Democracy and Unfreedom: Revisiting Tocqueville and Beaumont in America

Prison Legacies

When Beaumont and Tocqueville arrived in the United States to study the penitentiary form, their lives already reflected a long and complicated relationship to the practice of democratic punishment. As the sons of French aristocrats living in the shadows of a new post-revolutionary political order, they inherited familial legacies of punishment that they remembered as the result of democracy’s “extremes.” ²⁴ Before Tocqueville’s birth, his parents and grandparents awaited execution for ten months in the prison at Port-Libre on charges that Tocqueville’s grandfather had defended the King. His mother’s entire family was guillotined, while his parents were granted a last-minute reprieve. The experience haunted Tocqueville’s upbringing in his mother’s shattered nerves and his father’s recollections: “I had never seen a prison. I cannot convey how I felt when I was obliged to bend low to pass through a gate three feet high and heard the huge keys turn in the locks behind us. The prison resounded with the moans of women. Everyday, cries of suffering announced the loss of a father, a mother, a brother, or a friend.” ²⁵

Having grown up in the confines of aristocracy’s civil death, Tocqueville’s past was complemented by Gustave Beaumont’s future as the husband of Clementine de Beaumont, the granddaughter of General Lafayette and Adrienne Ayen. General Lafayette was the “hero of two nations” after he fought in both the French and American Revolutions, and his heroic status had partially been gained by his endurance of tyrannical punishment. Lafayette and Ayen spent five years in an Austrian prison on charges of treason against monarchy in France, while Ayen’s entire family was sent to the guillotine by the masses. ²⁶ Punished both by the mob and by monarchy, Clementine de Beaumont’s grandparents were guilty of supporting the republic from their place in the King’s inner circle in the years after the storming of the Bastille. By the time Beaumont and Tocqueville arrived in the United States, Lafayette had already condemned the very institution that would make them famous: “I have passed several years in solitude in Olmutz, where I was detained for having made a revolution; and in my prison I dreamed but of new revolutions.” ²⁷ Although Clementine de Beaumont remembered her grandparents as “the enemies of tyranny in America and France,” ²⁸ her husband was embarrassed by their commitment to the idea of the republic. While in America, Beaumont and Tocqueville refused to toast Lafayette and the republic in American dining rooms, in part because of their belief that republican government had given the power to punish to the people. They feared offending their hosts during “the political toasts: if they drink ‘to the health of the republics,’ we are determined to remain silent.” ²⁹

Against the backdrop of these familial legacies, legacies that convinced the travelers that democracy had gone “too far,” the trilogy articulated a theory of the American state through the language of escape and confinement. As the sons of former aristocrats, they felt themselves imprisoned in their exclusion from French governance; only the risk of travel to America, an “escape [from] this state,” could correct an inevitable but “misguided” form of democracy. ³⁰ Figuring their American travels as a doubly punitive expedition, Beaumont wrote his father aboard the ship Le Havre from a cooped “little cell.” ³¹ Because they considered democracy to be a form of imprisonment, one that they endured in order to secure a future in French governance, they imagined the inevitable onrush of democratic power as the power of the mob: “I have an instinctual preference for democratic institutions, but I am aristocratic by instinct, that is I despise and fear the crowd. I passionately love freedom, legality, respect for rights but not democracy. This is the base of my soul.” ³² Despising the “alarming spectacle” of democracy, the trilogy likened its arrival to a disastrous flood, a storm of dust, and a child in need of parental guidance. ³³ By acquiring expert knowledge of the American penitentiary form, they would secure a place for themselves in the circles of French governance, and as “leading penitentiary experts,” they would help manage the power of the republic by guiding it away from childlike mistakes. ³⁴ The prison was therefore both the sacrifice that brought them to America and the method by which they would secure the continuation of aristocratic rule in France. In a moment when the old spectacles of punishment haunted the collective memory of monarchical rule, the newly made citizenry revered prison reform as a project that was “in no way political,” and concerned only with the “the well-being of society.” ³⁵ The guillotines, penal colonies, Bastilles, and prison ships represented the old repression of absolute monarchy, as the building of new penitentiaries became central to citizenship’s redesign.

Setting out to discover what France could learn from the American experiment in penal democracy, the travelers sought methods for managing civic participation in the new paradigm of majority sovereignty, and found that American democracy had imported into its system of law some of the older traditions of monarchy and despotism. They found reassurance in the American example—democracy was an inevitable force on the world’s stage, but one that could be tempered by certain institutions. ³⁶ Finding hope in the institutionalized protections of elite rule they discovered in America, the American prison quickly became their central example of how aristocracy could be maintained under the guise of democratic governance. It served as the prism for the development of their larger theory of the power of the American system over its people.

As a method for managing “the crowd,” the prison became the background story of American democracy in the trilogy—the prison organized the trilogy like the travelers saw it organizing American life. They were fascinated by the structure of the relationship between prisons and democracy, and by the way in which American citizens came to feel a political connection to the institution, an institution that claimed to give power to the people, but actually consolidated the power of the state. It was “the people” who waited in long lines to tour the famous buildings, which were “considered [as] belonging to all . . . the prisons are open to every one who chooses to inspect them, and every visitor may inform himself of the order which regulates the interior.” ³⁷ These exhibitions of prisons on display were directed at the minds of democratic subjects, and they gave prisons the appearance of mass control and consent, even as they concealed the inner workings of state practice and the ultimate power of state punishment.

