On July 4, across the United States of America, hot dogs sizzle on barbeques. Marching bands trumpet the anniversary of American independence. Fireworks fill the night sky from coast to coast. Independence Day is hard to miss. It is bright. It is loud.

Not so in my sleepy New England hometown of Exeter, New Hampshire. No trumpets or firecrackers here. Tumbleweeds might as well be rolling down the streets of New Hampshire’s revolutionary-era capital on the nation’s birthday. Exonians are not unpatriotic; they just like historical accuracy. Here, the independence celebration is keyed not to the adoption of the text of the Declaration of Independence in Philadelphia on July 4, 1776, but to the arrival of these words in Exeter. Check back with us in about two weeks.

It is July 16, 2016. The boom of canons has alerted the town to gather on Water Street between Folsom Tavern and Stillwells, an ice cream shop. The crowd is a motley crew. Some people hold iPhones; others hold ten-pound flint-lock muskets. There are folks dressed in wicking Under Armour, and others in wool uniforms. Children lose their grips on red “Exeter Historical Society” balloons, and a blacksmith stokes a portable forge preparing to make hand-wrought nails. At 11 a.m., the sounds of a fife and drum corps approach, followed by a thin man on a horse. John Taylor Gilman is making his entrance.

 

Gilman dismounts and ascends the hill to the platform outside the Ladd-Gilman House (now the American Independence Museum). He waits his turn. First, the museum’s executive director and then a representative of the town of Exeter’s Board of Selectmen address the crowd. A message from New Hampshire’s governor is read. Finally, George Washington steps up to the microphone. Washington will be spending the day in the tavern museum schmoozing with the hoi polloi as they drink a local brewery’s take on eighteenth-century beer. The nation’s first president introduces Gilman. On July 16, 1776, Gilman was the twenty-two-year-old son of New Hampshire’s revolutionary treasurer. He would have a lifelong career in New Hampshire state politics, but on that day, legend has it, he performed a nation-making piece of oratory as he read to the citizens of New Hampshire the hot-off-the-presses Declaration of Independence.

Gilman unfurls a large single-sided piece of paper and begins to read, “When in the course of human events …” As Gilman reads every one of the Declaration’s 1,320 words, the gathered crowd listens in silence for what, to twenty-first-century ears, seems like an eternity. After a few minutes, there is some noticeable pushing and shoving as a new group of listeners arrives. They are wearing a variety of eighteenth-century British military uniforms. Gilman reads the line, “The history of the present King of Great Britain is a history of repeated injuries and usurpations.” Suddenly, the new arrivals start shouting “boo” and “traitor.” Ragtag militiamen respond to the heckling with loud cries of “huzzah.” Their camp followers—women and children—join in the shouting match. The patriots and the loyalists (including a lone Hessian) begin to square off. They are scheduled to fight a mock battle later in the afternoon. But right now, as Gilman reaches the end of the document, “we mutually pledge to each other our Lives, our Fortunes and our sacred Honor,” the crowds line up to enter the un-air-conditioned museum.

This is the beginning of Exeter’s American Independence Festival, which in addition to a schedule of activities, is the once-a-year opportunity for the public to view the American Independence Museum’s most valuable holding, a Dunlap broadside. This document is the raison d’être of the museum, the festival, and Exeter’s delayed celebration of American independence. So what is it?

 

The Dunlap Broadside and the Society of the Cincinnati

In Philadelphia on July 2, 1776, the delegates to the Continental Congress voted to declare independence from Great Britain. On July 3, John Adams wrote, “The Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival.” He was close. The next day, Congress voted to adopt the words we now know as the Declaration of Independence. The iconic endorsing signatures of all the delegates would be inked a month later, yet the text of the Declaration itself was so meaningful that July 4 became the nation’s birthday.

For these words to spread, however, they needed to take material form; they needed to be printed. That evening, after the votes were tallied and the Declaration adopted, printer John Dunlap was tasked with setting the type and producing approximately 200 copies of the text. His version involved no swirls of calligraphy, just simple seriffed letters printed on a single side. Before all the ink was fully dry, John Hancock, president of the Congress, sent these copies to the colonial legislatures, committees of safety, and military leaders. The broadsides traveled to their destinations via express riders moving at the speed of horse hooves. It took nearly two weeks to get to New Hampshire, the northernmost rebelling colony. As a result, Exeter’s residents thought they were King George’s subjects twelve days longer than Philadelphians. In a letter to Hancock written at Exeter on July 16, 1776, the New Hampshire Committee of Safety acknowledged receipt of its copy and reported, “Such a Declaration was what they most Ardently wished for. And I Verily believe it will be Received with great Satisfaction, Throughout this Colony, a very few Individuals excepted.”

In reference to the printer’s name and the poster-like format, the physical documents printed during this first edition of America’s most foundational text have become known as “Dunlap broadsides.” In 2017, only twenty-six copies are known to survive. These rare sheets of old paper have been found in all sorts of unusual places. One copy was discovered in an unopened crate in a bookstore. Another was being used to wrap a bundle of other papers in an attic. In 1989, one was found behind a painting bought at a flea market for four dollars. In 1991, it sold for $2.42 million; in 2000, it was sold again for an unprecedented $8.14 million. Invaluable words, yes. Priceless paper, no. Dunlap broadsides command prices, huge prices. They are very valuable commodities. 

The Dunlap broadside (the broadside) on display during Exeter’s American Independence Festival was “discovered” in 1985 in the attic of the Ladd-Gilman House. The house was built in the early eighteenth century and was the home of the politically prominent Gilman family. During the Revolutionary War when Exeter was the state capital and a booming inland seaport, the house served as the treasury. In 1902, the Society of the Cincinnati in the State of New Hampshire acquired the house from the Gilman family. The society, a hereditary organization composed of the eldest male descendants of New Hampshire’s commissioned officers who served in the Continental Army and Navy, named it Cincinnati Memorial Hall. In this clubhouse, members gathered for meetings and brought with them artifacts from the revolutionary era for a kind of grown-up show-and-tell. Some of these objects had been passed down in their families; others were acquired over time. The collection grew: political cartoons, swords, furniture, rare books, original drafts of the Constitution complete with handwritten notes, an eighteenth-century purple heart, and portraits of revolutionary leaders by famous artists. Despite the value of the items at Cincinnati Memorial Hall, the collection was unorganized and record-keeping haphazard. The society, however, knew it owned valuable artifacts. In 1985, the society hired a local electrician to install a security system, which required attic access. Local lore suggests that the electrician’s assistant “discovered” the broadside in a stack of old newspapers serving as insulation. The society, in turn, argues that the broadside was “rediscovered” by a member during an inventory of the items stored in the attic inspired by the electrician’s need for access. Regardless of who should be credited with finding the document, it quickly became clear that this piece of paper was worth quite a lot of money. By selling the broadside, the society could afford to repair and restore the rest of its collection, including the Ladd-Gilman house and Folsom Tavern.

The society had stumbled upon a bounty, or at least the members and appraisers thought so. The society reached out to leading sellers of historic documents and rare books. Most valued the broadside at around $500,000 (adjusted for inflation to 2017, that would be about $1.1 million). This is probably a low estimate given the more than $2 million sale price of the copy discovered and sold just a few years later.

The price tag, however, proved inconsequential. As the society prepared to send the broadside to auction, the state of New Hampshire intervened. It turns out that, in legal terms, the mystery of who found the broadside matters a lot less than who lost it. Did a member give it to the society during the show-and-tell meetings sometime after 1902? Or was it the original copy—the one sent to the Committee of Safety by Hancock that arrived on July 16, 1776—hidden in the attic of the state treasury? In 1776, after all, the broadside was not a rare, valuable piece of old paper; it was treason. If the Gilmans hid the broadside in their house in the 1770s, it was never theirs to convey to the society. It was technically state property. And the state of New Hampshire wanted it back.

Lawyers for the society and the state battled for five years. In 1990, they reached a deal that, among other things, required the society to transfer “its rights and interest” in the broadside and “title” to all of its other “Historical Material” to a new non-profit corporation, “which will actively operate a museum and study center of the American Revolution . . . on the Society’s historically significant properties in Exeter, New Hampshire.” The state’s goal was to keep the broadside in New Hampshire and “afford the public maximum opportunity for its viewing.” The parties agreed that by displaying the document at the new museum, “the public shall have ample opportunity to view the broadside.” Thus, the American Independence Museum was born.

 

The American Independence Museum and Exeter’s American Independence Festival

 

With the agreement with the state of New Hampshire, the broadside had transformed from the Society of the Cincinnati’s bounty to its burden. Whereas a sale might have brought money into the society, ownership came with costs. The agreement did not require the state to commit any financial support to the American Independence Museum. Running the museum was more expensive than maintaining a private clubhouse. The society became the museum’s largest donor not only in terms of its collection but also in terms of operating budget. And over time, the museum exhibited its most important artifact less and less. By far the most valuable piece of paper in Exeter if not in the entire state of New Hampshire, the broadside needed both security and preservation. The security system installed at the time of its discovery was inadequate to safeguard it. The historic Ladd-Gilman house where the museum was located could not be climate controlled. To save the valuable paper from theft, humidity, and temperature fluctuations, it was moved to a bank vault. A full-size duplicate was put on permanent display, but according to the agreement with the state, the museum still needed to provide the public with access to the original.

By the early 2000s, the museum decided that the original Dunlap broadside would only be available for public viewing during its most important annual event held every year on the third weekend in July.  Exeter’s American Independence Festival, earlier called Revolutionary War Days and originally a part of the town of Exeter’s Old Home Days, was created in 1990. Although the local Chamber of Commerce and various town committees were involved, the museum’s staff turned a collection of contemporaneous programming into a single event, which aimed to draw attention and paid attendance to the museum. They used posters and printed schedules to pitch a celebration of Exeter’s revolutionary era glory. The broadside (printed to be hung like a poster) inspired a festival created by a poster.

 

During its twenty-seven-year history, the festival has changed a great deal. It has expanded to four days and shrunk to one. It has featured canoe rallies and clambakes, petting zoos and parades, archaeological digs and artisanal demonstrations, funnel cakes and fifes, duck races and sidewalk sales, hot air balloon demonstrations and hay rides, a giant teepee and a giant Declaration, and even the “tar and feathering” (with maple syrup) of the museum’s first director.

Four essential features, however, have been constant. First, the town of Exeter launches its fireworks display on the Saturday night (in the spirit of Yankee frugality, it enjoys a post-Fourth fireworks discount). Second, militia re-enactors convey the dependence of American independence on war (a fitting lesson from the descendants of George Washington’s military officers). Third, the text of the Declaration of Independence is performed as public oratory (John Taylor Gilman’s re-enactor has at times shared this honor with the local Boy Scout troop).  And fourth, since the festival’s inception, the broadside has always been made available for public viewing. It is, after all, the reason the festival exists.

 

Every year numerous historical inaccuracies are incorporated into the festival (among the most glaring: no revolutionary battle was fought here, and George Washington enjoyed a meal at Folsom Tavern in 1789, not in 1776). Much of the event is historical re-enactor fantasy and fairground kitsch. Nevertheless, what makes the festival fascinating is that it actually does celebrate historical accuracy in a keenly local way.

Regardless of their geographic distance from Philadelphia, most American cities and towns celebrate Independence Day on July 4. This small New Hampshire town celebrates American independence when the king’s subjects in Exeter would have gotten the news that they had been declared American citizens. If you can ignore the microphone, Gilman’s oration of the Declaration’s poetic statements of universal rights and its long litany of royal usurpations is still powerful. After nearly two and a half centuries, the enunciation of these words commands silence, raises goose bumps, and makes eyes water. The Declaration’s text still deserves its celebration. And, the nearly two-week wait for fireworks and festivities literally brings home the power of the broadside as an object. It is a concrete reminder that the Declaration was once a material thing, ink on paper that traveled by literal horsepower. As a public history lesson, the festival historicizes “timeless” documents and our expectations of instantaneous communication. It reminds us of the roles of tyranny, force, and eloquence in the creation of the American nation.

 

Whether or not the document on display on July 16, 2016, is the same piece of paper that took nearly two weeks in the saddle to be delivered to Exeter on July 16, 1776, it is an original printing of the Declaration of Independence. And it was found in a small town that often feels like it exists outside history. No longer a bustling seaport, Exeter has become an academy town where elite high school students escape the world to focus on their educations. The festival reminds us that Exeter was once a more politically important place. Exonians at the festival celebrate their town’s outsized past by looking at and hearing a work of national creation that traveled a long way and a long time to get to them.

 

 Acknowledgments

As an early American historian, I relished the novel delight of interviewing my sources for this article, and want to express my gratitude to Carol Walker Aten, Tracey McGrail, Stephen Jeffries, Bob Mitchell, Laura Martin, Victoria Su, and Emma Bray. I am also deeply indebted to several archivists: Rachel Passannante of the American Independence Museum, Barbara Rimkunas of the Exeter Historical Society, and Brian Burford of the New Hampshire State Division of Archives and Records Management.

 

Further Reading

For the history of the Declaration of Independence, see Pauline Maier, American Scripture: Making the Declaration of Independence (New York, 1997); David Armitage, The Declaration of Independence: A Global History (Cambridge, Mass., 2007); Frederick R. Goff, The John Dunlap Broadside: The First Printing of the Declaration of Independence (Washington, 1976); and online resources based on the “Declaration Database” project at the Center for American Political Studies at Harvard University.

For the history of Exeter, see W. Jeffrey Bolster, ed., Cross-Grained & Wily Waters: A Guide to the Piscataqua Maritime Region (Portsmouth, N.H., 2002); and Barbara Rimkunas, Hidden History of Exeter (Charleston, S.C., 2014). Early histories of the town were written by Charles Henry Bell in 1876 and 1888 and are available online.

 

This article originally appeared in issue 18.1 (Winter, 2018).

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Jessica Lepler is an associate professor of history at the University of New Hampshire. Her first book, The Many Panics of 1837: People, Politics, and the Creation of a Transatlantic Financial Crisis, won the James H. Broussard Best First Book Prize from the Society for Historians of the Early American Republic.

 

With Defiance of the Patriots: The Boston Tea Party and the Making of America, Benjamin Carp gives us a fresh, insightful perspective on why the Boston Tea Party occurred and its outcome. Although the outlines of this chapter in provincial American history are well defined, its details have remained obscured, largely because most of the actual participants honored their oath of secrecy. This tightly structured monograph goes a long way toward clarifying how Boston’s Whig leaders shaped public opinion to oppose Parliament’s revenue-generating tax policies, and how they put their ideals into action by working with the town’s mechanics to destroy the “obnoxious weed.” Most importantly, Carp wants us to see this event as the catalyst that unified the British Empire’s thirteen North American colonies against Parliament’s tax policies and placed them on a course that led inevitably to independence.

Carp begins with a chapter devoted to the history of tea as a global commodity and the British East India Company. It establishes that tea was the commodity upon which England’s empire was built. The survival of the company that distributed it and its consumption by English colonists in colonial America was thus essential to the Empire’s economic health. This chapter, and much of the history that is woven throughout the narrative, highlight that the destruction of the East India Company’s tea on December 17, 1773, in Boston was not just a local rebellion, but one attended with global consequences. Other thematic chapters pursue how tea and the Tea Party affected women, enslaved people, and Native Americans. These draw heavily from secondary sources, and consider the Tea Party from somewhat unexpected, but important and informative, perspectives. Carp explores New Englanders’ relationships with Native American peoples to illumine how Bostonians who observed the Tea Party would have interpreted participants’ Mohawk disguises. His reflections on the ties between tea, sugar, and slavery remind us that New England was every bit as involved in slavery and the slave trade as were the southern colonies.

Most of Defiance of the Patriots, however, is structured around the men who actually participated in the Tea Party—those who planned it, those who managed it, and those who provided the muscle. Surprisingly, Carp’s Boston Sons of Liberty are not the vanguard of the revolutionary era, as we have often seen them depicted, but rather a lot of wayward republicans. In public, they opposed taxation without representation in Parliament, but in private, they couldn’t resist a good cup of tea. Apparently, Boston’s merchants were less reliable in boycotting the purchase of East India Company tea imports than were their counterparts in New York and Philadelphia. Indeed, in what is probably his most original contribution, Carp argues that it was guilt over past lapses in republican virtue, reinforced by incendiary newspaper articles from Philadelphia and New York, that drove Boston’s Whigs to their more radical response in December 1773. Unlike Charlestown, Philadelphia, and New York, the tea consigned to wholesalers in Boston was destined to go awry, per Carp, because Boston’s Sons of Liberty needed to demonstrate their commitment “to defend American liberty” not only to Parliament, but also to patriot leaders in the other American colonies, who worried that Boston’s Sons of Liberty could not be relied upon (174). Their need for redemption, coupled with a royal governor who lacked leverage in the arena of persuasive politics and a Council more interested in being re-elected than upholding the law, created the recipe for one harbor of salt-water tea.

 

In this respect, Defiance of the Patriots could have been titled “Defiance of the Tyrants.” Carp summarizes succinctly the myriad political, economic, and moral arguments Boston’s Whigs used to justify their opposition to the Tea Act and destruction of the East India Company’s tea. Despite weeks of extra-legal meetings of the “Body of the People,” Boston’s Sons of Liberty felt they could not trust pro-government merchants and Bostonians in general to honor the non-importation and non-consumption agreements. Rather than risk the possibility that popular commitment might waver, as it had in the past, Boston’s Whig leaders determined that the tea stored in the holds of the Beaver, Eleanor, and Dartmouth must be destroyed (126). As Benjamin Franklin observed, though, the patriots destroyed private property to demonstrate their objections to public policy (191). In their zeal to secure one liberty, they violated another liberty of fellow British citizens, who had a legal right to sell, buy, and drink British tea. Whatever influence their arguments against taxation without representation might have held with members of Parliament was lost in the face of potential economic catastrophe for the Empire.

Defiance of the Patriots is meticulously researched and rich in detail. The sheer volume of data could have overwhelmed readers, but Carp handles it deftly and assembles a coherent, engaging story. Carp’s narrative is most interesting where it adds voices from Philadelphia, New York, and Charlestown, emphasizing that boycotting tea as a political statement was not limited to Boston, but rather a pan-colonial concern. Here, it would have been interesting to consider how the Empire’s other colonies (Nova Scotia, West Indies) responded to the Tea Act. Focusing upon only the thirteen colonies that eventually became America assumes more than was known in 1773. Also, even though Carp situates Defiance of the Patriots within the broader context of worldwide trade in exotic goods, the records of Parliament are never referenced. Parallels between Parliament’s need to develop a political solution to rescue the Empire’s largest corporation from bankruptcy and the world’s economic condition today will be obvious to even the most casual reader. Parliament’s struggle to craft global economic policy is absent. The Tea Act appears whole cloth, and Parliament’s members are portrayed as tyrants, intent on lining their own pockets. In this regard, it should be noted that Defiance of the Patriots is somewhat celebratory in that it tends to cast the Sons of Liberty as heroes, and Parliament and the East India Company as villains. Massachusetts’ royal governor reported to “masters in London” (183), and patriots refused to drink tea “rather than meekly submitting to the whim of royal officials” (126). Language of this sort is found throughout the text. It makes for popular reading among the general public as it reinforces familiar stereotypes, but it also cheats knowledgeable readers of the complexity involved in crafting global economic policy and the fluidity of the relationships between the various colonial legislative bodies and Parliament.

Although Carp situates the Boston Tea Party within a global framework, he does not discuss the long-term causes that led to the constitutional crisis over whether Parliament or the colonial legislatures controlled the prerogative to tax within the colonies. The narrative begins in 1765, when America’s port cities were already suffering economically. No mention is ever made that the colonies, New England especially, had already been a point of contention between Massachusetts’ General Court and Parliament for more than a century. This truncated starting point and omission of other historical reference points could be charged to an editor’s desire to limit the book’s scope and length, but engagement of the politics that preceded the era of Imperial Crisis would seem to be essential for a monograph that seeks to explicate why Boston’s patriots believed they were justified in their defiance of British law.

These limitations pale, however, when compared to what Carp has achieved with Defiance of the Patriots. This book has much to offer to professional historians as well as history buffs. It is encouraging to find that, even with an event as iconic as the Boston Tea Party, the past still has much to tell us—and can even surprise us—if we approach it from an informed but unassuming perspective.

 

This article originally appeared in issue 11.4 (July, 2011).

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Christine LaHue is a Ph.D. candidate at the Ohio State University, where she is completing her dissertation, The Resurrection of John Wise: Congregational Republicanism and Popular Mobilization, 1688-1772. Ms. LaHue readily confesses that she is a committed tea-drinker, and would likely have become a lapsed republican, as did so many well-intentioned patriots.

Part I

In 1786, fifteen-year-old Barbara Witmer suffered a horrific assault. A group of men kidnapped her from her Pennsylvania home at gunpoint, and one of these men repeatedly raped Barbara before her family and friends managed to rescue her. Her rescuers quickly brought Barbara to a local justice of the peace to press charges against the attackers, but she had difficulty telling the magistrates about her ordeal. One justice of the peace asked her “8 or 10 times to begin” her testimony. When she said nothing, the justice decided that Barbara was “confused” about what had happened, so he gave up and went to bed. Another magistrate, however, seemed to understand that Barbara might be too traumatized to tell her story. Rather than immediately categorizing Barbara as a confused and therefore unreliable witness, he saw her as “very bashful” about what had happened to her. This justice “spoke very mildly & told her no one could hurt her for telling the Truth.” After waiting through ten or fifteen more minutes of Barbara’s silence, the magistrate called in her mother and uncle to provide support, and Barbara hesitatingly told her story. Eventually, six men were convicted in the attack. The man who had raped Barbara received a death sentence.

Because the rape of Barbara Witmer was an obvious and brutal assault, it made a relatively easy case for legal prosecution. More than a dozen witnesses testified that Barbara had screamed for help as the men carried her away at gunpoint, that she had seemed terrified, and that she had immediately run to her rescuers when they found her being held captive in a nearby house. Together, these witnesses removed one of the biggest barriers to the successful prosecution of rape cases in early America: the question of whether the woman had consented to the man accused of raping her. Given that the penalty for rape was a death sentence in colonial America and up to twenty-one years in prison in the early republic, courts required a woman to be exceptionally convincing in her accusation of forced sexual assault. Researchers in women’s and legal history over the past few decades have discovered a fair amount about the courtroom prosecution of rape and other sexual crimes in early America. Especially by the eighteenth century, courts seemed loathe to prosecute many rape cases, and women often had great difficulty proving to an all-male jury that they had been raped. But how did such an intimate crime—with its horrifying blend of sex and violence—ultimately become part of a public courtroom proceeding?

Barbara Witmer’s experience reminds us that obstacles to successfully prosecuting rape lay as much out of the courtroom as in it. The case against Barbara’s attackers was clear cut, she had supportive family members who encouraged prosecution, but Barbara still had great difficulty telling her story to legal officials. Stories like Barbara’s invite us to investigate exactly how assaulted women made their way to the criminal justice system. My examination of more than nine hundred incidents of sexual coercion across British America between 1700 and 1820 shows several consistent patterns in the ways that women, families, and communities transformed private sexual assaults into public prosecutions. Layers of unwritten cultural practices shaped women’s roads to legal recourse. While bringing an incident of rape to legal officials was undoubtedly challenging for all victims, ironically, the cases that might be most successfully prosecuted were often the most difficult for victims to bring to court.

After a sexual attack, a woman would rarely pick herself up and run to the nearest justice of the peace to file a legal complaint: bringing an official complaint was less often a victim’s immediate reflex than the end point of a series of decisions to share her misfortune with family and community. Unlike the assailants in Barbara Witmer’s case, most men committed sexual attacks without witnesses, so a victim had to independently make the difficult decision to tell someone what had happened to her. And a woman who had been sexually assaulted might have a variety of reasons to keep the attack secret. An early American double standard that held women responsible for engaging in any sexual behavior outside marriage probably encouraged women to blame themselves for not avoiding attack. Or, like Barbara, they may have been afraid of retribution from their attackers, or embarrassed at the thought of telling intimate sexual details to male court officials or jury members.

The reactions of the first people a woman told about an attack greatly influenced whether she would bring her claim to legal officials. If they did not believe her story they might encourage her to keep her secret. Even when neighbors and kin believed a woman’s account, they might still think it best to avoid public legal recourse, fearing public reaction, the effect on the victim’s reputation, or the legal system itself. When family members or friends did pursue judicial redress, a husband, father, master, or other male household head would generally accompany the woman to court. Because women depended on this kind of male support, daughters raped by their fathers, or servants raped by their masters, might find legal recourse especially difficult to attain. Thus, multiple factors—a woman’s relation to her attacker, the reaction of those around her, and her own ability to tell others about intimate details of a sexual assault—influenced whether rapes ever came to the attention of early American courts. This extended pre-legal process not only meant that many sexual assaults might never come to the attention of a criminal justice system, it meant that the very cases most likely to result in conviction (such as fathers’ abuse of their daughters) were often the least likely to wind up before a jury. Exploring how rapes came to court helps us to examine the surprisingly circuitous relationship between acts of sexual coercion and the prosecution of rape in early America.

