Fugitive Performance: Negotiating Biopower and the Law in US Chattel Slavery

Home , Ellen and William Craft, Freedom suit

Lauren Heintz

American Quarterly, Volume 71, Number 3, September 2019, pp. 675-695 (Article)

Published by Johns Hopkins University Press DOI: https://doi.org/10.1353/aq.2019.0049

For additional information about this article https://muse.jhu.edu/article/734906

Access provided at 9 Oct 2019 03:29 GMT from University of Hawaii @ Manoa Negotiating Biopower and the Law in US Chattel Slavery | 675

Fugitive Performance: Negotiating Biopower and the Law in US Chattel Slavery

Lauren Heintz

This fugitive movement is stolen life, and its relation to law is reducible neither to simple interdiction nor bare transgression. —Fred Moten, “The Case of Blackness”

he Amistad Research Center in New Orleans houses a nineteenth- century court case concerning the question of slavery, states’ rights, Tfugitivity, and freedom. This 1810 trial, to my knowledge, has not yet received scholarly attention. The case, Margaret Aurelia Porter v. Reuben Reynolds (1810–12), has not made its way past the archival records into scholarship most likely because the file is incomplete—the outcome in the case remains unknown to us today.1 But this archival fragment still has a lot to tell us despite, or indeed because of, its missing court ruling: the court file has the lengthy, extant testimony of a formerly enslaved woman named Betty. In 1810 Betty is made to testify in court. She says that she has been free from the services of a white man named Stephen Porter for eleven years. Eleven years before, Betty ran away from Maryland and crossed the border into the free state of Pennsylvania, leaving all five of her children behind. Now, in 1810, three of her boys have run away too, and Porter wants his dues. He wants what he is owed for the runaways he cannot find. He wants money from the free person of color, Reuben Reynolds, who helped the boys get away. Twenty-four years before this court case is recorded, in 1786, Porter stole Betty, he didn’t buy her. He took her and confined her to his home, and in this home she had four children over thirteen years. She escaped, and now, eleven years later, her children have escaped. In her testimony she gives no information about how she made it out or about the location of her now fugitive children. She kept quiet on them, but she did not keep quiet on letting the court know that Porter took her from her former enslaver, that he stole her. Betty’s testimony is one extant part of the fugitive slave case Margaret Aurelia Porter v. Reuben Reynolds, whose archival documents number around fourteen

2019 The American Studies Association 676 | American Quarterly

handwritten pages. Yet this case remains difficult to interpret because we don’t know the outcome: we don’t know if Reynolds, the free person of color who helped the boys run away, is made to pay the Porters, who are suing him by invoking the 1793 fugitive slave law. While this case is an archival fragment, what remains of Betty’s testimony is enough to create a remarkable picture of a life construed by the messy contours and nearly unbelievable plotlines of what negotiating life while enslaved looked like. Betty’s words testify to the uncertain ways that life was adjudicated under such precarious terms of freedom, fugitivity, and so-called justice. Most of all, the incomplete case file forces the reader to set Betty’s words apart from how the court did or did not interpret them; instead, the reader must view Betty’s words on their own terms, even as they remain mediated and subjected to transcription. To read Betty’s narrative on her own terms is to approach her fugitive act (and fugitive scenarios like hers) from a different vantage point. This reorientation reveals how fugitivity simultaneously worked both within and against the structures of power that seek to silence and contain. I begin with a sketch of Betty’s narrative in part because I spend the clos- ing portion of this essay analyzing her case in further detail, but also because I believe her fugitive testimony provides the opportunity to stage two central questions for this essay. First, how can such archival subjects function less in our current moment as positivist representations and more as performative encounters; second, in the face of the unfolding biopolitical landscape of chattel slavery, what alternative forms of knowledge, power, and life do people like Betty provide? To respond initially, I take a cue from Alexander Weheliye’s text Habeas Viscus. Weheliye’s formulation is an intervention into the discourse of biopolitics and bare life. Habeas viscus is an assemblage of oppressed humanity, which “in contrast to bare life, insists on the importance of minuscule movements, glimmers of hope, scraps of food, the interrupted dreams of freedom found in those spaces deemed devoid of full human life. . . . Beyond the dominion of the law, biopolitics, and bare life they represent alternative critical, political, and poetic assemblages that are often hushed in these debates.”2 This article takes up such an assemblage of movements, glimmers, dreams, and poetics that constitute the life of oppressed humanity in slavery. In an important yet small distinction from Weheliye, I examine such everyday lived performances not as “beyond” the law or biopolitics but as performing within and through biopolitics to expose slavery’s systems of governance that seek to imagine, contain, and define the life of the enslaved. In The History of Sexuality, Michel Foucault’s introduction of two basic forms of power over life can and should be read as working in and through Negotiating Biopower and the Law in US Chattel Slavery | 677 the institution of chattel slavery, which, as Weheliye, Achille Mbembe, and others have argued, is a realm of early biopolitical experimentation. As Foucault outlines, the power over life is understood first as the “anatomy-politics of the human body,” which “centered on the body as a machine: its disciplining, the optimization of its capabilities, the extortion of its forces,” and second as the “biopolitics of population,” which regulated “propagations, births and mortality, the level of health, life expectancy and longevity.”3 The violent manipulation of the enslaved body as both laboring machine and reproductive agent were two central components that functioned as defining mechanisms of slavery. The extraction of labor from the propertied body of the enslaved and the particular method of population and racial control in the reproductive mandate that the slave follow the condition of the mother are unique facets of biopolitical labor and population tactics. While such “power over life” in Foucault’s account functions “to invest life through and through,” in slavery such power strips life through and through, creating a condition of social death. The same processes effect an opposing outcome. The key, then, is to consider, as Saidiya Hartman asks, “to what exercise of the will, forms of action, or enactment of possibility is available to animate chattel, or the socially dead” under these particular conditions of power over life?4 While people like Betty indeed craft an alternative worldview that in part moves beyond the law and biopolitics of chattel slavery, I argue in this essay for what I call “fugitive performance,” in order to sit with the trouble of being a biopolitical subject under slavery.5 By turning to underrepresented schol- ars in the field of biopolitics, such as Hartman, Stephen Best, and Daphne Brooks, I argue that in the biopolitical world of slavery in which the cultures of the enslaved meet the cultures of the enslaver, fugitive performance does not perform in strict opposition to the labored, reproductive, and racialized biopolitical tactics of enslavement; rather, fugitive performance is always an expression and rearticulation of the very tactics that create the conditions of subjected life.6 Fugitive performance, to draw from Daphne Brooks, “confronts and transforms slavery’s putative ‘social death,’ turning that estranged condition into a rhetorical and social device and a means to survival.”7 In other words, fugitive performance is not necessarily a radical departure from the status quo of biopolitical life in slavery; often fugitivity is a fantastic sublimation and sur- rogation of slavery’s biopower that keeps the enslaved person alive in a state of social death. Turning to fugitive performance highlights biopower through the crucial vantage point of the fugitive’s life, creating a worldview that circulates in a lexicon governed by gesture, performance, and the unpredictable. Working from within, then, fugitive performance paradoxically performs biopower in order to get out from under it. 678 | American Quarterly

