i

Birthright Citizens

Birthright Citizens tells how African American activists transformed

the terms of citizenship for all Americans. Before the Civil War, col-
onization schemes and raced-based laws threatened to deport former
slaves born in United States. Birthright Citizens recovers the story of
how African American activists remade national belonging through
battles in legislatures, conventions, and courthouses. They faced for-
midable opposition, most notoriously from the US Supreme Court
decision in Dred Scott. Still, Martha Jones explains, no single case
defined their status. Former slaves studied law, secured allies, and
conducted themselves like citizens, establishing their status through
local, everyday claims. All along they argued that birth guaranteed
their rights. With fresh archival sources and an ambitious reframing of
constitutional lawmaking before the Civil War, Jones shows how, when
the Fourteenth Amendment constitutionalized the birthright principle,
black Americans’ aspirations were realized.

Martha S. Jones is the Society of Black Alumni Presidential Professor

and Professor of History at Johns Hopkins University. She was for-
merly a Presidential Bicentennial Professor at the University of
Michigan, and was a founding director of the Michigan Law School
Program in Race, Law & History. She is the author of All Bound Up
Together: The Woman Question in African American Public Culture,
1830–1900 (2007) and coeditor of Toward an Intellectual History of
Black Women (2015).
ii

See the Studies in Legal History series website at

http://studiesinlegalhistory.org/

Studies in Legal History

EDITORS

Sarah Barringer Gordon, University of Pennsylvania

Holly Brewer, University of Maryland, College Park
Michael Lobban, London School of Economics and Political Science
Reuel Schiller, University of California, Hastings College of the Law

Other books in the series:

Cynthia Nicoletti, Secession on Trial: The Treason Prosecution of
Jefferson Davis
Edward James Kolla, Sovereignty, International Law, and the French
Revolution
Assaf Likhovski, Tax Law and Social Norms in Mandatory Palestine
and Israel
Robert W. Gordon, Taming the Past: Essays on Law and History and
History in Law
Paul Garfinkel, Criminal Law in Liberal and Fascist Italy
Michelle A. McKinley, Fractional Freedoms: Slavery, Intimacy, and
Legal Mobilization in Colonial Lima, 1600–1700
Mitra Sharafi, Law and Identity in Colonial South Asia: Parsi Legal
Culture, 1772–1947
Karen M. Tani, States of Dependency: Welfare, Rights, and American
Governance, 1935–1972
Stefan Jurasinski, The Old English Penitentials and Anglo-Saxon Law
Felice Batlan, Women and Justice for the Poor: A History of Legal Aid,
1863–1945
Sophia Z. Lee, The Workplace Constitution from the New Deal to the
New Right
Michael A. Livingston, The Fascists and the Jews of Italy: Mussolini’s
Race Laws, 1938–1943
iii

Birthright Citizens
A History of Race and Rights in
Antebellum America

MARTHA S. JONES
Johns Hopkins University
iv

University Printing House, Cambridge CB2 8BS, United Kingdom

One Liberty Plaza, 20th Floor, New York, NY 10006, USA
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre,
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79 Anson Road, #06-04/06, Singapore 079906

Cambridge University Press is part of the University of Cambridge.

It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781316604724
DOI: 10.1017/9781316577165
© Martha S. Jones 2018
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2018
Printed in the United States of America by Sheridan Books, Inc.
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Names: Jones, Martha S., author.
Title: Birthright citizens : a history of race and rights in antebellum America / Martha S. Jones.
Description: Cambridge, United Kingdom; New York, NY: Cambridge University Press, [2018] |
Series: Studies in legal history | Includes bibliographical references and index.
Identifiers: LCCN 2018002423| ISBN 9781107150348 (hardback) |
ISBN 9781316604724 (paperback)
Subjects: LCSH: African Americans – Legal status, laws, etc. | African Americans –
Civil rights – History – 19th century. | Citizenship – United States – History – 19th century. |
Race discrimination – Law and legislation – United States – History.
Classification: LCC KF4757.J67 2018 | DDC 342.7308/3–dc23
LC record available at https://lccn.loc.gov/2018002423
ISBN 978-1-107-15034-8 Hardback
ISBN 978-1-316-60472-4 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
v

To Jean Hébrard, and to Baltimore

vi
vii

Contents

List of Illustrations page viii

Preface: First the Streets, Then the Archives ix
Acknowledgments xiii
List of Abbreviations xix

Introduction Rights of Colored Men: Debating Citizenship

in Antebellum America 1
1 Being a Native, and Free Born: Race and Rights in Baltimore 16
2 Threats of Removal: Colonization, Emigration, and the Borders
of Belonging 35
3 Aboard the Constitution: Black Sailors and Citizenship at Sea 50
4 The City Courthouse: Everyday Scenes of Race and Law 59
5 Between the Constitution and the Discipline of the Church:
Making Congregants Citizens 71
6 By Virtue of Unjust Laws: Black Laws as the Performance of Rights 89
7 To Sue and Be Sued: Courthouse Claims and the Contours
of Citizenship 108
8 Confronting Dred Scott: Seeing Citizenship from Baltimore City 128
Conclusion Rehearsals for Reconstruction: New Citizens
in a New Era 146
Epilogue: Monuments to Men 155

Notes 161
Bibliography 221
Index 239

vii
viii

Illustrations

P.1 Home of New York County’s Housing Court page x

I.1 William Yates, Rights of Colored Men 2
1.1 Agents for Freedom’s Journal 17
2.1 The first “colored” convention 36
3.1 Seamen Protection Certificate 51
4.1 Travel permit application for Cornelius Thompson 60
5.1 Baltimore’s Bethel AME Church 72
6.1 Gun Permit Application 90
7.1 Insolvency petition for George Hackett 109
8.1 Docket entries for Hughes v. Jackson 129
C.1 Passport application, Hezekiah Grice 147
E.1 Former site of Chief Justice Roger B. Taney monument 156

viii
ix

Preface
First the Streets, Then the Archives

My thinking about this book began during my years as a public interest lawyer.
Even then, my questions were about race and rights, although my research
was conducted not in the reading rooms of ivied law libraries but in the soot-
covered structures of lower Manhattan’s halls of justice. It was the 1980s,
and a radical legal culture focused on civil rights and the War on Poverty was
being displaced. New social categories drove the dynamics of New York’s trial
courts: the homeless, the deinstitutionalized mentally ill, and people living with
AIDS. Those men and women were also my neighbors, colleagues, and clients.
Our lives and the litigation they generated tested the outer limits of law’s cap-
acity to dispense justice. My job was to press those limits, insisting that even
those relegated to the margins had fundamental rights.
Scores of New York’s public interest lawyers worked in just this way, many
of us coming out of community-based legal services and legal aid programs.
Our expertise was in the gritty fisticuffs of legal culture’s trenches. We inhabited
the lowest courts, venues with ghettoized jurisdictions, such as housing and
family courts. Ours was a practice wrought from a potent mix of constitutional
claims, rules of civil procedure, and gamesmanship. We didn’t always give a
lot of thought to the past, particularly if it didn’t involve a relevant precedent.
History was invoked instrumentally, as a highly selective measure of advocacy.1
Most days, our sights were on the present and the future – winning a case,
reforming the law, and changing the world, or at least a small piece of it.2 Hours
spent in the courthouse meant hours spent observing New York’s dispropor-
tionately black and brown poor people navigate legal culture, often without the
assistance of counsel. From security screenings to the clerk’s counter, and from
lengthy calendar calls to fraught hallway negotiations, they told their stories.
Theirs were everyday problems that rarely rose to the level of high jurispruden-
tial consequence.3 Still, this was where many people encountered law – battling
for heat and hot water, custody and care of their children, or public benefits.

ix
x

x Preface

Figure P.1 Home of New York County’s Housing Court. Manhattan’s Housing Court
is located in the borough’s Civil Court Building, depicted here, at 111 Centre Street.
When originally installed, the chain-link perimeter fence displaced an encampment of
homeless people who had taken up residence against the building’s façade. In 2012,
renovation of the adjacent Collect Pond Park exposed foundation remnants from the
nineteenth-century Tombs. Image courtesy of Martha S. Jones.

In the local courthouse, race met rights in the lives of people that class-
action litigation and appellate courts rarely reached. Still, they were com-
plex proceedings in which interests converged. Individual litigants asserted
claims for personal and familial well-being.4 For judges, opinions penned led
to intellectual distinction, engagements with appellate courts, and expanding
reputations. Lawyers worked toward numerous aims: law and public policy
reform, a larger client base, or an appointment to the bench.5 The social
world was also present. Rent strikers, parents’ associations, and welfare rights
activists viewed court proceedings as an extension of their work in communi-
ties, in legislatures, and in the streets.6
At some moments the courthouse and the social world appeared to collide.
For many months in the late 1980s, I encountered each morning an encamp-
ment of homeless people tucked up against the Housing Court’s south façade –
cardboard boxes, plastic bags, and the detritus of urban life assembled into
shelter.7 I knew about my city’s economy and politics – gentrification and
deinstitutionalization were thrusting thousands of New Yorkers onto the
streets.8 Still, I asked, why here, in a place seemingly far from family, neigh-
borhood, and community services? How had homeless people come to take
shelter in the shadow of the city’s housing court? There was an intimacy on
display: an edifice built to ensure tenants’ rights and safe shelter locked in an
xi

Preface xi

awkward embrace with people who lived beyond the reach of legal rights and
reason.9
I scrutinized constitutions, pored over state and federal statutes, and studied
policy and regulation. Finally, it was history that rendered this scene fully
legible. The Housing Court building, at first glance, appeared to be no more
than one part of an endless grid of modern courthouses and administrative
buildings. It was a monument to transparency and order. Still, as I hurried
to nearby coffee shops for lunch, another landscape came into view. There,
I walked narrow, curved, nineteenth-century streets with names like Mulberry,
Mott, Bayard, and Pell. These were signs of an older neighborhood on top of
which the modern courthouse had been built.
Pre–Civil War America’s most notorious neighborhood was New York’s
Five Points. Irish immigrants lived alongside newly emancipated slaves; anti-
abolitionist riots sometimes targeted black businesses; a burgeoning vice trade
catered to white men of all classes; and complicit, affluent landlords knew
that vice always paid the rent. Charles Dickens in his American Notes derided
the neighborhood’s “squalid streets,” “wretched beds,” “fevered brains,” and
“heaps of negro women,” who forced the “rats to move away in search of
better lodgings.” Dance halls greeted patrons with a gaiety that promised drink,
bawdiness, and intimacy across lines of color and class.10
Nineteenth-century reformers deemed Five Points a place in need of disci-
plining. Reform came about by way of razing the neighborhood, a process that
began in 1838. By the time it was done, a new jail and courthouse building
replaced saloons and brothels: The Tombs.11 By the century’s end all that
remained were a few crooked streets, as law’s edifices dominated the landscape.
Most residents were displaced to the Lower East Side. But some returned.
Poverty and vice were their tickets home, and their new hosts were sheriffs and
judges rather than madams and barkeeps. They returned not to dank basement
rooms but overcrowded jail cells. This crossroads of lower Manhattan – the
Five Points turned courthouse cluster – still pulsed to the beat of violence and
vice. But in The Tombs, cages, locked doors, and the movement of bodies by
jailers and bailiffs regulated such interactions.
By the 1960s, the courthouse neighborhood I would come to know was in
place. Major court reform beckoned another generation of the New York’s
marginalized to Five Points.12 New venues, such as the housing and family
courts, promised due process and justice to the city’s poor and working people.
The old Tombs complex was razed to make way for modern structures with
windows, waiting rooms, and pro se clerks to guide the uninitiated through
legal culture’s maze. Dockets swelled and, with a jurisdiction that stretched
from one end of Manhattan to the other, the Housing Court became one of
the most complex crossroads in New York. Lawyers and court personnel
worked side by side with the city’s black and brown working poor and jobless.
In hallways and anterooms, stories were told and retold.13 The social world
xii

xii Preface

pressed in, and the courthouse pressed back. I still recall the week that metal
detectors were installed.14
But what of the people in the encampment just outside? How had the
homeless come to make their home at the Housing Court? In a historical
sense, they had always been there. Call them Five Points hustlers, inmates of
The Tombs, or litigants making claims to housing rights, New York’s most
marginalized residents had always occupied this place. All the efforts to erase
them were betrayed by the presence of packing boxes, trash bags, and Five
Points’ newest residents, the homeless.
Finally, court administrators installed a six-foot-high chain-link fence
around the building, displacing the homeless encampment. In that act, the
past and the present became entwined in what Joseph Roach has termed
surrogation.15 In such encounters law’s social processes of memory and for-
getting produce culture. Collective, highly selective shared memories are
constructed, in part, by public acts of forgetting or erasure – the renaming of
a courthouse, the razing of a structure, the transfer of a deed, or the termin-
ation of a lease. Roach presses us to see in these acts a long history of law’s
rituals and practices – its theaters of courthouse squares and courtroom
wells. Even as we enact these rituals of forgetting, we retain an imperfectly
deferred sort of memory.
Our work as legal historians is to understand those sites where history’s
unspeakable, inexpressible past still lives. Roach gently chides us to go
beyond the archives, to “spend more time in the streets.” He might very well
have had the image of homeless people at the Housing Court in mind.16
We might cringe, furrow our brow, and avert our gaze from that homeless
encampment. Or we might pause to ask how the sight of human beings
huddled in cardboard boxes is a sign of the past. Then we can return to the
archives, where we learn how the dynamics of race, power, and inequality
have always lived there.
xiii

Acknowledgments

Out my window, just to the south, I can see the near corner of the Baltimore
courthouse. It sits just a few short blocks away from my home. I could not
know when I began this book that I would put on its finishing touches as a
resident of Baltimore. I have long been a historian of this city, having walked
its streets and alleys, scavenged in its cemeteries and historic sites, and gotten
blissfully lost in its archives. But today the rhythms of my daily life play out in
the very place that was a key site for early American struggles over race and
rights. This book is an effort to bring that story to light, to take us beyond
stark narratives about a city’s progress and decline or about journeys from
injustice to justice, to reveal the dynamics of quotidian struggles that in turn
reveal battles that are epic if not eternal. Citizenship – the thorny problem of
who belongs and by what terms – is one such problem.
It is only right that I should now recognize that this book is first and fore-
most dedicated to the city of Baltimore and its people, those living there today,
along with those of 1868. It has always been the streets of today’s city and the
lives that make their way along them that have driven this history. How else
might we understand the twenty-first century’s entrenched indignity, inequality,
and injustice if we do not explore that which is at its root. How might we find
the spirit and the necessity of struggle if we do not know that it has always
been this way. My history of Baltimore offers no easy or sure answers, but it
does affirm that there has always been struggle here. Thank you to this city for
giving me, the lapsed radical lawyer, a place in which to strive like a historian
for the justice that comes from setting aside despair and cynicism and telling a
truth, as best I can.
This book is also dedicated to my husband, historian Jean Hébrard, a con-
stant and true companion on all my journeys, epic and otherwise. Jean has
always supported how my work aims to extend justice to those who have been
historically deprived of making their own record, often violently so. He has

xiii
xiv

xiv Acknowledgments

done those things that only a devoted historian-partner might do: he has made
archive road trips, read draft chapters, and posed new challenges during the
question-and-answer period. Jean has set aside his own demanding projects
time and again to help me push through another barrier, be it the close reading
of a document or the refinement of an insight or interpretation. And now he
too has made Baltimore home, all the while reveling in its complexity and
encouraging me to find my purpose in this place.
I have been accompanied by fellow travelers, writers who also have taken
Baltimore as their subject matter, with the trouble of racism as a central con-
cern. Their work has pushed me to recognize the power of the everyday to
reveal much more than daily happenings. Readers will be most familiar with
the writings of Frederick Douglass, who was awed by the city even before he
laid eyes upon it. Douglass would go on to wring from Baltimore’s structured
injustice a way toward freedom of mind and of body. William Watkins, writing
as “A Colored Baltimorean,” devotedly chronicled events in the antebellum
city, making its life and times a subject relevant to a wide audience. Baptist
minister Noah Davis published a narrative that permitted me to peer inside
the establishment of black religious communities, with all their meaningful
wranglings.
Contemporary authors have kept my thinking focused on the resonances
between Baltimore’s nineteenth-century past and its present. Literary historian
Lawrence Jackson and journalist Ta-Nehisi Coates both have related their
coming-of-age narratives set in Baltimore, teaching us about the city as a setting
for life stories that are epic and even transcendent. What better affirmation
might there be for my enduring sense that in this city’s quotidian happenings
are events of great consequence? The Baltimore Sun’s Justin Fenton offered me
insight into life on the ground in Baltimore, long before I called the city home.
His coverage of legal culture writ large, from the courthouse to the streets, is
a model for a historian wrestling with how to craft a relationship between
the two.
The lessons of Sherrilyn Ifill’s book On the Courthouse Lawn have never
been far from my thinking. History matters, and Ifill explains how one legacy
of lynching in Maryland has been the suppression of African American voting
across generations. History matters because the effects of past injustices endure
through memory, lore, and fragmentary retellings. Today, Ifill continues to
guide my understanding of how racism perverts justice as she fills the shoes
of another towering Baltimorean, Thurgood Marshall, in her role as president
and director-counsel of the NAACP Legal Defense and Education Fund. Tiya
Miles offered me a most moving formulation of how historical writing fits with
the work of such lawyers. Beyond explaining the past, our studies are their
own acts of justice, the correction of a historical record that otherwise left too
much distorted, unsaid, and shrouded in myth.
This book began as an essay, one dedicated to my advisor, mentor, and
friend, Eric Foner. Eric has always quietly believed in my capacity to tell
xv

Acknowledgments xv

law’s stories with a grounding in the social and political history of black
Americans. I presented work from this book in 2004 at a celebration of Eric’s
career. When it appeared in print three years later, a rereading persuaded me
that Baltimore and its rich archives had more to offer those of us longing to
understand better the history of race, rights, and citizenship. Eric has been
a devoted teacher through all our years together, one of the best fortunes of
my professional life.
This book has benefited immensely from exchanges at conferences,
workshops, and seminars in the United State and Europe. Thank you to the
hosts, commentators, and participants at the American Bar Foundation;
American Historical Association; Association for the Study of African American
Life and History; American Society for Legal History; Baltimore Bar Library;
Brown University Center for the Study of Slavery and Justice; Le Centre
International de Recherches sur les Esclavages et les Post-esclavages (CIRESC);
City University of New York (CUNY) Graduate Center; Duke University
School of Law; École des Hautes Études en Sciences Sociale; Emory University
Department of History; Henry Ford Museum; Johns Hopkins University
Department of History; Law and Society Association; National Humanities
Center; New York University Department of History; Organization of
American Historians; Penn State University Department of History; Princeton
University Department of Religion and Center for African American Studies;
Rice University Department of History; Rutgers-Newark Law School; Sorbonne
Paris Cité Project on Writing History from the Margins; Statuts, “Race” et
Couleurs dans l’Atlantique de l’Antiquité à nos jours (STARACO); Triangle
Legal History Seminar; United States Attorney’s Office for the Eastern District
of Michigan; University of Detroit–Mercy Department of History; University
of Maryland Center for Global Migration Studies; University of Miami Law
School; University of Michigan Eisenberg Institute for Historical Studies,
Law School, and Legal History Workshop; University of North Carolina Law
School; University of Pennsylvania Law School, History Department, and
McNeil Center for Early American Studies; University of Southern California
Law School and Department of History; University of Virginia Law School;
Washington University in Saint Louis School of Law; University of Wisconsin
Law School; and Yale University.
I came to legal history late in my training, and despite having spent lots
of time in local courthouses, I needed a new tool kit with which to tackle
the archives. From the outset, the work of Ariela Gross captured the spirit
of what I hoped to say, and still today I turn to her ideas for inspiration and
guidance. She does not recall the first time we met, but I do. And from that
day, Ariela has been a teacher, mentor, model, and friend. Her insistence on
scholarly excellence along with a generousness of spirit have transformed
my work, while her unflinching commitment to justice has set a high bar
for the work of writing history. Kate Masur has been my most generous and
most challenging reader, and a model of fierce collegiality and friendship.
xvi

xvi Acknowledgments

Kate shared her own important work on the history of the antebellum cul-
ture of rights to lend a critical eye to this book, and this work is much better
for it.
Many of the ideas here were developed in an exacting community of legal
historians. At the University of Michigan Law School, Susanna Blumenthal,
Tom Green, Bill Novak, and Rebecca Scott welcomed me, often seeing the
best in my work before I did. In the circles of the American Society for Legal
History I found opportunities to test my ideas and make them speak to broader
audiences. ASLH also introduced me to the remarkable Sarah Barringer
Gordon, a devoted mentor, sharp interlocutor, and an unparalleled series
editor. To Sally I owe a debt for her commitment to this book that cannot be
easily repaid. I promise to try. My legal history community has also included
the generous collaborators associated with the Legal History Consortium, in
particular Jane Dailey, Sally Gordon, Dan Hamilton, Bill Novak, Richard Ross,
and Barbara Welke.
Friends who are also scholars have supported this work and made it better.
Thank you to Mia Bay, Rabia Belt, Ira Berlin, Mary Frances Berry, Al Brophy,
Kathleen Canning, Chris Capozzola, John Carson, Nathan Connolly, Myriam
Cottias, Adrienne Davis, Alejandro de la Fuente, Erica Armstrong Dunbar,
Laura Edwards, Sam Erman, Dan Ernst, Ada Ferrer, Tony Frazier, François
Furstenberg, Kevin Gaines, Thavolia Glymph, Risa Goluboff, Dena Goodman,
Annette Gordon-Reed, Sally Greene, Chuck Grench, Steven Hahn, Leslie Harris,
Nancy Hewitt, Evelyn Brooks Higginbotham, Tera Hunter, Steve Kantrowitz,
Kelly Kennington, Jeff Kerr-Ritchie, Tiya Miles, Jessica Millward, Julian
Mortenson, Kunal Parker, Dylan Penningroth, Richard Primus, Patricia Reid,
Hannah Rosen, Daryl Michael Scott, Mitra Sharafi, Manisha Sinha, Rogers
Smith, Carroll Smith-Rosenberg, Miranda Spieler, Chris Tomlins, Penny Von
Eschen, François Weil, Judith Weisenfeld, Barbara Welke, Jonathan Wells, and
Diana Williams. I was very fortunate to write in the company of a remarkable
writing group, the #GraftonLine, and I am immensely grateful for their support.
Thank you also to my editor, Debbie Gershenowitz, and the anonymous readers
at Cambridge University Press. All shortcomings in the book are mine alone.
The archives at the heart of this book are rich and generous, if also too
often stretched financially. Thank you to the staffs and supporters of the
Baltimore Bar Library, the Baltimore City Archives, the Library of Congress,
the Maryland Historical Society, the Maryland State Archives, the National
Archives and Records Administration, and the William L. Clements Library.
I received financial support from the American Council of Learned Societies,
the American Historical Association, Johns Hopkins University, the National
Constitution Center, the National Humanities Center, and the University of
Michigan. Students with the University of Michigan Undergraduate Research
Opportunity Program and I thank Anna Clark, Alison Eitman, Avery Johnson,
Alexandra Ladwig, Keegan McDonald, Anya Parfenoff, Skye Payne, and Brie
Starks for their research assistance.
xvii

Acknowledgments xvii

Family and friends have lived with my stories of Baltimore cheerfully,

for a long time. Thank you to my community: Susanne Baer, Emily Clark,
Kelly Cunningham, Laurent Dubois, Alvia Golden, Clayton Lewis, Angela
Dillard, Lynda Kaplan, Amanda Krugliak, Deborah Labelle, Catherine Minds,
Kary Moss, Michele Norris, Marianetta Porter, Richard Rabinowitz, Daria
Roithmayr, Michelle Schreiber, and Meryl Schwartz. My families Jones and
Hébrard are sources of inspiration and joy. Special thanks to my brother Paul
Jones and his wife, Heidi, for their love, support, and our shared life. To my
mother-in-law, Blanche “Mimi” Hébrard, merci de prendre si affectueusement
soin de moi et de mon travail.
In 1845, Frederick Douglass described his feelings upon seeing Baltimore
for the first time:
“I had the strongest desire to see Baltimore. Cousin Tom, though not fluent in speech,
had inspired me with that desire by his eloquent description of the place. I could never
point out any thing at the Great House, no matter how beautiful or powerful, but that
he had seen something at Baltimore far exceeding, both in beauty and strength, the
object which I pointed out to him.”

I think I know that of which Douglass wrote. Thank you, Baltimore, for your
beauty and strength.
xvii
xix

Abbreviations

The following abbreviations are used for archives frequently referenced in the
endnotes.

BCA Baltimore City Archives, Baltimore, MD

MHS Maryland Historical Society, Baltimore, MD
MSA Maryland State Archives, Annapolis, MD
NARA National Archives and Records Administration, Washington, DC

xix
xx
1

Introduction
Rights of Colored Men: Debating Citizenship
in Antebellum America

The title of William Yates’s 1838 treatise, Rights of Colored Men, aptly
captures the subject of this book. The nineteenth-century Americans for whom
Yates wrote were fascinated by a juridical puzzle: Not slaves nor aliens nor the
equals of free white men, who were former slaves and their descendants before
the law?
None were more interested in this question than black Americans them-
selves, and Birthright Citizens takes up their point of view to tell the history
of race and rights in the antebellum United States. The pressures brought on
by so-called black laws and colonization schemes, especially a radical strain,
explain why free people of color feared their forced removal from the United
States. In response, they claimed an unassailable belonging, one grounded in
birthright citizenship. No legal text expressly provided for such, but their ideas
anticipated the terms of the Fourteenth Amendment. Set in Baltimore, a place
between North, South, and the Atlantic world, this book traces the scenes and
the debates through which black Americans developed ideas about citizenship
and claims to the rights that citizens enjoyed. Along the way they engaged with
legislators, judges, and law’s everyday administrators. From the local court-
house to the chambers of high courts, the rights of colored men came to define
citizenship for the nation as a whole.
Yates authored the very first legal treatise on the rights of free black
Americans.1 It was 1838 when Rights of Colored Men to Suffrage, Citizenship,
and Trial by Jury was published in Philadelphia.2 He was not one of ante-
bellum America’s highly regarded legal minds. Some say he read law for a time,
although there is no evidence he was admitted to the bar. Instead, Yates’s career
began with a short-lived stint as a newspaper publisher in his hometown of
Troy, New York.3 His bona fides on the subject of race and citizenship were
best established during his years as an agent for the American Anti-Slavery
Society.4 While many abolitionists maintained a self-conscious distance from

1
2

Figure I.1 William Yates, Rights of Colored Men. American Anti-Slavery Society
agent William Yates made a case for the status of black Americans as citizens, consoli-
dating arguments made in conventions, legislatures, and courtrooms. The result, Rights
of Colored Men, was the first legal treatise on the subject. Image courtesy of the William
L. Clements Library.
3

Introduction 3

free black communities, Yates centered his work there.5 The oppression of free
people of color was a companion to slavery, in Yates’s view, with antislavery
work necessarily extending into questions of free people’s status.6 Penning
Rights of Colored Men was the pinnacle of this mission.
Yates placed a powerful instrument of authority in the hands of free African
Americans and their allies. The antebellum legal treatise was a key tool in
the standardization and dissemination of legal knowledge and was typically
devoted to the comprehensive synthesis of a single branch of law.7 By the late
1830s, Yates was following on the success of James Kent’s Commentaries and
Joseph Story’s treatise series.8 The genre had come to be associated with the
concepts of law as scientific knowledge, legal education as systematic, and the
profession as respectable.9 Yates successfully adopted legal culture’s own tool
to such a degree that readers from the nineteenth century until today have
regarded him as an authority on free black legal status. But Yates’s text was
also a work of advocacy.10 Rights of Colored Men received prominent notices
in the black and abolitionist press and could be purchased at local antislavery
society offices.11 As a result, the work served as a probing legal treatise that
fueled activist arguments.12
Yates provides a window onto the position that some activists – black and
white – took on race and citizenship at the end of the 1830s. Law was an
instrument of change, and Yates forthrightly explained his objective: to under-
mine prejudice against color. Racism had led to “legal disability”: exclusion
from militia service, naturalization, suffrage, public schooling, ownership of
real property, office holding, and courtroom testimony. Yates was especially
unsettled by the disfranchisement of free black men in New Jersey, New York,
Connecticut, and, more recently, Pennsylvania. Assembling evidence from legal
culture, he believed, would help establish the rights and citizenship of free
black people.13
Yates began with a story of the nation’s origins. The establishment of the
United States, he said, had been at the outset a revolutionary, republican, and
enlightened undertaking that was untainted by racism or distinctions among
and between races. This had been possible in the wake of the American
Revolution because the founding generation knew firsthand the contributions
black people had made to independence, through military service and labor.
American law had originally been color-blind, as evidenced by the absence
of racial distinctions in founding documents, such as the federal and state
constitutions.14
Change came in the early nineteenth century, at the fault line between
generations. A forgetting occurred, Yates posited. Lawmakers of the early
republic did not know how black people had contributed to the nation’s
founding and hence were entitled to the privileges and immunities of citizens.
In this sense, Yates’s aim was partly to restore that past to the nation’s political
and legal memory. To achieve this, he compiled a history of lawmakers and
their deliberations in which he found the development of antiblack prejudice
4

