the rhetorical dynamics of judicial situations: joseph story, ciceronian rhetoric, and the judicial...

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The Rhetorical Dynamics ofJudicial Situations: JosephStory, Ciceronian Rhetoric,and the Judicial Response toAmerican SlaverySean Patrick O'Rourke aa Furman UniversityPublished online: 26 Nov 2012.

To cite this article: Sean Patrick O'Rourke (2007) The Rhetorical Dynamics ofJudicial Situations: Joseph Story, Ciceronian Rhetoric, and the Judicial Responseto American Slavery, Advances in the History of Rhetoric, 10:1, 43-71, DOI:10.1080/15362426.2007.10557275

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THE RHETORICAL DYNAMICS OF JUDICIAL SITUATIONS: JOSEPH STORY, CICERONIAN RHETORIC,

AND THE JUDICIAL RESPONSE TO AMERICAN SLAVERY

Sean Patrick O'Rourke Furman University

Abstract

This essays offers a rhetorical interpretation of judicial opinions Joseph Story wrote in four U.S. Supreme Court cases concerned with the slavery question : U.S. v. La Jeune Eugenie (1822), Groves v. Slaughter (1841), U.S. v. Amistad (1841) , and Prigg v. Pennsylvania (1842) . I argue that Story, a jurist trained in the intellectual traditions of the early republic, performed judicial argument as a kind of rhetorical action dependent upon Ciceronian controversia , a mental habit of arguing pro et contra on any matter in dispute. In consequence of this approach to judicial argument, Story's opinions do not represent a choice between positive law or natural law, neither do they represent a commitment to legal instrumentalism or legal formalism ; rather they present controversial responses to rhetorical situations broadly conceived.

One of the most perplexing questions in antebellum American legal history concerns how northern judges morally opposed to slavery could issue pro-slavery rulings. I Two broad lines of inquiry have emerged. One has been to characterize the struggle as one between positive law and natural law. 2 This approach suggests that anti-slavery judges made pro-slavery rulings out of strict allegiance to a formal application of the positive law, and concludes that many of these judges held very static and limited views of the law. The second has been to focus on the private/public distinction, or what some call "role conftict."3 This approach holds generally that judges who privately opposed slavery nonetheless issued pro-slavery rulings because of their perception that a federal judge's public role required it, and concludes that judges allowed themselves to be constrained by a limited conception of the powers of a judge in the early republic.

Advances in the History of Rhetoric, Vol. 10, 2007. ISBN 978-0-9760737-3-4, ISSN 1536-2426, electronic ISSN 1936-0835. © 2007 by the American Society for the History of Rhetoric. All rights reserved.

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44 SEAN PATRICK O ' ROURKE

Without necessarily contesting these positions one may still ask whether they exhaust the available explanations-and whether they underestimate the judicial craftsmanship of the federal judges in question. For instance, while it is certainly possible that fidelity to the positive law compelled judges to decide cases in increasingly formalistic rhetoric, such fidelity cannot completely account for the initial decision to choose law over justice or morality.4 And while judges may have retreated to formalism, how did they justify this retreat in light of their highly instrumental, non-formalistic rhetoric in other areas of the law?5

Consider the case of Joseph Story (1779-1845), associate justice of the U.S. Supreme Court from 1811 to 1845. More than those of any other jurist, Story's writings have drawn the attention of historians concentrating on the slavery problem. The attention is only natural. Joseph Story has long been regarded as one of the preeminent legal minds of the early American republic. He is now considered the "worldwide authority on the subjects of equity and conflict of law" of his day (McClellan 1971, vii), a pivotal influence on the development of American commercial law, and a brilliant and enduring contributor to American constitutional law (see Pound 1914 ). Indeed, Oliver Wendell Holmes wrote in 1886 that Story "did more than any other English-speaking man in this century to make the law luminous and easy to understand" (Holmes 1920, 41.) Moreover, between his private and public writings one can discern a clear rift over slavery, a moral and legal quandary.

Of the public writings, those most central to the questions explored here are the slavery opinions Story wrote while on the Court. The most important are U.S. v. La Jeune Eugenie (1822), Groves v. Slaughter (1841), U.S. v. Amistad (1841), and Prigg v. Pennsylvania (1842), for these decisions are at the heart of the anti-slavery judges/pro-slavery opinions controversy. They therefore also provide the best textual material with which to explore Story's choices between law and morality and the justification for his putative retreat to formalism.

In this paper I suggest that a rhetorical reading of Story's slavery opinions offers a different perspective on these questions. Oddly, despite the importance of his opinions and a growing interest in judicial rhetoric, Story's judicial writing has received little attention from rhetorical critics. Part of the problem is determining how, apart

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JOSEPH STORY AND CICERONIAN RHETORIC 45

from the approaches noted above, Story profitably can be read. My reading attends to how Story crafted the questions posed in each case, how he fashioned the exigencies or urgencies to which his judicial rhetoric responded (and those to which it did not), how he rhetorically defined the circumstances of judgment.6 The approach makes sense if we attempt to think as he would have, to see the slavery problem from the perspective of a jurist trained in the intellectual traditions of the early republic. Such a perspective suggests, I argue, a Ciceronian reading and the fruitfulness of grounding that reading in Ciceronian rhetoric. Thus situated, Story's slavery opinions can be seen in part as efforts to define the context of his public judicial argument through the practice of Ciceronian controversia, what several recent studies have dubbed "controversial rhetoric": the habit of arguing in utramque partem, pro and con, forward and backward. 7

The essay has four sections. In the first I consider the scholarship on rhetorical situations and performative traditions, grounding the study in a working understanding of the ways in which a rhetor's use of, and participation in, the latter may shape and reconfigure the former. In the second I locate Story in the Ciceronian traditions of the early republic and describe Ciceronian controversia. The emphasis here is on controversia as both inventional resource and method of judicial rhetoric among classically-trained judges of the period. In the third I read the slavery cases noted above, looking closely at Story's use of controversial form to circumscribe a realm of public argument, and attend both to what is said and what is not. The goal of this section is not to provide an ultimate answer to the question of the pro-slavery rulings but rather to offer an alternative perspective, a Ciceronian rhetorical frame, in which the question may be addressed. In the fourth and concluding section I suggest how this reading sheds light on the problem of the slave cases, informs our understanding of rhetorical situations and performative traditions, and indicates a reappraisal of the influence of classical rhetoric on early American law.

