489935 Henry James, Dred Scott, And Fictions of Identity

Changing the Subject: Henry James, Dred Scott, and Fictions of IdentityAuthor(s): Sara B. BlairSource: American Literary History, Vol. 4, No. 1 (Spring, 1992), pp. 28-55Published by: Oxford University PressStable URL: http://www.jstor.org/stable/489935 .Accessed: 17/03/2011 21:42

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Changing the Subject: Henry James, Dred Scott, and Fictions of Identity Sara B. Blair

1

In July 1883, Henry James dedicated a memorial review in the Century magazine to the fiction of Anthony Trollope. Like all of James's assessments of other novelists, the essay strategically promotes James's literary doctrine even as it re- views its ostensible subject. Trollope's death provided James with an occasion for revising the status of the novel as a social form-an occasion that came, in 1883, at a particularly op- portune moment for James himself. Returning to Europe after the deaths of both his parents, eager to cash out the literary capital accruing from his first major success two years earlier, The Portrait of a Lady, James is centrally concerned with the management of his own professional career. Like other, better- known essays of the mid- 1880s, including "The Art of Fiction," "Daudet," and "Ivan Turgenieff," "Anthony Trollope" reveals James negotiating the "complex fate" of his social identity and his mastery of a transatlantic reading public.1

At the literal and critical center of the Trollope essay, James formulates a sweeping indictment of his predecessor's literary practice that has profound consequences for this work of self- invention. "It is impossible," he asserts, "to imagine what a novelist takes himself to be unless he regard himself as an historian and his narrative as a history. It is only as an historian that he has the smallest locus standi" ("Anthony" 247). James appears here to be making a fairly restricted claim about verisimilitude and the formal integrity of the work of art. The notion of the locus standi, however, enables James to inaugurate a process of critical self-fashioning that would culminate in the prefaces to the New York Edition. By implication and indirec- tion, the Trollope essay composes James as a figure who oc- cupies a privileged vantage point at the margins of his own community. Witnessing and representing from that metaphoric place, the author is empowered with a moral authority-in

American Literary History 29

effect, a moral omniscience-that transcends the practices and the limits of the community it wholly comprehends. As the prefaces will later do with greater irony and self-consciousness, "Anthony Trollope" promotes a fiction of the author's locat- edness in a "great good place" from which authentic represen- tations (as transparent and objective as those of "history" itself) will ensue.

The figural work of self-invention done in the "Trollope" essay becomes more obvious when we recover the continuity of its central metaphor with a body of legal thinking about personification, individualism, and the formation of political community. In the language of jurisprudence, locus standi- literally, from the Latin, "a place to stand on"-signifies the right of the individual, based on a legally defensible and tangible interest in a particular issue, to appear before a body of justice and make claims for its resolution.2 In modem American jurisprudence, standing has become a mechanism by which federal courts claim or disclaim jurisdiction over certain issues, particularly constitutional issues, brought before them and thereby manage legal and political questions on procedural grounds.3 Yet even this technical function preserves the roots of standing as a social metaphor: the court will hear only an individual entitled, literally, to stand up before the court, an individual whose political and social status guarantees membership in the community and consequently the right to take a stand (Winter 1387).4 If the doctrine of standing serves as a mechanism for deciding who will have a say in court, it also determines who counts, for legal purposes, as an individual, authorized to represent him- or herself before the law. Through- out the history of American jurisprudence, the doctrine of standing has thus shaped and represented legal understandings of identity, the political subject, and personhood; it has effectively naturalized individualism as the basis for the institution of the law (Vining 2, 55).5

James's apparently fortuitous invocation of legal discourse not only mobilizes the ideology of individualism; it puts at issue, in his contrast between Trollope's failed authorship and the fiction of authorship James defends, the origins and representativeness of social texts and forms of identity. In this respect, James's modest review of Trollope intersects with the emerging use of the standing doctrine in nineteenth-century American law and, in particular, with a legal opinion delivered by the US Supreme Court 26 years earlier, in March 1857, on a case that transformed the legal work of making up people: the case of Dred Scott v. John A. Sandford, US Howard 19. In both James's

30 Changing the Subject

Like the increasingly prominent proponents offormalism in Ameri- can legal culture, James embraces the provisionality of his own authority and of the texts he produces.

review and the court's controversial opinion, the concept of standing-membership within a coherent political and narrative community-is pressed into the service of constructing and naturalizing politically charged fictions of identity. Moreover, the structure of James's argument to standing resembles that of the Taney Court in several important respects. While the latter exploits the doctrine of standing to create a form of identity, based on race, that lies outside the protection of the law, outside "legitimate" political community, and outside constitutional discourse, James invokes locus standi to construct an author privileged in his implied access to transcendental laws, anterior to the limitations of culture and its historically specific institutions. In both cases, the logic of standing promotes political empowerment through regulatory fictions of race, read as the signifier of a natural continuity between community and the text that stands transparently for it.

Read against the Scott case, James's essay finally reveals the deeper ideological resources and designs of an emerging literary mastery. Like the increasingly prominent proponents of formalism in American legal culture, James embraces the provisionality of his own authority and of the texts he produces. Paradoxically, he thereby inaugurates the second-order mastery celebrated in our own postmodern moment, a mastery that legitimates itself by delegitimation, in the advertisement of its own fictionality, its own contingency. Yet-as James's use of the standing doctrine in "Anthony Trollope" and Taney's in the text of Scott will suggest-this "higher" recognition of tex- tual strategies as such selectively conceals its own complicity with the forms of authority it challenges. In particular, it conceals its dependence on authorizing orthodoxies of race and social purity that effect James's recovery of the metaphysics of text, author, and representation that he ostensibly seeks to undo. To read "Anthony Trollope" against the case of Scott is thus to reconsider the origins and the costs of James's literary mastery, and of the fictions of identity and power onto which it opens out in the name of fiction's laws.

More specifically, to connect James with legal thinking is also to force a reexamination of his mastery in the definitively American cultural context he attempts to suppress. Despite his wholesale efforts throughout the 1880s to obscure his American past, James's self-invention evinces revealing social and institutional forms of connection with the culture of Dred Scott, most notably in the political content of his domestic life. Like his critical charity, James's knowledge of the genteel culture of abolition began at home. Despite its peripatetic tendencies, the


James family remained in New York continuously from 1845- 55, a crucial decade in the development of abolition politics, which ushered in vociferous debates on states' rights, the expansion of slavery into the American territories, fugitive slave laws, and the legal status and viability of the Missouri Com- promise.6 Frequently, the architects of these debates were vis- itors in the James household. Although the elder James characteristically obscured the institution of slavery as a spiritual condition "detached" from the realities of race, he was deeply engaged in intellectual exchange with such devout political jour- nalists and advocates as Charles A. Dana (whose cousin, Rich- ard Dana, tried the Fugitive Slave Law cases that galvanized polite Boston society in the 1850s, as well as the treason proceedings against Jefferson Davis), Rufus Griswold, N. A. Willis, and George Ripley.7 The elder James was particularly close to Horace Greeley during the latter's explosive years of sectional wrangling at the New York Tribune. James himself remembers visiting Greeley there, admitting that the Republican crusader "dropped into my mind the germ of certain interests that were long afterwards to flower" (Autobiography 44).8 During the months of abolition debates that culminated in Greeley's caning near the US Capitol in January 1856 at the hands of a future Confederate general, the elder James continued to contribute a series of "Letters" to the Tribune from the family's temporary residences in Europe. Meanwhile, Greeley was alerting the Tri- bune's readers to the impending Scott decision and the political consequences of "the great case" (Alexander H. Stephens, qtd. in Kutler xii); immediately after the court delivered its verdict, he began a series of passionate editorials that set the tone of the Republican response, denouncing the decision as "abomi- nable," morally equivalent to the judgment of "those congre- gated in any Washington bar-room" (New York Tribune 15 Feb. 1856). Throughout the fracas, the elder James's "Letters" continued to appear in the Tribune along with Greeley's in- flammatory prose.