4 Birthright Citizens

in courts, constitutional conventions, and legislatures. He followed the profes-

sional lives of men whose work included roles from low-level administrator
to convention delegate and judge. Their ideas about free black people moved
with them.
Most powerful was Yates’s argument about how law, though suffering from
amnesia, could be made right. The same instruments that had woven racism
into the nation’s legal fabric – courts, conventions, and legislatures – could now
be used to recraft it. Legal culture was also capable of reform, of itself and of
the status of black Americans. With the restoration of revolutionary-era mem-
ories would come the reestablishment of racial equality. Lawmakers needed
only to recall the past to restore racial justice, and Yates’s treatise aimed to be
an agent of that remembering.15
Looking back, it is easy to conclude that Yates’s ideas were naïve. His faith
in the power of historical knowledge, on the one hand, and the malleability of
antiblack racism, on the other, seems like a misreading, given what we know
of the rise of anti-free Negro thought and legislation in the 1840s and 1850s.
But from Yates’s point of view in 1838, he had prominent lawmakers who were
sympathetic to his view. He built his arguments on the published opinions of
judges, legislators, and constitutional framers who also advocated that free
black Americans had rights. Yates amplified their ideas, giving them visibility
and volume, all the while hoping he might help convert others to an affirmative
position on black citizenship.16
Yates made a bold claim: Free black Americans could not be removed –
banished, excluded, or colonized – from the borders of the individual states or
the United States. With this he confronted head on the thorniest legal question
of the antebellum period: Were free African Americans citizens with a claim to
place? His answer was yes. Citizenship, he wrote, was distinct from political
rights. It “strikes deeper” than, for example, the right to vote.17 Denied the
status of citizens, free black people were not secure in their “life, liberty, and
property,” or what he termed “personal rights.”18 At its core, citizenship was
a claim to place, to enter and remain within the nation’s borders. Citizenship,
Yates believed, would protect free black people from expulsion.19
Yates adopted his most authoritative tone when discussing citizenship.
The sections of his treatise on the vote and jury service leaned heavily on the
published words of lawmakers. His discussion of citizenship was original, a
structured synthesis that brought together a close reading of the Constitution
with congressional debates and learned commentary. He began with four
broad principles. First, no authority countered the view that free people of
color were citizens, as contemplated by article 4, section 2, clause 1 of the
Constitution. They were thus entitled to the “privileges and immunities of
citizens.” Nothing in the common law of England, the principles of the British
constitution, or the Declaration of Independence recognized a distinction
of color. Second, public-law jurisprudence recognized two classifications of
persons: citizens and aliens. All those born within a jurisdiction were citizens
5

Introduction 5

with an allegiance to the state that demanded both obedience and protec-
tion. Third, to be deprived of the vote did not mark one as a noncitizen;
nonpropertied men, women, and children were citizens even though in some
jurisdictions ineligible to vote. Fourth and finally, Yates rejected any analogy
between the status of free black people and that of Indians or slaves. The
legal position of Indians was murky, though largely, he thought, governed by
treaty and related law. Slaves were property and categorically not citizens.20
Yates provided case studies. Congress’s 1820 debate over Missouri’s admis-
sion to the union had turned in part on whether the new state could bar
free black people from entering the state without violating the United States
Constitution’s guarantee of privileges and immunities. Then Major-General
Andrew Jackson’s proclamations to the “free colored inhabitants of Louisiana”
during the War of 1812 which implied that soldiers of color were citizens like
their “white fellow-citizens.” In the example of Prudence Crandall, whose
Connecticut school was said to have operated in violation of the state’s black
laws by admitting children of color from outside the state, the citizenship of
free persons of color had been a “turning hinge.” Crandall’s attorneys argued
that such a distinction denied free black children, as citizens, their guaranteed
privileges and immunities.21
Rights of Colored Men remained an influential text throughout the ante-
bellum years.22 Other antislavery and African American activists would come
to publish their own arguments about free black men and women as citizens.
But few would adopt a form more cloaked in legal authority than that of
the treatise. Yates’s text fueled understandings of the role that law might play
in claims for free black rights. It was also an example of how formal law-
making by white men was connected to the vernacular legal culture of free
black communities. Yates made a record that suggests how close to agreement
highly placed lawmakers and free African American activists could be in their
thinking.23
Yates and his treatise were forgotten after the Civil War, as was the threat
of removal that so concerned him. The Civil Rights Act of 1866 and then the
Fourteenth Amendment made clear that those who were US-born were citi-
zens, whether they were formerly free or formerly enslaved. Persons born in
the United States were citizens of the United States and of the individual state
in which they resided.24 The Civil Rights Act underscored that birthright was
independent of “race, color, or previous condition of slavery or involuntary
servitude.”25 It was a momentous turn of events by every measure. Birthright
citizenship, a principle that African Americans had long argued was embedded
in the Constitution, was affirmed. Yates’s treatise survived but only in a literal
sense, as a bound text tucked away on shelves that lined parlors and libraries.26
One century later, Yates and Rights of Colored Men were rediscovered. In
the modern civil rights era, Yates’s treatise took on renewed relevance as the
United States again confronted the dilemma of African American citizenship.
Nineteenth-century ideas served as evidence of an origins story about how
6

6 Birthright Citizens

the black freedom struggle had begun in the decades before the Civil War.
Historians of race and rights dusted off the past of early African American and
antislavery activism. They found William Yates.
Charles Wesley was the first historian to recover Yates. Wesley was a pro-
lific scholar, a minister in the African Methodist Episcopal (AME) Church, and
leader of the Association for the Study of Negro Life and History (ASNLH),
known today the Association for the Study of African-American Life and
History, or ASALH. Wesley was trained at Fisk and Yale, and received his PhD
from Harvard in 1925. His scholarly energy was nearly boundless, and he
published more than twenty books and many more articles, including survey-
style works on black history. Wesley’s subject matter was sweeping, from
labor to the Civil War, citizenship, and Reconstruction. Within the ASNLH,
Wesley served as director of research and publications, president, and execu-
tive director.27
Wesley set out to document how black thinkers had forged a long tradition
of historical writing. The occasion was the 1963 ASNLH presidential address.
The practice, Wesley explained, had been “associated with the building of
nationalism and group pride.” His starting point was comparative. Irish and
Jewish people, like black Americans, had turned to historical writing to pro-
vide facts and combat oppression. Wesley’s “Creating and Maintaining an
Historical Tradition” was a call to arms that urged ASNLH members to pursue
historical scholarship and teaching with political commitment and insight.
Wesley placed historical writing during the civil rights era on a continuum that
dated back to the earliest decades of the nineteenth century. To write history in
the 1960s was, for Wesley, to continue that critical work.28
Wesley turned to some of the first works by black historians to make his case.
Their earliest efforts had not been academic, at least not by twentieth-century
standards. Black history had been told, in Wesley’s view, before the publica-
tion of tracts and texts. African American orators were the first historians.
Addresses delivered by men such as William Hamilton, Alexander Crummell,
and Henry Highland Garnet “were evidence of the beginnings of the creation
of an heroic tradition for Negro-Americans.” A written tradition by “Negro
Americans” then emerged, with writers including Robert B. Lewis, author of
Light and Truth (1836); James W. C. Pennington, author of the Text Book of
the Origin and History of the Colored People (1841); William Cooper Nell,
author of Services of Colored Americans, in the Wars of 1776 and 1812 (1851);
and William Wells Brown, author of The Black Man: His Antecedents, His
Genius, and His Achievements (1863) at the fore.29 The first of these “Negro
Historians” to be singled out by Wesley was William Yates, author of Rights of
Colored Men. Yates had been a pioneering black historian.
Other historians also took notice of Yates, though they did not see him
as Wesley had. John Myers included Yates in his study of American Anti-
Slavery Society agents and their attention to the circumstances of free African
Americans. Myers explained how the society had been generally ambivalent
7

Introduction 7

about working with free people in the North. However, by the mid-1830s
a small cadre of agents was assigned that task, William Yates among them.
Myers’s larger aim was to demonstrate this change in terms of antislavery
activism.30
Yates was, Myers explained, “first secretary of the Troy Anti-Slavery
Society,” representing that organization at national anniversaries in 1835 and
1836, and secretary and nominating committee member of the New York State
Anti-Slavery Society. Myers documented how men such as Yates worked: They
“gained the confidence of the colored people of Troy and were acceptable as
agents to the Negro leaders of the country.” Myers did not directly address the
matter of Yates’s racial identity, and assumed that he had been a white man
who worked closely with black Americans.31
Had Yates been black or white? As other historians varyingly relied on
Wesley and Myers, confusion resulted. In some cases, it appeared not to matter.
Yates’s identity was no more than an embellishment. For example, when his-
torian Harold Hancock published Yates’s “Letter of 1837,” a report about free
black people in Delaware, he explained:

William Yates of Troy, New York, was a Negro minister who was one of two persons
employed by the American Anti-Slavery Society in the fall of 1836 to assist Negroes
in the larger towns east of the Appalachian Mountains. His headquarters were near
New York City. In the middle of June 1837, he attended two conventions in Philadelphia
and took the opportunity to visit a slave state, Delaware, for the first time. Most of his
18-month appointment was spent in gathering data for the Rights of Colored Men.32

Hancock appears to have read both Wesley and Myers and then developed a
composite biography that wedded Wesley’s view of Yates as black with Myers’s
explanation of his work as an antislavery agent. Could both be correct?
There was only one author of Rights of Colored Men, though the confu-
sion is understandable. The evidence gleaned from early American Anti-Slavery
Society reports supports Myers’s conclusion that Yates was a white abolitionist,
a memorable one for his having worked with black people in the North.33
Indeed, the mix-up about Yates’s identity stems in part from his participation
in black political and religious gatherings, and his faithful reportage on those
meetings for the black press. Black commentators admired Yates and promoted
his treatise.34 For example, when in October 1838 Yates attended a meeting
of the New York Association for the Political Elevation and Improvement of
the People of Color, he spoke from his book on “the legal disabilities of the
colored man.” But Yates was not a delegate.35 Never in the writings of Yates
does the pronoun usage shift – for example, from “them” and “theirs” to “us”
and “ours” – in a way that would include Yates among black Americans.36
Wesley’s misapprehension of this unusual antislavery agent is understandable,
but Myers was correct.
I was destined to return to Rights of Colored Men in researching this book.
It is a singular text: the only nineteenth-century treatise devoted exclusively
8

8 Birthright Citizens

to the status of free African Americans. As I began my research, I dug deeper

into Yates’s story and initially found little more than Myers had a half century
earlier. Yates first appears in 1831, founding an upstate New York newspaper,
the Troy Press.37 He was an antislavery agent in 1833 and can be found among
the delegates to many local and national conventions.38 Yates conducted
research for his treatise, visiting libraries and black communities between
1835 and 1837.39 With the publication of Rights of Colored Men, he became
a familiar figure in African American religious and political gatherings.40 And
then Yates receded from public life.41
Poring over newspapers, I came upon the unexpected. There was William
Yates in the pages of the black-edited San Francisco Elevator. A review of
William Wells Brown’s 1863 book, The Black Man, bore his name.42 This
makes sense, I thought. Yates had migrated west and was still engaged with
print culture and black politics. I read on, observing the review’s wide-ranging
familiarity with African American political culture. Yates critiqued Brown
for examining too narrow a slice of black leadership. There, I thought, was
a reflection of Yates’s knowledge gained through years spent in free-black
communities.
I continued my search with a working hypothesis in mind. Yates had
migrated to California, as had many from the East after 1848. He had remained
connected to black politics, and in that city he would have found many familiar
figures – black activists who had settled in San Francisco and Sacramento from
New York and Philadelphia.43 Yates had maintained an active interest in the
rights of free black people and, in his characteristic way, was so deeply involved
that he even wrote for the black press. It was a good hypothesis. But it could
not have been more wrong.
My error was rooted in a simple fact. There had been two men named
William Yates. The Yates who penned the Elevator review and the one who
authored Rights of Colored Men were not one and the same. Still, their stories
had parallels. Both had been involved in antebellum black politics and devoted
their public lives to securing the rights of free people of color. Still, they could
have not been more different. William Yates, the treatise writer, had been a
gentleman of some means, enough to sustain himself as a volunteer for the
antislavery movement. His institutional home had been the American Anti-
Slavery Society, in which black men were marginalized in the 1830s. And he
had been white.
William Yates the reviewer for the Elevator was born a slave and had an
equally important story to tell about the history of race and rights. From
Virginia, Yates purchased his freedom, migrated to Washington, DC, and
began working as a porter at the United States Supreme Court.44 He had a
legal education, the kind acquired through the negotiations that secured his
liberty and through observing the goings-on in the nation’s high court. Yates
understood the law of slavery and of freedom. His labors earned him enough
to secure the manumission of his wife, Emeliner, and their three children.45
9

Introduction 9

In the early 1850s Yates had moved to San Francisco, where he became a
public figure.46
A columnist for the African American-owned news weekly the Elevator,
writing under the pen name “Amigo,” Yates’s ideas circulated widely.47 Yates
led California’s black political conventions as a man “possessed of great nat-
ural strength and ability” whose reputation was so widespread that “during
the last days of a legislative debate, a state assemblyman would rise to support
the right of black testimony by mentioning the name of William Yates as a man
whose testimony would be as valid as any man’s.”48 The former slave made
his mark on the very terrain that the treatise writer had once occupied: in
newspapers and at black political conventions. He was also a man of action.
Yates led a mid-1850s challenge against a state law that barred black testi-
mony against the interests of white people. In 1865 he headed the black state
convention’s committee on voting rights. His focus remained steadily fixed on
the contours of black citizenship.
The discovery of a second William Yates is more than coincidence. It is an
affirmation of the very premise of this book. Black Americans can serve as
our guides through a history of race and rights. Never just objects of judicial,
legislative, or antislavery thought, they are what drove lawmakers to refine
their thinking about citizenship. On the necessity of debating birthright citizen-
ship, black Americans forced the issue. Men like San Francisco’s William Yates
wrote for newspapers, engaged in the vernacular study of law, debated in polit-
ical conventions, and conducted themselves like rights-bearing individuals, all
the while pressing for a radical redefinition of citizenship.
This study is indebted to happenstance and what I learned when the search
for one William Yates led to the discovery of another. It was Yates the former
slave who pointed me back to the free men and women of Baltimore, Maryland,
where his ideas about race and rights went to the core of their struggles for
belonging.
Legal historians have examined race and citizenship from three perspectives.
Close reading of the antebellum era’s major treatises suggests that generally
citizenship was not a major subject of legal commentary. To the degree the
concept was relevant, it guaranteed few rights or privileges, with neither voting
rights nor property ownership, for example, dependent on citizenship.49 When
examining high court decisions, historians have relied on the 1857 case of Scott
v. Sandford to explain the legal status of black Americans. This view defers to
the opinion of Chief Justice Roger Taney, who held that no African American,
enslaved or free, was a citizen of the United States.50 Still others have looked
for the origins of African American citizenship in the era of Reconstruction,
with the ratification of the Fourteenth Amendment’s birthright citizenship pro-
vision. This view credits federal officials and Congress members with having
devised and set in place the principle of jus soli in American law.51
Birthright Citizens confronts high court opinions and legislative edicts with
the ideas of former slaves and their descendants.52 They too were students of
10

10 Birthright Citizens

law, though of a less orthodox sort, gleaning ideas from the world around
them. Their ideas about the terms of national belonging were expressed in
newspapers and political conventions.53 Their actions – petitioning, litigating,
and actions in the streets – are a record of how people with limited access to
legal authority won rights by acting like rights-bearing people. They secured
citizenship by comporting themselves like citizens.54 They developed legal con-
sciousness – an understanding of their lives through law – and sought badges
of citizenship.55 This is not, however, a story of unbridled agency in a triumph-
alist sense.56 Inhabiting rights and comporting themselves like citizens only
sometimes secured justice.57 Just as often, just ends remained elusive.
From shardlike courthouse records – dockets, minute books, and case
files – this study pieces together the everyday ways in which African Americans
approached rights and citizenship. Traces in the court archive do not speak
for themselves, and rarely do they include narrative. To get these documents
to speak requires building individual stories with particularity. The result is a
history, told through a series of disruptive vignettes, that suggests how people
without rights still exercised them. Quotidian courthouse appearances res-
onate with debates in legislatures, high courts, and political conventions. New
characters in the history of race and rights – black Americans whose stories
had long been buried in unopened leather books and case files tied up with red
string – are linked to those of better-remembered figures – lawyers, judges, and
legislators.
This approach is interesting for what it leaves out as well as for what it
includes. Its grounding in the perspective of antebellum America’s black
activists gives Birthright Citizens a selective and sometimes partial view of
the era’s citizenship debate. A few dimensions of that debate, surely rele-
vant to some lawmakers in the nineteenth century and of note for historians
today, did not figure importantly in how African Americans understood citi-
zenship. An important example is the federal circuit court decision of 1823
by Justice Bushrod Washington in Corfield v. Coryell.58 Washington’s explan-
ation of the Constitution’s privileges and immunities clause is said to have
influenced Reconstruction-era rethinking on citizenship. Today, legal scholars
regard Corfield as an early and essential touchstone for arbitrating the rights
of citizens. Still, there is no evidence that Corfield influenced the thinking about
free African Americans in Baltimore or elsewhere. Later deemed influential,
Corfield is outside the scope of this book.
This study also departs from those before it by looking for the history
of law in debate and conflict, rather than in a positivistic interpretation of
texts.59 Those who read Birthright Citizens looking for a new answer to an old
question – Were black Americans citizens? – will find the answer is yes and no.
Sometimes citizenship was defined in constitutions and statutes, although most
of the time it was not. Courts disagreed and even changed their minds over
who was a citizen and what rights might attach to that status. Commentators
and treatise writers were never in accord and amended their writings to reflect
11

Introduction 11

changed thinking. The only consensus that emerges is one about the import-
ance of fixing the status of free black people. Whether for or against desig-
nating them as citizens, there was widespread agreement about the need to
situate former slaves in the nation’s legal regime. Beyond that, this is a story of
how lawmakers and jurists fumbled, punted, confused, and otherwise failed to
settle the question. Free black activists were generally of one mind. But even if
they agreed that they were citizens, they did not agree about whether the state
might affirm that fact. Faced with uncertainty, some fled for Northern cities,
Liberia, or Canada. Many more stayed put.
Other studies have examined African American rights during the antebellum
period, although few have expressly linked rights to citizenship as this book
does.60 For the historian this is a thorny matter, foremost because not all ante-
bellum Americans saw the relationship between rights and citizenship in the
same way. For some, being a citizen was the gateway to rights. Citizenship
was a prerequisite to the right to vote. For others, exercising rights was evi-
dence of citizenship. If a person exercised the right to vote, it was evidence
that he was a citizen. Often no relationship between rights and citizenship was
articulated, leaving these as separate notions under law. Texts are of little help
with this puzzle. In the absence of positive law – such as the later Civil Rights
Act of 1866 – the equation linking rights and citizenship was never fixed. Black
Americans’ efforts were aimed at securing rights that evidenced their citizen-
ship. Still, when rights were denied them, free people of color inverted the argu-
ment: citizenship was said to be a gateway to rights.
“Rights” as used here refers to a process by which black Americans imagined,
claimed, and enacted their relationship to law. Political theorist Bonnie Honig
characterizes the assumption of rights and privileges by outsider subjects as a
quintessentially democratic practice. Fundamental to democracy are the ways
in which those said to be without rights make claims and “room for them-
selves.” Although Honig’s case is that of aliens, or noncitizens, her approach
serves well a search for meaning in the rights claims of free people of color.
Their rights making was messy, contested, and sometimes violent. How else,
Honig asks, would those on the outside challenge the imbalance of power that
framed such dynamics? Well before any judicial or legislative consensus granted
their rights, free black men and women seized them, often in everyday claims
that set them on a par with other rights-bearing persons.61 Only later did those
rights become enshrined in text. In antebellum America, rights holders were
those who did what rights holders did.62
This process of making rights was linked, for black Americans, to a broad
claim to the “privileges and immunities of citizenship.” Rights, like citizenship,
were not self-evident in antebellum America. What were the rights of citizens?
One answer comes out of a study of high court doctrine. The Supreme Court
before the Civil War, for example, was slowly developing a right to interstate
travel.63 Another answer lies in the nascent terms of foundational texts. Can
we say, for example, that there was a right to the free exercise of religion
12

12 Birthright Citizens

before Reynolds v. United States was decided in 1878?64 Another touchstone is

the Civil Rights Act of 1866, the nation’s first articulation of civil rights: “To
make and enforce contracts, to sue, be parties, and give evidence, to inherit,
purchase, lease, sell, hold, and convey real and personal property, and to full
and equal benefit of all laws and proceedings for the security of person and
property.” These textual expressions of rights existed alongside a view of rights
as secured through their performance. Free African Americans became rights
holders when they managed to exercise those privileges that rights holders
exercised. And often they did so in ways that local authorities were bound to
respect and enforce. They traveled between the states, they gathered in religious
assemblies, they sued and were sued, testified, and secured their persons and
property before the law. Their routes to doing so were sometimes circuitous,
and they would need to reestablish such rights over and again. Still, the rights
they inhabited became the rights they held. Sometimes they even appeared to
be like citizens.
Citizenship had a piecemeal quality in antebellum America, defined only as
needed. Who was a citizen? White aliens could become naturalized citizens. But
what of those who declared their intention to naturalize before state courts?
Were they aliens, citizens, or persons somewhere in between? The president
was required to be a “natural born” citizen. Did this imply that others might
be citizens by virtue of birth as well? White women and children were said to
be citizens, though most agreed that their rights should be determined as much
by age or sex as by their status. Paupers, the infirm, the feeble, and the insane
represented a litany of conditions that functioned to compromise access to
rights for those otherwise deemed citizens. From time to time, free people of
color even held in hand affirmations of their citizenship. Black sailors, patent
holders, and passport bearers carried such documents.
Place matters for any telling of race and citizenship. Birthright Citizens is set
in Baltimore, where the specifics of region, political economy, and jurisdiction
were critical to how law was constructed at the intersection of formal edicts and
lived experience. This study’s approach to the history of law reflects insights
gained from the many social histories of free African Americans that center on
city- or countywide communities.65 Legal historians have adopted a similar
frame, one that is guided by jurisdiction as a manifestation of the local.66 The
authority that a locally grounded study cedes in terms of breadth, it gains many
times over in depth and complexity. To burrow into the dynamics of a local
legal culture is to open a window onto how ordinary people interpreted law,
the important role of legal administrators, and the perspectives of everyday
litigants. Local legal culture is an essential dimension of this story.
Baltimore may vie with Philadelphia and New Orleans for supremacy when
it comes to studying free people of color. But for a study of race and citizenship,
no city better lends itself to understanding this fraught intersection. Baltimore
was the nation’s third largest city, situated on what historians have termed
the middle ground, between North and South.67 Maryland was a slaveholding
13

Introduction 13

state with southern and eastern regions that relied on bound labor for staple-
crop production. Yet Baltimore was more strongly linked to regions to the
north where grain production was in the hands of free labor. The city sat closer
to Philadelphia than to Richmond. Critically for this study, Baltimore was
home to the nation’s largest free black community: some 25,000 residents,
who built a robust public culture. By the 1830s Baltimore was in the throes of
what historian Steven Hahn suggests was a century-long process of abolition
and emancipation in the United States.68 The city was a cosmopolitan port,
influenced by the influx of mariners and the news they carried. At the same
time, it was a locality grappling with the questions posed by the shift toward
a postslavery society. The city’s legal culture was sophisticated, autonomous,
and claimed the era’s most celebrated jurist, Roger Taney, as one of its own. In
nearly all his years on the Supreme Court, Taney lived in Baltimore, hearing
cases in the city’s federal court and presiding over bar proceedings. Taney knew
Baltimore’s streets, alleys, and free African Americans. His decision in Dred
Scott reflected the tensions that free African Americans generated in Baltimore.
Baltimore’s local courthouse was a main stage, the crucible in which many
thousands of black Baltimoreans came to know something about race and
law. It was the space in which free African Americans confronted the state.69
Through quotidian civil proceedings, they entered legal culture, learned its rules
and rituals, and secured allies. There they confronted lawyers, judges, clerks,
adversaries, and a curious public. Often their cases were said to be of little note.
But on closer examination, as they filled the court’s dockets, black claimants
pressed the question of their own status. Underlying their brief appearances
were questions about fundamental rights and privileges. Often these were
muted in the interest of expedient and efficient administration. Nevertheless,
the halls of the Baltimore courthouse echoed with questions about African
American citizenship.
Chapters 1 through 4 examine the development of legal consciousness
among black Baltimoreans. Without access to formal training, activists none-
theless studied law. Their primers were African American and antislavery
newspapers and their classrooms, lawyers’ offices, ships at sea, and political
conventions. Their questions were about rights and citizenship. Neither slaves
nor the equals of free white men, free people of color pondered how to combat
African colonization schemes and black laws. Most urgent was a radical strain
of colonization that surfaced in Maryland, one that threatened their forced
removal. They used rights claims and birthright citizenship to counter their
opponents. But as Baltimore became increasingly distanced from New York
and Philadelphia, activists turned to local avenues of redress and discovered
the courthouse.
Chapters 5 through 7 explore what happened when black Baltimoreans
turned to the local courthouse. There, they carried themselves like rights-
bearing citizens. Disputes over church property and leadership brought
hundreds of the city’s black Baptists and Methodists into the local courthouse.
14

14 Birthright Citizens

Their gatherings were one manifestation of a right to public assembly, and

ownership of church property led them to sue and be sued. These same men
and women inverted the intention of the black laws. Oppressive permit and
license requirements were opportunities to make lawyers and judges party to
an exercise of the rights to travel and to own firearms. As participants in the
city’s associational economy, free people of color were woven into networks of
debt and credit, and when they failed financially, petitions for insolvency were
a route to extinguishing their obligations. The same proceedings stretched the
limits of their rights: black men testified against the interests of whites and
served as court-appointed trustees, roles that custom suggested they should not
occupy. Families and friends sought court intervention to protect the interest
of young apprentices. Family autonomy was at stake, and the writ of habeas
corpus proved to be a powerful tool for bringing white indenture holders
before a judge. Often the results were not what petitioners aimed for, but they
filed claims, served as witnesses, and subjected to the rule of law schemes that
threatened to operate much like enslavement.
Chapter 8 examines the era of Scott v. Sandford. Rather than a starting
place, that notorious case was but a late volley in the antebellum story of race
and rights. In Baltimore, the case was in one sense much anticipated, with
local legal greats like Roger Taney and Reverdy Johnson playing important
roles. Even as newspapers promoted the decision’s significance, underscoring
the holding that no black person was a citizen of the United States, nothing
changed in Baltimore. Black residents continued to exercise rights and con-
duct themselves like citizens in the state court venues that had long been the
primary arbiters of such questions. State lawmakers continued to promote the
forced removal of free African Americans – but their schemes failed. When
Maryland’s high court had the opportunity to adopt the reasoning of Dred
Scott, it declined and instead affirmed that free people of color had the right to
protect their persons and property before the law. In the state capitol, a legisla-
tive push proposed reenslavement or expulsion as a remedy for the “free negro
problem.” It too failed after black men and women from Baltimore lobbied for
its defeat.
Birthright Citizens concludes with a look at the early years of Reconstruction.
For readers familiar with this later period, much of what precedes it will seem
similar. Indeed, between 1820 and 1860, black Baltimoreans confronted the
very questions that would take center stage during Reconstruction. Were they
citizens, and if so, what rights flowed therefrom? As the Civil Rights Act of
1866 put it, “All persons born in the United States and not subject to any for-
eign power, excluding Indians not taxed, are hereby declared to be citizens
of the United States.” The claim to birthright citizenship was affirmed with a
guarantee of civil rights. Free men and women of color likely recognized the
claims they had already long been pressing. And they did not wait for Congress
before seizing the opportunities presented by the new, postwar climate. They
moved about, reuniting their families, they organized armed militias, and they
15

Introduction 15

lobbied for desegregated public schools. In the courthouse, they returned to

challenge apprenticeship contracts and won the declaration that they were
unconstitutional.
No work of history is a blueprint for the present, and too much has changed
between the nineteenth and the twenty-first centuries to permit us to prescribe
remedies for today based on lessons from the past. Still, the case of free people
of color and their struggle for belonging will read to some as a cautionary tale.
And Birthright Citizens is guided by questions that are resonant in our pre-
sent day. How, we might ask now, as Americans asked 200 years ago, should
we regard those among us whose formal relationship to rights and citizenship
remains unsettled and a recurring subject of political debate? What cost is
there to be paid by a nation that permits people to work, create families, and
build communities within its geopolitical borders, but then declines to extend
them membership in the body politic? Even as we attempt to contain these
questions by way of piecemeal legal texts, why are we surprised that indi-
viduals and their communities will reach for the brass ring of citizenship in
a society that metes out rights and privileges by way of that construct? Free
black Americans and their nineteenth-century trials make clear the pitfalls of
the country’s incapacity to sustain deliberations and arrive at resolutions. On
the eve of the Civil War, nearly half a million people, the majority of them born
in the United States, lived with their rights always subject to political whim
and their belonging always subject to the threat of removal. We might say that
they were not unlike today’s unauthorized immigrants and their children, at
least to the degree that free people of color then were also a community that
lived through episodes of punitive legislation and efforts to force their exile.
Birthright Citizens is their story.
16

Being a Native, and Free Born

Race and Rights in Baltimore

George Hackett’s first lessons about race and rights were learned in his family’s
Baltimore home. The story of his father, Charles, suggests how much there
was to know. Charles Hackett had come of age in the years after the American
Revolution, just as Maryland law began to limit the political and economic lives
of free men of color. Charles and others like him faced a narrow labor market.1
He could work as a domestic or at sea, though neither was an easy choice for a
man with a family. Charles was left to perform manual labor: cleaning privies,
repairing roads, sinking pilings, leveling streets, and digging ditches.2 Custom,
laced with racism, generally excluded free black men from the skilled trades
and professions that fueled the city’s manufacturing economy. He faced recur-
ring efforts to enact legislation that would have formally barred free men of
color from more lucrative and less dangerous vocations.
It is unlikely, however, that Charles Hackett would have recounted his story
as simply one of laboring in the city’s lowest ranks. His work as an activist told
another tale, one about how men and women of color taught themselves how
to wrestle with questions of race and rights. His church leadership demanded
a spiritual calling and scriptural expertise. It also required legal acumen, and
Charles Hackett’s earliest legal education came in the form of institution
building. He was a lay leader in the African Methodist Episcopal Church,
representing hundreds of black Methodists. His congregation was at the van-
guard of a movement that rejected the marginalization of black worshipers in
white-led Methodism. They had sought independence of thought, especially
on slavery, and leadership roles, including ordination to the ministry. In the
last years of the eighteenth century, Charles was among those establishing sep-
arate, black-led class meetings. His group purchased a lot and small building,
naming it Bethel Church.3 Bethel’s leaders purchased the freedom of their
minister and hired him to operate Baltimore’s first black-led school.4 In 1816,
when black Methodists from Philadelphia, New York, and Baltimore launched

