Friday, April 6, 2007
Time's Recent Articile on "Slave Quilts"
Shame on Time Magazine for yet again giving essentially positive exposure to the Tobin and Dobard book and all its followers. Pseudo-history does not need main-stream support; it gets all the exposure it needs and far more than it merits. Poor Ms. Tobin is"frustrated" that her nonsense is under attack and she laments that she is not "allowed to celebrate this amazing oral story..." Not allowed? With exposure on Oprah, in the New York Times, on NPR (favorably!), and now in Time, it is hard to understand who is not "allowing" this story to be celebrated. And as for Ms. Lopez in Plymouth, Michigan, all we can do is to keep trying to make meaningful distinctions between knowledge and lore, history and fantasy to counter her slurs and her tribute to the uses of ignorance. The worst slur is perhaps against fugitive slaves themselves. To suggest that they needed to see symbols on quilts hanging on clotheslines or in windows to know what to do and where to go insults their intelligence.
Carl Sandburg was right when he wrote: "And when has creative man not toiled deep in myth?" But he was right for reasons that our modern day Underground Railroad myth makers do not really understand. Oh what a lovely deflection from reality of past and present the "quilt codes" provide.
Time now owe sits readers a story on how slaves actually escaped - and did not escape.
Carl Sandburg was right when he wrote: "And when has creative man not toiled deep in myth?" But he was right for reasons that our modern day Underground Railroad myth makers do not really understand. Oh what a lovely deflection from reality of past and present the "quilt codes" provide.
Time now owe sits readers a story on how slaves actually escaped - and did not escape.
Thursday, April 5, 2007
Lucy v. Zehmer 1952
BUCHANAN, JUSTICE. This suit was instituted by W.O. Lucy and J.C. Lucy, complainants, against A.H. Zehmer and Ida S. Zehmer, his wife, defendants, to have specific performance of a contract by which it was alleged the Zehmers had sold to W.O. Lucy a tract of land owned by A.H. Zehmer in Dinwiddie county containing 471.6 acres, more or less, known as the Ferguson farm, for $50,000. J.C. Lucy, the other complainant, is a brother of W.O. Lucy, to whom W.O. Lucy transferred a half interest in his alleged purchase.
The instrument sought to be enforced was written by A.H. Zehmer on [Saturday] December 20, 1952, in these words: We hereby agree to sell to W.O. Lucy the Ferguson Farm complete for $50,000.00, title satisfactory to buyer," and signed by the defendants, A.H. Zehmer and Ida S. Zehmer.
The answer of A.H. Zehmer admitted that at the time mentioned W.O. Lucy offered him $50,000 cash for the farm, but that he, Zehmer, considered that the offer was made in jest; that so thinking, and both he and Lucy having had several drinks, he wrote out the memorandum" quoted above and induced his wife to sign it; that he did not deliver the memorandum to Lucy, but that Lucy picked it up, read it, put it in his pocket, attempted to offer Zehmer $5 to bind the bargain, which Zehmer refused to accept, and realizing for the first time that Lucy was serious, Zehmer assured him that he had no intention of selling the farm and that the whole matter was a joke. Lucy left the premises insisting that he had purchased the farm.
Depositions were taken and the decree appealed from was entered holding that the complainants had failed to establish their right to specific performance, and dismissing their bill. The assignment of error is to this action of the court.
The defendants insist that the evidence was ample to support their contention that the writing sought to be enforced was prepared as a bluff or dare to force Lucy to admit that he did not have $50,000; that the whole matter was a joke; that the writing was not delivered to Lucy and no binding contract was ever made between the parties.
It is an unusual, if not bizarre, defense. When made to the writing admittedly prepared by one of the defendants and signed by both, clear evidence is required to sustain it.
In his testimony Zehmer claimed that he "was high as a Georgia pine," and that the transaction was just a bunch of two doggoned drunks bluffing to see who could talk the biggest and say the most." That claim is inconsistent with his attempt to testify in great detail as to what was said and what was done. It is contradicted by other evidence as to the condition of both parties, and rendered of no weight by the testimony of his wife that when Lucy left the restaurant she suggested that Zehmer drive him home. The record is convincing that Zehmer was not intoxicated to the extent of being unable to comprehend the nature and consequences of the instrument he executed, and hence that instrument is not to be invalidated on that ground. C.J.S. Contracts, §, 133, b., p.483; Taliaferro v. Emery, 124 Va. 674, 98 S.E. 627. It was in fact conceded by defendants' counsel in oral argument that under the evi- dence Zehmer was not too drunk to make a valid contract.
