Matthew Crow, Hobart and William Smith Colleges
Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580-1865. By Christopher Tomlins. Cambridge: Cambridge University Press, 2010. 636 pages. $41.00 (paper).
River of Dark Dreams: Slavery and Empire in the Cotton Kingdom. By Walter Johnson. Cambridge, MA: Belknap Press of Harvard University Press, 2013. 560 pages. $35.00 (cloth).
Twice in his book River of Dark Dreams, Harvard historian Walter Johnson cites the German literary critic and philosopher Walter Benjamin (1892-1940). In both cases Johnson draws our attention to material conditions for the emergence of a particular image of the past: “Historical materialism wishes to retain the image of the past,” Benjamin writes, “which unexpectedly appears to a man singled out at a moment of danger.”[i] In this instance Johnson refers to H.A. Kidd, the survivor of an explosion on board the steamboat Anglo-Norman, who recounted the event of 1850 in his essay “The Experience of a Blown-Up Man.” The arc of Kidd’s trajectory as he is thrown from the ship for Johnson crystalizes the arc of antebellum history in the United States, when the intertwined forces of empire, capital, and slavery drove the first republican constitutional order to its fate. Johnson begins with Kidd but moves quickly to Thomas Jefferson, who dreamed of an empire of white settler liberty in the vast territory gained by the Louisiana Purchase, and who came to see, if only in his darkest dreams, that the enmeshment of bodies, land, cotton, steam, and steel in the materializing empire of liberty was an explosive combination. Kidd’s fate, being thrown from the Anglo-Norman and into the Mississippi River, is itself unhappily Jeffersonian. It is also one of several fitting conjunctions and confrontations of imagined histories of law and liberty staged in Johnson’s book. “Gambling coverts time into a narcotic,” Benjamin writes, and the investments in games of profit, security, and human capital presented to us by Johnson appear as so many fantasies when measured as they are against the times of the river carrying this history forward.[ii]
The direct use of Benjamin in Johnson’s book, however passing when measured against the full length of the project, establishes one among many links with the work of Christopher Tomlins, newly of the Law School and the Jurisprudence and Social Policy program at UC Berkeley, and who pursues among other things nothing less than the construction of a Benjaminian and so materialist jurisprudence. Tomlins has urged historians of law to move beyond the historicism inherent in the reigning methodological paradigms not only of critical or historical legal studies but across much of the spectrum of humanistic inquiry.[iii] For Tomlins at least, the principle of so much of contemporary intellectual practice is easily summarized: everything is in flux, everything is socially or culturally constructed. Having sufficiently internalized this quintessential postmodern feeling, the job of the historian is to reveal what seems settled, natural, and necessary as uncertain, historically bound, and contingent. For Tomlins, the logical endpoint of such assumptions is a singular focus on locality, historicity, and complexity. The goal of his own work then is to change not only our understanding of the origins of British North America and the United States but our sense of what it is to study and write about these things.
For both Johnson and Tomlins, a materialist ethic of historical research and writing drives efforts to rethink the practical construction of historical agency (in Johnson’s work) and civic identity (in that of Tomlins). In Freedom Bound, it is law that provides the means for instituting empire and its circumscriptions of legal and civic personality, from the beginnings of Spanish and English colonization of the Americas to Dred Scott v. Sandford in 1857 and the American Civil War. The result is a narrative where the potentialities and contingencies of political life and the experience of historical change are marginalized. Tomlins focuses instead on the longer, more structural processes of institutional and economic development in the early modern and modern Atlantic world. His goal is threefold: to practice attentiveness to the materiality of the project of empire and of processes of historical change, to insist that the legal and political order of the United States can be explained as well as described, analyzed, and contextualized, and that this explanation is best done by attending to the power of law as something even more than an instrument to shape historical and so civic subjectivity.