If the intellectual pretensions of the family patriarch ex- posed the younger James to abolition politics of the drawing room, so too did his own experience of antebellum American popular culture. Among his most memorable childhood ex- cursions, James highlights a trip in November 1853 to P. T. Barnum's Great American Museum, where he saw Barnum's landmark, controversial, and highly spectacular production of Uncle Tom's Cabin, replete with its eroticized and proslavery overtones; he later saw the National Theatre's extended version of the play on the equally memorable occasion of his first "the-


atre party." Beyond these public performances, the text of Uncle Tom's Cabin shaped James's experience of the middle- class institutions and values of New York. By his own admis- sion, he "lived and moved," during early childhood, "with great intensity, in Mrs. Stowe's novel." At "exactly the season of [its] freshness," and of the thickening "of the great intersectional plot," James raptly attended the melodrama initiated in Four- teenth Street by the arrival of the Norcom family, with three sons and "two pieces of precious property." The young slave, Davy, remained a playmate of James's until he and his mother recognized their owners' "great Kentucky error" and promptly fled to claim their freedom (Autobiography 92-95, 141-44). James and his readers too often privilege the purely aesthetic character of his motives virtually from the cradle, yet clearly those distinctively Jamesian activities of "watching," playgoing, and consuming fiction were closely bounded by the social issues and anxieties that defined the Scott decision.

In later life, James superciliously recalled the aesthetic culture of middle-class New York as a culture of "the busy, the tipsy, and Daniel Webster" (Autobiography 30). The popular imagination of Boston, in and around which James lived from 1861-1869, was even more densely imprinted with sectional and secession politics. His activities there, aesthetic and domestic, reflect the prominence of current political controversies in local communal life. James makes much of his presence on New Year's Day 1863 at the Boston Music Hall, later to be the site of his own controversial imagination of Union, where thousands of Bostonians gathered for a righteous celebration of Lincoln's Emancipation Proclamation that included Emerson's reading of the "Boston Hymn." During 1862-63, James board- ed at the establishment of one Miss Upham, where his fellow diners included Joe May, son of a prominent New York abo- litionist, and Francis J. Child, a Harvard Chaucerian noted for his elegiac perorations on the state of the Union and the Har- vardians who had died in its cause (James, Autobiography 419- 21, 427-28, Partial Portraits 27-28; Edel 195, 199). Long after arms had been laid down, the political culture of the Bostonians continued to leave its traces; two of James's friends (and putative rivals for the affections of Minny Temple) were Oliver Wendell Holmes, Jr., the future Supreme Court "justice for the ages," and John Chipman Gray, future Harvard law professor and brother of the distinguished jurist Horace Gray, who in 1857 coauthored "A Legal Review of the Case of Dred Scott"-a decisive critique of the Taney decision and its use of the doctrine of standing.9


The very accidental nature of the threads of connection drawn between James and the drama of abolition politics suggests how inevitable were the issues of sectional conflict and race in the city and the academic institution he inhabited during the early years of the war. Beyond these accidents of location, however, James might be said to have had a much more direct connection to the culture of Dred Scott: in 1862-63, James was not just in Boston or even at Harvard but enrolled in Harvard Law School, whose institutional life during his brief tenure was rife with political debate. Before the war broke out, the law school had become a hotbed of constitutional controversies, which made for dramatic student and faculty conflicts so heated that they occasionally threatened the ordinary functioning of the institution.10 Even after the departure of the law school's Southern students for Confederate regiments, legal and anthro- pological controversy abounded. Given the dramatically atten- uated population of the law school during the war years, James's formal legal education would not only have introduced him to, but made immediate, the debates about states' rights, war powers, and other constitutional issues that were raging throughout the legal academy.

James's autobiographical writings characteristically tend to obscure the ideological and political content of his Harvard experience; in particular, they transform the agents of his legal education into literary "characters," memorialized four decades later in the orotund vignettes of the master phase."l However strong James's putatively literary interest in their idiosyncrasies of character or self-presentation, all of his law professors were actively engaged in scholarly disputes on abolition, states' rights, and the constitutional issues defined by Dred Scott. Joel Parker, Royall Professor of Law and an increasingly acerbic conser- vative voice on the law school faculty, published extensively throughout the 1860s on secession, the Scott case, and the Taney Court. Theophilus Parsons, Dane Professor of Law and teacher of the first-year legal course on the commentaries and common law, turned his attention, when war broke out, to problems of secession and constitutional freedoms. Even Emory Washburn, Bussey Professor of Law, shifted his focus during James's year at the law school from property law and legal history to write on the institution of slavery in England and on states' rights and secession.'2 All three "plunged into political discussion" and "engaged in acrimonious contest," and en- couraged their students to do likewise.'3 Such developments clearly shaped the intellectual climate of the law school during the war years. Although James represents his year of legal ed-


ucation as an essentially haphazard and inconsequential experience (Autobiography 438), he was in fact enrolled in the foremost institution of American jurisprudence during what one historian of the law school remembers as its "golden age," a period when its leading figures were deeply committed, from various points of view, to the political debate on constitutional rights and doctrines of nationhood, political community, and race.14

I do not argue here for a direct influence of legal thinking on James, but rather for a telling sense of confluence that highlights his exposure to social and legal discourses of standing, individual rights, and race. Yet to advance even this limited argument is to risk the charge of overreading, since James's legal education, when discussed at all, has been consistently dismissed as a historical anomaly. Here, as is so often the case, James's representation of the event, and his self-representation at a distance, prevails: he offers a portrait of himself at Harvard as an artist detached from the "practical" training he undertook, involved in the community only as an outsider by fact and by inclination, an omniscient observer of its rituals and practices (Autobiography 307, 411-54).15 In other words, James represents his experience of Harvard in the same construction of authorial distance that the legal discourse of standing may have helped him to shore up and to conceal. It is certainly true that legal education at Harvard during James's tenure had not yet been formalized and that admissions and academic standards were far from consistent (Quinquennial Catalogue 179; Warren 23-24). But it is also true that James attended the prescribed lectures for first-year law students with "prodigious" regularity and "systematic faithfulness"; that his lectures would have included in-depth discussion of Blackstone's and Kent's commentaries on common law (whence the doctrine of standing emerges), as well as a lecture course devoted exclusively to constitutional law; and that James took his legal training seri- ously enough to seek participation in a moot court case spon- sored by Harvard's most prestigious legal society, the Marshall Club, whose "earnest and spirited" proceedings would have necessitated a working familiarity with court and trial proce- dures (Autobiography 440-41).16 Rather than assess the influence (in the traditional sense) of James's legal training, I wish to recover his relationship to institutional legal thinking about community, race, and identity. What would it mean to recover the intertextuality of James's writing, particularly during the 1880s, with current legal thinking about public identity and


about the ontological status of its own texts as acts of naming and shaping public selves?

