“At the Bar of Public Opinion”:
Black Testimony and White Advocacy in Antebellum Literary Abolitionism
Jeannine Marie DeLombard, English Department, University of Toronto
(Draft. Please do not quote without permission from the author.)
Introduction
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VI. Be it further enacted, That no negro, mulatto, or indian, either a slave or free, shall hereafter
be admitted in any court of this colony, to be sworn as a witness, or give evidence in any
cause whatsoever, except upon the trial of a slave, for a capital offence […]
“An Act […] to disable certain Persons […] to be Witnesses,” May 1732,
William Waller Hening, The Statutes at Large; Being a Collection of all the Laws of Virginia (1820)
I remember the first time I ever witnessed this horrible exhibition. […] It was the first of a
long series of such outrages, of which I was doomed to be a witness and a participant.
Frederick Douglass, Narrative of the Life of Frederick Douglass,
An American Slave, Written by Himself (1845)
I want to add my testimony to that of abler pens to convince the people of the Free States
what Slavery really is.
Harriet Jacobs, Incidents in the Life of a Slave Girl (1861)
At a time when blacks were prohibited from testifying against whites in many American courtrooms,
what did it mean for former slaves to present themselves as “witness[es]” and their narratives as
“testimony” to “what Slavery really is”?
That is the question that gave rise to the present study.
From Cotton Mather’s 1721 pamphlet sermon for a “Miserable African, just Going To Be
Executed for a most Inhumane and Uncommon Murder” to the extensive press coverage of hearings
involving Anita Hill, Clarence Thomas, Rodney King, and O.J. Simpson in the 1990s, American print
culture has evinced — and encouraged — a fascination with extralegal narratives of race and justice.
For, whether telling the story of convicted wife-murderer Joseph Hanno (Mather’s “miserable
African”) or brutalized L.A. motorist King, these accounts speak to larger concerns about the
meaning of citizenship — and civic exclusion — in a constantly changing “America.” Extending
from the colonial era to the present, such concerns were particularly pressing in the three decades
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before the Civil War. And nowhere, perhaps, did the ideals of Jacksonian democracy clash so starkly
with the reality of slavery as in the era’s most infamous court case, Dred Scott v. Sandford (1857), in
which Supreme Court Chief Justice Roger B. Taney ruled that African Americans “had no rights
which the white man was bound to respect.”1 But even as Dred Scott marked the nadir of AfricanAmericans’ legal status prior to Emancipation, the antebellum period saw unprecedented authority
and credibility granted to the black voice outside the courtroom. Tracing “the quest for black authority
— for an authoritative literary persona and a distinctive black perspective” from 1680 to the Civil
War, Dickson Bruce finds that “the distinctive claim of African Americans to an authoritative voice”
is “most clearly conveyed in the narratives of fugitive slaves” that appeared in the late 1830s and early
1840s (xi, 238-39).
The particular fascination that the intersection of race, law, and print culture exerted in the
antebellum period arose from two complementary sets of circumstances. The era saw the
development of a widely circulated Penny Press that throve on the era’s sensational legal scandals,
such as the trials of Reverend Ephraim Avery in the highly suspicious death of New England mill girl
Sarah Cornell (Halttunen 72, 89, 229) and of clerk Richard P. Robinson for the arson-murder of New
York prostitute Helen Jewett (P. Cohen). At the same time, the emergence of a national anti-slavery
movement gave rise to an abolitionist print campaign which in turn devoted thousands of pages of
print to the seemingly endless legal crises involving slavery, from the 1831 trials of slave
insurrectionist Nat Turner and abolitionist editor William Lloyd Garrison to the 1859 treason trial of
John Brown. In a cultural climate where “Robinsonian Juntos” sported cloaks and hats in the style of
the Jewett murder suspect and crowds vied for a splintered “relic” of the murdered prostitute’s
charred footboard (P. Cohen 302-304), the similarly sensational legal crises involving slavery did not
go unnoticed. Quite the contrary: the defendants in the Amistad murder trials were featured in
phrenological profiles; the Anthony Burns fugitive slave case became the basis for a patent medicine
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advertising slogan; and the guestbook for Pennsylvania’s Moyamensing Prison recorded more than
five hundred visitors for abolitionist martyr Passmore Williamson.2
And just the murder of
“beautiful cigar girl” Mary Rogers inspired Edgar Allan Poe’s “The Mystery of Marie Roget” (184243), the legal crises of slavery generated fiction of their own, from Harriet Beecher Stowe’s Uncle Tom’s
Cabin (1852) and Dred (1856), to now-forgotten novels like F.C. Adams’ Manuel Pereira; or, The Sovereign
Rule of South Carolina. With Views of Southern Laws, Life, and Hospitality (1853) and William O’ Connor’s
Harrington (1860).
If, as one former editor feared, expanded press coverage of all manner of legal events made
antebellum print culture a “Typographical Tribunal” (Wilmer 237), significant changes in American
jurisprudence
provoked
extensive
extralegal
commentary.
In
particular,
the
growing
professionalization of the bar and bench, heightened controversy over the respective powers of judges
and juries, and an increasingly complex, adversarial trial structure overlaid popular scrutiny of the era’s
courtroom dramas with broader legal and political significance. Here again, abolitionists joined the
fray by linking these legal controversies to the debate over slavery. Thus, anti-slavery lawyer Lysander
Spooner’s Essay on the Trial by Jury (1852) mounted a flank attack on the Fugitive Slave Law, while
lawyer and literary abolitionist Richard Hildreth weighed in on a particularly infamous slave case by
publishing an American edition of Atrocious Judges: Lives of Judges Infamous as Tools of Tyrants and
Instruments of Oppression. Compiled from the Judicial Biographies of John Lord Campbell, Lord Chief Justice of
England — “With an Appendix Containing the Case of Passmore Williamson” (1856).
It is in such print and legal contexts that we need to understand the witnessing posture of
former slaves like Frederick Douglass and Harriet Jacobs. For the testimonial rhetoric of the slave
narrative was only one part of an elaborate juridical metaphor by which antebellum Americans —
especially, but not exclusively, abolitionists — structured the national debate over slavery. Imagining
that debate as occurring in a vast courtroom, those who deployed the trope figured slavery as a crime,
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slaveholders as perpetrators and defendants, abolitionists as advocates for the slave, and slaves as
victims and eyewitnesses. The primary purpose of this study will be to consider the implications of
this pervasive and remarkably resilient metaphor for antebellum cultural production, with particular
attention to literary abolitionism.
If the juridical metaphor’s rhetorical power derived from the real-life legal dramas and debates
that pervaded antebellum print culture, its convenience lay in its orderliness and legibility: most
Americans, regardless of education or background, would have been familiar with the basic elements
of the criminal trial (see D. Cohen 37). The order that the juridical metaphor imposed on the debate
over slavery was, however, a deeply equivocal one. For even as the trope appeared to offer a model
for interracial collaboration and the very black civic agency so persistently denied by American law, it
also threatened to circumscribe that agency by subordinating the public contributions of AfricanAmerican “witnesses” to that of their white “advocates.”
Depicting the slavery controversy as a vast, ongoing trial offered a way around many of the
challenges facing organized abolitionism. The national anti-slavery movement that began in the early
1830s centered on the Garrisonian goal of the immediatism. But as the movement’s early rejection of
the emigrationist and colonizationist agendas of previous anti-slavery efforts suggests, the abolitionist
project raised larger questions about the place of African Americans — slave and free — in American
society. It was impossible, as commentators since Thomas Jefferson had acknowledged, to address the
problem of slavery without simultaneously addressing the status of free people of color in the
American polity. Questions of race as well as slavery were at the forefront of many abolitionists’
minds largely because theirs was the first large-scale national reform movement in which blacks and
whites collaborated closely for political and social change. Such collaboration required a series of
complex, and often unspoken, negotiations of shared public space, from hotel rooms, dinner tables,
and steamship decks to lecture stages, newspaper columns, and book pages (Henkin 122-23). The
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racial division of this discursive space intensified in the late 1830s and early 1840s, with the increasing
public involvement of African-American agents on the anti-slavery lecture circuit and the emergence
of the slave narrative as popular genre of literary abolitionism. In a movement that devoted a
disproportionate amount of its resources to print, collaboration could easily become competition —
for readers and sales as well as for authority and recognition.
Because the juridical metaphor effectively assigned each of the participants a specific position
from which to enter the controversy, it appeared to reduce the need to negotiate the slavery debate’s
discursive spaces. At the same time, the figure provided an important model for black civic agency by
emphatically rejecting legal restrictions on African-American procedural rights. In practice, however,
by offering black and white abolitionists equally central — but nonetheless racially demarcated —
roles in the debate, the trope contributed to what Bruce has characterized as the “reinscription of race
within abolitionism,” a process in which white activists, even while “celebrating racial equality,
nevertheless reinforced ideas of racial difference” (215, 219). In particular, even as the prevalent
emphasis on the testimonial quality of former slaves’ contribution to the slavery debate provided a
platform for black political participation, it limited formerly enslaved African American abolitionists
to that comparatively confined, racialized discursive space. The juridical metaphor thus provided a
highly vexed means by which to structure interracial discursive relationships both within the antislavery movement and in the larger controversy.
In order to understand how both abolitionists and apologists for slavery simultaneously
adopted and contested the juridical metaphor in their literary contributions to that debate, it is
necessary to appreciate the specific meanings attached to the roles assigned to each within that trope.
Viewing each of these roles from the perspective of legal history, as well as from the vantage point of
specific legal crises over slavery, Chapter One examines what it meant for formerly enslaved black
“witnesses” and their Northern white “advocates” to meet “the perpetrators of slaveholding villainy”
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at the bar of public opinion (Douglass, Bondage 367). A legal-historical approach is crucial here
because, by the nineteenth century, both the structure of the criminal trial and the meanings of crime
and race had undergone profound transformation in American jurisprudence — changes that, in turn,
inflected the very juridical rhetoric that structured the print debate over slavery.
Taking early articulations of juridical rhetoric by fledgling anti-slavery editor William Lloyd
Garrison as its point of departure, Chapter Two examines how, through such rhetoric, the anti-slavery
movement exploited antebellum print culture’s sensationalist fascination with legal spectatorship even
as it sought to reanimate the moribund values of an earlier republican print culture. Appealing to the
adjudicative role of the reader and the supervisory role of the press, this juridical rhetoric resonated
with the broader concern that a tyrannous judiciary was usurping the authority of democratic juries.
Throughout the antebellum period, from the cluster of pamphlets published in response to Garrison’s
1830 libel trials to the flurry of publications that attended Boston’s fugitive slave crisis of the 1850s —
including, most notably, Henry David Thoreau’s “Slavery in Massachusetts” (1854) — abolitionists
urged the Northern reading public to consider the press as an alternative to the corrupt legal system
— as, in effect, an appellate court of public opinion.
By the 1840s testifying former slaves had become ubiquitous on the abolitionist lecture circuit
and in the anti-slavery press. Not surprisingly, it is the exemplary Narrative of the Life of Frederick
Douglass, an American Slave, Written by Himself (1845) that most fully develops the ex-slave’s selffashioning as witness. Juxtaposing Douglass’ depiction of an eye injury young Frederick receives from
a brutal beating with Ralph Waldo Emerson’s well-known figure of the “transparent eyeball,” Chapter
Three contrasts the embodied subjectivity of the African-American author with the universal
subjectivity available to the Transcendentalist poet. In both Garrisonian abolitionism and Emersonian
Transcendentalism, I suggest, metaphors of sight are central to the project of American authorship.
But, drawing on theories of vision and visuality to complicate a Foucauldian understanding of
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subjectivity, I suggest that whereas vision produces transcendence for the implicitly white, male,
bourgeois universal subject figured by Emerson’s “transparent eyeball,” for the formerly enslaved
African-American author cast as “eye-witness to the cruelty” of Southern slavery, vision only
reinforces his or her vexed corporeality in the Northern court of public opinion. Thus, in close
readings of a series of witnessing scenes in the Narrative, I demonstrate how Douglass draws on the
juridical metaphor only to reject his position in that metaphor on the final page of his text, when he
exchanges the metonym of authorship from eye to voice and thus begins to shed the role of witness
in order to claim that of advocate — a role that had traditionally been reserved for his white
colleagues in the anti-slavery movement.
That a white reformer like Harriet Beecher Stowe also felt ambivalent about the racial
hierarchy the juridical metaphor imposed on antebellum anti-slavery discourse is evident in her postUncle Tom’s Cabin literary abolitionism. Chapter Four highlights the increasingly legal emphasis of
Stowe’s anti-slavery writing in the 1850s to argue that Stowe’s critically neglected second anti-slavery
novel reflects its author’s profound ambivalence about both black speech and white claims to
represent that speech. With the character of Edward Clayton, a slaveholding lawyer whose only clients
are slaves, Dred conflates the roles of two of the central figures in the juridical metaphor, suggesting
that the paternalism of the Southern apologist for slavery is not far removed from that of the
sympathetic white advocate for the slave. Analyzing the novel’s portrayal of a series of interracial legal
partnerships, the chapter suggests that Dred reflects Stowe’s growing awareness that white advocacy
and black testimony often worked at cross-purposes, with the former frequently containing and
curtailing the latter. Such a reading is encouraged by Stowe’s decision to include slaveholding lawyer
Thomas R. Grey’s ventriloquized Confessions of Nat Turner (1831) into Dred’s appendix. Contrasting
Dred with Frederick Douglass’ “The Heroic Slave” (1853), the chapter contends that although the
novel registers the restriction of black discursive autonomy, it nevertheless reinscribes that restriction
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through its own unsatisfactory conclusion, in which white paternalism effectively suppresses AfricanAmerican speech and black political action.
