Until Justice Be Done: America's First Civil Rights Movement, from the Revolution to Reconstruction

by Kate Masur

The war settled the question of slavery itself, but it resolved nothing about the future of African Americans in the United States.

What brought the disparate groups of people in this movement together was a commitment to racial equality in what they often termed civil rights. For Americans of the early nineteenth century, civil rights were basic or fundamental rights associated with being a free person. Virginia congressman Philip P. Barbour, who later became a Supreme Court justice, described “civil rights” in 1820 as the rights of “personal liberty and the free possession and enjoyment of personal property.”

Ohio is especially prominent as the first state created from the Northwest Territory and the first to adopt antiblack laws.

Yet the unprecedented federal civil rights measures also had their limits, and this book helps explain those, too. Why did Republicans resist the argument that new promises of equality should encompass sex as well as race? Why did they not address the antivagrancy laws and other race-neutral measures that targeted poor people and remained so effective in limiting the freedom and opportunities of Black Americans? And why, even after the new measures passed, did states retain such expansive powers to oppress?

The end of explicitly racist laws did not mean the end of racist law enforcement, much less the end of racism itself.

The core idea in the English poor-law tradition was that families and communities were obliged to provide for their own dependent poor, but not for transients and strangers. The most privileged people were those with a legal “settlement.” People who were legally settled in a local jurisdiction were recognized as permanent residents. If they became needy and had nowhere to turn, they might be able to draw on the public poor-relief fund. By contrast, local authorities were under no obligation to help residents who had no legal settlement. Officials could expel such people from the jurisdiction, sending them back to their place of origin. Even people considered likely to become a public charge could face regulation and removal. Settlement law made no pretense of treating everyone equally. Its main orientation was not individual rights but community well-being, and in this context, persons who were perceived as economically and socially independent had far more privileges than those who were not.

Among white people, Quakers most often took the lead in the efforts to end slavery and emphasize the common humanity of all persons.

Ohio passed its first comprehensive poor law in 1805. Echoing the territorial poor law, the new law established township-based boards of overseers of the poor charged with raising money for poor relief, visiting and evaluating needy persons, and determining who was entitled to relief and who had to be removed to their community of origin. The following year, the Virginia General Assembly tightened its policies on manumission and free Blacks with a new law requiring manumitted slaves to leave the state within a year of becoming free. In 1807, Ohio merged its black laws with the poor-law system. The new Ohio laws drastically increased the fee for registering and required that Black settlers get “two or more freehold sureties” of $500. The people who served as sureties—freeholders, meaning people who had unencumbered title to land—did not literally hand over $500 to the county clerk. Rather, the bonds were essentially a guarantee of Black migrants’ “good behavior” and a promise to “pay for the support” of such migrants if they were “found unable to support themselves.”

Black Philadelphians and their white allies urged Congress to take action to end slavery and protect the rights of free African Americans. At the end of December 1799, Richard Allen, Absalom Jones, and sixty-nine other Black Philadelphians signed a petition to Congress in which they described themselves as a “class of citizens” of the United States and part of “the People of the United States” who were members of the constitutional compact. They claimed rights as citizens and as human beings, arguing that since neither the Constitution nor the 1793 Fugitive Slave Act mentioned “Black people or slaves,” therefore “as we are men, we may be admitted to partake of the Liberties and unalienable Rights therein held forth.”

The substitute bill was dramatically different from its precursor. Now the legislators defined the problem not as one of race but rather of vagrancy. The new proposal empowered the mayor and other Philadelphia officials to “commit to prison any vagrant or other idle or disorderly person living without employment, wandering about begging, having no visible means of subsistence, or being unable to give a reasonable account of himself or herself or of his or her business.” Persons convicted of vagrancy would be forced to labor for various lengths of time, depending on how often they had been so convicted. In the ensuing debate, legislators mostly sought to reduce the length of sentences for vagrancy convictions. The House then officially renamed the bill. Instead of bearing a name that associated it with prejudice against persons of color, House Bill 202 was now called “An act to prevent the increase of idle and disorderly persons within this commonwealth.”