The evidence is convincing also that Zehmer wrote two agreements, the first one beginning "I hereby agree to sell. Zehmer first said he could not remember about that, then that "I don't think I wrote but one out." Mrs. Zehmer said that what he wrote was `I hereby agree," but that the "I" was changed to "We" after that night. The agreement that was written and signed is in the record and indicates no such change. Neither are the mistakes in spelling that Zehmer sought to point out readily apparent.
The appearance of the contract, the fact that it was under discussion for forty minutes or more before it was signed; Lucy's objection to the first draft because it was written in the singular, and he wanted Mrs. Zehmer to sign it also; the rewriting to meet that objection and the signing by Mrs. Zehmer; the discussion of what was to be included in the sale, the provision for the examination of the title, the completeness of the instrument that was executed, the taking possession of it by Lucy with no request or suggestion by either of the defendants that he give it back, are facts which furnish persuasive evidence that the execution of the contract was a serious business transaction rather than a casual jesting matter as defendants now contend..
If it be assumed, contrary to what we think the evidence shows, that Zehmer was jesting about selling his farm to Lucy and that the transac- tion was intended by him to be a joke, nevertheless the evidence shows that Lucy did not so understand it but considered it to be a serious business transaction and the contract to be binding on the Zehmers as well as on himself. The very next day he arranged with his brother to put up half the money and take a half interest in the land. The day after that he employed an attorney to examine the title. The next night, Tuesday, he was back at Zehmer's place and there Zehmer told him for the first time, Lucy said, that he wasn't going to sell and he told Zehmer "You know you sold that place fair and square." After receiving the report from his attorney that the title was good he wrote to Zehmer that he was ready to close the deal.
Not only did Lucy actually believe, but the evidence shows he was warranted in believing, that the contract represented a serious business transaction and a good faith sale and purchase of the farm.
In the field of contracts, as generally elsewhere, "We must look to the outward expression of a person as manifesting his intention rather than to his secret and unexpressed intention. `The law imputes to a person an intention corresponding to the reasonable meaning of his words and acts.'" First Nat. Exchange Bank of Roanoke v. Roanoke Oil Co., 169 Va. 99, 114, 192 S.E. 764, 770.
At no time prior to the execution of the contract had Zehmer indicated to Lucy by word or act that he was not in earnest about selling the farm. They had argued about it and discussed its terms, as Zehmer admitted, for a long time. Lucy testified that if there was any jesting it was about paying $50,000 that night. The contract and the evidence show that he was not expected to pay the money that night. Zehmer said that after the writing was signed he laid it down on the counter in front of Lucy. Lucy said Zehmer handed it to him. In any event there had been what appeared to be a good faith offer and a good faith acceptance, followed by the execution and apparent delivery of a written contract. Both said that Lucy put the writing in his pocket and then offered Zehmer $5 to seal the bargain. Not until then, even under the defendants' evidence, was anything said or done to indicate that the matter was a joke. Both of the Zehmers testified that when Zehmer asked his wife to sign he whispered that it was a joke so Lucy wouldn't hear and that it was not intended that he should hear.
The mental assent of the parties is not requisite for the formation of a contract. If the words or other acts of one of the parties have but one reasonable meaning, his undisclosed intention is immaterial except when an unreasonable meaning which he attaches to his manifestations is known to the other party. Restatement of the Law of Contracts, Vol. I, § 71, p.74..
An agreement or mutual assent is of course essential to a valid contract but the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. If his words and acts, judged by a reasonable standard, manifest an intention to agree, it is immaterial what may be the real but unexpressed state of his mind. C.J.S. Contracts, §32, p. 361; 12 Am.Jur., Contracts, §19, p. 515.
So a person cannot set up that he was merely jesting when his conduct and words would warrant a reasonable person in believing that he intended a real agreement...
