Western University Scholarship@Western Electronic Thesis and Dissertation Repository 4-23-2015 12:00 AM Creating Difference: The Legal Production of Race in American Slavery Shaun N. Ramdin The University of Western Ontario Supervisor Dr. Martin Kreiswirth The University of Western Ontario Graduate Program in English A thesis submitted in partial fulfillment of the equirr ements for the degree in Doctor of Philosophy © Shaun N. Ramdin 2015 Follow this and additional works at: https://ir.lib.uwo.ca/etd Part of the African American Studies Commons, American Literature Commons, Legal History Commons, Literature in English, North America Commons, and the United States History Commons Recommended Citation Ramdin, Shaun N., "Creating Difference: The Legal Production of Race in American Slavery" (2015). Electronic Thesis and Dissertation Repository. 2870. https://ir.lib.uwo.ca/etd/2870 This Dissertation/Thesis is brought to you for free and open access by Scholarship@Western. It has been accepted for inclusion in Electronic Thesis and Dissertation Repository by an authorized administrator of Scholarship@Western. For more information, please contact [email protected]. CREATING DIFFERENCE: THE LEGAL PRODUCTION OF RACE IN AMERICAN SLAVERY (Thesis format: Monograph) by Shaun N. Ramdin Graduate Program in English A thesis submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy The School of Graduate and Postdoctoral Studies The University of Western Ontario London, Ontario, Canada © Shaun N. Ramdin 2015 ABSTRACT AND KEYWORDS This dissertation examines the legal construction and development of racial difference as considered in literature written or set during the final years of American slavery. While there had consistently been a conceptual correspondence between black skin and enslavement, race or racial difference did not become the unqualified explanation of enslavement until fairly late in the institution’s history. Specifically, as slavery’s stability became increasingly threatened through the nineteenth century by abolitionism and racial slippage, race became the singular and explicit rationale for its existence and perpetuation. I argue that the primary discourse of this justificatory rationale was legal: through law race and its meaning was finally determined. However, as there was not a substantial body of legal texts, such as legislation and judicial opinions, defining race prior, legal determinations of race during this brief and tumultuous period ultimately produced race in service of slavery. To frame and understand these legal issues, my dissertation turns to nineteenth- century American literature. Because of the elusive nature of racial difference, literature provides a means to reflect upon and critique the law’s complicity in producing race. I begin with an overview of the difficulty of understanding and defining race as a concept, as well as the reasons why and when race became definitive of American slavery. I then turn to Frederick Douglass’s My Bondage and My Freedom (1855) which explores how race came to signify wrongdoing as a consequence of race-based slavery. I then discuss how knowledge of racial difference, characterized by its uncertainty, was stabilized by gender. As considered in Lydia Maria Child’s 1867 novel, A Romance of the Republic an ii individual’s uncertain racial identity was legally determined by recourse to his or her mother’s. The next chapter examines Mark Twain’s Pudd’nhead Wilson, published in 1894, which refutes the very existence of a racial difference, suggesting its legal existence is arbitrarily produced for the purposes of slavery. Finally, I conclude with a consideration of the limits of, and unexplored issues raised by, this project. Keywords: slavery, American literature, American legal history, race studies, race relations, racism, Douglass, Child, Twain. iii ACKNOWLEDGEMENTS I am immensely privileged to have spent significant time researching a topic I find fascinating and politically important. However, I would not have had the opportunity to do so without the assistance of many people. I would like to try to express my gratitude to them. My interest in the various topics touched on in this dissertation began during my time as a student at the University of Calgary, and I would like to acknowledge the faculty and staff of the Department of English there. Although it has been some time, and many faculty members have since moved on to other endeavours, I continue to be grateful for the training I received and the kindness I was shown when I was a student there. In particular, I would like to thank Dr. Eric Savoy for his dedicated supervision of my M.A. thesis. I continue to be proud of the work we did together. I would also like to thank Dr. Jim