A proslavery novel published in the same year as Dred illustrates both the pervasiveness of the
juridical metaphor and the extreme reluctance of Southern apologists to frame their own
contributions to the slavery controversy within its logic. With White Acre vs. Black Acre. A Case at Law
(1856), DeBow’s Review editor William McCreary Burwell parodies the trope by allegorizing the
sectional struggle over slavery as a court case between abolitionist White Acre and slaveholding Black
Acre. As Chapter Five suggests, by imagining the case before the court of public opinion as a civil as
opposed to a criminal suit, Burwell’s allegory reinforces sectional claims that slavery was primarily a
question of economics (specifically that of Southern property rights versus Northern greed) thus
rejecting Northern efforts to depict the South’s “peculiar institution” as a crime against God and man.
Indeed, leveling the counter-accusation of barratry, champerty, and maintenance, the novel suggests
that the case against slaveholders should be dismissed altogether, as an undue imposition on the
popular tribunal.
The debate over slavery ended not through a judicial decision, but with the bloodiest war in
American history. The book concludes, therefore, with a close reading of the representation of John
Brown’s invasion on Harper’s Ferry as it appeared in Frank Leslie’s Illustrated Newspaper over the winter
of 1859-60. Analyzing the newspaper’s portrayal of the quasi-military engagements of the attempted
insurrection and its exhaustive coverage of the trials of Brown and his co-conspirators, I conclude this
study by suggesting that, at the close of the antebellum period, the apparent failure of the American
legal system to dispense justice demonstrated the necessity to the Northern reading public of a
military, rather than legislative or judicial, response to the problem of slavery.
In the thirty years that separated William Lloyd Garrison’s libel trial from the treason trials of
the Harper’s Ferry insurgents, former slaves, white abolitionists, and apologists for slavery all
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registered profound disease with the juridical metaphor in their literary contributions to the debate
over slavery. Tellingly, however, in their writing Douglass, Stowe, and Burwell consistently sought to
revise the trope, destabilizing it rather than discarding it altogether. These revisions offer competing
visions of American citizenship by imagining different forms of civic inclusion — or exclusion — for
African Americans. For Burwell, as for legislators and judges both South and North, the impossibility
of black civic agency renders African-American citizenship inconceivable. And, despite her highly
self-conscious ambivalence, Stowe, too, seems incapable of imagining a civic identity for African
Americans that does not depend for its existence upon white paternalism. But it is precisely his
recognition of the urgent need for such black political autonomy that ultimately leads Douglass to
seek to exchange the role of anti-slavery witness for that of abolitionist advocate.
[The remainder of the Introduction reviews relevant scholarship in African-American Studies, American Studies, legal
history, and critical race theory. The introduction concludes by analyzing the iconography of the courthouse in
representations of slavery in antebellum newspapers, engravings, fiction, and courtroom testimony.]
Chapter 1
The Juridical Metaphor and Nineteenth-Century Jurisprudence
In nineteenth-century America, the legal meanings of the terms “witnessing” and “testimony” were
not their exclusive or even their primary referent. As early as the 1630s, Puritans had made oral
“evidences” or “testimony” — narrative accounts of individual religious experiences — a condition of
church membership in Massachusetts Bay Colony.
In the late eighteenth century, the nascent
abolitionist movement received a powerful impetus from the anti-slavery testimony of Quakers,
whose religious convictions led them to emancipate their slaves and encourage others to do the same.
During the Second Great Awakening, “witnesses” to the power of God in their lives “testified” about
their experiences to others attending revivalist camp meetings. And in the black vernacular that was
emerging as part of a distinct African-American culture, the verbs “witness” and “testify” combined
DeLombard 10
these religious associations with the special meaning of speaking to a shared experience of
oppression.3
When employed by antebellum abolitionists, these terms unquestionably retained their
collateral connotations. Thus, William Lloyd Garrison could allude to Hebrews 12: 1 to affirm in his
preface to Narrative of the Life of Frederick Douglass, An American Slave that “The testimony of Mr.
DOUGLASS […] is sustained by a cloud of witnesses, whose veracity is unimpeachable” (10).
Similarly, abolitionist references to the “crime” of slaveholding also carried religious and moral
associations. As much as this language was consistent with the broader moral suasionist agenda of the
antislavery movement in general, and Garrisonian abolitionism in particular, it nevertheless acquired
its rhetorical power within the logic of a fully elaborated juridical metaphor that structured the debate
over slavery by figuring slavery as a crime, slaveholders as perpetrators and defendants, slaves as
victims and eyewitnesses, abolitionists as advocates for the slave, and the American reading public as
a court of public opinion.
This book undertakes to examine how Northern white abolitionists, formerly enslaved African
Americans, and (to a lesser extent) Southern apologists drew on the juridical metaphor to frame their
contributions to the national debate over slavery in the three decades before the Civil War. Beyond
the scope of the study, however, is the juridical metaphor as it appeared in other political, social, and
print communities — among proslavery Southerners or free African Americans, for example. In part,
this limitation is inevitable in a project whose primary focus is a print debate that ostensibly addressed
a national audience even as it tended to construct the members of that audience as predominantly
white and Northern. Thus, although we gain a clear sense of how formerly enslaved abolitionists and
their white colleagues appropriated legal language not only to place the question of slavery before the
public but also to negotiate their discursive relationships with each other within the abolitionist
movement, our understanding of the roles played by free black abolitionists and Southern white
DeLombard 11
apologists is comparatively circumscribed. The treatment here of proslavery writers is limited by the
fact that they adopted the defensive posture assigned to them within the juridical metaphor only
grudgingly, as a means of gaining a hearing before the public tribunal. But the relative neglect of
African-American Northerners in these pages arises from that otherwise capacious trope’s seeming
inability to accommodate the figure of a free black abolitionist — one who had never been enslaved
and, therefore, could not represent himself or herself as either victim of or witness to the crime of
slavery. For, notwithstanding the occasional passing reference to Charles Remond or other free black
Northern abolitionists as “advocates,” such references are comparatively rare, rendering free black
abolitionists largely absent from juridical constructions of the slavery controversy.
The purpose of this chapter, then, is to examine each of the roles assigned to disputants in the
slavery controversy in the light of nineteenth-century jurisprudence, paying particular attention to the
rhetorical challenges of both black advocacy and the Southern defense of slavery. First, however, we
need to clarify how appeals to the juridical metaphor intersected with more familiar aspects of antislavery rhetoric grounded in Christian moral suasion and Enlightenment philosophy.
The Crime of Slaveholding
We might begin by asking what exactly abolitionists meant when they referred to slavery as a “crime.”
After all, the meaning of crime had undergone a profound transformation since the colonial period.
Puritan legal reformers, in keeping with their understanding of crime “in theological terms, as offenses
against the law of Scripture and its divine author,” reduced the number of property crimes considered
as capital offenses, replacing them with “such biblically condemned sins as adultery, blasphemy,
sodomy, and bestiality” (D. Cohen 102); at the turn of the eighteenth century, however, as part of a
“broad process of anglicization,” such “moral and religious offenses” were struck from the capital
code as “provincial legislators stiffened the punishments for crimes against property” (D. Cohen 105).
This Enlightenment trend toward considering crime in terms of property rather than morality
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continued with the rise of industrial capitalism in the nineteenth century; concurrently, “the
theological language of divine command and communal obligation was replaced by an essentially
secular rhetoric of public safety and common good” (D. Cohen 113).
In their use of the juridical metaphor, abolitionists drew on both the moral and the economic
understandings of crime.
Thus, in his preface to William Wells Brown’s Narrative (1847), J.C.
Hathaway insists that “slaveholders […] must be treated as ‘MEN-STEALERS — guilty of the
highest kind of theft, and sinners of the first rank”4; this Christian construction of slaveholding as sin
quickly gives way, however, to a more secular understanding of the crime of human bondage:
“Honest men must be made to look upon their crimes with the same abhorrence and loathing with
which they regard the less guilty robber and assassin,” Hathaway maintains, for only “[w]hen a just
estimate is placed upon the crime of slaveholding, the work will have been accomplished” (26). The
shift from a Christian to an Enlightenment understanding of the illegality of slavery is most evident in
the widely circulated abolitionist factbook compiled by Theodore Dwight Weld and Sarah and
Angelina Grimké, American Slavery as It Is: Testimony of a Thousand Witnesses (1839), which engages
notions of Lockeian possessive individualism to assert that slaveholders “not only rob [slaves] of all
they get, and as fast as they get it, but rob them of themselves, also; their very hands and feet, all their
muscles, and limbs, and senses, their bodies and minds, their time and liberty and earnings, their free
speech and rights of conscience, their right to acquire knowledge, and property, and reputation” (7-8);
such invasions of African Americans’ natural rights prompt Weld and the Grimkés to depict
slaveholders as “Plunderers” and “Robbers” who are “guilty” of “Filching all [slaves’] time,” and
“Stealing the use of their muscles” (8).5 By charging slaveholders and their supporters with being
both “man-stealers” and “robbers,” abolitionists thus drew on the Puritan understanding of crime as
an offense against morality and the early Republic’s reformulation of crime as an invasion of property.
Articulating both charges through a juridical metaphor premised on the legal criminality of slavery
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allowed abolitionists to appear to ground otherwise idealistic appeals to Christian and Republican
virtue in the more practical requirements of American justice.
From a legal standpoint, it is significant that antebellum deployments of the juridical metaphor
consistently imagined the case before the court of public opinion as a criminal rather than a civil
proceeding, for the most obvious jurisprudential model would appear to be the civil suit for freedom.
In the freedom suit a “ward” claiming to be wrongfully enslaved procured a “guardian” to challenge
the slaveholding defendant’s claim to a property right in him or her, with the object of obtaining
emancipation, as well as any possible damages. In both its designation of the roles played by the
participants and its potential outcome, the suit for freedom seemingly provided the specific legal
referent for rhetorical constructions of the debate over slavery as a trial: sympathetic whites
intervened against iniquitous slaveholders on behalf of silent blacks to prove the injustice of their
enslavement and to accomplish their emancipation. The problem with the freedom suit as a model
was not its paternalism; as we shall see, paternalism was a crucial component of white abolitionists’
self-fashioning as advocates for the slave. Part of the freedom suit’s inapplicability was certainly its
routine exclusion of blacks as witnesses (a point frequently emphasized by abolitionist
commentators6); in the decades before the Civil War, of course, the narrative “testimony” of former
slaves like Frederick Douglass, William Wells Brown, Henry Bibb, J. C. Pennington, and William and
Ellen Craft would be crucial to the case presented by abolitionists to the court of public opinion.
But the real source of the freedom suit’s inadequacy as a model lay in its status as a civil
proceeding. An 1847 American edition of a British law dictionary drew on Blackstone’s Commentaries
to explain that, “The distinction between a crime and a civil injury is, that the former is a breach and
violation of the public rights and duties due to the whole community, considered as such, in its social
aggregate capacity; whereas the latter is merely an infringement or privation of the civil rights which
belong to individuals considered merely in their individual capacity” (Holthouse 139-40). Similarly
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James Wilson, the early republic’s preeminent legal theorist, notes that “in the social contract, the
party injured transfers to the publick his right of punishment and […] by the publick, the party
injuring agrees to be judged,” concluding, “In criminal prosecutions, the state or society is always a
party” and “From the necessity of the case, it is also always a judge” (528). By contrast, he explained,
in a civil case “the judicial balance […] hangs in perfect equipoise between” the two sides (529).
Figured as a criminal injury rather than a civil one, involuntary servitude involved more than a dispute
over the right of individual slaveholders to hold human property versus the right of individual blacks
to property in themselves; it was an offense against the entire society, and thus one that required
adjudication by that society.
As a model for the debate over slavery, the criminal trial was by no means a stable referent in
the early to mid nineteenth century; indeed, some of the juridical metaphor’s rhetorical power may
have derived from public awareness of — and consternation about — dramatic changes in the
structure of the American criminal trial from the colonial to the antebellum periods. Under
seventeenth- and early eighteenth-century English law, criminal trials tended to be speedy affairs in
which the defendant, and often the plaintiff, represented himself or herself before the judge and jury,
who frequently worked together to reach a decision. The virtual absence of counsel also meant the
corresponding “absence of opening and closing statements, examination and cross-examination, and
evidentiary and procedural motions,” with a dominant judge conducting much of the questioning
from the bench and occasional interruptions by experienced jury members (Langbein 282).7 Largely as
a result of the professionalization of the bar in the mid to late eighteenth century, however, Americans
saw the emergence of “ ‘complex’ criminal trials which were marked by closer cross-examinations,
increasingly well-defined extra-statutory rules of evidence, multiple counsel, large numbers of
witnesses, extended addresses to the jury, and a more thoroughly adversarial spirit than in ‘traditional’
trials,” which were more of “a collaborative enterprise” (Rice 459, 466). As they grew longer in duration
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and more complex in format, American criminal trials also became increasingly contingent, largely as a
result of the elimination of highly technical common law pleading. Dispensing with such pleading
reduced the obscurantism and expense of litigation, but now “preparation for trial became much
more difficult and hazardous,” because “a litigant under the new pleading system had to prepare to
meet many potential issues, only some of which would arise. Moreover, he faced the danger that
issues he had never anticipated might be brought up” (Nelson 86).
