The Reflection of Race and Law in African American Literature
by Peter Schneck
Since the law has been crucial in defining and delineating the dimensions of African American experience both in slavery and in freedom, the encounter with the American legal system and its representatives has left a strong imprint on African American cultural and literary memory and expression. The article sketches out a few aspects and features which characterize the reflection of law and race in African American culture and literature.
1On first sight, the law does not appear to be a very accessible topic for teachers of English or American language and literature. The law is a world in itself, and the people who practice it speak their own language and follow their own logic which, for the most part at least, appears to be far from the comprehension of common sense.
2Yet if law is a mystery to most non-lawyers like us, some of its central aspects, like the court room trial, are also endlessly fascinating because they present the law as the ultimate realm of individual conflict and social solution, of the human tragedy between innocence and guilt, of highly dramatic narratives and intense melodramatic performance. Here the law literally appears as a ‘theatre of justice,’ as the British jurist Jeremy Bentham exclaimed in the 18th century—an aspect that is of special importance in American society and culture.13One could even go as far as saying that in order to really understand American culture—and a lot of American literature—one has to take a close look at American law: its development, its principles and guiding concepts, its main practices and its ideals.2 That also means that the law and its practices may become accessible, precisely, through their various modes of cultural representation—one of the most central being works of literary fiction, but also films and TV series. Thus we may understand the specific effects and the far-reaching power of the law and of the practice of law better by looking at its omnipresent representation and intense negotiation in American culture and literature.
4This is especially true when it comes to the particular role that the law has played and continues to play in the life of African Americans. Since the law has been crucial in defining and delineating the dimensions of African American experience both in slavery and in freedom, the encounter with the American legal system and its representatives has left a strong imprint on African American cultural and literary memory and expression. In the following, I want to sketch out a few aspects and features which characterize the reflection of law and race in African American culture and literature. Since the experience of slavery has been so crucial, and since the law has been so instrumental both in the institution of slavery, its abolishment in the 19thcentury, the subsequent establishment of segregation laws in the South, as well as its final prohibition in the 1950s, my focus will be on some significant turning points in American legal history and the way they have been reflected in literature and culture. At the end, my focus will be on two short stories by Charles Chessnut and Anne Petry, two African American writers from very different historical backgrounds. Nevertheless, the problem they deal with is a fundamental one, and it concerns the inevitable ambivalence which besets the African American experience with the law, both as an agency of submission and domination serving white interest and power, and as an instrument of resistance and protection, in which one can place one’s hope for the end of racial discrimination.
Law, Race and African American Literature
5In an essay he wrote for a book on American law and legal history in 1976, Ralph Ellison offered his thoughts as an African American writer on the subject of law. As the title of his essay indicates, the ‘perspective of literature’ on American law is a special one, even more so when it comes to African American literature and the experience of slavery and racism. Thinking back on his first encounter with the law and the legal system, Ellison describes his impressions when he assisted the custodian of the Oklahoma State Law Library, a Mr. Randolph. Even though Mr. Randolph was a black janitor, Ellison remembers, he was frequently asked by the white legislators about “his opinion regarding some point of law” (321). Ellison came to look forward to such encounters because they gave him a rare insight into the mystery of the legal process.
6What impressed Ellison most was that the janitor “could carry so many of the mysterious details of law and of the laws which governed the state of Oklahoma within his own head” (322). Later Ellison learned that Mr. Randolph had been one of the first schoolteachers in the city and in the state and that he owned a large library, and that he most likely had been ‘reading’ the law with licensed members of the profession, even though he was no lawyer himself.
7Ellison’s youthful admiration for the elder man’s abilities and his broad knowledge about the law, however, is mixed with a pointed awareness of the power relations between the white legislators and their black ‘counselor.’ His feelings about the situation can be taken as being fairly representative for the fundamental ambivalence which African Americans must have felt, and maybe still feel, about the law and its practice. Ellison writes:
I only knew that Mr. Randolph appeared to possess a surer grasp of the law than certain of the legislators, and my youthful sense of justice led me to see his exclusion from the profession as an act of injustice. I never heard him complain about the situation, but I felt that there was something shameful, even degrading, about such a state of affairs, and that there was something rotten in the lawyers if not indeed in law itself.
