Who Owns Uncle Tom’s Cabin? Literature as Cultural Property
Chapter 7
Who Owns Uncle Tom’s Cabin? Literature as Cultural Property
[W]e fundamentally misunderstand the very concept of property if we focus primarily upon a Western model of exclusive individual and corporate ownership … . Property plays many roles in societies; it makes itself manifest in ideologies, multiple legal systems, social relationships, social practices, and in the interrelationship between these … . Surely, the very topic of cultural property demands greater critical reflexivity with respect to property’s diverse forms … .
Rosemary Coombe (2009: 14–15)
Introduction
While certainly not an exclusive invention of the early modern era, the idea that ideas can be owned and claimed as property came to play a decisive, even essential role in the emergence and formation of the modern state and its subjects. Moreover, the institution of intellectual property as a legal concept at the beginning of the eighteenth century had a crucial impact on the ever expanding purview of capitalist forms of propertisation and exchange from the realm of the tangible to the intangible which continues to haunt contemporary debates about globalisation, ownership and cultural identity. Thus, for instance, Caren Irr (2001) has argued that intellectual property, especially in the form of literature, ‘has a historically original role’ because it prefigured ‘the treatment of a wide array of the new economy’s most valuable products’:
literature as intellectual property, in earlier phases of capitalist development, operated first as a homology for mercantilist means of accumulation and then as a synecdoche for industrial expansion; in the context of globalization, literature as intellectual property operates proleptically. (Irr, 2001: 774)
If literature – or more precisely the notion that literature could be a form of property – in this way prefigured modern legal, economic, and even political concepts and theories of subjectivity, personhood, ownership and freedom, the concept of literary property does not simply present a specific way of thinking about ownership in regard to the incorporeal, the evanescent, the transient, the immaterial or the imaginative, indeed, the geistige Eigentum: the property of the ‘spirit’. Rather, literary property comes to stand in for an essential condition of modern proprietary relations: A way of conceptualising property – of living and realising ownership – which trades in (quite literally) the objective reality of an object owned for the experience of subjectivity by way of imaginary identification, i.e., a form of fantasmatic ownership which could be described both along the lines of spiritual and psychological possession and desire. Thus one particular feature of the uncanny ‘proleptic’ modernity of literary property is its co-emergence and complicity with a speculative economy which couples desire and investment and, at the same time, disconnects appropriation and the sense of property from actual possession. During the seventeenth and eighteenth centuries, property itself became increasingly virtualised (and mobilised) and the more it came to rely on the market of exchangeable, abstract value, symbolised and secured by various forms of documents, the less it was geared towards an actual object of value (i.e., ‘real property’). As Martin Kayman has commented:
the development, through the seventeenth and eighteenth centuries, of government debt, lottery tickets, insurance policies, bonds or shares in joint-stock companies, options for their future purchase or sale, bills of exchange, discount bills, endorsable bearer bonds, and promissory notes or bank notes, as well as the generalized increase in the importance of contracts, testified to the fact that property was undergoing a profound change. Rather than the natural solidity of land, property was increasingly taking the form of signifiers of abstract value, paper bearing promises of future expectations, whose reality at the moment was only imaginary, and whose value was defined not by substance or use, but by a deferred closure, or by the price for which it could be sold, or people could be persuaded to believe it might later fetch. In sum, then, the new regime installed by the Glorious Revolution was that of a constitution subordinate to the rule of law, a law based in ‘real property’, in which citizens engaged increasingly in the commercialization of signifiers of imaginary realities. For obvious reasons, the literary was to prove paradigmatic of the new forms of property and the book trade was to become both materially and symbolically a significant context for the commerce in such properties (Kayman, 1996: 767–8).
The rise to dominance of this speculative economy and the exchange of abstract values also had major consequences with regard to the cultural conception of property itself – most obviously in the sense that property became ever more ‘fluid’ as it could be won and lost in much less time than before, also meaning more and more that property ceased to be the most obvious and reliable indicator for historical and genealogical entitlement. Another way of putting this would be to state that property turned from a discourse about valuable objects into a discourse about valuable claims, i.e., discursive investments into future profits within an economy based on the rhetoric of promise, trust and creditworthiness.
