Legal Lynching, Artificial Virtues and To Kill a Mockingbird

I. TWO MODELS OF MOCKINGBIRD’S JURY

As Robinson’s trial proceeds, we learn that Mayella Ewell sustained injuries to the right side of her face and neck, but that Robinson had no use of his left arm, having ‘caught it in a cotton gin’ when he was a boy.¹² Miranda Fricker is right that ‘It is obvious to the reader, and to any relatively unprejudiced person in the courtroom, that Robinson is entirely innocent.’¹³ Robinson’s disability functions in Mockingbird’s plot (apparently only) to demonstrate ‘beyond doubt’ that he did not attack Mayella. The fact that the jurors deliver a guilty verdict and a death sentence, without regard to the evidence against Robinson’s guilt, is both bewildering and horrifying. As Scout’s brother Jem asks their father after the trial ends, ‘How could they do it?’¹⁴

Given the evidence against Robinson’s guilt, Fricker concludes that the jurors are blinkered by prejudice, and that their prejudice is best characterized in terms of degrading stereotypes of black people as untrustworthy. Mockingbird’s courtroom sequence and the jury’s verdict provide Fricker with her ‘central case’ of testimonial injustice: a ‘systematic identity-prejudicial credibility deficit’. She describes the trial as a battle waged by Atticus to convince the jurors of Robinson’s innocence:

The trial proceedings enact what is in one sense a straightforward struggle between the power of evidence and the power of racial prejudice, with the all-white jury’s judgement ultimately succumbing to the latter.¹⁵

‘When it comes to the verdict,’ Fricker writes, ‘the jurors go along with the automatic distrust delivered by the prejudices that structure their perception’ of Robinson.¹⁶ In the teeth of conclusive evidence against his guilt, the jurors’ ‘immovably prejudiced social perception of Robinson as a speaker leads at once to a gross epistemic failure and an appalling ethical failure of grave practical consequence.’¹⁷

Textual support for this view of Mockingbird’s jury verdict is not strong. Fricker discusses the end of Atticus’ summation, in which he tells the jurors, ‘In the name of God, do your duty,’ turns away, and is heard to say (‘more to himself than to the court’): ‘In the name of God, believe him.’¹⁸ As Fricker interprets his behavior, Atticus is ‘trying to impress upon the jury that they have a duty to believe Tom Robinson, and this supports my interpretation of the jurors’ psychology.’¹⁹ However, Atticus’ plea to the jurors to ‘do your duty’ may also refer to Judge Taylor’s instructions to the jurors, which Atticus knows will immediately follow his own closing statements. As I discuss in the next section, Judge Taylor reminds the jurors of ‘their moral and legal duty to convict only if they truly judge the defendant guilty.’²⁰ Furthermore, Atticus’ insistence that the jurors believe Robinson does not support the claim that anti-black bias is responsible for their verdict. While Fricker describes the trial as a ‘contest between the word of a black man against that of a white girl’, Robinson’s physical disability entails that his own credibility is a relatively insignificant consideration for the jurors. Before telling the jurors to ‘do your duty’, Atticus says, ‘I am confident that you gentlemen will review without passion the evidence you have heard.’²¹ A juror does not need to believe Robinson to dispassionately review the evidence against his guilt. Indeed, the juror who believes Robinson’s testimony believes in more than Robinson’s innocence; he also believes that Mayella Ewell made sexual advances toward Robinson, an allegation Atticus repeats in his closing comments.

Fricker does not introduce historical considerations into her interpretation of Mockingbird, and her account of the jury verdict may well be consistent with the text of the novel. However, if it is plausible to regard the Mockingbird jurors as too prejudiced to believe Robinson over Mayella, then it is history – and not the novel – which makes it so. Scout is exposed to anti-black comments and perspectives throughout the novel, but they rarely pass without contrary views from characters relatively free of it. Aside from Bob Ewell, the most vicious racial comments by adults in the novel are made by white women who neither work outside of the home nor attend Robinson’s trial, and who largely interact with the black citizens of their community as paid domestic workers. We learn that Mockingbird’s jurors are all white working-class farmers, but one white farmer attending the trial (Link Deas) interrupts the proceedings with an outburst in support of the defendant. Robinson, he says, ‘worked for me eight years an’ I ain’t had a speck o’ trouble outa him. Not a speck.’²² This should not surprise us, as white farmers of this period frequently labored alongside blacks as employees or fellow dayworkers. Mockingbird provides little basis for Fricker’s claim that ‘there are those on the jury for whom the idea that the black man is to be epistemically trusted and the white girl distrusted is virtually a psychological impossibility,’ and historical considerations suggest otherwise.²³

Our epistemic question for Mockingbird’s jurors is not, ‘How could they not believe Robinson?’, but rather ‘How could they ignore Robinson’s disability?’ The only acceptable answer to the latter question is that they do not ignore it. Indeed, a juror’s prospects for disregarding it are even worse than those of the trial’s spectators (or Mockingbird’s readers), as one of the few things we know about the jurors is that they take several hours to come to a consensus. Fricker sets aside an alternative scenario in which the jurors are compelled by a force outside of their own beliefs regarding Robinson’s guilt:

It is important that we are to interpret the novel so that the jurors really do find him guilty. That is to say, they do not privately find him innocent yet cynically convict him anyway.²⁴

This latter scenario is closer to the truth, and the iniquity, inhumanity, and brutality of Robinson’s trial is far worse than a case of collective juror prejudice.²⁵ When Atticus himself looks back upon what he achieved in his defense of Robinson, his reflections are nothing if not cynical. Explaining Bob Ewell’s threatening behavior after the trial, Atticus asserts that ‘I destroyed his last shred of credibility at that trial, if he had any to begin with.’²⁶ Later, he expands:

It might be because he knows in his heart that very few people in Maycomb really believe his and Mayella’s yarns. He thought he’d be a hero, but all he got for his pains was … was, okay, we’ll convict this Negro but get back to your dump.²⁷

According to Atticus, his defense of Robinson convinced virtually everyone in his community that Ewell and his daughter were lying. Atticus’ own depiction of the jurors’ deliberations – ‘okay, we’ll convict this Negro’ – is a shocking admission, by a devout believer in the law, that the local judicial system is broken.

What has broken it? Consider the following description of a ‘trial’ which took place in central Texas six years before the trial fictionalized in Mockingbird.

There came near being a lynching in Brazos County March 23, 1929; a Negro was accused of assaulting a white school teacher at Millican. The uncle of the girl doubtless prevented the lynching by agreeing to leave the case in the courts upon the promise of officers and leading citizens that the Negro would be electrocuted. Suspicion fell upon a colored man who was subsequently arrested and questioned. … When he persisted in maintaining his innocence, ‘Let’s stop,’ the sheriff stated he said to his deputy, ‘if he won’t tell us the truth, we will let the mob have him.’ The sheriff stated that the Negro hurriedly said: ‘Yes-suh, you got the right n----r.’

A leading attorney of Bryan stated that he guaranteed to the uncle of the school teacher that the Negro would receive the death sentence and be electrocuted without delay if the law were allowed to take its course. The lawyer stated that this was one of the most distasteful tasks he ever performed, but that he considered it the only way to prevent a lynching. The judge gave the case the earliest possible hearing.

Within a few days the Negro was brought to trial. … The eager crowd in the courthouse insisted that it be finished that night. Court officials feared to refuse; the case went to the jury at ten o’clock, and a half hour later a verdict of guilty was brought in. Immediately the death sentence was imposed. The defense attorneys were at first inclined to file the usual appeal, but, after consulting briefly with other lawyers and citizens, decided that to do so would result in an immediate lynching. A month and three days later the Negro was electrocuted.²⁸

The above description was written by the sociologist Arthur Franklin Raper, in The Tragedy of Lynching (1933), his report from a two-year study of the known lynchings which took place in the US in 1930. Raper calls this ‘a good example of a “legal lynching”’. Through his depictions of lynchings, near lynchings, and legal lynchings, Raper describes ways in which white supremacist practices of violence were tightly interwoven with the judicial system.

The ‘trial’ Raper describes in the passage above is an example of what Tamar Schapiro calls a ‘sham’: a social practice ‘oriented toward the realization of a common good’ which has been ‘subverted’ by ‘a form of noncompliance that has the effect of detaching the law from the constitutive background in virtue which lawful actions succeed in being expressions of a public will.’²⁹ In legal lynchings like the one described by Raper, the US institution of trial by jury was sabotaged by a violent or retaliatory white community demanding that black defendants be found guilty or that white defendants accused of violence against black people be released. All the participants in the 1929 ‘trial’, including the jurors, were forced into noncompliance with the laws and rules governing a US criminal trial, such that the proceedings were ‘detached’ from the conditions required for a jury trial to serve the ‘common good’. While the trial of Tom Robinson is not attended by a violent mob, the threat of intimidation and socioeconomic ostracism remains to subvert it into a sham.

II. HUMEAN ALLEGIANCE AND JURY NULLIFICATION

On the evening of Robinson’s one-day trial, Scout and her older brother Jem return to their seats in the ‘Colored balcony’ of the fully occupied courtroom, to await the jury’s verdict. Having missed Judge Taylor’s final instructions to the jury, Jem asks for a report from Reverend Sykes, who has saved their seats next to him. The Reverend replies,

Oh, he did right well. I ain’t complainin’ one bit – he was mighty-fair-minded. He sorta said if you believe this, then you’ll have to return one verdict, but if you believe this, you’ll have to return another one. I thought he was leanin’ a little to our side –’³⁰