Johnson too takes a materialist turn, and is equally concerned for his readers to appreciate necessary connections between the image of the past and the conditions of its construction, or between how we can think about the agency of historical subjects and the work of contemporary historical practice. Johnson paints a picture not so much the raw and intertwined historical forces of capitalism, slavery, and empire but of the human fragments caught up in and blown up by these forces. If Tomlins gives us the rigid, violent, and world-making projection of patriarchal power, Johnson gives us something closer perhaps to Benjamin’s wandering perusals of the trash heap left by human history conceived of as progress. The feeling one has with Johnson’s book is of violence, yes, law, race, and empire, yes, even of a few haphazard institutions, but all of this mixed with blood, semen, and shit within a current of cruelty, blindness, and absurdity. If for Tomlins John Smith, Thomas Jefferson, and Roger Taney knew exactly what they were doing, for Johnson the antebellum master class is its own peculiar example of Hannah Arendt’s “fools of history.”[iv]
And so between the forceful institution of sovereignty and the embodied exercise of what powers every body has, the spirit of these two books taken together is as Pynchonian as it is Benjaminian. The challenge posed by both to reigning assumptions of historical practice is a substantial one, and because both have been extensively reviewed elsewhere, it is this challenge to thinking about historical practice that I want to deal with here.
That freedom is bound and that this binding goes untroubled by the events of the American Revolution is an important part of the story for Tomlins, as is the implication that despite the moment of the American Civil War, we continue to live in the history made by the colonizing of English America. He explains the origins of what he sees as an American condition—one Tomlins characterizes as a conjunction of law, service, and rigorously enforced gradations of liberty, a conjunction that forms “a property-based democracy for and by household masters,” legitimated by a “discourse of adult male agency.” In this telling, what confronts the historian of Atlantic early modernity and the origins of the United States is not a contingent struggle of rival ideologies, the playing out of cultural anxieties, nor an open struggle between workers and elites, but the “constancy of differentials and occlusions of civic identity,” and the undeniably “easy coexistence of liberal modernity with gendered subalternship and with an expanding discourse of disciplined service.”[v] The American Revolution and US Constitution are less a founding of this history of civic identity than a continuation of it, and even the Civil War itself is only a temporary cessation of this history’s constancy. That both sides of that conflict understood themselves to be protecting a particular understanding of the civic identity described by Tomlins suggests that there are tensions and contradictions in the identity itself that were a long time in the making, and that its making might be a bit more of a convoluted process than the structuring image of constancy favored by Tomlins allows.
That being said, and despite what we might assume from his explicit and impressive enthusiasm for ambitious structural explanation, metanarrative, and the constancy of historical development, much of Freedom Bound aims to represent an immense jurisprudential and jurisdictional plurality that characterized early modern imperial rivalries and the breadth of the Spanish, Dutch, French, Portuguese, African, British, and Native Atlantic world. The story Tomlins tells is that of the uniquely Anglo-American project of disciplining this plurality, but this should not blind his readers to the sophistication of his treatment of the juridical fields of early modern empire. In the first third of the book he delivers a reconstruction of the legal theory of the school of Salamanca and its leading theorist, Francisco de Vitoria (1486-1546), whose writings communicated at once a theoretical justification for European conquest in the Americas rooted in the law of nature and cast doubt that the actual history of Spanish incursion into Central and South America qualified as within the bounds of natural right, even in these terms.[vi] Vitoria and indeed the Spanish Empire thought the Native Americans could be found guilty of insufficient cultivation or use of the natural resources at their disposal; in their failure to produce resources and goods for exchange with other nations, they were in violation of an inherent duty on the part of the peoples of the world to be sociable according to the law of nature and nations. But, Tomlins argues, for all of the horrors of the Spanish imperial project in the Americas, the Native Americans living in Spanish-claimed territories retained a minimal recognition as peoples with albeit severely limited corporate rights, as the work of Vitoria and Las Casas attest, and it in this recognition of claimable collective rights that the Spanish case was fundamentally different than the English imperial project in North America.[vii]
Tomlins locates the origins of a peculiarly English legal framework for empire in the demographic pressures of enclosure and the resulting receptivity to a conjoined discourse of conscripted, disciplined labor and the rights of proprietary (and patriarchal) ownership as the grounds of legal legitimacy and civic identity. By this logic, and beginning with the influence of Alberico Gentili’s jurisprudence on English colonial literature and the experience of governing Virginia, freedom was bound, slavery was constitutionalized, and the Native Americans living in North America were conceptualized as listless individuals who had failed to become laboring, cultivating proprietors. As a result, British Americans acted could act as if Native Americans had surrendered their claim to even the most basic protection of civil or natural law.
