1. Texts by Charles W. Chesnutt cited parenthetically within the chapter are: The House Behind the Cedars (Boston: Houghton Mifflin & Co., 1900), designated as HBC; The Marrow of Tradition (Boston: Houghton Mifflin & Co., 1901), designated as MT; and The Colonel's Dream (New York: Doubleday, Page & Co., 1905), designated as CD. Those by William Dean Howells are: The Shadow of a Dream and An Imperative Duty, introduction by Martha Banta (Bloomington: Indiana Univ. Press, 1970), designated as ID; and The Rise of Silas Lapham (Bloomington: Indiana Univ. Press, 1971), designated as SL. Those by Albion W. Tourgée are: An Appeal to Caesar (New York: Fords, Howard, & Hulbert, 1884), designated as ATC; The Invisible Empire, introduction by Otto H. Olsen (Baton Rouge: Louisiana State Univ. Press, 1989), designated as IE; and With Gauge & Swallow, Attorneys (Philadelphia: J. B. Lippincott, 1890), designated as GS.

2. William Dean Howells, "A Psychological Counter-Current in Recent Fiction," North American Review 172 (1901): 873.

3. Contemporary African-American responses to Howells's treatment of race varied. W. E. B. Du Bois paid tribute to Howells in the Boston Transcript, 14 February 1912, pt. III, p. 2. Julia Cooper, a Washington, D.C., high school teacher, charged that "he had no business to attempt a subject of which he knew so little, or for which he cared so little." A Voice from the South (1892), quoted in David Shi, Facing Facts (New York: Oxford Univ. Press, 1994), p. 201.

4. William L. Andrews, The Literary Career of Charles W. Chesnutt (Baton Rouge: Louisiana State Univ. Press, 1980), pp. 163, 164, 166. Implying that a longer study is in the works, Richard H. Brodhead devotes a chapter to Chesnutt in Cultures of Letters, (Chicago: Univ. of Chicago Press, 1993), pp.

177-210. Eric J. Sundquist offers a superb analysis of Chesnutt in "Charles Chesnutt's Cakewalk," To Wake the Nations (Cambridge, Mass.: Belknap Press, 1993), pp. 271-454. Sundquist concentrates mostly on the short stories and The Marrow of Tradition, whereas I focus on The House Behind the Cedars and the neglected The Colonel's Dream . I hope that my synchronic examination of Chesnutt in relation to contemporaries treating issues other than race complements Sundquists's diachronic examination of him within a tradition of writers dealing with race.

5. Quoted in Harriet Beecher Stowe, A Key to Uncle Tom's Cabin (Boston: John P. Jewett, 1853), p. 78. For Stowe's use of the case, see my Cross-examinations of Law and Literature (New York: Cambridge Univ. Press, 1987), pp. 8, 117-19, 133-34. James Boyd White includes the decision in The Legal Imagination (Boston: Little, Brown, 1973), pp. 451-54.

6. Howells, "A Psychological Counter-Current," 882.

7. George W. Cable, "The Freedman's Case in Equity," The Century Magazine 29 (1885): 409-18.

8. Charles W. Chesnutt, "The Disfranchisement of the Negro," in The Negro Problem (New York: James Pott & Co., 1903), p. 124.

Sterling Brown concludes of Chesnutt, "Answering propaganda with propaganda, he might be expected to have certain faults.... He was melodramatic in plotting, but evidence of a skilled master's hand can still be found. He knew a great deal, and all things considered, he told it well." Of Howells's An Imperative Duty, he remarks, "The novel is sympathetic, but there were graver, less romantic problems of Negro life that a novelist of Howells' scope and ability might have presented." The Negro in American Fiction (Washington, D.C.: Associates in Negro Folk Education, 1937), pp. 76, 82.

9. William L. Andrews, foreword to The House Behind the Cedars (Athens: Univ. of Georgia Press, 1988), pp. vii-xxii.

10. Chesnutt possibly alludes to Plessy v. Ferguson, which declared that in deciding whether a law was a reasonable regulation, a legislature "is at liberty to act with reference to established usages, customs and traditions of the people." Plessy v. Ferguson 163 U.S. 537, 550 (1896). See also n. 48 of this chapter.