Whether the writing signed by the defendants and now sought to be enforced by the complainant was the result of a serious offer by Lucy and a serious acceptance by the defendants, or was a serious offer by Lucy and an acceptance in secret jest by the defendants, in either event it constituted a binding contract of sale between the parties. .
The complainants are entitled to have specific performance of the contract sued on. The decree appealed from is therefore reversed and the cause is remanded for the entry of a proper decree requiring the defendants to perform the contract in accordance with the prayer of the bill.
Reversed and remanded.
Cities of the Dead
William Blair. Cities of the Dead: Contesting the Memory of the Civil War in the South, 1865-1914. Civil War America Series. Chapel Hill: University of North Carolina Press, 2004. xii + 250 pp. Notes, bibliography, index. $ 34.95 (cloth), ISBN 978-0-8078-2896-0.
William Blair's Cities of the Dead is among several recently published books treating on the formation of historical memory in the post-Civil War South. It goes without saying that southern memory has been overwhelmingly influenced by the experiences of slavery and civil war. What is less obvious is how the study of southern memory has itself progressed. There have been two main trajectories. The first has charted how white southerners established the myth of the Lost Cause in order to cope with defeat, re-establish white supremacy, and facilitate the reconciliation of the white North and South by the last decades of the nineteenth century. The second trajectory is of more recent vintage. Its focus has been on how black southerners, as well as other non-dominant and marginalized groups in the South, have preserved memories of slavery, the Civil War, and other episodes of the southern past at odds with or varying from the dominant white version. Only in the past five or so years have scholars begun to consider the two trajectories together, in order to highlight how these memories collide, complement,and contest one another. Blair's study contributes to this most recent trend in several ways. Drawing from the work of Eric Hobsbawm and others, Blair considers how white and black southerners in postwar Virginia claimed public space through their various commemorative acts. The claiming of public space expresses, as readers of these authors know, political tensions and claims to political power. For Blair, the focus on public space leads him to his central thesis: commemorative events such as the Memorial Day rituals performed in Confederate "cities of the dead," and by southern African Americans in their freedom celebrations, were both shaped by and helped to shape near-term political outcomes in the postwar South. His close reading of how commemorative acts reflect and help shape ongoing political contests also leads him to question the threefold model of Civil War memory offered by David Blight in Race and Reunion: The Civil War in American Memory (2001). Whereas Blight's sweeping account sought to illuminate the sources and ideological applications of the emancipationist, re-conciliationist, and white supremacist memories of the war, Blair's political focus reveals how different commemorative practices often conflicted with one another, at times negotiated space with each other, and on a few occasions even overlapped. Most important,rather than consider public memory in the context of ideology formation,Blair considers commemoration as an essential, public part of politics. Organized into an introduction and seven chapters, Cities of the Deadproceeds chronologically to consider the evolution of black and white commemorative practices in Virginia from the end of the war to the on set of World War I. Primary sources include era newspapers, periodicals, correspondence, government and local records. The opening chapters begin familiarly enough, by describing the origins of black freedom celebrations and white southern decoration days in the immediate post-war period. Blair's focus on public space and politics, however, results in a different take on matters, as he considers these commemorative actions less for their ideological significance than as public rituals invested with political content. In the case of the black freedom celebrations,they were, as might be expected, contested early on by white southerners and protected for a period of time by federal authorities. For a period of time they were also racially mixed, and white Republican participation often turned the proceedings into de facto political rallies. Given that African Americans were almost entirely denied access to public space during slavery, these celebrations were significant at a personal and political level. Black Virginians used the occasion to demonstrate their support for the Union and advocate for political rights. In the case of white southern memorial observances, the decoration of graves and other mourning rituals provided a non-confrontational means for expressing political resistance to northern occupation. Significantly, it was white southern women who functioned as the principal commemorative agents, as federal authorities prevented southern white men from engaging in public rituals immediately following the war. White women therefore leveraged their traditional roles as caretakers for the dead to political use, a fact that did not go unnoticed by federal officers. Blair's attention to the gendered aspect of public commemoration rituals extends to considering the role of African American women in freedom celebrations and other public occasions. In this case, the presence of black