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  • The Property of Blackness: The Legal Fiction of Frank J. Webb's The Garies and Their Friends
  • Elizabeth Stockton (bio)

In the preface to Frank J. Webb's 1857 novel The Garies and Their Friends, Harriet Beecher Stowe praises the novel for addressing a question that greatly absorbed the nation: "Are the race [who are] at present held as slaves capable of freedom, self-government, and progress?" (Garies 25). Stowe's comments reveal her belief that Webb's novel—and fiction more broadly—can examine and even resolve deeply divisive political debates. Specifically, Stowe argues that by envisioning African Americans' "freedom, self-government, and progress"—the necessary qualities for political agency in antebellum America—Webb legitimizes African American claims to civic identity. However, contemporary literary critics often disregard The Garies because they claim, unlike Stowe, that it offers a limited view of African Americans' capacity for "progress," especially away from white ideologies, such as the cult of domesticity. 1 In this article, I argue that these interpretations arise from treating The Garies from a limited literary perspective. Instead, we should take more seriously the novel's engagement with antebellum political rhetoric and reconsider the novel as an alternative legal fiction, written during a period in which African Americans were often silenced, erased, or negated by the American judicial system.

Although many critics have noted Webb's interest in African American domesticity, few have paid attention to Webb's engagement with the legal discourse of his time. Yet The Garies is populated by several lawyers and filled with numerous legal cases. It also contains countless references to legal rules and practices, especially—and as I contend, not coincidentally—those surrounding citizenship and marriage. Centrally, The Garies takes up the antebellum belief that marriage bolstered male self-possession, or "self-government," as Stowe called it. Self-possession, the notion that one owns oneself, distinguished free peoples from enslaved peoples and was considered a prerequisite for citizenship, according to American legal discourse. In The Garies, Webb depicts the ways that marriage can secure African American male self-possession, and in so doing, he also sharply critiques antebellum jurisprudence for racializing the roles of husbands and wives.

To understand better the legal context of Webb's novel and the target of his criticisms, I will investigate a specific case that demonstrates the ways antebellum courts endorsed racial hierarchies and barred African American couples from enjoying the same privileges as their white counterparts. In 1814, George Stephens, a free African American, appeared before the Pennsylvania Supreme Court seeking a writ of habeas corpus to return his wife Susan from indentured servitude. Before marrying Stephens, Susan had escaped from slavery in Maryland and settled in Philadelphia. Not long after their wedding, Susan's former master tracked her down and prepared to return her to enslavement. At this point, Joseph Clements, a white friend of the Stephenses, offered to pay for Susan's manumission on the condition that the couple would serve as his indentured servants. Three months after Susan signed her indenture papers, George Stephens filed a writ of habeas corpus, arguing that as a wife and feme covert, Susan did not have the legal authority to alienate her services from him and that the terms of her indenture should therefore be nullified.

Stephens's writ relied on the common-law concept of marital unity—a legal fiction that asserted that husband and wife merged into one identity when they married. For [End Page 473] much of the nineteenth century, marriage was a status relationship—with predefined roles and responsibilities—rather than a purely contractual one. 2 As part of the common law's construction of marriage, a husband had an exclusive right to his wife's labor, and neither the wife nor the husband had the authority to alienate it from him. Stephens's lawyer urged the court to uphold the notion of marital unity, relying on the common law's assertion that a wife's legal identity and labor belonged to her husband.

The defense argued that because Susan Stephens was a slave, she had no legal right to enter into a marriage contract. According to this view, she was not legally married and...


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