One last area of connection between James and the culture of Dred Scott dramatizes precisely this possibility of cultural intertextuality: the accidents of the publishing industry. James's literary career began shortly after his departure from the law school, with his publication of an unsigned review in the North American Review of October 1864. The journal was then under the aegis of James Russell Lowell, who was one of the Review's editors and whose Harvard lectures on English literature and Old French James had attended with interest. The nature of this journal, which remained an important vehicle for James throughout his career, highlights those startlingly revelatory connections between the launching of James's "literary self' and the culture of Dred Scott. Apart from its literary interests, the Review had long been hospitable to and respected for its populist commentary by legal scholars on current issues in law and legislation, a practice it shared increasingly with such popular middle-class magazines as the Atlantic Monthly, the Cen- tury (in which James's review of Trollope later appeared), Scrib- ner's Monthly, Macmillan, and even Thackeray's Cornhill Magazine.17 In 1857, the Review published a widely read and highly respected essay by Timothy Farrar, a prominent Boston attorney, entitled "The Dred Scott Case," in which Farrar discussed the merits of Taney's opinion and its apparent political implications. The Review also published numerous essays by James's professor of constitutional law, Joel Parker, including "The Right of Secession" (1861), "Constitutional Law and Se- cession" (1862), and "The Right of Secession and the Conduct of the War" (1862).

James's knowledge of these essays, although likely, is ir- relevant; what counts for my purposes is the intertextuality of his ostensibly "literary" criticism with current social discourses of national unity, American identity, and race. Writing out of the culture of Dred Scott, James replicates the strategies of that text for inventing discursive selves and advertising them as natural entities, and for creating a form of authority that disguises its enabling cultural resources as natural truths. Taney's "peculiar" use of the standing doctrine in Scott provides a useful analogy, if not a model, for James's self-fashioning. Denying Dred Scott legal standing, Taney simultaneously imagines his own interventions in the social work of making up people as the mere manipulation of "natural" and inevitable legal forms. He thus becomes the "historian" of James's fiction of author-

... what counts for my purposes is the intertextuality of his ostensibly "literary" criticism with current social discourses of national unity, American identity, and race.


ship, a figure who reconstitutes the narrative community he represents in a simultaneous concealment and display of his own authorial motives. Ironically, James's imagination of this form of authorship in "Anthony Trollope" would prepare the way for such critically important novels as The Bostonians and The Princess Casamassima, both of which reflect on the dangers posed to moral consciousness and moral community by equivalent acts of invention and disguise.

At the moment of"Trollope," however, James is primarily concerned with revising the preoccupations of those American literary ancestors whose influence, during the 1880s, he works consistently to suppress. Rewriting the liminal status of Hester Prynne, who subsists on the "verge" of a moral community ordered in the image of a covenantal justice, and of Ishmael, who is carried away from the sinking ship of state on a wayward coffin, James reinvents the author so as to recontain the body politic of his own audience. Just as Taney's application of the standing doctrine enables a temporary extension of slavery into the American territories, so James's metaphor of the locus standi enables him to extend the legitimate territory of the novel as a social genre, to create almost single-handedly a new Anglo- American literary province whose constituents James will be uniquely privileged to represent. In its strategies for changing the literary subject, the "Trollope" essay heralds a new age in the history of the novel and a distinctively moder form of self- legitimation.

2. "A separate class of persons": Dred Scott and the formation of political community

Like James's developing literary doctrine, the case of Dred Scott raises crucial questions about social agency, representativeness, and narrative community. Seeking a more literal version of the "freedom" with which James as master is so often identified, Scott asked the American court to adjudicate a de- ceptively simple legal issue: whether, on the basis of their residence on free soil and in federal territories, he, his wife, Harriet Scott, and their two daughters were legally free. Similar disputes about ownership and slave status had been rehearsed in state judiciaries innumerable times, but the Scotts' bid for freedom was uniquely tied to the phenomenon of westward expansion and the problem of the constitutional status of slavery in the American territories. Furthermore, the conjunction of legal issues raised in their case posed a unique challenge to the onto-


logical distinctions on which the discourses of slavery and states' rights depended: all slaves, in the law, were considered persons in some respects and property in others; free blacks occupied an even more ambiguous position, intermediate between slavery and freedom, that called attention to the ambiguous construction of the American "citizen"; likewise, the territories themselves were entities that fell between categories, being neither colonies nor autonomous states but rather a distinctly American combination of both (Fehrenbacher 7, 64). In political, judicial, legislative, and social terms, Scott brought to the fore the ideological motives that attended the historical act of making up people and political communities.

Ironically, historians can provide only partial and conflict- ing accounts of Scott's life as a slave and of his participation in his own case. Born in Virginia around the turn of the century, he was sold by his original owners to Dr. John Emerson, a medical officer, in 1832 and accompanied his master to army posts in Missouri, in Illinois (on free soil), and in what is now Minnesota (then part of the Wisconsin Territory regulated by federal legislation under the Missouri Compromise). In April 1846, after Emerson's death, Scott and his wife brought suit against Irene Emerson, the officer's widow, in the St. Louis Circuit Court. There the Scotts argued that, under the provisions of the Missouri Compromise, their residence in Illinois and Minnesota rendered them legally free. Their suit initiated a battle of epic proportions, conducted over an 11-year period, via bills, pleas, writs, and orders all the way up to the US Supreme Court. By 1853, Irene Emerson's brother John A. Sanford (whose name was consistently misspelled in the docket and has thus passed into constitutional history) had taken up administration of her estates and consequently became Scott's legal owner. The change in ownership, perhaps an expedient effected to impede Scott's suit, had extensive implications. It allowed Scott's attorneys to maneuver his suit into federal court on the grounds of diversity of citizenship: Scott was a citizen of Missouri, Sanford of New York, and thus their difference of opinion as to Scott's status became a matter of federal law.

These grounds for suit would prove decisive and, ultimately for the Scotts, disastrous. Sanford's attorneys responded to the federal suit with a maneuver designed to defeat Scott's plea on technical, rather than substantive, grounds: they claimed that since Scott and his wife were Negroes of African descent, and their ancestors had been brought to the US specifically with the legal status of slaves, Scott himself was by definition legally a slave; he could not therefore claim US citizenship and conse-


quently had no standing-no legal right-to present a suit in federal court. Sanford's attorneys begged the territorial question altogether: by defining the African American categorically as "slave," they demanded that the law de jure recognize racial categories as the legal basis for slaveholding. The federal judge in question denied this plea, but nevertheless instructed the jury, on what he perceived to be the merits of the case, in Sanford's favor; accordingly, Scott legally remained Sanford's chattel property.

