Our final Author Q&A of 2014 is with Jeannine Marie DeLombard, author of In the Shadow of the Gallows: Race, Crime, and American Civic Identity, which is out now in paperback. From Puritan Execution Day rituals to gangsta rap, the black criminal has been an enduring presence in American culture. To understand why, we must set aside the lenses of pathology and persecution and instead view the African American felon from the far more revealing perspectives of publicity and personhood. Placing the black condemned at the forefront of the African American canon allows us to see how a later generation of enslaved activists—most notably, Frederick Douglass—could marshal the public presence and civic authority necessary to fashion themselves as eligible citizens. Winner of the 2013 Robert K. Martin Prize for Best Book, sponsored by the Canadian Association for American Studies, In the Shadow of the Gallows reads classics by J. Hector St. John de Crèvecoeur, Edgar Allan Poe, Frederick Douglass, Herman Melville, George Lippard, and Edward Everett Hale alongside execution sermons, criminal confessions, trial transcripts, philosophical treatises, and political polemics to address fundamental questions about race, responsibility, and American civic belonging.
(Click here to see every Fall 2014 Author Q&A post.)
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Penn Press: From the blues to gangsta rap, O.J. Simpson to Trayvon Martin, American popular culture remains fascinated with stories of race and criminal justice. Where does that fascination come from?
Jeannine Marie DeLombard: In early America, executions were great spectacles, drawing perhaps the largest crowds of any public gathering. The condemned criminal embodied the fate awaiting any who failed to follow the path of righteousness. But he or she also stood as a reminder of how easy it was for anyone who strayed from that path, however briefly, to become ensnared in the thickets of sin and crime. Much as we feel intimately acquainted with celebrities today, early Americans were encouraged to identify with individual criminals by learning about their personal lives from the cradle to the very brink of the grave. Spectators could learn about the criminal from the minister who had prepared a special sermon based on his jailhouse interviews with the condemned. Even better were the “last and dying words” attributed to the condemned malefactor. Published as broadsides and pamphlets, execution sermons and criminal confessions reached audiences well beyond those crowding around the scaffold on hanging day. Because African Americans, like other social and political outsiders (Indians, the poor, the Irish), played such a central role in these rites of execution, their fellow Americans could see them as individuals in their own right, albeit with pronounced criminal tendencies. In American popular culture, the criminalization of race and the racialization of crime have their origins in the shadow of the colonial gallows.
We often think of the ongoing mass incarceration of African Americans as a movement from plantation to prison. What does this story leave out?
In the aftermath of President Lincoln’s Emancipation Proclamation and the Civil War, the 13th Amendment to the U.S. Constitution abolished slavery by declaring that “neither slavery nor involuntary servitude, except as a punishment for crime . . . shall exist within the United States.” Seemingly putting an end to race slavery, the amendment reserved human bondage for those deemed criminals under the harsh—and often white supremacist—new laws being passed throughout the South. Unquestionably, there is an historical continuum between the mass supervision and incarceration of African Americans during and after slavery, up to the present moment.
But African Americans did not simply move, en masse, from one site of captivity (the plantation) to another (the prison) after the Civil War. For starters, the black condemned played a central role in early rites of execution as they were staged on the colonial gallows and in the pages of the early American press. After the Revolution, when reformers sought to replace such harsh public corporal punishments with extended imprisonment in an effort to prompt private, penitential soul-searching on the part of the criminal, African Americans were among the first inmates to enter the North’s exemplary new “penitentiaries.”
Whether consigned to the hangman’s noose or the solitary cell, black convicts were subject to formal legal procedures unknown to the vast majority of slaves, for whom, as former Maryland bondsman Frederick Douglass recalled, the slaveholder or overseer “was generally accuser, judge, jury, advocate, and executioner.” To think of the prison as merely replacing the plantation is to underestimate the profound, important, formative place of African Americans in American law and, thus, in the nation’s popular imagination.
With justice unlikely in a slaveholding America, how could black defendants' encounters with the law have been anything but oppressive? How were such encounters any different from “plantation justice” or lynching?