16
17

Figure 1.1 Agents for Freedom’s Journal. Black activists developed legal acumen
through networks including the African American press. The first such publication,
Freedom’s Journal, was based in New York and employed a Baltimore-based agent,
Charles Hackett, who also oversaw publishing for the African American Methodist
Episcopal Church. Image courtesy of Martha S. Jones.
18

18 Birthright Citizens

an independent denomination – the African Methodist Episcopal Church –

Charles Hackett witnessed the culmination of his twenty-five years of religious
activism.
Hackett also learned how to think about his community in legal terms. The
incorporation of a church, the purchase of land and a building, and arranging
for the manumission of an enslaved minister were tasks that offered lessons
in law. These transactions demanded negotiations with attorneys, justices of
the peace, and clerks. In this sense, law governed the life of Bethel Church.
The church also made its own law, titled The Doctrines and Discipline, that
governed the whole of the denomination and allowed local congregations to
hold tribunals that would resolve internal disputes.5 Charles Hackett was key
to this when, in 1820, he was elected the church’s book steward. In that role,
he visited Baltimore’s black Methodists, explaining the importance of church
law and raising funds for its publication.6
Informal exchanges about law – in church halls, on street corners, over
meals, and during the work day – while difficult to recover with any specifi-
city, must have been important. Charles Hackett was only semiliterate, if that.
He signed legal documents with an X rather than his name, suggesting that he
and others relied on those who could read to assist with interpretation of legal
texts. Charles knew the power of literacy and made sure that his son George
received the best education black Baltimore could provide. In helping to found
the Bethel Church school, he would certainly have had his son and other chil-
dren like him in mind. Even that work was informed by the parameters of law.
Maryland never outlawed the education of free people of color. Still, enough
slaveholding states did so that those setting up schools needed a keen sense of
what might be permissible.7 Did the Hackett family talk about law during their
regular gatherings? Some lessons were unavoidable. Home life, too, turned on
the workings of legal culture. Charles Hackett acquired a small bit of prop-
erty: a lot on Friendship Street. But by 1832 he faced a foreclosure suit brought
by his mortgage holders. His family’s economic life was made orderly, though
neither stable nor secure, by way of law.8
African American print culture extended the legal education of black
Baltimoreans like Charles Hackett. In his role as an agent for the nation’s
first African American newspaper, Freedom’s Journal, Charles was responsible
for connecting his city to an emerging network of free black communities.
Published in New York City, the weekly’s editors included Samuel Cornish, a
Presbyterian minister who had been a missionary in Maryland before settling
in Philadelphia and then New York.9 Perhaps he and Hackett met in Baltimore.
It may have been that the two met in a political meeting. However they became
acquainted, Hackett was among the first to represent Cornish’s paper to
the world, selling subscriptions and distributing newspapers in Baltimore.10
Freedom’s Journal framed its mission and the struggles of black Americans
in expressly legal terms: “We shall ever regard the constitution of the United
States as our polar star.” Cornish and Hackett brought news to the street
19

Being a Native, and Free Born 19

corners and parlors of black Baltimore, and with it came ideas about how law
was one weapon in their arsenal.11
In this chapter, we encounter black Baltimoreans as they developed a legal
acumen that undergirded their claims to citizenship. Their first primer was the
African American press, where they encountered examples of how the United
States Constitution might be used to challenge local laws and thus take on
meaning in their daily lives. They also looked to legislators, but there found a
muddled scene that failed to fix the status of people of color.12 In New York, for
example, black people were citizens but with inferior voting rights. In Missouri,
according to Congress, they could be regulated though not barred from the
state. When a free sailor named Gilbert Horton was arrested in Washington,
DC, and threatened with sale as a slave, black Baltimoreans were right to be
alarmed. Horton was detained in the nation’s capital under a Maryland law,
and his liberty turned on the benevolence of white men in faraway New York
City. Many insisted that Horton was a free citizen of New York and immune
from sale. But in the streets and jails of Washington, as in Baltimore, free black
people were especially vulnerable with legal authorities so divided.
Competing views about race and rights clashed in Baltimore. From the
North came news about how states such as New York and Pennsylvania had
implemented gradual emancipation schemes. There, free black men could some-
times vote. From the South, the fact of slavery’s expansion was apparent, and
a new domestic slave trade threatened the security of free black Baltimoreans.
Still other perspectives on the life of free people of color entered by way of
the port. Men and women connected to the maritime trades knew of how
race and rights intersected in the Caribbean and South America. Throughout
the Americas, free black men and women confronted dynamic and uncertain
futures. Sailors and draymen related tales of rebellion and liberty in far-flung
locales where slaveholding was reluctantly giving way to free soil. Making
comparisons between Baltimore and other cities became yet another way to
understand life and law in Baltimore.
Maryland’s complex character, reflecting North and South, was forged
through commerce, finance, trade, and shipbuilding.13 The city was also a
global port with ties to the Caribbean and the South Atlantic. Aboard ships
of far-flung origins came goods, news, and thousands of mariners. Free people
of color knew these dynamics well. Their churches and political organizations
tied them to the North. Slavery linked them to the South. And their labor – as
seamen, dockworkers, boardinghouse keepers, and carters – ensured that they
knew well the talk in the port. Baltimore was the third largest city in the United
States, and more so than in any other, it was a city that was sustained by a
many-faceted economy of exchange with the Americas.14
Ties of water, steel, and paper shaped the city. Canals connected it with
Washington, DC, in one direction, and Pennsylvania’s Susquehanna
Valley in another. Turnpikes carried stages, wagons, and buggies through
Baltimore via the National Road and seven additional turnpikes constructed
20

20 Birthright Citizens

between 1798 and 1816 that linked Baltimore to the West. By the 1820s,
railroad projects – the Baltimore and Susquehanna, the Baltimore and
Washington, and the Baltimore and Ohio – were revolutionizing the city, the
exchange and export of goods, and the in- and out-migrations of people.15
Law was a partner to the development of the city’s character. The example of
how joint stock companies emerged illustrates how the city was increasingly
linked to other regions. Between 1787 and 1815, Baltimore became home to
ten insurance companies (five for marine risks), seven turnpike companies,
two bridge companies, and a water company, along with three manufac-
turing companies.16 Print culture was also key. Hezekiah Niles’s weekly news
magazine, Niles’ Register, published in Baltimore, was the country’s paper of
record. The Quaker abolitionist Benjamin Lundy chose Baltimore as his base
when he began publishing the Genius of Universal Emancipation. There, a
young journalist and antislavery convert, William Lloyd Garrison, would
join him in 1829.17
By 1800, Baltimore’s connections to the Caribbean and South America
were nearly two centuries old. Some links were wrought from the trade in
goods. Maryland merchants exported staple crops – food, household wares,
and manufactured items – to the British, Spanish, and French empires, and
Maryland tobacco was packed and loaded for Caribbean destinations.
Baltimore was known as the “granary of the West Indies,” as staples produced
in northern Maryland and southern Pennsylvania were shipped to Caribbean
markets. In addition, ships built in Baltimore, especially the much-admired
Baltimore Clipper, took the city’s name, along with its artisanship, manufac-
turing, and mariners, throughout the hemisphere.18
For free black households, links to the North were reinforced through a rich
African American public culture of churches, fraternal orders, and newspapers.
No connection was stronger than that established by the founding of African
American churches. Black Christians in Baltimore were part of a rich and
growing religious culture that was bound together by doctrine and worship
styles as well as revivals and conventions. Black Baltimoreans also relied on
the circulation of newspapers and tracts. Antislavery newspapers and, by 1827,
the African American press knit free blacks in Baltimore together with com-
munities in New York, Boston, Newport, and Philadelphia. Freedom’s Journal
included regular reports about happenings in Baltimore. News of colonization-
society activities and the kidnappings of free black Marylanders thus reached
black readers throughout the North.19 Freedom’s Journal was also an outlet
for local news. For example, the head of Baltimore’s Sharp Street Methodist
school, William Lively, advertised for black students in its pages.20
Cities like Philadelphia and New York were touchstones for free black
Baltimoreans. Like enclaves in the Maryland city, Northern black communi-
ties had grown up out of the revolutionary era’s wave of abolition. But their
trajectories had diverged as slavery was slowly done away with in the North.
In Massachusetts, enslaved litigants succeeded in undoing slavery by judicial
21

Being a Native, and Free Born 21

decree by the 1780s. New York set in place a gradual emancipation scheme
in 1799 and then abolished the institution altogether in 1827.21 No example
was more proximate than that of Pennsylvania. That state’s 1780 abolition
act freed the children of enslaved people and helped fuel the emergence of an
important and thriving African American public culture. With Philadelphia
just over a hundred miles from Baltimore by coach, African Americans were
able to move between the two cities for work and to strengthen ties of politics,
church, and family. The questions black Baltimoreans asked about rights and
citizenship did not differ greatly from those being posed in New York and
Philadelphia.22
Connections to the South were more difficult to maintain. Baltimore was a
city of migrants, and in this sense the presence of former slaves and fugitives
linked Baltimore to the South, especially to its nearest neighbor, Virginia. During
the summer season, free black men and women from Baltimore labored at
the region’s resorts and spas, where they encountered other Southerners, black
and white. Still, black laws increasingly restricted travel, and local authorities
curbed the development of independent black institutions such as churches.
Farther south in Charleston, for example, the Reverend Morris Brown and his
AME congregation were harassed and their church was closed down by the
city when officials discovered alleged plans for a slave uprising. Brown would
relocate to Philadelphia and become the denomination’s second bishop, but
the demise of his Charleston church reflected how regionally restricted such
institutions were.23
Free black Baltimoreans looked to the South and saw slavery gaining
ground as a political and economic institution.24 The success of cotton fueled a
new demand for enslaved labor. Upper South states like Maryland were drawn
into a new slave trade, a domestic one in which prices for enslaved people
sold out of Baltimore were driven by the demand of markets in Natchez and
New Orleans. These forces were being felt as early as 1790, and by 1820 a
robust internal slave trade was in operation. Some Maryland commentators
condemned it.25 Journalist Hezekiah Niles “supremely hated” the trade for
its overall inhumanity, and underscored how “wretches” were kidnapping
free African Americans and selling them as slaves.26 Maryland lawmakers
attempted to prohibit the domestic trade beginning in 1780, later stepping up
their efforts by prohibiting the out-of-state sale or transport of slaves who had
been promised their freedom after a term of years.27 Still, the traffic in persons
continued. A local grand jury published its observations of widespread kid-
napping. It was an “evil,” the jury members explained, that persisted despite
legislation to the contrary. The demand from markets further south led to the
out-of-state sale of term slaves – those bound for a number of years rather than
for life – and the kidnapping of “free negroes decoyed by stratagem or dragged
by force . . . and sent away.”28
Black Baltimore’s far-reaching vantage point is perhaps best understood by
way of the people who moved into and out of the city. Human migrations large
22

22 Birthright Citizens

and small linked Baltimore to a geography that stretched to the Caribbean and
South America. Some journeys were solitary. Such was the case for free black
sailors who passed through the port. Although their numbers are difficult to
document, we can say something about the numbers of men from Maryland
who became mariners. In 1810, for example, 7.4 percent of black heads of
households were said to be seamen.29 Such men were “vectors of experience
and information” in regional networks of communication. Black seamen shared
news by word of mouth, the passing of newspapers, and their very demeanor,
which could generate rumors and debate about happenings in distant locales.30
Other black migrants came into the city as parts of households and under
compulsion or duress. When Caribbean planters migrated to Maryland, as
many did during the Haitian Revolution, they established plantations south
and east of Baltimore, bringing with them enslaved workers. Many labored
as domestics; some lived independently and were hired out for wages. Some
escaped, disappearing into the city’s growing free black enclaves.31
White Baltimoreans did not agree about how to regard the growing free black
population. Between 1790 and 1820 the free black population in Baltimore had
exploded from just 323 persons to more than 10,000. The overall percentage
of black households in the city had doubled, from 11.7 percent to 23.5 per-
cent.32 Some expressed alarm, like Luther Martin, an antifederalist member of
the United States Constitutional Convention and former Maryland attorney
general. Martin wrote that the city risked becoming “the head quarters of free
blacks and people of colour, not only from other states in the Union, but from
the islands.”33 He was especially distressed about a recent court proceeding in
which a woman, alleged to be a fugitive slave, had been released. There were
differences over the merits of the case, but Martin’s true concern was how the
city’s free black community was growing by way of local manumissions and
the in-migration of black people from the lower South and the Caribbean.
Not everyone agreed with Martin, and he received a quick public retort. The
pseudonymous “Humanity” defended the court’s action in freeing the alleged
fugitive, and then generally decried the presumption that black people were
slaves. “Such a proposition,” the writer urged, was “opposed to every principle
of law, of justice, and of humanity and it is in vain to urge in support of it, that
the colour of a negro alone is sufficient evidence of his being a slave.”34 Over
time this position would be defeated and color would raise the presumption
of slave status. Still, Humanity’s perspective was important. It admitted that
Baltimore was becoming a haven for free black people and then urged that they
should expect due process and fairness. With people like Martin and Humanity
at odds, Baltimore was an awkward haven.
In distributing the pages of Freedom’s Journal in Baltimore, Charles Hackett
disseminated a retort that sought to clarify how free black Americans fit into
the landscape of the city and of the nation. Civil rights, readers learned, were
“the greatest value,” and the paper’s editors vowed that “it shall ever be our
duty to vindicate our brethren, when oppressed, and to lay the case before the
23

Being a Native, and Free Born 23

publick.”35 Those rights, the paper’s prospectus asserted, were rooted in the
nation’s founding document, the Constitution.36
The black quest for rights had a long history, Freedom’s Journal reported.
A story reprinted from the Liverpool Mercury illustrated how quotidian claims
intersected with constitutional principles through the life of one of the early
nineteenth century’s most commercially successful and politically influen-
tial black leaders, Paul Cuffe. In 1780 Cuffe, a Dartmouth, Massachusetts,
mariner, and his brother John had been called on by a local collector to pay a
personal tax. The two puzzled over their obligation, knowing that the laws and
the constitution of the state linked taxation to citizenship. If the law demanded
the payment of a tax, they reasoned, the same laws should “much necessarily
and constitutionally” invest them with the right of representing and being
represented in the state legislature. The two decided to insist on such a recog-
nition of their rights. The Cuffes, explained the paper, won their claim. There
was for readers of Freedom’s Journal an instructive quality to the link between
a ministerial act, such as paying taxes, and the securing of rights as citizens.37
In his influential though short life – he died in 1817 – Paul Cuffe was remark-
able for his business acumen, his political deftness, and even his intellectual
contributions to an “African” identity among black Americans. He was also
remarkable for his quest for citizenship.38
The Cuffe brothers’ experience as seamen during the American Revolution
hinted at how they developed expectations about citizenship through exchanges
during their service aboard whalers and their detention in cells of the British
Empire. Freedom’s Journal brought such vantage points home, inviting readers
to share in knowledge that made possible a comparative and transnational
point of view. Sometimes this took the form of speculation. “What will be
the case, when the slaves in the West Indies and the Spanish states, become all
free citizens?” the paper asked.39 Haitian history provided an example of what
slavery’s abolition might bring. Readers were reminded how, for example,
in 1791 the French National Assembly had extended to free people of color
“all the privileges of French citizens,” including the right to hold office.40 In
“South America and Hayti,” readers learned, “the Man of Colour is seen in
all the dignity of man, freed from the prejudices, and endowed with the rights,
and enjoying all the privileges of citizenship.”41 Comparative thinking about
citizenship opened minds to the prospect of colonization and migration to
Liberia. It was a “mere waste of words to talk of ever enjoying citizenship in
this country,” the journal’s editors declared, and the Liberian example provided
an important counterpoint.42 As one correspondent put it, these examples and
others ensured that free black men and women were “so far enlightened, as
to know that they are unjustly, in this land of liberty, denied the rights and
privileges of free citizens.”43
Freedom’s Journal also brought questions about free black citizenship close
to home for Baltimoreans. In 1828 a correspondent reported, after a short visit
to the city, that a free man of color “may be respected in his business; he may
24

24 Birthright Citizens

be encouraged; but when we come to talk of liberty – of the rights of citizen-

ship – of his evidence in a court of justice against his fairer brethren, we cannot
but perceive that there is little justice doled out to him by the republican laws
of the state of Maryland.”44 Men from cities such as New York or Philadelphia
recognized their relative status. “Baltimore was never designed to be the abode
of your humble servant,” a correspondent wrote. “A man of colour, educated
at the north, can never feel himself at home in Baltimore,” learned the paper’s
readers.45 This view had merit. Black Baltimoreans made their way in a world
framed by a particular if not unique legal culture, one that offered no certainty
about their status.
If geography opened Baltimore up to the world, legal culture threatened
to close it off. The city’s free black men and women lived at the crossroads
of geography, culture, and politics. But legal culture worked to close off these
influences. Lawmakers found it nearly impossible to fix the status of free black
Marylanders. Instead, they put in place a piecemeal scheme of requirements
and restrictions aimed at curbing the very mobility and independence that life
in the port city might invite. This tension, between ambition and possibility on
the one hand and repression and control on the other, led free black families to
study law. Their rights and status, confused and uncertain, relied on no single
text, ruling, or statute.
Constitutions were one touchstone, and founding texts seemed to suggest
that free people of color might expect to live as fully rights-bearing persons,
equivalent to their white counterparts. The constitutions of the United States
and Maryland were silent on the status of free black people. The 1776 Maryland
state constitution did not use the word “citizen,” although it recognized
inhabitants and free men. It ascribed differences among Marylanders: there were
non-Christians whose religious liberty was not guaranteed, clergy members
who could own property only with permission of the legislature, and those
under twenty-one or without property who were politically disenfranchised.
Free people of color appeared to stand on a par with whites. The United States
Constitution elided the question of who was a citizen. Its broad categories
distinguished among free people, enslaved people, and Indians. It did not
address the status of those who, though descended from slaves or the formerly
enslaved, were now free. The Constitution’s only references to citizens were
fragmentary and implicit: only citizens could serve as members of Congress;
only “natural born” citizens as president; only citizens could sue in federal
courts. The Constitution thus guaranteed privileges and immunities of citizens
but did not delineate how to distinguish citizens from noncitizens. The matter
of race and citizenship, in both state and federal terms, remained unsettled. For
Baltimoreans, neither constitution expressly barred legal distinctions grounded
in race, leaving an opening for legislative action.46
There was little express collaboration between state and federal lawmakers
in the early nineteenth century on the question of free black people, and
the character of what emerged from Congress and from the state assembly
25

Being a Native, and Free Born 25

differed. Maryland reached aggressively into the lives of free black people
in the early republic, but Congress was more restrained. When setting the
terms of the first national census enumeration in 1790, Congress provided
that enumerators should distinguish between “the sexes and colors of free
persons.” Hence, the census schedule was divided into the categories of free
whites, “all other free persons” including free African Americans, and slaves.47
Congress did immerse itself in more local questions through its governance of
the new District of Columbia. In 1802 Congress limited the vote and service
in the militia in the district to “free white male inhabitants of full age.”48 No
single piece of congressional legislation was felt more in Baltimore than the
Naturalization Act of 1790, in which Congress expressly limited naturaliza-
tion to free white persons; free people of color were not eligible to become
naturalized citizens of the United States.49 Thus in Baltimore, a destination
for free black people from throughout the Americas, especially seamen, prohi-
bitions against naturalization distinguished free black men and women from
their white counterparts.
State lawmakers also began to draw boundaries around black Marylanders,
attempting to fix them in place and in status through what came to be termed
black laws. These did not constitute a comprehensive or coherent code such
as that governing slavery and free people of color in the French and Spanish
Americas.50 Between 1780 and 1820, Maryland lawmakers set in place a piece-
meal series of regulations. That about which the constitution had been silent
now regularly animated the state assembly in Annapolis, as lawmakers asked
where free African Americans stood in Maryland’s legal culture.51
Central to this new legal regime were restrictions on mobility. By 1820,
Maryland had closed its border to the in-migration of free black people,
rendering its own residents increasingly isolated. State laws defined free black
men and women in part by restricting their comings and goings. Maryland
began by first restricting the slave trade into and through the state. By 1783,
the legislature codified what was already true in practice: importing slaves
from other states or countries was strongly discouraged, first by prohibitive
taxes and then by criminal penalties. It would be another twenty-plus years
before lawmakers regulated the movement of free black people. When they
did so, in 1806, they imposed a hefty ten-dollar-per-day fine on those who
migrated into the state. To make the state’s position all the more clear, the new
law added extra discouragement: failure to pay such fines could result in being
sold out of Maryland, in essence enslaving free people.
For those remaining in Maryland, no authority spoke directly to their citi-
zenship. Still, their rights narrowed between 1780 and 1820. Free black men
had voted until the last years of the eighteenth century, but that door grad-
ually closed. Initially lawmakers drew a distinction between “historically” and
“newly” free people. Those free before 1783 retained a broad set of rights,
while those born or manumitted after 1783 were distinguished by the rights
they did not possess: they could neither vote nor hold public office. By 1783,
26

26 Birthright Citizens

“newly” freed people were barred from testifying against whites, although,
notably, “historically” freed people were not. This distinction did not hold very
long, however. By 1801, the constitution had been amended to limit the vote
in Maryland to “free white male citizens, and no other.” All free black people
were thus disenfranchised.52
This fissure and others suggest how courts remained more porous
institutions even as political rights were being revoked. When Maryland’s
high court attempted to interpret the state’s tangled laws regulating black tes-
timony, it failed. In the case of State v. Fisher, a trial court had allowed a
free “mulatto” woman to testify against the interests of the defendant, a “free
born white Christian man.” The verdict was guilty. On appeal the high court
asked whether a free mulatto woman could so testify. The justices scrutinized
the statutes going back to the early eighteenth century and found they “could
not agree in opinion upon the question.” There was, as the decision put it, “a
diversity of opinion.” The testimony and the verdict were thus permitted to
stand.53 Legislators also suggested that courthouses remained open venues for
free black Marylanders. The laws of 1783 generally sought to limit the rights
of “newly” free black people. But there were important exceptions. They could
by positive law “hold property” and “obtain redress in law or equity for an
injury to . . . person or property.”54
Maryland’s early black laws, adopted in fits and starts, were never com-
prehensive. Nor did they bar African Americans from the courthouse.
Instead, omissions left spaces through which free black people might insert
their interests in courtrooms that remained open to black litigants. Maryland
allowed the education of free African Americans, and in Baltimore, church-
sponsored schools were in place by the first decade of the nineteenth century.
The state’s borders, which were crowded with legal barriers, expressly retained
important openings. Black seamen, along with wagoners and messengers, could
enter the state while performing their duties without risking punishment. There
were no formal restrictions on the movement of free black Marylanders them-
selves. They could leave and reenter the state at will, another avenue by which
networks remained intact.55
The 1820s marked a turning point, and two poles of a debate emerged. One
view was that free African Americans were citizens of the individual states and
of the United States, entitled to the privileges and immunities of citizenship
guaranteed by the Constitution. The opposing view was that they were persons
other than citizens, perhaps aliens or denizens. As such, free black men and
women were subject to black laws as well as policies promoting colonization,
banishment, and other modes of removal from the United States. Citizenship
and the rights that might attend it took on new saliency. Some saw in it a
strategy for resisting removal. Others saw in it an extension of rights to persons
who must not become part of the body politic. The issue was joined in 1821,
in a congressional debate over Missouri’s state constitution and in a New York
State constitutional convention. Lawmakers faced off, charting out the terms
27

Being a Native, and Free Born 27

by which the question would be debated going forward. Black Marylanders

watched as arguments over their status heated up.
When Congress took up Missouri’s admission to the union in 1821, no
one anticipated how free black citizenship would nearly derail the process.
A slaveholding territory, Missouri proposed a state constitution that mandated
laws “to prevent free negroes and mulattoes from coming to and settling in
the State, under any pretext whatsoever.” The proposal was harsh, and it gave
Congress members pause. Would a prohibition against the in-migration of free
persons of color violate the US Constitution’s “privileges and immunities” guar-
antee? The answer, all agreed, turned on the citizenship status of free African
Americans. If African Americans were citizens, Missouri’s proposal drew
impermissible distinctions such that its constitution would be refused. Were
they not, Missouri would be free to bar black Americans, and the proposed
constitution would become law.
The resulting debate stretched over many days and fills scores of pages in the
Annals of Congress. In the Senate and the House, lawmakers reasoned aloud
about what rights flowed from citizenship and to whom such rights belonged.
Free African Americans were the hard case; everyone was aware of the state
black laws already in place. Citizenship had never before been subject to such
exacting scrutiny, with such forceful advocates on both sides. Some lawmakers
took the position that free black people were citizens. As one argued: “If a
person was not a slave or a foreigner – but born in the United States, and a
free man, going into Missouri, he has the same rights as if born in Missouri.”
This was jus soli, or birthright citizenship. Others saw no conflict in permitting
Missouri to bar black migrants, the implication being that free black Americans
were not citizens. These were remarkably serious, well-reasoned, and in some
cases lengthy examinations of the question. Those present were immersed in
nothing short of a primer on the history and the practice of citizenship.
Northern state legislatures weighed in, speaking on behalf of those black
men and women whom they deemed citizens. From New York came the insist-
ence: “If the provisions contained in any proposed constitution of a new State
deny to any citizens of the existing States the privileges and immunities of citizens
of such new State, that such proposed constitution should not be accepted or
confirmed.”56 Vermont also cried foul, interpreting the Constitution’s privileges
and immunities clause. Missouri proposed to prohibit the in-migration of “citi-
zens of the United States” solely “on account of their origin, color or features,”
Vermont legislators said, while their state deemed free men of color “citizens
of the United States.”57
On the floor of the Senate the debate over Missouri was an elaborate
exegesis on how the privileges and immunities clause might apply to black
Americans. Southern lawmakers, like William Smith of South Carolina,
endorsed Missouri’s effort to bar free black migrants who sought entry into the
state. Smith opined that Missouri’s constitution was “republican” and without
“objection.”58 Lawmakers split along sectional lines, with men of the North
28

28 Birthright Citizens

explaining the status of black men and women in their states and then invoking
on their behalf full protection under the Constitution. Rhode Island’s James
Burrill mocked Missouri’s proposed constitution, pointing to black military
service: “We have colored soldiers and sailors, and good ones, too, but under
no pretext whether of duty or any other motive, can they enter Missouri.”
Citizenship, he went on to explain, turned on birthright: “If a person was not
a slave but a foreigner – but born in the United States, and a free man – going
into Missouri, he has the same rights as if born in Missouri.”59
In the House of Representatives, the debate was similarly divided.
Pennsylvania’s John Sergeant, chair of the judiciary committee, delivered one
of the most elaborate presentations, lasting “upwards of two hours.” Much
in his remarks went to defeating the suggestion that Congress should leave
questions about the propriety of Missouri’s constitution to the judiciary.
Sergeant was emphatic that Congress was charged with safeguarding the
Constitution and its privileges and immunities clause by way of its power to
review Missouri’s admission as a state. When he finally turned to the merits,
Sergeant explained that he disagreed with Congressman William Lowndes
of South Carolina: The privileges and immunities clause “made no distinc-
tion of classes, but extended equally to both classes.” Free people of color
were, in his view, citizens of individual states, including “North Carolina,
New York, and Massachusetts.” They did not vote when not freeholders,
“yet no one would deny them to be citizens of those States.” What he and
others sought was the affirmation of “the humble simple privilege of loco-
motion . . . a right indispensable to citizenship.”60
Maryland lawmakers were silent. And their silence is remarkable if only
because, amid a great deal of speechmaking, they did not weigh in even as
their state was invoked repeatedly in the House. The example of “the Jews of
Maryland” was used to complicate who was a citizen and what rights might
flow from that.61 It was reported that under Maryland’s “old constitution” free
people of color had voted, only to have the terms later changed to exclude
them.62 Maryland’s black laws were said to show that the states had always
regulated free black people “wholly independent of any federal control.”63 The
state’s representatives did vote on the various interim motions and did so as a
block with other Southerners. But what precisely they thought was not recorded.
The sixteenth US Congress fumbled, letting ambiguity prevail. Missouri
would be allowed to retain the clause in question. The state could bar free
African Americans from entering. Still, Congress went on to admonish Missouri
not to enact any law that would impair the rights of citizens from other states,
including citizens of color. Were free African Americans citizens protected by
the privileges and immunities clause, or were they not? Congress tried to have
it both ways, it seems. The result left Missouri to act on its own conscience and
kept free African Americans in limbo.
New York’s state lawmakers confronted the same thorny question: Were
free black Americans citizens, and if so, what rights derived from that status?
29

