Legal Realisms: The American Novel

Under Reconstruction Christine Holbo

Visit to download the full and correct content document:
https://ebookmass.com/product/legal-realisms-the-american-novel-under-reconstructi
on-christine-holbo/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...

The Agile Imperative: Teams, Organizations and Society

under Reconstruction? 1st Edition Sabine Pfeiffer

https://ebookmass.com/product/the-agile-imperative-teams-
organizations-and-society-under-reconstruction-1st-edition-
sabine-pfeiffer/

Curating and Re-Curating the American Wars in Vietnam

and Iraq Christine Sylvester

https://ebookmass.com/product/curating-and-re-curating-the-
american-wars-in-vietnam-and-iraq-christine-sylvester/

American Law and Legal Systems – Ebook PDF Version

https://ebookmass.com/product/american-law-and-legal-systems-
ebook-pdf-version/

American Mermaid: A Novel Julia Langbein

https://ebookmass.com/product/american-mermaid-a-novel-julia-
langbein/
Democracy Under Fire_Donald Trump and the Breaking of
American History Lawrence R. Jacobs

https://ebookmass.com/product/democracy-under-fire_donald-trump-
and-the-breaking-of-american-history-lawrence-r-jacobs/

Dictators, Dictatorship And The African Novel: Fictions

Of The State Under Neoliberalism 1st Edition Edition
Robert Spencer

https://ebookmass.com/product/dictators-dictatorship-and-the-
african-novel-fictions-of-the-state-under-neoliberalism-1st-
edition-edition-robert-spencer/

Recovery Road Christine Feehan

https://ebookmass.com/product/recovery-road-christine-feehan/

Leopard's Hunt Christine Feehan

https://ebookmass.com/product/leopards-hunt-christine-feehan/

The Controller's Toolkit 1st Edition Christine H. Doxey

https://ebookmass.com/product/the-controllers-toolkit-1st-
edition-christine-h-doxey/
Legal Realisms
 Legal Realisms
The American Novel under Reconstruction

C H R I S T I N E HO L B O

1
 3
Oxford University Press is a department of the University of Oxford. It furthers
the University’s objective of excellence in research, scholarship, and education
by publishing worldwide. Oxford is a registered trade mark of Oxford University
Press in the UK and certain other countries.

Published in the United States of America by Oxford University Press

198 Madison Avenue, New York, NY 10016, United States of America.

© Oxford University Press 2019

All rights reserved. No part of this publication may be reproduced, stored in

a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by license, or under terms agreed with the appropriate reproduction
rights organization. Inquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above.

You must not circulate this work in any other form

and you must impose this same condition on any acquirer.

CIP data is on file at the Library of Congress

ISBN 978–​0–​19–​060454–​7

1 3 5 7 9 8 6 4 2
Printed by Sheridan Books, Inc., United States of America

Preliminary portions of Chapter 2 were previously published. “ ‘Industrial & Picturesque Narrative’:
Helen Hunt Jackson’s California Travel Writing for the Century,” appeared in American Literary Realism
© 2010, University of Illinois Press, and is reprinted with permission. “Moral Suspension and Aesthetic
Perspectivalism in ‘Venice in Venice’ ” was printed in The Howellsian, 2011, © Christine Holbo
This book is for Eric, in voller Freiheit.
 Contents

Acknowledgments ix
Introduction 1
1. The Novel in the Era of Plessy 15
1. When Is a Novelist Not a Novelist? The Case
of Harriet Beecher Stowe 15
2. Realism and Realisms in Nineteenth-​Century
American Literature 24
3. The Sentimental Public, Social Despair, and the Problem
of “Concealment” 31
4. William James between the Rationality of Sentiment and
the Sentiment of Rationality: Knowing and Feeling in
a Residual Formation 41
5. What Henry James Knew: Concealment as the
Novel’s Knowledge 49
6. Plessy v. Ferguson and the Limits of the Law’s Knowledge 61
7. Albion Tourgée among the Sentimental Fools: The Cruel
Humor of de jure Equality 70
8. From Sympathy to Society: Realism in an Age
of Incomplete Emancipation 80
2. Perfect Knowledge: Sympathetic Realism between the Rational
and the Real 87
1. A Bleeding Heart Reads Ramona Straight 87
2. Helen Hunt Jackson’s Will to Believe 93
3. The Poncas, Public Sentiment, and the Right to Have Rights 100
4. The Legal Realism of A Century of Dishonor 107
5. The Hope for Scandal Proves a Stumbling Block 119
6. Traveling Saleswoman for Native Rights 124
7. Realism in the Venice of Prodigal Sons: Twain, James,
and Howells 129
8. Mugwump Aestheticism: The Relativism of Virtue 146
9. The Picturesque of Genocide in the Century 158
10. Ramona and the Fracturing of Sentimental Universalism 171
11. Failures 190
viii Contents

3. Imperfect Knowledge: William Dean Howells, Perspectival

Realism, and Social Politics 196
1. Howells, Sentimental and Modern 196
2. Howells’s West: Arcadia, Utopia, Exile 208
3. Sentimental Alienation and the Zeitschriftsteller 217
4. “Andenken”: Speaking in Code from Heinrich Heine
to John Brown 223
5. Venice: The Patriot in Exile, the Tourist in Everyday Life 227
6. From The Liberator to The Nation: Minor Topics and
Phosphorescent Heresies 237
7. The Politics of Representational Inclusion, 1872: De Forest’s
Alligatorville 247
8. The Politics of Representational Inclusion, 1874: Twain’s
Sentimental Revelations 254
9. Between the Polis and the Police: Man and Brother
in the Suburbs, 1871–​72 259
10. Studies in Incomplete Emancipation: “A Day’s Pleasure” 268
11. Mrs. Johnson and the Problem of Social Recognition, 1868 272
12. Realisms Legal and Literary, and the Black Maria 282
13. Romances and Divorces of the Republic: Hayes,
Mugwumpery, and the Novel 293
14. A Modern Instance: On the Corrupting Power of Sympathy 301
15. Juridical Representation and the Fragmentation of Social
Knowledge 306
16. Equal Protection and the Conflict between Community and
Society 315
4. A Double-​Barreled Novel: Huckleberry Finn and the Great
American Novel as Perspectival Realism 323
1. Howells, Twain, and Politics: “The Canvasser’s Tale” 327
2. The Perspectival Instability of Huckleberry Finn 331
3. Where Does Huckleberry Finn Go Wrong? Tragedy,
Comedy, and the Fine Art of “Cheating” 338
4. Reading for the Plot; or, The Phenomenology of the Canoe 344
5. The Law’s Perspectives: Child and Slave between
Community and Society 355
6. Equality Before (and After) the Law: Emancipatory
Storytelling 369
7. Immanence and Evasion, Literary Quality and
Literary Seriousness 378

Notes 387
Bibliography 423
Index 439
 Acknowledgments

Writing is the most sociable of solitary activities. One of the pleasures of

bringing a big book to completion is the opportunity to step back and con-
sider how many people have contributed to its imagination, how intellec-
tual debts only compound with the passage of time. My doctoral advisors
at Stanford University, Albert Gelpi, Jay Fliegelman, and George Dekker,
each contributed in unique and transformative ways to the research out
of which this book eventually grew. Al set a model for intellectual breadth
and generosity, encouraged me to think big about American literature,
and never lost faith as the project grew and grew. Jay drew me deep into
the strangeness of the American sentimental tradition. Without George
I would not have become a scholar of the novel. His thoughtful readings
of every draft and patience with ever-​expanding exploration of interdisci-
plinary frameworks allowed me to return freely to the novel as a genre and
ask meaningful questions about the content of form. I am sorry that Jay and
George are no longer here to see where this led, but I would like to believe
that they would find this book appropriately uncompromising. Many other
friends, teachers, and colleagues from Stanford also inspired this project, in
ways more profound than they might know. A seminar with Priscilla Wald
diverted my interests toward the cultures of domesticity in the American
novel; a seminar with Felicity Nussbaum embarked me on years of reading
in eighteenth-​century emotions; Tim Lenoir mentored me through a first
publication exploring the relationship between rationality and domesticity;
Regenia Gagnier and Kurt Mueller-​Vollmer helped me deprovincialize my
thinking about American social thought. An Americanist reading group
with David Cantrell, John González, Eric Schocket, and Carrie Tirado
Bramen sponsored my first sparring with Helen Hunt Jackson and William
Dean Howells. A year at the Stanford Humanities Center brought invaluable
time for writing and conversation. Sepp Gumbrecht and Jennifer Summit
provided crucial support in the transition beyond dissertation writing;
Denise Gigante and Gavin Jones offered much-​needed advice on reframing
the project. Meanwhile, time spent in Frankfurt allowed me to see American
traditions with other eyes. I am grateful to Susanne Opfermann for allowing
x Acknowledgments

me to play the visiting American at the American Studies colloquium; to

Axel Honneth for letting me join in discussions of American Pragmatism at
the philosophical colloquium; and to Cornelia Dziedzioch, Pia Neumann,
and Babette Tischleder for adventurous conversations across the Atlantic.
Detlev Claussen’s generosity and dialectical imagination provided inspira-
tion for rethinking American Reconstruction from the standpoint of incom-
plete emancipation. Teaching at Arizona State University has offered me rich
opportunities for further thoughts on the American West. I am grateful for
the advice of my colleagues Deb Clarke, Elizabeth Horan, Neal Lester, Joe
Lockard, Keith Miller, and Eric Wertheimer as well as for a semester of junior
leave generously granted by the ASU Department of English. My thanks
go out to my University of Arizona compatriots in English and Gender
and Women’s Studies, especially Nathan Tenneyson and Judy Temple and
their students, for the opportunity to present material on Jackson. The
Lavy Colloquium and the programs in Africana and Jewish Studies at the
Krieger Graduate School, both at Johns Hopkins University, provided cru-
cial fora for developing work on citizenship and emancipation within and
beyond the nation. The readers and reviewers for the William Dean Howells
Society Essay Prize, the Research Society of American Periodicals Article
Prize, ALR, and Oxford University Press were more than generous with their
comments and support. Betsy Duquette, Brad Evans, and Melissa Ganz were
ideal interlocutors and collaborators in assembling panels for the Modern
Language Association; Simon Stern offered insightful feedback and terrific
suggestions for reading. Elizabeth Meloy’s careful reading improved the
text in countless ways. I am indebted to Bradin Cormack for so many indul-
gent and insightful conversations about law and poetry. After all these years,
Ken Moss and Anne Eakin Moss, true scholars and perfect hosts, continue
to teach me the meaning of friendship. And Eric, der Gedankenarchitekt,
continues to discover new moons. Finally, I would like to thank the editors
and the literature delegate at Oxford University Press: Sarah Humphreville
and Brendan O’Neill, Abigail Johnson and Steven Bradley, Richa Jobin and
Richard Isomaki supported, encouraged, and helped me navigate this book
to completion.
 Introduction