In what follows I examine Mbembe’s formulation of necropolitics to situate how biopolitics emerges within chattel slavery. Moreover, Mbembe’s formulation of necropolitics as well as Foucault’s formulation of the “aleatory field” within biopolitics point to key concepts of performativity that further illuminate my understanding of fugitive performance as part and parcel of biopolitics. I then review what I believe are central historical and cultural doctrines of how biopolitics is deployed in slavery, namely, fugitive slave laws and fugitive codes in French colonial and US colonial slave society. I conclude the essay with a close reading of Betty’s narrative in Margaret Aurelia Porter v. Reuben Reynolds not only to put theories of biopolitical governance in direct conversation with the narrative of a fugitive slave but, more important, to insist that Betty’s narrative provides its own cutting theorization of biopolitics, a theorization that is itself fugitive performance.

Necropolitical Paradox as Fugitive Performative Practice

One overriding scholarly approach to understanding the life of the enslaved is to look, and rightly so, at the death function in slavery, namely, to mechanisms of torture that result in physical death as well as mechanisms of torture that result in what Orlando Patterson terms social death and natal alienation.8 To be situated in a state of “death-in-life” is what Mbembe has aptly termed necropolitics. Necropolitics is the condition of death under biopolitics that at times takes the form of letting die, of depriving certain racialized populations of life-sustaining conditions, and at other times takes the form of making die, of creating a state of exception that militarizes death in the name of the “life” of the privileged in power. While Mbembe’s essay “Necropolitics” charts death’s function in biopolitics as it relates predominantly to apartheid South Africa and the current militarized occupation of Palestine, Mbembe traces this “late- modern” necropolitical “state of siege” to the history of slavery and the plantation. As Mbembe states, “Any historical account of the rise of modern terror needs to address slavery, which could be considered one of the first instances of biopolitical experimentation. In many respects, the very structure of the plantation system and its aftermath manifests the emblematic and paradoxical figure of the state of exception.”9 The theater of violence that is chattel slavery ushers in a state of exception that is both experimental and paradoxical. The first paradox that Mbembe outlines moves between the notion that, on the one hand, the slave condition is one of extreme loss that results in “ab- solute domination, natal alienation, and social death.”10 On the other hand, the enslaved person is nevertheless one who is of value due to her property Negotiating Biopower and the Law in US Chattel Slavery | 679 and labor value. Taken together, slavery creates the condition in which a “commitment to protection becomes a guarantee of tyranny.”11 The tension between the extremity of physical, familial, and social death and the com- modity value of the life of the enslaved creates the paradoxical condition that Mbembe calls “death-in-life.” The death function of necropolitics is perhaps the part of Mbembe’s article that has received the most traction for the study of biopolitics in slavery (and as this special issue notes, this is already woefully undertheorized in biopolitical thought). Yet there is a second paradox that Mbembe offers that I believe actually gets us closer to looking at the life function of biopolitics in slavery and thus gets us closer to the type of lifeworld that a person like Betty was negotiating. This second paradox is what I unravel throughout this essay. Mbembe states that “the second paradoxical element of the plantation world” is that “ in spite of the terror and the symbolic sealing off of the slave, he or she maintains alternative perspectives towards time, work, and self,” through which “the slave nevertheless is able to draw almost any object, instrument, language, or gesture into a performance and then stylize it.”12 Significantly, this is the only moment in Mbembe’s essay in which he discusses the life and the actions of the subjugated. Mbembe does not give the same insight, for example, into the life actions of Palestinians that we are given of the life actions of the enslaved. Thus Mbembe’s language here is of key importance for a rethinking of biopolitics—of the management of life—as it emerged in New World slavery. Mbembe’s language of paradox, experimentation, alternative temporality, performance, gesture, and stylization directs us to a vastly unexplored lexicon of the “experimental” aspect of biopower in slavery that I suggest shifts focus from social death, natal alienation, and bare life to the performance of biopower on the part of the enslaved. As Mbembe suggests, the enslaved drew from the very environment of chattel slavery and manipulated such facets of this bare-life to create a performative, gestural, and stylized manner of living. As Kyla Schuller argues, this was a “negotiated biopolitics, one that worked within and modified structures” of chattel slavery “to move the mass of African Americans towards civilization and thus toward life.”13 Crucially, then, while Mbembe has articulated how the biopolitical death state called necropolitics emerged from slavery, there is a twinned emergence in which enslaved subjects negotiated and manipulated the sliver of biopower, of keeping alive, that existed in chattel slavery. These fugitive acts provide alternative perspectives that offer us a different worldview of how biopower functioned in chattel slavery. The fugitive stylized, manipulated, and negotiated biopower from below, for a different kind of performance and movement toward life that 680 | American Quarterly

