michael grossberg's telling tale: the social drama of an antebellum custody case

Michael Grossberg’s Telling Tale: The Social Drama of an Antebellum Custody Case

Brook Thomas

MICHAEL GROSSBERG, A Judgment for Solomon: The D’Hauteville Case and Legal Experience in Antebellum America. New York: Cambridge Univer- sity Press, 1996. Pp. 270.

With A Judgment for Solomon: The D’Hauteoille Case and Legal Experi- ence in Antebellum America, Michael Grossberg provides a splendid sequel to his excellent Governing the Hearth: h w and Family in Nineteenth-Century America. Detailing the story of a highly publicized trial, the new book in one sense simply illustrates a point that Grossberg made in his first: During the nineteenth century, the traditional right of a father to have legal control of his children eroded as judges asserted their role as paternalistic arbiters in custody disputes and increasingly granted custody to mothers. But the new book is much more. It marks Grossberg’s move from straightforward legal history to an investigation into the complicated link between social and legal change. He is especially interested in the cultural effects of trials that capture the public imagination. For him the d’Hauteville case is a “social drama” in which narrative plays an important role in both the trial and events surrounding it. Finally, Grossberg offers an example of and reflection upon how to tell the story of such trials.

Let me say from the outset that people should read the book and read it with care. Reading the book with the care that it deserves has caused me to raise a few questions-some of which will betray my training as a literary critic. But those questions should not distract attention from the primary fact that Grossberg has provided us with a fascinating account.

Brook Thomas is chair of the Department of English and Comparative Literature at the University of California, Irvine.

0 1998 American Bar Foundation. 0298-6546/98/2302-43 1$01 .OO 43 1

432 LAW AND SOCIAL INQUIRY

That point made, I can make the next obligatory move: mention of the 0. J. Simpson trials. The fact that they need to be mentioned-Grossberg succumbs as well-helps to confirm one of Grossberg’s largest claims. As the title indicates, the book is about “legal experience.” People experience the law, Grossberg argues, as much indirectly as directly; highly publicized trials are an important part of their indirect legal experience. If, on the one hand, the popularization of a trial leads to distortions, on the other, it serves to educate the public about the law. Think, for instance, of how many people were first made aware of various rules of evidence and the differences between civil and criminal proceedings because of the Simpson trials.

If legal histories have traditionally focused on only the formal aspects of such trials, Grossberg shows that to understand law’s role in society we must pay careful attention to how the trials are judged in the court of public opinion. Admitting that it is difficult to document the precise effects of judgments rendered in the court of public opinion, he nonetheless insists that we consider such judgments “precedents” of legal experience. Collec- tive legal experience can in turn influence the law. One way to begin to measure how it can do so is to analyze the stories shaping that experience and how they confirm or challenge stories that are accepted by existing rules of law. Close attention to the stories told within and about highly publicized trials, in other words, allows us to explore the dynamics of legal transformation.

To be sure, this approach cannot fully explain why the public accepts certain stories about a trial and not others. It would be foolish, for instance, to claim that the sole criterion of acceptance is whether a story is well told. Without a doubt, economic and other factors play a role in making some stories more convincing to the public than others. Nonetheless, stories that are accepted do tell us quite a bit about what the public believes. They are in that sense like best-sellers, which according to Wyndham Lewis are like a mirror: They never lie. Not because they are true, but because they reflect back what many people think. Furthermore, the most interesting trials, like the most interesting best-sellers, are not perfect reflectors; they not only mirror existing public opinion, they alter it.

A study of the history of highly publicized trials can, therefore, give us insight into the public’s view of the law and how that view can, if not always, at least sometimes, have an impact on the law itself. There is quite a history of such trials in this country: from the Webster murder trial1 to the

1. In 1850 Dr. John W. Webster, a professor at Harvard Medical School, was convicted of murdering Dr. George Parkman, a wealthy Bostonian who had recently helped finance the school. Witnesses included author and physician Dr. Oliver Wendell Holmes and Dr. William Morton, the discoverer of anesthesia. The controversial trial was presided over by Judge Lem- uel Shaw, Herman Melville’s father-in-law. For an account of the trial, see Sullivan 1971. For a fictionalized version by a noted historian, see Schama 1991. For the trial’s relation to Mel- ville’s Billy Budd, see Thomas 1987, 201-23.

Michael Grossberg’s Telling Tale 433

Dred Scott caseZ to the Beecherpilton adultery case3 to the Lizzie Borden murder trial4 to the Sacco and Vanzetti affair5 to the Scopes trial.6 There have been, it turns out, numerous trials of the century. What links the Simpson case and the case chronicled in Grossberg’s book is not only the publicity they generated but also the fact that one of the subplots of the Simpson trials involved a custody battle.

When the courts granted Simpson custody of his children the Los An- geles Times (1997) ran the headline: ‘“Natural Law,’ Uneasy Rulings.” The subhead read: “An age-old notion holds that children usually are best left with their parents, even those under a cloud. But the Simpson custody case and others have ignited debate.” If reporters had read Grossberg’s book, they would have known that until challenged in the latter part of the eighteenth century and during the nineteenth, “natural law” might have given parents the right to children, but in a dispute between parents, “nature” opted for the father. The d’Hauteville case provides a fascinating example of how the courts’ view of ‘(natural law” began to favor mothers in custody cases.

I

The d’Hauteville custody battle grew out of a failed marriage between the daughter of a rich Boston Brahmin and a French-speaking Swiss Protes- tant. Ellen Sears met Gonzalve d’Hauteville in Paris while touring Europe with her mother and father. The romance in Paris was followed by complicated negotiations between Gonzalve and Ellen’s father David over a marriage contract. At various times the negotiations seemed doomed, but eventually an agreement was reached, and the couple married on August 22, 1837, in Montreux, Switzerland. As was the custom, the newlyweds took up residence at the home of the groom. One of Ellen’s fears in negotiations was that she would be separated from her family, so the contract included provi-

2. This controversial 1857 Supreme Court decision upheld the institution of slavery and denied United States citizenship to all of African descent, free or slave. See Fehrenbacher 1978 and Finkelman 1997.

3. In 1875 Henry Ward Beecher, the most famous minister in the United States, was accused of committing adultery with Elizabeth Tilton, a parishioner and the wife of one of his best friends. See Fox 1993 and Korobkin 1995.

4. In 1892 well-respected, 32-year-old Lizzie Borden was accused of brutally murdering her stepmother and father. See Lustgarden 1950.

5. In a 1921 trial Nicola Sacco and Bartolomeo Vanzetti, Italian immigrants with an- archist leanings, were sentenced to death for bank robbery and murder. Many felt that the conviction was based on anti-immigrant and anticommunist prejudice rather than solid evidence. See Frankfurter 1927.

6. In 1925 John Thomas Scopes was tried for violating a Tennessee law forbidding anyone to teach evolutionary theory that contradicted the biblical account of creation. In what H. L. Menken dubbed the “Monkey Trial,” William Jennings Bryan volunteered to help the prosecution and Clarence Darrow defended Scopes. See Scopes 1967 and de Camp 1968.


sions for visits to the United States. It also dictated that Miriam Sears, El- len’s mother, would live with the couple for the first year.

Married life was not bliss. Husband and wife had conflicting views of marriage. Gonzalve persisted in the traditional belief that the husband was the head of the household with complete mastery of the home and its de- pendents. Ellen subscribed to the newer view of marriage as a contractual agreement between partners who shared mutual affection as well as duties and obligations. Ellen interpreted Gonzalve’s efforts to assert what he thought were his husbandly duties as moral tyranny, while Gonzalve interpreted Ellen’s demands for independence as her failure to perform her wifely duties. Convinced that Ellen really did love him and would become a dutiful wife, Gonzalve assumed that her resistance was caused by her mother, who, he felt, wanted to undermine the marriage. A critical moment came during a stay in Paris in 1838, when Ellen became pregnant and insisted on having the baby in the United States. Reluctantly, Gonzalve agreed to let her go.