The Reverend interprets Judge Taylor’s instructions to the jury as ‘leanin’ a little to our side’, because the Judge appears to have explicitly reminded the jurors of their obligation to return a verdict which accords with their beliefs regarding the evidence of Robinson’s guilt. Reverend Sykes is among the many spectators of the trial who expect the jurors to violate this obligation. When Jem declares, ‘Don’t see how any jury could convict on what we heard –’, the Reverend replies, ‘Now don’t you be so confident, Mr Jem, I ain’t ever seen any jury decide in favor of a colored man over a white man …’ He rightly anticipates that the jurors will disobey what Hume calls their ‘civil duties, or obedience to the magistrate.’³¹

Hume belongs to the minority of theorists who defend the civic virtue of obedience not to laws per se, but to officials acting on behalf of laws.³² Although it is generally recognized that the greater good of ‘maintenance of order in society’ requires a widespread observance of justice, Hume claims, we remain tempted by the prospect of ‘immediate advantage’ to commit unjust acts such as stealing or contract breaking.³³ It is ‘impracticable’, he argues, to expect all citizens of a polity to ‘render the observance of the laws of justice our nearest interest, and their violation our most remote.’ Our solution is to ‘render the observance of justice the immediate interest of some particular persons … whom we call civil magistrates, kings and their ministers, our governors and rulers,’ along with ‘officers, civil and military, to assist them in their government.’³⁴ Individuals who occupy these offices are responsible for ‘the execution and decision of justice.’³⁵ The widespread virtue of loyalty to government officials, Hume writes, ‘is requisite to preserve order and concord in society,’ as a government whose citizens defer to officials rewards them with ‘security and protection’ not only from each other, but from themselves.³⁶

Hume’s convention of obedience to government officials provides us with a simple model of the justice-promoting practice which is violated in legal lynchings. Judge Taylor’s instructions are (in Schapiro’s words) ‘oriented toward the realization of a common good’: If the jurors believe that Robinson is guilty, then the community must be protected from him, but if they believe that he is not guilty, then he must be protected from the false claims of his accusers. Reverend Sykes sees the Judge’s instructions as ‘leanin’ a little to our side’, because had the jurors followed them, the result would be (in Hume’s words) ‘security and protection’ for all citizens of Maycomb.

While the central rule of a Humean convention is relatively simple – ‘obey government officials’ – the convention itself is a multifaceted and institutionalized social practice. In context, the principal rule is applied, Hume writes, ‘by other general rules, which must be extended to the whole society, and be inflexible either by spite or favor.’³⁷ These secondary rules of application are contingent, changeable, and they may be contested. Indeed, Hume acknowledges that, at times, citizens will generate their own practices of disobedience. ‘Where the tyranny of the governor removes [our] interest’ in peace and order, he writes, citizens may ‘form a kind of general rule for the regulation of [their] conduct in such occurrences.’³⁸ This qualification is necessary when our topic is the institution of trial by jury in the US, where the jury trial has been traditionally defended as a check against the imposition of unpopular laws. All jurors are – in principle – at liberty to refuse to convict a defendant who is guilty of violating what they view as an unjust law, thus disempowering or ‘nullifying’ it. As a recognized practice of public resistance to standing laws, jury nullification is an exception with ‘the qualities of a general rule’ to the otherwise exceptionless duty to obey government officials.

Jurors nullify laws by turning trials which prosecute such laws into shams. A nullifying verdict (Schapiro words, again) ‘detaches’ the law from its ‘constitutive background condition’ of applying only to the culpable. As one US federal court justice has written:

The drafters of legal rules cannot anticipate and take account of every case where a defendant’s conduct is ‘unlawful’ but not blameworthy. … It is the jury – as spokesman for the community’s sense of values – that must explore that subtle and elusive boundary …³⁹

In their history of the US jury trial, Alschuler and Deiss write that the ‘enthusiastic support for the jury’ among the framers of the Constitution ‘stemmed in large measure from the role that juries had played in resisting English authority before the Revolution.’⁴⁰ Trial by jury was guaranteed in most American colonies, and juries consistently refused to convict journalists and editors who were accused by colonial magistrates of printing treasonous statements. ‘During the pre-Revolutionary period,’ they report, ‘juries and grand juries all but nullified the law of seditious libel in the colonies.’⁴¹ In the years leading up to the Civil War, juries in northern states famously refused to implement fugitive slave laws, which demanded that runaway slaves be returned to their southern owners.⁴²

Even staunch proponents of the ‘unreviewable’ right of jurors to nullify a law are quick to point out that this power has been abused. Juries in the post-Civil-War South frequently abused their power to nullify laws, either through convicting a black defendant not guilty of harming a white person (as in Mockingbird), or through refusing to convict a white defendant guilty of harming or killing a black person. The power struggle to integrate juries in the ex-Confederate states (both de jure and de facto), which began soon after the Civil War and continued through the Civil Rights era, was motivated by two urgent needs: to secure ‘fair treatment for black defendants’, and to counter ‘impunity for white purveyors of racial violence’.⁴³