is a reinterpretation of the physical and death-in-life condition that slavery meted out.14 This negotiation, manipulation, stylization, and gesture-life that moves within the folds of slavery’s biopolitics is an apt articulation of fugitive performance. In short, I suggest that the fugitive is the figure par excellence of Mbembe’s second paradox. The world that the enslaved person negotiated was a world undergoing the first stages of biopolitical experimentation. Biopower is beginning to coalesce in and through colonial slavery and settler violence in the sixteenth and sev- enteenth centuries, and in return the slave economy of the nineteenth century is one site of biopower’s experimentation. It is imperative to understand how those subjected to biopower negotiated it as well as manipulated it for their own means of moving toward life under the conditions of, for the most part, being left to die. If ever there was a document that outlined biopower as the grand experiment of chattel slavery, it is France’s Code Noir of 1685 and 1724, signed by Louis XIV and Louis XV, respectively.15 It is a gothic and terrorizing document that grants the extension of power to the will and “justice” of those citizen subjects of the French colonies to regulate the life and death of the enslaved. As Colin Dayan argues of the code’s paradox rather than its clarity, “We read sixty articles that take us into a chilling series of qualifications: prohibitions that permit, limitations that invite excess, and king’s grandiloquence that en- sures divestment.”16 In these codes, the management of the life of the enslaved is expressed as a bare limit point. Life is managed, and death might happen. Amid this fluctuation of unruly rules is one of the first codified ordinances for the regulation of fugitive slaves. I examine this article of the Code Noir knowing that its specificity as a French colonial document is meant to control enslaved people amid this population. Yet, as one of the earliest documents in the French colonial Americas, including Louisiana, for regulating slavery, I believe it provides an interesting precursor to US legislation that similarly managed the life of the enslaved. While this is by no means an exact or strict genealogy, setting the Code Noir in conversation with US fugitive slave acts invites a theoretical linkage of flashpoints calling attention to how biopower was practiced in slavery across the colonial landscapes of the Americas. Article XXXVIII of the 1685 Code and article XXXII of the 1727 Code use the exact same language. Each declares that a fugitive slave, “L’esclave fugitif,” who has escaped for a month will have his ears cut off and will be branded with a “Fleur-de-Lys” on the shoulder; if he escapes for a second month, he will have his hamstring cut and his other shoulder will be branded with the fleur-de-lis; and on a final third attempt, he will be punished to death.17 This detailed litany of corporeal punishment, what Hortense Spillers calls “high Negotiating Biopower and the Law in US Chattel Slavery | 681 crimes against the flesh,” is slavery’s condition of death-in-life.18 The life of the fugitive is thus managed such that he is kept alive even if branded, and it is only at the limit point of a third offense that making die can and should happen. Alongside this bodily defamation, the temporal regulation marks the crime of fugitivity less in the escape itself than in the duration of the escape—the fugitive is punished if gone for one month, or a second month, or a third. The longevity of escape is most threatening because of a loss of labor value, a loss of work productivity alongside the threat of the loss of the enslaved herself. Interestingly, the three articles that precede this article ruminate on the act of theft, an act that can be read as congruous with fugitivity. In the Code Noir, the theft (“les vols”) of food items such as cheese, poultry, grains, or legumes is punishable by branding with the fleur-de-lis. Importantly, the word for theft in French is voler (written above as vol), which also has the multiple meanings of to fly, to take flight, and to steal. Thus, theft, flight, and stealing are all compounded in the French verb voler, in which fugitive flight takes on the same meaning as fugitive theft. In the codes, the corporeal punishment for theft and flight are aligned such that both the linguistic description of and the bodily punishment for theft and flight make these actions analogous. In sum, the article concerning “l’esclave fugitive” comes on the heels, quite literally, of the fugitive act of theft. By reading fugitive escape in tandem with the act of theft as it is laid out in the Code Noir, we come to better understand the history of fugitivity as it is legally marked as an act of stealing labor, an act of theft, rather than solely as an act of rebellious defiance against the will of the enslaver. Putting the French Code Noir in conversation with US doctrine on the legal governance of the enslaved, I turn to the first US federal legislation concerning fugitive slaves. Signed by George Washington in 1793, the “Act of Congress of 1793, An Act Respecting Fugitives From Justice, and Persons Escaping From the Service of Their Masters,” uses the phrase fugitive from labor, which is echoed again in the more often discussed Fugitive Slave Act of 1850, to describe fugitive slaves. In this sense, fugitive slaves get folded into a parallel category of other bonded laborers who are not subject to chattel slavery. As such, fugitive slaves as “fugitives from labor” are interpolated as willful “persons.” The act states: “That when a person held to labor in any of the United States . . . shall escape . . . the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor.”19 While these linguistic changes mark an important rupture between the French Code Noir and the US congressional acts, I believe that a trace of the dual invocation of “theft and flight” in the French meaning ofvol is perhaps 682 | American Quarterly

carried over in this shift from fugitive slave to fugitive from labor. The clause “fugitive from labor,” in Best’s analysis of it, creates a “figuration of the fugitive as one who has reneged on a promise to provide his labor,” and thus the condition of the fugitive slave is a condition of debt (“service may be due”). The labor owed is the fugitive’s “theft of his property in himself.”20 In short, just as the enslaved can steal property such as grain or “legumes,” so too can the slave steal himself, hence the popular phrase for a fugitive is one who has stolen-away, or who will steal-away.21 The crime of fugitivity is a crime of stealing one’s indebted labor as is manifested in the body of the enslaved. If the fugitive slave as well as the enslaved who steals property (both of which are fugitive acts) are subjects of and subjected to the biopower of the Code Noir, the Fugitive Slave Act, and various other codes, laws, and surveillance mechanisms of chattel slavery, then in what ways does the “fugitive from labor” perform such a case? In other words, how does the fugitive stylize the biopolitical language and the stated prohibitions of the fugitive slave law for her own performance? I suggest that the linguistic substitution of “fugitive slave” for “fugitive from labor” is exploited and manipulated by those taking flight. It is this legal, linguistic slip of the tongue that gets folded into fugitive performance and stylized as a means of escape. While the common conception of fugitivity is often aligned with clandestine and secretive escape, fugitive escape also took a form that looked nothing like escape, but rather like someone laboring away, like someone in a liminal temporal state who is always on the verge of delivering her promise to pay a debt. I turn now to a long passage from the novel Clotel (1853) by the fugitive slave William Wells Brown for an apt example. Brown’s novel Clotel is about fugitive escape and the fugitive’s ties to the utmost realms of power in the United States, namely, the White House. Brown’s novel collapses the story of Sally Hemings and the fugitive escape of Ellen and William Craft. While Brown spends much time on the highly performative escape of the Crafts—in which Ellen passes as a white male planter (Mr. William Johnson, her “embodied avatar” in McMillan’s words)22 and William performs as her/his devoted slave—there is a more-unremarked-on scene in which Brown details common practices of fugitive escape.