The first self-​consciously modern sketch of the American literary land-

scape was executed in Boston in 1886. In the inaugural installment of his
“Editor’s Study” column, the series with which William Dean Howells estab-
lished the novel as a topic of household discussion and himself as the nation’s
most prominent literary critic, Howells began by describing the prospect
of American literature as it appeared from the editor’s chair at Harper’s
Monthly. Though Howells has largely been remembered for his earnestness,
for his advocacy of a realism of the ordinary and the natural, the image with
which this programmatic column opened hardly attested to either serious-
ness or simplicity. The editor looked out, Howells boasted, from a building
designed by Ariosto and adapted by an American architect—​“originally in
the Spanish taste,” with “touches of the new Renaissance . . . [and a] . . . co-
lonial flavor.” The study was a derivative jumble, an imitation of an imita-
tion. And the landscape the editor surveyed was a fantastic one, a scene in
which the Hudson flowed into the Charles, the Mississippi and the Golden
Gate occupied the middle distance, and the Seine and the Tiber appeared in
the background, while the “peaks of the Apennines, dreamily blending with
those of the Sierras, form the vanishing-​point of the delicious perspective.”1
As is the case with much of Howells’s theoretical writing, this commentary
upon the pleasures of mimesis requires decoding. At once a parody of the
grand vistas of the Romantic imagination and an appeal for an expansion of
the horizons of American representation, Howells’s jokey trompe-​l’oeil fu-
sion of continental landscapes implied three distinct claims about the past
and future of the American novel. The first claim was about representation,
the novel’s orientation toward the world. Howells suggested that realism, the
dominant mode of the mid-​nineteenth-​century novel, had failed to be true to
the plurality of experience: American literature needed to reject the idea of a
unitary national identity, a single origin or vanishing point, and to recognize
that literature must emerge from multiple imaginative as well as cartographic
horizons. The second claim was that the novel had overinvested in trans-
parency and forgotten that art was artifice. An imposed unity of perspective
2 Legal Realisms

brought art to life: but literature needed to break with the notion that unity
was natural, that beauty escorted truth into a world of harmony. The third
claim was political. Communicated in code—​to those capable of reading
American geographies in the light of global history—​was an argument for
why Americans must cultivate a more broadly cosmopolitan understanding
of power in order to understand America’s place among what Howells later
in the column called the “federal nationalities.”2 Invoking the old Sibyl of the
Apennines, meditating on a site whose Greek etymology and foundational
position in Roman history bore witness to the intertwinements of republic
and empire, virtue and violence, identity and hybridity, Howells’s imag-
inary landscape hinted at something delusional in the dream of American
exceptionalism. However much it might wish to evade this fact, literary re-
alism must start from the recognition that America, which imagines itself
so far from Europe, is not immune to the problems of domination rooted in
Aeneas’s soil.
Howells’s “delicious perspective” presented the novel as a form of art, as
a mirror of national self-​representation, and as a bearer and decipherer of
the logic of domination. In articulating the connection among these three
moments of the novel’s representation, he spoke to the aspirations of his gen-
eration, a collective conviction that the historical moment of the late nine-
teenth century required a new openness to the world and a departure from
rigid theories of unified knowledge and self-​knowledge. Legal Realisms
examines the writers of this generation in terms of the three concerns
exposed by Howells’s refractive image. It asserts, broadly, that the idea of a
literary “realism” was transformed in the years after the American Civil War,
and that this transformation was rooted in the ways in which Reconstruction
and its failures reshaped possibilities of knowing and imagining commu-
nity and society, citizenship and alterity. This reorientation at once expanded
the novel’s subjects and redefined its claim to provide knowledge about the
world. In the decades between the Civil War and the First World War, the
increasing social prestige of the novel—​its claim to be autonomous art—​was
bound up with its forms of knowing, with the problem of what it meant to
write realistically about a divided nation.
The late nineteenth century marked the first moment in which the
ambitions of an American literature were explicitly defined in terms of
the ideal of inclusive diversity. In the years after the Civil War, a cohort of
American writers went out to explore a nation which, newly reunited, was
also newly expansive in scope, extending for the first time across an entire
 Introduction 3

continent. They defined the novel’s work to be that of addressing the whole of
modern life by bringing this new wealth of “material” into the novel’s repre-
sentation. They went looking for diversity, and they found it: the literature of
the era is characterized by the exuberant representation of regional, cultural,
social, gendered, and ethnic and racial difference. They did not, however,
produce unified vistas commensurate with a celebratory sense of restored
national Union. Rather, their work is distinguished by what Nancy Bentley
has called “frantic panoramas”: fractured literary landscapes which, like
Howells’s, attested at once to the memory of violence and to the necessities
of art.3
The idea that the essential work of the novel was to expand represen-
tation to new social groups was not a new one in the late nineteenth cen-
tury. It did, however, crystallize an older set of expectations, and in this
sense it constituted a distinctive interpretation of the rise of the novel. Mid-​
nineteenth-​century readers and writers assumed that the expansion of rep-
resentation in the mimetic sense accompanied expanding representation in
a political sense. That the novel had grown from a popular mode of enter-
tainment, a purveyor of “novelty,” into the most prestigious literary genre of
the later nineteenth century, had everything to do with its increasing associ-
ation with bourgeois seriousness and Enlightenment knowledge during an
age of democratic revolution. Realist truth claims were linked, in nineteenth-​
century novels, with the impulse to believe that the empirical world is, or
should be, knowable, and with a sense of the agency, on the part of the reader,
corresponding to a world that is potentially masterable. Accordingly, the
novel’s epistemological claim was inextricable from a political vision, the
nineteenth century’s faith in universality and in a history moving toward
the telos of human freedom and equality. Presenting readers with a world
that they could know and in which they could act meaningfully, the realist
novel thought of itself as contributing to the progress of emancipation by
extending sympathy to the socially marginal and the oppressed. It claimed to
extend recognition by bringing the dominated into representation: to make
the abject subjects, in the strong sense of the word.4
To begin writing in the postbellum moment was to feel oneself an inheritor
of a triumphal moment in this literary-​political history. The Reconstruction
Amendments had inaugurated a new era of formal liberty. Citizenship was
now universal: this fact appeared to sponsor the possibility of a panoramic
representation whose unity of perspective would be grounded in the equality
of all subjects before the law. Yet American writers’ assumptions concerning
4 Legal Realisms

the emancipatory nature of novelistic representation ran into difficulty at

the very moment at which writers set out to bring all of America’s subjects
into representation. The first source of these difficulties lay in the unresolved
legacies of slavery and its defeat. The postwar Amendments had ended slavery
de jure, but they left the fact of domination largely unchanged. The problems
of equality and recognition that had seemed simple to the antislavery imag-
ination of the antebellum moment now appeared fraught with implications
extending out into all areas of life. But the challenge also grew out of the
changes in the material that American writers had set out to depict. The end
of the Civil War ushered in a period of western expansion. Wartime meas-
ures intended to strengthen the Union in the West, including the Homestead
Act, the Morrill Act, and the Pacific Railway Act, contributed to rapid con-
tinental consolidation after the war—​with effects rather different than the
Republican authors of these measures had contemplated. Differences of
civilization—​or, as Americans were learning to say, “culture”—​persisted be-
tween North and South, and appeared in the West; social conflicts in the East
were increasingly expressed in the languages of ethnicity and class. As the
axes of American difference shifted from the binary oppositions of the an-
tebellum imagination to more heterogeneous populations and more com-
plex geographies of domination and oppression, writers encountered an
increasing number of situations that did not conform to their expectations
of how a knowledge that could produce identity across difference would nat-
urally lead to justice. America was no longer divided into two worlds of slave
and free, but riven by the uneven logics of race and ethnicity, gender and
class, by partial and overlapping modes of legal and cultural citizenship, by
the distorting optics of continental distance and local particularity.
In encountering the world of incomplete emancipation, American writers
found themselves in a situation that was the inverse of the one they his-
torically expected. The rise of the novel, as they understood it, had allied
the novel’s knowledge to a conception of Higher Law: the novel made vis-
ible, through sympathetic representation, the universal humanity that the
law should acknowledge but did not. In the wake of Reconstruction and
its failures, equality was formally affirmed by positive law but nowhere to
be seen in reality. This fact—​of real difference within an empty equality—​
complicated the idea of inclusion, and confronted American writers with a
puzzle. Many agreed with Howells’s hopeful observation that “equality is such
a beautiful thing that I wonder how people can ever have any other ideal. It
is the only social joy, the only comfort.”5 But if equality was so powerful as
 Introduction 5

an ideal, why was it so weak in practice? The postwar generation responded

to this admission of weakness with a strategy they themselves recognized
as highly risky: that of orienting the novel’s realism toward difference in the
hopes of discovering real equality within it.
This book will present this transformation of the realist novel, and the
debates it engendered, as literary history in intellectual-​historical context.
The following chapters explore a number of writers who represent a spectrum
of different stances vis-​à-​vis the reorientation of realism toward difference,
ranging from enthusiastic embrace to outright rejection. These chapters will
approach these writers’ shifting conception of the novel biographically, in
terms of the lived process by which epistemological particularism became an
option that American writers could not ignore. The literary debates in which
they engaged were shaped by cultural and political forces; the categories of
reasoning writers asserted, the ways they thought about justice and knowl­
edge, were cognate with that of the philosophy and legal thought of their day.
But these literary debates were not reducible to transcriptions of the history
of ideas. This book will approach the epistemological shift in the novel, thus,
neither in the pure realm of the novel’s theory, nor in the pure realm of dis-
course, but in terms of the density of experience, the shifting decisions and
revisions that characterize the intersections of concept, history, and genre.
The fraught nature of the novelists’ project may be briefly comprehended
through an extraliterary comparison to the transformation of legal thought
that occurred during the same years. The title of this book invokes an impor-
tant tradition in the jurisprudence of the United States. “Legal realism” was
initiated with the doctrine, articulated on the first page of Oliver Wendell
Holmes Jr.’s 1881 The Common Law, that “the life of the law has not been
logic: it has been experience.” Holmes’s appeal to “realism” had a great deal in
common with that of the novelists of his generation: both rejected philosoph-
ical idealism; both asserted that values emerged from historical societies;
both recognized, as Holmes put it, that “the substance of the law at any given
time pretty nearly corresponds, so far as it goes, with what is then considered
to be convenient”;6 and both acknowledged that this meant that justice was
necessarily articulated not as the absence of domination, but in terms of
domination. Yet literary and legal realists did not draw identical conclusions
from these common perceptions. While early legal realism turned away from
claims about rights or about justice, condoning the postwar decades’ in-
creasingly circumscribed readings of the Reconstruction Amendments, lit-
erary realists repeatedly sought to work through epistemological and moral
6 Legal Realisms

relativism to imagine broader forms of emancipation and to affirm the rights

of the socially dominated.
That American literary realism could share philosophical assumptions
with legal realism points to some of the strange alliances characteristic of the
postwar world; that the literary realists nonetheless oriented themselves to-
ward quite different ends reminds us that political and literary history do not
move in lockstep, and that the logic of literary representation, while it may
reproduce and sometimes reinforce the logics of social domination, also, by
the nature of mimesis, stands opposed to it. If, indeed, the possibilities of the
late nineteenth-​century novel were framed by the increasing circumscrip-
tion of the emancipatory imagination, this very fact played into one of the
most important literary developments of the late century, the assertion of the
novel’s autonomy as literature. As the novel became the preeminent form of
literature and the categories of fiction organized around it supplanted older
conceptions of literature as “letters,” literary realists increasingly believed
in the freedom of the novel from direct political responsibilities, increas-
ingly argued that the novel was the bearer of its own kinds of knowledge.
They hoped, at the same time, that the novel’s unique capacity to mobilize
perspectives, to address the relativity of truth and value, could itself be a
source of political emancipation. A new sense of the novel’s status as auton-
omous literature emerged simultaneously with its orientation toward new
ways of thinking about politics, law, and social power.
This book tells the story of how concepts of knowledge and of literariness
associated with the novel were transformed as American writers began to
write in the light of incomplete emancipation. Accordingly, it tells a story
of collective bafflement and individual failures, of the extended self-​doubt
of a generation. The more the novel’s literary prestige came to rest on its
claim to produce knowledge out of alterity, the more writers came to ques-
tion what this knowledge meant. They asked what the ethical implications
were of trying to understand others’ experience, and whether—​as they had
once assumed—​this knowledge could not only register but also bridge differ-
ence, creating the kinds of social solidarity that readers in an age of emanci-
patory idealism could recognize as progress. They asked, in other words, how
the true and the good were supposed to be united in a literature defined by
nonidentity.
Legal Realisms is not a comprehensive history of multicultural literature
in late nineteenth-​century America, nor is it a history of socioliterary “diver-
sity” more broadly conceived. This book is instead interested in how diversity
 Introduction 7

