The Oracle and the Curse: A Poetics of Justice from the Revolution to the Civil War by Caleb Smith (review)

How did legal realism arise in American jurisprudence? Where did radical “higher law” critique come from? Part of the genius of Caleb Smith’s The Oracle and the Curse is the argument that these two seemingly disparate genealogies actually share a common origin among “the varieties of nonrational persuasion” in the early Republic (ix). As American legal authority secularized in the wake of the Revolution, Smith contends, wielders of legal power (judges, lawyers) emptied themselves of selfhood to serve as mouthpieces for the impersonal, eternal law. At the same time this rhetoric was developing, victims of legal power (convicts, rebels, censured preachers and reformers) inhabited other forms of self-abnegation, but as mouthpieces for God, justice, and the sheer need to be heard. The first strategy was that of the oracle; the second was that of the curse. The introduction begins with an extended reading of John Brown’s trial. As a drama of oracular justice and of cursing flung beyond the courtroom by the fiery yet media-savvy Brown, the 1859 trial is just the kind of cataclysmic media event to raise the book’s central questions: how did the courtroom’s various speakers come to have such rhetoric available to them, and why was it so fascinating to the increasingly divided nation at that moment? Smith begins to construct an answer by tracing first the history of legal treatises and then the rise and evolution of popular trial literature and criminal biography in early national print culture.

One of Smith’s most distinctive moves is the fresh deployment of classic criticism, ranging from the law-and-literature works of Brook Thomas, Wai Chee Dimock, Guyora Binder, and Richard Weisberg to the intellectual histories of Perry Miller. The legal treatises Smith excavates are a prime example of his canny revisiting of this earlier work, in this case Miller’s. Smith shows that American treatises addressing the common law drew carefully on William Blackstone’s concept of ancient law as emerging from the English people—who were thus called into being to legitimize the laws of property Blackstone elucidated. Wary of the old-guard elitism of Blackstone’s text, American commentators nonetheless harnessed Blackstone’s performative prose style to elevate legal minutiae to a locus of national pride and loyalty: to embrace America’s laws is to be American. Much of this rhetoric was subtly aimed at stemming the tide of populist reform that sought to place state and federal statute books produced by the people’s elected representatives above the authority of precedents drafted by and for the learned keepers of case law. To become oracles of law, American scholars and judges insisted that their own personalities and views were absent from their judgments: they merely voiced the will of the people writ large in time as well as space. As Smith points out, however, while this approach dominated major antebellum Supreme Court opinions such as Roger Taney’s in Dred Scott, the oracle appeared in literature only to critique that rhetoric. In the figure of Nathaniel Hawthorne’s Judge Pyncheon in The House of the Seven Gables, Smith locates the era’s most withering portrait of the legal arbiter who manipulates the law for his own ends while claiming that the law necessitates his actions. While Hawthorne stops short of deploying the rhetoric of the curse against Pyncheon and his kind, Charles Brockden Brown’s Theodore Wieland embraces the curse as his only public response to the oracular power of the law during a murder trial. Smith’s reading of Wieland is certainly one of the best moments in the book, as he uses contemporary material from William Beadle’s murder trial as well as Sketches of the Life of Joseph Mountain, a Negro (1790) to illuminate Wieland’s courtroom speech as refusing to speak before friends and summoning a public of curious onlookers in...