Nor was it possible for me to ignore the obvious fact that race was the source of that rot, and that even within the mystery of the legal process, the law was colored and rigged against my people. (322)
Looking back on his early years in Oklahoma, a segregated state, where “Afro-Americans were strictly limited in their freedom to participate in the processes of government,” Ellison notes dryly, “we could obey or break laws, but not make or interpret them.” (321)
8There are several things about Ellison’s literary perspective on the law which are important to notice. First, the perception of the law by African-Americans cannot be divorced from the issue of race since the law’s perception of African-Americans is always already informed by race. The law for African-Americans is thus never just an abstract entity or a logical system of rules and statutes meant to assure social order and justice, but much more a concrete practice, an activity within an hierarchical system of power relations. As Ellison characteristically notes: “In our common usage, law was associated more with men than with statutes. Law-enforcement officers in our usage were ‘Laws,’ and many were men with reputations for being especially brutal toward Negroes.” (323)
9Secondly, even while the law is a practice more than simply a text or an abstract rule, which means that the law for African-Americans is less what it says, and more what it does to them (and for them), the law cannot be understood without its specific language and the power of legal rhetoric. For Ellison, both the power and the legitimacy of the law come to rest on its linguistic constructions of reality and experience—more precisely, on its fictions. Thus he writes: “At some point people, and especially American people, are pushed to recognize that behind the Constitution which we say rests in principles that lie beyond the limits of death and dying, are really man-made, legal fictions.” (327–28)
10Legal fictions, as the Declaration of Independence and the American Constitution demonstrate, are powerful instruments to impose meaning on reality by means of words and narratives to create order out of disruption and conflict, and thus to make social coexistence possible—that at least is the ideal. In this respect, the law and its fictions can be rightfully compared to literature and its fictions, since, as Ellison argues:
Human society in this regard is fictitious, and it might well be that at this point the legal fictions through which we seek to impose order upon society meet with, coincide with, the fictions of literature. Perhaps law and literature operate or co-operate, if the term is suitable for an interaction which is far less than implicit; in their respective way these two . . . symbolic systems work in the interests of social order. The one for stability—that is the law is the law—the other striving to socialize those emotions and interests held in check by manners, conventions, and again, by law. (329)
11There is some deeper ambivalence hidden beneath Ellison’s description of the cooperative or complementary relation between law and literature. The office of literature, both to criticize and to raise consciousness about the injustices performed in the name of or under the protection of the law, still rests on a steadfast belief in the legitimacy of the law’s fictions. On the one hand, Ellison clearly sees that there is a paradox inherent in the founding documents of the United States because “the revolutionary documents which formed the constitutional grounds of our new system of justice and which set the stage for the enactment of a new democratic drama of human rights – these documents were written in the same language of the very hierarchy which they had overthrown.” (331) On the other hand, however, that paradox does not invalidate these documents as legitimate fictions which have to be defended, as Ellison emphasizes:
I look upon the Constitution as the still-vital covenant by which Americans of diverse backgrounds, religions, races, and interests are bound. They are bound by the principles with which it inspirits us no less than by the legal apparatus that identifies us as a single American people. The Constitution is a script by which we seek to act out the drama of democracy and the stage upon which we enact our roles. (330)
12The rhetoric is highly suggestive, and one cannot help but notice that Ellison is repeating the same gesture of self-assurance and self-legitimation which he revealed to be at the basis of the legal fictions of founding documents of the United States. But how can you feel bound as an African American writer to principles whose convincing force and legal power you have found to rest on a central paradox: the complicity of the universal claim for liberty and the exclusion of African Americans and others? To put it differently, how can one believe in the legitimacy of legal principles if one is excluded from most, if not all of the benefits of the laws which are based on those same principles?
13The question becomes especially urgent in face of Ellison’s observation of the legal and political power which was established with the help of the concept of race, which consistently and with the help of laws excluded African Americans from enjoying the liberties which the principles of the Constitution claimed for all Americans. For Ellison, the ‘principle of race’ “made for a split in America’s moral identity that would infuse all of its acts and institutions with a quality of hypocrisy” since “the principle of equality being a command that all men be treated as equals, while some were obviously being designated as unequal on the basis of color and race” (333).
14One sign of the deeper ambivalence at work in Ellison’s essay, as the legal and literary scholar Jon-Christian Suggs has observed, is that while Ellison lists quite a few examples of American literature critically concerned with the law, he does not mention a single work by an African American author—including, or rather excluding, even himself. This is more than surprising since as Suggs remarks “even if [Ellison] had looked no farther than his own lifetime, might he not have named Langston Hughes, Zora Neal Hurston, Richard Wright, William Attaway, Willard Motley, Ann Petry, Chester Himes?” (Whispered Consolations 3)
15Much more radically than Ellison, Suggs believes that there is a strong relation between law, race and African American literature—even where the fictions of African American writers are not openly concerned with matters of the law, African American literature, as Suggs maintains, cannot escape its relation to the law:
While white American literature reserves a genre category or two for stories grounded in law—and ghettoizes those stories in separate review columns and bookstore and library sections—‘classical’ African American literature is universally grounded in law; in fact, all African American fiction carries the question of the legal status of blacks as its subtext. Whether one begins with slave narratives or intersects the historical line at the onset of the Black Aesthetic in the 1970s, the conflict between the substance of African American life and the status of that life under the law is the heart of the narrative challenge. Even when a Walter Mosley or Chester Himes writes a genre novel, say a detective story, the issues are identical to those at the center of the novels of Chesnutt, Delany, Harper, McKay, Hurston, Bambara, and Morrison. (Whispered Consolations 8–9)
16One need not share this radical perspective on African American literature, but Suggs is certainly right in pointing out that the office of literature in regard to the law and its effects cannot be reduced to the attempt to “socialize emotions,” as Ellison described it. While he agrees that the fictions of the law and the fictions of literature are comparable in the sense that both are narratives of events, actions and characters which makes them accessible and give them meaning, there is always the question of authorship and authority involved. If “the very basis of law [is] in narrativity,” that is, “the condition that the relationships under consideration in any construct of law are accessible only as story, a story told by someone to someone,” then the question of who can tell and who cannot tell, and under what circumstances, becomes crucial. As Suggs asks: “when pro-slavery whites, ante- and postbellum, wrote of the lives of those they had enslaved, who owned the story? For that matter, when abolitionists wrote or edited fugitive slave narratives as fact or fiction, who owned the story, Harriett [Beecher] Stowe or Uncle Tom? Harriet Jacob or Lydia Child?”