By the time the Scotts' appeal appeared on the docket of the Supreme Court in February 1856, the original question of legal status-was Scott free by virtue of his residence on free soil and in the territories regulated by Congress, or was he an article of property governed by legal concepts of reversion and comity?-had become virtually secondary to the question of Scott's legal rights and privileges: could he, or any other African American, legitimately represent himself as a free American citizen, with all the rights and privileges attaching to that status, in a US court of law? The question, in other words, had shifted from the specific issue of Scott's legal status to the larger judicial, legal, and political problem of making up people. Who would count in the law of the land as a citizen, a political agent, an individual, a human being? Who could make legitimate claims to legal standing, to citizenship, to moral agency before the law?

The controversial opinion finally offered as the Court's majority view was the handiwork of Chief Justice Roger B. Taney, Jacksonian Democrat and states' rights and slavery sym- pathizer.'8 It succeeded notoriously in changing the subject in question, in both senses of the term. Not only did Taney relegate the original legal problem--whether residency on free soil effectively made a slave free-to the margins of the opinion (his remarks on this broad question constitute only a page, or about 2%, of the published opinion); he simultaneously undertook, and largely on his own initiative, to reify the legal identity of American blacks, both slave and free. Taney devoted 24 pages, about 45%, of his published opinion-by far the largest sec- tion-exclusively to the problem of black citizenship, an increasingly pressing issue as Southern anxiety about the rising population of free blacks surged and as sectional compromises concerning the Fugitive Slave Laws unraveled (Fehrenbacher 340). In "purely" constructionist arguments to the legitimating texts of American union, Taney undertakes to prove that Scott-- as a "negro of African descent" whose ancestors were "of pure African blood"- even iffree, could not possibly be a citizen or legitimately claim legal standing; even the freed descendants of


such ancestors-even the children of free black parents-could not, he asseverated, be understood as citizens of the states, or of the US, within the meaning of the original and originating American texts.

To effect this proof, Taney persistently ignores the dual status, in the law and in the "unequivocal" language of the Constitution, of all blacks, both free and slave. In the eyes of the law, enslaved persons were understood as such and as autonomous moral agents with regard to certain issues (largely of surveillance and punishment, to be sure, but also of legal protections and privileges). As late as 1861, an Alabama law definitively upheld the mixed legal identity of the slave:

[S]laves are human beings, and endowed with intellect, conscience, and will.... Because they are rational human beings, they are capable of committing crimes; and, in references to acts which are crimes, are regarded as persons. Because they are slaves, they are necessarily, and so long as they remain slaves, incurably, incapable of performing civil acts, and, in reference to all such, they are things, not persons. (Cresswell's Executor v. Walker, Degler 29-30; emphasis added)'9

Like other laws in Tennessee, Mississippi, and throughout the South, this Alabama law defines slave identity historically and contingently rather than with explicit recourse to racist ontol- ogy, and thereby openly displays the metaphysical paradox of the individual who is understood as "equal" parts property and moral agent. Taney's opinion, however, willfully disregards such precedents, rewriting the narrative of personhood so as to recontain the body politic and to extend into the American territories those increasingly threatened sectional boundaries between slaveholding land and free. In characteristically orotund prose, with sentimental appeal to the intentions of the framers "who formed the sovereignty" of America, Taney aggressively misreads their original and originating text; he asserts that no "negro[es] of African descent," slave or free, have legal standing, legitimate claims to citizenship, or-finally and drastically- legitimate identity as persons before the law (396-97). In Ta- ney's opinion, the matter of making up people becomes, quite literally, as simple as black and white: all middle ground, all variegations of standing in the legal discourse of slavery, dis- appear, leaving in their place a rigid, governing opposition between master and slave.

The unabashed constructionism of Taney's argument high-


lights the peculiar institution of legal identity with two notable analogies to James's self-invention as literary master. First, it reveals-or, more accurately, reminds us-that the foundations of legal personhood and legal self-representation, like the foundations of James's social discourse of authorship, lie in a critically naturalized discourse of property.20 Scott's case is dismissed, within the fictions of the law, not for lack of a legitimately personal or tangible interest in the matter-the bedrock criterion for determination of legal standing-but because he cannot be counted as a citizen, or even a legal person, in the property interests inherent to the "commonwealth" the Court has chosen to protect. In order to consolidate those interests and bolster a rapidly disintegrating American Union, Taney virtually creates the form of identity on which his opinion ostensibly turns: a "separate class of persons" uniquely composed of African Americans, extrinsic to the Union proper, brought into being by America's founding texts (Taney 411). Analogously, James will invoke the doctrine of locus standi to figure a natural relationship between the author and the body politic he comprehends, whose higher values and ideals-like his own literary corpus-become his property to protect. Both authors remind us of the profound importance of the social narratives of identity they create: membership indeed has its privileges.

Taney's reading of Scott suggests a second analogy with James's self-invention in its virtual obsession with the problem of whom the founding texts of American culture authentically represent. In Taney's political reconstruction, Scott's suit for legal identity represents a threat to that racially, culturally, linguistically coherent community brought into being by the Con- stitution (in danger of being weakened by the entry of those of "pure African" blood), and to the sanctity of the text itself, whose "true" meaning and intention when it was framed and adopted are so clearly discernible to the initiated. If Taney promotes states' rights, he also defends the continuing power of the Constitution to represent and speak for the American reality it "brought into existence" (406). His argument depends on, even as it defends, the status of the Constitution as a founding text from which legitimate political and social orders are, by fiat, created.

In respect to this representation of legal texts, constitutional and otherwise, Scott is neither unique nor idiosyncratic in the annals of the law; rather, it reflects a crucial shift, completed by mid-century, in the judicial understanding of the foundations and authority of legal discourse. As Morton Horwitz and Mi- chael Rogin have documented, nineteenth-century American


jurisprudence radically transformed its own master narrative: initially advertising the law as an instrumental discourse, earlier jurists had insisted on the open-endedness of the legal text in determinations of identity, property, and community, and prag- matically read that text to reflect and serve rights of property and citizenship understood as natural rights. By the moment of Scott, however, American jurists had rejected any representation of the law as a discourse founded in such organic and governing principles. Instead, they invoke the logic of a newly consolidated legal formalism to insist that judicial thinking is bound by precedent, by federal law--in effect, by the status of the law itself as a hermetic system of interpretation.21 At the moment of Scott, then, Taney and the newly majoritarian legal formalists he resembles become precisely the kind of "historians" imagined by James in "Trollope": abandoning the discourse of natural justice and the acknowledgment of the jurist's creative intervention in human affairs, they naturalize the law as a closed, inexorable system of "logically deducible rules" whose texts have the inevitability and authority of a "natural language"; they thereby obscure the real interests and benefi- ciaries of its doctrines (Horwitz 254; Rogin 158). In both the constitutional and common law arenas, jurists like Taney and Lemuel Shaw achieve the standing of legal "historians" by concealing their allegiance to particular forms of power and community, infusing them in the law with "the permanence of nature" (Rogin 145).22

