10: 329). For the first time, it seems, Emerson’s eyes had been opened to the fact that the difference between liberty in Old England and liberty in New England was vast. This insight led him to look upon the Chartists and their movement with greater sympathy. He felt a new appreciation for their cause. He also became highly critical of the British literary class. For the most part, these elite intellectuals refused to support the lowly Chartists, despite the fact that they thought of themselves as progressive, liberal thinkers: The writers are bold & democratic. The moment revolution comes, are they Chartist & Montagnards? No, but they talk & sit with the rich, & sympathize with them. Should they go with the Chartist? Alas they cannot: These have such gross & bloody chiefs to mislead them, and are so full of hatred & murder, that the scholar recoils; - and joins the rich. That he should not do. He should accept as necessary the position of armed neutrality abhorring the crimes of the Chartist, yet more abhorring the oppression & hopeless selfishness of the rich, &, still writing the truth, say, the time will come then these poor enfans perdus of revolution will have instructed their party, if only by their fate, & wiser counsels will prevail, & the music & the dance of liberty will take me in also. Then I shall not have forfeited my right to speak & act for the Movement party. Shame to the fop of philosophy who suffers a little vulgarity of speech & of character to hide from him the true current of Tendency, & who abandons his true position of being priest & poet of those impious & unpoetic doers of God’s work. (JMN 10: 325-26) The increasingly personal tone of the latter part of this passage suggests that Emerson was very likely thinking of himself and his relationship with another group of unwashed reformers, namely, the American abolitionists whose cause he had embraced, with some reservations, in 1844. 4 When Emerson returned to America, he would take the example of the Chartists and the French radicals with him. 4 For more information about Emerson’s early reservations regarding abolitionism and its proponents see, Gougeon, Virtue’s Hero, 54-56. 184 L EN G OUGEON Upon returning home in July of 1848, Emerson resumed his role as lecturer - and social reformer - with renewed zeal and confidence. When called upon by William Lloyd Garrison (the nation’s most prominent antislavery activist) to speak once again at an abolitionist rally celebrating Emancipation in the British West Indies, he accepted. The gathering was held on 3 August 1849 in Worcester, Massachusetts, and an estimated five thousand abolition supporters attended (Gougeon, Virtue’s Hero, 135). Emerson’s mood was optimistic and his message upbeat. Undoubtedly buoyed by events in Europe the previous year, he felt that the spirit of liberty was on the march and that America, too, would soon feel its effects. “The force of history is one everywhere,” he told the crowd. “Revolutions, as we say, never move backwards.” He believed that the desire for liberty and justice was an irresistible force in the hearts of all men. He also realized that it is usually those at the bottom of the social ladder who are most sensitive to its demands. As Emerson well knew, American abolitionists, like the Chartists, were largely working-class people who were moved by a common desire to rectify a great moral wrong. The presence on this particular occasion of five thousand activists (undoubtedly the largest gathering that he had ever addressed to that point) must have reinforced his optimistic assumption that the movement was gaining momentum. “It should be praise enough for our friends who have carried forward this great work,” he told them, “friends to whom it seems to me always, the country is more and more indebted, that it is the glory of these preachers of freedom that they have strengthened the moral sense, that they have anticipated this triumph which I look upon as inevitable, and which it is not in man to retard” (AW 48, 49). Unfortunately, the optimism and enthusiasm that Emerson felt in August of 1849 would be short-lived. Barely a year passed before the U.S. Congress, once again bowing to the demands of Southern slave owners, passed the Fugitive Slave Law. It was one in a series of five legislative initiatives enacted into law at this time. They were designed to resolve the growing tensions between North and South that had arisen in the aftermath of the Mexican War. These tensions were exacerbated by the persistent agitation of the slavery issue in the North. Collectively, the measures came to be known as the “Compromise of 1850.” The Fugitive Slave Law was the most controversial by far. The law allowed Southern agents to enter Free States in order to seize fugitive slaves who had taken refuge there. In effect, the law reinstated an original Constitutional provision requiring that any “person held to Service or Labour in one State … escaping into another … shall be delivered up on Claim of the Party to whom such Service or Labour may be due” (Article 4, Section 2). This provision (couched in what Emerson called “lavender language” deliberately designed to avoid the use of the word “slave”) had been effectively nullified in the decades following ratification by popular Emerson and the British: Challenging the Limits of Liberty 185 resistance in the Free States. Additionally, many of these, including Massachusetts, had passed “Personal Liberty Laws” specifically designed to protect runaway slaves. These laws were enacted largely in response to a majority opinion of the U.S. Supreme Court rendered by Justice Joseph Story in a case known as Prigg v. PA (1842). In his opinion, Story declared that the return of slaves was a federal, not a state, responsibility, thus making it possible for the states to actually protect runaway slaves. One of the most important features of the 1850 Act, therefore, was to provide for federal officers and means to enforce the law. The 1793 Fugitive Slave Law, which was an expansion of the original Constitutional clause, had no such provision. The personal liberty laws passed by various free states would have had little effect without Story’s decision. The federal enforcement provisions of the 1850 Act undercut those personal liberty laws. 5 Emerson was well aware of this sad history. It seemed to him to be further evidence of the contraction of liberty in America under the oppression of the slave oligarchy. In his address, “The Fugitive Slave Law” (1854) he would note that “There was a fugitive slave law, but it had become, or was fast becoming, a dead letter; and, by the genius and laws of Massachusetts inoperative. The new Bill made it operative; required me to hunt slaves; and it found citizens in Massachusetts willing to act as judges and captors. Moreover, it disclosed the secret to the new times; that slavery was no longer mendicant, but was become aggressive and dangerous” (AW 80). Emerson was shocked and appalled by the passage of this law with the tacit co-operation of the representatives of the Free States, including Massachusetts’s own Senator Daniel Webster. It must have seemed to him that the democratic “moral force” that had propelled the evolution of reform up to this point had been effectively negated by the political power of the Slave States. In response, Emerson threw himself into a personal campaign of resistance. In his journal he wondered how such a “filthy enactment” could have been “made in the 19 th century, by people who could read & write.” Like other people of conscience in the North, he vowed; “I will not obey it, by God” (JMN 11: 412). In a letter to his abolitionist friends, published in The Liberator on 18 April 1851, Emerson openly advocated civil disobedience, demanding resistance to the law “in every manner, singly or socially, in private and in public, by voice and by pen - and, first of all, by substantial help and hospitality to the slave, and defending him against his hunters” (AW 51). Subsequently, despite the threat of fine, imprisonment, and possible violence, he and a number of Concord neighbors agreed to provide aid and shelter to any runaway slave who should appear at their doors (Richard- 5 I am indebted to Prof. Brook Thomas for bringing this important feature of the 1850 Fugitive Slave Law to my attention. 186 L EN G OUGEON son, 496). Emerson’s open defiance of the law and his personal commitment to protecting runaway slaves from their pursuers, indicate a significant evolutionary step in his approach to social reform. Physical resistance had now replaced moral suasion as the instrument of choice. His recent experience in London and Paris was undoubtedly a factor. Also, during this time he and other Transcendentalists were most certainly influenced by the example of Margaret Fuller. Fuller had been sent to Europe in 1846 as the foreign correspondent for Horace Greeley’s New York Tribune. She ended up in Italy at the beginning of the revolution there. Fuller soon fell in love with Marchese Ossoli, an Italian revolutionary, and joined the republican cause. She suffered through the June 1849 siege and bombardment of Rome by French armies sent there to restore the Pope to his secular throne (Fuller, 2). Not surprisingly, her dispatches to New York were filled with praise for the revolutionaries. In describing the scenes of violence and carnage wrought by the French attack, she notes in one dispatch that, “wounds and assaults only fire more the courage of [Rome’s] defenders. They feel the justice of their cause, and the peculiar iniquity of this aggression. In proportion as there seems little aid to be hoped from man they seem to claim it from God. The noblest sentiments are heard from every lip, and, thus far, their acts amply correspond.” The cry that Fuller heard from the Italian revolutionaries could not help but resonate in the hearts of those seeking justice for African-American slaves. “We want always one thing,” they cried, “we want liberty” (Fuller, 299), and they were willing to die for it. 6 Unfortunately, the revolution was eventually crushed and Fuller, along with her husband and their infant child, set about to return to the United States. Sadly, all three drowned when their ship wrecked in a storm off of Fire Island, N.Y., 19 July 1850. Her revolutionary example, however, would not be forgotten. In his many antislavery speeches, as well as other writings throughout the 1850s, a time of increasingly violent clashes between pro and antislavery factions, Emerson was frequently reminded of his experiences in England and the plight of the Chartists. 7 He came to associate the influence of British conservatism with American slavery. Thus, in his second address attacking the Fugitive Slave Law in 1854, Emerson alludes to Great Britain’s failure to support the various liberal revolutions of 1848. “The Anglo-Saxon race is proud and strong but selfish,” he asserts. “They believe only in Anglo- Saxons. Greece found it deaf, Poland found it so, Italy found it so, Hungry found is so. England goes for trade, not for liberty; goes against Greece, 6 For a detailed and insightful discussion of this issue see, Larry J. Reynolds, “Religious Violence: The Roman Republic and Margaret Fuller’s Revolutionary Example.” 7 The Chartist Movement ended with a failed demonstration in London in April of 1848. Emerson and the British: Challenging the Limits of Liberty 187 against Hungary; against Schleswig-Holstein: against the French Republic whilst it was yet a republic.” In Emerson’s view, a similar moral apathy and narrow self-interest infects the conservative property class in America, especially in the South. “And the like torpor exists here,” he notes, “throughout the active classes on the subject of domestic slavery and its appalling aggressions” (AW 86). The following year, in his “Lecture on Slavery,” Emerson again attacked the “Party of Property” in America for resisting “every progressive step.” They “do not wish to touch the Constitution. They wish their age should be absolutely like the last one.” Like their counterparts in England where they find their model, this conservative American aristocracy is wedded to the preservation of their own comfort and privilege. By contrast, the progressives insist that “Democracy stand[s] really for the good of the many… of the poor… for the elevation of entire humanity” and most of all for “relieving this country of the pest of slavery” (AW 95). Throughout the address, Emerson argues that, “the theory of our government is Liberty.” Therefore, the goal of American democracy should always be to insure “to each man the largest liberty compatible with the liberty of every other man… . That is the meaning of our national pride.” He further advises that in America, “No citizen will go wrong who on every question leans to the side of general liberty.” Obviously, this principle is absolutely antithetical to the gross abomination of human slavery. Significantly, Emerson came to realize at this time that in order to accomplish reform in a democracy, the masses must be engaged. Hence, despite his previous insistence on the importance of selfreliance, he now asserts “It is so delicious to act with great masses to great aims. For instance the summary or gradual abolition of slavery” (AW 104, 105). 8 Such a commitment is the natural, liberal and democratic counterforce to the “Anglo-Saxon selfishness” that he had noted in his earlier address. Some of these same opinions are expressed in the one work that was based primarily upon Emerson’s European experience, English Traits (1856). In this study, which offers an extended treatment of the considerable strengths and weaknesses of English character, Emerson emphasizes the cultural difference between England and America. This difference is largely a matter 8 Emerson clearly appreciated the power of the masses in a democracy, and he sought to activate and direct that energy by appealing to the sense of justice inherent in collective humanity, Thus, Hans von Rautenfeld argues that Emerson functioned throughout his career as a representative of the collective values of American democracy. As he notes, “It is the quality of being ‘plastic and permeable to principles’ and therefore representative of something common that is the source of political authority and power in Emerson’s thought” (189). Von Rautenfeld’s argument succeeds, however, only if it is limited to the liberal values of the democratic North. It is clearly not applicable where the antithetical values of the slaveholding South are concerned. 188 L EN G OUGEON of the progress of democracy in each society and the presence or absence of a rigid class structure. “The English dislike the American structure of society,” he points out, “whilst yet trade, mills, public education, and chartism are doing what they can to create in England the same social condition.” Additionally, despite the absence of a “ruling class,” America has prospered, a fact that makes many upper-class Englishmen uncomfortable. “America is the paradise of the economists; is the favorable exception invariably quoted to the rules of ruin; but when he speaks directly of the American, the islander forgets his philosophy, and remembers his disparaging anecdotes” (CW 5: 85). Emerson further observes that in England the upper class maintains a “monopoly of political power,” not unlike the Southern slave holder. The result is that the privileged live in “the paradises of the nobles, where the live-long repose and refinement are heightened by the contrast with the roar of industry and necessity, out of which [they] have stepped aside” (CW 5: 103). In England, as in the American South, the common man (or slave) labors while the privileged indulge themselves with the comforts of leisure and prosperity. Despite such inequality, however, Emerson does credit the British for promoting, within limits, the principles of liberty by abolishing the grossest forms of exploitation. Thus, while “the foreign policy of England, though ambitious and lavish of money, has not often been generous or just… [s]ome public regards they have. They have abolished slavery in the West Indies and put an end to human sacrifices in the East.” The British have also promoted global free trade and all of the material and cultural benefits that accrue from it, a policy that Emerson traces back to the ultimate source of British liberty, the Magna Charta (CW 5: 170). It is clear from his comments throughout English Traits that Emerson saw England’s example as both a help and a hindrance to the further development of liberty in America. While a nascent form of liberal democracy was the rule in the Free States, a conservative oligarchy ruled in the Slave States. Both were strongly influenced by different aspects of the British model. Despite the passage of years, Emerson never forgot the vivid contrast between rich and poor that he witnessed in England in the 1840s. When the Atlantic Monthly was established in 1857 as the voice of American progressivism in literature, art, science, and politics, Emerson contributed an essay and three poems to the first issue. One of the poems was “The Chartist’s Complaint,” a piece that he had first drafted during his stay in England (Howe, 24). 9 In the poem, Emerson makes explicit the painful and hypocritical nature of the division of classes in this presumably free and democratic nation. 9 The poem can be found in W 9: 232. The first draft can be found in JMN 10: 49. Emerson and the British: Challenging the Limits of Liberty 189 DAY ! hast thou two faces, Making one place two places? One, by humble farmer seen, Chill and wet, unlighted, mean, Useful only, triste and damp, Serving for a laborer’s lamp? Have the same mists another side, To be the appanage of pride, Gracing the rich man’s wood and lake, His park where amber mornings break, And treacherously bright to show His planted isle where roses glow? The outbreak of the American Civil War and the British reaction would crystallize Emerson’s opinion of the limitations of British liberty. During this time of national crisis, it soon became clear to him that Great Britain was dominated by the conservative voices of the privileged elite and that the future of democracy and liberal government, if it was to have a future, would be determined by the outcome of the war. When Abraham Lincoln was elected President in November of 1860 on a Republication platform that called for the containment of slavery, he failed to receive a single electoral vote from the South. Shortly thereafter, several Southern states declared that they were seceding from the Union and forming a new Confederacy. The firing on Fort Sumter in April of 1861 merely confirmed that the conflict that had been simmering for ten years was now in the open. Emerson was elated. In one of his first lectures following the firing on Fort Sumter, a lecture which he appropriately titled “Civilization at a Pinch,” he declared that the conflict was inevitable and had been ongoing, albeit covertly, for some time. “It was war then, &it is war now,” he asserted, “but declared war is vastly safer than war undeclared.” 10 One of the most critical issues for the Union from the outset of the Civil War was its relationship with Great Britain. Although initially surprised by the outbreak of hostilities, many Britons of the upper class maintained that secession was a natural development of American affairs that should be accepted peacefully by the North. These conservatives considered American democracy, in the words of one historian, “a defective form of government which naturally deteriorated into anarchy and despotism.” The present struggle seemed for many to confirm that (Bellows, 509). Also, for British nationalists the breakup of the American union was not totally unwelcome because it would serve to curtail the rapid growth of American world power, which was seen by many as threatening. Many prominent British statesmen, intellectuals, and writers shared these views. It has been noted 10 23 April 1861. Ms. Houghton Library, Harvard University. Quoted with permission. 190 L EN G OUGEON that in England “widespread acceptance of secession by political commentators led to a general antinorthern attitude.” When Lincoln expressed his determination to preserve the Union at all costs, “Journal articles and political tracts, appealing to middle-and upper-class Britons, doubted the North’s effort could be justified legally, morally, or politically.” Additionally, “the literary ‘sages’ of Victorian England argued in actual defense of slavery, and in so doing expressed another reason that democracy, in their opinion, had brought civil war.” This group included Thomas Carlyle, John Ruskin, Matthew Arnold, Charles Kingsley, and others (Bellows 513, 520). The British government decided at the outset to stay out of the American conflict. Consequently, on 13 May 1861 the “Queen’s Neutrality Proclamation” was issued. This measure prohibited British participation in the struggle in any form, but it also granted belligerent status to the new Confederacy. This provision of the Proclamation, in most Northern eyes at least, was tantamount to recognition of Confederate independence. It soon became a source of considerable irritation and tension (Crawford 418). Northern concern over British intent heightened when it was revealed that the British Foreign Secretary, Lord John Russell, had met with Confederate representatives twice in May before the Proclamation was issued. An already bad situation worsened rapidly when in November the American Captain of the U.S.S. San Jacinto stopped the British steamer Trent on the high seas and removed the Confederate commissioners James M. Mason and John Slidell. This event became known as the “Trent Affair.” There followed, in the words of one historian, “a devastating collapse in Anglo-American understanding” (Crawford 406). New England authors and intellectuals, as well as the general public, responded to these increasingly critical developments with growing hostility towards Great Britain. 11 Henry Wadsworth Longfellow noted the “angry articles in the papers about England” in his private journal on 29 May 1861. Longfellow’s personal view undoubtedly reflected the popular sentiment of the time. “John Bull is not behaving well about this rebellion of ours,” he noted. “He chooses to put Civilization and Barbarism on an equality, and to take sides with neither which is virtually [? ] taking sides with barbarians.” 12 The “barbarians” were the slave holders of the South. James Russell Lowell expressed a similar view publicly in a satirical essay, “The Pickens-and-Stealin’s Rebellion” in the June 1861 issue of the Atlantic Monthly. In his article, Lowell chides the British generally, and the Saturday Review in particular, for their criticisms of American democracy. From Lowell’s perspective, “nearly all the 11 For additional information on how prominent New Englanders responded to the British, see Gougeon, “Emerson’s Circle and the Crisis of the Civil War.” 12 Ms. Houghton Library, Harvard University. Quoted with permission. Emerson and the British: Challenging the Limits of Liberty 191 English discussions of the American Crisis… have shown far more of the shop-keeping spirit than of interest in the maintenance of free institutions” (758). It was clear to both Longfellow and Lowell, although perhaps not to the British, that the North occupied the high moral ground in the struggle. This was because the New Englanders saw the war as being against slavery. In fact, however, the officially declared purpose of the war at this point was only to restore the Union as it was, that is, with slavery. Overall, the crisis tended to highlight real and substantive differences between American and British political values. Under its Constitutional Monarchy and Parliamentary system, the real political power in Great Britain remained in the hands of the ruling elite, an oligarchy if you will. This model, of course, resembled closely that of the American South. The North, on the other hand, was committed to a nascent form of liberal democracy that vested power in the people, the “common man.” The struggle developing in America between these two political ideologies resembled a similar struggle in England where the heirs of the Chartists and their liberal supporters continued to press for political reform that included extending the franchise to the workingman. This divide influenced British opinion throughout the war with British liberals supporting the Union cause, and British conservatives (mostly the upper class) tacitly supporting the Confederacy. Most major British writers were in the latter category, just where Emerson had found them in 1848. Views on the war were communicated in various journals published on both sides of the Atlantic, and also through private correspondence. One of the most active trans-Atlantic correspondents of the period was Charles Eliot Norton. A Harvard graduate and member of a prominent Boston family, Norton was a frequent contributor to the Atlantic Monthly and would become joint editor, with James Russell Lowell, of the North American Review in 1864. Norton wrote to John Ruskin following the shocking Union defeat in the first Battle of Bull Run in July of 1861 indicating that the North had learned a hard lesson, but that it would eventually prevail. In response, Ruskin stated that he was pleased by Norton’s hopefulness about the war, but he goes on to say, “It interests me no more than a squabble between black &red ants. It does not matter whether people are free or not, as far as I can see - till - when free they know how to choose a master” (Ruskin-Norton 67). This comment reflects the kind of political elitism that Ruskin shared with other major British writers. Some years before the war, Thomas Carlyle, Emerson’s friend and long-time correspondent, expressed his view that the rule of nations was best left to the gifted elite and, correspondingly, that certain races, because of their hopeless inferiority, had no part to play in society other than to serve. Thus, while Emerson had celebrated emancipation in the British West Indies in 1844 as a great humanistic triumph in the continuing evolution of the principle of 192 L EN G OUGEON human liberty, Carlyle had another view. In his essay “The Negro Question,” published in an 1849 issue of Fraser’s Magazine, Carlyle attacked the British policy of emancipation in the West Indies as an unfortunate decision that had disastrous economic consequences in both the West Indies and England. In Carlyle’s mind, blacks were grossly inferior to whites and must be subject to benevolent, paternalistic authority in order to function productively. His Latter-Day Pamphlets, published in 1850, attacked liberal democracy as an impossible ideology because it failed to recognize that some men are born to govern and others are born to serve. These sentiments are also found in Carlyle’s works of the late 1850s. One critic has observed that “Carlyle lived out the decade of the fifties in the glow of his righteousness. He devoted himself to his magnum opus, Frederick the Great, the ‘Last of the Kings,’ the first two volumes of which appeared in 1858. Frederick became the Bible of the Hohenzollerns, while Latter-Day Pamphlets provided an argument for conservatism everywhere” (Straka 41). Given these views, it is not surprising that Carlyle’s writings were popular in the American South. In 1850 “The Negro Question” was reprinted in De Bow’s Review under the title “Carlyle on West Indian Emancipation.” That same journal published a very positive review of Frederick the Great in 1860, which asserted that “a master race necessarily improves upon itself, and practices as severe a drill as it subjects its inferiors to.” As a result, the reviewer insists, Southern society has produced a superior specimen of humanity who are hardworking and who “have no taste for that prurient love of licentious liberty which has depraved and demoralized free society” (qtd. in Straka 49-50.) Not surprisingly, like his conservative British cohorts, Carlyle saw the American conflict as a doomed effort to “make two men equal when the universe has determined that they are not” (Conway 908-9). Like Carlyle and Ruskin, Matthew Arnold also saw the American Civil War as evidence of the ultimate failure of liberal democracy as a political ideology. In “The Popular Education of France” (May 1861) Arnold states, What is now passing in the United States of America is full of instruction for us. I hear numberless English lamenting the disruption of the American Union; they esteem it a triumph for the enemies of all freedom, as discouragement for the principles of self-government, as they have been long understood and put in practice in this country as well as in America. I, on the contrary, esteem it a great and timely lesson to the over-individualism of the English character. We in England have had, in our great aristocratical and ecclesiastical institutions, a principle of cohesion and unity which the Americans had not; they gave the tone to the nation, and the nation took it from them; self-government here was quite a different thing from self-government there. In a passage that would be especially infuriating to high-minded New Englanders, Arnold also observed in this essay that “the capital misfortune of Emerson and the British: Challenging the Limits of Liberty 193 the American people [is] that it is a people which has had to grow up without ideals” (Democratic Education 385, 160). In another work on public education titled “A French Eton,” portions of which appeared in Macmillan’s Magazine in September 1863 (and then later in book form), Arnold provides further insight into British attitudes at the time. He indicates that many Englishmen are pleased to witness the present turmoil in America because “there existed in the most impartial and thoughtful minds a profound dissatisfaction with the spirit and tendencies of the old American Union, a strong aversion to their unchecked triumph, a sincere wish for the disciplining and correcting of them.” For Arnold, Americans are undisciplined and unsophisticated, the victims of their own unchecked liberty. As a result, the American Union is “full of rawness, hardness, and imperfection … greatly needing to be liberalized, enlarged, and ennobled, before it could with advantage be suffered to assert itself absolutely. All the energy and success in the world could not have made the United States admirable so long as their spirit had this imperfection” (319). He later sent a copy of this work to Emerson with a note that he hoped the bard would “not be offended” by what he said about America (L 5: 361-62). Arnold and his fellow literati would soon be apprised of Emerson’s view of the matter. In some instances British intellectuals and writers sympathized privately with the Southern cause while they maintained a public silence on the war. This, however, was interpreted by many New Englanders as tantamount to public support of the enemy. Such was the case with Alfred Lord Tennyson, the Poet Laureate and one of the most influential artistic voices in England at the time. In commenting to a correspondent on a recent speech by Charles Sumner in which the Massachusetts Senator condemned the Southerners as “traitors,” Tennyson maintained the technical legality of secession and added, “I am disappointed nay disgusted with the Northerners ever yelling and mouthing against their old European mother - who is now at least - the most unaggressive power in the Universe” (2: 318-19). Not surprisingly, those British writers, intellectuals, and political figures who were identified with the Liberal or “Radical” cause in England sympathized openly with the Union, proving once again that “all politics is local.” Notable among these were John Stuart Mill, Arthur Hugh Clough, Elizabeth Gaskell, Aubrey De Vere, John Elliot Cairnes, Goldwin Smith, and others. These individuals were well aware of the fact that the educated and aristocratic upper ranks of British society saw the American example of liberal democracy as a threat. Goldwin Smith, for example, who held a chair in history at Oxford University, wrote Charles Eliot Norton in November 1863 that “the aristocracy are against you almost to a man. The great capitalists are against you, and they have done a good deal to give a wrong turn 194 L EN G OUGEON to the City and to the London Press. The clergy of the Establishment are against you, as a Commonwealth founded on liberty of conscience.” He also notes that “a good many of the middle class are against you” because they pander to the aristocracy. 13 In a later letter he indicates that he stands “nearly alone among people of my own class” in supporting the Union cause and adds, “we are not so strong as we ought to be among the literary class or in the more powerful part of the Press.’” 14 Like others, Emerson was very much aware of the position of British intellectuals and the British press at the outset of the war, and he was greatly disturbed by it. In an address to the students at Tufts College, “Celebration of the Intellect” (June 1861), he noted rather caustically that “The English newspapers and some writers of reputation disparage America. Meantime,” he observes, “I note that the British people are emigrating hither by thousands which is a very sincere, and apt to be a very seriously considered expression of opinion. The immigration into America of British … is the eulogy of America by the most competent and sincere arbiters” (LL 2: 243). For Emerson, the common people, by “voting with their feet,” tell a different and more trustworthy story than the elite such as Arnold. From the outset, Emerson saw the Civil War as an opportunity to reform America by destroying slavery and extending the principle of equal rights to all Americans. He was especially aware of the importance of granting the franchise to all Freedmen in order to protect their hard-won liberty and insure their civil rights. Emancipation alone was not enough. This was, indeed, a radical position at the time, even among abolitionists. 15 In his lec- 13 Goldwin Smith to Charles Eliot Norton, 7 November 1863. Ms. Houghton Library, Harvard University. Quoted with permission. 14 Goldwin Smith to Charles Eliot Norton, 26 May 1864. Ms. Houghton Library, Harvard University. Quoted with permission. Smith remarked when addressing a Boston audience during a visit to New England in 1864, “I came to America to see and hear, not to lecture. But when I was invited by the Boston ‘Fraternity’ to lecture in their course, and permitted to take the relations between England and America as my subject, I did not feel at liberty to decline the invitation. England is my country. To America, though an alien by birth, I am, as an English Liberal, no alien in heart. I deeply share the desire of all my political friends in England and of the leaders of my party to banish ill-feeling and promote good-will between the two kindred nations. […] We are united by blood. We are united by a common allegiance to the cause of freedom.” (749). The Atlantic Monthly, “England and America,” Dec. 1864. 15 In a lecture titled “Perpetual Forces” (Nov. 1862), Emerson described his vision of the new America that he believed would eventually emerge from this crisis. It is a decidedly liberal one. When the Constitution is re-written, Emerson felt, it will be necessary to “Leave slavery out. Nothing satisfies all men but justice, let us have that, and let us stifle our prejudices against commonsense and humanity, and agree that every man shall have what he honestly earns, and, if he is a sane and innocent man, have an equal vote in the state, and a fair chance in society” (LL 2: 30). The notion of universal Emerson and the British: Challenging the Limits of Liberty 195 ture “American Civilization,” which would later appear under the same title in the Atlantic Monthly (April 1862), Emerson offered an eloquent plea for emancipation (which was not as of yet a Union goal) as the first step in the process of moral and political reform. “Civilization depends on morality,” he states. “Everything good in man leans on what is higher” (504). Morality is the basis of all civilization, and because of this “Emancipation is the demand of civilization. That is a principle; everything else is an intrigue” (509). Emerson would reinforce his argument yet further in his “Moral Forces” lecture, which was delivered at the Parker Fraternity in Boston on the thirteenth of April. In this address, Emerson reminded his audience that from a moral standpoint the Union cause was the cause of all humanity. He alludes to the recent abolition of slavery in the District of Columbia (as a result of Lincoln’s initiative) as proof that “[t]hings point in the right way,” and that “[t]he nation is every day more equal to the crisis.” Other positive developments were occurring spontaneously. “An army of slaves is already escaped from the ‘Service to which they were held,’ in the lavender phrase of the law,” and the North has “begun to instruct them by sending noble intelligent youths to teach them to read and to think.” The nearly constant criticism of the British elite, Emerson asserts, is merely an indication of their fear of the great liberal energy that is now literally on the march in America. “The very degradation of the leading London journal [the Times] into spite and affected sarcasm is truer homage to the power and destiny of the Union, than the compliments of weaker nations.” Conservative British critics are well aware that “The Genius or Destiny of America is no log or sluggard, but a man incessantly advancing… . The office of America is to liberate, to abolish king-craft, priest-craft, caste, monopoly, to pull down the gallows, to burn up the bloody statute book, [and] to take in the immigrant” (LL 275, 284-5). In Emerson’s eyes, the destruction of slavery was just the beginning of this new, liberal revolution. Emerson saw even a limited declaration of emancipation as a vitally important step since he assumed it would mute overt British criticism and put the Union squarely on the high moral ground as the force of liberty and emancipation that Emerson articulated in this speech was a radical concept. Even Lincoln in his Preliminary Emancipation Proclamation had restricted emancipation to those states that remained in rebellion after 1 January 1863. Apparently, Emerson’s concept of equal rights, including universal male suffrage, was more than even some liberals could bear. Following his lecture, a newspaper reported that Emerson’s presentation was “a re-hash of his Abolition sophistry” and noted specifically that “When he argued in favor of forcible emancipation, a few old ladies and gentlemen applauded; but when he insisted that the negro should have ‘an equal chance with the white man,’ even they were indignantly silent” (qtd. in LL 2: 288). 196 L EN G OUGEON justice. Without the Federal government’s official commitment to emancipation, however, the moral question remained ambiguous. Consequently, Emerson began outlining in his journal yet another argument for emancipation. After noting that “all Europe will back France & England” if they recognize the Confederacy, which was a real possibility at the time, he goes on to suggest that “Emancipation makes all this impossible. European govts. dare not interfere for Slavery, as soon as the Union is pronounced for Liberty” (JMN 15: 207). Unfortunately, he was to be greatly disappointed in this assumption. Following the Union’s technical victory at Antietam in September of 1862, Lincoln felt that he could now issue his “Preliminary Emancipation Proclamation,” which stipulated that all slaves in the rebel states would be declared forever free on 1 January 1863. Limited emancipation was now officially a Union goal. Emerson was delighted. He celebrated this long-awaited event in “The Emancipation Proclamation,” a lecture which he delivered in Boston on 12 October. The address was published the following month as “The President’s Proclamation” in the Atlantic Monthly. In his presentation, Emerson outlined clearly the difference between Northern democracy and Southern aristocracy. “In the Southern States,” he notes, “the tenure of land and the local laws, with slavery, give the social system not a democratic but an aristocratic complexion,” which is a reflection of the British model. This aristocratic quality, however, is totally incompatible with the democratic values of American society. Therefore, Emerson asserts, “the aim of the war on our part is indicated by the aim of the President’s Proclamation, namely, to break up the false combination of Southern society, to destroy the piratic feature in it which makes it our enemy only as it is the enemy of the human race, and so allow its reconstruction on a just and healthful basis” (W 11: 324-25). As noted earlier, he also believed that the British would abate their hostility to the Union cause once the slavery issue had been cleared up in order to maintain their posture as the world’s most civilized nation. Unfortunately, responses to the emancipation proclamation in Great Britain were severely negative. Southern sympathies there remained strong, and many of the elite chose to see the declaration as a crass war measure designed to incite the slaves into a bloody “servile insurrection.” The London Times offered severe criticism of the measure and questioned pointedly, “Is the reign of the last President to go out amid horrible massacres of white women and children, to be followed by the extermination of the black race in the South? Is - [the name] Lincoln, … ultimately to be classed among the catalogue of monsters, the wholesale assassins and butchers of their kind” (qtd. in Adams 102). 16 Adding insult 16 It is worth noting that many American conservatives were also unhappy with Lincoln’s stand on emancipation, as well as his other war measures such as suspension Emerson and the British: Challenging the Limits of Liberty 197 to injury, the Quarterly Review ran a blatantly pro-Southern article titled “Fort Sumter to Fredericksburg” in April. And in the same month, Fraser’s published an article (perhaps with Emerson’s recent celebration of emancipation in The Atlantic Monthly in mind) titled “American Literature and the Civil War.” The latter article claimed that the poets of the Northern United States “have judged slavery from their own mental and moral standpoint,” thus, the blacks are elevated “in the mind and heart of the poet, to his own plane” (519). Apparently such a radical notion of equality was unthinkable to British conservatives for whom class distinctions were absolute. Emerson’s patience was now near the breaking point. The continuing decline of Anglo-American relations was capped by an event that would rouse him to an untypical anger. The August 1863 issue of Macmillan’s Magazine carried a brief satirical squib by Carlyle entitled “Ilias (Americana) in Nuce” (the American Iliad in a Nutshell), in which “Paul and Peter,” representing the South and the North, attempt to beat each other’s brains out because one “hires servants for life” and the other hires servants “by the month or the day.” The piece clearly expresses Carlyle’s elitist view of things. After all, servants are servants whether you call them slaves of habeas corpus, press censorship, and the use of military tribunals in lieu of civil courts, all of which they saw as attacks on the constitution and civil rights. Emerson did not share these concerns. In his “American Civilization” address in Washington in 1862 he noted that “Government must not be a parish clerk, a justice of the peace. It has, of necessity, in any crisis of the state, the absolute powers of a dictator. The existing administration is entitled to the utmost candor. It is to be thanked for its angelic virtue, compared with any executive experiences with which we have been familiar” (W 11: 302). At first blush, Emerson’s support for the President’s “dictatorial” powers might seem to contradict his concern for the expansion of liberty. If examined closely, however, the opposite proves true. Emerson recognized that the Union was in a deep crisis and that the survival of the democratic principles for which it stood were at stake. Extreme circumstances sometimes justify extreme measures. The principle of “martial law” supports this notion. More importantly, however, Emerson provides a more philosophical defense of his position in “Uses of Great Men,” the introductory essay of Representative Men (1850). In this work he indicates that “Nature seems to exist for the excellent. The world is upheld by the veracity of good men” and that “the race goes with us on their credit.” These men have a certain power, but the power which they communicate is not theirs. “When we are exalted by ideas, we do not owe this to Plato, but to the idea, to which Plato was debtor” (CW 4: 3,12). It is these “ideas” that serve mankind. At this critical time of civil war, the great ideas represented by Lincoln, those very ideas which are the basis for his moral authority, are the ideals of equality, freedom, and justice. Therefore, to support Lincoln in his effort, even in violation of the Constitution, is to support the moral superiority of a “higher law” over a flawed “lower law” which must eventually be changed. In his journal in 1862 Emerson notes, “I speak the speech of an idealist. I say let the rule be right. If the theory is right, it is not so much matter about the facts. … All our action now is new & unconstitutional, & necessarily so” (JMN 15: 301-02). 198 L EN G OUGEON or not, a view undoubtedly shared by Ruskin, Arnold, and others. This comparison was made explicit just months later in another British journal. While loath to approve the institution of slavery openly, British conservatives often argued that slaves were better off under a paternalistic institution where they could be “guided” to perform useful labor. The same was true of the British workingman. An article titled “Slaves and Labourers,” appearing in the, The Saturday Review (16 January 1864), made this very correlation: In the Southern States, both the wealth and the civilization of the community depend largely on the enforced labour of the negro population. The African works where the white man cannot work except with great danger, and the ease, the tone of confidence, the languid kindliness, and the elegance of Southern manners, where they exist at all, bear manifest traces of having sprung from the influences which large plantations carry with them. In England too, it may be said without any great straining of facts, that society rests on the existence of a vast population born to do mean things, born to perform the rudest labour, and engaged in nothing else from birth to death. England is the government of a minority, resting on the subjection of a majority forced by circumstances to fulfill all the coarser tasks and more repulsive duties of the human race. And in both England and the South, the political system which prevails rests on facts, not on theories. The South says that it is absurd to talk of treating the Negroes as on an equality with the white race, because, as a matter of fact, they are not on an equality. Theoretically it might be delightful if they were, but they are not. Whatever changes the future may bring with it, the African is not at present capable of governing. (72) The writer then proceeds to make his correlation even more explicit: The language currently held in England, when a sweeping Reform Bill is proposed, does not differ widely from this. It is absurd, wise men say, to suppose that the rude British hind can be made fit to vote by giving him a vote. He is not capable of using political power. When an unknown and inconceivable millennium dawns, and he is a well-educated, independent, thriving, moderately-worked, sweet-smelling creature, then he shall have a vote, but until then the British Constitution very sensibly provides that he shall be governed by his betters. Thus the governing classes in England speak, and there is truth and justice in what they say; but a Southerner would not recognize in it any great difference from much that he has heard at home. (72) By this time, most New England intellectuals and literary men, like Emerson, were fully aware of the integral relationship between the Civil War, slavery, and the future of liberal democracy both in England and America. Thus, an article in the August, 1864 issue of The Atlantic Monthly, titled “Our Recent Foreign Relations,” makes the following observation regarding the potential consequences of a Northern defeat on the future of democracy in both countries: Emerson and the British: Challenging the Limits of Liberty 199 In the failure of man’s self-governing capacity here, where every circumstance has been favorable to its exercise, the rising spirit of a broader liberty in England must foresee the death-blow to its own hopes. Our failure will not be fatal to us alone; it will involve the fate of the millions who are now seeking to plant themselves against the tremendous force of kingly and patrician prestige. They have hitherto derived from our example all the inspiration with which they have struggled upward. (Towle 246) Because of this, the writer notes, the opposition of the British aristocracy, the ruling class and their supporters, to the Northern cause has been a constant throughout the long struggle: The aristocracy would view with complacency the disruption of the Union because we are a rival power, and they are thoroughly pledged to British aggrandizement because the success of the Union would belie the principle whence they derive their prerogative, and encourage the opposing element of popular rights to greater exertions for ascendancy; because hatred of democracy is a sentiment inherited, as well as a principle of self-preservation; and because they have not forgotten the former dependence of America on England. (Towle 246) Many New Englanders saw British sympathy for the South as based on their similar aristocratic social structures and an inherent antipathy towards liberal democracy in the North. Thus, an earlier editorial by Charles Eliot Norton, published by the New England Loyal Publication Society in May, 1863 states, “while the secessionists and their Northern allies are the main fomenters of war on this side of the Atlantic, the aristocrats in England are the only war party there. They are naturally in sympathy with the slaveholders. The success of the nation in this contest in which we are engaged, a success which is assured if we keep from foreign war, is the success of democracy everywhere; it is the success of equal rights, of free institutions, of free and well paid labor, of individual independence all the world over.” 17 In the context of this ongoing cultural and political conflict, Carlyle’s brief squib in the August issue of Macmillan’s was undoubtedly the proverbial straw that broke the camel’s back for many New Englanders. In response, Cyrus Bartol, a Harvard Divinity School graduate, author, and abolitionist, wrote to Emerson in mid-August to suggest that something must be done to address the continuing outrages coming from the pens of British intellectuals whom the New Englanders once considered their “English cousins.” “This unfriendliness of English scholarship to our cause, - is it not worth seriously considering & noticing? Martineau & even Tennyson are against us - Carlyle makes himself a public shame - … . Ought there not to be an address of the literary men of this country to their Order 17 Records of the Loyal Publication Society, Boston Public Library. 