The House agreed, by a vote of 49 to 29, to move ahead with this new version of the bill. Sutherland, Duane, and Mitchell—all of whom were already on record supporting measures that directly targeted persons of African descent—signed on, and the House passed the bill. The Senate was not interested, however, and it rejected the House bill at the end of the session.36 Still, the debate had been instructive. Evidently the language of race and class were to some extent fungible. Legislators who first sought to target African Americans likely knew that authorities could use discretion when enforcing race-neutral laws regulating vagrancy and disorderly conduct, allowing them to accomplish the desired ends even if the statute itself made no reference to race.

Leading white advocates of colonization consolidated their movement in December 1816, forming a society for “Colonizing the Free People of Color of the United States,” soon known simply as the American Colonization Society (ACS).

A small number of white Ohioans, many of them with Quaker ties, denounced both the ACS and the black laws. Their central contention was that free African Americans had every right to stay where they were, and that it was unjust to deny them fundamental rights, including the right of free mobility and protection of the laws.

The Ohio court, in an opinion written by Judge John McLean, dispensed with the complexities of Carneal’s will and estate and decided that Lunsford was a free man. McLean, who would later sit on the US Supreme Court and author a dissent in the 1857 Dred Scott case, offered a moral condemnation of slavery and drew a stark distinction between the laws of Ohio and Kentucky. In Kentucky and other slave states, he wrote, “A presumption may perhaps arise, that every black man is a slave unless the contrary appear.” In Ohio, he said, “The presumption is different. Every man is supposed to be free, until his obligation to servitude is clearly shown.” Lunsford was entitled to the presumption that he was free, and he could only be held in bondage if the Kentuckians could affirmatively prove their “right in his own person.” The claimants had no such right, McLean and the other judges decided. Lunsford was entitled to his freedom because he had worked in Ohio, where slaveowners were not permitted to command labor from enslaved people. To permit people to work as slaves in Ohio, McLean argued, was “an evasion of the policy of the [state] constitution” that could “never be sanctioned.”

In explicitly condemning the prima facie principle—the idea that the burden was on Black people to demonstrate that they were free—McLean insisted that freedom was everyone’s default status in Ohio.

In the 1820s, the privileges and immunities clause (Article IV, Section 2) became critically important to the American debate about the rights of free African Americans, and it would remain so until passage of the Fourteenth Amendment in 1866. The clause read, “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”

In the first three decades of American nationhood, state and federal courts began to interpret the privileges and immunities clause, at least as it applied to white men. Courts generally held that the clause prohibited states from treating people from out of state differently from their own residents in what they considered matters of fundamental rights. These were what contemporaries sometimes referred to as “civil rights”—the right to move freely from state to state, enter into contracts, own property, and sue and be sued.

From the Missouri debates onward, advocates of racial equality continued to use the Constitution’s privileges and immunities clause as a conduit for elevating demands for racial equality in civil rights from the state level, where they usually resided, into the realm of Congress or the federal courts.

The Federalist Party was dramatically weakened after the War of 1812, though a rump of Federalists remained in the northern states, and many were strong advocates of what they saw as explicitly “northern” interests in the American economy. The Republicans, strongly identified with Thomas Jefferson, were in a decided majority nationwide. Yet the Republicans were also significantly divided, and one of the major fault lines was slavery.

The United States was not fundamentally a white nation, these men also insisted. Free Black people had been part of the founders’ vision of the United States. Black men had fought in the American Revolution; they had voted in many states at that time. African Americans were implicitly included in the Constitution’s opening phrase, “We the People.” William Eustis, a Massachusetts Republican, pointed out that Black people were among the constituents he represented in Congress.