A slave was one day seen passing on the high road from a border town in the interior of the state of Virginia to the Ohio river. The man had neither hat upon his head or coat upon his back. He was driving before him a very nice fat pig and appeared to all who saw him to be a laborer employed on an adjoining farm. “Where do you live, my boy?” asked a white man of the slave, as he passed a white house with green blinds. “Just up de road sir,” was the Negotiating Biopower and the Law in US Chattel Slavery | 683

answer. “That’s a fine pig.” “Yes, sir, master likes this choat very much.” In this way he and the pig travelled more than fifty miles before they reached the Ohio river. . . . A few weeks later, and, on the same road, two slaves were seen passing; one was on horseback, the other was walking before him with his arms tightly bound, and a long rope leading from the man on foot to the one on horseback. “Oh, that’s a runaway rascal, I suppose,” said a farmer, who met them on the road. “Yes, sir, he been runaway, and I got him fast.” . . . “You are a trustworthy fellow, I imagine.” And the slaves travelled on. . . . They called this “ride and tie.” After a journey of more than two hundred miles they reached the Ohio river, turned the horse loose, told him to go home, and proceeded on their way to Canada.23

Each scene frames fugitivity as a cunning rearticulation of fugitive slave law. If a fugitive is one who has stolen his own labor, one who is a “fugitive from labor,” then in many ways Brown folds this legal phrase into his first runaway scenario. The man driving the pig up the road “appeared to all who saw him to be a labourer.” In a stylized, linguistic performance of the language of the law, the “fugitive from labor” who drives the pig up the road is simultaneously a laboring fugitive. He is left in a temporal suspension in which he might just deliver on his promise to gift his labor of pig driving to his owner. The theft of the pig and the theft of the laboring body perform in tandem to manifest the very real action of labor as the continuous future deferral of delivering one’s labor. The second act of “ride and tie” goes a step farther as the fugitives make openly known their fugitive status. By performing their fugitivity outright, they parody the language of the fugitive slave act. The various white people who stop, question, and surveil them on the road are, at the same time, end- lessly awaiting the return of stolen labor, of the “runaway rascal.” Through the performance of “ride and tie,” each man performs the part of fugitive from labor as each man performs the part of the enslaved laborer delivering his promise to return stolen labor. Their dual, incommensurable embodiment conjures up the law at the very moment that it defies it.24 Their actions are as predictable as they are cunning: the performance of labor—driving pigs and fugitives up the road—is the method of escape. Thus the fugitives walk toward life through the very form of a laboring act that otherwise marks them as socially dead. These fugitive performances are performances that, as Ann Stoler states, “take the form but not the content and valence of that which they are opposed as they are usurped from within.”25 Their performance takes the form of biopower in slavery, of the management, control, and extraction of labor from the body of the enslaved and the population control tactics of surveillance, yet their performances at the same time reinvent the content of biopolitical governance. The meaning of being a slave, a laborer, a fugitive from labor, and a laboring fugitive all collapse and blur, leaving each open to endless reinterpretation and reinvention. 684 | American Quarterly

These fugitive acts are performances in the manner that Saidiya Hartman defines performance within the frame of enslaved subjection. Hartman is careful to neither laud performance as an expression of uninhibited agency nor subsume performance into the realm of total subjection. Of performance Hartman states, “In contrast to approaches that foreclose performance in the troubled frame of autonomy, arrogating to the enslaved the illusory privileges of the bourgeois subject or self-possessed individual, or performance as evidence of the harmonious order of slaveholder hegemony and the slave’s consent to that order, or performance as a reprieve from the horrors of the system, what is considered here are precisely the ways in which performance and other modes of practice are determined by, exploit, and exceed the constraints of domination.”26 Hartman clears away the terrain of what performance is not—an expression of autonomy, self-possessed individualism, hegemony, or consent—to make clear that performance is an expression of and is determined by the conditions of biopower in slavery. Significantly, performance is always about a coalesced expression of subjected life. Yet as an expression of life under biopolitics, it is necessary to know that any lived performance springs from the condition of how life gets manipulated in slavery. To imagine that fugitive performance in slavery can congeal out of any other social stratagem than this is illusory. Fugitive performance is necessarily an exploitation of the biopolitical management of slave life such that fugitive performance calls attention to the unruly excess that exists in the experimental folds of chattel slavery. Hartman’s definition of performance in slavery draws close, I suggest, to what Foucault calls the “aleatory field” within biopower. The aleatory field is, according to Foucault, “the random element inherent in a population of living beings” around which security mechanisms must be installed.27 The aleatory is the contingent, chance event that points to the “variations” in a population that the security state attempts to predict, maintain, and control. It is both a future contingency as well as a present threat. As Foucault goes on, “The disciplinary order of the body and the aleatory events . . . occur in the biological municipality.”28 As such, the aleatory field is not something that exists outside biopower; rather, the disciplinary mechanisms at work to order the body, such as labor control and population control, exist in the municipality alongside the aleatory, or “random elements” of a population that fall outside that very biopolitical disciplinary order. I suggest that the fugitive is that random element inherent in slave society; the fugitive articulates and anticipates the aleatory field as she cuts off into the adjacent field, up the road, toward the swamp, threatening revolt, or driving a pig up the road. Fugitivity is the performance of the aleatory, uncertain, and unpredictable action of resistance, running away, or ride and tie. Negotiating Biopower and the Law in US Chattel Slavery | 685

While the Oxford English Dictionary first defines aleatory as that which is “dependent on uncertain events or occurrences; haphazard, random,” the second definition of aleatory relates to the performative: “of music, art, etc.: created, composed, or performed according to a chance process; employing or including random elements.” Echoing and circling back to Mbembe, the fugitive depends on gestural and stylized performance. Through fugitive performance, those who were enslaved use the fungibility of biopower’s aleatory field as a way to create alternative lifeworlds within chattel slavery. Performing this unruly excess is the modus operandi of the fugitive slave. To be fugitive is to be in violation of a law that denies human agency even as it reprimands a willful act; to be fugitive is to steal the self that has already been stolen; to be fugitive is to be in debt to something that was never agreed on; to be fugitive is to linger on the temporal edge of a promise that is also always a threat; to be fugitive is to be the unpredictable within the predictable; to be fugitive is a paradox.