women in public spaces was viewed by whites as a formidable challenge. In contrast to their white counterparts, however, black women occupied public space more openly, both to enhance notions of African American manhood (considered an indispensable element in claiming citizenship) and to demonstrate their keen interest in political matters.With the decline of Radical Reconstruction, emancipation celebrations lost their bi-racial aspect and endured overt hostility from whites. For its part, white southern commemoration moved from surreptitious political messaging to open celebration of the Lost Cause. Here again,Blair's narrative agrees in its main outline with existing scholarship on commemoration in the Gilded Age. However, his attention to memory's use in politics reveals instances when southern whites supported (or at least tolerated) black commemorative events for political purposes. Independent political parties in the South, including the bi-racial coalition in Virginia, provided the political space within which black public commemoration continued to maneuver. As Republicans waffled in supporting African American civil rights, black leadership sought out alternate alliances: the movement was the most promising instance of bi-racial cooperation aimed at challenging elitist white politics. Faced with a potential revolution from below, white Democratic and Conservative supporters initiated a commemorative counterattack, intended to drive a wedge between lower class whites and blacks. From memorializing the exploits of Confederate leaders, white apologists moved to celebrating the heroism (and sacrifice) of the common soldier. On the African American side, the period also witnessed a growing ambivalence towards the memory of slavery, frustration with the Republican Party, and greater assertion that the freedmen had proven their worthiness as citizens and thus should be accorded full rights without delay. Blair concludes optimistically by suggesting the 1880s offered a chance at commemorative harmony, however fleeting. His case in point is Grover Cleveland's first inaugural procession which included a regiment of Confederate veterans garbed in gray followed by a regiment of African American veterans in Union blue.The final period, from the 1890s through 1914, witnessed the growing segregation of southern commemorative practices, and the apparent de-politicization of black commemoration in favor of approaches emphasizing economic self-help. Drawing from Kevin Gaines's study of black political leadership (Uplifting the Race [1996]), Blair points out that instead of a single approach, black freedom celebrations actually ran the gamut from accommodationism to a militant wing advocating electoral independence. In the atmosphere of increasing Jim Crow, lynching, and federal abandonment, black leaders continued to use public commemorations as a vehicle for asserting their political presence and rights. Gradually, however, they adopted Booker T.Washington's vision of racial up lift through economic self-help. On the white side, the 1890s and early 1900s witnessed the triumph of are conciliationist and white-supremacist memory of the war whose tangible markers included federal funds to care for Confederate graves and the acknowledgment, on national commemorative occasions, of Confederate heroism and loyalty. As noted earlier, it is the focus on political particulars rather than ideological content that distinguishes Cities of the Dead. Furthermore, while other recent works have analyzed the politics of memory (see, for instance, Paul Shackel's essay on the faithful slave monument at Harper's Ferry in the work cited below), this is not the same as analyzing memory in politics. The former concerns how politics influences the construction of a particular monument or commemorative event. It is static in the sense that it views the event or monument as the end product of various political forces and tensions. Memory in politics, on the other hand, views the commemorative event as an active force, capable of influencing present and future political outcomes. The commemorative event constitutes a political action in the public sphere. Commemoration as politics and the politics of commemoration are not always easy to separate, and there are places where Blair could have more clearly distinguished between the two effects. But over the course of his study he provides enough detailed accounting of how commemorations performed political work to demonstrate his main argument. However, in the process, Cities of the Dead also resurrects the problem of relating symbolic action to tangible social and political outcomes. We know the linkages exist -- as do political strategists and marketers -- but can we establish with any certainty the political effect of a given symbolic (commemorative) act? The recent work on memory is itself en-meshed in some very compelling present-day contexts. Many of these studies, including Blair's, seek to demonstrate the contingent nature of memory formation. In so doing they join a broader stream in current historical practice aimed at countering mainstream America's continued fascination with the Lost Cause with narratives stressing the Civil War and Reconstruction as struggles for racial justice. Re-covering the memory of the Civil War as a war to end slavery is a crucial academic task. The arguments for memory's contingent nature and political utility are essential underpinnings for this effort. The more clearly we understand how commemorative activities have functioned in the past to influence political out comes, the more effective we can be in the present.