200 L EN G OUGEON across the sea, on the ground which learning, philosophy & poetry should take in the premises which touch them as well as legislation & politics? ” Bartol then suggests to Emerson, “Might it not appear to you a duty to put into the press a truly friendly letter to Carlyle? ” If this was not possible, he proposed that Emerson prepare a statement for publication in the Atlantic. “I hold it critical you should draw it up,” Bartol urged, “whether it be an article simply, or a manifesto signed by yourself, Bryant, Whittier, Lowell, Whipple, Holmes, etc. - by literary & no sort of professional men.” 18 Ultimately, Emerson’s response would come in the form of a lecture titled, “Fortune of the Republic.” It would prove to be one of the most important of his career. This lecture came at a most critical juncture in the war, a time that would determine the future of liberal democracy in America, and possibly the world. The winter of 1863-1864 was a period of crisis for the Union. Despite victories at Gettysburg and Vicksburg in July of 1863, the Confederacy yet endured, and the war dragged on with no end in sight. Many in the North were calling for an end to hostilities through compromise at any cost, even the restoration of the Union as it was, with slavery. There was unrest in Lincoln’s own Republican party. Many thought it likely that he would not win re-nomination (Donald 470-92). 19 It was within this critical period that Emerson delivered his “Fortune of the Republic” address no fewer than fourteen consecutive times, travelling throughout Massachusetts, and into New York, Maine, and Vermont in the process (Charvat 38-39; von Frank 390-93). He had never repeated a address with such frequency. The fact that the deliveries were consecutive presentations, over a brief period of approximately two months (1 December 1863 to 9 February 1864) was also exceptional. The repeated presentations suggest that Emerson felt a sense of urgency. In this highly political address, Emerson offered strong support for Lincoln. He also used the occasion to present his own vision for the new republic that he hoped would emerge from the ashes of war. Additionally, Emerson severely castigates the British ruling class for their constant antipathy toward the Union cause, which clearly was the cause of liberty. In the address Emerson recalls the example of the Chartists and insists that their vision of a truly representative democracy, while defeated 18 Cyrus Bartol to Emerson, 14 August 1863, Cabot Papers, Schlesinger Library, Radcliffe College. Quotations from the Cabot Papers are printed with permission of the Schlesinger Library. 19 Regarding the military and political situation generally, David Herbert Donald states, “Lincoln saw clearly that the fate of his reconstruction plan depended on the outcome of the race for the presidential nomination. In turn, that contest would depend on the success of the Union armies, and in the winter of 1863-1864 the outlook for the Lincoln administration was bad” (488). Emerson and the British: Challenging the Limits of Liberty 201 in England for the time, will find fulfillment at last in a reunited and free America, which is now clearly the last, best hope of mankind. For Emerson, the vision of this ideal was first articulated by the Founding Fathers in the Declaration of Independence. Unfortunately, it was blurred at the outset by a moral compromise, a compromise that has finally resulted in the present bloody conflict. 20 Emerson’s decision to come to Lincoln’s aid at this time was undoubtedly based in part on his personal regard for the man and his integrity. It is also clear that they shared many of the same values and goals regarding the future of the Republic. Additionally, Emerson came to see Lincoln as a common man of the people and a true representative of the new democratic spirit that was emerging as a result of the war. In his journal he states, “Why talk of President Lincoln’s equality of manners to the elegant or titled men with whom Everett or others saw him? A sincerely upright & intelligent man as he was, placed in the Chair, has no need to think of his manners or appearance. His work day by day educates him rapidly & to the best. He exerts the enormous power of this continent in every hour, in every conversation, in every act; - thinks & decides under this pressure, forced to see the vast & various bearings of the measures he adopts: he cannot palter, he cannot but carry a grace beyond his own, a dignity, by means of what he drops, e.g. all pretension & trick, and arrives, of course, at a simplicity, which is the perfection of manners” (JMN 15: 465). Not surprisingly, British critics who supported an aristocratic model of government saw Lincoln as coarse and unrefined, especially when compared to the presumably elegant Jefferson Davis, the product of privilege. Often they pointed to the speeches of Abraham Lincoln, the “rail splitter,” as examples of crudity raised to high places, something, they noted, that could only happen in liberal America. By contrast, Jefferson Davis was often described by conservative British commentators as a model statesman. Indeed, the entire administration of the Confederacy, both political and military, was seen as superior because its personnel were “selected” to serve 20 In his lecture “Books,” (1864) Emerson notes “The builders of the Constitution put in some granite and some rotten-stone. They tucked in rubbish and a lie, and they will crumble. Through their cracks and crevices have leaped the armed men that now shake the continent.” He also describes the Declaration of Independence as “the greatest achievement of American literature,” and observes, “The shaft-words of the preamble of the Declaration - ‘We hold these truths to be self-evident, that all men are created equal, endowed by their Creator with certain inalienable rights, among which are life, liberty, and the pursuit of happiness’ - these words, little heeded at the time, deemed oratorical, lampooned by flippant rhetoricians in our day as ‘glittering generalities,’ have turned out to be the only immortal words, the fresh, the matin song of the universe” (Uncollected Lectures 40). 202 L EN G OUGEON by a privileged elite, while Union leaders, both political and military, were depicted as the products of a tawdry political process dominated by “attorneys” and “wire pullers.” This comparison was made explicit in an article published in the Quarterly Review in the spring of 1863. And as with her generals, so also with her statesmen, the irresistible forces of national character gave the advantage to the South. The military genius of Lee and Johnstone [sic], and Jackson and Beauregard, does not more conspicuously transcend that of M’Clellan and Burnside, and M’Dowell and Pope, than does the administrative talent of President Davis and the Southern Cabinet the pettifogging incapacity of President Lincoln and the attorney Ministers of the North. The Southern leaders were not the mere mediocre tools and puppets of trading politicians; they were men selected for those very qualities of talent and command most dreaded and disliked by the “wire pullers” of the North (“Fort Sumter to Fredericksburg,” 333). By contrast, a later article maintains that “Lincoln was another example of that deplorable rule, long enforced by the exigencies of the Union, which practically excludes all able and eminent men from the Presidential office” (“The Close of the American War,” 111). In light of all this, it is not surprising that in his “Fortune of the Republic” address Emerson answers British critics in tones of anger informed by moral outrage. Despite such criticisms, however, and the current perilousness of the Union position, he saw the moment as full of hope and promise, as suggested by his title. “Never country had such a fortune, - as men call fortune, - as this, - in its geography, its history, in the present attitude of its affairs, and in its majestic possibility.” For Emerson, America represents more truly than any other nation on earth, “the future of mankind” (AW 139). However, he acknowledges that the country is now passing through a “great crisis,” the outcome of which will determine the final destiny of the nation and “will make the peace and prosperity, or the calamity of the next ages” (AW 139). An unconditional cessation of hostilities at this point, although appealing to some, ignores what is at stake in this great struggle. The North is fighting for the principles of equality, liberty, and social justice. The Confederacy and its British supporters represent the antithesis of these ideals. Any effort at accommodation would necessarily be a moral as well as a political catastrophe. Emerson here insists on the importance of continuing the struggle, and pursuing it to its ideal end, the end which was originally expressed in the Declaration of Independence in the phrase “all men are created equal.” “It is the young men of the land, who must save it: it is they to whom this wonderful hour, after so many weary ages, dawns, the Second Declaration of Independence, the proclaiming of liberty, land, justice, and a career for all men: and honest dealings with other nations” (AW 140). Emerson and the British: Challenging the Limits of Liberty 203 In Emerson’s view, the current spirit of accommodation, a tacit acceptance of the undemocratic, aristocratic pretensions and principles of the South, reflects a lingering European, and specifically British, influence in America. “I call this spirit a remainder of Europe, imported into this soil,” notes Emerson. “To say the truth, England is never out of mind. Nobody says it, but all think and feel it. England is the model in which they find their wishes expressed, not, of course, middle-class England, but rich, powerful and titled England” (AW 140). As Emerson had observed during his visit in 1847-48, and later in English Traits, the British social and political model, like the Southern model, emphasizes privileged self-indulgence and the exploitation of the poor and weak. It was clear from the earlier response of the literati to the Chartists that the British elite would do anything to preserve their position of privilege, while pretending throughout to represent the very highest level of civilization and culture. As he goes on to note of England, “Never a lofty sentiment, never a duty to civilization, never a generosity, a moral self-restraint is suffered to stand in the way of a commercial advantage. In sight of a commodity, her religion, her morals are forgotten” (AW 141). Again, reaching back to his earlier experience there, Emerson asserts that “England is Chinese in her servility to wealth, and to old wealth. Hence the discovery in 1848, - that Paris was the capital of Europe, and not London… . They had the creed that the idea of human freedom was selfish and mixed, a liberty quite too much drenched in respect for privileges, castiron aristocracy and church hierarchy” (AW 141). The intellectual and literary class in England are a major source of this noxious and undemocratic elitism. 21 Emerson offers his old friend Thomas Carlyle as an unfortunately perfect example of this failing. Undoubtedly with Carlyle’s late satirical jab in mind, Emerson’s criticism is sharp and obviously heartfelt. “Even her [England’s] ablest living writer, a man who has earned his position by the sharpest insights, is politically a fatalist. In 21 It should be emphasized that Emerson did not indict all British writers and intellectuals. As noted earlier, John Stuart Mill, Elizabeth Gaskell, Arthur Clough, and others offered strong support for the Union cause for which Emerson was very grateful. In his address, while emphasizing his own meaning of the word., he refers to the “truly cultivated class” of intellectuals, undoubtedly with these supporters in mind. In speaking of England, I lay out of question the truly cultivated class. They exist in England, as in France, in Italy, in Germany, in America. The inspirations of God, like birds, never stop at frontiers or languages, but come to every nation. This class like Christians, or poets, or chemists, exist for each other, across all possible nationalities, strangers to their own people, - brothers to you. I lay them out of question. They are sane men, as far removed as we, from the arrogance of the English press and the shoptone of the cities. They wish to be exactly informed and to speak and act not for us or against us, both for the public good and the truth. (AW 151-2). 204 L EN G OUGEON his youth he announced himself as a ‘theoretical sansculotte fast threatening to become a practical one.’ Now he is practically in the English system, a Venetian aristocracy, with only a private stipulation in favor of men of genius” (AW 141). 22 Emerson found ample evidence of this aristocratic elitism in Carlyle’s most recent work. “In the ‘History of Frederick the Great,’” he notes, “the reader is treated as if he were a Prussian adjutant, solely occupied with the army and the campaign. He is ever in the dreary circle of camp and courts. But of the people you have no glimpse. No hint of their domestic life. Were there no families, no farms, no thoughtful citizens, no beautiful and generous women, no genial youth with beating hearts then alive in all the broad territories of that kingdom? ” Emerson sums up this criticism of his erstwhile friend with a stinging rebuke. “We should not bring this criticism on another writer,” he insists. “But from Carlyle, who has taught us to make it, we had a right to expect an account of a nation, and not of a campaign” (AW 141). 23 Emerson goes on to describe the current American struggle as one of the major stepping stones in the evolution of universal human rights. “There have been revolutions which were not in the interest of feudalism and barbarism, but in that of society.” These were revolutions “in which a principle was involved.” Among these, he names the planting of Christianity, the establishment of free institutions in England, France, and America, and “the destruction of slavery” (AW 142). This latter revolution is now at a critical stage. It is a struggle where the highest principles of mankind are pitted against the lowest. Clearly, this is a war of ideas and ideals, a political as well as a cultural war. “When the canon is aimed by ideas, then gods join in the combat, then poets are born… . When men die for what they live for, and the mainspring that works daily urges them to hazard all, then the cannon articulates its explosions with the voice of a man. Then the rifle seconds the cannon, and the fowling-piece the rifle, and the women make cartridges, and all shoot at one mark, and the better code of laws at last records the victory.” For Emerson, the present revolution is “the chieftest of these” and represents the “culmination of these triumphs of humanity” (AW 142-43). In the immediate past, largely because of America’s unconscionable compromise with slavery, as a nation “we had no character” says Emerson, but now America has the opportunity to develop and perfect a true national character. The process is now at a critical stage. “We begun well. No inquisi- 22 For the complete story behind this episode see Gougeon, “Carlyle, Emerson and the Civil War.” 23 Emerson notes in his journals that Carlyle, “seems to have made a covenant with his eyes not to see the foibles of his Cromwells & Fredericks.” He later notes, “Channing thinks Carlyle does not recognize the people, in “Life of Friedrich” (JMN 15: 302, 355). Emerson and the British: Challenging the Limits of Liberty 205 tion here; no kings, no nobles, no dominant church. In every other country, the accusation of heresy brings want and danger to a man’s door,” but not here (AW 143). And now, with the deleterious Southern influence finally expunged from the Federal government, great strides have been made to enhance the quality of life in America and to improve the conditions of all her citizens, especially the poor and unprivileged. These benefits are rendered largely in the form of an expanded system of public education made possible through the establishment of Land Grant Universities as provided by the Morrill Act, passed by Congress in 1862. This measure, combined with Lincoln’s Emancipation Proclamation, provided a quantum leap in the evolution of liberal democracy: And if one sees the tendency of our steps, the gifts to learning by private benefactors; the enlarging appropriations of town meetings and of states to the schools; the gift of scholarships and fellowships; recent foundation of agricultural schools, - of military, of naval, of gymnasiums, of the Nautical Almanac, and astronomic observatories; it looks as if vast extension was given to the popular culture, and, as the appetite grows by feeding, the next generation will vote for their children, - not a dame school, nor a Latin school, but a university, complete training in all the arts of peace and war, letters, science; all the useful and all the fine arts. And thus the voters in the Republic will at last be educated to that public duty. (AW 144) 24 Through this process, the common man will continue to be elevated to higher and higher levels of social responsibility, and American civilization will finally possess what Lincoln promised, a government “of the people, by the people and for the people.” This truly unique character of the American experience was becoming ever more prominent now that the aristocratic influence of the South was largely neutralized. The distance between the people and their leaders has shrunk. “In America, the government is acquainted with the opinions of all classes, knows the leading men in the middle class, knows the leaders of the humblest class. The President,” says Emerson, “comes near enough to these: if he does not, the caucus does, - the 24 In the absence of Southern opposition, the Thirty-seventh Congress managed to enact a great deal of important legislation including a National Banking Act, the Homestead Act (which granted 160 acres of land to any person who was willing to farm it for five years), chartered a transcontinental railroad, established a system of land-grant colleges, and created the Department of Agriculture. All of this was accomplished in addition to raising armies and fighting a civil war (Donald, Lincoln 424). As early as his “Address … on … the Emancipation of the Negroes in the British West Indies” (1844) Emerson noted the deleterious effects of slavery on all attempts at social progress. “Slavery is no scholar, no improver; it does not love the whistle of the railroad; it does not love the newspaper, the mailbag, a college, a book, or a preacher who has the absurd whim of saying what he thinks; it does not increase the white population; it does not improve the soil; everything goes to decay” (AW 21). 206 L EN G OUGEON primary ward - and the town-meeting, and, what is important does reach him.” Throughout Lincoln’s administration there has been, in Emerson’s opinion, a unique and deliberate effort to reach out to the people, to become the people’s President. 25 Such leveling has not happened in autocratic Europe, or in America before now. “Not such, - far enough from such - is England, France, and Austria: and, indeed, not such was America under previous administrations” (AW 144). By comparison, the elitist politics of Europe remain essentially “Feudal” and the “six demands of chartism,” have still not been granted in England, while “they have all been granted here to begin with,” at least in the Free States (AW 144). America has obviously superseded England as the world’s most progressive democracy now that the last vestiges of aristocratic influence are being purged from the national character. “We are coming, - thanks to the war, - to a nationality. Put down your foot, and say to England, we know your merits. In past time, we have paid them the homage of ignoring your faults. We see them still. But it is time that you should hear the truth, - that you have failed in one of the great hours that put nations to the test” (AW 144-45). The final emergence of this new American nationality, one that emphasizes equality, liberty, and social justice, is obviously contingent on winning the war, followed by a policy of reconstruction that will abolish slavery and its poison forever. 26 To compromise at this point without achieving this goal would be the greatest of tragedies. “We [are] in the midst of a great revolution still enacting the sentiment of the Puritans, and the dreams of young people of thirty years ago, - we [are] passing out of old remainders of barbarism into pure Christianity and humanity, - into freedom of thought, of religion, of speech, of the press, of trade, of suffrage, or political right, and working through this tremendous ordeal” (AW 146). This new, and now more truly democratic government, is pro-active in serving the needs of the people. In addition to laying the groundwork for Land Grant Universities, through the Homestead Act (1862) the government now offers “a patch of land in the wilderness to every son of Adam who will till it.” Addition- 25 In 1862 Emerson met with Lincoln twice in the company of Senator Charles Sumner. Emerson was in Washington to deliver a lecture at the Smithsonian Institute where he urged that emancipation should become an official government policy. Lincoln may have attended this lecture (Gougeon, Virtue’s Hero 277-79). 26 In October of 1864, Emerson met with George Stearns, Wendell Phillips, and “Mr. Fowler of Tennessee,” to discuss the politics of reconstruction. On this topic he notes, “The two points would seem to be absolute Emancipation, - establishing the fact that the United States henceforward knows no color, no race, in its law, but legislates for all alike, - one law for all men: - that first; and, secondly, make the confiscation of rebel property final, as you did with the tories in the Revolution.” Such a course, notes Emerson, would also “redeem your wicked Indian policy, & leave no murderous complications to sew the seed of future wars” (JMN 15: 445). Emerson and the British: Challenging the Limits of Liberty 207 ally, we have begun “to strike off the chains which snuffling hypocrites have bound on the weaker race.” Emerson offers the Homestead Act as an example of equal opportunity in its purest form, something which would never have passed in a Congress dominated by conservative Southern slave interests. All of this progress, however, has come as the result of enormous sacrifice. In the struggle to liberalize democracy, many young Americans have imperiled their “lives and fortunes for a principle,” just as the Founding Fathers did with their Declaration of Independence (AW 146-47). For Emerson, a government that was truly “of the people” would care for those most in need, rather than ignoring, or worse yet, oppressing them as in the South and in England and throughout Feudal Europe. Such caring is an integral part of his vision for the new republic: Chartism in England asks that intellect and not property, or, at least, intellect as well as property, be represented in Parliament. Humanity asks that government shall not be ashamed to be tender and paternal; but that democratic institutions shall be more thoughtful for the interests of women, - for the training of children, for care of sick and unable persons and serious care of criminals, than was ever any the best government of the old world. (AW 147) The greatest threat to all of this progress is in reconciliation and compromise. “Through the whole war,” notes Emerson “there has been danger that on the first hint of peace from the South, our people would forget and forgive all, and rush inconsiderately into the arms of their returning prodigals, and, in the gladness of the hour, would accept any terms, - the Union as it was, - losing by this social weakness half the fruit of their valor and their sacrifice of life and treasure” (AW 149). He was not about to let this happen. The promise that democracy will fulfill itself in America is too great to be frittered away in the name of a false peace. Part of that promise, as Lincoln had indicated in his message to Congress in July 1861, was the opportunity for every man to rise to his highest potential. The war, he told the Congress at that early juncture, “is essentially a People’s contest. On the side of the Union, it is a struggle for maintaining in the world, that form, and substance of government, whose leading object is, to elevate the condition of men - to lift artificial weights from all shoulders - to clear the paths of laudable pursuit for all - to afford all, an unfettered start, and a fair chance, in the race of life” (4: 438). Obviously, Emerson shared this vision. For him it included all Americans, especially those who have been until now the most repressed and abused, the newly emancipated slaves. The government, he notes, now reaches out to the needy to offer opportunities for self-improvement. We “have a longer scale, and can reach the highest and the lowest degrees… . The steps already taken to teach the freedman his letters, and the decencies of life, are not worth much if they stop there. They teach the teacher, - open his eyes to new methods. They 208 L EN G OUGEON give him manliness and breadth he had not; and accustom him to a courage and poise” (AW 149). 27 The result of such efforts will be that which “the earth waits for, - exalted manhood, the new man, whom plainly this country must furnish” (AW 151). Unlike Carlyle and most of his British cohorts, Emerson was confident that emancipated slaves would eventually rise to take their rightful place in American society, once the intolerable burden of slavery has been lifted from their shoulders. Thus, in a later lecture titled “Books” (1864), Emerson notes, “There is much in the calamities we have suffered which is disinfecting. We have learned to forget foreign nations. We have grown internally - have begun to feel the strength of our strength. While European genius is symbolized by some majestic Corinne crowned in the capitol at Rome, American genius finds its true type - if I dare tell you - in the poor negro soldier lying in the trenches by the Potomac, with his spelling book in one hand and his musket in the other” (Uncollected Lectures, 41-42). Despite his earlier harsh remarks about Carlyle and the British, Emerson, in approaching the conclusion of his presentation, struck a conciliatory note by suggesting that we should not “go to war with England on account of Punch’s pictures, or the opinion of a drunken Lord Soft” (AW 152). 28 He reminds his listeners that “the times are dark, but heroic. The war uplifts us into generous sentiments.” Emerson also prophesies that in the future a reborn American nation will “work for honest humanity, for the poor, for justice, genius, and the public good. I wish to see that this country, the last found, is the great charity of God to the human race” (AW 152). Clearly, for Emerson the perfection of American society will come only when the powers of all the people, regardless of class, color, or gender are allowed to flourish. It was clear that Emerson’s vision of a truly democratic nation hinged on the successful prosecution of the war, and this, in turn, hinged on 27 Emerson had for some time been aware of the success of the Port Royal experiment where, early in the war, freed slaves in Port Royal, South Carolina, were organized and educated. Emerson’s wife and daughters, as members of the Women’s Antislavery Society in Concord, provided clothing and other support to the group. See Gougeon, Virtue’s Hero, 277-278. Emerson also made a cash contribution to the enterprise in which many of his friends were active. See von Frank, Chronology, 325. 28 The British satirical magazine Punch, in response to Lincoln’s Preliminary Emancipation Proclamation in September, 1862, ran a cartoon in the October 18, 1862 edition showing a very devilish looking Lincoln playing his “last card” in a poker game, atop a powder keg, with a neatly dressed Confederate adversary. The cartoon expressed a commonly held British assumption that Lincoln’s emancipation policy was a desperate war measure designed to incite a bloody “servile insurrection” in the South. This, and other such cartoons, served only to exacerbate the already strained relationship between the United States and Great Britain (Klinefelter, 28-35). Emerson and the British: Challenging the Limits of Liberty 209 Lincoln’s re-election. Despite the difficulties of the moment, however, Emerson remained confident that grass-roots democracy would save the day, now that the Southern stranglehold on government has been broken. “In each new threat of faction,” he asserted, “the ballot of the people has been beyond expectation right and decisive” (AW 152). 29 It is true that tremendous sacrifices have been made in the prosecution of the war, and that further sacrifices will undoubtedly be necessary to bring it to a satisfactory conclusion. “Slavery is broken, and, if we use our advantage, irretrievably. For such a gain, - to end once and for all that pest of all free institutions, - one generation might well be sacrificed, - perhaps it will be, - that this continent be purged, and a new era of equal rights dawn on the universe. Who would not, if it could be made certain, that the new morning of universal liberty should rise on our race, by the perishing of one generation, - who would not consent to die? ” (AW 153). Undoubtedly with the President’s re-nomination and re-election in mind, Emerson closed his address with a reminder to his audience of the power of their votes in a true democracy. “You will stand there for vast interests, North and South, East and West will be present to your mind, and your vote will be as if they voted. And you well know that your vote secures the foundations of the state, goodwill, liberty, and security of traffic and of production, and mutual increase of goodwill in the great interests, for no monopoly has been foisted in, no weak party or nationality has been sacrificed, no coward compromise has been conceded to a strong partner” (AW 153-54). America, after all, was not England. Here the common man could have his say in order that justice might prevail. Lincoln was re-elected in November of 1864 and lived to see the Union Army triumph in the field at last. Emerson viewed the eventual Union victory in the war as an affirmation of the principles of liberal democracy, the idea that government has an obligation to protect the weak from the strong, 29 Emerson, as a Transcendentalist, always believed in the importance and integrity of voting and also in its integrity. Because humanity is essentially good and guided by the divinity that is within, a free expression of the common will is more likely to be right than wrong. In “New England Reformers” (1844) he states that “Nothing shall warp me from the belief, that every man is a lover of the truth … the entertainment of the proposition of depravity is the last profligacy and profanation. There is no skepticism, no atheism but that. Could it be received into common belief, suicide would unpeople the planet.” He goes on to report, approvingly, that “I remember standing at the polls one day … and a good man at my side looking on the people, remarked, ‘I am satisfied that the largest part of these men, on either side, mean to vote right’”(CW 3: 163-64). It is this unshakable faith in the common decency of humanity that informs Kerry Larson’s assertion that “If Emerson can be said to have invented a religion of democracy, then its central tenet and inspiration is the summoning of an equality in the form of a radical likeness that connects each to all” (316) 210 L EN G OUGEON and to insure freedom, justice, and equal rights for all citizens, regardless of race or gender. 30 Regarding the British, while he may have eventually forgiven, he certainly never forgot the perfidious role played in the war by so many notable writers whom he deeply respected. Their tacit defense of slavery was clearly a violation of all that was decent in human nature. As such, it represented a grotesque failure of the very civilization that these writers sought to defend. In his journal he wrote, more in sadness than in anger, the following: Could we have believed that England should have disappointed us thus? that no man in all that civil, reading, brave, cosmopolitan country, should have looked at our revolution as a student of history, as philanthropist, eager to see what new possibilities for humanity were to begin, - what the inspirations were; what new move on the board the Genius of the world was preparing. No, but every one squinted; Lords, Ladies, statesmen, scholars, poets, all squinted, … Edinburg, Quarterly, Saturday Review, Gladstone, Russell, Palmerston, Brougham, nay Tennyson; Carlyle, I blush to say it; Arnold. Every one forgot his history, his poetry, his religion, & looked only at his shoptill, whether his salary, whether his small investment in the funds, would not be less: whether the stability of English order might not be in some degree endangered… . Every poet, every scholar, every great man, as well as the rich, thought only of his pocket book, & to our astonishment cried, Slavery forever! Down with the North! Why does not England join with France to protect the slaveholder? (JMN 15: 433-34) In the post-war period, Emerson continued to promote a pro-active government that would provide opportunities for education and economic development and thus promote the social and material advancement of all citizens. In the years immediately following the war, he was pleased to see the liberties that had been so dearly won enacted into law. The passage of the 13 th Amendment (1865) ended slavery forever; the 14 th Amendment (1866) guaranteed equal protection to all citizens, and the 15 th Amendment (1870) guaranteed suffrage to all adult males “without regard to race, color, or previous conditions of servitude.” Collaterally, the Union victory also reinforced the Liberal cause in England where the political descendents of the lowly Chartists were finally able to persuade Parliament to pass the Reform Act of 1867, substantially expanding the franchise for the first time 30 After the Civil War, Emerson became involved in the Women’s Suffrage Movement and offered them strong support. In a speech delivered in Boston at a gathering of the New England Woman’s Suffrage Association, in May 1869, and later reported in detail in the Boston Post (27 May 1869), he declared without qualification that, “The claim now pressed by woman is a claim for nothing less than all, than her share in all. She asks for her property; she asks for her rights, for her vote; she asks for her share in education, for her share in all the institutions of society, for her half of the whole world; and to this she is entitled.” At the close of the meeting, he accepted the titular vice-presidency of the organization. (Gougeon, Woman Question 588-90). Emerson and the British: Challenging the Limits of Liberty 211 since 1832. Reflecting on all of this in 1871, Emerson took comfort that a truly great victory had been won. Slavery had been defeated and “the Constitution not only amended, but construed in a new spirit” (LL 2: 344). In one of his last public addresses, Emerson returned once again to the topic of “The Fortune of the Republic” (1878). In this presentation, he offered a brief and succinct summary of his vision of the new liberal democracy that emerged from the war. It is one that America might well remember even now, at the beginning of a new millennium: The genius of this country has marked out our true policy, opportunity. Opportunity of civil rights, of education, of personal power, and not less of wealth; doors wide open. If I could have it, - free trade with all the world without toll or custom-houses, invitation as we now make every nation, to every race and skin, white men, red men, yellow men, black men; hospitality of fair field and equal laws to all. (W 11: 541) 212 L EN G OUGEON Works Cited Anonymous, “American Literature and the Civil War.” Fraser’s Magazine. April 1863, 517-527. Anonymous, “Fort Sumter to Fredericksburg.” Quarterly Review. April 1863. 323-353. Anonymous, “Slaves and Labourers.” The Saturday Review. 16 Jan. 1864. 71-72. Anonymous, “The Close of the American War,” Quarterly Review, April, 1865, pp. 107- 136. Adams, Ephraim Douglass. Great Britain and the American Civil War New York: Russell &- Russell, 1958 [1925]. Arnold, Matthew. Democratic Education. ed. R.H. Super. Ann Arbor: U of Michigan P, 1962. Bellows, Donald. “A Study of British Conservative Reaction to the American Civil War,” The Journal of Southern History 51 (February-November 1985): 505-526. Charvat, William. Emerson’s American Lecture Engagements: A Chronological List. New York: The New York Public Library, 1961. Conway, Moncure. “Thomas Carlyle,” Harper’s New Monthly Magazine, May 1881, 908-9. Donald, David Herbert. Lincoln. New York: Simon & Schuster, 1995. Carlyle, Thomas. “Ilias (Americana) in Nunce.” Macmillan’s Magazine. August 1863, 301. Crawford, Martin. “The Anglo-American Crisis of the Early 1860’s: A Framework for Revision,” The South Atlantic Quarterly 82 (1983): 406-423. Emerson, Ralph Waldo, “American Civilization.” The Atlantic Monthly. April, 1862. 502-511. —. The Complete Works of Ralph Waldo Emerson. 12 vols. ed. Edward Waldo Emerson. Boston: Houghton, Mifflin Co. 1903-1904. (Cited in the text as W.) —. The Journals and Miscellaneous Notebooks of Ralph Waldo Emerson. 16 vols. ed. William H. Gilman, Ralph Orth, et al. Cambridge: Harvard UP. 1960-1982. (Cited in the text as JMN.) —. The Collected Works of Ralph Waldo Emerson. 6 vols. to date. ed. Alfred R. Ferguson, Joseph Slater, and Douglas Emory Wilson. Cambridge: Harvard UP. 1971 - (Cited in the text as CW.) —. The Letters of Ralph Waldo Emerson, 10 vols. Ed. Ralph L. Rusk and Eleanor M. Tilton. New York: Columbia UP. 1939, 1990-1995. (Cited in the text as L.) —. Emerson’s Antislavery Writings. eds. Len Gougeon and Joel Myerson. New Haven, Conn.: Yale up. 1995. (Cited in the text as AW.) —. The Later Lectures of Ralph Waldo Emerson: 1843-1871. 2 vols. eds. Ronald Bosco and Joel Myerson. Athens: U. of Georgia P. 2001. (Cited in the text as LL.) —. Uncollected Lectures by Ralph Waldo Emerson. ed. Clarence Gohdes, Jr. New York: William Edwin Rudge, 1932. Fuller, Margaret. “Those Sad But Glorious Days: Dispatches from Europe, 1846-1850.” eds. Larry Reynolds and Susan Belasco Smith. New Haven: Yale UP, 1991. Gougeon, Len. Virtue’s Hero: Emerson, Antislavery, and Reform. Athens: U of Georgia P, 1990. —. “Emerson’s Abolition Conversion.” The Emerson Dilemma: Essays on Emerson and Social Reform. ed. T. Gregory Garvey. Athens: University of Georgia P, 2001. 170-196. —. “Carlyle, Emerson and the Civil War,” NEQ, 62: 3 (1989): 403-423. Emerson and the British: Challenging the Limits of Liberty 213 —. “Emerson’s Circle and the Crisis of the Civil War,” in Emersonian Circles: Essays in Honor of Joel Myerson, eds. Wesley T. Mott and Robert E. Burkholder Rochester: U of Rochester P, 1997. 29-51. —. “Emerson and the Woman Question: The Evolution of His Thought,” The New England Quarterly, December 1998, 71 (4), 570-592. Klinefelter, Lee M. “Lampooned in London,” Civil War Times Illustrated, 20(1982): 28-35. Larson, Kerry. “Emerson’s Strange Equality.” Nineteenth-Century Literature. 59(3): 315-339. Lincoln, Abraham. The Collected Works of Abraham Lincoln, 10 vols. ed. Roy P. Basler New Brunswick: Rutgers UP, 1953. Lowell, James Russell. “The Pickens-and Stealin’s Rebellion.” The Atlantic Monthly. June 1861, 757-763. Howe, M.A. De Wolfe. The Atlantic Monthly and its Makers. Boston: The Atlantic Monthly Press, 1909. Norton, Charles Eliot. The Correspondence of John Ruskin and Charles Eliot Norton, ed. John Lewis Bradley and Ian Ousby. Cambridge: Cambridge UP,1987. Rautenfeld, Hans von. “Thinking for Thousands: Emerson’s Theory of Political Representation in the Public Sphere.” American Journal of Political Science. 49(1), Jan. 2005, 184-197. Reynolds, Larry. European Revolutions and the American Literary Renaissance. New Haven: Yale UP. 1988. —. “Religious Violence: The Roman Republic and Margaret Fuller’s Revolutionary Example,” forthcoming in Margaret Fuller: Transatlantic Crossings in a Revolutionary Age, ed. Charles Capper. Richardson, Robert. Emerson: The Mind on Fire. Berkeley: U of California, P, 1995. Ruskin, John. The Correspondence of John Ruskin and Charles Eliot Norton, ed. John Lewis Bradley and Ian Ousby. Cambridge: Cambridge UP, 1987. Smith, Goldwin. “England and America,” The Atlantic Monthly, Dec. 1864. 749-769. Straka, Gerald M. “The Spirit of Carlyle in the Old South,” Historian 20 (1957): 39-57. Tennyson, Alfred Lord. The Letters of Alfred Lord Tennyson, 2 vols. Eds. Cecil Lang and Edgar Shammon, Jr., Cambridge: Harvard UP, 1987. Towle, George M., “Our Recent Foreign Relations.” The Atlantic Monthly. August 1864. 243-252. von Frank, Albert J. An Emerson Chronology. New York: G.K. Hall, 1994. Wills, Garry. “Negro President”: Jefferson and the Slave Power. Houghton Mifflin, 2003. B ROOK T HOMAS Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement I. On the fourth anniversary of the “Gettysburg Address,” Charles Sumner delivered a speech in New York called, “Are We a Nation? ” For him, the United States could not truly be called a nation until it provided equal political and civil rights for all of its citizens, including African Americans. Citing Lincoln’s famous address, which he calls, “the most touching speech of all history” (62), Sumner urges the country to incorporate the Declaration of Independence’s ideal of equality into the Constitution. “Liberty is won: Equality must be won also. In England there is Liberty without Equality; in France Equality without Liberty. The two together must be ours” (63). Five years later, arguing for a new Civil Rights Bill to supplement those of 1866 and 1870, Sumner again enlists Lincoln in his attempt to ensure equal rights for African Americans. “According to Lincoln,” Sumner argues, “the great issue of the war was Human Equality” (259). Quoting directly from the “Gettysburg Address,” he appropriates Lincoln, asking Congress to pass his bill as a way of finishing the work the “prophet-President, soon to be a martyr,” dedicated his life to achieving (226). In evoking Lincoln for the cause of civil rights, Sumner anticipated Martin Luther King, Jr., who symbolically staged his 1963 “I Have a Dream Speech” on the steps of the Lincoln Memorial. Indeed, a post-civil-rightsmovement generation has become accustomed to reading the “Gettysburg Address” the same way Sumner urges us to read it. Although never mentioned, slavery seems silently present. Reminding the nation that it was “conceived in liberty” and dedicated to the proposition that “All men are created equal,” Lincoln seems, to our ears, to be calling attention to the fact that those not conceived in liberty were denied that foundational promise. But, if the image of Lincoln as the Great Emancipator dominates people’s imaginations today, there is a darker counter image. For instance, soon after the Civil War a book was published called American Bastille. It consists of case studies of a number of US citizens whose civil liberties were allegedly violated by Lincoln during the war. Its introduction traces the history of civil liberties back to the Magna Charta, claiming that the contest for over five centuries was between the “sovereign and people, the one for royal prerogative, the other for the rights of per- 216 B ROOK T HOMAS sonal liberty” (xxx). With the formation of the American republic, in which the people became sovereign, this age old conflict seemed to resolve itself. Nonetheless, the author claims, it reappeared with the election of Lincoln, who instituted a regime of military despotism that gave the government the power of arbitrary arrests. “There was a time when the proudest appellation a man could bear was that of American citizen. ‘I am an American citizen,’ implied liberty and safety - protection and justice. Then, the national shield was, indeed, a shield with arms - a shield which defended the citizen against every act of tyranny and usurpation - a shield which guarded him on land and sea, at home and abroad” (xxxi). Lincoln, however, turned the shield into the service of military rule, trampling on the liberties of citizens. In doing so he defamed the national symbol of the liberty bell. For instance, his Secretary of State William Seward is quoted telling an English lord: “My lord, I can touch a bell on my right hand, and order the arrest of a citizen of Ohio; I can touch a bell again, and order the imprisonment of a citizen of New York; and no power on earth, except that of the President, can release them. Can the Queen of England do so much” (xiii)? 1 Not as popular as the image of Lincoln as Great Emancipator, the image of him as military despot persists. Edmund Wilson in Patriotic Gore called Lincoln a dictator and compared him to Bismark and Lenin. Wilson’s criticism inspired fictional accounts by Gore Vidal and William Safire. More recently, libertarians have taken up the banner and criticized Lincoln as a despot who created an authoritarian centralized state (Adams, Hummel, DiLorenzo). There are even those like Edward S. Corwin and Clinton Rossiter, who admit that Lincoln was a constitutional dictator, but who praise him for being one. This debate about Lincoln is, I will argue, more than a debate about a historical personality. It is symptomatic of the tensions that arose (and continue to arise) when people like Lincoln and Sumner try to realize the twin goals of liberty and equality. For those familiar with the work of Jacques Derrida, those tensions are signalled by the fact that Sumner called the legislation he was sponsoring the “Supplementary Civil Rights Bill.” If Sumner felt that, according to a logic of both/ and, the nation could add the goal of civil equality onto the existing one of civil liberty, Derrida’s logic of the supplement reminds us that to add something to an existing body is to transform it. This does not mean that liberty and equality exist in a relationship of either/ or, but it does mean that the Constitution could not be amended to ensure equal civil rights without altering the way in which it defined civil liberties. 1 The statement attributed to Seward is most likely a fabrication, but it was repeated frequently by well respected figures. Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 217 Indeed, the Civil War not only altered the definitions of both civil liberties and civil rights, it generated a distinction between the two. A recent textbook offers a standard contemporary understanding of their differences. “Civil liberties refer to the freedoms that individuals enjoy and that governments cannot invade. Civil rights refer to the powers and privileges that belong to us by virtue of our status as citizens” (Miroff 433). This distinction is helpful, but there are obvious complications. For instance, in the US almost all of our civil liberties derive from the Bill of Rights, which would seem to imply that rights and liberties blend into one another. Thus, if we include as civil rights the “privileges that belong to us by virtue of our status as citizens,” many of our civil liberties are also civil rights. In fact, prior to the Civil War “civil liberties” and “civil rights” were used interchangeably. For instance, when people criticized Lincoln’s crackdown on what today we would call civil liberties, such as freedom of speech and freedom of the press, they often protested his violation of civil rights, even if some of them opposed equal - and at times any - rights for blacks. What generated our present distinction was ratification of the Fourteenth Amendment and passage of various civil rights acts designed to protect the rights of freedmen. As a result, “civil rights” began to be distinguished from the “civil liberties” guaranteed by the Bill of Rights. 