11. By emphasizing how John's and Rena's black descent is not immediately visible, Chesnutt counters the stereotypical view expressed by his racist Dr. Green that "God has marked [the negro] with the badge of servitude" (HBC 136). But Chesnutt's point of view on the stamp of descent is complicated. As a way of pointing out the high hereditary quality of some people of color, he insists that John's features were of "the high-bred, clean-cut order that marks the patrician type the world over" (HBC 167).

12. Chesnutt anticipates Jürgen Habermas's argument for the right to "cultural membership": the "right to develop and maintain" one's identity in the life and traditions into which one was born without a loss of status in civil society. Habermas also argues for the right to break from such membership, if one finds it constraining. "Multiculturalism and the Liberal State," Stanford Law Review 47 (1995): 850.

13. Howells's North-South marriage plot in A Hazard is striking, given

Basil March's questioning of the "demand for matrimony" that "comes from our novel-reading." A Hazard of New Fortunes (introduction by Everett Carter, Bloomington: Indiana Univ. Press, 1976), p. 479.

14. Quoted in Paul M. Gaston, The New South Creed (New York: Alfred A. Knopf, 1970), p. 85.

15. Thomas Bailey Aldrich, The Poems of Thomas Bailey Aldrich (Houghton, Mifflin and Co., 1885), pp. 210-11.

16. Henry W. Grady, "The New South," in The Life of Henry W. Grady, Including His Writing and Speeches, ed. Joel Chandler Harris, (1890; reprint, New York: Haskell House Publishers, 1972), p. 92. In The Colonel's Dream Grady had lectured at Clarendon's opera house, while Booker T. Washington had been refused (CD 197).

17. Grady, "The New South," p. 88. For an excellent examination of Grady's use of metaphors of currents in his description of racial blood and its implications for Twain's Huckleberry Finn, see Steve Mailloux, Rhetorical Power (Ithaca: Cornell Univ. Press, 1989), 65-69.

18. Kenneth W. Warren offers a reading of James's 1882 story "The Point of View" to document James's anxieties about issues of race. Critical of The Bostonians as well, he nonetheless admits that it "proved to be a devastatingly accurate reading of the period." Black and White Strangers (Chicago: Chicago Univ. Press, 1993), p. 93. For more on Warren, see the next chapter, especially n. 49.

19. On magazine stories about the Civil War and the figurative marriage between North and South, see Kathleen Diffley, Where My Heart Is Turning Ever: Civil War Stories and Constitutional Reform, 1861-1876 (Athens: Univ. of Georgia Press, 1992). Novels that marry Southerners and Northerners include Henry Adams's Democracy, Owen Wister's The Virginian, and Thomas Dixon's The Clansman .

20. John David Smith, An Old Creed for the New South: Proslavery Ideology and Historiography, 1865-1918 (Westport, Conn.: Greenwood Press, 1985). On how even Frederick Jackson Turner's "frontier thesis" participates in this reinterpretation, see my "Turner's 'Frontier Thesis' as a Narrative of Reconstruction," in Centuries' Ends, Narrative Means, ed. Robert Newman (Stanford: Stanford Univ. Press, 1996).

21. Quoted in Peter Novick, That Noble Dream (New York: Cambridge Univ. Press, 1988), p. 76.

22. Chesnutt's gender bias is also apparent in The Colonel's Dream when we compare Chesnutt's portrayal of a silent female partner in a corporation with that of Elizabeth Stuart Phelps's novel. Nonetheless, it is worth noting that in A Japanese Nightingale, written by a woman (Ondo Watana), the marriage of an American to a Euro-Asian woman cements the sense of brotherhood between the woman's husband and her brother. Howells favorably reviewed A Japanese Nightingale in the same article in which he reviewed Chesnutt. See "A Psychological Counter-Current in Recent Fiction." On Watana, which was the pen name of Winnifred Eaton, the daughter of a Chinese mother and an English father and the sister of Edith Maud Eaton (who wrote under the name Sui Sin

Far), see Amy Ling, Between Worlds: Women Writers of Chinese Ancestry (New York: Pergamon Press, 1990). On Chesnutt's support of female suffrage, see "Women's Rights," Crisis 10 (1915): 182-83.