Law here for Tomlins is not just an instrument of the imperial and political-economic logics of masters but a driving force of historical change itself, and for precisely that reason the status of the intellectual history Tomlins surveys as “discourse” is at least questionable. The jurisprudential texts are rarely presented in any kind of discursive activity, in conversation or much less debate with one another, and are far more often (quite properly, given Tomlins’ methodological commitments) presented as symptoms of deeper, more constant forces of development.
But the paradoxes go deeper. We have a book of 597 pages of densely footnoted text on Anglo-American law and empire up to the American Civil War in which Jefferson, Andrew Jackson, and John Marshall get a single index reference each. Ultimately, the driving force of law conjoined to absence of political and jurisprudential conflict, and so of contingency, is at times asserted or even assumed rather than argued. To take only one example: in the political crises surrounding Marshall’s mature jurisprudence on the question of Native American title, we have the curious case of Marshall using English precedent to find the minimal corporate rights of the Cherokee outweighing the claims of Georgia’s white proprietary settlers, confronting a Jeffersonian and Jacksonian logic of settler liberty and rights of sufficient use that is eerily evocative of the centrality of the concept of use to the continental (and later Lockean) discourses of natural jurisprudence, including and especially those of the scholars of Salamanca.[viii] We are confronted with at least the possibility that Marshall and Jackson were not simply confused, that their differences actually mattered, and that historians will need to attend to the terms in which the actors they study represent themselves to each other in time. Or we do at least if we are going to continue talking about discourse, and at least if we are going to hope that historical writing and political engagement can result in historical and political change.
If for Tomlins law is the very material out of which civic identity and even regimes of labor are implemented, for Johnson the law if anything is a scattered reflection of an even more powerful materiality. Historical agency in Johnson’s narrative takes the place of civic identity in that of Tomlins. Like Tomlins, Johnson aims to push the writing of history through some of its constructivist conceptual blockages and into an appreciation of historical subjectivity as part of material processes, “the interlinking of material process and cognitive experience.” Historical agency then is not so much a condition or an achievement as a phenomenon, “thick with the material givenness of a moment in time.”[ix] Importantly, Johnson’s framework insists that agency is not something historians can grant their subjects—it is something historians can recognize in them, and the same is true for its absence. Johnson is acutely aware of the materiality and the contingency of historical self-understanding and its limits, and so we get a very rich picture of these projects and processes as they play themselves out, for Johnson, in history and across time. Southern slaveholders of the antebellum period had different visions of the future, each constructed out of particular images of the past from which these futures might emerge. Slaves escaping on steamboats needed to invent a history for themselves in order to fit into the history being made, all while the historical visions of their masters became increasingly distant from the material reality that underwrote the fragile and particular agency of ownership.
Sandwiched as we now know them to have been between great ages of revolution, and precisely because the master class found itself beset by all sorts of insecurities, including slave rebellion, slave escape, technological change, poor white discontent, regional economic disparity, and constitutional politics, slave owners began falling victim to increasingly totalizing visions of their special role in world history. “The history being made in the South was not the history that the slaveholders and cotton factors told themselves they were making, but another sort of history entirely,” Johnson writes. “It was the history being made by their black slaves.”[x] What making history entails here is not narration or revolution but labor, the mixing of muscle, sweat, and industry with the firmness of the earth and the sweep of the river. And because the raw materiality of this making both provided for and threatened to outstrip the security of the master, the elite southern mind was driven to envision elaborate means of reinforcing and expanding the sense of being in control. One of the key strengths of Johnson’s book is to show just how much psychological, political, and ultimately military effort went into this project, how supposedly discerning and self-governing elites could have been so prone to projections of ideological fantasy. He notes somberly that we too live in an age of increasing occlusions of economic and civic liberty, one that is not surprisingly in awe of the promise of technological change to make interruptions of the material reality undergirding it as rare as possible. Johnson calls the literary projection of the promise and peril of the technology that made slavery fit for capitalism the “steamboat sublime,” and the power of this projection in driving the steamboat economy and steamboat imperialism is only one of many examples of similar fantasies that bewitched the minds of the master class.[xi]
The end result of Johnson’s narrative is an image of Southern policy makers, renegades, and intellectuals earnestly debating the reopening of the slave trade, the creation of an empire of slavery, and a globalized free market of slave labor on the eve of the Civil War. Thus we have George Fitzhugh, the famed defender of traditional hierarchy against the modernizing forces of the world of Adam Smith, waxing poetic about the possibilities of an even more powerful and progressive global marketplace where the chief commodities would be human beings.[xii] If at first it is easy to appreciate the fateful irony of these and other visions and schemes, in retrospect it is difficult to deny the power (one might say the agency) that these historical visions exercised in their day. Johnson is usually content to contrast these visions with their material limits. The reformist planter M.W. Phillips was as an owner of slaves doomed to fail in his effort to “adjust the metabolism of social anthropophagy.”[xiii] About the logistics of the failed attempts of Narciso López to organize an invasion of Cuba, we are told that the “intransigent materiality of absolute space was winnowing his chances of victory.”[xiv] As with the “steamboat sublime,” a good deal of argumentative weight rides on these and other evocative phrases, so much so that one is tempted to quote Johnson’s own reaction to idealistic appraisals of López’s endeavor: “well, yeah, I guess, probably maybe so.”[xv] But the larger point to be made is that Johnson’s project of redressing the balance between material life and cognitive experience on the one hand with the respective acknowledgment of the historical agencies of masters and their slaves on the other itself has its limits.