17The same questions can be asked of the stories of the law: “When there can be no black voice in the court and no black hand drafts the legislation, who owns the legal narrative of slavery?” (Whispered Consolations 4)
18Another point concerning the shared nature of law and literature as stories is that African American fictions about the law had to develop counterstrategies to respond to the particular rules which govern the story of the law. In other words, Suggs argues that literature offered (and maybe still offers) a form of ‘witnessing’ which allowed different forms of testimony, of confession, accusation and defense. In short, African American fiction can be read as the untold story of African American experience with the law or, as Suggs calls it, “a counterpositioned narrative to the law’s story [which] reveals the historical expericene of blacks in America”—and he concludes:
Just as the law as narrative often privileges the right of one or more of its narrators to withhold parts of the ‘whole’ story … the historical legal narrative of African American life, from the slave coffle to the Supreme Court, is to a large part constructed on omission, on the ability of white legislators, lawyers, judges, policemen, and property owners to prevent the emergence of any narrative of African American life other than that which they authorize and narrate. (Whispered Consolations 6)
The Struggle against Slavery and the Birth of African American Literature
19Both Ellison and Suggs offer some important insight into the inherently ambivalent or even paradoxical situation which characterizes African American literature’s relation to the law. On the one hand, it appears to be inescapable that any attempt to tell stories about African American experience must eventually include, if only implicitly, the enormous impact which the law had and still has on that experience.
20On the other hand, as Ellison’s example made clear, the particular experience of African Americans with the law enforces an ambivalent position towards the law as both an expression and the protection of certain ideals – of justice, of equality, and of due process. As Ellison describes it: “I saw no hope in the law. It was to be obeyed in everyday affairs, but in instances of extreme pressure, it was to be defied, even at the cost of one’s life.” (“Perspective” 323)
21This paradoxical situation is due to another paradox which informed and shaped both the foundations of American law and at the foundations of African American literature. Slavery was already a fact at the time of the Declaration of Independence and the Constitution, the two documents on which the American law as the law for a new nation was to be built. Both the Declaration and the Constitution tried to protect certain basic claims which introduced a tension or better an inherent contradiction at the heart of the legal system that eventually led to the Civil War and the abolishment of slavery, whose social and cultural effects, however, are still part of American life.
22One of the most fundamental claims on which American law has grounded its authority, and which has from the beginning often been characterized and emphasized as its most specific trait, is the concept of equality before the law. Arguably, this concept is already implied in the famous statement about the ‘self-evident truth’ in the American Declaration of Independence that ‘all men are created equal.’ Yet even more evident than this truth was the fact that the universalism of the original founding claim of American law and justice did not embrace certain subjects but rather excluded them from the enjoyment of their ‘inalienable rights’—if not so much of life, then certainly of ‘liberty, and the pursuit of happiness.’
23The paradoxical logic of exclusion that informs the universalism of the rights to freedom and property was on the one hand poignantly documented by the professed author of those memorable lines, Thomas Jefferson, celebrated champion of individual liberty but also a slave owner. On the other hand, the logic inaugurated by these claims relied precisely on the inextricable dialectic between property and liberty. In other words, as the concept of free individuality became implicitly defined by the rights of ownership and possession, it excluded precisely those who were seen as personal property rather than as free individuals. As legal scholar Cheryl Harris has noted, the conflation of property and personhood on which the American understanding of individual liberty and rights came to rest was implicitly racialized from the start. The most valuable kind of property was an unacknowledged form of racial identity that could be owned only by those who were not owned by others:
Slavery as a system of property facilitated the merger of white identity and property. Because the system of slavery was contingent on and conflated with racial identity, it became crucial to be “white,” to be identified as white, to have the property of being white. Whiteness was the characteristic, the attribute, the property of free human beings. (“Whiteness as Property” 1721)
24It is obvious that the identification of personal property with individual freedom must run into trouble when both the right to liberty and property are universalized and both become apriority for the protection offered by the law. In fact, the debate over slavery during the first half of the nineteenth century is not only fueled and guided by the struggle for individual freedom but also by the conflict between different concepts of property rights. From a legal perspective the latter point was of considerable importance since it was here in the realm of property rights that the most significant cases were decided which finally forced the North and the South into an armed conflict over the question of slavery. In this process, literature played a decisive role, especially the so-called fugitive slave narrative, i.e. autobiographical accounts of run-away slaves which became an important genre of popular literature in the North (mostly), where the texts were crucial instruments used by the Anti-Slavery movement (the abolitionists) to raise money and increase political pressure on their representatives.
25In a well known anecdote President Lincoln met the author of Uncle Tom’s Cabin, Harriet Beecher Stowe during a reception at the White House some time after the Civil War had begun. ‘So you are the author,’ he greeted her, ‘of the little book that started this great war.’ Lincoln was merely being polite, but there is some truth to the claim that Stowe’s immensely popular book shifted popular opinion in favor of the Civil War as the necessary means to end the outrageous system of southern slavery.326But Stowe’s success was largely based on her skilful borrowings, if not outright imitation of various autobiographical accounts of plantation slavery by former slaves who had escaped to the North and whose narratives had been recorded and published by the abolitionist societies. To be fair, she was not the first to do so, in fact, one of the most influential fictitious accounts of the escape from slavery, written by a white author, Richard Hildreth’s novel The Slave, or, Memoirs of Archy Moore, which appeared in 1836, already used a melodramatic narrative to increase the emotional impact on its readers—and in this way not only inspired Stowe, but also numerous Black authors who wanted to claim their own authority over the accounts of their lives.427Hildreth’s novel and its inspired followers, both black and white, are a reminder that the conflict which led to the Civil War was well developed already thirty years before, only then the issue was not ‘humanity’ but property. In fact, the story of Archy Moore is fairly typical in that it attempts to expose and undermine the logic of slavery at its weakest point, precisely where the right to property comes into conflict with the right to personal freedom, that is the right to own oneself.
28This kind of conflict became more widespread in the 1830s after the so-called Missouri compromise of 1820 had declared a geographical dividing line between slaveholding states and free states, effectively separating the United States into two major jurisdictions: one where individuals of a certain race could be pieces of property, and another where this kind of property was prohibited. What sounded like a good idea—because it would both contain slavery within certain areas without threatening the right to own slaves within these areas, turned into the central incentive of discontent and conflict. The problem was not slavery per se, but—the movement of property.