Being a Native, and Free Born 29

An 1821 statewide convention met in Albany to revise the state constitu-

tion. Spurred by a Republican Party faction, the expansion of the franchise in
New York was front and center. The state’s property qualification was slated
for elimination. How might this affect the rights of the state’s 20,000 free
people of color?64 While a small number of property-holding free black men
had long enjoyed the franchise, lifting the property qualification would open
the door to widespread black voting. Some among the convention’s delegates
sought to ensure that it would not. Their objective became clear by way of a
proposal to broadly extend voting rights to men who paid taxes, served in the
militia, or worked on the public roads, the vast majority of whom were white.
The convention split. Proponents of a race qualification argued that black
New Yorkers were incapable of exercising political judgment. On the other
side were men who argued that free black men stood equal to their white
counterparts when it came to political rights. Congress’s Missouri debates
were invoked; if black people were citizens then they could not be deprived
of privileges and immunities. The United States Constitution, it was argued,
barred the use of race as a voting qualification. The arguments were lengthy
and eloquent, but the result was another awkward compromise. The attempt
to include the qualification “white” was defeated. Claims that endorsed the
political capacities and citizenship status of black Americans seemed to carry
the day – at least until later in the convention. Before they adjourned, delegates
set in place a freehold property qualification of $250 only for black men. Thus,
in New York, free black people were citizens, and yet their citizenship was
circumscribed in ways that the citizenship of white men was not. Lawmakers
fumbled, enabling differing conclusions. Free black New Yorkers were citizens
of the state, but citizens of a distinct or second class. Free black New Yorkers
were not citizens at all, making their qualified disfranchisement permissible.
Or they were citizens in a state where voting rights were determined by race
rather than citizenship status. Whatever the interpretation, the end point was
further confusion.65
New York’s debate reached well beyond that state, circulating widely
through the writings of a delegate named James Kent. Kent’s Commentaries
on American Law became a standard reference for antebellum practitioners
and jurists, and he devoted extensive thought to the puzzle of free black citi-
zenship, pulling together many of the small bits of lawmaking that shed light
on the topic. Of the deliberations at his home state’s constitutional convention,
he wrote: “It is certain that the constitution and statute law of New-York,
speaks of men of colour as being citizens, and capable of being freeholders, and
entitled to vote.” Kent’s own opinion was uncharacteristically muddled, how-
ever. He began: “Negroes or other slaves, born within and under the allegiance
of the United States, are natural-born subjects, but not citizens.” But then he
took the other view: “If a slave born in the United States be manumitted, or
otherwise lawfully discharged from bondage, or if a black man be born within
the United States, and born free, he becomes thenceforward a citizen, but under
30

30 Birthright Citizens

such disabilities as the law of the state respectively may deem it expedient
to prescribe to free persons of color.”66 Jurists who consulted the era’s most
widely read commentaries found the question of black citizenship among the
issues raised. What they did not find was a clear answer.
Back in Baltimore, debates over rights in New York and Missouri were
instructive, though remote. The principles that were being worked out may
have appeared abstract, at least until Freedom’s Journal brought the case of
Gilbert Horton to the attention of Baltimore readers. A free black mariner,
Horton had been threatened with sale as a slave in Washington, DC. That city’s
proximity to Baltimore might have been enough to generate real concerns. As
unsettling, however, was how law’s intricacies left black Marylanders espe-
cially vulnerable. Horton had been detained as an alleged fugitive under an
“old law of Maryland,” one that had been repealed in the state but not in the
District of Columbia, which had adopted Maryland law at its founding.67 The
case required both lay people and lawmakers to closely examine where free
people of color stood.
The debate surrounding Horton’s circumstances made plain how abstract
constitutional interpretations could play out in the lives of free black men and
women. Horton, a free man from New York, had been “travelling in the pur-
suit of his lawful business to Washington” when he was “seized and imprisoned
as a run-away slave.”68 Horton’s story – that of a free black man whose trade
drew him across state lines and who was not able to document his liberty or
pay his jail fees – paralleled the circumstances of many black Baltimoreans.
They had to ask themselves: Were they citizens, or could they be sold as slaves
without due process of law?
Gilbert Horton was still a young man when he found himself in a Washington
jail facing his sale as a slave for life. Enslavement was not wholly unfamiliar to
Horton. He had been born enslaved in Westchester County, New York, at the
end of the eighteenth century, just as that state passed a gradual emancipation
law.69 Its terms provided that Horton would be manumitted at age twenty-
eight.70 However, in a turn of good fortune, Horton’s father, Peter, struck a
deal with his son’s owner.71 Peter Horton labored one year in exchange for his
son’s freedom. As his father later reported, Gilbert was around eight years of
age when manumitted. His freedom was followed by a period of indenture.
Gilbert spent many of his early years in service.72 The complexities of slavery
and freedom were thus not new to the young man, though likely nothing had
prepared him for the auction block and reenslavement.
Horton made his living as a mariner, a vocation that required him to leave
New York and enter less familiar slaveholding ports. In 1826 he was serving
aboard the navy’s USS Macedonian. He left the frigate’s service that June in the
port of Norfolk, Virginia. By July Horton was in Washington, where he was
a relative stranger. On a July day, as he headed along the streets of the capital
city wearing what were described as a “tarpaulin hat, linen shirt, blue cloth
jacket and trowsers [sic],” Horton was detained.73 Unable to produce evidence
31

Being a Native, and Free Born 31

of his free status, he was presumed to be a fugitive slave. Horton insisted that
he was not.
Horton’s fate took a turn when a local marshal placed an ad in Washington’s
National Intelligencer. The notice generally assumed Horton to be a slave,
urging his “owner or owners . . . to come and prove him, and take him away,
or he will be sold, for his jail fees and other expenses, as the law directs.” But
something about his story rang true enough that the notice added Horton’s
assertion that “he was born free, in the State of New-York, near Peekskill.”
This caught the attention of editors throughout the North, and news of
Horton’s legal predicament spread. A Connecticut newspaper reprinted the
notice beneath an excerpt from the Declaration of Independence, putting it
to readers that if “all men are created equal,” how could it be that, “for the
colour of the skin . . . a man born free is attainted, cast into prison, and sold
as a slave?”74 A New York paper remarked that Horton’s detention violated
“every principle of humanity and justice, and of constitutional law.”75 Another
New York newspaper, the Commercial Advertiser, most closely chronicled
the case. Horton’s capture symbolized how untenable was a nation divided
between slaveholding and non-slaveholding states, especially when free black
men were in some jurisdictions regarded as citizens. The paper captured the
view that would drive the ensuing debate: “The declaration – ‘I am a Roman
citizen,’ was once a passport to the respect and protection of the world. So let
it be with respect to the citizens of New-York.”76
Deeds followed words. James Brown of Peekskill issued a short note to
those holding Horton, confirming his free status: “[he is] a native of this
town, and a free man, and has a father living, who is anxious to have him
released, and is willing to offer any testimony concerning him in his power.”77
Westchester County leaders organized to steer Horton’s fate. Farmer Oliver
Green invited “citizens of West Chester County” to meet at his home, where
they would confirm Horton’s status, obtain his “immediate liberation,” and
express “their sense of this outrage on personal liberty in a territory under the
immediate jurisdiction and control of the government of the United States.”78
The men of Westchester were not the only ones to act on Horton’s case. Papers
reported how others had visited Horton in his cell, confirming what the ori-
ginal notice suggested: Horton was a free man whose father lived in Yorktown.
He provided the names of white men in New York City who would confirm
his story: a Judge Oglesby, a grocer named Abraham Pearce, and dairy oper-
ator Job Griffin. Horton had spent some time in New York City, enough time
to have develop white allies who could corroborate his story. There was “little
reason to doubt” the young man’s story, Horton’s visitors reported, adding
that they would “of course be happy to lend our aid to release him.”79 News
of Horton’s case reached Baltimore at the end of August, by way of a notice in
the Baltimore Patriot.80
Testimonials continued to surface, fueling the construction of legal
arguments back in Westchester. John Owen of Somers, New York, wrote in
32

32 Birthright Citizens

to the Commercial Advertiser to advise that Horton was “unquestionably a

free man,” having been manumitted and then apprenticed.81 With this and
other witness statements in hand, Oliver Green and Judge William Jay, son
of Governor John Jay, hosted Westchester’s public meeting on the evening of
August 30. The gathering issued eight resolutions, including one that turned
on state citizenship and a reading of the US Constitution: “Resolved, that the
fourth Article of the Constitution of the U. States, the citizens of each State, are
entitled to all the privileges and immunities of citizens of the several States; and
that it is the duty of the State of New York, to protect its citizens in the enjoy-
ment of this constitutional right, without regard to their complexion.”
Events unfolded quickly in the days that followed, made all the more
complicated by the delay in transmitting news between New York and
Washington. Governor DeWitt Clinton of New York was asked to issue a
demand for Horton’s release, which he did in a letter to President John Quincy
Adams. Clinton reiterated the conclusions of the Westchester meeting: Horton
was a citizen of New York being subject to a Washington law that was “at least
void and unconstitutional in its application to a citizen.”82 Horton was released
unconditionally, likely even before Clinton’s letter arrived.83
At least one newspaper’s editor advised that Horton’s “friends” should
“take immediate measure to enable him to prosecute the persons who have
subject him to imprisonment, for the double purpose of doing him justice,
and trying the question of the constitutionality, or unconstitutionality of the
act under which he suffered.” The editorial continued: “An action may be
commenced before the District Court, and carried to the Supreme Court of
the United States, where the specific question must be tried and determined.”84
William Jay issued a memorial to Congress consistent with the Westchester
resolutions: “The outrage offered to a citizen of this county, and a violation
of the constitutional rights involved in that outrage, afford to the meeting new
and strong evidence of the impropriety of the continuance of slavery.”85
Congress once again became a main stage. Horton’s dilemma was resolved,
but the debate continued. Exchanges about the rights of a free man of color and
citizenship in New York crystallized the tension between state citizenship and
those protections guaranteed to all citizens by the Constitution. The debates
of 1821 – over the constitutions of New York and Missouri – were revived.
Aaron Ward, a representative from Westchester County, set forth a resolution
that embroiled Congress in a disagreement over the status of Horton and men
like him. Ward’s objective was amending the laws of the District of Columbia
to prevent circumstances such as that which Horton confronted. The congres-
sional Committee on the District of Columbia would, by the terms of the reso-
lution, inquire into and consider the repeal of “any law that authorize[d] the
imprisonment of any free man of color, being a citizen of any of the United
States, and his sale as an unclaimed slave, for gaol fees and other charges.”
Ward explained that he was acting in accordance with his sense of duty to
his constituents and reminded the members of Horton’s case, describing the
33

Being a Native, and Free Born 33

latter as “a free man of color, and a citizen of that county, and of the State of
New York.”86
Ward anticipated objections, and his extended remarks urged that it was
“the duty of every Representative on this floor, to guard and protect the rights
of this Union,” including for free men of color. He alluded to the law under
which Horton had been detained and threatened with sale, and then gave a
brief treatise on its unconstitutionality. Article 2, section 3, protected a “free
citizen” from servitude for life without a trial and the allegation of a crime.
The Fourth, Fifth, and Sixth Amendments established the “absolute rights of
persons, and secure to every free person, whatever may be his complexion, the
right of personal security, personal liberty, and private property.” All citizens,
he concluded, were “entitled to the privileges and immunities of citizens in
the several states,” pursuant to article 4. To leave no doubt as to his position,
Ward reiterated that the district could not “strip the free man of color of his
privileges as a citizen of the free and independent State of New York.” He
challenged the House: “Is a free citizen, then, because his color happens to be
dark, to be less protected by the laws than the poor debtor, in the fangs of a
merciless creditor?”87
House members like John Forsyth Sr. of Georgia attempted to table or
otherwise defer consideration of Ward’s resolution. As Kentucky represen-
tative Charles Wickliffe explained: “He had no wish to see the Missouri
Question brought back into this house.” For those with memories of 1821,
the resolution’s terms – in particular, its claim that free men of color were
citizens entitled to constitutional protections – were “calculated to rouse
feelings and produce excitement.”88 And Wickliffe was right, if not about
Ward’s intent then about his effect. Forsyth captured the broad strokes
of the debate, explaining that there was a “radical difference of opinion.”
Some, he reported, “claim as a matter of right, that black persons, held to
be citizens of the United States, in the State of New York, should enjoy in
every other state the same privilege.” Southern delegates “deny this claim,”
he went on: “We hold that we have the right to exclude free People of Color,
to eject them and to limit their privileges, when we admit them to reside
among us.”89 Forsyth proposed a compromise. If Ward would admit that the
laws of the district were constitutional, he would endorse an inquiry into
altering them.90
Ward ultimately accepted the compromise, gaining an inquiry into the
laws of the district at the expense of making citizenship for free black people
a part of the formal record. Still, the debate exposed deep fissures among
lawmakers about black citizenship. Indeed, the exchanges on the floor of
Congress were broadly instructive as they reached a wide readership when
published in newspapers. It would be two weeks before the Committee on the
District of Columbia would return its recommendations. It proposed much of
the substance that Ward initially sought, including a prohibition against the
sale into slavery of free persons of color for “prison fees and other charges
34

34 Birthright Citizens

of apprehension.” Gone, however, was any mention of citizenship. In place of

Ward’s bold conclusions were terms such as “any person” and “free persons of
color.”91 When the committee’s final proposals made their way to the floor of
Congress later in January, the same conservative position held sway. Horton’s
case, while a triumph in the sense that his liberty was restored, was also a
defeat. Lawmakers had advocated that free black men and women were citi-
zens entitled to constitutional protections, but they had compromised on that
position when confronted with an entrenched opposition.92 Nothing in the
language of the final bills denied free black citizenship, but the silence reflected
a missed opportunity.93
Freedom’s Journal made the significance of Horton’s case clear for black
Baltimoreans. Lawmakers were divided in the wake of the mariner’s arrest,
moving closer to a legal regime that left free people of color presumptive slaves.
In Washington, one paper suggested, Horton as a citizen of New York was
as vulnerable to arbitrary treatment as he would be in “Algiers or Tunis . . .
Carolina or Georgia.” In a tone that bordered on outrage, Freedom’s Journal
urged its readers to sharpen their minds: “In common with other citizens, we
have rights which are dear to us; and we shall never sit patiently; and see
them trampled upon, without raising our feeble voice, and entering our protest
against the unconstitutionality of all laws which tend towards curtailing them
in the least degree.”94 Long after the debate faded, the antislavery press ensured
that Horton’s case remained instructive. William Lloyd Garrison’s Liberator,
in 1833 and 1834, recounted it and emphasized that lawmakers, from local
judges like William Jay to New York governor DeWitt Clinton and Congress
member Aaron Ward had asserted that Horton and men like him were citi-
zens of New York and of the United States.95 The story evidenced how free
black men and women had attracted highly placed allies to their cause. Their
assertions of citizenship were no mere flight of fancy. Horton’s trial and the
congressional debates that followed served as a lesson on how claims to citi-
zenship might be seriously debated and nearly won.96
Being smart about law was, as Horton’s case illustrates, not enough. Judges
and legislators predictably disagreed about the bounds of citizenship, leaving
free black men and women to arm themselves with knowledge and then to
hope for a lucky break if threatened with detention or worse. It was an uneasy
climate. Arguments for citizenship and against the terms of black laws had
become sophisticated and sometimes held sway. Still, Baltimoreans did not
enjoy even the modest assumptions that New Yorkers did when it came to citi-
zenship, and the pressure they faced would only increase. Baltimore’s port was
a gateway to knowledge. It was also a locus for exit schemes, be they designed
as voluntary emigration or coerced colonization. Black activists there would
craft their own strategies for self-defense and begin to draw on ties to local
legal minds to build their claim to place.
35

Threats of Removal
Colonization, Emigration, and the Borders
of Belonging

Ideas about emigration, colonization, and antislavery mixed during an 1824

gathering in Baltimore’s Bethel Church. The catalyst was the visit of the Haitian
military officer and government representative “Citizen” Jonathan Granville.
The white-led Baltimore Emigration Society sponsored the Baltimore leg of a
tour that also included Philadelphia, New York, and Boston. Granville’s aim
was to entice free black people to abandon the United States, for most their
place of birth, and migrate to Haiti and a chance at belonging. Baltimore’s
critics of slavery – black and white – gathered in the city’s most important
African American sanctuary to consider the future.
Black men came to the meeting as heads of households, church leaders,
journalists, entrepreneurs, and laborers. To them, the prospect of emigration
was not wholly new; Haiti had been on the table for some years, pushed there
by increasingly oppressive conditions in the United States. Now the Caribbean
republic offered a new pull: enticements that contrasted with the dim prospects
of a future in Baltimore. Foremost were promises of “economic opportunity,
equality, and citizenship,” the latter guaranteed by a constitutional provi-
sion.1 There were material incentives as well. Haiti’s president, Jean-Pierre
Boyer, had authorized his emissary to defray the costs associated with reloca-
tion. On arrival, emigrants would receive land and provisions for setting up
their households. The crowd at Bethel Church probed Granville, giving voice
to their doubts. Once satisfied, they pledged to seek a “speedy” and “effec-
tual” emigration. Twenty-five men – including Charles Hackett, James Deaver,
Robert Cowley, and Moses Freeman – were appointed to “confer with the free
people of colour” and continue the work.2
The consensus evidenced during Granville’s visit covered over the indeci-
sion and insecurity that gripped black Baltimoreans.3 In the weeks and months
following the Bethel Church meeting, those who had signed on to support
emigration veered off track. Some did try to keep their promise. For example,

35
36

Figure 2.1 The first “colored” convention. The black convention movement was
a crucible for ideas about black citizenship. Baltimore activists, including Hezekiah
Grice, aided the movement’s founding and drove thinking about birthright citizenship
both within and outside of convention proceedings. Image courtesy of the Colored
Conventions Project.
37

Threats of Removal 37

AME minister Moses Freeman asked to be sent to Haiti as a missionary, only to

be refused.4 More typical were the men who stayed put. Charles Hackett never
left Baltimore and instead became an agent for Freedom’s Journal. Thomas
Green and Robert Cowley joined the black-led convention movement.5 James
Deaver joined with activists Hezekiah Grice and William Watkins to form a
Legal Rights Association that aimed to establish black rights in the United
States.6
By one measure, Granville’s visit was not a success in that few Baltimoreans
migrated to Haiti. Still, it was the sort of occasion that built relationships
between black and white activists through debates about colonization, emigra-
tion, and antislavery. With this came new exchanges about law. The Haitian
Emigration Association’s secretary, Daniel Raymond, was a lawyer, political
economist, and expert on race and law.7 In the 1810s, Raymond represented
enslaved people in a series of complex freedom suits.8 He was briefly a pro-
ponent of colonization and emigration, but by 1825 Raymond was an
antislavery organizer running for the Maryland State Assembly on a gradual-
emancipation platform.9 Newspaper editor Benjamin Lundy closely chronicled
Granville’s visit and more broadly reported on developing debates about
race and rights. Lundy soon counted among his close associates Raymond,
Hezekiah Grice, and William Watkins.10 These were networks by which black
activists further developed their insights about law, generally, and rights under
the Constitution in particular.11
This chapter explores how the borders of African American belonging were
tested in the 1820s.12 The expansion of the colonization movement brought
debates from Congress and attorneys generals’ opinions into African American
public culture. Since the 1810s, colonization advocates had promoted the view
that there was no future for an interracial democracy in the United States. The
movement’s leaders supported slavery’s gradual abolition but feared a further
increase in the number of free African Americans. To avoid that demographic
shift, there was but one solution, it was said: The removal of former slaves and
their descendants to colonies in Africa or elsewhere. The American Colonization
Society (ACS) held its first meeting in 1817, and by 1821 it had established the
West African colony of Liberia. Committed to black expatriation, colonization
remained premised in the consent of free black people; the movement did not
call for large-scale, forced banishment from the United States. Still, free African
Americans viewed proposals for their removal as undercutting their status as
citizens, and they organized against the ACS.13
Emigration was, however, a notion apart from colonization. It was premised
in voluntary decisions by African Americans to leave the United States for
locales such as Haiti, Canada, and beyond. Emigration advocates lamented
that, despite having proven their belonging through their labor and the con-
struction of a black public culture, black Americans could not expect recog-
nition of their rights as citizens. Colonization, in its most common form, had
a paternal caste. Its proponents believed that black people would be happiest
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38 Birthright Citizens

in a black-led republic, beyond the contempt of and competition with white

Americans. Emigration advocates never conceded this point. Instead, they
underscored the pressure on African Americans to leave their homeland in
the face of the threats that black laws and colonization imposed on daily life.
Emigration to Haiti, for example, offered a balm. Wounds inflicted in the
United States would be healed, as William Watkins explained on an occasion
marking France’s diplomatic recognition of Haiti, by being “admitted as citi-
zens of a republic.”14
The line between colonization and emigration was real, distinguishing self-
determination from compulsion. Still, not all black men and women were
of one mind in the 1820s, and in Baltimore they returned time and again to
debates over colonization. Views about citizenship marked the divide. One
pro-colonization memorial lamented: “Our difference of color, the servitude of
many and most of our brethren, and the prejudices which those circumstances
have naturally occasioned, will not allow us to hope, even if we could desire,
to mingle with you one day, in the benefits of citizenship.”15 This was the voice
of those who were resigned to being noncitizens. Others – including Baltimore
minister, educator, and activist William Watkins – thought otherwise. He
mocked those who suggested that black men could never “enjoy the unalien-
able rights of man” and the “privileges of freemen.” Rather than benevolence,
Watkins asserted, colonization reflected an effort to be rid of a “dangerous
element in the general mass of the free blacks . . . a greater nuisance than even
slaves themselves.”16 Through debates over colonization, African American
ideas about law and citizenship were, out of necessity, worked out.17
Colonization cut close to home for black Marylanders by 1830. Congress
never formally supported the scheme, but in Maryland lawmakers gave
the movement political support and public dollars. The state’s colonization
advocates – including the presiding City Court judge Nicholas Brice – split
from the ACS. The resulting Maryland State Colonization Society secured a
modest appropriation of $1,000 per year.18 By 1831, its first expedition aboard
the schooner Orion was bound for Monrovia, Liberia. It had attracted thirty-
one emigrants, just half the ship’s capacity, at best a modest success. Most free
black people did not sign on. Some flirted with the movement, a reflection
of their despair about a future in Baltimore, and many felt the effects of the
movement as migrants bound for Liberia passed through on their way to the
port.19 Public meetings encouraged free black Baltimoreans to reconsider their
prospects in Liberia.20 This climate never drew black Baltimoreans to colon-
ization in significant numbers, but it did make the movement and its drive to
remove them ever present.
By 1831, even superficial support for colonization disappeared. Instead,
organizing against the movement led to new, constitutionally grounded
arguments against the displacement of free black Baltimoreans. Benjamin
Lundy’s Genius of Universal Emancipation noted that an anti-colonization
movement among black activists was gaining full force in New York,
39

Threats of Removal 39

Philadelphia, and Boston. But first up was a gathering in Baltimore, a self-

described “respectable meeting of persons of color.” Leaders included itin-
erant minister William Douglass and teacher William Watkins.21 Watkins
had signed on to the 1824 call for emigration to Haiti. At the time of the
Baltimore meeting he was leading the opposition. The meeting’s resolutions
urged “caution” and “distrust” and charged the ACS with being driven by
“selfish policy” rather than “benevolence.” Schemes to remove free black
Baltimoreans were countered with claims to place: “Resolved, That we con-
sider the land in which we were born, and in which we have been bred, our
only ‘true and appropriate home.’ ”22 It was one element of an emerging
claim to birthright citizenship.
Hezekiah Grice later termed his experience in these years his “Dred Scott
case.”23 His ideas about the legal status of free African Americans were being
tested, and the long-time Baltimorean stood at a crossroads. Should he remain
in Maryland or venture to a place where citizenship and rights would not be
denied because of color? There might be, he believed, some promise in staying
put, if only he could be certain about his status as a citizen. Grice had come of
age in the wake of Maryland’s 1802 elimination of black voting rights. Freeborn
in rural Calvert County, as a teen Grice had thrown off the obligations of
apprenticeship and migrated to Baltimore. By the 1820s, he was a young man
and formally schooled. Grice associated himself with Benjamin Lundy and
William Lloyd Garrison, critics of slavery who edited the Genius of Universal
Emancipation.24 Like Charles Hackett, he was an agent for Freedom’s Journal.25
Though allied with early abolitionist thought, Grice’s views were independent
and a work in progress. He did not immediately reject the prospect of leaving
the United States.26 He studied migration to Canada, publishing a map of likely
destinations in 1830.27 And he was also an ally to those, like New York–based
journalist John Russwurm, who volunteered for migration to Liberia under the
auspices of the American Colonization Society.28 Grice considered migration to
Africa closely enough that he spearheaded the development of a black-owned
trading company that proposed transporting goods and people between the
United States and Liberia.29
In Baltimore, Grice, along with William Watkins and James Deaver,
founded the city’s Legal Rights Association. Watkins, raised in the city’s black
Methodist community, published commentary in Lundy’s Genius of Universal
Emancipation, and later in Garrison’s Liberator, under the pen name “A Colored
Baltimorean.”30 Deaver, like Grice and Watkins, was an AME Church activist
and a seasoned leader who served as president of Baltimore’s African American–
led Friendship Society, whose members supported the city’s early antislavery
movement.31 They put questions about rights into the air in Baltimore. Deaver,
for example, presided over a Friendship Society gathering at which the toasts
included: “Give us our rights, and our motto shall be also, ‘Our Country right
or wrong’ ” and “Emancipation without emigration, but equal rights on the
spot.”32 These men asked whether the United States Constitution provided for
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40 Birthright Citizens

birthright citizenship and thus promised black Americans its privileges and
immunities as provided for in article 4.33 Together, Grice, Watkins, and Deaver
sought to learn what they needed to know and to secure allies in efforts to
ascertain “the legal status of the colored man in the United States.”34
Watkins explained the Legal Rights Association’s ideas for readers of
Lundy’s Genius of Universal Emancipation. His reflections were provoked
by the annual celebration of July 4th. Of the Declaration of Independence,
he said:
This imperishable document, whose attributes are truth, justice, and benevolence, has
declared to the world that liberty, in the full sense of the word, is the birth-right of “all
men”; (consequently, of every colored man in the Union;) that we are not only “born
free,” but have, by virtue of our existence, “certain rights,” which are emphatically
termed “inalienable.”35

Watkins posed a question about the degree to which the Constitution affirmed
the Declaration’s ideals: “The Declaration of Independence is our advocate,
and we hope it will yet be ascertained, whether or not the Constitution of the
U. States secures to us those rights which the Declaration so freely accords.”
This close reading led to important questions:
Why, I emphatically ask, should we not enjoy those rights which all must confess have
been wrested from us without the shadow of a crime? What evil could possibly accrue
from the adoption, by the white people of this nation, of a liberal, just, and humane
policy towards three hundred thousand of the home-born citizens of the United States?36

Black laws and colonization were an abrogation of birthright, Watkins

suggested.
Grice worked within the earliest African American political conventions,
and there developed ideas about colonization and citizenship. Accounts vary
on who initiated the movement’s first meeting in 1830. Some historians credit
Grice himself, whose circular called for a national convention.37 Others say
Grice was among the first to respond when men from New York issued a call
to convene.38 Whatever the movement’s origins, Grice’s leadership is under-
stood to have been foundational to organizing against colonization and
black laws.
Only a handful of men served as delegates to the first convention in 1830,
and Grice was among them. There, they took up the question that had animated
earlier debates in Congress and state constitutional conventions: What was
their standing before the law?39 Situated, as the question was, in the context of
repressive statutes and schemes of removal to Africa, it took on new import.
Delegates produced resolutions premised in their status as noncitizens of the
United States. They held out northern Canada as an alternative for emigration
because there, it was said, black men and women would enjoy rights unfettered
by racism. By 1831, however, the convention’s premise had changed. No longer
did Canada alone promise citizenship. That convention’s second resolution
41