Early in the Horton controversy, the paper asked why some people seemed to care so much about free African Americans when white people faced abuse and incarceration simply for being poor. The cruelest laws were not those that forced African Americans to carry passes and certificates of freedom, the Intelligencer maintained. They were the debtor laws that shoved “white people” into prison because they couldn’t pay their creditors. Those very same debtor laws, the paper observed, exempted slaves, who were in the fortunate position of having no financial responsibility for themselves.

demanded free mobility for Black citizens such as Gilbert Horton were essentially proposing to disaggregate race from class; they wanted to make it impermissible to discriminate based on skin color without demolishing the entire poor-law edifice.

In the spring of 1831, Ohio legislators passed a new poor law that banned African Americans from ever gaining a legal settlement in the state—that is, it made them ineligible for poor relief should they become needy, and, in a more abstract sense, declared that they were perpetual outsiders to the state’s community. The legislature also passed a comprehensive law that established public education in the state but provided that public schools were “for the instruction of the white youth of every class and grade, without distinction.”

When whites associated with free Blacks, whites became demoralized, “los[ing] that status and consideration in society, which is one of the strongest safeguards against vicious conduct.”

connection. In the summer of 1834, James Birney suggested that Ohio abolitionists focus on “the elevation of the Col’d people to civil privileges” rather than pressing for African Americans’ “social” equality at the same time. Birney, a former slaveholder from Kentucky, had begun his antislavery work as a colonizationist but had declared himself an abolitionist amid the ferment of the Lane debates. Birney was concerned that the Lane students’ commitment to racial equality in their private lives made them vulnerable to attack and could prevent them from reaching their larger goals. He suggested that if “civil privileges” could be gained, “it would be a long stride” toward equality in social life. Weld readily agreed. Echoing Birney but using the term rights instead of privileges, Weld recommended that “we should make it our great object to put our colored brethren in possession of their civil rights—social rights will follow naturally in their wake.”

Seeking to make inroads into state politics, the OASS chose state Senator Leicester King as its president. A successful businessman, King was born in Connecticut and had moved to Ohio as a young man. He had once visited Natchez, Mississippi, with an eye toward going into business there, but he was repulsed by slavery and returned to settle in northeast Ohio. There he became a promoter of the Pennsylvania and Ohio Canal, an inland shipping route that connected the Western Reserve with points east. His large home in Warren was known as a way station on the Underground Railroad, and King devoted a portion of his ample resources to helping fugitive slaves reach freedom. The OASS’s selection of King, a Whig, to lead the organization suggested that abolitionists wanted to make themselves heard in the capital, which in 1816 had moved from Chillicothe to Columbus.

David Smith, an itinerant AME minister, recalled of the early 1830s that Black “churches and houses were stoned and many were compelled to sell out and go to Canada.… The mean and fiendish treatment the colored people received from the low class of whites, encouraged and urged on by the intelligent and wealthy, can not be described.”30 Town leaders denied to traveling white abolitionists the use of venues where they could lecture. Hostile crowds harassed and assaulted white speakers, often throwing rocks and running them out of town. The threat to Black activists was even more acute. Black Ohioans, activist or not, were vulnerable to claims that they were illegally residing in the state, that they had not registered and posted bonds according to the law. They were subject to eviction and abuse, and the racist testimony law severely limited their access to the courts. White Ohioans, seeing Black people as consummate outsiders, readily turned to mob action. Although lawless by definition, violent mobs complemented the black laws. The mobs’ purpose, like that of the laws themselves, was to maintain or restore what their participants believed was the proper social order.

The Ohio Constitution’s declaration of rights reinforced this idea, promising fundamental rights to “all men,” while mentioning “citizens” only in connection with the rights to vote and hold office. A person did not have to be a citizen to claim the right to be free of racial discrimination, so the organizers of the petition claimed rights based not on citizenship but on personhood and their residency in Ohio.

the petition informed the legislature that Black Ohioans owned property worth $500,000 and paid state and local taxes amounting to $2,500. The petition concluded with the hope that the legislature would see fit to recognize the taxpayer status of Black Ohioans by appropriating public funds for their use. As “men[,] christians and republicans,” the petitioners promised to continue exercising their “inalienable right to freely expressing our opinions … till justice be done.”