came to be understood as important: as a definiens of the literary. A history

of transformations in conceptions of the novel’s knowledge, it seeks to tell
a series of interconnected stories: first, how the representation of diverse
perspectives moved to the center of the literary enterprise; second, how this
defined the moment in which literary “realism” came to occupy the most
prestigious position in American letters; third, how the realist project became
occupied with questions of the connection between the novel’s epistemology
and its ethics; fourth, how the realist response to these questions changed the
way that realists, and later generations, would imagine the novel’s ethics and
its engagement in “politics.”
At the heart of this study is a transition between two paradigms of literary
knowledge that part company across the problem of universality and differ-
ence. I will argue that the transition that has traditionally been understood
in terms of the passage from the sentimental novel to literary realism can be
better explained in terms of the crisis of one form of realism and the artic-
ulation of another: the failure of a sympathetic realism oriented toward an
ideal equality, and the emergence of a realism grounded in a pluralist episte-
mology and concerned with the exploration of real inequality. As sympathy,
which was conceived in the eighteenth century as an epistemological cate-
gory, was demoted in the late nineteenth century to being a mere affect, a
matter of individual psychology, so the novel of sympathy, which equated the
work of literary realism with its capacity to communicate human universals,
was replaced by a new kind of realism that insisted upon the perspectival
quality of all knowledge. Promoting the idea of limited or partial knowledge
to a virtue, the writers who embraced realism in the years after the Civil War
asserted that not presuming to know the feelings and experience of another
was a form of recognition. Even as they struggled to uphold the ethics and
politics of the sympathetic paradigm’s notion of universalism, these newly
self-​defined “realists” ceased to associate the novel’s highest values with the
ideal of transparency, and they began to explore the idea that the novel’s
distinctive contribution—​in terms of both the novel’s epistemology and its
ethics—​involved the possibilities of concealment. This dynamic tension be-
tween transparency and concealment, perspective as recognized difference
and perspective as a limit on knowledge, bore implications for how the novel’s
realism might relate to the political tradition of emancipatory struggle. Late
nineteenth-​century novelists explored the possibility that the novel’s knowl­
edge might be qualitatively different than the law’s knowledge: that the novel
could recognize forms of particularity and cultivate modes of blindness
8 Legal Realisms

that the law could not. Revising the emancipatory history of the novel, they
came to argue that political representation and literary representation were
connected but different in nature, that they stood in different relations to the
ideal of universal human liberation. In this sense, late nineteenth-​century
American writers at once acknowledged limits to the novel’s agency and
staked out a claim for its autonomy.

* * *
Central to the transformation of realism surveyed in this book stands
Howells’s work as a novelist, editor, and cultural commentator. The foremost
man of letters of his generation, Howells shaped the field of literature from
the 1860s onward by bringing his interlocutors into an extended conversa-
tion about the status of the novel as art and about its capacity to produce
social knowledge. While Howells has long been considered the leading (and
in some accounts, the only) proponent of realism in the late nineteenth cen-
tury, the way he thought about the novel’s art as a mode of “social” politics
has been largely misunderstood. The third chapter of this study addresses
the first half of Howells’s long and eventful career, up through the moment
in the early 1880s when he fully embraced the form of the novel, and when
his model of perspectival realism became a recognized standard for lit-
erary prestige. Howells, I will argue, remained committed throughout his
life to conceptions of emancipation as human equality that were rooted in
the antislavery struggles of the antebellum period. This continuity of polit-
ical and ethical commitment led Howells, however, to articulate a strikingly
new conception of the novel’s knowledge and of the novel’s role as a form
of political discourse. Howells challenged his contemporaries to expand the
field of literary “politics” to imagine society as a space suffused with polit-
ical power, and by doing so to confront the barriers to equal social recog-
nition that remained in an era of de jure universal citizenship. Calling into
question the idea that writers could simply assume the universal position as
either a moral given or as an ideal, he insisted that the novel’s essential con-
tribution rested in a perspectivalist epistemology, its capacity to confront
readers with the irreducible particularities of a world shaped by incomplete
emancipation. The novel’s “delicious perspective”—​its aesthetic freedom
to explore the nonidentity of the true and the good—​became a model for a
more expansive conception of the enjoyment of human freedom. Building
on this understanding of the novel’s epistemology, Howells advanced a pro-
gram for his generation that paired a mandate of completeness with a new
 Introduction 9

ethics of nescience centering on the limits of expression and the incom-

mensurability of moral experience. Under Howells’s inspiration, writers of
the postwar period confronted alterity in a double sense. They sought to in-
clude all American “subjects” in the novel’s field of representation, but they
also asked, with increasing urgency, what it meant to try to represent others’
experiences, and what Americans could not understand about each other.
Arrayed around this book’s central reconsideration of Howells are
explorations of a range of figures whose differing views on the novel and
its politics map out a geography of the postwar novel. Albion Tourgée and
Helen Hunt Jackson have largely been remembered in the canon as “minor
writers.” Their political and legal commitments to the rights of African
Americans and Native Americans have at once justified their ongoing inclu-
sion in the canon and warranted the lack of scholarly attention directed to
their aesthetic concerns, their self-​understanding as novelists. This study, by
contrast, attends to the connections between their conceptions of jurispru-
dence and their conceptions of the novel, arguing that neither was the naive
or merely instrumental practitioner of the novel they have been remembered
as. They cultivated, rather, a different conception of the novel, imagining the
configuration of the novel’s aesthetics, its epistemology, and its commitment
to the socially marginalized in different ways than did Howells. The world of
incomplete emancipation made for strange alliances; it also produced what
appear, retrospectively, to be inexplicable antipathies. Recovering Tourgée as
a stalwart defender of sympathetic, universalistic realism against Howells’s
perspectival realism, and Jackson as a reluctant recruit into perspectivalism,
these chapters explore at once what Howells’s conception of the novel defined
itself against and why novelists who shared many of his political values might
oppose his project for the novel. If we can understand the philosophical
grounds for Tourgée’s rejection of a perspectivalist realism, we gain insight
into the literary and intellectual aspirations of two generations of writers.
Politically and morally, Howells and Tourgée had a great deal in common.
A jurist, novelist, and civil rights campaigner, Tourgée shared Howells’s be-
lief in social equality as the highest human good. Both, moreover, began
their careers as writers with similar conceptions of the way the creative artist
contributed to the sphere of republican letters. But where Howells saw the
end of universalist, sympathetic realism in the antebellum mode as po-
tentially emancipatory for individuals and for the form of the novel itself,
Tourgée believed that relativism undercut the very ability of Americans to
speak, think, or write about freedom. For Tourgée, the great achievement
10 Legal Realisms

of the nineteenth century, as embodied in the nineteenth-​century novel,

had been its combination of the cultivation of republican virtue with an ex-
pansion of the scope of human sympathy. And he felt that contemporary
Americans were losing their grasp on this foundational idea.
The opening chapter presents the conflict between these two visions of re-
alism by looking ahead to the end of Tourgée’s career, exploring the story of
how Tourgée, who, in his role as the lawyer for Homer Plessy, had in 1896
just suffered a crushing seven-​to-​one Supreme Court rejection of the idea of
“color-​blind justice,” reacted to this defeat by writing an essay memorializing
Harriet Beecher Stowe and defending the “literary quality” of her sympa-
thetic realism against Howells’s perspectivalism. Reading Tourgée’s de-
fense of Stowe in relation to his arguments in Plessy v. Ferguson, the opening
chapter reconsiders why Tourgée and his generation considered Stowe’s work
to be a mode of realism, why Tourgée associated the rise of a perspectivalist
epistemology with the majority decision in the Plessy v. Ferguson case, and
why he saw the defense of civil rights as intertwined with the problem of de-
fining the novel as a literary genre.
The second chapter examines Helen Hunt Jackson as an exemplary figure
for the way the Reconstruction generation of American writers found them-
selves turning toward a perspectivalist understanding of the novel. Nurtured
on the sympathetic universalism animating the antebellum realism of Harriet
Beecher Stowe’s 1852 Uncle Tom’s Cabin, Jackson, like many writers who came
of age in the wake of the Civil War, witnessed the collapse of this model at the
moment of its triumph. The defeat of Radical Reconstruction amid rapid ter-
ritorial expansion and the rampant growth of both state and corporate power
had underscored how little vignettes of “life among the lowly” could over-
come deep-​rooted social antagonisms. The novel, a form which in Stowe’s
hands appeared capable of having “caused” the Civil War, seemed powerless
to do anything but witness the decay of the traditional alliance between lit-
erary conventions of imaginative sympathy and what Howells would later
dub the “emotional tradition in politics.”7 If the Reconstruction generation
felt that their writings could no longer achieve what the antebellum novel
had, they registered this sense of lost agency as an aesthetic-​epistemological
rift: a new tension within the novel, impassable, imponderable, between
the need for individual feeling and the structures of legitimate public sen-
timent. Nowhere were these dilemmas more evident than in the making
and unmaking of Jackson’s Ramona, a work of carefully researched so-
cial engagement that has generally been received as a historical romance
 Introduction 11

devoid of either political or intellectual ambition. Chapter 2 examines the

divide between conception and reception not as a mere product of changing
attitudes toward the melodramatic in fiction, but in terms of a shift in the
epistemology of social sympathy, reading Jackson’s investigation of interna-
tional and human rights law in A Century of Dishonor against the way her
travel writing engaged her in a generational rebellion against the high polit-
ical moralism of the prewar generation. Tracing out Jackson’s affiliation with
other writers of the 1870s and 1880s, this portion of the book offers an over-
view of the varying ways in which the “sentimental tourists” and “mugwump
aesthetes” of postbellum literature transformed the sentimental tradition,
and it suggests how the 1870s and 1880s prepared the ground for a literary
field defined by the paired ideals of autonomous literary experimentalism
and authentic, pluralistic cultural expression. This chapter uses Ramona to
consider the role of the American West in structuring the literary and po-
litical imagination of the late nineteenth century, and it argues that Ramona
must be read as an allegory of public agency in an age of violent territorial
expansion and divided fields of discourse. The novel’s subject, rightly under-
stood, is the bewilderment of the thinking citizen among the forces of domi-
nation; its romance the transformation of universal human rights claims into
picturesque heritage.
While Tourgée and Jackson can be better understood as literary art-
ists through an understanding of their opposition to perspectival realism,
Mark Twain and Henry James, recognized already by many in their time
as the greatest literary artists of their generation, have also been seen from
the first as representing opposing impulses. Strange alliances, strange
antipathies: that the “Turn West and the Turn East American” should dislike
each other has not been hard to understand.8 The fact, however, that they
should have in common an enduring friendship with Howells has remained
as underexamined as it is well known. Scholars of both James and Twain have
assigned Howells the same role: that of the cheerleader, the helpful editor—​
and the straight man whose more modest achievements highlight the genius
of his friends. This study does not seek to overturn these relative judgments
any more than it expects a restructuring of the canon with Tourgée or Jackson
at the center. Yet we may learn from the exercise in imagining a different
canon. By inverting the organizational logic of canonization—​by taking the
paired achievements of Twain and James as a frame within which to consider
the literary biographies of lesser-​known writers, and by approaching James’s
and Twain’s work through their relationship with Howells—​this study seeks
12 Legal Realisms

to accomplish three ends: to make visible the common ground these two
writers occupied with Howells, the new ways of thinking about the novel’s
knowledge and its freedom these writers shared; to make evident what it was
about Howells’s style that could make him a model, inspiration, and inter-
locutor for these two apparently very different writers; and to understand
what was at stake when other writers resisted the approach represented by
this triumvirate.