29For the sake of illustration and argument, let us pretend you are an ante-bellum American lawyer who has to decide the following legal questions: What happens to a slave who is taken by his owner to a free state where slavery is forbidden? Does he become a free man? Would that violate the white man’s right to his property?
30To make it a bit more complicated, one may add the following questions: what happens if the owner dies during the journey, and in his will declares his slave the heir to his property since he (the slave) is actually his son (which was not as unusual as one might assume)? And what happens to the former slave when he returns to the home state of his master / father to claim his property?
31All this may sound like a collection of abstract legal problems, but for nineteenth-century American courts this kind of questions became extremely prominent. Two of these cases will help to illustrate my point, and they will also help to understand the dialectic of the ideal of property and the institution of slavery which was also reflected in the numerous fugitive slave narratives from the 1830s to the end of the Civil War in 1865.
32In 1838, a slave owner named Brazealle moved from Mississippi, a slaveholding state, to Ohio, a free state. He then set up his will in which he released his son (a slave) to freedom, under the assumption that this would be recognized by a Mississippi court. There were free blacks in Mississippi and they had the right to own and inherit property. When the son went back to Mississippi as a freeman to claim his inherited property, the claim was denied by a Mississippi court and his emancipation declared void within the state. As Christine MacDonald comments: “Rather than inheriting the estate, John Brazealle was found to be part of the estate.” The reasoning of the presiding judge was that John’s father had committed “an offense against morality” (626) by first traveling to Ohio, releasing his son and returning together to Mississippi, which was clearly an attempt to bypass Mississippi laws against the emancipation of slaves. The point was not that Brazealle had no right to do with his slaves whatever he wished, that was something the Mississippi judge wanted to preserve at all costs. However, to return the emancipated slave to Mississippi was found to be offensive in the eyes of the public and seen as a dangerous incentive for others.
33As another decision from the same state shows, John Brazealle would have had a good chance to claim his inherited property, if he had only stayed in Ohio. In this case the court declared the emancipation of slaves in a slave owner’s will as valid, because the slaves had been taken out of the state of Mississippi for good.
34These inconsistencies are also fairly characteristic of the most famous of these cases where individual rights, property rights and the differences between the jurisdiction between slave holding and free states collided. This was the Dred Scott v. Sandford case in which an African American slave named Dred Scott had sued the state of Missouri in 1846 for his freedom since his owner, a surgeon for the U.S. Army, had taken him to free states and free territory on several instances and for long periods of time.535After shuffling back and forth between several courts, the case appeared before the U.S. Supreme Court which finally decided in 1857 that Dred Scott had no right to sue since he was not a citizen of Missouri. In fact, the court ruled that no African American, whether a slave or a free man, could sue anywhere in the United States because the Constitution had implicitly denied citizenship to African Americans and their descendants.
36The court went even further than that in ruling that since Congress had no right to declare any part of American territory as ‘free’ per se—thus effectively banning slavery in these parts of the country—Dred Scott was not a free man, even though he had resided in a jurisdiction which prohibited slavery. The ruling majority of the judges held that the right to property—including the property of slaves—would be severely infringed by any political decision which would ban slavery anywhere in the U.S. According to the Fifth Amendment of the Constitution, however, such an infringement had to be deemed unconstitutional.
37The decision was clearly politically motivated, and the rationale behind it was to end the political quarrel over slavery by declaring its potential enforced abolition unconstitutional. It was clearly a decision in favor of an absolute concept of individual private property which could not and should not be constrained by state jurisdictions and laws. The effect, however, was that it frightened and irritated even those Northerners who had been content with the containment of slavery in the South and who now feared not only that slavery would expand into the new western territories but also that even the free states in the North would be forced to allow slavery within their territories, if the Supreme Court would use the Dred Scott decision as a foundation for another decision in this way. As Abraham Lincoln put it in a famous speech in June 1858 (the so-called ‘House-divided’ speech): “We shall lie down pleasantly dreaming that the people of Missouri are on the verge of making their State free, and we shall awake to the reality instead, that the Supreme Court has made Illinois a slave State.”638For African Americans, both slaves and free, the Dred Scott decision again proved that even the highest court of the land and thus the most prominent and powerful agency to protect the principles of the American Constitution would not come down on their side – even with the growing opposition against slavery and the fact that many white Americans had indeed voted and spoken out against the introduction of slavery in their home states. For Frederick Douglass, the popular African American writer and orator, the decision was a call to action and he was sure that the Dred Scott ruling would bring the support necessary to raise the ultimate means for the general abolition of slavery in the United States.