The capaciousness of the new “complex” trial accorded well with the protracted debate over
slavery, with its arguments and counter-arguments, testimonial and documentary proofs, numerous
participants, and persistent appeals to an adjudicative reading public. And, although daunting for
actual litigants, the variability and uncertainty that had been introduced into criminal trials in the early
republic correlated easily with the unpredictable and fluid nature of the free-floating public debate
over slavery, in which multiple participants simultaneously addressed a wide range of issues through a
variety of arguments drawn from a seemingly endless accumulation of evidence. Indeed, this
cumulative tendency is one of the most striking characteristics of the abolitionist print campaign. For
instance, the exhaustive American Slavery as It Is, compiled from thousands of newspaper clippings —
felicitously characterized by Marcus Wood as “an ever-rolling, self-generating flood of evidence” (83)
— was presented as the beginning, rather than the culmination, of a massive documentary project. A
prefatory “Note” from the Executive Committee of the American Anti-Slavery Society “invite[s] all
who have had personal knowledge of the condition of slaves in any of the states of this Union, to
forward their testimony,” urging, “Let no one withhold his testimony because others have already
testified to similar facts,” and explaining that “The value of testimony is by no means to be measured
by the novelty of the horrors which it describes. Corroborative testimony — facts, similar to those
established by the testimony of others, — is highly valuable” (4). A similar urge to contribute “Any
facts” to the case against slavery inspired Douglass to reproduce, revise, and expand his 1845 Narrative
DeLombard 16
in 1855 as My Bondage and My Freedom; moved Stowe to supplement Uncle Tom’s Cabin with her
nonfiction Key, “Presenting the Original Facts and Documents upon which the Story is Founded […]
Together with Corroborative Statements Verifying the Truth of the Work”; and prompted Solomon
Northup to present his narrative as “Affording Another Key to Uncle Tom’s Cabin” (xxvii). In a
period when “Newly discovered evidence became […] ‘the most common cause for granting new
trials’” (Nelson 87), the commodious juridical metaphor was the ideal trope for the slavery
controversy as it continually unfolded in the decades before the Civil War.
Abolitionists’ incessant accumulation of anti-slavery “evidence” was entirely consistent with
their commitment to moral suasion as a political tactic. The juridical metaphor was, by definition,
profoundly rhetorical: in his Rationale of Judicial Evidence (1827), Jeremy Bentham defines “evidence” as
“any matter of fact, the effect, tendency, or design of which, when presented to the mind, is to
produce a persuasion concerning the existence of some other matter of fact” (18). Ironically, however,
the juridical metaphor’s very aptness as a figure for adversarial process impeded its usefulness as a
model for dispute resolution. Abolitionists used legal language primarily as an effective rhetorical
strategy for consolidating public opinion against slaveholders; thus, their deployments of the juridical
metaphor tend to center on “charges” against or “indictments” of slaveholders, with the ultimate goal
of a unanimous guilty verdict in the court of public opinion. Seldom, however, do they specify the
sentence appropriate to such a verdict. As we shall see in the following chapter, William Lloyd
Garrison’s rhetoric regarding the implications of a guilty verdict is inconsistent: in his first anti-slavery
speech he seeks only “to obtain the liberation” of slaves (“Dangers”), whereas in an early editorial he
calls for those complicit in the crime of slavery to “be SENTENCED TO SOLITARY
CONFINEMENT FOR LIFE” (“Garrison’s Second Trial”). Garrison’s call for incarceration was
anomalous, however; on those occasions when abolitionists projected punishment for slaveholders
and their accomplices they tended to do so in religious rather than legal terms. Moral suasionist
DeLombard 17
references to the Day of Judgment and jeremiads prophesying divine vengeance for the national sin of
slavery were staples of antislavery rhetoric. But, like the Puritan sermons from which they were
derived, such appeals sought to reinforce — not supplant — earthly justice by invoking the divine
tribunal (D. Cohen 101). Crucially, the judgment pursued by those who deployed the juridical
metaphor was a profoundly secular one; it was not to God that they directed their arguments and
evidence (after all, divine judgment was both omniscient and inevitable), but to the American reading
public whose censure they sought.
Of course, the central premise of the juridical metaphor stood in direct contradiction to legal
reality.
Although antislavery activists persistently mounted both philosophical and religious
arguments to demonstrate the illegality of slavery on the basis of both natural law and biblical
injunction, slavery was not a crime in the antebellum United States — at least, not in the states and
territories where it received legal sanction. And although such republican and Christian discourses
could easily be subsumed under the juridical metaphor, the trope insistently figured slavery as a crime
in legal rather than moral or philosophical terms. To conceive of slavery in this way meant not only
willfully to ignore or reject the actual legal status of the South’s peculiar institution, but also radically
to reconceptualize the relationship between race and the law in American culture.
Even as tropological appeals to the “court of public opinion” offered a corrective to American
legal practice — most notably by endowing formerly enslaved African Americans with a kind of
extralegal subjectivity through the authorization of their anti-slavery “testimony” — such appeals
simultaneously constrained the rhetorical posture available to the participants in the slavery
controversy, precisely due to that posture’s indebtedness to the original legal referent, revised though
it may have been. For, by figuring antebellum print culture as an alternative to the court of law,
invocations of the juridical metaphor tended to define (and delimit) access to the former in terms of
the latter.
In its very extralegality, then, the juridical metaphor followed a Derridean logic of
DeLombard 18
supplementarity. According to this logic, that which occurs “outside” the law or the courtroom —
testimony, justice, etc. — nevertheless remains attached to the legal sphere, and thus not only seeks to
supply or replace what is missing, but by so doing calls attention to both the deficiency and the
inescapability of the law or the court.8 For example, if, like antebellum readers, we conceive of the
slave narrative as a kind of extrajudicial, written form of the testimony potentially spoken by
proscribed black witnesses, we implicitly think of it as being “Compensatory […] and vicarious,” “an
adjunct, a subaltern instance which takes-(the)-place” of inadmissible courtroom testimony. “As
substitute,” however, this extrajudicial testimony “produces no relief”; instead, “its place is assigned in
the structure by the mark of an emptiness” (145). Within this logic of supplementarity, then, appeals
to an alternative court of public opinion in antebellum print culture may authorize even as they
criticize the American legal system: “desired and feared,” the “supplement transgresses and at the
same time respects the interdict” (155). Excavating the legal origins and the print manifestations of
each of the roles envisioned by the juridical metaphor — slave witness, abolitionist advocate,
slaveholding defendant — reveals how figurative constructions of the slavery debate in extralegal
terms provided a means for structuring that unruly print controversy. But doing so also exposes the
very Derridean supplementarity such extralegality entailed: even as invocations of the juridical
metaphor sought to reconceptualize the relationship of race and American law, those appeals also
respected the law’s many racial interdictions by importing them into antebellum print culture.
The remainder of this chapter considers in turn each of the roles assigned to disputants in the
debate over slavery. We begin by examining how the authority of so-called black “witnesses” in
antebellum print culture was complicated by the legal fiction of slaves’ “double character” (as property
under civil law and culpable agents under criminal law), a complication that was further compounded
by the longstanding association of blackness and criminality in early American gallows literature. 9
Indeed, it was the virtual inconceivability of African-American civic agency that rendered black
DeLombard 19
advocacy effectively an oxymoron in both antebellum law and print contexts, as a brief review of the
careers of early black lawyers John Mercer Langston and Robert Morris suggests. If advocacy rested
on notions of civic agency, it also entailed what Holocaust scholar James Young has termed
“exegetical authority” (akin to Foucault’s “hermeneutic function”), the racialized implications of
which are famously delineated in Douglass’ account of white advocacy as Garrisonian paternalism in
My Bondage and My Freedom. Sectional as well as racial assumptions undergirded the role of white
advocate, as readings of proslavery polemics by Robert Hayne and George Fitzhugh indicate.
Recognizing the imperative to frame their own contributions to the slavery debate in the legally
inflected language of their Northern opponents, Hayne and Fitzhugh nevertheless persistently seek to
replace the figure of the trial with that of the duel (and other tropes drawn from the Old South’s
culture of honor). Such attempted rhetorical substitutions reveal not only Southern discomfort with
the posture of defendant, but also a sectional rejection of litigation (as opposed to the honor code) as
a model for dispute resolution.
Black Testimony
Nowhere was the reconceptualization of race and the law entailed by the juridical metaphor more
evident than in the rhetorical construction of the formerly enslaved African American as an “eyewitness to the cruelty” of slavery. Legal theorist Cheryl I. Harris has shown how over the course of
three centuries, Europe’s religious and philosophical constructions of black inferiority had combined
with the theory of possessive individualism to coalesce in the laws of British North America as a
property right in whiteness. Not only did this right exert itself on enslaved blacks as the objects of
property (either chattel personal or realty), but it also “granted” to “the possessors of whiteness” “the
legal right to exclude others from the privileges inhering in whiteness” (Harris 1736).10 The most
crucial of these privileges, as abolitionist commentators on slave law never tired of reminding their
readers, was that of participating in the very legal process by which this right was defined and
DeLombard 20
enforced. Understood as objects of property, slaves were denied “legal personality” in the legislatures
and courts of the United States (Goodell 36). In practical terms, this meant that not only were the
“natural” rights of blacks — freedom of movement, association, etc. — nullified by their property
status, but their ability to claim these rights in a court of law was blocked by the exclusive nature of
whiteness as the property that provided access to such a privilege: specifically, slaves (and often free
blacks) could not bring suit or testify against whites in all Southern and some Northern states. The
exclusion of enslaved witnesses, abolitionists agreed, was “the cause of the greatest evils of slavery”
(Stroud 65). As Stowe put it, “the very keystone of Southern jurisprudence is the rejection of colored
testimony” (Key 88).
The impossibility of consistently treating human beings as objects of property, however, led to
the development of a legal fiction which simultaneously credited enslaved African Americans with
criminal agency and asserted their incapacity for civic agency. Thus, although a slave could not be a
plaintiff, a witness, or a juror in cases involving whites, he or she could be tried on criminal charges
and participate in such proceedings against other non-whites.11 As the Court succinctly put it in an
1861 Alabama case, Creswell’s Executors vs. Walker, “Because they are rational human beings, they are
capable of committing crimes; and, in reference to acts which are crimes, are regarded as persons.
Because they are slaves, they are incapable of performing civil acts; and, in reference to all such, they
are things, not persons” (37 Ala. 229, January 1861; see Catterall 3: 247).12 The decision’s careful
parallel structure clearly conveys the double standard at the core of American slave law: slaves were
constructed as having criminal, but not civil, agency.
In one of the period’s most thorough evocations of the juridical metaphor, Frederick
Douglass suggests how enslaved African Americans’ presumed “double character” simultaneously
required and constrained their participation in the slavery controversy. Explaining in the Preface to
DeLombard 21
My Bondage and My Freedom his decision to write and publish a second account of his life a decade after
the appearance of the 1845 Narrative, Douglass avers:
It is not to illustrate any heroic achievements of a man, but to vindicate a just and
beneficent principle, in its application to the whole human family, by letting in the
light of truth upon a system, esteemed by some as a blessing, and by others as a curse
and a crime. […] this system is now at the bar of public opinion — not only of this
country, but of the whole civilized world — for judgment. Its friends have made for it
the usual plea — “not guilty;” the case must, therefore, proceed. Any facts, either
from slaves, slave-holders, or by-standers, calculated to enlighten the public mind, by
revealing the true nature, character, and tendency of the slave system, are in order, and
can scarcely be innocently withheld.
I see, too, that there are special reasons why I should write my own biography,
in preference to employing another to do it. Not only is slavery on trial, but
unfortunately, the enslaved people are also on trial. It is alleged, that they are,
naturally, inferior; that they are so low in the scale of humanity, and so utterly stupid,
that they are unconscious of their wrongs, and do not apprehend their rights. (106)
Initially characterizing the debate over slavery in religious terms, as a dispute over whether the slave
“system” is “a blessing” or “a curse and a crime,” Douglass shifts registers in the remainder of the
passage, extending the specifically legal connotations of “crime” through his use of jurisprudential
terms such as “bar,” “plea,” “case,” and “trial.” At the precise moment that he adopts this rhetoric,
however, Douglass — an astute observer of the discursive politics of antebellum print culture — calls
attention to one of the central dilemmas posed by abolitionist invocations of the juridical metaphor:
even as the trope permitted “the case” involving slavery to “proceed” in an orderly fashion, that
“case” was constantly in danger of being compromised by another, concurrent “trial,” that of “the
enslaved people.” Perceptively linking the imputed criminality of enslaved African Americans to their
presumptive inferiority, Douglass posits the act of writing as a means of asserting black civic agency.
Three years later, proslavery legal theorist Thomas R. R. Cobb (who articulated the slave’s “double
character” as “person and property” [83]) would lend support to Douglass’ observation by employing
the same juridical rhetoric to assert black cultural and intellectual inferiority: adverting to claims that
ancient Ethiopia offers “an example of negro civilization,” Cobb placidly concedes that, “When
DeLombard 22
discovered, and its monuments, and people, and works of art, and records of history, are brought
before the world, we will be called on to examine the witness, and determine his competency and
credibility” (42-43). As Douglass understood, persistent allegations of black inferiority called into
question African Americans’ “competency and credibility” before “the bar of public opinion.” The
challenge for Douglass and his abolitionist colleagues, then, was not only to prove black intellectual,
physiological, and civic equality through the authorship and publication of a distinctively black
literature,13 but, crucially, to vindicate the enslaved people at the popular tribunal. To do so would
require, as Douglass appreciated, a radical transformation of black personal narrative and its author in
the eyes of the American reading public — a transformation that broke with long established
conventions for black speech in both American law and print culture.