Because of this complex relationship between prisons and citizens, the prisons of democracy were continually celebrated in American cultural rituals. When the travelers arrived to study the prisons of New York, their visit was announced in the local newspapers, and applauded by the public in parades with “seats of honor in carriages prepared specially” for the prison’s researchers. The procession to the prison traveled from the seat of governance at city hall, and past the insane asylum, where it

ended with a visit to Blackwell Island, a penitentiary where three or four hundred convicts are employed in the construction of another prison next to the one in which they are held. Witnessing the care and zeal they bring to the task, one can hardly believe that they are at work on the edifice in which they will be interned . . . we were escorted back to New York by all these honorable gentlemen in five crowded carriages. ³⁸

Americans celebrated these institutions not only in public ceremonies, but also in the private parlors of American elites, where travelers were regaled with the penitentiary’s praises: “Wherever we go in polite society, our hostess or her daughter, next to whom one or the other of us is purposely seated, would consider it a lapse of savoir-vivre not to talk to us about gallows and lock-ups.” ³⁹

The travelers attributed this American pride in punishment to deficiencies in national cultural achievement, and to the power of provincialism in American political life. In the absence of national monuments, Tocqueville wrote that prisons functioned as the nation’s symbols:

The U.S. has no literature, no eloquence, no wars, no plagues, no fine arts, few major crimes. . . . Political life consists in discussing whether a bridge needs to be built or a road repaired. A fine prison therefore looms as large as the pyramid of Cheops. . . . What is greater than a prison? If we told Americans that only a handful of people in France have ever heard of a penal system . . . they would no doubt be astonished. ⁴⁰

Because of what prisons meant to the nation, the prison in the capital city was “built on a sumptuous plan, more fit for a palace,” ⁴² while the city itself “present[ed] the image of an arid plain scorched by the sun.” ⁴¹ “In all of America,” the travelers wrote, “there is no more splendid building” ⁴³ than the Philadelphia prison, with its “gigantic walls, gothic towers, [and] wide iron gates” that were “calculated to convey . . . a fortified castle of the middle-ages.” ⁴⁴

Prisons looked like the castles of the middle-ages because they were built as symbols of despotism and Old World rule. Although American democracy was supposed to have rejected tyranny, it used the recognizable signs of those architectures in building its prisons to suggest that violations of state law would lead inevitably to the withdrawal of rights and a return to the status of civil death. These remnants of aristocracy remained embedded in democracy, representing what the travelers called the “remains of aristocratic institutions in the midst of a complete democracy.” ⁴⁵ The trilogy suggested that because of the despotism of American prisons, “[t]he surface of American society” was “covered with a layer of democracy, from beneath which the old aristocratic colors sometimes peep.” ⁴⁶ American democracy, concluded the travelers, presented “the example of the most extended liberty,” while “the prisons of the same country offer[ed] the spectacle of the most complete despotism.” ⁴⁷ Citizens who entered those institutions as prisoners became civilly “dead to the world,” while those who observed them as citizens of democracy were taught a lesson about the potential inversion of their rights-bearing status. ⁴⁸

Knowing that the prison was one of the central institutions of democratic governance, the travelers were surprised to find that despite the power of the prison in political and social life, they were the first to study its inner workings, its outer instructions, or its national symbolism. The travelers wrote that it had “not occurred to anyone, nor does anyone have the power, to collect from the several states . . . the information . . . necessary to paint a picture [of American prisons] that would be even moderately satisfactory. We are therefore obliged to do much of this work ourselves, and I swear to you that it is by the sweat of our brows.” ⁴⁹ They felt the weight of their object: “Except for sleeping in a cell and being whipped with a rope, we are leading almost the same life as the inmates. In other words, we have thrown ourselves wholeheartedly into the penitentiary system.” ⁵⁰ They would soon begin to describe their American travels in the same language, although they had initially imagined the American prison as enabling their escape from France. The institution shadowed their study of American democracy to the extent that when they almost drowned on a sinking steamship in the middle of the mile-wide Ohio River, they described it in the language of the prison:

Stunning sight: two hundred passengers on board and only two lifeboats, each capable of holding ten or twelve people. The water kept rising. It was already filling the cabins . . . Tocqueville and I took one look at the Ohio . . . more than a mile wide at this point and filled with enormous floating chunks of ice. We shook hands in a mark of farewell. . . . Suddenly the ship stopped sinking. Its hull was hung up on the very reef that had smashed it. . . . Out of danger. . . . But what would become of us now, stuck in the middle of the river like prisoners on pontoons? ⁵¹

The Prison as a Teaching Institution

Their observations of American democracy during parades, dinner parties, and prison tours revealed to them the power of popular sovereignty and the way it could be manipulated through law. The travelers were amazed that “no one—not magistrates, merchants, or artisans—seems to doubt that republican government is good or natural. . . . No one denies that the majority might be mistaken, yet everyone believes that in the long run it is necessarily right . . . it is . . . the most reliable and infallible judge.” ⁵² The idea of popular sovereignty opened the practice of governance to the masses—the uneducated and unmannered voters who sought “to be represented by people of their own sort.” ⁵³ In the taverns of America, the travelers observed “electioneering,” a practice in which these unworthy masses were “courted” by those running for public office. Democracy’s mistakes meant that “to gain votes, one must descend to manoeuvres that disgust men of distinction . . . one must haunt the taverns, drink and argue with the mob.” ⁵⁴ Having come to America to study the mistakes of popular governance, they turned their attention to the science of its correction.