The increasing convergence and subsequent transformation of property concepts in the wake of the expansion of capitalist speculation was certainly not without conflicts and tensions, and arguably one of the most symptomatic conflicts with regard to legal and moral limitations of proprietary relations was the conflict about slavery in the US which culminated in the Civil War. Yet while it certainly dominated public debate, the contested issue of slavery was only one within the larger struggle over the definition of ownership and property rights which also included the question of copyright and literary property.
As legal historian Stuart Banner (2011) has observed, Americans are ‘eager to claim ownership’ – these claims have always been haunted by the ‘troublesome question: what does it mean to own something?’. I would like to rephrase and revise Banner’s troublesome question by focusing on literature (and culture) as ‘something’ that can be owned, possessed and claimed as individual but also as collective property. What haunts the claim for literary property, I will suggest, is its unstable and unsecure status within the larger processes of propertisation, commodification, and exchange. So my question will not be ‘what does it mean to own literature’ but rather ‘how can we own literature?’ There are several answers to this question and my attempt here will be to demonstrate that these answers are related to each other, in fact, they are co-dependent, even where it would not appear so on first sight. I will therefore use the term ‘literary property’ as a radical or even transgressive notion, meaning both ownership in literature (i.e., literature as a form of property, whatever that may entail) and ownership through literature (i.e., literature as a form of owning or claiming something as property). This expansive understanding of ‘literary property’ aims at drawing the two different dimensions of literary ownership or appropriation closer together and – for want of better terms – I will refer to them as ‘internal’ and ‘external’ form(s) of ownership, respectively. In a second step, I will try to analyse the particular relationship between the two dimensions – the actual or objective sphere of ‘real’ property relations on the one hand and the imaginary, fictitious representation or dramatisation of these relations on the other – in order to come to a better understanding of their entanglement.
These tensions and ambivalences will then be reviewed and discussed using a Hegelian perspective on freedom and religion and the particular role of property with regard to legal personhood and social recognition. This reading is especially encouraged by the observation that the main conflict in Stowe’s novel results from the unresolvable conflict between the abstractions of legal form (especially property versus person) on the one hand, and the concrete experience of violent repression, suffering and injustice on the other – through which abstract law becomes actualised, i.e., objectified as a reality. The inherent conflict between abstraction and actualisation also informs Stowe’s struggle for authorial control and ownership and thus links the internal and external negotiation of proprietary relations concerned with the question ‘who owns Uncle Tom’s Cabin?’
In a concluding step, I will talk about a specific consummating moment of cultural appropriation at the end of the nineteenth century which helped to transform Stowe’s work into a collective form of cultural property as an exemplary literary achievement of nineteenth-century American culture. The major argument in my closing discussion will be that the very idea that literature could (or should) be regarded as a form of national cultural property presents an uneasy correlation between Lockean and Hegelian notions of ownership and property. On the one hand, this correlation of essentially antagonistic concepts allowed for the successful introduction of an international framework on literary copyright (i.e., the 1886 Berne convention, and in the US, the Chace act of 1891) based on the idea of the protection of national cultural property. On the other hand, however, the very success of the model of protection it helped to introduce has gradually eroded the correlation itself, and the antagonism between the two understandings of ownership has come back to haunt contemporary discussions about copyright and cultural property.
Owning Uncle Tom
Since its first serial publication in the abolitionist newspaper The National Era between June 1851 and April 1852, and its subsequent book publication in March 1852, Uncle Tom’s Cabin has been both highly praised and admired, severely criticised and attacked, as well as imitated, satirised, ridiculed and reviled by its readers. Critics have found it superior in morals and wanting in aesthetic expression – as well as morally ambivalent and highly effective in its affective, melodramatic strategies. All these positions, no matter how shifting and contradictory over time, have established a resonating space for the novel’s various cultural meanings which has lasted until our own time.