Since the 1790s, federal laws had permitted US Customs officials to provide certificates that sailors used as proof of their citizenship while working on the high seas and in foreign ports. Customs collectors regularly issued such certificates to Black sailors, thus affirming their status as US citizens.7 Yet that status seemed to mean little while Black sailors were inside the United States, where a person’s status under state law mattered more than his status under federal law.

Beyond insisting that Black sailors from Massachusetts were citizens of the state and therefore entitled to the state’s protection, the petitioners argued that southern state policies violated the US Constitution in two specific ways: First, the policies contradicted the preamble, which held that the government of the United States was designed to “establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” It was difficult, however, to demonstrate that the preamble was on their side. It did mention “liberty” and “justice,” but it also bolstered more security-based visions of government with its allusions to “defence” and “the general welfare.” Their other constitutional argument was stronger and more common among people of their political bent. Racially discriminatory laws, they insisted, subjected “a portion of our fellow citizens of this Commonwealth … to heavy losses, cruel treatments, and even to the deprivation of their liberty for life.” Such laws violated the privileges and immunities clause, “which explicitly provides, that ‘the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several States.’

Already in 1833, David Lee Child had pinpointed the hypocrisy of traveling slaveowners who expected northerners to honor their property rights in slaves but refused to take seriously the freedom and self-ownership of northern Black people sojourning in southern states.

In Corfield v. Coryell, often considered the most important ruling on citizenship offered by a federal judge before the Civil War, Washington acknowledged that the “privileges and immunities of citizens in the several states” encompassed “fundamental” rights, among which was the “right of a citizen of one state to pass through or reside in any other state, for the purposes of trade, agriculture, professional pursuits, or otherwise.” Eight years after the Corfield decision, Story explained in his treatise that the privileges and immunities clause was intended to “confer on” state citizens “a general citizenship; and to communicate all the privileges and immunities which the citizens of the same state would be entitled to under the like circumstances.”48 Bradburn claimed that the writings of Washington and Story supported his argument that southern states were violating the constitutional rights of Black sailors.

Bradburn argued that it was time to use the power of the state to protect the rights and honor the citizenship of free Black people from Massachusetts.51 Bradburn later recalled that he had entered that debate “with more feeling than I remember to have done into any other.” He was furious with the subcommittee’s “truckling subserviency to a corrupt and blind popular opinion, and the legal cobwebs with which those quibbling lawyers had attempted to fetter me.” When a colleague warned him to back off lest he damage his political prospects, he paid no attention. Soon his peers began coming over to his side. The “quibbling” arguments of the committee members, he recalled, “found no favor in the masses of the House when once I had succeeded in getting before them the facts.” The House voted to form a new subcommittee and instructed it to report out Bradburn’s resolutions or “others containing the principles of the same.” The House having changed its mind, the Senate soon followed, and Bradburn’s bill passed on April 8, 1839.52 Abolitionists hailed the Massachusetts resolutions as a great victory. The state could now dispatch emissaries southward to liberate free Blacks languishing in jails, whether kidnapped from the North or arrested in southern ports.

The Bradburn resolutions gave the Massachusetts governor new power by authorizing him to spend public funds.

Beginning in the mid-1830s, the United States fought a costly war against the Seminole people and other tribes in Florida, under the presumption that, when the war ended, Florida would join the Union as a slave state. In the Southwest, a mostly Anglo group of settlers fought to secure Texas’s independence from Mexico and then pushed the US government to annex the slaveholding republic as a state. In both cases, congressional votes would determine whether slaveholding territories became states with full representation in Congress. Those conflicts and others allowed antislavery activists to continue developing their argument that an anxious and aristocratic Slave Power controlled the US government.