2 The purpose of this essay is twofold. First, I want to look closely at two famous debates about civil liberties during the Civil War and its immediate aftermath to illustrate the pressure war places on civil liberties in liberal democracies. That pressure is widely acknowledged and has generated debates that are still very much with us. Nonetheless, people engaged in them can benefit from a close look at the language that Lincoln used to defend his actions in the most notorious civil liberties dispute during the war as well as the language used by the Supreme Court in the most important civil liberties case to come out of the war. Divorced from its historical context, that language might seem to embody different positions in a timeless debate between the demands of national security and the ideal of civil liberty. My second goal is to place that debate in historical context by showing how the conflict over civil liberties during the Civil War affected debates about granting civil rights to African Americans and vice versa. To learn, as we will, that many of the most vocal defenders of civil rights condoned Lincoln’s crackdown on civil liberties while many of 2 At that time, civil rights were also distinguished from political rights, with political rights having to do with rights in relation to the government, such as the right to vote, and civil rights having to do with rights within civil society. But in the wake of the civil rights movement of the twentieth century, which was concerned with voter rights as well as others, the distinction between political and civil rights disappeared. For more on this distinction, see the Foreword to this volume. 218 B ROOK T HOMAS the harshest critics of his policies on civil liberties opposed civil rights will, I hope, provide a perspective on today’s debates that has too often been forgotten. II. Various suspensions of civil liberties coincided with the outbreak of the Civil War. In April, 1861, because of interference with the movement of troops and supplies, Lincoln suspended habeas corpus along the communication line between Philadelphia and Washington. In Ex parte Merryman Chief Justice Taney disagreed with the administration and granted a writ of habeas corpus to a Baltimore resident with Southern sympathies who had been arrested by military authorities. In a direct rebuke to the President, he also ruled that the Constitution authorized only Congress to suspend habeas corpus. The administration ignored Taney’s decision, but the question of who had the power to suspend habeas corpus was revisited September 24, 1862. Worried that “the ordinary processes of law” were not adequate” to deal with “disloyal persons” intent on hindering the military draft, Lincoln issued an executive order that created the new offenses of “discouraging enlistments” and “disloyal practices” while requiring such offenders and those who gave “aid and comfort to the rebels” to be subject to martial law, liable to trial and punishment by courts martial and military commissions without possibility of writ of habeas corpus. The issue seemed to be resolved March 3, 1863, when Congress authorized the President, during the rebellion, to suspend habeas corpus. But it also required the Secretaries of State and War to furnish Circuit and District judges lists of all citizens of loyal states held as political prisoners. If a grand jury had been adjourned without finding a indictment, the prisoner could be freed upon taking an oath of allegiance. This requirement was frequently ignored. It is by no means surprising that this controversy occurred in wartime. Wars inevitably test the protection of civil liberties in liberal democracies. If in Melville’s Billy Budd, Captain Vere argues that the Mutiny Act, with its lack of toleration for civil liberties, is “War’s child” and “Takes after the father” (112), William E. Rappard, writing on The Crisis of Democracy in 1938, claimed, “Democracy is a child of peace and cannot live apart from its mother” (265). As Supreme Court Justice Rutledge Wiley put it in 1944, “War is a contradiction of all that democracy implies. War is not and cannot be democratic” (379). World War I, for instance, led to some of the most famous free speech cases in the nation’s history. World War II forced the Supreme Court to decide if Japanese-American citizens could be interned in Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 219 the name of national security. The Vietnam War tested the limits of protest, and the so-called “War against Terrorism” has generated a number of controversies about civil liberties. Even so, the Civil War raised special questions. Lincoln felt that it was imperative to operate under the fiction that the Union still existed, meaning that it continued to include the very territory waging war against its troops. If so, could a country, blockade its own ports? Could a part of the United States be considered occupied territory? These questions were part of a larger one about the status of the rebellious states themselves. What rights did the rebels have? A common refrain in the North was that they had no rights that the government had to respect, an obvious allusion to Justice Taney’s claim in Dred Scott that African Americans had no rights that a white man had to respect. The more restrained response that they still had rights under the US Constitution invited the not so restrained objection that they should, therefore, be tried for treason. Indeed, the war saw a change in the law of treason (Randall). Northerners as well as Southerners were suspected of treason. Lincoln’s means of dealing with them sparked protests, especially from Democrats. Most of these protesters supported the war, even if they frequently disagreed with Lincoln’s conduct of it. At the same time, there were also Democrats, known as Copperheads, who opposed the war effort itself. Not themselves desiring to leave the Union, they argued for peace, claiming that a violent response to secession would create such animosity that it would be impossible ever to bring about a national reconciliation. If, to their enemies, Copperheads were Southern sympathizers, from their point of view they were honest critics of the administration. Their biggest base of support was in the mid-West, especially Ohio, Indiana, and Illinois. They were in part motivated by economics. Lincoln’s blockade of the Mississippi River led to a severe depression in the mid-West, which relied on the river for trade. That depression ignited already strong sectional loyalty. Midwesterners traditionally defined themselves against the East, not the South. Now it seemed as if Lincoln had become a tool of Northeastern capitalists, furthering their interests at the expense of midwestern farmers and artisans. Many of those farmers and artisans fell prey to “Negrophobia,” both because they felt that freed slaves would threaten their jobs or livelihoods and because of racial prejudice. They also resented a war that would free blacks while threatening their civil liberties. The most notorious Copperhead was Clement L. Vallandigham, a Democratic lawyer/ politician from Ohio. Vallandigham was a special target of Lincoln’s supporters because he was both bold and articulate. An admirer of Edmund Burke, Jefferson, and J.C. Calhoun, he eloquently quoted from the Constitution and classical history to bolster his arguments. His motto was 220 B ROOK T HOMAS “The Constitution as it is; the Union as it was.” 3 Both phrases registered his loyalty. He was a Unionist who defended the Constitution. But, combined, the two phrases also implied that the Union under Lincoln was no longer bound by the limits of the Constitution. Two of the most important aspects of the Constitution for Vallandigham were its protection of states’ rights and what today we would call individuals’ civil liberties, although he frequently called them civil rights. His promotion of civil liberties was longstanding. For instance, campaigning for the Ohio legislature in 1845, he advocated - unsuccessfully - the abolition of capital punishment. In Congress, before the war, he sponsored a bill to suppress harsh disciplinary practices on American sailing vessels and a resolution to grant Jews the same rights as other US citizens while travelling abroad. During the war, he sought - again unsuccessfully - to amend a bill so that rabbis could serve as chaplains in the army. Nonetheless, civil liberties for him were reserved for whites. As the historian most familiar with his work puts it, Vallandigham was “the congenital champion of the underdog - except where the rights of black men were concerned” (Klement 29). Even so, it is worth remembering that in 1850 his stand on slavery was very close to Lincoln’s. Like Lincoln at that time, Vallandigham considered slavery immoral, but felt that it was a local institution that could be abolished within a state only by that state. Lincoln would eventually change his view, while Vallandigham would speak less and less of slavery’s immorality and more and more about states’ rights. An important reason for this divide was the fact that Lincoln was a nationalist, while Vallandigham was a sectionalist. With midwestern sectional loyalty, Vallandigham did not blame the Confederate states for breaking up the union. He blamed, instead, abolitionists because their evocation of a “higher” standard of universal rights in order to impose their standards on the rest of the country violated the political, not moral, principle of the comity of sections. Vallandigham’s hatred of abolitionists was closely linked to his opposition to New England in general, a section which he associated with the moral rigidity of the Puritans. If, Vallandigham argued, peace were declared, and New England were not allowed to dominate US politics, common economic, cultural, and racial interests would eventually lead to reunification. He even toyed with the idea of imagining a split in the country at the Hudson River, not the Mason-Dixon line. Such arguments made Vallandigham a thorn in the side of the administration. Early during the war, he had even introduced a bill to imprison Lincoln if arrests of citizens in the loyal states persisted. His attacks on the administration were relentless and drew on the more radical oppositional 3 The best account of Vallandigham is Klement, 1970. Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 221 rhetoric of the time. The United States, he claimed, had turned to despotic rule in which the rights of citizens were no longer protected. He compared Lincoln to George III and Louis XV as well as to Caesar, Cromwell, and Napoleon. If these comparisons seem outrageous to us today, we have to remember that they were made before the myth of Lincoln emerged. There was widespread fear that this unschooled backwoodsman would, on the one hand, use the war to establish a dictatorship or, on the other, become simply the puppet of abolitionist or Northeastern capitalist interests. Thus people listened carefully when Vallandigham and others described wartime arrests as the institution of a reign of terror. Lincoln’s defenders clearly disagreed, but their rhetoric was often just as extreme. The Republican press branded Vallandigham a secessionist traitor, compared him to Benedict Arnold and Aaron Burr, and accused him of championing Jefferson Davis. Indeed, Vallandigham posed enough of a threat that getting him out of Congress became an important priority. Thus before the Fall 1862 Congressional elections, the Republican-controlled state legislature in Ohio redrew Vallandigham’s election district to make his defeat more likely. The strategy was successful, and despite large Republican losses in that election, Vallandigham was not reelected, although he would have won under the old boundaries. Vallandigham’s response to his ouster was to give a widely publicized speech from the halls of Congress January 14, 1863, demanding peace. Once the new Congress was seated, Vallandigham no longer had the Capitol as a forum to expound his ideas, but back in his home state of Ohio he soon found a new way to protest civil rights abuses. The chief military officer in the Ohio area was General Burnside, who was placed there after commanding the Army of the Potomac in the disastrous Battle of Fredericksburg in December, 1862. April 13, 1863, Burnside, who rented a home from a relative of Herman Melville, delivered General Order No. 38, which announced that “all persons found within our lines, who commit acts for the benefit of the enemies of our country will be tried as spies or traitors, and, if convicted, will suffer death.” In addition, “the habit of declaring sympathy for the enemy will not be allowed in this department. Persons committing such offenses will be at once arrested, with a view to being tried as above stated, or sent beyond our lines into the lines of their friends” (Nicolay and Hay v.7, 328-9). The wide latitude by which declarations of sympathy for the enemy could be interpreted made this order ripe for abuse, and it met with strong protests. May 1, 1863, in Mt Vernon, Ohio, Vallandigham decided to test its limits with an impassioned speech. He chose Mt. Vernon for symbolic purposes. Although he harshly criticized the government, he tried to make it clear that he did so as a patriot who honored the vision of the founding 222 B ROOK T HOMAS fathers. He began by alluding to the American flags that decorated the platform on which he spoke. They symbolized, he said, the Constitution of the country, made sacred by Democratic presidents. Expressing his reverence for the flag and his obedience to the Constitution, he went on to claim that, if it had not been for the Republican Party, all thirty four states represented by the flag’s stars would still be united. Turning to his rights as a freeman, he mocked Burnside’s General Order No. 38, calling it an usurpation of arbitrary power, and asserted that his right to speak derived from the Constitution. “The sooner the people inform the minions of usurped power that they will not submit to such restrictions upon their liberties, the better,” he was quoted as saying. After almost two hours, he moved toward his conclusion by urging that the “remedy” for all “the evils” was at the polling place through the “ballot-box.” Denouncing “King Lincoln,” he ended by professing his love of the Union and his desire to see it restored through compromise (Klement 152-5). An officer sent by Burnside took notes on the speech, and on the morning of May 5 soldiers forced their way into Vallandigham’s home and arrested him. They took him to Cincinnati and tried him the next day in military court. Vallandigham protested that, as a civilian, he should be tried in a civil court, but he was convicted of expressing sympathy for those in arms against the government of the United States. He was sentenced to confinement in a fortress of the United States for the duration of the war. All of this took Lincoln by surprise and most likely, if he had been consulted, he would not have condoned Vallandigham’s arrest. But he felt bound to support his general, although he did alter the sentence by directing that Vallandigham be sent behind Confederate lines. Lincoln’s strategy was to keep Vallandigham from becoming a martyr, and he was partially successful, since some were convinced that Vallandigham was a friend of the South. In fact, although Vallandigham was treated courteously, he was not received as a friend, since he continued to advocate peace and reunion, while the South wanted independence. Thus, even though the Republican press depicted him as among friends, the Confederates encouraged him to leave. Running the blockade to Bermuda, he proceeded to Canada, where, in exile, he conducted his campaign for governor in the fall election after being nominated by Ohio Democrats capitalizing on his newly won notoriety. Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 223 III. Vallandigham’s arrest and conviction sparked protests across the nation. 4 The most important was in Albany, New York. It resulted in a May 19, 1863, letter to the President sent by a group of prominent Democrats, including another Melville relative. Containing ten resolutions, the letter begins by asserting the loyalty of those who signed it as well as their support of the war. It, nonetheless, insists that the Administration stay true to the Constitution and recognize the “rights of the States and the liberties of the citizen” (Corning 741). Especially important was the maintenance of civil over military law, except in areas where civil courts could not operate. Vallandigham’s arrest and conviction, it argues, violated this great constitutional principle. Not guilty of treason as defined by the Constitution, he had been arrested merely for speaking out “in public against the Administration and military orders of a general” (Corning 741). Strategically quoting the Whig Daniel Webster on the right to criticize “public measures and the merits of public men,” it claims that Vallandigham’s arrest and conviction struck a “fatal blow at the supremacy of law, and the authority of the State and Federal constitutions” (Corning 742). Anticipating objections that the conditions of war demanded special measures, it counters, “That these safeguards of the rights of the citizen … were intended more especially for his protection in times of civil commotion. They were secured substantially to the English people, after years of protracted civil war, and were adopted into our Constitution at the close of the Revolution. They have stood the test of seventy-six years of trial under our republican system, under circumstances that show that, while they constitute the foundation of all free government, they are the elements of enduring stability of the Republic” (Corning 742). Concluding with a reassertion of the signers’ loyalty, it insists that the wrong done be undone. Although this letter was addressed to Lincoln, it was clearly intended to appeal to the court of public opinion, since it was widely published. Lincoln’s response was also widely publicized. He starts by congratulating the nation for his critics’ patriotism, “despite the folly or wickedness” that they think his administration has committed (Corning 743). Without calling attention to itself, this opening shrewdly refutes a major charge levelled against him. Accused of unconstitutionally imprisoning someone who spoke out against him, Lincoln responds with generosity and self-mockery, proof in itself that he is open to criticism. Indeed, if the criticism were “merely personal,” that would be the end of his response. But constitutional issues are at stake. Thus, he feels compelled to go on. 4 In addition to Klement, 1970, see Curtis. 224 B ROOK T HOMAS His critics, he notes, feel that the Constitution is the same in all circumstances. But, he argues, “in its application,” it is different “in cases of rebellion or invasion involving the public safety” from “time of profound peace and public security.” Addressing the concern that his policies violate basic principles of free government, Lincoln compares taking “strong measures in time of rebellion” with taking a drug when one is sick. Just as one is necessary, even if it is not “good food” when one is well, so the others are necessary, even if unconstitutional in time of peace (Corning 749). Necessary because a widespread conspiracy, plotted for thirty years, had positioned Southern sympathizers in “all departments of Government and nearly all the communities of the people.” Keeping “on foot among us a most efficient corps of spies, informers, suppliers, and aiders and abettors of their cause,” conspirators, “under cover of ‘liberty of speech,’ ‘liberty of press,’ and ‘habeas corpus’,” worked to destroy the Constitution at the same time that they appealed to it for protection (Corning 745). Civil courts, Lincoln insists, are “utterly incompetent” to deal with conspiracies of this sort. They “are organized chiefly for trials of individuals, or, at most, a few individuals acting in concert; and this in quiet times, and on charges of crimes well defined in law” (Corning 746). Only military courts, he claims, can deal with the threat of “insurgent sympathizers” in a time of national emergency. “Arrests by process of courts, and arrests in cases of rebellion, do not proceed altogether upon the same basis. The former is directed at the small percentage of ordinary and continuous perpetuation of crime; while the latter is directed at sudden and extensive uprisings against Government, which, at most, will succeed or fail in no great length of time. In the latter case, arrests are made, not so much for what has been done, as for what probably would be done” (Corning 746-7). To support this theory of preemptive arrests, Lincoln points to the many Confederate officers who at the outbreak of the war were still in the US military and imagines what would have happened if they had been arrested. “I think,” he speculates, “the time not unlikely to come when I shall be blamed for having made too few arrests rather than too many.” This example points to prominent rebels, but Lincoln gives a sense of how broadly he defines a sympathizer when he claims that, “The man who stands by and says nothing when the peril of his Government is discussed, cannot be misunderstood. If not hindered, he is sure to help the enemy; much more, if he talks ambiguously - talks for his country with ‘buts’ and ‘ifs’ and ‘ands’” (Corning 747). Despite turning silence and equivocation into disloyalty, Lincoln admits that, if Vallandigham had been arrested simply for criticizing the administration, he would have been wrongly arrested. But that was not his offence. Vallandigham was “damaging the army, upon the existence and vigor of Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 225 which the life of the nation depends. He was warring upon the military, and thus gave the military constitutional jurisdiction to lay hands upon him” (Corning 748). Lincoln’s evidence of Vallandigham’s assault on the military was his criticism of the draft. “He who dissuades one man from volunteering, or induces one soldier to desert,” Lincoln asserts, “weakens the Union cause as much as he who kills a Union soldier in battle” (Corning 746). The logic of Lincoln’s analogy may be a bit shaky, but, as he well knew, logic does not always win political arguments. Indeed, the most memorable and effective passage in his response appeals, not to logos, but to pathos. “Long experience,” he writes, “has shown that armies cannot be maintained unless desertions shall be punished by the severe penalty of death. The case requires, and the law and the Constitution sanction, this punishment. Must I shoot a simple-minded soldier-boy who deserts, while I must not touch the hair of a wily agitator who induces him to desert? … I think that in such a case to silence the agitator and save the boy is not only constitutional, but withal a great mercy” (748-9). Having transformed Vallandigham’s conviction into an act of mercy, Lincoln concludes with an appeal to bi-partisanship. Noting that his critics refer to themselves as “‘Democrats’ rather than ‘American citizens,’” he implies that their criticism is linked to politics. “In this time of national peril,” he implores, “I would have preferred to meet you upon a level one step higher than any party platform” (Corning 749). Lincoln’s response moved enough people so that, along with military victories at Gettysburg and Vicksburg, it helped defeat Vallandigham in the fall election. Politically effective in the short run, it remains, however, a stain on his reputation. Indeed, Lincoln’s paranoid fears of conspiracy, his defense of preemptive arrests, and his charge that any qualification of loyalty is an aid to the enemy show why he has been harshly criticized by some defenders of civil liberties. Those critics would seem to have had the last word. When Vallandigham’s appeal came to the Supreme Court in the midst of war, the Court retreated behind a technicality and refused to hear it. But soon after the war ended, it heard a case that raised similar substantive issues. In Ex parte Milligan the Court gave a clear rebuke to Lincoln’s policies of trying civilians by military commissions. It is to that case that I now want to turn, for it, more than any other, affirms the Constitution’s commitment to civil liberties during wartime at the same time that it illustrates the postbellum conflict between civil rights and civil liberties. 226 B ROOK T HOMAS IV. Like Vallandigham, Lamdin P. Milligan was a Copperhead. In his home state of Indiana, he criticized Lincoln’s policies during the war, especially his crackdown on “civil rights” through the institution of the draft and the suspension of habeas corpus. Thought to be a member of the Sons of Liberty, which allegedly conspired with the Confederates, Milligan was accused of trying to prevent enlistments and encouraging desertion. Denied habeas corpus and tried by a military tribunal, he was sentenced to hang, prompting him to petition, unsuccessfully, first to Lincoln and then to Andrew Johnson for a pardon. Nonetheless, he eventually did have his sentence commuted to life imprisonment, allowing him to pursue his legal challenge to the Supreme Court. The case for the government was argued primarily by Attorney General A.G. Speed and General Benjamin Butler. Butler had gained notoriety during the Civil War for the harsh martial law he imposed as commanding officer over occupied New Orleans. For instance, one New Orleans citizen was hanged for tearing down the US flag. The incident that got him the most publicity, however, was his insult to southern womanhood when he declared that “Any lady who shall by word or gesture express contempt of any Federal officer or soldier shall be liable, without protection or redress, to be treated as common prostitutes are treated” (Campbell 106). Arrayed against him was a formidable team of legal minds. David Dudley Field, born in New England, was the brother of Supreme Court Justice Stephen S. Field and Cyrus W. Field, the man responsible for the transatlantic cable. In 1848 Field had written a code of civil procedures for the state of New York that became the basis of civil law reform in the United States and abroad. The Field Code influenced the English Judicature Acts of 1873 and 1875, which were then adopted by many British colonies. Among other things, as a democratic reform aimed at an institution once associated with the Crown, it abolished courts of equity, thus denying Melville’s fictional lawyer in “Bartelby” some easily earned income. By inclination a Democrat, Field had such strong anti-slavery convictions that he joined the Republican Party and helped nominate Lincoln. Working with Field was Jeremiah S. Black, who had been Attorney General under President Buchanan. Black also recruited a rising Republican from Ohio, General James Garfield, who would be elected President in 1880. The crucial issues at stake were the extent of the President’s power in wartime and whether he could authorize a military commission to try a civilian when, as was the case in Indiana, civil courts were open. Both sides drew on examples from history to offer opposing accounts of “the progress and development of Anglo-Saxon liberty” (56). Milligan’s attorneys claimed Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 227 that he had been denied rights guaranteed by the Constitution and that those rights could not be suspended during wartime. Reminding the Court that executive power is not a kingly power, they insisted that the only theory of government “compatible with civil liberty” is one that restricts the power of the executive (31). At the same time, they insisted that the framers of the Constitution were wise enough not to restrict those powers too much. As Black put it, “This government of ours has powers to defend itself without violating its own laws; it does not carry the seeds of destruction in its own bosom. It is clothed from head to foot in a panoply of defensive armor” (81-2). Butler agreed, but only because, he argued, the Constitution gave the President powers during war that Milligan’s lawyers would deny him. “We insist only that the Constitution be interpreted so as to save the nation, and not let it perish” (104). Civil courts might have been open in Indiana, but only “because the strong arm of the military upheld them” (87). Getting in a dig at Black, who had been Buchanan’s attorney general, he alluded to Buchanan’s helplessness in the face of secession. One danger to the nation that Black did not consider, he gloated, was “Imbecility of administration; such an administration as should say that there is no constitutional right in a State to go out of the Union, but that there is no power in the Constitution to coerce a State or her people, if she choose to go out” (89). The Court sided with Milligan, unanimously ruling that the President had no authority to try a civilian in military courts when civil courts were open. According to Justice David Davis, “No greater question was ever considered by this court, nor one which more nearly concerns the rights of the whole people” (118-9). Contrary to the Constitution, Milligan had been denied trial by a proper court of law and trial by jury. To the objection that conditions of rebellion and war created special circumstances, Davis replied, The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protections all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity upon which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority (120-1). To the objection that the military commission was justified by martial law, Davis replied, “If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the 228 B ROOK T HOMAS cost of preservation” (126). For Justice Davis “Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish” (124-5). For the Court, it was paramount that civil liberty survive. In many ways a rebuke to Lincoln, this spirited defence of civil liberties transcended party lines. Lincoln himself had appointed five members of the Court, including Justice Davis, his friend and campaign manager. In addition, as we have seen, Milligan’s defence included, not only two of the most famous Democratic lawyers of the day, Black and Field, but also the Republican Garfield. Garfield knew that he would be attacked by some partisan Republicans for serving “in defense of traitors” (395). But even though he had been a brigadier general, had denounced Copperheads, and had signed the order transferring Vallandigham to the Confederacy, he had, in his own words, “resisted some attempts to extend the power of Military Commissions so far as to try civilians who were interfering in any way with the war - such fellows as Vallandigham. I had resisted that as being un-American and contrary to the old English spirit of liberty” (825-6). Thus when the opportunity came to help defend Milligan, he wrote to a friend, “I was willing to subject myself to the misunderstanding of some for the sake of securing the supremacy of the civil over the military authority” (395). Despite Ex parte Milligan, the supremacy of civilian authority is by no means assured today. Indeed, the Bush administration has justified its crackdown on civil liberties by evoking the example of Lincoln and drawing on arguments he made. It has also drawn on a metaphor Justice Robert H. Jackson used in his dissent in the 1949 free speech case Terminiello v. Chicago. In Terminiello, the Court’s majority had overturned the disorderly conduct conviction of a right-wing, anti-Semitic, pro-Nazi priest, whose speech had provoked a riot. According to Justice William O. Douglas’s opinion, the Chicago ordinance under which Terminiello had been convicted violated the First Amendment because it was too broadly constructed. Having recently served as prosecutor of the Nuremburg war crimes trials, Justice Jackson, joined by Justice Burton, responded by pointing out the danger of letting people like Terminiello exploit our protection of civil liberties in order to destroy our democratic form of government. “The choice,” he argued, “is not between order and liberty. It is between liberty with order and anarchy without either. There is a danger that if the Court, does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact” (37). 5 5 Four years earlier in the notorious case of Korematsu v. U.S. 323 U.S. 214 at 244), Justice Jackson had argued, “The armed services must protect a society, not merely its Constitution.” This statement came, however, in a courageous dissent. Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 229 In raising the fear of national suicide, Justice Jackson was influenced by Lincoln’s argument in the Vallandigham case. Writing about the conflict between “liberty and authority,” “perhaps the most delicate, difficult and shifting of all balances which the Court is expected to maintain,” he claims that “President Lincoln in his famous letter to Erastus Corning and others, defended his conduct,” and said “all that ever could be said and always will be said” in favor of suspending civil liberties “in time of national emergency” (75). For Jackson, following the logic of Lincoln, it would be illogical for the Constitution to protect actions leading to the destruction of the nation it constituted. What neither Justice Jackson nor the Bush Administration acknowledge, however, is the fact that the metaphor of suicide had been used in Milligan - but for very different purposes. Arguing against the government’s claim that national security justified the President’s violation of civil liberties, Attorney Black warned, “A violation of law on the pretence of saving such a government as ours is not self-preservation, but suicide” (81). From Black’s point of view, one adopted by the Court in Milligan, the real risk of suicide comes from abusing the founding principles of the nation while claiming to save it. To violate the document that constitutes the nation is not to save it, but to destroy it. 6 Given such arguments and Justice Davis’s impassioned language, it is no wonder that, soon after World War I, Charles Warren noted that Ex parte Milligan had been “long recognized as one of the bulwarks of American liberty” (v.2 427). Similarly, soon after World War II, Allan Nevins ventured that “The heart of the decision is the heart of the difference between the United States of America and Nazi Germany or the Soviet Union” (118). It is certainly cited today by those opposed to the Bush administration’s policy on civil liberties. What they do not know is that, when it was first decided, it was compared to Dred Scott and opposed by those seeking to grant civil rights to newly freed slaves. 6 Black’s use of the metaphor was repeated in the 1963 case of Kennedy v. Mendoza- Martinez. In that case, Justice Arthur J. Goldberg ruled that the government could not automatically take away the citizenship of someone who left the country to evade the military draft. Writing in the light of a long history of constitutional challenges to the draft, especially in the Civil War and World War I, he wrote: “The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against the invasions of individual rights, it is not a suicide pact” (159-60). From Justice Goldberg’s point of view, the Constitution allows Congress to have the powers it has to institute a draft only because it simultaneously protects individual rights. Far from leading to a potential destruction of the document, maintaining those protections is essential to its life. 230 B ROOK T HOMAS V. The extent to which Milligan pitted proponents of civil rights against those of civil liberties is illustrated by the government’s argument. On the one hand, Attorney General Speed and Butler used language, according to a respected twentieth-century legal scholar, “suited to the royal Stuarts in times before the prerogative had been bound by law and custom of the constitution” (Fairman 201). With the onset of war, they declared, the President was the “sole judge of the exigencies, necessities, and duties of the occasion, their extent and duration. During the war his power must be without limit” (18). On the other hand, it was Butler who raised a point that seems obvious to people today. Responding to eloquent arguments about constitutional protections of liberty, he reminds the Court, “The Constitution provides that ‘no person’ shall be deprived of liberty without due process of law. And yet, as we know, whole generations of people in this land - as many as four millions of them at one time - people described in the Constitution by the same word, ‘persons,’ have been till lately deprived of liberty ever since the adoption of the Constitution, without any process of law whatever” (103). As Butler well knew, the wartime effort that led to the emancipation of those people often infringed on other people’s civil liberties. For instance, Lincoln coupled his September 24, 1862, crackdown on civil liberties with the Preliminary Emancipation Proclamation two days earlier. The two were linked because both relied on the executive powers the President claimed as Commander-in-Chief during wartime. In his “First Inaugural” he had unequivocally stated that the Constitution gave him “no lawful right” to “interfere with the institution of slavery in the States where it exists” (109). A year and a half later, he interfered with slavery after all, evoking his constitutional authority to put down an armed rebellion. Arguing that slavery’s existence in rebellious states aided their military efforts, Lincoln abolished it, not universally, but only in those states where its existence posed a threat to the Northern Army. Many who attacked Lincoln’s crackdown on civil liberties also attacked his use of wartime powers to free slaves. This included New England’s Benjamin Curtis, who as a Supreme Court Justice had written a powerful dissent in Dred Scott. Nonetheless, after the war, most who shared Butler’s desire to make former slaves equal citizens compared Milligan, the case Nevins would call “a great triumph for the civil liberties of Americans in time of war or internal dissension” (118), to the infamous case of Dred Scott. Today’s defenders of civil liberties would probably agree with Justice Davis when he denied the appropriateness of that comparison. Dred Scott, he argued, served the interests of slavery, whereas Milligan spoke for liberty. Indeed, when attacked, he pleaded for public help from former Justice Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 231 Curtis. 7 But the comparison made perfect sense to Radical Republicans at the time. It did because of a division in the Court. Although it unanimously held that the military commission authorized by the President was unlawful, it split over another, extremely contentious, issue. Not required by the circumstances of the case, a five-justice majority ruled that Congress, the voice of the people, as well as the President, had no constitutional power to create military commissions during wartime. Their opinion provoked a strong dissent from the other four justices, including Chief Justice Chase. These four justices agreed with the other five that the way Milligan was tried violated the March 3, 1863, Act of Congress that authorized the suspension of habeas corpus but placed various conditions upon the executive branch when it did so. Once that point was established, however, they felt that the Court’s business was done. They very much disagreed with the majority that the Constitution forbid even Congress from establishing military commissions during wartime. “Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief… . The power to make necessary laws is in the Congress; the power to execute in the President” (139). To be sure, Congress did not choose to exercise its power to create military commissions. Even so, the minority insisted, “in such a time of public danger, Congress had power, under the Constitution,” to authorize military trials, even when civil courts were open (140). The minority’s reasoning was powerful enough to cause even Warren to temper his praise of the decision by noting that “there was a serious and well-founded criticism” of the Court’s ruling on the power of Congress (440). Indeed, in 1866 Radical Republicans felt that, in limiting Congress’s power, the Court had, as in Dred Scott, catered to Southern interests. If Dred 7 Curtis was sympathetic. With Congress threatening to impeach the President for failing to go along with its plans for Radical Reconstruction, he felt that “at present the question is whether Congress can destroy the Executive power.” He also felt that the bar “can be & will be wholly persuaded that the decision is right” (Fairman 235). He did not, however, have the energy or time to publish a pamphlet on Davis‘s behalf. Fairman also notes that in fact one could argue that “Dred Scott asserted a Fifth Amendment liberty, whereas Milligan was read throughout the Southern States as a new affirmation that Congress would not be allowed to interfere with their own peculiar institution” (236). Even before the end of the war Justice Davis had written a friend about Sumner’s plans for Reconstruction, “The negro can never be elevated to social & political rights in this country & all wise statesmen know it” (Fairman 60). 232 B ROOK T HOMAS Scott did so by overruling the Missouri Compromise, which gave Congress power over US territories, Milligan did so by limiting Congress’s power to establish military rule in the South, which was necessary to protect the rights of freedmen during Reconstruction. In both, the controversial rulings were made in dicta of split decisions, not necessary for the outcome of the case. Furthermore, both majorities justified their rulings in the name of civil liberties. Dred Scott was the first Supreme Court decision to evoke the Bill of Rights to overturn Congressional legislation. It did so when Justice Taney cited the due process clause of the Fifth Amendment to argue that the Missouri Compromise deprived a US citizen of “his liberty or property, merely because he brought his property [a slave] into a particular Territory of the United States” (Fairman 216 n102). Milligan asserted the supremacy of civilian over military rule by guaranteeing citizens the right to be tried in civil courts. In a letter to Chief Justice Chase, John Jay expressed great concern about the majority decision. “If, as the public begin to fear, their denial of the powers of Congress is any index to the view they are prepared to take of the great questions that will come before them in reference to Reconstruction, our situation is certainly a grave one” (Warren 428). Thaddeaus Stevens, the driving force behind Congressional Reconstruction, felt that Milligan, “although in terms not as infamous as the Dred Scott decision, is yet far more dangerous in its operation upon the lives and liberties of the loyal men of this country” (Warren 448). Harper’s Weekly fumed, “The action in regard to the Supreme Court need not be misunderstood. It is not, whether in time of peace in loyal States the civil Courts shall be supreme, which nobody questions. It is, whether loyal men or rebels shall reorganize the Union” (Warren 447). It went on to advocate packing the Court to turn the five-judge majority into a minority. These fears seemed justified when President Johnson immediately stopped all military trials of civilians in the occupied South and read the decision as endorsing his plan to end military rule as soon as possible. In the end, however, the fears of Radical Republicans were not completely justified, since the Court did not declare military rule of the South during Reconstruction unconstitutional. 8 Even so, the Court never came close to endorsing Sumner’s vision of a unified nation dedicated to both liberty and equality. For Sumner, the “essential conditions of national life” were “one sovereignty, one citizen- 8 David Dudley Field along with William Cullen Bryant did support President Johnson’s veto of the Freedman’s Bureau Bill. Even though the veto was not sustained, Bryant’s New York Evening Post expressed grave concern that the bill’s authorization of “military protection” and “military jurisdiction over all cases and questions” concerning freedmen’s rights would be a pernicious “danger to the liberties of the country” (Fairman 344). Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 233 ship, one people” (61). Achieving that unity would, he felt, transform the “whole face of the country… . There will be concord for discord, smiles for frowns. There will be a new consciousness of national life, with a corresponding glow. The soul will dilate with the assured unity of the Republic, and all will feel the glory of its citizenship. Since that of Rome, nothing so commanding” (63-4). Sumner’s allusion to Rome is telling. He claimed to speak of the unity of a republic, but many feared that his program would turn the United States into an empire. He acknowledges as much himself. “Each locality,” he argued, “has its own way in matters peculiar to itself. But the rights of all must be placed under the protection of all; … Here the rule must be uniform, and it must be sustained by the central power radiating to every part of the various empire… . Call it imperialism, if you please: it is simply the imperialism of the Declaration of Independence with all its promises fulfilled” (60). Sumner’s attempt to enlist the Declaration in the service of an imperialist mission was strongly opposed by those who celebrated it for liberating the colonies from Britain’s imperial yoke. Liberty in the United States, they felt, had been maintained by resisting the centralizing tendencies that Sumner espoused. To a large extent, the Supreme Court went along. Less than a decade after the end of the war, in the Slaughter House Cases (1873), it made clear that there were still two citizenships in the United States: state and national. If that case did not involve the rights of freedman, one decided in 1876 did. The case of United States v. Cruikshank resulted from events Easter Sunday 1873 in Colfax (named after Republican Vice President Schuyler Colfax) in the newly established Grant Parish in Louisiana. When the Republican governor appointed some of his supporters, including blacks, to local offices, a newly established White League and other paramilitary groups with access to riverboat cannons resisted, storming the local courthouse occupied by outmanned but armed blacks. Two whites were killed, while from 69 to over a hundred blacks were killed. Federal troops captured a number of whites who were brought to trial. Of the nearly one hundred defendants, William Cruikshank and two others were convicted under the 1870 Federal Enforcement Act of conspiracy to “injure, oppress, threaten, or intimidate” African Americans trying to exercise their rights as citizens. On appeal, the case made its way to the Supreme Court. 9 The Court overturned the convictions by maintaining a strict separation between federal and state citizenship. “There is in our political system,” the Court summarized, “a government of each of the several States, and a government of the United States. Each is distinct from the others, and has citizens of its own, who owe it allegiance, and whose rights, within its juris- 9 See Soifer for an account of the events leading to the case. 234 B ROOK T HOMAS diction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State; but his rights of citizenship under one of these governments will be different from those he has under the other.” Although “within the scope of its powers,” the US government is “supreme and beyond the States,” its scope is limited. It “can neither grant nor secure to its citizens rights or privileges which are not expressedly or by implication placed under its jurisdiction.” Since the right in question, “the right of the people peacefully to assemble for lawful purposes,” existed “long before the adoption of the Constitution,” it does not come within the scope of federal powers, but is instead a right to be protected by the states. “Sovereignty, for the protection of the rights of life and personal liberty within the respective States, rests alone with the States” (542). As a result, the rights Cruikshank was accused of violating were not covered under the Federal Enforcement Act, and responsibility for protecting them rested with individual states whose sovereignty pre-dated the Constitution. A clear rebuke to Sumner’s ideal of one sovereignty and one citizenship, Cruikshank confirms his belief that the rights of African Americans would not be protected without granting imperial power to a centralized national government. As such, it is a terrible blot on the reputation of the Court. But even as we condemn it, we need to recognize that, from the perspective of the Court and of Cruikshank’s lawyers, it rested on some of the same principles of constitutional liberty that underlay the Milligan case. In Milligan Justice Davis declared that “it is the birthright of every American citizen when charged with crime, to be tried and punished according to law” (119). Similarly, in Cruikshank the Court ruled, “In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right ‘to be informed of the nature and cause of the accusation.’ The indictment must set forth the offence with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged, and every ingredient of which the offence is composed must be accurately and clearly alleged” (544). The government had not heeded this guarantee, and, just as in Milligan, some justices felt that Milligan had acted improperly, but felt that he should not be convicted if the government violated fundamental principles of civil liberty, so some justices in Cruikshank felt the same. It is worth speculating about what stand the ACLU would have taken on this case, if it had existed at the time. What we do know is that David Dudley Field, who argued Milligan’s case, argued Cruikshank’s, employing some of the same rhetoric. Field was joined by Reverdy Johnson, who as a Senator had passionately argued against trials by military commissions because they disregarded “all the safeguards and rules of evidence, adopted after the experience of centuries” (Fairman 188). We also know that even some moderate Republicans, includ- Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 235 ing Carl Schurz, who was both anti-slavery and a great defender of civil liberties, claimed that the Enforcement Act and the accompanying Ku Klux Klan Act threatened the status of the states as “depositories of the rights of the individual” (Foner 456). The Ku Klux Klan Act even had a provision authorizing the suspension of habeas corpus. That provision points to how complicated the relation between civil liberties and civil rights was in the period. In 1867 Radical Republicans had passed the Habeas Corpus Act because they felt it was necessary to allow blacks and white Unionists in the South to appeal to federal, not state, courts. What they could not anticipate was that, when Republican-controlled state governments tried to crack down on the Klan, suspected members used it for their own benefit. Thus, four years later, those passing the Ku Klux Klan Act felt that the protection of blacks and white Unionists now depended on the possibility of suspending habeas corpus. If the Court’s decision in Cruikshank seemed to spell the end of Sumner’s vision of equal rights for all citizens, 1875 had seen passage of legislation that promised to move closer to that ideal. Congress had passed important civil rights bills in 1866 and again in 1870. Even so, Sumner tried a number of times to bring into law a new act that provided more extensive federal guarantees. January 15, 1872, he made the memorable speech I quoted at the start. Calling the “Declaration of Independence our Magna Charta,” he declares that “equality in rights is not only the first of rights, it is the axiom of political truth” (223). The real issue of the Civil War, he insists, pitting comments of Jefferson Davis against those of Lincoln, was the South’s refusal to accept this axiom. Waxing eloquent, he enthuses, “There is beauty in art, in literature, in science, and in every triumph of intelligence, all of which I covet for my country; but there is a higher beauty still in relieving the poor, in elevating the down-trodden. There is true grandeur in an example of justice, making the rights of all the same as our own” (260). Then, in a move guaranteed to mobilize opposition, he associates maintaining civil equality with the extension of the war, “Only by maintaining Equality will you maintain the great victory of the war” (262). Sumner’s bill was so important to him that, as he lay dying in 1874, he urged his friends E.R. Hoar and Frederick Douglass to dedicate themselves to its passage. A major roadblock to that death-bed wish arose in the Fall 1874 election when Democrats, for the first time since the war, took control of the House. Sparked into action, a lame-duck Republican Congress, partly in tribute to Sumner and led by the notorious Benjamin Butler, passed the 1875 Civil Rights Act, even though it lacked Sumner’s cherished provision outlawing segregated schools. Watered down, it was still a powerful statement that banned acts of racial discrimination in housing, theaters, and trains, etc.. Resisted and challenged in the South, this bill was on the books 236 B ROOK T HOMAS for only eight years. 10 In its October 1883 session, the US Supreme Court by an eight to one majority declared most of its provisions unconstitutional. The opinion of Court was written by Justice Joseph P. Bradley. Bradley had played a crucial role in the disputed election of 1876 when November results gave Democrat Samuel Tilden a clear majority over Republican Rutherford Hayes in the popular vote, but left the electoral college vote in dispute because three Southern states - South Carolina, Louisiana, and Florida - had rival sets of electors, one committed to Hayes, the other to Tilden. The controversy threatened to divide the country only eleven years after the end of civil war. Some Democrats went so far as to chant, “Tilden or Blood! ” Even if armed insurrection was unlikely so long as Republicans were in charge of the presidency and the army, Democrats in Congress still could have stopped the count of electors and made the job of any new president impossible. But cooler heads prevailed. Coming together, Democratic and Republican congressmen used their constitutional authority to create a special Electoral Commission of fifteen to decide disputes in the three states. The Commission was made up of five members of the House and five members of the Senate, evenly divided by party. Republican representatives included Hoar and Garfield. The Commission also had five Supreme Court Justices: two Republicans, two Democrats, and, it was planned, Justice Davis, a nominal Republican, but, especially because of his role in Milligan, someone trusted more by Democrats than by Republicans. Davis, however, was appointed Senator in Illinois. His replacement was Justice Bradley, a Republican, but recently applauded by Democrats for helping to bring Cruikshank to the Court. By an eight to seven majority, along strict party lines - with Bradley delivering the deciding vote - the Commission awarded all three states to Hayes and gave him a one-vote victory in the Electoral College. Intent on healing the country, Hayes unofficially agreed to one of the Democrats’ most important demands. Federal troops in the South would be returned to their barracks and not used to prop up Republican rule in states of the former Confederacy. Reconstruction ended when the new president took office March 1877 by announcing his “New Departure.” When Bradley penned the decision in the 1883 Civil Rights Cases, some felt that he was paying back a debt he owed Southerners for his role in the 1876 election. Whether that speculation is true or not, the decision was a stunning blow to advocates of civil rights. 10 A sense of this resistance can be found in Sidney Lanier’s poem called “Civil Rights” (1874). Kerkering discusses it but mistakenly dates the bill passed by Congress as 1874. He also misreads the poem by attributing the views of its uneducated, “cracker,” narrator with Lanier, thus missing how Lanier delivers his protest indirectly by dramatizing the effect it had on a certain class of Southerners. Lanier dismissed comparisons between his poem and Bret Harte’s “The Heathen Chinee” (128-9). Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 237 Douglass, for instance, who was silent when Hayes ended Reconstruction, spoke out forcefully against the decision. Indeed, given Douglass’s faith in rule by law, one reason he might not have protested the events of 1877 was the fact that the Civil Rights Act of 1875 was on the books, providing for federal intervention in cases of racial discrimination. From our present perspective, Douglass’s anger seems fully justified. After all, the Fourteenth Amendment adopted in 1868 guarantees “equal protection of the laws,” which was all that the 1875 Act seemed to do. The Court’s decision, however, was based on a careful reading of the exact words of the Amendment. Deemed necessary because the Thirteenth Amendment forbade slavery and involuntary servitude without guaranteeing citizenship to African Americans, the Fourteenth Amendment has four clauses. The citizenship clause makes all “persons born or naturalized in the United States, and the subject to the jurisdiction thereof,” citizens. The second clause forbids states from abridging “the privileges and immunities” of US citizens. The third clause forbids states from depriving “any person of life, liberty, or property, without due process of law.” Likewise, the fourth forbids states from “denying to any person within its jurisdiction the equal protection of the laws.” The problem with the 1875 Act, according to the majority, was that it forbade discrimination in acts involving private parties, whereas in fact the Fourteenth Amendment addresses only “state action.” To grant the federal government power to forbid individual states from denying people equal protection was not, it argued, to give the federal government the power to police the relations between individuals. That power in our federal system is the responsibility of individual states. Thus the 1875 Act overstepped its authority and was unconstitutional. The most unsavory part of Bradley’s decision comes in his dismissal of the US government’s claim that the 1875 Act was authorized not only by the Fourteenth but also by the Thirteenth Amendment. Soon after the Thirteenth Amendment was passed, the Court had ruled that it forbade, not only the institution of slavery, but any badges and incidents of slavery. Because slavery had given rise to the sense of black inferiority, racial discrimination, the government argued, was a badge of slavery. Bradley strongly disagreed. Mere discrimination on the basis of race or color did not, he emphasized, stamp blacks with a badge of servitude linked to the institution of slavery. After all, free blacks in the antebellum period had also experienced discrimination. Declaring an end to what he saw as the federal government’s paternal protection of freedmen, he pronounced, “When a man has emerged from slavery, and by aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the ranks of a mere citizen, and ceases to be the special favorite of the law, and when his rights as a citizen or a man are 238 B ROOK T HOMAS to be protected in the ordinary modes by which other men’s rights are protected” (25). If that misguided sentence is frequently quoted, one almost universally overlooked reveals the extent to which Bradley felt that the attempt to enforce equal civil rights was a threat to individual liberty. For the federal government to try to “cover the whole domain of rights appertaining to life, liberty, and property” would, Bradley declared, “establish a code of municipal law regulative of all private rights between man and man in society” (13). Enforced civil equality, Bradley and seven other justices agreed, posed a risk to individual liberty. The majority opinion elicited a powerful dissent from Justice John Marshall Harlan, the only Southerner on the Court at the time and a former slaveholder. The dissent did not come easily, however. Noticing the difficulty that her husband was having writing, Harlan’s wife placed Taney’s inkstand - a prized momento of the couple - in a noticeable position on his desk. The memory of the role that Taney’s inkstand had played in Dred Scott seemed to motivate Harlan, who overcame his writer’s block and soon finished his dissent (Beth 229). It argued that, through “subtle and ingenious verbal criticism,” Bradley had sacrificed the “substance and spirit of the recent amendments” (26). Justice Harlan is, no doubt, correct. The Civil War amendments were added to the Constitution in part to bring about the equality Sumner imagined. But in order for them to do so, they would have had to overcome the logic of the supplement. Literary critics almost always see that logic as radical because it implies that adding something to an existing body has the potential to change it. But we need to remember that the body being supplemented also supplements the supplement. Added to the Constitution, the equality of rights intended by the amendments was transformed. To a large extent that transformation was brought about because of existing racism. But it was also, at least in part, due to a conflict between Sumner’s view of civil equality and the notion of civil liberty already embodied in the Constitution. Just as the attempt to bring about equal civil rights altered traditional constitutional protections of civil liberties by granting more powers to a centralized national state, so the existing protections of civil liberties limited the ability to bring about a more comprehensive program of equal civil rights. Gary Wills has argued that, because of Lincoln, “we live in a different America” (147). Which is, it turns out, to make Vallandigham right. As a result of Lincoln’s wartime efforts, neither the Constitution nor the Union are the same. Whereas slavery, the shadow over the promised land, was finally abolished, we live in a land that has neither the civil equality Sumner pled for nor the civil liberties during wartime that Vallandigham imagined to exist before the outbreak of civil war. Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 239 Works Cited Adams, Charles. When in the Course of Human Events: Arguing the Case for Southern Secession. Lanham, MD: Rowman & Littlefield, 2000. Beth, Loren. John Marshall Harlan. Lexington: U. of Kentucky P., 1992. Campbell, Duncan Andrew. English Public Opinion and the American Civil War. Woodbridge, Suffolk: Boydell P., 2003. Civil Rights Cases. 109 U.S. 3 (1883). Corwin, Edward S. The President: Office and Powers: History and Analysis of Practice and Opinion. New York: New York U.P., 1940. Curtis, Michael Kent. Free Speech, “The People’s Darling Privilege”: Struggles for Freedom of Expression in American History. Durham: Duke U.P., 2000. Derrida, Jacques. Of Grammatology. Trans. Gayatri Spivak. Baltimore: Johns Hopkins U.P., 1976. DiLorenzo, Thomas J. The Real Lincoln: A New Look at Abraham Lincoln. Roseville, CA: Prima, 2002. Douglass, Frederick. “The Supreme Court Decision.” In Life and Times of Frederick Douglass. Boston: DeWolfe Friske & Co., 1892, rev. ed., pp. 539-54. Dred Scott v. Sandford. 19 How. 393 (1857). Ee, Daun Van. David Dudley Field and the Reconstruction of the Law. New York: Garland, 1986. Ex Parte Milligan. 71 U.S. 2 (1866). Fairman, Charles. Reconstruction and Reunion, 1864-88 (Part One) v.6 in History of the Supreme Court of the United States. New York: Macmillian, 1971. Foner, Eric. Reconstruction: America’s Unfinished Revolution, 1863-1877. New York: Harper & Row, 1988. Hummel, Jeffrey Rogers. Emancipating Slaves, Enslaving Free Men: A History of the American Civil War. Chicago: Open Court, 1996. Jackson Robert H., The Supreme Court in the American System of Government. Cambridge, MA: Harvard U.P., 1955. Kennedy v. Mendoza-Martinez. 372 U.S. 144 (1963). Kerkering, John D. The Poetics of National and Racial Identity in Nineteenth-Century American Literature. New York: Cambridge U.P., 2003. Klement, Frank L. The Limits of Dissent: Clement L. Vallandigham and the Civil War. Lexington: U. of Kentucky P., 1970. —. “The Indianapolis Treason Trials and Ex Parte Milligan,” in American Political Trials. ed. Michal R. Belknap. Westport, CT: Greenwood P, 1994 (rev. ed.), 97-118. Korematsu v. U.S. 323 U.S. 214 (1944). Lincoln, Abraham. “The Truth from an Honest Man. The Letter of the President. President Lincoln’s Views. An Important Letter on the Principles Involved in the Vallandigham Case. Correspondence in Relation to the Democratic Meeting, at Albany, N.Y. (Union League No. 31).” In Union Pamphlets of the Civil War, 1861-1865 ed. Frank Freidel, Cambridge, MA: Belknap Press, 1967, v. 2. Marshall, John A. American Bastille. Philadelphia: Thomas W. Hartley & Co., 1883. Melville, Herman. Billy Budd, Sailor (An Inside Narrative). U. of Chicago P., 1962. Miroff, Bruce, Raymond Seidelman, and Todd Swanstrom. The Democratic Debate: An Introduction to American Politics. Boston: Houghton Mifflin, 1998. Nevins, Alan. “The Case of the Copperhead Conspirator,” in Quarrels That Have Shaped the C Constitution. ed. John A. Garraty. New York: Harper & Row, 1987 (rev. ed.). 240 B ROOK T HOMAS Nicolay, John G. and John Hay. Abraham Lincoln: A History. New York: Century Co., 1890. Randall, J.G. Constitutional Problems Under Lincoln. Gloucester, MA: Peter Smith, 1963, rev. ed. Rappard, William E. The Crisis of Democracy. Chicago: U. of Chicago P., 1938. Rossiter, Clinton. Constitutional Dictatorship: Crisis Government in the Modern Democracies. Princeton: Princeton U.P., 1948. Smith, Theodore Clark. The Life and Letters of James Abram Garfield. New Haven: Yale UP, 1925. Soifer, Aviam. Law and the Company We Keep. Cambridge, MA: Harvard U.P., 1995. Sumner, Charles. “Are We a Nation? ” in Charles Sumner: His Complete Works, ed. George Frisbie Hoar. Boston: Lee and Shepard, 1900, v. 16. pp. 3-65. —. “Supplemental Civil Rights Bill.” In Charles Sumner: His Complete Works, ed. George Frisbie Hoar (Boston: Lee and Shepard, 1900), v. 19, pp. 217-71. Terminiello v. Chicago. 1 U.S. 337 (1949). U.S. v. Cruikshank. 92 U.S. 542 (1876). Warren, Charles. The Supreme Court in United States History. Boston: Little, Brown, and Co., 1926 rev. ed. (1922). Wiley, Rutledge. “Forward” to “A Symposium on Constitutional Rights in Wartime,” Iowa Law Review 29 (1944): 379-83. Wills, Garry. Lincoln at Gettysburg: The Words That Remade America. New York: Simon and Schuster, 1992. Wilson, Edmund. Patriotic Gore: Studies in the Literature of the Civil War. New York: Oxford U.P., 1962. C AROLYN L. K ARCHER Bricks Without Straw: Albion W. Tourgée’s “Black Reconstruction” Albion W. Tourgée’s 1880 novel about Black Reconstruction in North Carolina, Bricks Without Straw, opens with a chapter-long monologue in which an ex-slave named Nimbus, who has conquered his freedom by escaping to the Union army and joining its ranks, reflects on the changes of identity he has undergone since the outbreak of the Civil War. “I’m dod-dinged now ef I know who I be ennyhow,” exclaims Nimbus at the climax of his monologue (10). The device of letting an African American voice introduce the “strange queries which freedom had so recently propounded to him and his race” (11) announces that Tourgée is presenting the turbulent era of Reconstruction through the eyes of the freedpeople and that he is placing African Americans at the center of his narrative - an endeavor we can recognize as anticipating W.E.B. Du Bois’s monumental revisionist history, Black Reconstruction in America (1935). Tourgée was writing only three years after Reconstruction officially ended with the withdrawal of the last federal troops from the South in 1877, yet he was already facing the same problem Du Bois would confront half a century later: that although the Confederates had lost the Civil War militarily, their propagandists had won it ideologically by fastening their version of history on the white American imagination. The Confederate, or white supremacist, version of history travestied Reconstruction as the rape of the South by hordes of ignorant and brutish ex-slaves, unleashed by greedy carpetbaggers and abetted in their depredations by villainous scalawags, the epithets applied respectively to northern emigrants and southern collaborators. Thus, Tourgée’s Bricks Without Straw, like Du Bois’s Black Reconstruction, had to counter these pernicious stereotypes in order to reframe Reconstruction as the struggle of African Americans and their idealistic white allies to build a new society on the basis of genuine freedom and equality. The novel’s title articulates its argument. Just as the children of Israel were ordered by Pharaoh to perform the impossible feat of producing bricks without the straw needed to temper them (Ex. 5.7-18), so the four million emancipated slaves whom the nation had abandoned upon the collapse of Reconstruction were being required to transform themselves into independent citizens with no assistance from the government and no protection against their foes. This essay will examine Tourgée’s fictionalized account of Black Reconstruction in relation to the documentary sources and real-life models on 242 C AROLYN K ARCHER which he draws for his plot and characters, the racial ideologies he seeks to refute, and the representations of African American life that his white and Black contemporaries produced. Read in its historical and literary contexts, as I hope to demonstrate, Bricks Without Straw not only offers an unparalleled inside view of Reconstruction by a white participant closely allied with African Americans, but ranks among the most powerful examples of “race fiction” in the 19 th -century American corpus. Few white writers possessed better qualifications than Tourgée for setting the historical and literary record straight. He had had more extensive contact with African Americans in a non-menial capacity than any but a few radical abolitionists. His encounters with fugitive slaves in the Union army during the Civil War had taught Tourgée to respect their bravery as soldiers and their political acumen as spokesmen for their people. Emerging from the war committed to “a fundamental thorough and complete revolution & renovation” of US society, Tourgée had emigrated to Greensboro, North Carolina, where he had championed Black Suffrage, played a prominent part in writing a more democratic state constitution, and organized an unusually effective Radical Republican coalition of African Americans, northern settlers, and white southern Unionists (Tourgée Papers #454, 1863; Olsen, Carpetbagger’s Crusade; ). 1 As a state Superior Court judge whose district saw some of the period’s worst Ku Klux Klan violence, Tourgée had also taken depositions from countless victims, Black and white, and gained an appreciation of African Americans’ courage in defending their newly won rights. These experiences inspired the creation of the strong, three-dimensional Black characters who people Bricks Without Straw, distinguishing it from most other novels by white Americans. Chief among Bricks’ Black characters is Nimbus, whose soliloquy about being forced to adopt an unwanted second name when mustering into the army, formalizing his marriage, and registering to vote for the first time, sets the novel in motion. As Tourgée makes clear, Nimbus equates naming with establishing an identity. To Nimbus, freedom offers the opportunity to define his identity for himself, which is why he resists white authorities’ attempts to assign him a surname. He views the single name he has borne since “ole slave times” not as a badge of shame but as a mark of distinction, differentiating him from whites as well as from his fellow slaves, to each of whom his master had given a name shared by no one else. “I mind now dat 1 The Albion W. Tourgée Papers are held at the Chautauqua County Historical Society in Westfield, New York and are also available on microfilm. They are arranged in chronological order by item number. A large proportion of Tourgée’s letters are undated drafts. I am grateful to the CCHS for permission to quote from the Tourgée Papers. Bricks Without Straw: Albion Tourgée’s “Black Reconstruction” 243 all de pore white folks hez got some two tree names, but I allus thought dat wuz ’coz dey hedn’t nuffin’ else ter call dere own,” Nimbus comments (10-11). Although he does not want to change the name his master conferred on him at birth, because he has never known himself by any other, Nimbus strenuously objects to having his master’s surname imposed on him. “I ain’t a-gwine ter brand my chillen wid no sech slave-mark! ” he protests (54). Tourgée’s description of Nimbus clearly indicates awareness of working against prevailing stereotypes: He was a fine figure of a man despite his ebon hue, … [with] his straight, strong back, square shoulders, full, round neck, and shapely, well-balanced head. His face was rather heavy - grave, it would have been called if he had been white - and his whole figure and appearance showed an earnest and thoughtful temperament. He was as far from that volatile type which, through the mimicry of burntcork minstrels and the exaggerations of caricaturists, as well as the works of less disinterested portrayers of the race, have come to represent the negro to the unfamiliar mind, as the typical Englishman is from the Punch-and-Judy figures which amuse him. The slave Nimbus in a white skin would have been considered a man of great physical power and endurance, earnest purpose, and quiet self-reliant character. Such, in truth, he was. (26-27) Point by point, Tourgée reverses both the clichés of minstrelsy and the falsifications of racist ideology. Unlike the “burnt-cork” stage Negro, Nimbus is no comic figure. “Grave,” “earnest,” “thoughtful,” and “quiet,” he does not shuffle or jump Jim Crow, but holds himself manfully erect. His head is not ape-like, as caricatured in such proslavery texts as Josiah C. Nott and George R. Gliddon’s Types of Mankind (1854), but “shapely” and “well-balanced.” His “self-reliant character” gives the lie to claims that the Negro cannot manage without white supervision. While discrediting the stereotypes that “have come to represent the negro to the unfamiliar mind,” Tourgée simultaneously draws attention to the racializing process that the white mind goes through on seeing a human being in a black skin. The white reader, he implies, cannot recognize a “fine figure of a man” in “ebon hue”; instead, the white mind automatically perceives the same traits differently under a different racial exterior, even resorting to a different vocabulary to register its impressions, for example by translating “grave” into “heavy.” Hence, the very person who “in a white skin would have been considered a man of great physical power and endurance” is pictured by the white imagination as a savage brute once the skin color changes to black. Tourgée specifically dispels the image of the Black man as a savage brute in a scene that shows Nimbus demanding his rights and shielding himself against violence, but not retaliating in kind when his former master bran- 244 C AROLYN K ARCHER dishes a cane over his head. “Don’t yer try dat, Marse Desmit,” warns Nimbus as he parries the blow and wrests away the cane. “I’se been a sojer sence I was a slave, an’ ther don’t no man hit me a lick jes cos I’m black enny mo’” (105). Loath to harm an “ole man,” he leaves Desmit on the ground “where he had fallen or been thrown” in the tussle - an ambiguity that heightens Nimbus’s self-restraint - and decides to lodge a complaint and “let de law take its course” (106). It is not the freed Blacks who violate the rule of law, Tourgée indicates, but their disgruntled erstwhile masters. The leadership role Tourgée ascribes to Nimbus in the African American community exemplifies one route to empowerment for the ex-slaves. Having helped defeat the Confederacy, “stricken at last most fatally,” Tourgée underscores, “by the dark hands which she had manacled” (33), Nimbus invests his military bounty money in land, which he develops into a flourishing tobacco farm. Soon he begins selling small parcels of his plantation to freedmen anxious to follow his example of home ownership and selfemployment. He also donates a portion of his land and timber to building a church and school. Thanks to his economic independence and community spirit, Nimbus enjoys high status among his fellow African Americans, whom he encourages to stand up for their rights and vote for politicians supportive of their interests. He himself refuses to run for office, however, on the grounds that he “hain’t got no larnin’” and understands tobacco cultivation better than governance (186). Tourgée modeled Nimbus on several Black men he had known during his stints as a Civil War soldier and Reconstruction politician and judge. Nimbus’s first and most obvious real-life prototype is “William, an colored American citizen of African descent,” whose entry into Tourgée’s “pay and employ” as commanding officer of Company E, 105 th Ohio Volunteers, is noted as the “great event of today” in the diary he kept of his military service (October 24, 1863, Tourgée Papers #577; Olsen 24). A fugitive slave who had fled to Union Army lines, William, “not knowing his ‘oder’ name, was immediately christened Nimbus, by which ancient and honorable appellation he is hereafter to be known,” Tourgée had recorded in his diary - an incident he would parallel by having the fictional Nimbus christened “George Nimbus” by the officer who swears him into “the service of the United States” in Company C of the ___ Massachusetts Volunteer Infantry (33). True, Tourgée had known William primarily as a body servant, yet he had also observed African Americans as soldiers. Along with a comrade named Joe, Tourgée had attended a “meeting of the ‘Cullard population’ of the Brigade,” which had impressed him enough to prompt him to request a transfer (never granted) to a Black regiment. “I know there is little hope of any mercy being shown” to a captured soldier “connected with the colored troops,” Bricks Without Straw: Albion Tourgée’s “Black Reconstruction” 245 Tourgée had mused, but “[i]t is certainly the place for men who would serve the country best” (June 7, 20, 22, and 23, 1863, Tourgée Papers, #577). Two additional models on whom Tourgée based his portrait of Nimbus, according to historians, were the local Black Republican organizers Wyatt Outlaw and Harmon Unthank. Outlaw, like Nimbus, had served in the Union Army, contributed to building a church (in his case on land he had helped purchase), and played an active role in mobilizing African American voters after the war (Troxler 405-409, 413). As with Nimbus, “standing up to intimidation was a feature of Outlaw’s leadership” (Troxler 416). His woodworking and wagon-repairing shop, like Nimbus’s tobacco farm, “became a gathering place for blacks” and consequently, a hub for political strategizing (Troxler 414). Marginally more literate than Nimbus, Outlaw could “probably read” but “consistently marked his signature with an ‘X’” (Troxler 411). His political leadership went well beyond the speechmaking and rallying in which Nimbus engages. It included attending the 1866 North Carolina Freedmen’s Convention, organizing the Alamance County Loyal Republican League, which brought together “black and white workingmen,” serving as a town commissioner, and joining an “armed night patrol of five black and white men in response to Ku Klux attacks” (Troxler 416). Targeted by the Klan because he succeeded so well at forging crossracial alliances, Outlaw fell victim to a mob that dragged him from his home in front of his screaming child, “bludgeoned” him in the street, slashed his lips to advertise the fate all “mouthy” Blacks could expect to meet, and hanged him from a tree limb pointed mockingly toward Tourgée’s Alamance County court house, “less than a hundred feet away” (Troxler 404, 417; Olsen 161). Less controversial than Outlaw, the third model for Nimbus, Harmon Unthank of Greensboro, survived the turmoil of Reconstruction unscathed. Also an ex-slave, but not a Union Army veteran, he achieved prosperity as a carpenter and recognition as the “uncontested ‘boss’ of the black community” (Hamlin 173). Like Nimbus, he helped fellow African Americans to purchase property and thus start out on the road toward economic independence (Hamlin 166-67). Highly literate, as his letters to Tourgée demonstrate, Unthank participated, along with Outlaw, in the Freedmen’s Convention of 1866 and cooperated with Tourgée during North Carolina’s 1868 Constitutional Convention and the Republican and Union League campaigns the same year (Hamlin 166, 173). Nevertheless, he took a more moderate political stance than Tourgée, Outlaw, or the fictional Nimbus. For that reason, as well as because he “owned no businesses, held no [paid] political office, represented no obvious competition to white labor, and wanted no trouble from his white Conservative neighbors,” with whom he 246 C AROLYN K ARCHER managed to maintain “‘good’ relations,” Unthank escaped being perceived as a threat to whites (Hamlin 197-98). 2 If Tourgée’s interactions with all these men enabled him to portray Nimbus with striking realism, no one-to-one correspondence links any of them to his fictional hero. As Tourgée explained to a reader who had asked him to identify the historical originals of the characters in his best known novel about Reconstruction, A Fool’s Errand (1879), widely believed to be a roman à clef, his “characters were all creations pure and simple,” but “built upon actualities” that had come under his observation. In incorporating historical events into his novels and drawing on his “knowledge … of locality and incident to give verisimilitude, flavor and … interest,” he merely sought to provide a “true picture of the time,” not to “depict individuals” (undated draft, Tourgée Papers, 1893, #6688). Though Nimbus is the most memorable of the African American protagonists in Bricks Without Straw (and indeed in Tourgée’s entire œuvre), a comparable freedom from stereotyping marks the treatment of Nimbus’s childhood friend and fellow community leader Eliab Hill and of Nimbus’s wife Lugena. Tourgée’s description of Eliab invites comparison with such representations of mulattoes as Stowe’s George Harris in Uncle Tom’s Cabin (1852) and Rebecca Harding Davis’s more complex, but problematic, Doctor Broderip in Waiting for the Verdict (1867): He was a man apparently about the age of Nimbus - younger rather than older - having a fine countenance, almost white, but with just enough of brown in its sallow paleness to suggest the idea of colored blood, in a region where all degrees of admixture were by no means rare. A splendid head of black hair waved above his broad, full forehead, and an intensely black silky beard and mustache framed the lower portion of his face most fittingly. His eyes were soft and womanly, though there was a patient boldness about their great brown pupils and a directness of gaze which suited well the bearded face beneath. The lines of suffering were deeply cut upon the thoughtful brow and around the liquid eyes, and showed in the mobile workings of the broad mouth, half shaded by the dark mustache. The face was not a handsome one, but there was a serious and earnest calmness about it which gave it an unmistakable nobility of expression and prompted one to look more closely at the man and his surroundings. 2 Yet another real-life model historians have suggested for Nimbus is Jourdan Ware, a “renter-farmer living near Rome, Georgia,” and a “prominent” and influential leader of the local African American community. Though Tourgée did not know him personally, he would have read about him in the 13-volume Congressional Report on Klan atrocities that he cites elsewhere in Bricks Without Straw. The name “Ware” provides the most conspicuous link between the two men: when registering to vote, Nimbus takes the surname of his former overseer, Silas Ware, to avoid being assigned that of his master. See Magdol 910. Bricks Without Straw: Albion Tourgée’s “Black Reconstruction” 247 The shoulders were broad and square, the chest was full, the figure erect, and the head finely poised. … One comprehended at a glance that this worker and learner was also deformed. … Yet so erect and self-helping in appearance was the figure … that one for a moment failed to note in what the affliction consisted. Upon closer observation he saw that the lower limbs were sharply flexed and drawn to the leftward … [as well as] shrunken and distorted. (52-53) Unlike Stowe and Davis, Tourgée characterizes Eliab not as a racial type but as an individual. He does not attribute Eliab’s “erect,” manly carriage to his white blood, as Stowe does George Harris’s, nor does he ascribe Eliab’s “womanly” traits and physical weakness to the taint of black blood and the ill effects of miscegenation, as Davis does Broderip’s. 3 Instead, Tourgée traces the “suffering” etched on Eliab’s face to an “affliction” resulting from a childhood “cold … which settled in his legs … producing rheumatism” (apparently polio or rheumatic fever [66]). The severely impaired mobility this affliction has caused - not his racial heritage - Tourgée later specifies, accounts for Eliab’s predisposition toward the passive, “womanly” courage of a martyr rather than the “aggressive,” masculine courage of a soldier: “[H]e had been so long the creature of another’s will in the matter of locomotion that it did not occur to him to do otherwise than say: ‘Do with me as thou wilt. I am bound hand and foot. I cannot fight, but I can die’” (284). In the same breath, Tourgée pointedly underscores that Eliab is no Uncle Tom. Far from being religiously “averse to taking life in self-defense,” Eliab reacts to a Klan incursion by wishing he had a good repeating rifle, so that “he might not only sell his life dearly, but even repel the attack” (284). While avoiding the overt racial theorizing to which Stowe and Davis resort, Tourgée subtly controverts racist ideology. He depicts Eliab, like Nimbus, with a “broad, full forehead” and a “finely poised head” rather than the misshapen cranium generally imputed to the Negro (a feature Davis reproduces in Broderip’s “low, heavily marked forehead” [161]). He offsets Eliab’s “womanly eyes” with a masculine “directness of gaze” that suggests pride in his identity rather than the sense of inferiority Broderip displays when he “cow[s] before the white skin and Saxon features” of a rival and assumes the “defeated, shrunken look” of a man who sees himself as “but a mulatto” (Davis 417). And once again countering the image of the Negro as a perpetual child, incapable of providing for his own needs, Tourgée accentuates the “self-helping” character Eliab shares with Nimbus, 3 The proud, handsome George Harris illustrates the racial theory Stowe puts in the mouth of Augustine St. Clare: “Sons of white fathers, with all our haughty feelings burning in their veins,” are more prone to rebellion than full-blooded Africans (274). Davis depicts Broderip as undersized, sickly, and effeminate, but also “brutal” in temper (135-37, 140, 144-45). For a fine analysis of Verdict’s racial subtext, see the introduction by Dingledine. 248 C AROLYN K ARCHER which impels him to leave his former master’s service because he does not want to burden a man who cannot afford to pay him (73). Besides preventing the casual observer from noticing his crippled legs, the “self-helping” impulse that marks Eliab’s appearance enables him to earn his living as a shoemaker and to serve the African American community as a preacher. Eliab represents an alternative route to African American empowerment - the acquisition of literacy - that historically complemented or substituted for the economic advancement Nimbus has attained. Exerting a powerful influence over his people ever since his days as a slave, when his indulgent mistress taught him to read, Eliab also personifies what Tourgée calls the “inseparable” fusion of religion and politics among African Americans, whose “religion is tinged with political thought, and their political thought shaped by religious conviction” (184). As with Nimbus, Tourgée based his portrait of Eliab on a combination of real-life models. He found Eliab’s chief prototype, a crippled preacher from Clay Hill, South Carolina, named Elias Hill, in the 13-volume collection of testimony on Klan atrocities officially titled Report of the Joint Select Committee Appointed to Inquire into the Condition of Affairs in the Late Insurrectionary States (1872). Hill is there identified simply as “colored” (a term often connoting mixed ancestry) and described as “crippled in both legs and arms, which are shriveled by rheumatism,” dating from his seventh year, as in the case of Tourgée’s Eliab. The real-life Elias Hill, though he shared his fictional namesake’s “finely developed intellectual head” and “unusual intelligence,” was too disabled to appear “self-helping”: “he cannot … help himself,” notes the transcriber of Hill’s testimony before the Select Committee, but “has to be fed and cared for personally by others” (Report 1: 44). Foisted on his self-emancipated father as a “burden of which his master was glad to be rid,” Hill had displayed his drive toward independence not by mastering a trade and striking out on his own, but by learning to read and write with the assistance of school children and by becoming, like the fictional Eliab, a teacher, preacher, and Union League organizer after the war. Tourgée also wove aspects of Harmon Unthank, Wyatt Outlaw, and a crippled white schoolteacher named Alonzo Corliss into his portrait of Eliab. Tourgée’s relationship with the literate Unthank, a leader in the Methodist Episcopal Church, known for “maintain[ing] law and order at all times” in the congregation (Hamlin 186), may have helped flesh out his characterization of Eliab as a preacher on whom the Yankee schoolteacher relies to keep order among her charges, both in and out of the classroom. More suggestively, coupled with his “unknown” paternity (66), Eliab’s “almost white” complexion, not mentioned in the account of the real-life Elias Hill, may link him with either Outlaw, who seems to have been the unacknowledged son of a white man, or with the white Corliss, “who, like Bricks Without Straw: Albion Tourgée’s “Black Reconstruction” 249 Outlaw, was a leader of the Loyal League in Alamance County” and like Hill, was brutally beaten by the Klan despite his crippled condition (Troxler 406, 408). Whether or not Tourgée superimposed the facial features of his North Carolina acquaintances on the sketch of Elias Hill that he derived from the Congressional Reports of Klan outrages, his departure from his historical source in translating “colored” into “almost white” cannot be accidental. Nor can it be accidental that Tourgée simultaneously renders Eliab as more “self-helping in appearance” than his historical prototype and as dependent for physical aid not on his biological family, unlike Elias Hill, but on a comrade from slavery days whose skin-color, black as a “thunder-cloud” (23), contrasts strikingly with Eliab’s. These revisions convey the image of an African American community reliant for survival on the solidarity of mulatto and Black, literate and illiterate, needy and prosperous. “The colored people must stand or fall together” (202), preaches Eliab. His lifelong bond with Nimbus and the twin leadership roles the two play literalize that message. Articulating as it does a vision of racial unity embodied in the partnership of its Black and mulatto protagonists, Bricks Without Straw aligns itself more closely with such African American novels as Martin Delany’s Blake (1859) and Frances Ellen Watkins Harper’s Iola Leroy (1892) 4 - though Tourgée never seems to have read either - than with any white-authored work of its era. Like Harper, Tourgée emphasizes his African American characters’ relations with each other and correspondingly de-emphasizes their relations with white benefactors. And like both Harper and Delany, he roots his Black and mulatto protagonists firmly in the African American community and centers his novel on the collective fate of the African American people. Bricks Without Straw traces the freedpeople’s progress toward economic self-sufficiency and political autonomy, their spirited resistance to the tactics white supremacists use to regain hegemony - voter intimidation, poll taxes, employer cabals, vagrancy laws, chain gangs, Ku Klux Klan attacks - and their ultimate relapse into semi-slavery once their resistance is crushed. The initial phase of the action unfolds during the period the Freedmen’s Bureau exercises its guardianship by arbitrating disputes between the races, furnishing teachers and schools, and presiding over the electoral 4 Delany develops the idea of a partnership between Blacks and mulattoes in chapter 61 of Blake, “The Grand Council,” where he puts it into the mouth of the mulatto poet Placido: “I hold that colored persons, whatever the complexion, can only obtain an equality with whites by the descendants of Africa of unmixed blood” (260). Harper embodies it in the friendship of the light-skinned Iola with the pure black Lucille Delany and in the marriage of Lucille with Iola’s brother Harry. 250 C AROLYN K ARCHER system. When, for example, Nimbus approaches his former master Desmit to purchase a tract of apparent wasteland that he recognizes as ideally suited to tobacco-growing, he turns to the Freedmen’s Bureau to facilitate the transaction after Desmit tries to beat him and refuses even to pay the wages Nimbus’s wife Lugena has earned. Later, Nimbus and Eliab arrange for the Freedmen’s Bureau to establish a school on Nimbus’s land, where Eliab suggests building a church that can house a classroom. The Bureau also engages a Yankee teacher, Mollie Ainslee, who devotes her spare time to tutoring Eliab so that he can eventually replace her. Most crucially, the Bureau registers African Americans to vote and oversees elections to guard against fraud and violence. As the initial phase of the action reaches its climax, a thriving African American community of enterprising artisans has formed around Nimbus and Eliab; many, “[e]ncouraged by [Nimbus’s] example, … [have] bought parcels of his domain” (136); and the newly enfranchised African American citizens “commemorate their first exercise of the electoral privilege” by “march[ing] in a body to the polls with music and banners” (149). The second phase of the novel focuses on the white supremacist subversion of Reconstruction and the African American community’s response to it. Although mutterings and threats against “sassy niggers” augur violence even at the outset (48, 147, 152), trouble does not actually erupt until the march to the polls. There angry whites, convinced that the marchers plan to “kill all the white men, burn the town, and then ravish the white women” (152), shoot into the procession and almost precipitate a bloody clash. Tourgée based the incident on an actual “riot” or “massacre” that had taken place in the village of Camilla, Georgia, in September 1868, but he significantly recast his sources, giving his fictionalized version a dramatically different outcome. The Camilla procession was heading not toward the polls but toward a political meeting at which the white (not Black) Republicans in its vanguard were to address the crowd. Ignoring assurances of the parade’s “peaceful intentions,” however, a mob of “400 armed whites, led by the local sheriff, opened fire … and then scoured the countryside for those who had fled, eventually killing and wounding more than a score of blacks” (Foner 342; “Evidence in the Camilla Massacre”; “Recent Riot at Camilla”). Tourgée instead allows the Yankee schoolteacher Mollie Ainslee to avert such a massacre by mediating between hostile whites and militant Blacks. Galloping to the front on the black horse that symbolizes her power to tame the ex-slaves - the horse on which her soldier brother “fought for [their] liberty,” as she reminds them - Mollie asks Eliab to provide an eyewitness account of the outbreak and relegates Nimbus to the task of “keep[ing] order” while she charges off under a flag of truce to negotiate with the white townsmen (156-57). “You provoked this affray by your foolish love of Bricks Without Straw: Albion Tourgée’s “Black Reconstruction” 251 display,” she scolds the hitherto dauntless Nimbus, from whom she metaphorically seizes the reins. Her “nerve” succeeds in disarming the enraged whites as well, and the sheriff himself gives Mollie three cheers, calls off the volley, and agrees to let the procession continue unimpeded. Is Tourgée implying (in the teeth of contrary historical evidence) that the mediation of a cool-headed northern white might have accomplished better results than the African American community’s “display” of militancy, by preventing rather than unleashing the bloodshed that had occurred in Camilla? Or is he simply attempting to “sweeten the hellishness of that epoch” through a fictional device (the purpose of the “love incidents” in A Fool’s Errand, as he explained to a correspondent [Tourgée Papers #6688, 1893])? Whatever the reason for its departure from historical fact, the episode foreshadows the disempowerment Tourgée’s African American characters undergo after the overthrow of Reconstruction, a development reflected in the plot’s shift away from them and toward their white benefactors. By the time of the next election two years later, the Freedmen’s Bureau has shut down and violence has become endemic as white supremacists determine to “redeem” their state. The white supremacist campaign starts with plantation owners’ threats to discharge and blacklist all workers who attend Radical Republican meetings (a documented practice with “widespread … support” in Tourgée’s judicial district [Trelease 193]). As the African American community debates how to react to such threats, Nimbus advocates a general strike and vows to underwrite the striking plantation workers until their white employers back down. “Ef we don’t stan’ togedder an’ keep de white folks from a-takin’ away what we’s got, we nebber gits no mo’. In fac’, we jes goes back’ards instead o’ forrards till yer can’t tell de difference twixt a free nigger an’ a rale ole time slave,” he argues (198). Eliab agrees that the freedpeople must “face [their] danger like men” and urges cooperation between those able to endure the hardship of a strike and those unable to do so: “we must work together, aid each other, comfort each other, stand by each other,” he counsels (201-202). As a result of their role in fortifying the African American community’s resolve, Nimbus and Eliab receive a warning from the KKK, in the form of a coffin lid with a letter attached: “The white folks is going to rule Horsford, and sassy niggers must look out. … Now just sell off and pack up and git clear off and out of the country before we come again. … If you’re here then you’ll both need coffins” (255). Once again, the African American community upholds “the plan advocated by Nimbus and Eliab, to stay and fight it out” (265). Only one member demurs, Lugena’s cousin Berry, who has stumbled on a Klan meeting in the woods and seen that almost every white man in Horsford, including the sheriff, belongs to the organization, making for overwhelming odds against successful self-defense. 