Taney's performance in Dred Scott, in the historical context of its emergence, thus offers a dual analogy to James's formalism in "Trollope." Concealing his authorial power of judicial design, Taney not only represents but rewrites the founding texts of America. Likewise, James trades on the fiction of his status as "historian" in order to conceal his own investment in a reconstructed romantic subjectivity, whose texts would evince their author's privileged and intuitive access to transcendental laws. In James's master texts- and even, arguably, in "Anthony Trol- lope" -this gesture reveals itself as a heuristic fiction, a contract for promoting imaginative interchange between author and reader. Finally, however, that open deception, the hallmark paradox of James's mastery, may not be quite as innocent or constructive as James would advertise. As the analogy with Scott also suggests, James's creation of a legitimating locus standi ultimately depends on narratives of identity that ensure the formation of a community of readers he can "naturally" represent, much as the Constitution, in Taney's correspondence theory, stands for a discrete political community. James's for-


mation of a body of readers, like Taney's formation of a natural constitutional "family," depends on his construction of the community whose values he will comprehend-and ultimately transume-as a racially, narratively pure body politic. In "An- thony Trollope" and beyond, James might be said to build a metaphoric House of Fiction on the remnants of the Big House and of America's House Divided. His limited engagement with his own cultural resources consolidates a literary mastery whose foundations undermine the structural challenges to American identity and ideology that it undertakes.

3. Fictions of authorship: Henry James and Anthony Trol- lope

If the occasion of "Anthony Trollope" enables James to revaluate the American sources of literary modernity, it does so at the safe remove of an Atlantic double cross. Having re- turned to England for good after a brief visit in America, James takes up the case of Trollope in order to link himself with and distance himself from particular national traditions, thereby to invent an Anglo-American reading public and the novel that will represent it: a vehicle for coherent moral discourse, distinct from the commodity culture it scrutinizes, embodying the stable values of a reified English tradition. Reading in and against Trollope, James undertakes his own act of reconstruction, re- mapping the literary territory of the moder with the arena of "consciousness"-that property of an Anglo-American propertied class, which provides both the enabling resources and the donnees of his master texts-at its center. Redressing Trollope's authorial misprisions, James puts the author in his proper place: at the margins of that narratively bounded, linguistically pure community on which his privileged representational standing will depend. The case of Anthony Trollope will enable James to defend these literary boundaries, to "take" with the highest seriousness, as the legitimate property of the novelist, the role of cultural guardianship.

From the outset of the essay, James links the problem of standing with the status of the novel as a social form. His opening paragraph, which runs to three printed pages, conducts an extended critique of Trollope's mode of literary production, which, in James's terms, compromises a necessary distinction between popular- and high-culture genres-compromises, as James ironically puts it, "the nature of the business." Initially, James praises Trollope's industrious habits and his dedication


to his craft, in an anecdote that plays fortuitously on the metaphoric and metaphysical value of that word:

It was once the fortune of the author of these lines to cross the Atlantic in [Trollope's] company, and he has never forgotten the magnificent example of plain persistence that it was in the power of the eminent novelist to give on that occasion. The season was unpropitious, the vessel over- crowded, the voyage detestable; but Trollope shut himself up in his cabin every morning for a purpose which, on the part of a distinguished writer who was also an invulnerable sailor, could only be communion with the muse. (235)

One dense paragraph later, however, James offers a "direct" representation of Trollope at work, opening the closed cabin door to expose the latter's "magnificent example" as a form of jobbing rather than communion with the muse: "He sat down to his theme in a serious businesslike way, with his elbows on the table and his eyes occasionally wandering to the clock" (238). James figures Trollope as master only of a dogged "persistence," which savors above all of New Grub Street and the self-serving industry of that new breed of writers, the corporate hacks of nineteenth-century magazine culture. Unlike Dickens, Thackeray, and other novelists "able to wait for in- spiration" (234), Trollope actively participates in transforming the cultural work of the author into a form of industrial mass production. In serial fictions that "betra[y] the dull, impersonal rumble of the mill wheel" (250), Trollope produces "for the day, for the moment," participating in an "industry" that caters to the immoderate, insatiable appetites of an increasingly "hun- gry public" (259).23

Characteristically, James allows Trollope to speak in his "own" voice to defend his complicity with the new technologies of the popular marketplace: "I don't pretend that each of my novels is an organic whole," he is made to say; "I have only undertaken to entertain the British public" (244). Such "gross, importunate" delight without instruction undermines the form of standing on which James's sense of the literary text, the author, and the author's signature depends. At the back of Trollope's literary populism, for James, is just his "honest, familiar, deliberate way of treating his readers as if he were one of them" (236; emphasis added). In other words, Trollope lo- cates himself within the narrative community he addresses and represents, "delight[ing] wantonly to violate" the necessary fiction of the artist's standing outside the community, the body


politic, the marketplace, as a privileged observer of their governing fictions: "He habitually referred to the work in hand (in the course of the work) as a novel, and to himself as a novelist, and was fond of letting the reader know that this novelist could direct the course of events according to his pleasure" (236, 247). James names these onanistic self-interruptions "violations" of literary decorum, with all the fervor of moral outrage: they are not only "deliberately inartistic," but positively "pernicious" (248, 247).

To read James's critique in light of an anxiety of privilege is not to make claims for Trollope as a latent deconstructor of literary authority, as some recent readers have done, but to recognize that James understands Trollope's "perverse" form of self-representation as the dangerous indulgence of a "suicidal satisfaction": a threat to the life of the Author. In response to this threat, James seizes the opportunity to reinvent a privileged form of standing, virtually in direct opposition to the practices of his "extinct" literary ancestor. Figuring himself in the terms of that fiction of location that informs his master texts, James claims that it is "only as an historian that he has the smallest locus standi" (248). Here James might be said to practice what he ultimately preaches, for his open endorsement of pragmatic deception obscures the deeper deception on which his authority depends. On James's terms, the success of fiction-its power to engage the reader's moral imagination-turns not on the fiction of the "reality" of the fictional world, as James declares, but on the ontological pretense, not unlike the one deployed by the legal formalists, that this world has been made in the image of pure and transparent "history," a form of representation that discovers the unseen orders animating human and social realities and lays them transparently bare. James's notion of the author's standing draws on, even as it undermines, the continuing currency of this latter myth: the "intending novelist" must not "th[ink] of admitting" the myth's fictionality, for without it, he "is nowhere" (248).24

If James enlists this myth in the interest of the reader's pleasure and engagement, he also capitalizes on its power to naturalize the commodity status of the writer's signature as a form of political and moral standing. That necessary fiction of the text's verisimilitude, James argues, "permeates, animates, all the work of the most solid storytellers; we need only mention (to select a single instance) the magnificent historical tone of Balzac, who would as soon have thought of admitting to the reader that he was deceiving him, as Garrick or John Kemble would have thought of pulling off his disguise in front of the


footlights" (248). Apart from the lofty ease with which James privileges the "single instance" and suppresses counterexamples (what, for instance, of Thackeray, whom James here admits as one of the "finest" English novelists, and who also stages his literary production in problematic ways?), his analogy compromises its own logic. In an important sense, figures like Garrick and Kemble can never be disguised; rather than perfect the watcher's sense of an alternative, verisimilitudinous world, they exhibit their own artistic capital, making the audience con- stantly aware of observing the properties of genius-Garrick's Lear, Olivier's Hamlet, Hoffman's Shylock. Such performances do not produce autonomous realities so much as they confirm the distinctly fictive nature of the acts in question and the contingency of the world bounded by the footlights. At the same time, however, these contractual aesthetic deceptions naturalize high-culture rituals of witnessing, spectating, and consuming. They thus make "real" for the audience not the dramatic events represented but the ideological and institutional practices-including those of authorship, the signature, and the text-by which individuals come to know and name human experience. The danger of such acts of masking as James here endorses thus lies not in our believing what is invented to be true (as James's Puritan literary ancestors might have feared) but in our believing what is contingent to be irrevocably given.