“Betty Sayes”: The Case of Margaret Aurelia Porter v. Reuben Reynolds

To engage in fugitive performance is to perform the means of biopower for a different end. The fugitive slave, or the fugitive from labor, incites a lifeworld that is a simultaneous expression and manipulation of the language of fugitive slave law. The fugitive stylizes the paradoxical language of the Fugitive Slave Act, which seeks to contain a willful subject devoid of will, a socially dead person who engages in sociality, a body owned that steals herself away. Amid these contradictory conscriptions is where the fugitive seizes on a life that has otherwise been subjected to death. I now turn to the early nineteenth-century fugitive slave case with which I opened this essay. This case exemplifies how the fugitive performs the language of the law within the legal domain of the court. The case, Margaret Aurelia Porter v. Reuben Reynolds, is a fraught inquiry into the language of theft and debt as it rubs up against fugitive performance. Through a close reading of the narrative given by an ex-slave named Betty, I suggest that Betty’s narrative and the attendant testimonies and case files in the archive circulate within the language of debt and theft in a way that reconstitutes the legal figuration of fugitivity. Margaret Aurelia Porter v. Reuben Reynolds (1810–12) is an archival fragment that frustrates as much as it intrigues. The impeccably preserved fourteen handwritten documents, which include subpoenas, depositions, testimonies, and personal correspondence, are held at the Amistad Research Center at 686 | American Quarterly

Tulane University.29 What the folder at the Amistad Center does not have, however, is the outcome and the ruling of the case. Two white landowners of Maryland, Margaret Aurelia Porter and her father, Stephen Porter, sue Reuben Reynolds for $1,500. Reynolds is a free man of color from Pennsylvania who the plaintiffs accuse of harboring and aiding three young fugitive slaves, Caesar, Emmanuel, and George.30 The Porters invoke the Fugitive Slave Act of 1793, which makes aiding or harboring “fugitives from labor” a finable offense. On the back of a lengthy narrative given by a formerly enslaved woman named Betty, it is written, “Relating to Stephen Porters suit / The Mother of the boys / Bettys narrative / The papers in this bundle relate principally to a suit with S. Porter / which has been determined.” That final phrase, “which has been determined,” is in different ink, different handwriting, most likely written at a later date when the case was closed. In the bundle of papers there is a sub- poena to appear before the Supreme Court, but there is no Supreme Court record. We do not know, then, how the Third Circuit Court of Pennsylvania decided the case, or if the Supreme Court ever heard the case. What we do know, however, is what Betty said, what the mother of the runaway boys in question decided to tell the court.31 Betty’s narrative is a remarkable piece of archival history and legal theory, and for this alone, the fragments in the historical record force the reader to look to her narrative with an eye that does not hold sacred the law and the legal decision as the arbiter of truth or as the primary site of usable knowledge. Instead, the absence of a legal decision forces the reader to take Betty at her own words, to look toward the same horizon that Betty did, toward an elsewhere in which the law was and could never be the end goal.32 Reading Betty’s narrative, absent of any other information about her life, is to confront, as Hartman says, “a story predicated upon impossibility—listening for the unsaid, translating misconstrued words, and refashioning disfigured lives.”33 Dwelling in the fragments of the archive might be a closer way to understand the fragmented nature of the experience of the law by people who were considered fragments in the biopolitical sphere of slavery. Betty’s two-page, potentially misconstrued, definitively mediated narrative to the court is a type of life story, and specifically a biography in the skeleton form of a slave narrative. I approach Betty’s narrative as both a theory and a performance of fugitivity within the biopolitical world of chattel slavery. To read her narrative as theory “is to credit subjugated knowledge as an important and valuable source of theory itself—not as raw data to be worked over.”34 In this regard, I am not interested in figuring out exactly how Betty escaped and why, or what her exact status is at the time of the testimony, or why she is made to testify about her life when Negotiating Biopower and the Law in US Chattel Slavery | 687 the case is about her children who escaped eleven years after her own escape. This is in part because the archive does not offer such a luxury of information. Rather than disregard her testimony due to the fragmented life that the archive offers, Betty’s narrative can instead provide an important theorization of fugitivity that works within and in excess of the biopolitical and legal frameworks that would otherwise seek to contain her or dismiss her. As Karla Holloway argues, her narrative is a prime example of how “blacks reconstitute their own bodies within the same law that had dismembered them.”35 In telling her story to a court that most likely does not legally legitimate her words, Betty is not offering truth to the legal arbiter of truth, but she is offering another kind of truth telling that gives life to her narrative under the auspices of the same legal authority that uses slavery’s state of exception to render people socially dead. Her narrative thus throws the predictability of the court off the rails such that her wayward narrative reorients the otherwise orderly court structure toward the voice of the enslaved person or the ex-slave. Betty’s act of telling her narrative to the court is fugitive performance. Her words are the rogue field laying a different groundwork for the legal and archival terrain. Unlike the five other witnesses in the case who adhere to the same set of interrogatory questions asked by the court, Betty’s statement is free form. Via a document titled “Negro Betty’s narrative,” her opening line reads akin to a slave narrative: “Betty sayes she was born in Trenton New Jersey in the family of Elizah Bond.”36 Betty was sold from Elizah Bond to Thompson Neal, then to Jacob Phillips, then to Benjamin Brearley. She lived with Brearley for three years at which time Brearley rented a mill from Stephen Porter (the plaintiff’s father). Brearley and Betty lived at this mill site in Maryland for three more years. Brearley sold Betty to Robert Barr in 1786. Robert Barr planned to move to Kentucky with Betty, and during this planned move, “Barr was overtaken at Yorktown by Stephen Porter who took Betty and the other blacks from him and put them in prison, in the night S Porter took them out of prison.” Im- mediately after Porter “takes” Betty, an attorney for Brearley places Betty with John Knight and then George Hammilton. Porter then takes Betty again and brings her and her child to an in-law’s house in Peach Bottom, Pennsylvania, a free state, for nearly nine months (“until the potatoes were gathered and the corn topped in the fall”). Porter then takes her and her child to his own house in Maryland and “kept her confined in his house two or three months.” Betty concludes her narrative by saying, “after living with him [Porter] several years she ran away and has been from his service about eleven years. While she lived with S Porter she had five children four boys and one girl, one boy S Porter sold three has run away and the girl he holds as a slave.” 688 | American Quarterly

Figure 1. “Negro Betty’s Narrative,” Margaret Aurelia Porter v. Reuben Reynolds records, 1810–1812, Folder 3 Item 6, Amistad Research Center.