Threats of Removal 41

directed that “the Declaration of Independence and Constitution of the United

States, be read in our Conventions; believing, that the truths contained in the
former are incontrovertible, and that the latter guarantees in letter and spirit
to every freeman born in this country, all the rights and immunities of citizen-
ship.”40 Objectives were moving toward a bold claim: From birthright flowed
an entitlement to the privileges and immunities of citizens for all Americans,
black and white. Grice was captivated by this possibility.
At the same time, Grice, Watkins, and Deaver worked their connections to
white legal analysts, building their case. They turned to a local authority who
was controversial at best: John H. B. Latrobe. A lawyer and philanthropist,
Latrobe had been a colonization advocate since at least 1822.41 Latrobe read
law with Robert Goodloe Harper and shaped practice in the state through
publication of his 1826 The Justices’ Practice under the Law of Maryland,
which was many times republished.42 By 1831 Latrobe was poised to become
the first president of the Maryland State Colonization Society. He was not a
likely ally. Latrobe was no expert on citizenship, and his commitment to the
removal of free black Marylanders ran against the Legal Rights Association
view. He was, however, an available accomplice.
There was some common ground between Latrobe and the Legal Rights
Association. The man who would become Maryland’s most devoted advocate
of colonization had built his reputation as a lawyer in part by representing
free black men and women. As a young lawyer in the early 1820s, Latrobe
made himself visible on court days, hoping to pick up a case or two, thus
building a practice and a reputation. As Latrobe wrote in his diary, his
earliest clients were free black Baltimoreans. When accused of petty crimes
and facing summary trials, black men and women were assigned counsel
and Latrobe was among them. His first courtroom victory came when he
represented a “colored” man accused of larceny. His defense was vigorous
and the state’s attorney finally abandoned the prosecution. Latrobe’s client
was acquitted.43
Once he was an established lawyer, Latrobe was sought out by black
Baltimoreans for his advice. The case of Hamlet Nicholas offers a glimpse of
how attorney Latrobe worked with black clients, and how they viewed the
experience. Nichols visited Latrobe’s office, reporting he had trouble paying
his rent. Latrobe called on Nichols’s landlord and negotiated a settlement by
which the apartment was surrendered but the man’s furniture was saved.44
Soon Nichols was back in Latrobe’s office explaining that his landlord had
not honored their settlement. Latrobe again got between the parties, this time
advising Nichols to pay part of his rent arrears and the related court fees as
a means of ending the matter. Latrobe took the occasion to reflect on how
Nichols had understood the dispute and what it meant to come before the
“law.” “The law,” Latrobe wrote, “in the eyes of the lower classes, is a most
powerful engine, and when engaged in it they fancy that they possess the
very thunder bolts of destruction.”45 Nichols and men like him saw in law a
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42 Birthright Citizens

power mighty enough to destroy their opposition. Latrobe was not sure they
were right.
It was summer of 1827 when William Watkins called on Latrobe, and the
timing was no accident. Baltimore’s mayor, Jacob Small, had issued a “proc-
lamation ordering the colored people to be taken up after 11 o’clock pm.”46
Published in the city’s newspapers, the notice directed city watch men to “arrest
. . . all persons of colour found in any of the streets, lands, alleys, or any open
grounds in their respective Wards, at or after the hour of 11 o’clock, P.M.
unless such person shall have a written permit, from his or her master or mis-
tress.”47 It was a curfew that discriminated between black and white residents.
Watkins’s question: Was such an order “constitutional?”48 Latrobe obliged
with an answer. And while his notes do not reflect its substance, he provided
Watkins with an opinion on “the mayor’s notice ordering the watchmen to
apprehend all colored people after 11 o’clock pm.”49 Seven months later, the
Legal Rights Association was still paying off Latrobe’s fee. The transaction
may have had its origins in politics, but it was also good business for Latrobe.50
Hiring Latrobe was just a beginning for the Legal Rights Association. When
Grice and Watkins next required a legal opinion, they did not, it seems, return
to the office of the city’s chief colonizationist. Perhaps his opinion did not
please, or his fee was too high. In any case, they need not have gone to Latrobe
again. Baltimore was home to many of the country’s best legal minds. Just a
half dozen short blocks west of the city courthouse, on Baltimore Street, lived
a leading expert: William Wirt, the former US attorney general.51 Wirt had
settled into family life and private practice in Baltimore after more than twenty
years in Washington.52 His reputation was formidable. Early nineteenth-
century Americans knew him as an author of political essays and biographical
sketches.53 As a trial lawyer and appellate advocate, he was admired for his
affecting arguments in such landmark cases as McCullough v. Maryland and
Gibbons v. Ogden.54 Wirt firmly established the office of the attorney general
through development of its structure and record keeping during his long period
of service, from 1817 to 1829.55
Most relevant for Grice and his associates, Wirt was among the nation’s
greatest authorities on citizenship. This did not mean he was an ally; his record
was mixed. In 1821, as attorney general, he was asked if a free black man could
command an American merchant vessel when federal law barred noncitizens
from commanding such ships. He reasoned that if free black Virginians were
not full citizens of their state, they could not be citizens of the United States for
this purpose.56 His opinion left the door open to another conclusion: If a black
person was deemed a citizen of his individual state, he could also be a citizen
of the United States: “I am of the opinion that the constitution, by the descrip-
tion of citizens of the United States, intended those only who enjoyed the full
and equal privileges of white citizens in the State of their residence.”57 Three
years later, in 1824, Wirt was asked to render an opinion on South Carolina’s
Negro Seamen’s Act, which provided that black mariners entering the state
43

Threats of Removal 43

were subject to detention while their ship was at anchor. Wirt deemed the
statute to be unconstitutional, holding that only Congress had authority to
regulate such terms of commerce.58 The decision was not a direct affirmation
of free black rights, but it put Wirt on the right side of the question.
Black activists saw useful equivocation in Wirt’s position. They pointed
out that he had, also as attorney general, granted patents to African
Americans. Federal patent law generally denied patents to those who were
not citizens. The prohibition against issuing patents to “foreigners” had not
been part of the original 1790 legislation and was inserted three years later.59
New Yorker Thomas Jennings, Grice’s colleague in the early convention
movement, displayed his 1821 patent certificate in a gilt frame, hung on the
wall of his home.60 The certificate evidenced Jennings’s skill and ingenuity
in having invented “a method of renovating garments.”61 As important,
the certificate enjoyed pride of place because it implicitly affirmed the free
black clothier’s United States citizenship, signed by Wirt and President John
Quincy Adams.
It was Wirt’s legal work in defense of Cherokee sovereignty that best
established his reputation on constitutional questions. Wirt was not a political
ally to the Cherokee. Indeed, he had previously undercut native sovereignty
by, for example, ruling against the Cherokee on a question of that nation’s
power of taxation.62 But in the early 1830s, he acted as a skilled advocate
when arguing Cherokee Nation v. Georgia (1831) and Worcester v. Georgia
(1832) before the Supreme Court.63 The retired attorney general was clear with
the Cherokee leadership that he was not a cause lawyer, and he charged his
customary fees.64 Still, Wirt loaned his reputation and skill to the Cherokees
and succeeded in having Georgia’s regulations deemed unconstitutional. Only
Congress, the Supreme Court ruled, could regulate the relationship between
the state, its citizens, and the Cherokee nation. It was a short-lived victory for
native sovereignty, however. President Andrew Jackson and state lawmakers
would conspire to circumvent the court’s ruling. The subsequent removal of
native peoples from the southeastern United States, remembered as the Trail
of Tears for its mortal brutality, would only reinforce free blacks’ fears about
colonization’s grave potential.
The two matters – Indian sovereignty and free black citizenship – were not
closely linked in a doctrinal sense. Advocates for the Cherokee people relied
principally on an interpretation of the Constitution’s provision for treaty-
making power, as set forth in article 2. Free black activists, alternatively,
looked to the Constitution’s implicit granting of birthright citizenship and the
protections extended by way of article 4’s privileges and immunities clause. The
arguments were rooted in different premises: the Cherokee were protected as
noncitizens of the United States, and African Americans were safeguarded pre-
cisely because they were birthright citizens. Still, black Baltimoreans drew an
analogy between Indian removal and black colonization.65 Both circumstances
turned on questions about the authority of the United States, or an individual
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44 Birthright Citizens

state, to remove residents from the land. In Baltimore, an 1831 gathering of

black activists explained:

The American Colonization Society, then, stands in the same attitude to our colored
population, as Georgia does to the Cherokees. It willfully disregards their earnest,
unequivocal and reiterated desires, pretending at the same time to be actuated by the
most disinterested and benevolent motives; promising to remove them to Africa only
with their own consent; yet determinist by every artifice to render their situation so
intolerable here, as to compel them to emigrate.66

The Cherokee example was a cautionary tale for free African Americans who
worried that if “a colony was formed for the blacks in the United States,
they would in a short time be removed, as has been the case with the poor
Indians.”67 Missives about the dangers of colonization were, at times, aimed
directly at men like Wirt, who had committed themselves to the interests of
the Cherokee:
Finally, we hope that those who have so eloquently pleaded the cause of the Indian,
will at least endeavor to preserve consistency in their conduct. They put no faith in
Georgia, although she declares that the Indians shall not be removed but “with their
own consent.” Can they blame us if we attach the same credit to the declaration that
they mean to colonize us “only with our consent”? They cannot use force; that is out
of the question. But they harp so much on “inferiority,” “prejudice,” “distinction” and
what not, that there will no alternative be left us but to fall in with their plans.68

The antislavery press lauded Wirt’s arguments on behalf of the Cherokee:

“William Wirt has done that for the unprotected Indian – that for humanity –
that for the sacred chastity of our national honor, which entitles him to
the deep gratitude, the exalted admiration of every American bosom.”69
Black activists saw how the former attorney general used the Constitution
to defend the sovereignty of native people and the right of the Cherokee
people to remain in place, as citizens of their own nation. Wirt argued that
Georgia was barred from enforcing the laws by which it hoped to strip the
Cherokee of national political powers and make them second-class citizens
“of color.”70
This is certainly what Hezekiah Grice had on his mind when he “called on”
Wirt. First, the two talked dollars and cents, with Wirt explaining that the fee
for his opinion would be fifty dollars. Grice replied he was prepared to pay
that much for an “opinion on the legal condition of a free colored man in these
United States.”71 Wirt then imposed a second condition, insisting that Grice’s
questions be “written out in proper form.” Grice assented, and left to have his
questions drawn up by John Tyson, a local trial lawyer, state legislator, and
nephew of the Quaker antislavery philanthropist Elisha Tyson.72 Tyson worked
with Grice, drawing up “a series of questions, based upon the Constitution of
the United States, and relating to the rights and citizenship of the free black.”
But when Grice returned with the questions, Wirt dodged. He deemed Grice’s
45

Threats of Removal 45

request a “delicate matter” for “an officer under the government.”73 As such,
Wirt explained, he was not in a position to “answer these questions as they
should be answered.” It was a thinly veiled brush-off. Wirt was a private citizen,
not a public official, and regularly offered legal opinions for a fee.74 His work
on behalf of the Cherokee evidenced how far he was willing to go in a “delicate
matter.” Still, he declined to assist Grice. In the end, Wirt offered Grice only a
sliver of encouragement. Regarding his questions, the former attorney general
agreed “they should be answered, and by the best legal talent of the land.” With
that, Writ sent Grice to Philadelphia attorney Horace Binney.75
Wirt frustrated Grice. Still, there was some sense in what he recommended.
Wirt held Binney in high esteem, so much so that he consulted Binney on
strategy in the Cherokee cases.76 Binney would have been a familiar figure as a
lawyer of great reputation. He had served as a legislator in Pennsylvania and
Washington, DC, and was more independent of political interests than was
Wirt.77 For men like Grice, Binney’s reputation included his leadership in the
antislavery conventions of the 1820s. For example, Binney had served along-
side Baltimore’s Daniel Raymond as a counselor to the American Convention
for Promoting the Abolition of Slavery in 1828.78 Binney was likely admired
by Baltimore’s black Methodists for having defended Philadelphia’s Bethel
Church against takeover attempts by white church leaders in 1816.79 Despite
his remarkable track record of work with black activists, Binney, like Wirt,
sidestepped Grice’s request. He was, the lawyer advised, unable to take on
the matter owing to “age and poor eyesight.”80 Binney then referred Grice to
another colleague, attorney John Sergeant.81 Sergeant, too, had a well-known
reputation as an antislavery activist. He had, as Binney explained to Grice, the
“requisite character and weight” that Grice’s issue demanded.82
Again Grice received a rebuff that was cloaked in some truth. Sergeant had
served as Wirt’s cocounsel in Worcester v. Georgia and was developing a strong
reputation before the Supreme Court. He also had been a “counselor” to the
Pennsylvania Abolition Society.83 In 1816, as a member of Congress, Sergeant
presented a petition on behalf of the Abolition Society calling for a national
law that would discourage the kidnapping of free African Americans.84 Like
Raymond, Sergeant had attracted the criticism of proslavery Southerners when
he traveled south seeking to advocate on behalf of a man held as a fugitive slave.85
His record distinguished him as an ally to free black Americans. Sargeant was,
as Grice later told it, most amenable to providing an opinion. But he imposed a
condition: Binney, too, must “allow his name to be associated as an authority in
the replies.” When Binney again declined, the matter “fell through.”86
These were formative moments for the development of ideas about black
citizenship. The scale of deliberations vacillated between grand public debates
and intimate law office encounters. Men like Watkins and Grice were learning
lessons that no text could teach: The Constitution provided a basis for
their claim to citizenship. But the text alone would not suffice. There were
arguments to be honed and minds to be influenced. And the stakes were high.
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46 Birthright Citizens

Colonization and black laws did not, on their face, require the removal of
black Marylanders. But their effect was to create a climate in which pressure to
consent to exile was heavy and persistent.
The situation in Baltimore took a sharp turn in the fall of 1831 that the
Legal Rights Association could not have anticipated. A Southampton County,
Virginia, slave uprising led by Nat Turner reverberated throughout Maryland.
In August, Turner and upward of sixty enslaved people carried out what is
remembered as the most deadly slave rebellion in the United States. Over two
days, an organized band worked to foment open revolt, freeing slaves and killing
whites. Eventually they were overwhelmed by local militias and naval artilleries,
and in the hysteria that followed, scores more black Virginians were killed. The
county convicted and then executed fifty-six slaves said to have been among
the rebels, but even this did not quash white fears. Reprisals took many forms,
including the enactment of new, stringent black laws aimed at suppressing the
rebellious influence that free black men and women were said to present.87
Reverberations reached the mayor’s office in Baltimore. Residents reported
new fears about free black city dwellers. Whether accurate reports or apoc-
ryphal tales, their letters show how events in rural Virginia might have led to
changes in urban Maryland. One report explained that, for “several nights
past,” a “number of Blacks” had been “assembling in military uniform –
toward the west of Saratoga Street . . . about midnight with their captain at
their head giving orders and putting them through their military exercise.” The
anonymous informant warned: “Citizens of Baltimore be on your guard – for
this is a fact.”88 A crudely penned note explained that at a place about four-
teen miles from the city “the colored people intend [illegible] her on Saturday
next to go to Baltimore.” As a “preacher,” the writer pledged, “I will strive
to stop dem when we gets to the city.”89 The mayor’s records also include a
letter alleged to be an exchange between free black men conspiring to bring
Turner and his rebellion to Baltimore: “Brother Jon told me that there was
eight hundred people in town that was going to help murder the damd [sic]
white people.”90
William Watkins took up pen and paper to fire back against renewed calls
for radical, forced colonization. “We would rather die in Maryland under the
pressure of unrighteous and cruel laws than be driven, like cattle, to the pesti-
lential clime of Liberia . . . Our limits will not permit us to expatriate.” Watkins
felt himself “emboldened” and used his voice to expose what was soon to come
from the state legislature. He warned that Maryland would seek to “colonize
her own free blacks,” but without the “usual qualification.” Gone from the
equation would be “consent.”91 He was right in anticipating what lawmakers
in Annapolis had in mind.
The legislature’s response was led by Octavius Taney, a member of the state
senate’s committee on the “condition of the colored population” and brother
of then United States attorney Roger B. Taney. Octavius Taney took direct aim
at Maryland’s free African Americans, seeing in them the seeds of slave unrest.
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Threats of Removal 47

His aim was the wholesale removal of free black men and women. For men like
Grice and others associated with the Legal Rights Association, such a proposal
provided one answer to the questions they had privately posed to lawyers, and
it was crushing.
This was radical colonization. Taney set out his scheme to “facilitate the
removal of the free persons of color from our state, and from the United States”
in early 1832.92 He proposed that Congress fund the effort, going so far as to
urge an amendment to the United States Constitution that would authorize
such an appropriation were it deemed otherwise beyond Congress’s authority.
Even this state-level lawmaker recognized the constitutional problems that
forced removal might present. Taney’s scheme might have sounded like no
more than an effort to fund existing colonization programs, but there was no
such conditional language in his resolution, no hint that removal would be vol-
untary. The matter was referred to a joint committee of the Maryland Senate
and House of Delegates, at which point Taney showed his hand, exposing the
tenor of his measure. He was proposing a stopgap that would, on behalf of the
citizens of Maryland, hold “persons of color to service for a term of years,”
indenturing or transforming them into term slaves. Taney’s aim: “to prevent
their absconding.” Rather than waiting to be removed from the state and the
nation, Taney anticipated that free black Marylanders would flee the jurisdic-
tion.93 His was, it seemed, no benevolent, long-term colonization proposal.94 It
was a new strain and it was radical.
Baltimore’s black activists watched with concern. Taney’s proposal came
back from committee dubbed the Hughlett bill, and passed in the Senate. No
subsequent action was reported in the House of Delegates. Still, by March
of the same year a joint committee had come back with what amounted to
a code that regulated free African Americans in Maryland in newly wrought
detail. Newcomers were barred from immigration into the state or sojourning
therein for more than ten days. Those already in the state who ventured away
for more than thirty days were to be deemed “aliens.” Gun ownership required
a license for free black people in Maryland. Religious meetings outside the
presence of a white preacher were banned, except in the cities of Baltimore
and Annapolis, where written authorization would suffice. Marylanders were
prohibited from purchasing from free black people foodstuffs and staple crops,
unless in possession of “written authority.” Merchants faced fines if they sold
“ardent spirits, gunpowder, shot, or lead” to any “free negro.” Nor could free
black men sell “spirits.”95 Although these black laws did not expressly amount
to removal, free black men and women saw them as an effort to force them to
flee the state’s oppressive laws and the penalties for which they provided.
Taney did not wholly fail. Maryland stepped into the breach left by
Congress’s failure to fund colonization. State lawmakers created the Maryland
State Colonization Society, which was rooted in consensual removal. People
of color “willing to remove out of the state and to the colony of Liberia . . . or
such other place” might be aided by the state’s colonization organization and
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48 Birthright Citizens

the public dollars appropriated for that purpose. Framed by new legislation
that promised to constrain daily life, colonization might seem more attractive.
Some black Baltimoreans continued to consider Liberia, for now they were
more vulnerable than ever.
What only a few Marylanders likely knew was that at the same moment his
brother was contemplating the forced removal of free black people from the
state, Roger Taney was also considering what limits the Constitution might
set when it came to free people of color. Secretary of State Edward Livingston
requested that the attorney general provide an opinion on the constitutionality
of South Carolina’s Negro Seaman’s Act. It was far from a settled matter, Taney
explained: “My two immediate predecessors in the office of attorney general of
the U. States have as you know differed in opinion on this question. It cannot
therefore be regarded as a settled point. Nor free from difficulty.” Taney would
not venture how the nation’s high court might rule: “It is impossible to foresee
how it may ultimately be decided in the Supreme Court.” Still, his conclusion
was unequivocal:

In my opinion South Carolina or any other slaveholding state has a right to guard
itself from the danger to be apprehended from the introduction of free people of colour
among their slaves – and have not by the constitution of the U.S. surrendered the right
to pass the laws necessary for that purpose. I think this right is reserved to the states &
cannot be abrogated by the U. States either by legislation or by treaty.

Octavius and Roger Taney contemplated two sides of the same coin in
1832: the former considered how the Constitution viewed the removal of free
African Americans, and the latter, how it viewed their exclusion.96 The view
of Octavius was a matter of public record. Roger Taney’s opinion remained
unpublished and known only to those with official dealings in Washington, at
least for the moment.
Hezekiah Grice watched this with what certainly must have been a mix
of disappointment and fear. He weighed options: Baltimore and the threat
of schemes to reenslave or remove him, or Haiti and the prospect of full
citizenship. He chose the latter. The man who had helped found the colored
convention movement and created Baltimore’s Legal Rights Association left
the United States. Before doing so, he made one last public appearance at
the 1832 black national convention. It was an awkward scene. Grice, who
had played a key role in bringing such gatherings into being, was politely
excused: “We tender to Mr. Hezekiah Grice, our sincere thanks for the valu-
able information contained therein, but that we respectfully decline any
interference, as a body.”97 It is unclear what precisely preceded Grice’s dis-
missal. What was his “interference”? Some scholars have suggested that he
put the issue of Haitian emigration on the table. But the wording of the
minutes suggests that it was the result of his consultations with Wirt, Binney,
and Sergeant that did not fit with the convention’s agenda: “It was moved
that the documents or interrogatories of Mr. Grice, a representative of the
49

Threats of Removal 49

Legal Right Society of Baltimore be reconsidered . . . we sincerely hope that

the Society will persevere in its laudable undertaking, and that as individ-
uals we will give it our best support.”98 Disappointment surely characterized
Grice’s feelings. He had been rebuffed by some of the nation’s legal greats
and refused a full hearing by his own compatriots. He gave up his home in
Baltimore and moved to Haiti’s capital, Port-au-Prince. There, he arrived
a free man and skilled worker with expectations of being a full and equal
citizen.99
Their alliances with even sympathetic lawyers generated more frustra-
tion than progress. Colonization was unjust, they were sure. Still, black
Baltimoreans did not forget that promise of the port. It might be a better
gateway to citizenship elsewhere. Hezekiah Grice and other emigrants were
a minority, but all black Baltimoreans understood why Grice took the step
he did. The promise of rights in Canada, Liberia, and Haiti was a standard
by which black men and women measured their own status. The contrast
might lead them to organize at home, or it might lead them to board a ship
and head to sea.
50

Aboard the Constitution

Black Sailors and Citizenship at Sea

William Watkins took the occasion of the “Anniversary of American

Independence” to condemn the day’s contradictions. While many white
“freemen” celebrated “the ‘self-evident’ truths that all men were created equal,
and endowed by their Creator with inalienable rights,” Watkins found him-
self downcast and contemplative on the Fourth of July, “feeling the injustice
done me by the law of my country.” Maryland’s growing support for coloniza-
tion especially provoked him. The prospect of removal from the United States
was “anti-christian and anti-republican,” he wrote in the Genius of Universal
Emancipation. Nothing in the past nor in the present dictated that black men
and women would “never enjoy . . . the rights of freemen.” Nevertheless, it was
a day of solemn reflection for black Americans, and Watkins related that he
would “retire from the exulting multitude . . . to contemplate the past and the
present as connected with . . . history in the land of our nativity.”1
In his commentary Watkins set out some of the ideas generated by his work
with the Legal Rights Association. He was confident about the meaning of the
Declaration of Independence. Its “light and power” extended “to the oppressed
of every clime” and would “never permit . . . the perpetuation of our deg-
radation.”2 But there was work to be done: “We hope it will be ascertained,
whether or not the Constitution of the U. States secures to us those rights which
the Declaration so freely accords. We shall then, perhaps, have a little more
light upon the absurd doctrine of our everlasting degradation in America.”
Watkins explained that black Americans, by their own “unremunerated labor,”
evidenced their belonging, in building the nation, purchasing their freedom,
and acquiring “something like a competency.” The improvement of the minds
of African Americans – “intellectual elevation . . . proficiency in the arts and
sciences” – refuted the colonizationist view that black men and women were
destined for “everlasting degradation in America.” Citizenship was doctrine. It
was an ideal. And in Watkins’s view it could be claimed through the quotidian

50
51

Figure 3.1 Seamen Protection Certificate. Protection certificates were intended to

shield all American sailors from foreign impressment while at sea. For black seamen,
such certificates also affirmed their status as birthright citizens of the United States in an
era when most authorities otherwise openly debated black belonging. Image courtesy of
the National Archives and Records Administration.
52

52 Birthright Citizens

efforts of those from whom it had “been wrested.”3 Watkins spoke as a citizen
or, as he put it, one of the “three hundred thousand . . . home-born citizens of
the United States.”4 He also spoke as an educator, and it was his work as a
teacher and schoolmaster of the Sharp Street Methodist Church that embodied
Watkins’s approach to securing rights in the everyday life of Baltimore.5 Across
generations, in William Watkins’s words, education enabled “the citizen to fly
over the country as it were on the wings of the wind.”6
His students embodied Watkins’s vision of what education could accom-
plish. Among them had been George Hackett, Charles Hackett’s son. George
had grown up in Baltimore and married Mary Jane Gilliard, a member of
another Bethel Church family, in the fall of 1828.7 He joined Baltimore’s small
class of African American skilled workers and entrepreneurs. He worked as
a waiter and then in 1831 opened his own livery stable. In business, George
showcased his education and training by signing his name with a studied
flourish. Luck did not favor him, however. In 1837, his stable was washed out
by a flood. His horses were killed, and the floodwaters revealed human skeletal
remains buried under the stable. George was suspected briefly of trafficking
in cadavers, but the charges were dropped. Still, he saw his business washed
away, literally. The next year, his only son and namesake died. George Hackett
went to sea.8
Seafaring was one of the three or four most common occupations among
free black men in port cities from Maine to Maryland. Typically, they served as
domestics aboard ship, while crew members in other positions were generally
white. Going to sea was a strategy by which aspiring families elevated their
status. The wages were fair; at least black and white sailors were paid equally.
Unlike their white counterparts, who were often transients seeking adventure,
African American seamen sought to establish their respectability and leadership
at home through service on the sea.9 George Hackett became a naval steward
in an era marked by racial strife. Naval officials received “frequent complaints”
about the “number of blacks and other colored persons [who] entered at some
of the recruiting stations, and the consequent under-proportion of white per-
sons transferred to sea-going vessels.” The navy imposed a quota on black
sailors, setting the ceiling at 5 percent.10
Seamen posed a unique set of questions about citizenship. In 1803, congres-
sional deliberations over seamen’s protections had assumed “free persons of
color” were protected like all seamen. Then, in the 1820s, some asked: Could
a free black man command an American merchant vessel when law required
that only citizens could command such ships? Attorney General William Wirt
had opined that free black mariners, if not citizens of the state in which they
resided, were not qualified to command such vessels. Some southern states
passed Negro seamen acts that required visiting black sailors to remain confined
aboard ship or in the local jail when in a city other than their home port.
Courts approved. This was an awkward circumstance, because other author-
ities deemed free black sailors to be citizens. Many sailors carried Seamen’s
53

Aboard the Constitution 53

Protection Certificates, federal government–issued documents that proved

their citizenship when in foreign ports. We do not know if Hackett carried
such a certificate, but surely some of the men around him did.11
Black Baltimoreans understood the world beyond the port through sailors’
anecdotes and through the African American and antislavery press. Editors
chronicled the unfolding story of slavery versus freedom in the Americas.
Mexico was singled out for having abolished slavery, while opposition
was expressed over the prospect of annexing Texas as a slaveholding terri-
tory.12 Cuba detained black travelers accused of exciting “discontent among
the slaves.”13 In Brazil, “enfranchised” former slaves were said to be prop-
erty owners, professionals, and members of military regiments: “The benefits
arising from them have disposed the whites to think of making free the whole
negro population.”14 Men like George Hackett held a sophisticated, if incom-
plete, picture of the dynamics of race and rights beyond Baltimore.15
In spring 1839, US Navy commodore Alexander Claxton prepared to
lead the Pacific Squadron aboard the flagship USS Constitution.16 His orders
included shuttling diplomats, suppressing the slave trade, and safeguarding the
work of US vessels at work out beyond South America’s west coast. As steward
to the commodore, George Hackett joined dozens of men preparing the ship.
He ensured that the commodore’s accommodations were well stocked, carrying
wine chosen especially for the voyage to Norfolk, where the Constitution was
being readied.17 The steward was a body servant, tending to the commodore’s
clothes and grooming. He was also a waiter, serving meals, pouring wine,
delivering tea when called on, and a butler, attending to the laying out, washing,
and pressing of uniforms, and the shining of shoes and boots.18 Hackett’s job
as the commodore’s steward meant he was present, however quietly, during the
dictation of letters, the visits of dignitaries, and the conversations between the
commodore and his officers. Space on board was highly regulated by status
and rank. Most sailors never saw the inside of the wardroom where officers
took their meals and socialized when off duty. Regular seamen lived their lives
below deck.
The black abolitionist James McCune Smith penned a lighthearted descrip-
tion of the ship’s steward for Frederick Douglass’ Paper. While the captain
“sailed the ship, the Steward hosted her,” he wrote. His duties required “no
little talent and expertise” and “much headwork” to ensure that the ship was
property provisioned. He was expected to step in when others were unable to
perform, becoming parson, lifesaver, or escort for an unaccompanied woman or
child.19 The Constitution’s administration reflected Hackett’s exceptional pos-
ition. When Captain Daniel Turner accounted for the ship’s personnel to naval
officials, as he did each month, he was careful to note that the commodore’s
staff was distinct from his regular crew. It included five people: the commodore
himself, and his secretary, steward, coxswain, and cook.20 Hackett’s post was
more isolated than most, but his station in the commodore’s quarters ensured
that he received another sort of education.
54

54 Birthright Citizens

Following Hackett’s journey reveals how he gained new perspectives on

race and law. He observed as justice was carried out aboard the Constitution.
From summary trials and floggings to elaborate court-martial proceedings,
the commodore’s steward learned about the administration of law. Among the
lessons were ones about how, unlike in Baltimore, black seamen elsewhere
were competent to testify against white interests. He heard stories of race and
rights in foreign port cities, each a counterpoint to his home of Baltimore.21
The slow and not always deliberate process of manumission and abolition
was under way in the Americas, with free people of color generating conster-
nation and contests over their status. When Hackett finally disembarked in
Nantucket, Massachusetts, he arrived in the heart of radical abolitionist cul-
ture. Free people of color there were calling for slavery’s demise, while they
decried colonization and urged men like Hackett to stand firm in Baltimore
and insist upon their belonging.
The Constitution became a courthouse for the adjudication of disciplinary
infractions among crew members during their time at sea. The culprits were
invariably white sailors. Black sailors, by contrast, figured in the proceedings
as witnesses for the prosecution. Trouble often erupted in connection with
episodes of leave that were liberally granted to seamen during the months the
Constitution patroled South America’s western seaboard. Naval law defined
rights and obligations aboard ship and permeated day-to-day relations; from
rank and hierarchy to protocol and diplomatic exchanges, law suffused the
rituals and routines of the Constitution. Thus, rather than being immersed in
a lawless space, their time at sea provided mariners with a legal apprentice-
ship – fragmentary and intermixed with custom – that emphasized the inter-
play between law and the assertion of rights.22
Legal proceedings were an exception to the casual racism that characterized
life on the Constitution. White sailors derided black crew members, especially
cooks and barbers, referring to them with sarcasm as “fashionable” and “col-
ored gemman,” a reaction to what were said to be the black men’s respectable
pretensions.23 In contrast, disciplinary proceedings leveled the terms on which
black and white seamen confronted each other. The frigate’s mainmast was
termed the “tribunal of justice.” On one occasion, a first lieutenant gathered
the crew there to inquire about the pilfering of food. The chief complainant was
the owner of the dish in question, who accused two fellow sailors of stealing his
much coveted meal of “dunderfunk.” There was assembled a “whole posse of
witnesses,” black men being among them. “Swampseed,” an African American
cook, shared that the accused were regular food thieves, although he had not
seen them lift the dish in question.24 In addition to testifying, black sailors were
also called on to witness punishments. Such was the case when four white “lib-
erty men” failed to return from a day’s break in the port of Callao, Peru. Ten
days later, all hands were summoned to the deck to witness the punishment of
the four for desertion and drunkenness. Each received twelve lashes, a sentence
typically reserved for black men in US port cities like Baltimore.25
55