The moral authority or standing James seeks to reconstitute trades, at least in part, on that belief. So he upbraids Trollope, in a last salvo, for abrogating the fiction of authorial privilege: "When Trollope winks at us and reminds us that he is telling us an arbitrary thing, we are startled and shocked in quite the same way as if Macaulay or Motley were to drop the historic mask and intimate that William of Orange was a myth or the Duke of Alva an invention" (248). James's own phrasing ar- ticulates what the author must not "th[ink] of admitting": that history, broadly construed, is myth, is invention, but for broadly political and ideological purposes we pretend that it is not. Refusing or failing to treat the production of literature (even briefly, narratively, hermeneutically) as an act of "historical" representation, Trollope compromises both the value of fiction and the privileged standing of the author; winking at us in the midst of his own performance, he is guilty of far more than just "shocking" literary manners. In James's terms, he breaches the contract between writer and reader by which both agree, in the interest of deeper heuristic purposes, to treat the institutions of authorship and the literary as if governed by transhistorical truths. This magnificent deception-worthy of the saving lies


told by James's fictional proxies-would preserve the very possibility of the moral imagination against the dangers of nihilism in a world increasingly created in the image of convention alone. Trollope's form of authorship is a threat to this social contract; it erodes that provisional and metaphoric place of standing beyond the limits of culture, leaving both the author and his reading public "nowhere."

James censures Trollope for violating these metaphoric boundaries, as artificial and as rigid as property stakes in a suburban neighborhood, because his failure to acknowledge them suggests a possibility that James is at some pains to suppress in the interests of his own moral standing: that the author as "historian" is not unrelated to other conspicuous interpreters of modem culture, whose self-interest James elsewhere cleverly exposes. The author James imagines in contrast to Trollope, who would offer "evidence" of felt experience in which we "can believe" and thus reproduce the "real" thing, bears a notable family resemblance to the publishing scoundrel (Matthias Par- don), the bureaucratic spy (the narrator of "In the Cage," whom James eerily anticipates by linking Trollope's experience in the post office with his imagination of "modem vagrancy"), and even, in light of Dred Scott, the court reporter, who "tran- scribes" word for word the real testimony of actual persons in service of the law (248-49, 251). Like the legal formalists echoed by Taney in Scott, James's "historian" seeks to represent his narratives as self-evident, marked off clearly from the "exter- nal" world he ostensibly transumes. Embracing "the pretense of verisimilitude," he achieves a more powerful deceit; he obscures his complicity as the agent of those "naturally ... just and liberal values" of his own people in the hegemonic enter- tainment of the people's court (James 253; Rogin 159-60).

If Trollope's mode of production provides an occasion for James to reconstitute the standing of the distinctively literary enterprise, it also enables James to write his own act of union, bringing together British and American resources under the banner of a reconstructed realism. Midway through the essay, James stages a recovery of Trollope's literary virtues that defends against a livelier challenge to the unified moral culture James seeks to sustain, mounted by a group of writers who show no signs of becoming, as the Victorians have done, "extinct": the French naturalists. Insofar as Trollope remains faithful to a moralized English tradition of the novel, his literary practice provides James with the material to attack the serious threat to the fiction of standing posed by the French avant-garde. Initially figuring Trollope so as to reify the boundary between


marketplace and authorial locus standi, James transfigures him in order to buttress the distinction between a "French" realism that openly challenges its own forms of authority and an English moral "fecundity." He thereby performs an act of genealogical recovery, like that on which the Nietzschean slave revolt is founded, that will secure both his inheritance of the English tradition and his power to figure, and advertise, his transump- tion of it.

James carefully prepares for the intrusion of the French onto the terrain his essay maps. At the outset, he makes only a casual reference to these "votaries of the new experiments in fiction" who seek to produce in their readers "unwonted and bewildering sensations" (236), drawing a contrast at Trollope's expense: the latter's fiction, limited to feminized observation of the "usual," is "always safe"; it undertakes "no new experiments" at all (236). By the end of the essay, however, French canons and models serve to magnify Trollope's virtues as the practitioner of a distinctively English (i.e., Anglo-Saxon) tradition of the novel. His "happy, instinctive" perception of "character" usefully opposes the "so-called scientific view" that "has lately found ingenious advocates among the countrymen and successors of Balzac" (239). Although Trollope achieves his knowledge of human psychology by "grace," he nonetheless employs that knowledge in the service of "his great taste for the moral question"--which he obviously understood, James notes with approval, as "the interest of fiction" (239).

As the plot of "Anthony Trollope" thickens, James genders the terms of his comparison with increasing emphasis. Drawing on the ideological currency of the separate spheres, he suggests that Trollope's domestic and feminine practices stand for the authentic "moral interest" on which literary culture must be founded. In the last third of the essay, he conducts an extended comparison of Trollope with the naturalists that solidifies the "essentially" moral "interest" of fiction and the standing of the author as moral "historian" of his clearly articulated culture. "There is perhaps little reason in it," James admits, "but I find myself comparing [Trollope's] tone of allusion to many lands and many things" with "that narrow vision of humanity which accompanies the strenuous, serious work lately offered us in such abundance by the votaries of art for art who sit so long at their desks in Parisian quatriemes." In this context, James endorses Trollope's "unsurpassed industry" and feminized interest in character over and above those more artful French practices: if "the English writer" (embodied by Trollope) is "so occasional, so accidental, so full of the echoes of voices that are


not the voice of the muse," he nevertheless succeeds in a kind of representational integrity that the naturalists lack. "He tells us, on the whole, more about life than the 'naturalists' in our sister republic." Like other English "providers of fiction," Trol- lope is admittedly "inferior in audacity, in neatness, in acuteness, in intellectual vivacity," and in "the art of characterizing visible things." But the English, James claims, "have been more at home in the moral world; as people say today, they know their way about the conscience." This tradition of moral thinking constitutes "the value of much of the work done by the feminine wing"-work disparaged, typically, by the French on aesthetic grounds as "deplorably thin and insipid" (252-53).