While we may presume that Betty was perhaps never asked the interrogatory questions established by the court, Betty’s narrative nevertheless provides keen insight into the first question posed by the court for witness deposition: “Do you know whether the plaintiff [Porter] owned and held to service, and when, three coloured boys, named Caesar, George, and Emmanuel? To whom did said boys formerly belong, and how did said Plaintiff’s title to them ac- crue? Do you know of any deeds or other papers proving said titles?” This Negotiating Biopower and the Law in US Chattel Slavery | 689 line of questioning, about whether the Porters ever actually owned the “three coloured boys,” depends, I suggest, on Betty’s slave or free status at the time that they were born. We know that when Betty was taken by Porter, she had one child, and “while she lived with S Porter she had five children,” thus four were born while she was “in his service,” a service that most likely was a form of sexual slavery. Under slave law, children follow the condition of the mother to determine whether they are born enslaved or free. The status of the fugitives Caesar, George, and Emmanuel depends on whether Porter owned Betty as a slave. In short, can Caesar, George, and Emmanuel, and perhaps even Betty, be considered fugitives from labor if they were never legally held to service by Porter in the first place? What if they were never born into the enslaved condition that at one point in time marked their mother? According to Betty, Porter took her from Barr and Hammilton—Porter did not buy her from them. Not only did Porter steal her and her child from two different owners, he stole them and took them to the free state of Pennsylva- nia. Before Dred Scott and under the Fugitive Slave Act of 1793, this action of bringing an enslaved person into a free state without claim to title would make that person free. Reynolds, the defendant in the case who helped the boys escape, seems to come to the same conclusion. In a letter written to his friend William Master in Philadelphia, Reynolds ends the letter by saying, “In respect to the mother of them boys that left Porters being a free woman at the time they were born.” Reynolds understands the weight of Betty’s status when she gives birth to her children; her status is their status. Another witness named Mr. Cann, who aided Reynolds with the escape of the three boys, tells us that Brearley, who sold Betty to Barr for “100£,” was in fact “in arrear with his rent” at Porter’s mill. He goes on to say that “Porter followed them and seized Betty and took her back to Maryland where she was sold with Brearley’s other property for payment of the rent when Porter became possessed of her.” This testimony situates Betty within the scenario of collateral, that she is taken in exchange for the debt or the “arrears” that Brearley owes to Porter. Betty’s status is thus liminal and unclear, blurred somewhere between the lines of being once owned, then stolen, then held as collateral, then removed into a free state, and then confined in Porter’s home against her will. Betty’s narrative as well as the witness testimony all circulate within the language of fugitivity highlighted in this essay—of debt, theft, and labor. Betty’s narrative stylizes and reconstitutes this language as an idiom that means something entirely different from the biopolitical premise of a body imbued with (already stolen) labor. These documents spin these words out to their 690 | American Quarterly

fullest extent such that they take on new meaning. Reynolds situates Betty’s status within the language of freedom, and Mr. Cann situates Betty’s status within the language of debt. It is Betty’s narrative that forces us to see these two seemingly incommensurable conditions—freedom and debt—as precisely the attendant conditions of fugitivity. While fugitivity is an aspiration toward freedom, or flight to an elsewhere, it exists alongside the legal understanding of fugitivity as a type of debt, theft, and stealing away. The remarkable cir- cumstance about this case, however, is that Betty’s narrative is able to pin the language of debt, theft, and stolen labor that normally would attach to the body of the enslaved person onto the body of the enslaver, namely, Porter and Brearley. If to be fugitive is to be in the condition of one who “has reneged on a promise to provide his labor” and thus the fugitive is one who is in debt of herself, then the moment when Betty is stolen, when her body is thieved as a way to absolve another man’s arrears, is the moment that she is made fugitive through a fascinating (re)arrangement of the language of fugitive slave law. The trick is that Porter initiates her fugitivity. Betty’s cunning performance seizes on this fugitive status to absolve her from her slave status. Let me clarify how Betty’s fugitive performance and her narrative before the court arrives at such a rearticulation of biopower. Porter’s theft of Betty makes material and puts into bold relief the theft of bodies within slavery. As discussed previously, what is repressed by the Fugitive Slave Act is the fact that to enslave someone is already to steal a body and to steal a body’s labor. In return, those who are said to be fugitives from labor have already been stolen, their bodies and their labor are always already fugitive, creating a “double gesture that play[s] on the meaning of theft.”37 When Porter steals Betty, suddenly the court must confront the theft of a body that already exists as property under slave law, rather than the theft of a body that will become property. This is a fugitive slave case that is being adjudicated based on fugitive slave law, yet it creates a crisis on a definitional scale due to the inability to determine proper legal titles of the people in question: Porter may or may not be a legal owner, and Betty and her children may or may not be legally owned. Betty thus capitalizes, literally, on this indeterminacy that is riddled in the language of theft, debt, and property. She is twice stolen (first by becoming a slave and second by Porter), and thus when she steals herself away, she moves into an exponential degree of fugitivity. She performs the excess condition of having already been twice stolen. This double-theft turned triple-theft is Betty’s performance and stylization of the paradoxical and experimental aspects of biopower. The stealing away of a slave who has been twice-stolen is the unpredictable. It is precisely this unpredictable, aleatory, and experimental state that Betty recognizes as the cut or the Negotiating Biopower and the Law in US Chattel Slavery | 691 opening toward her escape. He stole her, so she steals away. This is the gap in the fence that she runs through. It is the gesture that she makes her own. As if this case could not seem more complex, another layer is added when researching Porter’s own background. I located a portion of Porter’s biography as it is laid out in The History of Cecil County, Maryland (1881). Here we learn that Porter owned a hundred acres of land in Maryland and was “a lawyer of some distinction.”38 In 1784 he was caught up in an infamous legal battle. Porter employed a man named Thomas Dunn at his mill. After the harvest was over, Dunn claimed that Porter owed him money. Porter disputed this and got into a fight with Dunn. Interestingly, the mediator of this fight is Brearley, Betty’s formal owner and occupant of the mill on Porter’s property. The fight over the debt ends gruesomely, as Porter stabs and kills Dunn with a bayonet. Porter was convicted of murder, jailed, and made to turn over all his property to the state (although eventually his wife was given this property).39 “Some time after Porter was imprisoned, some of his friends . . . visited the jail, taking with them a supply of whiskey, with which they succeeded in making the jailor drunk,” and busted Porter out of prison.40 As an escapee, he was tried again and convicted of manslaughter, and was made to pay a steep fine. Porter’s property is detailed as follows: “One plantation of two hundred acres with one merchant mill £700, one mare one horse and two colts, three cows, two small hogs £1 5s, six or eight sheep £2 5s, sundries and household furniture £50; total £782 10s.” Importantly, Porter’s property does not consist of any enslaved people. But Brearley owned Betty, and Betty very likely was a witness to all of this. While the historical entry on Porter in The History of Cecil County already reads like a sensational novel, it is only made more remarkable when combined with Betty’s narrative. Given that Porter’s murder trial happened in 1784, it is perhaps no coincidence that Porter first steals Betty in 1786 because he claims Brearley owes him a debt, the same Brearley who is the mediator over the other debt dispute between Porter and Dunn. Porter was just made to pay a steep legal fine and busted out of prison on a manslaughter case, and was in a precarious state with his property. Porter’s claim that Brearley owes him money is therefore made dubious under these circumstances, and, moreover, the theft of Betty reads as a desperate, nefarious attempt to obtain property. Within this tangle of manslaughter, debt, theft, and prison breaks, Porter himself has achieved the status of being a “fugitive from justice.” The 1793 Fugitive Slave Act is, we must remember, titled “An Act respecting Fugitives from Justice, and persons escaping from the service of their masters.” As Best 692 | American Quarterly