Aboard the Constitution 55

Hackett also observed the workings of complex legal proceedings and the
discretion exercised by decision makers. Serious infractions led the commo-
dore to convene courts-martial in cases of internal disciplinary infractions,
and courts of inquiry to hear disputes between the ship’s crew and civilians.
These rested on the application of naval law.26 Preliminary investigations were
conducted, witnesses interviewed, and charges presented. Commodore Claxton
determined whether a proceeding would go forward. When it did, he formally
appointed the officers who would preside as president and advocate general.
An 1839 case against James Morris alleged “mutinous conduct” in his aiding
another marine, William Bambury, in an assault on an officer. The charges –
violation of the “13th 14th and 15th articles for the better government of the
Navy” – were signed by Lieutenant J. C. Rich and then transmitted to Claxton.
In his letter of transmittal, Captain Daniel Turner appealed to Claxton. Morris
had been acting pursuant to orders that required him to protect the prisoner,
Bambury. Claxton exercised judge-like discretion, deciding against convening
a court-martial.27
Claxton wasted little time organizing a court of inquiry, however, when he
received a letter of complaint from Brazil’s minister of foreign affairs to the
Rio-based chargé d’affaires of the United States. Four officers were appointed
to the inquiry: three presidents and an advocate general. The defendant,
Commander French Forrest of the USS St. Louis, stood accused of negligence
during a stopover in Rio, during which the Brazilian brig Amisada had suffered
“immense damage.” Claxton directed that Forrest answer the charges, and
the tribunal was ordered to obtain testimony, record the facts, and prepare a
written report. Over the course of three days in December 1839, Forrest’s per-
formance was evaluated. The final report’s recommendations: “The damage
done to the Guard vessel was very trifling and [the court] acquits Commander
Forrest of negligence.”28 Power was expressed through law and through equity
in the Constitution’s halls of justice.
Hackett also learned lessons about law in quotidian ways, absorbing them
as he performed his duties within the inner workings of the flotilla’s adminis-
tration. On many days he was a silent witness to private conversations, pointed
deliberations, and the formal execution of naval proceedings. On other days,
he looked out from a distance at life in various port cities, each of which
governed the lives of free black men and women by way its own history and
its circumstances.
The first leg of the Constitution’s voyage was a diplomatic mission, shuttling
Powhatan Ellis, the new United States minister plenipotentiary, to Mexico. The
ship’s time in port at Veracruz was just long enough to introduce Hackett to
protocol and pomp. Ellis and his retinue received a seventeen-gun salute with
the crew in uniform, positioned like sentries.29 The Constitution departed
early the next morning, cutting across the Gulf of Mexico bound for Cuba.30
Arriving on July 3, the captain signaled for a pilot ship and then navigated the
narrow harbor entrance. From above, the Morro and Punta forts watched over
56

56 Birthright Citizens

a harbor some described as the “safest, best defended, and most capacious in
the world.” At one end were the wharves of Havana that serviced merchant
ships. Just opposite sat “the village of Casa Blanca, the notorious resort of
the slavers” that frequented the Cuban port. Between the two there was space
for several hundred ships to rest at anchor.31 The Constitution took its place
among them.
Hackett, along with the other black members of the Constitution’s crew,
was confined aboard ship while they were in port. As a black correspondent to
the Colored American had reported: “No colored seamen are allowed to come
to this Island from the United States; if they do they are locked up in prison and
tried for their lives; if convicted they are executed or else sold into perpetual
slavery; if not convicted they are kept in prison until the ship is ready for sea,
and then sent on board.”32 Hackett likely interacted with other black men,
among them slaves, who carried goods to the frigate.33 Otherwise, he was left
to make sense of the place from the deck. One sight spoke volumes, however.
Across the harbor was the HMS Romney, a hulk, no longer seaworthy, that
served as a temporary hold for Africans seized by British antislavery patrols.
Its free black British sailors, like Hackett, were barred from entering the port
of Havana. The Romney provoked extended diplomatic wrangling, and its
presence in the harbor aimed to draw attention to the dilemma that free black
sailors confronted.34
Leaving Havana, the Constitution set her sights on the Pacific. It was a
long journey that would take the frigate around Cape Horn to Valparaiso,
Chile, but not before a respite in Rio de Janeiro.35 Two weeks in Rio de Janeiro
meant shore leave for many crewmembers who had not left the Constitution’s
deck since New York. Sailors were allowed to disembark overnight, with their
comings and goings carefully accounted for.36 Hackett, however, remained
confined to the ship, not by force of legal restrictions but because of his
duties. Claxton’s quarters were busier than usual, with diplomats and local
dignitaries being ferried out to the frigate to make formal calls on the com-
mander. Representatives of Sardinia, Russia, Britain, and the United States all
paid formal visits to Claxton.37 What might Hackett have learned from those
who took liberty in Rio? The city was not unlike Baltimore, with a large free
black population – the largest of any city in the Americas.38 Free people of
color in Rio were citizens by law. Still, laws constrained their rights.39 Brazil’s
freed people had their own stories about families, work, property, businesses,
and associational life, and their concerns paralleled those that black men and
women wrestled with in Baltimore. Black laws aimed to fix their status. But
in contrast, Rio’s free people of color were also citizens who never faced the
threat of removal from Brazil.
Hackett’s time aboard the Constitution was cut short in March 1841.
Commodore Claxton perished during an extreme bout of dysentery.40 Hackett
prepared to return to the United States; the commodore’s death terminated
any need for his services. Special arrangements were made for him to board a
57

Aboard the Constitution 57

whaler out of Valparaiso, carrying with him 100 pounds of bread, 1 pound of
port, and 5 gallons of vinegar.41 Before he left, the steward had one last occasion
to take part in naval maritime culture when he joined the commodore’s funeral
retinue. When Claxton was laid to rest in Valparaiso, it was a diplomatic affair.
A procession ushered the body from the port to its final resting place, led by
the ship’s band, in uniform, with “the somber draper of death pendent from
each instrument.” Following were the marine guard, the chaplain, and eight
naval officers who served as pallbearers. And then came Hackett and the rest
of the commodore’s staff, “body servants . . . their downcast countenances
proclaiming how severely they felt this sudden and unexpected bereavement.”
Only after these men did foreign consuls and naval captains join the line.42 The
following day, Hackett boarded the whaler Ann, bound for Nantucket.43
There was no easing back into questions of race and rights for Hackett.
After three and a half months at sea, the Ann arrived in Nantucket.44 As he
disembarked, Hackett stepped into a fray, the port’s narrow streets teemed with
the rhythms of African American public culture and antislavery activism. There,
just months before, a young Frederick Douglass had delivered his first address
to a predominately white antislavery audience. Agents and correspondents
for the black and antislavery press, including Edward Pompey and George
Bradburn, made their homes there. Above a general store was Nantucket’s
Anti-Slavery Library, which offered the public, “free of expense,” publications
intended to further the cause.45 Perhaps Hackett heard the talk of Douglass’s
speech that still lingered on the island, or borrowed copies of the Colored
American or the Liberator to catch up on events closer to home.
He need not have looked far because Maryland was in the news. The state’s
ongoing colonization movement drew the attention of black New Englanders,
who followed such events closely. In New Bedford, Massachusetts, black men
and women had just recently convened a meeting to decry the work of the
Maryland State Colonization Society. They spoke sympathetically about the
special plight of black Marylanders, “over whose heads the storm of perse-
cution [was] now gathering” as they faced the threat of “expatriation from
their native land.” Black New Englanders counseled Marylanders “not to be
intimidated by threats.”46 Still, Hackett would have learned that the threat of
removal remained alive in his hometown.
On the table in Maryland was not a proposal for voluntary colonization
but something more threatening. Maryland’s colonization advocates were
again pressing for the forced removal of black men and women from the state.
Radical colonizationists had put forward a strongly worded resolution that was
devoid of benevolence, editors of the Colored American reported. Lawmakers
put forth a cynical lament: “It is most earnestly hoped that the free colored
people of Maryland may see that their best and most permanent interests will
be consulted by their emigration from this State.” And then they backpedaled
from an approach to colonization that was voluntary: “While this Convention
would deprecate any departure from the principle which makes colonization
58

58 Birthright Citizens

dependent upon the voluntary action of the free colored people themselves –
yet, if regardless of what has been done to provide them with an asylum, they
continue to persist in remaining in Maryland.” Black Marylanders were mis-
taken if they expected to win “an equality of social and political rights.” Forced
removal was on the near horizon, lawmakers warned: “THEY OUGHT TO BE
solemnly WARNED, that, in the opinion of this Convention, a day must arrive,
when circumstances that cannot be controlled, and which are now maturing,
WILL DEPRIVE THEM OF THE FREEDOM OF CHOICE, and leave them no alterna-
tive but removal.”47
Hackett faced a hard choice, and black New Englanders pled with him and
men like him:
Let not a soul leave; stay by, and meet the hour like men, calmly, peaceably, firmly; it
will work your own, and the salvation of millions. They will never attempt, only three
to one, as they are, a removal by force; they cannot do it, and nobody will become
accessory to so foul a deed, as to come in and give them aid. Besides, humanity and God
are against them.48

He might have remained in Massachusetts, but instead Hackett headed home,

heeding the urgings of black activists across the North: “Stick to the ship, and
die where you were born.” That was precisely what he did.49 With a sea-borne
tour of the hemisphere’s ports, new understandings about race and law, and a
close look at the radical abolitionist culture of the North behind him, Hackett
returned to the streets and alleys of Baltimore.
59

The City Courthouse

Everyday Scenes of Race and Law

Back in Baltimore, George Hackett took time to reestablish his connections

after two years at sea. Some things had not changed very much. His parents,
Charles and Charlotte, were in their home on Gay Street.1 He likely also found
there his wife, Mary Jane, and the couple’s young daughters, Eliza Ann and
Catherine Henrietta, though surely his girls were taller and had progressed
in their studies. His city also had changed. Walking the ten short blocks from
his home to Bethel Church, he could see how a scheme that mixed the push
of colonization with pull of emigration had transformed his local congrega-
tion. In Hackett’s absence, a group of just over 250 black Methodists had
left for Trinidad. They were the latest wave of free people of color to emi-
grate, doubting that claims to citizenship would amount to anything in the
United States. New England’s black activists had been right to worry that
black Marylanders would abandon their homeland when faced with threats of
forced removal.2 The departures of black Baltimoreans reflected how that city’s
residents remained vulnerable to emigration enticements even as New Yorkers
resolutely resisted schemes to draw them away from the United States.
Planters in Trinidad and British Guiana (Guyana today) aimed to draw black
laborers from the United States to their fields. Britain’s abolition of slavery, and
the anticipated end of the apprenticeship scheme that followed it, produced a
new demand for workers. Colonial officials promised free passage and employ-
ment assistance, and sent agents to cities from Boston to Baltimore to promote
migration.3 They explained the labor conditions and climate. Of the political
and legal status of black migrants, emigration agents described a world in
which race did not constrain status: “No exclusive privilege now elevates a
white man above his colored brethren. A Council of Government consisting of
twelve gentlemen in which white and colored are mingled, are appointed by
the queen . . . Judges are also appointed . . . [One] of these judges at the present
time is a colored man.”4 Black journalists echoed this assessment: “The islands

59
60

60 Birthright Citizens

Figure 4.1 Travel permit application for Cornelius Thompson. Black men and women
became more like rights-bearing citizens when they secured the travel permits as required
by state black laws. Cornelius Thompson’s application, pictured here, appropriated the
authority of Chief Justice Roger Taney, his wife, Anne, and his son-in-law J. Mason
Campbell, along with the power of the court, to ensure that Thompson could freely
travel for work between Maryland and Virginia. Image courtesy of the Maryland State
Archives.

of Hayti, and Trinidad are open to us; there [are] no distinctive persecuting
laws [that] present insurmountable barriers to our advancement.”5
Baltimoreans were not wrong to give emigration serious thought. Maryland’s
pro-colonization legislators encouraged this, and free people of color felt the
push. Lawmakers eased the way to Trinidad and Guiana with a bill that gave
free people of color the right to travel to foreign locales and, “if not pleased, to
return” to the state.6 They needed only “satisfy the orphans court . . . that they
are visiting said places with a view of ascertaining whether they are suitable
for emigration or settlement.”7 Annapolis legislators subsidized the earliest
explorations by black Marylanders, allocating monies set aside for colonization
to support “two black men of Annapolis, to enable them to visit Trinidad, with
a view to ascertain its character, as a place for colored emigrants.”8 Emigration
to the Caribbean did little to further the state colonization society’s Liberia
project. Still, its end result – the voluntary exit of free black people from the
state – was consistent enough that it warranted public support.
Public meetings on emigration were called in African American houses of
worship, the only large-scale political meetings convened by black Baltimoreans
61

The City Courthouse 61

in this period. A November gathering at Bethel Church selected two lay leaders –
Nathaniel Peck and Thomas Price – to undertake an exploratory excursion and
then report back to the community at large.9 They were supported by Baltimore’s
mayor, S. C. Leakin, and three judges: Nicholas Brice, W. D. G. Worthington,
and U. S. Heath. By early spring, ads soliciting emigrants appeared in local
papers.10 A “government agent” for Trinidad was reported to be in Baltimore,
“making arrangements for dispatching a vessel with emigrants.” Local papers
published a flattering portrait of life in the British colony that was said to
draw on the voices of early emigrants themselves.11 Crowds of those eager for
a chance at life in Trinidad convened. An April 6 meeting was called at the
Sharp Street Church, where George Hackett’s father-in-law, Nicholas Gilliard,
presided. A Trinidadian representative underscored that “slavery is totally and
forever abolished in Trinidad.” Anticipating questions about race and rights, he
reassured black Baltimoreans: “In the Island of Trinidad you will enjoy every
privilege, and your color will make no distinction . . . There are seventy-six
schools where your children can be educated, free of charge.”12 One week later
at Bethel Church, Peck and Price, who had returned, related their findings to “a
densely crowded house [in which a] large number could not get near the door.”
The two promised to publish their observations in pamphlet form.13 Among
their findings were observations about race and rights. In Guiana, for example,
Peck and Price reported observing criminal court proceedings during which
they noted the role played by three assessors “who must be tax payers; [they]
are called to take their place in rotation, without regard to color.” They went
on: “Many of the clerks in the public offices are coloured; also, tellers in the
bank.”14 Emigration might lead to economic independence and even prosperity.
It also promised equal rights.
By mid-April migrants from Baltimore were boarding ships by the dozens.
There was the brig Porpoise, with 70 “colored emigrants.” On another, 120
had booked passage.15 The brig Northerner left with 93 people on board.16
The Belvidera sailed with 135 “colored emigrants.”17 On May 22, “upward of
one hundred emigrants left . . . for Trinidad.”18 Among the African American
passengers’ final acts was one that suggested how the prospective emigrants
folded a bit of legal savvy into their preparations. Each appeared, often in
a family group, before the clerk of the city court in Baltimore to secure a
travel permit. No such permission of the court was required to simply leave
Maryland. But someone had advised the travelers that if, however, they had
even a distant hope of returning to Baltimore, they would need a permit to do
so. By the score, those bound for Trinidad hedged their bets with small slips of
paper that affirmed their enduring claim to place, even as they would venture
far from Maryland.19
Emigrants’ letters home showed that conditions in Trinidad were less than
ideal. Still, missives to loved ones in Baltimore explained what it meant to
live as equals before the law. Edward Crew, for example, wrote to his wife,
Belinda, about seeing black men in military uniform: “We had also the pleasure
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62 Birthright Citizens

on Sunday afternoon, of seeing the soldiers in the barracks, there are some
hundreds of them, all colored.” Richard Freeman explained how black men
were lawmakers and ships’ pilots, positions denied to them in Maryland: “You
will here be in a country of equal laws, and have the satisfaction of seeing them
administered in part by men of your own complexion . . . When we met the
light boat in the river we had the satisfaction of taking the Pilot on board, who
was a colored man.” Edward T. Crew wrote: “We find no invidious distinction
here, either in civil, social, or religious point of view, on account of color at
least.” Emigrants’ testimony brought the shortcomings of free blacks’ status in
Baltimore into sharp relief.
Black Baltimoreans would continue to emigrate to Trinidad and Guiana,
making them the targets of Northerners’ ridicule. In January 1841, a Baltimore
convention met at the Sharp Street Methodist Church to debate emigration,
and they heard from at least one returnee. The meeting’s conclusion was to
encourage “our colored brethren who may be dissatisfied and discontented
with their condition in their country, to accept the offers held out to them.”20
Emigration remained a viable alternative. At the same moment in New York,
another convention resolved: “We consider emigration to the Island of Trinidad,
as only second in its nature to colonization.”21 That is, emigration, in the minds
of these Northern activists, was consistent with the aim of colonizationists who
wished to rid the country of free people of color. Baltimoreans did not agree,
and they organized their persons and their property for the journey to Trinidad
and British Guiana.22 In New York, commentators mocked them: “A party of
forty or fifty colored persons left Baltimore last week for Trinidad, determined
to make it their future residence. They had better have gone to Iowa, or staid
[sic] at home.”23
Even in Baltimore, emigration was the choice of only a few in the end.
Most black Baltimoreans remained. Those who stayed knew that unjust laws
required a response and that new tactics were in order. Writing under the pen
name Amalgar, a local activist called for yet another emigration meeting, all
the while lamenting Baltimore’s loss of optimism: “There are many among
us who cherish the fondest hope with a warmth of heart for the welfare of
Maryland, and would sooner part with life itself than her soil and friendly
white inhabitants.” But there was no masking the depth of their degrad-
ation: “We are repeatedly threatened with laws too oppressive for any honest
man to bear who has tasted the sweats [sic] of limited liberty.” Those who
remained assumed a heavy burden: “It behooves us, as a debt we owe to God
and the millions of souls yet unborn to us, yea, our off-spring, to do all in our
power to secure them their liberty in a land where reason has triumphed over
prejudice . . . where none shall make us afraid or ashamed.”24
Amalgar went to some lengths to explain why Baltimoreans would choose
emigration, responding in part to criticism coming from New York. Black
activists in the two cities were split on the issue and had sparred in the pages
of the Colored American. From Baltimore, Nathaniel Peck and Thomas Price
63

The City Courthouse 63

challenged New York’s Charles Ray for his doubts about migrating to the British
Caribbean: “We hope there will be relaxation of emigrants . . . for we can there
enjoy that which law denies us here.”25 The word “here” is key to understanding
this rift. The standing of Baltimoreans differed from that of New Yorkers.
The former fought for citizenship as a shield against removal, while the latter
were second-class citizens claiming voting rights. The New Yorkers fired back,
accusing the Baltimoreans of having been bamboozled by Caribbean planters
who had enticed them with fine meals and accommodations during a fact-
finding mission. Ray labeled Peck and Price “simple-minded men [and] easy
victims.”26 An ordinary difference of opinion was reasonable; reports from
Trinidad and British Guiana fueled arguments for and against emigration. But
this was no simple difference borne of the evidence.
African American political conventions had resumed in New York, and
throughout the North, by 1840. The subjects of emigration and coloniza-
tion were taken up, largely in the spirit of condemnation. The primary focus
of these meetings was, however, political rights. They were laboratories for
the development of full-fledged arguments for black citizenship. Meeting in
Albany in 1840 and 1841 and then Schenectady in 1844 and Geneva in 1845,
black New Yorkers asserted their rights as “native born citizens” and opposed
all distinctions among state citizens “growing out of complexion.”27 Here they
ridiculed what was arguably an irrational distinction between black and white
New Yorkers in the state constitution. At the same time, the delegates painted
themselves as like others born in the state, and objected to being ranked below
“foreigners naturalized.” Such discrimination, they declared, “oppressed those
who fought and bled for their country’s freedom, and thereby were entitled
to the unrestricted enjoyment of its political institutions.” Black New Yorkers
grounded their claim to a right of citizens – the vote – in their labor and their
military service.
Colonization was singled out for special condemnation in New York as a
system “calculated to throw us into a state of restlessness . . . break up all those
settled habits which would otherwise attach us to the soil, and . . . furnish our
enemies with arguments to urge our removal from the land of our birth.” God,
they explained, intended that “here on this continent we are to remain, citizens
of this republic.”28 Even in a state that granted African Americans a baseline
degree of citizenship, activists guarded against the possibility that they might
be removed from the state and from the nation. And an argument that was
largely grounded in state citizenship was extended to encompass national citi-
zenship as well.
The refrains “we are Americans” and “we are citizens” echoed in conference
throughout the North.29 Birthright figured importantly – delegates frequently
characterized their status as that of native-born citizens. Conventions were an
opportunity to convert white allies to this view. “We beg leave to submit some
proofs which we think you will not hastily set side,” remarked the authors of
a Troy, New York, convention address. A history lesson followed. First there
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64 Birthright Citizens

were the Articles of Confederation from which the qualifier “white” had been
purposely omitted when providing for the privileges and immunities of citi-
zens. In 1803, congressional deliberations over seamen’s protections assumed
“free persons of color” were protected like all seamen citizens. They proffered
evidence of military service in the Revolutionary War, and the endorsement of
lawmakers from Rhode Island, Pennsylvania, and New York confirmed the
valor of black soldiers. Service during the War of 1812 was similarly invoked.
For these activists, a potent mix of birthright, foundational texts, legislative
deliberations, and military service both affirmed their citizenship and justified
their entitlement to the franchise.30
These ideas echoed throughout the free states. At Pennsylvania conventions
there was an added urgency. The end of the 1830s had brought two major defeats.
The state’s 1837–38 constitutional convention had disenfranchised black men,
for the first time in Pennsylvania’s history inserting the word “white” into
voting provisions.31 And in deciding the case of Hobbs, et al. v. Fogg, the state’s
high court had concluded that African Americans were neither “freemen” nor
citizens under the state’s constitutional scheme.32 Delegates to Pennsylvania’s
black conventions pushed back, pressing for political rights. “If we are asked
what evidence we bring to sustain our qualifications for citizenship, we will
offer them certificates of our BIRTH and NATIVITY,” declared activists gathered
in the state capital of Harrisburg.33 In New Jersey, activists sought to overturn
a provision in the state constitution that limited the vote to white men, terming
themselves citizens with a somewhat matter-of-fact air.34 Connecticut activists
met in 1849, declaring the vote was “OUR RIGHT, as native born MEN, Citizens
of the great Republic, and members of the Commonwealth of Connecticut.”
Among their authorities was State v. Crandall.35 In Michigan delegates to an
1843 Detroit convention declared themselves native-born citizens, invoking
the state and federal constitutions, the Declaration of Independence, and black
men’s service in the Revolutionary War and the War of 1812.36
Baltimoreans, though they had been originators of such conventions,
were not participants in the conventions of the early 1840s. The final year
that Baltimore sent delegates to a national convention was 1835. That year
delegates Nathanial Peck and Robert Cowley had represented the city, and the
full convention had openly encouraged Marylanders to remain active. A com-
munication from Baltimore’s Phoenix Society was read during the proceedings,
and the group was encouraged to appoint delegates to the national organ-
ization.37 But when conventions resumed, Marylanders did not rejoin the
movement. Some key activists had shifted their allegiances. Peck, for example,
who represented Baltimore and served as a national convention vice president
in 1835, was leading emigrants to the British Caribbean by 1840.
Differing circumstances created distance between New York and Baltimore.
Maryland’s legislature set in place harsh restrictions that likely influenced the
content of the black politics in the state. Talk of emigration and colonization
was encouraged. And free black people in possession of antislavery materials
65

The City Courthouse 65

were subject to an especially harsh penalty: “Any free negro” was prohibited
to “knowingly call for, etc., any abolition handbill, etc., having a tendency
to create insurrection, etc., among the people of color.” A conviction carried
with it a sentence of ten to twenty years.38 Regular lines of communication
frayed. Restrictions on the circulation of abolitionist literature ensured that
the Northern press did not reach black residents of Baltimore to the degree it
once had. In the late 1820s New York’s Freedom’s Journal had multiple agents
active in Baltimore. William Watkins had acted as an agent for Boston’s The
Liberator in 1831.39 Things had changed by the time the Colored American
was first published, in 1837. Its Baltimore agent was a Philadelphia min-
ister, Stephen Gloucester, whose territory included Maryland, Pennsylvania,
Delaware, and western New Jersey.40 There is no sign that Gloucester actively
solicited subscriptions in Baltimore. To do so would have entailed great risk to
both Gloucester and his readers.
Local circumstances demanded local strategies. If George Hackett was to
take up the helm of leadership from his father, it would not be by way of
conventions calling for slavery’s abolition or civil rights. He did find another
way, however, and an 1844 encounter in the Baltimore courthouse suggests
how. That summer Hackett was party to an assault case, a routine proceeding
in a city where sailors, black and white, were regularly hauled before local
authorities after a fight. Still, Hackett’s first appearance in the Baltimore court-
house was highly unusual by the standards of the day. He was the complainant,
not the defendant. Hackett charged a white man named John Pitts with assault.
Between white men, such confrontations were routine and the charges typ-
ically dismissed. Not so in Hackett’s case: “State v. John Pitts, charged with
an assault and battery upon George Hackett, a colored man. Fined $1 and
costs.”41 What had transpired we cannot say. Whatever it was, Hackett sought
redress. He secured the assistance of a watchman or sheriff and charged Pitt
with a criminal offense. Pitts was tried, found guilty, and then fined a cus-
tomary $1 plus court costs.
Hackett had sworn out a complaint, testified against a white man, and then
won a modest judgment. He had not accomplished this alone. Hackett enlisted
the aid of a sheriff, then conferred with a clerk over the swearing out of a com-
plaint, and finally followed the lead of the state’s attorney in the courtroom.
In the courthouse, blunt racism might be kept at bay long enough for a jury
to find a white man guilty of assaulting an African American, he learned. This
insight was one that Hackett would wield strategically in the years to come.
Black Baltimoreans could engage with the local legal culture and, through its
rituals and rules, secure modest but potent rights: to sue and be sued, to testify,
and to be secure in their persons and their property.
Hackett’s disagreement with Pitt introduced him to a scene that was central
to the arbitration of race and rights in Baltimore: the city courthouse. It was
at once a symbol of civic pride and grandeur, and a crowded, fraught venue
that strained to contain the tensions that litigants carried with them. It was
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66 Birthright Citizens

also a crossroads where working people and the gentry, African Americans
and European immigrants, all crowded together in courtrooms, offices, and
hallways. When they listened, courthouse visitors heard vivid tales of life in
the city.
Lawmakers had always envisioned the city courthouse as an embodiment of
state and municipal power. The 1773 courthouse stood on a bluff overlooking
Jones Falls, the river that winds through Baltimore, giving the building prom-
inence – it could be seen at a distance from all directions. Street-level observers
encountered a whipping post and pillory outside the courthouse, signs of how
legal authority was constructed, in part, through force. The court relied on its
proximity to life on Baltimore’s streets and an audience to achieve its intended
effect.
Early nineteenth-century changes were fueled by new thinking about
law and its place in a growing urban center. Baltimore’s development into a
commercial port fed the explosion of its legal culture. The city’s population
doubled between 1790 and 1800, and so did the demands on the court-
house. By 1806, the state had commissioned a new building for the Calvert
Street site. This signified Baltimore’s new status as the nation’s third largest
city, having surpassed in population Boston to the north and Charleston to
the south. And it announced the dawn of a new era for the city’s legal cul-
ture. The old, awkward brick structure was replaced with a five-story high
building of brick and marble, made all the more imposing by the addition
of Ionic columns and a domed cupola. The architect was George Milleman,
described by one city chronicler as a “self-educated” man.42 Had Milleman
done the courthouse justice? One visitor questioned the architect’s judgment,
declaring that he had “placed the principal front of his building on the
declivity of a steep hill in Lexington-street, and the end of the building . . .
where the front certainly ought to be.” Still, he conceded that the “interior
arrangements are so spacious and commodious as to give it the reputation of
being the most perfect courthouse in the United States.”43 The courthouse’s
exterior received a boost in 1814 when city leaders placed a battle monument
in the adjacent square. Designed by local architect Maximilian Godefroy,
Baltimore’s tribute to local veterans of the War of 1812 was created to reflect
the spirit of popular democracy.44 When the thirty-nine-foot-high pedestal
of a work titled Baltimore was finished in 1822, the new Monument Square
amplified the courthouse’s presence and further incorporated it into the
city’s civic culture.
In 1835 the courthouse was remade yet again, though not exactly by design.
This time a fire preceded the transformation. The episode had been dramatic
and nearly catastrophic. At 11:00 a.m. on a cool February morning, passersby
noticed flames emanating from the courthouse cupola. The structure’s height
made it difficult for fire fighters to reach the blaze, and a few were injured in
the battle. The courts, including the grand jury, were in session, but everyone
escaped the danger. Nearly as important were the records, which were saved
67