Rhetorical Situations and Performative Traditions

A good deal of attention has been paid to the situations out of which rhetoric springs. 8 The rhetoricians of antiquity, not unaware of the

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46 SEAN PATRICK O'ROURKE

potential complexity of such questions, constructed rhetorics based upon easily recognized (but not, in practice, so easily differentiated) scenes of discourse. The well known tria genera causarum of the Latin rhetorics formed the bases of the theories built upon them. And so, for instance, despite tremendous differences among them, ancient rhetoricians could infer from the trial scene astoundingly uniform constituents of the genus iudiciales.9 Later formulations echoed this approach, adding or subtracting scenes of discourse (the oration at mass, for instance) to the classical scheme, often merely repeating the discoveries of antiquity with slight variation where cultural similarities allowed or demanded (see Ward 1995).

In recent times, perhaps in response to the shift of focus, precipitated by modernity, from scenes of discourse to mere modes!O (or perhaps in response to the increasingly complex demands placed on rhetors in postmodern society) the tendency has been to seek elements or questions common to all situations or to identify seemingly endless generic types based not on the demands of the scene but on the appellation of the occasion, however slightly that occasion might differ from any other.

In the case of the former the result has been debate as rich as it is acrimonious. Most of this debate has its origin in Lloyd Bitzer's now wellknown essay on "The Rhetorical Situation," in which he urges that what counts as rhetoric is only that discourse which responds to a constellation of "persons, events, objects, and relations presenting an actual or potential exigence which can be completely or partially removed if discourse, introduced into the situation, can so constrain human decision or action as to bring about the significant modification of the exigence" (1968, 6). Paradoxically, and no doubt unintentionally, Bitzer's essay established the grounds for subsequent debate by directing inquiry away from the particularity of situations toward a "philosophically transcendent ideal" (Benson 1993, xvi). As a result, considerable thought has been expended on the theoretical construct "rhetorical situation" but considerably less heed has been shown to the practical problem of how and to what extent rhetors shape those situations. II More specifically, enmeshed in the transcendent ideal of the rhetorical situation, critics have been less attentive to what this essay posits as a central concern: the cultural and educational milieu of the rhetor and the ways in which that milieu is actualized in his or her discourse.

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One promising line of critical inquiry has been to focus on the complex and thick interweaving of text and contexts, on how the "intellectual, institutional, political, religious, and economic forces or factors can 'condition both the development of the text and its internal operation"' (Jasinski 1997, 208--09; quoting, in part, Lucas 1988, 248). This concern, variously termed a focus on "rhetorical traditions" (e.g., Murphy 1997) or "performative traditions" (e.g., Jasinski 1997, 212-13) in rhetoric, assumes that "advocates are always situated in multiple performative traditions and [that] these performative traditions function as the discursive resources for all rhetorical action" (Jasinski 1997, 212).

The challenge, however, is where to find and how to excavate these discursive resources. They are evident in the linguistic idiom or language, speaking voices, and figurative or argumentative patterns or structures (Jasinski 1997, 213) of civic life and may be recovered from a close examination of the "interactive and generative network of influence that shapes, though ... does not determine" (Leff 1993, 299) the rhetorical practices of those who participate in it. In the case of Joseph Story, I argue, the operative performative tradition may be found in the Ciceronian ideals that animated his personal, cultural, and professional life.

Joseph Story and Ciceronian Ideals

The heritage of Ciceronian rhetoric and Ciceronian ideals animated the classrooms and minds of early Americans; Cicero was perhaps the model for civic-minded men in the early American republic. Steven Botein (1977-1978) has argued that Cicero was used by early Americans in many ways, not least as a model of republican virtue. And Robert Ferguson and Linda Kerber have shown in their perceptive comments on John Quincy Adams's Lectures on Rhetoric and Oratory how Ciceronian precepts of rhetoric pervaded early American thought.l2 Indeed, the presence of Ciceronian rhetorical ideals among the civic leadership of the early republic was exceeded only by Ciceronian commitment to republican forms of government.

Cicero was especially important to Joseph Story. Story studied classics, including Cicero, at Marblehead Academy, and had to prepare

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48 SEAN PATRICK O' ROURKE

for entrance exams at Harvard on, among other subjects, rhetoric. 13

At Harvard, Cicero's dominant work on controversial rhetoric, De oratore, was required reading, as were some of his speeches. 14 And Cicero had a lasting influence on Story. Story was called "Orator Jo" because of his highly charged Ciceronian political rhetoric, and his enduring appreciation of rhetoric and oratory in legal practice was evident in his favorable review of David Hoffman's A Course of Legal Study (1817), a work that gives prominence to rhetorical theory and practice. IS He used Cicero's famous statement that nature "is not one law at Rome and another at Athens," but "law for all people and all time"16 to support his own natural law beliefs, and in his later years he grew to see himself as a sort of Cicero-like figure fighting the decay of the republic. In 1834, after La Jeune Eugenie but shortly before the other cases, he wrote to a friend, "I seem almost to be in a dream, and to be called back to the last days of the Roman republic, when the people shouted for Caesar, and liberty itself expired with the dark but prophetic words of Cicero." 17 Gerald Dunne reports that a year later Story dropped in on his friend Chancellor Kent and confessed that, in Dunne's words, "Aristotle, Cicero, and Burke had become the polestars of his political thought, and that he found in their words proof positive of the folly of the new times" (Dunne 1970, 338). In short, Story 's Ciceronianism manifested itself in a philosophy that melded rhetorical argumentation, natural law, and republican civic virtue into a fluid and pragmatic judicial posture.

It would seem only natural to read the opinions of Joseph Story, the leading "statesman of the old republic" (Newmyer 1985, xiv-xv) as Ciceronian controversial rhetoric. Ciceronian rhetoric offered to early American lawyers and jurists not only a highly appealing theory of public discourse rooted in republican notions of civic virtue (Ferguson 1984, 20-33; Botein 1977-1978) but also a legal method (Adams 1810, 1: 49-50, 183-228, 277-319). Thomas Sloane has observed that for Cicero, judicial rhetoric was paradigmatic of the whole (1989, 466). The emphasis on the law makes sense when one considers that Cicero was a practicing advocate who saw rhetoric and law as the twin pillars of civil society. He therefore consciously adopted a fundamentally legal theory of rhetoric, one based in the give and take of forensic discourse and the struggle to develop moral and legal arguments and strategies. In short, he refined the old notion of debating both sides

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of the question into a fundamentally rhetorical habit of thought: controversial thinking, the ability to argue in utramque partem.