The trilogy concluded that the “only protection” against “the aberrations of the multitude” was the system of political education instituted through the participation of the masses in the law. ⁵⁵ Socio-legal customs like the jury, for example, consolidated state power in the name of the people. The system raised “the people itself, or at least a class of citizens, to the bench of judicial authority” and therefore invested “the people, or that class of citizens, with the direction of society.” ⁵⁶ As teachers of law, American judges remained at the moment of punishment, along with wardens and executioners, “surrounded by the reminiscence of the jury.” ⁵⁷ These “infallible” jurors saw themselves as the agents of the ritual, but they served only to make more powerful the judge’s legal process. The system of jury service extended “legal habits” to the “lowest classes,” and enabled the legal professions to “control the democracy”—it was at once the “most energetic means of making the people rule,” and the “most efficacious means of teaching it to rule well.” ⁵⁸ As Democracy argued, “The language of the law becomes . . . a vulgar tongue; the spirit of the law . . . produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society . . . its acts upon the country imperceptibly, but it finally fashions it to suit its purposes.” ⁵⁹

In addition to the jury, other rituals in criminal procedure relied on this “spirit of law” to make citizens into police, as “the people” formed “spontaneous” public committees for the pursuit of fugitive criminals. Supporting this spirit of law was the force of each county’s “court of justice, a sheriff to execute its decrees, and a prison for criminals.” ⁶⁰ Like the power of the jury, which was harnessed to buttress and conceal the power of the judge, crime rarely eluded punishment because of the force of social custom: “every one conceives himself to be interested in furnishing evidence of the act committed and in stopping the delinquent . . . [the criminal] is looked upon as an enemy of the human race, and the whole of mankind is against him.” ⁶¹ As an important form of civic participation, the practice of justice brought citizens inside civic rituals in order to consolidate the power of the state. Tocqueville wrote home that it was “truly incredible to see how these people maintain order solely by virtue of the notion that the only safeguard against themselves lies within themselves.” ⁶²

The people’s investment in the law, as something sacred to the nation and something that consolidated the power of law, also made capital punishment possible. The travelers and their Boston tour guide, the German-born Francis Lieber, discussed the social status of the “well-dressed sheriff” they encountered at an elite social function who, unlike his European and “degraded” counterparts, was absolved of individual responsibility for killing criminals, because he did so in the name of a collective who saw “no shame attache[d]” to the work of the executioner. ⁶³ Respecting law because it was represented as the sovereignty of citizenship, the people “try to dignify the enforcer of the law by giving him additional important functions, with nothing degrading about them.” ⁶⁴ As Lieber explained, the sheriff’s popularity was part of the people’s relationship to law:

The sheriff executing a criminal is only obeying the law in the same way as the magistrate who condemns him to death; neither hatred nor contempt clings to his profession. It is this respect for the agents of the law, deriving from the extreme respect in which the law itself is held (because one had made it) that makes the people feel no animosity against police officers, tax collectors and customs officials. All these employments are respected. ⁶⁵

In addition to the jury, the mob, and the executioner, the criminal justice apparatus also functioned as the site of state pedagogy in relation to the prison as a process that excluded the people through a process of inclusion. Anchored in the belief that it could be made and remade by the people’s will, the law of the prison drew its power from the possibility of reform. On the Penitentiary used the prison as the “single example” of the mutability of law, explaining how the people consented to state authority because they believed they held the power to change it. ⁶⁶ Believing in the power of law “because one makes it,” the people created political reform movements in local cities, where citizens worked to reorganize the prison’s purpose from retribution to the “regeneration of criminals.” ⁶⁷ Tocqueville described how this “very popular undertaking” in prison reform had led to the existence of a double system of prison governance in America:

New prisons were built, and for the first time the idea of reforming as well as of punishing the delinquent formed part of prison discipline. But this happy alteration in which the public had taken so hearty an interest, and which the exertions of the citizens had irresistibly accelerated could not be completed in a moment. Whilst new penitentiaries were being erected . . . the old prisons existed, which still contained a great number of offenders. These jails became more unwholesome and more corrupt in proportion as the new establishments were beautiful and improved, forming a contrast which may readily be understood . . . in the immediate neighborhood of a prison which bore witness to the mild and enlightened spirit of our time, dungeons might be met with which reminded the visitor of the barbarity of the Middle Ages. ⁶⁸

Tocqueville concluded in Democracy that because of the power of the prison, the “true sanction of political law is to be found in penal legislation,” and that “he who punishes infractions of the law is . . . the real master of society.” ⁶⁹

Despite the confidence of the citizenry that it controlled the prisons and could make them anew, the criminal justice system anchored the structure of inequality that operated under the guise of an equalized citizenship. Even as the prison was celebrated as part of the meaning of equality (because all were equally eligible), the travelers observed a bifurcated system that fined the wealthy and imprisoned the poor, a system in which “the poor man has not always a security to produce . . . and if he is obliged to wait for justice in prison, he is speedily reduced to distress.” ⁷⁰ Reinforcing social and economic inequalities, the prison failed to make citizens equally eligible for punishment, but made its prisoners equal in their deprivations: “There is even more equality in the prison than in society. All have the same dress, and eat the same bread. All work.” ⁷¹ Framing their account of equality through the prison’s relationship to majority sovereignty and social inequality, the prison presented to the travelers a method by which democracy could be taught, an institution that might preserve aspects of aristocracy through the language of equality.