Part II

Unlike the attack against Barbara Witmer, most sexual assaults did not occur in front of witnesses. Accordingly, victims had to make an initial decision to tell about their suffering, and they often only did so with significant prodding from family or close friends. In 1804, Kentuckian ‘Franky’ Tomlinson told no one about her uncle’s sexual assault on her for at least a week, perhaps because she was afraid to let her parents know what her father’s brother had done to her. After her mother wondered why the uncle skulked near their house “in the weeds or in secret places more than she thought necessary,” Franky broke down and confessed that the uncle “had ruined her forever.” Franky used the opening provided by her mother’s comment about the uncle’s odd actions to admit that he had attacked her. Perhaps her mother raised the issue of the uncle’s strange behavior because she suspected, even subconsciously, that something was wrong: Franky’s mother would later recall that her daughter “even in her sleep would cry out [for her uncle] to let her alone.”

Like Franky, many single women told their stories only after others began to suspect some problem. Several men sexually assaulted Mary Anderson in New York City in 1754. She did not mention the incident to anyone until one of her attackers asked if she had gone to a justice of the peace yet to complain. Overhearing the conversation, Mary’s mother demanded to know what had happened and took Mary to file a complaint. In an 1812 Philadelphia case, Deborah Williams testified that “I don’t know that I shd have said any thing” about being raped if her master had not questioned why she looked so disheveled. Questions from astute family and household members could be the first step in encouraging a woman to bring charges against a man who had sexually assaulted her. Victims without interested, aware, or sympathetic family members might suffer in silence, and their cases might never reach court.

And there was often good reason for such silence. Young girls who were sexually assaulted might hesitate to tell anyone about the attack because they often believed their attackers’ threats of great harm should they do so. In nineteenth-century Philadelphia, John Kinless told four-year-old Mary McElroy that he would “give her to the sweep” if she told anyone that he had raped her, and Mary said nothing for nearly a month. Five-year-old Sally Briggs was covered in blood after a sexual attack in Virginia in 1808, but would not tell her mother anything until her mother could assure her that “there was no danger of his killing her.” After an assault in New York in 1810, six-year-old Sally Carver kept silent because her attacker had “told her not to tell and if she did tell he would buy two cow skins and two horse whips and would Twist them up together and would whip her—also that he would borrow a knife . . . and would cut her ears off and her head.” While older women might recognize that community involvement and legal prosecution could protect them from retribution, young girls were especially susceptible to believing that the men who had already hurt them so much could make good on such horrific threats. Ironically, cases involving child victims were often the most successfully prosecuted because few jurors would question whether the young girl had chosen to have sexual relations with her attacker. But because fear of their assailants prevented many young girls from telling anyone that they had been raped, such cases might be significantly underrepresented in early American courts.

Similarly, even though incestuous sexual assaults were some of the most fiercely prosecuted rapes, daughters who endured ongoing sexual abuse from their fathers had particular difficulties sharing their suffering with others. In early-eighteenth-century New England, Hannah Hood could not see how to complain against her stepfather. She recounted, “i knew not what to do. I went to one house and to another and to a third thinking to declare my grife to them, but when I came thear, thear being strangers to me, I had not the power to speake, but sat downe and cry.” A century later, New Englander Phoebe Bailey also could not admit that her father had been sexually abusing her for years. Her mother “often saw her with cheeks bedewed with tears, on account of his new and astonishing behaviour,” but recounted that “such were [Phoebe’s] fears of him, that she did not dare to talk with me, or any other person upon her situation.” Despite their obvious suffering, these young women could not find a voice to complain against the man who was meant to be their protector, and such sexual abuse often went on for years without discovery. These family dynamics might sound somewhat similar to modern incestuous sexual abuse. However, while daughters in both the eighteenth and twenty-first centuries might hesitate to accuse their fathers of rape, daughters in the eighteenth century were at a further disadvantage: their fathers provided a necessary link to the all-male legal system, and without the support of a male head of household, the victims could not easily pursue legal redress.

Daughters of abusive fathers had additional incentives to keep the secret of sexual assault within the household. As household heads, fathers had not only the social power to scare their daughters into submission, but the legal right to punish disobedient daughters. Household heads also generally had the ability to make their own voices heard over the claims of their dependent children. In Connecticut in 1725, Sarah Perkins testified that her father “threatends he would have her hand cut off for being a dissobedient child and to disinherit her” because she would not agree to have sexual relations with him. A century later, Betsy Wheeler’s father told her to keep his attack a secret or he would “kill me in the most cruel way he could think of.” Indeed, Betsy did not complain of his assaults until after her mother had ordered him out of their house. Only when she had enlisted her mother as an ally and her father was no longer an immediate threat could Betsy speak about his attacks. Such fears of a father’s retribution were not unfounded. In 1800 in New York City, Maria Cottle may have avoided the judicial system because she believed her father’s threat that “he would kill her if he should be hung for [his rapes of her].” Instead Maria ran away. But when her father caught her, he “whipped her severely . . . and kept her chained for about a week.” When an attacker was a seemingly all-powerful father figure, his retribution might be worse than anything a victim might gain from sharing her story of sexual abuse.

Daughters of abusive fathers also had to consider whether even successful judicial redress would necessarily improve their lives. While Maria ultimately successfully prosecuted her father for repeated sexual assaults, his conviction meant that she, now homeless, was put in the almshouse. Given the possibilities of physical retaliation, homelessness, or poverty, keeping sexual assaults a secret sometimes made sense. Women needed to carefully weigh these kinds of serious repercussions against the possible gains that could come from public knowledge of sexual abuse.

Even when victims managed to tell neighbors or family members about their ordeal, others’ knowledge of the assault did not necessarily insure swift legal action. Family and friends might still think that the risks of prosecution outweighed its potential benefits. Some did not want to bring charges that might take the life of the rapist, some might fear that the jury would not believe the victim’s story, and some worried that a public trial would cause embarrassment or dishonor to the victim and her family.

Accordingly, family and neighbors sometimes betrayed a willfulness not to know what had happened to an assaulted woman. After Rachel Davis’s master repeatedly sexually assaulted her in early-nineteenth-century Pennsylvania, Rachel told her sister what had happened. But when the sister tried to enlist a female neighbor’s help, the neighbor refused, saying “that I wanted to hear no more.” Sometimes family members could not bear to learn that a loved one had suffered the horror of rape. A man from a nearby plantation raped Lucinda Jeffries in early-nineteenth-century Virginia. When her stepfather found her by the side of the road, he seemed unwilling to learn the full extent of the assault. He told Lucinda that “he hoped [the attacker] had not effected his purpose,” and Lucinda “made no reply for some time.” Perhaps her stepfather realized that his own need to minimize the damage done to Lucinda inadvertently made her unwilling to admit what had happened. When he changed his approach and “told her to tell him the truth,” Lucinda acknowledged that she had been raped. Other family members might mix a need to deny an assault with disbelief that someone they knew could commit a rape. When Christiana Waggoner told her husband that a neighbor had raped her in Revolutionary-era Pennsylvania, her husband’s immediate response was that “he did not think [the neighbor] would do such a Thing.”

A general reluctance to think that a friend could commit a horrific sexual attack, a neighbor’s desire not to get involved, or an aversion to putting words to one’s worst fears might all contribute to a community’s silence about a sexual assault. Moreover, rape was a difficult crime to prosecute successfully in early America: in the nearly two hundred known rape prosecutions against white men from 1700 to 1820, fewer than one-third resulted in a guilty verdict. Far more charges were dismissed, settled out of court, or led to convictions for only lesser crimes. Since court days were public events, most community members would have known the difficulties that a rape victim faced and factored that knowledge into their decision to encourage or discourage legal redress for a sexual attack.

Family members might also try to seek redress outside the legal system, redress that could range from private settlements to their own version of justice. One victim explained that her husband had planned to “make Some arrangement with [her attacker]—therefore she did not Lodge her Comp[lain]t” with a justice of the peace. Some attackers tried to avoid legal prosecution by making their own amends. After James Dunn tried to force Sylvia Patterson to have sex with him in early-nineteenth-century New York, he tried to avoid punishment by offering a watch as a down payment on a future monetary settlement.

 

Some family members took more direct (and more illegal) action to derail a court prosecution: The family of Franky Tomlinson decided to hide Franky until her uncle could be acquitted of raping her, promising to “send back for her” when the trial ended. The Tomlinsons knew that without Franky’s testimony, the prosecutor could not prove a rape charge. This case highlights the difficult position of a rape victim who accused a family member, well-liked neighbor, or respected community member. Even when family and friends believed her story, they might not want the attacker to suffer the full wrath of the criminal justice system.

Because male household heads typically accompanied female victims to court, fatherless families faced additional obstacles to judicial redress. Mothers who were household heads seemed particularly hesitant to usher their assaulted daughters through the judicial process. Mary Anderson’s mother eventually took Mary to complain before a magistrate, but told him that if the men who had attacked her daughter would only give assurances not to bother Mary, she would prefer to drop all charges. In Boston in 1817 another mother baldly refused to go with her daughter to file a complaint about a sexual assault, explaining that “I am a poor woman and did not wish the trouble.” Especially for lower class women without husbands, the legal system could be a site of intimidation rather than salvation. Neither assault victims nor the women to whom they turned with their stories necessarily thought the legal system provided an easy or satisfying resolution.

But however difficult their circumstances, at least assaulted white women had the option to turn to an early American court. Even unequivocal social support, however, would not lead to legal prosecution for one group of early American women: enslaved women had virtually no judicial recourse for sexual assaults. Legally, enslaved women could bring a claim of rape against a white or black man to the attention of an early American court. However, early American statutes often would not allow enslaved women to testify against white assailants, and a rape case could rarely be prosecuted without a victim’s testimony. Accordingly, such prosecutions were exceptionally rare. Indeed, we know of no white man convicted for raping an enslaved woman in all of early American history.

The scant evidence that survives suggests that, like their white counterparts, enslaved women who were raped would first turn to family and community members about their mistreatment. Unlike their free and white counterparts, however, enslaved women did not usually have kin or neighbors who could serve as liaisons to the legal system. Without legally recognized fathers or husbands, slaves could not rely on a patriarchal figure to represent them at early American courts. And slaves might suffer greatly if they told others about a white man’s—let alone a master’s—sexual misdeeds. Former slave Lewis Clarke recalled that his master repeatedly sexually assaulted his sister. When Lewis’s sister complained to other slaves about their owner’s behavior, the “master was so mad . . . that he sold her right off to Louisiana.” In her famous narrative of her time in slavery, Harriet Jacobs recalled that other slaves knew of her master’s sexually abusive acts, but that “they were aware that to speak of them was an offence that never went unpunished.” The oppressive realities of slavery denied most African American women the possibilities of social or legal assistance in cases of sexual abuse. Denied patriarchal protection by virtue of their bondage, enslaved women represented the most extreme example of the difficulties all early American women faced in transforming a sexual attack into a rape prosecution. While many victims who had a hard time bringing their attacker to court might at least face a relatively sympathetic court system, enslaved women suffered from the worst of both worlds: community support could not render much assistance, and institutional redress was permanently denied to them.

Part III

When Barbara Witmer eventually testified against her assailants in court, their lawyer questioned why she had initially refused to tell her story to the first justice of the peace. She answered, “I was frightened . . . I had not the Courage to speak before him.” Women who were sexually assaulted in early America certainly needed courage to bring their complaint to a public forum for judicial redress. But the criminal prosecution of a sexual attack required more than individual courage. The decision to prosecute a sexual assault was a personal, legal, and, perhaps most importantly, social decision.

The legal prosecution of rape involved more than what went on in front of lawyers, judges, and jurors. Of crucial importance were the extensive negotiations that preceded any direct involvement of the judicial system. Despite the numerous obstacles, many women persevered and got their day in court. But untold numbers of other sexual assault victims never completed the long road to the courtroom door. By tracing the entire process from sexual coercion to prosecution, it’s possible to realize how much of early American women’s sexual abuse might remain hidden—not just from their families, communities and legal system—but also hidden forever from the historian’s view. Given that some of the most easily prosecutable cases were often the most difficult for victims to bring to early American courts, we should not assume that rape was simply an underreported crime. Rape appears to have been (and very well may still be today) underreported in very specific and systematic ways.

 

Further reading: Quotations in this article comes from manuscripts at the Connecticut State Library (Hartford), Kentucky Library and Archives (Frankfort), New York Municipal Archives and New York Hall of Records (New York), Historical Society of Pennsylvania (Philadelphia), Library of Virginia (Richmond), as well as from a variety of published and reprinted sources. For more on rape in early America, see Cornelia Hughes Dayton, Women Before the Bar: Gender, Law, and Society in Connecticut, 1699-1789 (Chapel Hill, 1995), 231-84; and Marybeth Hamilton Arnold, “‘Life of a Citizen in the Hands of a Woman’: Sexual Assault in New York City, 1790-1820,” in Passion and Power: Sexuality in History, edited by Kathy Peiss and Christina Simmons with Robert A. Padgug (Philadelphia, 1989). On servants’ and slaves’ reactions to masters’ sexual abuse, see Sharon Block, “Lines of Color, Sex, and Service: Comparative Sexual Coercion in Early America,” Sex, Love, Race: Crossing Boundaries in North American History, edited by Martha Hodes (New York, 1999), 141-63.  

 

This article originally appeared in issue 3.3 (April, 2003).

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Sharon Block, assistant professor of history at University of California, Irvine, is the author of He Said I Must: Sexual Coercion in Early America, forthcoming from the OIEAHC imprint of the University of North Carolina Press.

When Rip Van Winkle stumbled, gray-bearded and confused, into his Hudson River town, one of the first indications that his little village had changed dramatically was a tavern sign. “He recognized on the sign . . . the ruby face of King George, under which he had smoked so many a peaceful pipe; but even this was singularly metamorphosed. The red coat was changed for one of blue and buff, a sword was held in the hand instead of a scepter, the head was decorated with a cocked hat, and underneath was painted in large characters, GENERAL WASHINGTON.” Washington Irving’s choice of a tavern sign to symbolize the social and political transformation of Van Winkle’s village accurately reflected the central place these objects had in the streetscapes of colonial towns. Tavern signs advertised the availability of food, drink, and lodging, but they were also meant to entertain and, sometimes, to broadcast the tavern owner’s political sympathies. The use of tavern signs to display political alliances accelerated during and after the Revolution. But in Dedham, Massachusetts, in the late 1740s, tavern owner, almanac writer, physician, and common lawyer Nathaniel Ames used his sign to skewer five of the province’s most powerful politicians: the justices sitting on the Superior Court of Judicature, Massachusetts’ highest court of law.

Nathaniel Ames was well known in provincial Massachusetts–and perhaps all of New England–as the publisher of the humorous, satirical, somewhat useful, and enormously popular Ames’ Almanack (fig. 1). Ames, born in 1708, began publishing the periodical when he was just eighteen years old and living in Bridgewater, Massachusetts. Around 1730 he moved to Dedham, approximately twelve miles southwest of Boston, and continued to publish the almanac until he died in 1764. His sharp-tongued commentary on Massachusetts’ politics, religion, and social life made Ames’ Almanack a bestseller. By the 1760s, according to one estimate, he was selling almost sixty thousand volumes a year.

 

In addition to almanac writing Ames practiced medicine. In court documents he called himself a “physician” and he regularly visited patients, dispensing medicine, performing surgeries, and giving advice. Most likely he learned his craft from his father, “Captain” Nathaniel Ames (1677-1736) of Bridgewater who was a mathematician, astronomer, and “physician,” but books also played a role in the younger doctor’s practice. Nathaniel II’s estate inventory lists approximately twenty-eight medical volumes including “Turner’s Surgery” and “Keil’s Anatomy.”

His move to Dedham brought Ames closer to the intellectual ferment of Boston and Cambridge, but it also, ultimately, brought him an economically and politically strategic position as a tavern keeper. In 1735 Ames married Mary Fisher, the daughter of Captain Joshua Fisher, who had died in 1730. Captain Fisher was the master of a Dedham ordinary (as taverns were called) that had been in business perhaps as early as 1658. Taverns were key sites for economic, social, and political activities in seventeenth- and eighteenth-century New England towns (figs. 2, 3). They served up food, drink, lodging, entertainment, news, and gossip to both townspeople and travelers. Most significant, they were vitally important public spaces–places to conduct business and communicate information. In the county seat, or “shire” towns, the courts of law often sat in taverns or in meeting houses until the shift to purpose-built courthouses at the end of the eighteenth century. In all towns, local justices of the peace held “justice’s courts” for adjudicating minor offenses and disputes in tavern rooms. As a result of their proximity to legal proceedings, many tavern keepers worked as common lawyers in addition to running their hostels. Much to the chagrin of professionalizing lawyers who worked to root out these “pettifoggers,” or untrained advocates, tavern keepers’ physical location at the center of business and legal activity poised them perfectly for representing clients at justices’ courts, filing writs and appeals, and keeping track of fees and accounts. This confluence of functions–mercantile activities, judicial proceedings, information exchanges–made tavern rooms significant sites for the creation and manipulation of public opinion, and blessed tavern keepers with lucrative opportunities for participating in a wide variety of social, economic, legal, and political exchanges.

 

Nathaniel Ames was no different. He worked as a common lawyer in addition to publishing almanacs, tending the sick, and running his late father-in-law’s tavern with his wife and mother-in-law. Whether owing to his close reading of the law or a sheer, dogged determination to win his causes, he was somewhat successful as a common lawyer. His estate inventory taken in 1765 itemized a collection of law books valued almost as much as his medical treatises. Notable volumes include “Coke’s Institutes Abriged” and Giles Jacobs’s, The Law Dictionary.

Ames needed these books because he seemed constitutionally unable to stay out of court or to accept an unfavorable ruling. For instance, in 1735 Ames became embroiled in a dispute with housewright John Fisher of the neighboring town of Needham over alterations to Ames’s dwelling house. The contract for the work included a clause requiring Fisher to pay Ames £300 if the job wasn’t finished in three months. Unhappy with the result, Ames sued Fisher and when the court ruled against him, Ames appealed to the Superior Court of Judicature only to lose again. In February 1740, Ames went back to the Superior Court arguing that the “judgment is wrong and erroneous and ought to be reversed.” The court continued the case from term to term, perhaps hoping that the disputants would settle it between themselves, but finally referred the case to arbitrators who awarded Ames £98 in August of 1740. Five years and four lawsuits later, Ames had won his case but less than one-third of his damages.

During this time a decidedly more complex legal issue began to occupy Ames’s court calendar. His wife Mary Fisher was the beneficiary of her father’s estate, which included the tavern and various pieces of property in Dedham. In his 1729 will Joshua Fisher gave his wife Hannah a life estate in the property that would go to Mary at the time of Hannah’s death or remarriage. Mary and Nathaniel had a son named Fisher in October 1737, but Mary died two weeks after giving birth and Fisher died the following September. After his son’s death, the probate court assigned Nathaniel as administrator and sole beneficiary of the infant’s estate, which, presumably, included all the property baby Fisher had inherited from his grandfather through his mother. Mary’s relatives, however, did not agree that the property could ascend back to Nathaniel, but, rather, that it should descend to the “next of kin to Fisher”–his cousins and their children.

Of course, during her lifetime, Ames’s mother-in-law Hannah Fisher controlled the estate, but clearly trouble was brewing. In September 1744 Ames complained to the criminal court that his late wife’s sister, Judith (Fisher) Simpson, had assaulted him and “took his hat worth 20 shillings and his wigg worth forty shillings from off his . . . head and threw his said hat down upon the ground and carried away his said wig.” The criminal complaint was dismissed but Ames sued Simpson for damages to the hat and Simpson’s husband countersued Ames for damaging his wife’s reputation. Although Ames won both cases, Simpson appealed to the Superior Court, which referred the case to arbitrators who found all the suits “vexatious and litigious” and ordered the court costs to be split between the parties and the “wigg to be returned.”

In December 1744 Hannah Fisher died and the battle over the Fisher estate was joined in earnest. In July 1745 a scuffle broke out in one of the hay fields. John Simpson, Benjamin Gay (husband of Mary’s sister Hannah), and Samuel Richards (husband of Mary’s late sister Rebecca) charged that Ames had stolen hay from their field. Ames quickly countersued arguing that it was his meadow and Richards, Gay, and others “did enter the close of Nathaniel Ames . . . and assaulted one Catoe a Negroe of said Ames.” The court ruled in favor of Ames, but in the meantime Benjamin Gay and his wife had taken physical possession of a large portion of the estate requiring Ames to sue again to recover his property and reestablish his claim to the Fisher estate.

The arguments in Ames v. Gay, et al. rested on a tension between English common law and Massachusetts Province Laws. As historian Carole Shammas explains, “In the common law, only descendants could inherit, not ancestors, and heirs had to be of the full blood. A father or grandfather could not take possession of the property.” On these common law principles rested the argument that the estate of Captain Joshua Fisher should descend to Mary’s sisters’ children–the Richards, Gay, and Simpson families. Nathaniel Ames, however, pointed to a Massachusetts Province Law of 1692 entitled “An Act for the Setling [sic] and Distribution of the Estates of Intestates,” which stated that estates should pass equally to “every [one] of the next of kin of the intestate, in equal degree . . . and if there be no wife all shall be distributed among the children; and if no child, to the next of kin to the intestate in equal degree . . . and in no other manner whatsoever.” Ames was certain that this law applied to the Fisher estate–that after baby Fisher’s untimely death he was the “next of kin.”

The case Ames v. Gay, et al. commenced in the Suffolk County Court during the October 1746 term. This court found for Gay and awarded him court costs, an action that had the effect of overturning the probate judge’s decision and awarding the entire estate to Gay. Ames appealed to the Superior Court the following February, when the court found again for Gay, confirmed the judgment, and charged the costs of court to Ames. There the dispute stood until August 1748, when Ames appealed again to the SCJ for “recovering judgment against the said Benj. Gay for restitution of the [court] costs and for possession of the premises demanded in the original writ.” The Superior Court jury, unclear as to the point of law, referred the case back to the justices who, fortunately for Ames, ruled in August 1749 that the Province Laws took precedent over the common law. They restored the Fisher estate to the almanac author.

The verdict, however, was not unanimous. Ames was clearly stung by the dissent of two justices: Chief Justice Paul Dudley and Justice Benjamin Lynde, a newcomer to the bench. As the victor, Ames had no recourse at the bar. But he did have recourse in the court of public opinion. At his tavern in Dedham, Ames put up a signboard that depicted the justices of the Superior Court of Judicature and the participants in Ames v. Gay. Although the object itself does not survive, a pencil sketch of the sign among the Ames Family Papers clearly shows Ames’s intent (figs. 4, 5). At the bottom of the sketch, a note reads “Sir, I wish I could have some talk on the above subject, being the bearer waits for an answer, shall only observe Mr. Greenwood thinks that can not be done under £40.”

 

 

In its overall design and dimensions the sign was typical of eighteenth-century Anglo-American commercial advertisements: rectangular in form with a carved top and bottom crest rail and two turned dowels supporting wood planks on which the image was painted (fig. 6).

 

Atypical, though, was the detailed scene of the court chamber in the Boston Town House (now the Old State House). The five Justices sit on a single bench beneath the wooden carved royal crest–a symbol of their authority as the king’s representatives (fig. 7).

 

The two dissenting justices, Benjamin Lynde at the far left and Paul Dudley occupying the chief justice’s position at the center of the bench, have their backs to the courtroom and, by analogy, their backs to the laws of Massachusetts. The three concurring justices, from left to right Richard Saltonstall, Stephen Sewall, and John Cushing, are facing forward consulting open books. The identity of the figures in the bench below the justices is a little more speculative, but presumably they represent participants in the trial. At the far left the defendant Benjamin Gay stands before a closed book labeled “Province Laws” and gestures toward the high sheriff holding the traditional emblems of office, his staves. To the right of the sheriff is the clerk of the court pointing toward the quill pen with which he will record the court proceedings. The figure to the far right is perhaps Ames himself with his lawyers pointing toward the books in which the applicable Province Law appears. At the top of the sign appears the legend “Nearest a Kin to Fisher” and at the bottom, the date “Aug. 18 1749.”

Ames’s sign might seem tame as political satire, but to Dudley, Lynde, and the other justices it was a severe affront. They ordered the sheriff to go to Dedham, take down the sign, and bring it back to the Boston court. No record of the sheriff’s findings is extant, but early Dedham historians assert that Ames was able to remove the sign before the sheriff arrived. The preliminary sketch and the court’s order for the sign’s removal are the only surviving pieces of evidence for Ames’s clever contempt of judicial authority.

The scene depicted on the signboard conveyed multiple meanings–none of them flattering to the court–and certainly Ames, his wit honed by almanac writing, crafted each subtle jibe. The sign celebrates his victory, but also pokes fun at the court, which presumably needed lengthy deliberations in order to arrive at the conclusion that Ames was his own son’s nearest kin.