For Cicero, controversial thinking is a way of approaching the world, a rhetorical stance, predicated on the assumption that doubt begets possibilities for argument (see Topica 79-82). It is also a means of invention, a way of cultivating fitting responses to the fluctuations of dynamic rhetorical situations. At its heart is the notion of the quaestio: the question, that which is in doubt, that about which there is, or can be, controversy.

Cicero tells us that questions may be of two types, a general question (quaestio in.finita) or a particular question (quaestio .finita). The rhetoric of law involves both, for general questions may arise as to the nature of the human condition, justice, or even the law, and the advocate (or, in the case of Story, the judge) must be prepared to move quickly and fluently between these and the particular questions raised in the case. By so doing he would begin to create the realm of germane discourse and to define the circumstances of judgment. IS

In this way the act of questioning begins the process of invention, which is both analytic and synthetic.19 John Quincy Adams, Cicero's chief American expositor in the early nineteenth century, considered controversial invention (which he called determining the "state of the controversy") "one of the most important points in the whole science" of rhetoric. 20 It was a means of both criticism and composition. To invent was at once to interpret and to construct arguments, and an accomplished jurist was trained to think in both ways almost simultaneously.

The restofCiceronianjudicial rhetoric follows from these premises. The doctrine of status (or constitutio), borrowed and adapted from Hermagoras and Aristotle, was central. Nancy Streuver has described these seats of argument (sedes argumentum) as "an armamorium of flexible, responsive debating tactics, as a series of argumentative wrestling holds" (1983, 195). Ciceronian rhetoric was replete with different topological schemes. Whether it be the general (quis, quid, ubi, quibus auxiliis, cur, quomodo, quando, or, who, what, where, by what means, why, how, and when) or the specific (scriptum et voluntas, ratiocinatio, leges contrariae, and ambiguitas, the standard Latin status legales of letter and intent, analogy, conflicting laws, and ambiguity), status served the advocate as approaches to the questions

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with which he was confronted and as ways to understand legal practice and speak the discourse of the law. 21

Dispositio also reinforced and served the controversial mode. In what is often referred to as "one of the most succinct theoretical versions of controversia in Cicero," Antonius describes the controversial form:

It is my own practice to take care that every client personally instructs me on his affairs, and that no one else shall be present, so that he may speak the more freely; and to argue his opponent's case to him, so that he may argue his own and openly declare whatever he has thought of his position. Then, when he has departed, in my own person and with perfect impartiality I play three characters, myself, my opponent, and the arbitrator [or judge] . Whatever consideration is likely to prove more helpful than embarrassing I decide to discuss; wherever I find more harm than good I entirely reject and discard the topic concerned. . . . When I have thoroughly mastered the circumstances of a case the issue in doubt comes instantly to my mind.22

One standard step in the advocate's arrangement of materials was to effect a partitio, a separation of that which was germane and of that which was not, or a division of one's positions from those of one's opponent.23 Similarly, the steps of confirmatio and confutatio assume the give and take of controversy. For judges of the early republic reared on Cicero, thinking of legal questions in terms of controversia became a habit of mind. It provided a method of judicial rhetoric, a process and a form with which the judge could craft the questions posed, fashion the exigencies, and define the context of his judicial response. 24

Controversia is therefore a useful critical frame. As I hope to show in the following discussion of Story's slavery decisions, controversia provides the critic entre to the inventional and organizational dynamics of Story's thinking. It enables us to attend to Story 's struggle to circumscribe a realm of public judicial argument and in this way sheds light on his putative placement of law over morality and his occasional but seemingly inconsistent use of a highly formalistic mode of reasoning. It also prompts inquiry into other possible explanations of Story's slavery rulings.

Story's Judicial Rhetoric

In two of the four cases examined here Story issues "anti-slavery" opinions and in the two others "pro-slavery" opinions. 25 Taken

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in order of this classification they reveal a pattern of shrinking scope of judgment and increasing formalism in reasoning. Taken chronologically, they do neither. Running consistently throughout is Story's controversial rhetoric.

La Jeune Eugenie (1822)

The case of La Jeune Eugenie arose out of the congressional ban on the importation of slaves that went into effect on 1 June 1808. The act banning importation also anticipated the illegal slave trade that developed, and authorized the President to employ armed vessels to cruise any part of the coast to apprehend violators. The American schooner Alligator was authorized under the act to cruise the coast of Africa early in 1821, where she captured the schooner La Jeune Eugenie under suspicion of slaving. The ship was brought to Boston where she was libeled in U.S. district court.26 The district court entered a pro forma decree in favor of the "French" claimants, and the case was appealed to the circuit court, Joseph Story presiding on circuit.

The United States argued that the Eugenie was in fact a vessel of the United States hiding behind the veil of French registry, that the vessel was in fact engaged in the slave trade, that even if the court ruled that the vessel was French the ship should not be delivered up to the claimants because French law forbade the slave trade, and that the slave trade was against the law of nations (La Jeune Eugenie 834-35). The claimants argued that the vessel was French and not American, and therefore the court lacked jurisdiction, that the law of nations, if applicable, was to be determined by "custom or usage," and that, "as to slavery generally, or the African slave trade in particular, nations have expressed no opinion, no assent, which can be noticed by a national court" (id.).

Story's opinion is a textbook study of controversial method. He begins by noting the gravity of the case. He claims, "[l]t is not, perhaps, too much magnifying its grave character to declare, that rarely can a case come before a court of justice more deeply interesting to the cause of general justice and humanity" (id. at 840) He notes the interests of at least two governments, the United States and France, as well as the "three centuries" of African suffering

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and the blood of thousands of Africans (id. at 845) to heighten the urgency and increase the import of the questions presented.

The questions themselves are handled seriatim. The first is the factual/definitional question of the vessel's registration. Story examines both sides of the argument, pro and con, accusation and defense. The ship carried French papers but it was American built; she flew under the flag of France but was American owned; her crew was largely French but she held American title until just before she set sail for the African coast (id. at 840-41). Under "ordinary circumstances" and in "ordinary times" French documentation would present a prima facie case. And yet, Story argues, these are neither ordinary times nor ordinary circumstances, for "the trade is such where disguises and frauds are common" (id.).