39The literature written by African Americans during the time reflects these experiences with the law and it must be read in the context of a political struggle which was also a legal struggle over individual freedom and personal property. If we turn to two of the most important representatives of the fight against slavery and its literary expression, we find that in both the work of Frederick Douglass, especially in his Narrative of the Live of Frederick Douglass, an American Slave (1845), and in Harriet Jacobs’s account of her way to freedom in her Incidents in the Live of a Slave Girl(1861), the law is seen as a threat, an instrument of oppression, and an obstacle to overcome in the pursuit of their own liberty.740In a very famous passage from his Narrative, Douglass describes the function of the law as an instrument and a safeguard of the slaveholder’s power:
Very soon after I went to live with Mr. and Mrs. Auld, she very kindly commenced to teach me the A, B, C. After I had learned this, she assisted me in learning to spell words of three or four letters. Just at this point of my progress, Mr. Auld found out what was going on, and at once forbade Mrs. Auld to instruct me further, telling her, among other things, that it was unlawful, as well as unsafe, to teach a slave to read. To use his own words, further, he said, “If you give a nigger an inch, he will take an ell. A nigger should know nothing but to obey his master — to do as he is told to do. Learning would spoil the best nigger in the world. Now,” said he, “if you teach that nigger (speaking of myself) how to read, there would be no keeping him. It would forever unfit him to be a slave. He would at once become unmanageable, and of no value to his master. As to himself, it could do him no good, but a great deal of harm. It would make him discontented and unhappy.” (Narrative of the Life of Frederick Douglass 274–75)
41It is important to note that the law whichforbids to teach slaves how to read and write, also prohibits acts of kindness and a mode of social (and civil) communication between the master’s wife and Douglass. In this respect, both the Mrs. Auld and Douglass are bound by the law to obey the rules of slavery. Even more important, however, is what this interference of the law effects in the young slave:
These words sank deep into my heart, stirred up sentiments within that lay slumbering, and called into existence an entirely new train of thought. It was a new and special revelation, explaining dark and mysterious things, with which my youthful understanding had struggled, but struggled in vain. I now understood what had been to me a most perplexing difficulty—to wit, the white man’s power to enslave the black man. It was a grand achievement, and I prized it highly. From that moment, I understood the pathway from slavery to freedom. It was just what I wanted, and I got it at a time when I the least expected it. Whilst I was saddened by the thought of losing the aid of my kind mistress, I was gladdened by the invaluable instruction which, by the merest accident, I had gained from my master. Though conscious of the difficulty of learning without a teacher, I set out with high hope, and a fixed purpose, at whatever cost of trouble, to learn how to read. The very decided manner with which he spoke, and strove to impress his wife with the evil consequences of giving me instruction, served to convince me that he was deeply sensible of the truths he was uttering. It gave me the best assurance that I might rely with the utmost confidence on the results which, he said, would flow from teaching me to read. (275)
42Gaining valuable instruction from the law’s prohibition to gain knowledge, Douglass realizes that what the law wants to protect is indeed the key to power and independence: Learning to read and write and thus acquiring the power to create one’s own narrative and to interpret those of others enables Douglass the slave to become the author the Narrative his own live.
43In similar terms, Harriet Jacobs describes her perspective on the law as a tool of oppression, when she describes how her master attempts to make her a willing accomplice tohis sexual advances by referring to the law, but also when she comments on the practice of segregation which was even being followed in some of the Northern States where she had finally managed to escape to. When she reflects on her status as a fugitive slave in the North, we find again the inherent relation between property claims and slavery. Fearing that her master will follow her North to recapture her, she writes: “I knew the law would decide that I was his property, and would probably still give his daughter a claim to my children; but I regarded such laws as the regulation of robbers, who had no rights I was bound to respect.” (Incidents 281)
44For Jacobs, slavery is not simply a Southern problem, and the laws she criticizes and refuses to accept are not just the laws of the South. She is equally aware that the Northern States have their own rules and regulations which, as she writes, “discourages the feelings, and represses the energies of the colored people” (265).
45Her keen observations that racism is as much a cultural and social ‘law’ as it is inscribed into the laws of the states and the nation, makes clear that the laws and codes of racial prejudice are probably harder to abolish than slavery itself.
The Fight for Equality: The Jim Crow System
46After the end of the Civil War and the ratification of the 13th Amendment to the Constitution, slavery was prohibited in the United States, “or any place in their jurisdiction” as the amendment said. However, the new freedom did not mean that all African Americans would benefit from the law in the same way as the white populace. On the contrary, after the reconstruction era—between 1865 and 1877—and the removal of the Union troops from the South, most of the former slave states began to establish a system of so-called ‘Jim-Crow-Laws’ (named after a cartoon figure of a black minstrel), which led to the social and cultural segregation of white and black which lasted until the 1950s. These statutes and regulations were meant to systematically and effectively exclude Southern Blacks from successfully claiming the civil rights and liberties which the 14th and the 15t amendments had meant to guarantee.
47In the course of the conservative backlash during the last decades of the 19th century, many states introduced segregated public housing and transportation, thus creating a separate public sphere with two types of citizens. Again, a number of Supreme Court decisions during the same era supported the increasing implementation of discriminatory legislation meant ‘to keep blacks where they belonged’ that is, in a position of inferiority and submission.
48Among these cases there is one which effectively cemented racial segregation in the South and whose detrimental effects have proven to be longer lasting than the decision itself which was only repudiated in 1954, in the famous decision Brown v. Board of Education that declared segregation in schools unconstitutional. In June 1893, Homer Adolph Plessy, an African American who by all means looked white, but in the eye of the law of the time was black since he was 1/8 of African descent (a so-called octoroon) sat down in the first class car of the Louisiana Railroad Company, which was reserved for whites only. When he refused to sit in the car reserved for blacks, he was arrested and put in jail.
49All this was planned and staged, and Plessy had been deliberately chosen for his role by a committee of New Orleans citizens who opposed segregation, and who wanted to demonstrate the absurdity of racial discrimination as well as to establish a legal precedent which would then help to bring down the whole system itself.
50The outcome was disastrous, not only was the case decided against Plessy in all prior instances, the final appeal to the Supreme Court led to a decision which formed the legal basis for Southern segregation until the mid-20th century. The reasoning of the judges was always the same, and it demonstrates the biological and cultural foundation of racism, as in the argument of one of the lower courts: “Following the order of divine providence . . . human authority ought not to compel these widely separated races to intermix.”