argues, “The fugitive slave, who, like his or her legal analogue (the fugitive who flees from justice), willfully eludes obligation.”41 When Porter willfully eluded his prison obligation by getting the jailer drunk, busting out of jail, and becoming a fugitive from justice, he stole Betty and made her his legal analogue, a fugitive from labor. The two figures double back on each other. Remarkably, Betty’s fugitivity thus derives from Porter’s fugitivity. She stylizes and refigures the very source of power that seeks to own, contain, and manipulate her body. Betty’s fugitivity thus takes the form of her twice-stolen theft, of being shuffled from one person to the next without legal or propertied discretion, of being transported from Maryland to Pennsylvania, to Maryland, and finally back to Pennsylvania—this last move on her own accord. Significantly, her act of stealing away derives directly from the biopower of slavery that would otherwise make her live for Porter’s own sexual abuse. Betty’s fugitivity expresses a condition of life and living that exists in an alternative temporality that was nevertheless created by the biopolitical state of exception on Porter’s plantation. In her narrative, when she tells us that Porter took her, this description is a marked break from the litany of people she lists as having once owned her. In short, her fugitive performance is an expression of a curious condition of having been stolen yet of not being owned. It is Betty’s brilliant recognition of this indeterminate condition that allows her children to follow her, to follow her condition into something that might be freedom. Betty thus revises the biopolitical regulation of enslaved populations that uses the racial mandate of following the condition of the mother such that the labor of birth produces a new population of enslaved people. Here, Betty’s labor of giving birth under the violent conditions of rape is also framed by the indeterminate condition of having been stolen. Giving birth under these conditions is of course violent, but Betty’s indeterminate status provides one opportunity for her to manipulate the otherwise strict and clear population control of children born under the laws of slavery. In short, when her children run away they are following the indeterminate condition of the mother. Betty and her children move into the alternative temporality and geography of going backward yet forward to the free state of Pennsylvania. To conclude, I want to circle back to the epigraph from Fred Moten that opened this essay: “This fugitive movement is stolen life, and its relation to law is reducible neither to simple interdiction nor bare transgression.”42 Fugi- tive performance is an articulation of the disarticulation of biopower, giving language and meaning to stealing away in an effort to put life back into stolen life. It is a performance of the language of fugitive slave law in a constant deferral of fugitive slave law. It is a performance of “ride and tie” that will loop Negotiating Biopower and the Law in US Chattel Slavery | 693 back on itself over and over again to the extent that labor is performed just as labor is deferred. For Betty, it is the performance of a biopower that steals your labored reproduction to keep you alive for another’s will, so you steal away to keep yourself alive for your own will. Betty negotiated her lifeworld in such a way that always had to consider the biopower of chattel slavery—labor extraction, bodily manipulation, regulated sexual reproduction, and racialized population control—as the means by which she had to reconstitute her life. What’s more, Betty is not seeking redress or a guarantee of freedom from the court. This might be the language of abolition, but it is not and could never be the language of Betty’s narrative. The language of Betty’s narrative takes us into another lifeworld that manipulates biopower to such an extent that it perhaps becomes unrecognizable. Betty invokes the same lexicon of fugitivity—theft, debt, and labor—and stylizes it to create a performance of fugitive escape into what might be freedom and what might become freedom for her children. Of that we can never be certain.

Notes I would like to thank Christopher Harter and Chianta Dorsey of the Amistad Research Center. I would also like to thank Tulane University’s English Department as well as the Mellon Foundation, whose support allowed for this research from 2015 to 2017. Finally, thanks go to Bernadine Hernández, Viviana Macmanus, Sara Mameni, and Mairead Sullivan, who gave insight into this project. 1. Margaret Aurelia Porter v. Reuben Reynolds records, Amistad Research Center, New Orleans, Louisiana. 2. Alexander Weheliye, Habeas Viscus: Racializing Assemblages, Biopolitics, and Black Feminist Theories of the Human (Durham, NC: Duke University Press, 2014), 12. 3. Michel Foucault, An Introduction, vol. 1 of The History of Sexuality (New York: Vintage Books, 1990), 139. 4. Saidiya Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America (Oxford: Oxford University Press, 1997), 55. 5. Janet Neary also uses this phrase in her exceptional book, Fugitive Testimony. Neary defines “fugitive performance” as “a multivalent term, which both names an archive and indicates a line of inquiry. Fugitive performance refers to the narrative, oratorical, and theatrical performances of fugitives from slavery; draws attention to the fugitive meanings within those performances, those aspects that contest, complicate, or are in excess of the editorial, theatrical, and political constraints that were the performers’ conditions of production; and captures the ephemeral nature of performances that by definition live in time and perish” (Fugitive Testimony: On the Visual Logic of Slave Narratives [New York: Fordham University Press, 2017], 131). 6. See Hartman’s theorization of “performing blackness,” which entails “enactments of white dominance and power, and the reiteration and/or rearticulation of the conditions of enslavement” (Scenes of Subjection, 57). 7. Daphne Brooks, Bodies in Dissent: Spectacular Performances of Race and Freedom (Durham, NC: Duke University Press, 2006), 2–3. 8. Orlando Patterson, Slavery and Social Death: A Comparative Study (Cambridge, MA: Harvard University Press, 1982). 9. Achille Mbembe, “Necropolitics,” trans. Libby Meintjes, Public Culture 15.1 (2003): 21. 694 | American Quarterly