Here then is the first critical rhetorical move revealed by the controversial frame: Story's departure from formal reasoning and his turn toward natural law are justified by the circumstances of the slave trade, circumstances Story defined in such a way that the departure and turn seem almost required of him. And he is fully aware of what he has done. He argues:

Sitting as I do in a court of the law of nations, accustomed to witness, in many shapes, the artifices of fraud, practiced by those, whose interest lies in evading the salutary restraints of the laws, I think, that I should manifest a false delicacy and unjustifiable tenderness for the abstract maxims, if I did not borrow somewhat of the experience of the world, to enable me to disentangle the network, which covers up unlawful enterprises. 27

By fashioning exigencies of "general justice and humanity" and by crafting the question of fact/definition as one to be addressed in the context not only of the applicable law but also of "the experience of the world" Story circumscribes an extremely wide realm of judgment for himself, one which, once fashioned, seems to require him to pierce the veil of the French registry to discern the true nature of the vessel. He finds, not surprisingly, that the "If there are any persons, who entertain doubts as to the real destination and employment of this vessel, I profess myself not willing to be included in that number" (id. at 840). He finds the evidence of the ship's stores, the construction of the space below decks (for maximum capacity), the location of the vessel when it was apprehended (directly offshore from a notorious

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slave-holding pen called "the factory") all compelling evidence of the true nature of the ship.

The second question concerns the jurisdiction of the court. The disposition of this question in turn hinges on two others: Whether the slave trade is "repugnant to the law of nations" and whether it is "prohibited by the laws of France" (id. at 842). To reach the first of these Story once again resorts to controversia , arguing that "I am not permitted to deny, that under some circumstances [the slave trade] may have a lawful existence" (id. at 845). Moreover, he notes, several of the "elements of the case" against slavery, taken alone, may in fact not contravene the law of nations. On the other hand, he urges, "it is of [the slave] traffic in the aggregate of its accumulated wrongs, that I would ask, if it be consistent with the law of nations?" (id. at 846). By crafting the question in this way Story opens for himself a realm of judgment that includes consideration of both how to determine the law of nations and that law 's relation to the law of nature.

Story addresses the latter issue first by asserting that it is "the eternal law of nature, on which rests the law of nations" (id.), and the law of nature is none other than "the general principles of justice and humanity" (id.). And how are we to determine what this law requires in any given case? Again, controversia: Some say the law of nations must be "settled by consent or practice." But a principle, Story responds, need not be completely settled at any one time for it to be incorporated into the law of nations. If it were otherwise there could never be a law of nations (id.). Some argue that only principles that are universally recognized by all civilized nations can be admitted as principles of the law of nature. But, Story urges, many accepted principles of the law of nations are "of but recent origin and application, and have not, as yet, received" universal sanction (id.). He concludes, "I think it may be unequivocally affirmed, that every doctrine, that may be fairly deduced by correct reasoning from the rights and duties of nations, and the nature of moral obligation, may theoretically be said to exist in the law of nations" (id.).

This then is the second critical rhetorical move in the opinion. Story 's reliance on moral judgment is justified by the inclusion of moral principle in the law of nations. Once again he can be seen defining the circumstances of judgment via controversial argument so as to open a space for moral principle, for justice, to enter into his

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reasoning. On these grounds Story has no problem finding the slave trade to be against the law of nations. In his words (after several pages of rationale), the slave "traffic ... is ... unnecessary, unjust, and inhuman." It is "repugnant to the great principles of Christian duty, the dictates of natural religion, the obligations of good faith and morality, and the eternal maxims of justice" (id.).

The second sub-issue on the jurisdictional question is whether French law prohibits the slave trade. Story dismisses this question by shifting the burden of proof to the claimants arguing that, "by the general principles already asserted, the onus probandi rests on the claimants to establish the legitimate existence of the trade in France" (id. at 849). This disposed, Story can reach his decision in the case. It is not without interest that even here he retains the controversial form:

After listening to the very able, eloquent, and learned arguments delivered at the bar on this occasion-after weighing the authorities, which bear on the case, with mature deliberation-after reflecting anxiously and carefully upon the general principles, which may be drawn from the law of nations to illustrate or confirm them, I have come to the conclusion, that the slave trade is a trade prohibited by universal law, and by the law of France, and that, therefore, the claim of the asserted French owners must be rejected (id. at 851).

And so in La Jeune Eugenie Story defines his situation so as not to close off the realm of judicial argument. He crafts a sphere of judgment in which moral principle (as embedded in the law of nations) counts as legitimate rationale, and where a coherent justification is achieved by the fit between Story's rhetorical response and the rhetorical situation he helped to shape.

U.S. v. Amistad (1841)

The Amistad case was a cause celebre of its day. 28 The Portuguese slaver Tecora had transported a group of slaves from Africa and had smuggled them into Spanish Cuba in violation of international law, Span ish American treaties, and other international agreements. 29

Forty-nine of these were purchased by Don Jose Ruiz, a Cuban, and three by Don Pedro Montez, another Cuban. To legitimize the transport of the slaves to the Cuban province of Puerto Principe and

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to hide the illegalities, Ruiz and Montes bribed the local authorities and obtained licenses listing the slaves as ladinos, people who had been in the country long enough to know the customs and speak the language. 30 The slaves were then taken aboard the schooner Amistad, which set sail for Puerto Principe. The ship's cook told the slaves that they were all to be killed and eaten. The slaves broke free on the fourth night out, killed most of the crew, and told Ruiz and Montes to sail for Africa. Ruiz and Montes kept the schooner pointed east by day but sailed for the United States by night. When the ship was forced to stop for provisions off Long Island it was intercepted by an American navy frigate, the Washington. The Africans were incarcerated and the ship towed to port (Martin 1970, 34-56).

The two officers of the American frigate filed suit in admiralty libeling the Amistad and her "cargo" for salvage costs. The Spanish owners, Ruiz and Montes, filed a conflicting libel, claiming that the Americans had only performed a duty to which they were obligated by treaty, and requesting that the ship and cargo be returned to them. The Spanish government demanded that the slaves be returned to Havana to be tried for murder under Spanish law, and the administration of President Martin Van Buren put all its resources behind the Spanish claim (Bemis 1952, 387-89). And the Africans, in addition to being the objects of the debate over whether they were "persons" or "property," were charged with murder and piracy. They filed a writ of habeas corpus, claiming their freedom.31

In September of 1839 the circuit court in Hartford decided that the federal district court had jurisdiction over the case, and referred it to Judge Andrew T. Judson. The trial began on the 19th of November and was decided in January of 1840.32 Judge Judson, an avowed antiabolitionist, surprised nearly everyone with his ruling. He found three issues. The first was whether a treaty between Spain and the United States, providing that property rescued from pirates should be restored to the owners, applied to the case at hand. This issue could only be decided upon resolution of the second issue, whether the blacks of the Amistad were slave property under the law of Spain. Judson ruled that the court had the power to pierce the veil of the ship's documentation to determine whether the enslavement of the blacks was lawful. He found that the enslavement had been illegal even under Spanish law, and that the treaty with Spain did not apply because the blacks were not slaves

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and therefore not property ( 10 Fed. Cas. at 148-151 ). The third issue was whether people unlawfully enslaved could be convicted of crime resulting from an insurrection to regain their freedom. Judson found that such an insurrection did not constitute a crime under American law.33

Under extreme diplomatic pressure from the queen of Spain, the United States appealed. The Circuit Court affirmed the district court ruling,34 and the government then appealed to the United States Supreme Court, who agreed to hear the case.35 Lewis Tappan, the famous abolitionist directing the defense of the Amistad Africans, asked Mr. Baldwin and former President John Quincy Adams to argue the case. Mr. Gilpin, U.S. Attorney General, argued the case for the government. In late February and early March of 1841 , the Supreme Court heard oral arguments.