Both needs were demonstrated in the two most widely discussed race trials of the twentieth-century US South, which took place during one of the two time periods of Mockingbird: the years in which Scout observes the events of the novel – the mid-1930s – and the years leading up to Jean Louise’s narration of them – the latter 1950s.⁴⁴ In the so-called Scottsboro trials, which captured international news headlines throughout the 1930s, juries in rural northern Alabama repeatedly returned guilty verdicts and death penalties for nine young black men accused of raping two white women.⁴⁵ The most infamous example of ‘white impunity’ for racial violence was the 1955 jury acquittal of two men for the murder of fourteen-year-old Emmet Till, in Sumner, Mississippi, after the wife of one of the defendants testified that Till had insulted her as a customer in their shop.⁴⁶ The Scottsboro and Emmett Till trials, like Tom Robinson’s trial, were shams, all of them instances of a larger, non-accidental series of legal lynchings under related conditions. Either jurors unjustly enforced a law which had not been violated (as in the Scottsboro or Mockingbird trials), or they refused to enforce a law which had been violated (as in the Emmett Till trials).

The first four Scottsboro jury trials were completed within three days, attended by a large crowd kept in control by the National Guard. All nine defendants were found guilty of rape and eight were sentenced to be executed. The Communist Party drew nation-wide attention to the trials, and attorneys were hired to appeal the convictions to the Supreme Court, which agreed and ordered re-trials. The first re-trial (of Heywood Patterson) took place two years later in a nearby county, drawing international media coverage. Patterson’s re-trial was carefully prepared and handled by Samuel Liebowitz, a defense attorney from New York. One of the two original accusers in the first four trials dramatically appeared for the defense, recanting her previous claim that she was assaulted. The remaining accuser (Victoria Price) defiantly claimed to remember relatively little of the events surrounding the supposed attack, and she contradicted claims made in previous trials.⁴⁷ Nonetheless, the jurors immediately and unanimously declared the Paterson to be guilty, and (after some deliberation) sentenced him to be executed. Days later, the judge who presided over the trial, James Edward Horton, made the extraordinary (and career-ending) decision to set aside the trial, claiming that the jury’s verdict was ‘contrary to evidence’. He declared that the testimony of Price, without which the prosecution had no case,

is not only uncorroborated, but it also bears on its face indications of improbability and is contradicted by other evidence, and in addition thereto the evidence greatly preponderates in favor of the defendant.⁴⁸

Horton was promptly replaced by another judge, and in the multiple re-trials which followed, juries continued to return guilty verdicts.

In the trials for the kidnapping and murder of Emmett Till, the evidence that the defendants were guilty was as decisive as that for Haywood Patterson’s innocence.⁴⁹ Furthermore, we have testimony from the jurors themselves that they harbored no doubt that the defendants were guilty. In 1963, Hugh Whitaker completed an MA thesis on the Emmett Till trials and their aftermath.⁵⁰ Born and raised in Sumner, Whitaker personally knew and interviewed many of the local participants in the case and trial. After speaking to nine of the twelve jurors, as well as the alternate juror, he reports that ‘not a single one doubted that [the defendants], or the Negroes supposedly with them, had killed Emmett Till.’⁵¹ Nonetheless, he tells us that before the trial began, ‘All parties concerned – the judge, prosecuting attorneys, defense attorneys, the jury, and the accused – knew that a verdict of not guilty was certain.’⁵² Given this pre-determined outcome, Whitaker describes the case for the defense as a ‘smoke screen’ to cover up for the jurors who were committed to an acquittal.’⁵³ The lead prosecutor claimed that he intentionally avoided presenting a strong case against the defendants, Whitaker writes, because he

knew that the case was lost, and he did not wish to place all the blame on the jurors, most of whom served out of a sense of obligation and with deep regret. If the ‘smoke screen’ had been completely removed, thirteen men would have become the victims of harassment …⁵⁴

It would appear that courtroom evidence in the Scottsboro and Emmett Till trials had nominal influence on the jurors. They violated their duty to obey the presiding judge and abused their entitlement to nullify unjust laws.

Here lies the meaning of Atticus Finch’s rendition of the jury verdict in Mockingbird: ‘Okay, we’ll convict this Negro …’ Several adult characters attest to the inevitability of this outcome. In addition to Reverend Sykes, a long-time friend and neighbor of the Finches (Miss Maudie) tells the children that before the jury verdict she was confident that Atticus ‘won’t win, he can’t win’, even though ‘he’s the only man in these parts who can keep a jury out so long in a case like that.’⁵⁵ Atticus himself is pessimistic from the time that he takes the case; when Scout asks, ‘are we going to win it?’, he bluntly replies: ‘No, honey.’⁵⁶ Unlike the prosecutor in the Emmett Till murder trial, however, Atticus leaves no ‘smoke screen’ of evidence for Robinson’s guilt. In this regard, he resembles Samuel Liebowitz, who thoroughly exposed the lack of evidence for Patterson’s guilt other than the assertions of his lone accuser.