51This logic also informed the final decision by the Supreme Court in 1896, when it repudiated Plessy’s claim that the State of Louisiana was violating his civil rights and liberties by forcing him to sit in a segregated railway car. The mere act of separation, the majority argued, did not present a violation:
Legislation is powerless to eradicate racial instincts or to abolish distinctions based on physical differences, and the attempt to do so can only result in accentuating the differences of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane. … A statute which implies merely a legal distinction between the white and the colored races—a distinction which is founded in the color of the two races and which must always exist so long as white men are distinguished from the other race by color—has no tendency to destroy the equality of the two races. (163 U.S. 537; 1896)8
In this way the system of segregation was legitimized as being constitutional, precisely with the help of the amendment which was introduced in order to guarantee the equality of the races: from now on the concept ‘separate but equal’ allowed for any measure of public segregation and discrimination in the form of state laws. The judges clearly refused to look at segregation as a practice of discrimination and racial injustice, on the contrary, they provided segregation with a legal foundation and the powerful protection of the law.
52They only voice of dissent in the Plessy case belonged to a former Southern slave holder, Justice John Harlan, whose criticism eventually became more famous than the judgment of the ruling judges. Harlan, who had also opposed a former decision by the same court, found little to agree to in the decision in terms of its legal argument, and much to criticize in regard to what he saw as the fatal social and cultural effects sure to spring from its faulty reasoning. He wrote:
Our constitution is color-blind, and neither knows nor tolerates classes among citizens. … In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott case. … The present decision, it may well be apprehended, will not only stimulate aggression, more or less brutal and irritating, upon the admitted rights of colored citizens, but will encourage the belief that it is possible, by means of state enactments, to defeat the beneficient purposes which the people of the United States had in view when they adopted the recent amendments of the Constitution. (163 U.S. 537; 1896)
53With the strong support of the Plessy decision, segregation soon took root everywhere in the South—while segregation and its racist logic were certainly not exclusive to the southern part of the United States, the decision of the Plessy judges paved the way for its most general social and cultural realization—Indeed, it became a part of the culture, a point of identification, which may explain not only why it lasted so long, but also how fiercely it was defended even after the Brown decision declared segregation unconstitutional in 1954. While the final legal repudiation of the system of segregation seemed to bring the struggle for equality which had begun so long ago to an end, it would certainly be too naive to look at the history of African American experience with American law as a ‘road to freedom’—long, winding, and stony, but finally successful. When we look at the literature by African Americans concerned with the law we find that what it registers are the finer distinctions, reactions and emotions which are necessary to understand and comprehend the specific perspective on the law which Ralph Ellison tried to describe. It is an ambivalent mixture of admiration and alienation, of hope and frustration, and, finally essential, if not existential skepticism which appears to inform this perspective.
Recognition and Respect: Two Stories
54The two stories which I selected (from a large body of work to be sure), are in many respects fairly representative of African American narratives about the law. Even though they are almost a hundred years apart, there are some traits and elements which they share, and which point to an underlying common concern. I cannot present a conclusive reading of both stories, but I do think that they both offer a solid foundation for the discussion of how the law has affected and still affects African American experience.
55“The Web of Circumstance” (1899) by Charles W. Chestnutt is clearly informed by the author’s great disappointment over the Plessy case and the other Supreme Court decisions which worked against all the achievements won by the 13th to 15th amendments. Chestnutt, whose parents lived as free people of color in North Carolina and had many European blood ties, could have passed for white but ‘chose’ to be black. He was also versed in the law, and a close friend to Albion Tourgée, the white lawyer who defended Homer Plessy.
56All of Chesnutt’s novels and many of his short stories are in one way or another concerned about the law’s impact on black and white relations, since for Chestnutt the law is not simply a system of abstract rules but an expression of certain beliefs which serves as a frame of reference and action for deeper cultural and social attitudes. Thus he was very concerned that the dangerous effects of the Plessy decision would go almost unnoticed since its rhetoric appeared so convincing and democratic. Thus he wrote:
The opinion of Plessy vs. Ferguson is … as epoch-making as the Dred Scott decision. Unfortunately, it applies to a class of rights which do not make to the heart and conscience of the nation the same direct appeal as was made by slavery, and it has not been nor is it likely to produce any such revulsion of feelings. (“The Courts and the Negro” 157)
57In his stories and novels, Chestnutt attempted to generate preciselythe emotional response needed to keep alive the resistance to segregation and the legislation which supported it. This gives the story at hand a particular appeal. It is the short, almost allegorical narrative of an outspoken and honest blacksmith who through the machinations of his malign assistant falls into the hands of the law. Accused of a petty crime which he did not commit—stealing a whip from the rich white Colonel, his best client—he is treated like a non-human being, a mere animal, and as a result, after he has served his incredibly high sentence (five years of hard work on the penitentiary) he vows to take revenge on the Colonel. Hungry, thirsty and in rags he enters the Colonel’s estate, where he falls asleep from exhaustion. In his dream he relives all his hardships and finally is approached by an angel, a small child-like, innocent figure who offers him water and sprinkles him with flower blossoms. It turns out that the angel is real, it is the Colonel’s young daughter who has taken pity with the ‘poo man who needs a drink of water.’ Just when the blacksmith tries to pass her in order to leave the property, the Colonel appears and taking the ragged black man for a criminal about to attack his daughter, shots him with his revolver.