At the end of the day it is these visions of history, progress and power that implicitly do a lot of the heavy lifting of explaining historical change in Johnson’s book, and that is to say nothing of the visions of the fighting, writing, and speaking people on the other side of the coming conflict. And so two problems emerge: the cognitive experience of the history being made often seems to be taking place in a kind of political and intellectual vacuum, which we know from the constitutional history of the period simply did not exist.[xvi] Secondly, the rich world of materiality and symbolic power that Johnson narrates represents much, but if taken on its own terms, explains a bit less. In its interaction with material reality, human thought in Johnson’s framework is at times all and at times nothing, and rarely if ever anything in between. If Johnson is right about just how fanciful ideological fantasy could (or can) be, and about the almost tragi-comic nature of the planter’s date with inevitability, and we know at the same time from reading Johnson just how powerful those same ideological fantasies could or can be, then its not clear what the role of the impressive assemblage of research compiled by Johnson actually is in the history that was being made, to say nothing of the history that is being written. The reader is left with a multifaceted series of accounts, a kind of jumble, and there is a case to be made that this is how it should be. And yet, to get back to Benjamin, Johnson compiles a hefty treasure trove by looking into this particular history, but it might be an open question as to whether he helps us get our hands on it.[xvii]
These books were not meant to be in conversation, but we can take them to be. Both books position their respective authors as critics of contemporary historical practice, particularly of early American studies. Both authors pose a materialist ethic against the complacencies of cultural history, and in doing so both hope to capture a particular image of the past in an effort to recast the relationship between historians and their present. If Johnson goes to great lengths to mirror for his readers the absolute bloody mess of these histories of bondage, violence, and empire, Tomlins takes it upon himself to explain that mess, make it comprehensible, and so to deliver a history that he hopes we can get our hands on. In his famous essay “On the Concept of History,” Benjamin writes that “the past carries with it a secret index by which it is referred to redemption,” and so “we have been endowed with a weak messianic power, a power on which the past has a claim.”[xviii] History has a claim on our memory and our present, and both Johnson and Tomlins seek to honor that claim. Both inherit Benjamin differently.
Johnson acknowledges a very weak messianic power, and does so in the spirit of Benjamin’s idea that the “chronicler who narrates events without distinguishing between major and minor ones acts in accord with the following truth: nothing that has ever happened should be regarded as lost to history.”[xix] Tomlins, by contrast, is the stronger historical materialist, who by Benjamin’s lights “remains in control of his powers—man enough to blast open the continuum of history.”[xx] Johnson mirrors and reflects the constellations of his historical subjects, while Tomlins gives us a history of the appropriation of the North American continent that is itself appropriative. Describing history as a work of remembrance, Tomlins is more direct and willful in the insistence that this work is a decisive seizing of a particular image of the past at a critical juncture in the present.[xxi] Historians and other readers will no doubt go on to prefer one or the other, perhaps neither, or more happily maybe even a little bit of both. We need both Johnson’s more accommodating awareness of the interface between materialism and historicity as much as we may need the firm grasp of historical explanation and the courage of social theorizing that Tomlins gives us.