In the context of Mockingbird, the differences between Liebowitz and Atticus are more important than their similarities. Liebowitz was an outsider to Alabama, and Patterson’s re-trial was observed closely by the national and international press. Liebowitz objected in court to the absence of black citizens among available jurors, with historic consequences.⁵⁷ For his efforts, he received multiple death threats from the local community, and he was granted 24-hour protection.⁵⁸ Atticus, on the other hand, was born and raised in Maycomb County, and Robinson’s trial is local and temporary news. As we would expect, Atticus does not object to the all-white jury. He has ‘served for years in the state legislature, elected each time without opposition’, an inconceivable achievement in a 1930s rural Alabama district for a legislator with an anti-segregationist agenda.⁵⁹

III. SEXUAL SEGREGATION AND SEXUAL HONOR

The Mockingbird jurors violate the Humean convention of obedience to government officials, a practice whose purpose is, in part, to protect citizens from the ‘wickedness and injustice’ of others. A second Humean convention deeply structures the lives of all citizens in the US South of the time: the prohibition on marriage or sexual relations between whites and blacks. This exceptionless practice served the interests of white society in the US South, and it is ultimately responsible for Robinson’s conviction and death sentence.

During the trial, Atticus discloses this fact before the jurors and Maycomb County at large. He calls only one witness to the trial proceedings, Robinson, who testifies that Mayella Ewell initiated (unwanted) sexual contact, unaware that her father was watching. In his closing comments to the jurors, Atticus notes that Mayella ‘has committed no crime’ in making sexual advances on a black man. This is not rhetoric; a sexual relationship between them might have resulted in criminal proceedings against both. The post-war Alabama state constitution of 1865 ordered the state legislature to criminalize marriage between whites and blacks, and the state constitution of 1901 forbade the legislature from passing ‘any law to authorize or legalize any marriage between any white person and a negro, or descendant of a negro.’⁶⁰ State legislation in the 1920s provided for a punishment of two to seven years in prison for interracial couples who were either married or living together.⁶¹ While Mayella’s sexual advances were not criminal, Atticus tells the jurors, she has ‘broken a rigid and time-honored code of our society, a code so severe that whoever breaks it is hounded from our midst as unfit to live with.’ Attempting to save his daughter from this punishment, Atticus continues, Bob Ewell ‘did what any God-fearing, persevering, respectable white man would do under the circumstances – he swore out a warrant … ’⁶² Robinson is on trial, he tells the jurors, so that Mayella’s sexual honor can be maintained.

In the final section of Bk. 3 Pt. 2 of the Treatise, Hume applies his theoretical system to the sexual honor of 18^thC British women.⁶³ He argues that the feminine virtue of chastity or ‘fidelity to the marriage bed’ is artificial, arising ‘from education, from the voluntary conventions of men, and from the interests of society.’⁶⁴ The ‘code’ of chastity for women in Hume’s century was at least as ‘rigid’ and ‘severe’ as the code broken by Mayella. As he writes in the second Enquiry:

The greatest regard, which can be acquired by that sex, is derived from their fidelity; and a woman becomes cheap and vulgar, loses her rank, and is exposed to every insult, who is deficient in this particular. The smallest failure is here sufficient to blast her character.⁶⁵

By calling Robinson to the witness stand, and then repeating Robinson’s story in his closing comments, Atticus diminishes Mayella’s already-low reputation among whites in Maycomb. While Mayella may well have been called ‘cheap and vulgar’ for her sexual engagement with Robinson, the prohibition on interracial sex has its own characteristic ‘vice’. It is no coincidence that from the time he agrees to defend Robinson, Atticus is described by various characters as a ‘n----r lover’, to the confusion and despair of his children. When Scout asks Atticus for the meaning of the (supposed) insult, he replies, ‘It’s hard to explain—ignorant, trashy people use it when they think somebody’s favoring Negroes over and above themselves.’ Bob Ewell is among those who call Atticus a ‘n----r lover’, but he has brought Robinson to trial to prevent his daughter from the same reputation, which in Mayella’s case brands her with the principal sexual ‘vice’ of white supremacy. Atticus ensures that Ewell fails in this regard, regardless of whether Robinson is convicted.

While Hume endorses (with qualifications) the strict 18^thC prohibition against women having sex outside of marriage, he also emphasizes the differences between the virtue of chastity and the virtues of justice. In contrast to the conventions of justice, Hume argues that the duty of the ‘fair sex’ to be chaste, serves – in the first instance – the interests of one subset of the population, namely men. Women in Hume’s society were second-class citizens, with little or no access to property, formal education, or occupation. ‘In order to induce’ men with property or a salary to marry and support children, Hume writes, the men ‘must believe, that the children are their own.’ From the ‘trivial and anatomical observation’ that men can be deceived about the paternity of their children (and heirs) ‘is derived that vast difference between the education and duties of the two sexes.’⁶⁶ Women’s chastity restrained them from overlooking ‘remote motives in favor of … present temptation’, thus assuring husbands of the paternity of their children.⁶⁷ The 20^thC white supremacist prohibition against inter-racial relationships also served the interests of the more powerful subset of society. The white population’s commitment to remaining white required a vigorous campaign to prevent women and men from acting on the (perceived) ‘infirmity of human nature’ of sexual attraction to a someone of another race.⁶⁸