Once in Boston and under the roof of her father, Ellen decided not to return to her husband. When a son was born September 27, 1838, she named him after her brother Frederick in violation of her husband’s choice of Alois, a name dear to all Swiss. A year of exchanged letters followed, with Gonzalve pleading reconciliation-on his terms-and Ellen asserting her desire to stay separate. Then Gonzalve crossed the ocean to claim his wife and son.

During the year of exchanged letters, Gonzalve wrote to his father-in- law as well as to his wife. In keeping with his belief that a woman moved from the paternal protection of her father to that of her husband, Gonzalve pleaded with the father just as earlier he had bargained with him over the terms of the marriage contract. In the longest of his letters to David Sears, he wrote, “It is important to be master in my own house” (p. 24). No doubt Gonzalve assumed that a father and fellow husband would understand the importance of that paternal right. David, however, refused to abandon his role as the paternal protector of his daughter, and when she expressed fear over the prospects of life if forced to return to Gonzalve, he protected her. He also warned Gonzalve that, if he tried to retrieve his wife, the Sears family would seek a separation in the Massachusetts Supreme Judicial Court.

David, however, was wrong to think that the courts would support a separation. American courts, like their European counterparts, were still dominated by the doctrine of coverture, in which a wife, covered by her husband, had no separate legal identity. Considered by the law to be incorporated into the person of her husband, a wife had no legal standing to reach agreements independent of him. That meant that in the eyes of the law, she could not even reach a binding agreement with her husband about


the terms of a separation. Nor would the courts have supported her if she pursued the more dramatic action of suing for divorce. Even though she claimed that Gonzalve’s actions toward her constituted mental cruelty-a charge that the courts rarely recognized as grounds for divorce-most likely she would be considered legally at fault for abandoning her husband. Such a judgment would almost certainly mean that she would lose custody of her son. Chastened by legal realities, the Sears family moved from threats about legal separation to a strategy to allow Ellen to keep Frederick.

Although at times women who were separated from their husbands maintained custody of their children, these were almost always incidents of fact not law. Traditionally, when men sought legal custody, they were granted it as a natural paternal right. Gonzalve had no intention of allowing his son to live with his estranged wife. Nonetheless, a father’s legal right to his child was not quite as absolute as it had once been. Indeed, even its absolute power in common law had traditionally been qualified by wives’ ability to make appeals in courts of equity, where a different set of rules applied. Furthermore, in the late eighteenth century, Britain’s famous Lord Mansfield, who championed freedom of contract in the economic sphere, refused to recognize absolute paternal rights under coverture.

In a 1763 case a father facing criminal charges for fraudulently appren- ticing a girl as a prostitute sought custody of his daughter, who he alleged was “improperly restrained” from him by his wife. A writ of habeas corpus brought the child before the court, but Mansfield ruled that the court had no obligation necessarily to deliver the child to the father. Custody, he ruled, must be left to the discretion of the courts “according to the circum- stances that shall appear before them” (p. 52). Then in 1774 for the first time in a British common law court, Mansfield granted custody to a mother rather than to an unfit father. Citing the man’s mistreatment of wife and child, Mansfield ruled that “the public right to superintend the education of its citizens necessitated doing what appeared best for the child, notwith- standing the father’s natural right” (p. 52).

Mansfield’s rulings were recognized, but interpreted differently, especially across the Atlantic, where the rise of the federal judiciary system after the Revolutionary War granted jurisdiction in custody cases to individual states. In the Sears’s home state of Massachusetts, Chief Justice Lemuel Shaw used the 1834 Briggs case to express his fears that granting maternal custody to women who “without justifiable cause” (p. 57) left their husbands would encourage unauthorized marital separations. Recognizing the right of courts to use discretionary power for the good of the child, he nonetheless ruled that it should be exercised only when the father had been proven unfit. In Pennsylvania, however, a different precedent existed. In 1813 a father petitioned for custody of his two daughters after obtaining a divorce from his adulterous wife. Chief Justice William Tilghman expressed


concem over the wife’s behavior, but he distinguished between her behavior as a spouse and as a mother. Ruling that as a mother her behavior had been exemplary and, concerned about the welfare of the children in tender years, he granted her custody. Three years later, however, he reversed himself and granted custody to the father, ruling that, as the daughters got older, it was unwise to leave two potential wives in the custody of a woman who had so openly violated her marriage vows.

Pennsylvania’s Addicks case was not a clear-cut victory for maternal custody, but its stress on child welfare and its limited recognition of a distinction between the conduct of a mother and that of a wife created a more favorable precedent for Ellen Sears than the Massachusetts Brigs case. Choosing where she would be drawn into court by her husband, Ellen moved to Philadelphia and waited for a writ of habeas corpus demanding that she produce her son, who was allegedly held under improper restraint. In the meantime both father and mother gathered their legal teams in a city noted for its talented lawyers. The lawyers they hired proved to be much more prestigious than the three judges who presided over the case in a somewhat lowly court in the Pennsylvania judiciary system.

On July 3, 1840, Gonzalve petitioned the presiding judge of the Court of General Sessions for the City and County of Philadelphia for a writ. It was served, and dutifully Ellen and her father produced Frederick before the court. One of the judges’ first decisions was whether to keep the proceedings private or make them public. When reluctantly they opted for a public fo- rum, the trial’s proceedings were opened to the judgments of public opinion as well as those of the judges.7 People were fascinated by the spectacle of a battle between the beautiful daughter of a rich Boston Brahmin and a Swiss count as well as by the issues of the trial. They registered their judgments in the press and elsewhere.

One reason that the trial caught people’s imaginations and remains so fascinating today is that Ellen’s legal team decided to base its case on the special claims that a nurturing mother has to her child in its tender years. John Cadwalader, Ellen’s lead lawyer, was a convert to what Grossberg calls “domestic feminism.” Unlike “egalitarian feminism,” which demanded equality for women on the basis of gender sameness, domestic feminism ad- vocated the rights of women by emphasizing fundamental gender differences. Thus, it combated the claims of paternalism with those of matemalism. If paternalism supported a father’s natural right to legal custody of a child, matemalism supported a mother’s natural right. That claim was based on the image of a nurturing mother with a special bond to the child.

7. A book cannot do everything. Nonetheless, Grossberg’s might have attempted to de- fine more precisely the nature of the “public” who expressed opinions about the case.


Cadwalader made three basic appeals. First, he evoked authority of the medical community through expert testimony. Second, he played to Ameri- can chauvinism, arguing that the republican legal system in the United States would listen to the authority of nature and not be bound by barbarous practices sometimes upheld in Britain, where courts were prone to separate young children from the nurture of their mothers. Third, he struck a chord with the beliefs of more and more people who shared his maternalist sentiments.

This third appeal deserves some commentary. First, Grossberg uncov- ered no evidence that the attorney calculated this move simply to appeal to the court of public opinion. Cadwalader seems to have been a genuine domestic feminist. Second, whereas more and more people were leaning toward matemalist sentiment, an important part of Grossberg’s argument is that the debates between maternalism and paternalism played out in court and repeated with a difference in the press not only reflected a shift in opinion, they also helped to shape it. In other words, Cadwalader’s argument would have had little chance of success if public opinion had not already been in a process of transformation. At the same time, it and its representation in the press helped to hasten and to shape that transformation. Third, Cadwalader might have won the court of public opinion, but if his argument had not also appealed to the judges presiding over the court, this case would not have the significance that it does. But Cadwalader did persuade the judges, and they ruled that Ellen got to keep her child-at least in its tender years.