The case was heard in the midst of a growing controversy over the moral and political status of slavery. Abolitionists saw the case as an opportunity to have the Supreme Court vindicate their position on the immorality of slavery and the slave trade. Anti-abolitionists used the case to highlight the dangers of giving slaves their freedom. The following year Story would write the decision in Prigg v. Pennsylvania, in which he upheld the constitutionality of the Fugitive Slave Acts and, in Congress, the petition campaigns of the abolitionists was in full swing. In short, by the time the Amistad case reached the Supreme Court slavery was an even greater moral and political controversy than it had been in 1822 when La Jeune Eugenie was handed down.

Story begins his opinion by affecting a classic partitio, noting in "a few words" something of the "actual posture of the case" (Amistad 591 ). He closes off from consideration anything but restitution of the "property" on the one hand and libel for salvage (Lt. Gedney) and freedom (the Africans) on the other. He carefully sets aside other property, tort, and sovereignty claims, as well as the sticky question of whether the African should be given transport back to Africa should they be deemed free (id. at 591-92, 596-97). Thus divided, the many questions presented are whittled down to one: "whether these negroes are the property of Ruiz and Montez, and ought to be delivered up" (id. at 592).

Story examines the arguments relating to the U.S./Spanish treaty. He finds the treaty applicable and notes that, under it, the first

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consideration must be whether the "negroes were, at the time, lawfully held as slaves" (id. at 593). Controversia: On the face of things, Story claims, it would appear clear that the Africans were not held lawfully, that they were victims of kidnapping, and that their transport was "in violation of the laws and treaties of Spain" (id.) "But, it is argued," Story continues, "that the ship, and cargo, and negroes, were duly documented as belonging to Spanish subjects, and this Court have no right to look behind those documents" (id. at 594). After surveying the arguments on either side of this claim Story decides, "To this argument we can, in no wise, assent. There is nothing in the treaty which justifies or sustains the argument" (id.) The rationale is the same as in Eugenie: documents "certainly are to be deemed prima facie evidence of the facts they purport to state, yet they are always open to be impugned for fraud" (id.) Story concludes that an examination of the record, including the initial admissions of the District Attorney at trial that the Africans were indeed recently imported into Cuba, puts the question "beyond controversy" that the "negroes never were the lawful slaves of Ruiz and Montes" (id. at 593 ).

At this point in the opinion Story has demarcated an apparently limited realm of judgment. He has defined the situation in such a way as to place the positive law, the treaty, at the center of the judgment, with seemingly little room for consideration of natural law and morality. The opinion appears at this point to be headed for a formal application of the law.

But here Story makes the pivotal rhetorical move in the opinion: "[S]upposing these African negroes not to be slaves, but kidnapped, and free negroes, the treaty with Spain cannot be obligatory on them; and the United States are bound to respect their rights as much as those of Spanish subjects" (id. at 595) In this case, he argues, the "conflict of rights between the parties ... becomes positive and inevitable, and must be decided upon the eternal principles of justice and international law" (id.) In short what Story does is to invoke justice and the natural law even in the presence of controlling positive law, the treaty with Spain. By re-framing the circumstances of judgment he is able to reach the moral question without necessarily forcing a choice between positive law and natural law. He considers both, bases his decision on both, and reasons coherently without resorting to formalism. Of course, he decides in favor of the Africans, "that

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the said negroes be declared to be free, and be dismissed from the custody of the Court, and go without delay" (id. at 597).

Groves v. Slaughter (1841)

Groves, decided just two weeks before Amistad, presented the Court with a different case altogether. Unlike prize cases in admiralty in which natural law and the law of nations could be invoked with relatively few constitutional implications, Groves had the potential of implicating the commerce clause of the federal constitution and raising the possibility of the judiciary sanctioning domestic slavery.

Groves involved a simple suit by Robert Slaughter to receive payment on notes he received in 1835-1836 for the sale of slaves he had imported into Mississippi. The Mississippi constitution, adopted on 26 October 1832, prohibited the introduction of slaves into the state for sale after 1 May 1833. The buyers refused to pay, arguing that the notes were void under the state constitutional provision. When the case reached the Supreme Court the justices easily could have considered the question of Mississippi's regulation of interstate commerce, thereby raising the federal constitutional question (Groves 449-52).36

Counsel for defendants argued that the case was a straight-forward contract question involving nothing more than state law: "whether a contract, directly opposed to a [Mississippi] constitutional provision, not accompanied with any legislative action, will be carried into effect by the judicial tribunals" (Groves 452). They argued that nothing in the Mississippi constitution "contemplates future [legislative] action to constitute the prohibition" (id. at 456) and therefore the contract should not be enforced. Counsel for Slaughter argued that the prohibition against the importation of slaves into Mississippi was inefficient at the time of the contract and that, even if the prohibition were efficient, such prohibition should not reach so far as to abrogate contracts of sale. Counsel also argued that the Supreme Court should find that Mississippi courts had not consistently and clearly interpreted the pertinent provision of that state's constitution, so no state impediment should prevent the Court from reaching the terms of the contract. And finally, counsel argued, "the power, given by the Constitution of the United States to regulate commerce, [is not] one in which the states

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may participate" (id. at 489, 494-96). It is worth mentioning that the main argument on this last point was made by Daniel Webster, well-known for his defense of a strong union and for his close ties to Story.37

The Court ruled that the Mississippi constitutional provision was inoperative because it lacked enabling legislation, thereby avoiding the larger question of the domestic slave trade and the federal constitution's commerce clause. But individual justices chose to voice their opinions on the constitutional question. Justice Baldwin, the lone dissenter in Amistad, went so far as to claim that the domestic slave trade was protected by the fifth amendment, a position later adopted by the Court in the infamous case of Dred Scott v. Sanford ( 1857).