The City Courthouse 67

by fireproof rooms and the quick thinking of the clerk, who carried bundles
of documents in his arms as he fled the burning structure. One newspaper
lamented: “The court house was one of the best built and extensive, and
noble buildings of its kind – the ornament and pride of our city. Its destruc-
tion is a great public loss.”45 Through restoration and renovation after the
fire, lawmakers would take the opportunity to enhance the cultural import-
ance of the courthouse to life in Baltimore City. A commission was appointed
to oversee the repairs, and the city and state paid generously to rebuild and
improve its hall of justice.46
Inside the courthouse, African Americans were regulars. Often they were the
subjects of criminal proceedings. In 1850, for example, 578 African Americans
were convicted of criminal charges in Baltimore, representing nearly 25 per-
cent of all convictions in the jurisdiction that year.47 These cases considered
a broad range of offenses: unpaid debts, breaches of the peace, assault and
battery, bastardy, aiding runaways, and the selling of liquor on Sunday. And as
the cases entered the courthouse, so too did the social worlds of those involved.
Stories of commercial transactions that led to unmet debts, disagreements
in homes and in public places that led to physical confrontations, intimate
relations that led to the births of children, antislavery politics that led to the
sheltering of fugitives, and leisure time activities and the accompanying con-
sumption of alcohol all made their way into the building’s hallways, offices,
and courtrooms.48
The courthouse was a public place where Baltimore’s public gathered.
Although its placement on Monument Square, with its grand approach and
long vantage point, set it apart from the cityscape, at the same time it was a
scene for the enactment of civic rituals, ensuring that the courthouse was more
than a distant hall of justice. It was a central figure in Baltimore’s cultural land-
scape. On an ordinary day, the space teemed with foot traffic, carts, and the
vans that transported prisoners to the penitentiary. Hucksters plied their goods
while various sorts of speechifying typically drew modest crowds of a hundred
people. Monument Square was the site for so-called town meetings, political
conventions, and pageants. To venture there with a grievance or a bid for status
was to take a place on Baltimore’s main stage.
Some courthouse rituals were less than laudatory in the eyes of free black
Baltimoreans. There were, for example, those that played out at the courthouse
door. Court-ordered auctions of property and people were conducted in that
liminal space between the bustle of the city streets and the cool grandeur of
the courtroom. The steady cadence of the auctioneer’s call punctuated such
occasions. Confiscated houses, lots, and household goods were sold to the
highest bidder. So were free African Americans – those who had been convicted
and sentenced to be sold out of the state for a term of years.49 They often stood
alongside enslaved men and women, as executors disposed of those said to
be property in persons and the state disposed of those found to be fugitives.50
Even for casual passersby, these Monument Square scenes – of judges on the
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68 Birthright Citizens

political stump and African Americans on the auction block – suggested how
legal culture was intimately intertwined with life in Baltimore City.
Though deeply embedded in the city, the courthouse was never simply a
local place. The people who passed through its doors ensured that its work was
tied to a broader culture of race and rights. It was about a hundred miles from
Baltimore to the US Supreme Court in Washington, DC. But the legal claims of
free black men like Baltimore’s Cornelius Thompson narrowed the distance.51
If asked how his travel permit came to bear the signature of Roger Brooke
Taney, Thompson was ready to explain. In July 1845 Thompson was preparing
to leave Maryland in search of work at one of the region’s summer resorts.
Virginia’s nearby natural springs were a popular destination for Baltimore’s
elite, who enjoyed the lively sociability and curative effects of the region’s spas.
Attorney George Brown, later mayor of Baltimore, wrote to his law partner
Frederick Brune about his time at White Sulphur Springs, in what is today West
Virginia. Brown was in the company of his sister Clara, who was seeking out
the “healing waters” of the place. He described to Brune how lines of profes-
sional life and sociability crossed during summers at the spas. Gathered were
some “900 people,” including men from the city’s merchant and legal elite,
including lawyers Orville Horwitz and S. Teackle Wallis.52 This same resort
was the summer vacation place of Roger Taney and his family throughout
the 1850s.
These “watering places” offered work to free black men and women, who
served meals, provided entertainment, and performed housekeeping duties for
plantation and city dwellers who took refuge in the hotels, cottages, and guest
houses during the hottest months. Before heading off to take up this seasonal
work, Thompson had one required stop: the Baltimore City courthouse. He
knew that, generally, state law barred free African Americans from reentering
Maryland once they had crossed the state line. Thompson also knew that a
travel permit could shield him against kidnappers.53 He would have to secure a
permit at the courthouse if he hoped to avoid a troubled fate.
Thompson’s trek from his home on Tyson Street to the courthouse was
short, fifteen minutes on foot along crowded streets and alleys to Monument
Square. Perhaps he had his application folded in a breast pocket or tucked in
a satchel.54 Thompson’s application bore three signatures, that of Chief Justice
Taney, his wife, Anne P. C. Taney, and their son-in-law, J. Mason Campbell. As
he handed his application to Orphan’s Court clerk David Perine, Perine may
have paused knowingly.55 He knew Taney’s signature well; when the chief
justice was away from Baltimore, Perine managed his business affairs. Perine
was also familiar with Thompson’s purpose. During the summer of 1845
alone, he issued nine such travel permits to free black men pursuing work at
the region’s resorts.56 Thompson left the courthouse, permit in hand, having
joined the ranks of the many other free black men and women who, after
adding the courthouse to their itinerary, had permission to travel granted to
them by the court.
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The City Courthouse 69

It was not the first time that Thompson had sought Taney’s alliance in a
courthouse matter. He had first turned to him more than a decade earlier, in
1832, when, as a slave, he arranged to purchase his own freedom. Thompson
had struck a bargain with Taney’s former Frederick County neighbor Daniel
Hughes: his freedom in exchange for $450. But Thompson had only $150 in
hand. He hoped that Taney – then US attorney general – would lend both money
and legal advice. Taney obliged. First, he wrote to Hughes’s agent to say he knew
Thompson, who was “a good boy” (although Thompson was nearly thirty years
old). Taney proposed to pay the balance due of $300 by check in exchange for
a bill of sale. He intended to “at once execute a deed of manumission.” But
Taney was clear that this was a business transaction. He and Thompson had
arrived at an understanding: “Cornelius and I will agree on the time he is to
serve,” meaning that Thompson would compensate Taney for his freedom by
serving a term of years.57 Taney then brought to bear his lawyer’s expertise.
Better to avoid Maryland’s local courthouses, he advised. State law prohibited
Thompson’s manumission under the circumstances.58 There was a way around
Maryland law, Taney advised, directing that matter should be formalized in the
District of Columbia.59 As a result of their arrangement, Thompson won his
freedom papers and Taney gained a bound servant. It was a relationship that
allowed for negotiation and exchange in a way that approached collaboration.60
By the summer of 1845, Thompson planned to travel. When he approached
Taney about signing a travel permit application, the two men had long been
allied, and layers of familiarity, exchange, and experience underlay their bar-
gain. But it was an uneven alliance that rested on fragile agreements and
conflicts that brewed just below the surface. They reached an accord about the
travel permit, and at first glance, the permit appears to reflect a convergence
of interests: Thompson’s in finding more lucrative employment, and Taney’s
in ensuring good service for elite patrons in Virginia’s resorts. And in light
of their long-standing alliance, Thompson’s access to the Taney family was
affirmed. For Taney, his dealings with Thompson reinforced his self-asserted
image as a benevolent figure in the lives of free African Americans.61 The docu-
ment papered over fault lines between the two men. There is much to suggest
that Thompson and Taney differed over what a travel permit meant. Did the
permit suggest that Thompson held a right or a privilege?
Taney’s views are most easily examined. His correspondence and opinions,
published and unpublished, place Thompson’s travel permit in an illuminating
context. Since 1841, Taney had been working out his ideas about a constitu-
tionally derived right to travel between the individual states. What of men like
Cornelius Thompson? Taney recognized the right of free white citizens to tra-
verse the country, but free black people were a different category. Thompson
might secure a travel permit in the local courthouse. Indeed, Taney might aid
him in such a proceeding. Still, in the chief justice’s view, Thompson’s permit
represented a privilege rather than a right, one that could be revoked, violated,
or otherwise impaired by the state at will.
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70 Birthright Citizens

Thompson’s perspective is more difficult to unearth. Only from the records

of those things that he did is it possible to draw conclusions about how he
thought about them. Did Thompson understand his travel permit to be a
right or a privilege? Surely he hoped it was more akin to a right. Adorned
with distinguished endorsements and a judicial imprimatur, his permit
was intended to stave off aggressors, including would-be kidnappers and
profit seekers. Thompson expected the terms of the permit to be unassail-
able, shielding him from imprisonment, fines, and sale into servitude, even if
such protections existed only for the permit’s duration. In this expectation,
Thompson lived like a man who possessed rights – rights he was prepared to
secure in the local courthouse. This was consistent with the other ways that
Thompson used law to demonstrate his belonging in Baltimore. In another
aspect of his life, Thompson was a vestryman at the St. James Protestant
Episcopal Church, a black-led congregation, charged with taking care of
the congregation and its property, including a modest church building on
the corner of North and Saratoga Streets.62 Thompson was also part of
Baltimore’s associational economy and its networks of debt and credit. In
1849 when a man named Henry Gibson sought insolvency relief, Thompson
served as a court-appointed trustee, collecting and distributing Gibson’s
assets on behalf of the court. Thompson had been at the 1852 black emi-
gration convention, where he joined in with the delegates who called into
question the failure of Maryland’s new constitution to recognize the citizen-
ship of black Marylanders. Thompson was a modest property holder, and in
1855, after his death, his family would depend on the court’s register of wills
to administer his estate. Even if an explicit declaration of Thompson’s rights
was not forthcoming from lawmakers, he nonetheless used the local court-
house to exercise the rights to travel, own property, and sue and be sued.
When lawmakers adopted black laws, they did so in an effort to control
and confine the lives of free black Marylanders. Some saw people of color
as indolent burdens on the state. Others believed that free African Americans
would inspire uprisings among enslaved people. In combination with colon-
ization schemes, black laws pressured some black Baltimoreans to abandon
their homes and the state. Others stayed and remained subject to the laws’
requirements. When they entered the courthouse, what transpired was not at
all what lawmakers had intended. Black petitioners looked more like rights-
bearing people than the degraded subjects they were intended to be. They
took part in courthouse culture. They secured the support of leading white
men. They navigated the clerk’s office and the courtroom. They assembled the
endorsements of lawyers and judges into an authority that ensured they would
live, in small but important ways, unmolested. On the city’s streets, with court-
issued papers in their pockets and pouches, black Baltimoreans looked more
and more like persons with rights.
71

Between the Constitution and the Discipline

of the Church
Making Congregants Citizens

Baltimore’s Bethel Church was four years into a heated dispute over money,
leadership, and styles of worship by the spring of 1849.1 On a Thursday after-
noon in late February, courtroom tensions boiled over during a church trial
when a trustee charged with misuse of church funds was found guilty. Wielding
a bag of nails, church member Serena Richfield, whose husband, Aaron, was
among those accused, attacked the Reverend Darius Stokes. Stokes escaped
serious injury, although his brother Robert suffered a fractured skull and the
minister in charge, Daniel Payne, was also assaulted. Just days later, a sup-
porter of Stokes and Payne wrote to a local newspaper explaining what had
transpired. The assault on Payne was unwarranted, his supporter wrote;
the minister had brought much-needed reform to the congregation. Stokes,
“a respectful, obedient, honest drayman,” was also unjustly singled out. His
opponents had tried “with all their ingenuity” to “dislodge” Stokes, but he held
his ground, “resting with one hand upon the Constitution and with the other
upon the Discipline of the Church.”2 Grounded in this foundation, his advo-
cate explained, Stokes had held fast against an assault on the integrity of both
his person and the church.
Stokes was a leader in the city’s oldest black Methodist congregation. In the
late 1840s Bethel was consumed by “a terrible Church trouble” that grew out
of attempts to curb “extravagances in worship” and transfer property from one
congregation to another.3 The trouble, which some said was led by lay leader
George Hackett, brought the congregation into the city courthouse on numerous
occasions. A trustee faction was charged with misappropriating church funds.
Members were accused of disturbing a religious meeting and, in more than
one instance, assault and battery. Deeds and indentures were scrutinized. The
letter of the church constitution was invoked. Before the trouble was over,
injunctions had been issued, fines levied, and members expelled. The Reverend
Stokes, after having his horses poisoned under suspicious circumstances and

71
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72 Birthright Citizens

Figure 5.1 Baltimore’s Bethel AME Church. Church communities were important
sites for the exchange of legal knowledge and the development of courthouse skills,
whether acquired through the wranglings of incorporation, defending church prop-
erty, or handling disputes over power and governance. Baltimore’s Bethel AME Church,
depicted here, spent much of the 1850s managing its affairs in the city courthouse.
Image courtesy of the Library of Congress.

his wife “threatened and abused,” left Baltimore to take charge of a new con-
gregation in faraway San Francisco. The affairs of Baltimore’s most prominent
African American church were managed in the street, in the sanctuary, and in
the local courthouse.
The fracas in Bethel Church might be dismissed as mere excess until one
recalls that, second only to commerce, antebellum Baltimore was built on the
institutionalization of religious life.4 For African Americans, no other institu-
tion rivaled the churches; they were the pillars of black culture. Tied to varied
denominations – Methodist, Baptist, Episcopalian, and Presbyterian – the city’s
churches were spiritual havens in which antislavery and civil rights messages
were companions to the Gospels. They also offered material sustenance through
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Constitution and Discipline of the Church 73

their mutual aid and benevolent societies. And they hosted most of the city’s
schools for black children.
Their founding had been hard-won. Black Baltimoreans rejected the second-
class status that had characterized their treatment in white-led congregations
and undertook to establish their own institutions.5 The state took notice.
Generally, Maryland imposed strict regulations on African American reli-
gious gatherings.6 Black laws tightly constrained opportunities to assemble
and worship independently.7 Not so in Baltimore, however. There, exceptions
made for black congregations became custom and left such religious gatherings
unmolested and at liberty to manage their own affairs.
Black churches occupied prominent turf in the city, from Montgomery Street
in the southwest to Spring Street in the northwest.8 On Sundays, the sight of
African American worshipers making their way along Baltimore’s streets told a
story that white churchgoers could not help but notice. For example, walking
across Saratoga Street on their way to Saint John’s Roman Catholic, Saint
Paul’s Protestant Episcopal, Third Baptist, or the Friends meetinghouse, white
churchgoers would have been in the company of African Americans headed to
the Colored Presbyterian, Saint James Protestant Episcopal, or Bethel Church.
Heading up and down Sharp Street near Lombard, those going to the white
First Baptist or Saint Peter’s Protestant Episcopal would have made their way
to services alongside African American members of the Sharp Street African
Methodist Episcopal Church.9 Black churches decorated the city’s landscape
and served as signs of African American ambition, pride, and permanence.
This chapter examines how black church leaders did indeed work between
the Constitution and the law of the church. Legal acumen was constructed in
religious tribunals, where church law and ritual set the terms for judging wrong-
doing and meting out punishment. Church disagreements also came before
local judges, introducing congregants to the strictures of civil and criminal
proceedings. In these ways, legal consciousness was developed in communal
settings, becoming deeply embedded in the daily lives of black Baltimoreans.10
There were in all these instances pressing questions about the right of assembly.
Who could regulate gatherings of black Christians, and by what terms? Such
occasions also spoke to belonging: as congregations purchased lots and
buildings, they became property owners whose rights included protecting their
interests by being sued and suing others. These were fragile and often risky
circumstances for communities that were always financially strapped. Whether
in the act of incorporating their churches, or defending a church building from
foreclosure or walking along the city’s streets on their way to worship, black
Christians inhabited the rights of citizens.
Some churches emerged out of bold bids for autonomy as black Christians
broke away from white-led congregations to forge their own identities.
Baltimore’s Zion Church was established through the efforts of a small cadre
of men: a hod carrier, a wood sawyer, a drayman, and a laborer.11 These
working people joined together in their sense of community and commitment
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74 Birthright Citizens

to establish a new center of worship for black Baltimoreans. The church’s

origins also lay in the law. Beginning in 1802, Maryland law provided for
the incorporation of Christian congregations. The change aimed to eliminate
the necessity to directly petition the legislature. Passed at a time when state
lawmakers were expressly enacting laws that deprived black Marylanders of
political rights, including the right to vote, the rules for incorporating churches
applied to “all quiet and inoffensive Christian societies in this state, without
any exception.”12 The act provided guidelines related to the civil administra-
tion of churches, but expressly drew a line forbidding the state to abridge or
affect “the rights of conscience or private judgment, or in the least to alter or
change the religious constitution or government of any church, congregation
or society, so far as respects, or in anywise concerns, doctrine, discipline or
worship.” Black congregations would press courts to give precision to this line
as they brought their disputes and church law into the local courthouse.
Any religious incorporation largely was routine. And in the case of Zion
Church, the documents themselves were overall formulaic. In 1842 the
congregation’s leaders set out the terms of its governance, interweaving the
requirements of Methodist church law with the state’s statutory requirements.
Two witnesses, both justices of the peace, were on hand to formalize the
incorporation. Still, there was something poignant about the moment when the
church’s leadership took pen in hand and executed the document.13 The leaders
numbered nine in total: Minister Jacob Moore and eight trustees. Moore was
first to sign his name. Henry Ridgeway, a peddler on Baltimore’s streets, was
next.14 The fact that Ridgeway, and after him four more of the nine trustees,
signed with an X is only partially telling. Many of the men who founded and
led Baltimore’s churches were not literate or formally educated.15
Still, literacy was not a prerequisite when it came to understanding law.
Years earlier, for example, Ridgeway had deployed a sophisticated legal man-
euver when he placed a notice in the local Baltimore Patriot warning potential
creditors not to “trust” his wife, Caroline: “I will not hold myself responsible
for any debts contracted by her.” Ridgeway knew how to use law – in this case,
a legal notice – to manage both his marital affairs and his exposure to debt.16
And when his fellow trustee Daniel Purnell was faced with a wife who had,
as he put it, “left my bed and board without any provocation,” he adopted
Ridgeway’s tactic. A notice titled “Caution” warned against harboring or
trusting his wife, Matilda, and stated that Purnell would not pay her debts.17
Legal strategies were thus shared among the men of Zion Church. And as
they stood together to formalize the congregation, men like Ridgeway and
Purnell expanded their legal acumen. It was through such scenes that black
Baltimoreans learned how to use law to carve out rights.
In the summer of 1844 Zion Church leaders took a chance and purchased
a small lot located on Spring Street priced at $350. The group had little cash
on hand. They handed over just $5 as consideration. But their credit was suf-
ficiently good that James Bush, a local carpenter and furniture dealer, entered
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Constitution and Discipline of the Church 75

into an indenture that imposed a lien on the site – a contract that entitled
Bush to seize the property for nonpayment of the church’s loan amount. Bush
appears to have remained at some distance from the transaction; his attorney,
Randle Moale, held a power of attorney and acted on Bush’s behalf. The
agreement provided that the trustees would repay their obligation to Bush in
three installments.18
The formal execution of the indenture brought together again the original
group of black Methodists, including eight trustees and the presiding minister,
Jacob Moore. They stood with Bush’s attorney and two witnesses, justices of
the peace, one after the other inscribing his mark on the text. Only three of the
men – Moore, George Stansbury, and Israel Prout – were sufficiently literate to
sign their names. Perhaps one of those three also read the indenture document
to the others. With that, they took possession of a plot of land intended as the
site for a sanctuary and Sunday school in the northwest of Baltimore, on Spring
Street near Jefferson.19 The Colored Independent Wesleyan Methodist Church
was born.
The congregation seems to have struggled financially from the outset. All
black churches in Baltimore, at one time or another, faced troubles brought on
by scarce resources. It was a city without a black philanthropic or capital class.
Congregations were filled with working people who themselves struggled to
remain solvent in the 1840s. The records also beg questions about the man-
agement of Zion’s funds. The trustees were never called on to explain why,
despite a congregation of hundreds and a Sunday school attended by many
more, they made only sporadic payments toward Zion’s mortgage debt. But
other circumstances also seemed to undermine Zion Church. The first was the
matter of competition. By 1842 Baltimore had twelve black churches, more
than half of them affiliated with one or another Methodist sect. Baltimore’s
black Methodists had an array of choices when it came to selecting a house of
worship. Perhaps the absence of a clear denominational affiliation hampered
the congregation’s fiscal security. The AME Zion Church, headquartered in
New York, claimed the congregation as its own, while the congregation’s
chosen name misleadingly suggested the church was affiliated with the
Wesleyan Methodists, largely a British denomination. In Baltimore, some
of Zion’s leaders developed ties to yet another group, the AME Church, but
they would formalize those ties only after enduring the effects of the church’s
indebtedness. Zion Church was a congregation unsure about its institutional
identity.
The county court records tell a bare-bones version of the story. Payments
made toward Zion’s mortgage debt were sporadic and far below the amount
provided for in the indenture. After paying $75.00 in January 1845 and
another $25.00 in October 1845, the trustees paid just $7.75 in December
1845. Meanwhile, interest accrued. The result was that by September 1846
the church still owed nearly $200 when James Bush stepped up to collect.
Bush filed a complaint that was straightforward on its face: the trustees had
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76 Birthright Citizens

defaulted on their loan obligation and Bush sought the sale of the Spring
Street property. The proceeds would go toward paying the mortgage balance
and related costs. Attorney George Whelan represented the trustees. Their
answer was unremarkable. They did not take issue with Bush’s claim and
instead conceded their failure to pay. All that remained, it seemed, was to
organize a sale of the property and settle the church’s accounts. After a
public auction and then a trustee’s accounting, by March 1847 the matter
was settled.
If the proceedings in the Baltimore County court suggest that the dissolution
of Zion Church was a matter of efficient administration, proceedings in another
part of the courthouse made the congregation’s stresses more apparent. In July
1846, just weeks before Bush filed his complaint, Zion’s minister, Jacob Moore,
was arrested and charged with “creating a disturbance” at a church meeting.
A local justice of the peace took a closer look and found the minister without
fault, and Moore was discharged. The judge then demanded that each of Zion’s
trustees post a peace bond to guarantee his future good conduct. A local paper
noted: “There is a church difficulty on hand which it is said will be settled
before Baltimore county court.”20 Word was circulating about the prospect of
Bush’s case against the congregation. Zion’s leadership fractured and tempers
flared. Later that fall, the Baltimore criminal court indicted two men – William
Johnson and Isaac Vincent – for assaulting Zion trustee Daniel Purnell. By then
it was no secret that, as a local paper put it, “difficulties in the church” were
being litigated in the courthouse.21 Civil and criminal proceedings overlapped
as the congregation faced the prospect of losing its sanctuary and school
building. What may have appeared to the county court as a routine matter of
debt recovery was wrenching to the congregation.
The timing of the confrontation between Johnson and Vincent, on the one
side, and Purnell, on the other, suggests how tensions peaked as the church
property was finally sold at auction. The fight erupted just two days after the
court-ordered sale of Zion’s sanctuary and school. On October 10, a court-
appointed trustee publicly offered the lot and buildings to the highest bidder at
the Baltimore Exchange. The sprawling Exchange building was the crossroads
of Baltimore’s commercial culture.22 The sale had been in one sense inevitable;
once the trustees admitted to the charges against them, it was only a matter
of time before the property was sold to satisfy the debt. Still, emotions ran
high. And the identity of the purchaser at auction may have especially enraged
congregants. The highest bidder was none other than one of Baltimore’s most
notorious slave traders, James F. Purvis.23 With a bid of $535, Purvis became
the owner of the property and a party to the congregation’s demise.24
Purvis’s presence in Baltimore embodied the type of threat that free black
Baltimoreans lived with as they went about building institutions. Predatory
individuals moved in their midst. In the early 1830s Purvis had migrated to
Baltimore from Washington, DC, first operating out of Sinner’s Tammany Hall
on Water Street and later opening his own Calvert Street office. Throughout
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Constitution and Discipline of the Church 77

the 1830s and into the mid-1840s, he regularly advertised in Baltimore, seeking
to purchase large numbers of slaves whom he proposed to sell in the booming
market of New Orleans. In ads titled “Cash in Market,” he promised to pay
the highest prices for slaves, especially those between the ages of twelve and
twenty-five.25 The city’s slave trade had long been associated with the kidnap-
ping of free African Americans. As slave prices rose further south, traders and
other low-level opportunists preyed on free black people, seizing and then
transporting them to the slave markets of cities like New Orleans.26
Purvis profited in multiple ways when he purchased the Zion Church prop-
erty. In addition to the dollars he may have earned, Purvis gained in reputation
as he worked to transform himself from disreputable slave trader to entrepre-
neurial gentleman. By this time he had stopped advertising for slaves. Instead,
he appears in the records as a partner in a brickmaking enterprise and a real
estate speculator. Free black people were no less integral to this new enterprise,
however. As he had long speculated on their bodies, Purvis now speculated
on their property and religious associations. The courthouse gave the Zion
Church proceedings an ordered veneer that may have offered some consola-
tion. But even their exercise of a right to defend their property against creditors
did not deflect the loss that congregants experienced as their sanctuary and
school became the property of Purvis. By 1849 Purvis was among the trustees
of the newly proposed Baltimore Female College, and by the 1850s he sat on
the board of managers at the city’s House of Refuge, or poorhouse. His was a
reputation gained at the expense of African Americans in more ways than one.
In a cruel twist, after owning the church property for less than a year, Purvis
sold it back to the city’s black Methodists at a profit.27
Zion Church’s leadership may have confronted difficult, even unresolvable
financial difficulties, but nothing short of a formal foreclosure proceeding could
deprive the congregation and its leadership of its church building and school.
In cases such as these, black Baltimoreans developed their own legal acumen,
and they hired experts – lawyers and justices of the peace – who contracted to
serve as allies, for a fee. Nonetheless, legal rights did not account for all eventu-
alities, and a property sale that promised to remedy a congregation’s difficulties
could turn out to be no remedy at all when the purchaser was not to be trusted.
As in the case of Zion Church, legal proceedings could facilitate unjust, even
perverse ends.
Disputes internal to churches did not always find their resolution by way of
church law. But turning to the city’s court was risky because it put in the hands
of judges decisions about a congregation’s future. Such was the case with Bethel
Church, the city’s most prosperous black congregation. Bethel’s leaders hired
lawyers, filed complaints, and otherwise exercised a right to sue and be sued.
Although that capacity turned out to be a robust and versatile right, in Bethel’s
case it was also a risky tactic. The line that state lawmakers hoped would
separate church affairs from state matters was not a bright one by the 1840s.
When the local Chancery Court was asked to intervene in a dispute between
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78 Birthright Citizens

warring factions of the congregation, black Methodists learned that despite the
apparent wishes of the congregation, a court might interpret for itself the terms
of the state statute, the articles of incorporation, and the church’s own law, The
Doctrines and Discipline.
Baltimore’s Bethel Church was among the earliest of black Methodist groups
to split from the Methodist Episcopal Church.28 Daniel Coker led the Baltimore
congregation starting in 1801, and in 1815 Coker’s group left the city’s white-
led Sharp Street Church.29 The experience in Baltimore paralleled those of
churches in cities such as New York and Philadelphia. Black congregants lacked
decision-making power in white-led congregations and were subject to segre-
gation in the sanctuaries and church cemeteries. Bethel also was Baltimore’s
first black congregation to avail itself of the state laws of incorporation, and
its engagement with that process suggests what a legally self-conscious congre-
gation Bethel was from the outset.30 Between 1816 and 1820, Bethel’s leaders
filed no less than three times with the clerk of the court as they worked to get
the terms of their congregation formalized through articles of incorporation. In
April 1816, five trustees and Minister Daniel Coker filed a first act of incorpor-
ation that established Bethel as freestanding and independent.
It was a bold move in a period during which most black congregations
were still tied to white leadership and oversight. Not so at Bethel, where
the trustees were, by the terms of the founding document, “descendants of
Africans” and free. Bethel’s leaders had more in mind, however. Discussions
about establishing an independent black denomination, one that would join
Bethel with congregations in New York, Philadelphia, and other cities, were
already underway. Hence, the articles of incorporation were carefully drawn,
anticipating how church law would come to play an important role in the legal
life of the congregation. Reserved for what was termed a “convention of col-
ored ministers and lay members” was the power to “alter and amend such parts
of this constitution as they may think require alteration or amendment.”31 By
1819 the new denomination, the African Methodist Episcopal Church, had
been established, with Bethel among its founding congregations. The trustees
then amended the articles of incorporation to reflect this new governance struc-
ture: spiritual matters would be regulated by denomination-wide conventions.
Male members over the age of twenty-one whose names were formally recorded
could vote to further amend the constitution. Important authority was being
ceded to the denomination and local governance was tightened by the keeping
of formal membership rolls.32
Questions about Bethel Church’s governing documents persisted into the
next year, 1820. The congregation had been debating how to express its gov-
ernance through the terms of its constitution, a creature of the state, and its
Doctrines and Discipline, the terms of which were set by the denominational
conference. The trustees explained: “Doubts have arisen as to the true construc-
tion of the constitution of 1816 and its amendments. It has been thought advis-
able rather to make a new compact than attempt further amendments of the old
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Constitution and Discipline of the Church 79

one.” An expanded board of trustees, fourteen lay leaders, and Minister David
Smith appeared before two justices of the peace to execute a third constitution.
Among this group was George Hackett’s father, Charles. The source of church
law now included a published text, “the book entitled the doctrines and discip-
line of the African Methodist Episcopal Church” authored by, among others,
Bethel’s former minister, Daniel Coker. The number of trustees was expanded to
nine, including the minister.33 Trustees were required to be free men of African
descent, age twenty-five or older, who had been church members for at least two
years. The constitution made provisions for elections and the control of church
property.34 Law was taken seriously as a foundational dimension of Bethel
Church, and the expanding leadership carefully crafted a scheme in which the
laws of the state and those of the church were in harmony.
While state law encouraged Bethel Church’s independent incorporation,
it nonetheless regulated African American religious assemblies. Formal regu-
lation began in 1806 when the state legislature authorized local constables
to arrest free African Americans at “noisy or suspicious meetings,” including
religious gatherings.35 Over the subsequent decades lawmakers openly decried
large gatherings of African Americans, charging that they would lead to “dis-
sipation and riot.” But it was not until 1831, after the Nat Turner rebellion
in Southampton County, Virginia, that state lawmakers acted. All African
Americans were forbidden from assembling or attending religious meetings
unless the gathering was led by a licensed white clergyman or other respect-
able white person. Under this scheme religious gatherings would continue,
but they were envisioned as happening under close supervision, requiring that
white people be present until the close of the meeting and constables break up
unsupervised gatherings.36 In this respect, Maryland’s restrictions resembled
those in other slaveholding states.
The city of Baltimore, however, remained an exception to the state’s gen-
eral laws. Custom regulated religious assemblies in Baltimore, and the mayor’s
office went so far as to issue permits that could be presented should a constable
or sheriff seek to interfere.37 Black Baltimoreans were permitted to hold inde-
pendent services, with written leave of a white preacher. Lawmakers drew a
distinction between religious gatherings, which were generally tolerated, and
secret society meetings, which were deemed felonies. For the latter, participants
could be fined, sold into service, or, in the case of repeated convictions, sold for
a life term of slavery. By 1845, religious gatherings were restricted to houses
of worship in Baltimore, making camp meetings and other outdoor gatherings
illegal. Still, the city hosted large-scale religious gatherings, including AME
conferences. In 1847 Baltimore had at least thirteen black congregations,
including ten Methodist groups.38
Bethel Church had its own share of disputes, none more prolonged than
the case of Bethel Church v. Carmack. One starting point for this case was the
1845 appointment of the new minister in charge, Daniel Payne, a man who
would go on to serve as bishop in 1852.39 Payne’s journey to Baltimore was
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80 Birthright Citizens