His portrayal of Paul Dudley with his back to the courtroom is particularly insulting since a chief justice was traditionally the supreme authority over sessions of the Supreme Judicial Court. Ames must have relished his depiction of the imperious chief justice. The son of Joseph Dudley, who had served as governor from 1702-15, Paul Dudley received his legal training at one of the English Inns of Court. He was only the second Superior Court justice to have trained at the Inns of Court and been admitted to the bar. The first justice to receive formal legal training was Benjamin Lynde Sr., the father of Dudley’s rear-facing bench mate. Ames’s tavern sign, then, plays on the tension between lawyers with formal legal training like Dudley, and village tavern keepers and pettifoggers like Ames himself. The self-taught Ames sits assuredly in front of the law of the land, easily reading from an open book, while Chief Justice Dudley turns his back. Last, Ames surely was highlighting Dudley’s famous arrogance and royalist allegiances. When Dudley’s father arrived as governor in 1702 he brought with him a warrant from Queen Anne appointing Paul as the province’s attorney general–a prerogative hitherto claimed by the colony’s General Court. The Dudleys’ administration was thus dogged by charges of nepotism and accusations that they were trying to undermine the colonists’ liberties. The image of Paul Dudley turning his back on the Province Laws raised again the question of his loyalty to Massachusetts and its legal traditions.

Ames narrowly escaped the Superior Court’s wrath and managed to win his case in a court of law and, perhaps, in Dedham’s court of public opinion. He recognized that taverns, like almanacs, presented opportunities for contesting traditional authority by thinly cloaking that critique in humor or entertainment. His tavern sign, though ultimately ephemeral, was brilliant. The justices heard about the insult, but unable to see it for themselves, could not move against either Ames or his property. Customers drinking at the tavern must have toasted Ames’s victory in the contest of wits.

Perhaps his success with the sign also emboldened Ames to memorialize his struggle in a more traditional fashion. Ames Almanack for 1750 included verses “On a Judgment of Court obtain’d after a long Law-Suit.” Ames wrote,

Four times the Sun has in cold Pisces been,

The rising Pleiads have four Autumns seen,

Since I have stood th’ opposing Lawyer’s Tongue

Who puzzl’d Right, and Justify’d the Wrong.

Ames recognized that lawyers lived on words and their manipulation, but he also knew that images, particularly those located at sites of dense economic, social, and political exchange, could be just as powerful in shaping a critique of those “puzzl’d” and “Justify’d” words.

Further Reading: The best recent studies of eighteenth-century tavern culture are David W. Conroy, In Public Houses: Drink and the Revolution of Authority in Colonial Massachusetts (Chapel Hill, 1995) and Peter Thompson, Rum Punch and Revolution: Taverngoing and Public Life in Eighteenth-Century Philadelphia (Philadelphia, 1999). The best study of the material culture of taverns is Kym S. Rice, Early American Taverns: For the Entertainment of Friends and Strangers (New York, 1983). Earlier, more anecdotal studies, include Alice Morse Earle, Stage Coach and Tavern Days (New York, 1936) and Elsie L. Lathrop, Early American Inns and Taverns (New York, 1968). The Ames Family Papers at the Dedham Historical Society, Dedham, Massachusetts, contain the daybooks of Nathaniel Ames (1708-64) including “Medicines dispensed, 1737-50” and “Court Actions, 1740-53”; Ames Almanack, 1726-75; the diaries of Nathaniel Ames (1741-1822); and Family Papers (1758-1808). Court records for the cases involving Ames are found at the Massachusetts Archives, Boston, Massachusetts. They include: Superior Court of Judicature Record Books, Vols. 1740-45; 1745-47, and 1747-50; Suffolk County Court of General Sessions of the Peace, files, boxes 1707-49 and 1749-62; Suffolk County Court of General Sessions of the Peace Minute Books/Docket Books, 1743-54. Bibliographic information on law books published or available in the American colonies can be gleaned from Morris Cohen, Bibliography of Early American Law, 6 vols. (Buffalo, 1998). For discussions of property law and inheritance see Carole Shammas, “English Inheritance Law and its Transfer to the Colonies” American Journal of Legal History 31 (1987): 145-63 and Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill, 1986). For a discussion of Paul Dudley’s political and legal career see Steve Sheppard, “Paul Dudley: Heritage, Observation, and Conscience,”Massachusetts Legal History 6 (2000): 1-28. For a discussion of eighteenth-century court rituals and courtroom design see Martha J. McNamara, Courthouse Spaces: Architecture, Law, and Professionalism in Massachusetts, 1658-1860 (Baltimore, forthcoming). Lawyers’ use of language and performance in eighteenth-century courtrooms is explored in Robert Blair St. George, “Massacred Language: Courtroom Performance in Eighteenth-Century Boston,” Possible Pasts: Becoming Colonial in Early America (Ithaca, 2000): 327-56. Nathaniel Ames’s almanac prose has been edited and reprinted with annotation in Samuel Briggs, ed., The Essays, Humor, and Poems of Nathaniel Ames (Cleveland, 1891). For an analysis of Ames’s almanac writings see William Pencak, “Nathaniel Ames, Sr., and the Political Culture of Provincial New England,” Historical Journal of Massachusetts 22 (Summer 1994): 141-158. The lengthy and fascinating diary of Ames’s son, Nathaniel Ames (1741-1822) has been published with helpful introductory matter and appendices in Robert Brand Hanson, ed. The Diary of Nathaniel Ames of Dedham, Massachusetts, 1758-1822, 2 vols. (Camden, Maine, 1998). Early histories of Dedham include Herman Mann, Historical Annals of the Town of Dedham (Dedham, 1847) and Erastus Worthington, The History of Dedham (Boston, 1827). A more recent history is Robert Brand Hanson, Dedham, 1635-1890 (Dedham, 1976).    

 

This article originally appeared in issue 2.2 (January, 2002).

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Martha J. McNamara is an associate professor of history at the University of Maine where she specializes in cultural history and the history of New England.

History matters. Perhaps more to the point, how we craft history matters, whether we are historians or not. The Supreme Court proved this on June 12 when it issued its decision in Boumediene v. Bush. The case concerns habeas corpus, latin for “have the body” (as in a command by a judge to a jailor to “have the body in my courtroom and explain why you are restraining him or her”). In Boumediene, the question at issue was whether the government could strip federal courts of jurisdiction to entertain prisoners’ applications for habeas corpus. The Court broke five to four against the government, ruling that Congress had exceeded its authority. The case is sure to be a landmark. Many books will be written about it, and generations of law students will debate its merits. It will also prove the old dictum that hard cases make bad law. The issues in Boumediene are legion and the technical complexity formidable. Reasonable people can violently disagree on the correct legal outcomes warranted by the facts of the case.

Which is why history matters so. Both Justice Anthony Kennedy’s majority opinion and Justice Antonin Scalia’s dissent turn to the past to justify their interpretations of habeas corpus. In doing so, they demonstrate just how immediate the past can be—but also just how divisive it remains. Choosing between the five justices in the majority and the four in the minority is, in essence, choosing between two very different histories.

A little should be said about the background of Boumediene v. Bush. The invasion of Afghanistan produced a number of prisoners of war who the administration styled “enemy combatants” and shipped off to Guantanamo Bay. Subsequent intelligence operations, without any necessary connection to the Afghan War and often conducted by American client states, produced more so-called enemy combatants who were also sent to Guantanamo. The legal challenges began almost immediately. In Hamdi v. Rumsfeld, decided in 2004, the Supreme Court ruled that the executive branch lacked authority to hold U.S. citizens indefinitely without a legal hearing. In Rasul v. Bush, decided in the same year, the Court ruled that statutory habeas corpus extended to Guantanamo Bay, despite the government’s claims that the prison was not located on U.S. soil and thus was outside the federal courts’ jurisdiction. Whatever the de jure claims Cuba might have to sovereignty at Guantanamo, no writ except the United States’ runs there. It follows, the Supreme Court concluded, that habeas runs there too.

Unless, of course, Congress suspended habeas corpus. The Constitution empowers only Congress to do so, and even that power is provisional. Article I, section 9, paragraph 2—known as the “Suspension Clause”—expressly forbids Congress from suspending habeas corpus “unless when in cases of rebellion or invasion the public safety may require it.” In the wake of Hamdi and Rasul, however, Congress did not suspend habeas corpus. Rather, it passed in 2005 the Detainee Treatment Act, which established procedures for review of detainees’ status. In 2006, Congress passed the Military Commissions Act, which stripped federal courts of jurisdiction to consider detainees’ applications for habeas corpus on the grounds that detainees were enemy combatants and therefore under the jurisdiction of military tribunals. The Court’s majority opinion in Boumediene made this the threshold issue. Could Congress substitute military tribunals for civilian ones and effectively make an end run around the Suspension Clause?

No, said the Court, if only by the slimmest of margins. Justice Kennedy’s majority opinion stakes out special ground for habeas corpus, “one of the few safeguards of liberty specified in a Constitution that,” Kennedy notes, “at the outset, had no Bill of Rights.” If we were to rely on the text of the Constitution alone, Kennedy’s claim would be rather weak. The Suspension Clause does not grant an affirmative right to habeas corpus. It is housed in the same section in Article I that forbids Congress from, among other things, granting titles of nobility, preferring one state’s ports over another’s, and from meddling with the slave trade for twenty years. This is hardly the architectural design of a palisade for fundamental rights. Nonetheless, Kennedy stresses that the Suspension Clause should be regarded with special care by the courts. “In the system conceived by the Framers,” Kennedy writes, “the writ [of habeas corpus] had a centrality that must inform proper interpretation of the Suspension Clause.”

Such centrality is owed to the writ’s history. Although Kennedy traces habeas corpus back to 1215 and the signing of Magna Carta, the keystone to his arch sits squarely with the seventeenth-century struggle between the Stuart monarchs and Parliament. The Stuarts furthered their absolutist pretensions primarily by attempting to raise revenue without Parliament, thus freeing themselves of the need to share power with a representative institution. When subjects protested, King Charles I had them jailed. When Parliament convened in 1627 (a session called precisely because Charles proved unable to tax without consulting Parliament), it presented the king with the Petition of Right, which listed executive imprisonment “without any cause” as a grievance. Charles signed the petition, but—as Kennedy would have it—”a full legislative response was long delayed.” The troubles were not settled until the Habeas Corpus Act of 1679 cemented the “Great Writ” (as habeus would come to be called) into the foundations of the English constitution. Thereafter, the writ was perceived, as the great eighteenth-century jurist William Blackstone put it, as the “stable bulwark of our liberties.” Kennedy leaves no doubt as to the relevance of these events. “This history,” he writes, “was known to the Framers. It no doubt confirmed their view that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power.” The entire structure of the Constitution, Kennedy argues, divided powers to prevent their abuse, thus reinforcing the notion that habeas corpus was a writ to be defended by the judiciary against surreptitious attempts to subvert it by either of the other branches.

Kennedy is close to the truth here. The founding generation understood the centrality of habeas corpus and also something of the “pendular swings to and away from individual liberty.” Theirs was an intellectual tradition deeply skeptical about the viability of free states. The history of republics, after all, was not an encouraging one. Revolutionary-era Americans who familiarized themselves with Walter Moyle’s Essay upon the Roman Government or Walter Molesworth’s An Account of Denmark had first-hand accounts of how republics fell to despots. Britain had somehow navigated a middle course in this, never adopting the excesses (and thus instabilities) of free states but maintaining enough checks on the monarch to prevent degeneration into tyranny. There was admiration enough among the founding generation for Britain’s “ancient constitution,” one which had worked for so long to preserve a balance between the different estates of society, thus maintaining an ordered liberty. But there was fear too, fear that the Constitution could easily be subverted by those who sought power at the public’s expense. John Trenchard and Thomas Gordon’s Cato’s Letters, often cited (and cribbed) by Americans, stressed the need for vigilance in the face of such conspiracies. For the founding generation, this meant holding up the ancient constitution. And among its most important and ancient elements was the principle upon which habeas corpus rested—that government can detain a free person only when the law establishes the validity of that detention.

This history weighed on the framers who met in Philadelphia in the summer of 1787. In attempting to mix their progressive republicanism with a conservative admiration for the British constitution, they took care to preserve many of the latter’s fundamental precepts. 

The framers nonetheless found themselves on the defensive in the state ratification conventions. Many Americans, it turned out, were suspicious of the powerful new national government created by the Constitution. They saw in the framers’ work evidence of the same duplicity and power-mongering that had sparked the Revolution in the first place. What was this new government, cried its critics, if not the imposition of a powerful central government upon a people who had just freed themselves from the British? Why were the states being asked to cede part of their sovereignty? And where was a bill of rights? Answering this precise argument in Federalist no. 84, Alexander Hamilton pointed to the many protections of individual liberty in the Constitution, chief among them habeas corpus, one of the greatest “securities to liberty and republicanism” in the Constitution. The point is that the framers did not preserve elements of the ancient constitution inadvertently. They were sensitive to their peers’ understanding of the place habeas corpus held in the historical imagination. It was, to the founding generation, the most ancient check on tyrannous power, the sleepless sentinel of Anglo-Saxon liberty, tracing its paternity to Magna Carta.

It should be said that the founders’ views on these matters have not survived strict historical scrutiny. Historians have since demonstrated that Magna Carta was hardly a victory for abstract liberty. Its famous protections are better understood as checks on royal power in favor of the baronage. Moreover, habeas corpus’s early history was less about protection of individual liberty and more about the assertion of royal authority. By prohibiting imprisonment without just cause, it empowered medieval and early-modern monarchs to intervene in the affairs of local courts. The early history of habeas is thus more connected with the development of sovereignty and power than with civil liberties. 

Remarkably, Kennedy’s own history is sensitive to these facts. He fully recognizes that the Great Writ cannot be traced back definitively to Magna Carta and that the writ’s early history was in the service of the king rather than against him. Nonetheless, Kennedy concludes that by the seventeenth century habeas corpus had come to represent a check on the very authority that had issued it. For if the king’s law extended to all corners of the realm, so too did it bind the king, and this principle eventually transformed habeas corpus into a writ that could test the legality of any detention, even one ordered by the king. What could cause such a profound change in the law? Kennedy rather impatiently concludes that “the development was painstaking, even by the centuries-long measures of English constitutional history.” 

We can forgive Justice Kennedy for not elucidating the mysterious procedures at work in English medieval law. More importantly, the uneven trajectory of habeas corpus from the thirteenth century through the twenty-first does not diminish its importance in Kennedy’s narrative. The majority rests on the principle that the founding generation thought of habeas corpus as an eternal bulwark of liberty, one to be guarded by the judiciary against attempts by either of the other branches to subvert it. And in Boumediene, the majority makes clear that they are the heirs to that historical principle.

The dissenters offer a competing narrative, one of war and executive power. Justice Antonin Scalia puts it rather succinctly in the first section of his opinion: “America is at war with radical Islamists. The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dharan, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen.” On September 11, continues Scalia, “the enemy brought the battle to American soil.” They fight our troops in the field and threaten future attacks. One need only “board a plane anywhere in the country, to know that the threat is a serious one.” Scalia leaves no doubt about where he stands on the magnitude of the majority’s opinion, which “will make the war harder on us. It will almost certainly cause more Americans to be killed.”

Scalia’s undisguised rage continues unabated throughout his twenty-five-page opinion. Oddly, given Scalia’s penchant for originalism (or the idea that the Courts’ interpretations should be consistent with the framers’ original intent), his interpretation of the history of the Suspension Clause is rather weak. It amounts to the dual claim that when the framers did their work, the common law writ of habeas corpus did not run outside the king’s sovereign territory and was never intended to be extended to aliens abroad. He likens Guantanamo Bay to eighteenth-century Scotland. There, English courts had no jurisdiction in matters of habeus corpus. And the British government used this loophole, much like the Bush administration uses the “enemy combatant” designation, to arbitrarily imprison its Scottish enemies. Scalia also points to the absence of any case in English history where a prisoner of war requested a writ of habeas corpus, let alone had one granted. “The text and history of the Suspension Clause,” he concludes, “provides no basis for [U.S. court’s] jurisdiction” in Guantanamo. 

Technical merits of his opinion aside, Scalia’s use of history is an utter failure. His narrative of the present war glibly subsumes Sunni and Shiite rebels, Al Qaeda and its many loose affiliates into one singular “enemy.” By including the 1983 Beiruit barracks bombing—perpetrated by a Shia militia formed in the wake of Israel’s 1982 invasion of Lebanon with no connection to Al Qaeda—with these other attacks, he not only suggests that the current war has been going on much longer than most Americans (including most in the government) realize but, more outrageously, that our’s is a war of civilizations. It is America against all who hate us—and they all happen to be Arab. But never mind all of this. Scalia’s legal history is also troubling. Consider the Scotland/Guantanamo analogy, which actually weakens Scalia’s argument. As any card-carrying originalist should know, the constitutional position of Scotland was a matter of grave concern for colonists who watched the English parliament strip Scots of, among other things, the right to bear arms. The founders—former English subjects who, much like the Scots, resided in the British provinces—would doubtless be puzzled if told that the reach of habeas corpus could extend no further than the British had allowed it in 1789. 

Despite its intellectual flimsiness, Scalia’s narrative is the more viscerally powerful. Its Cassandra-like prophesizing of future violence rouses our deepest fears. Its invocation of American blood spilled on American soil stirs our rage. And its simplicity satisfies, even if deceptively so. But this speaks to the opinion’s persuasiveness, and the ultimate measure of that will be whether Scalia has touched the right nerve with Americans. Kennedy’s narrative is more nuanced and complex. But the price of complexity may well be fragmentation. How can historical complexity compete with the nineteenth-century faith in steady, indomitable progress or with the eighteenth century’s pervasive fear of conspiracy and tyranny? Habeas corpus played a heroic role in both narratives, and that gave the writ a powerful legitimacy. 

No historian should, of course, return to writing such intellectually untenable histories. Nonetheless, we would do well to review the power that narratives have to ascribe meaning. Habeas corpus would not have been enshrined in our Constitution were it not for the founding generation’s conviction that it was the bedrock of civil liberty and had been so since time immemorial. Subsequent historical investigation proved their view fanciful, but this did not deter Justice Kennedy from crafting a new narrative to explain the majority’s safeguarding of habeas corpus against congressional attempts to subvert it. His narrative is not as grand, nor as simple, as those of the founding generation. But it is credible. It is a history that recognizes the complexities of the past and avoids the crass simplicities and violent elisions present in Justice Scalia’s use of history. That the Supreme Court has deployed Kennedy’s narrative to check congressional expansion of executive power in the midst of the Bush Administration’s “War on Terror” is no small matter. And a reminder of how much history matters.

Further Reading:

The legal scholar Robert Cover makes the argument that every prescriptive legal norm requires a narrative to explain and legitimate it. See his “Foreword: Nomos and Narrative,” Harvard Law Review 97 (November 1983). On the subject of history and historical thinking in the eighteenth and nineteenth centuries, see Caroline Robbins, The Eighteenth Century Commonwealthman (Cambridge, 1959); Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, 1967); Gordon S. Wood, “Conspiracy and the Paranoid Style: Causality and Deceit in the Eighteenth Century,” The William and Mary Quarterly 39 (July 1982); and Joyce Appleby’s collected essays, Liberalism and Republicanism in the Historical Imagination (Cambridge, 1992). On habeas corpus, see John Baker, “Personal Liberty under the Common Law of England, 1200-1600,” in R. W. Davis, ed., The Origins of Modern Freedom in the West (Stanford, 1995) and Paul D. Halliday and G. Edward White, “The Suspension Clause: English Text, Imperial Contexts, and American Implications,” Virginia Law Review (forthcoming).

 

This article originally appeared in issue 8.4 (July, 2008).

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H. Robert Baker is assistant professor of history at Georgia State University and author of the book, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War.

The Constitution’s language of equality is wholesomely generic. The Fourteenth Amendment declares, “All persons, born or naturalized in the United States, are citizens.” But the practices of equality have been problematic.  Nguyen v. INS, decided by the U.S. Supreme Court in June 2001, captures the state of judicial thought about one important dimension of the contested meaning of citizenship.

American legal tradition and practice has long been shaped by the assumption that married women’s domestic obligations to their husbands trump their civic obligations to the state. The corollary, of course, is that married men and married women are not equal. In theory, the civic infirmities of married women should not affect single women–the never married, divorced, or widowed who at any moment make up a substantial proportion of the population. In practice, however, all women were generally treated as if they were married.

 

As a result the rights and obligations of citizenship have been invoked differently for men and for women. The differences in rights are easier to see. We know that the right to vote has varied greatly by gender and race, across time and place. Despite the nation’s founding principle of “no taxation without representation,” most of the vast numbers of people excluded from the suffrage (most African Americans for most of American history, most white women until 1920, and until deep into the twentieth century, Asian immigrants ineligible for citizenship) paid taxes.

Inequality can be traced not only in the well-known history of unequal rights but quite as deeply in the history of unequal obligations to the state. Women have not been excused from civic obligation, but rather civic obligation has burdened them in different forms than it has burdened men. These asymmetries have occurred in the various categories of specific rights and obligations, including not only voting and taxation, but inclusion in the pool of jurors, the obligation to avoid vagrancy, and entitlement to birthright citizenship.

Which babies born outside the U.S. count as Americans from birth? And which men and women can bestow U.S. citizenship, automatically, upon their children? For centuries, with minor variations, the practices that define which children born abroad are to be considered American citizens and which must be naturalized have treated the status of the mother and the status of the father asymmetrically. And in June 2001, just in time for Father’s Day, the U.S. Supreme Court handed down its decision in Tuan Anh Nguyen et al. v. Immigration and Naturalization Service, a case that sustains traditional ideas about fathers and the meaning of their citizenship.

As is often true of significant cases, Nguyen was full of ironies: a challenge to sex discrimination brought by a man jailed for sexual assault; a claim to the rights of citizenship brought by a convicted felon. Tanh Anh Nguyen was born in 1969. His father, Joseph Boulais, was an American veteran who, after his discharge from service in Germany, went to Vietnam as a civilian employee of a construction company. He had a son with a Vietnamese woman who abandoned them both after Nguyen’s birth. Boulais remained in Vietnam, cared for his son, and developed a new relationship with a Vietnamese woman–not Nguyen’s mother–whom he would later marry. When Saigon fell in April 1975, Boulais was out of Vietnam; the child was being cared for by his wife’s mother. She managed to flee the city, taking the boy with her. They reached the United States as refugees and the family was reunited. Nguyen grew up in Houston in his father’s home.

Had his birth parents been married to each other, U.S. law would have embraced Nguyen as a citizen from birth. Children of American citizens are automatically citizens, so long as one parent had lived in the United States for ten years, at least five of which were after age fourteen. (The number of years has since been reduced to five and two.) Joseph Boulais clearly met this requirement, which seeks to ensure that we do not develop a class of citizens who from one generation to the next have never lived in the United States. But he had not married Nguyen’s mother.

If Nguyen’s mother, although unmarried, had been a citizen, U.S. law would also have defined Nguyen as a citizen from birth so long as she had lived in the United States for twelve months before her baby was born. But it was Joseph Boulais who was the citizen, and in order to secure Nguyen’s status as a citizen, Boulais was legally required to do three things on his son’s behalf: to establish by “clear and convincing evidence” the blood relationship between them; to provide financial support until his son reached age eighteen; and to acknowledge his paternity formally before the child reached legal adulthood.

So long as life moved along quietly, so long as Boulais supported his son, what did formal paperwork matter? But in 1992 Nguyen, then age twenty-three and still, in legal terms, a resident alien, was convicted of sexually assaulting a minor, and sentenced to an eight-year prison term. Four years into Nguyen’s sentence, Congress, responding to a rising tide of anti-immigrant sentiment, tightened the rules controlling legal aliens like Nguyen: conviction of a felony now meant deportation. And so, as Nguyen’s prison time neared its end, the INS moved to deport him. Released from prison, Nguyen remained in confinement at the INS detention center in Houston.

Had his parents been married, Nguyen would have been counted a citizen at birth. Flip the coin: had his unmarried citizen-parent been his mother, he would also have been a citizen at birth and invulnerable to deportation. Not illogical, Justice John Paul Stevens had declared in the last similar case to reach the Supreme Court, Miller v. Albright, decided in the spring of 1998. Parenthood, the Court effectively found, wasasymmetrical. Motherhood counted for more. Everyone knows who the mother is; there are witnesses to the birth. (Such reasoning has a long history; a member of the medieval Guild of Fishwives had the right to be in the birthing room of Marie Antoinette, charged with the responsibility to witness that the heir to the French throne had actually emerged from the body of his mother.) Not illogical, wrote Justice Stevens, but rather “entirely reasonable for Congress to require special evidence of [ties to this country] . . . between an illegitimate child and its father. A mother is far less likely to ignore the child she has carried in her womb than is the natural father, who may not even be aware of its existence . . . [T]he time limitation . . . deters fraud.”