252 C AROLYN K ARCHER Meanwhile, Nimbus learns that he can no longer rely on the law to maintain his rights. When Berry is evicted from the plantation without pay for having attended a Radical meeting, the lawyer Nimbus consults, a former Freedmen’s Bureau officer, informs him that Berry stands no chance of getting a judgment in his favor by a white jury; and when Nimbus hires Berry, the sheriff shows up to serve Nimbus and Eliab with a criminal indictment and a civil suit for enticing away someone else’s laborer (a provision of the 1865 Black Code, suppressed by the Radicals and revived by their Conservative opponents). If Nimbus will sell his land to the sheriff, the latter adds “with a wink,” the charges will be dropped (272). Betokening the African American community’s helplessness in the face of a white majority that now controls the courts, exerts an economic stranglehold, and rules through terror, the threatened Klan attack materializes before the expected date, thwarting plans for self-defense. The masked assailants begin by torching the church and school that embody the institutional means of the freedpeople’s uplift, then fan out in quest of the leaders they have targeted for assassination. While depicting the Klansmen’s brutality and hinting at the sexual violence they commit, Tourgée highlights the freedpeople’s heroic resistance. That resistance takes forms ranging from passive to aggressive. Nimbus’s wife Lugena, “writh[ing] in agony” as blows rain down on her naked body, refrains from disclosing the whereabouts of Eliab (282). Eliab himself reveals his own whereabouts to save Lugena from further abuse. Transcending his fears of death and suffering, he prays for his enemies in Christ-like accents as they kick and batter him, his “forgiving words mingling with the curses of his assailants” (288). Nimbus, who has ironically been away attending his old master’s funeral, bursts on the scene swinging his army saber like an “ebon angel of wrath” and dispatches a Klansman with it (289). Lugena, seeing a Klansman aim his revolver at her husband, seizes an axe and brings it crashing “down through mask and flesh and bone,” cleaving the head of their foe (289). In answer to her husband’s question about whether she has been sexually assaulted, she minimizes her ordeal “for fear of raising his anger to a point beyond control” and thus endangering his life (290). Even Berry, who had insisted that neither fighting nor praying would avail his brethren now, any more than in slavery times, reappears shooting a rifle that disperses the remaining Klansmen. Once the invaders have withdrawn, Nimbus carries Eliab three miles through the woods to a safe hiding-place at the home of his former master, Hesden Le Moyne, and then disappears, taking with him the contents of his tobacco barn to sell in a distant county. Comparison of this episode with its sources in the Congressional Reports on Klan atrocities confirms Tourgée’s focus on resistance rather than vic- Bricks Without Straw: Albion Tourgée’s “Black Reconstruction” 253 timization. In the original, which describes the beating of Elias Hill and his family in much more graphic detail, it is Hill’s sister-in-law who points the Klansmen to his house after they have struck her “five or six licks.” Hill cooperates with his attackers, though he parries their interrogation with dignity, denying that he has preached “political sermons” or incited “the black men to ravish all the white women.” He also asks them not to kill him and complies with their order to “pray for them.” When his sister-in-law finally takes him indoors, after he has lain outside in the cold until “chilled” to the marrow, she does so at the behest and under the lash of the Klansmen. Hill’s testimony emphasizes the tortures to which he and his family members have been subjected, not the gestures of resistance they have made - an emphasis dictated by the purpose of the Congressional hearings, which served to collect evidence of Klan violence and thus establish the need for stringent laws against political terrorism. Hill exercises his agency before and after rather than during the Klan attack - before the attack by acting as president of the local Union League and using his “influence for republicanism,” which, he asserts “comes nearer to God’s will and universal love and friendship in this world” than any other political philosophy; after the Klan attack by arranging to lead a party to Liberia because he and his associates no longer “believe it possible, from the past history and present aspect of affairs, for our people to live in this country peaceably” (Report 1: 45-47). Obviously, Tourgée cannot endorse such a conclusion without betraying his own republican faith and commitment to equality and justice for all. Not only does Tourgée grant the fictional Eliab greater agency than his historical prototype and bring his career to a different culmination, as we shall see, but he assigns Lugena a starring role in repelling the Klan raid. Modeled on another incident mentioned in the Congressional Report, about which Tourgée had personal knowledge - a local North Carolina woman’s successful defense of her home by “wield[ing] an ax with such proficiency against a Klansman” as to split his skull open (Trelease 194; Olsen 159), Lugena’s feat establishes her and Nimbus as equal partners in their family. She continues to demonstrates her fortitude after Nimbus’s flight by maintaining her trust in his ability to elude his pursuers. “‘Gena ain’t feared. She knows her ole man too well fer dat! ” she assures the schoolteacher Mollie Ainslie, pointing out that Nimbus has a gun and that he would put up a “terrible fight” before he would let himself be captured (334, 336). Despite all the resourcefulness with which Tourgée credits his African American characters, he proves unable to sustain his vision of Black Reconstruction. The Klan attack marks a turning point for the African American community of Bricks Without Straw and ushers in the third and last phase of the novel. From this point on, the Black protagonists lose their agency and white rescuers come to dominate the action, as if Tourgée could no longer 254 C AROLYN K ARCHER conceive of how the defeated freedpeople could help themselves in an era of white supremacy. Nimbus bitterly recognizes that abstract rights mean nothing unless enforced. “I’se larned dat de right ter du a ting an’ de doin’ on’t is two mighty diff’rent tings, when it’s a cullu’d man ez does it,” he tells Hesden Le Moyne. “I hed a right ter buy a plantation an’ raise terbacker; an’ Liab hed a right ter teach an’ preach; an’ we both hed a right ter vote for ennybody we had a mind ter choose. An’ so we did; an’ dat’s all we done, tu. An’ now h’yer’s what’s come on’t” (313). Though Nimbus doggedly keeps on fighting as he flees from one southern state to another, his pugnaciousness only lands him first in jail and then in neo-slavery: fined for striking back at a white boss, he is “auctioned off” to pay the fine and repeatedly caught when he tries to escape (485-86). He resurfaces many years later a “broken” man, with the look of “furtive wildness which characterizes the man long hunted by his enemies” (480). Meanwhile Lugena, too, concludes that “‘Tain’t no use” to stand up to white southerners because “Dey’ll hab dere will fust er last” (338). Metamorphosing with disconcerting suddenness into an abject dependent, she entreats Mollie to take her and her children to safety before the Klan avenges the man she has bludgeoned, and “catching the hem of the teacher’s robe,” she “kisse[s] it again and again” (341). Mollie obliges by settling the family in Kansas, where she founds a settlement for Black refugees, thousands of whom were embarking on a mass exodus to Kansas as Tourgée was completing Bricks Without Straw. Paralleling Mollie’s rescue of Lugena, Hesden Le Moyne nurses the badly wounded Eliab back to health and eventually spirits him off to college in the North. Of the African American protagonists, Eliab alone grows “more self-reliant,” illustrating Tourgée’s belief that education will ultimately accomplish the racial uplift that Reconstruction failed to secure by legislative means: “His two years and more of attendance at a Northern school had widened and deepened his manhood as well as increased his knowledge” (480). 5 Yet Eliab’s debt to Hesden for his education limits his independence much in the way Lugena’s debt to Mollie does hers. Though an opportunity arises for him to teach at a “colored school” in the North, Eliab renounces it when Hesden asks him to take charge of Mollie’s former school, which Hesden has had rebuilt. There Eliab finds that even education has lost its liberating potency. “Somehow the life and hope seem to have gone out of our people, and they do not look forward to the future with that confident expectation which they used to have,” but instead exhibit the “dull, plodding hopelessness of the old slave time,” he observes in a letter to Mollie (445). 5 Tourgée promoted education as a solution in his non-fictional An Appeal to Caesar (1884), as well as in letters to US President James G. Garfield. A Fool’s Errand ends with a similar appeal: “Make the spelling-book the scepter of national power” (346). Bricks Without Straw: Albion Tourgée’s “Black Reconstruction” 255 Unable to provide an imaginary solution to the problem of a stymied Black Reconstruction - and certainly unable to foresee a time when African American intellectuals would meet to debate solutions of their own to the race’s continuing oppression, as they do in the “Friends in Council” chapter of Harper’s Iola Leroy (1892) - Tourgée reorients his plot toward addressing the issue of national reunification in lieu of Black self-determination. “Can the South and the North ever be made one people in thought, spirit, and purpose? ” he asks through a fictional spokesman (502). This question had already generated a flourishing literary genre, dubbed by Nina Silber “the romance of reunion,” which featured a marriage of northerner and southerner, generally involving the conversion of one partner to the other’s political viewpoint. Thus, it is not surprising that Tourgée arranges a marriage between Mollie Ainslee and Hesden Le Moyne to indicate how “New England Puritanism and Southern Prejudice” can “be reconciled” (318). Tourgée’s version of the North-South marriage trope does not fit the “depoliticized” pattern of what Silber calls the “culture of conciliation,” however (Romance of Reunion 110). On the contrary, both Mollie and Hesden experience a political awakening when they confront the meaning of the events that climax in the Klan attack. Temporarily seduced by the charms of the Le Moyne household during a brief sojourn there - just as the northern public was being seduced by southern propagandists - Mollie returns to find her schoolhouse a smoldering ruin. Instead of following the lead of her “weak, vacillating nation,” which she realizes “with shame” has broken its “promise of freedom” to its wartime allies and “shut its eyes and turn[ed] its back … in their hour of peril,” Mollie reconsecrates herself to the freedpeople, whom she now feels “almost like calling … her people” (381, 402). Similarly, as Hesden gazes at the lacerated body of Eliab, he begins “to doubt the infallibility of his hereditary notions; to doubt the super-excellence of Southern manhood, and the infinite superiority of Southern womanhood; to doubt the incapacity of the negro for self-maintenance and civilization”; and to question for the first time “whether the South might not have been wrong - might not still be wrong … in the principle and practice of slavery” (311). The collapse of his world view ultimately turns Hesden into a Radical Republican. In marrying Mollie, he marries the ideals she personifies. Yet even by shifting the focus of the novel to his white characters and resorting to the fictional formulas of a conversion and a marriage, Tourgée does not manage to bring Bricks Without Straw to closure. His fourteen years in North Carolina had taught him that no one who espoused the rights of African Americans, no matter how secure his social position, could escape “the baptism of fire which every Southern man must face who presumes to differ from his fellows upon political questions” (412). Such is the fate Hesden meets once his Radicalism becomes apparent. Notwithstand- 256 C AROLYN K ARCHER ing his gallant record as a Confederate soldier and his loss of an arm in his motherland’s defense, he is tarred as “a renegade and a traitor to the cause for which he had fought” and is treated as an “enemy by all who had been his former associates” (412-13). The “storm of detraction and contumely” grows into a “tornado” when Hesden, like Tourgée (and like Tourgée’s southern Radical friend Thomas Settle), runs for political office on a platform advocating respect for African Americans’ Constitutionally mandated voting rights: “The newspapers overflowed with threat, denunciation, and abuse” (474). 6 In short, all too aware that the intransigence of the South’s white supremacist majority prevents any meaningful change in the racial and political status quo and drives dissenters into silence or exile, Tourgée ends his novel leaving his characters at an impasse and his plot at loose ends. Symptomatically, he abandons fiction for polemic in the last two chapters, “What Shall the End Be? ” and “How? ” Speaking through the mouth of Hesden and addressing northern politicians through Hesden’s interlocutor, the Honorable Washington Goodspeed, M.C., Tourgée pleads for the measure he has come to consider “the only remedy” for the nation’s ills: a federal education bill that would circumvent state control and racial inequity by donating funds directly to southern schools and tying the amounts to need and good management (516-17). If, as Fredric Jameson has argued, the function of narrative form is to invent “imaginary or formal ‘solutions’ to unresolvable social contradictions” (Political Unconscious 79), the formally unsatisfactory denouement of Bricks Without Straw suggests that Tourgée’s commitment to truth did not allow him to gloss over the unresolvable contradiction between egalitarian ideals and white supremacist practice. Despite its formal failings and compromised vision of Black Reconstruction, Bricks Without Straw remains an extraordinary achievement. No other white author of his time (and few in our own time) portrays African Americans with as much sensitivity as Tourgée does Nimbus and Eliab, and none shows greater insight into a historical period that continues to shape our political realities today. Indeed, Bricks Without Straw prefigures two of Du Bois’s main conclusions in Black Reconstruction: first, that although they have been pushed a “long step backward toward slavery … black folk … have made withal a brave and fine fight” (Du Bois 708); and second, that white supremacist southerners and their northern sympathizers have “falsified” the “facts” of Reconstruction history and “barred from court” the “chief witness” of the trial, “the emancipated slave” (711, 721). Neither Tourgée nor Du Bois succeeded in dislodging the myth of Reconstruction 6 On Tourgée’s run for Congress in 1878 and its humiliating failure, see Olsen, Carpetbagger’s Crusade 218-20; and Current, Those Terrible Carpetbaggers 369-72. On Settle, see Crow, “Thomas Settle Jr.” Bricks Without Straw: Albion Tourgée’s “Black Reconstruction” 257 as the rape of the South - a myth that still exerts a tenacious hold on the national imagination, as the undying popularity of Margaret Mitchell’s Gone with the Wind testifies. Only within the past few decades have historians vindicated Du Bois by reinterpreting Reconstruction as “America’s Unfinished Revolution” and acknowledging Blacks as “active agents in the making” of this revolution (Foner xxi, xxiv). Scholars have yet to accord Tourgée the same recognition. Bricks Without Straw awaits rediscovery as an eyewitness account of how a revolution that promised so much was suppressed - an account eerily relevant to the struggle we are waging more than a century later as we, too, confront the subversion of our civil liberties. Acknowledgments This essay is drawn from the introduction to my forthcoming annotated edition of Bricks Without Straw, to be published by Duke University Press. I thank Duke for permission to publish this extract from the introduction in REAL. I also thank the Chautauqua County Historical Society for permission to quote from Tourgée’s papers. 258 C AROLYN K ARCHER Works Cited Crow, Jeffrey J. “Thomas Settle Jr., Reconstruction, and the Memory of the Civil War. Journal of Southern History 62 (November 1996): 689-726. Current, Richard Nelson. Those Terrible Carpetbaggers. New York: Oxford UP, 1988. Davis, Rebecca Harding. Waiting for the Verdict. Ed. Donald Dingledine. 1867. Albany: NCUP, 1995. Delany, Martin R. Blake; or, the Huts of America. Ed. Floyd J. Miller. 1859. Boston: Beacon P, 1970. Du Bois, W.E.B. Black Reconstruction in America: An Essay Toward a History of the Part Which Black Folk Played in the Attempt to Reconstruct Democracy in America, 1860-1880. 1935. New York: Atheneum, 1977. Elliott, Mark. In Quest of a Color-Blind America; The Life and Times of Albion Tourgée. New York: Oxford UP, forthcoming. “Evidence in the Camilla Massacre.” National Anti-Slavery Standard. 10 Oct. 1868: 1. Foner, Eric. Reconstruction: America’s Unfinished Revolution, 1863-1877. New York: Harper & Row, 1988. Hamlin, Deborah Patrice. “‘Friend of Freedom’: Albion Winegar Tourgée and Reconstruction in North Carolina.” Diss. Duke U, 2004. Harper, Frances Ellen Watkins. Iola Leroy; or, Shadows Uplifted. Ed. Hazel V. Carby. 1892. Boston: Beacon P, 1987. Jameson, Fredric. The Political Unconscious: Narrative as a Socially Symbolic Act. Ithaca, NY: Cornell UP, 1981. Magdol, Edward. “A Note of Authenticity: Eliab Hill and Nimbus Ware in Bricks Without Straw.” American Quarterly 22 (Winter 1970): 907-11. Nott, Josiah C., and George R. Gliddon. Types of Mankind: or, Ethnological Researches. 1854. Miami: Mnemosyne, 1969. Olsen, Otto H. Carpetbagger’s Crusade: The Life of Albion Winegar Tourgée. Baltimore: Johns Hopkins UP, 1965. “The Recent Riot at Camilla.” New York Times 23 Sept. 1868: 1. Silber, Nina. The Romance of Reunion: Northerners and the South, 1865-1900. Chapel Hill: U of North Carolina P, 1993. Stowe, Harriet Beecher. Uncle Tom’s Cabin; or, Life Among the Lowly. 1852. Ed. Kenneth Lynn. Cambridge, MA: Belknap P of Harvard UP, 1962. Tourgée, Albion W. An Appeal to Caesar. New York: Fords, Howard, & Hulbert, 1884. —. Bricks Without Straw. A Novel. New York: Fords, Howard, & Hulbert, 1880. —. A Fool’s Errand. By One of the Fools. New York: Fords, Howard, & Hulbert, 1879. —. Papers of Albion W. Tourgée. Chautauqua County Historical Society. Westfield, New York. Trelease, Allen W. White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction. Baton Rouge: Louisiana State UP, 1971. Troxler, Carole Watterson. “‘To look more closely at the man’: Wyatt Outlaw, a Nexus of National, Local, and Personal History.” North Carolina Historical Review 77 (October 2000): 403-33. United States. Congress. Report of the Joint Select Committee Appointed to Inquire into the Condition of Affairs in the Late Insurrectionary States. Washington: Government Printing Office, 1872. H ERBERT G RABES Melodrama Against the Revival of Racism? : Bartley Campbell’s The White Slave (1882) Whether W.H. Auden was right when he stated that “poetry makes nothing happen” 1 may be open to discussion; that the novel and also the drama can help to make something happen, at least under special conditions, has been shown beyond doubt. What I am referring to in the present context is, of course, Harriet Beecher Stowe’s 1851 novel Uncle Tom’s Cabin and its many stage versions, of which George Aiken’s dramatization was one of the first and - in the form revised by George C. Howard - by far the most successful. This melodramatic staging of the sufferings of African-American slaves not only helped the abolitionist cause by creating a strong emotional reaction against slavery in the period leading to the Civil War; it was also to become an unheard-of success in the American theatre, with about five hundred Tom companies still touring throughout the country by the end of the nineteenth century. 2 No wonder one of the most dextrous writers of melodrama at the time, Dion Boucicault, took up the theme of slavery and tried to appeal even more to the sympathy and moral outrage of a white audience by creating, in The Octoroon (1859), a heroine who was white in appearance, upbringing and behavior yet a slave according to the legal doctrine of partus sequitur ventrem - that is, “if the mother is a slave, the child will also be a slave.” 3 Though by no means the first work in which a stereotype known as the “tragic mulatto” was given literary expression, 4 The Octoroon is quite important in the present context because Campbell borrowed more than a few details from it when much later writing his play The White Slave. The stock feature of melodrama employed, a beautiful and virtuous damsel in distress, was in itself most effective in stirring up the emotions of an audi- 1 “In Memory of W.B. Yeats (d. Jan. 1939).”Modern Poets - Three, ed. Jim Hunter (London: Faber and Faber, 1968), 25-26; p. 26. 2 Daniel C. Gerould, “The Americanization of Melodrama.” American Melodrama, ed. Daniel C Gerould (New York: Performing Arts Journal Publications, 1983), 7-29; p. 14. 3 An enlarged edition of Richard Hildreth’s antislavery novel The Slave: or Memoirs of Archy Moore (1836) appeared, for instance, in 1852 under the title The White Slave: or, Memoirs of a Fugitive. Cf. Lawrence R. Tenzer, Ed. D. and A.D. Powell, “White Slavery, Maternal Descent, And the Politics of Slavery in the Antebellum United States.” Originally presented at University of Nottingham Institute for the Study of Slavery, July/ August 2004. Online: http: / / multiracial.com/ context/ view/ 462/ 27/ 4 Cf. Tenzer and Powell, “White Slavery,” p. 1 and Fn. 5. 260 H ERBERT G RABES ence and winning it over to the side of threatened innocence. Yet the impact was even stronger when the helplessness of the heroine was heightened by making her a slave, and the immoral sexual pursuit of the villain even more fiendish when - as in The Octoroon - she was white in appearance, education and behavior or even - as it turns out in The White Slave - purely white by descent and thus also legally so according to the partus principle. 5 The fact that this law was first instituted in Virginia as early as 1662 shows, by the way, that it was not only the result of an anxiety regarding the social status of the white settlers but also a consequence of the much more deeply rooted Puritan conviction that they were the chosen people. And as in Old Testament religion, it is maternal descent that decides whether one belongs to this people. Soon color was not a reliable marker anyway, because, as Tenzer and Powell state, “Several generations of interracial sexual relations between black slave women and white plantation masters or other white men created a population of white slaves, so-called white mulattoes, slaves who looked white and showed no visible African ancestry whatsoever.” 6 Campbell’s procedure in lifting many features from the earlier play The Octoroon was not unusual, because “melodrama has always been an art of wholesale borrowing.” 7 As he was writing a quarter of a century later, the fact where he imitates Boucicault and where he differs can, I assume, tell us something about his particular intention as well as the changed historical situation. As Gerould has rightly pointed out, “Melodrama is place-oriented,” 8 and though the action of Campbell’s play which is set in 1857 necessitates a change of place after the second act from a plantation in Kentucky to one further south in Mississippi, while Boucicault places all the events of his play from 1859 on a Louisiana plantation, we are dealing in both plays with a quite similar social setting. That the action is located on or quite near the Mississippi river has some historical truth to it because at least the older plantations depended on a waterway to transport their products. What seems more important in both plays is, however, the fact that this location allows for spectacular escapes through the waves and special theatrical effects like the simulation of a burning boat on the river. With regard to plot, in both plays the situation becomes immediately precarious for the heroine - and of course for the other slaves - because it turns out that, after the death of the respective owner, the plantation is 5 For this principle, see Thomas D. Morris, Southern Slavery and the Law, 1619-1960 (Chapel Hill: University of North Carolina Press, 1996), 43-49 and 411-12. 6 Tenzer and Powell,”White Slavery,” 1. 7 Gerould, “The Americanization of Melodrama,” 10 8 Gerould, “The Americanization of Melodrama,” 16. Melodrama Against the Revival of Racism? … 261 heavily mortgaged and will soon be for sale. The young heroines, however, do not yet realize the danger they are in, because they have been brought up like white ladies and never so far been treated as slaves. They also know that freedom papers have been signed for them and do not suspect that the villains who want to possess them by fair means or foul will soon discover that these papers are not valid, their masters being in debt when they signed them. If anything, the law that one was not entitled to free one’s slaves if in debt makes clear that these human beings were treated legally exactly like real estate or cattle or horses. In a manner typical of the development of melodrama, the situation in The White Slave is - as revealed at the beginning only to the audience - much more complicated, since the supposed white-looking octoroon is in reality (that is: in the improbable fictitious reality of the play) the daughter of the dying plantation owner’s daughter and a French marquis, consequently of purely white descent. Her only - yet as it turns out quite severe - plight is that her grandfather, who brought his granddaughter home when the mother died shortly after giving birth and the aristocratic European father irresponsibly ran away, was so much under the spell of the code of honor of his old Southern family that he would rather pretend that the heroine was the child of a quadroon slave of his than the product of his own daughter’s extramarital relations. The alleged slave mother is even made to swear an oath that she will never reveal the secret and will go to live with Lisa abroad, where nobody will know them. That all this sounds very improbable does not matter in the domain of melodrama; what counts is that in this way we get a white slave and the resulting pent-up emotions with which the audience will observe the course of fate. Most important for this fate is, of course, the obligatory love story. In The Octoroon it was the young heir of the plantation who fell in love with the heroine and was even ready to go abroad with her in order for them to be able to get married. She, however, meant that “There is a gulf between us, as wide as our love, as deep as my despair,” because she wore some “fatal mark”: “the ineffable curse of Cain. Of the blood that feeds my heart, one drop in eight is black - bright red as the rest may be, that one drop poisons all the flood.” 9 And this seemed to her even more aggravating as there was a white girl, the wealthy daughter of another plantation owner, who was also in love with her friend. So while it is true that she later poisoned herself in the first place to escape the clutches of the villain of the play who had bought her as a slave, the very ending of the play showed that there was also another reason: “I loved you so, I could not bear my fate,” she tells him 9 Dion Boucicault, “The Octoroon.” Representative American Plays From 1767 to the Present Day, ed. Arthur Hobson Quinn. 7th edition (New York: Appleton-Century- Crofts, 1957, 371-398; p. 383. 262 H ERBERT G RABES when she is dying, “and then I stood between your heart and hers. When I am dead she will not be jealous of your love for me, no laws will stand between us. […] Oh, George, you may, without a blush, confess your love for the Octoroon.” 10 Being in love with the young man who runs the plantation, Lisa, the heroine of The White Slave, is spared such a tragic fate because her purely white descent is revealed and proved in time and there is no competition of another girl for the favors of her friend. Nevertheless, her love is severely tested and she has to overcome many obstacles before she can confidently look forward to a life with him as her husband on the plantation on which she had enjoyed a happy childhood. Only after it is revealed that the slave trader and villain of the play was a false friend who made him put the plantation in debt and sell the slaves, does her beloved Clay begin to fight for her, and she has to prove as steadfast as behooves a heroine when threatened by her new master, “I can send you to the fields to work all day among the common niggers - a hoe in your hand, rags upon your back.” Typical of melodrama is her often quoted retort, “Rags are royal raiment when worn for virtue’s sake, and rather a hoe in my hand than self contempt in my heart.” 11 Good that she is spared that ordeal, because immediately her friend appears and they can flee together. This flight, though futile in the end, forms the most adventurous part of the action: Her overseer has to be overcome, her new master’s mistress loses her life when trying to stop him, a whole riverboat has to be put on fire to give them a chance to escape to a desolate island, and when discovered and threatened by renewed slavery, the heroine asks her friend to kill her, and when he can’t, attempts to kill herself, yet not before she - just like Boucicault’s octoroon - has told him, “I was only an octoroon, but I rose above my place and in the ecstasy of bliss forgot I had imprisoned in my nature the inheritance of Cain.” 12 As we must all be descendants of Cain because Noah and his family as the only ones to survive the deluge also were, this story that it was the African Americans in particular that bore the mark of Cain was obviously one of the religious ploys to justify racism. By the time the desperate lovers are brought back to the slave trader’s plantation, it is fortunately proven that Lisa is, indeed, a white woman by descent, and the villain is arrested by the sheriff for having killed his octoroon mistress and is even shot by him in self-defense. Only now are the 10 “The Octoroon,” p. 398. 11 Bartley Campbell, The White Slave & Other Plays, ed. Napier Wilt (Bloomington: Indiana University Press, 1940), 199-248; p. 227. 12 The White Slave, Act V, p. 240-41. Melodrama Against the Revival of Racism? … 263 lovers inseparable, and we learn that they will return to their “home in old Ken-tuck” after they have bought back all the slaves from the old plantation. How often a plantation owner or slave trader was indeed arrested by a southern sheriff for having killed one of his slaves remains to be proved. In this melodrama from 1882 it is shown to have happened in 1857 because the real hero of the play is not the heroine’s lover or some sort of cowboy figure but a funny-looking elderly lawyer who not only charges the villain for murder but also decides the fate of the heroine by coming up with the papers that document her descent and prove that she is a purely white woman. This lawyer, with the jolly name “Stitch,” by no means stands alone: together with a wealthy and haughty widow he keeps courting with great perseverance, and with her daughter and his nephew, who is in love with the girl, he forms the centre of what is a side plot rather than a mere subplot. The widow represents white racism, telling the heroine at the beginning, “Your white skin and dainty rearing cannot obliterate the fact that you belong to a race of slaves” - a remark that prompts Lisa to complain to her alleged slave mother: “Why didn’t you insist on my being kept in my place; among my own race, so ignorant that I would never realize the depth of my degradation.” 13 Besides this, however, this side plot introduces some comic relief, because the lawyer looks somewhat ridiculous in his romantic courting, and the way in which the widow’s daughter overrules her mother’s strong objections to her poor friend by just letting her know that she has already married him is also a feature typical of comedy. When Stitch’s courting proves successful after all, the melodrama ends with three pairs of lovers united. Only the heroine’s remark that she will take care of the child of the octoroon slave killed by her master reminds the audience that despite this happy comedy ending all is not well, nor has been so. For even the scenes that are meant to represent what John Blassingame has called “The Slave Community” 14 are not free of suffering. As earlier in Uncle Tom’s Cabin, families are separated when slaves are sold. So the heroine loses her alleged mother, who is sent to the slave market in New Orleans, and on the plantation of the slave trader an elderly couple is separated without further reason. Yet there is also the Uncle Tom figure of an old preacher who survives by considering his own fate and that of the other slaves as God-given and therefore to be borne with patience. And there is, because expected by an audience used to minstrel shows, the “ole man” who keeps playing the banjo and sings in the evening until his wife, from whom 13 The White Slave, Act I, p. 206. 14 John W. Blassingame, The Slave Community. Plantation Life in the Antebellum South (New York: Oxford University Press, 1972). 264 H ERBERT G RABES he has been separated, comes and starts to dance in spite of her rheumatism. If we are to judge from a review in the Chicago Tribune of October 31, 1882, where it says that “to an interesting story is joined that medley of nigger songs and dances,” 15 those who directed the play must have extended this element considerably to cater to popular taste. Which brings us to the question of why we should devote attention to a historical piece of writing that was already at the time of its first appearance criticized for its lack of literary value. “Literary work it is not dramatic work it assuredly is not, and if in despair one calls it a play, the word must be received in its most liberal acceptance,” it said in the same review. 16 Yet to be fair one has to say that Campbell’s play was no worse that any other play written in the United States at that time, and a more distanced view presented in the London Graphic on August 23, 1884 indicates why his play was so successful: “The White Slave has been found,” we can read there, “to be greatly to the taste of American audiences. For English sympathies it is a little too heavily weighted with exciting and harrowing incidents. In other words, it is rather ponderously elaborate melodrama” 17 It is its wide and long lasting success on the American stage that lends it some value in terms of cultural history. In the present context, however, it is less the “special effects” of the pre-film days, like the illusion of a burning boat on the Mississippi river created on a theatre stage, that is of primary interest. It is, rather, the dissemination of a particular ideological stance regarding the concept of race by a popular play like this. Witnessing the events of a staged melodrama of the kind of The White Slave implied the arousal of strong emotions, and such an experience could be quite influential on a larger scale when shared by a great number of people. Richard Gerrig has even claimed for the reading of narratives that the “traveler returns to the world of origin, somewhat changed by the journey.” 18 This is all the more true in the case of melodrama because the typical heightening of vices and virtues appeals strongly to the unconscious fears and desires of the audience. Regarding the issue of race, then, the play was most probably doublecoded in order to appeal to a wide audience. There is, on the surface of it, certainly no wavering regarding the issue of slavery. Slavery is presented as being quite inhuman in every aspect, and it is not by coincidence that the villain of the play is someone who deals in “niggers and horses” and to 15 Quoted from Napier Wilt, “Alphabetical List of the Plays of Bartley Campbell.” The White Slave, p. lxxxi. 16 Quoted from Wilt, “Alphabetical List …,” The White Slave, p. lxxxi. 17 Quoted from Wilt, “Alphabetical List …,” The White Slave, p. lxxxi. 18 Richard J. Gerrig, Experiencing Narrative Worlds: On the Psychological Activities of Reading (New Haven: Yale University Press, 1993), p. 16. Melodrama Against the Revival of Racism? … 265 whom “a blubbering nigger is no more […] than a yelping dog.” 19 While it seems already revolting that a white looking and beautiful young woman should have become the slave of such a brute, the audience must have been truly outraged when it turns out that the heroine is purely white. But the situation is more complicated than this. It is true that when still thinking she is an octoroon, the heroine’s white lover tells her before they flee together: “I have come here to take you out of bondage or share it with you,” and that he answers her objection, “But you forget what I am,” by saying “I forget everything - but that I love you.” 20 This does not mean, however, that racial difference has been abolished. It has merely been “forgotten” under the impact of individual love and this actually serves to prove how strong this love must be. Also, the forgetting is not so difficult in this case, because Lisa looks so white that even the widow with her racist views has to admit that “No one would believe she had a drop of African blood in her veins.” 21 And the gist of the play is, after all, that she is also “white” in the sense that indeed no “drop of African blood” is “in her veins.” Therefore I do not share Diana Paulin’s view that The White Slave is one of the works that “engage the issue of interracial desire,” 22 works that “directly challenge fixed definitions of black and white.” 23 As to desire, it quite clearly is ruled by the principle “The whiter the better,” and as the villain Lacy does not really want a peer partner but rather a sex slave, a “white slave” like the heroine Lisa would be the fulfillment of his weird dreams. These dreams cannot, however, be fulfilled, because there is a quite clear definition of black and white in this play, namely the legal definition based on the partus principle of descent. Thus Lisa complains at the beginning about “my heritage; of the doom attendant on the birth of a slave. Mother, I owe this to you,” 24 and later it is only the “baptismal record of the child of Marquis De Bernaugre and Grace Hardin” 25 that proves that she does not belong to a “race of slaves” 26 and not only looks white but counts as “white.” What I mean by double-coding is Campbell’s strategy of keeping the legal demarcation line of racial difference intact, to allow, however, for an incidental “forgetting” of this difference in order to demonstrate the power 19 The White Slave, Act II, p. 220. 20 The White Slave, Act III, p. 229. 21 The White Slave, Act III, p. 229. 22 Diana Paulin, “Representing Forbidden Desire: Interracial Unions, Surrogacy, and Performance,” Theatre Journal 49.4 (1997), 417-39; p. 420. 23 Paulin, “Representing Forbidden Desire …,” p. 421. 24 The White Slave, Act I, p. 206. 25 The White Slave, Act VI, p. 246. 26 The White Slave, Act I, p. 206. 266 H ERBERT G RABES of love; yet once this power has been demonstrated, those in the audience romantic enough to sympathize with this kind of oblivion are saved the worry about racial mixing or what since a notorious pamphlet from 1864 was called “miscegenation” 27 by turning the octoroon into a truly white woman. No wonder Campbell met the expectation of a very wide (and white) audience that was fond of strong emotions yet not ready for the considerable changes regarding race they would actually demand. The White Slave was successfully staged until 1918, yet the anti-miscegenation laws lasted much longer. When declared unlawful by the US Supreme Court in 1967, no fewer that sixteen states still had them, and the last one, in Alabama, was not repealed until November 2000. Quite apart from this, the villain of the play seems to be not alone in his desire to own a white slave: replicas of a suitable theatre poster are still offered for sale on the internet 28 right next to a column of pinups. 27 Miscegenation: The Theory of Blending the Races, Applied to the American White Man and Negro, anonymously published in New York but actually written by David Goodman Croly and George Wakeman in order to discredit the abolitionist cause. 28 http: / / www.rainfall.com/ posters/ Theatrical/ 3226.htm Melodrama Against the Revival of Racism? … 267 Works Cited Auden, W.H. “In Memory of W.B. Yeats (d. Jan. 1939).” Modern Poets - Three. Ed. Jim Hunter. London: Faber and Faber, 1968. 25-26. Blassingame, John W. The Slave Community. Plantation Life in the Antebellum South. New York: Oxford UP, 1972. Boucicault, Dion. “The Octoroon.” Representative American Plays From 1767 to the Present Day. Ed Arthur Hobson Quinn. 7th ed. New York: Appleton-Century- Crofts, 1957. 371-398. Campbell, Bartley. The White Slave and Other Plays. Ed. Napier Wilt. Bloomington: Indiana UP, 1940. 199-248. Croly, David Goodman, and George Wakeman (published anonymously). Miscegenation. The Theory of Blending the Races. Applied to the American White Man and Negro. New York, 1864. Gerould, Daniel C. “The Americanization of Melodrama.” American Melodrama. Ed. Daniel C. Gerould. New York: Performing Arts Journal Publications, 1983. 7-29. Gerrig, Richard J. Experiencing Narrative Worlds: On the Psychological Activities of Reading. New Haven: Yale UP, 1993. Hildreth, Richard. The Slave: or Memoirs of Archie Moore. Boston: John H. Eastburn, Printer, 1 1836. Morris, Thomas D. Southern Slavery and the Law, 1619-1960. Chapel Hill: U of North Carolina P, 1996. Paulin, Diana. “Representing Forbidden Desire: Interracial Unions, Surrogacy, and Performance.” Theatre Journal 49 (1997): 417-439. Tenzer, Lawrence R., Ed. D. and A.D. Powell, “White Slavery, Maternal Descent, And the Politics of Slavery in the Antebellum United States. http: / / multiracial.com/ context/ view/ 462/ 27/ Theatrical Poster. http: / / www.rainfall.com/ posters/ Theatrical/ 3226.htm Wilt, Napier. “Alphabetical List of the Plays of Bartley Campbell.” The White Slave and Other Plays, Ed. Napier Wilton. Bloomington: Indiana UP, 1940. Introduction. T IMOTHY D EINES Interrogating the Moral Contract in Ruiz de Burton’s The Squatter and the Don In his reading of William Dean Howells’s A Modern Instance (1883), Brook Thomas describes a certain transition and dilemma in American history. Discussing the town of Equity, in which much of Howells’s novel takes place, Thomas writes: If, on the one hand, the town of Equity evokes the image of an agrarian republic intent on establishing a reign of classical virtue, on the other, it evokes the image of a static, hierarchical society in which the “right reason” of a governing elite gives it access to higher laws of justice unavailable to the people at large. The breakdown of Equity’s order … is thus double edged. Promising freedom from an aristocratic paternalism that blocks democratic development, equity’s breakdown also threatens the moral foundation on which the United States promised to construct a more equitable and virtuous society. (27) With the possibility of equity’s collapse arises the dilemma of how to preserve republican virtue together with democratic development. Republican equity and liberal contract thus represent the two halves of a moral capitalist society, in a normative sense. In contrast to equity, Thomas tells us, contract “implies a universal standard in which everyone has the same duties as everyone else - even strangers” (28). In the quintessentially liberal, if not democratic, economic climate of contract, aristocratic hierarchy is threatened, but so is equity, which is to say justice itself. Defined by Aristotle as “the sort of justice which goes beyond the written law,” equity is guaranteed by “unspoken agreements sanctified by tradition…” (qtd in Thomas 26; Thomas 29). Contract threatens to negate equity’s corrective antidote altogether. In contract, people are held “responsible only for actions considered legally binding.” If custom and tradition are the guarantees of justice in an aristocratic world of status, law is the guarantee of justice in a liberal world of contract. But as a result of the latter, “people could violate unspoken codes of behavior without legal reprisal.” In a world of contract without equity, the question is whence justice? But Thomas’s quotation also implies that in a hierarchical world of equity without the universal standard implied in contract, the question remains the same: whence justice? Published only two years after Howells’s realist classic, María Amparo Ruiz de Burton’s The Squatter and the Don (1885) represents yet another “modern instance” in its far less ambiguous attempt to reconcile equity and 270 T IMOTHY D EINES contract, aristocracy and democracy, republicanism and liberalism. 1 Ruiz de Burton wants her novel, in contrast to Howells’s, to end in marriage and not divorce. The trouble is that the literal marriage between children of the principle families in Squatter is not reflected in the “marriage” of equity and contract. Instead, contract, particularly in corporate form, threatens to obliterate equity, and the novel’s narrator is left to ponder alternative forms of justice to equity. In these alternatives, another justice emerges that is not the customary justice of equity. Rather, it is the justice of democracy, and it appears at and as the very limit of the law, in the form of the moral contract. I. Squatter perfectly reflects the dilemma between republican equity and liberal contract that Thomas describes. In 1872, overlapping the time in which Howells’s fiction is set, the agrarian, aristocratic Alamar family finds its means of subsistence, cattle ranching, threatened by squatters who care nothing for equity but only for the law. Don Mariano Alamar, the family’s genteel head, is the virtual poster-boy for republican virtue. He does not rule his 45,000-acre ranch so much as he moves with the noble comportment of an ancient Greek citizen among its well-ordered relations. To the Darrell family, Anglo settlers from New England, the Mexican Alamar men appear as “Englishmen” and “gentlemen” (Ruiz de Burton 85). Such classical and feudal associations affirm that a certain aristocratic handsomeness, in men and women, is the natural accompaniment of moral virtue in Squatter. The same cannot be said of the squatters themselves, whom the supposed evils of pure contract have reduced to ugly, mean, desperate figures. In an early scene, John Gasbang, one particularly despicable squatter, as he prepares to “claim” what he regards as his legally sanctioned piece of land on Don Mariano’s rancho, gleefully exclaims, “This is what I call business … and all inside the law. That is the beauty of it - all perfectly lawful” (Ruiz de Burton 73). But Don Mariano, in equitable fashion, takes an enlightened attitude toward Gasbang’s and the other squatters’ actions: No, I don’t blame the squatters; they are at times like ourselves, victims of a wrong legislation, which unintentionally cuts both ways. They were set loose upon us, but a law without equity recoils upon them more cruelly. Then we are all sufferers, all victims of defective legislation and subverted moral principles. (Ruiz de Burton 74) 1 Future references to this text will be cited as Squatter. While these terms are not intended as a series of strict equivalencies or analogies, their alignment offers a suggestive framework, to be developed throughout this essay, for thinking about the political in Ruiz de Burton’s novel and in our own time. Interrogating the Moral Contract … 271 Law without equity rules political economy in Squatter. Don Mariano, whose very name recalls the aristocratic virtue supposed to check contract, knows that in a world of contract without equity no one is safe, ultimately, from anyone else, marking a return to a kind of Hobbesian state of nature. The complexity of customary relations are leveled to the point where individuals become mere economic units in a highly dynamic but extremely insecure environment (Thomas 29). In this world, justice becomes subject to a marketplace rationality where one day the law protects individual property and the next day abandons it to contingent forces. Thus, when the Don’s son, Victoriano, tired of being preyed upon by squatters, remarks, “I wish we were squatters,” the Don wisely replies, “During litigation, yes; but there have been cases where honest men have, in good faith, taken lands as squatters, and after all, had to give them up” (Ruiz de Burton 74). Don Mariano knows that where legal contract alone rules, justice is purely arbitrary and catch-as-catch-can. Squatter’s discrimination between equity and contract is most felt in what separates the Alamars, the Darrells, and the double figure of the squatters, on the one hand, and the railroad monopolies, on the other. 