Ellis, Dr. Nina van Gessel, Dr. Stephen Guy-Bray, Dr. Jon Kertzer, Dr. Pamela McCallum, and Dr. Aruna Srivistava for their generous support throughout my undergraduate and graduate studies. The specifics of this dissertation began to take shape when I was a law student, and I note the staff and faculty at the Faculty of Law at the University of British Columbia. I would especially thank Dr. W. Wes Pue. I have on many occasions benefitted from his constant willingness to discuss ideas and assist students and colleagues with their projects, and this dissertation is proof of that. The University of Western Ontario allowed me to pursue this project, and I would like to thank the faculty, students, and staff of the English Department. I am especially iv grateful for the direction and advice provided by Dr. Bryce Traister and Dr. Thomas Carmichael who thoughtfully guided my progress through the doctoral program, including serving on the examining committee for this dissertation. I would also like to acknowledge the memorable and enjoyable discussions I had during my time at Western, on all manner of topics, with Dr. Ross Bullen, Joel Burton, Dr. Patrick Casey, Dr. Alison Conway, Dr. Joel Faflak, Dr. Allison Fieldberg, Josh Lambier, Dr. Daniel Martin, Dr. Elan Paulson, and Dr. Jan Plug, among many others. I could not have asked for a better community of scholars and colleagues. The completion of this project would not have happened without the contributions of Dr. Jennifer Harris and Dr. Sasha Torres who served on its examining committee. I must also recognize the generous funding of this project by the Social Sciences and Humanities Research Council of Canada, and remark that I am honoured to have been a Canada Graduate Scholar. Also, a significant portion of this project was researched during my time as a Visiting Researcher at Harvard Law School, and I would like to thank the faculty and staff there, and Professor Mark Tushnet in particular, the Social Theory Working Group at HLS, and Dr. Homi Bhabha and the Humanities Center, for facilitating a wonderful year for me. From the beginning this project was urged forward by my supervisor Dr. Martin Kreiswirth, and he was tremendously patient in allowing me to complete it. I am always grateful for his advice, and his enthusiasm for the topics this dissertation considers, as well as for my thoughts on them, were essential to my completing this work. I am deeply appreciative of his mentorship and I look forward to continuing our dialogue on law, literature, and numerous other subjects. v Every accomplishment in my life is attributable to the love and support of my parents, Nehru and Lila Ramdin. This dissertation is no exception. I am not capable of expressing the extent of my gratitude for all that they have given me, so I will simply thank them for always expressing their belief in my abilities. Finally, I dedicate this project to my partner, Dr. Efrat Arbel, whose encouragement of this dissertation did not waiver. Her selflessness and passion in respect of her work is inspiring, and I continue to learn so much from her about my own work and ideas. Above all else, I would not have had the courage to pursue this project, or the willingness to complete it, without her. vi TABLE OF CONTENTS Abstract and Keywords ii Acknowledgements iv Table of Contents vii INTRODUCTION 1 Racial Difference in American Slavery Introduction 1 The difficulty in defining ‘race’ 7 What ‘race’ meant to American slavery 12 The scope of this thesis 19 CHAPTER ONE 26 The Impudent Slave: Frederick Douglass’s My Bondage and My Freedom and the Conflation of Black Skin and Wrongdoing Introduction 26 The mechanics of plantation authority 34 Legal authority: people as property 44 Presuming slave wrongdoing on the plantation and beyond 62 Conclusion 80 CHAPTER TWO 83 ‘Partus Sequitur Ventrem’: Lydia Maria Child’s A Romance of the Republic and the Stabilization of Racial Difference Introduction 83 The racialized limits of family 89 ‘Partus sequitur ventrem’: the child follows the mother 99 Gender inequality in (interracial) marriage 110 Undermining prejudice 119 Conclusion 139 vii CHAPTER THREE 143 “By a Fiction of Law and Custom”: Mark Twain’s Pudd’nhead Wilson and the Creation of Racial Difference Introduction 143 Racial subordination after Emancipation 150 The uncanny limits of racial difference 166 Fingerprints and the arbitrariness of racial difference 179 Conclusion 199 CONCLUSION 204 “What is a White Man?”: Potential Directions Works Cited 216 Curriculum Vitae 226 viii ! 1 INTRODUCTION Racial Difference in American Slavery Introduction In 1910 Frank Ferrall of North Carolina, who wanted to divorce his wife, found himself litigating the content of legal racial definitions before the state