In addition to becoming the backdrop against which the travelers understood the legal preservation of American hierarchy, the prison and its inversion of the ideal helped them to understand the larger system of civic association that governed in America. Inside the institution, prisoners were controlled through the very power of democratic association that anchored majority rule: “nine hundred criminals, watched by thirty keepers, work free in the midst of an open field, without a chain fettering their feet or hands . . . the convicts . . . have, in spite of their numerical force, all the weakness of isolation.” ⁷² Preempting an actually existing majority from realizing its right to rule, the prison prevented its captives from exercising their collective power by manipulating and enhancing the power of the minority (the guards) through solitary confinement and the threat of physical violence. These two modes of penal power—solitary confinement and the threat of the lash—became dueling models of democratic punishment that, despite different methods of organization, both relied on the legal incapacitation of prisoners.

As opposing traditions of silence and force embedded in law and legal status, New York’s factory prison relied on congregate labor by day and solitude by night, while Pennsylvania’s regime relied entirely on solitary confinement. Despite its eventual adoption of the factory system and the discipline of the whip, New York had been the first to experiment with the practice of solitary confinement. Abandoning the practice after a series of public scandals, New York was forced to concede that its prisoners had become mentally unhinged. Beaumont and Tocqueville explained that New York’s experiment with solitary confinement had been “beyond the strength of man; it destroys the criminal without intermission and without pity; it does reform, it kills; the unfortunates, on whom this experiment was made, fell into a state of depression so manifest, that their keepers were struck with it.” ⁷³ Despite changes to its design, New York’s new version of civil death, the travelers wrote, still felt to them like a workshop and a tomb:

when the day is finished and the prisoners have retired to their cells, the silence within these vast walls, which contained so many prisoners, is that of death. We have often trod during the night those monotonous and dumb galleries, where a lamp is always burning: we felt as if we traversed catacombs; there were a thousand living beings, and yet it was a desert solitude. ⁷⁴

By the time Beaumont and Tocqueville arrived in 1831, Pennsylvania “stood alone” on the principle of solitary confinement. Its regime demanded such total sensory isolation that guards wore slippers over their shoes, and the mental terror of solitary confinement was, the travelers argued, “more terrifying than chains or blows.” ⁷⁵ While Pennsylvania made “each cell a prison in itself,” New York relied on an “instrument that Americans call ‘the cat’ and [the French] the knout.” ⁷⁶ Supported by the force of law, New York’s prisons could punish with thirty-nine lashes, while Connecticut law allowed ten, and Maryland a maximum of thirteen. This penal use of corporal punishment, authorized by state legislatures, was supported as well by judicial authority and public opinion. Beaumont and Tocqueville described the ruling of an Auburn judge that “the convict should feel his degraded situation.” ⁷⁷ The lower courts also issued “several verdicts in favour of jailors who acknowledged having beaten the prisoners,” and On the Penitentiary noted that the violence also operated through the legitimacy of “the organ of [the] jury.” ⁷⁸

The people’s relationship to prisons, structured by civic institutions that stretched from the jury and the prison tour to the local politics of prison reform, gave the travelers a new way of thinking about power and punishment in democracies. In America, the people had been taught that it was their duty to search for criminals among them, and to celebrate the building of those institutions as emblems of freedom. Because of the people’s very particular relationship to prisons, the travelers remained skeptical of the possibilities for its institutionalization in France. The model at work in New York relied on forms of physical violence that would remind France of its past. In an 1844 speech, Tocqueville acknowledged that French citizens were opposed to the state’s use of violence against them: “in France we have not generally been able to make use of the Americans’ energetic method—which consists of mercilessly beating the criminal . . . our mores are opposed to it.” ⁷⁹ In trying to determine the answer to what was presented as a choice between force and total solitude, Tocqueville wrote of his hesitations to the French Minister of the Interior:

Punishment here is at once milder and more terrifying than any other punishment yet invented. It aims solely at the prisoner’s mind but achieves incredible power over it . . . it is our duty not to hide from Your Excellency our conclusion thus far: we are strongly inclined to believe that the Philadelphia system is superior to the [New York] system as well as to all the other systems that have been tried at one time or another in the US. Nevertheless, we are far from convinced that we should attempt to imitate this system at home. Its success is still problematic. ⁸⁰

Despite their initial trepidations, the travelers returned to France as experts on the American penitentiary form, and although their 1833 report considered Auburn the “better” system, in their careers as French prison reformers they eventually believed in the power of solitude because “crime can increase because prisons are not repressive enough, because they do not inspire sufficient terror.” ⁸¹ Confirming that the prison’s only possibility was a government of terror, their studies of America taught them that “imprisonment of any kind creates susceptibility to insanity,” and that there was a certain “death rate to which one must wisely resign oneself when . . . dealing with criminals and prisons.” ⁸² Like most of the penitentiary’s faithful, they remained bound to a theory of democracy that required punitive tyranny. ⁸³