* * *
Legal Realisms is part of a two-​volume project that explores the transfor-
mation of the novel that occurred when the genre’s concept of literary value
became bound up with its commitment to difference. The story of this trans-
formation, which has both a literary-​historical and a more broadly legal, po-
litical, and cultural dimension, involves a revision of our understanding of
literary realism, and it necessitates reimagining realism’s position within the
chronologies of the nineteenth-​century novel. Specifically, the two volumes
consider realism within three time frames: a long history of realisms in the
nineteenth century; a long history of modern novelistic aesthetics, with its
dual commitment to modernism and multiculturalism; and the period be-
tween the 1860s and the 1890s that has traditionally been considered the mo-
ment of “American literary realism.”
The present volume argues that the history of literary “realism” can be
better understood if explored across a long chronology extending back across
the nineteenth century. In the course of this book it will become clear that
American literary realism cannot be understood in terms of the single mo-
ment in the postwar period to which this movement has often been assigned.
The “realists” of the 1870s and 1880s took the antebellum models of Stowe
and Hugo, Dickens and Thackeray as the achieved form of a genre that had
attained international prominence and currency in the antebellum period,
even though they felt the need to reinvent the epistemological, aesthetic,
social, and legal foundations of “the real.” This book follows their lead and
describes American literary realism not in terms of a single moment (oddly
belated in relation to the global history of the genre) but as part of a progres-
sion of “realisms” oriented toward an ever-​receding telos of emancipation.
At stake in this first volume is thus the transition between two different kinds
of realism, two different ways of thinking about mimesis, literary value, and
political commitment. The fact that the realists of Howells’s generation de-
fined their perspectivalism in terms of its modernity and its fragmentation of
 Introduction 13

perspective, however, opens a different horizon on the history of the novel.

In the second volume I will thus consider American literary realism as a
founding moment in a long history of modernism, taking its commitment
to difference—​temporal as well as cultural—​as a way of understanding the
common origins of avant-​gardistic modernism and what we have come to
call multicultural literature. Taken together, these two volumes argue for a
link between the long history of realism and that of the sentimentalist con-
ception of universal human rights; but they also suggest that realism was not
simply modernism’s precursor, but served as its incubator and interlocutor.
The space defined by the overlap between these two chronologies points to
the social content of aesthetic form and makes it possible to achieve a clearer
sense of what was at stake in realism as a literary mode that became—​and
remained, despite some critical discomfiture—​the “normal” form of the
novel in the nineteenth and twentieth centuries.9
Legally and politically speaking, these two long histories pivot around
the Plessy v. Ferguson decision. Telling the story of the failure of sympathetic
realism involves following it forward to the moment when, with the Plessy
decision, sympathetic realism’s universalistic ethics and its claims to literary
prestige appeared to collapse simultaneously. Telling the story of a multicul-
tural modernism involves understanding how the kinds of emancipation
to which literature aspired changed when Plessy inscribed divided citizen-
ship on the American landscape. Together the two volumes grapple with the
literary field’s response to the advent of formal equality and its limitations
between the Civil War and the early twentieth century. This analysis turns
around legal transformations that took decades to unfold, including the
changing definition of citizenship provoked by the wartime amendments and
Reconstruction, and around a comparably complex set of transformations
in concepts of the literary. Though novelists did not always directly engage
with technical legal concerns, their understanding of the national litera-
ture they sought to create was informed by ideas of citizenship: questions of
who is included in a nation, whose rights are protected, whose concerns are
the object of moral seriousness, laughter, or derision. This volume, though
it looks forward to the Plessy decision as an endpoint, therefore focuses on
the decades of the 1860s through the early 1880s, when the writers of the
Reconstruction generation sought to develop new modes of social, legal, and
moral perception. In the second volume, I will examine how, once the idea of
universal equality was defeated, perspectival realism’s embrace of diversity
as a central source of literary value promoted the rise of both multicultural
14 Legal Realisms

literatures and a modernist avant-​garde. Collectively, the two volumes seek

to interrogate the implications of placing difference at the heart of the literary
endeavor. Recognizing that the turn to difference was not inevitable, they ex-
plore both what was gained and what was lost when “modern” literature was
defined on these terms.
 1
The Novel in the Era of Plessy

You know I am a realist, in a much broader sense than those who

claim the name.
—​Albion Tourgée1

1. When Is a Novelist Not a Novelist? The Case of Harriet

Beecher Stowe

In 1868, the former Union soldier and carpetbagger John William De Forest,
most recently the author of Miss Ravenel’s Conversion from Secession to
Loyalty, made what would turn out to be his most influential contribution to
American literature. Writing for the recently founded journal The Nation, he
issued a call for a new kind of literary production, and in the process coined
the phrase “the Great American Novel.” The first writer to set out after this
fantastic object, De Forest was also the first to be disappointed in his search.
The nation had yet to produce any such “tableaux of . . . society”2 as England
enjoyed in the works of Thackeray or France in the works of Balzac or George
Sand. Hawthorne was too narrow, Cooper too dull. “The nearest approach to
the desired phenomenon,” he concluded, was Harriet Beecher Stowe’s Uncle
Tom’s Cabin. De Forest had his reservations about whether Stowe’s perfor-
mance could be imitated by other writers, or even repeated by Stowe herself:

It was a picture of American life, drawn with a few strong and passionate
strokes, not filled in thoroughly, but still a portrait. It seemed, then, when
that book was published, easy to have more American novels. But in
[Stowe’s 1856 novel] Dred it became clear that the soul which a throb of
emotion had enabled to grasp this whole people was losing its hold on the
vast subject which had so stirred us.3
16 Legal Realisms

But if Stowe had ceased to live up to the hope of American readers for an ex-
pansive portrait of the whole of American society, other writers had failed as
well. Aside from Uncle Tom’s Cabin, De Forest concluded, there existed not “a
single tale which paints American life so broadly, truly, and sympathetically
that every American of feeling and culture is forced to acknowledge the pic-
ture as a likeness of something which he knows.”4
De Forest’s analysis struck a chord with American readers in a way his
own fiction never really did and set an agenda for a generation of American
novelists. Challenging his contemporaries to produce a novel adequate to the
continental society being reconstructed in the wake of the Civil War, the essay
marked a high point in the social authority of fiction in the United States.
As Lawrence Buell observes, De Forest’s call for an expansively “American”
novel converged with “a rising tide of cultural nationalist theory”5 around the
world, a moment in which the increased status of the novel as a genre became
linked to the idea of the nation itself. The fact that De Forest looked to Stowe
for his model of a national novel is often forgotten. Yet the choice of Stowe is
far from incidental. There was a politics to De Forest’s dream of a new novel,
but also a call to knowledge. At a political level, Uncle Tom’s Cabin stood for
the idea of a national literature centering on a single American readership
and community of rights.6 Epistemologically—​in terms of how De Forest
thought novels could help readers know the world—​the invocation of Stowe
affirmed what he considered the essence of the novel’s knowledge: a “fervent
emotional sympathy” linking writer and reader in moral commitment to
their world.7 Between these dimensions of his argument stood a concern for
particular experience, for local and regional literatures, that might be termed
“federal,” and was certainly also universalist. The representation of a wider
range of American experiences would not come from the self-​assertion of
particular localities but from the capacity to make the sections intelligible to
each other. The view would be panoramic, the gaze sympathetic.
If one looks ahead thirty years, to an 1898 essay by the Southern writer
Maurice Thompson, we find a very different assessment of the novel’s knowl­
edge and its relation to postwar America. Stowe had passed away in 1896.
While her work had been much in the literary news in the two years there-
after, most of the coverage had been superficial. As Barbara Hochman has
shown, the elevation of Uncle Tom’s Cabin to the status of a “classic” in the
late nineteenth century was accompanied by a slackening of the seriousness
with which Stowe’s work was read.8 The eulogies for Stowe tended to pre-
sent anodyne remembrances of the home life of a “beloved authoress” and to
 The Novel in the Era of Plessy 17

soft-​pedal questions of political or aesthetic influence. Everyone praised her,

few engaged meaningfully with her work. Thompson, writing on Southern
humor in The Independent, was an exception to this rule, producing a strange
tribute to Stowe that was half serious reflection and half political provoca-
tion. Notable about Thompson’s appreciation is the degree to which his re-
view followed the form of De Forest’s and confirmed the status of Uncle Tom’s
Cabin as the model for American fiction. Like De Forest, Thompson praised
Stowe in order to characterize the failings of an entire cohort, in this case
lamenting the quality of humor writing in the South. Like De Forest, he called
upon American writers to go beyond Stowe. But where De Forest effectively
imagined the Great American Novel to be an extension of Uncle Tom’s Cabin,
Thompson wished for a literature of a categorically different nature. While
conceding that Stowe was America’s greatest writer to date and—​indeed—​a
better comic writer on the South than any Southerner, Thompson suggested
that Stowe should not be considered a novelist. For novels, in Thompson’s
view, must be centrally occupied with the task of expressing the particular,
internal worldview of a civilization. At this task Stowe had failed.
To illustrate his point, Thompson compared Stowe’s work with contem-
porary statements by Confederate vice president Alexander Hamilton
Stephens, concluding with a suggestion that Stowe was no model for later
writers because she was “a prophetess, not a novelist”:

The politician was wrong in his prophecy, the sentimental woman was right
in hers. Yet Stephens voiced accurately the spirit of Southern civilization; he
expressed it in its own terms, while Mrs. Stowe extracted from it a romance
as terrible as it was untrue to life.9

No one would have missed the insult here. Thompson rated the racial su-
premacist politician the better artist while demoting Stowe to the status of
a Cassandra and consigning Uncle Tom’s Cabin to the limbo of the sui ge-
neris. However accurate Stowe’s political predictions had turned out to be,
in Thompson’s view, the fact that she did not understand the life of the South
from the inside meant that her work was not only untrue but also unliterary.
Thompson’s criticisms pointed to the erosion of Stowe’s reputation in the pre-
vious decades. They suggest, moreover, a transformation of the project of the
American novel in the years since De Forest’s manifesto. That Stowe had not
“voiced accurately the spirit of Southern civilization” meant that the search
for the Great American Novel had been a thirty-​year mirage.10 Novelists who
18 Legal Realisms

wished to remain literary should stay closer to home. The project of a na-
tional literature must be abandoned in favor of true, authentic regional ones.
The late nineteenth century was the age of the Great American Novel. What
Warner Berthoff would later call the “ferment of realism” had everything to
do with the expectation that the dawning postwar era would naturally pro-
duce a novel fit for an expansive Union.11 There is nothing surprising about
this fact: it conforms to the most traditional categories and chronologies of
U.S. literary history. The contrast between De Forest’s and Thompson’s views
reminds us, however, that the same decades also saw the emergence of a vig-
orous critique of everything the Great American Novel stood for, the asser-
tion of a diametrically opposed conception of the novel’s knowledge and its
literary value. Facing off across thirty years, the two writers represent op-
posing sides of a rich debate concerning the social function of the novel and
the sources of the novel’s knowledge—​the grounds on which the novel could
claim to be “true.” This debate would shape the articulation of literary re-
alism as the most ambitious mode of novel writing in the last decades of the
nineteenth century, the mode most centrally associated with the increasing
prestige of the novel as a form of art, and it would define the relationship be-
tween the novel’s claim to be an “art” and its deep engagement with regional
and local color traditions.
In the case of De Forest and Thompson, the debate hardly appears a com-
plex one: its terms can be quickly reduced to the sectional simplicities of
biography and politics, postwar and post-​Reconstruction. De Forest and
Thompson grew up on opposite sides of the Mason-​Dixon line and fought
on opposite sides of the war, and their assumptions about literature reflected
these commitments. De Forest had fought as a Unionist and served for fif-
teen months during Reconstruction in the Freedmen’s Bureau. De Forest’s
literary epistemology was, like Stowe’s, universalist. Though De Forest
was never a convinced abolitionist or a strong ally of African Americans,
witnessing the freedmen’s belief that “the work of emancipation was in-
complete until the families which had been dispersed by slavery had been
reunited” pointed toward the way the novel could serve the reconstruction of
the nation.12 If a novel such as Stowe’s could lead to the overcoming of slavery
and the reuniting of slave families, the novel could also unite the broken
family which was the Union. And like Stowe, De Forest associated family
and freedom: his vision of the nation was not only expansive but emancipa-
tory. Abolitionists and Radical Republicans had, before and during the war,
argued that freedom, in the United States, could only be national: that the
 The Novel in the Era of Plessy 19