One of the earliest references to a black person in colonial jurisprudence is the General Court
of Virginia’s ruling in 1624 that “John Philip A negro, … was qualified as a free man and a Christian
to give testimony, because he had been ‘Christened in England 12 years since’” (quoted in
Higginbotham 21). But the ruling is notable primarily for the precedent that it failed to set. As the
court’s language suggests, under seventeenth-century Anglo-American law, it was blacks’ presumed
status as slaves and non-Christians that rendered their testimony inadmissible in most colonial
courtrooms.14 If the “theory behind the oath in the seventeenth century was that it was a way to bring
forth immediate divine vengeance on false swearing […] By the nineteenth century, when such
doctrines were less secure, the oath had become a way to remind the oath taker of a future
punishment for false swearing” (Morris 230; see also Nelson 26-27). The inadmissibility of slave
testimony arises, in part, from colonial courts’ reservations as to whether, as non-Christians, Africans
and their descendents were capable of appreciating the unique significance of the oath in JudeoChristian culture. Of course, the emergence in the eighteenth and nineteenth centuries of AfricanAmerican culture with its distinct Christian practices called this logic into question. But the religious
DeLombard 23
rationale against the competency of black witnesses was complemented by a socio-politcal one that
rested on their status as slaves: their complete subjugation to their masters deprived them of free will,
thus undermining the authority and integrity of their testimony (Morris 236-37). Even as, like John
Philip, increasing numbers of slaves became Christians, unlike him, they were not “qualified […] as
free” people “to give testimony.”
The preamble to the 1732 Virginia statute “to disable certain Persons […] to be Witnesses,”
reveals, however, that ideology played as important a role as religion or status in rendering the
testimony of all non-whites suspect. The statute was prompted by the inconsistent practices of the
Virginia courts: the legislators noted that “negros, mulattos, and Indians, have lately been frequently
allowed to give testimony as lawful witnesses in the general court, and other courts of this colony,
when they have professed themselves to be christians, and been able to give some account of the
principles of the christian religion,” but that, at other times, “forasmuch as they are people of such
base and corrupt natures, that the credit of their testimony cannot be certainly depended upon […]
some juries have altogether rejected their evidence” (Hening 326-27). In order to prevent “the
mischiefs that may possibly happen by admitting such precarious evidence,” the legislature passed the
law, quoted in the Introduction, “That no negro, mulatto, or indian, either a slave or free, shall
hereafter be admitted in any court of this colony, to be sworn as a witness, or give evidence in any
cause whatsoever,” with the exception of capital trials of slaves, “in which case they shall be allowed
to give evidence in the manner directed” by an earlier 1723 statute (Hening 327).15
The designated “manner” in which such evidence was to be admitted powerfully suggests the
danger testimony entailed for black witnesses from the very beginnings of American jurisprudence.
Unlike white witnesses who risked fines and imprisonment for perjury, non-whites were charged:
“You are brought hither as a witness; and […] you must tell the truth, the whole truth, and nothing
but the truth; and that if it be found hereafter, that you tell a lie, and give false testimony in this
DeLombard 24
matter, you must, for so doing, have both your ears nailed to the pillory, and cut off, and receive
thirty-nine lashes on your bare back, well laid on, at the common whipping post” (Hening 128). By
restricting black procedural rights to confession16 and testimony against other non-whites under
penalty of severe bodily harm for false testimony, such laws made clear that the racial exclusion of
non-white witnesses resulted not simply from their unfree status or their position as cultural outsiders.
It was their intrinsic racial inferiority, their “base and corrupt natures” that made their evidence so
“precarious” and thus excluded them from the legal order. Noting that the “disqualification” of slave
testimony “has been the prolific theme for much complaint and abuse of the system,” proslavery legal
theorist Cobb insisted that such exclusionary rules “are founded not only upon the servile condition
of the negro, but also his known disposition to disregard the truth” (226) — adding, conveniently,
“That the negro, as a general rule is mendacious, is a fact too well established to require the
production of proof, either from history, travels, or craniology” (233).17
Rendering slave testimony against whites inadmissible, such imputations of “negro” mendacity
effectively circumscribed non-confessional black courtroom speech in many jurisdictions. Throughout
the eighteenth and early nineteenth centuries, this legally mandated confessional posture was
reinforced outside the courthouse by a print culture in which non-whites were disproportionately
represented in the increasingly sensational published sermons and confessions that attended public
executions of condemned criminals (see Slotkin, Masur, D. Cohen, and Williams). In the colonial and
early national eras, the public ritual of execution and its accompanying gallows literature sought to
reinstate a social order that had been disrupted by crimes like murder, rape, and theft by emphasizing
the importance of the prevailing racial, gender, class, and generational hierarchies. Thus Johnson
Green, the illegitimate son of “a negro” and “an Irish woman,” who was executed in 1786, left “to the
world the … History of my Birth, Education, and vicious Practices, hoping that all people will take
warning by my evil example and shun vice and follow virtue” (134) . As the narratives of Olaudah
DeLombard 25
Equiano, John Marrant, and Briton Hammon document, the eighteenth-century precursors to the
antebellum slave narrative included the adventure narratives of black picaros and the spiritual
autobiographies of black converts. But, dating back to Cotton Mather’s Tremenda… A Sermon Delivered
unto a Great Assembly in which Was Present, a Miserable African, just Going To Be Executed for a most Inhumane
and Uncommon Murder (1721), pamphlet and broadside accounts of the lives of black criminals were
arguably the primary print means through which individual black subjects were introduced to a larger
American reading public.
Read in the context of this print history, Douglass’ lament that “the enslaved people are also
on trial” acquires added significance: in addition to the “alleged” inferiority of blacks, more than a
century of popular gallows literature exposed the American reading public to not just the trials, but
the convictions, confessions, and executions of numerous guilty blacks — many of whom had been
“enslaved people.” In this print context, as Douglass understood, abolitionists who sought to cast the
debate over slavery as a criminal trial faced a daunting challenge: to transform the role of African
Americans in American print culture from abject confessing criminals to outraged testifying witnesses.
After all, the credibility of the confessions of condemned African-American criminals resided not only
in the widespread belief in the truth-provoking nature of the gallows (see Wilmer 241-43), but also in
the racialized presumption of guilt. To accept the veracity of such narratives, then, was merely to
affirm black criminality.
Crediting African-American “testimony” regarding others’ offenses,
however, entailed detaching criminality from race in order to assign guilt to elite Southern whites.
Both in and out of the courtroom, as the proslavery Cobb understood, “[t]he giving credit to negro
testimony […] would be productive of innumerable evils in the relation between master and slave”
(233) — indeed, abolitionists hoped it would end that relation altogether.
In order to be credited, however, African-American testimony first had to be heard. In other
words, the credibility of black testimony had to be separated from its inadmissibility. In his lecture on
DeLombard 26
“The Nature and Philosophy of Evidence,” early national legal theorist James Wilson does not
address the inadmissibility of slave testimony in detail. The lecture is nevertheless helpful in that it
rejects the common misperception that the admissibility of testimony pertains to its credibility. For
Wilson, testimony is the basis of all intellectual inquiry: “The greatest and most important part of our
knowledge, we receive by the information of others” (384). Accordingly, “Belief in testimony springs
not from the precepts of the law, but from the propensity of our nature” (383). Indeed, it is precisely
the very human tendency to believe testimony that potentially poses an impediment to the
administration of justice:
Experience has found it necessary and useful, that, at least in legal proceedings,
the indulgence of this natural and original propensity should be regulated and
restrained. […] the law has said, that, unless a witness appears […] to be honest and
upright, credible and disinterested; and unless he delivers his testimony under all the
solemnities and obligations of religion, and all the dangers and penalties of perjury;
you shall not — It does not say, you shall not believe him. To prevent this act or
operation of the mind might be impracticable on hearing the witness: but it says —
you shall not hear him. Accordingly, every gentleman, in the least conversant about
law proceedings, knows very well, that [such] qualifications and solemnities […] are
requisite to the competency, not to the credibility, of the witness — to the admission,
not to the operation of his testimony. […]
The propensity to believe testimony is a natural propensity. It is unnecessary
to encourage it; sometimes it is impracticable to restrain it. The law will not order that
which is unnecessary: it will not attempt that which is impracticable. In no case,
therefore, does it order a witness to be believed; for jurors are the triers of the
credibility of witnesses, as well as the truth of facts. […] In no case, likewise, does the
law order a witness not to be believed; for belief might be the unavoidable result of his
testimony. To prevent that unavoidable, but sometimes improper result, the law
orders that, without the observance of certain precautions […] the witness shall not be
heard. (383-84)
If we follow Wilson’s example in distinguishing between, on the one hand, witnesses’ credibility and
the operation of their testimony on their auditors, and, on the other, witnesses’ competency and the
admissibility of their testimony in legal proceedings, the unsettling implications of framing black antislavery speech as testimony in the extralegal context become more clear. The problem, both in and
DeLombard 27
outside American courtrooms, was not that African Americans were not credible witnesses; the
problem was that their autobiographical testimonies were all too believable.
We can see this point illustrated in antebellum jurisprudence if we turn to an infamous slave
case of the 1850s. The case — or, rather, the series of cases — had its origin in the events of July
1855, when the enslaved Jane Johnson and her two children accompanied their master, U.S. Minister
to Nicaragua John H. Wheeler, on a visit to Philadelphia. Johnson communicated her desire to be
free to a member of Philadelphia’s black community, and just before the boat on which Wheeler,
Johnson, and the children were passengers left the dock, Passmore Williamson, a white abolitionist,
boarded the boat with African-American abolitionists William Still, Isaiah Moore, William Custis,
John Ballard, James Martin, and James S. Braddock, informing Johnson that she and her children
were free under the laws of Pennsylvania, whereupon she disembarked and effectively escaped from
Wheeler. Wheeler then acquired a writ of habeas corpus from Federal District Judge John K. Kane
and served it on Williamson, who insisted that Johnson had never been in his custody.18 Williamson
spent from July to November 1855 imprisoned for contempt of court for his return on the habeas
corpus writ while lawyers wrangled over the cluster of issues raised by the case.
As the Pennsylvania Anti-Slavery Society’s pamphlet on the case explained, the habeas corpus
proceedings were premised on “a double falsehood, viz: that Jane Johnson did not desire her freedom
and was forcibly abducted by Passmore Williamson” (10). This was because, in Judge Kane’s words,
“Of all the parties to the act of violence he was the only white man, the only citizen, the only
individual having recognized political rights, the only person whose social training could certainly
interpret either his own duties or the rights of others under the constitution of the land” (Cannon 12)
— in other words, the only participant in the escape who, in the eyes of the law, possessed any civic
agency. In such a situation, according to the court’s logic, “the so-called rescue” could in fact be
construed as an instance of “unlawful restraint”: “For persons in servitude do […] often possess those
DeLombard 28
personal attachments which prove stronger than the love of liberty; and no one, certainly, has the
right to force them to be free” (Sheppard 45).
The court’s narrative of white agency and black passivity was threatened, however, by the
counter-narrative offered by a petition from Jane Johnson
herself — an account which, like
Johnson’s dramatic testimony on behalf of Williamson’s African-American abolitionist colleagues in a
separate criminal proceeding, emphasized her own active role in the incident.19 Kane protected the
coherence of the court’s version of the events, however, by resorting to a legal technicality that
allowed him to ignore Johnson’s petition: because Wheeler, in keeping with plantation usage, had
identified his slave “Jane” by her first name only in his petition for the writ of habeas corpus (a usage
reproduced in the writ itself), the court refused to recognize Jane Johnson “as a party” to the case,
explaining that “our records cannot be opened to every stranger who volunteers to us a suggestion, as
to what may have been our errors, and how we may repair them” (Cannon 189). This legal loophole
allowed Kane to find that Jane Johnson “has therefore no status whatever in this Court” (Cannon
189). Johnson’s lawyer Joseph B. Townsend pointed to the irony of this logic when he demanded, “It
being […] virtually her proceeding […] Why cannot she be heard? […] Surely no one is so competent
to satisfy the Court […] as the woman herself; her declaration is the best evidence attainable, all
others being but secondary” (Cannon 169).
Like Judge Kane’s contorted (but successful) efforts to exclude Johnson from the Williamson
hearing, the extensive legislation restricting African-American testimony throughout the North and
South put Wilson’s logic into racialized practice: given the impracticability of restricting the operation
of black testimony in the minds of its auditors, of enforcing disbelief in black testimony, the American
legal system had to silence this testimony altogether by excluding its speaker from the proceedings. In
order to do so, it had to call into question not the credibility of black testimony but the very
competency of the black witness.
