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

by Kate Masur

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...