The judges ruled in Ellen’s favor, but, Grossberg is quick to point out, the final verdict was not a complete victory for maternalism. Although the court was clearly swayed by Cadwalader’s arguments, it was also constrained by both the individual judges’ views and legal precedent. In fact, its ruling was perfectly justified on the grounds established by Mansfield many years earlier. Rather than replace a paternalist standard with a maternalist one, it stressed the discretionary power of the court to make the proper decision. The guidelines it upheld to make a proper decision did not stress, as Cad- walader had, the right of a mother to its child but, as Mansfield had, the welfare of the child. Nonetheless, it would be a mistake to see the court simply repeating Mansfield’s guidelines. Much more powerfully than had Mansfield, the Philadelphia court recognized the special role a mother played in the nurturing of her children. Thus Ellen’s victory became a landmark in American custody battles, as it marked the emergence of a “trinity of judicial discretion, maternalism, and child nurture” (p. 167).

As important as that transformation is, however, Grossberg noted and summarized it in his first book (1983). What is important about this book is how he uses an account of the case to provide insight into what in his title


he calls “legal experience in antebellum America.” The rest of this essay will engage the ways and means of his arguments about that experience.

I1

T o understand legal experience through the close analysis of a trial like the d’Hauteville case is for Grossberg to have a better understanding of the relation between law and society. The law and society movement, it is important to remember, developed in part in reaction to a tradition of legal historiography in which social effects on the law were for the most part ignored. Within this tradition, the law was an autonomous body, and legal change could be accounted for by a logic internal to the law itself. In re- sponse, pioneers in the law and society movement adopted an instrumental view of the law. Used by both liberals, like J. Willard Hurst (1956) and Lawrence Friedman (1973), and marxists, like the early Morton Honvitz (1977), this model saw the law in terms of interest groups competing to gain power over society. The result was numerous histories in which legal transformations could be explained by a narrative about social transformations, since once a particular group gained power, it would alter the law to further its interests.

As powerful as these stories of legal transformation could be, their reaction against traditional assumptions of legal autonomy too often produced reductive explanations of the relation between law and society. The law may not be independent of social pressures, but it is not simply a reflection of them either. One challenge to the law and society movement’s reflection model came from various members of the critical legal studies movement, who began to stress not only how the law reflected changes in social power relations, but also how it legitimated the prevailing order. In abandoning a reflection model, legal historians concerned with law as a force of legitimation moved away from an exclusive focus on the methods of social history. As Robert Gordon noted, “If what is important about the law is that it functions to ‘legitimate’ the existing order, one starts to ask how it does that” (1982, 286). To answer that question required speculation about the effects of the law on people’s consciousnesses, speculation that led a number of people to aspects of what is sometimes called the law and literature movement, since one way in which the law helped to legitimate power was through its rhetoric and rituals and through the imagery and stories it em- ployed. In turn, to look at the law as a rhetorical performance or as a social ritual was to recognize that it does not simply reflect society, it also acts upon it in powerful ways.

The increased concern with law as a force of legitimation rose along with a model of “relative autonomy,” which avoided the extremes of view- ing law as either independent of social forces or as a simple reflection of


them. But even though this model attempted to steer a moderate middle ground, it was not embraced by all legal historians. One reason for resistance may have been its association with marxism. Indeed, the notion of relative autonomy grew out of attempts within marxism to combat the ten- dency to see the law as simply a reflection of an economic base. One of its most powerful proponents was Mark Tushnet, whose use of it in The Ameri- can Laev of Slavery: 1810-1860 (1981) evoked scorn in Herbert Hovenkamp. Calling Tushnet’s account “spectacularly unconvincing,” Hovenkamp asserted that the “law is not autonomous . . . particularly in areas of explicit policy making” (1985, 625).

Hovenkamp, unfortunately, mistook an argument for the law’s relative autonomy for an argument for its complete autonomy. T o argue for law’s relative autonomy is not to deny social effects on the law. It is instead to stress the reciprocal relation between law and society. This reciprocity can be seen in two ways: (1) Law is not only affected by social forces; it is itself a force shaping society. And (2) whereas arguments made in court and decisions rendered by judges are influenced by prevailing social beliefs and attitudes, those beliefs and attitudes are in turn transformed once they are translated into the structures and forms of the law.

An advocate of the law’s relative autonomy, Grossberg illustrates both of these factors at work in the d’Hauteville trial. For instance, Cadwalader’s files show his understanding that “legal rules could never be totally independent of popular belief and social change” (p. 12 1 ). Cadwalader did not simply construct a legal argument; he self-consciously drew on popular beliefs and attitudes to advance his case. Changing beliefs and attitudes about the role of the mother in raising a child cannot be explained by an internal legal logic. Nonetheless, in appealing to changing beliefs, Cadwalader was constrained by “the second element of the law’s relative autonomy” (p. 121). “Though linked to society, the legal system did have partial independence,” which meant that “effective legal argument had to be constructed within the forms of the law and the patterns of argument built up over time by members of the legal community” (pp. 121-22).

The d’Hauteville trial illustrates these two aspects of the law’s relative autonomy, but its importance cannot be measured solely by them, since, if Grossberg and others are right, any trial would illustrate them. Thus two other factors were necessary to give the trial the importance that it had: (1) It was fought over legal doctrine in flux, and (2) it was highly publicized. Let’s take the first point first.

The law was in flux because of a disparity between existing doctrine and changing social beliefs. If those who see legal doctrine as more or less reflecting social beliefs are generally correct, there are moments, as in this case, when a gap between the two exists, which allows us to watch, in slow motion, as it were, the law transforming itself. But the phrase “the law


transforming itself’ is itself inaccurate, since one of Grossberg’s crucial points is that the law does not transform itself. People transform it. Close scrutiny of the d’Hauteville trial, therefore, gives us a glimpse into the process by which people, constrained as they are by both prevailing social beliefs and legal precedent, transform the law.

The publicity the trial received meant that its effects were not con- fined to the court’s ruling, either in this specific case or as legal precedent. Instead, as with others of its kind it acquired “both legal and rhetorical significance” (p. 90). Cases like this one, Grossberg argues, “become legal fables that lay people and lawyers use to comprehend clashes over the changes swirling about them” (p. 91). T o account for the trial’s rhetorical significance, Grossberg draws on the work of the anthropologist Victor Tur- ner and calls the trial an example of a “social drama.”

Paraphrasing Turner, Grossberg writes that social dramas are “events that reveal latent conflicts in a society and thus illuminate its fundamental social structures” (p. 89). Trials, he adds, are “particularly attractive social dramas because they are predictable rituals. Each follows a recognized script cast with identifiable characters” (p. 89). The power of trials to serve as social dramas is indicated by the fact that so many works of prose fiction, drama, film, and television use the courtroom to structure their dramatic action. Indeed, Grossberg could have emphasized his point even more by pointing out the similarities between the rise of drama in ancient Greece and the rituals of its legal system (Eden 1986). According to Grossberg, however, unlike some other social dramas (e.g., political rallies), trials must have “clear endings” (p. 90). A trial offers a society a ritual by which it can resolve its disputes. A t the same time, in highly publicized trials, the judge’s verdict is never the final one, since it is in turn open to judgment in the court of public opinion. Thus, if “external beliefs, interests, and other forces are translated into the language and forms of the law” in a trial (p. 91), the media then translate what goes on in court into forms for consumption in the court of public opinion. “In this interactive manner trials become active shapers of a culture not merely its reflections” (p. 92). Quoting Turner, Grossberg concludes that, like other critical social rituals, trials thus serve the “double function of transmitting and transforming the values of a society” (p. 92). O r as he says in the preface, borrowing from Richard Wight- man Fox’s description of the Beechernilton adultery trial, the d’Hauteville trial is a “culture-shaping and culture-disclosing event” (p. xii).