2 Sometimes Ruiz de Burton’s depiction of the Alamars borders the modern nostalgia in American literature one finds, for example, in Cooper’s historical positioning of Amerindians in the Leatherstocking novels as a people whose time has come. Landed aristocrats with “Spanish” origins, the Alamars “never will be business men” in a political modernity increasingly ruled by capitalist interests (Ruiz de Burton 83). Like the Amerindians in Cooper, the Mexican Alamars are sometimes made to appear as the “vanquished, who no longer had rights in their patrimony, and must henceforth wander off disinherited, despoiled, forgotten” and “sadly fade and pass away” (81, 164). If the Alamars belong to a residual Mexican aristocratic class, the Darrells, by contrast, belong to a middle-class Anglo ascendancy. This is perhaps best exemplified by the way in which the Darrells’ son, Clarence, and Mrs. Darrell complement one another. Clarence is the proverbial “self-made man” who, from “the sum of $2,000 bequeathed to him by Mrs. Darrell’s Aunt Newton, when he was five years old,” has accumulated a massive fortune from speculations in silver mines and other interests (102). He inherited his wisdom for investment from his mother, apparently, who, in the novel’s opening pages, speaks much of the “wisdom” of being “guided by … past 2 For considerations of space, I cannot adequately deal with the “complicated alliance between corporate and contractual capitalism” (Thomas 4). Thomas’s borrowing of the term “corporate liberalism” suggests, however, that even as collectivities of human individuals, corporations, by being considered “persons,” affirm the liberal conception of the person as a reasonable being capable of being a citizen and owning property, among other things. 272 T IMOTHY D EINES history” or “experience” (55). Mrs. Darrell refers here to the Darrells’ first excursion out West in 1848, immediately following the Mexican-American War, when Mr. Darrell (called simply “Darrell”) mistakenly claims land belonging to a Californio and then loses that land, after having worked it, when a federal court affirms the Californo’s title. 3 Some twenty-five years later, Mrs. Darrell stipulates to her husband, “do not go on a Mexican grant unless you buy the land from the owner” (57). She further instructs: “If the rancho is still in litigation, don’t buy land in it, or if you do, buy title from the original grantee, on fair conditions and clear understanding.” The Darrells have thus already experienced the vicissitudes of a justice premised on judgments of a merely legal nature. In 1848, they gambled with such a system, and lost. To avoid this recurrence, Mrs. Darrell stresses equity-like principles of “fair conditions” and “clear understanding,” principles that add an interpersonal dimension to a merely legal economic transaction. But Darrell himself fears he possesses a “streak of perversity” that will not allow him to abide by the demands of fairness (Ruiz de Burton 56). The novel’s unfolding bears him out in this fear as he eventually forgets his wife’s advice, with disastrous consequences for both families. Darrell’s streak of perversity is a moral failing that ties him to the squatters and the corporations, who “legally” dispossess people of their land with no thought for fairness, equity, or the like. The difference between an equitable contract and an inequitable one is summed up in the novel’s definition between “squatter” and “settler,” between which Darrell is constantly shuttling. A squatter, Mrs. Darrell explains in the novel’s opening pages, locates a claim “on land belonging to anyone else” other than the government (Ruiz de Burton 56). In doing so they cause “much trouble to people who never harmed them.” A settler, on the other hand, Rosaura Sánchez and Beatrice Pita tell us, “is described in moral … and economic terms” (23). A settler is willing to pay the asking price for land, whether to the government or an individual owner. “[The settler] is thus an individual entrepreneur who can invest in land, cattle and seed crop. The squatter, by contrast, is landless, generally with no capital to buy the land, but at the same time a gambler of sorts who, landhungry, is willing to work land that he may eventually lose.” Settlers thus negotiate contracts (titles) for land with whomever they intend to by from; they do not simply make a claim on the foundation of dubious law, which may or may not finally recognize such a claim. Proper, moral contracting requires certain manners and protocols, the novel suggests, and without the supplemental fairness that such manners add to mere contract there is only an ongoing violent dispossession of one individual or group by another. 3 The term “Californio” refers to Mexicans, sometimes Mexican-Americans, living in Alta California, or present day California, prior to the Mexican-American War. Interrogating the Moral Contract … 273 Like the squatters, the railroad corporations are not willing to enter such interpersonal negotiations. They simply ride roughshod over any interests that appear to contradict their own. Their attitude in the novel conforms to the squatters’: they “do not aspire to anything more than taking care of … business,” in the words of Leland Stanford, one of the so-called “Big Four” magnates (295). When confronted with the fact that many will suffer as a result of his actions to stop a southern pacific route, he replies, “if I don’t cause distress, someone else will. Distress there must be, bound to be in this world … .” Together, the monopolists and squatters represent a moral impasse for the equity-minded classes, despite the fact that the squatters are as subject to corporate depredations as the Alamars and Darrells. 4 C. Loyal, the narrator, finally denounces the monopolists in the harshest terms she can muster: These monopolists are essentially dangerous citizens in the fullest acceptance of the word. They are dangerous citizens, not only in being guilty of violation of the law, in subverting the fundamental principles of public morality, they are dangerous citizens, because they lead others into the commission of the same crimes. Their example is deadly to honorable sentiments; it is poison to Californians, because it allures men with the glamour of success; it incites the unwary to imitate the conduct of men who have become immensely rich by such culpable means. (Ruiz de Burton 338) From C. Loyal’s point of view, “commercial honor, business morality, should be based on strict rectitude, on the purest equity” (294). The corporations and squatters, however, “defy the law and use their power to the injury of others.” “Law” here appears as natural law, as opposed to positive law. The corporations and squatters are not dangerous because they violate any actual statute. Indeed, their collusion with federal and state governments contributes to the very fashioning of positive law, guaranteeing, to the extent possible, that their actions conform with law. They are dangerous, rather, because they undermine what in the novel is called “fundamental morality” (200). This natural law underwrites, or ought to underwrite, all positive law, since it is the ground of natural social existence, what Thomas, following Maine and Tönnies, calls “Gemeinschaft” (Thomas 29). Quoting Spencer, one character says that “‘the inferences of political economy are true, only because they are discoveries by a roundabout process of what the moral law commands’” (Ruiz de Burton 200). “Law” thus means something different in the mouths of the aristocratic Alamars than it does 4 All of the characters share an essentially negative view of “human nature.” The contract-without-equity view, represented by Stanford, sees human beings as essentially evil. But so does the equity-in-contract crowd, and for the same reasons. Without equity, contract, which relies on a natural understanding of the individual, is liable to grow monstrous, like a monopoly. 274 T IMOTHY D EINES in the mouths of the squatters and corporations. It is the difference between equity and contract, to be sure, but it is also the difference between a justice rooted in the timelessness of natural law (thus its basis in “sentiments” or feelings) and a justice commensurate with market dynamics. If equity corresponds, generally, to a form of civic republicanism, in which the political good depends upon a certain civic comportment or manner, and contract corresponds to a liberal logic of personhood, in which such persons vie with one another in a free marketplace, what can be said to ground this distinction itself? One answer, of course, is capitalism. Here, republicanism and liberalism become alternative means of harnessing the productive potential of capitalism for the benefit of the State, which is to say “the people,” or at least for particular interests that use the State as a means to their own ends. From this perspective, typically associated with a thinker like Marx, republicanism and liberalism name ideologies of bourgeois political community, i.e., the State, and provide sets of norms, or laws, for mediating between the State form and its capitalist base. But Squatter does not take such a position. It argues, rather, that the State should supply the equity that contract alone lacks, and that such regulation will suitably tame contract for society’s general well-being - a circumstance symbolized by the marriage between the republican-minded Mercedes and the liberal-minded Clarence. A serious critique of capitalism is not to be found here. Operating wholly within the horizon of capitalism, Squatter presumes that contract without equity will ruin society, since no moral ground exists in contract itself to tie its function to the general welfare of the political community, or the State. Equity, beyond its existence in sheer custom, requires, in Don Mariano’s words, “that the legislators of a nation [be] the guardians of public morality, the teachers of what is right and just” (Ruiz de Burton 161). The idea and practice of equity - “the sort of justice that goes beyond the written law” - implies, as Aristotle also says, “a correction of legal justice,” and thus moral and ethical dimensions (1020). In Squatter, the State is supposed to provide such corrections to law. But can we be so certain that contract, and liberalism generally, lacks a properly moral dimension, or does its socio-economic expression simply amount to, as one corporate type says, “business principles,” according to which “everyone is for himself,” and money becomes “the sole requisite upon which to base social claims” (Ruiz de Burton 292, 324)? This notion of “business principles” can arguably be considered a “morality” in its own right, even though its basis is the dynamic, ever-changing, and thus insecure, law itself. But there may be a stronger way of grasping liberal contract’s moral dimension. To get at it we must switch from a discussion of historical contract, as in “the Age of Contract,” to contract as a liberal philosophical idea, or social contractarianism (Thomas; Friedman). Interrogating the Moral Contract … 275 II. To cut through the enormity of the literature on contract, I will focus explicitly on Scott Michaelsen’s rebuttal of Charles Mills’s understanding of the “racial contract.” Michaelsen’s view of the more fundamental “moral contract” will assist us, in turn, in articulating the common reference point that civil republicanism and liberal individualism share in common. The point here will be that the fiction that is the moral contract constitutes the basis of State identity, or citizenship, whatever its balance between republican and liberal ideals happens to be. In this context, the question of justice does not end at the limit of equity, since the latter is enfolded within the moral contract. Rather, justice becomes a question of thinking the limit of the moral contract itself. In his attempt to purge a certain contractarian tradition of its potential complicity in racism, Mills constructs the notion of the “racial contract” as a special, non-fungible contingency in an otherwise “useful” contractarianism (Mills 137). “For me,” Mills writes, “it is not the case that a Racial Contract had to underpin the social contract … . I believe contract theory can be put to positive use once this hidden history is acknowledged …” (136-7 n9). But, from another point of view, the question is not what “positive use” can come from a racism-free social contract; rather, the question is whether the writing of “this hidden history” of the racial contract, which is to say its exposure as a non-essential contingency within the social contract, can indeed free the social contract from the kind of structural exclusivity that racism exemplifies. In other words, is social contractarianism capable, theoretically, of non-exclusivity? In “Between Japanese American Internment and the USA PATRIOT ACT: The Borderlands and the Permanent State of Racial Exception,” Scott Michaelsen answers this question negatively. Michaelsen locates the basis of Mills’s racial contract in the moral substratum of classical contractarianism itself, particularly in Hobbes and Rousseau. If Mills understands the white racial contract as the contingent basis of liberal political exclusivity, Michaelsen sees it as epiphenomenal to a more radical fiction called the “moral contract.” Michaelsen writes: the problem that Mills does not acknowledge, and apparently cannot see, is that the crucial discrimination for comprehending the racial contract is in fact the same discrimination that undergirds the totality of the moral contract. The moral contract, through and through, turns upon the divide between those who are fully human and those who are less so. The moral contract is guaranteed only by the labor or elevation of the citizen. (101) 276 T IMOTHY D EINES In other words, what is at stake in Mills’s study of the racial contract (a political exception beneficial to whites) is the moral criteria that determines who is to be consider a fully human person, in the liberal sense, and who is not. The moral contract thus represents the political measure for who shall be considered a candidate for citizenship and who shall not. As such, the moral contract serves to draw a line between person (fully human) and nonor sub-person (less human): “no matter how universalized [whether within the State or beyond, in a version of liberal cosmopolitanism, for example] the granting of personhood, the figure of the ‘subperson’ continues to lurk as an available, and necessary, related category” (Michaelsen 102). The necessary availability of the subperson, at the beginning and end of liberal polity, “necessarily provides the purchase for the categories of race, ethnicity, nation, and the like.” The overlap between personhood and citizenship is considerable here, as is that between personhood and human being. Indeed, as communitarian philosopher Adrian Oldfield has said, in the clearest possible terms, “to remain a citizen one cannot always treat everyone as a human being” (81). 5 Oldfield speaks from a republican perspective, to be sure, but it is undoubtedly a logic that belongs to liberalism as well. For the liberal construct of the individual and its liberties is entirely dependent on the State for the recognition and protection of those liberties. Thus, for both republicanism and liberalism a clear line must be drawn between those who meet the minimal requirements of membership and those who do not. At the limit of the subject-citizen there is the moral difference between the subject-citizen, or person, and its other, the subperson. 6 This is a first requirement for the State, liberal, republican, or otherwise. 7 A second requirement is that this moral difference manifests itself for the State. The subhuman, the being that does not meet the requirements of being a liberal person, must appear to the State, so as to be identified, but its appearance need not take a particular form - as non-white skin, for example. The marks of the subhuman, theoretically, can take whatever form. These marks con- 5 The term “citizen” is more appropriate to republican political philosophies than liberal ones, to be sure, but to the extent that the moral contract is fundamental to the liberal State (i.e., a State constitution whose premise is “universal” equality), theories about the rights and duties of citizens also fall within its orbit. 6 The reader should keep in mind throughout that I am trying to perform a descriptive critique of the moral contract, that is I want to describe how such an amorphous political fiction can and must work to found the State. From another point of view, however, nothing is less certain than the relative “humanity” of those occupying either side of the moral contract’s border. What is beyond doubt is that the figure of the human is itself a political fiction. 7 Unless noted otherwise, when the term “State” is used, it should be understood as referring to the U.S. liberal-republican polity. This does not mean, however, that this analysis is exceptional to the American State. Interrogating the Moral Contract … 277 form to what Etienne Balibar defines as “neo-racism”: “the phantasm of prophylaxis or segregation … articulated around stigmata of otherness” (17-8). 8 In this sense, the State may put to use whatever “stigmata of otherness” it finds convenient for the constitutive work of the moral contract, which is to say the singling out and excluding of the “subhuman.” 9 III. Since Rosaura Sánchez and Beatrice Pita reintroduced Squatter to the American academy and public over a decade ago, most critics have tried to situate it and Ruiz de Burton’s first novel, Who Would Have Thought It? (1872), within a historical narrative of Mexican-American resistance to U.S. 8 The “racial exception,” as I am trying to conceive it, cannot therefore be reduced to historical particularity. This does not mean, however, that historiography is useless or redundant. On the contrary, the very structure of the moral contract under consideration here requires a heightened vigilance towards its historical manifestations. 9 Liberal historian Rogers M. Smith, an important voice in American critical legal studies, takes an ambiguous view of diagnoses like Michaelsen’s of the moral contract. While Smith affirms that “features of liberal thought … were used to support patriarchy,” for example, he also thinks that “these elements … made earlier versions of liberalism … logically inconsistent with their own human rights arguments” (517 n44). Finally disagreeing with Carol Pateman’s important criticism of the “sexual contract” at the heart of the moral contract, Smith writes, “If the assumptions and endorsements of patriarchy are eliminated, liberal theories lose nothing essential and instead become internally coherent.” Thus, Smith appears to endorse a version of liberalism that can expunge the necessary appearance of the “subhuman.” But there is evidence that Smith ultimately sees “ascription” as an indelible, even desirable, feature of liberalism, as when he identifies, on the last page of his impressive study, “human dignity” as the telos of liberal politics, or when he invokes the criteria of “minimally rationally [sic] individuals” as the proper subjects of “universal rights” (506, 517 n44). Both of these examples support Michaelsen’s contention that the moral contract necessarily produces the criteria for discriminating between those who meet the moral criteria of liberal political belonging and those who do not. How else can one explain Smith’s surprising call to accommodate “some of the appeal of ascriptive Americanism for a liberal democratic conception of U.S. citizenship” (504)? One further note: of crucial importance to Smith’s study is the distinction between “Lockean liberalism,” republicanism, and the aforementioned “inegalitarian ascriptive traditions of Americanism” (2, 3). While space does not allow me to critique the logic behind such discrimination, what I suspect is that the distinction itself obscures what is common to both the liberal view of the moral individual and the republican view of the duties of citizenship: a minimum threshold of “moral” identity must always be met if one is to be considered a viable political being. The question is whether or not there must always be “human” beings adjudged not to conform to such a threshold in order that there be those that do. This essay attempts to answer this question in the affirmative, with an eye towards, in Derrida’s words, a justice to come. 278 T IMOTHY D EINES imperialism, including the Chicano Movimiento of the late 1960s forward. 10 One exception is Kate McCullough’s reading of Squatter, which interprets gender roles in the novel as structuring the public and private spaces of the novel’s political imaginary. But whether critics have focused on the legally sanctioned subordination of Mexican-Americans (race) or women (gender), none have argued that these particular manifestations, important as they may be, are symptomatic of the moral contract itself. In Michaelsen’s terms, they have attended to the “racial contract,” in one guise or another, but they have left the moral contract undisturbed. José F. Aranda Jr.’s reading of Who Would Have Thought It? is instructive on this point. Aranda Jr. has tried to complicate the literary heritage that reads Ruiz de Burton as a prototype for today’s “resistance theory” by reading the text of her first novel against, on the one hand, biographical data and, on the other, “the cultural moment that reproduced her work,” namely the series “Recovering the U.S. Hispanic Literary Heritage,” under whose auspices Ruiz de Burton’s novels were reissued (Aranda Jr. 553). A reading that discovers “who [Ruiz de Burton] actually was,” Aranda Jr. argues, “compensates us” for the “loss” engendered by those biographical and textual moments that render Ruiz de Burton not so much as a figure who resisted U.S. imperialism as one who was complicit with it (555). Aranda Jr.’s own traditionalist view of biography leads to conclusions consistent with a strongly historico-culturalist methodology. Late in the piece, for example, after he has assembled his biographical data, Aranda Jr. concludes that “Ruiz de Burton’s perspective … is different from those of Anglos and African Americans because she brings to her writing a different colonial tradition” (571). Aranda Jr.’s contrast of Ruiz de Burton the individual with the sets “Anglos” and “African Americans” reveals that this critic sees in Ruiz de Burton’s biography the biography of Mexican-Americans themselves; the latter are uncritically reduced to the former. Positioning himself, again without critical comment, within this group, he is thus able to ignore throughout his piece any examination of those structures, like the moral contract, that 10 See in particular the following: Rosaura Sánchez and Beatrice Pita, “Introduction to The Squatter and the Don.” The Squatter and the Don. Eds. R. Sánchez and B. Pita (Houston: Arte Público Press, 1997): 7-49; José David Saldívar, Border Matters: Remapping American Cultural Studies (Berkeley: University of California Press, 1997); John M. González, “The Whiteness of Romance: The Cultural Politics of Racial Formation in María Amparo Ruiz de Burton’s The Squatter and the Don. In the Wake of Reconstruction: National Allegory and Narrative Form: 1877-1907. Dissertation (Stanford University, 1997): 131-73; Kate McCullough, Regions of Identity: The Construction of America in Women’s Fiction, 1885-1914 (Stanford: Stanford University Press, 1999); Amelia María de la Luz Montes and Anne Elizabeth Goldman, Maria Amparo Ruiz de Burton: Critical and Pedagogical Perspectives (Lincoln: University of Nebraska Press, 2004). Interrogating the Moral Contract … 279 make all colonial differences the same, as well as different. One result is that no matter how many “complexities and idiosyncracies” Aranda Jr. is able to draw out of Ruiz de Burton’s texts and life, she will continue to serve a critical agenda premised on assumptions of discrete cultural belonging, just as she did when she was twisted into a figure of mere dissent. Aranda Jr. thus misses the opportunity to imagine what all political subjects share in common, which is to say the moral contract, the very ideological and fictive ground of every possible Statist inclusion and exclusion. In my view, John González’s “The Whiteness of Romance,” published one year before Aranda Jr.’s essay, takes a more critically challenging approach to Ruiz de Burton’s work, particularly Squatter, because its energies are more directly invested in critiquing political ideologies and institutions such as liberalism. But here too there are problems. Drawing on José David Saldívar’s seminal work Border Matters, González at first appears to invite a reading along the lines of the moral contract. For example, he argues that Squatter reveals American liberalism as “only operative on the ‘white’ side of the color line” and, citing David Roediger, “not able to suggest alternatives to a reinscription of the national wages of whiteness” (González 164, 173). González has in mind here C. Loyal’s attempt to yoke the fate of the Californios to a nascent Anglo volk republicanism and the violent rejection of such efforts at solidarity by the Anglo squatters. 11 González argues, further, that “Communities marginalized by national hegemonies but nonetheless incorporated into racialized regimes of labor have actively contested the methodological and narrative legitimation of the nation” (173). Following Saldívar and Homi Bhabha, González recognizes beyond the outskirts of “national allegory’s hegemonizing project” a “persistent agency in contesting the establishment of national hegemony.” Without ascribing an attitude of resistance to Ruiz de Burton herself, as if in anticipation of Aranda Jr.’s critique, González recognizes in marginalized communities a willful refusal of “national hegemony,” or, in this case, white volk republicanism. For González, the Indian Chapo’s racial exclusion from the white nation, which in Squatter potentially includes the Alamars, “demonstrates the ideological necessity of excluding racialized labor within the narrative of national hegemony and simultaneously acknowledging the foundation of nationalism upon the labor of subordinated communities” (176). Racialized labor, González shows us, is at once excluded from and included in 11 I repeatedly make the point that the Anglo characters represent a certain liberal strain in contract. The individualism of liberalism and the tendency for group identity in republicanism are not mutually exclusive. Volk republicanism, for example, could affirm the liberal individual even while it proclaimed the superiority of the white race. 280 T IMOTHY D EINES the construction of white national hegemony. The ground is thus prepared to recognize in Chapo the figure of the always-already-excluded that is the essence of the moral contract. But things go in a different direction once González affirms Paul Gilroy’s double political strategy of national hegemonic resistance outlined in The Black Atlantic (1993): first, claim “participation within modern democracies and their Enlightenment claims of liberty, equality and fraternity”; second, keep “visible the historical limits of the politics of fulfillment and thus those of modernity itself” (González 179-80). In this way, the double inclusion/ exclusion of the “subaltern” is kept in play. Gilroy’s “historical limits” are “manifested in the groans and cries of … vernacular politics,” claims González (180). 12 Because González wants to think both sides of the limit of the State, he requires a concept that will allow him to do this. Hybridity, however undefined by Gonzalez, is that concept. 13 On the near side of hybridity lies the liberal State itself: “modern democracies and their Enlightenment claims.” On the far side of hybridity, the side of agency, González names, somewhat contradictorily, the “heterogenous, conflicted, hybrid” as the site for national hegemonic resistance (177). Hybridity thus really only stands for the “vernacular” (i.e., cultural/ racial), which is to say for “subordinated communities” themselves, whose politics are born “in the experiences of diaspora”; hybridity represents “forms of consciousness” of “transnational community” that are irreducible to “the juridical confines of the nation” (178). With this last phrase, “juridical confines,” González appears to name the State, but again conflates that concept with “nation.” The result is a two-fold confusion: first, as González’s reading of Chapo indicates, he cannot neglect the role of the State without ascribing particular cultural traits to subordinated populations, as when he claims, for example, that “Living on ‘Indian’ time isn’t living on nation time”; second, ironically, he cannot imagine a form of justice that does not fall within the orbit of the 12 It is interesting that González stresses the “groans and cries” of African-American and transatlantic histories instead of, say, anger and insurrection. After all, the danger that the excluded pose to “civilization” is the danger born of radical exclusion from the polis. In terms of literary characters, I am thinking more of Delaney’s Blake rather than Stowe’s Tom. Gilroy does not fail to make the connection. See Martin R. Delaney, Blake; Or, the Huts of America (Boston: Beacon Press, 1970), and Paul Gilroy, The Black Atlantic: Modernity and Double Consciousness (Cambridge: Harvard UP, 1993). For a fundamental reading as to why those legally excluded from the polis pose a fatal threat to it, see Hannah Arendt, Imperialism: Part Two of the Origins of Totalitarianism (New York: Harcourt, Brace & World, Inc., 1951: 170-182. 13 For a scathing denunciation of the logic of hybridity, see Scott Michaelsen, “Hybrid Bound,” rev. of Border Matters: Remapping American Cultural Studies, by José Saldívar, Postmodern Culture 8.3 (May 1998). <http: / / www3.iath.virginia.edu/ pmc/ textonly/ issue.598/ 8.3.r_michaelsen.txt>. Interrogating the Moral Contract … 281 State itself. Cultural identity is not about justice, for González, it is about political domination and resistance. And since cultural identity is the only basis for political activity for González, it is also the basis for the other, properly political dimension of Gilroy’s double strategy - affirmation of and inclusion within modern democracy and its Enlightenment claims. In short, subaltern cultural identity is viewed as absolute Other of the State and absolutely beholden to it for its political possibilities. IV. But what happens if we try to think about Squatter, in particular, and the State, in general, from the perspective of the State itself, through the fiction of the moral contract? Such an exercise may enable us to take stock of what is truly exceptional, quite literally, about the State form, and what this (moral) exceptionalism might mean for the problem of justice. Toward this end, this essay remarks two instances in Squatter in which State law institutes, or appears on its way towards instituting, a moral exception distinguishing the person from the nonor sub-person. The first instance is fairly conventional, and it involves a reading of key sections of The Treaty of Guadalupe Hidalgo. The second instance is, frankly, unorthodox, in that it tries to read the rise of monopolies in Squatter as the emergence of a kind of “race” that eventually finds State affirmation in the Fourteenth-Amendment. These examples serve a two-fold purpose: first, to show that the moral contract can manifest itself in whatever form; in other words, the stigmata of otherness can appear as fictional entities, like corporations, as well as “human” bodies (fictions in their own way). Second, the subor non-person can appear as a “positive” construction to be protected by the State; it need not only manifest itself as a being to be excluded and denied rights and liberties. In this way, the moral contract structures the interiority of the State as much as its exteriority. The first exception under consideration here takes a racial form, in the anthropological sense, and it refers us back to the figure of the Indian Chapo. Chapo’s scarce appearance in Squatter itself signifies, in part, his symptomatic status as an excluded figure of labor, everywhere working for the benefit of the Alamars and others but kept resolutely “off screen,” as it were, suppressed beyond recognition in the novel. In this sense, Chapo clearly serves as a metonym for the constitutive laboring subject of capital, as González might agree. But Chapo’s description by C. Loyal as a “lazy Indian” need not be read as a sign of subaltern resistance taking the form of “Indian time,” as González says, as if all Indians possess this sense as a result of the experience of oppression (258). Alternatively, the terms of 282 T IMOTHY D EINES Indian and Californio exclusion and their difference appear in the text of Guadalupe Hidalgo as the contingent epiphenomenal possibilities of the moral contract itself. We can thus recognize examples of the State’s means of moral exclusion and provide an account of the mechanism behind such exclusions, yet avoid a descriptive account of cultural belonging. Indeed, what this strategy seeks to avoid above all else is the reduction of being to the terms of the moral contract. 14 The Treaty of Guadalupe Hidalgo (1848) performs a central role in C. Loyal’s argument for U.S. federal recognition of Californio land rights. It provides the legal foundation for her contention that the property rights of the Californios should be protected against theft by squatters and the railroads. But the federal passage of the Land Act of 1851, which forced Californios and others to prove to the State that their land titles were legitimate, appears to contradict the terms of the Guadalupe Hidalgo. In the chapter entitled “The Don’s View of the Treaty of Guadalupe Hidalgo,” Don Mariano expresses his displeasure in this clash between the Guadalupe Hidalgo and the stipulations of the Land Act. Referring to the latter, he says, “There are some enactments so obviously intended to favor one class of citizens against another class that to call them laws is an insult to law…” (Ruiz de Burton 64). In contrast, Don Mariano expresses unbridled optimism about the terms of peace in Guadalupe Hidalgo. In response to the comment by George Mechlin, a white eastern gentleman engaged to one of Don Alamar’s daughters, that “the rights of the Spanish people were protected by [the treaty]” the Don points to “the foundation of the relations between conqueror and conquered,” that is, “the spirit of peace and friendship” (65). Further, he notes: “The treaty said our rights would be the same as those enjoyed by all other American citizens.” While Don Mariano recognizes that laws can favor one class over another, he does not see this possibility as being intrinsic to law as such. Indeed, he does not even see this possibility as being intrinsic to a peace agreement concluding a war. In this old problematic that situates declarations of abstract rights against the discrepancies of practical politics and history, we see the Don taking a stance that attenuates the discrepancies of history without abdicating the promise of law’s universality. In other words, he wants laws that are equitable and that meet the requirements of universal principles. It is therefore possible to imagine Don Mariano embracing the “spirit” of “peace” and “friendship” as general philosophical principles of law capable of standing on their own. This is no doubt another example of the Don’s commitment to natural law. But if we 14 This is not a contradiction of previous claims. While the moral contract, I argue, is constitutive of citizenship, it is not constitutive of being itself. Unfortunately, I cannot pursue the implications of such an idea here. Interrogating the Moral Contract … 283 consider that Guadalupe Hidalgo was founded all along on the moral contract, not natural law, then its double inclusionary/ exclusionary language begins to make a strange kind of sense. Article XI of the treaty, for example, begins by identifying the “savage tribes” living in Alta California as subject to force and punishment by the U.S. government should “incursions” into Mexico by these tribes occur (Treaty 190). Specifically, this article seeks to establish the United States’s “true spirit and intent” in protecting any Mexican property, including slaves, from being bought and sold where it had been previously stolen by Indians. The document is careful to point out that the U.S. federal government will take the preemptive measure, “when providing for the removal of Indians from any portion of the said territories,” “not to place [these] occupants under the necessity of seeking new homes” (191). At best, this means that by removing Indians from federal territories the government intends effectively to quarantine [i.e., remove to reservations] them from any possibility of contact with Mexican properties. At worst, it means extermination. And the worst was what happened. According to Griswold del Castillo, after 1848, “The Indian population within the state [of California] declined by more than 100,000 in two decades” (Griswold del Castillo 69). Article XI is a clear example of the moral exclusion (of Indians) that makes political inclusion (of Mexicans) possible. Here, “Indian” simply represents the savage condition of possibility for the civilized political recognition of Mexicans as persons capable of owning property, among other rights and liberties. 15 This discrimination in Guadalupe Hidalgo between “Indians” and “Mexicans” is indicative, I am suggesting, of a simple structural exclusion constitutive of legal (i.e., State) identity. But this structural problem has its necessary temporal corollary. For González, this is where the subaltern’s cultural agency appears. But there is another way of approaching this problem. The moral contract, in addition to being exclusive as a matter of structure, also has a performative or agential dimension, but it is not the performance of “culture.” Rather, it is the performance of the decision against the fabric of law. Consider, for example, Article IX of the ratified version of Guadalupe Hidalgo: The Mexicans who … shall not conserve the character of citizens of the Mexican Republic … shall … be admitted, at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States according to the principles of the Constitution; and in the mean time shall be maintained and protected in the free enjoyment of their liberty and property … . [emphases added] (Treaty 190) 15 It is noteworthy that California Indians were Mexican citizens under the Mexican Constitution of 1824 (Griswold del Castillo 69). They were clearly denied this status in Guadalupe Hidalgo. 284 T IMOTHY D EINES In “Force of Law,” Jacques Derrida says that “every constative utterance relies, at least implicitly, on a performative structure” and that “the dimension of justesse or truth of theoretico-constative utterances … always thus presupposes the dimension of justice of the performative utterances … which never proceeds without a certain dissymmetry and some quality of violence” (256). This is true “particularly in the domain of the theory of law.” In Article IX, we see the temporal supplement to Article XI. First, citizenship is promised to Mexicans, and with it the full schedule of rights accorded by the Constitution. But this promise is not precisely constative, since the statement is not strictly illocutionary, that is, the statement does not itself effect the promise of citizenship - it simply registers a promise. Cutting across this promise are contradictions of time and decision: “at the proper time; “in the meantime”; “to be judged of by the Congress of the United States.” If Mexicans remaining in the United States will be extended citizenship at the proper time, what guarantees their protection in the mean time? In other words, if the full force of the Constitution is deferred for these potential citizens until the “proper time,” what force of law will protect them until that time? One might call this necessarily deferred promise of citizenship an example of mere law without the justesse of the performative utterance. Significantly, this notion of “proper time” is dependent on congressional decision, and this decision will in fact be dissymmetrical to the promise that it is intended to keep - which was that “The Mexicans” shall be admitted at the proper time. But decisions take time because information must be gathered, beings sorted out, criteria for membership created and met, protocols and procedures instituted. Who, for example, is “Mexican”? Who has voluntarily given up their Mexican citizenship in exchange for American citizenship? The difference between mere law and the force, or decision, of that law means that there can be no “horizon of expectation” with respect to the content of the actual decision (Derrida 256). The time it takes to make a decision - and the decision must take time - means that “some quality of violence” will emerge at the moment of decision. This is because no authentic or responsible decision is possible which does not in some shape or form distinguish itself from the legal norm upon which it decides. This act of distinction, or criticism really, is violent. And this violence is necessary for political progress itself: “each advance in politicization obliges one to reconsider, and so to reinterpret the very foundations of law such as they had previously been calculated or delimited” (257). Two points emerge from this discussion: the first is that the moral contract, in this case taking the epiphenomenal form of Articles XI and IX in Guadalupe Hidalgo, requires a structural exclusion for its internal consistency; the second point is that this structure itself depends upon a performative decision in time that reiterates and thus reaffirms the initial Interrogating the Moral Contract … 285 structural inclusion/ exclusion. Articles XI and IX represent a kind of literal performance of this two-fold necessity. In this way, we can recognize the philosophical significance of the Land Act of 1851 with respect to Guadalupe Hidalgo. The Land Act, rather than contradicting the terms of Guadalupe Hidalgo, actually represents the “truth” of the treaty, insofar as the latter is founded upon the moral contract. Michaelsen writes: “if [the moral contract] cannot be eliminated, and if a legal order always must think, first at the moment of its founding and incessantly thereafter, about the question of its own interiority/ exteriority, then the question of ‘race’ and its many analogues … remain in play” (103). The Land Act of 1851 is an example of this “incessantly thereafter.” The moral exception of the financial corporation in the law functions no differently, but this time the exception is included with the polis and benefits from that inclusion. In Squatter, it is this exception, more broadly ruinous than the Land Act, that ultimately threatens C. Loyal’s future vision for the United States. Conversely, the Indian exception in Guadalupe Hidalgo is wholly forgotten in the text. If the Indian Chapo represents the excessive, forgotten remainder of the moral contract’s racial exception in Squatter, then the corporation proper represents the excessive remainder of the “racial” exception’s inclusion within the moral contract. Specifically, for Squatter, if Chapo figures as but one of an open set of moral exclusions necessary for the construction of the liberal State and is membership, then the corporation figures as the last inclusion that may spell the demise of the State’s economic viability. C. Loyal reserves some of her strongest invective for the “dangerous citizens,” the corporate monopolies. The corporation subverts “the fundamental principles of public morality,” she says, and their bad example “is deadly to honorable sentiments,” leading to other unfair economic practices. The corporation follows the code of “BUSINESS,” Doña Josefa, Don Mariano’s wife, tells us, which “justifies in the pursuit of riches everything mean, dishonest, rapacious, unfair, treacherous, unjust, and fraudulent” (335). This kind of “business” violates Doña Josefa’s “sense of justice and her ideas of moral adjustment of men’s actions with principle …” (335-6). 16 The corporation is bad because it practices, in Don Mariano’s words, contract without equity. It arrogates to itself the assumptions of possessive individualism, which is to say of liberalism, but it rejects the checking role of republican virtue, or equity, on the individual’s right to contract. Squatter 16 These anti-“business,” anti-corporate sentiments expressed by C. Loyal and Doña Josefa should not be interpreted as inimical to contract. Laissez-faire economic philosophy, which the Alamars and C. Loyal embody to some extent, could coexist quite easily with anti-corporate sentiment. I thank Brook Thomas for this reminder. 286 T IMOTHY D EINES argues this problem strictly on moral grounds, however. Therefore, at issue in the novel is not how the moral contract can supply the necessary terms for the legal conception of the corporation. Rather, Squatter concerns itself with an injured moral sensibility with respect to normative uses of labor and capital. Morality and law thus get conflated, and the result is that any capitalist practice injurious to a certain sense of fairness, a feeling of equity, is deemed illegal. But the very terms of the corporation’s legal empowerment do reflect liberal precepts of the individual. Such a phenomenon represents a rather strange example of how the moral contract can be used to create, in quasi- Frankensteinian fashion, “persons” that are not human but nevertheless count as citizens. Consider Mr. Mechlin’s, a friend of Don Mariano’s, (non)anthropocentric description of the corporation: These men - this deadly, soulless corporation, which, like a black cloud, has shut out the light from San Diego’s horizon - will evermore cast the shadow that will be our funeral pall. But let them look to it; they might yet carry their heartless rapacity beyond limit. The mighty monopoly, that has no soul to feel responsibility, no heart for human pity, no face for manly blush - that soulless, heartless, shameless monster - might yet fall of its own weight. (Ruiz de Burton 296) This is highly suggestive language. The plural “men” in apposition with the singular “corporation” reflects the deadening effect that the corporate absorption of the individual has on “real” individuals themselves. Precisely what makes the corporation what it is, in this passage, is its lack of sentiment, which was described earlier in terms of equity. The corporation cannot feel; it has no heart; nor can it blush. It is the corporation’s fundamental opposition to equitable contract that makes it monstrous. The corporation has always had a “monstrous” history, at least from the time of Dartmouth College v. Woodward (1819). In this decision, Marshall famously described the corporation as “an artificial being … existing only in contemplation of the law” (Dartmouth College 257). “[T]he mere creature of law,” the corporation may possess any quality that a state charter may decide to ascribe to it. Marshall says that “the most important of these are immortality, and, if the expression may be allowed, individuality.” Such attributes enable a corporation to practically “act as a single individual” in the face of the changing plurality of “real” individuals with it. In Santa Clara Co. v. South Pacific Railroad (1886), published one year after Squatter, the Supreme Court decided negatively that this immortal soul, however fictitious, was indeed a “person” and privy to due process and equal protection, just like actual human persons: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny any person within its jurisdiction the equal protection of the laws, applies to these corporations. We Interrogating the Moral Contract … 287 are all of opinion that it does” (qtd in Horwitz 173-4). 