23. The Journals of Charles W. Chesnutt, ed. Richard H. Brodhead, (Durham: Duke Univ. Press, 1993), pp. 139-40.

24. On such contracts, see Leon F. Litwack, Been in the Storm So Long (New York: Knopf, 1979), pp. 408-25.

25. Quoted in Benno C. Schmidt Jr., "Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 2: The Peonage Cases," Columbia Law Review 82 (1982): 649. I am deeply indebted to Schmidt's analysis, and I borrow heavily from it. Other works to consult on the peonage question are David A. Novak, The Wheel of Servitude (Lexington: Univ. of Kentucky Press, 1978); Theodore Wilson, The Black Codes of the South (University: Univ. of Alabama Press, 1965); William Cohen, "Negro Involuntary Servitude in the South, 1865-1940: A Preliminary Analysis," Journal of Southern History 42 (1976): 31-60, and Peter Daniel, The Shadow of Slavery (Urbana: Univ. of Illinois Press, 1972). See also Tourgée's discussion (IE 56-57).

26. Quoted in Schmidt, "Principle and Prejudice," 651.

27. See Walter Benn Michaels's discussion of contractual slavery in "The Phenomenology of Contract," The Gold Standard and the Logic of Naturalism (Berkeley: Univ. of California Press, 1987), pp. 113-36.

28. John Stuart Mill, On Liberty (Arlington Heights, Ill.: Crofts Classics, 1947), p. 104.

29. On the Supreme Court's laissez-faire paternalism, see Aviam Soifer, "The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921," Law and History Review 5 (1987): 249-79, and "Status, Contract, and Promises Unkept," Yale Law Journal 96 (1987): 1916-59. The paternalism of alternatives to convict leasing is shown by the rise of the chain gang. Considered a progressive advance over a system that both artificially lowered the wages of "free" laborers and abdicated the state's responsibility to care for prisoners, chain gangs put prison labor to work for the public welfare. See Alex Lichtenstein, ''Good Roads and Chain Gangs in the Progressive South: 'The Negro Convict Is a Slave,''' The Journal of Southern History 59 (1993): 85-110. The racial politics of Progressivism in the South complicates Ernestine Williams Pickens's efforts to link Chesnutt with Progressivism. See Charles W. Chesnutt and the Progressive Movement (New York: Pace Univ. Press, 1994).

30. Quoted in Schmidt, "Principle and Prejudice," 709. Under slavery, courts had to decide whether a contract for the sale of a slave should be specifically enforced. Some ruled that it could. Others argued that the situation was no different from the sale of other chattels, unless "long family service, early association, or the like, had made the slave of particular value to one seeking specific performance." "Specific Performance of Contracts for the Sale of Goods and Chattels," The American Law Journal 2 (1885): 272.

31. Hodges v. United States, 203 U.S. 0 (1906).

32. Bailey v. Alabama, 219 U.S. 219, 231 (1911). Justice Holmes, along with Justice Lurton, dissented in Bailey, but not Reynolds . As Schmidt points

out, Holmes's dissent seems to contradict some of his views on contract in other writings. At the same time, there are many points of consistency. One relevant to my concerns is that, as in his comments on contract in "The Path of the Law," Holmes continues to assume legalistic "thin description" in contract law. He completely agrees with the majority that the race of those involved is irrelevant, although, as Schmidt points out, in Reynolds his language betrays a condescending attitude toward the black laborers involved. See chapter 2, n. 58.

33. There is clear evidence that those attacking Southern practices were concerned about its consequences for whites. Novak, Wheel of Servitude, suggests that the Roosevelt administration was sparked to action because of abuses to white immigrants (47).