Other recent works include Paul A. Shackel, Memory in Black and White: Race, Commemoration, and the Post-Bellum Landscape (New York: Alta Mira Press, 2003); and W. Fitzhugh Brundage, The Southern Past: A Clash of Race and Memory (Cambridge: Belknap Press, 2005); and Kathleen Ann Clark's Defining Moments: African American Commemoration and Political Culture in the South, 1863-1913 (Chapel Hill: University of North Carolina Press, 2006).
William Blair's Cities of the Dead is among several recently published books treating on the formation of historical memory in the post-Civil War South. It goes without saying that southern memory has been overwhelmingly influenced by the experiences of slavery and civil war. What is less obvious is how the study of southern memory has itself progressed. There have been two main trajectories. The first has charted how white southerners established the myth of the Lost Cause in order to cope with defeat, re-establish white supremacy, and facilitate the reconciliation of the white North and South by the last decades of the nineteenth century. The second trajectory is of more recent vintage. Its focus has been on how black southerners, as well as other non-dominant and marginalized groups in the South, have preserved memories of slavery, the Civil War, and other episodes of the southern past at odds with or varying from the dominant white version. Only in the past five or so years have scholars begun to consider the two trajectories together, in order to highlight how these memories collide, complement,and contest one another. Blair's study contributes to this most recent trend in several ways. Drawing from the work of Eric Hobsbawm and others, Blair considers how white and black southerners in postwar Virginia claimed public space through their various commemorative acts. The claiming of public space expresses, as readers of these authors know, political tensions and claims to political power. For Blair, the focus on public space leads him to his central thesis: commemorative events such as the Memorial Day rituals performed in Confederate "cities of the dead," and by southern African Americans in their freedom celebrations, were both shaped by and helped to shape near-term political outcomes in the postwar South. His close reading of how commemorative acts reflect and help shape ongoing political contests also leads him to question the threefold model of Civil War memory offered by David Blight in Race and Reunion: The Civil War in American Memory (2001). Whereas Blight's sweeping account sought to illuminate the sources and ideological applications of the emancipationist, re-conciliationist, and white supremacist memories of the war, Blair's political focus reveals how different commemorative practices often conflicted with one another, at times negotiated space with each other, and on a few occasions even overlapped. Most important,rather than consider public memory in the context of ideology formation,Blair considers commemoration as an essential, public part of politics. Organized into an introduction and seven chapters, Cities of the Deadproceeds chronologically to consider the evolution of black and white commemorative practices in Virginia from the end of the war to the on set of World War I. Primary sources include era newspapers, periodicals, correspondence, government and local records. The opening chapters begin familiarly enough, by describing the origins of black freedom celebrations and white southern decoration days in the immediate post-war period. Blair's focus on public space and politics, however, results in a different take on matters, as he considers these commemorative actions less for their ideological significance than as public rituals invested with political content. In the case of the black freedom celebrations,they were, as might be expected, contested early on by white southerners and protected for a period of time by federal authorities. For a period of time they were also racially mixed, and white Republican participation often turned the proceedings into de facto political rallies. Given that African Americans were almost entirely denied access to public space during slavery, these celebrations were significant at a personal and political level. Black Virginians used the occasion to demonstrate their support for the Union and advocate for political rights. In the case of white southern memorial observances, the decoration of graves and other mourning rituals provided a non-confrontational means for expressing political resistance to northern occupation. Significantly, it was white southern women who functioned as the principal commemorative agents, as federal authorities prevented southern white men from engaging in public rituals immediately following the war. White women therefore leveraged their traditional roles as caretakers for the dead to political use, a fact that did not go unnoticed by federal officers. Blair's attention to the gendered aspect of public commemoration rituals extends to considering the role of African American women in freedom celebrations and other public occasions. In this case, the presence of black women in public spaces was viewed by whites as a formidable challenge. In contrast to their white counterparts, however, black women occupied public space more openly, both to enhance notions of African American manhood (considered an indispensable element in claiming citizenship) and to demonstrate their keen interest in political matters.With the decline of Radical Reconstruction, emancipation celebrations lost their bi-racial aspect and endured overt hostility from whites. For its