Justice Ruth Bader Ginsburg disagreed. In a vigorous dissent joined by Justices Souter and Breyer, she assailed the law as “one of the few provisions remaining in the United States Code that uses sex as a criterion in delineating citizens’ rights.” Ginsburg’s dissent argued that opposing arguments were soaked with stereotypes about the parental roles of men and women. The three dissenting justices waited impatiently for another chance to consider this principle in a case without some of the technicalities raised by Miller.

Nguyen gave them one. His suit challenged the threat to deport him on the grounds that he should have been a citizen from the moment of his birth. Boulais argued that he, an American man, should have the same right American women have to transmit citizenship to nonmarital children. He arranged for DNA testing that demonstrated his paternity. He might well have imagined he would prevail. Indeed, court decisions in Canada underline how fluid stereotypes can be. Until very recently, it was the child born abroad to a Canadian woman, fathered by a U.S. man, who required a security check in order to take up Canadian citizenship; the child born abroad to a Canadian citizen-father was automatically a citizen.

In Miller four years ago, and then again, in Nguyen, much of the discussion focused on stereotypes. The treatment is unequal because fathers are burdened; they have to go through more hoops to establish paternity than women do to establish maternity. But there is another, ugly history lurking in the subtext to these arguments. In the Anglo-American legal tradition–the body of law that Americans received as colonists and retained despite the Revolution–the father was the head of the household, and his wife’s citizenship largely depended on his. In American family law, husbands traditionally controlled children as well as wives. Fathers made the final decision, for example, on where a child should be apprenticed. In the event of divorce fathers usually got custody. A father had responsibility for financial support of the children born during his marriage.

But a long tradition also held that a man became accountable for the children he fathered outside of marriage only if he wished to claim them. If legitimate heirs were the responsibility of their fathers, illegitimate children were the responsibilities of their mothers. To make doubly sure, American colonists passed laws that specified that children of free fathers and enslaved mothers “followed the condition of the mother.” (That is why Thomas Jefferson’s father-in-law, John Wayles, could use his own daughter as a slave; that is how Sally Hemings–Jefferson’s own sister-in-law–ended up a slave in Jefferson’s household.) In 2001, Nguyen’s “condition”–as citizen or noncitizen–was governed by the status of his mother.

Last June, barely thirty years after the Court in Reed v. Reed ruled for the first time that discrimination on the basis of sex may be a denial of equal protection of the law, the Supreme Court ruled against Nguyen. The decision was five to four. The majority opinion, written by Justice Anthony Kennedy, emphasized–as the Justice Department had done in oral argument–the reasonableness, even generosity of the rules. Citizen-fathers have an extended period of time–eighteen years–to satisfy the requirements of the statute. “Fathers and mothers are not similarly situated with regard to the proof of biological parenthood,” and gender-neutral language–language like that of the Fourteenth Amendment, say–would have been “a hollow neutrality.” Kennedy observed, “Given the nine-month interval between conception and birth, it is not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father’s identity . . . One concern in this context has always been with young people, men for the most part, who are on duty with the Armed Forces in foreign countries . . .”

During oral argument, when this point was made, Justice Ruth Bader Ginsburg remarked that it implied that the Court approved of military men fathering children out of wedlock and abandoning them. “I expect very few of these are the children of female service personnel,” Ginsburg observed to the amusement of the audience. “There are these men out there who are being Johnny Appleseed.”

But the majority of justices remained unpersuaded. To the contrary, Kennedy’s opinion continued, “[Considering] the conditions which prevail today . . . the ease of travel and the willingness of Americans to visit foreign countries have resulted in numbers of trips abroad that must be of real concern when we contemplate the prospect of accepting petitioners’ argument, which would mandate . . . citizenship by male parentage subject to no condition save the father’s previous length of residence in this country . . . ” To insist that citizenship must be consciously claimed, rather than “unwitting,” was not, Kennedy insisted, a stereotype. As the Court had previously established, “Physical differences between men and women . . . are enduring.”

Kennedy’s opinion came as a disappointment to observers who had trusted that, given facts different from those in Miller, he could be persuaded to focus on the similar situation of the newborn rather than the different situation of the mother and father. Still, as Gerald Neuman of Columbia University School of Law pointed out, the opinion could also count as strengthening another important American tradition of citizenship: that descent alone should not be enough, that citizenship should be claimed. “U.S. citizenship isn’t racial,” Neuman observed. “We are not a descent group. We are tied together by something else. I think it may be useful not to lose sight of this positive aspect of the decision.”

The other vote that Nguyen’s supporters had hoped to swing swung. Justice Sandra Day O’Connor, who had voted with the majority in Miller, wrote an extensive dissent joined by Justices Ginsburg, Souter, and Breyer. She rejected the idea that the case was about immigration and naturalization; it actually concerned birthright citizenship. Quoting an observation made in J.E.B. v. Alabama ex rel. T.B., a 1994 case that had addressed gender-based peremptory challenges in jury selection, she situated Nguyen squarely “in the context of our Nation’s long and unfortunate history of sex discrimination,” a history that required “the application of heightened scrutiny” and the showing of “an exceedingly persuasive justification of the sex-based classification substantially relate[d] to the achievement of important governmental objectives.” In Ngyuen, she maintained, “The different statutory treatment is solely on account of the sex of the similarly situated individuals. This type of treatment is patently inconsistent with the promise of equal protection of the laws.” She challenged the arguments made by the Department of Justice: if the Court were truly interested in establishing that the citizen-parent had a substantial relationship to the child, she thought, it would logically have placed burdens of proof of parenthood on mothers as well as fathers. Were it interested primarily in biological connection, it would not have shrugged off DNA testing so cavalierly. And so the decision fell back on stereotypes: “the generalization that mothers are significantly more likely than fathers . . . to develop caring relationships with their children.” The facts in this case contradicted the stereotype: Boulais, not the child’s birth mother, had raised Nguyen.

Nguyen, the dissent continued, belonged in the “historic regime that left women with responsibility, and freed men from responsibility, for non-marital children.” O’Connor ended by castigating the majority for deviating from “a line of cases in which we have vigilantly applied heightened scrutiny”; she ended with the hope “that today’s error remains an aberration.”

And so Tuan Anh Nguyen and Joseph Boulais–and the lawyers who threw their hearts into helping them make their arguments–lost their battle. At this writing, Nguyen is no longer in confinement but he continues to face deportation. But in the long run the law is also shaped by valiant dissents. The dissenters here make clear that the deep-rooted belief that women are likely to be tricksters, and that men should be able to pick and choose for which of their children they will be responsible, still infects the integrity of American law.

 

Further Reading: See Kristin Collins, “When Fathers’ Rights Are Mothers’ Duties: The Failure of Equal Protection in Miller v. Albright,” Yale Law Journal 109 (2000): 1669-1708; Linda K. Kerber, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York, 1998); Gerald L. Neuman, Strangers to the Constitution: Immigrants, Borders, and Fundamental Law (Princeton, N.J., 1996); Cornelia T. L. Pillard and T. Alexander Aleinikoff, “Skeptical Scrutiny of Plenary Power: Judicial and Executive Branch Decision Making in Miller v. Albright,” Supreme Court Review (1998): 1-70.

 

This article originally appeared in issue 2.4 (July, 2002).

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Linda K. Kerber is May Brodbeck Professor in the Liberal Arts and professor of history at the University of Iowa. Her most recent book is No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship (New York, 1998), which won the Littleton-Griswold and Joan Kelley prizes. She serves as chair of the executive committee of the Omohundro Institute of Early American History and Culture.

In May of 1837, William “Billy” Douglas, a prosperous farmer and landholder in Bath County, at the southern end of Virginia’s Shenandoah Valley, died. A man of large appetites and little schooling, he was well-adapted to Virginia’s mountain frontier in the early nineteenth century and he acquired property and children with equal energy. His will, which he signed with an X, described his extensive acreage along the Cowpasture River in Bath County that included at least two farms, and 30 slaves, all of which he distributed among the thirteen children he had locally with three women, for none of whom is there any record of a marriage. One of those children, among the last six born, was Juliet Stewart, a young woman recently married to Adam Stewart. To her he left a “negro girl named Emiline,” aged seven; Juliet also acquired Nancy, aged five, in a general distribution of Douglas’ slaves. To Juliet’s younger sister, Mary, just fourteen, he left a “negro boy named James” and Levi, acquired in the general distribution.

Sometime soon after the death of William Douglas, Adam Stewart died, and Juliet Stewart married Jonathan Lemon in 1840 (figs. 1, 2). With this marriage, Jonathan Lemon acquired valuable property in Bath County as well as his wife’s slaves and a share in the Douglas home farm. In 1843, Lemon received a land grant for 297 more acres on the west side of the Cowpasture River, next to land owned by Henson Douglas, Juliet’s brother. Despite this promising situation, by 1852 Jonathan Lemon was dissatisfied and decided to sell out and move to Texas. In September 1852, he sold four tracts of land near the Cowpasture River to Jacob Simmons, who had married Juliet’s sister Mary in July 1848.

 

By the time of her marriage, Mary Douglas had owned James and Levi for ten years, and the young men were relatively satisfied with their situation. They were confident enough in their positions to ask Mary Douglas not to marry Jacob Simmons, as he had a reputation as a hard master. But marry him she did. Two years after the marriage, Simmons—who was aware of the two young men’s long-time animosity toward him—sold James and Levi to a slave trader passing through with a slave coffle. Levi and James had anticipated their sale once Simmons became their master and, according to one account, acquired forged free papers. The young men persuaded the slave trader that they did not need shackles, as they were happy to leave Simmons. Then, as the coffle moved down the road, they jumped over a fence and disappeared into a wooded area that they knew well.

Mountainous, rural, and losing population, Bath County might reasonably be seen as having an isolated enslaved population, unaware of escape routes to the North or upheavals in Virginia state politics. But Bath County contained slaves hired from as far away as Richmond to work at the inns, hotels, and stables around the mineral springs that gave the county its name and housed southwestward migrants to Kentucky and beyond. Enslaved people in Bath County were not isolated from the currents of information, gossip, and rumor that kept African Americans aware of important national and local events. In an account given to a New York City newspaper some two years later, Levi said he and James knew that two cousins who had escaped from Bath County earlier were in Malden, an Ontario town near the border with Michigan. They believed their best chance to join their cousins was to walk west and cross the Ohio River.

To call the events in the Lemmon case melodrama is not to diminish their contemporary power, but to enhance it.

Promising to meet in Malden if they were separated, they made their way northwest through the mountains, most likely following the turnpike that went from Staunton, Virginia, near Bath County to Parkersburg, Virginia, on the Ohio River. They were not far from the Ohio River when they were identified as escaped slaves and chased. James escaped, but Levi was caught and held in a county jail where, “being an excellent dancer,” the jailer invited local whites to watch him dance. In a newspaper account in late 1852, Levi, now calling himself Richard Johnson, said that he had escaped by giving the jailer, a heavy drinker, the money tossed to him for dancing. The jailer spent the money on liquor and fell asleep inebriated, allowing Levi to escape and reach the Ohio River, crossing it to relative safety in Ohio.

There Levi was aided by agents and sympathizers with the Underground Railroad to get to Cleveland, where he worked as a waiter in a hotel, then continued to Malden, Ontario, where he found James Wright already established and found his two cousins as well. By the summer of 1852, he had returned to the American Hotel in Cleveland in order to earn money to purchase land in Canada.

This was the first act of a long-running drama of American slavery and resistance in the 1850s. During that decade, proslavery and antislavery partisans labored steadily and creatively to shape constitutional law and public opinion, the two components of slavery’s future. The “Lemmon Case,” as the subsequent slave rescue and legal case was called, pursued both. The escape of Levi and James was one of many popular slave narratives that featured thrilling escapes and ruptured black families. The Lemmon (or Lemon) case offered an expanding nineteenth-century American reading public, fond of melodrama on stage and in print, a vast cast of characters, amazing coincidences, betrayals, reversals of fortune, family reunions, courage, and legal ironies. To call the events in the Lemmon case melodrama is not to diminish their contemporary power, but to enhance it. In its many aspects, the case offered spectators and readers courtroom drama and legal dueling, as well as a black family saga second to none in the literature of the 1850s. It also brought in a wide range of regional types, from Wall Street traders to Southern politicians, escaping slaves, and a middling mountain South family far out of its comfort zone.

As Levi saved his pay in Cleveland, Jonathan Lemon was preparing to move his family to Texas, leaving Bath County in October 1852. In addition to seven children, the Lemon entourage included eight young slaves, the oldest of whom was Emiline, the mother of two-year-old Amanda; Emiline’s teenage brothers, Lewis and Edward; and Emiline’s niece, Nancy. Nancy’s children, five-year old twin boys also named Lewis and Edward, and three-year old Ann completed the group. All had close kinship ties, and the older ones had been part of the distribution of Billy Douglas’s slaves in 1837.

Seventeen days’ travel eastward toward the coast brought them to Richmond, the nearest port city to their inland home. The Lemons did not learn until they reached the capital city that there would be no ship to New Orleans for at least three weeks. Having neither the money nor the inclination to stay that long in Richmond, the seventeen people in the party traveled to Norfolk and took passage on the steamer City of Richmond for New York City, intending to transfer there to a ship bound for New Orleans (a rather circuitous route to Texas from Virginia). (A contemporary map of Virginia is viewable on the David Rumsey Map Collection site.)

 

 

Later, after the events transpired that would make him a household name across the country, Jonathan Lemon gave an account to a sympathetic New York newspaper of the Lemon family’s view of what took place when the ship docked in New York City on Friday, November 5. He had, he said, “no idea … that there would be any difficulty in going to New York with my slaves and proceeding thence to New Orleans.” Unworldly and uncertain of how to navigate the streets of the nation’s largest metropolis, Lemon placed much faith in the clerk on the City of Richmond, a Mr. Ashmead, who told him “that the law was in my favor in New York and was bound to protect me in the possession and property of my slaves.” Lemon was anxious to move his entire entourage to a New Orleans-bound ship. Offering to act on his behalf, Ashmead left the ship as soon as it docked, saying he would book passage to New Orleans for the Lemons and their slaves. But Ashmead returned saying that Lemon himself had to go to an address on South Street, where a man would help him (fig. 3).

Lemon went to South Street, where an unidentified man promised to transfer the entire party and their baggage to the Memphis, scheduled to sail for New Orleans the next day. Lemon returned to the City of Richmond with the booking agent:

And very soon two hacks came there, which he stated had been ordered by him, and into which myself, family and slaves got, under his direction, he saying to us that they were to convey us to the steamer Memphis. The hack then … drove round to his office in South Street.—Here I was told that I must pay our fare before being put on board of the Memphis. I then paid the amount, being $161. As soon as this money was paid, the hack drivers refused to take us to the steamer Memphis, but carried us, against our earnest protest, to a house at 3 Carlisle Street, dropped us down upon the sidewalk and drove off. It was now dark, and we being utter strangers in the city, were compelled to stay at that place till morning.

Early the next morning, a writ of habeas corpus was presented to Judge Elijah Paine of the New York Superior Court by Erastus D. Culver, a local attorney and abolitionist, saying that the black people now at 5 (sic) Carlisle Street were restrained of their liberty and ought to be freed based on the 1841 repeal of the “nine months law.” That law had been a provision in an 1817 act that had provided for the gradual abolition of slavery in New York State, and had permitted slaveholders to retain their slaves in New York if their stay was less than nine months. The repeal had not been tested since it was passed eleven years earlier. The writ of habeas corpus itself contained many errors that suggested no one had actually talked to the African American family at this point, but had only seen them at a distance. In it, Jonathan “Lemming” was described erroneously as a “negro trader.” But Judge Paine acted promptly, and the writ was served on Lemon that morning, with the black family taken into custody.

Although the stunned Jonathan Lemon was quick to see Mr. Ashmead as somehow responsible for his misfortunes, Nathan Lobam, the African American steward on the City of Richmond during the trip, claimed credit in an interview given almost a generation later. Lobam said that he approached the black family as the ship left Norfolk and learned their status. When asked if they wanted to be free, the women said yes, while the young boys were unsure. Once in New York City, the steward notified three members of an alliance of black and white abolitionists and Underground Railroad operatives in the city.

The petitioner in the case was Louis Napoleon, whom Lobam called “Napoleon Gibbs,” a black man working as a “polisher and finisher” in 1850 and sharing a house near the docks with Samuel Levingston, who had been born in South Carolina. Like Lobam, Levingston was an African American steward on steamboats, well placed to alert New York abolitionists to slaves in New York’s harbors.

That day, Saturday, November 6, the bewildered Lemons and the wary slave family appeared in Judge Paine’s court. The New York Journal of Commerce, persistently sympathetic to the Lemon family and to the South, described the scene: “Mr. Lemmon is past the middle age of life, and his dress and appearance bespeak him to be a man who has been and is still struggling with poverty. His wife, who, was she dressed in a fashionable attire, would be considered a splendid woman, also bears in her dress the same marks of comparative poverty as does her husband, but not in her manners, which are very lady-like. … they [the Lemons] naturally feel indignant at what seems to them an utter breach of the national compact.”

The courtroom confrontation provided high drama for newspaper readers. When the young black family was brought into court, the Lemons reacted in ways that said much about the economics and self-justifications of slavery:

Mr. Lemmon, when informed of the possible, if not probable, loss of his slaves, cried like a child. … Mrs. Lemmon went to where they were sitting, and in a tone and manner, highly excited, but more indicative of a mother to her children than a mistress to her slaves, thus addressed them—’Have I ever ill-treated you? Have you not drank from the same cup and eat from the same bowl with myself? Have I not taken the same care of your children as if they were my own? Did I not give up all I possessed in my native land, in order that you and I might go to another, where we could be more comfortable and happy? Did you ever refuse to come along with me, until you were prompted to do so?’

In their confusion and uncertainty, one of the young black women began to cry, and the other began to answer Mrs. Lemon, “when a white and a black abolitionist, in the same breath, told her to make no answer.”

The case was postponed until Tuesday, November 9, and when it was taken up “a large number of colored people of both sexes as well as others assembled” long before the appointed time. Those in the courtroom listened intently to arguments for and against the proposition that the enslaved family was now free.

At its core, the case revolved around the rights of slave owners when traveling through non-slave states. Did one state’s law supporting slavery supersede another state’s law prohibiting the institution? Was it constitutional for a slave owner to bring a slave into a free state for a week, but not for a month? Were, in other words, free states required to respect the right of slave ownership on a temporary basis when slave owners visited northern cities with their slaves? On these matters the United States Constitution was silent.

Henry D. Lapaugh and Henry L. Clinton, two young New York attorneys, represented the Lemons in Elijah Paine’s courtroom. Their pro-slavery position asserted that slavery was constitutionally protected, as evidenced by the three-fifths clause (Article 1, Section 2) regulating state representation in the House of Representatives based on a portion of a state’s slave population and by the clear provision of the fugitive slave clause (Article IV, Section 2), which required the return of slaves who had escaped from one state to another. Property rights in slaves, they argued, were as constitutionally protected as any other form of property, such as livestock or inanimate objects.

Lapaugh and Clinton also relied on the comity clauses of the Constitution, which address the respect one state voluntarily grants by enforcing the laws of another. One state’s consideration for another state’s authority is found in Article IV of the Constitution. Section 1 provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State,” while Section 2 stipulates that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Since slavery was a property right authorized and protected by one state (in this case Virginia), Lapaugh and Clinton insisted that a non-slave state (in this case New York) should honor that right at least on a temporary basis.

The abolitionist attorneys for the state of New York, Erastus D. Culver and John Jay, argued a strong states’ rights position that each state had the right to allow or abolish slavery, and that the individual states alone possessed the right to determine the status of persons within their jurisdiction. Further, they maintained that the comity clauses of the Constitution did not require one state to afford rights to visitors that were not allowed to residents of that state. In other words, if New York residents were not allowed to own slaves, neither could visitors from a slave state.

Ultimately, Culver and Jay insisted that slavery was not a constitutionally protected property right. When the Constitution referenced slavery, it used the terms “person” or “persons” and never invoked the word “slaves.” The only obligation the Constitution afforded in this regard was that requiring the return of slaves “escaping” from one state to another. Importantly, the New York attorneys emphasized that the Lemmon case did not fall under the fugitive slave clause of the Constitution or the 1850 Fugitive Slave Law because the Lemon slaves were not fugitives—they had been taken by their owners into New York. They were more similar to the slave Somerset who had been purchased in Massachusetts and then taken to England, and who was determined free in 1772 because slavery was not protected by British law. While, of course, not binding in the United States, invoking the Somerset case distinguished the Lemon slaves from the fugitive slave provision of the Constitution, and served as a reminder to Judge Paine that the individual states alone had the right to permit or prohibit slavery.

On the next Saturday, Judge Paine delivered his opinion. Before another packed courtroom, the judge pronounced that “slavery can subsist only by the laws of the State,” and that it was well established that “a State may rightfully pass laws, if it chooses to do so, forbidding the entrance or bringing of slaves into its territory.” He concluded that the 1841 law of New York prohibiting slaves was “entirely free from any uncertainty,” and that “the eight colored persons mentioned in the writ, be discharged.” When Paine announced that the slaves would be freed, “much applause was exhibited.” The newly free family was conducted out by Louis Napoleon, placed in carriages and driven off, “amid great cheering and waving of handkerchiefs.”

Jonathan Lemon lamented “The result of the proceedings in court has deprived me of all my property, amounting at least to $5,000.” The New York Tribune commented bluntly on what this chain of events would mean for New York City business: “Here is a case which appeals directly to the gizzard of Cotton. If Mr. Lemmon is not compensated for his lost chattels, there can be no rational hope that New York will hereafter enjoy any portion of the carrying trade in slaves between the slave-breeding and slave-consuming states—a trade already considerable and certain to be largely increased by the annexation of Cuba.” The Tribune then urged its readers to contribute to a fund to recompense the Lemons for their monetary loss, suggesting that “Union-saving, Business, and Benevolence may all be combined in one operation …”

The Lemmon case, as it was already commonly known, was widely covered in New York City newspapers, with the national press reprinting those reports from the first day in Judge Paine’s court through the legal decision of the following week. In Cleveland, the local newspaper was read aloud by one of the workers at the American Hotel and, in one account, Levi, the runaway slave willed to Juliet’s sister Mary, and now living under the name Richard Johnson, exclaimed, “That’s my Aunt! That’s my sister!” The former slave also identified the older Lewis and Edward as his brothers, and the children as his cousins and nephews. Furthermore, he announced that his companion in flight to Canada, James Wright, was the husband of Nancy and the father of her children. Wiring the committee of support for the Lemon slaves, he sent his savings to the group and took a train to New York City.

 

The most active members of the city’s abolitionist network had already taken charge of the emancipated group. Some eight hundred dollars was raised for their support and held for them by Judge John Jay. The Rev. James Pennington, once a fugitive from western Maryland, and his wife had taken them to Hartford, Connecticut, where Pennington was a pastor. There they were put in the care of black families for some weeks. In an early December meeting at the office of Lewis Tappan that included Richard Johnson (the former slave, Levi), Louis Napoleon/Napoleon Gibbs, Charles Bennet Ray of the New York State Vigilance Society, and Pennington, it was decided that Johnson would accompany his relatives from Hartford to Canada while plans were made to purchase one hundred acres for the group at the Elgin settlement at Buxton, Ontario, an experimental black communal settlement founded by a white minister, William King. Emiline, Nancy, the young boys and the children could not have been more fortunate in their destination (fig. 4). The Elgin settlement was probably the best site in Canada for fugitive slaves or free blacks from the United States in 1852. Fortunate in its leadership and organizational structure, it offered opportunities for farm ownership, industry, and education to its members, and survived longer than most such efforts in Canada or the United States. Richard Johnson was married to an Elgin woman by the Reverend King soon after the Lemon family arrived, and within a few years he moved the short distance to Michigan.

While New York’s abolitionists were making plans for the future of the newly emancipated family, the city’s pro-Southern business community was looking after their former owners. By November 23, $5,000 had been raised for Jonathan and Juliet Lemon by the “merchants and others” of New York City. Jonathan Lemon, on calmer reflection, admitted that he had been warned by the captain of the City of Richmond not to take his slaves ashore, and he absolved Ashmead, the ship’s clerk, of responsibility for his loss. The Lemons had already decided to return to Virginia. Their furniture, shipped earlier to New Orleans, was to be sent back to Virginia. For this money, the Lemons signed an indemnity saying that if, on appeal of the case, a higher court awarded them the slaves, the slaves would be manumitted. (They could not formally free their slaves then, as it would have invalidated the appeal of Judge Paine’s decision, which was making its way to the New York Supreme Court.) The following March, Jonathan Lemon paid $4,000 to Thomas and Susannah Lemon for a tract of land that they had recently inherited on the Cowpasture River in Botetourt County.