58The rather melodramatic story ends with an appeal to his readers not to let their hope for ‘the golden age’ of universal ‘love and harmony’ be ‘so enmeshed in the web of circumstance that we lose sight of it.’ (Charles W. Chestnutt “The Web of Circumstance” 323)959From our perspective today, Chestnutt’s narrative may appear almost unbearable in its didactic appeal, however, it may be precisely this trait which makes the story more accessible for the question of what kind of issues it has with the law. For the simple question why the blacksmith could fall victim to a wrong accusation is not so easily answered as it may appear at first sight. After all, his conviction was not based on direct proof, as the young and ambitious state attorney proudly declares, but purely on circumstantial evidence, a strategy that is presented as an achievement based on superior eloquence rather than rational judgment. The emphasis on the contrast between direct proof and circumstantial evidence which the story bears in its title is strategic, it is meant to draw attention to the way social judgments by whites become facts on which legal judgments, i.e. wrong convictions of innocent African Americans are based. Moreover, these universal judgments about blacks are based on irrational white anxieties: the simple and somewhat naive blacksmith is accused of being a cunning anarchist and a nihilist who wants to take away half of the whites’ property. All this is shown by Chestnutt as clearly preposterous and merely pompous rhetoric, yet the sense of entrapment and helplessness which the prisoner feels is very strongly communicated to the reader. The blacksmith is not only wrongly accused by the law, he is completely disarmed by the language of the law, by its sheer eloquence: “The prisoner sat with half-open mouth, overwhelmed by this flood of eloquence. He had never heard of Tom Paine or Voltaire. He had no conception of what a nihilist or an anarchist might be, and could not have told the difference between a propaganda and a potato.” (299)
60In fact, the state attorney is constructing an identity and successfully projecting it on the black worker which belongs to the repertoire of archaic societies: the blacksmith becomes a scapegoat, who is first charged with the sins and anxieties of others and then shunned and expelled from society. When the blacksmith returns from prison, he finds his wife has run away with his former assistant, his daughter has drowned and his son has become a murderer, he literally has lost all his grounding in society, nobody recognizes him anymore, his identity has been eradicated completely. Only the innocent white child at the end acknowledges his predicament and his sufferings—but in a final act of misidentification, her father kills what he thinks is a dangerous perpetrator about to harm his child.
61While Chestnutt’s story is clearly about the law whose processes and personal he depicts, there are no lawyers and no legal proceedings in our second example. And yet, the story “The Witness” by Ann Petry (1971)10 would remain almost completely incomprehensive and ineffective without an understanding of the reference to the law and its concepts and rituals. Told from the perspective of an elderly black professor of English who has taken a job as a high school teacher after his wife of many years had died, it reports in naturalistic bleakness a fatal event which eventually forces the teacher to resign his post and leave his home. As an act of communal service the retired professor has agreed to tutor a class of juvenile delinquents but soon realizes that they are beyond reach, and indeed a threat: “He kept looking at them, studying them. Suddenly, as though at a signal, they all looked at him. The collective stare was so hostile that he felt himself stiffen and sweat broke out on his forehead.” (2113) When one night after class he sees the boys forcing a girl into their car, he intervenes—against his better judgment which tells him to “mind his own business—black man’s business, leave the white man’s problem for a white man” (2117). The group of white boys turns against him and forces him into their car with the girl, as the menacing leader of the group explains somewhat confusingly: “you goin’ be our protec-shun.” (2117) Slowly it dawns on the professor that the white boys want to rape the girl with him as a witness, and leave him alone with their victim afterwards.
62The story reads like a nightmare, the sense of entrapment and helplessness is as strong as in the Chestnutt story, but much more physical and psychological as well. For the professor realizes that he cannot go to the police and simply tell what had happened:
So why wasn ’t he going to the police. He hadn’t touched the girl. But those horrible little hoods … would say he had touched her. Well, he had. Hadn’t he? They had made sure of that. Would the police believe him? The school board? The PTA? ‘Where there’s smoke there must be fire.’ ‘I’m not going to let my daughter stay in his class.’ (2121)
His fear that he will be implicated in the crime is so strong that he decides to leave the school and the town, in fact, to leave his life behind. When one compares the reaction of Petry’s ‘witness’ with Chesnutt’s blacksmith, one is struck by the similarities – even though Chesnutt’s text has to be read against the background of the emergence and solidification of the Jim Crow system, while Petry’s story is written way after the famous Brown v. Board of Education decision of the Supreme Court declared racial segregation unconstitutional in 1954.11
63Like Chestnutt’s blacksmith, Petry’s middle class black English professor finds himself caught in a web of circumstances he cannot control.
64Both protagonists are thus presented as victims of a similar system of prejudice: in the eye of the white population, black suspects are always already guilty. The important difference is on the level of self-reflection. Chestnutt’s blacksmith is a simple person, with little insight into the logic of racist prejudice. Petry’s professor, in contrast, is able to reflect on the situation he is in, but that does only increase and intensify his feelings of helplessness and weakness, especially when he realizes that the power of the white boys stems from his own internalization of a constructed identity: the black man as rapist. Even though he knows he is innocent he nevertheless assumes the role of the suspect, even taking flight, as any suspect would do. This is what the white boys knew, that his social and psychological conditioning as an African American and his experience with the law would prevent him from going to the police, thus he was indeed their perfect witness:
They were bright boys, bright enough to recognize him for what he was: a black man in his sixties, conditioned all his life by the knowledge that “White woman taboo for you” (as one of his African students used to say). The moment he decided to intervene there in front of the church, they decided to take him with them. They knew he wasn’t going to the police about any matter which involved sex and a white girl, especially if there was the certainty that all seven of them would accuse him of having relations with the girl. … ‘We got us a rich ho-daddy.’ That’s what one of the boys had said …. A rich ho-daddy? A black ho-daddy. A witness. Another poor scared black bastard who was a witness. (2123)
65Petry’s story can only be understood fully in light of its most concrete references to the role of racial stereotypes in legal processes. The central concept of ‘witnessing’ is crucial here, because it calls attention to the fact how much witnessing and testimony in an attempt to decide about the innocence or guilt of any defendant comes to rest on racial misidentification: a black defendant is more likely to be found guilty by white jurors, while a white witness appears more trustworthy than an African American.1266Both Chestnutt and Petry thus present an irritating and rather disturbing assessment of the relation between African American life and law. Even the relative achievements and acknowledgement of the black middle class since the end of slavery, of segregation and the Civil Right struggle cannot save African Americans from the psychological conditioning that their historical experience with the law has imposed on them collectively and individually. Even almost 150 years after the emancipation proclamation, the sense of fundamental and continuous legal disenfranchisement is still very strong, and the emergence of the so-called neo-slave narrative in the 70s and 80s (with Toni Morrison’s Beloved and Alice Walker’s The Color Purple as prominent examples) demonstrates that the perspective of African American literature on American law is still trying to cope with the larger historical and cultural implications of the law’s central role both in the oppression and the liberation of African Americans.