By the end of January 1842, the “select committee” had launched an antislavery onslaught that brought the question of Black sailors’ rights into the House. Massachusetts congressmen took turns introducing petitions concerning slavery and related matters. The petitions demanded, among other things, that Congress protect fugitive slaves in the free states, abolish slavery in the District of Columbia or move the US capital, ensure “a republican form of Government” for every state, refuse to admit Florida as a slave state, and, of course, rescind the gag rule. Amid the maelstrom, Adams introduced a petition from “sundry colored seamen and citizens of the United States” seeking relief from “certain vexations” they experienced in ports in the southern United States and in Cuba, where Black sailors also faced arrest and incarceration upon arrival in Havana.6

RESPONDING TO THE Boston merchants’ petition, the House Committee on Commerce produced a report that argued, strongly and unequivocally, that free African Americans were entitled to move at will across American jurisdictions and that the southern-state laws that constrained them were unconstitutional. The report, authored by Robert Winthrop and supported by seven of the nine committee members, drew heavily on Justice William Johnson’s 1823 decision in the Elkison case. It argued that southerners’ treatment of free Black sailors violated the Constitution in three separate ways. Where American-born sailors were concerned, the practice violated the Constitution’s privileges and immunities clause, which held that the “citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” Where it involved sailors from nations with which the United States had treaty agreements, it infringed on Congress’s treaty-making power. And finally, it violated Congress’s power over interstate and international commerce. It was “monstrous,” the committee argued, that people charged with no crime could be seized, incarcerated, and denied legal processes to determine their guilt or innocence—and that they could be whipped or even sold into slavery. States possessed significant powers to make their own “police regulations,” but those powers could “never be permitted” to violate citizens’ “constitutional privileges” or to render entire classes of people s...

The constitutional problem was federalism itself and the Tenth Amendment principle that the states (or “the people”) retained all powers not delegated to the federal government or prohibited to the states. This system offered few opportunities for federal oversight over how state governments managed their own populations. There was no constitutional guarantee that all people living in the United States would be free, or that all free people would enjoy even the most basic rights to personal liberty or due process of law.

After amending its charter twelve times in the first two decades of nationhood, the country entered a period of constitutional stasis, and the Constitution became a sacred symbol of national cohesion.

Adams abhorred slavery, but he was tired of abolitionists who imagined slaveholders would end it voluntarily or who called on Congress to abolish it in the states. He believed Congress did not have the power to interfere with slavery in the states where it existed, and he felt that slavery would only end by war or constitutional amendment.

Americans across the free states soon added their own calls for repeal of the three-fifths clause. Writing from LaPorte County, Indiana, petitioners suggested that if the ostensible human chattel belonging to white southerners continued to be enumerated, then “the animals belonging to the free states” should likewise be counted. Residents of Ashtabula County, Ohio, objected that “one portion of the United States should have a property representation while the other has not.”

Antislavery congressmen were growing adept at using the tools available to them, as a political minority, to amplify their voices. They continued to fight the gag rule itself, but they also found ways around it. They introduced petitions like those for the protection of Black sailors and for the repeal of the three-fifths clause, ensuring that they were sent to committees. They knew they could count on antislavery activists across the free states to support their efforts with petitions of their own. Their work generated reports that they could send back out to constituents. Their abrasive tactics and grandstanding elicited coverage in the press, as did the outsize reactions they provoked from slave-state representatives. The House was not going to pass favorable legislation on these issues, to say nothing of the Senate. But through these other means, men such as Adams and Giddings delivered the struggle against slavery, and for racial equality in civil rights, into the heart of the federal government.

The South Carolina General Assembly next passed a law designed to make it even harder for unjustly imprisoned Black sailors to get a hearing in court by denying them access to the writ of habeas corpus. Across the slave states, free Black people hoping to demonstrate that they were being illegally imprisoned frequently used habeas corpus to force an investigation into the reasons for their incarceration. Access to this process was widely considered a common-law privilege to which all people were entitled. South Carolina now rejected common-law tradition by denying even this basic right to African Americans.