rights of the individual were guaranteed by the Constitution and the federal
government.13 A few months after De Forest’s essay, the Radical Republicans
would codify this belief as law through the Fourteenth Amendment and its
incorporation doctrine. The Great American Novel’s project of a literary in-
corporation of the United States corresponded to this belief, approaching re-
gional particularity in the mode of inclusion and reconciliation.14 The local
was undoubtedly important to his argument: the capacity to invoke par-
ticularity was a prerequisite for his “great American” novelist. But a “great”
American novel must also have universal scope. Singular in its nature, an
epic for the whole of America, it must appeal to all readers and all localities,
with a realism that could make the diversity of the U.S. experience available
to the feeling and reason of any individual.
Maurice Thompson, by contrast, was born in Indiana but seems to have
become more Southern with every passing year. In the 1880s he made a rep-
utation for himself as a moderate Southerner—​the kind of writer who was
willing to express retrospective relief at the end of slavery—​but his central
theme was celebration of the integrity of the South as a distinct “civiliza-
tion.”15 Though the word “sympathy” appeared in his writing almost as fre-
quently as it appeared in De Forest’s, he used it in an opposite sense. Sympathy
was not a mode of engaging with others, with difference; it was the marker of
the deep affiliation of the writer with what he knew best. The bedrock of ar-
tistic inspiration was regional nature and personal association, the “sylvan
secrets” of his Indiana childhood and Georgian adulthood.16 His defense
of the South, for this reason, was at once relativistic and absolute. Criticism
of the South from the outside he disallowed, for only those who knew it
could judge it; outside writers who sought to “do dialect” were committing
a crime. Yet the South also represented an absolute standard, the pure form
of a Christian nation. Not surprisingly, Thompson’s South was antimodern.
Richard Brodhead’s assessment that the genre of regionalism “requires a set-
ting outside the world of modern development”17 would not always be borne
out in the literature of this period, but Thompson, certainly, saw the literary
world as divided between the decadence of realism and naturalism and the
healthy romance of old-​fashioned local traditions. “A perfectly healthy civ-
ilization,” he argued, “remains healthy just so long as it holds to the soil of
nativity”: it must remain “not merely conservative, but true to itself and sin-
cerely homogeneous.”18 To say that Thompson’s literary politics represented
resistance to the incorporation doctrine would be an understatement; in the
realms of literature and culture, Thompson was still longing for secession.
20 Legal Realisms

If De Forest’s and Thompson’s comments, almost thirty years apart, can

be said to represent the debate over the Great American Novel in its simplest
form, their opposition crystallized out of the extremes of generational dif-
ference and the North/​South polarity. De Forest and Thompson were about
as far apart in age as two Civil War soldiers could have been, and the carpet-
bagger and adopted son of the South conceived of the value of particularity,
the meaning of emancipation, and the social and truth-​telling function of
literature in very different ways. These polarities were fundamental to the
period. Any given historical moment is, after all, defined by the interaction
of old and young, and by the most radically opposed elements within it.
(Indeed, had they met in the 1880s, an older, increasingly conservative De
Forest and a younger, more moderate Thompson might have gotten along
very well.) U.S. life in the postbellum period was profoundly reshaped by the
geographic reorientation of the nation’s political axis from North-​South to-
ward East-​West. In this reorientation, which was literary, intellectual, legal,
and cultural as well as political, the simplicity of the De Forest /​Thompson
confrontation breaks down. While the general trajectory of the period was
toward the eclipse of De Forest’s views and the triumph of Thompson’s, the
routes by which writers of this period arrived at an understanding of the
novel as an expression of culture “in its own terms” varied greatly. In the
course of these decades, many writers who disagreed with Thompson’s pol-
itics would come to agree with his aesthetics, or with his expressive con-
ception of culture. If the cohort of writers who set out to produce the Great
American Novel turned against it, it was not because they all rejected its
emancipatory vision. Some discovered that the cause of emancipation was
incomplete; others, that “emancipation” itself had not been fully understood
by the Radical Republicans and sentimental novelists of the war years.19
For all their differences, De Forest and Thompson shared one belief: they
recognized Uncle Tom’s Cabin as the exemplary American novel. This con-
tinuity between the way De Forest drew upon Stowe to define American
literature, and the way Thompson addressed her work a generation later,
thus tells us that the age of the Great American Novel was still very much
the age of Stowe—​that the project of realism in the panoramic mode of the
Great American Novel represented a continuation of the project of the sen-
timental novel. By corollary, the decline of Stowe’s reputation coincided with
the end of the Great American Novel. If it became possible to think that the
Great American Novel had been built upon a false conception of the novel as
 The Novel in the Era of Plessy 21

a genre, this was in part because many began to argue, alongside Thompson,
that Uncle Tom’s Cabin was not a novel at all.20
To imagine an identity between Stowean sentimentalism and the Great
American Novel is to rethink the relationship between sentimentalism and
realism in U.S. literary history, a relationship which has too often been under-
stood in terms of a simple opposition between two distinct literary moments
and two divergent literary styles. In acknowledging the ongoing centrality
of the sentimental novel and its modes of knowledge in the postbellum pe-
riod, and suggesting that we see these years in terms not of the triumph but
of the decline of the Great American Novel, this book will reconsider the
meaning and work of literary realism in the late nineteenth century. I will
argue that literary realism can best be understood in terms of the way it was
defined, not by a consensus over the value of mimetic representation, but by
a fierce debate between two different concepts of the novel’s knowledge. Such
an approach, I will suggest, allows us to understand debates over realism at
once in terms of problems in the relation between nation and region, and in
terms of new ways of thinking about genre: in terms of what makes a novel a
novel, and what makes it art. This approach suggests a new understanding of
the relation between late-​century regionalist and aestheticist impulses, and it
points toward a new genealogy of novelistic modernism.
At the center of this redefinition of the novel in the late nineteenth cen-
tury was a shift in the way generations younger than De Forest thought
about knowledge. The idea that knowledge might be particular, that cer-
tain kinds of knowledge might be available only to some people and from
a certain perspective, moved from being associated with unfreedom—​with
narrowness, jealousy, ignorance, hate—​to being associated with a truer and
more defensible freedom. The impetus toward this development arose from
a convergence among artistic, political, legal, cultural, and philosophical
developments, and it played out across the displacement of the old, North-​
South sectional opposition along the new, East-​West imaginative geography
of the postwar period. The epistemological and aesthetic interest in particu-
larity had, very simply, sources both inside and outside the novel: in the world
of ideas, in debates about the law, in American society, but also in debates
about the novel itself, over what kind of knowledge was unique to and defin-
itive of the novel. If De Forest conceived of the Stowean sentimental novel as
the model for future American literatures, he might have been scandalized by
the many secessions from epistemological universalism that occurred in the
late-​century novel. While many of the younger writers recalled the reasons
22 Legal Realisms

why a figure such as De Forest would have been alarmed, they also saw the
dangers of particularity as recompensed by its possibilities. As I will argue,
the most creative and influential forms of literary exploration during this pe-
riod were founded on the idea that the very scandalousness of the ideal of
particularity marked its liberatory potential. At a practical level, this meant
that a whole generation of novelists who had once embraced De Forest’s vi-
sion of sentimental universalism later found themselves, often against their
will, giving credence to aesthetic (if not political) views that tracked close to
Thompson’s. Writers who had once embraced the national mandate to create
a unified postbellum culture in the model of Stowean universalism found
themselves torn, no longer capable of staying within sentimental realism, but
also not capable of getting beyond it.
The struggles of this Reconstruction generation were exemplified by the
career of the novelist, lawyer, and reformer Albion Tourgée. No novelist of
the period was more attuned to the scandal of particularism than Tourgée,
and none sought more strenuously to uphold the older ideal. Indeed,
Tourgée’s entire literary life must be understood in relation to the legacy of
Uncle Tom’s Cabin in the field of American thought. Born in 1838, Tourgée
served as a Union soldier during the Civil War, surviving two injuries and a
stint as a prisoner of war. After the war, he moved to the South and embarked
on a flamboyant carpetbagging career as a novelist, lawyer, federal judge,
anti-​Klan crusader, literary critic, and activist for African American civil
rights. As a novelist starting out in the 1870s, his work incorporated the
ideals of the Great American Novel. Though his most celebrated novel fo-
cused on the South, he also published on life in the North and West, and
his work was characterized by an interest in the dynamics among sections.
He pursued this agenda further as the founding editor of a journal bearing
the inclusive (or, perhaps, provocative) title Our Continent, which for a brief
moment in the early 1880s could claim to be America’s most ambitious lit-
erary journal. Throughout his work, the former Union soldier campaigned
for “union” in an emphatic sense. Far more committed than the laissez-​faire
liberal De Forest to the universalization of political liberty, he believed that
the real goal of the Civil War had not yet been achieved. The ends for which
the war had been fought—​emancipation, uplift, equality—​were the same as
those for which Stowe had written Uncle Tom’s Cabin. Americans owed it to
themselves as a union to finish the job.21
When the time came to write eulogies of Stowe, Tourgée was quick to em-
phasize her epochal role in shaping American history and literature. His
 The Novel in the Era of Plessy 23

retrospective analysis from the summer of 1896 stands out for two things: its
forceful defense of Uncle Tom’s Cabin and its agonistic attempt to come to
terms with Stowe’s increasing unfashionableness as the model for a na-
tional literature. Tourgée’s memorial essay, entitled “The Literary Quality of
‘Uncle Tom’s Cabin,’ ” boldly reaffirmed Stowe’s novel’s “permanent superi-
ority over all works of fiction.” The phrase proclaimed certainty, but Tourgée
knew he was swimming against the tide. He thus defended the novel’s su-
periority with an odd double argument. At the beginning of the discussion,
Tourgée identified the greatness of the novel with its capacity to produce
a “ ‘sense of reality.’ ”22 By the end, however, Tourgée concluded that the
book’s fascination “was largely dependent on its non-​realistic character.”23
Between these moments, Tourgée carried out an extended comparison be-
tween Stowe’s method and “modern ideas of realism” (by which he clearly
meant such writers as Henry James and William Dean Howells), which were
characterized by sociological accuracy, moral relativism, aestheticism, and a
fidelity to cultural expression even at the expense of readerly comprehension.
While Tourgée was, then, in almost every way explicitly opposed to the proj­
ect of the Maurice Thompsons of the world, at the moment of Stowe’s death
Tourgée found himself taking a stance remarkably similar to Thompson’s. As
Thompson had affirmed Stowe’s greatness only to eject her work from the
canon of the novel, so Tourgée felt he could vindicate her novel’s literary
quality only by removing it from the canon of realism.
It was uncomfortable company to be in: if Tourgée had condemned
modern realism and championed Stowe, he had done so in a way that allied
him with those who were beginning to erase Stowe from the canon. This, de-
spite the fact that he had arrived at this position for reasons entirely opposed
to those of Thompson: his commitment to the rights of African Americans
had brought him, despite himself, to acknowledging the power of the par-
ticularist aesthetic. Prospectively, from the vantage of Tourgée’s surprising
moment of alignment with Thompson, the career of Uncle Tom’s Cabin in
the twentieth century becomes visible, that long period in which the novel
was acknowledged for its cultural importance but was consigned to a “sen-
timentalism” that stood outside the realm of serious literary endeavor.24
Retrospectively, their agreement invites us to ask what had happened to the
idea of sentiment such that Tourgée was forced into this unwelcome alliance.
Tourgée was until recently a nearly forgotten literary figure. Despite im-
portant new studies of his work, he remains at the margins of the U.S. canon,
and it is not the purpose of the current study to contest this status.25 In the
24 Legal Realisms

course of investigating the decline of both Stowean sentimentalism and the

Great American Novel, however, I will argue that imagining Tourgée at the
center of late nineteenth-​century fiction transforms how we look at almost
forty years of American literary history. Because Tourgée approached liter-
ature from an explicitly theoretical point of view that included questions of
law and politics in his understanding of literary aesthetics and representa-
tion, he experienced the generation’s problems with particular intensity, and
can almost uniquely serve to illuminate the generation’s struggles. Before we
can engage with this legacy, we must take up the question of why a position
as important as Tourgée’s came to be forgotten. This requires a brief examina-
tion of twentieth-​century literary criticism, with the way a fixed opposition
between realism and sentimentalism placed limitations on critics’ concep-
tion of the nineteenth-​century canon. Thereafter we will turn back to Tourgée
and the intellectual career of sentimentalism in the late nineteenth century,
considering Tourgée’s defense of Stowe in relation to transformations in sen-
timent as a concept and sentimentalism as a mode of the novel’s knowledge.

