Novelistic Evidence: The Denmark Vesey Conspiracy and Possibilistic History

Précis

The recent historiographical controversy about the reality (or unreality) of the conspiratorial plot allegedly organized by Denmark Vesey in 1822 Charleston, South Carolina, raises crucial questions about the quality and nature of linguistic evidence. The alleged conspiracy has been much discussed by historians, but the evidential problems it highlights—the juridical status of conspiratorial talk, the recollected nature of oral testimony, and the perspectival bias of written records—also make it a uniquely instructive test case for ongoing debates about historicism in literary studies. This essay uses the interpretative impasse in Vesey scholarship to reexamine literary criticism’s own ambivalence about the evidential value of language, which underwrites its fetishization of both contextualization and the hyper empiricism of quantitative methods. I argue that the linguistic character of conspiracy as an inchoate crime requires a different method of analysis, one that attends to the historical impact of linguistic performatives. Conspiracies are plots above all else; they share more with the novel as a possibilistic form of history than with the empirical rehearsals associated with criminal jurisprudence. Understood thus, the methodological moral of the Vesey controversy is as germane to literary critics as it is to historians: we need to stop looking for material actions behind every plot, and address the very real consequences of the possibilistic histories they concretize—possibilities that reflect and transform cultural assumptions even if/when they are never enacted. [End Page 26]

Etymologically speaking, the word “evidence” pertains to the visible world. Derived from the Latin word for “to see” (vidēre), the term “evidence” is underwritten by the materialist assumption that vision affords the most direct—and most reliable—basis for knowledge (“Evidence, n.”). Within the interpretative framework of modern law, this tacit preference for physical forms of proof almost seems to go without saying. “Immediate real evidence,” which is made present to the senses of the court, “is of all proof the most satisfactory and convincing,” as William Best observes in an influential mid-nineteenth-century treatise on evidence (251). Oral testimony cannot approximate the authority of tangible evidence: the “evidence furnished by a view of the ‘res’ or thing itself” (Wigmore 13)—termed “real evidence” by Jeremy Bentham and others (Treatise 146).¹ As the term itself suggests, some types of evidence are considered more “real” than others—and “things” offer a seeming self-evidence that tends to elude oral testimony (which is referential and indirect).

The threat of fabrication haunts the conceptualization of testimonial evidence. Witnesses do not have perfect memories or neutral dispositions. Even the most detailed and well-intentioned testimonials cannot escape the interpretative work of reconstruction. The ban against admitting hearsay might be seen as a specialized expression of underlying anxieties about the reliability of testimonial evidence more generally; things that are merely overheard lack the evidential priority of things overseen. The injunction that “You must not tell a tale of . . . what you heard one say” (663)—to recall a formative 1681 precedent on hearsay in Colledge’s Trial—registers a basic discomfort with the recollected and performative dimension of testimonial evidence. Oral proof “is but a makeshift” (170), Bentham argues in An Introductory View of the Rationale of Evidence (1843). For Bentham, written evidence is preferable to oral testimony, because the materialization of testimony through writing gives it the permanence of a thing. “Barring criminal falsification, written evidence, being permanent, expresses itself as itself at all times. Of oral evidence, the identity vanishes as soon as it is exhibited. The next moment it, or rather what professes to be it, is no longer original evidence, but unoriginal, hearsay evidence” (171). If Bentham’s remarks about the relative reliability of written evidence seem a little optimistic, it is because he focuses on the self-consistency of the document (over time) rather than its representational consistency (with the event described).

Evaluating the reliability of testimony is one of the basic challenges of adjudication, but these assessments assume special significance in cases of inchoate crime such as conspiracy and attempt, where there is usually little if any physical evidence. As types of crime, conspiracy, and attempt are distinguished...