part, white southern commemoration moved from surreptitious political messaging to open celebration of the Lost Cause. Here again,Blair's narrative agrees in its main outline with existing scholarship on commemoration in the Gilded Age. However, his attention to memory's use in politics reveals instances when southern whites supported (or at least tolerated) black commemorative events for political purposes. Independent political parties in the South, including the bi-racial coalition in Virginia, provided the political space within which black public commemoration continued to maneuver. As Republicans waffled in supporting African American civil rights, black leadership sought out alternate alliances: the movement was the most promising instance of bi-racial cooperation aimed at challenging elitist white politics. Faced with a potential revolution from below, white Democratic and Conservative supporters initiated a commemorative counterattack, intended to drive a wedge between lower class whites and blacks. From memorializing the exploits of Confederate leaders, white apologists moved to celebrating the heroism (and sacrifice) of the common soldier. On the African American side, the period also witnessed a growing ambivalence towards the memory of slavery, frustration with the Republican Party, and greater assertion that the freedmen had proven their worthiness as citizens and thus should be accorded full rights without delay. Blair concludes optimistically by suggesting the 1880s offered a chance at commemorative harmony, however fleeting. His case in point is Grover Cleveland's first inaugural procession which included a regiment of Confederate veterans garbed in gray followed by a regiment of African American veterans in Union blue.The final period, from the 1890s through 1914, witnessed the growing segregation of southern commemorative practices, and the apparent de-politicization of black commemoration in favor of approaches emphasizing economic self-help. Drawing from Kevin Gaines's study of black political leadership (Uplifting the Race [1996]), Blair points out that instead of a single approach, black freedom celebrations actually ran the gamut from accommodationism to a militant wing advocating electoral independence. In the atmosphere of increasing Jim Crow, lynching, and federal abandonment, black leaders continued to use public commemorations as a vehicle for asserting their political presence and rights. Gradually, however, they adopted Booker T.Washington's vision of racial up lift through economic self-help. On the white side, the 1890s and early 1900s witnessed the triumph of are conciliationist and white-supremacist memory of the war whose tangible markers included federal funds to care for Confederate graves and the acknowledgment, on national commemorative occasions, of Confederate heroism and loyalty. As noted earlier, it is the focus on political particulars rather than ideological content that distinguishes Cities of the Dead. Furthermore, while other recent works have analyzed the politics of memory (see, for instance, Paul Shackel's essay on the faithful slave monument at Harper's Ferry in the work cited below), this is not the same as analyzing memory in politics. The former concerns how politics influences the construction of a particular monument or commemorative event. It is static in the sense that it views the event or monument as the end product of various political forces and tensions. Memory in politics, on the other hand, views the commemorative event as an active force, capable of influencing present and future political outcomes. The commemorative event constitutes a political action in the public sphere. Commemoration as politics and the politics of commemoration are not always easy to separate, and there are places where Blair could have more clearly distinguished between the two effects. But over the course of his study he provides enough detailed accounting of how commemorations performed political work to demonstrate his main argument. However, in the process, Cities of the Dead also resurrects the problem of relating symbolic action to tangible social and political outcomes. We know the linkages exist -- as do political strategists and marketers -- but can we establish with any certainty the political effect of a given symbolic (commemorative) act? The recent work on memory is itself en-meshed in some very compelling present-day contexts. Many of these studies, including Blair's, seek to demonstrate the contingent nature of memory formation. In so doing they join a broader stream in current historical practice aimed at countering mainstream America's continued fascination with the Lost Cause with narratives stressing the Civil War and Reconstruction as struggles for racial justice. Re-covering the memory of the Civil War as a war to end slavery is a crucial academic task. The arguments for memory's contingent nature and political utility are essential underpinnings for this effort. The more clearly we understand how commemorative activities have functioned in the past to influence political out comes, the more effective we can be in the present.
Other recent works include Paul A. Shackel, Memory in Black and White: Race, Commemoration, and the Post-Bellum Landscape (New York: Alta Mira Press, 2003); and W. Fitzhugh Brundage, The Southern Past: A Clash of Race and Memory (Cambridge: Belknap Press, 2005); and Kathleen Ann Clark's Defining Moments: African American Commemoration and Political Culture in the South, 1863-1913 (Chapel Hill: University of North Carolina Press, 2006).
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