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Telling of the Hidden Mysteries
In 1894 Anna Van Houten sued Asa Morse in the Massachusetts courts for breach of promise of marriage. Morse contended it was a promise he was not bound to respect, for Van Houten had misrepresented herself by fraudulently concealing her African-American ancestry. Van Houten denied the charge, claiming to be "of the best white families in Charleston, South Carolina," and offered in evidence photographs of her parents and her sister's children, to which Morse took exception. SOURCE The Massachusetts Supreme Court, while finding the photographs admissible, considered them of little value, for the defense's investigation convincingly demonstrated that Miss Van Houten's father "was a colored barber and an octoroon... and that her mother had negro blood in her veins, and was about one eighth negro."  SOURCE
By a fiction of law and custom, Van Houten is identified and pronounced black, her family snapshots notwithstanding. But her case demonstrates that the legal enforcement of socially constructed identities could not depend on the veracity of mere appearance or its photographic representation. Tom Driscoll, the "imitation white" of Mark Twain's Pudd'nhead Wilson, is another fiction of law and custom. Driscoll, variously black and white, male and female, shifts appearance at will, threatening to disrupt the fabric of his community if some means is not found by which his identity can be legally fixed, and the underlying chaos of the community camouflaged. In the racially polarized 1890s, the correlation between social identity and physical appearance had become problematic.
In Plessy v. Ferguson, lawyers representing Homer Plessy attempted to exploit this same confusion over racial identity. Albion Winegar Tourgeéauthor, unreconstructed Reconstructionist, and chief counsel representing Plessyrecommended to the Louisiana committee intent upon overturning the state's racially restrictive railway accommodations law that a "nearly white" individual be selected to establish a test case, and the committee eventually chose Homer A. Plessy, a man of "one-eighth African blood." SOURCE Tourgeé expected the Court and public opinion would be more sympathetic towards a "nearly white" plaintiff, yet he also hoped to convince a court noted for its rigorous protection of private property that Plessy had been deprived of property without due process, "property" in this case considered the "reputation of being a white man." SOURCE At first glance Tourgeé's argument seems designed not to eradicate racially biased legislation but only to move the line of color over a bit, allowing persons of mixed race some of the privileges of reputation enjoyed by whites. But Tourgeé's strategy underscored the capriciousness of any form of legislation based on any calculation of racial identity. To this end co-counsel James Walker prepared a brief that attempted to establish the impossibility of any legal definition of race. Ultimately, race was reputation, based on the questionable evidence mere appearance presented to the human eye.
But while the belief that interior truths could be divined from external appearances was being disputed, newer photographic applications were entering evidentiary jurisprudence. X-ray photographs, artifacts representing that which could not be verified upon physical examination, seemed to entirely divorce inner truths from external characteristics, instead finding those truths hidden away by the body itself. "Modern science has made it possible to look beneath the tissues of the human body, and has aided surgery in telling of the hidden mysteries," announced the District Court of Colorado in an 1896 case, the first to rule on the admissibility of x-rays. SOURCE But counsel for the defendant, troubled by the unverifiable nature of such evidence, wondered how these "hidden mysteries" could be subjected to cross-examination, for "being photographs of an object unseen by the human eye, there is no evidence that the photograph accurately portrays and represents the object so photographed."
"Both novelists and playwrights have many clever ways of tracking their puppets and hounding them to death. Some of these are hackneyed enoughsuch as the footmark in the soil, the dirty thumb-mark on the paper, etc.; and he who can conceive a new way of bringing about the inevitable detection is surely halfway toward success," reported Chamber's Journal, shortly before the release of Twain's serialized novel. But in "the detection of criminals the photographic camera has lately performed such novel feats that quite a fresh set of ideas is placed at the disposal of fiction-mongers." SOURCE Fiction-mongers, the legal profession, and the general public alike were fascinated with the accomplishments of photographic chemists, whose applications revealed essentials hidden from human sight. "Photo-micrographs" could acquit or convict on the testimony of a single hair. Orthochromatic photographic plates, which differentiated between inks of different compositions, could detect the forged signature. Like Pudd'nhead Wilson's fingerprints, these innovations assured the public that physical markers could disclose the unauthentic and unveil the imposter. 
"Every human being carries with him from his cradle to his grave certain physical marks which do not change their character, and by which he can always be identifiedand that without shade of doubt or question," announces David Wilson to an enthralled courtroom.
These marks are his signature, his physiological autograph, so to speak, and this autograph cannot be counterfeited, nor can he disguise it or hide it away, nor can it become illegible by the wear and the mutations of time. This signature is not his faceage can change that beyond recognition; it is not his hair, for that can fall out; it is not his height, for duplicates of that exist; it is not his form, for duplicates of that exist, also, whereas this signature is each man's very ownthere is no duplicate of it among the swarming populations of the globe! SOURCEWhen Tom Driscoll's physiological autograph is entered into evidence his two livesgentleman and assassin, scion and slavecome crashing together. But Tom Driscoll's "true" identity is, after all, a legal fiction. Unlike Holgrave's daguerreotype, which "brings out the secret character with a truth that no painter would ever venture upon," SOURCE Wilson's art simply verifies a legal fiction, overturning a falsely held reputation that the citizens of Dawson's Landing are not bound to respect.
The Supreme Court, considering Plessy v. Ferguson, was unwilling to entertain arguments that advocated civil rights by raising questions of racial uncertainty. Conceding that reputation might well be considered property, Justice Henry Brown declared that Homer Plessy, a Negro under the laws of Louisiana, had been "deprived of no property, since he is not lawfully entitled to the reputation of being a white man." SOURCE
In A Treatise on the System of Evidence, meant to supercede those evidentiary works of the previous century, John Henry Wigmore warned that the courts should think carefully before admitting into evidence photography, for it was nothing without a reliable human sponsor.
It is mere waste paper,a testimonial nonentity. Is speaks to us no more than a stock or a stone. It can of itself tell us no more as to the existence of the thing portrayed upon it than can a tree or an ox. We must somehow put a testimonial human being behind it (as it were) before it can be treated as having any testimonial standing in court. It is somebody's testimony,or it is nothing.
For forty years judges, lawyers, and legal scholars had fitfully attempted to incorporate a new form of representation into the legal structure of an evolving social system. Perhaps the shifting and at times contradictory standing of photography in American courts in the nineteenth century can only be understood by placing American culture, itself, behind the photograph as its testimonial sponsor.
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