If the trial’s publicity helped to turn it into one form of literary genre- drama-the disparity that it reveals between existing legal doctrine and changing social beliefs contributes to the importance of another-narrative-in the resolution of the dispute. No audience that experienced the 0. J. trials needs to be told that storytelling plays an important role in the law,


especially in trials.8 Indeed, most of us would agree with Lawrence Fried- man’s claim, quoted by Grossberg, that “arguments presented in trials are often important clues as to what stories count as good, true, or compelling stories in a particular culture” (p. 95). We need, of course, to distinguish between stories told in trials with and without juries. We also need to take into account Grossberg’s not so obvious claim that storytelling takes on increased importance when legal doctrine is in flux.

In cases where the law is relatively clear, storytelling has less influence. Or to alter that formulation slightly, when the law is not in flux, the “cultural narrative” that gives it meaning is so widely accepted that those within it hardly seem to be telling stories at all. But when there is no shared cultural narrative about a particular issue, the law is open to tran~fonnation.~ Indeed, when the law entertains competing narratives-such as those of paternalism and maternalism-individual storytelling becomes more important. According to Grossberg, the social drama of the d’Hauteville trial is in large part generated by a “narrative competition” (p. 94).

All the stories told are not, however, of the same kind. There are, for instance, stories that the various participants tell themselves and others before turning to the legal system to resolve the dispute between husband and wife. Once the actors turn to the law, these stories need to be translated into legal form. Within the formal structure of the law Grossberg distin- guishes three more kinds of stories: clients’ stories, lawyers’ stories, and judges’ stories. Then of course there are the stories told about the trial in the

8. See London 1960. For recent collections, see Papke 1991, Bellow and Minow 1996, and Brooks and Gewirtz 1996.

9. All cultures tell stories about themselves. As the power of myth suggests, shared stories, what we can call “cultural narratives,” help to give a culture coherence. A legal system exists within the stories a culture tells about itself and contributes to them, even if those stories are not always explicit. One way to make those stories explicit is to “cross-examine” them with stories that a culture simultaneously tells about itself in its literature. Such a cross- examination can help both to identify the stories shaping the legal system at a particular historical moment and to explore the effect that legal stories have on literary narratives. The point is not that legal and literary stories simply reflect one another. Law and literature are relatively autonomous institutions that, while often sharing some general cultural narratives, can also generate different stories. The similarities between legal and literary narratives give us a sense of a culture’s shared assumptions; the differences mark spaces and possibilities for legal change. See Thomas 1987, 1989, and 1997.

It would be fascinating, for example, to “cross-examine” the stories told in the d’Hauteville case with Hawthorne’s The Scarkt Letter, published 10 years later, not because Hawthorne was influenced by the case, but because the cross-examination would provide perspective on the cultural significance of both the case and the novel. To a large extent Hawthorne generates a maternalist narrative. Hester is given a special relation to her young child, and her role as a mother is differentiated from her role as a wife. Her custody of Pearl is even subject to the discretion of patriarchal rulers, who debate whether it would be in the child’s welfare to be “transferred to wiser and better guardianship” (Hawthorne 1963, 95). Hester is finally allowed to maintain custody when she exhorts Reverend Dimmesdale to argue for a “mother’s rights” (1963, 109). By setting the novel 200 years in the past, Haw- thorne helps to create the sense that those rights are natural ones, not in the very process of being constructed. For more on “cultural narratives,” see Maza 1996.


media. Finally, all these stories draw on and influence stories told in the culture at large.

Attention to these various stories and their relation to one another reveals how much of “legal experience” can be lost in typical accounts of legal history. For instance, whereas a traditional law and society approach would have recognized that the law was in flux at this time, its narrative about legal transformation would have added an air of inevitability to the outcome. T o be sure, those conforming to this view of legal history do not naively assume that, once social opinion changes, legal doctrine-even that established by the courts-immediately follows. Indeed, it would be a mistake to argue that this trial in itself marked a transformation, since cases after it were decided according to older doctrine. Nonetheless, a typical so- ciological approach does assume that, if the transformation did not occur in this trial, it would have occurred eventually, since even if the process is sometimes slow, legal doctrine eventually catches up to social belief. If such a view has some broad truth, it leaves no room for individual agency, no room because it allows no space for historical contingency, contingency that any trial whose outcome is uncertain dramatizes.

Grossberg’s point is not just that there was no guarantee that Ellen would triumph over her husband in the court’s judgment. It is also that, even if social beliefs influence judicial opinions, they do not predetermine precisely how that influence will be articulated. Furthermore, we should not forget the influence that court proceedings can have on public opinion- especially opinion that is in flux. Given the power that nonlegal forces had on the move from a paternalistic view of child rearing to a maternalistic one, some transformation in child custody law was inevitable. But the particular shape that it took and the particular arguments that contributed to it were not. The stories connected with the d’Hauteville trial show how important individual choices and strategies can be. Oddly enough then, whereas people who would like to have complete control over fate condemn the workings of chance for undermining human control, in fact it is the contingent nature of human affairs that makes a space for the importance of individual agency.

Why did the court rule that Ellen would get custody of her child? In part because of social forces beyond any individual’s control, but also in part because of the particular stories the lawyers in the trial constructed. In this sense lawyers are in a role similar to writers of fiction. Many writers live at the same time and have the same potential audiences. Nonetheless, not all tell the same stories and not all are equally talented storytellers. Ellen’s lawyers, we can see in retrospect, outperformed Gonzalve’s.

Cadwalader narrated the events of the marriage in such a way that he clearly distinguished the duties of Ellen as a wife from those she had as a mother. This distinction was crucial. Even though Ellen sincerely believed


that she was justified in leaving her husband because she was a victim of mental cruelty, existing legal doctrine would have considered her at fault in her actions as a wife. As long as wifely and motherly duties were linked, Ellen’s cause would be in jeopardy. Thus Cadwalader wove a convincing story that showed how his client’s conduct as a mother was in no way com- promised by her actions as a wife. Indeed, he was even able to suggest that in leaving Switzerland she had actually helped her son.

These stories were, to be sure, not pure products of the imagination. They were convincing in part because of evidence that Cadwalader amassed and then wove into a coherent narrative. Very important was his appeal to scientific evidence. Doctors confirmed not only Ellen’s skill as a mother, but also the importance of a mother’s nurture for the health of a young child. Equally important, doctors testified that life in Switzerland would jeopardize Frederick’s health. Frederick was asthmatic, and Cadwalader’s doctor claimed that Switzerland’s mountainous terrain and variable temper- atures were bad for him. In contrast, Philadelphia’s river water was excellent for asthmatics. Thus Cadwalader was able to show how in all respects Fred- erick would be better off staying with his mother.

The decision hinged not only on the stories Ellen’s lauyers told but also on those Gonzalve’s told. Gonzalve’s lawyers were extremely talented, and they made a compelling defense of the doctrine of coverture. Nonethe- less, Gonzalve’s absolutist beliefs eventually led to a crucial error in his lawyers’ strategy. Within the doctrine of coverture, when a woman married she left the legal protection of her father for that of her husband. Gonzalve so believed that Ellen had no identity other than that of a daughter or a wife that he attributed no agency to her. Assuming that Ellen must have transformed from a dutiful daughter into a dutiful wife, he could not imagine that her discontent in marriage could originate with her. Instead, he blamed it on her mother’s meddling. Why Gonzalve’s lawyers acceptance of this account was a critical error requires a bit of explanation.