As Newmyer (1985) has shown, Story was in a bind: "To join the majority would be to countenance the domestic slave trade, which he hated, and to put blood money in slave traders' pockets. To explore fully the question of commerce power in relation to slaves, on the other hand, would unleash the furies on and off the court" (367). For a judge with a controversial cast of mind it was a perfect dilemma. Story's decision was to dissent without opinion.

Groves is important, however, because it shows the extent to which Story was willing to go to avoid a situation defined in such a way as to require him to choose between positive and natural law, or to retreat to formalism. Newmyer shows conclusively that Story's position in the case was that the Mississippi constitutional provision was a prohibition of slaves (1985, 367). That he was unwilling to argue so publicly hints at something other than a struggle between positive and natural law (which he had successfully managed before). Rather, it suggests a reluctance to enrage "the furies" of slavery. In short, it suggests a concern for something beyond the evils of slavery, something perhaps even more important to Story. He was unable to avoid the choice between slavery and that other concern for long, however.

Prigg v. Pennsylvania (1842)

Edward Prigg, acting as the agent of Margaret Ashmore, a citizen of the state of Maryland, seized Margaret Morgan, a slave who had fled Maryland and the servitude of Ashmore for Pennsylvania, and returned

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her, with her children, to Ashmore in Maryland. Prigg was indicted under the laws of Pennsylvania for kidnapping with the intention of returning her to slavery for life. The case pitted Pennsylvania's personal liberty law of 1826 prohibiting slavery and the forcible removal of a negro or mulatto from the state against the federal constitution's rendition clause (article IV, section 2, clause 3) and the Fugitive Slave Act of 1793 guaranteeing the right of slave-owners to obtain escaped slaves and the duty of states to cooperate. 38

Story wrote what is often referred to as the opinion of the Court in Prigg but in reality his is but one of seven opinions, and no majority agreed with Story's reasoning. Story 's opinion is striking on two levels. One is the seemingly complete reversal from an anti-slavery to a pro-slavery position and the other is the highly charged language of the opinion.

Once again though, Story uses the controversial form. He begins by noting the "agitations" on the subject in both Maryland and Pennsylvania that both states have sought to reduce (Prigg 609). In this way he heightens the urgency of the case and, by fashioning the exigence as a heated dispute between states, suggests that the questions presented are of a nature that could threaten the union.

Story then surveys the questions presented and, in so doing, confronts the constitutional question he so studiously avoided in Groves. He fashions the historical circumstances of the rendition clause by arguing that it was included in the constitution "to guard against the doctrines and principles prevalent in the non-slaveholding states, by preventing them from intermeddling with, or obstructing, or abolishing the rights of the owners of slaves" (id. at 611) This is not what is known today as an "original intent" argument. It is, rather, an argument that aligns the clause with acceptance of the constitution by the Southern states, for it is a clause "without the adoption of which the Union could not have been formed" (id.) In short Story here raises the stakes of the controversy. If the Union could not have been formed without the clause (the implication is), how can it hold together without it?

The stakes established, Story leaves little doubt as to his decision. He adheres to controversial form but does so in a way that weights the arguments heavily in favor of the rendition clause and against the Pennsylvania statute. He discusses objections to the Fugitive Slave Act, the exclusivity of the powers of Congress, and other minor

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arguments dismissively, as if to say, if the union itself is at stake, what arguments can possibly count against it?

The difference between his argument in Prigg and his argument in the two cases above is not one of instrumentalism versus formalism. Story's rhetoric in Prigg is expansive and highly charged. Indeed, Chief Justice Taney, concurring, argues that Story goes too far,39 well beyond what is required by the case before the Court. In other words, formalism necessitated far less than Story gave. Moreover, Story's dismissive tone suggests that even the moral evils of slavery must bow before a more important and higher consideration.

Conclusions

The analysis above suggests that Story's judicial rhetoric on slavery was not primarily a choice of positive law over natural law. In La Jeune Eugenie and Amistad Story had little problem invoking justice and the natural law against certain slave practices. Nor does it appear that Story's judicial rhetoric on slavery can be completely understood as a matter of role theory and a retreat to formalism. Prigg demonstrates just how sweeping a rhetoric Story could invoke on behalf of the rendition clause and, by, implication, the Fugitive Slave Act. The controversial rhetoric reveals then, that a complete answer to the case of Justice Story is still to be sought.

I have suggested that Story may have had another and, in his mind, higher concern than the evils of slavery. One worthwhile line of inquiry would be the place of "the union" in Story's thinking and the extent to which he equated the union with republican government and the constitution that created it. Such an inquiry might explain Story's slavery decisions in a way that complements the existing focus on positive law versus natural law by providing a rationale for the choice of positive law in some cases but not in others-in some cases the "moral" decision would threaten the very existence of the constitutional union by undermining the integrity of the constitution itself. It would not be, at least to Story, a just decision in the end.

Viewed in this light, Story's attempt was to fashion the exigencies of slavery disputes in such a way as to allow decisions that permitted the union, which he saw as virtually synonymous with the constitution,

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to endure by defining the circumstances of judgment in such a way that personal moral principles were sacrificed, if need be, before the overarching principle of union. Whether this line of inquiry has promise and, if so, how well Story succeeded, is open to question.

This study also contributes to our understanding of rhetorical criticism and interpretive practices. In Story's judicial rhetoric, Ciceronian controversia served to define the situations of judgment in much the way scholars of performative or rhetorical traditions suggest. The study therefore adds considerably to our understanding of the rhetorical actions through which situations are defined and constituted, and the extent to which these tasks can be accomplished via neoclassical forms and procedures. Through performances of Ciceronian controversial rhetoric Story was able to close off the realm of judgment, to convey what counted in each case and what did not, and to craft a coherent justification for the decision. As a result we can see that Story was neither completely free to "create" a rhetorical situation to his liking, as some have argued a rhetor is (e.g., Vatz 1973, 158-60), nor completely at the mercy of objective forces of constraint (as Bitzer's position is described by Vatz 1973, 155-58; cf. Bitzer 1981).

For historians of rhetoric, however, that question may be less important than the implications for the study of the intellectual legacy of Ciceronian rhetoric. Some have argued that humanist rhetoric, by which we mean Ciceronian rhetoric marked by controversia, ended with Milton (e.g., Sloane 1985). This study reveals that Ciceronian rhetoric survived long after and, in fact, was embedded in the law, particularly the law of evidence and legal procedure. In nineteenthcentury America, judges, particularly classically trained federal judges, used a controversial method to negotiate the mine-field of slavery cases.