DeLombard 29
But if African-American testimony was inadmissible in many American courtrooms
throughout the antebellum period, the emergence in the late 1830s and early 1840s of a new genre of
literature, the slave narrative, made African Americans’ firsthand accounts of slavery indispensable to
the court of public opinion. Indeed, the argument of Jane Johnson’s lawyer that “no one is so
competent to satisfy the Court” as the fugitive, that “her declaration is the best evidence attainable, all
others being but secondary,” echoed the similar claims with which abolitionist editors introduced
slave narratives as the most powerful “evidence” they presented in their case against Southern
slaveholders. In his preface to Narrative of James Williams (1838), the first slave narrative published by
the American Anti-Slavery Society, John Greenleaf Whittier opens his discussion of Southern brutality
by citing “the testimony and admissions of slave-holders,” which he acknowledges are “only that of
the […] wrong-doer himself” and must therefore be “partial and incomplete”; “But for a full
revelation of the secrets of the prison-house,” he insists, “we must look to the slave himself” (vi-vii,
xvi, xvii; see Fabian 81). Seven years later, William Lloyd Garrison introduced the Narrative of the Life
of Frederick Douglass by framing its author as a victim of the crime of slavery whose documentary
account enables him to take the witness stand against its perpetrators: “Mr. DOUGLASS has frankly
disclosed […] the names […] of those who committed the crimes which he has alleged against them”
(9). The representation of the former slave as testifying witness quickly became a staple of abolitionist
discourse. Henry Watson, who had been enslaved in Virginia and Mississippi, authorized his Narrative
(1848) by reflecting that “twenty-six years, the prime of my life, had passed away, I having witnessed
[slavery] in all its forms” (38). By the end of the period, Harriet Jacobs could preface Incidents in the Life
of a Slave Girl by expressing a desire “to add [her] testimony to that of abler pens to convince the
people of the Free States what Slavery really is” (1-2).
In his prefatory remarks to Douglass’ Narrative, Garrison establishes the specifically extralegal
nature of such testimonial rhetoric. “Let it never be forgotten,” he insists, “that no slaveholder or
DeLombard 30
overseer can be convicted of any outrage, perpetrated on the person of a slave, no matter how
diabolical it may be, on the testimony of colored witnesses, whether bond or free. By the slave code,
they are adjudged to be as incompetent to testify against a white man, as though they were indeed a
part of the brute creation” (10). In a society where “there is no legal protection in fact, whatever there
may be in form, for the slave population; and any amount of cruelty may be inflicted upon them with
impunity” (10), the abolitionist editor frankly offers the former slave’s printed “testimony” to the
court of public opinion in order to compensate for the exclusion of slaves from full participation in
American jurisprudence.
Black Advocacy
As we have seen, African Americans’ status arose not merely from their condition of servitude but
also on their racial identity.
Legal and print constructions of that identity rested on both a
longstanding Western association of blackness with criminality and the profound inability or refusal of
most white Americans to credit African Americans with civic agency. Further, that the so-called
“double character” of slaves as persons and property in criminal and civil contexts, respectively, was
not restricted to the slave states or, indeed, to enslaved African Americans, is evident from legislation
assigning different procedural rights, civil rights, and punishments to blacks and whites. Even if, in
the context of the North, this legal fiction lost much of its implicit purpose — to accommodate the
status of slaves as property under the law while seeking to maintain civil order — it retained its
coercive and disenfranchising effects virtually intact. Indeed, the court cases arising from the rescue
of Jane Johnson offer an analog to the Creswell decision in the free North. John Wheeler’s habeas
corpus suit effectively asserted that of the seven men who participated in Jane Johnson’s rescue, the
only one capable of civic agency was Passmore Williamson, as “the only white man, the only citizen,
the only individual having recognized political rights.” The denial of black civic agency meant that the
parallel actions of Williamson’s six African-American colleagues could only be construed as criminal
DeLombard 31
acts, as their role as defendants in the state criminal trial suggests. (Tellingly, although Williamson was
included in the criminal charges, his involvement in the civil proceedings effectively exempted him
from the criminal case.) Thus, although it was Williamson who was imprisoned and his AfricanAmericans colleagues who were acquitted or received light sentences, federal and state courts
cooperated to support a narrative of white civic agency (no matter how misguided) and black
criminality (no matter how questionable). The result was that, in the voluminous print commentary
they generated, the cases became associated with the names of the white “citizen,” Passmore
Williamson, and the ex-slave Jane Johnson, rather than with those of free black activists Still, Moore,
Custis, Ballard, Martin, and Braddock. The complicated position of free African Americans, it seemed,
could not easily be assimilated to the rudimentary juridical model that structured so much of the print
debate over slavery.
The determined refusal of American whites to recognize African Americans’ civic agency was
only one obstacle to conceptualizing black advocacy; another was the near exclusion of blacks from
the rapidly professionalizing bar. Only a handful of African Americans formally practised law prior to
the Civil War. Macon B. Allen, admitted to the Maine bar in 1844 and the Massachusetts bar in 1845,
is widely acknowledged to be the first African-American lawyer.20 Far better known is his successor,
Robert Morris, who, after clerking in the Boston office of abolitionist lawyer Ellis Gray Loring, was
admitted to the Massachusetts bar in February 1847. In addition to maintaining a successful practice
and playing a central role in the school desegregation and black militia movements, Boston Vigilance
Committee member Morris attained notoriety for his active participation in Boston’s fugitive slave
crisis of the 1850s: he was tried and acquitted for joining a mob of African-American Bostonians in
“aiding and abetting” the rescue of alleged fugitive Shadrach Minkins, for whom he served as cocounsel.21 Morris’ colleague, emancipated Virginia slave and Oberlin graduate John Mercer Langston,
DeLombard 32
was admitted to the Ohio bar in 1854 and attained reknown largely through the black convention
movement and the 1859 Oberlin-Wellington rescue (see Langston, Cheek and Cheek).
In addition to demonstrating the extent to which African Americans were excluded from the
learned professions, the experiences of Morris and Langston illustrate how the widespread denial of
African-American civic agency rendered the very concept of black advocacy incomprehensible, if not
ludicrous, for many whites in the antebellum period. Retrospective accounts published at the end of
the century provide some sense of the obstacles each man encountered in his efforts to join the
antebellum bar. From the Virginia Plantation to the National Capitol (1894), Langston’s third-person
autobiography, tells the Alger-like story of how the youngest child of a Virginia slaveholder and his
manumitted African-American/ Indian partner eventually became, in the book’s subtitle, “The First
and Only Negro Representative in Congress from the Old Dominion.” Langston recounts that, after
being denied admission to law schools in Ohio and New York, he followed the advice of one of his
Oberlin professors to become “the first colored student who entered a theological school in the
United States” (114); having thus proved his intellectual capacity, he embarked on private study of the
law in the office of Ohio judge Philemon Bliss. As Langston recalls, “there was no public sentiment
in any part of the country favoring such course on the part of any young colored man however
endowed, educated, qualified, and well situated for such profession. The public feeling of the country
seemed to be entirely against it, and no promise of success in such behalf could be discovered in any
quarter” (104). The difficulty arose from the precarious legal status of African Americans. As
Langston explains: “The colored people themselves were not prepared to sustain a person cultivating
the legal profession even where they had business of such character as to require professional
attention. For the courts were all composed of white men and so were all the juries, and on the part
of the former and the latter alike prejudice, strong and inveterate, existed against the colored litigant”;
moreover, “the very language of the law was so positively against the colored man […] that he very
DeLombard 33
justly felt that he must do his utmost, even in the employment of his lawyer, to gain so far as
practicable, favor with the court and jury. He felt that he must not certainly do the least thing to
engender or arouse any feeling or sentiment against himself as a suitor for justice” (104-105).
If potential African-American clients were reluctant further to diminish their scant chances for
legal justice by hiring a black lawyer, the pervasive racism of the virtually all-white legal profession is
clearly evident from the published account of a memorial “bar meeting in Boston, called to
commemorate the life and death of Mr. Robert Morris” on March 5, 1883 (In Memoriam 11).
Eulogizing Morris on the basis of an “acquaintance […] reaching back nearly forty years, to the time
when he was clerk in the office of the late Ellis Gray Loring,” Thomas S. Harlow admitted that he
would “have been glad to see here this morning, among those assembled to pay honor to his memory,
the highly respectable member of the Suffolk Bar who told me many years ago that he did not care to
practise in the courts now, since they had got to ‘letting niggers in’” (In Memoriam 12). Likewise, a
Judge Russell, remembering “how slight was the encouragement for such a youth” and recalling “the
‘unnumbered smiling’ that rippled through Court Street when [Morris’] purpose was announced,”
noted that “[a]gainst his success was leagued every mean prejudice and every great interest in the
community” (In Memoriam 21, 22).
Both Morris and Langston were forced to respond to expressions of prejudice that went well
beyond the condescension of white colleagues, however. When trying his first case, Morris faced
opposing counsel who not only refused to cooperate with him but verbally abused him. According to
a colleague, Edwin G. Walker, “Mr. Morris […] said that he left the man’s office with a heavy heart,
and with a feeling that, if that was the way he was to be treated by the members of the bar in his
practice, for the moment he doubted his ability to face the storm” (In Memoriam 33). Walker recalled
Morris telling him, “I went to my office. I sat down and I cried. I thought of the mighty odds against
which I had to contend, and then it was that I made the vow that I have never broken. It was this: I
DeLombard 34
would prove myself to be a man and a gentleman, and succeed in the practice of the law, or I would
die” (In Memoriam 33).
Langston’s more tumultuous experience speaks less to the differences between the two men,
than to the contrast between the Boston bar’s civil incivility and the Ohio legal community’s frontier
ruffianism. In order “to show what the public feeling was which the colored lawyer had to encounter
and overcome in the early days of his professional career,” Langston tells of one case when he and his
client were warned not to come to “court on the day of trial, and that if the colored lawyer did appear,
he might be compelled to confront even violence” (164). Ignoring such warnings, Langston met
“[t]hreatening looks” and “menacing words” from the gathered spectators, one of whom “went so far
as to declare as the colored lawyer passed him on the street, that ‘The community has reached a
pitiable condition when a nigger lawyer goes in pompous manner about this town’” (164); but it was
the “offensive, vulgar language, in accordance with the apparent desire of the rabble” from “the
attorney on the opposite side” whose behavior led the genteel Langston to conclude his anecdote: “If
blows were used it was because they were necessary” (164, 165). Langston recounts how, on another
occasion, as a result of a litigant’s slur, he “immediately struck” the man “with his fist, felling him to
the floor” (165); just as quickly, the black lawyer approached the bench and “confessed himself as in
contempt of the court and ready to accept any punishment, fine or even imprisonment […]
protesting, however, that no man should ever refer to his color, even in a court room and in the
presence of the judge and jury engaged in their judicial labors, to insult and degrade him, without
prompt and immediate attempt on his part to resent it, with any and every means and method at his
command”(165-66). True to his word, Langston “administered” to another racist “fellow-member of
the Bar” “not only a sound slapping of the face, but a round thorough kicking as he ran crying for
help”; upon arriving in the courtroom, Langston found his obtuse opponent “with a bloody nose,
DeLombard 35
smarting under the deserved castigation […] making a very serious and solemn complaint of vexatious
and outrageous assault and battery against him by this nigger lawyer!” (167).
Whether met by the determined gentlemanly sensibility of a Morris or the firm physical
resistance of a Langston, the hostile “public feeling” displayed toward black lawyers starkly
demonstrated the reluctance, even inability, of many white Americans to conceive of African
Americans in a legal capacity other than that of property, criminals, victims, or even witnesses. As we
can see if we return to the legal aftermath of the Shadrach Minkins rescue for one final account of
black advocacy, it was the African-American attorney’s role as the officially recognized representative
of the American legal system, more than his “pompous” class status, that made the very concept of a
“nigger lawyer” seem a contradiction in terms. The telling moment occurs not in the trial of Robert
Morris himself, but that of his white colleague, Charles G. Davis, who, like Morris, was represented by
Richard Henry Dana, Jr., and whose case, also like that of Morris, attracted extensive print coverage,
most notably in the published Report of the Proceedings at the Examination of Charles G. Davis, Esq., on a
Charge of Aiding and Abetting in the Rescue of a Fugitive Slave (1851). The portrayal of Morris in that
pamphlet illustrates how in the antebellum period exemplary black advocacy was conceivable only
through uplift ideology (at best) or racial caricature (at worst).
In the Report, Dana commences his defense of Davis by establishing the white lawyer’s
character, referring not only to his official position as “Justice of the Peace, sworn to sustain the laws,
a counsellor of this court and of all courts of the United States in this State, sworn doubly to sustain
the laws,” but also to his class status and ethnic heritage as “a gentleman of property and education,
whose professional reputation and emolument depend upon sustaining law against force; a man
whose ancestors, of the ancient Pilgrim stock of Plymouth, are among those who laid the foundations
of the institutions that we enjoy” (23). Dana’s depiction of his client as one with a considerable
investment in “personal pride, historical recollections, property, in family, reputation, honor and
DeLombard 36
emolument” contrasts sharply with his characterization of Davis’ clients: those “mostly poor” African
Americans who are the “plebeians, while we are the patricians of our community” (23, 24). It is in
this class-inflected racial context, not in the professional or elite milieux in which Davis appears, that
Dana refers to his colleague at the bar, Robert Morris. Taking the rare opportunity to document what
otherwise would have been a passing racial slur, Dana concludes his comments to the court by
referring to a disruption in the previous day’s proceedings:
While we uphold the public peace and the dignity of all laws, let us regard with
tenderness and consideration that poor class of oppressed men, our negro population,
on whom the [Fugitive Slave Law] statute falls with the terrors and blackness of night.
When one of their number, by his industry and abilities has raised himself to the
dignity of a place in this bar, it was with mortification I heard him insulted, yesterday,
on the stand, by an officer of this court, who pointed him out, in giving his evidence,
as “the little darkey lawyer[.]” While I rejoiced at the rebuke administered to that
officer from the bench, it was with deep regret that I saw the representative of the
government [District Attorney George Lunt] lead off the laugh of the audience against
him.
Mr. Lunt — This is false.
Mr. Dana — Do you deny you did so? It was seen and noticed by us all. I
spoke to you at the time.
Mr. Lunt — I only smiled. I cannot always control my muscles.