34. Chesnutt reinforces the journalistic campaign against peonage and convict leasing. See Ray Stannard Baker, Following the Color Line (New York: Harper and Row, 1964), most of which appeared in the American Magazine April 1907-September 1908, and W. E. B. Du Bois, "The Spawn of Slavery: The Convict Lease System in the South," The Missionary Review of the World 14 (1901): 737-45. In addition, 1907 saw the reprint of an 1885 essay by Cable on the convict-lease system, together with "The Freedman's Case in Equity."

35. See Mark Tushnet, The American Law of Slavery, 1810-1860 (Princeton: Princeton Univ. Press, 1981).

36. "The Strike Averted," in The Short Fiction of Charles W. Chesnutt, ed. Sylvia Lyons Render (Washington, D.C.: Howard Univ. Press, 1981), pp. 386, 383, 385.

37. Henry C. Carey, Principles of Political Economy (Philadelphia: Carey, Lea & Blanchard, 1837), 40.

38. Grady, "In Plain Black and White" in The Century Magazine 29 (1884-1885): 917.

39. Grady, "Black and White," 916.

40. Raymond Williams, Marxism and Literature (New York: Oxford Univ. Press, 1977), pp. 128-35.

41. Howells, "A Psychological Counter-Current," 882.

42. John Hay, "The Foster Brothers," Harper's Monthly Magazine 39 (1869): 535-66. Hay's close friend Clarence King was known to be attracted to nonwhite women. Whether this fact accounts for Clarence Brydges's first name is impossible to know.

43. Quoted by Paul C. Nagel, This Sacred Trust (New York: Oxford Univ. Press, 1971), p. 293.

44. "The Dumb Witness" in The Conjure Woman and Other Conjure Tales, ed. Richard H. Brodhead (Durham: Duke Univ. Press), pp. 158-71. Eric Sundquist claims that the version in The Colonel's Dream "diluted" the story's import ( To Wake, p. 390). I offer a different reading.

45. "The Courts and the Negro," unpublished speech in the Fisk University archives. In "The Disfranchisement of the Negro" (1903), Chesnutt discusses Giles's appeal. Susan L. Blake argues that Chesnutt's novel dramatizes the thesis of that essay and thus points to the failure of Booker T. Washington's program for economic development. ''A Better Mousetrap: Washington's Program and The Colonel's Dream," CLA Journal 23 (1979): 49-50.

46. Giles V. Harris, 189 U.S. 475 (1903).

47. Rufus Choate, "The Importance of Illustrating New-England History by a Series of Romances Like the Waverley Novels," in The Works of Rufus Choate with a Memoir of His Life, ed. Samuel Gilman Brown, vol. I (Boston: Little, Brown, 1862), pp. 320, 343.

48. Chesnutt's response to Plessy is even more obvious in his portrayal of a Jim Crow car in The Marrow of Tradition . For an allusion to the case in The House Behind the Cedars, see n. 10 of this chapter. The role of the railroad in A Colonel's Dream is further complicated when the colonel's son and his servant, Peter, die as the result of a railroad accident. In a trial a jury decides that "there was no suggestion of blame attaching to any one; it had been an accident, pure and simple, which ordinary and reasonable prudence could not have foreseen" (CD 259).

49. Linguistic influence also flows in both directions. As the narrator notes, "the current Southern speech" was marked by "a touch" of black accent. "The corruption of the white people's speech was one element—only one—of the negro's unconscious revenge for his own debasement" (HBC 9).

50. Chesnutt's essay "What Is a White Man?" New York Independent, 30 May 1889, pp. 5-6, explicitly raises questions about the arbitrariness of defining racial purity. One of the most interesting metaphors at the time for the mixture of colors making up the human race comes in Helen Hunt Jackson's novel about a marriage between a Mexican and an Indian: Ramona . Late in the book the unsentimental Aunt Ri weaves a rag carpet for the Indian agent's wife. "It was of her favorite pattern, the 'hit or miss' pattern, as she called it: no set stripes or regular alternation of colors, but ball after ball of indiscriminately mixed tints, woven back and forth, on a warp of a single color. The constant variety in it, the unexpectedly harmonious blending of the colors, gave her delight, and afforded her a subject, too, of not unphilosophical refection." Ramona (Boston: Roberts Brothers, 1884), pp. 472-73.