17 Notwithstanding Morton Horwitz’s claim that this “decision” (Justice Waite’s statement actually precedes and introduces the ruling of Santa Clara) is “totally without precedent,” there does appear a rather remarkable relation between the law and personhood, specifically the law’s role in the creation of personhood. We have seen above how Guadalupe Hidalgo instituted certain terms of humanity itself. While Mexicans figured ambiguously in those terms, the same was not true for Indians. They were baldly excluded as savages. In the case of corporations and their legal history, the question is to what extent they participate in a similar moral process of inclusion and exclusion. The judges in Santa Clara could have decided, for example, that corporations are not legal persons and, therefore, do not share the same rights as flesh and blood citizens. After all, what we are dealing with is historical contingency, not necessity. Here, the significance of the State’s recognition of corporate personhood lies in the possibility that it may be but one more epiphenomenon of the moral contract. If the moral contract exists, then its sole purpose is to separate the legitimate members of political community from illegitimate members. In the context of corporate citizenship, Oldfield’s remark that “to remain a citizen one cannot always treat everyone as a human being” thus takes on an even greater significance. It not only suggests that citizens need not be “human beings,” as in the case of the corporation, it also implies that “human beings” themselves are constructs subject to the disciplinary apparatuses and functions of the State. These apparatuses and functions are part and parcel of the moral contract. V. In conclusion, I want to remark two astonishing moments in the novel, amplified by their arrival on the very final pages. To review, briefly: C. Loyal’s pleas for equity have gone unheeded by the railroad corporation, and both “squatter” and “don” are crushed by this newly emerging, monstrous form of corporate contract. Having exhausted her call for equity, C. Loyal does not know which way to turn. Perhaps her narrative strategies 17 Some of these points have been hotly contested in legal scholarship since the days of Santa Clara. Horwitz, for example, in a recent article, does not believe that Santa Clara marks any significant point of departure from Dartmouth College concerning the legal theory of the corporation. He also contests the often-voiced suspicion that the 14th Amendment was really passed on behalf of corporate enrichment, not African-American political equality. Long before Horwitz, Arthur W. Machen, Jr. and John Dewey took up the philosophical question of the corporation’s status as a personality. 288 T IMOTHY D EINES have failed, as González and Kate McCullough suggest, and she is able to do nothing but recapitulate what may be the single most conservative narrative gesture in all of modern literature - the wedding. It is as if C. Loyal’s jeremiad fails to convince even her, as no legislation appears forthcoming that can right the wrongs of the Californios, and so she completes her fantasy-marriage of equity and contract in one form while abandoning it as a viable historical possibility. Despairing that the State possesses the will to stop the corporate takeover, she can only hope for a miracle: “If they do not [legislate accordingly], then we shall - as Channing said - ‘kiss the foot that tramples us! ’ and ‘in anguish of spirit’ must wait and pray for a Redeemer who will emancipate the white slaves of California” (Ruiz de Burton 344). The racial qualifier should not come as much of a surprise. Part of Squatter’s racial strategy all along has been to align Californios and Anglos along the axis of whiteness, since such a local majority might, on the one hand, have persuaded the Anglo squatters to quit squatting and, on the other hand, forced the corporations to respect this majority’s will. The call for a Redeemer is the real surprise. It is a call, in effect, for divine intervention in a legal domain that has driven nearly everyone in the novel to the wall by virtue of what has been repeatedly called the moral contract. The real irony here, as Guadalupe Hidalgo shows, is that C. Loyal pinned her hopes to the moral contract only to have it, in Don Mariano’s words, recoil upon her more cruelly. To complicate matters somewhat, there is a second call for intervention directed squarely against the immoral monopolists: “It seems now that unless the people of California take the law into their own hands, and seize the property of those men, and confiscate it, to reimburse the money due the people, the arrogant corporation will never pay” (Ruiz de Burton 338). For C. Loyal, “the people” means Anglos and Californios, as we have seen. The moral contract has meant the exclusion of Indians, for example, in the form of Guadalupe Hidalgo. 18 How might we think about the narrator’s call for a religious intervention, on the one hand, and a populist/ democratic intervention, on the other? Perhaps the first thing to say is that these are calls for justice. The question of equity - “the sort of justice that goes beyond the written law” - therefore returns at the end of Squatter as a kind of final appeal for justice. In this sense, C. Loyal simply repeats an argument she has made in other forms throughout the novel. But another question immediately emerges: what kind of equity is it that comes in religious and populist forms, if these are indeed calls for such justice, rather than in the form of a judge’s conscience, for example, or other traditional guises of equity? Strictly speaking, it is difficult to characterize these interventions as equity at all, since equity, 18 The moral contract was renewed once more in 1882 with the Chinese Exclusion Act. Interrogating the Moral Contract … 289 historically, has always played a recognizable role with respect to law, specifically common law. Something rather more drastic is being considered here. The first call for a Redeemer recalls Carl Schmitt’s insight that “All significant concepts of the modern theory of the state are secularized theological concepts,” and that, historically, “the omnipotent God became the omnipotent lawgiver” (Political Theology 36). C. Loyal’s call for a redeemer may therefore also be understood, in secular terms, as a call for the renewal of law by an omnipotent lawgiver. Such a desire would not be foreign to C. Loyal’s discourse, which repeatedly invokes the need for wise rulers. But can such renewal occur democratically, and what would democracy mean in this case? C. Loyal’s call for “the people” to take the law into its own hands certainly carries overtones of populist vigilantism. Would such a movement be undemocratic? It all depends on how one conceives democracy. The illiberal Schmitt, for example, characterizes democracy as resting “on the principle that not only are equals equal but unequals will not be treated equally” (The Crisis of Parliamentary Democracy 9). He continues: “Democracy requires, therefore, first homogeneity and second - if the need arises - elimination or eradication of heterogeneity.” Given Schmitt’s own historical circumstances, such a definition provokes a certain terror. But what if there is some truth to such a formula? What if democracy, in one form or another, has always only been possible as the result of a moral contract, for example, that supplies the terms for homogeneity, on the one hand, and heterogeneity, on the other? Such is the dilemma which caused Derrida, for example, to never stop thinking about a democracy, and a justice, to come. Such is the dilemma that Ruiz de Burton’s novel also gives us to think. 290 T IMOTHY D EINES Works Cited Arendt, Hannah. Imperialism: Part Two of the Origins of Totalitarianism. New York: Harcourt, Brace & World, Inc., 1951. Balibar, Etienne. “Is There a ‘Neo-Racism’? ” Race, Nation, Class: Ambiguous Identities. E. Balibar and E. Wallerstein. Trans. C. Turner. London: Verso, 1991. 17-28. “Dartmouth College v. Woodward.” American Democracy: A Documentary Record, Volume I: 1620-1865. Eds. J.R. Hollingsworth & B.I. Wiley. New York: Thomas Y. Crowell Company, 1961. 256-61. Delaney, Martin. Blake; Or, the Huts of America. 1861. Boston: Beacon Press, 1970. Derrida, Jacques. “Force of Law: The ‘Mystical Foundations of Authority’.” Acts of Religion. Ed. G. Anidjar. Trans. M. Quaintance. New York and London: Routledge, 2002. 228-298. Dewey, John. “The Historic Background of Corporate Legal Personality.” The Yale Law Journal 35.6 (1926): 655-73. Friedman, Lawrence M. A History of American Law. Third edition. New York: Simon & Schuster, 2005. Gilroy, Paul. The Black Atlantic: Modernity and Double Consciousness. Cambridge: Harvard UP, 1993. González, John M. “The Whiteness of Romance: The Cultural Politics of Racial Formation in María Amparo Ruiz de Burton’s The Squatter and the Don.” In the Wake of Reconstruction: National Allegory and Narrative Form: 1877-1907. Dissertation. Stanford University, 1997. 131-73. Griswold del Castillo, Richard. The Treat of Guadalupe Hidalgo: A Legacy of Conflict. Norman & London: University of Oklahoma Press, 1990. Horwitz, Morton J. “Santa Clara Revisited: The Development of Corporate Theory” 88 West Virginia Law Review 173 (1985-6): 173-224. Machen, Jr., Arthur W. “Corporate Personality.” Harvard Law Review 24.4 (1911): 253-67. McCullough, Kate. Regions of Identity: The Construction of America in Women’s Fiction, 1885-1914. Stanford: Stanford University Press, 1999. Michaelsen, Scott. “Hybrid Bound.” Rev. of Border Matters: Remapping American Cultural Studies, by José Saldívar, Postmodern Culture 8.3, May 1998 <http: / / www3. iath.virginia.edu/ pmc/ textonly/ issue.598/ 8.3.r_michaelsen.txt>. Mills, Charles W. The Racial Contract. Ithaca & London: Cornell UP, 1997. Oldfield, Adrian. “Citizenship and Community: Civic Republicanism and the Modern World.” The Citizenship Debates. Ed. Gershon Shafir. Minneapolis: University of Minnesota Press, 1998. 75-89. Ruiz de Burton, María Amparo. The Squatter and the Don: A Novel Descriptive of Contemporary Occurrences in California. 1885. Eds. R. Sánchez and B. Pita. Houston: Arte Público Press, 1997. Saldívar, José David. Border Matters: Remapping American Cultural Studies. Berkeley: University of California Press, 1997. Sánchez, Rosaura. Telling Identities: The Californio Testimonials. Minneapolis and London: University of Minnesota Press, 1995. Sánchez, Rosaura and Beatrice Pita. “Introduction to The Squatter and the Don.” The Squatter and the Don. Eds. R. Sánchez and B. Pita. Houston: Arte Público Press, 1997. 7-49. Schmitt, Carl. The Crisis of Parliamentary Democracy. 1923. Trans. E. Kennedy. Cambridge and London: The MIT Press, 2000. Interrogating the Moral Contract … 291 —. Political Theology: Four Chapters on the Concept of Sovereignty. 1922. Trans. G. Schwab. Cambridge and London: The MIT Press, 1988. Smith, Rogers M. Civic Ideals: Conflicting Visions of Citizenship in U.S. History. New Haven and London: Yale University Press, 1997. Thomas, Brook. American Literary Realism and the Failed Promise of Contract. Berkeley: University of California Press, 1997. The Treaty of Guadalupe Hidalgo, as Ratified by the United States and Mexican Governments, 1848. Appendix 2. Richard Griswold del Castillo, The Treaty of Guadalupe Hidalgo: A Legacy of Conflict. Norman & London: University of Oklahoma Press, 1990. 183-99. B YRON C AMINERO -S ANTANGELO Of Freedom and Oil: Nation, Globalization, and Civil Liberties in the Writing of Ken Saro-Wiwa In 1994 Nigerian writer Ken Saro-Wiwa, along with eight other activists, was arrested for the murder of four Ogoni chiefs by a mob during a rally of the Movement for the Survival of the Ogoni People (MOSOP). Even though he was far from the scene of the murder, and despite the fact that he unremittingly advocated the use of non-violence in the Ogonis’ struggle for their rights, Saro-Wiwa was charged with inciting the crowd through his speeches and activism. This was not the first time Saro-Wiwa had been detained. Under the regime of General Ibrahim Babangida, he was often arrested because of his ceaseless efforts both to rouse the Ogoni to resist their oppression by the joint forces of the Nigerian state and international oil and to muster support from the international community for the Ogoni cause. Yet, the result of this detainment was to prove different; Saro-Wiwa’s most recent arrest had been orchestrated by Nigeria’s new military autocrat, Sani Abacha, who was even more willing than his predecessors to flaunt civil liberties, civil rights, and international opinion. After being held for months without charge or trial, Saro-Wiwa was brought before a military tribunal handpicked by Abacha. The subsequent trial was a travesty. Prosecution witnesses admitted being bribed; the defense team was regularly harassed and threatened by security agents; and eventually “the bias of the tribunal was so blatant that the defense team withdrew, declaring that their continued participation would only give a semblance of legality to a patent circus spectacle” (Soyinka 146). On October 31, 1995, Saro-Wiwa was sentenced. In the London Guardian, Wole Soyinka noted that since “the judiciary, at nearly all levels, has been subverted” and because of “the institutionalization of secret tribunals whose composition is at the behest of Sani Abacha and his psychopathic cronies,” the verdict “was, of course, only too predictable. Abacha had decreed the death sentence for Ken Saro-Wiwa, and nothing else” (147). Despite an international outcry, Saro-Wiwa and the eight other MOSOP activists were hung to death on November 10. In the process, the Nigerian state showed itself willing to use any available means to silence its critics and instil fear by demonstrating its unrestrained, “unquestioned power of life and death over its citizens” (Quayson 72). 294 B YRON C AMINERO -S ANTANGELO However, as many commentators have remarked, Abacha lacked foresight regarding the effects of his actions (Bastian, Nixon “Pipe Dreams”): Abacha clearly had no conception of the cost of creating a martyred writer, an image with considerable pulling power in the media - doubly so since the fatwa against Salman Rushdie. The threat of censorship typically raises the hackles of journalists and writers because they are professionally invested in freedom of speech. From this viewpoint, the execution of a writer on false charges is more than just another human injustice; it also becomes, as Harold Pinter observes, ‘the most brutal form of censorship.’ It was predictable, therefore, that the image of Saro-Wiwa as writer-martyr would provoke intense journalistic outrage as well as the most vocal literary protest since the Rushdie affair … . So in death, Saro-Wiwa extended - surely beyond his imaginings - the remarkable coalition of international interests that he had begun to forge while alive, an alliance that brought together environmentalists, minority rights advocates, anti-racists, opponents of corporate deregulation, and defenders of freedom of speech. (“Pipe Dreams” 123-4) Concerns with issues of civil liberties resulting from Saro-Wiwa’s execution helped his cause not only by garnering sympathy and support but also by focusing attention on his message regarding the links among the oppressed and impoverished condition of the Ogoni, the devastation of their environment, the horrors of Nigeria’s military regimes, and the operation of international oil. Those concerns also reinforced a perception of the relationship between his fight against the combined forces of Shell, Chevron, and the Nigerian government and the struggle for civil liberties. Yet there were voices in the international press which, while deploring the transgression of civil liberties by the Nigerian government and condemning the Abacha regime, strove to deflect opprobrium and responsibility from oil companies and the effects of unregulated global capital. 1 These commentators and journalists followed the official Shell line, which was that foreign oil companies should not be held accountable for the actions of the Nigerian government. Being about civil liberties, this was a national matter, and the only responsible parties must be Nigerian. 2 To look at the 1 As Bastian notes, “conservative, pro-business Western newspapers like the Wall Street Journal refused to denounce Shell’s practices, although they seized upon the follies of the Abacha regime with alacrity as an example of what they wish to represent as the African continent’s continuing slide in to social/ political/ economic anarchy. The Economist actively defended Shell in its cover article in the edition of 18-24 November 1995” (132). 2 Shell’s general manager in Nigeria, Nnaemeka Achebe, told a reporter “Shell is the victim in this. We are caught in a situation where the communities can’t get at the real target - the government - to express their grievances, so they attack us” (Hammer 14). He also proclaimed, “we must be mindful not to interfere with local politics and be a government of some sort” (15). Of Freedom and Oil … 295 matter in this way, however, is (intentionally) to disconnect the issue of civil liberties from some of Saro-Wiwa’s key concerns such as the lack of economic remuneration to the Ogoni and the destruction of their environment by oil companies, as well as the close relationship between those companies and the Nigerian government. In his own writing, in contrast, Saro-Wiwa emphasizes those connections. A Month and a Day: A Detention Diary, in particular, achieves this effect both through its content and form. The book has two distinct parts. The beginning and ending focus on the story of Saro-Wiwa’s detention in 1993, after he had become a significant threat to the regime of General Babangida as both an effective spokesperson for the Ogoni people and as a kind of Gramscian intellectual striving to bring them to self-consciousness as a people. The rest of the “diary” tells the story both of the development of the Ogoni resistance movement and of the oppression and dispossession of the Ogoni under colonial and, especially, post-independence rule. Yet, the two “parts” of this text are linked, and Saro-Wiwa suggests in a number of ways how the framing narrative of his detention, which is a tale of the transgression of his personal civil liberties, cannot be separated from the situation of the Ogoni. The text as a whole emphasizes not only relationships among the problems of national oppression of minorities, unregulated global capital, and environmental destruction but also how these problems are inextricably intertwined with the issues of civil liberties and rights. Such synthesizing work is among Saro-Wiwa’s most important legacies, encouraging a rethinking of the individual issues, as well as a transformation of the agendas of activist organizations such as Greenpeace and Amnesty International. Yet, we should not approach his formulations uncritically; while insisting on the interpenetration of the issues and on the kinds of links Saro-Wiwa describes, we must also consider some of the tensions and contradictions such connections inevitably produce. Saro-Wiwa organizes the post-independence story of the Ogoni around the notion of “internal colonialism.” As an ethnic minority, they are politically marginalized both at the federal and state levels by the three ethnic majorities - Igbo, Yoruba, and Hausa/ Fulani - and have little voice in the acquisition and distribution of their resources. As a result, even though huge reserves of oil (Nigeria’s primary source of wealth) sit on Ogoni land, they receive little compensation for oil exploration and extraction. The government siphons off the wealth extracted from Ogoniland to create private fortunes for the ruling elites and to develop other parts of Nigeria, even as the Ogoni themselves lack all basic infrastructure and amenities such as electricity, potable water, roads, schools, and hospitals. The situation became especially severe after 1977. A new Nigerian constitution was imposed by the military junta which declared all land in Nigeria the prop- 296 B YRON C AMINERO -S ANTANGELO erty of the federal government, strengthened the central government, and “left the ethnic minorities totally unprotected in terms of their economic resources and their culture” (55). The result was that “by 1980 the Federal government had left the oil-bearing areas with only 1.5 per cent of the proceeds of oil production” (55). Saro-Wiwa also focuses on the ways that the Ogoni’s colonized condition results from international economic imperialism and the process of (economic) globalization. By working with the national government, oil companies are able to appropriate land from the Ogoni without compensation, bypass environmental regulation, and, as a result, cut down operating expenses. Basically, international oil maximizes profits at the expense of Nigeria as a whole, and especially its ethnic minorities, by enriching a small ruling elite who serve as middlemen and enforce the interests of foreign capital. Saro-Wiwa uses a vivid metaphor of a masquarade to describe this process: As Nigeria celebrated independence, the Ogoni were consigned to political slavery at the hands of the new black colonialists wearing the mask of Nigerianism. The new Nigerian masquerade was in the public arena, leashed to a rope held by an unseen hand, and steadied by the oil of the Ogoni and other peoples in the Niger River Delta. In effect, the producers of that oil, the mulitnational oil giants, truly controlled the masquerade in the arena. (186) This analogy closely echoes the scenario laid out by Frantz Fanon in “The Pitfalls of National Consciousness” in which, following independence, native elites “take on the role of manager for Western enterprise” even as they espouse nationalist rhetoric (154). Saro-Wiwa, however, was much more concerned with the relationship between subalternity and ethnicity in the development of neo-colonialism than Fanon, who focused primarily on the category of class. The destruction of the Ogonis’ environment through oil spills and leaks, the flaring of gas, and oil exploration is, according to Saro-Wiwa, the greatest crime committed against them. Their air, soil, and water have become indescribably polluted, their primary occupations - farming and fishing - are destroyed, and they suffer numerous environmentally induced health ailments including respiratory diseases and lead poisoning. 3 Dramatically 3 One commentator notes, “It is difficult to accurately describe the extent of the environmental degradation which has deprived [the Ogoni] of their economic lifeline (many commentators and first-time visitors shocked at the devastation have simply concluded that it is better seen than described! )” (Osaghae 5). Saro-Wiwa does his best in Genocide in Nigeria to depict these horrific conditions: The most notorious action of both [Shell and Chevron] has been the flaring of gas sometimes in the middle of villages, as in Dere, (Boma Oilfield) or very close to human habitation as in the Yorla and Korokoro oilfields in Ogoni. This action has Of Freedom and Oil … 297 bringing to the world’s attention the link between environmental degradation and both minority and human rights, Saro-Wiwa claims that the combination of “the 35-year-old ecological war waged by the multi-national companies, Shell and Chevron” and “a political war of tyranny, oppression and greed designed to dispossess the Ogoni people of their rights and their wealth” amounts “to genocide and … a grave crime against humanity” (148) (hence the title of a previous book, Genocide in Nigeria: The Ogoni Tragedy). According to Saro-Wiwa, the Ogoni failed to protest against such crimes in the past in part because of the colonial cultural mechanisms at work among them. They have been given an educational system which ignores and denigrates Ogoni language and culture in favor of the ethnic majorities’ cultures. The Ogoni, he declares, have been downtrodden by a “domestic colonialism” which not only includes “an outrageous denial of rights” and “a usurpation of our economic resources,” but also seeks “to demoralize our people by characterizing them as meek, obscure and foolish” (73). The result is a loss of collective confidence and identity which leads to an acceptance of their own colonized condition: “The Ogoni people have virtually lost pride in themselves and their ability, have voted for a multiplicity of parties in elections, have regarded themselves as perpetual clients of other ethnic groups and have come to think that there is nowhere else to go but down” (73). In the face of these conditions, Saro-Wiwa calls on the Ogoni to establish a sense of “unity, unanimity, and consensus” (72), in part by embracing an Ogoni identity and culture embedded in their pre-colonial and colonial history. The Ogoni must, he claims, “co-operate with one another, as individuals, as groups, because that is the only way we can survive” (75-6). They must also rediscover those collective traits necessary to achieve their salvation. Saro-Wiwa asserts that the history of the Ogoni reveals that they have “always been fierce and independent,” as well as “exceptional and original” destroyed ALL wildlife, and plant life, poisoned the atmosphere and therefore the inhabitants in the surrounding areas and made the residents half-dead and prone to respiratory diseases. Whenever it rains in Ogoni, all we have is acid rain which further poisons water courses, streams, creeks and agricultural land. Next to the flaring of gas comes the frequency of oil spills. Shell and Chevron use the most outdated equipment and technology in Ogoni, leading to innumerable oil spills which destroy farmlands, streams and water courses and the creeks. One of the greatest casualties of oil spills has been mangrove trees in the swamps which near-surround Ogoni. These trees which were a source of firewood, of seafood such as oysters, mussels, crabs and cockles, have been unable to survive the toxicity of oil. They have now been replaced by strange, valueless palms. Additionally, oil has poisoned the mudbanks which were formerly the home of mudskippers, clams, crabs and perwinkles. These rich sources of protein for the Ogoni people no longer exist. The result is that the fishermen of Ogoni have lost their occupation and Ogoni people no longer have protein in their food. (81-2) 298 B YRON C AMINERO -S ANTANGELO (72). Throughout the twentieth century, they have “struggled to resist colonialism and return to their much cherished autonomy and self-determination” (73). If they rely on their “age-old traditions” and their “genius,” they can, he proclaims, “extricate [themselves] from the quagmire in which [their] abundant wealth has paradoxically placed” them (110). Saro-Wiwa thus embraces the pastoral notion of a better future to be found in a return to a “true” identity from which the Ogoni have been violently wrenched: “I can confidently say that it is still possible to return to ‘the local culture,’ to ‘time-honoured traditions and customs,’ in short, to re-create societies which have been destroyed by European colonialism, neo-colonialism, or the newly inspired and even more destructive ‘black colonialism’” (190-1). 4 Of course, the Nigerian state did not only use ideological state apparatuses in order to prevent resistance; when the Ogoni began to unite and become politically active, all the weight of the repressive state apparatuses were used to silence them. Saro-Wiwa tells the story of his own detention to demonstrate this process. Held for almost a month before being formally charged or given a trial, when he was finally brought before a court the place of the trial was changed at the last minute in order to deny him proper council and to deny access to his supporters and the press. Furthermore, initially he was told by police that he was arrested for “election offences” (because of the MOSOP boycott of the Nigerian elections of 1993), but after the “nullification of the election” which should have “negated the basis of [his] arrest” (36), he was still held and eventually brought up on a trumped up charge of “sedition and unlawful assembly” (219). As Saro-Wiwa tells it, he was not surprised by these events, both because of his previous illegal detentions and because he had been threatened with detention many times if he did not stop his writing and other publicity work. Since he was the primary spokesman for the Ogoni, this effort to intimidate and silence him was also an effort to muffle the voice of the Ogoni on the national and international stage. Yet his detention was only one part of a larger pattern: the govern- 4 He also gives a spirited defense of this idea against “the convention in right-thinking Western circles that Africa’s tribes and ethnic groups are repressive colonial interventions”: “Far from being ‘repressive colonial inventions,’ Africa’s tribes and ethnic groups are ancient and enduring social organizations complete with their own mores and visions” (191). As is often the case with such arguments, Saro-Wiwa does not address the ambiguities of identity entailed in pre-colonial, colonial, and postcolonial history. It has been suggested that, although the Ogoni are an ethnic group in that they share many cultural traits, they do not have a myth of common origin, while the sub-groups among them do, and, as a result, these sub-groups “tend to engender stronger loyalties than the ‘Ogoni’ nation” (Osaghae 4). In other words, a sense of pan-Ogoni identity - the kind of identity Saro-Wiwa is calling for - may very well not be something pre-dating colonialism and post-independence Nigeria but something that is in the process of being forged. Of Freedom and Oil … 299 ment banned all public gatherings and demonstrations when the Ogoni planned mass protests; these protests were then met by government violence; MOSOP leaders were repeatedly harassed and detained by the police; and laws were enacted stipulating the death penalty for anyone uttering the words ethnic autonomy or seeking to alter the boundaries of local states. Saro-Wiwa also uses his experiences in detention as an opportunity to record the abuse of civil liberties and rights in Nigeria as a whole. He tells stories of journalists and activists he met who were held without charge or trial, whose arrests were kept quiet (even from their relatives), and who had been tried in front of illegal tribunals. In addition, a theme throughout the diary is the horrific conditions in Nigerian prisons and jails, which in themselves constitute a form of abuse. As he notes, “You can tell the state of a nation by the way it keeps its prisons, prisoners being mostly kept out of sight. Going by this criterion, Nigeria was in a parlous state indeed” (224). Finally, Saro-Wiwa emphasizes the wider effects of the abuses of civil liberties and rights he experienced by suggesting that they turn the nation itself into a kind of prison. In a poem he wrote while in prison entitled “The True Prison” he asserts “the security agent” and “the magistrate,” as well as “moral decrepitude/ Mental ineptitude/ Lending dictatorship spurious legitimacy,” contribute to turning “our free world/ Into a dreary prison” (221). 5 Although not a separatist, Saro-Wiwa claims that the ultimate solution for the Ogoni’s predicament is increased self-determination within a Nigerian confederation. This goal was expressed in the Ogoni Bill of Rights which was presented to the Nigerian government in 1990 and called for the Ogoni to “be granted Political Autonomy to participate in the affairs of the republic as a distinct and separate unit … provided that this autonomy guarantees the following: a) political control of Ogoni affairs by Ogoni people; b) the right to the control and use of a fair proportion of Ogoni economic resources for Ogoni development; c) adequate and direct representation as of right in all Nigerian national institutions; d) the use and development of Ogoni languages in Ogoni territory; e) the full development of Ogoni culture; f) the right to religious freedom; g) the right to protect the Ogoni environment and ecology from further degradation. (69) As this list suggests, Saro-Wiwa believed that increased political autonomy for the Ogoni is a means to bring about improved civil liberties and rights, economic and cultural development, better environmental protection, and a more 5 As Craig McLuckie notes, “the building of immediate, concretely realized physical surroundings into a metaphor for the state of the nation” (46-7) is a particularly effective (if obvious) conceit that runs throughout A Month and a Day. 300 B YRON C AMINERO -S ANTANGELO democratic Nigeria. In fact, Saro-Wiwa saw the struggle for ethnic autonomy within the nation as the hope for the future of Africa as a whole, and especially for a democratic Africa: “how wonderful it would be for Nigeria, for Africa, if the various ethnic nations that make it up could assert themselves in similar ways. We would be heading for a more democratic system, far from the dictatorships which have ruined the continent, and we might succeed in reordering our societies, undoing Berlin of 1884, so that there would not be so much exploitation at all levels in all parts of the continent” (134). This effort to link the struggle for Ogoni self-determination with the fight for minority rights and democracy throughout Africa is one example of Saro-Wiwa’s larger goal in A Month and A Day of connecting the plight of the Ogoni with the situations of others in order to garner support. As Rob Nixon notes, “Saro-Wiwa appreciated the improbability of converting an injustice against a small African people into an international cause. His strategic response was to scour the wider political milieu for possible points of connection” (113). The success of his strategy was reflected in his ability to enlist the support of a wide variety of groups, many of which did not initially see his concern with the Ogoni’s plight as linked with their agendas. For example, when he contacted Greenpeace and Amnesty International, the former were uninterested in his cause because they did not “work in Africa” and the latter were only interested in “conventional killings” as opposed to the deaths caused by environmental degradation (88-9). Eventually, he won them over, and, as Nixon argues, contributed to important developments within such organizations. In particular, Nixon claims that by encouraging a decentering and diversifying of environmental agendas - for example, by reimagining them in terms of “conflicts between subnational microminorities, autocratic nation-states, and transnational macro-economic powers” (“Environmentalism” 246) - Saro-Wiwa has helped move the environmental movement away from too strict a focus on (white, Western) concerns such as “purity preservation and Jeffersonian-style agrarianism” (243). 6 Obviously, Saro-Wiwa’s success in garnering international support resulted in part from his skills and experiences as a writer and a cultural worker. In the “diary,” he himself claims that his work in television, journalism, fiction, and publishing made him particularly suited for his role as spokesperson for the Ogoni. Yet, Saro-Wiwa also saw the necessity of working with and alongside his people in their struggle if he were to be able to put his skills to use for them. In Africa, he proclaims, “the writer must be l’homme engage: the intellectual man of action. He must take part in mass 6 Nixon compares this process to the way a previously white, privileged feminism “irrelevant to the need of third world women” has been “radically changed by the rise of local social movements” in the past 20 years (243). Of Freedom and Oil … 301 organizations. He must establish direct contact with the people and resort to the strength of African literature - oratory in the tongue. For the word is power and more powerful is it when expressed in common currency” (81). Saro-Wiwa was, in fact, a Fanonian intellectual who joined “the people in that fluctuating movement which they are just giving shape to” (227) and “turns himself into an awakener” (223), helping them to forge a revolutionary sense of collective identity and to engage in effective forms of collective action. (Direct examples of this aspect of his work can be found in A Month and a Day in the many texts of speeches to Ogoni audiences he includes.) Saro-Wiwa’s effectiveness both as spokesperson and as goad to collective action led to the efforts of the Nigerian government to silence him. As Ngugi wa Thiong’o points out, when the artist successfully helps create a liberatory narrative, especially when this narrative is being made with and among the people, the state both performs its power and attempts to control the performance of the artist through detention, exile, and/ or death. Yet, as Ngugi also points out, even in prison, the narrative battle between state and artist is not over: Prison narratives by artist-prisoners are essentially a documentation of the battle of texts and of the continuing contest over the performance space of the state. This contest, while aimed at the groups of interested watchers outside the gates - Amnesty International, International Pen, and other human rights groups - is ultimately aimed at the real audience: the people waiting in the territorial space. The state is trying to direct the drama of the prisoner’s self-condemnation … The artist prisoner resists in every fibre of his being displaying ‘the placard of selfcondemnation,’ … This contest over the prison performance space of the state is also a means of resistance, a means of staying alive in this torture-chamber of the spirit. It is, in other words, one of the ways of denying the state a triumphant epilogue to its performance. The kind of prison narrative which Ngugi discusses tells a story which dialogically engages the state’s monologic narrative and, in the process, challenges the state’s efforts to impose restrictions on expression and to silence such oppositional stories. In A Month and a Day: A Detention Diary, Saro- Wiwa explicitly makes use of the relationship between these two aspects of the genre, and turns his detention to his rhetorical advantage, by emphasizing the link between the struggle for civil liberties and his other causes: the plight of the Ogoni, the fight for minority rights in Nigeria more generally, and issues of environmental justice. 7 7 A Month and a Day is a prison narrative in a double sense, since it was rewritten during the detention which eventually led to Saro-Wiwa’s execution. In the “Preface” he writes, “Given the fact that I am not certain what the immediate future may bring, I have thought it wise to get my original draft published and have therefore smuggled it into my detention cell and am correcting and redrafting it in very difficult circumstances” (1). 302 B YRON C AMINERO -S ANTANGELO In fact, Saro-Wiwa creates a necessary link between the fight for civil liberties in Nigeria and his other causes; this fight, he suggests, will gain wide popular attention and appeal only in the wake of struggles for social justice. He notes, for example, that only when the Ogoni developed a sense of communal grievance and began to protest did they become aware of the suppression of civil liberties in Nigeria and of its significance: Since our denigration as a people was unprotested, no one had ever been held on his conscience. So that the fact that an innocent man could be sent to prison was unthinkable. It is true that we had read of the detention of people in Nigeria, but it was mostly a phenomenon of Lagos, where there were several human rights activists. That was until I told the Ogoni people that they were being cheated, denied of their rights to a healthy environment, and the resources of their land. Then almost the entire 51,000 Ogoni men, women and children became activists. Still, prison seemed far away … . And yet I do remember that I kept warning the Ogoni people to prepare for harassment, imprisonment and death. Altogether, it was fitting that I should be one of the first to be detained. It would show subsequent detainees that they were in good company. (223-4) Advanced through forms of banned speech and political action, the Ogonis’ struggle necessarily results in greater awareness of issues of civil rights and liberties and, de facto, becomes a fight for civil liberties. This point gives some weight to Saro-Wiwa’s claim that in Africa the fight for minority rights will bring in its wake democratic change and increased respect for liberal values: “Would the Ogoni revolution be a model for other small, deprived, dispossessed and disappearing peoples? … A large number of communities ready to take their fate into their hands and practice self-reliance, demanding their rights non-violently, would conduce to democracy and more politically developed peoples” (134). Yet, though Saro-Wiwa effectively linked the issue of civil liberties with his other causes both in his writing and in his role as political martyr, there are questions and tensions which remain unaddressed. Perhaps most importantly, one cannot assume that the fight for minority rights would automatically result in an increase in civil liberties and rights at the local level. As I indicate above, the argument that, in the context of Nigerian national politics, the struggle for minority rights will by necessity be a struggle for civil liberties is compelling. However, would the achievement of increased autonomy necessarily result in an Ogoni state respectful of civil liberties? Would minority or opposition voices among the Ogoni themselves be silenced in the name of Ogoni unity and identity? Will Kymlicka’s discussion in Multicultural Citizenship concerning the possible tensions between (collective) minority rights and individual civil liberties is useful here. Kymlicka primarily argues that the traditional liberal Of Freedom and Oil … 303 position on individual rights must be brought together with a notion of collective rights in order to arrive at a more comprehensive liberal vision of social justice. Discussing how national and ethnic minorities remain vulnerable to the majority (even in a democratic system) when it comes to questions involving national language, education, control of resources, and assimilation, Kymlicka notes, “the problem is not that traditional human rights doctrines give us the wrong answer to these questions. It is rather that they often give no answer at all … These questions have been left to the usual process of majoritarian decision-making within each state. The result … has been to render cultural minorities vulnerable to significant injustice at the hands of the majority” (5). He concludes that “to resolve these questions fairly, we need to supplement traditional human rights principles with a theory of minority rights.” Yet, Kymlicka notes, minority rights can clash with individual civil liberties when the former refers “to the right of a group to limit the liberty of its own individual members” and, particularly, when it enables “the suppression of dissenters within the group” (6-7). As a result, he distinguishes between two meanings of minority rights. One involves the right to impose “internal restrictions,” which involve the limitations to individual liberties described above. The other involves what he calls “external protections,” which involves “the right of a group to limit the economic or political power exercised by the larger society over the group.” Kymlicka argues that the latter are often consistent with a liberal vision of individual liberties, while the former are not. However, as he also recognizes, even “laws that are justified in terms of external protection can open the door to internal restrictions” (43). While Saro-Wiwa was clearly focused on the issue of “external protections” for the Ogoni, he did not address the potential threat of “internal restrictions” if increased autonomy for the Ogoni were achieved. Furthermore, there is some cause to be concerned that the political culture of Nigeria would endanger civil liberties and rights even in a semiautonomous Ogoni state. The case of the killing of the four Ogoni chiefs by a mob, for which Saro-Wiwa was executed, might be instructive in this regard. Ato Quayson has perceptively argued that the root cause for these murders was the culture of violence, distrust, and impunity instilled throughout Nigeria by corrupt, vicious military regimes. 8 In Nigeria, those in 8 Quayson writes that totalitarian regimes in Africa which are focused on showing the people their unrestrained power result in “what we might describe as ‘cultures of impunity.’ … A minor traffic infringement may cause a person instant and violent retribution from bystanders. To fall in love with the wrong woman may invite physical mishaps of unimaginable sorts. An altercation in a shop may lead to assault and so on. The worrying thing is that this culture of impunity often marks all levels of civic society and polity, from the excesses of totalitarian regimes, to the banality of policing, right down to the breakdown of civil address between neighbors” (73). 304 B YRON C AMINERO -S ANTANGELO positions of power were so regularly bribed into supporting the status quo that to be perceived as speaking out in favor of the “official” position (as were the four chiefs) was to be marked as a traitor. In turn, the lesson instilled by Nigerian governance and society was that violence was the means with which to deal with those deemed to oppose you. Basically, Quayson argues, Saro-Wiwa did not perceive the effect that the larger political culture of Nigeria would have on his message and on those who followed him: “he motivated popular forces that began to articulate their perception of political action partially from within the ethical framework provided by the system of patronage and violence in place in Nigeria. Obviously, in his absence the masses deployed the means of understanding politics that was discursively instituted in Nigerian politics itself” (73). Clearly a similar situation could arise in a semi-autonomous Ogoni state; such a state would not necessarily be immune from the violent, anti-democratic culture instilled by decades of misrule in Nigeria. As I pointed out earlier, Saro-Wiwa endorses Fanon’s insight in “Pitfall of National Culture” that the “battle against colonialism does not run straight away along the lines of nationalism” (148) - i.e. that the goal of national independence was not necessarily identical with the goal of dismantling an unequal, exploitative colonial system and culture because these could live on, albeit in new forms, with new players in old roles. What he did not, perhaps, consider was that the goal of increased ethnic federalism (increased rule of Ogoni by Ogoni) is not necessarily identical with the goal of increased civil liberties, civil rights, and democracy, especially given the mindset encouraged by Nigerian socio-political culture. Another potential set of questions results from the linking of environmental protection and civil liberties. 9 The two concerns are clearly inseparable in a situation in which the degradation of a minority group’s environment for the benefit of the state and international capital depends on the silencing of that group and the denial of their right to determine the use of their land. The situation might become trickier, however, if the Ogoni were to achieve more autonomy. At that point, one of Saro-Wiwa’s goals, “the right to the control and use of a fair proportion of Ogoni economic resources for Ogoni development” in part by entering into contracts with oil companies, would need to be balanced with another, the protection of the Ogoni environment. This balancing clearly would entail determining what “sustainable progress” might mean. A liberal perspective, focused on the issue of “freedoms,” will necessarily be concerned that government institutions enable debate and discussion rather than dictate policy. Yet, 9 For a good overview of the possible relationships and tensions between liberalism and various environmentalist visions, see Andrew Dobson, 163-72. Of Freedom and Oil … 305 determining a definition of environmental sustainability through this process will by no means necessarily result in a decrease in environmental degradation necessary to save the Ogoni environment. In a hypothetical scenario, a majority of voices could be more focused on concerns with compensation and the development of Ogoni infrastructure and amenities and could give a backseat to environmental protection. Moreover, there might well be conflict between the goal of environmental preservation and the freedom of individual landholders to make decisions about the use of their land and to reap the benefits of their property. In a well-known argument regarding “the tragedy of the commons,” Garrett Hardin claims that unregulated communally held natural resources will eventually lead to ruin because people’s focus on their individual interests will come into conflict with the collective good.. He uses pollution - i.e. the commons as a place of waste disposal - as one example of this “tragedy.” To ensure environmental protection, he claims, there needs to be some form of governmental coercion and some curtailment of individual liberties. Thus, to prevent further catastrophic destruction of the Ogoni’s (common) environment, a semi-autonomous Ogoni state might need to regulate the kinds of agreements individuals could enter into with oil companies, which could, in turn, involve the potential curtailment of civil liberties. As Hardin notes, “every new enclosure of the commons involves the infringement of somebody’s personal liberty” (1248). 