The Prisoner and the Slave: Racial Inequality and “The Crime of Color”

In their study of American prisons, the travelers were allowed to violate the principles of solitary confinement, entering the cells of Eastern State Prison in Philadelphia to discuss solitude, labor, and redemption with forty-four of the institution’s prisoners. In the Northern penal institutions, the travelers discovered that American prisons and American slavery were built from the same foundation. The trilogy foretold of a future relationship between punishment and democracy in which the prison would outlive “the memory of servitude.” ⁸⁴ Slavery’s status continued under the sign of democracy, as the prison became the badge of racial inequality. When Beaumont and Tocqueville were “introduced into all the cells, and left alone with the prisoners,” they discovered that the Black population “forms the sixth part of the inhabitants of the United States, and . . . composes half of the inmates of the prisons.” ⁸⁵ The travelers published their interview notes as an appendix to the 1833 version of On the Penitentiary, but the notes were excised from the 1964 edition. ⁸⁶

Their conversations with Black prisoners taught them that “the terrors of solitude” were sometimes “fatal to the human constitution,” and that “without the relief of constant occupation, life would be insufferable.” ⁸⁷ During an interview with the only Black woman among their research subjects, she revealed that solitude was powerful because it “made one think” through the force of silence. ⁸⁸ Eastern State’s very first prisoner, a Black man named Charles Williams, read to Beaumont and Tocqueville the parable of the good shepherd, which represented to the travelers all the contradictions of the American prison. According to the partial transcription left behind in Tocqueville’s notes, Williams “works with ardor; he makes ten pair of shoes a week. . . . He read to us in the gospel the parable of the good Shepard, the meaning of which touched him deeply—one who was born of a degraded and depressed race, and had never experienced anything but indifference and harshness.” ⁸⁹ Representing the continued indifference of the prison, Pennsylvania’s prison records describe Williams in the starkest of prose:

Burglar. Light Black Skin. Five feet seven inches tall. Foot: eleven inches. Scar on nose. Scar on Thigh. Broad Mouth. Black eyes. Farmer by trade. Can read. Theft included one twenty-dollar watch, one three-dollar gold seal, one gold key. ⁹⁰

Their study of solitary confinement as a form of despotism against the mind resulted in the analysis of prisons and slavery that appears in Marie and On the Penitentiary. During their interviews, an unnamed prisoner described the “torment” of yearning for companionship in total isolation: “when a cricket entered my yard, it looked to me like a companion. If a butterfly, or any other animal enters my cell, I never do it any harm.” ⁹¹ Beaumont later fictionalized the experience in Marie to introduce the reader to the barbarity of American prisons. In the fictionalized account at the Baltimore Almshouse, “the narrator” describes “the wailing of the poor people who have lost their reason,” and describes a prisoner who “during the day . . . was haunted by bloody phantoms . . . ‘How barbarous!,’ he cried, ‘I had a butterfly as a companion in my cell, and the brutes have killed it!’” ⁹² Like Marie, On the Penitentiary challenged the idea that solitary confinement was “superior” to other modes of punishment. During the interviews, the travelers asked an unnamed thirty-four-year-old Black man, who self-identified as exceptional in his ability to withstand solitary confinement, whether the new penitentiary form was “better” than the older, congregate design of the Walnut Street Jail (which Pennsylvania used as a prison before it built Eastern State). The prisoner cautioned his interviewers against believing too strongly in the kind of faith that the prison requires, and called into question the very distinction between institutional forms:

Ques. Do you find the discipline to which you are subject, as severe as it is represented?

Ans. No; but that depends on the disposition of the prisoner. If he takes solitary confinement bad, he falls into irritation and despair. . . .

Ques. You have been imprisoned already in Walnut street?

Ans. Yes, sir; and I cannot imagine a greater den of vice and crime. . . .

Ques. Do you think that the penitentiary is superior to the old prison?

Ans. That is, as if you were to ask me, whether the sun was finer than the moon. ⁹³

The analysis that emerged from their conversations with Black prisoners in the North shaped how the trilogy read the distinctions between the older despotic structures and the new democratic symbols. The presence of large numbers of Black non-citizens in Northern prisons, both enslaved and free, symbolized the contradictory possibilities of Black civic membership in a time of slavery: “the scale of offenses cannot be the same for the slave and the free man . . . no fine could be imposed on a slave, who, possessing nothing, can suffer no damage to property. Imprisonment is also, naturally, a penalty inappropriate to the slave’s condition. What does loss of liberty mean to one in servitude?” ⁹⁴ “Degraded” by law and punishment, the travelers wrote, the legal status of the slave turned prisoner would remain embedded in American social and political custom long after its formal demise. The prison was a structure of racial inequality that would endure the abolition of slavery, but it also demonstrated the nature of the relationship between the “peculiar” institutions. ⁹⁵