2. Realism and Realisms in Nineteenth-​Century

American Literature

This book explores the reconceptualization of the novel that occurred in the
last three decades of the nineteenth century. It is about the search for the
Great American Novel that occupied American writers during the decades
after the Civil War; about the disappointment of the expectation that, in De
Forest’s words, it “would be easy to have more American novels”;26 and about
how this ambition to expand the horizons of American literature rather
quickly led, by its own logic, to a demand for the opposite: not for breadth
but for intensity; not for an overview of society, a picture comprehensible by
“every American of feeling and culture,” but for partiality, the expression of
“a civilization” “in its own terms.” It is about the attempt to uphold the eman-
cipatory meaning of literature in the face of the breakdown of the concept of
universal sympathy.
At the heart of this period is a transition between two modes of what we
will call the novel’s epistemology—​two different ways of understanding how
novels produce knowledge, two different sets of claims about why novels in
particular had the capacity to teach readers about the world. This transition,
which has traditionally been framed by scholars in terms of the end of the
 The Novel in the Era of Plessy 25

“sentimental novel” and the rise of “literary realism,” is better understood

as a transformation within realism: a crisis of one form of realism, the ar-
ticulation of another. We shall therefore speak of the eclipse of sympathetic
realism and the emergence of a new realism grounded in epistemological
perspectivalism, using the conventional terms “sentimental novel” and “lit-
erary realism” as synonyms for these two modes of realism when appropriate.
The reason for this shift in categories is indicated by the changing status of
that exemplary (non)novel, Uncle Tom’s Cabin, within the period itself. The
fact that Stowe’s mode of realism was long taken as the model for the Great
American Novel suggests that what was at stake in the late nineteenth cen-
tury was not the emergence of an ideal of “realism” in an unqualified sense
but a redefinition of what realism meant and what a realist novel could “do.”
This book will thus argue that in the decades defined by the search for the
Great American Novel, American writers abandoned a concept of the novel
that equated the work of literary realism with its capacity to sympatheti-
cally communicate universal truths, replacing it with one that defined the
civic and the aesthetic contribution of the novel in terms of the expression of
plural and relative truths, and which defined the novel’s ethics in terms of the
cultivation of epistemological modesty in the face of social complexity and
cultural difference.
The concern in exploring this shift goes beyond questions of categoriza-
tion and periodization to understanding what the novel’s art came to mean
by the beginning of the twentieth century. But carrying out this study nec-
essarily involves contributing to an ongoing scholarly conversation on the
definition and periodization of realism and sentimentalism. Exemplary for
the state and stakes of this debate remains Jane Tompkins’s 1986 Sensational
Designs: The Cultural Work of American Fiction, 1790–​1860, one of the most
important works in bringing about the recuperation of Uncle Tom’s Cabin
for the literary canon.27 What is striking about this act of recuperation is
that, in reaffirming Uncle Tom’s Cabin, Tompkins’s account seems almost to
pick up from where Tourgée left off. Categorizing Stowe’s novel among the
“sensational” fictions of the antebellum United States, Tompkins argued that
this category of writing achieved social relevance not despite but because of
its “lack of verisimilitude.”28 The contexts of these two statements were, of
course, quite different. Tourgée was writing as a reader who still remembered
the gripping “sense of reality” the novel had created; Tompkins in the face
of an eighty-​year tradition condemning the novel as unrealistic, feminine
sentimentalism.
26 Legal Realisms

This shift in context goes a long way toward explaining why, in asserting
that Uncle Tom’s Cabin’s greatness was a function of Stowe’s antirealism,
Tompkins overturned one binary opposition within long-​ held crit-
ical traditions only to reinforce another. Attacking the tradition that had
valorized realism at the expense of sentimentalism, she upheld an equally
venerable tradition, one which has downplayed the importance of realism
within American literary history. The idea that the United States was pecu-
liarly ill-​suited for a literary realism is an old one, dating back at least to the
complaints of nineteenth-​century writers such as Hawthorne and James. In
James’s classic formulation, the problem with the U.S. novel was what the
United States itself lacked:

No State, in the European sense of the word, and indeed barely a specific na-
tional name. No sovereign, no court, no personal loyalty, no aristocracy, no
church, no clergy, no army, no diplomatic service, no country gentlemen,
no palaces, no castles, nor manors, nor old country houses, nor parsonages,
nor thatched cottages nor ivied ruins; no cathedrals, nor abbeys, nor little
Norman churches; no great Universities nor public schools—​no Oxford,
nor Eton, nor Harrow; no literature, no novels, no museums, no pictures,
no political society, no sporting class—​no Epsom nor Ascot!

While James had uttered his complaint about “the absent things in American
life”29 in the mode of calling for the development of an American realist
novel (we see James’s own youthful hopes to be the Great American Novelist
fully on display in such passages), by the time a modernist aesthetics was
shaping the critical consensus in the mid-​twentieth century, these “absent
things” had become a point of pride for Americanists. As writers such as
Richard Chase sought to discover an autochthonous American literature—​
something clearly differentiable from the “Great Tradition” of English
novels described by critics such as Richard Leavis—​the suggestion that the
American tradition “defined itself by incorporating an element of Romance”
would inspire a generation of critics to downplay sociographic elements of
American novels and celebrate everything that could fall under the rubric of
“romance.”30 Wherever the novel contained an element of “Romance,” it was
considered “not realist,” but for this, all the more “American.”
The overall effect of the modernist moment was to contract the histor-
ical period of “realism” and to limit the number of writers recognized as
“realists,” and this contraction of the realist canon would continue apace
 The Novel in the Era of Plessy 27

with the Marxist, feminist, and New Historicist trends. For if each of these
movements was attracted to the notion of a politically committed realist
literature, the broad context of deconstruction inspired a hermeneutics of
suspicion in relation to realism, in two senses: first, through the deconstruc-
tive repudiation of mimesis as a foundational illusion; and second, through
the redefinition of what critics meant by “politics.”31 At this moment, many
elements of realism once assumed to be associated with a progressive politics
came under scrutiny as serving potentially conservative ends, while critics
recuperated apparently apolitical dimensions of U.S. literature as the truly
subversive or liberatory. Tompkins’s discovery of a matriarchal politics in
Uncle Tom’s Cabin was typical in this regard: Uncle Tom’s Cabin’s intervention
into the most important political conflict in the nineteenth century was most
easily frameable if one categorized its genre as “sentimental” and bracketed
its engagement in debates over U.S. law.32 A natural consequence of these
developments was that “realism,” as a label, was restricted almost to the point
of disappearance. Eric Sundquist’s introduction to the seminal 1982 collec-
tion American Realism: New Essays, for example, framed the project of an
American realism in terms of the refusal of nearly every important author of
the period “to become a realist”—​a definition which would almost seem to
define out of existence the subject matter of the collection itself.33
It would be hard to underestimate the importance of the New Historicist
moment for enriching our understanding of the cultural politics of U.S. liter-
ature and for expanding the canon overall: if criticism continues to look back
to the classics of the 1980s, it is because that was a transformative moment
in the field, one which has continued to set the agenda for scholarship. In
the decades since then, the historical sophistication of criticism has grown
considerably over and against the sometimes sweeping Foucauldian gestures
of that moment, and our knowledge of the institutional contexts and cul-
tural politics of American literary realism has been transformed.34 One di-
mension of that consensus has rarely been questioned, however: the New
Historicist suspicion of realist truth-​claims, its tendency to delimit the his-
torical moment of realism as narrowly as possible, and its assumption of a
binary opposition between sentimentalism and realism. While much impor-
tant work has been done using “realism” as a simple, arbitrary period marker,
the more critics focus on the “real” in realism, on realist writers’ truth claims
or their programmatic accounts of realism as a movement, the more they
tend to view the realist moment with suspicion, and to find ways to exclude
their favorite authors from this category.35
28 Legal Realisms

There are many good reasons to be cautious about naive invocations of

“realism,” and even more good reasons to explore the kinds of alternative
labels and categories that make visible discourses ignored by the traditional,
canonical progression of Romanticism, realism, modernism. All category
distinctions are ultimately instruments, inventions for seeing literature
in new and different ways. Yet the critical binary between sentimentalism
and realism can intensify the categorical slipperiness of Stowe’s repeated
invocations of the “real”; it can render invisible the work of a male sentimental
novelist and civil rights diehard like Albion Tourgée; and it can obscure our
understanding of the literary world these figures typified. The potential use-
fulness of an expanded concept of realism is attested by the fact that, since
Tompkins’s contribution, many scholars have briefly invoked the term in re-
lation to Stowe only to retreat from its implications. With the exception of
Gregg Camfield, who has long suggested the utility of a category of “senti-
mental realism” to describe much antebellum writing, few have been willing
to give the term extensive consideration.36 Typical of the way scholars have,
in the last decades, moved toward realist readings of Stowe, and suggestive of
the potential utility of pursuing this strategy farther, is Barbara Hochman’s
study of the kind of “imaginatively engaged reading” modeled by Uncle Tom’s
Cabin.37 Hochman offers an account of how Stowe raised the genre’s prestige
as a mode of social discourse by emphasizing its empirical commitments.
The kind of reading promoted by Stowe’s understanding of fiction was,
Hochman argues, bidirectional: “Stowe’s aim . . . was to turn the reader’s im-
agination inward, not to fantasy, but to emotional and spiritual depths, as
well as outward, to the world.”38 Cultivation of the capacity for self-​reflection
went hand in hand with the cultivation of common sense and an orientation
toward agency in the world. Both were important for raising the status of the
novel in the United States, overcoming a religious and republican nation’s
objections to the novel as secular entertainment.39 Hochman’s description
of this mode of serious, dual-​directional novel reading corresponds closely
to the definition of a modern realism classically offered by Erich Auerbach,
who identified realism in terms of the convergence between two literary
impulses: a “horizontal” impulse toward “fully externalized description,” and
a “vertical” impulse toward the discovery of deep, hidden, problematic or
transcendent truths.40 Hochman, however, shies away from labeling Uncle
Tom’s Cabin a “realist novel,” and in this her work aligns with a number of
recent studies examining connections between the novel’s increased lit-
erary prominence and its representation of contemporary society and social
 The Novel in the Era of Plessy 29

problems. One predictable consequence of this trend within the scholar-

ship has been the proliferation of subgeneric categories to describe fictional
works seriously engaged with contemporary social debates: “panic novels,”
the novel of purpose, national narrative, “reform fiction,” and so forth.41 The
naming and exploration of such subgeneric and extrageneric categories has,
no doubt, both its pleasures and its uses. Yet we also potentially lose some-
thing if we never connect the work of antebellum women writers to that
realism which was, after all, globally the most important and prestigious lit-
erary genre of the mid to late nineteenth century. And we lose something if
we do not consider the possibility that in the United States, as in Europe, re-
alism occurred across a “long” rather than a short historical moment.
Here the recent resurgence of interest in long histories of realism within a
global context may be instructive. Take, for example, Toril Moi’s reevaluation
of the relation between realism and modernism in the broader transatlantic
context. Realism, Moi argues, “is not one”: in the course of the nineteenth
century, Moi has observed, waves of movements that could be described as
“realist” swept across European and then global literatures.42 In Moi’s ac-
count, the plurality of realisms was connected at once to the complexity of
the emancipatory project and to the geographic diversity of situations in
which it was applied. Realism was associated, in the minds of many orig-
inal readers, with radical emancipatory movements—​ democratic, so-
cialist, antifeudal, antislavery, depending on local circumstances. And it was
reinvented as these movements succeeded or failed. Readers and writers
situated farther from the centers of literary production frequently experi-
enced these waves of innovation within realism not sequentially, but simulta-
neously. Realisms that were delayed in transmission lost but also, frequently,
gained in urgency and meaning by making their way abroad at a different
moment than that of their original articulation. Detached from their original
political context, globally migrant realisms became available for injection in
new controversies, allowing younger generations to reject realisms associ-
ated with the perplexities and disappointments of older struggles in favor of
new and apparently more radical forms. To restate this point in the pure for-
malism of Auerbachian terms: if nineteenth-​century realisms were defined
by their common commitment to external description and to the discovery
of deep, internal truths—​by their insistence that realism could articulate the
essential connection between these two dimensions of human experience—​
the divergence between different kinds of realisms could emerge not only
from different accounts of the empirical world, but also from changing
30 Legal Realisms