Paintings and sculptures often portray Justice as blind or blindfolded. The image is meant to convey impartiality in what we still refer to as “the eyes of the law.” Of course, as history and the daily news attest, the blindfold tends to slip when race enters the proceedings. But paying too close attention to the law’s persistent immunity to so-called “color-blindness” can distract us from appreciating how important it was for people of African descent simply to be seen as persons by the American legal system—to be recognized in the eyes of the law. The very process of formally arresting, trying, convicting, sentencing, and punishing black criminals required legal officials to view African Americans, slave or free, as legal subjects with rights and responsibilities, not merely as property. And when trials and executions were publicized in the popular press, as they so often were, the American public became accustomed to seeing their black countrymen as just that—members of their society, to be held responsible for any breach of the legal order.
As violent forms of white-supremacist social control, lynching and so-called “plantation justice” (the discipline administered to enslaved people by their captors) were anything but hidden or secret, often occurring in front of onlookers, even mobs. But both forms of racial terrorism took place beyond law’s purview—away from the eyes of the law—precisely because both sought to deny the very personhood recognized in even the most summary procedures of criminal law.
In the book you stress the difference between being a person and being a human being. What, exactly, is the distinction here? Why does it matter?
We tend to use the words “human” and “person” interchangeably. The law doesn’t. And 19th-century Americans were remarkably fluent in the law. The nation’s first legal dictionary, John Bouvier’s Law Dictionary: Adapted to the Constitution and Laws of the United States of America, opens the entry for “Person” by distinguishing “natural persons,” such as “men, women, and children,” from an “artificial person,” namely, “a corporation.” (This was in 1839!) The entry goes on to divide natural persons first by gender—with women having only limited legal capacity—and then by condition, into “free persons and slaves.” An 1856 revision clarifies that “in law, man and person are not exactly synonymous terms.” Whereas “any human being is a man, whether he be a member of society or not, whatever may be the rank he holds, or whatever may be his age, sex, &c.,” legally, “a person is a man considered according to the rank he holds in society, with all the rights to which the place he holds entitles him, and the duties which it imposes.” As humans, all men—and, indeed, women—may have been created equal, but not all were recognized as persons. Persons were humans (and other entities, like corporations) recognized as having certain rights and duties under the law.
If you immerse yourself in the archives of American slavery, you very quickly learn that, however much their fellow Americans may have denied slaves’ personhood, few, if any, genuinely questioned slaves’ humanity. Quite the contrary: slaveholders purchased, mortgaged, willed, and speculated on women and men, girls and boys, cooks and carpenters, field hands and fancy girls—not an assortment of dehumanized “its.” As scholars have established, far from dismissing blacks’ romantic and familial ties on purely ideological grounds, masters and mistresses manipulated these human relationships so as to maximize slaves’ tractability and profitability as movable property. But it was on those rare occasions when this human property was officially held responsible for a crime that everyone—legal authorities, the public, and slaveholders alike—had to recognize his or her personhood.
In his notorious Dred Scott decision, Supreme Court Chief Justice Roger B. Taney observed that African Americans had “no rights which the white man is bound to respect.” What more can there possibly be to say about the status of African Americans, bound or free, in a slaveholding nation?
Dred Scott stands as an enduring reminder of African Americans’ legal oppression. But even as Chief Justice Taney spoke, African Americans’ rights to due process as criminal defendants were being taken for granted in jurisdictions across the nation—and, often, depicted in popular press accounts of sensational trials and executions. This legal and print publicity urged their fellow Americans to view African Americans as both autonomous, responsible individuals and as members of the larger society—not merely as property to be bought, sold, or recaptured. Ironically, even after Dred Scott, it was as criminal defendants that African Americans saw their rights perhaps most routinely respected throughout the antebellum United States.
Does the book suggest that there are terminal flaws in the American legal system, or does it see history as having largely produced corrections to its internal flaws?
Neither law nor culture hold still. In fact, they constantly produce and reproduce each other, for law is a part of culture and not some external, enduring force or system. Rather than thinking of flaws in the American legal system—which many would agree are legion!—it is more helpful to think of how both today’s culture and its legal system grew out of the history traced in In the Shadow of the Gallows. If nothing else, the book confirms that it is impossible to think of race, and the history of slavery in particular, as anything but foundational to American law and culture. Even when we don’t think we are thinking about race or human bondage, slavery’s legal legacy informs our understanding of everything from property relations and citizenship to the personhood of fetuses, corporations, and orcas. Far from being a flaw in the U.S. legal system, race slavery was—and is—part of its bedrock. A few constitutional amendments or overturned legal precedents cannot change that. Nothing can: today’s law was built, to a significant extent, upon race slavery.