Had the legal dispute ended there, the Lemmon slave case would have become another minor event in the long-running antebellum legal and political battle over the rights of slave-owners. Judge Paine’s decision, however, did not go unchallenged. The slave-holding South reacted quickly with angry editorial comment in most southern papers, and many southern politicians were quick to attack the decision. Virginia newspapers followed the case closely and reported its every detail, especially as it concerned the Lemon family. They concurred in the southern assessment that if the United States Constitution permitted one state to deny property rights guaranteed in another state, the Constitution was useless. Georgia Governor Howell Cobb echoed much of the general thinking when he indignantly declared that “A denial of this comity is unheard of among civilized nations, and if deliberately and wantonly persisted in, would be just cause of war.” James B. D. De Bow, editor of the popular Southern periodical De Bow’s Review, labeled the manumitting of the Lemon slaves “subversive of the rights of the South in the Union.”

Somewhat more temperately, Virginia’s governor, Joseph Johnson, found Paine’s opinion to be “in conflict with the opinions and decisions of other distinguished jurists.” Because of its challenge to southern slave-owners, he determined it was “at war … with the spirit if not the letter of the Constitution itself.” On December 17, 1852, Johnson sent the New York Superior Court’s decision to the Virginia General Assembly with a request that the Assembly support the prosecution of an appeal to New York’s Supreme Court. Three months later, Virginia’s House of Delegates—with a unanimous vote—directed the state’s attorney general to prosecute the appeal.

So began an eight-year effort on the part of Virginia to challenge the right of a non-slaveholding state to ban slavery from its borders. While the national context for the Lemmon slave case changed slightly over its eight-year run through the New York State court system, it can best be understood as a piece of the ongoing and ever increasing sectional tension over the rightful place of the institution of slavery throughout the United States.

In spite of the very vocal opposition of abolitionists to the idea of slavery, there was limited public and political support for immediate abolition. Believing that the United States could only rid itself of slavery through a constitutional amendment, the vast majority of Northerners were content to leave the institution untouched where it already existed. And, as long as slavery remained within the confines of the fifteen slave states, controversy could generally be minimized. The issues that roiled the decade of the 1850s centered on the status of slavery outside of the South.

The famous Compromise of 1850 sowed the seeds of discontent over the future of slavery by offering something for both North and South, but satisfying neither. The North, for example, favored the admission of California to the union as a free state, but was disappointed that the remainder of the Mexican Cession was open to the possibility of slavery if its inhabitants so agreed. Southerners, by contrast, were angered over California statehood, because it upset the sectional balance in the United States Senate, and were distressed that the slave trade had been abolished from the nation’s capital. Abolitionists were pleased by the elimination of the trade in Washington, but were dismayed that slavery was itself still permitted there.

The component of the Compromise of 1850 that created the most unrest, however, was its Fugitive Slave Law, which was designed to clarify the Constitution’s fugitive slave clause and the Fugitive Slave Law of 1793. The revisions provided that federal marshals could help slave owners track down runaways, federal commissioners would be appointed to adjudicate fugitive slave cases, and the commissioners would be paid more if they returned the accused to slavery than if they determined the subject to be free. Northerners noisily objected to a provision that allowed them to be deputized by U.S. marshals in pursuit of runaway slaves. In essence, the new law allowed Northerners to be forced to become complicit in the return of fugitive slaves. In response, northern states began refining so-called Personal Liberty Laws designed to provide accused fugitive slaves a more equitable chance at acquittal. Personal Liberty Laws, in turn, were perceived by southern states as unconstitutional and “obnoxious.” It was within this charged political and legal environment that Judge Paine had rendered his decision.

For Governor Johnson and Virginia’s General Assembly, the Lemmon case presented a legal challenge not to states’ rights but to property rights. According to their interpretation of the Constitution, comity among the states required the free states to respect slave owners’ rights when they traveled north of the Mason-Dixon Line. With an ultimate goal of appealing the case to the United States Supreme Court, Virginia took a major and intentional step toward the nationalization of slavery. If the nation’s highest court determined that New York did not have the right to prohibit slaves to travel through the state with their owners, a precedent would be established that, while states had the right to establish or abolish slavery for their own residents, they did not have the right to unconditionally forbid its presence in their midst.

 Virginia’s attempt to deny New York its “state right” to prohibit slavery within its borders was not lost on at least one contributor to the Richmond Enquirer. Only weeks after Judge Paine issued his judgment in New York City, an anonymous writer identifying himself only as “State Rights” submitted an article arguing that New York’s 1841 law banning slaves from the state was “not in conflict with the constitution of the United States.” While New York’s lack of comity may be “wanting in good fellowship,” the author was of the opinion “that each State has the right, and the sole right, to make laws relating to slavery.” The anonymous author of this letter to the editor reminded the Enquirer‘s readers that citizens are subject to local laws and that no constitutional principle allowed a citizen to “take the local law with him” to another state. “State Rights” was clearly out of step with Virginia’s political strategy, but saw that the states’ rights argument must remain consistent to have validity, even when it injured property rights in slaves.

Following Virginia’s appeal of Judge Paine’s decision to the New York Supreme Court, the case moved forward slowly. In Richmond, the General Assembly attended to the bureaucratic details of the appeal in an unhurried fashion, while Governor Johnson retained the services of New York attorney Henry D. Lapaugh. For its part, New York required Virginia to “execute bond for the costs,” which delayed scheduling the case before the New York Supreme Court. In December of 1855, Lapaugh optimistically reported that the case could be decided as early as March of 1856. He was mistaken.

 

In January 1856, Henry A. Wise (fig. 5)—a passionate advocate for slave-holders’ interests—succeeded Johnson as governor of Virginia. Assuming office on January 1, 1856, Wise wasted no time in pursuing the Lemmon case. On February 14, he instructed his Attorney General to retain the services of New York Attorney Charles O’Conor to assist Lapaugh in prosecuting the suit. A prominent and successful lawyer, O’Conor eventually pursued the Lemmon case on behalf of Virginia through both the New York Supreme Court and finally the New York Court of Appeals, the highest state court in New York.

A keen observer of national events relating to slavery, Wise paid particular attention to the Dred Scott decision rendered by the U.S. Supreme Court on March 6, 1857. The case revolved around the question of whether the many years spent by the slave Dred Scott living in the free state of Illinois and the free territories of Wisconsin and Minnesota made him legally free. This case shared legal issues with the Lemmon case in that Scott was not a fugitive. Chief Justice Roger B. Taney declared that Scott was still a slave, and therefore ineligible to sue in a federal court. In addition, and equally important to pro-slavery advocates in the South, Taney claimed that property in slaves was specifically protected by the United States Constitution.

Governor Wise noted that the decision would “irritate and unite the Black Republican Demons of Discord” and predicted that in “our Virginia Lemmon case … we must fight it out with them, step by step, inch by inch …” He clearly expected unfavorable decisions in the New York court system. Indeed, only by losing at the state level could the case be appealed to the U.S. Supreme Court. With Chief Justice Taney controlling the court, and having just determined that the United States Constitution protected property in slaves, Wise was certain that the Lemmon case would be decided in Virginia’s favor if he could only get it out of New York State.

While Taney had recently ruled in Strader v. Graham (1850) that state courts possessed the final authority in determining the slave status of blacks, the Chief Justice, a Maryland native, was also becoming concerned over the growing national agitation over the issue of slavery and, along with most Southerners, was growing more defensive of the institution. He hoped that his decision in the Dred Scott case would bring an end to northern antislavery agitation. An aspect of the decision that is little appreciated today but was broadly repeated at the time came near its conclusion, as Taney reflected on property rights and their protection through the due process clause of the Fifth Amendment. Attempting to end the debate over whether owners of slaves were entitled to greater protection than owners of other forms of property, Taney insisted that “no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description.” While the Lemmon case differed from the Scott case in that it was New York State and not the United States Congress abrogating slave rights, many observers (including Abraham Lincoln) believed Taney would rule against New York when the case was argued before the Supreme Court.

Complicating the political and judicial landscape were the editorial expressions of the Washington Union (the Buchanan Administration’s official mouthpiece), which represented the views of the executive branch in 1857. Symptomatic of the perceived movement toward the nationalization of slavery was its publication of an editorial proclaiming that slavery was, indeed, national, that slaves were recognized as property in the Constitution, and that the protection of that institution was the duty of every state. Appearing only seven months after Taney’s Dred Scott decision, the article proclaimed: “What is recognized as property by the Constitution of the United States, by a provision which applies equally to all the States, has an inalienable right to be protected in all the States.”

In a spirited congressional debate over the meaning of the Washington Union article and Virginia’s pursuit of the appeal, Senator Robert Toombs from Georgia in early 1858 attempted to argue that the slaveholding states had never asserted “the right to carry slaves into a sovereign State against its constitution.” To which charge, New York’s Senator Preston King offered the corrective that “the state of Virginia is now litigating in the courts the right of one of her citizens to hold slaves in the State of New York, the Lemmon case, well known through the country.” The Lemmon case was front-page news and clearly followed by editors and politicians alike.

In the state of political ferment following the Dred Scott decision, many Americans felt that the day would soon come when a Supreme Court decision would declare that individual states could not prohibit slavery within their borders. And there was a good chance that that Supreme Court decision could have been rendered on the Lemmon slave case.

The possibility that slavery would be made national by judicial action was a palpable reality by the end of the 1850s. Republicans had only to look at the Compromise of 1850, the Kansas Nebraska Act, the creation of an efficient slave code by the New Mexico territorial legislature, and the effort in California to create a “Territory of Colorado” in the southern portion of the state as evidence of an aggressive slave-power trend in the West. In addition, Taney’s opinion in the Dred Scott case that the Constitution protected property in slaves demonstrated that judicial support for slavery was in the ascendance, freedom was on the wane.

The “full faith and credit” and the “privileges and immunities” clauses (Article IV, Sections 1 & 2) would likely have provided sufficient basis for the Taney court to overturn the New York decisions. But the additional claim that property in slaves was protected in the Constitution and deserved “no less protection than property of any other description” placed the protection of “that kind of property” under the due process clause of the Fifth Amendment. If Taney was correct in believing that citizens could not be deprived of their property without due process of law, and that property in slaves was clearly protected in the Constitution, then slave-owners had the constitutional right to carry their slaves into the free states as well as the western territories unencumbered by local law. Or, so many Republicans believed. As Charles Sumner, the Republican Senator from Massachusetts, had earlier warned, the “Slave Oligarchy … contemplates not merely the political subjugation of the National Government, but the actual introduction of Slavery into the Free States.”

As expected, both the New York Supreme Court (December 1857) and the New York Court of Appeals (March 1860) ruled in favor of the state and against Virginia. O’Conor and Lapaugh logically argued the national import of the Constitution’s comity clauses and, after March 1857, insisted upon the relevance of the Dred Scott decision. After hearing Virginia’s arguments, however, the New York courts succinctly determined that “Comity does not require any state to extend any greater privilege to the citizens of another state than it grants to its own.”

Between 1852 and 1860, as the case worked its way through the New York court system, it grew in both notoriety and importance. Newspapers in New York and Virginia extensively covered developments in the case, and those stories were in turn widely reprinted. At the end of the decade, De Bow published a number of articles on the rising tide of sectionalism in the South. Submissions variously titled, “The Federal Constitution Formerly And Now,” “The Secession Of The South,” and “The South, In The Union Or Out Of It” all employed the Lemmon case to demonstrate that the constitutional rights of slave-owners were being egregiously eroded.

 

The nation followed the trials so avidly that shortly after New York’s Court of Appeals rendered its decision in March 1860, Horace Greeley and D. Appleton and Company both produced complete transcripts of all three judicial proceedings (fig. 6). Appleton’s advertisement pronounced that the Lemmon slave case was “one of the most significant and universally interesting trials that ever took place in this country.” Greeley sold his 146-page publication for twenty-five cents, five for one dollar, one dozen for two dollars, or 100 for sixteen dollars. So celebrated did the case become by 1860 that the first issue of Vanity Fair reflected on it without introduction or editorial explanation: “The South boasts of its lemon groves blooming and bearing fruit but once a year. The North has its Lemmons blooming perpetually, and shedding plentiful fruit into legal hands. We thought those Lemmons were squeezed long since, but find from the law reports, that they have taken a new ap-peal, and gone up for Lemmon-Aid.”

If the Lemmon case had reached the U.S. Supreme Court, an important step toward the nationalization of slavery could have been taken. In fact, however, Virginia did not appeal the decision of New York’s highest court. The reasons for this are not entirely clear, but a major factor seems to have been the election of John Letcher as Henry Wise’s successor as governor of the state. With John Randolph Tucker remaining as Attorney General under Letcher, as he had been under the last years of the Wise Administration, the decision seems to have been Letcher’s alone. A search of Letcher’s papers has not produced any justification for the decision. Letcher had worked hard in his campaign for the governorship to distance himself from antislavery remarks he had made a decade earlier, and perhaps he was engaging in a planned delay to see how the political landscape developed over the next several months in the presidential election of 1860.

As a Douglas Democrat and a conditional Unionist, he may have assumed that pushing the case to the Supreme Court would damage the Illinois senator’s chances as the party’s nominee in the fall. As it turned out, Douglas lost nationally in 1860, and polled a distant third in Virginia. Perhaps Letcher believed there was an outside chance that the Taney court would uphold New York’s claim to states’ rights, and he did not want to risk the consequences. Perhaps Letcher’s inaction in pursuing the case was merely the result of his longstanding political rivalry with Wise, whose faction of the Democratic Party in Virginia had vigorously opposed Letcher’s candidacy. In any event, Virginia did not pursue the case following the decision of New York’s Court of Appeals in the spring of 1860.

Nevertheless, as the nation moved toward war in 1860 and 1861, the Lemmon slave case figured prominently in southern states’ enumerations of their grievances against the North. In its Declaration of the Immediate Causes which Induce and Justify the Secession of South Carolina from the Federal Union, adopted on Christmas Eve, 1860, South Carolina’s secessionist delegates listed their reasons for their fateful decision. Among the numerous complaints against the North for its continuous assaults upon the institution of slavery, South Carolina included the taking of the Lemon slaves. Georgia’s declaration of secession similarly complained that in “several of our confederate States a citizen cannot travel the highway with his servant who may voluntary accompany him, without being declared by law a felon and being subjected to infamous punishments.”

The Lemmon slave case echoed in other gatherings over the Secession Winter. James Seddon, Virginia’s delegate to the Washington Peace Conference (and former owner of the future White House of the Confederacy in Richmond) proposed several compromise measures. On February 26, 1861, Seddon offered a constitutional amendment in seven parts. Article four demonstrated that Seddon understood the implications of the New York law prohibiting the transportation of slaves into the state: “And the right of transit by the owners with their slaves in passing to or from one slaveholding State or Territory to another, between or through the non-slaveholding States and Territories, shall be protected.”

While Governor Letcher seemed uninterested in appealing the Lemmon case to the Taney court, the irrepressible Henry Wise was quite persistent in promoting the constitutional protection of slavery. As a delegate to Virginia’s secession convention in the winter of 1861, Wise proposed an amendment to the United States Constitution establishing “A full recognition of the rights of property in African slaves.” Failing initially to gain the approval of his fellow delegates, Wise persisted and on April 13—as Confederate guns were firing on Fort Sumter—he succeeded in writing into a proposed constitutional amendment that Virginia planned on delivering to the United States Congress a clause declaring that “the rights of property in them [slaves] shall be recognized and protected by the United States and other authorities, as rights to any other property are recognized and protected.” Of the dozens of compromise amendments proposed between Lincoln’s election and the attack on Fort Sumter, fully one half carried provisions to protect slaves while in transit with their owners or to nationalize slavery outright. Wise, like Taney, believed that the right of property in slaves ought to be explicitly embedded in the national charter, superseding any state law.

The long shadow of the Lemmon case also influenced the Confederate constitution-makers in Montgomery. Article IV, Section 2.1 reflected the lessons learned from the New York court system. To the “privileges and immunities” clause, the Confederate Constitution added, “and shall have the right of transit and sojourn in any State of this Confederacy, with their slaves and other property; and the right of property in said slaves shall not be thereby impaired.”

 

Throughout those years of legal challenges and political parrying, the Lemon family remained in Botetourt County, Virginia. By 1860, Jonathan Lemon had acquired five new slaves—a woman of forty and four small children, the oldest eight—property they once again lost, this time as a result of the Civil War. Two of the Lemon sons fought for the Confederacy, while Richard Johnson, once the slave Levi, enlisted to fight for the United States from his home in Michigan (fig. 7). A mini ball through his left elbow near Beaufort, South Carolina, in December 1864, left him disabled for the rest of his life. He died in Ashtabula, Ohio, in 1921.

In April 1881, Jonathan Lemon deeded his Botetourt County property to his wife Juliet and his children, giving as his reason “the fact that the … property was mainly acquired by the party of the first part [Jonathan Lemon] … by his marriage with the party of the second part [Juliet Lemon].” Jonathan Lemon died nine years later, in 1890, but Juliet lived until 1909. They are buried in separate cemeteries in the Shenandoah Valley (figs. 8, 9).

The Lemmon slave case illustrates both the legal debate over slavery that transfixed the country during the decade of the 1850s and the persuasive emotional power of slave narratives in that decade. One of the ironies of the ongoing legal case was the willingness of some Southerners to allow property rights to supersede states’ rights when the issue was the protection of slavery. If Governor Letcher had pursued the case, it would in all probability have become the next Dred Scott decision, as envisioned by Lincoln. Had Virginia pushed the case in 1860, as historian Paul Finkelman has observed, the “chances were good that some type of slavery would have been forced on the North.” Had Governor John Letcher been as hot-blooded as Governor Wise, the names Jonathan and Juliet Lemon would be as familiar to us today as the name Dred Scott.

 

Equally important, the case illustrates the extent to which the actions of enslaved and free blacks created much of the legal ferment and constitutional litigation that exacerbated the growing sectional conflict over the Constitution’s stance toward slavery and forced the courts to confront it. The escape to Canada, over several years, of at least four young black men from one family in Appalachian Virginia and the swift and competent dispatch to Canada of eight more of their relatives by New York abolitionists demonstrated for many slaveholders the necessity of a constitutional amendment to protect slavery in every state.

In the end, Virginia’s pursuit of a constitutional remedy was derailed by the election of Lincoln. The rhetoric and editorials that the Lemmon case provoked in the South had done much to make that region believe that Lincoln’s election meant the ultimate strangulation of slavery. The taking of the Lemon slaves contributed to the belief that the North was filled with abolitionists who, in their fanaticism, were willing to shamefully violate the basic tenets of the United States Constitution while, in the North, accounts of the escape, rescue, and reunion of the Lemon/Douglas slaves created sympathy for this and other enslaved families. The story of Levi touched much of the North, while the plight of the Lemons outraged the South. Levi, the runaway slave, and Jonathan Lemon, the backcountry slaveholder of modest means, acted for their own reasons, but both played central roles in creating a political drama that helped spark a constitutional crisis and contributed to a civil war.

Further Reading

While some aspects of the Lemon slave case have been explored and published, others have not. The best and most extensive source for the constitutional implications of the case can be found in Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill, N.C., 1981). John D. Gordan III, “The Lemmon Slave Case” Newsletter of the Historical Society of the Courts of the State of New York, Issue 4, 2006; and William H. Manz, “‘A Just Cause for War'”: New York’s Dred Scott Decision,” New York State Bar Journal (Nov./Dec. 2007) further add to the legal context. For background on black abolitionist New York City see Thomas J. Davis, “Napoleon v. Lemmon: Antebellum Black New Yorkers, Antislavery, and Law,” Afro-Americans in New York Life and History 33 (Jan. 2009): 27-46.

Horace Greeley’s N.Y. Court of Appeals Report of the Lemmon Slave Case: Containing Points and Arguments of Counsel on both Sides, and Opinions of all the Judges (New York, 1860) is the best contemporary account of all three court hearings.

Bath County, Virginia, public records, Civil War enlistment and pension files, American and Canadian census records, and contemporary newspapers were used extensively for the white Lemon and black Douglas/Wright/Johnson family.

The authors would like to thank Bryan Prince, historian of the African-American presence in Canada, and Shannon Prince, curator of Buxton National Historic Site and Museum in Buxton, Ontario, who generously shared their extensive research and their insights. Sarah Levine-Gronningsater shared her research on Louis Napoleon and the New York City abolitionists in the Lemmon case. Shirley Craft kindly gave us permission to use photographs of Juliet and Jonathan Lemon, and Jane Scott provided much needed legal advice. Jane Ailes provided access to contemporary newspaper accounts of the Lemmon Case and its immediate aftermath. (The family was “Lemon” in Virginia, but the case was “Lemmon” in New York and in the public prints. These separate spellings have been maintained.)

 

This article originally appeared in issue 14.1 (Fall, 2013).

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Marie Tyler-McGraw is an independent public historian whose research specialties have been race and the upper South. Her most recent book is An African Republic: Black and White Virginians in the Making of Liberia (2007).

Dwight T. Pitcaithley is College Professor of History at New Mexico State University and an elected member of the American Antiquarian Society. From 1995 until 2005 he served as chief historian of the National Park Service

Next year will be the two-hundredth anniversary of Marbury v. Madison, one of the most famous cases ever decided by the U.S. Supreme Court. In Marbury the Court for the first time struck down a portion of a federal law as unconstitutional. It was, to say the least, an unusual event. The Court did not again explicitly exercise its power of judicial review over federal legislation for over half a century, when it struck down the Missouri Compromise in the infamous Dred Scott decision in 1856. At the dawn of the twenty-first century, such actions now seem almost routine. In the 1990s alone the Supreme Court struck down two dozen acts of Congress as violating the Constitution. At the time of Marbury, American courts were alone in the world in claiming such a power to set aside legislation. In the twentieth century, the power of constitutional review spread across the globe and is now almost universally regarded as an essential feature of a democratic and constitutional political system. Few decisions by any court can rival the symbolism and influence of the Marbury decision. Few judges can rival the stature of Marbury‘s author: Chief Justice John Marshall.

The Marshall years were, as R. Kent Newmyer aptly labels them in his new study of the great chief justice, the heroic age of the Supreme Court, and Marshall was without a doubt the hero who defined that age. No justice before or since so dominated the Court as John Marshall did. It is common to name periods of Supreme Court history after the chief justice, but the Marshall Court is the only one that can be labeled that way without inviting immediate qualification. It was John Marshall’s Court. And in some ways, it still is.

There were few signs of what was to come when Marshall first took his seat on the bench. Marshall was one of outgoing President John Adams’s notorious last-minute appointments to the federal judiciary, which had itself been dramatically expanded by the lame-duck Federalist Congress. Even as he assumed his new office, Marshall finished out his duties as secretary of state, duties that included the preparation and delivery of judicial commissions. The incoming Jeffersonians, who had swept the federal elections of 1800 from the Federalists, held the federal judiciary in contempt and regarded it as filled with partisan hacks, especially after the legal persecution of Thomas Jefferson’s supporters in the years leading up to the 1800 election. The Jeffersonians in Congress in fact embarked on a sustained attack on the courts, which included the impeachment and near removal of the intemperate Justice Samuel Chase. The Federalists had held the Supreme Court in only slightly better regard. The Supreme Court heard few cases, and the justices were obliged to spend much of their time individually riding circuit to hear cases out in the states. In overseeing the plans for the construction of federal buildings in the new capital in Washington, then Secretary of State Marshall neglected even to provide space for the Supreme Court. Sessions were not infrequently cancelled when too few justices showed up. In the Court’s short history three prior chief justices had resigned from the bench, the first to pursue the more attractive office of the governorship of New York, and others had declined appointments to the Court. Marshall was not even the president’s first choice to fill the vacancy on the Court.

In these inauspicious circumstances, Marshall remade the Court. He ended the traditional practice of each justice issuing an individual opinion in every case. Instead, the Court began to speak as a single body, issuing one authoritative opinion that was often written by Marshall himself. The chief justice helped stabilize the Court, remaining in office thirty-four years until his death in 1835. He helped the Court weather the initial Jeffersonian storm, and then found allies in government and the country who supported his nationalistic vision. Indeed, the great constitutional struggles of the early nineteenth century created the opportunities for Marshall to weigh in and promote his goals. All the while he managed to maintain his informal leadership of the Court even as his political opponents chose the new justices who replaced his original Federalist colleagues. A moderate Federalist from Virginia, Marshall remained at home in the new political world after 1800 even as the Federalist Party collapsed into irrelevance. An astute political operator, Marshall helped make the Court into a respected and influential institution and helped lay the foundations for the type of power that it would exercise in the twentieth century.

Newmyer’s is one of several valuable new studies of Marshall that have appeared in the past few years. Part of the Southern Biography Series at LSU Press, this book focuses on Marshall’s constitutional thought and its development over time, primarily as expressed in his many judicial opinions. Newmyer, who earlier produced a similar and well-regarded study of Justice Joseph Story (whom one legal historian has called “a thinking man’s John Marshall”), handles the task expertly. This readable “interpretive biography” examines Marshall’s “life in the law,” explaining his work and contribution to the nation’s political development in relation to his personality and early career.