Hume also draws our attention to the excesses of women’s sexual honor. A second contrast between the law of chastity and the laws of justice is that the exceptionless nature of the former serves no direct purpose. Strict laws against theft are necessary to stabilize private property, and those against disobedience to magistrates are necessary to protect citizens from each other. Chastity, by contrast, is for Hume a paradigm case of a ‘general rule’ which has been extended ‘beyond those principles, from which it first arose.’ He writes, ‘Education takes possession of the ductile minds of the fair sex in their infancy,’ and ‘women past child-bearing have no more privilege in this respect, than those who are in the flower of their youth and beauty.’⁶⁹ Hume also describes both the unnatural contortions required for women to find sexual advances ‘repugnant’ and the contradictory heart of sexual modesty – a ‘preceding backwardness to the approaches of a pleasure, to which nature has inspired so strong a propensity.’⁷⁰

The Southern prohibition against interracial sex was also extended ‘beyond those principles, from which it first arose’, with its own excesses and unnatural contortions.⁷¹ In its most malevolent expression, it provided a pretext for racial violence. The reader of Mockingbird with no knowledge of the Southern history of violence against black men in the name of white women’s ‘honor’ is unable to make sense of Atticus’ claim that Bob Ewell has acted as ‘any God-fearing, persevering, respectable white man would do under the circumstances.’ In the decades after the end of slavery, practices of anti-black violence in Southern states contributed to the creation of a new social order in which black Americans were disfranchised politically, economically, and socially.⁷² The practice of lynching rose in the 1870s, and for decades it served white socioeconomic privilege and political control in the US South.⁷³ Politically-motivated anti-black violence declined toward the end of the century, as segregationist state legislation and restrictive voting requirements were imposed across the region, but the practice of lynching only ended in the 1940s.

In an 1895 anti-lynching pamphlet, Ida B. Wells-Barnett addresses a ‘new’ Southern white justification, or ‘excuse’, for violence against black men: ‘Negroes had to be killed to avenge their assaults upon women.’⁷⁴ A Red Record collects all lynchings recorded in the Chicago Tribune – a white newspaper with a policy of reporting on lynchings in the US – during a two-year period. She reports that a small minority of known lynchings involved a black man’s allegedly improper behavior toward white women, and these included men who were in, or who attempted to start, consensual relationships with white women.⁷⁵ ‘With the Southern white man,’ Wells-Barnett asserts, ‘any mesalliance existing between a white woman and a colored man is a sufficient foundation for the charge of rape.’ She defiantly quotes from an earlier newspaper editorial, one which generated threats on her life and forced her to flee Memphis: ‘Nobody in the South believes the old threadbare lie that Negro men rape white women.’ It is to the ‘misfortune’ of Southern white women, she continues, ‘that the chivalrous white men’ of the South

shield themselves [i.e., their own reputations] by their cowardly and infamously false excuse, and call into question that very honor [i.e., white women’s] about which … they are most sensitive. To justify their own barbarism they assume a chivalry which they do not possess.

In contrast to Atticus, Wells-Barnett denounces a previous generation of Bob Ewells who ‘shield themselves by their cowardly and infamously false excuse.’

In the 1930s setting of Mockingbird, Tom Robinson is not lynched. Instead, the Ewells press charges against Robinson for rape, trusting that he would inevitably be found guilty in court. Cases of lynching declined in the first decades of the twentieth century, and the number of state-sanctioned executions rose. Even Southern white leaders who were sympathetic to the practice of lynching per se worked to reduce mob violence during this period. The urban middle-class whites who drove the Southern anti-lynching campaign were concerned with reducing unseemly violence, which they perceived to have tarnished the reputations of their states, threatening immigration and investment. In a message to state legislators, for example, one early twentieth-century governor of Louisiana wrote:

If, in cases of certain crimes, preference be given over all business of the courts; if special sessions of the Grand Jury be held; if, in case of indictment, trial be had quickly, and, in case of conviction, a speedy execution of the sentence follow, the mob spirit will subside.⁷⁶

By the 1930s, the Southern ‘mob spirit’ had largely subsided, but juries like the one in Mockingbird continued to abuse their freedom to nullify laws.

Scottsboro historian Dan T. Carter argues that the jurors for Haywood Patterson’s first re-trial were less concerned with the truth of Victoria Price’s accusation, than they were with the fact that she made it in court.