Mr. Dana — I am sorry you could not control them on this occasion. It led
off and encouraged others, who take their cue from persons in high positions. (36-37)
Characterizing Morris as “the little darkey lawyer,” the officer’s testimony reduced him to a caricature
of black advocacy which diminished his professional stature through its exaggerated attention to his
racialized physical attributes. The judge’s rebuke notwithstanding, this testimony and the gales of
laughter that it provoked from “the audience” effectively transform the legal proceeding into popular
entertainment — a performance that, like the minstrel show, turns on the figure of the dandified
black who implausibly mimics authoritative white discourse. Taken together, Dana’s earlier remarks
on Davis, Lunt’s retort to Dana, and Dana’s rejoinder, all highlight how, in the American courtroom,
the lawyer’s authority was premised not only on behaviors that one could attempt to “control,” such
as exemplary bourgeois physical restraint, but also on the far less governable history of one’s body —
DeLombard 37
whether one was the descendent of “ancient Pilgrim stock” or a “darkey” from that “poor class of
oppressed men, [the] negro population.” If, as Karen Sánchez-Eppler and Ann Fabian have argued,
the African-American body legitimized former slaves’ testimony, the requisite (but impossible)
effacement of the African-American lawyer’s body effectively reduced black advocacy to an
oxymoron for many white Americans.22
White Advocacy
Unusual as black advocacy may have been in antebellum courtrooms, voluntary anti-slavery testimony
from white witnesses was equally rare in the court of public opinion. Former slaves were not, of
course, the only ones with firsthand knowledge of the South’s peculiar institution; as Douglass noted,
“slaves, slave-holders, [and] by-standers” were all in a position to observe and therefore to reveal “the
true nature, character, and tendency of the slave system.” But political expediency, social pressure,
sectional loyalty, racial solidarity, and economic interest kept many of those in the latter two categories
from contributing their firsthand experiences and observations to the anti-slavery cause. The great
exceptions were Sarah and Angelina Grimké, members of South Carolina’s plantation elite who
became abolitionist activists in the North. It was the unique role that the Grimké sisters could play
that prompted Theodore Dwight Weld to pen a letter elaborating both the juridical metaphor and
their anomalous position within that trope. To the daughters of South Carolina Supreme Court
justice John Faucheraud Grimké, compiler of South Carolina Justice of the Peace and Public Laws of the State
of South Carolina, Weld wrote, “Slavery is on trial. The people of the north are the court. You are
summoned as witnesses to sustain the prosecution” (Barnes and Dumond 1: 389; emphasis in original).
Implicitly acknowledging the sisters’ role as abolitionists, Weld conceded, “True, it is incumbent on
you to appear also as advocates arguing upon the evidence and as examiners cross questioning and sifting
counter testimony; but the great reason why you should operate upon the public mind far and wide at
the north rather than Mrs. Child, Mrs. Chapman, Lucretia Mott, etc. is that you are southern women,
DeLombard 38
once in law slaveholders, your friends all slave holders, etc., hence your testimony; testimony
TESTIMONY is the great desideratum” (May 22, 1837; Barnes and Dumond 1: 389). Thus, even as
he emphasizes the distinct testimonial stance the Grimkés could as adopt as anti-slavery southerners,
Weld reaffirms the familiar prosecutorial attitude struck by such Northern abolitionists as Lydia Maria
Child, Maria Weston Chapman, and Lucretia Mott in their established role as “advocates” for the slave.
That Weld does not hesitate to imagine these female abolitionists in the role of advocate is consistent
with the conviction he shared with the Grimkés that the prevailing separate spheres ideology should
not constrain women’s anti-slavery activism (see Richards 790-811).
Two years later, Weld and the Grimkés maintained this prosecutorial posture in their
introduction to American Slavery as It Is. “As slaveholders and their apologists are volunteer witnesses
in their own cause, and are flooding the world with testimony that their slaves are kindly treated,” they
explain, “we propose — first, to disprove their assertions by the testimony of a multitude of impartial
witnesses, and then to put slaveholders themselves through a course of cross-questioning which shall
draw their condemnation out of their own mouths” (9). Through such proceedings, the editors
promise, “We will prove that the slaves in the United States are treated with barbarous inhumanity;
that they are overworked, underfed, wretchedly clad and lodged, and have insufficient sleep” (9).
Extending the catalogue of gothic barbarities for twenty-eight more lines, Weld and the Grimkés
reassert their role as advocates for the slave by presenting their introductory remarks as the opening
argument in the case against slaveholding “Plunderers” and “Robbers”: “All these things, and more,
and worse, we shall prove. Reader, we know whereof we affirm, we have weighed it well; more and worse
WE WILL PROVE. Mark these words, and read on; we will establish all these facts by the testimony
of scores and hundreds of eye witnesses, by the testimony of slaveholders in all parts of the slave
states” (9).23
DeLombard 39
Like Weld’s letter to the Grimkés, the editorial commentary in American Slavery as It Is reflects
not only the pervasiveness of juridical rhetoric in the early antebellum period, but also an appreciation
for how the newly complex criminal trial had changed the lawyer’s role. Wilson signaled this shift
when, at the close of the eighteenth century, he challenged the “supposition,” evident among the lay
public and “law books” alike, “that the evidence, which influences a court and jury, depends
altogether upon what is said by the witnesses, or read from the [court] papers” (2: 398) “This,
however, [was] very far from being the case,” at a time when, with the rise of the professional bar, one
could distinguish “the retail business of the law” from “the study and practice […] of the law, as a
science founded on principle, and on the nature of man” (2: 397-98) In such a legal climate, Wilson
found, “Much depends on the pleadings of counsel. His pleadings depend much on a masterly
knowledge and management of the principles of evidence. Evidence is the foundation of conviction:
conviction is the foundation of persuasion: to convey persuasion is the end of pleading” (2: 398). As
Wilson suggests, the lawyer’s new dual role as rhetorician and manager ensured his dominance in the
proceedings, greatly reducing the significance of “what is said by the witnesses.”
By the early
nineteenth century, the relationship of the advocate and the witness was certainly collaborative, but it
was by no means egalitarian.
The structure of the criminal trial, in which the testimony of the witness was introduced and
interpreted by legal arguments from the prosecutor, was textualized in the structure of the slave
narrative, in which the personal account of the former slave is framed by authenticating documents
from the abolitionist. Along with testimonial rhetoric, such authenticating documents are one of the
generic hallmarks of the slave narrative (see Olney, Stepto). In these usually white-authored prefaces
and appendices, the editor, amanuensis, or referee establishes the veracity of the text and the
authenticity of its authorship by asserting his or her knowledge of the events narrated therein or
vouching for the character of the former slave. Dating back to the publication of Phillis Wheatley’s
DeLombard 40
Poems on Various Subjects, Religious and Moral (1773), such prefatory addresses “To the Public” have
framed African-American texts for projected white audiences.
In the antebellum period, the
authenticating documents that accompanied slave narratives into print consistently phrased their
endorsement in juridical terms. Thus, David Wilson, the amanuensis for Solomon Northup’s Twelve
Years a Slave (1853), asserted that “Many of the statements contained in the following pages are
corroborated by abundant evidence — others rest entirely on Solomon’s assertion. That he has
adhered strictly to the truth, the editor, at least, who has had an opportunity of detecting any
contradiction or discrepancy in his statements, is well satisfied. He has invariably repeated the same
story without deviating in the slightest particular” (xxxvii).
It was, of course, the structural inequality between white advocacy and black testimony on the
abolitionist lecture circuit that prompted the best known passage in Frederick Douglass’ My Bondage
and My Freedom:
During the first three or four months, my speeches were almost exclusively made up
of narrations of my own personal experience as a slave. “Let us have the facts,” said
the people. So also said Friend George Foster, who always wished to pin me down to
my simple narrative. “Give us the facts,” said Collins, “we will take care of the
philosophy”…. “Tell your story, Frederick,” would whisper my then revered friend,
William Lloyd Garrison, as I stepped upon the platform. I could not always obey, for
I was now reading and thinking. New views of the subject were presented to my
mind. It did not entirely satisfy me to narrate wrongs; I felt like denouncing them. I
could not always curb my moral indignation for the perpetrators of slaveholding
villainy long enough for a circumstantial statement of the facts which I felt almost
everybody must know. Besides, I was growing, and needed room. (367)
Douglass’ account helps us to link the antebellum insistence on the testimonial quality of black public
speech with Enlightenment racial thought, which conceded blacks to be skillful in description and
other mimetic techniques associated with the production of narrative, but deficient in a “higher”
capacity for analysis and interpretation. The best known articulation of this ideology, of course, is
Thomas Jefferson’s claim that “Never yet could I find that a black had uttered a thought above the
level of plain narration” (cited in Davis and Gates xxvii). Ironically, the persistence of this assumption
DeLombard 41
is evident in My Bondage and My Freedom; although Douglass’ second personal narrative is authenticated
by prefatory remarks from a black rather than a white abolitionist, in his introduction James M’Cune
Smith is nevertheless careful to refute implicitly racist murmurs that Douglass’ “descriptive and
declamatory powers, admitted to be of the very highest order, take precedence of his logical
force”(133). Scholars of the slave narrative and antebellum abolitionism have long acknowledged what
T. Gregory Garvey has referred to as the “division of [rhetorical] labor between descriptive and
interpretive tasks” (234); what I want to emphasize here is the extent to which this division of labor
was given meaning by the anti-slavery movement’s pervasive juridical rhetoric — which surfaces here
in Douglass’ reference to “perpetrators of slaveholding villainy.”24
The widespread use of the juridical metaphor simultaneously shaped audience expectations
and structured discursive relations between formerly enslaved abolitionists and their white colleagues.
Douglass’ earliest extant recorded speech, delivered in Lynn, Massachusetts in October 1841, provides
a good example:
My friends, I have come to tell you something about slavery — what I know of it, as I
have felt it. When I came North, I was astonished to find that the abolitionists knew
so much about it, that they were acquainted with its deadly effects as well as if they
had lived in its midst. But though they can give you its history — though they can
depict its horrors, they cannot speak as I can from experience; they cannot refer you to a
back covered with scars, as I can; for I have felt these wounds; I have suffered under
the lash without the power of resisting. Yes, my blood has sprung out as the lash
embedded itself in my flesh. (Blassingame 1: 3).
Although he offers little in the way of autobiographical detail, Douglass nevertheless explicitly
grounds his authority in his firsthand experience of slavery as victim and witness, which he contrasts
to the abolitionists’ historical knowledge of the peculiar institution.
Fourteen years later, in his critique of the Garrisonian demand that he limit his public
speaking to a “circumstantial statement of the facts,” Douglass identifies a dynamic that Holocaust
scholar James Young sees as a defining characteristic of testimonial literature. Young describes
DeLombard 42
testimony as “factually insistent narrative” that “accomplishes not so much the unmediated rendition
of facts as it does a ‘rhetoric of fact’ ” (15, 9). In this rhetorical context, Young explains, testimonial
texts are assigned the impossible task of becoming “— like the writers themselves — traces of their
experiences… material fragments of experience” (23). (Hence the need for Douglass and other
formerly enslaved lecturers and authors to authorize their testimonial anti-slavery speech by referring
to a “back covered with scars.”) The difficulty with this “rhetoric of fact” in the antebellum context is
not so much its misleading claim to unmediated representation25 as its tendency to separate, in the
words of Douglass’ white colleague, John Collins, “fact” from “philosophy.” Young describes how,
by attempting to isolate facts from analysis, narration from interpretation, the authors of testimonial
texts often gain what he calls “testamentary authority”— recognition of the authenticity and facticity
of their texts — at the expense of what we might call exegetical authority — recognition of their
ability and right to construct meaning from these texts (20). As Young explains, “On the one hand,
even as a privileged text, the survivor’s testament demands interpretation by critical exegetes, which
… serves to ‘complete’ the text by finding meaning in the events it relates.” But, Young cautions, “on
the other hand, this separation also implies that only the exegete, and not the scribe, is making
meaning in the text” (22).26 It is precisely this exegetical authority that, on the one hand, created a
demand for black testimony to be framed by white advocacy, and, on the other, made black advocacy
so unfathomable in the antebellum period. Perhaps it is not surprising to find Boston lawyer George
W. Searle — in phrasing much like that Douglass attributes to the white abolitionist Collins —
recalling of Robert Morris, “He tried cases on facts, and left the refinements and technicalities of law
to others who had mastered them” (In Memoriam 18).
As Douglass’ contrast of his firsthand experience of slavery with Northern abolitionists’ more
abstract knowledge suggests, much of the pressure exerted on the authenticity and accuracy of the
slave narrative arose from evidentiary imperatives faced by the larger abolitionist movement. Noting
DeLombard 43
that “abolitionists were often charged with having no firsthand knowledge of the institution they
attacked,” Bruce points out the awareness of white abolitionists like Weld that the firsthand accounts
of former slaves “could give credibility to the movement it otherwise had difficulty claiming” (225,
226). But at the same time that abolitionists assiduously accumulated firsthand testimony from
former slaves to incorporate into their antislavery arguments and protested the legally enforced silence
of blacks in American courtrooms, they often sought to extend that regrettable but convenient silence
into the extralegal context of antebellum print culture as a means of authorizing their own
contributions to the debate over slavery.