As Newmyer notes, Marshall was not the most learned lawyer of the early republic, and his greatness primarily rests on surprisingly few judicial opinions. Justice Oliver Wendell Holmes once asserted, with some truth, that Marshall occupied “a strategic point in the campaign of history, and part of his greatness consists of his being there.” But Marshall knew how to take maximum advantage of his opportunities, and how to avoid overplaying his hand. Although by the time of his death the chief justice was quite pessimistic about the future of his constitutional values, and of the Constitution itself, Newmyer nicely traces the ways in which Marshall was quickly made into a mythic figure and a central reference point for those who came after him. Marshall not only had the advantage of “being there,” but also of holding views that would eventually win the day and giving reason for later judges to find in his thinking a reflection of their own beliefs and ambitions. His colleague and friend, Joseph Story, published in 1833 the extremely influential Commentaries on the Constitution, which effectively identified the Constitution with Marshall’s particular understanding of it. At the time of his death, he was revered in the commercial North. Throughout the nineteenth century, Marshall was the hero of nationalists. In the battles of industrialization, he was the defender of property rights. To the New Dealers, he was the advocate of government power. And ever since the Supreme Court invoked the language of Marbury to denounce southern resistance to school desegregation, he has been above all a prophet of judicial power.

Marbury was an impressive performance by Marshall and indicative of his achievements on the Court, but not for the reasons that it is usually celebrated now. William Marbury was another of the last-minute judicial appointments made by President John Adams, in this case to the post of justice of the peace in the District of Columbia. Marshall, as secretary of state, was unable to deliver all of the commissions, however, and when Thomas Jefferson assumed the presidency he ordered that the undelivered commissions remain that way. Marbury asked the Supreme Court to issue a writ of mandamus to force Jefferson’s secretary of state, James Madison, to deliver the commission and allow him to take office. The administration denied the authority of the Court to intervene in what Jefferson regarded as an internal matter within the executive branch, refusing to send a lawyer to argue the case before the Court or even to admit the existence of the commission. The capital was full of speculation that the president would refuse to obey the Court if Marshall ruled against him. Putting Jefferson to the test risked a humiliating blow to the Court’s prestige and perhaps enduring consignment to political irrelevance, but neither did Marshall want to accept Jefferson’s contention that the Court could not supervise presidential conduct. Marshall escaped the dilemma by declaring that Congress exceeded its constitutional authority by giving the Court the power to hear such a case and thus dismissed Marbury’s case for lack of jurisdiction. (Marshall’s interpretation of the statute and the Constitution in Marbury remains controversial, feeding the suspicion that he was merely looking for an excuse to avoid having to rule either for or against the administration.) Marshall only reached this conclusion, however, at the end of a lengthy opinion chastising the administration and making clear that the Court would have ruled in Marbury’s favor on the merits. The power of judicial review was first used by the Court to renounce some of the power that Congress had tried to give it. Marshall was simultaneously able to make his legal and political points against the administration, to claim the power of judicial review, and to avoid a direct confrontation with Jefferson that the Court probably would have lost.

Although Marbury is now celebrated for its bold assertion of the power of judicial review, that assertion attracted little attention at the time. The Jeffersonians instead filled the papers with harsh denunciations of Marshall for addressing the substance of a case that the Court admitted it never should have heard. In fact, Marshall’s explanation of the power of judicial review was wholly uncontroversial. After all, the Court did not offend any political constituency or significantly limit congressional power by striking down a section of the Judiciary Act. By 1803, few doubted the existence of some form of judicial review under the Constitution, and the Supreme Court had noted the existence of such a power in earlier cases. Marshall’s argument in favor of the power was itself unoriginal. Marshall did not boldly invent a new power for the Court. He merely gave eloquent expression to a widely understood constitutional principle. Marbury is exemplary of what political scientist Mark Graber has called the “passive-aggressive” character of the Marshall Court. Marshall was adept at seizing opportunities to give voice to his constitutional vision and enhance judicial authority while avoiding actions that would expose the Court to reprisals or embarrassment. In doing so, he successfully navigated dangerous political waters and kept the Court afloat.

Newmyer concludes by observing that first Jefferson and later Andrew Jackson taught Marshall the bitter lesson “that the Court does not have the final word on the Constitution . . . What he did not fully appreciate was that the Court as an institution did not have to be final to remain the center of American constitutional government” (484). To his chagrin, Marshall was rarely able to settle constitutional and political debates with his opinions, and his arrogant belief that the Court could and should do so eventually contributed to his beloved institution’s great “self-inflicted wound” of Dred Scott. But Marshall did demonstrate that the Court could have an important voice in constitutional debates, and Marshall’s reputation rests in no small part on the fact that his constitutional values were shared by others and eventually became politically dominant. Marshall could not have anticipated, and can hardly be credited for, the kind of power that the Court wields today. Even so, the lessons of the Marshall Court remain valuable ones. The Court’s power and authority depends on its political circumstances and the extent to which its constitutional opinions find favor with others.

 

This article originally appeared in issue 2.4 (July, 2002).

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Keith E. Whittington is associate professor of politics at Princeton University, and the author of Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, Mass., 1999) and Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence, Kans., 1999).

During Barack Obama’s swearing-in ceremony as the 44^th president of the United States, the first African American to be elected to this office proclaimed: “the time has come to reaffirm our enduring spirit; to choose our better history; to carry forward that precious gift, that noble idea, passed on from generation to generation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness.” As he said these words, President Obama stood in front of the U.S. Capitol Building and beneath its colossal bronze dome statue: Thomas Crawford’s Statue of Freedom (fig. 1). This historic scene becomes all the more significant when we consider the history and meanings of the Statue of Freedom, one of the most visible icons in Washington, D.C.

Now assumed to be a symbol of national unity or an Indian Princess, Crawford’s statue emerged out of the contest between the North and South. Between 1853 and 1857, Jefferson Davis used his position as the Secretary of War in charge of the construction and decoration of the Capitol extension to eliminate references to slavery in a public building that belonged to both regions. This slave owner, congressman, and senator from Mississippi who later became president of the Confederacy vehemently argued for the slave system and the extension of slavery into newly acquired lands. He also used his cabinet position to occlude references to slavery by accepting, rejecting, and recommending changes in the iconography of particular artworks. Crawford’s intentions in the statue’s iconography were co-opted by Davis, whose programming for the statue’s meaning influenced the artist from the beginning. In fact, the Statue of Freedom, begun in 1855 after the highly controversial passage of the Fugitive Slave Act (1850) and the publication of Harriet Beecher Stowe’s Uncle Tom’s Cabin (1851) and finished in 1863 during the Civil War, has as much to teach us about the intricacies of race and racism as it can about the politics of public art and slavery. Only after we know the statue’s history and examine it in the context of antebellum literature and art can we truly understand it. By considering the statue alongside Herman Melville’s novella, “Benito Cereno” (1855), Constantino Brumidi’s dome fresco in the U.S. Capitol Rotunda, and Thomas Nast’s response to the Emancipation Proclamation in Harper’s Weekly, we can recover Crawford’s statue as an articulation and visualization of the politics of race, racism, and slavery within the public imagination and political realm of Washington, D.C.

In addressing these complexities, I employ the “veil of race” metaphor constructed by W. E. B. DuBois throughout his 1903 book, The Souls of Black Folk, in which bondage and freedom are intertwined in the same way they are in Crawford’s Statue of Freedom, Melville’s narrative about a fictional slave revolt, Nast’s visual celebration of the Emancipation, and Brumidi’s dome fresco. DuBois, a civil rights activist, historian, and founder and editor of The Crisis, the journal for the National Association for the Advancement of Colored People (NAACP), used the “veil of race” metaphor in Souls of Black Folk to claim that whites fail to see blacks, who are “shut out from their world by a vast veil.” This invisibility had profound consequences for African Americans: “The awful shadow of the Veil … hung between us and Opportunity,” he argued, asserting that “the problem of the twentieth century is the color-line,” which contributed to “the Negro problem.” For DuBois, real freedom, as opposed to emancipation, would only occur once this veil was lifted. DuBois’s metaphor and Melville’s novella can help us understand how the contradictions embodied in the Statue of Freedom did—and did not—work to veil slavery. What will become evident is that the veil over slavery was consciously and carefully created and protected, as well as challenged, in the nineteenth century.

Between 1853 and 1857, Jefferson Davis used his position as the Secretary of War in charge of the construction and decoration of the Capitol Extension to eliminate references to slavery in a public building that belonged to both regions.

To understand Davis’s role in attempting to remove visual symbols of slavery from the U.S. Capitol building’s decoration, it is necessary to revisit the complex iconography of Crawford’s Statue of Freedom, which I had earlier discussed in Art and Empire. There I show that Thomas U. Walter, the architect of the U.S. Capitol, had first suggested in a preliminary drawing of 1855 (fig. 2) that a monumental statue crown the new dome of the Capitol extension. In creating an allegorical female figure holding a pole surmounted by a liberty cap, Walter appropriated the well-known iconography of Libertas. 

 

Libertas traditionally appears in the visual arts as a female who wears a Phrygian cap (also referred to as a pileus) and who holds a staff or stake, the so-called “liberty pole.” In Latin, the word libertas means freedom, the state of being free from physical constraint or despotic control. The personification of liberty thus derives from antiquity, where it first stood for personal freedom from manumission and, later, in the Roman empire, when it referred to both political liberty and constitutional government. The personification became codified in seventeenth-century emblem books and was used subsequently during the American and French Revolutions. During that time, Libertas symbolized freedom from tyranny, as is evident in the Paul Revere masthead for the Massachusetts Spy in 1781 (fig. 3). But the liberty cap and staff that Augustin Dupré depicted on the coin Libertas Americana in 1781 (fig. 4) disappeared from the first U.S. pattern dime of 1792 because some considered the symbols of ancient Roman manumission too inflammatory for inclusion on U.S. coins. By the 1850s when Walter first suggested this allegory for the Capitol dome, Libertas already was well known throughout U.S. art and culture and held references to freedom and slavery, references that threatened the tenuous link between North and South. 

Although Crawford had been commissioned to realize Walter’s plan, his first design (fig. 5) inexplicably departs from the architect’s initial proposal and the tradition for Libertas. His Freedom Triumphant in War and Peace fails to include any of the well-known symbols of cap or liberty pole. Instead, Crawford rendered a female figure with two symbols associated with war and peace—the sword and olive branch—creating a vague preliminary design that lacks clarity of meaning and composition. 

 

Four months later, Crawford submitted a revised design in which he abandoned the theme of peace and established more clearly the work’s reference to Libertas. In this second version for Statue of Freedom, Crawford followed Walter’s concept of depicting a female figure in long robes and the Phrygian cap (fig. 6). Crawford added four other emblems: the shield of the United States, “the triumph of which,” Crawford maintained, “is made apparent by the wreath held in the same hand which grasps the shield”; a sword held in her right hand, “ready to use whenever required”; a globe upon which Liberty stands and which represents “her protection of the American world”; and wreaths on the globe, which, according to the artist, signify unity and justice. Crawford finished the statue by placing stars upon her crown “to indicate her Heavenly origin.” This second design, which both Crawford and Davis referred to as “armed Liberty,” eliminated the olive branch and its reference to peace, and retained the sword. 

The militarism suggested by the sword is reiterated by the addition of the globe. Crawford’s “American world” corresponded to the vision of the United States as a great empire that would influence other nations to adopt its republican form of government. The orb also suggests the nation’s expanded view of manifest destiny, which extended beyond the continent to encompass Cuba and the Caribbean. “Armed Liberty” thus reflects the militaristic rhetoric of the 1850s and matches the administrative responsibilities of Jefferson Davis, who as the Secretary of War advocated the purchase of Cuba and Nicaragua as a means to expand slavery farther south into other nations. And the second version significantly returned the liberty cap to the allegory’s head. 

 

Although the statue adhered to his ideological agenda as Secretary of War, Davis was troubled by the liberty cap. He argued in a letter to Montgomery C. Meigs, the supervising engineer of the Capitol extension, that the cap’s “history renders it inappropriate to a people who were born free and would not be enslaved.” He recommended that “armed Liberty” instead “wear a helmet,” given “that her conflict [is] over, her cause triumphant.” Davis, who would become the president of the Confederacy during the Civil War, understood ancient Roman slavery. It fell to Meigs to explain the situation to Crawford: “Mr. Davis says that he does not like the cap of Liberty introduced into the composition [because] American Liberty is original & not the liberty of the free slave.” Meigs explained that according to Davis, the cap that became a revolutionary symbol in France derived from “the Roman custom of liberating slaves thence called freedmen & allowed to wear this cap.” 

Davis clearly understood the practice in ancient Roman manumission in which freed slaves covered their newly shorn heads with the pileus cap while magistrates touched them with a rod (the vindicta). He also understood that the liberty cap, which had referred to tyranny and freedom during eighteenth-century French and American revolutions, had come to signify antislavery causes by the middle of the following century. By refusing to garb an allegory of Liberty in a pileus cap, Davis rejected the notion that the slaves on his plantation also desired the same type of freedom, deliberately ignoring the perspective of the disenfranchised black slaves working in his cotton fields. In fact, Davis refused to allow any work in the U.S. Capitol Building to allude to slavery either overtly or covertly, via the cap or any other signification. Such maneuvers aimed to elide the tensions between the North and the South over this volatile issue during a period of escalating regional and political conflict. And although Crawford, like Walter in his initial design for the U.S. Capitol dome, may have intended the cap to refer to independence or the concept of liberty embodied in U.S. democracy, Davis’s objections ironically ensured that the symbol would be associated with Southern slavery regardless of the artist’s and architect’s original intent. 

 

In response to Davis’s objections and recommendations, Crawford replaced the objectionable cap with a helmet and eagle feathers, transforming what clearly had been an allegory of Liberty into a hybrid monument that combines three traditional personifications: Liberty (signified by the title), Athena, the ancient Greek goddess, called Minerva in ancient Rome (signified by the helmet), and America (signified by eagle feathers). By adding the feathers to the helmet, Crawford associated America with Liberty, an iconographic tradition that began before the Revolutionary War, as in Paul Revere’s masthead (fig. 3), where the Indian princess with tobacco leaf skirt and headdress holds the cap and staff. A majestic and robust female figure, the Statue of Freedom especially evokes Athena/Minerva, goddess of war and of the city, protector of civilized life, and embodiment of wisdom and reason. Crawford’s figure, in fact, emulates Phidias’s fabled Athena Parthenos, a work reconstructed by Quatremère de Quincy in Restitution de la Minerve en or et ivoire, de Phidias, au Parthénon (fig. 7), which Crawford must have consulted. Both the ancient and the modern works include the helmet, the breast medallion, and the shield along the side. Even the fluted cloak gathered from the lower right to the upper left shoulder corresponds in these two matron types. Their immobility, severity of facial expression, military accoutrements, and colossal size convey rectitude and control.

Ironically, Statue of Freedom, meant to signify white superiority by Jefferson Davis, was assembled out of the discrete symbols of a host of Others: the black body (as embodied by the pileus and pole, which Davis insisted be omitted), the Indian body in the form of the eagle feathers and allegory of America as an Indian princess, the female body in the form of the female personification, and the “primitive” body, which intersects the first two. These Others were present within the nation writ large but excluded from full participation in its political and civic life.

Around the same time that Crawford was working through various designs for his Statue of Freedom, Herman Melville was at work on “Benito Cereno,“ a story based on actual slave revolts, which was first serialized in Putnam’s Monthly (1855) and then included in his collection of short stories, Piazza Tales (1856). Like Crawford’s statue, Melville’s novella speaks to the volatility of race and slavery in the antebellum United States. But unlike Crawford and his patron, Jefferson Davis, Melville aimed to pull aside and expose the multiple veils that white Americans used to conceal the realities of slavery and the threat of slave insurrection. 

 

Melville opens the story with a description of a strange vessel (the San Dominick) that the captain of a Massachusetts whale boat sees slowly emerging from the fog off the coast of Chile. The weather thwarts Captain Delano’s effort to discern the people who occupy this vessel in distress. He initially mistakes the African slaves who occupy the ship for monks with “dark cowls,” perceiving the “dark moving figures” revealed through the open portholes as “Black Friars pacing the cloisters.” It takes a while for the captain to recognize that the San Dominick is a slave ship, carrying human cargo from one colonial port to another. Delano boards the slave ship to assist in its piloting. There he finds the exhausted Spanish captain, Benito Cereno, in a frenzied state, presumably as a result of a difficult journey around Cape Horn. Cereno appears to be under the nurturing care of his solicitous slave, Babo.

But on the San Dominick, appearances are deceiving. In reality, Babo is a liberty-seeking insurrectionist who has led a successful mutiny and gained control of the ship. Cereno is no longer a captain; instead he is Babo’s hostage. Delano and the reader continuously misread the situation, confusing slave and master.

The mutinous Babo especially acts the role of affectionate, imitative, docile, devoted, and “Sambo”-like servant, creating a cover that conceals his conspiracy of rebellion and murder. Babo’s masquerade—which the San Dominick’s captain understands completely and in which he participates against his will—remains a mystery to Delano until the end. The veil that has hidden mutiny and murder from Delano—and the reader—is removed literally and figuratively when the reality of mutiny and the murder of whites aboard the ship becomes known, slowly and dramatically. This occurs through the unveiling of the skeleton of the former ship’s owner, Don Alexandro Aranda, which Babo has used to replace the boat’s figurehead. Delano finally realizes Babo’s mutiny and beheads him. The masquerade performed by Babo and Cereno to mislead Delano tests both the American captain’s posture of innocence and that of Melville’s audience, exposing the captain’s own racial prejudices and revealing one way in which a white racist mind might react to slave insurrection. 

 

Both Jefferson Davis and the fictional Babo deflect attention away from insurrection, although for opposite reasons: Davis wanted to forestall it and Babo to guarantee its success. Crawford’s statue and “Benito Cereno” thus expose the ironic relationship between liberty and slavery, which depends upon a series of veils, both literal and metaphoric. Just as Delano and the reader could not initially unmask the reality of slave revolt on the San Dominick, the Statue of Freedom, standing triumphantly over the globe of the world, successfully, if temporarily, masks the controversy over slavery and race behind the veil of Athena/Minerva or the Indian Princess. The liberty cap that Davis insisted be removed, in other words, continues to exist on some level because we can recover its presence (and erasure) through Davis’s and Meigs’s letters. The future president of the Confederacy believed that he could succeed, like Babo, in a masquerade that would pull a veil over the true meaning of the statue and its attendant associations with slavery. Whereas Babo’s plot becomes apparent to the reader and to Delano by the end of the narrative, Davis’s pro-slavery impulses succeeded for a time to veil the true meaning of the statue both as a symbol of freedom and as a reference to Southern slavery. In other words, whereas the skeleton of the murdered slave-trader is uncovered from the figurehead in “Benito Cereno” to expose the slave revolt and masquerade, the helmet never comes off the Statue of Freedom to reveal the “hidden” liberty cap. Melville’s story ends with Babo’s death; burnt to ashes, his head “for many days … fixed on a pole in the Plaza, met, unabashed, the gaze of the whites,” he faces a church in which the bones of Aranda were preserved. The skull of the black insurrectionist on the pole, in fact, emulates the cap on the staff that Walter had proposed in his initial design for the U.S. Capitol dome and that Davis insisted be banished. 

 

“Benito Cereno,” like Crawford’s statue, also contributed to the debate over the extension of slavery in the 1850s, using the theme of black uprising to draw attention to the inhumanity of chattel bondage. Melville demonstrated in his short story that the history of U.S. resistance to slavery was a history of superimposed moments in which the destiny of the new republic—what some considered its providential design—was still very much at issue. Melville understood the scope and intricacy of contending pro- and anti-slavery forces, both of which were entangled in the ethos of revolution that defined the United States from the beginning and that was still implicated in slavery. The writer saw the centrality of slavery and slave revolt in antebellum U.S. political and cultural life and the corresponding shadow of blackness that the San Domingo’s successful slave revolt cast over the failed design for a democratic society. Davis, on the other hand, did everything possible to veil the reality of slavery on his plantation and signified by the Statue of Freedom, eventually leading the Confederacy in Civil War in his attempt to perpetuate that particular institution in the South.

The celebrated cartoonist Thomas Nast, and the Italian fresco artist who worked on the U.S. Capitol, Constantino Brumidi, commented directly on both the veiling at work in Crawford’s statue and the politics of that veiling. On the eve of the Civil War and during the war itself, these two artists used very different media to represent and reinterpret Crawford’s rendition of Libertas, lifting the veil that Crawford and Davis had placed in front of it so that its meanings could be more clearly discerned by U.S. audiences.

 

Published in Harper’s Weekly on January 24, 1863, just after a different revolution was brought about through Lincoln’s Emancipation Proclamation, Nast’s “The Emancipation of the Negroes, January, 1863—The Past and the Future” (fig. 8) positions Crawford’s proud and triumphant statue center stage, indicating that Liberty was explicitly suggested in the statue’s title and making it possible for some viewers to link an image of U.S. freedom with black emancipation. Within the engraving’s central frame, an African American family, united at last, participates in domestic activities under the watchful eyes of Lincoln, whose portrait is located by the fireplace. The forced separation of enslaved families gives special significance to the presence of the mother, father, sons, and daughters gathered around the hearth: Lincoln’s act has enabled former slaves to form a tight nuclear family. The outer vignettes on the left side illustrate the hardships of slave life, including beatings and forced labor, the threat of the auction block, and separation of families. The right side shows the freedom, prosperity, and domesticity that African Americans will enjoy as free people; they exchange money at a bank, attend school, and maintain family ties.

 

Nast placed the Statue of Freedom in front of the word “Emancipation,” which is emblazoned amid light and clouds, explicitly connecting the statue with slavery and the hope for freedom. Justice, at the upper right, holds the scales, while on the left allegorical figures, perhaps representing the demons of slavery, chase fugitive blacks through a field. Nast implies that Crawford’s statue promised emancipation and now stands triumphantly and proudly as she views the scenes below. 

Both Lincoln and the concept of freedom embodied in the statue, Nast suggests, contributed to the end of slavery and made a bright future possible, seen in the smaller encircled motif below. Here Father Time holds a white child on his lap as a black youth kneels before them. These two figures probably represent Kronos (time) and Orthros, a child who symbolizes dawn and the beginning of a new day. Orthros appears to be removing the chains of the African American man before him, symbolizing the new day of freedom for the race he represents.

 

During the very year in which Lincoln freed slaves in the Confederate states and Nast depicted Crawford’s statue as the instrument of their salvation, Brumidi was working on the curved canopy fresco under the dome in the Rotunda in the U.S. Capitol. He submitted his design for the Rotunda Dome fresco during the autumn of 1862, while the Capitol was being used as a hospital for wounded soldiers. He continued work on the paintings while the Civil War continued. By the time Brumidi completed the project in late 1864, the war still raged on. While Jefferson Davis served as president of the Confederate States and raised their armies, Brumidi significantly peopled the Capitol dome with two figures of the formerly banished Liberty and two others of Athena/Minerva (fig. 9).

 

In this vast and complex allegorical painting that represents the Apotheosis of George Washington, a capped Liberty sits beside the first president of the United States, looking toward him in reverence while holding an open book in one hand and the fasces in another (fig. 10). The pileus cap reappears on the head of “Young America,” who holds the reins of horses that belong to Ceres, the goddess of agriculture (fig. 11). Minerva also appears twice: first in the canopy beside “Science,” where she stands sedately and points to an electrical generator (fig. 12), and then directly below the seated image of GeorgeWashington (fig. 13). Here Minerva wears the same helmet with stars found in Crawford’s Statue of Freedom. She also holds the American aegis in her left hand and a sword in her right, reiterating symbols found on the dome’s exterior. S. D. Wyeth’s 1866 published description of Brumidi’s allegorical fresco refers to this figure as “Freedom, terrible in vengeance, with upraised sword,” making it clear that the artist emulated Crawford’s helmet, accoutrements, and military references. Whereas Crawford’s exterior goddess stands imobile because her battle is over, Brumidi’s interior Minerva as Freedom raises her sword and shield to combat Tyranny and Kingly Power (fig. 14).

 

Brumidi went further than just reintroducing once-banned images. According to George C. Hazelton Jr., author of The National Capitol: Its Architecture, Art and History (1897), the artist provided recognizable facial features for Revenge (who holds two lighted torches) and Anger (struck by a thunderbolt and biting his finger). They are based respectively on Jefferson Davis and Alexander H. Stephens, the vice-president of the Confederacy. John B. Floyd, Secretary of War under President James Buchanan who later became a Confederate soldier, and Robert E. Lee, the commander of the Southern forces, also appear in the faces of the gray-bearded Tyranny and Discord. Brumidi was completing these figures in April 1865, the month when General Lee surrendered and President Lincoln was assassinated. The following month, when Brumidi was starting “Science,” with its figure of Liberty, Union troops captured Jefferson Davis in Georgia. As Hazelton observed, “The scene itself is certainly suggestive of the stamping out of the Rebellion: a thunder-bolt, representing the wrath of the Gods, is being hurled from on high at Stephens; while the President of the Confederacy … is fleeing from the wrath of the colossal figure of armed Liberty above.”