visions of that deep, internal experience which informed the seriousness of

the novel’s project.
The truth of human freedom, or unfreedom, may appear differently at
different moments, and demand different realisms. This fact is relevant to
the United States in Stowe’s time (1852), De Forest’s (1868), and Tourgée’s
(1896). Moi’s account of successive realisms accords with the reception his-
tory of Uncle Tom’s Cabin, which was published at a moment when no self-​
proclaimed “realist” movement existed in the United States, but which was
immediately recognized in France as exemplary of a movement then at the
height of its prestige.43 It also speaks to some of the reasons why the (glob-
ally) belated emergence of a “realism war” in America in the 1880s would be
accompanied by the rejection, on the part of a younger generation of writers,
of modes of realism practiced by Stowe and other American and British
authors of her generation, and by their championing of European realists
(ironically) of Stowe’s own generation. If De Forest felt the novel needed to
go beyond Stowe, it was not only because the emancipatory project seemed
to be complete once the troops mustered out and the Constitution was
amended; but also because, already in 1868, there were signs that emanci-
pation was incomplete. And if, in the thirty years after De Forest’s manifesto,
a sentimental realism was eclipsed by a perspectivalist one, it was because
the by-​then palpable failure of sentimental realism’s universalism led writers
not only to rethink the function of the “externalized description” of a literary
mimesis, but also to reconsider what kinds of deep, internal truths the novel
should explore.
This book takes a broad approach to the study of American literary re-
alism, addressing realism as a paradigm of public engagement and imagined
community that relied upon a set of interconnected notions of knowing,
feeling, and doing. Having begun with a consideration of the paradigm shift
along the North-​South axis defined by the work of De Forest, Thompson,
and Tourgée, the remainder of this chapter creates a frame for the following
chapters by exploring the push toward perspectivalism contrapuntally, in
terms of the interplay of concept and context. The transition from a sym-
pathetic realism to a realism of epistemological perspectivalism was both
political and extrapolitical at the same time, touching on almost every way
in which “truth” was defined in postwar America. The chapter will there-
fore consider articulations of the novel as an autonomous art against the
transformations in American intellectual and legal history that made the idea
of an “autonomous” novel thinkable. This exploration will take us to the work
 The Novel in the Era of Plessy 31

of the James brothers, William and Henry, and back to Albion Tourgée. The
James brothers are useful in telling this story because they represent, in very
pure form, articulations of the particularist and expressivist approach that
eventually won out. Tourgée is useful, on the other hand, for the way his dual
career as a novelist and lawyer demonstrates the messiness and complexity of
the paradigm shift. And Tourgée is also instructive because, as someone who
came out on the losing side of both literary and legal history, he has some-
thing to tell us about what disappeared alongside sentimental universalism.
I will end this discussion with Tourgée’s most famous legal defeat. I begin,
however, with Tourgée’s failure to defend Stowe as a realist, with the moment
at which he realized that if he was to uphold the emancipatory meaning of
her novel, he would have to do it on grounds other than that of the real.

3. The Sentimental Public, Social Despair, and

the Problem of “Concealment”

In the middle of Tourgée’s defense of Uncle Tom’s Cabin there appears a series
of criticisms of Stowe’s method, each centering on Stowe’s use of stock or ster-
eotypical characters. In its first iteration, Tourgée’s criticism reads as some-
thing of a feint, the kind of concession a litigator might make to highlight
the strengths of his case. On the question of stereotyping, Tourgée readily
conceded that Stowe’s divergence from the standards of modern realism were
manifest—​almost humorously so. For though Uncle Tom’s Cabin had once
been read as the most authoritative representation of Southern life, in ret-
rospect it was clear that none of her characters were “really” Southern in a
deep cultural sense. All of her characters in fact quickly disclosed their true
origins in a specific culture far from their nominal home. All were culturally
New Englanders—​New Englanders in speech, in conscience, in their propen-
sity for debate, in their tendency to interpret the world theologically: “Uncle
Tom was not only a Yankee in his love of speculation but a Quaker in meek
self-​surrender.”44
Tourgée, a Westerner by birth, was proud enough of his understanding
of the South that he seems to have enjoyed noting Stowe’s limitations in
capturing Southern culture. Yet he was quick to assert that the lack of cul-
tural verisimilitude did not constitute a defect in the novel or in Stowe’s so-
cial perceptions. On the contrary, he explained, her use of social “types” was
among the necessities of genius, for the deployment of universal types was
32 Legal Realisms

required to achieve her higher purpose, that of representing the universal

in man, the interdependence that constitutes society, and the injustice of the
Southern system. What the later era took as an awkward depiction of the
“cultures” of the South was in fact Stowe’s attempt to render comprehensible
their situation vis-​à-​vis the only horizon that mattered: that of emancipa-
tion. Stowe’s characters were not individuals at all, but representatives of
socially universal roles: the natural roles of Husbands and Wives, Sons and
Daughters, Sinners and Penitents, Buyers and Sellers of goods all constituted
one another across the whole of any society, and in their interaction they
constituted society itself. This fact was true of a healthy society, and it was
true, in a different way, of a society in which the unnatural roles of Master
and Slave overshadowed all the others. As Tourgée put it: “The master and
mistress as well as the slave, even the child of the dominant race, show in de-
gree according to temper and environment the scath of evil which spares not
the doer any more than the victim.” Stowe’s depiction of interconnected so-
cial roles revealed simultaneously the deep inner logic of the slave economy
and the way in which modern society was formed out of connections
among individuals living far from each other. By presenting the dynamic
interactions among types, Stowe was able to create a comprehensive world of
social knowledge—​a panorama of moral and immoral interaction extending
“from Kentucky to the Red River country, from Canada to New Orleans.”45
Stowe’s types were as necessary as compass points on a map.
Tourgée could thus defend Stowe’s superiority as a typological realist while
conceding, with some humor, how far off her empirical depictions had been.
If Tourgée laughed about the idea of Southern aristocrats searching their
souls in the manner of Bostonian Protestants, however, he was more hesi-
tant about the “blacked Yankees” she had put in the place of slaves, and the
criticism led Tourgée to a further meditation on whether Stowe’s method
had been adequate to the slaves’ experience. Reflecting on the difficulty of
maintaining agency in unfreedom, Tourgée wrote,

Perhaps the most striking characteristic of slavery was the secretiveness it

imposed upon the slave nature with regard to himself, his thoughts, desires
and purposes. To the slave, language became in very truth an instrument
for the concealment of thought, rather than its expression.46

Tourgée’s concern here was that the struggle for survival within slavery shaped
the very meaning and function of language, breaking the transparency of the
 The Novel in the Era of Plessy 33

signifier. And if it was part of the purpose of literature to express not just the
wrong of slavery, but the experience of unfreedom, the culturalist reading of
Stowe had merit insofar as the novel must also take up the challenge of what
was hidden in the life of the slaves, concealed even to themselves. In Tourgée’s
analysis, the word “concealment” carried a double meaning for slaves as well
as for the novelist depicting them. Like W. E. B. Du Bois’s concept of the veil,
articulated a year later, Tourgée’s notion of “concealment” captured at once
a sense of the damage done by slavery and of the resilience of slave culture,
pointing to a loss of public articulacy suffered by people in bondage and to
the way in which latent articulacy is driven underground. To be true to this
experience, to represent slave culture “in its own terms,” one would have
to conceive of a novel whose language and form were dedicated to a dual
task: that of revealing what slave language concealed, and of confronting the
reader with the fact of concealment—​which is to say, compelling the reader
to understand that certain elements of the slave experience could never be
understood from the outside, never recorded in a novel.47
Tourgée, having weighed the evidence, clearly felt as a lawyer and nov-
elist that Stowe’s commitment to universalism was worth the price she had
paid. But Tourgée was clearly troubled by the idea that her representational
universalism could actually distort reality. In a paragraph immediately after
his defense of her transparency and universalism, Tourgée turned back to
a personal anecdote about the untranslatability of life and suffering into
fiction. Tourgée related that while living in the South, he had Uncle Tom’s
Cabin read aloud to a number of former slaves, asking them thereafter what
they thought of the book. One “of the shrewdest and most thoughtful” of the
freedmen, he said, gave a striking response. Suggesting that Stowe must have
been Northern and known little about what it was like to be a slave, this old
man affirmed that Stowe had “left out the worst” aspects of slavery. He then
explained:

“I don’t s’pose you’ll understand, sah (’pears like no white man can), but the
worst thing ’bout slavery, in my jedgment, sah, was that it took away all the
ter-​morrers!”48

Neither Tourgée or the freedman appears to have doubted Stowe’s sincerity.

But novels are genres of experience that combine universality and particu-
larity, exteriorized description and internal truths. And here, in telling the
story of slavery as personal experience, something vital to the full truth
34 Legal Realisms

was missing. From this perspective, the essential horror of slavery was the
affective-​temporal rupture it produced: the way the slave’s lack of agency
created its own time sense, a world without tomorrows. Slavery stole not
just labor or even time but futurity: unable to control the present, the slave
experiences a kind of temporal crippling, a foreclosure of possible selves.
Tourgée saw the novel as a vehicle for pursuing the universality of man-
kind. Aware that Stowe’s appeals functioned by making the suffering of others
transparent, he saw danger in trying to incorporate a vision of an inner world
not translatable to a universal perspective. Tourgée could insist that, in 1852,
at least, the progressive choice had been to translate the meaning of slavery
into objective terms that all human beings could understand, and he could
suggest that it had only become possible to depict the subjective lifeworld
of the slave, independent of the master, after formal emancipation. Stowe’s
work represented a victory of concept over language, of communication over
expression, of universal truth over cultural interpretation. But did it repre-
sent a triumph of depth over surface, or the opposite? Forty years later, as
the historical moment of slavery receded but the world of incomplete eman-
cipation remained, Tourgée increasingly saw that there might be principled
reasons to represent opacity. Tourgée took care to have the freedman speak
in his own terms, in deep dialect, at once voicing his opinion and keeping his
distance, expressing doubt as to whether any white man (including Tourgée)
could truly understand. And Tourgée clearly recognized that the freedman’s
view was transformative of both Stowe’s realism and the possibility of realism
itself. Tellingly, it was at this moment in Tourgée’s defense of Stowe that he
switched his strategies. The freedman’s invocation of despair had convinced
him of the novel’s “non-​realistic character.”
When Tourgée expressed uncertainty about whether the novel could
include concealment without undoing universality, he was sensing the
weakening of the sentimental paradigm. Questions of literary realism pivot
on what categories of experience are deemed most essential, and on how
writers may authoritatively speak of these. To choose one mode of expe-
rience and authority is to preclude others. One marker of this shift taking
place within Tourgée’s own argument is that he resisted defending Stowe’s
realism in relation to the question of despair itself. He certainly could have
done so. Indeed, to take up the question of despair within Stowe’s realism
is see what originally led Uncle Tom’s Cabin to be recognized as a mode
of realism. Much has been written about the ways in which Uncle Tom’s
Cabin instructed its readers to “feel right” about the world, but the most
Another random document with
no related content on Scribd:
1.C. The Project Gutenberg Literary Archive Foundation (“the
Foundation” or PGLAF), owns a compilation copyright in the
collection of Project Gutenberg™ electronic works. Nearly all the
individual works in the collection are in the public domain in the
United States. If an individual work is unprotected by copyright
law in the United States and you are located in the United
States, we do not claim a right to prevent you from copying,
distributing, performing, displaying or creating derivative works
based on the work as long as all references to Project
Gutenberg are removed. Of course, we hope that you will
support the Project Gutenberg™ mission of promoting free
access to electronic works by freely sharing Project
Gutenberg™ works in compliance with the terms of this
agreement for keeping the Project Gutenberg™ name
associated with the work. You can easily comply with the terms
of this agreement by keeping this work in the same format with
its attached full Project Gutenberg™ License when you share it
without charge with others.