Decades later, Henry Wilson, a political veteran from Massachusetts, wrote a multivolume history of the Civil War era in which he devoted an entire chapter to the struggle to defend the rights of free Black sailors in southern ports. Wilson was in the Massachusetts statehouse during the tumultuous 1840s, having first been elected to office as a Whig in 1840. A staunch opponent of slavery and racial discrimination, he worked for repeal of the state’s law banning interracial marriage and battled racial discrimination aboard railroads and in public schools. Looking back decades later, he recalled the sense of frustration in Massachusetts after Hoar’s and Hubbard’s missions had failed. The state’s “colored citizens, guilty of no crime, were still doomed, though in the pursuit of their lawful avocations, to arrests, imprisonments, fines, and, for a second offence, to be sold at public sale as slaves,” he wrote.

Southern policies, Wilson added, were plainly “in violation” of the Constitution’s privileges and immunities clause, and the “injustice” meted out to Black sailors continued until the Civil War. All the while, the people of Massachusetts felt humiliated, “powerless either to maintain the rights guaranteed by the Constitution, which she felt herself bound to support, or to vindicate her co-equality among her sister States.”

The Liberty Party, which formed at the end of the 1830s, attracted a relatively small number of voters, most of them committed abolitionists, but it drove questions of slavery and racial equality into the center of northern party politics. The third-party movement grew between 1845 and 1848, as Congress, after years of deliberation, decided to annex the slaveholding Republic of Texas and then went to war with Mexico to protect its claim.

Similar patterns were evident across the Old Northwest states, but only in Ohio was the movement strong enough—and the Whigs and Democrats closely enough matched—to make repeal possible. Many of the architects of Reconstruction got their start in the antislavery politics of this era. Men such as John Hale, Henry Wilson, Charles Sumner, Joshua Giddings, and William Seward—whether they joined an antislavery third party or not—were in close discussion in these years.

In the spring of 1841, two court decisions that reinforced African Americans’ rights in Ohio exacerbated existing tensions in the city. The case of State v. Farr involved seventeen Ohioans whom a lower court had found guilty of riot for encouraging the escape of a group of enslaved people in transit from Virginia to Missouri. The Ohio Supreme Court overturned their convictions on a technicality, but the chief judge, in announcing the decision, declared that a slave “became free when brought to this State by his master.” Around the same time, the Court of Common Pleas of Hamilton County (which encompassed Cincinnati) insisted that in Ohio, “liberty is the rule, involuntary servitude the exception.” Both decisions affirmed the “free soil” principle—that is, the idea that no one could be claimed as a slave in a place where slavery did not exist in law.

On Tuesday, August 31, 1841, a fight between Irish and Black workers touched off days of sporadic violence, and on Friday of that week, white residents carried out an organized onslaught against the Black community. One white observer estimated that some two thousand white residents took to the streets as the mob set upon an African American neighborhood. Black residents fired guns in self-defense and the crowd retreated, but then it returned with increased fury. White rioters planted a cannon in a major thoroughfare and fired it three times “among the negroes,” causing chaos and terror. To quell the uprising, a Saturday meeting of white “citizens” and city officials resolved to disarm the Black population and enforce the 1807 black law as well as the 1793 federal Fugitive Slave Act. The meeting, led by the mayor, empowered the militia and the city police to arrest African Americans at will. Authorities grabbed more than three hundred people, and crowds continued to threaten the prisoners’ safety even after they arrived at the city jail. The mob remained on the offensive that night, charging into the office of the Philanthropist and throwing the printing press into the river before continuing on to destroy Black-owned properties and assault Black residents. The next day, a Sunday, Governor Thomas Corwin arrived in the city. The mob’s energies waned as duly constituted authorities took charge. The Black prisoners were required either to prove their “nativity” in Ohio, show ...