Beaumont fictionalized this double incarceration of enslaved prisoners through the almshouse-prison at Baltimore, a place Marie visited daily to comfort the prisoners. She witnessed the torment of an unnamed slave haunted by “the foremost dealer in human flesh in the United States,” the slave trader Wolfolk. Appearing in Tocqueville’s travel diaries as a meeting with a Black slave-prisoner “whose madness is extraordinary,” this critical moment in the lessons of the prison is absent from Democracy and the penitentiary study. ⁹⁶ In Marie, Beaumont recounts the experience through Ludovic’s character, writing that the slave-prisoner was subjected to “such brutalities that his reason had snapped.” ⁹⁷ As the researchers approached, the prisoner assumed a “defensive attitude, using as a weapon the chains with which he was loaded. ‘Monster,’ he cried, ‘You thirst for my blood. But come no closer.’” ⁹⁸

Despite the powerful rendering of the slave’s presence in American prisons in Marie, On the Penitentiary conflated the study of race and slavery: it promised that it would “not speak of the Southern states, where slavery still exists,” but it betrayed that promise through footnoted references and extended appendices on slavery’s relationship to punishment and prisons. ⁹⁹ The travelers documented the punishment of slaves by the states of Louisiana and South Carolina, where there were “many instances” of “death or life imprisonment” imposed on slaves by the state. ¹⁰⁰ In Louisiana and South Carolina, if an enslaved person intentionally shot, hit, or otherwise wounded a white person, they were to be killed by the state “provided that the presumption, as to his intention, shall always be against the accused slave, unless he prove the contrary.” ¹⁰¹ Slaves were subject to state jurisdiction as well when “outraged society demands reparation” for offenses against the citizenry. In these situations, when “the people” demanded justice against the crimes of the slave, the states took care not to “deprive” the master of his property or his property’s labor. In refusing to punish the master for the crimes of the slave, Louisiana required that the prison sentences of slaves not “exceed eight days, unless it be life imprisonment.” ¹⁰² In instances of the slave’s life sentence, states indemnified the masters. In Louisiana, the sum was “not [to] exceed three hundred dollars.’” ¹⁰³ Southern states, in “paying for the right to do justice,” created a separate form of Black criminality that was punished “from the public treasury.” ¹⁰⁴

Even though Beaumont and Tocqueville had discovered the relationship between slavery and punishment in the prisons of the North, their report’s focus on the horrors of the “unreformed” institutions has been remembered as a story of the South. On the Penitentiary documented their visits to nine penitentiaries, and to fifteen more that still operated according to “the ancient system.” ¹⁰⁵ The “shocking contradictions” of American prisons were revealed to them when they considered these institutions side by side, and found that “the best and most vicious prisons” existed in America:

By the side of one state, the penitentiaries of which might serve as a model, we find another, whose jails present the example of every thing which ought to be avoided. Thus the State of New York is without contradiction one of the most advanced in the path of reform, while New Jersey, which is separated from it but by a river, has retained all the vices of the ancient system. ¹⁰⁶

Although it often assumed that the travelers were referring exclusively to Southern prisons as unreformed institutions, On the Penitentiary was careful to consider the practice of punishment across regional boundaries, using New Jersey, Ohio, New Hampshire, and Louisiana as examples of barbarous and antiquated punishment. They “sighed deeply” in Cincinnati when they found half of the prisoners “charged with irons, and the rest plunged into an infected dungeon.” ¹⁰⁷ The report confessed that the authors were “unable to describe the painful impression” they experienced in New Orleans, when they “found men together with hogs, in the midst of all odors and nuisances . . . they are put in chains like ferocious beasts; and instead of being corrected, they are rendered brutal.” ¹⁰⁸ Shocked to find that these prisoners were not enslaved, but “persons free in the ordinary course of life,” the travelers began to theorize the relationship between slavery and freedom in America. ¹⁰⁹

The travelers discovered that the disproportionate presence of Black prisoners in America resulted from the law’s assignment of a criminality “different from that of the free man.” ¹¹⁰ Constructed through complex counterparts of public and private punishment, Black criminality was produced both by the state and by the people. As a customary tradition of white citizenship, the punishment of fugitives, criminal slaves, and free Black people treated as fugitives and criminal slaves was allowed to violate the “axioms of jurisprudence” that normally separated the functions of punishment—whites could serve simultaneously as “litigant, judge, and executioner” in the punishment of Black people. ¹¹¹ Louisiana allowed anyone white to “shoot fugitive slaves who do not stop when pursued,” while South Carolina demanded the death of slaves who damaged property in the fields: “any person can seize him, arrest him, and flog him forthwith.” ¹¹² In Tennessee, slaves who did not cooperate with the law could “be killed with impunity by anyone whatsoever, and in whatever manner . . . without fear of being brought to justice.” ¹¹³

Their study of the slave-prisoner’s status, which had begun in the North and continued in the South, was mediated by an accident that left them stranded in the South in the winter of 1831. With the waterways frozen and Tocqueville in the first acute onset of a lifelong illness, the travelers spent four days in the confines of a one-room cabin with three unnamed and enslaved Black men. One of the four surviving pages of Beaumont’s diary describes the aftermath of a shipwreck:

December 2, arrive in Cincinnati, hasten to depart again; the cold urges us on . . . [Dec] 3^rd, departure from Cincinnati. Severe cold. On the 4^th our boat stops, caught in the ice. Twenty-four hours spent in a little creek, where we had taken refuge while awaiting a thaw. Impossible to locate a wagon or horse to take us to Louisville. We must walk. Our baggage loaded onto a cart, which we escort. We walk all day through the woods in half a foot of snow. America is still nothing but forest . . . arrive in Louisville. Same problem . . . the Ohio is no more navigable here . . . But how to go on? . . . [W]e are told to head overland to a more southern location, where Mississippi navigation is never hindered by ice. . . . [O]n the Nashville stagecoach, two days and two nights on the road . . . we are pained to learn that the . . . tributary . . . is frozen . . . more biting cold. Never in living memory can anyone recall such a thing. . . . This is what people always say to those who come but once . . . Cold ten degrees below freezing . . . steadily worse. Our stagecoach turns into a wagon with open benches. Horrible roads. Steep descent. Restricted view. The road is nothing but a passage cut through the forest. The stumps of badly cut trees mark the trail, and we’re constantly running into them. Only ten leagues per day—An American says to me, “You have some very bad roads in France, don’t you?” “Yes, sir, and you have some fine ones in America.” He doesn’t understand me. American pride. After Nashville, not a city on our route . . . a few scattered villages all the way to Memphis . . . a piece of the suspension and a wheel broke, and then an axle. Half the distance on foot. We curse our fate. Others ask why we are complaining . . . one traveler broke an arm on the road, another broke a leg . . . the cold gets even worse. We take a ferry across the Tennessee on which float huge chunks of ice. Tocqueville is frozen through and shivering. He has lost his appetite. His head is affected. Impossible to go on, we must stop . . . Where? No inn on the road. Extreme anxiety. The stage continues on . . . at last, a house: Sandy Bridge, log house! ¹¹⁴

At Sandy Bridge, Tennessee, the travelers were forced to observe the system of slavery in the intimacy of a one-room inn. Although they largely abandoned their research because Tocqueville’s illness had brought them to the “depths of isolation and abandonment,” ¹¹⁵ he managed to record that it was “a slave who pokes the fire to warm the traveler . . . a slave who gets his clothes dried and brings him the food he needs.” ¹¹⁶ The next lines of the notebook are damaged beyond legibility. In a letter Beaumont composed to his mother, he described how slavery made “men who are not black, and who are consequently free, all regard themselves as privileged beings. Here, color is a true mark of nobility”. ¹¹⁷ Mr. and Mr. Harris, the owners of the inn, were “[p]etty aristocrats with feudal habits” who lived in poverty. ¹¹⁸ Making work dishonorable even to the poorest of whites, slavery turned whiteness into a “veritable aristocracy” that “rendered half savage” its masters: “Man is not made for slavery; that truth is perhaps even better proved by the master than by the slave.” ¹¹⁹ Slavery, they decided, was the “shame of a free nation.” ¹²⁰

Although this accidental encounter with the tyranny of slavery led to their famous formulation of majority tyranny, scholars have underappreciated their experience in the South. ¹²¹ Avoiding the cotton plantations for the sake of time after a long and unanticipated delay, they toured a sugar plantation in Louisiana, which symbolized for them the cruelest of American tyrannies: “This is not a tyranny of blood and torture; it is the coldest and most intelligent tyranny ever exercised by the master over the slave.” ¹²² It was harmful not just because it made slaves, but because it made tyrants of the people: “Not a white man exists in America who is not a barbarous, iniquitous persecutor of the black race . . . there are, for each act of tyranny, ten million tyrants. . . . Everywhere, I found this tyranny of the people’s will.” ¹²³ While Tocqueville’s theory of a tyrannical majority made the travelers famous, the context in which they discovered that tyranny is often abstracted from the real experiences of their travel itinerary.

The tyranny of slavery and punishment they discovered in America produced a contradictory citizenship through which free Black people possessed citizen’s rights but could not use them:

We asked . . . if the black has citizens’ rights . . . ‘Yes, in law, but they cannot present themselves at the poll.’ ‘Why so?’ ‘They would be ill-treated.’ ‘And what happens to the rule of law in that case?’ ‘The law with us is nothing when it is not supported by public opinion.’ ¹²⁴

In Beaumont’s novel, the character Ludovic asks, “What worth has a legal principle when it is warped by custom.” ¹²⁵ The disproportionate punishment of free Black people in the North was observed even in the streets, where the travelers witnessed Black people being “dragged off to prison for not having the price of a few pounds of bread.” ¹²⁶ Attempts to practice Black citizenship were punished by the tyranny of the majority. In Beaumont’s novel, George is arrested for voting by an angry crowd; when he violates the segregation of the theatre, he is “dragged from his seat” by police “carrying out the orders of the public.” ¹²⁷ The courtroom was another place in which “the crowd” punished the Black defendant. Marie depicted the participation of the white public in the New York trial of a Black man accused of beating a white man: “Each time the poor mulatto wished to speak, his voice was drowned out . . . by the noise of the crowd. . . . He was found guilty without any deliberation on the part of the jury. A quiver of joy went through the crowd . . . the judge was paid for his task, while the hate of the people was gratuitous.” ¹²⁸