1.D. The copyright laws of the place where you are located also
govern what you can do with this work. Copyright laws in most
countries are in a constant state of change. If you are outside
the United States, check the laws of your country in addition to
the terms of this agreement before downloading, copying,
displaying, performing, distributing or creating derivative works
based on this work or any other Project Gutenberg™ work. The
Foundation makes no representations concerning the copyright
status of any work in any country other than the United States.

1.E. Unless you have removed all references to Project

Gutenberg:

1.E.1. The following sentence, with active links to, or other

immediate access to, the full Project Gutenberg™ License must
appear prominently whenever any copy of a Project
Gutenberg™ work (any work on which the phrase “Project
Gutenberg” appears, or with which the phrase “Project
Gutenberg” is associated) is accessed, displayed, performed,
viewed, copied or distributed:

This eBook is for the use of anyone anywhere in the United

States and most other parts of the world at no cost and with
almost no restrictions whatsoever. You may copy it, give it
away or re-use it under the terms of the Project Gutenberg
License included with this eBook or online at
www.gutenberg.org. If you are not located in the United
States, you will have to check the laws of the country where
you are located before using this eBook.

1.E.2. If an individual Project Gutenberg™ electronic work is

derived from texts not protected by U.S. copyright law (does not
contain a notice indicating that it is posted with permission of the
copyright holder), the work can be copied and distributed to
anyone in the United States without paying any fees or charges.
If you are redistributing or providing access to a work with the
phrase “Project Gutenberg” associated with or appearing on the
work, you must comply either with the requirements of
paragraphs 1.E.1 through 1.E.7 or obtain permission for the use
of the work and the Project Gutenberg™ trademark as set forth
in paragraphs 1.E.8 or 1.E.9.

1.E.3. If an individual Project Gutenberg™ electronic work is

posted with the permission of the copyright holder, your use and
distribution must comply with both paragraphs 1.E.1 through
1.E.7 and any additional terms imposed by the copyright holder.
Additional terms will be linked to the Project Gutenberg™
License for all works posted with the permission of the copyright
holder found at the beginning of this work.

1.E.4. Do not unlink or detach or remove the full Project

Gutenberg™ License terms from this work, or any files
containing a part of this work or any other work associated with
Project Gutenberg™.
 1.E.5. Do not copy, display, perform, distribute or redistribute
this electronic work, or any part of this electronic work, without
prominently displaying the sentence set forth in paragraph 1.E.1
with active links or immediate access to the full terms of the
Project Gutenberg™ License.

1.E.6. You may convert to and distribute this work in any binary,
compressed, marked up, nonproprietary or proprietary form,
including any word processing or hypertext form. However, if
you provide access to or distribute copies of a Project
Gutenberg™ work in a format other than “Plain Vanilla ASCII” or
other format used in the official version posted on the official
Project Gutenberg™ website (www.gutenberg.org), you must, at
no additional cost, fee or expense to the user, provide a copy, a
means of exporting a copy, or a means of obtaining a copy upon
request, of the work in its original “Plain Vanilla ASCII” or other
form. Any alternate format must include the full Project
Gutenberg™ License as specified in paragraph 1.E.1.

1.E.7. Do not charge a fee for access to, viewing, displaying,

performing, copying or distributing any Project Gutenberg™
works unless you comply with paragraph 1.E.8 or 1.E.9.

1.E.8. You may charge a reasonable fee for copies of or

providing access to or distributing Project Gutenberg™
electronic works provided that:

• You pay a royalty fee of 20% of the gross profits you derive from
the use of Project Gutenberg™ works calculated using the
method you already use to calculate your applicable taxes. The
fee is owed to the owner of the Project Gutenberg™ trademark,
but he has agreed to donate royalties under this paragraph to
the Project Gutenberg Literary Archive Foundation. Royalty
payments must be paid within 60 days following each date on
which you prepare (or are legally required to prepare) your
periodic tax returns. Royalty payments should be clearly marked
as such and sent to the Project Gutenberg Literary Archive
Foundation at the address specified in Section 4, “Information
 about donations to the Project Gutenberg Literary Archive
Foundation.”

• You provide a full refund of any money paid by a user who

notifies you in writing (or by e-mail) within 30 days of receipt that
s/he does not agree to the terms of the full Project Gutenberg™
License. You must require such a user to return or destroy all
copies of the works possessed in a physical medium and
discontinue all use of and all access to other copies of Project
Gutenberg™ works.

• You provide, in accordance with paragraph 1.F.3, a full refund of

any money paid for a work or a replacement copy, if a defect in
the electronic work is discovered and reported to you within 90
days of receipt of the work.

• You comply with all other terms of this agreement for free
distribution of Project Gutenberg™ works.

1.E.9. If you wish to charge a fee or distribute a Project

Gutenberg™ electronic work or group of works on different
terms than are set forth in this agreement, you must obtain
permission in writing from the Project Gutenberg Literary
Archive Foundation, the manager of the Project Gutenberg™
trademark. Contact the Foundation as set forth in Section 3
below.

1.F.

1.F.1. Project Gutenberg volunteers and employees expend

considerable effort to identify, do copyright research on,
transcribe and proofread works not protected by U.S. copyright
law in creating the Project Gutenberg™ collection. Despite
these efforts, Project Gutenberg™ electronic works, and the
medium on which they may be stored, may contain “Defects,”
such as, but not limited to, incomplete, inaccurate or corrupt
data, transcription errors, a copyright or other intellectual
property infringement, a defective or damaged disk or other
medium, a computer virus, or computer codes that damage or
cannot be read by your equipment.

1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES -

Except for the “Right of Replacement or Refund” described in
paragraph 1.F.3, the Project Gutenberg Literary Archive
Foundation, the owner of the Project Gutenberg™ trademark,
and any other party distributing a Project Gutenberg™ electronic
work under this agreement, disclaim all liability to you for
damages, costs and expenses, including legal fees. YOU
AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE,
STRICT LIABILITY, BREACH OF WARRANTY OR BREACH
OF CONTRACT EXCEPT THOSE PROVIDED IN PARAGRAPH
1.F.3. YOU AGREE THAT THE FOUNDATION, THE
TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER
THIS AGREEMENT WILL NOT BE LIABLE TO YOU FOR
ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE
OR INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF
THE POSSIBILITY OF SUCH DAMAGE.

1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If

you discover a defect in this electronic work within 90 days of
receiving it, you can receive a refund of the money (if any) you
paid for it by sending a written explanation to the person you
received the work from. If you received the work on a physical
medium, you must return the medium with your written
explanation. The person or entity that provided you with the
defective work may elect to provide a replacement copy in lieu
of a refund. If you received the work electronically, the person or
entity providing it to you may choose to give you a second
opportunity to receive the work electronically in lieu of a refund.
If the second copy is also defective, you may demand a refund
in writing without further opportunities to fix the problem.

1.F.4. Except for the limited right of replacement or refund set

forth in paragraph 1.F.3, this work is provided to you ‘AS-IS’,
WITH NO OTHER WARRANTIES OF ANY KIND, EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
ANY PURPOSE.

1.F.5. Some states do not allow disclaimers of certain implied

warranties or the exclusion or limitation of certain types of
damages. If any disclaimer or limitation set forth in this
agreement violates the law of the state applicable to this
agreement, the agreement shall be interpreted to make the
maximum disclaimer or limitation permitted by the applicable
state law. The invalidity or unenforceability of any provision of
this agreement shall not void the remaining provisions.

1.F.6. INDEMNITY - You agree to indemnify and hold the

Foundation, the trademark owner, any agent or employee of the
Foundation, anyone providing copies of Project Gutenberg™
electronic works in accordance with this agreement, and any
volunteers associated with the production, promotion and
distribution of Project Gutenberg™ electronic works, harmless
from all liability, costs and expenses, including legal fees, that
arise directly or indirectly from any of the following which you do
or cause to occur: (a) distribution of this or any Project
Gutenberg™ work, (b) alteration, modification, or additions or
deletions to any Project Gutenberg™ work, and (c) any Defect
you cause.

Section 2. Information about the Mission of

Project Gutenberg™
Project Gutenberg™ is synonymous with the free distribution of
electronic works in formats readable by the widest variety of
computers including obsolete, old, middle-aged and new
computers. It exists because of the efforts of hundreds of
volunteers and donations from people in all walks of life.

Volunteers and financial support to provide volunteers with the

assistance they need are critical to reaching Project
Gutenberg™’s goals and ensuring that the Project Gutenberg™
collection will remain freely available for generations to come. In
2001, the Project Gutenberg Literary Archive Foundation was
created to provide a secure and permanent future for Project
Gutenberg™ and future generations. To learn more about the
Project Gutenberg Literary Archive Foundation and how your
efforts and donations can help, see Sections 3 and 4 and the
Foundation information page at www.gutenberg.org.

Section 3. Information about the Project

Gutenberg Literary Archive Foundation
The Project Gutenberg Literary Archive Foundation is a non-
profit 501(c)(3) educational corporation organized under the
laws of the state of Mississippi and granted tax exempt status by
the Internal Revenue Service. The Foundation’s EIN or federal
tax identification number is 64-6221541. Contributions to the
Project Gutenberg Literary Archive Foundation are tax
deductible to the full extent permitted by U.S. federal laws and
your state’s laws.

The Foundation’s business office is located at 809 North 1500

West, Salt Lake City, UT 84116, (801) 596-1887. Email contact
links and up to date contact information can be found at the
Foundation’s website and official page at
www.gutenberg.org/contact

Section 4. Information about Donations to

the Project Gutenberg Literary Archive
Foundation
Project Gutenberg™ depends upon and cannot survive without
widespread public support and donations to carry out its mission
of increasing the number of public domain and licensed works
that can be freely distributed in machine-readable form
accessible by the widest array of equipment including outdated
equipment. Many small donations ($1 to $5,000) are particularly
important to maintaining tax exempt status with the IRS.

The Foundation is committed to complying with the laws

regulating charities and charitable donations in all 50 states of
the United States. Compliance requirements are not uniform
and it takes a considerable effort, much paperwork and many
fees to meet and keep up with these requirements. We do not
solicit donations in locations where we have not received written
confirmation of compliance. To SEND DONATIONS or
determine the status of compliance for any particular state visit
www.gutenberg.org/donate.

While we cannot and do not solicit contributions from states

where we have not met the solicitation requirements, we know
of no prohibition against accepting unsolicited donations from
donors in such states who approach us with offers to donate.

International donations are gratefully accepted, but we cannot

make any statements concerning tax treatment of donations
received from outside the United States. U.S. laws alone swamp
our small staff.

Please check the Project Gutenberg web pages for current

donation methods and addresses. Donations are accepted in a
number of other ways including checks, online payments and
credit card donations. To donate, please visit:
www.gutenberg.org/donate.

Section 5. General Information About Project

Gutenberg™ electronic works
Professor Michael S. Hart was the originator of the Project
Gutenberg™ concept of a library of electronic works that could
be freely shared with anyone. For forty years, he produced and
distributed Project Gutenberg™ eBooks with only a loose
network of volunteer support.

Project Gutenberg™ eBooks are often created from several

printed editions, all of which are confirmed as not protected by
copyright in the U.S. unless a copyright notice is included. Thus,
we do not necessarily keep eBooks in compliance with any
particular paper edition.

Most people start at our website which has the main PG search
facility: www.gutenberg.org.

This website includes information about Project Gutenberg™,

including how to make donations to the Project Gutenberg
Literary Archive Foundation, how to help produce our new
eBooks, and how to subscribe to our email newsletter to hear
about new eBooks.