10. Mbembe, “Necropolitics,” 21. 11. Colin (Joan) Dayan, Haiti, History, and the Gods (Berkeley: University of California Press, 1995), 207. 12. Mbembe, “Necropolitics,” 22. 13. Kyla Schuller, The Biopolitics of Feeling: Race, Sex, and Science in the Nineteenth Century (Durham, NC: Duke University Press, 2018), 70. 14. Fugitivity, as I discuss it in this essay, does not only signify moments in which an enslaved person attempts escape; rather, fugitivity is an everyday act of “stealing away” that wrenches oneself from the auspices of power, if momentarily. 15. In relation to the law and biopower, François Ewald argues clearly, “Foucault does not mean to suggest here that the development of bio-power is accompanied by a decline of law. . . . In fact, normalization tends to be accompanied by an astonishing proliferation of legislation. . . . The norm, then, is opposed not to law itself but to what Foucault would call ‘the juridical’: the institution of law as the expression of a sovereign’s power.” In this sense, Ewald distinguishes between the juridical as monarchical law and that of the normative, which is expressed in law in the types of cases and legalities I discuss in this essay: “constitutions, legal codes, and the constant and clamorous activity of the legislature” (“Norms, Discipline, and the Law,” Representations 30 [1990]: 138). 16. Dayan, Haiti, History, and the Gods, 203. 17. Louis XV of France, Code Noir, ou Édit du Roi, servant de règlement pour le gouvernement et l’administration de la justice, police, discipline et le commerce des esclaves nègres dans la province et colonie de la Loüisianne, 1727. 18. Hortense Spillers, Black, White, and in Color: Essays on American Literature and Culture (Chicago: University of Chicago Press, 2003), 206. 19. See archive.org/details/actofcongressof100unit/page/n1. 20. Stephen Best, The Fugitive’s Properties: Law and the Poetics of Possession (Chicago: University of Chicago Press, 2004), 82, 83. 21. Hartman, Scenes of Subjection, 65–69. 22. Uri McMillan argues that the fugitive is an artist and that fugitive performances of escape can and should be considered “artful embodiment.” See McMillan, Embodied Avatars: Genealogies of Black Feminist Art and Performance (New York: New York University Press, 2015), 65. 23. William Wells Brown, Clotel or, The President’s Daughter (New York: Penguin Books, 2004), 139–40. 24. Here I am thinking with Tavia Nyong’o’s formulation of the “incompossible” and the “incommensurable” in his performance studies theory of “afro-fabulation,” which “works towards an alternative account of repairing the incommensurate. I am interested in the modes of angular sociality that becomes possible when we work through hard feelings with an intention to transform them into something else.” See Nyong’o, Afro-Fabulations: The Queer Drama of Black Life (New York: New York University Press, 2019), 46. 25. Ann Stoler, “Ann Stoler on Reading Foucault Today,” paper presented at the conference “Foucault 13/13: Society Must Be Defended (1975–1976),” November 19, 2015, blogs.law.columbia.edu/ foucault1313/613-2/. 26. Hartman, Scenes of Subjection, 54. 27. Michel Foucault, Society Must Be Defended: Lectures at the Collège de France, 1975–1976, trans. David Macey (New York: Picador, 2003), 246. 28. Foucault, 252. 29. I want to thank the Amistad Research Center, specifically Chianta Dorsey and Christopher Harter, for their help while I was researching this case. 30. All the documents in the archival file are handwritten, and while the archival file has a general summary note on the case, it does not include transcriptions of the documents. All transcriptions are mine and are subject to error in spelling, language, and interpretation. 31. There is another rather famous fugitive slave case about a woman coincidently named Betty who decides to “return” to slavery and her family rather than be set free. This case has been written about more extensively, especially by Edlie Wong and Sora Han. Han’s writing on the 1857 freedom suit Betty’s Case has been helpful for my thinking. Han contends that fugitivity is a type of “nonperformance” in a strict legal sense in which “nonperformance in contract doctrine generally designates the failure of one party to a legally enforceable promise to fulfill her obligation to the other party.” Fugitivity is thus to not fulfill a promise and thus it is legal nonperformance. See Han, “Slavery as Contract: Betty’s Case and the Question of Freedom,” Law & Literature 27.3 (2015): 408. Negotiating Biopower and the Law in US Chattel Slavery | 695

32. The “Pennsylvania Emancipation Act of 1780” states: “the Offences and Crimes of Negroes and Mulat- tos as well as Slaves and Servants and Freemen, shall be enquired of, adjudged, corrected and punished in like manner . . . except that a Slave shall not be admitted to bear Witness agaist [sic] a Freeman.” It is most likely that Betty is no longer enslaved given that she provides testimony. However, there were numerous cases in which enslaved people were made to testify in court, leaving their testimony open to court discretion. 33. Saidiya Hartman, “Venus in Two Acts,” small axe (June 2018): 203. 34. Avery Gordon, The Hawthorn Archive: Letters from the Utopian Margins (New York: Fordham University Press, 2018), 30. Additionally, David Kazanjian’s paper, “Accumulation by Possession: Subaltern Revi- sions of Dispossession in the Americas, 1690–1703,” at the 2018 conference for the Society of Early Americanists, has been key for my thinking in terms of reading subjects in the archive as producers and providers of knowledge and theory. 35. Karla FC Holloway, Legal Fictions: Constituting Race, Composing Literature (Durham, NC: Duke University Press, 2014), 50. 36. Reading Betty’s narrative in line with the later emergent genre of the slave narrative is in line with the argument that legal texts were one of the first means by which African American firsthand accounts made their way into print: “The classic antebellum slave narrative joined over a century of black life- writing in tracing the impress of American law on the African American self (W. Brown 1849, 148). From the colonial period through the Civil War, when enslaved people (and especially men) of African descent entered print as individualized subjects, their first-person narratives were often occasioned by or responsive to their encounters with law” (Jeannine Marie DeLombard, “Slave Narratives and U.S. Legal History,” in The Oxford Handbook of the African American Slave Narrative, ed. John Ernest (Oxford: Oxford University Press, 2014), 68. 37. Hartman, Scenes of Subjection, 69. 38. George Johnston, The History of Cecil County, Maryland, and The Early Settlements around The Head of Chesapeake Bay and on The Delaware River, with Sketches of Some of the Old Families of Cecil County (Elkton, MD: Published by the Author, 1881), 357. 39. A small note, but it is interesting that Porter was able to retain his property by giving it to his wife, given that women could not own property. The History of Cecil County notes, “By common law the property of those convicted of capital offences was forfeited to the State . . . whereupon Porter, who was a lawyer, conveyed his property to his wife and one of his friends, in order, if possible, to secure it for the benefit of the former” (Johnston, 358). 40. Johnston, 358. 41. Best, Fugitive’s Properties, 81. 42. Fred Moten, “The Case of Blackness,” Criticism 50.2 (2008): 179.