 

When in 1859 Walter rendered his cross-sectioned view of the dome (fig. 15), including Brumidi’s vigilant Minerva inside and Crawford’s Statue of Freedom outside and above, he could not have foreseen these events, although Hazelton in his description of the figure as “Armed Liberty” recognized the relationship between the works inside and out. The cross-section of the U.S. Capitol dome by Walter further makes it clear that the two figures of Minerva, one outside and immobile, the other inside and actively pursuing the leaders of the Confederacy, must be seen in relation to each other. The Statue of Freedom’s serenity and fortitude assure her eventual victory, not only on behalf of the Union, but also on behalf of the slaves. When in 1862 Brumidi decided to include allegories of the thirteen original states surrounding George Washington, he could not have been certain that the slaves would be freed. But the placement of a southern state—Georgia, with cotton boll wreaths in her hair—beside Liberty (fig. 10) takes on additional meanings in this context. Liberty finally can wear her cap because Jefferson Davis could not veil or erase it. Whereas Liberty signified freedom from Great Britain during Washington’s time, by 1863 Liberty also referred to enslaved African Americans. Liberty’s position enthroned directly above the vanquished Southern leaders takes on a similar meaning; she now emerges separate from Minerva, seated beside the South. Because of the Northern victory at the end of the Civil War, Liberty now could embody the visual rhetoric of universal democracy and freedom that Davis had attempted to banish from Crawford’s Statue of Freedom and that Nast nevertheless recognized within it. 

 

Jefferson Davis understood the texts, events, and images that gave meaning to the liberty cap in ancient Rome and antebellum America. He willfully misread the pileus as a symbol of black emancipation when in ancient Rome it meant personal freedom and political liberty. His understanding of this emblem—its ancient history and its contemporary resonances—which were conveyed by Meigs to Crawford, played a decisive role in the figure’s final design. Davis’s knowledge and his political agenda were central to the statue’s veiling, to the ways it removed slavery from the national celebration of freedom. In other words, Crawford’s Statue of Freedom reminds us that as words and iconographic symbols, “freedom” and “liberty” had a lineage stretching back to the ancient world, a lineage that antebellum Americans were keen to claim for themselves. At the same time, what the statue does and does not depict reminds us how fraught “freedom” and “liberty” were in the final years of North American slavery. Davis believed that the Statue of Freedom could eliminate—at least symbolically—the problem posed by representing liberty in a slaveholding nation. By the 1860s, the statue’s meaning and the artistic compromises upon which that meaning depended were countered by artists like Nast and Brumidi, who used Libertas and the Statue of Freedom to comment directly upon the politics of race and slavery. Intending to send a message, Jefferson Davis wound up starting a debate. 

 

Unfortunately, that debate, which ranged from statue to fresco to engraving and which was so visible in the nineteenth century, has been all but lost. Here, it is useful to compare Crawford’s Statue of Freedom to Melville’s “Benito Cereno.” As we have seen, the statue embodies many of the same cultural and political tensions that the short story “Benito Cereno” so brilliantly embodies and problematizes. But Melville’s story guides readers to uncover what has been hidden: Delano functions like the reader who fails to understand fully the events aboard the San Dominick. He interprets events on board to satisfy his preconceived notions about race, economics, and white supremacy. Delano reads the situation within the context of normative black and white power relations. Unable to see the reality of black insurrection and power, he was also unable to imagine whites subordinated to black control. The reader, like Delano, finally fully understands the events that had transpired when he—and we—read Don Benito’s legal deposition, which forms the last part of the novella. Crawford’s statue draws a veil over slavery and over the political machinations that determined its final design. Most viewers cannot read these complex meanings without a text to explain the figure’s complex iconography and the reasons for its veiling of slavery. Above all this underscores the distinction between the written word and visual representation: Melville’s story explicitly points to the complexities spawned by southern slavery, while Crawford’s statue veils them—unless a viewer understands the role that Davis played in the creation of one of the most recognizable statues in Washington, D.C. This hidden meaning, this veiling, became even more poignant during Obama’s inauguration as he stood below the Statue of Freedom, taking his oath and speaking about “the God-given promise that all are equal, all are free.” At least for the moment, the “veil of race” had lifted, allowing one black man to cross over the color-line to become head of state—even if the majority of Americans of all races knew nothing about the history of race and racism encoded in the very visible statue looming above him. Given the racial tensions that have arisen and may continue to arise during Obama’s presidency, the Statue of Freedom’s ambiguous history, veiled meanings, and dominant position atop the U.S. Capitol building, embody current racial dynamics within the nation state. Unfortunately, the color line that DuBois wrote about over a century ago still exists.

Further Reading:

This essay revisits and expands upon issues I had earlier addressed in Art and Empire: The Politics of Ethnicity in the U.S. Capitol (New Haven, Conn, 1992; reprint, Athens, Ohio, 2001), and “Political Compromise in Public Art: Thomas Crawford’s Statue of Freedom,” in Critical Issues in Public Art: Content, Context and Controversy, edited by Harriet Senie and Sally Webster (New York, 1992) 104-115. For W. E. B. DuBois, see The Souls of Black Folk (Chicago, 1903; reprint 1989), and for Herman Melville’s “Benito Cereno,” see The Heath Anthology of American Literature vol. I, ed. Paul Lauter (Lexington, Mass., 1994). For information about Crawford, see Lauretta Dimmick, “A Catalogue of the Portrait Busts and Ideal Works of Thomas Crawford (1813?-1857), American Sculptor in Rome,” PhD diss., University of Pittsburgh, 1986; and Pamela Scott, Temple of Liberty: Building the Capitol for a New Nation (New York, 1995).

For the iconography of “Libertas” in the United States and France, see Yvonne Korshak, “The Liberty Cap as Revolutionary Symbol in America and France,”Smithsonian Studies in American Art 1 (Fall 1987): 53-69; for the iconography of America as Liberty, see Vivien Green Fryd, “Hiram Powers’s America: ‘Triumphant as Liberty and in Unity,'” American Art Journal 18 (1986): 54-75; and the iconography of America as an Indian Princess, see E. McClung Fleming, “The American Image as Indian Princess, 1765-1783,” Winterthur Portfolio 2 (1965): 65-81, and “From Indian Princess to Greek Goddess: The American Image, 1783-1815,” Winterthur Portfolio 3 (1967): 37-66. Crawford’s remarks about the iconography of his third version can be found in his letter to Montgomery C. Meigs, October 18, 1855; Jefferson Davis’s remarks about the liberty cap can be found in his letter to Meigs, January 15, 1856; and Meigs’s explanation of Jefferson’s understanding of the meaning of the liberty cap in ancient Rome in his letter to Crawford, April 24, 1854, all located in Meigs Letterbook, Office of the Architect, U.S. Capitol. Carroll Smith-Rosenberg addresses how the new nation produced new American subjects as white men and women, African Americans, and Native Americans. See “Dis-covering the Subject of the ‘Great Constitutional Discussion,’ 1786-1789,” The Journal of American History 79 (December 1992): 841-73.

“Benito Cereno” alludes to the introduction of African slavery into the Americas under Charles V; the Santo Domingo slave uprising of 1797-1804; the slave revolt on board the Spanish ship “Tryal” that the real Captain Delano had helped suppress; and the slave revolt that occurred on board the Spanish slave-trading schooner Amistad in 1839. For more information about this historical context, see Carolyn L. Karcher, “Herman Melville (1819-1891),”http://college.cengage.com/english/heath/syllabuild/iguide/melville.html.

Robert S. Levine addresses Melville’s novella as one that deals with the politics of slavery and race in antebellum America. See his “Reconsideration: Teaching in the Multiracial Classroom: Reconsidering Melville’s ‘Benito Cereno,'” MELUS 19 (Spring 1994): 111. For the quote about the relationship between slave rebellion and questions of democratic order and revolutions for national independence, see Dana D. Nelson, National Manhood: Capitalist Citizenship and the Imagined Fraternity of White Men (Durham, N.C., 1998). Charles Martin and James Snead identify Babo as “the liberty-seeking slave” and “the black insurrectionist” in “Reading Through Blackness: Colorless Signifies in ‘Benito Cereno,'” The Yale Journal of Criticism 4 (Fall 1990): 232, 235. For a discussion on “Benito Cereno’s” relationship to a minstrel show, see Erick Sundquist, To Wake the Nation: Race in the Making of American Literature (Cambridge, Mass., 1993), especially 298-299. Others allude to the relation between Melville’s novella and the minstrel tradition. See, for example, John Haegert, “Voicing Slavery through Silences: Narrative Mutiny in Melville’s ‘Benito Cereno,”‘ Mosaic: A Journal for the Interdisciplinary Study of Literature 26 (Spring, 1993): 25. For an analysis of Babo’s impaled head, see Dana D. Nelson, The Word in Black and White: Reading “Race” in American Literature, 1638-1867 (New York, 1992). For information about Brumidi’s canopy fresco, see S. D. Wyeth, Description of Brumidi’s Allegorical Painting with the Canopy of the Rotunda (Washington, D.C., 1866); and Francis O’Connor, “Symbolism in the Rotunda,” in Constantino Brumidi: Artist of the Capitol, ed. Barbara Wolanin (Washington, D.C., 1998). Other descriptions of this canopy identify the figure as Armed Freedom; see John B. Ellis, The Sights and Secrets of the National Capitol (Chicago, 1869), and George C. Hazelton, Jr., The National Capitol: Its Architecture, Art and History (New York, 1897). For Hazelton’s identification of the figures in Brumidi’s fresco, see Wolanin.

Various sources address nineteenth-century American sculpture and race; see especially Charmaine A. Nelson, The Color of Stone: Sculpting the Black Female Subject in Nineteenth-Century America (Minneapolis, Minnesota, 2007) and Kirk Savage, Standing Soldiers, Kneeling Slaves: Race, War, and Monument in Nineteenth-Century America (Princeton, N.J., 1997). For information about monuments in Washington, D. C., see especially Kirk Savage, Monument Wars: Washington, D.C., the National Mall, and the Transformation of the Memorial Landscape (Berkeley, 2010).

 

This article originally appeared in issue 10.4 (July, 2010).

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Vivien Green Fryd, Professor and Chair in the Department of History of Art at Vanderbilt University, is the author of Art and Empire: The Politics of Ethnicity in the U.S. Capitol, 1815-1860 (1992, 2000) and Art and the Crisis of Marriage: Georgia O’Keeffe and Edward Hopper (2002). She is currently completing a book manuscript, Reenacting and Performing Sexual Trauma in Second-Wave Feminist American Art.

Sponsored by the Chipstone Foundation

Introduction

Today a gallery of the Nantes History Museum’s Château des Ducs de Bretagne relates information about the transatlantic slave trade. Within stands a lit à la Duchesse, whose faded but once stylish toile ensemble reveals striking antislavery graphics (figs. 1, 2). One scene bears the title “Traite des Nègres”—Slave Trade—on a wooden sign printed in repeat across the fabric.

Toile, short for toile de Jouy (after the Oberkampf factory in Jouy-en-Josas, France), is cotton, linen, or silk printed with monochromatic scenes, often dyed in red, blue, or black. The word “toile,” meaning cloth, derives from the Latin root tela, or web—an apt metaphor for the network of painters, engravers, and printmakers linked through Traite des Nègres. For example, while signed “E. Feldtrappe,” Traite’s scenery reflects contributions by six French and British artists inspired by the cause of abolition. Feldtrappe’s cloth (circa 1825) re-disseminated imagery from late eighteenth-century abolitionist prints, underscoring their currency well into the nineteenth century as slavery persisted.

Seemingly deemphasized by their use for decorative upholstery patterns, Traite‘s vignettes, in fact, would have been difficult to miss, especially when draping windows or objects of repose, and hence viewed at close range. While private today, bedrooms were semi-public spaces for centuries, and bed draperies were among the most expensive and prestigious household possessions. Politically commemorative toiles were au courant material for entertainment and stimulating discussion within the personal yet open setting of the nineteenth-century bedchamber or parlor. Traite was printed to promote abolition, despite its inevitable use in households made wealthy by the trafficking it denounced.

 

This article will discuss how Traite des Nègres came to be produced, and will consider its use, meaning, and relationship to antislavery activity and related artworks. As will be shown, the cloth’s scenes blend French, British, and American abolitionist expressions, characterized by Enlightenment ideals, romantic themes, and moralizing sentiment. Made near Rouen, part of France’s commercial slave-trading center, Traite is a symbol of the Atlantic world in which slaves labored over and were physically bartered for cotton. Further, it is a material fragment of a vast global cloth trade—identified by Giorgio Riello as the effect of a progressive shift in the textile-manufacturing core from Asia to Europe, spurred by industrialization in France and Britain.

Made near Rouen, part of France’s commercial slave-trading center, Traite is a symbol of the Atlantic world in which slaves labored over and were physically bartered for cotton.

Traite, together with its sources, represents the interrelationship of the eighteenth- and nineteenth-century textile and slave trades with colonial racial identity and experience in Europe, Africa, and America. While its use is yet undocumented in North America, surviving mulberry-on-white lengths have been collected by the Metropolitan Museum of Art and Colonial Williamsburg Foundation, with a saffron-colored remnant at the Henry Francis du Pont Winterthur Museum. Other samples exist in at least seven other collections outside the United States, confirming the cloth’s popularity and the quantity of its manufacture. While the only known “furniture cotton” devoted to abolition motifs, Traite des Nègres is akin to other historic toiles celebrating liberty, some manufactured for a post-Revolutionary American market. For example, L’Hommage de l’Amerique à la France (“America’s homage to France,” produced by Oberkampf around 1780) includes a kneeling slave holding up a leaflet before an allegorical figure of France.

Traite des Nègres

 

Read clockwise, Traite‘s four interlocking scenes begin in an Edenic Africa before the arrival of trade-seeking Europeans. Kind-hearted Africans rescue shipwrecked voyagers from drowning. Yet in the final scene, the welcomed Europeans (and a complicit African) have been transformed into brutal slave traders, one with a bludgeon and another with a branding iron at his feet. A native man is torn from his family, and another sits shackled in a rowboat. The menacing slave trader—an unlikely subject for bed linens—is included in other abolition-inspired stories and images. A figure with upraised baton is seen in Samuel Wood’s 1805 broadside Injured Humanity, and in Charles-Émile Jacque’s Un planteur entêté (An obstinate planter), ca. 1830, from La Caricature, a Parisian satirical magazine (figs. 3, 4). L’Histoire de Paul et Virginie, the iconic novel of 1788 by Jacques-Henri Bernardin de Saint Pierre set on the island of Mauritius, describes a confrontation with a cruel slave master. This scene was reproduced on fashionable Paul et Virginie toiles, including one designed by Favre, Petitpierre et Cie of Nantes, ca. 1795. But how did the printing of such scenery on furnishing fabrics come about?

The seventeenth-century “calico craze” for brightly colored, painted, and printed Indian cottons, exported mainly via the British East India Company, led to competitive embargoes in France. Resulting import substitution practices were also banned until 1759. An indienne (meaning “Indian”) was a French fabric designed in emulation of the restricted fabrics. They were known also as toiles peints, or “painted cottons.” Though prohibited, l’indiennage continued apace in Marseilles, Rouen, Nantes, and elsewhere in France.

 

Inspired by les indiennes, toiles were often printed with historic, literary, or commemorative subjects, such as Le Ballon de Gonesse (1784, Oberkampf), celebrating the invention of the hot air balloon. Superseding the block-printing of indiennes, toile production utilized a new copper-plate method that—together with innovations in the use of mordants (used in dyeing to fix the coloring agent), cloth weaving, and finishing—led to rapid production and revolutionized the European export trade. In La Toile Imprimée et Les Indiennes de Traite, Vol. I (1942), collector and historian Henry-René d’Allemagne illustrates Traite des Nègres amid his indiennes decorated with abstract pattern work and some African figures. Thousands of indiennes de traite of the sort catalogued by d’Allemagne were originally made in and exported from French slave-trading cities (including Nantes and Bordeaux) as currency in exchange for African merchandise and slaves, who were sent to labor in the French colonies (fig. 5). (Cottons, including indiennes that were made for the African market, were termed “Guinea cloths,” along with competing fabrics woven in West Africa.) At the same time that indiennes were traded for slaves, Traite des Nègres commemorated the slaves’ plight and demanded their freedom. Like the smiling mascarons of Africans on Nantes building façades, Traite reflects moral ambiguities that were perhaps conveniently ignored in Normandy, where it was manufactured.

 

As Christopher L. Miller explains, while “[t]he products and profits from the labors of enslaved Africans returned to France, Africans themselves did not.” Slavery was officially banned in France in 1794 (although Napoleon restored its legal status in the French colonies in 1802, where it was deemed a necessity), and it was, as Miller states, “[a] risky proposition to bring a slave to France; consequently, few Africans ever saw the metropole that controlled the Atlantic triangle.” Although abolitionist societies were formed in France, and antislavery tracts and novels such as Victor Hugo’s Bug-Jargal (1826) and George Sand’s Indiana (1832) circulated widely, at the time Traite des Nègres was made, there had been only limited efforts to curtail the French slave trade and colonial reliance upon slave labor. As Lawrence C. Jennings has shown, French abolitionism in the 1820s and 1830s emanated from a small literary and parliamentary elite, was generally disorganized, and generated little public support. Though government authorities paid lip service to attempts to eradicate the slave trade after 1815, its elimination was seen by many in France as a British maneuver to weaken the French colonies.

However, French antislave trade rhetoric, suppressed under Napoleonic rule and limited under the Restoration and July Monarchy, was encouraged from afar by British abolitionists, and in France by the La Comité de la Société de la morale chrétienne pour l’Abolition de la Traite des Noirs (founded 1821) and Société Française pour l’Abolition de l’Esclavage (founded 1834). Philosophes such as the Marquis de Condorcet of La Société des Amis des Noirs publicly denounced African slavery. Those groups’ activities, along with the published exposé Faits Relatifs a la Traite des Noirs [Facts Relating to the Slave Trade] (1824) and the repeated passage of laws aimed at reining in the trade, fanned the sorts of abolitionist sentiments reflected in the manufacture of this provocative fabric, perhaps commissioned by one of the aforementioned groups.

A substantial market for Traite des Nègres existed in Britain, if not in France, and it was likely made for export there, where most surviving examples have surfaced in recent decades. As David Brion Davis and Peter P. Hinks have shown, England, second only to Portugal as the Atlantic’s leading slave trade nation, rapidly re-positioned itself as slavery’s most outspoken critic amidst American, French, and Haitian revolutionary activity. This action was inspired, in part, by the rise of reform sentiment led by the American Quaker Anthony Benezet, who helped form the Atlantic’s first antislavery society in 1775.

 

Another decisive moment for antislavery forces in England and America was the formation in London in 1787 of the Quaker-led Society for Effecting the Abolition of the Slave Trade. The Society’s famous emblem, a manacled slave kneeling beneath the words, “Am I Not a Man and a Brother,” was modeled by William Hackwood and sold by Josiah Wedgwood as a jasperware cameo (fig. 6). The abolitionist Thomas Clarkson wrote: “Of the ladies, several wore [the Wedgwood medallions] in bracelets, and others had them fitted up in an ornamental manner as pins for their hair. At length the taste for wearing them became general, and thus fashion … was seen for once in the honourable office of promoting the cause of justice, humanity and freedom.” The movement’s growing reach is further indicated by the appearance of a pair of mezzotints by prolific London printmaker John Raphael Smith. Smith’s Slave Trade and African Hospitality were published in February 1791 after canvases by the English painter George Morland (figs. 7, 8). Several decades later, Traite des Nègres was manufactured bearing the signature of textile engraver Frédéric Etienne Joseph Feldtrappe, reproducing Smith’s prints after Morland as well as two other French antislavery scenes.

Frédéric Etienne Joseph Feldtrappe

 

Born in Saint-Just-les-Marais (Oise) on July 8, 1786, Feldtrappe was the son of Marie-Thérèse Lafond and Frédéric Gottlieb Feldtrappe, a Dresden-born engraver and designer of indiennes. As textile historian Xavier Petitcol has shown, Feldtrappe spent his career in Normandy, specifically the towns of Beauvais, Canteleu, and Déville-lès-Rouen, thus in proximity to the French ports that sent out slave ships, especially Rouen. Documents discovered by Serge Chassage indicate that Feldtrappe worked at Canteleu between 1821 and 1823 and then at the Girard manufactory in Déville-lès-Rouen by 1830. It is possible that Traite was designed in one of those locales. Since French indiennes were a regular export to the African market, it seems possible that Feldtrappe’s concept for Traite was influenced by his knowledge of this textile trade with West Africa, of which Rouen was a particular center, as Ann DuPont has shown.

 

On January 31, 1816, the younger Feldtrappe married Marie-Victoire Droz in Beauvais. Charles Thomas Feldtrappe, their son, is also recorded to have been an engraver of indiennes in Suresnes (near Paris), indicating that several generations of the family pursued the same profession. It is possible that they operated their own textile manufactory, but no records have been found to that effect. Etienne Feldtrappe died in Suresnes on October 8, 1849.

Xavier Petitcol has identified seven varieties of Feldtrappe’s toiles, most of which are signed. He seems to have exclusively produced this lightweight, easily laundered fancy cloth, usually used in the summer to transform a bed alcove or other interior by way of eye-catching and amusing scenery. Beverly Lemire has shown that Indian printed cottons were used initially in Europe for upholstery, not clothing, and that their use as bed hangings, tablecloths, or valances stemmed from the “architectural” ways that travelers saw them being used in India. The use of toile draperies followed suit, with swathed beds forming tent-like spaces.

Feldtrappe would have carried out the process of engraving his designs, along with various other steps, in a specialized workshop housed in a textile manufactory. Traite’s repeating pattern, consisting of two registers with dual scenes in each, was achieved using a large engraved copper-roller printing machine of the type invented by Thomas Bell in 1783 and introduced in France in 1797. The roller printer mechanism involved a copper roller that turned against a large cast-iron roller wrapped in lapping, a cushioned material. A rubber-covered feeder roller turned in a tray filled with dye below the copper roller, supplying the color that the engraved roller would apply to the fabric.

The “Slave Trade,” “African Hospitality,” and the Morland Gallery

Feldtrappe selected four prints to arrange into Traite’s visual narrative that he then engraved onto the copper roller. These included two that were faithfully engraved by John Raphael Smith after Morland, who composed The Slave Trade (originally titled Execrable Human Traffick or The Affectionate Slaves), which was exhibited at the Royal Academy in 1788. With this canvas, Morland made a break from the trendy genre pictures of country life for which he was known—such as Milk Maid & Cow Herd, Cottage Family, and Enamor’d Sportsmen. (A satirical cartoon by James Gillray, Connoisseurs examining a collection of George Morland’s [1807] pokes fun at these pictures and their collectors, though they were widely appreciated.)

The specific impetus for The Slave Trade painting might well have been an abolitionist poem. In his 1805 biography of Morland, the writer William Collins claimed that his own 1788 verse “The Slave Trade” inspired the canvas, though the opposite also is possible. Portraying an African chief separated from his wife Ulkna and son Tengarr, Collins wrote, “With hands uplifted, he with sighs besought/ The wretch that held a bludgeon o’er his head,/ And those who dragg’d him, would have pity taught/ By his dumb signs, to strike him instant dead.” Similarly, Morland’s painting shows an African being separated from his family as he is physically threatened. Several scholars, including Ellen G. D’Oench, have noted that Morland’s image also refers to Wedgwood’s enchained slave.

The Slave Trade undoubtedly generated interest, because Morland quickly painted a related picture—African Hospitality, which was exhibited at the Society of Artists in 1790. It depicts the rescue of shipwrecked Europeans amidst a storm. At the center, an African woman with an infant bundled on her back helps up a nearly drowned traveler as lightning flashes in the background. When Morland’s second canvas was exhibited, a proof of Smith’s mezzotint, African Hospitality, was hung alongside it. Smith offered his prints in pairs or sets, and thus may have encouraged Morland to produce African Hospitality to pair with The Slave Trade. (D’Oench suggests that John Raphael Smith worked with Morland to produce African Hospitality thereby “alleviating the transgressive theme of The Slave Trade” with the second canvas’s redemptive one.)