Since Ellen’s lawyers insisted on separating the duties of wife from those of mother, it might not seem to matter whether Ellen’s marital discontent began with her or her mother. But Gonzalve’s case depended on link- ing the duties of mother and wife. If Ellen’s lawyers could show that Gonzalve’s account of marital problems was wrong, it would be much more difficult to show that Ellen was a bad wife and by extension a bad mother. Thus, one of the most critical moments in the trial came when Ellen’s mother took the stand. What was important was not so much the story that she told as her ability to resist the role cast for her in Gonzalve’s story. As Ellen put it, Gonzalve’s team “seemed to have imagined her some devil incarnate’’ (p. 146). But Miriam Sears defeated their expectations. In doing so, she made her daughter’s case. If the judges did not completely buy the stories told by Ellen’s lawyers, their “story” did maintain the crucial distinc-


tion between the role of a wife and that of a mother and focused attention on the welfare of the child.

The fact that Ellen’s lawyers won the trial’s narrative contest is not to deny the importance of social forces in influencing the outcome of the trial. The stories both sides constructed were conditioned by the social conventions of the times. Nonetheless, in showing, first, how the trial’s outcome in part depended upon a narrative competition and, second, how stories in and about the trial influenced public opinion while being influenced by it, Grossberg confirms his model of the complicated relation between law and society. Miriam Sears’s performance on the stand also confirms a point that needs emphasizing. She convinced as much by how she told her story as by what she said. It is time, therefore to turn to how Grossberg tells his story about legal storytelling.

I11

Grossberg’s preface includes a series of reflections on how to tell the story of trials like his. Peter Burke’s account of innovations by recent historians especially influenced him. For Burke, traditional forms of historical narrative, which are heavily indebted to the techniques of nineteenth-century literary realists, were challenged when historians began to focus on ana- lyzing structures, not simply events. Nonetheless, Burke argues, historians like Jonathan Spence (1981, 1984), Natalie Davis (1973), and Marshall Sahlins (1981) have found a way to accommodate both structure and event by providing the “thick description”10 needed to do justice to larger historical structures without abandoning narrative.” Indeed, it is in Burke that Grossberg finds Victor Turner’s notion of a social drama defined as “an event which reveals latent conflicts and thus illuminates social structures” (Burke 1992, 242). Grossberg’s book is an attempt to reveal the complicated relation between events and structure in legal history. To that end he draws on David Hackett Fischer’s notion of a “braided narrative” (Fischer 1976).

By that I mean considering the case as a problem chain. Each problem leads to a resolution that creates the next problem in the story. I have divided the case into a chain of six storytelling problems, each of which occupies a chapter. The solution to each problem leads to the next episode of the case, while suggesting what that episode can show us about American legal practices and beliefs. In this way, I have tried

10. The term thick &sniption is usually attributed to the anthropologist Clifford Geertz,

11. On Davis 1973 and 1987 and storytelling, see Maza 1996. but Geertz borrows it from the philosopher Gilbert Ryle. See Geertz 1973.


to meld the obvious appeal of a narrative with recent insights about the distinctiveness of narrative constructions. (P. xiii).l*

One of those insights is that historians do not simply recover and describe events from the past; they recount them. The term “recount,” Gross- berg tells us, quoting Alan Megill, “helps us appreciate that ‘description’ is not a neutral preliminary to the real work of explanation, not merely data collection. It leaves us better able to see that the two cannot be given a differential importance in abstraction from the aims and audiences of particular historical works” (p. 244 11.13).

Of course, self-consciousness about how to tell a story does not necessarily translate into an effectively told story. For instance, if Megill is right that all historical accounts are inevitably acts of recounting, no amount of self-conscious reflection on that fact will change the situation. To be sure, one would hope that historians-including legal historians-are always aware of the problems involved in historical recovery. But that awareness is not in and of itself going to guarantee better histories. For readers who want a better understanding of events in the past, reflections on the problems of telling a story will not necessarily help. This does not mean that attention to how the story is told is irrelevant. It is of the utmost importance. What is needed, however, is not a form that self-indulgently focuses on the historian’s act of narration, but one that is both appropriate to the events being recounted and well executed.

Grossberg clearly spent considerable effort trying to find a form appropriate to his material, and as I have already noted, he tells a fascinating story. Nonetheless, the care he took invites readers to scrutinize his choice of words and metaphors with equal care. For instance, when Grossberg di- vides his account of the trial into three “acts”--“Client Stories,” “Lawyers’ Stories,” and “The Judges’ Story”-I understand that these acts are designed to suggest the drama of the trial. I also understand why the “stories” in the first two acts becomes a single “story” in the judges’ act. But why are “lawyers”’ and “judges”’ plural and possessive while “client” is singular and not possessive ?

I can imagine some legal scholars protesting that such a question is a minor stylistic one that distracts attention from more important substantive issues.13 But, if Grossberg’s argument about the importance of narrative is

12. On how later in the nineteenth century the lawyer Nicholas St. John Green challenged the metaphor of the “chain” with important consequences for narrative in the law, see Thomas 1996. In that essay I offer a much more elaborate discussion of experimental narratives in recent historiography.

13. One aspect of the book‘s ‘‘style” that is a minor irritant precisely because it distracts us from the book‘s fascinating argument is faulty proofreading. Words are sometimes missing from sentences. Names as well as legal doctrine seem in flux. At one time we get “Victor Turner” (p. 254 n.2), at another “Victor W. Turner” (p. 254 n.4), at another “Victory M. Turner” (260 n.1). There is “Jiirgen Habermas” (p. 169) and “Jergen Habermas” (p. 260 n.2).


correct, we need to remember that his narrative unfolds in words. In assess- ing the effectiveness of any written narrative, we need to look at more than what authors say they are doing; we also need to look at the exact words that they put on the page before us. As D. H. Lawrence exhorted, ‘Trust the tale, not the teller.” What does Grossberg’s tale tell us?

One relatively minor example of the tale telling us something somewhat at odds with Grossberg’s conscious intention is the fact that the endnote in which he remarks that he “intentionally use[s] the term ‘recounting’ in agreement with Megill” (p. 244 n.13) is appended to a paragraph in the preface that never uses the term. In fact, by my reading “recount” is used only once in the preface (p. xiv), while variations on “recover” and “capture” are far more frequent. As should be clear by now, I do not want to use this lapse to demand that writers of legal history should abandon the attempt to recover the past. As far as I am concerned, it would be a mistake for those writing history of any kind to do so. My point is simply that even a writer like Grossberg, who is very aware of the importance of the metaphor of “recounting,” slips back into metaphors of “recovery” when it comes time to put words on the page. The words and metaphors that an author actually uses can imply stories not fully intended.

I will conclude my reading of Grossberg’s book by looking closely at the words that actually appear. First, I will look at his narrative point of view to call attention to a difference between his stated intention and exe- cution. I will conclude by looking at the story about “legal experience” im- plied by the crucial metaphors he uses to structure his narrative.

IV

Grossberg does not simply want to tell us about his case, he wants readers to experience it as people of the time experienced it. As he puts it:

My goal is to bring the d’Hauteville case back to life and through it to provide a glimpse of the legal culture in which it raged. I want to give readers a chance to experience this parental struggle as the maelstrom it was. Much of the power and social significance of a case like this comes from the way it forces every observer to identify with and judge the individuals at the bar of justice. I hope my narration provokes similar reactions. In the end, only by reaching a verdict on Ellen and

We also get occasional grammaticat lapses, especially dangling modifiers. Within two pages we are treated to these: “As a resident of Vaud, which had similar jurisdictional power within the Swiss confederation, this knowledge would not have been startling to Gonzalve” (p. 37) and “Assuming, quite rightly it would turn out, that Gonzalve would return to Manhattan if his search in Boston proved fruitless, New York became a possible site for further legal com. bat” (p. 39). Seemingly harmless errors, dangling modifiers are revealing in that they say something that their author did not intend to write.