Throughout the trial, it was widely rumored that an acquittal would be used as a wedge toward achieving ‘social equality’ for the Alabama Negro. No disclaimer from Leibowitz could counteract that belief … the jury’s loyalty to its white caste could only be proved unequivocally by a guilty verdict. Whether Haywood Patterson was guilty or innocent was, at most, a peripheral question.⁷⁷

Reporting from the trial, The New Republic quoted an unnamed local resident: ‘They had a smart lawyer. But it was all over from the moment Victoria Price told her story. Don’t need to go any further, I thought.’⁷⁸ After Scout reads Mr. Underwood’s newspaper editorial on Robinson’s trial and death, Jean Louise recalls that it ‘became clear’ that:

Atticus had used every tool available to free men to save Tom Robinson, but in the secret courts of men’s hearts Atticus had no case. Tom was a dead man the minute Mayella Ewell opened her mouth and screamed.⁷⁹

In the ‘secret courts’ of their hearts, Mockingbird’s jurors are adjudicating different trial, one oriented not toward justice, but toward the maintenance of white supremacy. Jurors are compelled not by prejudice to believe the Ewells’ accusations, but by the expectations of fellow whites to act on them. The norm of white supremacy foremost on minds of the jurors is that they must act on the public statements made by Mayella Ewell and her father: Robinson must be found guilty and executed. When his son later criticizes the jurors for imposing the death sentence, Atticus replies, ‘Tom Robinson’s a colored man, Jem. No jury in this part of the world’s going to say, “We think you’re guilty, but not very,” on a charge like that.’⁸⁰

How could they do it? The best answer to this question, I propose, begins with their social vulnerability. In the first instance, jurors in rural courthouses were vulnerable because trials were local. The Sixth Amendment to the US Constitution decrees that ‘the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed …’⁸¹ All jurors are residents of Maycomb County, and each must return to his life within that community once the trial has concluded. Furthermore, the jurors of Mockingbird are all working class farmers. We are told that ‘this was natural: townsfolk rarely sat on juries, they were either struck or excused.’⁸² When Jem questions his father about this, Atticus replies that professionals, businessmen, and merchants tend to be excused because their participation on trial juries would hurt their businesses in a small town like Maycomb.⁸³ His explanation is spurious. Only a small percentage of farmers in the rural 1930s owned a significant amount of land. Tenant farmers, sharecroppers, and farm workers required a willing landowner to survive, and farmers with smallholdings who could not afford to hire help depended upon others in the community to bring their crops to market.

Between 1931 and 1933, three juries found Scottsboro defendant Haywood Paterson guilty, and all three set his sentence at death. The jury of this trial shocked the courtroom by finding Paterson guilty but sentencing him to seventy-five years in prison. Carter claims that the reduced sentence ‘may well have marked a turning point in the case.’ Death sentences were not handed down in any subsequent trials of Scottsboro defendants, and all nine were eventually freed or pardoned. The reduced sentence was a ‘compromise’ among the jurors, engineered by one who happened to be ‘one of the county’s most prosperous farmers.’ He believed that Paterson was innocent, Carter writes, ‘but the other eleven jurors told him they could not vote for an acquittal and return to the communities in which they lived.’⁸⁴ Realizing that if all twelve jurors did not agree on a verdict, then a new trial would be ordered, a rare affluent juror convinced the others to accept a reduced sentence for Paterson.

Carter reports that both lawyers at Patterson’s fourth trial spoke to the ‘secret court’ of the jurors’ hearts, in which Patterson was being tried not in virtue of his guilt or innocence, but in virtue of being accused by a white woman of rape. The prosecuting lawyer, on the one hand, told them:

Don’t go out and quibble over the evidence … Say to yourselves, ‘We’re tired of this job’ and put it behind you. Get it done quick and protect the fair womanhood of this great State.

Patterson’s defense lawyer also acknowledged the ‘secret court’, but (like Atticus) he appealed to the jurors to maintain their Humean allegiance:

It takes courage to do the right thing in the face of public clamor for the wrong thing … [But] when justice is not administered fairly, governments disintegrate and there is no protection for anyone, man or woman, black or white.⁸⁵

In a community whose historical self-identity depends upon the practice of avenging white women’s honor against violation by black men, the white jurors in Mockingbird lack the status or power which would protect them from backlash. Otherwise, in the words of Patterson’s defense lawyer, they lack the ‘courage to do the right thing.’

IV. CONCLUSION: THE COURAGE OF ATTICUS FINCH

As the reader of Mockingbird learns indirectly, Atticus regards his defense of Robinson to be courageous. He astonishes his children in the closing passages of Part One, by declaring that the dreaded neighbor Mrs. Dubose – who overcomes a long-term addiction to morphine before dying – was ‘the bravest person I ever knew.’ ‘Real courage’, he explains, is ‘when you know you’re licked before you begin but you begin anyway and you see it through no matter what.’⁸⁶ Atticus used the same words a few months earlier to explain to Scout why he has taken a case which he knows he will not win: ‘Simply because we were licked a hundred years before we started is no reason for us not to try to win.’⁸⁷ Despite his knowledge that Robinson’s trial will become a sham, Atticus remains defiant, and many readers cherish his character as a heroic ideal. Others have criticized Mockingbird for its portrayal of Atticus as courageous,⁸⁸ and it is sometimes dismissed as a ‘white savior’ narrative. Both interpretations are wrong: Jean Louise’s portrait of Atticus raises considerable doubt about the courage of his defense of Robinson.