Thus, in one of the many contemporary editions (from 2001), the preface (by Jane Smiley) calls Uncle Tom’s Cabin ‘the most important American literary document of the nineteenth century … it is undeniably a hot property, and it has been almost too hot to handle since the day it was published’ (Smiley, xiii).
Smiley uses the term ‘property’ quite on purpose since, as she well knows, Stowe’s novel most and above all presents a literary document of nineteenth-century notions of property and ownership. Most obviously, of course, in its treatment of slavery as an institution based on the status of people – African-American slaves – as legal property owned by white slaveholders.
While the question ‘who owns Uncle Tom’ may be easily answered by referring to the names of the various owners who claim Uncle Tom as property, it is also obvious that the central concern of the novel lies less in the ‘who’ and much more in the ‘how’: slavery is not a homogeneous or stable system of ownership and there are obvious distinctions in the way proprietary rights and relations are realised. The comparison of these different forms of ownership is strategic for it allows Stowe to trace the decline and gradual perversion of an ideal form of ‘sentimental possession’ (cf. Merish, 1996) into an irresponsible and abusive as well as physically and morally destructive form of absolute ownership.
What Stowe clearly found the most troubling and indeed morally abhorrent and inacceptable aspect of slavery as a system of ownership is the transfer of title and possession – and thus the forced displacement and alienation of persons – made possible by this form of ownership. In other words, for Stowe, Uncle Tom’s scandalous status as property is characterised less by the simple (but fundamental) fact that he is owned, but rather by the fact that he can (and will) be sold. The latter condition is obviously contingent on the first; but what is more, it also introduces a split or difference within the concept of property and the notion of ownership. It actually suggests that property exists in more ways than one, in the sense that the concept may be realized in two rather different manners: on the one hand, complete or full ownership, which is realised through extensive identification with and responsibility for one’s property, and on the other hand we find proprietary relations in Uncle Tom’s Cabin which are characterised by alienation rather than identification. Property rights here are reduced to the rights of buying and selling objects, i.e., the contractual rights of commercial exchange. What distinguishes the two perspectives on property is precisely the degree of abstraction or actualisation, respectively, which defines the particular property.
Consequently, the opening scene of the novel presents a sales talk in which the main protagonist is introduced only in absentia both as a human person, and as a profitable purchase. But the scene not only defines Uncle Tom as ‘living property’ (Stowe, 2001: 46), it also sets the plot in motion by turning Uncle Tom into movable living property. The mobility of human property in fact is the major driving concern of the novel’s investigation of the system of slavery, both in the form of enforced removals through the selling and reselling of slaves down south, and in the form of the escape of fugitive slaves to the North.
Both types of movement are of course tied to each other in a dialectics that makes each the preliminary cause but also the inevitable consequence of the other. A cruel logic that characterises slavery as a system of ownership aimed at the maximisation of profits – yet also the logic that informs the melodramatic action of the novel ensuring the high interest and affective engagement of its readership.
The difference between movable and immovable property is crucial here for two related reasons: First, it marks both a distinction in forms of property and their inherent complicity. The sale that sets the living property and the events in motion is meant to avoid the loss of other more valuable objects, indeed, the master’s house and home. Moreover, it also deprives Uncle Tom of his cabin, again signalling the enforced separation of movable from immovable ‘property’ that is at the centre of the novel’s concern.