Gonzalve can the full meaning of their case be understood and the irresistible lure of the law be appreciated. (P. xv)

Part of the experience of the trial was its uncertainties.

As in most trials, the outcome remained uncertain until the very day of the verdict. And, as in most controversial trials, disagreement over the verdict immediately engulfed the case. These time-bound uncertainties and disagreements were critical parts of the case, and only narrative can recover their significance and that of the other major legal events of the case. (P. xiv)

This last quotation seems to announce Grossberg’s intention to have readers experience the trial’s uncertainties and disagreements. Indeed, com- pared to other accounts, his does generate uncertainty by withholding information about the trial’s outcome until late in the book. But Grossberg shields readers from other sorts of uncertainty because he feels compelled to “recover” their “Significance for us.” In order to help us understand that significance, Grossberg frequently comments on the trial’s events and inter- prets their meaning for us. Thus, whereas Grossberg promises an innovative narrative technique, when it comes to authorial commentary he offers an example of what Burke, citing Hayden White, calls historians’ traditional reliance on the techniques of nineteenth-century literary realism.

Burke and White do not have in mind the realism of Gustave Flaubert, who became a precursor to literary modernism by withholding narrative commentary. They have in mind instead the sort of realism against which Flaubert reacted, a realism in which narrators comment on the action as they unfold it. The distinction is between showing and telling. Grossberg does not so much show as tell. He is an intrusive narrator in the manner of Thackeray or Dickens. For instance, although he withholds information about the outcome of the trial, he often foreshadows events, such as when he notes, “Though she would later say he misunderstood what she had said, her words convinced David that she really wanted to marry Gonzalve” (p. 11). Most important, he continually helps readers evaluate actions and characters. For instance, rather than simply describe Ellen’s and Gonzalve’s marital difficulties, he explains their significance by framing them in terms of conflicting theories of marriage.

In providing such commentary, Grossberg, like most historians, is simply providing readers with a context to understand the events he narrates. But we need to remember that not all contexts are the same. Marxist and Whig historians, for instance, are likely to provide different contexts to explain the same events. How we interpret the significance of events depends on the context in which they are placed. Furthermore, a “context” is itself constituted by events that require interpretation and reconstruction. In


other words, to provide a context for events is as much an act of “recounting” as narrating the events themselves.

There is certainly nothing wrong with providing readers with a context. A coherent argument can even be made that historians have a respon- sibility to do so. But anyone making such an argument needs to acknowledge that to provide a particular context is to rule out providing another. Furthermore, to provide a context through authorial commentary-especially a compelling one-is to shield readers from much of the uncertainty experienced by those actually participating in the events. After all, people immersed in the uncertainties of a trial do not have the luxury of having its events framed by a context retrospectively created by an expert historian. In Grossberg’s case, his desire to provide a narrative that “recover[~]’’ for readers the “significance” of the trial’s “uncertainties and disagreements” (p. xiv) takes priority over his desire to “give readers the chance to experience this parental struggle as the maelstrom that it was” (p. xv). There is nothing wrong with choosing that priority. Nonetheless, a narrative that relied more on showing than telling would have put readers in a more immediate-and uncertain-relation to the action being narrated.

For an example of how to establish such a relation we can turn briefly to James Goodman’s The Stones of Scottsboro. Goodman’s book is about the famous 1930s trial in which a group of southern black youths were convicted of raping a white woman. Like Grossberg, he emphasizes the role of story telling in his account of the trial and the incidents related to it. Thus he answers “the question ‘What Happened?’ with a story about the conflicts between people with different ideas about what happened and different ideas about the causes and meaning of what happened-a story about the conflict between people with different stories of Scottsboro.” In order to find a form appropriate to that story, “I have struggled to stay true to my sources. And have kept myself, as a character, out of my stories, writing each of them from a third-person point of view” (Goodman 1994, xii-xiii). The effect is to put his readers into a more or less direct relation to the stories he tells, thus forcing them to form their own judgments about them and the people who tell them.

I say “more or less” because, as Megill would remind us, readers can never have an immediate experience of the past. Any “recounting” places itself between readers and the events being recounted. Goodman acknowl- edges this when he writes that Stones of Scottsboro “is my story of Scottsboro.”

My stories are not transcripts of the stories told in the 1930s, any more than the stories told in the 1930s were transcripts of the facts. I decided whose stories to tell and how to tell them. I chose central themes and some of the contexts in which I would like them to be understood.


I decided who should have the first word, and who should have the last. I imposed order-at the very least beginnings, middles, and ends-where there was rarely order, created the illusion of stillness, or comprehensive movement, out of the always, seamless, often chaotic, flow of consciousness and experience. (Goodman 1994, xiii.)

In other words, Goodman, like all historians, has chosen a formal structure that mediates the events he is narrating. But through his narrative stance of withholding editorial comment, he creates more than an illusion of immedi- acy. Readers of Stories of Scottsboro, like readers of a modernist work of fiction, are forced to make the sorts of judgments that Grossberg hopes to evoke in his readers without filtering them through the sort of interpretive analysis that Grossberg provides.

My point is ultimately quite simple. Grossberg has two goals, one of which is “to bring the d’Hauteville case back to life” (p. xv). But if he really wants readers to have a relatively immediate relation to the trial, he needs to adopt a narrative point of view much closer to Goodman’s, one that does not intervene with commentary designed to guide their judgments. Indeed, as Burke notes, an excellent way to allow readers to hear the conflicting points of view that make a trial a “social drama” is to adopt the “model of the novelists who tell their stories from more than one point of view” (Burke 1992, 238). Grossberg reports various points of view, but unlike Goodman he subordinates them to his own unifying perspective that inter- prets their significance for us.

A qualification and a word of caution before moving on. The qualification first. Filtering multiple points of view through one narrative perspective does not necessarily result in a unified story. In Billy B u d , one of the most stirring renditions of a trial in literature, Melville uses a third-person narrator who comments on the action. One of his most telling comments comes soon after Captain Vere has delivered his judgment that Billy must die. “The symmetry of form attainable in pure fiction,” he says, “cannot so readily be achieved in a narration essentially having less to do with fable than with fact. Truth uncompromisingly told will always have its ragged edges; hence the conclusion of such a narration is apt to be less finished than an architectural finial” (Melville 1962, 128). As the long critical debate over the meaning of Melville’s story demonstrates, neither Captain Vere’s judgment nor that of the narrator is able to subsume the book‘s various points of view into a unified perspective. On the contrary, Melville draws on a variety of techniques, including irony, to present an open-ended text in which various points of view vie for authority with no one becoming definitive.

Grossberg’s technique is not, however, Melville’s. Nor must it be. Like a good traditional historian, he offers his commentary to guide our understanding of the significance of the events he narrates. His narrative point of


view is, therefore, much closer to that of a judge. Judges’ verdicts, he writes, “must bring a trial to the kind of symbolic closure that laypeople and lawyers demanded from the courts” (p. 157). Similarly, his narrative offers the sort of analysis that most people expect from a historian. He has a thesis to prove, and he does his best to prove it. Although nothing is wrong with that approach, my point is simply that it is not the only one to take. Indeed, if one is intent on having readers experience as closely as possible the uncertainties and disagreements of a trial as participants did, Goodman’s technique is superior. Superior in this regard (if not others), but certainly not easy to pull off. My caution is linked to that difficulty.