Given James's dissatisfaction with the forms of censorship imposed by Anglo-American literary canons and the statements of his support for French writers throughout the 1880s, his language initially comes off as oddly moralizing. Comparing Trollope and Zola, he remarks that "[flor Trollope the emotions of a nursery governess in Australia would take precedence of the adventures of a depraved femme du monde in Paris or London" (252). (In other words, Trollope is interested in the domestic virtues, whereas Zola is interested in trollops.) James's concerns, however, differ substantively from those of the Puritan canons of which they bear some traces. Naturalist views-with their "gimletlike" narrowness of focus-pose a threat not because they freely represent hard drinking and loose women but because they freely represent alternative institutions whose activities mirror the "depravities"- that is, the unnatural character-of normative social orders. Zola's interest in the abnor- mal, the genital, the excremental, those "polluting things" (238), highlights the existence of forms of life at the margins of normative political community; it also suggests ways in which these forms of life are suppressed in the interest of keeping the body politic pure and whole. Throughout the 1880s, in such texts as The Portrait of a Lady, Daisy Miller, The Princess Casamas- sima, and The Bostonians, James began to represent these mechanisms of suppression; each of these fictions, in the un- stable departure of its protagonist from its elaborately con- structed formal integrity, signals the human costs of the narratives of identity on which particular communities, revolutionary or otherwise, are founded. In the mask of cultural critic, however, James gave precedence to his anxieties about preserving the institutions-especially the literary ones- through which individuals engage in collective and moral discourse, in a moment when the continuing possibility of that discourse was at stake. Effecting a recovery of Trollope's authorial practices


allows James to lay claim to, and protect, "essentially a moral, a social interest": the fiction of the author's standing, which will enable him to teach his readers about and expose other cultural fictions of power and identity.

Finally, to measure Trollope against the naturalists is to "fix," in the phrase of a Taney advocate, one form of national character as a usable commodity in James's bid to reconstruct the literary map of modernity (Van Evrie iii).25 Playing on the strong contrast between "natural" English virtues and the artful dodges of the naturalists, James reifies an essentialized racial difference between the novelistic traditions that will enable him to contain, and lay claim to, the body politic of Anglo-America. Thus he characterizes the new French writers as superior in "audacity," "neatness," "acuteness," and "arrangement"; they exhibit all the dubious virtues of Gallic "art" and cunning. Speaking as the protesting "historian," James twice refers to the naturalists as "votaries," thereby invoking the charge of papist sensuousness so dear to the Protestant imagination. By contrast, Trollope eschews all artistic "perversions"; his is a genius, as the French themselves would say, of the "honnete," an unself-conscious, healthy openness to the world. Trollope "writes, he feels, he judges like a man," but a man who "has kept the purity of his imagination," and so embodies the "natural decorum of the English spirit" (238). His embodiment of this essential character, his transparency to the constituency he represents, guarantees Trollope's "more just and liberal" form of perception; because his "natural rightness and purity" are "so real," "the good things he projects must be real" (253, 260). Unlike the narrator of The American Scene, who discovers with dismay that his state of desire for representativeness is radically undercut by the racial polyphony of the states, James's Trollope can be imagined to stand for the unified culture he surveys, to embody a fantasy of authorial "possession" and containment.

In order to preserve this American dream of the narrative community whose ongoing history can be, from the authorial locus standi, comprehended whole, James must revert to the same tactic as Taney, invoking and "fixing" the "natural" cat- egory of race. He thus ends his long good-bye to Trollope with a proclamation of inheritance that shores up the racial boundaries of, and his own proprietary rights to, his newly acquired constituency: "A race is fortunate when it has a good deal of the sort of imagination- of imaginative feeling- that had fallen to the share of Anthony Trollope; and in this possession our English race is not poor" (260). The final epithet of inclusion- "our English race" -suggests that James stands for a great En-


glish tradition sanctified by virtue of its historical continuity and its metaphysical essentialism. Yet his high-minded praise of Trollope, as a credit to their mutual race, constitutes an inspired act of genealogical revolt. Like the good ascetic priest of Nietzsche's genealogy, James effectively invents the racial character he draws on as a natural resource and claims as a natural inheritance: England is a social constituency he has only recently and not wholly acquired, and whose essential "character" and values he will selectively endorse in the developing interests of his self-representation.26 At the moment of "Trol- lope," James is busy reinventing himself as heir apparent to "the old English tradition"; invoking the fiction of a transhistorical racial character, James imagines a new form of literary production in which the saving virtues of a higher civilization- and of its literary forms-will themselves be saved from "virtual extinction."

James's invocation of race suggests the complexity of the kind of "historical" gesture he imagines within the essay; it ensures both the preservation of the novel as a vehicle for moral discourse and James's proprietary rights to the genre. The play of his homophones at the end of "Trollope" (between the "poor" and the "pure") reveals that his concern with the aesthetic poverty of America implicates a concern with the social purity on which his own standing and the claims of his texts to the status of moral discourse depend. In the logic of James's art of fiction, the authoritative reinvention of Anglo-America de- mands a recontainment of the polis that will guarantee both the externality-the moral disinterestedness-of the observer and the transparency of his fictions to the culture for which they stand: one moral community, with "more just and liberal perceptions" of all. His "historical" invocation of an ontolog- ically bounded racial identity serves the continuing possibility of moral discourse and unified moral community; it enables James to reinvent the author as an individual with privileged access to natural truths so "real" that "the good things he projects must be real." Against the nihilism that threatens the bor- ders of the literary, James reimagines racial identity in order to effect a recovery of some essential human capacity for self- realization and moral agency.

James's strategic maneuver, however, obviously belies the dialectical process of his own self-invention (of which it forms a part) and of social identity as he so complexly imagines it in his fiction. By the end of the essay, he has thus assumed a deeply ironic resemblance to the historical figure of Dred Scott: the latter stands, in legal discourse, beyond the law and thus remains


a slave, while James actively seeks such a cultural locus standi in order to become a master. As the model of Scott suggests, his reinvention of moral agency is effected at the expense of the moral or hermeneutic attention it intends to develop, insofar as it trades on an unexamined identification with the cultural orthodoxies and institutions it purports to transform. In this respect, James's literary tribute exhibits an unintended but historically appropriate self-reference, characteristic of the mod- ernism he inaugurated and of the problem it bequeaths us, the problem not of repudiating, but of laying authentic claim to a collective history.

Notes

This project was undertaken in part at the Oregon Humanities Center, whose support I gratefully acknowledge.

1. "Anthony Trollope" appeared in the Century magazine in July 1883; "The Art of Fiction" in Longman's Magazine in September 1884; "Al- phonse Daudet" in the Century in August 1883; and "Ivan Turgenieff' in the Atlantic Monthly in January 1884, shortly after Turgenev's death.

2. Black's Law Dictionary identifies the essence of the doctrine of standing as the rule that no person is entitled to challenge the constitutionality of an ordinance or statute except insofar as he or she is adversely affected by it. Formally, determinations of standing are made with respect both to constitutional and nonconstitutional criteria; for a brief discussion, see Ency- clopedia of the American Constitution 4:1722. Fletcher discusses current mechanisms for determining standing in American courts.

3. According to several historians of American law, the doctrine of standing has only recently-that is, during the twentieth century-come to be used to make procedural rather than substantive judgments on the merits of a case. Recent discussions of shifts in the uses of the standing doctrine and in its determination of legal identity include Vining; Winter; and Nichol.

