In the Shadow of the Gallows: Race, Crime, and American Civic Identity by Jeannine Marie DeLombard, and: Bonds of Citizenship: Law and the Labors of Emancipation by Hoang Gia Phan (review)

When J. Hector St. John de Crèvecœur asked, “What is an American?” in Letters from an American Farmer (1782), his subject was the white, male European immigrant who, freed from the “princes, for whom we toil, starve, and bleed,” could, by virtue of his own industry, become a valuable member of “the most perfect society now existing in the world.” For all such immigrants, like Crèvecœur’s representative new American, Andrew the Hebridean, “every thing has tended to regenerate them. New laws, a new mode of living, a new social system. Here they are become men.” Jeannine Marie DeLombard, in In the Shadow of the Gallows, and Hoang Gia Phan, in Bonds of Citizenship, challenge the dominant civic myth of the United States by examining the “absent presence” of the slave within the democratic experiment and the ways in which, from the colonial period to Reconstruction, the slave took the treacherous course from civilly dead bondsman to legally recognized criminal to subjective person to quasi-citizen, as evidenced in law, print culture, and literature.

DeLombard’s well-argued study advances our understanding of the role of gallows literature in the development of the slave from a figure of mixed legal character to a socio-political person recognized by the American reading public. Constrained by the parameters of law—both its plain language and its presumed intent—the bondsman’s development into a moral person, civic aspirant, and member of the polity did not progress on an easily discernible continuum. Rather, the slave entered print culture first in the “anti-civic and uncivil role” of the criminal defendant recognized under the law as a natural person solely because of transgressions against the state (2). The reading public first encountered the slave as both subject and political self through the criminal confession, which predates the slave narrative as a popular genre. Black authors’ print performance in the context of criminal confessions, DeLombard argues, played an important intermediate role in public representations of the bondsman during the slave’s acquisition of “responsible, autonomous selfhood” and “eligibility for full political membership” (31). By examining gallows confessions, abolitionist slave narratives, and the works of eighteenth- and nineteenth-century literary authors, DeLombard charts the trajectory of the slave from “civilly dead property and criminally liable person” to a “protocitizen,” exemplified by Frederick Douglass and Harriet Jacobs (38).

Any discussion of the legal status of the slave at the time of the nation’s founding and in the days of the early republic requires reference to the Constitution and its language, specifically Article I, section 2, clause 3, in which representation and taxation are apportioned among the states based on the number of “free Persons” and “three fifths of all other Persons” (the “three-fifths clause”); and Article IV, section 2, clause 2, providing for the “recapture” of “Person[s] held to Service or Labour in one State . . . escaping into another” (the “fugitive slave clause”). Previous works, such as Don E. Fehrenbacher’s seminal The Slaveholding Republic (2001), have analyzed the debate over strict construction versus original intent in the constitutional language, Douglass’s shifting interpretation of the document, and judicial decisions addressing original intent (Prigg) and issues of legal standing and citizenship (Dred Scott). DeLombard’s analysis extends beyond constitutional and judicial constructions of black personhood to criminal constructions that first introduced members of the social compact (from which slaves were excluded) to the bondsman. The “mixed character” of slaves, articulated in the Federalist No. 54 (1788), is a “peculiar one” in which the enslaved are regarded as both persons and property “by the laws under which they live.” DeLombard argues that, under this legal fiction, the slave attained...