Burke finds it “odd” that the novelists’ technique of multiple points of view “has not been taken more seriously by historians” (1992, 238). There may be a good reason for its neglect. As important as it is for historians to find a form and technique appropriate to their material and intentions, they need to work within the limits of their training. I t takes a lot of practice to tell a story effectively from multiple points of view. Part of the secret of Goodman’s success is the fact that he began his academic career in an MFA program for creative writers that gave him training in sophisticated narrative techniques. Part of the attraction of traditional forms of historical narrative is that they require less sophisticated techniques. Grossberg is, as I have already noted, an accomplished storyteller. Nonetheless, his storytelling skills seem better suited to the traditional form that he adopts than the more experimental one of Goodman.

But whether a point of view is traditional or experimental, all narratives have structures and metaphors that shape how readers experience the events being told. I want to conclude by examining the story that Gross- berg’s structure and metaphors imply about legal experience in antebellum America.

V

Grossberg’s plot is revealed by his chapter titles. The first is “Entering the Law’s Shadow”; the last “Back into the Shadow.” In between, the action moves from the law’s shadow into the courtroom and direct contact with the legal system itself. Grossberg gets his metaphor of a shadow from Alexis de Tocqueville’s description of Americans’ relation to the law: “The authority that is accorded to the intervention of courts of justice by the general opinion of mankind is so great, that it clings even to the formalities of justice, and gives bodily influence to the mere shadow of the law” (p. 2). Tocqueville’s metaphor, according to Grossberg, suggests how the d’Hautevilles “came to feel the law’s power over them” (p. 2). Most important, the metaphor “identifies how the formal legal order combined with popular legal ideology and customary practices to influence individual con-

Michael Grossberg’s Telling Tale 45 1

sciousness. It asserts the sense of legal entitlement that encourages individuals and groups to use legal beliefs in disputes about their status, rights, duties, and problems” (p. 2). Grossberg also feels that it suggests another important aspect of his argument.

The law could cast a shadow because it existed as a somewhat separate realm within American society. That is, the legal system was a relatively autonomous system of authority because it created rules and practices internally while at the same time those creations were influenced by social currents, political developments, economic changes, and other forces in the larger society. (P. 3)

All these points are important, but ultimately they are at odds with how Grossberg uses Tocqueville’s metaphor to structure his story. As his chapter titles reveal, Grossberg would have us believe that the d’Hautevilles began outside the shadow of the law, entered its shadow, directly confronted it, and then returned to its shadow. The fact that the book starts outside of the law’s shadow and ends within would seem significant on both an individual and a social level. On the individual level it implies that the legal battle had such a formative impact on the couple that neither would live outside the law’s shadow again. On the social level it implies an extension of law’s influence. According to Grossberg, the case helped “to extend the law’s shadow over more men and women caught in troubled marriages” (p. 239). As such, the trial signals a trend in which “the law’s reach has extended over more and more aspects of American life as more and more people made the same j oumey into the law’s shadow as the d’Hautevilles” (pp. 235-36). Indeed, for Grossberg the trial illustrates the “interactive real- ity of law’s hegemony in America” (p. 236). Grossberg’s story about law’s hegemony deserves closer scrutiny.

In a footnote Grossberg mentions drawing “distinctions between hegemony and ideology” (p. 25 1 n.68). Unfortunately, although the paragraph to which it is appended mentions both “law’s hegemonic power” (p. 65) and “legal ideologies” (p. 66), it offers no precise definition of either. The note does, however, express a debt to John and Jean Comaroff.“f According to the Comaroffs, “[hlegemony consists of constructs and conventional practices that have come to permeate a political community; ideology originates in the assertions of a particular social group” (1992, 29). The Comaroffs’ definitions are clearly intended to combat complaints that those relying on a notion of hegemony deny the possibility of individual agency. For them, hegemony may be nonagentive, but ideology is agentive. If people un-

14. Grossberg relies on Comaroff and Comaroff 1993; I rely on Comaroff and Comaroff 1992. The notion of hegemony is the same.


reflectingly conform to conventional practices, within those practices they can make different ideological assertions.

Using the Comaroffs’ definitions, we can see that, for Grossberg, law’s hegemony signals the fact that “many early nineteenth-century Americans turning to the law acted on beliefs and conventions so deeply embedded in their culture that they were seen, when considered at all, as inevitable, indeed natural parts of the world” (p. xi). For instance, when the d’Hautevilles turned to the law, they “focused on the meaning of particular rules and procedures rather than the legitimacy of the law itself’ (p. 66). But even though both were within “law’s hegemony,” they still asserted different legal ideologies. The d’Hauteville case is, therefore, on the one hand, a story about Ellen’s and Gonzalve’s competing ideologies and, on the other, a story about the extension of “law’s hegemony over contested social relations” (p. 91). The moral of that story is that “law had tightened its stranglehold on American dispute resolution” (p. xi).

Without a doubt Grossberg is right to note the increased reliance on courts to mediate disputes within American society. Nonetheless, to my mind neither the label “law’s hegemony” nor the metaphor of law tightening its “stranglehold” is appropriate to describe the complexity of that story.

In addition to acknowledging a debt to the Comaroffs, Grossberg cites an indebtedness to “Gramsci’s concept of hegemony” (p. 243 n.4). Gramsci shaped current thinking on hegemony by complicating its traditional use to describe political rule or domination of one state over others. Instead, he made a distinction between rule, which is expressed in direct political forms, and hegemony, which is maintained through a complex interaction among political, social, and cultural forces.’5

Given Grossberg’s interest in law’s interaction with cultural and social forces, it is easy to see why he is attracted to Gramsci. Nonetheless, a crucial aspect of Gramscian hegemony is missing in Grossberg’s concept of law’s hegemony. Gramsci uses hegemony to complicate our understanding of rule, but he still uses it to describe how an inegalitarian order is maintained. The Comaroffs try to account for this aspect of hegemony when they write: “He- gemony is that part of a dominant ideology that has been naturalized and having contrived a tangible world in its image does not appear to be ideological at all” (1992, 29). For them, the “more successful any regime, the more of its ideology will disappear into the domain of hegemonic practice” (1992, 30).16 What group, we need to ask, maintains its power through the extension of law’s hegemony?

15. See the excellent discussion in Williams 1977, 107-14. 16. There is a potential slippage in the Comaroffs’ distinctions between ideology and

hegemony. Grossberg uses these distinctions to imply that individual ideologies operate within the larger frame of hegemony. But when the Comaroffs consider how regimes maintain power, the relation switches and hegemony becomes part of a dominant ideology.


Having abandoned-rightly to my mind-the narrative in which law simply serves the interests of a dominant class for one in which law becomes an arena for competing ideologies, Grossberg cannot provide an answer to that question, unless it is the legal profession itself. But even the most viru- lent lawyer hater would be hard-pressed to prove that lawyers became the dominant class in the antebellum period, especially because, as Grossberg shows, they served competing interests. The notion of law’s hegemony offers little insight into the relative power of social groups.

There is another reason why the notion of law’s hegemony is not helpful in describing how more people turned to courts to resolve domestic disputes. Gramsci introduced hegemony to challenge the belief that power simply emanates from political institutions. His important point was that overthrowing political rule would not be enough to bring about a revolution because domination is maintained through social and cultural practices as well, practices that influence the political as much as vice versa. The law, however, is part of traditional political structures. To speak of “law’s hegemony” is, therefore, to undercut the force of Gramsci’s interactive model and to resort to a simpler model of “rule,” in which power comes from the traditionally political, which then exerts control over all aspects of life.