 

Although Collins asserts that the source was again his own poem, it is possible that African Hospitality was inspired by reports of the kind treatment the survivors of the wreck of the Grosvenor East Indiaman received from Africans near Cape Province, South Africa, in August 1782. Smith’s mezzotint includes verses below that emphasize the Africans’ heroism: “Dauntless they plunge amidst the vengeful waves and snatch from death the lovely sinking fair. Their friendly efforts lo! Each Briton saves! Perhaps their future tyrants, now they spare.” Smith issued his next Morland-inspired mezzotint, Slave Trade, in 1791 (fig. 9). A similar inscription at the bottom reads: “Lo! The poor Captive with distraction wild/ Views his dear Partner torn from his embrace./ A different Captain buys his Wife and Child-/ What time can from his Soul such ills erase?” While Morland’s pictures have been linked with Collins’ stanzas, the source of all of Smith’s verses is unrecorded.

During the period of the Napoleonic wars, British interest in narrative genre subjects diminished, as subjects including military heroes, modern history themes, and topical caricatures by Gillray and others proliferated. Moreover, British access to Continental markets declined. D’Oench cites a contemporary commentator’s lament that “in one print shop alone … there is stock in trade to the amount of fifty thousand pounds sterling now lying dead in their drawers which stock would, if the country had not been accursed by the war, have been certainly circulating, and probably sold on the Continent.” In order to promote sales, Smith created a “Morland Gallery” of about sixty of Morland’s original paintings, which he offered for sale with the engravings after them. With Slave Trade and African Hospitality, his choice of subject matter was especially timely.

La Citoyenne Rollet

Although the original painted source of two of Feldtrappe’s scenes is English, it is likely that all four print sources were French. For example, a 1794 stipple engraving Traite des Nègres was printed by François-Jules-Gabriel Depeuille, a publisher on the rue St. Denis in Paris. Depeuille offered numerous prints promoting French Republican ideals, including Louis Darcis’ engravings of sculptures by Louis-Simon Boizot such as La Liberté and Moi Libre aussi. While Morland is identified as the original source of Depeuille’s print, the engraver is the obscure “la citoyenne [citizeness] Rollet,” whose name appears at the lower right of the engraving. Rollet’s Traite des Nègres is fully described in the Parisian Gazette Nationale of March 12, 1794 and advertised for six livres in black and white, twelve in color. While it is probable that Rollet copied Smith’s “Slave Trade” print rather than having worked directly from a version of the Morland painting, she made prints after four of Morland’s canvases that were not, so far as is known, reproduced by Smith, including A Tea-garden and St. James’s Park. Rollet’s Traite, like Morland’s and Smith’s, did not include a coal pot with branding iron, which was Feldtrappe’s addition to the scene.

Few traces of Citizeness Rollet remain. She is identified in Jules Renouvier’s Histoire de l’art pendant la revolution, 1789-1804 (1863) as the maker of La Fraternité after Boizot, a portrait of Jean-Paul Marat, and Traite des Nègres. According to Bénézit: Dictionnaire des peintres, sculpteurs, dessinateurs et graveurs, a Madame Rollet was the wife of Louis René Lucien Rollet, though it further explains, “There was also a young woman using the name Rollet who, around 1800, made stipples from drawings.” According to Xavier Petitcol’s catalogue of Norman toile engravers, a Marius Rollet was born in 1796 in Rouen into a family of dessinateurs-graveurs, including his father Louis Boniface Rollet, an indienne designer. While no relationship is proven, the appearance of Citizeness Rollet’s prints on Traite des Nègres suggests a possible connection between the Rollets and Feldtrappe.

Rollet was included in a 1901 exhibition at New York’s Grolier Club, which showed her image of a West Indian mother and child, titled Toi enfin sera heureux—“You will be happy at last.” It is described in the catalogue as “a print on the emancipation of the negroes by the Revolution” and was also distributed by Depeuille in 1794.

The inscription accompanying Rollet’s Traite des Nègres refers to the National Convention’s abolition of slavery in the French colonies on “le sixième Pluviose” (February 4, 1794), and states: Quel contrat infame, l’un Marchande/ Ce qui n’appartient à Personne/ L’autre vend la Propriété/ De la Nature./ Ce vil métier a été aboli par la Convention Nationale le 16 Pluviose l’An deuxième de la République française une et indivisible. (What infamous contract, one that barters over what belongs to nobody, the other that sells ownership over nature; this vile practice was abolished by the National Convention, February 4, 1794 of the second year of the singular and indivisible French Republic.) Other than the difference in verses, Rollet’s engraving does not vary in composition from Morland’s or Smith’s.

 

Rollet’s own L’Africain Hospitalier—also after either Morland or Smith—bears an inscription quoted from a stirring patriotic speech made by a “un homme de couleur” (man of color) at the same meeting of the National Convention referred to above (fig. 10). Though the speaker’s name is not recorded, this speech was probably made by one of three delegates from Saint Domingue. Rollet’s engravings celebrate the 1794 National Convention, whose emancipatory proclamations had short-lived effect; Napoleon reestablished slavery in 1802, and France subsequently meandered toward its final abolition in 1848. With France’s sale of its Louisiana territory in 1803, antislavery efforts in America were also derailed as slavery became re-entrenched when cotton took off as the country’s primary export.

Nicolas Colibert, Pierre Thomas Victor Fréret, and “Le Mythe du Bon Noir”

 

Though historian and textile collector Henry-René d’Allemagne documented Etienne Feldtrappe’s adaptation of Morland’s paintings from Smith’s prints in 1942, the origin of the other two scenes has until this point remained unidentified. I discovered that Feldtrappe borrowed from two additional prints: Habitation des Nègres and Arrivée des Européens en Afrique, both produced by Parisian engraver Nicolas Colibert in 1795 (figs. 11, 12). A series of Colibert’s four prints, held in the collection of the John Carter Brown Library, includes Habitation des Nègres, Arrivée des Européens en Afrique, Le Culte des Nègres, and Le Mariage des Nègres, all produced in 1795 after paintings and drawings by Fréret, as noted by Colibert’s inscription “Fréret pinxt.” Colibert’s prints, like the thematically related engravings by La Citoyenne Rollet, were published by Depeuille.

 

Colibert’s exotic portrayals of African life have been variously attributed to “Louis Fréret” or “Amédée Fréret” in the notes of collections that include the Colibert prints, though none of the attributions are substantiated, and none of the original paintings have been located. French ethnologist Ernest Théodore Hamy reported in 1898 that “Pierre Fréret” of Cherbourg is the author of the original tableau, Mariage des Nègres, and loosely connects him with La Société des Amis des Noirs. Born in 1714, Pierre Fréret was a founder of the La Société académique de Cherbourg, and fathered a family of artists that included sons Pierre Thomas Victor Fréret, a marine painter, Louis-Barthelemey Fréret, who created botanical prints at Versailles, and François-Armand Fréret, a sculptor.

In “Une dynastie d’artistes: les Fréret” (1990), Jean Fouace identifies Pierre Thomas Fréret with the Colibert prints, along with illustrations for Bernardin de Saint Pierre’s L’Historie de Paul et Virginie. (The novel, performed as a comic opera in London in 1800, was translated into English by Helen Maria Williams, herself associated with Amis des Noirs.) Yet, Pierre Thomas Fréret has not been linked with Amis des Noirs, nor do prints associated with Fréret and Paul et Virginie appear to exist. It is probable that the Colibert prints are those to which Fréret descendants later referred, and that Pierre Thomas Fréret produced the missing artworks on which they are based. In the 2000 exhibition catalogue Regards sur les Antilles, Fréret’s series is identified as Le Mythe du Bon Noir (The Story of the Benevolent Black), though it is not clear whether this was its original, given title.

The direct inspiration for Fréret’s imagery is uncertain, and the Fréret-Colibert series makes no reference to a specific locale or nation. It begins with Habitation des Nègres, the source for Feldtrappe’s first scene showing Africans in a tropical paradise as a trading ship approaches in the distance. As with each print in the series, abolition-inspired verses like Smith’s accompany Habitation, locating the picture within the sphere of Romantic literature condemning slavery. Colibert’s reproductions and accompanying verses call to mind historic binary perceptions of Africans as either innately noble and pure or as savages whose lack of cultivation called their very humanity into question.

The following poetry, whose author is identified only as “Person,” decries slavery as a product of the “civilized” world and a crime against nature.

Tranquille dans sa caze au sein de son ménage,
Qu’il est intéressant ce bon couple africain,
Qu’un préjugé barbare à fait nommer sauvage.
Sauvage! Un peuple doux, industrieux, humain.
Et fait, en inculcant en lui nos connaissances,
Pour professer nos arts et nos hautes sciences.
Mais l’abolition de la traite homicide,
Que la cupidité fit sortir des enfers,
Et que l’humanité vient dans son vol rapide
Détruire pour jamais en brisant tous ses fers;
Va rendre libre enfin, au nom de la nature,
Ce nègre infortuné qu’abrutit la torture.

Happy in their home with family,
How curious it is that a prejudiced
barbarian has labeled this good African couple as savage.
Savage! A gentle, industrious, human people.
And so, we impose our knowledge on them
To teach our great arts and sciences.
But the abolition of the homicidal trade,
That [our] greed unleashed from hell,
And humanity will come in quickly to
Destroy it for all time by breaking its chains;
Will at last, in the name of nature, free
This unfortunate black reduced by torture.

These verses, while not incorporated onto Feldtrappe’s cloth, still illuminate the context for the Fréret-Colibert pictures as they relate to French abolition. Analogous to the Morland-Smith pictures and verses, the Fréret-Colibert illustrations, with their references to man and nature, convey romantic sensibilities in contrast with other prosaic antislavery writings and utilitarian artifacts.

Colibert’s second print, Arrivée des Européens en Afrique and the basis for the second of Feldtrappe’s scenes (reading clockwise), shows foreigners welcomed by Africans who seem eager to engage in friendly commerce. One man—already in possession of an imported blue headscarf—holds ivory tusks that he is prepared to barter. A nearby basket is filled with ostrich eggshells, which often were decorated and sold. The accompanying verses emphasize the baseness of “greedy European” brutalities in light of friendly trade with the “gentle African” portrayed:

Pour la première fois, quand le doux africain
Reçut, à bras ouverts l’avide européen,
Il ne se doutait pas qu’un jour avec furie,
On viendrait l’arracher de sa caze chérie.
Si de ce sol brûlant, nous nous fumes encore
Contenté d’emporter, les peaux, l’ivoire et l’or!
La tendre humanité n’aurait point à se plaindre
Des forfaits inouis qu’on frémirait de peindre.

When the gentle African first welcomed
The greedy European with open arms,
He already knew that one day he would be
Ripped out and dragged from his beloved home.
If, from this scorched earth, we were so
Happy to take the skins, the ivory, and the gold!
Our fragile humanity should not complain about
The inconceivable brutality of these crimes.

Colibert, who spent some years in London, may have taken his cue for this print from Morland and Smith’s African Hospitality.

The Fréret-Colibert series includes two more images that were not incorporated by Feldtrappe: Le Mariage des Nègres and Le Culte des Nègres. Omitting them, Feldtrappe inserted Morland’s images in their place to achieve his own narrative culminating in a dramatic slave capture. Yet, Colibert’s Le Mariage, a slave wedding full of dancing and joy, and Le Culte, glorifying African life by capturing the Africans’ reverence for nature, relate the same message: The African is inherently good and honorable and “guided by reason,” in contrast with the “brutal occupier.”

Pour le fiers Citadins, admirable leçon!
Humanité, tendresse et constance et courage…
Voilà l’homme, pourtant, qui né dans l’esclavage,
Nourit de ses sueurs, le sévère Colon
Fidèle dans son culte, ami de la raison,
Jusque dans ses amours il respecte l’usage:
Sous les loix de l’hymen, l’honneur fixe les voeux
D’un couple ardent, que lie une foi mutuele:
Ce beau jour est la fête et des ris et des jeux,
Le tableau du bonheur, cent fois, s’y renouvele;
Et les époux qu’enivre une franche gaîté,
Perdent le souvenir de leurs captivité.

What a wonderful lesson for our proud citizens!
Humanity, love, perseverance and courage…
Here is man, being born into slavery,
Working hard to feed the brutal occupier
True to his rituals, guided by reason,
Even in love he adheres to his customs:
Under the law of marriage, honor binds the
Wishes of a passionate couple united in faith:
This is a day of celebration, pleasure and games,
A picture of joy one hundred times renewed,
The spouses exhilarated by true happiness
Forgetting about their captivity.

Le Mariage and Le Culte capture the impulse to undercut anti-black feeling by representing Africans as naturally sympathetic, courageous, and in harmony with God and the natural world, while white slave-traders are described as irreverent “unbelievers.” Le Culte‘s accompanying verses describe a cathedral of nature, where Africans display their devotion to the supreme being:

Un gâson est l’autel, un creux d’arbre est le Temple
Ou, dans un peu de terre, un vieux trone, un serpent,
L’habitant de ces lieux entrevoit, et contemple
La majesté du Dieu qui règne au firmament,
A la Lune, sur tous, le Nègre rend hommage,
Il pleure son absence, il chérit son aspect,
Et de l’être Eternel dons il cherche l’image,
La grandeur est partout l’objet de son respect
De cet être avec nous, confessés l’existence,
Incrédules humains par l’orgueil égaré;
Quand le Sauvage même adore sa puissance,
Tombés devant le dieu par qui vous respirés.

Tree branches form an altar, a hollow tree is the temple
And in a little dirt an old throne, a snake,
The native people glimpse at and contemplate
The greatness of God who reigns in the firmament,
The black prays above all to the moon,
He laments its absence and adores its appearance,
And he deeply honors the greatness of the
Eternal being whose image he seeks to find.
To this God we confess our lives,
We, the unbelievers due to misguided pride;
While the savage admires His power,
Humble in admiration before the God he reveres.

 

Generally, Colibert’s pictures and their impassioned proclamations take the form of a racialized counter-caricature of black persons as ideal children of nature, and relate to what Hugh Thomas describes as abolitionists Benjamin Constant and Germaine de Staël’s “cult of ‘le bon negre.'”

Colibert’s Habitation and Arrivée may be compared to the frontispiece illustration of François Froger’s travel account, A relation of a voyage made in the years 1695, 1696, 1697, on the coasts of Africa, Straits of Magellan, Brasil, Cayenna, and the Antilles, by a squadron of French men of war, under the command of M. de Gennes, published in Paris in 1700 (fig. 13). This illustration of trade on the African coast in the late seventeenth century shows a reclining but armed Alcaty, an African “governour” encountered by M. de Gennes and Froger. Colibert shows similar reclining figures in his coastal scenes. The frontispiece and several related plates incorporate aspects of Froger’s tales, including De Gennes exchanging a bottle of brandy (and other trade goods, including cutlery and paper) with Alcaty for barrels of fresh water. An African man in the middle ground wears a tunic of checkered cloth and holds a bolt of the same; he (or Alcaty) reappears in subsequent plates wearing the same dress, emphasizing the popularity of the cloth on the African coast (fig. 14). Froger’s frontispiece, suggesting how central the cloth trade was in Africa, is echoed in the Fréret-Colibert Habitation and Arrivée prints—and ultimately on Feldtrappe’s antislavery fabric, effecting a unity among these pictures that is more than coincidental.

 

Ernest T. Hamy links Colibert’s prints with those of the Roman-born painter Agostino Brunias, who studied with Robert Adam and spent much of his career in London and in the West Indies. Brunias’ A Family of Charaibes in the Island of St. Vincent, executed for Sir William Young in the early 1770s and showing Indian women and children gathered in front of rudimentary huts, is similar to Colibert’s Habitation; neither is intended as ethnographic study, but rather as picturesque and semi-erotic scenery. Along with the indiennes traded for Africans and the abolitionist narrative of Traite des Nègres, Brunias’ paintings link an international cloth trade with historic patterns of racial identity. On the island of Dominica, Brunias found in the ethnic variety of the populace a rich subject matter for his paintings, and he emphatically addresses the Caribbean textile trade in a series of paintings, including Linen Day, Roseau, Dominica, A Market Scene (ca. 1780), whose focal point is a wealthy Creole (or French or English-born) woman selecting cloth at a local market. Her all-white dress stands in contrast to the striped and madras garments worn by the mixed-race community bustling around her. In A Linen Market with a Linen-stall and Vegetable Seller in the West Indies, ca. 1780 (and on at least one other canvas), Brunias repeats the familiar market scene, replacing the Caucasian woman with a well-to-do “mulatress,” wearing the same white gown, yet about whose shoulders appears a striped fichu (fig. 15). Again, similar clothing is the predominant motif of several Brunias canvases featuring “handkerchief dances,” which also feature contrasting white and striped fabrics that visually underscore the blended quality of the society depicted (fig. 16).

 

Fréret and Colibert were not so much followers of Brunias (as Hamy indicates) as adherents to a long-standing tradition of fanciful and idealized treatments of colonial geography. For example, the romantic trope of the exotic bon sauvage (“noble savage”) existing untainted by society’s corrupting influence enjoyed popularity in late eighteenth-century art, especially as it pertained to the French Revolution. Yet it had roots in an older tradition. Such images hearken back to portraits of Indians in Theodor de Bry’s well-known sixteenth-century illustrations of Spanish conquest in the Americas and John White’s Roanoke Island watercolors.

While Froger mentions in his travel account that he traded “Linen-Cloth” and “printed Calico’s,” the checkered fabric illustrated in his book is of ambiguous origin. For example, textile and slave centers like Rouen exported Guinea cloths of striped and checked patterns to Africa, yet African-made cottons with similar patterns competed locally against such overseas commodities. In The Devil’s Cloth: A History of Stripes and Striped Fabric (2001) Michel Pastoureau reflects on the historic association of striped fabrics with transgression, citing medieval European sumptuary laws requiring hangmen and prostitutes to wear them. While such associations may have been long forgotten, the checked Guinea cloth and Brunias’ striped weaves in Dominica nevertheless call to mind the rupture of social or moral order that slavery (and miscegenation) represented to abolitionists—because slaves often wore and were traded for those fabrics. Conversely, Feldtrappe’s Traite des Nègres was a luxurious decorating fabric whose ostensible purpose was to promote the restoration of slaves to their natural state of freedom. A self-referential critique of slavery, Traite also shares a history with les indiennes des traite (i.e., cloth traded in Africa and the Americas) that is the source of its symbolic efficacy.

A Fashion for Abolition

 

While Traite des Nègres was inspired by abolitionism, such toile is unlikely to have been manufactured unless deemed salable, its profitability estimated by the sustained popularity of the prints on which it was based. Like Traite des Nègres, handkerchiefs, wallpapers, and a plethora of other objects were printed with decorative antislavery patterns, especially in nineteenth-century England and America. While the dispersal of these objects commercialized and commodified the movement’s principles, it promulgated antislavery messages among a wide audience and raised money to promote them, as well.

For example, the United States’ Fugitive Slave Act (part of the Compromise of 1850), which made it illegal to harbor runaway slaves, inspired the novel Uncle Tom’s Cabin (1852), originally serialized in the abolitionist newspaper The National Era. Uncle Tom-related objects include a handkerchief titled “Little Eva’s Song (Uncle Tom’s Guardian Angel)” accompanying musical notes and lyrics published by John P. Jewett & Co. in 1852. Recently, the Harriet Beecher Stowe Center in Hartford, Conn., acquired an English-made “Uncle Tom” wallpaper fragment manufactured in 1853.

 

“Newspaper-style” printed handkerchiefs promoted the abolitionist cause, especially among children. “The Poor Slave (Dedicated to the Friends of Humanity)” printed by the Boston Chemical Printing Company around 1835 is a handkerchief bearing the Wedgwood emblem and a slave trader with a whip. On its printed surface, a passage titled “The Thankful Girl” recounts the resolve of a virtuous child: “I will save my money to give to the Anti-Slavery Society. I’ll try not to eat any sugar or other things that the slaves are compelled to grow” (fig. 17). Abolitionists in England and America, including the American Free Produce Society, boycotted sugar, rum, and slave-grown cotton. Between 1803 and 1937, cotton was North America’s greatest export, and supplied the British and French textile mills that manufactured cloth like Traite des Nègres. Therefore, the very existence of these abolitionist textiles is directly traceable to slave labor. With the adoption of the Thirteenth Amendment in 1865, the efforts of French, English, and American abolitionists whose ideals were promoted via the objects discussed here finally came to fruition with the eradication of slavery in the United States.

Conclusion

Beyond the handiwork of the six individual artisans that was incorporated into Traite des Nègres, the cloth reflects a gamut of French and British ideas about slavery and race, imbued with a sense of romantic idealism and revolutionary rhetoric, and influenced by early New England antislavery campaigns. A history of Traite’s production reflects the nineteenth-century transatlantic world’s greater economic mechanism—simultaneously underwritten and undermined by contrary views of the agricultural and industrial, and Christian humanity in an emergent Atlantic system of exchange, control, and propaganda. A relic of that process, Feldtrappe’s scattered lengths of toile continue to transmit intriguing and complex images, their ardent message reinforced by the cotton on which they are stamped.

Acknowledgments

The author thanks Musée d’Aquitaine, Bordeaux, Musée d’Histoire de Nantes, the John Carter Brown Library, Columbia University Rare Book and Manuscript Library, Linda Eaton (Winterthur Museum), Tom Fiehrer, Lourdes Font (FIT), Louise Le Gall (Musées de Cherbourg-Octeville), the Gilder Lehrman Institute of American History, the Metropolitan Museum of Art, NYPL Rare Book Division, Debra Jackson, Lawrence C. Jennings, Hugues Pladieux, Judy Sund, Yale Center for British Art and “Object Lessons” editors Ellery Foutch and Sarah Anne Carter.

Further Reading:

This essay’s findings regarding the Fréret-Colibert attribution were originally presented at the TSA’s “Textiles and Politics” on Sept. 20, 2012, and in a Graduate Center seminar on ephemera in the eighteenth century led by Kevin D. Murphy and Sally O’Driscoll in 2009. An unpublished reference to Colibert and Amédée Fréret is noted independently in the Traite object record at Château des Ducs de Bretagne.

The following sources have supplied facts about the textile trade in the Atlantic world: Ann DuPont, “Captives of Colored Cloth: The Role of Cotton Trade Goods in the North Atlantic Slave Trade (1600-1808),” Ars Textrina, 24 (1995); Kriger, “‘Guinea Cloth’: Production and Consumption of Cotton textiles in West Africa before and during the Atlantic Slave Trade,” in The Spinning World, A Global History of Cotton Textiles, 1200-1850, Riello and Parthasarathi, eds. (London, 2009); Xavier Petitcol, “Pour une approche materiélle des toiles histoires de Normandie” in Doré, Quand les toiles racontent des histories: les toiles d’ameublement normandes au XIXe siècle (Rouen, 2007); Riffel and Rouart, Toile de Jouy : Printed textiles in the Classic French Style (New York, 2003); and Yafa, Cotton: The Biography of a Revolutionary Fiber (New York, 2005). For visual references to the cloth trade in colonial Mexico see Ilona Katzew, Casta Painting: Images of Race in Eighteenth-Century Mexico (New Haven, 2004).

For further information about abolitionist literature, imagery and the Atlantic slave trade see: Basker ed. American Antislavery Writings (New York, 2012); Cottias, ed. Les Traites et les esclavages: perspectives historiques et contemporaines. (Paris, 2010); Bender, Dubois, and Rabinowitz eds., Revolution! The Atlantic World Reborn (New York, 2011); Dorigny and Gainot, La Société des Amis des Noirs, 1788-1799 (Paris, 1998); Jennings, French anti-slavery: the movement for the abolition of slavery in France, 1802-1848. (Cambridge, 2000); McInnis, Slaves Waiting for Sale: Abolitionist Art and the American Slave Trade (Chicago, 2011); Miller, The French Atlantic Triangle, (Durham, N.C., 2008); and Marcus Wood, Blind Memory: Visual Representations of Slavery in England and America, 1780-1865 (New York, 2000).

Background information about Feldtrappe’s print sources is found in the following publications: Baily, George Morland: A Biographical Essay (London, 1906); Collins, Memoirs of that Celebrated, Original and Eccentric Genius the Late George Morland (London, 1806) ; Collins, The Slave Trade; A Poem. Written in the Year 1788 (London, 1793); D’Oench,“Copper into Gold:” Prints by John Raphael Smith, 1751-1812 (New Haven, 1999); Fouace, “Une dynastie d’artistes: les Fréret,” April 1, 1990, La Presse de la Manche; Hubert, “L’évolution artistique à Cherbourg au XIXe siècle” in “Cherbourg et le Cotentin” (Cherbourg, 1905); For other Colibert prints see Margaret Morgan Grasselli, Colorful Impressions: The Printmaking Revolution in Eighteenth-Century France (Washington, D.C., 2003).

All of the Fréret-Colibert prints can be viewed online. Further information about Wood’s Injured Humanity is available here.

For other printed works by Feldtrappe see the website Joconde: Portail des collections des musées de France.

The Chipstone Foundation is a Milwaukee-based arts organization devoted to the study and interpretation of early American decorative arts and material culture.

 

This article originally appeared in issue 14.1 (Fall, 2013).

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Cybèle T. Gontar is a PhD candidate in American art at the Graduate Center, City University of New York. She has written for the Metropolitan Museum Journal, The Magazine Antiques, and Common-place