Second, the difference between the two types of property in the novel also marks an increasing tension between conventional and emergent cultural as well as legal notions of property throughout the nineteenth century. The conventional understanding of property was dominantly ‘physicalist and absolutist’, as Kenneth Vandevelde has argued in his seminal article on the transformation of property during the nineteenth century:
[A]t the beginning of the nineteenth century, property was ideally defined as absolute dominion over things. Exceptions to this definition suffused property law … [e]ach of these exceptions, however, was explained away. Where no ‘thing’ existed, one was fictionalized. Where dominion was not absolute, limitations could be camouflaged by resorting to fictions … . The result was a perception that the concept of property rested inevitably in the nature of things and that the recognition of some thing as the object of property rights offered a premise from which the owner’s control over that thing could be deduced with certainty. (Vandevelde, 1980: 328–9)1
In contrast, the ‘new’ concept of property, which emerged during the nineteenth century, was both less physicalist and less absolute:
By the end of the nineteenth century, [the] conception of property as absolute dominion over things had become fatally anachronistic, and was supplanted by a new form of property. This new property had been dephysicalized and thus consisted not in rights over things, but of any valuable right. The new property had also been limited. It consisted not of an absolute or fixed constellation of rights, but of a set of rights which were limited according to the situation’. (Ibid., 357)
Vandevelde’s assessment of the gradual transformation of the Blackstonian concept of absolute dominion over things and based on the relation between persons and material objects into a Hohfeldian notion of property as a bundle of rights which fundamentally concerns relation between people has been criticised – among others by Jeanne L. Schroeder – as being based on a reductive misreading of Blackstone. As Schroeder maintains, Blackstone was fully aware of the ‘intersubjective nature’ of property and he did not merely ‘present property as an immediate, binary subject-object relation’ (Schroeder, 2005: 164). For Schroeder the intersubjective dimension is at the heart of Blackstone’s concept of property as a right:
Blackstone not only is aware but expressly states that the concept of dominion can only be understood as the right of one individual in relation to other individuals. Blackstone recognizes property as objective, not only in the sense of relating to an object but also in the sense of being generally enforceable against the relevant community of legal subjects. That is, Blackstone does not simply describe property as power over a thing, as Vandevelde suggests. (Ibid.)
As Schroeder furthermore points out, Blackstone’s concept of property was also not
limited to rights to physical things … [i]ndeed, Blackstone makes it very clear that he uses the word ‘thing’ not in the sense of physical things but as objects of property. Such objects are defined in the negative – as that which are not human. … An ‘object’ is external – in the sense of other than – the ‘subject’. (Ibid.: 165, emphases in the original)
Schroeder does not question that notions of ownership and property did indeed change radically over the course of the nineteenth century. Her point is rather that the shift in perspective in legal theory from the objective to the intersubjective nature of property ‘represses’ the former aspect in favour of the latter. Thus her criticism is an important reminder not only that proprietary relations always entail an objective and an intersubjective dimension but also, and more significantly, that the transformation of property during the nineteenth century which Vandevelde and others have described cannot be simply understood as a shift from one paradigm to another, but rather as a consequential rearrangement or renegotiation of an already established but nevertheless constantly shifting correlation between the objective and the intersubjective dimensions of property. This rearrangement in turn must be understood as a reaction to a ‘crisis within the existing paradigm’ (Schroeder, 2005: 162) rather than as a complete makeover of the Blackstonian concept of ‘absolute dominion’.
In regard to Uncle Tom’s Cabin, it will appear obvious even from a cursory reading that the novel in various ways reflects both the gradual transformation as well as the crisis of the dominant property paradigm. Indeed the novel explicitly attempts to reveal the interdependence and mutual enhancement of the objective and the intersubjective dimensions of property which characterise and sustain the system of slavery (as a proprietary order but also as an economy). For Stowe, concrete material possession as absolute dominance (e.g., over the slave’s physical body) is not different from or opposed to the abstraction of human labour which allows for its alienation within a larger system of capitalist exchange: they are indeed two faces of the same coin. The complementary nature of the two forms of property as contingent forms of subordination and submission is also registered on the level of emphatic resonance, since Stowe carefully draws parallels between direct physical abuse and bodily harm and the emotional pain and suffering inflicted by the separation and selling of ‘living property’. For Stowe’s readers then, ownership as defined by slavery is characterised (and compromised) both by excessive forms of absolute dominance (physical harm) and by its subjection to the abstract forces of the market which ‘perverts’ the cruelty of direct personal possession even more.
The intersubjective dimension of property in Uncle Tom’s Cabin