Grossberg tells a compelling story about legal change resulting from a complex interaction among social, cultural, and political forces. Rather than reinforce the complexity of that story, the phrase “law’s hegemony” undercuts it by implying a much simpler story in which people become vic- tims to an all-pervasive legal system. Grossberg’s version of this story is not as extreme as those feeding the paranoid fantasies of state control generated by both right-wing militia groups and some holdovers of the “new left.” Nonetheless, it is reinforced by metaphors like that of the law tightening “its stranglehold on American dispute resolution” (p. xi). That metaphor conveys a very negative image. But what was the historical alternative?

I seriously doubt that Grossberg wants to return to the era of coverture, when legal authority for custody of a child almost always went to the father and a mother’s standing in courts of law was itself questionable. But his metaphor of the law tightening its stranglehold implies an earlier, less con- stricted time. To be sure, Grossberg makes a nuanced point. The increased influence of matemalism in custody cases did not dislodge legal patriarchy; it allowed patriarchal judges to take over power previously reserved for fa- thers. “Instead of deferring to male heads of households, the Philadelphia jurists claimed for judges the broad discretionary power to rule over families who brought their problems to the law” (p. 160; see also Grossberg 1983). This part of Grossberg’s argument accounts for his title. Judges, he tells us, “assumed the throne of Solomon to act as responsible patriarchs sagely resolving the problems of women and lesser men in troubled families” (p. 156).


But what are the implications of this point? Does it mean that law extended its “shadow”? On the contrary, isn’t it more likely that fewer custody disputes were brought to the courts under coverture precisely because the law cast such a wide and pervasive shadow? There may have been fewer cases of direct intervention by the courts, but that was because the law was so absolute that women rarely felt empowered to use legal means to retain their children. Increased judicial intervention may have perpetuated the law’s patriarchal rule, but it was also a sign of increased female agency under the law. Rather than accept coverture as an unquestioned rule of nature, judges began to have some doubts about its fairness. Thus their intervention was a sign that mothers, previously silenced while living in the shadow of the law of coverture, began to express a sense of entitlement by direct appeal to the legal system. To my mind, the image of the law tightening its stranglehold on American dispute resolution is not appropriate to describe this complex process.

Even more telling than this image, however, is the image of the law’s shadow that structures Grossberg’s entire narrative. “The legalization of the d’Hautevilles’ marital problems,” we are told, “is a revealing example of why people enter this shadowy realm and what happens to them once they are trapped there” (p. 3). The language of this quotation is revealing for two reasons. First, it implies that the law is a realm that traps people. Second, it implies that people can choose whether to enter the shadow of the law.’7 Both implications are at odds with the interactive model of law and society that is the great strength of Grossberg’s book. Let’s turn to the second first.

A t times, people choose to go to court, but they do not choose to enter the shadow of the law. If they could choose, the law would have much less power to shape people’s consciousnesses than Tocqueville’s metaphor implies, since people could then decide whether it would affect them or not. But Tocqueville’s statement is not about people entering law’s shadow; it is about the power of law’s authority to be incorporated even in its shadow. The authority accorded to the law “gives bodily influence to the mere shadow of the law” (p. 2). Grossberg, not Tocqueville, uses the metaphor to construct a story about the increased scope of law’s power. Yet, as the effect of coverture suggests, the metaphor can just as easily be used to show how the law cast its shadow over society long before changes in the law of custody.

To be sure, the process by which it does so is complicated. A few years before the d’Hauteville trial, the famous antebellum lawyer Rufus Choate argued for literature’s influence in shaping the national consciousness. “A keen, well-instructed judge of such things said, if he might write the ballads of a people, he cared little who made its laws” (Choate 1862, 343). Choate

17. See also “Now [Gonzalve and Ellen] had to learn more about the shadowy realm they had decided to enter” (p. 33, my emphasis).


might seem to imply that forces prior to the law shape it rather than vice versa. But the effect is not simply one way. The law also affects the stories told in ballads and literature. For instance, as others have shown, the con- struction of a Lockean story of individuals existing in a state prior to the imposition of law is itself a product of Roman and feudal jurisprudence that, as J. G. A. Pocock puts it, established “images at the existential centre of the Western sense of what an individual is” (1992, 32; see also Macfarlane 1979). Whether or not he intends it, Grossberg’s image of people existing in a realm outside the shadow of the law and then entering it confirms this Lockean narrative.’* In contrast, I would argue that people in the West, at least, have-for a long time-been born always already within the shadow of the law.

To argue that people are always already born within the shadow of the law might seem to deny them agency to resist its control. But precisely the dynamic relation between the law and other social forces that Grossberg is so good at detailing keeps the legal system from being monolithic. The legal system not only arbitrates conflicts, it also responds to and generates conflicting ideas. If Gonzalve’s view of marriage was in part shaped by the law of coverture even before his legal dispute, Ellen’s was in part shaped by another aspect of the law: the increased prestige given to the idea of contract as mutual agreements between equal bargaining partners. At first the rise of contract belonged to the economic, not the domestic sphere, but it did influence some people’s beliefs about the nature of marriage. For instance, Grossberg quotes Merril D. Smith to describe Ellen’s view of marriage: “Marriage was now to be considered a republican contract between wives and husbands, a contract based on mutual affection” (p. 15). It is probably no accident that Lord Mansfield, who first challenged complete dominance of coverture, was a great champion of contract in the economic sphere.’9

People may be born into the shadow of the law, but that does not mean that they are simply trapped there. The law also provides them with a language and a vocabulary to assert various rights. Indeed, it may be that rights do not exist outside a framework of the law. To be sure, the effect of people feeling entitled to numerous rights is not unambiguously positive. In the United States it has generated a litigious society that has many drawbacks. Nonetheless, Grossberg’s image of being “trapped” in the shadow of the law does not adequately describe the complexity of that situation.

If anyone is trapped, it might be Grossberg, who gets trapped by Toc- queville’s metaphor into implying-perhaps against his own intention-a

18. This Lockean narrative is reinforced by sentences like, “Love, of course, preceded law” (p. 3).

19. Mansfield was also one of the first jurists to challenge at least some of the legal authority of slavery. For more on my view of Mansfield and contract, see Thomas 1997, 33, 46. and 307 n.22.


narrative of individuals preexisting the law. The metaphors and narratives that we rely on are telling. They enable our thinking and help to organize thoughts. But they also frame and limit them. Indeed, these two functions are related. Grossberg is so attracted to Tocqueville’s metaphor that he does not see how it might come into tension with the story he wants to tell about the dynamic, interactive relation between law and society. The metaphor serves him well in suggesting how law has an indirect as well as direct effect on society. But it is not helpful in suggesting the reverse effect. After all, what shadow affects the body that produces it?

Grossberg is intent on telling the story of how social forces affected by the law also affect it. But his use of the metaphor of the law’s shadow posits a realm in which people exist outside the law and are then caught within its increasingly powerful stranglehold: what he calls “law’s hegemony.” Perhaps one unintended lesson of this excellent book is not about “law’s hegemony”-a concept that I find problematic-but about the potential power of language and metaphors to further existing hegemonic rule by trapping us into telling stories that we may not intend to tell, like the Lockean one about people living outside the shadow of the law. Whereas Grossberg high- lights the role that narrative plays in the law, it is also the case that language and metaphors in part shape the stories we tell. Supplementing the fascinating story that Grossberg tells about the complicated interaction among social, cultural, and legal forces at play in a specific trial, this lesson might help us shape a somewhat different story, a story in which people do not exist prior to the law, but are, nonetheless, at least indirectly always before the law. Grossberg’s account of how, through their stories, people in such a situation can effect legal change while being affected by it makes this book an extremely valuable resource for anyone interested in the relation between law and society.

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