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.
[xii]
Johnson, pp. 409-413.
[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).
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