Even after print advocacy by free blacks and oral and written “testimony” from ex-slaves had
become ubiquitous, many white abolitionists persisted in portraying themselves as speaking for slaves
as well as advocating on their behalf. For example Whittier introduces the Narrative of James Williams
(for which the poet “Act[ed] merely as […] amanuensis”) by insisting, “THE SLAVE HAS SPOKEN
FOR HIMSELF,” only to conclude his preface by deploring the Gag Rule “because we are thereby
prevented from pleading in the Halls of Congress for the ‘suffering and the dumb’” (xviii, xviii-xix,
xxiii). Fifteen years later, in her Key to Uncle Tom’s Cabin, after more than two hundred and fifty pages
of “corroborative statements verifying the truth” of her first novel, much of it derived from “slave
testimony,” both oral and written, Stowe similarly asserts that because the slave is “poor, uneducated
and ignorant, and cannot speak for himself,” sympathetic Northerners must not only “guard his
rights,” but also “speak for him” (254). As this editorial commentary suggests, when extended to the
extralegal debate over slavery, the lawyer’s responsibility to manage “the principles of evidence”
(including witnesses’ testimony) in a “masterly” fashion sometimes dovetailed with a paternalistic
predisposition among white abolitionists to control African-American texts, even to ignore the very
black voices they so urgently elicited.
DeLombard 44
Pro-Slavery Defendants
However constraining it may have proved for African-American abolitionists, the juridical metaphor
posed an even greater rhetorical disadvantage to those who supported the South’s “peculiar
institution” by forcing them to adopt a defensive posture as they addressed the popular tribunal.
Thus, as early as 1830 South Carolina Senator Robert Hayne insisted to Daniel Webster, “Sir, when
arraigned at the bar of public opinion, on this charge of slavery, we can stand up with conscious
rectitude, [and] plead not guilty” (14-15); almost twenty-five years later, Hayne’s “not guilty” plea
notwithstanding, George Fitzhugh’s Sociology for the South (1854) would protest that “The South […]
has, up to this time, been condemned without a hearing” (iv). On those occasions when proslavery
Southerners sought to turn the tables and place their opponents on the defensive, they still found
themselves reverting to the role of defendant: challenging the veracity of Douglass’ Narrative, the
abolitionist’s former master Thomas Auld pressed his point by insisting, “I can put my hand upon the
Bible, and with a clear conscience swear that I never struck him in my life” (Thompson 29). Similarly,
even when the defenders of slavery adopted the thesis that human bondage was a “positive good,”
they tended to present this argument as a defensive response to the charges leveled by abolitionists.
For example, George Fitzhugh opens Cannibals All! (1857) by noting with satisfaction that Southern
writers now justified slavery “as a normal and natural institution, instead of excusing or apologizing
for it as an exceptional one,” thereby treating slavery “as a positive good, not a necessary evil.” Be
that as it may, the word “defense” appears, in one form or another, five times in the first ten
sentences of Fitzhugh’s introduction to his proslavery treatise (7).
The precise manner in which Hayne and Fitzhugh invoked the juridical metaphor in their
proslavery arguments suggests that their shared reluctance to adopt a defensive posture arose not only
from the rhetorical disadvantages such a stance entailed, but also from its associations with dishonor,
even slavery itself. That both men were deeply invested in the Old South’s culture of honor is evident
DeLombard 45
from the fact that, although their words were separated by more than a quarter-century, both sought
to replace the prevalent trope for the debate over slavery, the trial, with the figure of the duel. As
Kenneth S. Greenberg has demonstrated in his “translation” of the antebellum South’s “language of
honor,” in a culture that placed tremendous value on surface appearance, particularly the invulnerable
projection of oneself into the public world, honor was crucial to the mastery asserted by Southern
gentlemen: indeed, “since Southern gentlemen defined a slave as a person without honor, all issues of
honor relate to slavery” (xiii). One of the most clearly elaborated rituals of honor, the duel was not
restricted to face-to-face encounters involving weapons. As Greenberg illustrates, the model of the
duel could easily structure disputes conducted through the medium of print (3-12). The duel, like the
games of chance so popular among Southern gentlemen, manifested the “powerful cultural impulse
toward risk” — a risk that during the Civil War led “Confederate strategists repeatedly,” and selfdestructively, “to attack rather than to assume a more prudent defensive posture” (138). Each
behavior emerged from “powerful cultural forces that kept alive the tradition of taking the offensive”
(168 n101). By figuring the slavery controversy as a duel rather than a trial, proslavery Southerners
sought to cast themselves as daring, honorable contestants rather than grudging, degraded
defendants.27 But the duel, like gambling and war, and unlike litigation, required a willing opponent, a
part that Northerners rejected far more successfully than Southerners did the role of defendant.
The famous Webster-Hayne Debate of 1830 was about a cluster of related issues (land, the
tariff, nullification, slavery, federalism, and states’ rights), but, from the perspective of Senator Hayne
at least, it was also very much about the honor of the South. Outraged by Webster’s earlier depiction
of the South as economically dependent on the North, Hayne responded, in part, by asking in a
lengthy diatribe:
[W]as it supposed, Sir, that, in a premeditated and unprovoked attack upon the South,
it was advisable to begin by a gentle admonition of our supposed weakness, in order to
prevent us from making that firm and manly resistance, due to our own character and
our own dearest interests? Was the significant hint of the weakness of the slave holding States,
DeLombard 46
when contrasted with the superior strength of the free States — like the glare of a weapon
half drawn from its scabbard — intended to enforce the lessons of prudence and
patriotism, which the gentleman had resolved, out of his abundant generosity,
gratuitously to bestow upon us [?] Mr. President, the impression which has gone
abroad of the weakness of the South, as connected with the slave question, exposes us to
such constant attacks; has done so much injury; and is calculated to produce such
infinite mischiefs, that I embrace the occasion presented by the remarks of the
gentleman from Massachusetts, to declare that we are ready to meet the question
promptly and fearlessly. It is one from which we are not disposed to shrink, in
whatever form, or under whatever circumstances, it may be pressed upon us. We are
ready to make up the issue with the gentleman, as to the influence of slavery on
individual and national character — on the prosperity and greatness, either of the
United States or of particular States. Sir, when arraigned before the bar of public
opinion on this charge of slavery, we can stand up with conscious rectitude, plead not
guilty, and put ourselves upon God and our country. (14-15; emphasis in original)
Marshalling the duel’s phallic imagery (“the glare of a weapon half drawn from its scabbard”) and
forms (“I embrace the occasion presented by the remarks of the gentleman”; “we are ready to meet
the question promptly and fearlessly”; “we are not disposed to shrink”), Hayne turns Webster’s
political comments about the economic status of the South into a personal affront to Southern
manliness, “character,” and, above all, honor. So doing, Hayne effectively redeems the defensive
posture that the juridical metaphor imposed on the proslavery faction by transforming it into a
position of offended honor and then, in turn, converting that position into the offensive stance of the
challenging duelist. By the end of the passage, the South may still be “arraigned before the bar of
public opinion” and forced to “plead not guilty,” but it does so not with the abject submission of the
common criminal, but with the “conscious rectitude” of the honorable gentleman.
Like Hayne’s reply to Webster, Fitzhugh’s response to Northern abolitionists reluctantly takes
up the juridical metaphor, only to attempt to replace it with the trope of the duel. Fitzhugh’s strategy,
however, is the inverse of his predecessor’s: rather than issuing the challenge, he is the offending
party, attempting to provoke his opponent into demanding a duel. Thus even as the opening
paragraph of Cannibals All! awkwardly celebrates the “positive good” approach as “this new mode of
defence,” Fitzhugh shifts registers in order to explain that “Heretofore the greatest difficulty in
DeLombard 47
defending slavery has arisen from the fear that the public would take offense at assaults on its longcherished political axioms,” namely, notions of individualism, liberty, and equality grounded in the
Protestant Reformation, the Enlightenment, and the American Revolution (7). Alluding to the
publication of Sociology for the South three years previously, Fitzhugh notes that “no one, either North
or South, has complained of our rather ferocious assault” on these revered axioms (7), concluding that
that the “silence of the North is far more encouraging […] than the approbation of the South” (8). In
contrast to Hayne’s offended gentleman, Fitzhugh depicts himself as the powerful aggressor,
assaulting Yankee values through his writing, seconded by many Southern presses of high standing
who have “Piqued and taunted” the North “to deny the proposition that Free Society in Western
Europe is a failure, and that it betrays premonitory symptoms of failure, even in America” (8). He
implies, however, that the North has exposed itself to such degradation by not responding to such
attacks appropriately. Rather than honorably accepting or declining the challenge, “the North is
silent, and thus tacitly admits the charge. Challenged to compare and weigh the advantages and
disadvantages of our domestic slavery with their slavery of the masses to capital and skill, it is mute,
and neither accepts nor declines our challenge” (8). Silence here represents not so much guilt as a
lack of power, honor, and authority. Ironically, Fitzhugh must bend the code of honor — which, in
keeping with the duel’s purpose of “reaffirm[ing] the equality of the principals after it had been
disrupted by an insult,” required careful displays of “great courtesy and mutual respect” (Greenberg
58) — in order to impose Southern elite values on the national debate over slavery. Taking advantage
of Yankee ignorance and even bafflement regarding the forms and usages of honor, Fitzhugh’s
egregious provocation seeks to shift the terms of the debate over slavery to those more favorable to
the South.28
Given the enduring power of the juridical metaphor, however, such a gambit could not be
sustained for long, even within the pages of Fitzhugh’s own book. The ungainly title of the tenth
DeLombard 48
chapter of Cannibals All!, “Our Best Witnesses and Masters in the Art of War,” betrays his rhetorical
conundrum (85). Mingling images of gambling, battle, and chivalry with those of the courtroom, this
schizophrenic chapter seeks to ironize and thus destabilize Northern legal rhetoric, supplanting it with
the Southern language of honor:
We intend this chapter as our trump card, and have kept it in reserve, because
it is rash to “lead trumps.” We could produce a cloud of witnesses, but should only
protract the trial thereby. We call into court Horace Greeley, Wm. Goodell, Gerrit
Smith, William Lloyd Garrison, and Stephen Pearl Andrews, and propose to prove by
them […] that their object and that of their entire party, is not only to abolish
Southern slavery, but to abolish also, or greatly to modify the relations of husband and
wife, parent and child, the institution of private property of all kinds, but especially
separate ownership of lands, and the institution of Christian churches as now existing
in America. […]
In convening these gentlemen as witnesses, and also arraigning them on trial,
we are actuated by no feelings of personal ill will or disrespect. We admire them all,
and have had kindly intercourse with some of them. They are historical characters,
who would seek notoriety in order to further their schemes of setting the world to
rights. […] We shall try their cause in the most calm and judicial temper. (85-86)
The underlying logic governing Fitzhugh’s abrupt transition from the trope of the card game to that
of the trial is evident when we consider that “For Southern men of honor, gambling was closely
related to dueling” in that each “involved a moment when a challenge to a contest was offered and
accepted” (Greenberg 138). Constructing a parallel between “lead[ing] trumps” and “produc[ing] a
cloud of witnesses,” Fitzhugh seeks to destabilize the juridical metaphor by prefacing it with an
alternative trope drawn from the Old South’s culture of honor. At the same time, however, the
apparently masterful gesture signals more subtle tensions inhering in Fitzhugh’s need to respond to
Northern abolitionists on their own terms while at the same time maintaining his posture as an
honorable Southern gentleman.29 Ironizing the abolitionists’ frequent invocation of Hebrews 12:1
(“cloud of witnesses”) and their tactic of rhetorically subpoenaing Southern “testimony” against
slavery, Fitzhugh pointedly moves beyond cross-examining his abolitionist “witnesses” to arraign
them on new charges of seeking to destroy family, private property, Christianity, and social order in
the North.
DeLombard 49
More to our purposes here, however, is the considerable anxiety Fitzhugh displays in
participating in such juridical rhetoric, discomfort that arises not merely from the Southern rejection
of a dishonorable defensive posture, but also from the incompatibility of the courtroom with the duel
(which, after all, offered an extralegal and often illegal alternative to the dispute resolution of the trial).
In order to call his abolitionist colleagues “to the stand” (86), Fitzhugh must call them by name, a
breach of the Southern etiquette which understood that “to attack a man’s name was to attack a
central part of himself” (Greenberg 41). Fitzhugh’s attempt to justify such a breach is evident in his
awkward insistence that those whose names he mentions “are historical characters, who would seek
notoriety” — and thus not requiring the anonymity normally acceded to one’s print antagonist in the
South. Fitzhugh further underscores his honorable intentions toward his opponents by disavowing
any “feelings of personal ill will or disrespect” and asserting his admiration for them. He repeats this
gesture when, at the end of the chapter, he publishes his letters to northern abolitionists. “We live in a
dangerous crisis, and every patriot and philanthropist should set aside all false delicacy in the earnest
pursuit of truth,” he asserts in his open letter to Garrison, “I believe Slavery is natural, necessary,
indispensable. You think it inexpedient, immoral, and criminal. Neither of us should withhold any
facts that will enable the public to form correct opinions. Should you not reply to this letter, I shall
publish a copy of it in my book, and insist that your silence is an admission of the truth of my
charges” (105). Acknowledging abolitionist religious and legal constructions of slavery as “immoral
and criminal,” Fitzhugh at first seems to accept the terms of debate, echoing the antislavery
movement’s emphasis on presenting “facts” to an adjudicative reading public. But the final line of the
passage suggests that once again, the duel, not the trial, is Fitzhugh’s model. In keeping with the
Southern gentleman’s understanding that “the duel was a theatrical display for public consumption,
and the parties expected descriptions of the events to be widely circulated” (8), Fitzhugh very carefully
follows the forms for dueling as a resolution of the “dangerous crisis” that occurred when men of
DeLombard 50
honor found themselves challenging the “truth” of each other’s words: he acknowledges the dispute,
details the specific charges, provides his opponent an opportunity to respond in private before
resorting to publicity, and emphasizes the importance of both parties adhering to ritual practice. That
the letter appeared in Fitzhugh’s book suggests that what made the duel metaphor so attractive to
Southerners was precisely what made it unsustainable as a model for the national debate over slavery: it
was articulated in a language Northerners did not — or would not — understand.