1 See the wonderful introduction to American legal culture by David Ray Papke. “Law in American Culture: An Overview.” Journal of American Culture 15, no. 1 (1992): 3–14.
2 See Carl S.Smith, Jr., John P. MacWilliams, and Maxwell Bloomfield. Law and American Literature. A Collection of Essays.(New York: Knopf, 1983).
3 For an excellent collection of material concerning Stowe’s novel and its cultural context, see the website at the University of Virginia, http://www.iath.virginia.edu/utc/.
12 Racial misidentification has become a major issue in the debate about jury trials. The range of errors is astounding, and it seems that the media play an important role in perpetuating the effect of certain stereotypical forms of observation and identification. See Sheri Lynn Johnson. “Cross-Racial Identification Errors in Criminal Cases.” Cornell Law Review 69 (1984): 934–87; Mary Beth Oliver and Dana Fonash. “Race and Crime in the News: Whites’ Identification and Misidentification of Violent and Nonviolent Criminal Suspects.” Media Psychology 4 (2002): 137–56.
The North American Slave Narrative. 2004. University of North Carolina. Available: http://docsouth.unc.edu/neh/. 25.04. 2006
Chestnutt, Charles W. “The Web of Circumstance.” The Wife of His Youth and Other Stories of the Color Line. Ann Arbor: University of Michigan Press, 1968. 291–323.
—. “The Courts and the Negro.” Plessy v. Ferguson. Ed. Brook Thomas. New York: Bedford, 1997. 149–60.
Douglass, Frederick. The Narrative of the Life of Frederick Douglass. 1845. The Classic Slave Narratives. Ed. Henry Louis Gates Jr. New York: Mentor, 1987.
Ellison, Ralph. “Perspective of Literature.” Going to the Territory. 1976. New York: Random House, 1986. 321–38.
Ervin, Hazel Arnett, and Hilary Holladay. Ann Petry’s Short Fiction. Westport: Greenwood, 2004.
Haney López, Ian F. White by Law. The Legal Construction of Race. New York: New York UP, 1996.
Harris, Cheryl I. “Whiteness as Property.” Harvard Law Review 106 (1993): 1707–96.
Higginbotham, A. Leon Jr. Shades of Freedom: Racial Politics and Presumptions of the American Legal Process. New York: Oxford University Press, 1996.
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Jacobs, Harriet A. Incidents in the Life of a Slave Girl. Ed. Lydia Maria Childs. Boston: Published for the Author, 1861.
Johnson, Sheri Lynn. “Cross-Racial Identification Errors in Criminal Cases.” Cornell Law Review 69 (1984): 934–87.
Kennedy, Randall. Race, Crime, and the Law. New York: Pantheon, 1997.
Oliver, Mary Beth, and Dana Fonash. “Race and Crime in the News: Whites’ Identification and Misidentification of Violent and Nonviolent Criminal Suspects.” Media Psychology 4 (2002): 137–56.
Petry, Ann. “The Witness.” The Heath Anthology of American Literature. Ed. Paul Lauter et al. 3rd ed. Vol. 2. Boston: Houghton Mifflin, 1998. 2110–23.
Ross, Thomas. Just Stories. How the Law Embodies Racism and Bias. Boston: Beacon, 1996.
Sarat, Austin, Ed. Race, Law, and Culture. Reflections of Brown v. Board of Education. New York: Oxford University Press, 1997.
Suggs, Jon-Christian. “Epistemology and the Law in Four African American Fictions.” Legal Studies Forum 14, no. 2 (1990): 141–62.
—. Whispered Consolations. Law and Narrative in African American Life. Ann Arbor: University of Michigan Press, 2000.
Thomas, Brook. Plessy v. Ferguson. New York: Bedford, 1997.
Peter Schneck is Professor for American Literature and Culture at the Institute for English and American Studies, University of Osnabrück. From 1997 to 2006 he was Assistant Professor at the Amerika-Institut, Ludwig-Maximilians-Universität. He studied Media and Communication Studies and American Studies at the Free University Berlin and Yale University and received his Ph.D. at the FU Berlin in 1996. He has been research fellow at the Smithsonian Institution, Washington D.C., and a visiting scholar at the University of California at Irvine. Publications include: Iconographies of Power. The Politics and Poetics of Visual Representation (co-ed., 2003); Bilder der Erfahrung. Kulturelle Wahrnehmung im amerikanischen Realismus (1998); Hyperkultur. Zur Fiktion des Computerzeitalters (co-ed., 1996); and articles on literature and visual art, media history, cultural studies, and law and literature. He also co-edits the online magazine “PhiN.Philologie im Netz” http://www.phin.de.
Schneck, Peter. “The Reflection of Race and Law in African American Literature.” American Studies Journal 51 (2008). Web. 19 Mar. 2019. DOI 10.18422/51-05.