10 10 There have been numerous criticisms of Hardin’s argument, among the most compelling of which is that Hardin confused common property with open access. By doing so, he ignored the ways that regulation of “the commons” could be achieved by local indigenous institutions which would ensure that resources be managed sustainably and enable the “commons” to be compatible with long-term communal interest. As a result of this aspect of Hardin’s argument, it has all too easily lent itself to capitalist and imperial development narratives. (For the problems with Hardin’s argument in relation to Africa, see: Brockington and Homewood; Leach and Mearns, “Environmental.”) While these arguments are compelling and have necessitated a response from Hardin (see “Extensions of ‘The Tragedy of the Commons’”), they do not necessarily undermine the relevance of his argument in this particular situation. Traditional means of regulating the commons have already been undermined by the intervention of the Nigerian government and international oil. Furthermore, transformations of traditional ethics and social regulation have clearly resulted from the impact of colonial/ postcolonial modernity and the forms of capitalist ideology which have been brought in its wake. Finally, and perhaps most importantly given my argument, traditional means of regulating the commons would not necessarily be inconsistent with the kinds of curtailments of individual freedoms to which Hardin refers. 306 B YRON C AMINERO -S ANTANGELO In a number of ways, my outlining of the possible tensions between Saro-Wiwa’s other concerns and civil liberties may seem to be ignoring the larger picture. For example, since the astronomical level of environmental degradation of Ogoniland brought about by the combined external forces of the Nigerian government and international oil (both clearly indifferent to the fate of the Ogoni), it can surely be assumed that increased freedoms for the Ogoni could only lead to an improved environment and more environmental safeguards. Yet, the history of much of post-independence Africa has suggested the need to think not only about the connections but also the disjunctions among different political goals - disjunctions ignored at some peril. Saro-Wiwa was well aware, for example, that increased “democracy” would not automatically bring in its wake increased minority rights. His narrative of Ogoni history since independence emphasizes that even during periods of democratic rule, the Ogoni remained oppressed. This oppression can be addressed only if there is an attempt to change the structure of Nigeria itself so that minority voices and interests cannot be drowned at the federal level. (In this sense, Saro-Wiwa’s position corresponds closely with Kymlicka’s argument, discussed above, concerning the need to supplement traditional liberal principles with a theory of minority rights.) Sadly, the history of the Ogoni since Saro-Wiwa’s death supports this perspective. After the death of Abacha in 1998, Olusegun Obasanjo was elected president in 1999 after 16 years of military dictatorship. However, although Shell suspended exploration activities in 1993, its oil lines still cover Ogoniland and result in regular spills, as do abandoned oil wells which have not been properly sealed. Furthermore, there has been no compensation for past oil extraction or for past and present environmental degradation. The Ogoni still live amidst the most abysmal conditions, and their interests remain marginalized by Nigerian politics. The point is that there is a need to continue Saro-Wiwa’s work not only by fighting for the causes he has come to represent, but also by continuing to articulate and to think through the relationships among those causes. Ato Quayson has represented Saro-Wiwa as a tragic hero in that the clarity of his “ethical position against a totalitarian state and multinational interests” was “joined to the compromising circumstances of an unideal and sullied national history that defines his tragedy … Saro Wiwa is a tragic hero because he committed himself to his people but could not possibly have controlled all the forces he unleashed” (74). This argument is important for two reasons. On the one hand, it points to the need to revisit Saro-Wiwa’s stories (both the stories he told and the story of his martyrdom) in order to revitalize the “the process of challenging the dominant structural and discursive relations begun by the tragic hero” (Quayson 74). On the other hand, it points to the need to continue to leave the formulation of that pro- Of Freedom and Oil … 307 cess open: to think about how to address the gaps and potential blindspots in earlier formulations and representations as the struggle continues. 11 To see Ken Saro-Wiwa as a beginning rather than an ending is, perhaps, the best way to keep his legacy alive. 11 Craig McLuckie’s argument concerning the form of A Month and Day is interesting in this regard. McLuckie claims that Saro-Wiwa’s “diary” is “fragmented,” for example in its “conflation of discursive types” (the memoir, the diary, and the notebook). Drawing on Edward Said, he argues that this fragmentation, by refusing complete representation, challenges the establishment of fixed, final truths and points to the incomplete nature of the Ogoni’s struggle: “An unfinished, unpolished text is a testament finally to the greater work in process” (49). 308 B YRON C AMINERO -S ANTANGELO Works Cited Bastion, Misty L. “‘Buried Beneath Six Feet of Crude Oil’: State-Sponsored Death and the Absent Body of Ken Saro-Wiwa.” McLuckie and McPhail, 127-152. Brockington, Daniel and Katherine Homewood. “Wildlife, Pastoralists & Science.” Leach and Mearns, The Lie of the Land. 91-104. Dobson, Andrew. Green Political Thought. New York: Routledge, 2000. Fanon, Frantz. The Wretched of the Earth. New York: Grove, 1963. Hammer, Joshua. “Nigeria Crude: A Hanged Man and an Oil-Fouled Landscape.” Harpers 292. 1753 (1996). 58-70. Hardin, Garrett. “Extensions of ‘The Tragedy of the Commons’.” Science 280 (1998). 682-3. —. “The Tragedy of the Commons.” Science 162 (1968). 1243-8. Kymlicka, Will. Multicultural Citizenship: A Liberal Theory of Minority Rights. Oxford: Clarendon, 1995. Leach, Melissa and Robin Mearns. “Environmental Change & Policy: Challenging Received Wisdom in Africa.” Leach and Mearns, The Lie of the Land. 1-33. —. eds. The Lie of the Land: Challenging Received Wisdom of the African Environment. Portsmouth (N.H.): Heinemann, 1996. McLuckie, Craig. “Literary Memoirs and Diaries: Soyinka, Amadi, and Saro-Wiwa.” McLuckie and McPhail, 29-52. McLuckie, Craig and Aubrey McPhail, eds. Ken Saro-Wiwa: Writer and Political Activist. Boulder: Lynne Rienner, 2000. Nixon, Rob. “Environmentalism and Postcolonialism.” Postcolonial Studies and Beyond. Eds. Ania Loomba, Suvir Kaul, Matti Bunzl, Antoinette Burton, and Jed Esty. Durham: Duke UP, 2005. 233-51. —. “Pipe Dreams: Ken Saro-Wiwa, Environmental Justice, and Microminority Rights.” McLuckie and McPhail, 109-125. Osaghae, Eghosa E. “The Ogoni Uprising: Oil Politics, Minority Agitations and the Future of the Nigerian State.” African Affairs 94. 376 (1995). 325-44. Quayson, Ato. Calibrations. Minneapolis: Minnesota UP, 2003. Saro-Wiwa, Ken. Genocide in Nigeria: The Ogoni Tragedy. London: Saros International, 1992. —. A Month and a Day: A Detention Diary. New York: Penguin, 1995. Soyinka, Wole. The Open Sore of a Continent. New York: Oxford UP, 1996. S COTT M ICHAELSEN AND A NTHONY S ZE -F AI S HIU The Devil’s Traxionary (Civil Liberties Cut) This is not exactly an academic article. It is, instead, a particular sort of cut through a recently completed, experimental book manuscript entitled Your Songs: The Devil’s Traxionary (aka: The Black Book of Trax). The Devil’s Traxionary is not a book about the way music is consumed, but instead about how it might be. It’s a book of invective (but never personal). It’s a map (to territories found on few existing charts). It’s a book of sayings (which no one has yet adopted). It is an attempt to reinvigorate the question of popular (including rock, jazz, rap, soul, reggae, world) and avant-garde musics in relation to the political by extrapolating from recent conversations in post-structuralist philosophy. We could therefore make a long list of modes of music writing which The Devil’s Traxionary implicitly rejects. Instead, however, we might simply note here that The Devil’s Traxionary is a listing out, alphabetically by title, of 1,001 tracks by 1,001 different artists working since the dawn of electrical recording. Our form, therefore, is the one most favored these days by music magazines and specialty music books: the numbered list (e.g., “The 500 Greatest Rock Guitarists,” the “200 Best Heavy Metal Albums,” or the “1,000 Singles You Must Download Now! ”). We affirm its ultimate pointlessness as a form, and salute, in particular, the rock critic Dave Marsh’s several contributions to the foundations of this genre. Why not write a more traditional work of political philosophy? We have found that this detour of and through several years of passionate listening has changed the questions we ask and the suggestions we proffer. Musical tracks are surprisingly condensed, knotted, and oblique objects of study. But we also would insist that our choice of non-classical musics for our investigation is strictly arbitrary, and that the same sort of work might be accomplished by examining films, for instance. (In this way, The Devil’s Flixionary remains an open possibility.) The sixty tracks listed below constitute what we are calling the “Civil Liberties Cut” of The Devil’s Traxionary. These sixty entries take up not only what we might call “liberal” political-philosophical matters of rights and liberties, but also pesky questions regarding the insecure foundations of all civil liberties, the difficulty of determining “who” holds such liberties, and the ways in which those excluded from such civil liberties might begin to assess or address their situations. There is no attempt here at a comprehensive examination of such questions - rather, we present nothing more 310 S COTT M ICHAELSEN AND A NTHONY S ZE -F AI S HIU than a few clotted sentences, fleeting aphorisms, and dubious puns. Risking cliché, we side with the version of Karl Marx who wrote of a “ruthless critique of everything existing.” Or, borrowing loosely from Ambrose Bierce, we too wish to issue a writ of habeas corpus for all thought which has “been confined for the wrong reason[s].” 1. “America” (Simon and Garfunkel) America is not “here.” Not in Saginaw, Michigan. Not in Pittsburgh. Not on the New Jersey turnpike. Americans, conceptually, are “empty and aching”-as radically incomplete as the nation state. In the first line, “marry our fortunes” references the Declaration, and the moment or origins where the founders performatively “pledge … our Fortunes.” If American is not here - yet/ still - then only a critique of the problem of these same foundations will suffice. 2. “Anarchy in the U.K.” (Sex Pistols) Easily overlooked that the singer barks, like Melville’s Ahab, a version of “Who’s over me? ” Is it the MPLA, UDA, IRA, UK? Finally, singing downscale, toward a theoretical point which gathers the particularities: “or just another country”? The details are irrelevant. Whether already existing or sought, by reactionary or insurgent forces, it’s (merely, emptily) the stateform. A repeating, structured sovereignty. 3. “At Last I Am Free” (Chic) On one level, a tear-filled loss of vision at the end of romance. But undoubtedly also: freedom thought as the inability to visualize, predict, and determine the future. That is, freedom, if it is to be anything of consequence, cannot be conceptualizable, theorizable. It “remains” insecure and unfinished, which is its promise. 4. “The Battle Hymn of the Republic” (The Mike Curb Congregation) Joan Baez sang it, in promotion of federally-based civil rights, just as antebellum antislavery forces sang it. But Northern conservatives love it too, with its invocation of nation-state justice without mercy. Uneasily, historically perched between sound-alikes “John Brown’s Body” and “Solidarity Forever” - between a memorial to him who “died that the slave might be free” and “the union” that “makes us strong” - this hymn can only be comprehended, perhaps, in the light of a sentimentalist discourse which finds its limit in a South which refuses to “feel right” (as Stowe would have it), and which therefore must be ground underfoot like bloody grapes by a wrathful God. The normative heart puts a hit on its pathological doppelganger. The Devil’s Traxionary (Civil Liberties Cut) 311 5. “Beasts of No Nation” (Fela Anikulapo Kuti & Egypt 80) “What is united about the UN? ” Certainly not the “beasts of no nation,” who have been designated as nonhuman and inhuman (zoë) by the citizens of recognized nations (bios). But uniting they are, nonetheless, toward revolution. About which P.W. Botha says, on the album cover: “This uprising will bring out the beast in us.” Chilled, flatted groove elegantly and patiently awaits this revelation that those who hold the polis through sheer police power are mere predatory animals. At which point, perhaps, the bare life of the zoë might stand a chance of recasting the political from a perspective other than that of the national/ international citizen. 6. “Black Steel in the Hour of Chaos” (Public Enemy) “Lookin’ for the fence” that both encloses and profits off of stolen freedom(s). Cells/ ghettoes create revenge fantasies, but this is mutiny. Piano shards mark the state’s racial violence, and the “attitude” must be “exact” in anticipation of captors falling asleep at the wheel. The hour of chaos must not produce escape fantasies - which have been “thought before” - but, rather, a future without racial profiteering. 7. “Born in the USA” (Bruce Springsteen) “Nowhere to run” for beaten-down, second-class, working-class (presumably white) citizen. Prolonged, repeated musical emphasis on “born” signals irony, but necessarily advocates ius soli, or rights based on birthplace (rather than bloodline). Bordered populism in the American grain, and a far cry from a sociality of mere “being there.” 8. “Chorus of Exiled Palestinians” (Orchestra of the Opéra de Lyon/ The London Opera Chorus) John Adams begins The Death of Klinghoffer with this massive, swirling chorus, followed by the “Chorus of Exiled Jews.” Between centuries of Jewish diaspora, and the Palestinian diaspora, inaugurated by Israel in 1948 (when “Israel laid all to waste”), one implicitly is asked to confront, right from the beginning, the undecidable. Or, perhaps, to find a ground for reconciliation in the large fact of shared, non-repairable dispossession and loss. Deciding anything, from here on, can only take place with reference to this incalculable, embedded relation. 9. “Circus ’68 ’69” (Charlie Haden) Part of Haden’s Liberation Music Orchestra project, track attempts to recapture the (literal) fallout after the anti-war plank was defeated at the 1968 Democratic National Convention. “We Shall Overcome,” played in freetime, and circus music clash with “You’re a Grand Old Flag” and 312 S COTT M ICHAELSEN AND A NTHONY S ZE -F AI S HIU “Happy Days are Here Again.” The free time - the timing of the freedom to come - demands the temperance of the mass’ projection; the claim belongs as much in the amphitheater as it does in “The Battle of Michigan Avenue”: enemies of war still have enemies in this structure. Haden’s desire for “enlightenment,” as a result, lodges “creative thought” as the “dominant” force - bound by all its potential prohibitions. To borrow Ed Sanders’ desire to see the Bill of Rights written in “our own language” so as to avoid the dilemma of original intent: translation is the transition to dissipation. 10. “Countin’ the Blues” (Ma Rainey) Angela Y. Davis insists that this track is self-consciously African, in that counting equals magical conjuring (Nommo). Maybe - but it’s a stretch, bordering on a wish. More clearly: the gap between White Supremacy and colorblindness (when Memphis and Beale Street and everyplace else are “free”) can only be closed through acts of enumeration. 11. “Countless Backs of Sad Losers” (The Jesus Lizard) The lay of the land “lies like this”: the “dumb trusters” are in/ of deep shit. Avoiding scatological origins - as if this could be done, even by a “selfrespecting monkey” or feline - demands that one become a “lanced cyst.” On and within the political body, such a performance is tricky, requiring an interminable warring to stave off the recovery of said body (e.g. a final solution). It’s certainly better to not be curable and intermittent since the footprints on the posterior, exhaustive in their proliferation, may possibly avoid the “spring-loaded” solution of enforced (social) withdrawal. Knowing “places” in a prearranged landscape - apart from volitional posturing - is the first condition of a resistance without expulsion. 12. “Democracy” (Leonard Cohen) Recognition of autonomist principle that even the most unlikely are ready for (are producing, from below, in everyday life) an opening for democracy in the “USA.” Patriotism as perpetual adventism. 13. “Down Here on the Ground” (Wes Montgomery) Oft-panned track from Montgomery’s pop jazz period undercuts original’s romantic lyrical premise of “find[ing] some wings on my mind” in order to escape worldly oppression - think of Lou Rawls’ version. Obsessive octave strategy stresses the rooted-/ grounded-ness of both the ground and the “sky,” marking a freedom which we’re obliged to voice “here” despite being hemmed in by the architecture of dreaming. Marking all tones that can be sounded (covering the fretboard with every upper-register complement), The Devil’s Traxionary (Civil Liberties Cut) 313 track ends with four bars of the same creeping figure, inclined towards another sense of freedom’s timing and location. 14. “Drunken Fist and the Apocalypse” (Fred Ho) For “every ever after,” the “apocalypse” of “white bandit’s” procurement of gunpowder will regenerate itself. Shaolin style, then, finds its perfect articulation in the “Drunken Fist” fighting style: idiomatic improvisation (in Derek Bailey’s terms). And for revolution to be “made,” the “dead weight” of “honor” and loyalty must dissipate. Asian America, as such, must exceed its own “shadows” and documentation while carrying it along. The problem of the war idiom, however, cannot be surpassed through pedagogy or the call to rebuild what has been broken (by an unavowed strict racial rationality). In the end, cultural integrity. After the end: revolution without etiquette. 15. “El Paso” (Marty Robbins) Prosopopoeia, in the sense of the dead returning to speak. Loving the Mexican is literally fatal. And in loving the Mexican, one cannot avoid a certain fate. Loving the Mexican, then, involves encounter with different sorts of fatalisms, but this is the old geopolitical story (from William H. Prescott to Cormac McCarthy). It’s all about locating American freedom and progress, tacitly or explicitly, through designation of a bordering land of the lost. 16. “Fight the Power (Parts 1 and 2)” (The Isley Brothers) Power reformulated as relentless, infinite attack on injustice (especially against “smiles in the making”) because “there’s no guarantee” of “an-other” tangible world in freedom. Part 1’s clavinet spirals and rotating hi-hat hack at threshold before equality, but this is a decoy argument. Pulsing bass (and it’s two-note rise that must first drop, then come up for air) in Part 2 warns that future will not be mere happiness following oppressors’ “downfall” but a perpetual commitment to critique at each possible moment. 17. “Follow the Drinking Gourd” (Taj Mahal) Recent pedagogical efforts to recoup slave song stress the cleverness of the oppressed by attempting to rehabilitate agency - which must initially appear in servitude. But much like Drexciya’s Grava 4, Mahal’s version hides the utopian impulse by exposing it (in the map of the path and the shape of the river). The “river bed,” serving as the “mighty fine road,” confounds present-day redemption narrative strategy by stressing the “dead” growth(s) of servitude: only going through the problematic of subjection will “carry” us to “freedom.” Incessantly asking white supremacy, rearranging Bhabha, “Tell us why you are there.” 314 S COTT M ICHAELSEN AND A NTHONY S ZE -F AI S HIU 18. “Follow the Leader” (Erik B. and Rakim) How to plead when the “crowd’s the jury” (or when “those that oppose to be level or next to this” always enforce exclusion)? Never not guilty. The MC becomes the singular circle with “rhythm” wholly apart, beyond the “radius”; for now, he “remains the future,” but past the need for fury, our relations have too much rhythm or (homicidal) reason(ing). The social contract is unsalvageable. “Fearified” indeed. 19. “Freedom” (Jurassic 5) The self-enclosed track, that which sonically produces a “freedom” that can be grasped, preliminarily promises emancipation through oral culture. Eventually, a lambasting of those who want to “free Mumia Jamal” that end up “at the mall,” because their freedom is “incomplete and unsolved.” Capitalizing on the promise of the “whole” that comes with civil rights. A “civil” revolution. 20. “Freedom Suite” (Sonny Rollins) Perhaps Orrin Keepnew’s qualification of Rollin’s manifesto on original lp - which Frank Kofsky documents - is, in the end, true: the persecution and repression of Blacks - to the point where a group has “exemplified the humanities in his very existence” - demonstrates that this album is not about things like Little Rock or “the peculiar election laws of Georgia or Louisiana.” While suite’s first portion explores how one becomes related through emancipation (from tenor’s strict six bars of melody and two of improv to the more equal two/ two split for bass and drums), the second and third sections experiment with styles of utterance: call and response, unison, and blues preaching transitioning to hard bop rollick (with all possible duo combinations interspersed with the original three). Rollins’ Black example surely couldn’t bear witness to the particulars of the case when justice, in the form of comic suffering, becomes securable. Between instruments lies the unadorned transition, with everyone voicing anticipation. 21. “Free Will and Testament” (Robert Wyatt) Organ lamentation buoyed by plangent slide guitar. Life consists of being pushed “round a treadmill” by “demented forces.” Can such a field of force be evaded? “Disconnected” from oneself? (No, and no.) Or avoided by being’s dispersal? But now the trickiest part - the question of free will posed at the limit of being: “Is there freedom from will-to-be”? Worth asking, of course, because what would freedom consist of without being? “Who” might exercise it? Advocacy of suspension at the strange knot of being and nothingness: “neither born nor left to die.” The Devil’s Traxionary (Civil Liberties Cut) 315 22. “Funkentelechy” (Parliament) Funk’s not about freedom of speech since that enterprise is grounded on the possibility of future dividends (or “possible funkability” funded by “high finance”). Rather, funk is always fully realized and can “be scored everyday”; and it’s surely not “domestically produced” or given, but a given, free of charge. More succinctly, funk is a predisposition without a constitution and an affirmation of a possible being decoupled from sovereignty. This would be the freedom which can never be granted or purchased, and the dissolution of any (self)governance is premised on everyone “hav[ing] change for funk” or, more directly, untethering pleasure from self-care. 23. “Geronimo’s Cadillac” (Hoyt Axton) “Something’s wrong” with the police’s cars, while the governor’s runs just fine - away from the reservation, squarely placing the blame of dispossession on the executive and regulative/ enforcement branches of the law. This is out of step since plenary power (and treaty making/ breaking power in general) emerges from the strange relationship between the legislature and judiciary - conveniently, a relationship of mere assent. Singer’s yearning to take the more sympathetic path and ride with all the modern Geronimos out there mirrors Justice Frankfurter’s resignation in Galvan v. Press: white supremacy is bad, but the law’s foundation in racial domination is too deep and institutionalized to be overturned. The central figure of the warden, then, provides the ultimate inspiration: one must be “brave” to initiate redistributive justice. 24. “Guerillas in Tha Mist” (Da Lench Mob) Lacking the ability to concern themselves with the freedom to posit freedoms, city dwellers pay no mind to the “brand new apartheid.” The right(s) to do this is an empty space, marked by the nature show sample’s mention of social partitioning as “sport”; in a complementary fashion, mc’s “laying in a cut,” inhabiting the wound of a body of compelling interests. The understanding that must come: the “killa guerilla ain’t a killa” of anything, save the deployment of freedom enacted to maintain internal border patrols. 25. “Hey Joe Where Are You Going” (Surfaris) The first recording of “Hey Joe,” and perhaps the most undecided since Joe really can’t make the decision (to seek out his estranged lover, to murder her, or to escape the inevitable lynching). “I guess” riddles the track, and the only place to escape is to “where all those men are free” (and not the “Mexico” of later versions). Like the confused authorship/ copyright, no lineage, no endpoint, but only a question of who holds/ does the deed. 316 S COTT M ICHAELSEN AND A NTHONY S ZE -F AI S HIU 26. “A Horse With No Name” (America) The journey into the desert represents a politicized movement to get under the problem of naming and interpellation. The desert not a wasteland, but a place with teeming “life underground,” seeking out “heart” below the process of subjectification. Resistance which does not neglect the fundamental exclusion: the anthropological foundations of the “political.” 27. “I Am the Law” (The Human League) The near-divine implantation of the moral order through the figure of Law. This Law sings a doomy synth ballad to you and me, reminding us that “evil” is “within these walls” (our own bodies, perhaps) and that therefore the Law must remain ever vigilant. It’s mad love, after all, that Law feels for us (“I’m a fool for you”) when it structurally provides us with a Hobbesian ontology of man against our better judgment. The question is, which precedes which: evil or the Law? Was it Law that, in the first place, made us human, all too human? 28. “I Am Woman” (Helen Reddy) Charting nine months (and a few days) after the ERA was sent to the states for ratification, the track is pocked by the same temporal limit. Seven years, surely, won’t be enough to guarantee anything but defeat since the womanas-“embryo” depends upon “mak[ing] my brother understand” for its birth. Accounts are settled here, and the experience of “pain” produces “wisdom” (in abjection) and “hope” (based on the “gain[s]” accrued under patriarchy). The salvage: acknowledgment must travel with an end-game of gendered presence. The open-ended ratification process of the Twenty Seventh Amendment proves that (structural) gestation, while glacial, opens the door to further consideration, but this is still within the register of positionality. “Numbers,” certainly, can be ignored - a politics of faith and compassion. 29. “In My Own Time” (The Patterns) The first verse of this International Artists track (penned by the Bee Gees) remains the most interesting: the singer once received an “invitation” to come to the “United Nations,” but “that was when I was somebody.” Being somebody in the international community involves a temporal recognition/ leveling: one cannot participate so long as one remains “in my own time.” There are no singularities in the family of nations, and no figures not judged present (i.e., precisely co-temporal with the “modern” and the “civilized”; cf., Justice William Johnson’s concurrence in Cherokee Nation v. Georgia [1831]). The Devil’s Traxionary (Civil Liberties Cut) 317 30. “In Praise of Learning” (The New Singers) One of the very first American communist tracks with attractive Bertolt Brecht lyrics. The “power” to be seized through revolution can only be located it its massive dispersal (from the “dole” to the “prison” and “kitchen”). Reveling in exposing the forgery of capitalist/ totalitarian legitimacy - “Point with your finger to every item/ Say that you want it explained” - the call hits the snag of mistaking pluralist knowledge production as the guarantor of liberty (while it’s only the inauguration of monumental independence); this is the “bill” that must be “pick[ed] up”: in service to the organizing principle of interpersonal admonishment. 31. “In the House Blues” (Bessie Smith) On one level, her missing man means the blues are in the house. On another: even the expression of affect within the house (“feel like hollerin’ murder”) might lead to “police squad” invasion. Privacy and the fourth amendment have no meaning for second class citizens. Quite simply, there are no thresholds. 32. “Invisible Sun” (The Police) Unusually downtempo, with a descending melody line threatening to fall into the abyss. It mimics a lyric rich in negative theological implications: absent Sol means that all demands by the dominated are phrased like Bartleby might (“I don’t want … .”). Crucially, only a liquidation of man, made in God’s image, will suffice: “they’re only going to change this place/ By killing everybody in the human race.” 33. “I Started a Joke” (The Bee Gees) Singer radically out of step with the world, telling jokes that make everyone cry, producing the planets’s laughter through tears. This figure appears to be a massive inbecile or boor … or at least is categorized as one, and thereby serves as the excluded foundation of the planetary polis: “I finally died, which started the whole world living.” It must be insisted: all community, all culture, and all political life in general is founded upon the death of an other. 34. “Justice (Where are You)” (Juan de la Cruz Band) “In the midst of desperation” when justice finds a habit in martial law and terrorist bombings, it becomes clear that all kinds of “factions” tend to populate the “minds” of the Philippine masses. The work (of the Moros and New People’s Army, for example) of countering Marcos is misguided, not realizing that “giving up this life” - of a martial law which secures U.S capital inflows and of counterinsurgencies that speak in/ through a wreck(age) 318 S COTT M ICHAELSEN AND A NTHONY S ZE -F AI S HIU of resistance - necessarily means an initial period of “surprise.” This could take the form of a non-“scorn[ing]” counterinsurgency, much like Hammond pulses which decay in the audible spinning of the decaying Leslie cabinet sound: machinery sounding off by merely being powered up. Justice inhabits such a space of unfunctionality. 35. “Malcolm, Malcolm-Semper Malcolm” (Archie Shepp) Tunes give rise to technicalities, songs complicate things; perhaps this explains Charlie Parker’s aestheticized and distanced “whistle[s]” for white America? Malcolm resides eternally in “little” form, in 1945 and on the precipice of incarceration. The initial throbbing importance of bass’ chording eventually sputters into pizzicato flutters, ending in a combination which stresses the security (state) of the alpha and omega. The chirping mid-section, temporally, will continually be reiterated in other incarnations, proving that “other Malcolms” (Shepp’s words in the liner notes) will be generated in this mode - further evidence of the racial war (of maneuver mistaken by reformists for position). Once these replicating positionalities wear thin and the “semper” becomes ‘for now’ is when things get interesting. 36. “The Message” (Grandmaster Flash the Furious Five, featuring Melle Mel and Duke Bootee) OK, it’s a message. To whom? Five verses, with the first four focused on the dangers, for Whites, of the chickens coming home to roost: “Don’t push me ‘cause I’m close to the edge.” (Hear the minimalist bassline/ keyboard dread.) And a call to provide ghetto (“jungle”) children with what’s missing: apparently, it’s a “state of mind.” So the choice is between society’s production of bare life, which might well “hijack a plane,” or providing each and all with a sense of individuated territorial controls (sovereignty/ decisionism). To the Whites, in other words: share it or lose it. But, given the pathologies promoted here as evidence, is it still arguable, as C.L.R. James announced, that “every cook can govern”? Can a theory of mortal wounds and a proliferation of democratization be made coextensive? 37. “Military Cut (Scratch Mix)” (Grand Wizard Theodore) The crucial question here, as a salvo of early scratches bombs a lowdown, low-key groove: what sort of violence is scratching? Is it akin to a military (hair)cut, bringing the troops together into a single look/ community? Is it like the cut of the saber or bayonet? Or is it closer to a cut in/ to the military (budget/ mission)? The voice of military authority stutters the announcement that all is “ready on the right” flank: “ready on the ruhrrr-, ready on the ruhrrr-.....” Attacking the right of the right to produce what’s “right” through might; or, original violence against state violence. The Devil’s Traxionary (Civil Liberties Cut) 319 38. “Minus” (Robert Hood) Three pulses present, but only one “emerges,” properly. High timbre triad reproduces itself (with fundamental bass pattern), drops for one minute while hollow (heart)beat surfaces/ intrudes, and then returns in the midrange to consume the interloper. Emergence “irregular”: a baker’s dozen with arrhythmia. The consolidation of internal empire demands subtraction in order for everything to add up; in this case, the production of a veneer that smothers (the off-beat) insurrection. 39. “Mississippi Goddam” (Nina Simone) “Everybody knows about” U.S. White supremacy and apartheid. And “everybody knows” that gradualism (“go slow”) is code for “more tragedy.” Whiteness’ muteness, therefore, not a mistake, or a matter of education. Singer aspires to write a “show tune” concerning all this (with wit and oompah piano accompaniment), “but the show hasn’t been written for it yet.” There is no broad-way in a world where “I don’t belong here/ I don’t belong there.” Anachronism as rebuke to totality. 40. “My White Bicycle” (Tomorrow) Anarcho-inclined Provos in Amsterdam propose, in August 1964, to leave thousands of bicycles everywhere, in order to reconceptualize urban movement. “These White Bikes would belong to everyone and no one,” according to the plan. Brit psych-rockers’ tribute comprehends the limits of such free space thinking: while the theoretical rider is mobile, under cover of “darkness,” and conceptually autonomous (he literally doesn’t believe in the “police,” for example), the cops will always “find some charge” even though “it’s not thievin’.” Splintering feedback reigns as the confrontation occurs, and free space is registered as necessarily the site of battle. 41. “Negativ Nein” (Einstürzende Neubauten) Double negative: double refusal. In part a response to double impasse of the refugee’s political “asylum/ exile.” Voice accompanied by mic-stand rubber fasteners, turned to percussion instruments - haunting the voice with the thought of a different sort of ground, neither that of the traditional, sheltered citizen-to-come, nor the subordinated subject of banishment. 42. “No Love Without Hate” (Sunz of Man) Purportedly part of the soundtrack for the alleged Malvo sniper shootings, professing the 5% knowledge of holy black masculinity. With only the mind “free,” dualism of war/ peace favors the former in the mode of Black complacency/ suicide; put another way, survival becomes a “revolutionary war” unto itself. Seeking the “black nation” that can be “absorb[ed]”; sub- 320 S COTT M ICHAELSEN AND A NTHONY S ZE -F AI S HIU merging the necessity of taking arms in order to purify, but never exceed, the white supremacist state. To mind, much more has been taken in the name of purity. The ballot in this formulation, though, is the bullet. 43. “Old Age Pension Check” (Roy Acuff) The invention of social security “turned this country upside down.” All forms of needless striving dissolve: “drug stores will go bankrupt,” because people will feel well, and women will no longer need “cosmetics” to lure a husband. The attempt, today, to privatize the system is premised on our interest to “own” our own future; concerning this, Bush Redux says: “we’ve got to understand the power of compounding interest, the importance of savings, and the beauty of ownership in the American society” (3/ 1/ 02). But Acuff had hoped for a “second childhood” in which responsibility wasn’t premised on possession. Otherwise, we’re all just going back to work (on our leisure). 44. “O Superman (For Massenet)” (Laurie Anderson) There’s no fear or doubt concerning the speed or presence of global travel/ conquest, except at the outer border of the nation’s space; paying “as you go” to insure landed sovereignty secures this possible opening of intrusion. The “planes” will always come in this formulation, patrolling the skies. Enforceability: when “love,” “justice,” and “force” fail to serve, there’s always “mom” to lean back on, nurturing America’s home-boundedness. And to quote from Massenet’s Le Cid, the Superman/ Lord is “indistinct, yet always present”; the “hand that takes” will, post 9/ 11, make the “appointed rounds,” forcing the hand of every anticipated dissent. 45. “Penitentiary Philosophy” (Erykah Badu) Prisons are meant to break the “will” - or at least make it “weak” - but unlike “enemy combatant” Jose Padilla’s predicament, the gist of the just is for Black men and women to assume the “stool” of power to reinstate the fair-play of the “rules.” “Warrior princess,” a decidedly un-matriarchal figure who comes from the other “sun”/ son (one of undeniable compassion), suggests that once a “bridge” is built to yoke together the people, it should be destroyed. But what of the landlock? “Evil” must test the good, but this is a structural problem, and track could be thought imprisoned if not for the ghetto’s missing piss pot possibly serving as the sign of absenteeism: the golden shower may only be enjoyed if recalibrated for mutuality. 46. “People Say” (The Meters) Reduction for expansion in order to exceed majoritarian politics. Meaty eighth note jabs in main riff become stilettos by end; same time: gorging on The Devil’s Traxionary (Civil Liberties Cut) 321 privilege (“the food is getting high”) to be met by riot (“destruction is in the air”) because it institutes criminality (“they breaking in your home”). Eighth notes segregated (one/ two/ three and four). The “right to live” fully realized at moment this counting ceases to be accounted/ wished for; doubled instrumental break like a tidal wave that ends in a flattened note: deep decimation. 47. “Persepolis” (Iannis Xenakis) In the liner notes to the latter-day remixes of “Persepolis,” the choice between “authoritarianism” and “religion” (in Iran, for the Shah) must be made by “art.” There’s an original confusion in making this distinction: aspiring aristocratic sovereignty possesses its own fundamentalism - of population distributions and the horizontal “mass” which must go un(der)represented. Xenakis’ “active knowledge,” a futures market for the arrested development of (children’s) succession, attempts to lock in this state security, but timbres bleed onto one another and mark the most altruistic “common” knowledge as non-derivative. Granular synthesis and the precision of probability leak out; “hope,” trailing Levinas, “hopes for the present,” and the forgiveness which constitutes time’s movement provides “salvation” as such. 48. “El Picket Sign” (El Teatro Campesino) The farmworker strike in the fields becomes interminable, as growers die and “another became a grandmother.” The picket sign an ongoing attachment (“with me all my life”), and even replacement for persons. Permanent resistance as cardboard-thin, flat refusal of the intolerable, without resort to subjects. 49. “The Prisoner (Eight By Ten)” (Spring) “Earth’s illuminated centuries/ Can’t enlighten penitentiaries.” This is to state the obvious … that the Enlightenment and its promise of universality is haunted by its incompleteness, and here by the shadow that is the modern prison system (which here might well be modernity itself). In a liberal register, this recognition simply suggests that one must work harder at the question of inclusion. But Spring, perhaps, has something different in mind. The strangest musical feature here is the telegraphing mellotron keyboard, percussively breaking up and interrupting the typical, totalizing wash of the tape loop, and reinforcing the “Can’t” of the chorus. The Age of Reason fatally relies upon an exclusive measure. 50. “Run Nigger Run” (Gid Tanner and His Skillet Lickers) White sharecroppers are part of the “hornet’s nest” of white supremacy but only to protect the plenitude within the landlord’s domain. The knowledge 322 S COTT M ICHAELSEN AND A NTHONY S ZE -F AI S HIU of theft coappears with a “rope swingin’ ‘round” Blacks’ necks and the “black snake” - even this folk knowledge is vindictive. Two asides from the thief - representing the logics of racial recompense and intraethnic divisiveness - are also bound like the vicious fiddle atop the monotonous bedrock of the banjo ostinato; there can be no exit from this servitude through legal and folk knowledges. What gives (now)? Regimented, pointed thievery to clip the rampant ramblings of deed-ships. 51. “Society is a Hole” (Sonic Youth) Of course, political science begins by declaring its objects: preeminently, the State and Civil Society, with the latter understood as fundamentally non-State associations and movements, taken as a whole. Here, one of two options: philosophically, society is the absence that undergirds the State’s presence; and/ or, experientially, it’s a kind of torture chamber which “beats my friends’ big heads” (listen to the dull, drummed throb, without discernible movement/ melody). So: neither a free space (i.e., separate and distinct from the State [John W. Burgess: sovereignty is an “original, absolute, unlimited, universal power over the individual subject and over all associations of subjects”]), nor free. At this jointure, it may well be political science itself which needs critical excavation. 52. “Soldier Without Faith” (Yngwie J. Malmsteen’s Rising Force) A fib. “Soldiers” exist to protect vested interests, and the “without faith” is a reinvestment in kinship structures to counteract State’s warmongering. Singer claims, after the battle, that he doesn’t “want to be around,” but can’t give the location/ space that is antithetical to the “home” to which he is headed. Lamenting complicity while - as the backing rhythm line during guitar solo suggests - glorifying one of the fundamental tenets of nationlogic: brotherhood (over a corpse). 53. “Somebody’s Watching Me” (Rockwell) The expansion of panopticism comes with a double consequence: there seems to be no center to such endless gazing (it might be the I.R.S., the mailman, or even the neighbors who are behind it all), and, without a coherent locus for purposes of blame, a self-diagnosis of paranoia runs amok. The question is: can a simple restoration of the “right to privacy” resolve the matter? The short answer is, “No.” Epistemologically, “we” are not, at bottom, constituted privately. And, politically, privacy rights mandates a border patrolling that cannot be distinguished from paranoia. Justice demands reference to a deeper or prior state, in which privation means more than being cut off from others; rather, privation-as-absence, which endlessly exposes. The Devil’s Traxionary (Civil Liberties Cut) 323 54. “The Star-Spangled Banner” (José Feliciano) Phrased and bent blues-wise, as if he was singing “A Whiter Shade of Pale,” and met with open hostility and calls for Felicano’s “deportation” in 1968. The anthem always links the state of war to crystalization of (a bordered and an exclusive) nationhood premised on the gaze. As Ronald Reagan might say, it was mourning in America; but, at this moment, only José can (you) see. 55. “Summertime Blues” (Eddie Cochran) Regime of work unassailable. United Nations offers no assistance, refusing to recognize teenage summer-fun fan as a bearer of rights. Right to be lazy non-adjudicatable within liberal (labor-stressing) ontology. 56. “Togo Brava-Brava Togo Suite” (Duke Ellington) In perhaps the oddest articulation of the suite in his career (from The English Concert), Ellington departs from the logic of the “Far East Suite” by registering an impressionistic glimpse of “100 miles of beach … facing the equator.” While stressing the naturellement of American jungle drums and the stride of “amour, amour” (doubled in French no less), the postcolonial imaginary, from the metropole, demands amnesic tourism. Like Sylvanus Olympio’s desire to see no French Legion veterans in Togo’s state army in 1962, the decision of equality within the nation demands purity, akin to DuBois’ Dusk of Dawn “savage.” It ends up in the same logical location, however: behind, alongside, and before/ ahead of civilization. Freedom’s heterogeneous chastity, and the steady march of universal recognition. Togo “faced,” brava to the fullest extent, drunk (like General Eyadema) with the convenience of conferred power. 57. “The Traitor” (Herbie Hancock) The disloyal minimizes collaboration. Enmeshed within and stuck between ephemeral sides/ channels - bass’ pops and guitar’s funk comping - the keyboards join the groove in between solos, never sid(l)ing. Puttering synth in middle attenuates loyalties by dissolving until notes’ consistency recedes, broken up into discrete parts. The traitor, here, is solely concerned with timing, locking the groove and forestalling (chordal) progress; no receding, either: the confidence of now. 58. “Two Sevens Clash” (Culture) Evidently, the apocalypse can only be legislated (and does not partake of an enumerated schedule). Jamaican rioting on 7-7-77 (four sevens and double the destruction) detracts from the main way this world will end: the realization that only a “housing scheme” - of peoples, of sovereign nations, and of 324 S COTT M ICHAELSEN AND A NTHONY S ZE -F AI S HIU a more global system - holds the world at bay. And what will remain after it all is nothing really new. Garvey’s fulfilled prophesy of the Spanish Town prison closing is met with singer’s disbelief/ surprise, and only the admonition that “you better do right” applies in the revolutionary context: where can we locate ourselves without a prison (and an IMF loan due)? 59. “Wakare No Isochidori” (Club Nisei) Released the same year as the McCarran-Walter Act, the track’s initial vocal melody closely mirrors the “Battle Hymn of the Republic,” whose popular roots, as we note elsewhere, extend to “John Brown’s Body.” The right to citizenship could be the basis of a new abolitionism - the JACL position - save McCarran’s 1950 Internal Security Act which extracted illegal Chinese immigrants’ confessions in a trade-off: legal status for the names of family members (and potential Communists). Formulaic laborer’s wife’s lament shifts ground, claiming that the “final meeting” at the docks is a permanent farewell: sojourning is no longer an option; to love “in hope” results in love remaining within, landlocked. Hence the JACL’s bind: the securing of citizenship rights demands the swig of quiet assent (and amalgamation to prove it). 60. “The Yodeling Ranger” (Jimmie Rodgers) In one of his final recordings, the lonesome wanderer/ brakeman/ cowboy is transfigured into a member of the Texas Ranger “band” whose “heart is light.” And paramilitary terrorizing of Tejano and Native populations brings on the new form of yodel: “I sing when I am in danger, trust in my trigger hand.” For Rodgers, then, the shortcut answer to underclass and working class alienation is to get on board with of armed white supremacy. In effect, the State racially divides and conquers by managing and parcelling the Blues. “Never lonely long” no more, with so many folks to shoot at. Call for Papers The Literary Mind There is growing concern in the humanities that advances in the neurosciences constitute a threat to its traditional expertise in matters of the mind. For many literary scholars the neurosciences and literary studies operate at the opposite ends of the research spectrum and have radically incompatible pictures of how the mind works. Mark Turner and others have recently shown, however, that there is a lot to be learnt from each other, that the complexities of literature and the arts can tell us a great deal about how the brain processes information and conceptualizes the world and vice versa, that an advanced understanding of the complexities of brain processes can help us understand what literature and the arts do in and to the brain to make it mind. Contributions are invited from both sides of the ‘divide’ that discuss any aspect of the wide range of questions raised by this possible convergence of interests. Papers (MLA Style Sheet with end notes) addressing any of these aspects should be sent to Professor Juergen Schlaeger, Centre for British Studies, Humboldt-Universitaet, Jaegerstr. 10-11, D-10117 Berlin, Germany. Papers must be received by 1 October 2007.