What can readers of this book hope to take away from it that might help them further their understanding of both the experiences of criminality and of racial oppression in America?
An appreciation that the law is not a monolith—and that it can be changed by people other than those who sit on legislatures or judges’ chambers, or even stand in voting booths once a year. Because law is an integral part of culture—and culture is suffused with law—even those with no civil or political rights can shape the legal order in which they live. In antebellum America, slaves did this by publishing stories of their lives and creating outrage against the “peculiar institution”—which ultimately led to our nation’s founding legal document, the U.S. Constitution, being radically revised through the 13th, 14th, and 15th Amendments. Before that, popular portrayals of individual condemned black criminals forced everyday Americans and legal officials alike to acknowledge that people of African descent were not merely property but responsible members of society. If you find the door to the legal system closed in your face, or if it seems only to lead you into a cage, you just may be able to carve out an alternative form of access through culture—street protests, print or broadcast publicity, social media, etc.
What does all this have to do with American literature?
When race slavery was at its peak, some influential white critics—the kind of people who rubbed shoulders with Ralph Waldo Emerson—acknowledged (albeit with considerable regret) that America’s only truly original contribution to world literature were the published life stories of slaves. Emerson, Nathaniel Hawthorne, Herman Melville, and others of their ilk feared that the original fiction and poetry they and their contemporaries were struggling so hard to produce were, in the end, just pale imitations of British and European literature. And, of course, the first American book to become an international bestseller, translated into Russian and Chinese, was a novel written to protest slavery: Harriet Beecher Stowe’s Uncle Tom’s Cabin.
Keeping all this in mind, when we go back to the Puritans, and take into account the enduring centrality of the figure of the black criminal in American law and popular culture, we can see how the nation’s literature grew up around that figure. Classic white American authors like Edgar Allan Poe plotted their stories at the point where race and crime intersect in an effort to figure out what it means to be a human, what it means to be a person, and what it means to be a citizen in an era when these categories did not necessarily overlap. At the same time, you can see influential black literary figures like Frederick Douglass seeking in their personal narratives to claim the legal recognition and the publicity accorded to an earlier generation of black convicts, while struggling to cleanse themselves and their fellow African Americans of the taint of criminality.
Who are your favorite characters in the book?
I have been fascinated with Abraham Johnstone for nearly twenty years, since I first came across a 1797 pamphlet claiming to publish the written statement he had “handed . . . out of the dungeon he was confined in on the morning of his execution.” Protesting his innocence until the end, Johnstone claimed he had been framed for the murder of another black man, a “Guinea negro” named Tom, after local white farmers had seen “I was . . . doing well for myself, which made me an object of envy and hatred.” Turning what should have been a criminal confession into an “Address to the People of Color,” Johnstone transformed himself from condemned malefactor into what a later generation would call a “Race Man.” He did so by exposing the hypocrisy of a slaveholding, genocidal American republic purportedly built on enlightened revolutionary ideals. And yet, unlike other highly publicized cases involving ex-slaves, no records survive of his trial and execution, either in Woodbury, New Jersey, where he was hanged, or in nearby Philadelphia. The pamphlet could be a hoax. The man—if he ever existed—remains a mystery.
Johnstone is only one of a succession of larger-than-life condemned black criminals who captured the popular imagination throughout the eighteenth and nineteenth centuries. From Joseph Hanno (the convicted wife-killer whom Puritan divine Cotton Mather castigated for being too “puffed-up” with knowledge), to Thomas J. Wansley (who was part of an interracial pirate duo whose published adventures anticipate today’s buddy pictures), to William Freeman (the falsely convicted teenager driven insane by water-boarding and other forms of prison torture who, upon release, murdered an entire upstate New York family in their beds). And that’s to say nothing of Nat Turner, the leader of the largest slave insurrection in American history.
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Jeannine Marie DeLombard is Associate Professor of English at the University of California, Santa Barbara, and author of Slavery on Trial: Law, Print, and Abolitionism. In the Shadow of the Gallows: Race, Crime, and American Civic Identity is available now.