The study might also serve as a mild warning against taking the words of eighteenth and nineteenth-century rhetorical theorists concerning the applicability of classical rhetoric to modem legal disputes too far. The complaint that the style and manner of ancient forensic oratory was wholly inappropriate to modem legal practice was routinely repeated in well-known writers such as Blair (1783, 2: 74-100, 179-82), Lawson (1758, 93-94), Ward (1759, 1: 124-25), Campbell (1850, 104), Channing (1856, 1-25, 96), and even Adams

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(1810, 1: 279). And yet those who favored a neoclassical rhetoric did

not mean that the classical apparatus (by which I mean the inventional

techniques and forms) could not and should not be used by advocates

and judges in the early republic. Quite the contrary. As I hope the

present study has shown, the essence of legal argument still retained

the basic demands of controversial rhetoric, and thus classical rhetoric

remained a viable legal method. In our ongoing investigation of this,

the formative period of American law, we should remain ever mindful

of the classical influences on forensic and judicial discourse and,

therefore, of classical rhetoric's possible influence on, and reception in, American law.40

Notes

1. The best treatments of this problem remain Cover 1975; Noonan 1976; Wiecek 1977; and Tushnet 1981. See also Roper 1969; Klarman 2001; Plagg 2004.

2. Cover calls this the "formal-moral distinction;" see generally Cover 1975, 197-259.

3. See Cover (1975, 238-43), who argues that Story as judge was unable to reconcile judicial opinions with Story as moralist. The result was, in Cover's terms, a "retreat to formalism" to justify the dissonance.

4. In his discussion of Justice John McLean, Cover hints at additional forces that may have played a factor (1975, 248).

5. On the judiciary's early instrumentalism see generally Horwitz 1977. 6. I am concerned with how Story defined the rhetorical situation in a sense

similar to that outlined in Cox 1981. 7. See Buckley 1970; Sloane 1985; 1989; Lardner, Marshall, and McClure 1990;

Sloane 1990; Conley 1990, 36--37; McClish 1991; Sloane 1997. 8. See, e.g., Clark 1957, 130-43 (summarizing the Greco-Roman traditions

of quaestio); Bitzer 1968; 1980, 21-38; Wilkerson 1970; Larson 1970; Pomeroy 1972; Miller 1972; Vatz 1973; Jamieson 1973; Consigny 1974; Baxter and Kennedy 1975; Rubin and Rubin 1975; Hunsaker and Smith 1976; Patton 1979; Kaufer 1979; Kneupper 1980; Brinton 1981 ; Biesecker 1989; Garrett and Xiao 1993; Leroux 1998; Edbauer 2005; Ervin 2006; Swift 2007.

9. Even if we compare Aristotle (Rh. 1358a-59a and 1368b-77b) with the far more extensive analysis in Author to Herennius (Rhet. Her. 1.2.2, outling the three kinds of causes, and 1.2.4-17.27 and 2.1.1 - 31.50, detailing the judicial cause) and with Quintilian (lnst. 3.4.16, quarreling with those who insist on clean and clear associations of ends with specific genera, and 3.9.1-9, outlining the judicial cause), we are struck more by the similarities than the differences.

10. I have in mind here the expansion of the domains of rhetoric precipitated by the rhetoricians of the Italian Renaissance and the Scottish Enlightenment (for the

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former see, e.g., LaRusso 1959; for the latter see, e.g. , Warnick 1993). The end result of this approach was the notorious "modes of discourse" found in late nineteenthcentury Anglo-American rhetoric (see Connors 1981 ; Crowley 1990; cf. O'Rourke 1996).

11. One exception is the work of Cox ( 1981 ). Cox argues that earlier descriptions of the rhetorical situation had focused primarily on describing the situational constituents and not on the "process by which social actors construct/discover" (198) those constituents or how "actors ' definitions of the situation lead them to interpret certain choices as being rational, reasonable or justified" (197). In Cox 's view, one could not simply assume that the constituents of a rhetorical situation were evident to all, or, if evident, that they meant the same thing to all. Instead, he urged, actors' "interpretations of the meaning of a situation 'constitute ' the essential constraints upon actors' decisions" (198). Specifically, Cox isolated three inventional heuristics at work in rhetors' definitions of various situations: closure (200-02), counting (202-03), and coherence (203-05). A second exception is Benoit 1994. Benoit argues that the Bitzer's viewpoint adopts an unsatisfying epistemology and Vatz's alternative, while epistemologically superior, is similarly reductionistic. Benoit offers instead a "conception of the genesis of rhetorical action" based in the works of Burke and Brockriede ( 1994, 342-50). Both Cox and Benoit, however, succumb to the temptation of overarching approaches to rhetorical situations. Such approaches risk directing attention away from the particulars of a given situation and rhetor, and hazard leaving the critic floundering at some distance from the center of rhetorical action.

12. See Ferguson 1984, 20-21, 26-30, 72-78; Kerber, 1970, especially 126-31 on John Quincy Adams; and more generally, Adams 1810. See also, Reinhold 1975; Farrell 1991; Richard 1994; 2003 , 2008; Winterer 2004; Meckler 2006; Bederman 2008. On the Ciceronian influence on Adams 's Lectures see the somewhat exaggerated case made by Rousseau ( 1916), who misses many of the key alterations Adams makes in Ciceronian rhetoric.

13. See Newmyer, 1985, 21. Story also read Knox's Elegant Extracts (1770), which contained all manner of model writings, and which Story held in high regard throughout his life (see Story 1851 , I: 23-24).

14. See Harvard University 1819, 22; Quincy 1840, 2: 279; cf. Johnson (1991 ), who lists Cicero as one of "authorities most frequently cited by nineteenth-century rhetoricians" during the first half of the nineteenth century (255).

15. On "Orator Jo" see Newmyer 1985, 47. For the review of Hoffman see [Story]l817.

16. Swift v. Tyson , 41 U.S. (16 Peters) I, 19 (1842): " . . . nec eritalia lex Romae, alia Athenis, alia nunc, alia posthac, sed et omnes gentes , et omni tempore una lex et sempiterna et immutabilis continebit . .. . " (the passage is from Cic. Rep. 3.33). On Cicero's "rhetorical view of law" see Kastely 1991.

17. Joseph Story to Samuel P. P. Fay, 18 February 1834, in Story 1852,2: 154. 18. For a brief discussion of the quaestio in Cicero see Part. 1- 6; cf. Quint. lnst.