The road forward from these books is at least threefold. Most basically, both assert the fundamental importance of the linkage between empire and the history of American citizenship and legal personality, but the study of that linkage is hardly exhausted in these two books.[xxii] Secondly, both invite further scholarship that enriches our historical imagination’s capacity for dealing with materiality. Material culture lends itself here, as does the history of the body, but built environments, domestic, civic, and juridical spaces, material practices, collections, and the circulation and use of texts are just as suggestive (the Benjamin of the Arcades Project and his other collections might be as useful to historians as any other we can seize on). Finally, one of the interesting things to note about the current interest in Benjamin is how easy it seems to marginalize his own understanding of his work as theology. Scholars looking to Benjamin or perhaps to materialism in any form are going to need to own up to if not fully accept this aspect of their conception of historical practice. To write the history of the present and to claim to do so by dealing with historical humanity at its most fundamental and existential level is to participate in a kind of negative theology. To take the material of historical representation in hand and to craft histories against the day is to practice the work of remembering the past as the work of not only its recollection, but its redemption. And yet even then, what historians might mean by adopting, partially adopting, or refusing this ethic today will be contingent on how they use it.
[i] Walter Benjamin, “Theses on the Philosophy of History,” quoted in Walter Johnson, River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (Cambridge, MA: Belknap of Harvard University Press, 2013), p. 423, n.4.
[ii] Benjamin, “Paris, the Capitol of the Nineteenth Century,” quoted in Johnson, ibid, p. 244.
[iii] See, for example: Christopher Tomlins, “Revolutionary Justice in Brecht, Conrad, and Blake,” Law and Literature Vol. 21, Issue 2 (2009); (2012) “After Critical Legal History: Scope, Scale, Structure. Annu. Rev. Law Soc. Sci. 8: Submitted. DOI: 10.1146/annurev-lawsocsci-102811-173811.
[iv] Hannah Arendt, On Revolution (New York: Penguin, 2006 ed.), pp. 48-49.
[v] Tomlins, Freedom Bound: Law, Labor, and Civic Identity in the Colonizing of English America, 1580-1865 (Cambridge: Cambridge University Press, 2010), pp. 398-399.
[vi] Vitoria, Political Writings, Anthony Pagden and Jeremy Lawrence, eds. (Cambridge: Cambridge University Press, 1991); Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain, and France, c. 1500- c. 1800 (New Haven: Yale University Press, 1998), Annabel S. Brett, Changes of State: Nature and the Limits of the City in Early Modern Natural Law (Princeton: Princeton University Press, 2011).
[vii] Tomlins, ibid, pp. 132-134.
[viii] John Marshall, Opinion in Worcester v. Georgia (1832), Writings, Charles F. Hobson, ed. (New York: Library of America, 2010), pp. 743-779, James Tully, “Placing the Two Treatises,” in Political Discourse in Early Modern England, Nicholas Phillipson and Quentin Skinner, eds. (Cambridge: Cambridge University Press, 1993), pp. 253-280, Craig Yirush, Settlers, Liberty, and Empire: The Roots of Early American Political Theory, 1675-1775 (Cambridge: Cambridge University Press, 2011).
[ix] Johnson, River of Dark Dreams, p. 9.
[x] Johnson, ibid, p. 68.
[xi] Johnson, pp. 73-75.
[xii] Johnson, pp. 409-413.
[xiii] Johnson, p. 192.
[xiv] Johnson, p. 341.
[xv] Johnson, p. 353.
[xvi] George William Van Cleve, A Slaveholder’s Union: Slavery, Politics, and the Constitution in the Early American Republic (Chicago: University of Chicago Press, 2010).
[xvii] “For cultural history lacks the destructive element which authenticates both dialectical thought and the experience of the dialectical thinker. It may augment the weight of the treasure accumulating on the back of humanity, but it does not provide the strength to shake off this burden so as to take control of it.” Walter Benjamin, “Eduard Fuchs, Collector and Historian,” Selected Writings, Volume 3, 1935-1938, p. 268.
[xviii] Benjamin, Selected Writings, Volume 4, 1938-1940, II, p. 390.
[xix] Benjamin, ibid, III, p. 390.
[xx] Benjamin, ibid, XVI, p. 396.
[xxi] Tomlins, Freedom Bound, p. 17.
[xxii] See Aziz Rana, The Two Faces of American Freedom (Cambridge, MA: Harvard University Press, 2010).