Fitzhugh’s clumsy handling of the juridical metaphor reveals the difficulties that trope posed
in the context of a Southern law shaped by the language of honor. Indeed, it is in this legal context
that we must read Fitzhugh’s all-white witness list and his implicit refusal to call to the stand the antislavery movement’s most persuasive witnesses: formerly enslaved African Americans like Frederick
Douglass and William Wells Brown. As Greenberg notes, “The denigration of the words of African
Americans in the legal system was part of a larger pattern,” in which part of the “humiliation
commonly associated with slavery involved the assumption that the word of a gentleman needed to be
honored, while the word of a slave could be treated with contempt” (40, 39).30 Reluctantly adopting
the juridical metaphor as the means for admission to the debate over slavery, Southern men of honor
soon found themselves in a double bind: answering the charges pressed against them by formerly
enslaved witnesses and their white advocates, defenders of slavery feared the consequences to their
own honor of showing respect to the former and disrespect to the latter. If, under the slave system of
the Old South, “truth was a matter of assertion and force” and power was defined largely by “who
controlled truth” (Greenberg 41), the very act of recognizing, much less responding to, the
“testimony” of former slaves, even outside the courtroom, threatened to undermine the honor (and
thus the power) of the Southern gentleman. Indeed, the problem with the court of public opinion
that was so frequently conjured in antebellum print culture was that it so little resembled the
adjudicative structures of the South — especially where actual slaves were concerned.
DeLombard 51
For if the imaginary public tribunal offered a corrective to Southern jurisprudence by asserting
the legitimacy of a proceeding with black witnesses and white defendants, it contrasted even more
starkly with the so-called plantation justice that was vastly more familiar to African Americans
throughout the South. Portraying the plantation as “a secluded, dark, and out-of-the-way place,”
Douglass reminds his readers that “The laws and institutions of the state, apparently touch it
nowhere. The troubles arising here, are not settled by the civil power of the state. The overseer is
generally accuser, judge, jury, advocate, and executioner. The criminal is always dumb. The overseer
attends to all sides of the case” (My Bondage 160). William Goodell deplored this state of affairs in his
treatise, The American Slave Code in Theory and Practice (1853), revealing through a close reading of
statutes on slave punishment that “the slave owner […] becomes ex officio […] a judicial functionary
himself, with the powers of a court of justice to award sentence, and order a public officer to put it in
execution — a court in which the prosecutor is judge, and without even the forms of a trial, or
permitting the adverse party a hearing, gives verdict and sentence in his own case!” (167). This
despotic blurring of the very roles — and by extension, the democratic civil order — that invocations
of the juridical metaphor sought to maintain potentially impeded Southerners’ ability to play the part
assigned to them. Nowhere is this problem more obvious than in Fitzhugh’s apparent difficulty in
distinguishing between the various components of the trope: rejecting the posture of defendant
(“Slave society needs no defence” [103]), adopting the stance of the advocate (“We will first call Mr.
Wm. Goodell to the stand” [86]), and simultaneously usurping the position of judge (“We shall try
their cause in the most calm and judicial temper”) Fitzhugh inadvertently reveals the slaveholder’s
“despotic” tendencies. (As will become more clear in Chapter Two, such apparent disregard for legal
process would have been perceived by many antebellum Northerners as consistent with Fitzhugh’s
proslavery stance.) Largely unsuccessful in their attempts to replace the courtroom with the field of
honor, proslavery Southerners almost inevitably found themselves grappling with the juridical
DeLombard 52
metaphor in a print debate that placed them at a rhetorical disadvantage even as it disregarded their
own cherished axioms of honor and slavery.
The remarkable resiliency of the juridical metaphor is evident in the fact that, however
dissatisfied the participants in the debate over slavery may have been with the roles assigned to them,
they consistently sought to redefine those roles through textual negotiations within that figure, rather
than by stepping outside of it altogether.
As Chapters Three through Five demonstrate, such
attempts to revise and thus to destabilize the juridical metaphor registered profound unease with the
tropological terms by which each of the disputants entered the slavery debate. When read carefully,
such revisions help us to uncover the vexed dialogue among the participants over their relationship
not only to slavery, but, crucially, to each other. Thus, Douglass, attempting to exchange the role of
witness for that of advocate, calls for greater African-American political autonomy in both the antislavery movement and the nation as a whole; Stowe, conflating the roles of slaveholder and advocate
for the slave in Dred, seems to respond to that call by acknowledging white paternalism, even as she
ultimately refuses to relinquish the abolitionist prerogative to represent the slave, literally and
figuratively; and Burwell, rhetorically filing a counter-suit against the abolitionists, reveals anxieties
about having Southern guilt exposed before the public tribunal. But, whatever the ambivalence of
each of the participants regarding their respective roles in the proceedings, the enthusiastic circulation
of these texts, like that of the popular print ephemera on the law and slavery, illustrates that, for their
part, antebellum readers did not mind being impaneled as a jury in what was, in effect, the trial of the
century.
NOTES
Scott v. Sandford 60 U.S. 393, 407 (1857), cited in Higginbotham 6.
2 Barber 9-15; Von Frank 173. The Moyamensing register is in the Chester County Historical Society. My thanks to Phillip
Lapsansky of the Library Company of Philadelphia for calling this document to my attention.
3 On Puritan evidences see McGiffert 133-48 and Swaim; on Quaker anti-slavery testimony see Higginbotham 293-95; on
the black vernacular see Smitherman 58.
4 25-26. “He that stealeth a MAN and selleth him, or if he be found in his hand, he shall surely be put to death”
(King James Bible, Exod. 21.16).
1
DeLombard 53
Published anonymously in 1839 by the American Anti-Slavery Society, the volume was compiled by Theodore Dwight
Weld and Sarah and Angelina Grimké of clippings from “twenty thousand copies of Southern newspapers” and “sold one
hundred thousand copies in its first year” of publication (Weld 1-2).
6 See Stroud 73-74.
7 Based on the Old Bailey Sessions Papers from 1674 to the mid-eighteenth century, Langbein’s research is directly
relevant to English jurisprudence, especially that conducted in London during this period. Although scholars of early
American legal history disagree about the relative powers of judges and juries prior to the nineteenth century, they concur
with Langbein in noting how the increasing professionalization of the bar resulted in longer, more complex criminal trials.
For an account of the power of Massachusetts juries, see Nelson; for an alternative account based on Maryland, see Rice.
8 Derrida formulates his theory of supplementarity, of course, in an analysis of the relationship of the spoken to the
written word; here, although the shift from the legal to the extralegal often entails a shift from the oral to the textual, my
borrowing of the Derridean concept of supplementarity is necessarily abstracted from its original context.
9 For an insightful complication of this concept through analysis of how civil cases in the antebellum Deep South
inevitably entailed consideration of the “character” or “moral agency” of both enslaved African Americans and their white
masters, see Gross.
10 On slaves as chattels personal versus realty see Morris 61-80.
11 Harris reviews the “dual and contradictory character of slaves as property and persons” with specific reference to the
Constitution’s infamous three-fifths clause and “the law’s legitimation of the use of Blackwomen’s bodies as a means of
increasing property” (1718-20).
12 The case involved the 1856 will of John T. Creswell, which stipulated that his four slaves be given a choice between
continued slavery or emancipation and emigration to a free state or Liberia. See also Carroll v. Brumby, 13 Ala. 102, January
1848, which set a precedent for Creswell by determining that slaves “have not the legal capacity to choose” between slavery
and freedom (Catterall 3: 166).
13 See Gates, “Writing” 11-12.
14 On the presumptive status of blacks as slaves see Morris 25-29
15 For analysis of this statute and others like it, see Higginbotham 58 and Morris 232-37.
16 See Morris 231.
17 For analysis of blacks’ imputed mendacity from historical, literary, and legal perspectives see, respectively, Greenberg
40-41, Fabian 84-102, and Morris 232.
18 At the same time, Williamson and his colleagues were indicted for riot, assault, battery, and robbery. According to the
Pennsylvania Anti-Slavery Society’s pamphlet accounts of the case, Williamson never appeared in the criminal trial; Still,
Moore, Martin and Braddock were acquitted of all charges and Ballard and Custis were fined “ten dollars each and the
costs of prosecution, as well as imprisoned for a week for “an assault upon Col. Wheeler” (16).
19 In testimony that “utterly destroyed that of Mr. Wheeler and his witnesses” Johnson asserted in the criminal case, “I had
made preparations before leaving Washington to get my freedom in New York; I made a suit to disguise myself in — they
had never seen me wear it — to escape in when I got to New York; […] I wasn’t willing to come without my children; for
I wanted to free them” (Pennsylvania Anti-Slavery Society 14). In Pennsylvania free blacks were not allowed to “be
witnesses against whites in regular courts” until 1780; slave testimony under the same circumstances was inadmissible until
1847 (Higginbotham 282).
20 In New York, George Vashon passed “an open court examination in January 1848,” only to exile himself to Haiti as a
teacher (Cheek and Cheek 130). On Allen see also In Memoriam 31-32.
21
See Collison 83, 105, 116, 119, 122, 123,130, 142, 147-48, 194-96; Von Frank 42-46, 55, 116, 128, 239, 242, 295, 315.
22 On corporeality and the testimonial rhetoric of the slave narrative, see Sanchez-Eppler 14-49, 136 and Fabian 94, 110.
Fabian’s contrast of fugitive slave testimony and blackface minstrelsy is particularly relevant here (108-111). For an
alternative view of these two types of ‘performances’ see Hartman 27.
23 For a discussion of the gothic elements of abolitionist literature, including American Slavery as It Is, see Goddu 131-59.
Sarah Grimké also plays the role of witness in American Slavery as It Is: the “Narrative and Testimony of Sarah M. Grimké”
introduces her as “a daughter of the late Judge Grimke of the Supreme Court of South Carolina, and sister of the late
Hon. Thomas S. Grimké” (22).
24 Blassingame complicates this passage when he notes that “Douglass exaggerated the restrictions placed on him during
his first few months as an antislavery lecturer,” explaining that “private letters of white abolitionists and news accounts
published between 1841 and 1845 furnish little evidence to support Douglass’ assertions” (xlviii) and that “Rarely did
personal references constitute more than a fourth of a speech or provide more than a blurred outline of his life” (xlviiixlix). Blassingame further elaborates that “it was his auditors, rather than white abolition leaders, who demanded that he
tell the story of his life” (xlix). I concur, however, with Bruce, who notes that even if Douglass exaggerated the constraints
5
DeLombard 54
placed on him by white Garrisonians, “the recollection captures the concern about autonomy, the sense of its necessity,
and a drive for independence” that shaped Douglass’ later career as an abolitionist (255). Relevant to my purposes here is
not so much the specific content of Douglass’ speeches and writing but, rather, the rhetorical strategies he employs to
authorize them.
25 Contrary to the movement of postmodern literature and poststructural criticism away from notions of “the real,” Young
finds, “the Holocaust has compelled writers to assume the role of witnesses to criminal events, actually rehabilitating the
mimetic impulse… rather than burying it” (17). We find the same emphasis on “documentary realism,” the same
assumption that “the more realistic a representation, the more adequate it becomes as testimonial evidence of outrageous
events,” influencing the production and circulation of slave narratives in the antebellum period, as abolitionists in
particular stressed what Young would call “the natural and unconstructed nature” of former slaves’ narratives (17).
26 Describing a similar process in different terms, Michel Foucault finds that it is precisely due to this tendency to endow
others with what he calls “the hermeneutic function” that “confessional” narratives, rather than liberating their authors, in
fact reinscribe them in the same oppressive power relations these texts often seek to disrupt. In the first volume of his
History of Sexuality Foucault emphasizes the collaborative nature of confession: “one does not confess without the
presence (or virtual presence) of a partner who is not simply the interlocutor but the authority who requires the
confession… and intervenes in order to judge, punish, forgive, console and reconcile” (61-62). In keeping with his
expansion of confessional speech to include a variety of autobiographical narratives, Foucault is less interested in the
confessor’s punitive or conciliatory capacity than in his “hermeneutic function” (67), for it is this function that is crucial to
the unequal power relations that structure such exchanges. As Foucault explains, it is the confession’s auditor, not its
producer, who is authorized to “constitute a discourse of truth based on its decipherment” (67).
27 It is important here to preserve the distinction between rhetoric and legal practice. For, if, as I argue here, pro-slavery
Southerners’ awkward attempts to graft their own language of honor onto the pervasive juridical metaphor of the slavery
controversy illustrates their discomfort with the latter, antebellum Southern jurisprudence, as Gross has shown,
demonstrates that systems of law and honor were not incompatible (see 47-121).
28 Greenberg demonstrates how Northerners from Benjamin Franklin to Frederick Law Olmstead consistently
misinterpreted or were mystified by the Southern language of honor (13-14, 81).
29 On gambling and Southern honor see Greenberg 135-45.
30 Ann Fabian also draws on Greenberg’s discussion of honor to consider the inadmissibility of slave testimony in the
context of abolitionism and antebellum print culture (90-93; see also Gross 47-97).
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