4. Cogan traces the roots of the modem doctrine of locus standi to Roman jurisprudence and common law, where both locus and stare criteria refer, he argues, to position or rank. He further argues that American lawyers of the 1780s would have been well aware of the historical use of standing to refer to and name in the law those persons deemed less than full members of the community (including, for example, women, perjurers, excommu- nicates, enemies of the state, and slaves).

5. Black's defines the legal "person" specifically in terms of categories and criteria for standing: a person is "a human being (i.e., a natural person), though by statute the term may include a firm, labor organization, part- nerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receiver" (1028). A more extensive historical overview


of the making up of persons in the law, with respect to faculties of appre- hension, rationality, moral sense, personality, rank, place, reputation, and property, is given in Words and Phrases 287-314.

6. Fehrenbacher, 11-151, discusses these debates as background to the emergence of Scott in great detail.

7. The elder James, at the invitation of the citizens of Newport, did give an Independence Day "oration" in 1861 entitled "The Social Significance of Our Institutions," in which he discussed the moral consequences of slavery.

8. Fehrenbacher, 289 et passim, details Greeley's intensive political engagement in the Scott case and the politics of secession.

9. Edel, 228-34, details James's friendships with Gray and Holmes, including their trip to the White Mountains in August 1865. Fehrenbacher, 422-23, judges the "Legal Review" to be among the best critiques of the Taney decision; he concludes, however, that its argument essentially replicates the logic of Greeley's editorials.

10. Warren discusses in detail the political conditions shaping intellectual activity in the law school during the "exciting twelve years prior to the Civil War"; his remarks on the war period, 262-301, suggest the continuing importance of political activism to the institutional life of the law school.

11. See in particular the Autobiography 442-44. By analogy, the motive of erasure also prevailed in legal culture itself, at a moment when legal education in America sought both to professionalize its own activities and to advertise the work done by the law as "scientific" rather than instrumental. For a broad discussion of this shift and its political motives and implications, see Horwitz 1-30, 253-66.

12. Warren, 74-75, discusses the importance of recent Supreme Court decisions to the moot court trials within the law school. A complete list of the publications of James's law professors is given in Centennial History of the Harvard Law School 1817-1917 372-74, 336-37.

13. On one occasion, Parsons, who served as a liaison for the Union War Department, even organized and armed a group of law students to protect local Union munitions against suspected Confederate attack. See Warren 269-72.

14. See Warren 20-21, and especially 262-64, on the involvement of Harvard scholars with Fugitive Slave Law cases and on their discussions in popular periodicals of such cases and of Dred Scott.

15. James represents his motives for attending Harvard as follows: "What I 'wanted to want' to be was, all intimately, just literary," to achieve "the real disclosure, the larger revelation" of character through the study of the "young types" at the law school "under the rich cover of obscurity" (Au- tobiography 413-14, 425-26). He calls himself "the queerest of forensic recruits" (417) and "a singularly alien member" of the community (307).


In fact, attendance at the law school during the war years declined drastically; the significantly reduced size of the community would presumably have made it difficult for James to remain as "alien" and "obscure" as he suggests.

16. James recalls as a "black little memory" his participation in moot court: "I liken it all to a merciful fall of the curtain on some actor stricken and stammering," adding that, "in truth, save for one or two minor and merely comparative miscarriages of the sacrificial act before my false gods, my connection with the temple was to remain as consistently superficial as could be possible" (Autobiography 438). Warren, 74-75, discusses the social influence of and qualifications for membership in the Marshall Club; he also notes that most of the moot court cases "tried" in 1862 were based on such ongoing constitutional issues as Confederate piracy, remarking that "in the midst of the Civil War, the law club was keeping abreast of the times" (323).

17. For a comprehensive list of journals publishing popular articles and commentaries on legal matters in America and Britain see Jones xi-xiii.

18. Taney was politically an interesting anomaly: a former Whig turned Jacksonian democrat, he hailed from the border state of Maryland. He was married to Francis Scott Key's sister; according to the Whigs, he "reeked of partisanship" and slaveholding sympathies; Greeley's Tribune had no hesitation in labeling him a "political hack." For extended discussion of Taney's political interests, see Fehrenbacher 227; and Kutler, introduction.

19. In the chapter entitled "Who Protects the Slave's Humanity?" (26- 39), Degler discusses a number of such legal formulations, as well as the legal protections extended to slaves in their mixed status as persons and movable property.

20. Taney's decision was handed down at a moment when the American judiciary moved decisively away from the legitimating discourse of natural rights in property, toward a positivist and formalist construction of property rights. Finally, as Horwitz argues, this shift ensued precisely as a means of protecting the corporate and capitalist forms of power consolidated under the original model: by abandoning the priority of "natural" rights for that of legal precedent, the American common law judiciary effectively naturalized corporate property and the status of the law as an interpretive, rather than creative, instrument. See Horwitz 27-30 and 256-66.

21. Rogin charts this shift in the foundations of American legal thinking in the judicial career of Lemuel Shaw, chief justice of the Massachusetts Supreme Court and author of critical decisions in both the instrumentalist and formalist modes; see 31-44, 107-18, 142-59. Horwitz, 253-66, gives a more general account of the rise of legal formalism as an institution for both consolidating and naturalizing the powers of corporate America.

22. Rogin's analysis of Shaw helps to substantiate the analogy between James and the legal formalists. Rogin argues that Shaw was transformed, in the endorsement of formalism, from a jurist who freed himself from positive law and practiced a "propertied legalism" (44, 142) into one who consolidated the organic identity of the state precisely by naturalizing its powers.


23. James thus obscures his own financial dependence, throughout the 1880s, on the publication of potboiler fiction in magazines catering to this very appetite. See James's complaints about the "disfigure[ment]" and "de- formities" wreaked on his "careful prose" by American magazines, in Letters 2: 388 and in Edel's introduction to Letters 3: xv.

24. Rowe reads this passage and the problem of fictionality quite differ- ently. He considers James's suppression of Trollope's influence in some detail; his reading, however, serves ultimately to contrast James's deeper mastery, that of the writer who "perpetually tip[s] his hand to the reader" and thus "expos[es] the fictive foundations for his 'illusion' of the real," to the practices of Trollope as James represents him, a writer who "presumes to have full control of his art." In Rowe's reading, it is Trollope, rather than James, who attempts a misguided mastery, precisely in his arbitrariness, a sign that he has "succumbed to a certain 'suicidal satisfaction' in his own independence and artistic self-sufficiency" (71-72).

25. Van Evrie's figures of celebratory racism are discussed in Frederickson and in Fehrenbacher 428-29.

26. See, for example, James's essay on "Du Maurier and London Society," published in the Century just two months before "Anthony Trollope," and reprinted in Partial Portraits. In this essay, James represents himself in a very different relation to English canons and traditions: denouncing the English as not by nature "an aesthetic people," James complains of their failure to sustain "a spontaneous artistic life; their taste is a matter of conscience, reflection, duty, and the writer who in our time has appealed to them most eloquently on behalf of art has rested his plea on moral standards-has talked exclusively of right and wrong." Here, James invokes the fact that Du Maurier "has French blood in his veins" to account for the "richer" realism of his art; James's differential pronouns strongly identify him with that "racial" attribute, as against the stolidity of "those" British.

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489935 Henry James, Dred Scott, And Fictions of Identity

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