In putting punishment at the center of the novel, Beaumont examined the participation of the very crowd that had brought them to America, and found that in the prosecution of crimes against racial order, the prison was normalized as part of majority sovereignty, civic participation, and daily life. Reflecting the place of the prison in American social and political arrangements, the novel gave each character a relationship to the prison and to the “crime of color.” George’s routine confrontation with American law was accompanied by the imprisonment of George and Marie’s father, the former Inspector of Prisons and Asylums in Baltimore, on charges of instigating civil war among the Cherokee and disrupting land theft by the U.S. government. Nelson was imprisoned for two months by the state of Georgia and “the majority of Georgians,” and finally returned to Baltimore to give his blessing to the interracial marriage of Ludovic and Marie. ¹²⁹ Punishing amalgamation, a mob interrupts their New York wedding, a scene inspired by newspaper accounts of the actually occurring “race riots” of 1834. ¹³⁰ Marie and Ludovic escape the immediate punishment of “the people” by fleeing a city in flames, and when they reach the free state of Ohio, a new law has “forbidd[en] all colored people to enter.” ¹³¹ Banished from American society, the couple make a home on an island in the middle of a Michigan lake, one surrounded by “a belt of thick greenery” that, concealing them from society, confined them to a social isolation that led to Marie’s tragic death. ¹³²

Using the island’s exiled solitude as a representation of how legal segregation made democracy a prison, Beaumont’s novel used punishment to frame his analysis of the work of race. Drawing its depiction of the island from a famous French children’s story, Voyage au Lac Oneida, the novel borrowed the story of a young, aristocratic couple’s “escape” from post-Revolutionary France to the Michigan “wilderness” of America. When Beaumont and Tocqueville visited the actual Frenchman’s Island in 1831, they found a “deep silence,” along with the decayed remains of a house, and the memories of a distant neighbor they interviewed, who told them of a woman who died on the island. Their encounter with the memory of the woman who became Marie inspired Beaumont to use the exiled solitude of the island as a representation of segregation in American social life. With this new understanding of the way in which those who had committed the “crime of color” were imprisoned in American law, Beaumont closed his novel with a narrator’s remark on the coming finality of the traveler’s departure: “Returned to his dear fatherland, he never left it more.” ¹³³

Having learned through their study of race and punishment that “custom [was] more powerful than law,” Beaumont insisted in Marie’s legal appendices that slavery would “affect traditions, after it has legally ceased to exist.” ¹³⁴ These “secondary consequences of an evil whose first [legal] cause has disappeared” would shape Northern cities into “two populations [with] a distinct civil existence” regulated by a dual philosophy of democracy—“for the whites the theory of equality, for the blacks the system of servitude; two contrary codes of morals: one for the free, the other for the oppressed; two sorts of public ethics: these—mild, humane, and liberal; those—cruel, barbaric, and tyrannical.” ¹³⁵

The trilogy drew its knowledge not only from experiences of isolation and confinement but from meetings with the Choctaw and the Cherokee nations, who fought back against U.S. land theft, and were punished by exile and violence. In Beaumont’s novel, it was during a joint insurrection of Black and Cherokee people that George was punished with his life. Describing their meeting with the Choctaw on an Arkansas steamship, Tocqueville wrote in his diary that he witnessed the “expulsion . . . of the remnants of one of the most celebrated and oldest American nations.” ¹³⁶ In a letter to his mother, Tocqueville wrote, “One of them knew English and I asked him why the Chactas were leaving their land. ‘To be free,’ he replied.” ¹³⁷ Tocqueville wrote that they lived “imprisoned in the folds” of their American clothing, punished by a democracy that retained forms of unfreedom. ¹³⁸

Conclusion

Having been drawn into democracy from monarchy and despotism, the form of non-status on which the prison relied became embedded in a democracy that eventually forgot about prisons as political institutions, even as it wedded the penitentiary form to understandings of American governance. Unfreedom’s erasure from American democracy and from its trilogy has prevented an analysis of the prison’s presence as a guiding force in the work of Alexis de Tocqueville and Gustave de Beaumont, theorists for whom the penitentiary form symbolized the promises and contradictions of democracy and the management of the masses.

While the novel’s form allowed Beaumont to represent American governance as despotism without offending American pride, the novel was buried beneath the other texts of the trilogy—texts remembered as Tocqueville’s famous tome and a mere “technical report” on penal institutions. ¹³⁹ The separation of the trilogy’s parts into different disciplinary homes has impacted how scholars theorize the forms of unfreedom that structure the trilogy, and the role of punishment in the maintenance of aristocratic institutions that continue to operate under the sign of democracy. Although Beaumont and Tocqueville arrived in the United States to “escape” legacies of familial punishments, their perspective on the penitentiary form and the punishments of slavery was guided by the force of historical accident and by the unexpected intimacy of their observations of slavery.

In the context of these unanticipated shifts in their itinerary, the travelers were forced to discover the future of American democracy, a future in which the legal status of slavery outlasted the institution’s demise. Their prediction that slavery would take new forms, capturing the lives of the legally incapacitated, might well have included the path toward mass incarceration, and the uncertain legal status of Black citizens put in twenty-first century prisons. Despite their theorization of the relationship between prisons, slavery, and freedom, they remained part of the penitentiary’s faithful, assuming its future through a theory of the state and the creation of a new political science “for a new world.” ¹⁴⁰ Mass incarceration in the twenty-first century continues to rely on theories of the state that assume a future world for the prison, and there is much to be learned in the archives left behind by America’s most famous travelers about a moment that might have been otherwise.