3.6.1-104, 5.1 0.32. 19. Clark summarizes Ciceronian inventio this way ( 1957. 78): " [I]n endeavoring

to find answers to the questions posed, the student begins to see relationships amongst the data of his knowledge and experience. In a word, he begins to think. Or in terms of public speaking, he begins to discover means to logical persuasion. As treated in

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inventio the process is analytical and exploratory. When ancient rhetoric took up the places of argument in the doctrine of proof and refutation in the composition of the speech itself, the process was reversed. The student was taught to synthesize arguments he had found into a close-knit fabric of proof and apparent proof of his case."

20. Adams 1810, 1: 186; for his entire treatment of the state of the controversy see 1: 183-205.

21. On status there is now a growing body of literature. In addition to works already cited, see Hohmann 1989; Braet 1987; Dieter 1950: Nadeau 1959.

22. Cic. de Orat. 2.102--04, trans. Sutton and Rackham 1942. The assessment of the passage is heavily dependent on Sloane 1989, 465-66.

23. See Wagner 1944. On the importance of the partitio see Vickers 1968. 24. Elocutio and pronuntiatio or actio, the Ciceronian precepts of language use

and delivery respectively, also were tied to the controversial mode but are beyond the scope of the present study. For additional insight on the classical bases of early American judicial rhetoric, see Wiethoff 1996, esp. 1-34.

25. As will be seen, he actually issues only one "pro-slavery" opinion, Prigg; in Groves he maintains a studied silence, dissenting without opinion.

26. In admiralty a libel is merely a written declaration of the plaintiff, in this case the United States, of the cause of action and the relief sought. In the early nineteenth century, prize cases such as this (wherein the captured schooner was the prize) constituted a very large portion of the case load of the federal courts. The facts of the case are those of the court reporter, La Jeune Eugenie 832-34.

27. Id. at 841; Story continues: "It is too much to ask a court of justice to shut its eyes against what is passing in the world, and to affect an ignorance, of what every man knows; to deal with the surface of causes, and pronounce them to be innocent, because no stain is permitted to appear there, or because guilt is ostentatiously displayed to the first glance."

28. For a contemporary account of the events surrounding the Amistad case see Barber 1840. Lengthier and more recent accounts are provided by Jones 1987; Martin 1986; and Martin 1970. For a study of Adams's use of Ciceronian rhetoric in arguing the case before the Supreme Court, see O'Rourke 1994.

29. See, in addition to works already cited, Bemis1952. 385. 30. There were at the time three possible listings . "Bozals" were newly

arrived slaves, a term that would have described accurately the slaves purchased by Ruiz and Montes while also declaring the illegalities involved. "Ladinos" were people who had been in the country long enough to know the customs and speak the language. "Creoles" were those of African descent who had been born in the New World. See Martin, 1970, 32-33. Each slave was given a Spanish name to complete the farce.

31. Gedney et al. v. L'Amistad, 10 Fed. Cas. 141 (D. Conn. 1840). The criminal indictment was taken to a grand jury, but the grand jury was dismissed and the indictment dropped before the case was ever brought to trial (see Martin 1970, 104).

32. There appears to be some discrepancy over the date of the district court 's decision. Federal Cases lists the decision date for case number 5,294a., Gedney et al. v. L'Amistad, as "Jan. 7, 1840." 10 Fed. Cas. 141 (1840). The Supreme Court reporter, Richard Peters, refers to the district court 's decision date as "23d day of January." U.S. v. Amistad, 40 U.S. (15 Pet.) 518,527 (1841).

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33. 10 Fed. Cas. at 148-151. The court also ruled in favor of the American libel claim, though only for the cost of the ship, not the Africans, for the Africans were not property. 10 Fed. Cas. at 143.

34. U.S. v. The Amistad 40 U.S. (15 Pet.) 518, 532-33 (1841 ). 35. Id. at 532. 36. On the possibility of the Court reaching the commerce clause question, see

Newmyer 1985,366-67. 37. On Webster as a unionist see Smith 1989; regarding the ties between Webster

and Story see Newmyer 1985, 175-76. 38. The rendition clause can be found in U.S. Const. art IV, §2. The Fugitive

Slave Act is more correctly rendered "An Act Respecting Fugitives from Justice, and Persons Escaping from the Service of their Masters." February 12, 1793 (I Stat. at L. 302).

39. Prigg (Taney, C.J. , concurring) 627-33. 40. The author is grateful to the late Dominic A. LaRusso for his patient readings

of early drafts. He also wishes to thank Walter Jost, Warren Sandmann, and Thomas 0. Sloane for their helpful comments on recent versions of the essay.

References

Adams, John. Quincy. 1810. Lectures on Rhetoric and Oratory. 2 vols. Cambridge: Hilliard and Metcalf.

Barber, John W. 1840. A History of the Amistad Captives: Being a Circumstantial Account of the Capture of the Spanish Schooner Amistad, by the Africans on Board; Their Voyage and Capture near Long Island, New York; with Biographical Sketches of Each of the Surviving Africans Also, an Account of the Trials on their Case, before the District and Circuit Courts of the United States,jor the District of Connecticut. New Haven: E. L. and J. W. Barber.

Baxter, Gerald D., and Bart F. Kennedy. 1975. "Whitehead 's Concept of Concrescence and the Rhetorical Situation." Philosophy and Rhetoric 8: 159-64.

Bederrnan, David J. 2008. The Classical Foundations of the American Constitution : Prevailing Wisdom. Cambridge: Cambridge University Press.

Bemis, Samuel Flagg. 1952. John Quincy Adams and the Union. New York: Alfred Knopf.

Benoit, William L. 1994. "The Genesis ofRhetoricalAction." Southern Communication Journal 59:342-55.

Benson, Thomas W. 1993. " Introduction: Beacons and Boundary-Markers: Landmarks in Rhetorical Criticism." Landmark Essays on Rhetorical Criticism. ed. Thomas W. Benson, xi-xxii. Landmark Essays Series, 5. Davis, CA: Hermagoras.

Biesecker, Barbara A. 1989. "The Rhetorical Situation from within the Thematic of Difference." Philosophy and Rhetoric 22: II 0-30.

Bitzer, Lloyd F. 1968. "The Rhetorical Situation." Philosophy and Rhetoric 1: 1-14. - --. 1980. "Functional Communication: A Situational Perspective." In Rhetoric

in Transition: Studies in the Nature and Uses of Rhetoric, ed. Eugene E. White, 21-38. University Park: Pennsylvania University Press.

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the rhetorical dynamics of judicial situations: joseph story, ciceronian rhetoric, and the judicial...

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