As we have seen, antiblack prejudice per se plays a relatively small role in the novel, just as it played a minor role in the lives of most black citizens, compared to the effects of institutionalized segregation. By the end of the novel, even Scout sees through the absurd hypocrisy of her third-grade teacher’s lesson on nazi-era Germany:

‘We are a democracy and Germany is a dictatorship. Dictator-ship,’ she said. ‘Over here we don’t believe in persecuting anybody. Persecution comes from people who are prejudiced. Pre-ju-dice,’ she enunciated carefully.

The exceptionless, policed practices which separated the black and white populations arguably enable citizens of Maycomb such as the Finches to be relatively free of antiblack bias. That said, Atticus (along with his sister Alexandra) gives voice to a venomous class bias. Indeed, the prejudice Atticus harbors against both the Ewell family and the jurors leaves us with doubt that he chooses to expose Bob and Mayella in the courtroom because it is the best defense strategy for his client.⁸⁹

Despite his knowledge that the jurors cannot find Robinson innocent, Atticus does not afford them the courtesy of a ‘smoke screen’ of Robinson’s guilt. After reminding his brother before the trial that ‘the jury couldn’t possibly be expected to take Tom Robinson’s word against the Ewells’,’ he adds, ‘Before I’m through, I intend to jar the jury a bit.’⁹⁰ Because Atticus does not challenge the conditions which enable legal lynchings, his courtroom exposure of the trial as a legal lynching transfers to the jurors the burden of making it otherwise. His defense of Robinson amounts to a futile demand that the jurors endure the social penalties which would follow from delivering a verdict which follows the evidence. After the trial, Atticus voices his scorn for the jury and its verdict: ‘whenever a white man does that to a black man, no matter who he is … that white man is trash. … There’s nothing more sickening to me than a low-grade white man who’ll take advantage of a Negro’s ignorance.’⁹¹

Atticus’ outburst is shocking, because his character is otherwise dignified, generous, and likeable. However, one side of his ‘gentleman’ persona is an unswerving delusion that the people in his community are less violent and more humane (or ‘civilized’) than they really are. Most notable is his recurring denial that his courtroom humiliation of the Ewells has brought danger to himself and his family. In the end, Mockingbird illustrates why entering a conflict in which ‘you know you’re licked before you begin’ is not, on its own, courageous. Entering a doomed contest may well be reckless, given the potential costs of engagement. From this perspective, Jean Louise’s portrait of Atticus exemplifies Hume’s own critique of courage, in the Treatise and elsewhere.⁹² At the end of his discussion of chastity, Hume situates courage as the virtue associated with manhood: ‘Courage, which is the point of honor among men, derives its merit, in a great measure, from artifice, as well as the chastity of women …’⁹³ In Hume’s view, courage is not an ‘artificial’ virtue (one dependent upon a prior convention), but its ‘merit’ – worth or value – derives in part from ‘artifice’. We later discover the irony of his claim: the artifice-derived ‘merit’ of courage is a pretense or deception.

Courage displays its artifice when ‘we fix our view’ on the hero, who has ‘something so dazzling in his character; the mere contemplation of it so elevates the mind, that we cannot refuse it our admiration.’⁹⁴ In such a state, Hume argues, our sympathy with the confident character of a courageous man ‘diminishes considerably the blame, which naturally attends its dangerous influence on his conduct and behavior.’

[A]n excessive courage and magnanimity, especially when it displays itself under the frowns of fortune, contributes, in a great measure, to the character of a hero, and will render a person the admiration of posterity; at the same time, that it ruins his affairs, and leads him into dangers and difficulties, with which otherwise he would never have been acquainted.⁹⁵

Readers of Mockingbird who are cognizant of both its historical context and Jean Louise’s distinct perspective on Atticus and Robinson’s trial, are less likely to find her father’s character so ‘dazzling’ that ‘we cannot refuse it our admiration.’ Like Scout, the first-time reader of Mockingbird does not anticipate that, at the novel’s close, she will be the victim of attempted murder, instigated by her father’s courtroom exposure of the Ewells. While Jean Louise understands the tragedy which unfolds around her younger self, she continually reminds us that Scout does not. Narrating through the fragmented and uninformed experiences of her younger self, Jean Louise regularly draws our attention to Scout’s tenuous grasp of her social world. Scout embodies the sheltered ignorance of privileged children in segregated societies, but Atticus is at the same time a legislative protector of white dominance, and a lawyer trapped by white machinations of which he disapproves. While no reader of the novel should doubt Jean Louise’s love for her childhood, her hometown, or her father, her portrayal of Atticus’ response to this predicament is not uncritical. His civility, integrity, and defiance, however virtuous, should not ‘diminish the blame which naturally attends’ his role in provoking an assault on his children.

ACKNOWLEDGEMENTS

This article has benefited from comments by Miranda Fricker and two referees for this journal.

COMPETING INTERESTS

The author declares that he has no competing interests.