circuitous. As a young man in 1835, he had been pressed to leave his native
Charleston when local authorities forced the closing of his school. He migrated
to Gettysburg, Pennsylvania, and attended a Lutheran seminary. A brief stint
pastoring a congregation in Troy, New York, followed. On moving then to
Philadelphia, Payne joined the AME Church in 1840. He arrived in Baltimore
five years later as an ambitious minister committed to a reform agenda that
was at odds with Bethel’s existing culture. Payne aspired to purge enthusiastic
styles of worship – folk rituals, songs, and dances. In their place, he sought to
impose a restrained style of worship that relied on “order and decorum,” an
educated clergy, and scripted organ music. Payne later recalled these years in
his 1888 memoir as a deeply unsettled time.40 He clashed with Bethel’s lay lead-
ership over his efforts to “modify extravagances in worship” and to grant inde-
pendence to one of Bethel’s local missionary congregations, Ebenezer Church.
Church law and custom generally set the terms of these disputes and Payne
prevailed in both instances.
Payne’s reflections on his years at Bethel Church were bitter. Years after
departing from Baltimore, he declined efforts to bring him back, even after being
reassured that his reform efforts and stern leadership style were “supported
by civil and ecclesiastical law.”41 Payne certainly knew that affairs at Bethel
Church were governed simultaneously by the law of the church and that of the
state because this juridical equation had been tested during Payne’s last year in
Baltimore. For Bethel’s leadership, the two approaches to adjudicating church
differences coexisted awkwardly.
The trouble in Bethel Church began even prior to Payne’s arrival in 1845,
when Bethel Church took up a regular collection to raise funds for a new
church building. On his arrival, Payne sought to speed up this effort and
secured the assistance of another local AME minister, Darius Stokes. Their
campaign met with success. By December 1848 the amount in the building
fund had reached nearly $3,000. But as it grew, animosities surfaced. Two
factions developed among the nine trustees; five, led by a lay member named
Joel Carmack, refused to grant the remaining four trustees access to the
funds or present the church account books for review. Stokes and three
others responded, issuing demands for access to Bethel’s financial records
by the terms of church law.42 Soon Carmack presented the church’s books,
papers, receipts, and vouchers, but still he refused to give over the bank
book. At an impasse, Stokes and the other complaining trustees turned to
the civil law and the local courthouse for assistance. Their bill of complaint
alleged that the five offending trustees had disregarded and defied “all the
requisitions and resolutions” demanded of them and were thus “faithless to
their duty and in fraud of their trust.”43 The court acted quickly, granting the
complainants an injunction that barred Carmack and the other defendants
from interfering with church affairs.
The defendants responded, accusing the complainants of another sort of
wrongdoing. They admitted to a small accounting difference of $319, which
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Constitution and Discipline of the Church 81

they insisted could be explained. The charge of financial mismanagement was,

they asserted, cover for an effort to take control of the congregation. The
complainants, it was charged, had no genuine concern about the use of church
monies and instead aimed to exclude the defendants “from any participation
in the affairs of the corporation” and to “confer on the persons promoting this
suit all the powers of the said corporation.” The case was in essence a power
grab, one that aimed to displace the defendants from their leadership of Bethel.
Hearing this, the court left the injunction in place and set a hearing for five
weeks later, in March.
During this pause in the proceedings, Bethel Church was in the hands of
Stokes and the other complainants. In late February, they convened a church
tribunal. A public trial was held in the Bethel sanctuary.44 Carmack and the
other defendants were accused of appropriating “for their own use money
collected for the benefit of the Church.”45 What local newspapers termed a
“melee” broke out. A “general fray” ensued, the one described at the outset
of this chapter, which ended only when the city watch arrived. Five men were
charged with disturbing a religious meeting, and two women were arrested for
assaulting and beating Darius Stokes, his brother, and the Reverend Payne. For
the second time in as many months, Bethel’s congregants and lay leaders found
themselves presenting grievances to a state tribunal. Once in court, the dispute
only escalated. Supporters of the accused attended the sentencing and were
no more deferential to the authority of the state court than they had been to
the ecclesiastical one. Some took up a collection to pay the fines levied by the
court. Another remarked that “he was sorry for one thing – that it was Stokes
that was not killed; or in other words, that the woman did not give him half
enough.”46
Bethel’s disputes moved to the pages of the local newspaper in the days that
followed. The court of public opinion demanded attention, as news reports
deemed the confrontation at Bethel Church “disgraceful.”47 Carmack and his
allies took out a paid notice that explained their arrest as nothing more than
a ploy to open the way for layman George Hackett and “his colleagues” to
assume leadership of Bethel. Carmack defended himself and his associates
as “honorable men . . . whose character for honesty and sobriety can stand
a scrutinizing test.”48 Writing for the opposition was “H.,” – likely George
Hackett – an ally of Stokes and Payne. He defended the ministers’ characters.
The dispute, he suggested, went as far back as a disagreement between Stokes
and Bethel’s trustees in 1846, when the trustees had apparently refused to settle
an account with Stokes. Instead, they had brought suit against him. Stokes
prevailed at trial and was awarded nine dollars. But the trustees appealed the
case to a higher court, where it was still pending two years later. Hackett made
clear his purpose: “We submit this statement of facts to the public, and leave it
to them to judge upon whom their censure ought to fall.” There was indeed yet
a third tribunal of consequence, and that was Baltimore’s general public, which
might pass its own judgment.49
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Subsequent filings made clear what was at stake. At the heart of the case
were questions about who controlled the “temporal matters” of the church.
What body was authorized to act on behalf of the church in state courts? Both
sides asked Maryland’s Chancery Court to reach its own finding, even though
the same questions had already been vetted by a church tribunal, in a criminal
hearing, and in the newspapers.50 Church law remained key. Bethel’s consti-
tution empowered nine trustees, one of whom was the minister in charge, to
manage the business affairs. Yet in this dispute, the trustees themselves were
divided. Three trustees, along with a number of laymen, had brought suit
on behalf of the congregation. But they did not constitute a majority of the
trustees. Five trustees were named as defendants. Did they constitute a majority
such that they could justly determine church finances and exercise control over
its assets?
And what of the congregation? Did it have any standing independent of the
trustees in the matter? By early March the complainants thought they might,
and they organized two meetings during which the matters pending in Bethel
Church v. Carmack were put to the church membership. George Hackett’s
entire family was present: his parents, Charles and Charlotte, and his daughter,
Henrietta. The result was a four-foot long petition with nearly three hundred
signatories, said to have been appointed by the congregation as a whole for
the purpose of endorsing a series of resolutions. They condemned Carmack
and the other defendants: “$1,000 could not pay us for the misery they have
done . . . Neither could a life time of repentance . . . ever efface . . . the stain
which they have brought upon [the church].”51 The body then did away with
the existing corporate seal – in essence the official signature of the congre-
gation – and authorized the pastor to commission a new one for his exclu-
sive use. The congregation’s petition captures the details of a dramatic scene: a
public gathering at which hundreds of congregants, men and women, lined
up to approve the litigation already under way. Their authority was nowhere
provided for, not in church law nor in the law of the state. Still, on March 9 the
complainants filed what came to be labeled “Exhibit A”: a lengthy document
that evidenced a collective church ritual intended to shape the outcome in a
civil proceeding.
Was the congregation empowered to authorize the suit and collectively
testify on its merits? Chancellor John Johnson of the Chancery Court concluded
it was not. Only the trustees could act on behalf of Bethel. The three trustee
complainants were, however, the correct parties. Their number constituted a
majority of a quorum and thus their decision to bring suit would be honored
by the court. In contrast, the five trustee defendants had been sued in their
individual capacities, rather than as representatives of the church, and the
charges against them would go forward.52 Convening a mass assembly likely
galvanized the church community as a whole. Hundreds of worshipers became
parties to the dispute and collectively condemned the defendant trustees, much
in the way the church tribunal had done months before. Still, the congregation’s
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Constitution and Discipline of the Church 83

resolutions were deemed irrelevant to the Chancery Court proceedings. They

were instead represented by a small quorum of trustees, and without standing
as a body to challenge the mismanagement of church funds under the terms of
Bethel Church’s constitution and its laws, The Doctrines and Discipline.
The image of Darius Stokes “resting with one hand upon the Constitution
and with the other upon the Discipline of the Church” was less a metaphor
than a literal reflection of how Bethel Church managed a serious and prolonged
dispute. Church law as expressed in Bethel’s constitution and denominational
law, The Doctrines and Discipline, provided one framework for resolving who
controlled church finances and under what terms. A church tribunal had been
convened to try offending trustees, who faced formal findings of wrongdoing
and the threat of expulsion. The laws of the state of Maryland were no less
significant. State statutes that punished the disruption of religious assemblies
and assault regulated the inner workings of Bethel’s sanctuary and brought
congregants face to face before state authorities to testify in the local court-
house about conduct within the sanctuary. Baltimore’s Chancery Court assumed
authority over the allocation of church decision making. Trustees might act on
behalf of the congregation as a whole, it found, if they came together in suffi-
cient numbers. But they might be liable in their individual capacities when they
acted without the approval of the trustee board. Congregants, in the state’s
view, were without standing to influence a dispute among trustees. Still, their
collective denunciations might influence how contests over church authority
played out in the day-to-day life of the church.
Where the story of Bethel Church v. Carmack ended is difficult to say. One
end point was the court’s decision of June 1851, in which the standing or
authority of the three trustees to bring a case against five fellow trustees was
upheld.53 The case then languished until at least 1857, when it was abandoned
by all concerned. There is however another end point, one that follows the
lives of the key protagonists. Their stories reveal how civil authority and
church authority worked in tandem. In June 1850, Baltimore’s AME Quarterly
Conference – the body that governed the city’s local congregations – ordered
Darius Stokes to give up his position as chief steward of Bethel Church.
Shortly thereafter Stokes was suspended for six months after he held a “bush
meeting” without authorization.54 Congregants also continued to take leader-
ship disputes with Stokes into their own hands. During the summer of 1852,
church members Lucy Riggs and Ann Hughes were charged with assaulting
Stokes’s wife. Stokes himself was again assaulted in the Bethel sanctuary,
and his assailant, James Brown, was charged with inciting a riot.55 Later that
year, in November, Stokes’s twelve drayman’s horses died, it was said, by a
“foul means . . . by malicious persons.”56 By late 1853 Stokes was living in
San Francisco, where he resumed his work as an AME preacher.57 Hackett
also faced challenges to his leadership, as was the case in March 1852 when
Mary Taylor, the wife of a Bethel Church sexton, attacked Hackett in front
of the sanctuary.58 Hackett too abandoned Bethel Church, and by 1865 he
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84 Birthright Citizens

was serving as presiding elder Baltimore’s Ebenezer AME Church.59 The dis-
pute that became Bethel Church v. Carmack continued to reverberate. Intimate
confrontations that played out in Baltimore’s courthouse would continue to
play a role in rearranging black Methodist leadership.
Baptist churches, like their Methodist counterparts, navigated between secular
and church law. Baptist churches also came together before lawyers and justices
of the peace before worshipers could come together for a Sunday service. The
subject matter of sermons and the style of music to be played were secondary
matters. First, Maryland law insisted, a church must be incorporated and estab-
lish governance structures. By church law, Baptist congregations enjoyed more
autonomy than did their Methodist counterparts because decision making was
carried out locally, rather than by centralized associations. Church members,
for example, elected their own ministers. Even so, black Baptist congregations
remained financially and culturally linked to white-led associations such as, in
Baltimore, the Maryland Baptist Union Association.
Baltimore’s black Baptists faced some of the same tensions experienced by
Methodists. Church communities grew in size, factions emerged among the
leadership, and the establishment of new congregations was fraught and some-
times deceit-laden. Baptists tussled over control of church buildings, and new
congregations were born out of a painful and legally complex set of contests.
Turning to the local courthouse and seeking the intervention of a judge became
routine.
Baltimore’s First Baptist Church was founded out of happenstance.60 In
1812 the city’s white-led First Baptist Church on Sharp Street opened a school.
Its intent was to educate white adults, but when African American men and
women began to vastly outnumber the white pupils, the mission was changed.
At the end of that year, 160 African American students made up the core of
Baltimore’s first black Baptist congregation, and for the next twenty-five years
the congregation remained an informal though vibrant community. How
things changed is a matter of some debate. Was the congregation formalized
at the behest of white Baptist activist William Crane, or was it the former
slave and Baptist preacher Moses Clayton who took the initiative? Both Crane
and Clayton arrived in Baltimore in 1837 from Norfolk, Virginia. By late that
winter, five members of the African American First Baptist Church, along with
the Reverend Moses Clayton, were before two justices of the peace, formal-
izing their incorporation.61
But first Clayton had called together his congregants to settle on the terms
of their union. The male members over the age of twenty-one met and elected
a board of trustees. They established the voting rights of congregants: only
men over the age of twenty-one and “free from the charge of any breach of
morals” would vote. Only free men could hold leadership slots. A majority of
the members – a term that appears to have included women (the term “voters”
was crossed out in the text) – would choose the minister. On March 14, the
trustees and Clayton himself executed the articles of incorporation.62
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Constitution and Discipline of the Church 85

The formalities were typically carried out, with First Baptist’s leaders
asserting their ownership and control of the congregation by signing their
names or otherwise making their marks. A closer look at the incorporation
document reveals an important omission. At no point did this group of black
Baptists acknowledge or make reference to white Baptists or suggest that
their governance was tied to a broader polity or rule of laws. This autonomy
is striking when contrasted with that of Bethel Church, for example, where
leaders went to some lengths to formalize their deference to the denomination
and its laws. Most striking, the well-known Baptist leader William Crane was
nowhere to be seen in this founding moment. Whether he was excluded or just
out of sight on the margins of the scene is difficult to say.
It is clear, however, that the First Baptist Church remained closely tied to the
city’s white Baptists. The latter had organized in 1836, the Maryland Union
Baptist Association. Black Baptists had not been included at the outset, but
in 1841, when Clayton and his congregation requested admission, they were
welcomed.63 By 1844 the “colored church on Lewis street, Baltimore,” was
among the fifteen congregations that made up the association.64
Moses Clayton came to First Baptist with his own experience. Clayton was
born enslaved in Virginia’s Tidewater region in 1783.65 Had he been manu-
mitted or had purchased his own freedom, the record does not say. But without
question, his early life included time spent in a local courthouse. Clayton
carried the evidence of this on his person, in the form of “free papers” for
himself and wife and her two daughters.66 By the time he arrived in Baltimore
in 1836, he was literate and possessed a preacher’s gift for public speaking.67
Clayton immediately set out to formalize the city’s black Baptist community.
There were negotiations with white Baptist leaders like William Crane, but it
was Clayton who oversaw the steps necessary to formalize the community.
Clayton is remembered as a builder. He constructed a small church for his
flock on Baltimore’s Lewis Street. He was as responsible as any black min-
ister for making visible the commitment that many African Americans had
to living out their lives in Baltimore. And still, Clayton had doubts. When it
was proposed that black Baltimoreans migrate to British Guiana or Trinidad,
the Baptist leader lent his support to the public debate.68 Emigration schemes
captured the aspirations of black congregations, and their ministers facilitated
extended debates about the relative merits of life in the United States versus
that in black-led republics elsewhere in the world.
By 1849, First Baptist was experiencing what might be termed growing
pains. There was talk about the need for a second black Baptist congrega-
tion in Baltimore. But the situation devolved into one of deception and deceit.
Before there was open debate or outright litigation, signs suggested that con-
trol over the congregation was in flux. Keys to the sanctuary and the church’s
account books passed from hand to hand. Assemblies were called, evidencing
varied capacities to attract and perhaps sway a majority of voters. Soon such
internal wrangling proved inadequate. No resolution was in sight. The question
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86 Birthright Citizens

of who controlled the First Baptist sanctuary was brought before Baltimore’s
Chancery Court.
In 1850 two competing factions were in contention in First Baptist. Moses
Clayton had resigned from his post as founding minster, and in his place
stood John Carey, who brought with him a new roster of trustees. We do not
know whether it was Clayton or Carey who first proposed forming a second
congregation. Clayton may have resigned in anticipation of establishing a
new congregation; witnesses said that it was Carey who approached the
city’s white Baptist leadership to secure its approval for a new church. What
is sure is that by 1851, the two men and their factions were openly at odds.
Their point of contention was the church’s debt: How much was it, and how
should it be satisfied? The trustees had entered into an indenture in 1841
that had yet to be satisfied. Carey recommended the sale of the Lewis Street
church. Clayton disagreed and, according to a witness, asserted that Carey
and his cohort “ought to be whipped if they allowed it to be sold.” Another
faction proposed taking stock of the debt and then paying it down at the
rate of fifty dollars per month. The question was put to the congregation on
more than one occasion.
By the time the parties came before the court, Clayton had been reelected
minister and his trustees, too, had been reinstated. But this formality had not
stopped Carey and his allies from selling the building. In November 1851,
three months prior to the filing of Clayton’s suit, the building had been sold
to a Benjamin Brown for $240. Brown was a former trustee and Carey ally.
Clayton’s complaint alleged fraud. Brown, he asserted, had conspired with
Carey and the other trustee defendants to deprive Clayton and those loyal
to him “from worshipping there and from enjoying their religious and legal
rights and privileges” (emphasis added). Clayton’s attorney, Orville Horwitz,
was experienced in church matters. He had also represented Bethel’s leader-
ship in its case. Clayton prevailed; Carey and his trustees were enjoined from
everything but worshiping “as other members or persons” and prevented from
further interfering with Clayton’s use and occupancy of the building “for the
worship of God.”69 Carey was unrepentant, and within weeks Clayton was
back before the court seeking an amendment to the order that would prevent
Carey from locking him out of the sanctuary. The court agreed, but it was a
short-lived victory. By April the court had dissolved the injunction. There was
no evidence, Judge Frick concluded, that Clayton and the other complainants
were being excluded from worship services at First Baptist. (He left the other
question about current leadership, the sale of the sanctuary, and fraud for a
trial on the merits.)70 Fifteen months later the Maryland Court of Appeals
would agree.71
Had Carey and his allies defrauded the Clayton faction? Perhaps. Not long
after the case settled, Carey organized a new congregation, Union Baptist
Church. And Union Baptist would take over legal ownership of the First Baptist
property, purchasing it for $240.50 and thereby winning Brown a profit of just
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Constitution and Discipline of the Church 87

50 cents.72 Either Brown had been overtaken by a sense of benevolence and

given the property back to his former church, or he and Carey had indeed
colluded against Clayton, successfully winning control of the building by way
of a fraudulent sale. This would have to be enough to satisfy Carey and his
faction. Moses Clayton persisted and reopened First Baptist in a new building
on Thompson Street.
William Crane, the white Baptist lay leader, frequently inserted himself into
the workings of black Baptist congregations. Some characterized him as a
patron. He viewed himself as a benefactor. His interference may have been the
price churchgoers paid for his support in the building of black congregations.
It was evident, however, that Crane’s presence equaled white meddling in
black church affairs, or worse. In 1847 Crane repeated the scenario that he
had enacted with Clayton a decade before. Crane invited a former slave from
Virginia, Noah Davis, to Baltimore, where Davis set up a new Baptist congre-
gation in a small meeting room. In the following year, 1848, it was Davis, it
is said, who formally established the Second Baptist Church. Now there was
competition in Baltimore for black Baptist congregants, and that contest was
being facilitated if not fueled by white church leaders.73
Two points in this story suggest how ties to white Baptists continued
to trouble black Baptist congregations. The first point is about structure.
Davis, unlike his counterparts Clayton and Carey, had an interracial board of
trustees that was dominated by the six of its nine members who were white.
Nothing in the law prevented this. The articles of incorporation of black
Baptist congregations did not restrict leadership to men of African descent,
as was the case for black Methodists. Had either Clayton or Carey faced
pressure to have white men on their boards? It is not possible to say. But
Davis’s case suggests that white Baptist leaders in some cases were eager
to control black congregations and nothing in either church or state law
prevented that.
The second point is about the complexities of property ownership. In the
early 1850s Davis and Crane collaborated on the construction of a new church
building for Second Baptist. It was an ambitious proposal that included a large
sanctuary that would seat more than a thousand worshipers and, upstairs,
meeting rooms and a school. Crane’s sense of benevolence took on grand
proportions as he financed the construction, at a cost of $8,600. The congre-
gation was, however, responsible for repaying the debt on Crane’s vision. By
the time the sanctuary opened, questions and the crushing nature of the obliga-
tion led Crane to make a public disclosure. He had retained ownership of the
church building and had never passed the title to Davis and the congregation. In
addition, Crane had originally planned to rent out the upstairs meeting rooms
at a profit, a scheme that failed for lack of clientele. Crane’s heavy-handed
alliance with Second Baptist left the congregation with no sanctuary and a
debilitating debt. The contest between Clayton and Carey had been fraught
and underhanded, but they had managed to sustain two congregations in the
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88 Birthright Citizens

wake of their litigation. Davis, on the other hand, never challenged Crane, and
the result was fatal for his congregation.74
Law mixed with spiritual fervor in the creation of religious communities
in black Baltimore. When disputes arose, congregations variously wielded the
law of the church and that of the state. Law was in one sense where all black
congregations began, and free black religious leaders took great care in crafting
their founding documents to delineate the relationship between their church,
the state, and their white benefactors in the church’s day-to-day governance. In
some instances courts came to serve as distant arbiters on fine points of lead-
ership and authority. At other points, judges became unwitting actors in scenes
of pitched disagreement and deception. As church cases made their sojourn
through Maryland’s courts, the limits of the state’s capacity to interpret the
letter of church law were exposed.
Differences over church finances and leadership shed light on how free
African Americans made citizenship-like claims. The capacity to incorporate
their associations and then exercise the right to sue and be sued in the state’s
courts wove free black Baltimoreans into the fabric of the city. And the
presence of their church buildings and the sight of their bodies on their way
to worship served to sharply counter proposals for the colonization or ban-
ishment of African Americans from Maryland. The presence of black church
members in the courthouse, as complainants and defendants, reflected how
they exercised what would come to be recognized as one of citizenship’s
hallmark civil rights: the right to protect their persons and property before
the law.75
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By Virtue of Unjust Laws

Black Laws as the Performance of Rights

“We are Americans, having a birthright citizenship,” wrote Martin Delany. The
year was 1852 when Delany set out his ideas in The Condition, Elevation,
Emigration, and Destiny of the Colored People of the United States.1 Delany’s
reputation as a journalist and antislavery orator was well set. In this, the first of
his six books, he shifted from chronicle to analysis before ending with polemic,
mixing feelings of contempt and despair with pride. Free black Americans had
reached remarkable heights in education, commerce, politics, and the arts, he
acknowledged, despite a rising tide of racism. Delany concluded that the time
had come for African Americans to leave the United States, marking the emer-
gence of a new emigration movement. Still, Delany made plain what he was
walking away from: citizenship.
Delany explained African American belonging in cultural and historical
terms: “Our common country is the United States. Here were we born, here
raised and educated; here are the scenes of childhood; the pleasant associations
of our school going days; the loved enjoyments of our domestic and fireside
relations, and the sacred graves of our departed fathers and mothers.” The
United States was home in an affective sense, Delany recognized. Further, free
black Americans had demonstrated their belonging through labor and military
service. Delany recounted for readers the many African American contributions
to the nation, its security, and its prosperity.2
Law was central to Delaney’s construction of citizenship. Nothing less than
birthright guaranteed to black Americans their place: “We are Americans,” he
declared, by virtue of “having a birthright citizenship – natural claims upon the
country – claims common to all others of our fellow citizens – natural rights.”
Why, then, emigration? Delany explained how the rights of African Americans
could “by virtue of unjust laws, be obstructed, but never can be annulled.”
Black laws, in this view, were at odds with a natural-law claim to birth-
right. Delany’s list of such “unjust laws” was long. State black laws regulated

89
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90 Birthright Citizens

Figure 6.1 Gun Permit Application. Black Baltimoreans were among those who
carried guns in a city whose political culture was often riven with violence. They also
carried court-issued gun licenses, a sign of inequality and evidence of a right won with
the cooperation of lawyers and judges. Image courtesy of the Maryland State Archives.

labor, associational life, travel, and commerce. Troubling on their face, these
statutes also had an unspoken aim, in Delany’s view: the removal of free black
Americans from the United States. Provided for in the text of state black laws
were conditions so adverse that free black people, it was hoped, would leave
their individual states and perhaps even leave the United States entirely. Delany
railed against lawmakers who plotted the excision of free African Americans.
The right to remain, to stay put, was Delany’s foremost claim.3
Birthright citizenship was a fully formed idea by the early 1850s. Even men
who opposed Delany’s emigration scheme, such as those who met at the 1853
Colored National Convention in Rochester, New York, mirrored his thinking.
Frederick Douglass headed a committee at the convention that wielded citizen-
ship as a weapon against black laws and removal in its address “to the people of
the United States.” The address positioned black Americans “not as aliens nor
as exiles” but as “American citizens asserting their rights on their own native
soil.” “We would, first of all, be understood to range ourselves no lower among
our fellow-countrymen than is implied in the high appellation of ‘citizen.’ ”
This was an expressly legal claim: “By birth, we are American citizens; by
the principles of the Declaration of Independence, we are American citizens;
by the meaning of the United States Constitution, we are American citizens.”
Supporting authorities, such as the delegates to New York’s 1821 Constitutional
Convention, were invoked. The language of the Constitution was examined to
explain that “white” did not restrict the guarantee of privileges and immunities
to citizens. Pronouncements connected to Missouri’s 1821 admission as a state
were reprinted, evidence that some members of Congress believed themselves
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By Virtue of Unjust Laws 91

bound to recognize free people of color as citizens. An 1814 proclamation

from then Major General Andrew Jackson was quoted for its suggestion that
the free colored inhabitants of Louisiana were “fellow-citizens” to their white
counterparts. William Yates’s 1838 treatise likely helped the committee set out
its evidence. And their conclusion was unequivocal.4
The delegates objected to laws “limiting the aspirations of colored men, as
against white men.” Such black laws must be repealed, they urged. White men
needed no protection from competition, and black men were entitled to honor-
ably pursue “life, liberty and happiness.” The convention aimed to see “wicked
and oppressive law become dead letters upon the page of our statute books;
societies for our removal become extinct.”5 Such laws were antirepublican
and unconstitutional, they argued, and aimed at not simply the regulation of
everyday life. Instead, they constituted a grander scheme to “down us and drive
us into exile!”6
This chapter examines the confrontations that Maryland’s black laws
provoked for free people of color in Baltimore. While their terms were wide
ranging, a closer look at the city’s criminal docket shows how infrequently such
laws were enforced. Laws requiring travel permits and gun licenses are two of
the more striking examples. Both mobility and the possession of firearms had
material significance – they enabled self-sufficiency and self-protection. They
were also linked to emerging discussions about what rights the Constitution
might protect: abolitionists argued that the Second Amendment extended to
free people of color a right to bear arms, and the Supreme Court was begin-
ning to provide for a right to interstate travel. In Baltimore, free people of color
were regarded as an exception in the sense that they required court permis-
sion to inhabit such rights. But they did gain the rights to travel across state
lines and carry firearms. Along the way, they made lawyers and judges into
accomplices whose own reputations turned on the ability of free black people
to comport themselves like rights-bearing people.
Black Baltimoreans were not represented at the 1853 national “colored” con-
vention. Nevertheless, little of what unfolded in New York would have surprised
them. Closer to home, in Annapolis and Baltimore, other conventions – some led
by black men and some by their white counterparts – continued wrestling with
how to define their status. State lawmakers asked how a new constitution should
define their relationship to its protections. Activists clashed over the old question
of whether they should submit to colonization, embrace emigration, or simply
stay where they were. Baltimore put to the test ideas debated in New York’s
national convention, and the proving ground for citizenship was not a meeting
hall. Baltimore’s black men and women brought their questions to the local
courthouse. What they did there, securing travel permits and gun licenses, carried
a double meaning. The state might regulate its African American residents, but
such regulations could be turned into assertions of rights.
This chapter reconsiders the significance of license and permit applications.
Black laws that required court permission to travel or own firearms were not
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92 Birthright Citizens

widely enforced in Baltimore. Still, black men and women presented them-
selves to the local courts, asking for approval. If there was little fear of appre-
hension or punishment, why did they take the trouble? One answer lies in
the degree to which permits and licenses were also symbolic, transforming
travel outside of the state and the possession of a gun into the exercise of
rights approved and enforceable by the city’s judges. The everyday means by
which black Baltimoreans secured their persons and their possessions were
also performances of belonging, endorsed by the recommendations of white
lawyers and the orders of white judges. By 1851 the backdrop for these acts
was a new state constitution that had failed, despite its framers’ efforts, to
fix the status of free black Marylanders. In the face of legal indecision and
uncertainty, those who traveled or owned a gun might very well have a right
to do so.
The drafting of a new state constitution in 1850 was an opportunity. The
convention, the first in eighty years, was an occasion for breaking the silence
around the status of free African Americans. Maryland had been governing
free black people by way of legislative edicts passed over many decades. As
delegates gathered in Annapolis, many of them were eager to fix the status
of free black people. Weeks were devoted to long and probing deliberations.
On some issues, slavery among them, there was easy agreement. The state’s
elite lawmakers agreed to protect slavery as an institution and ensure that it
remained unmolested by the legislature. The result was an absolute bar against
abolition in Maryland, guaranteeing the future of slavery.7
On free people of color, the tenor could not have differed more. There was a
brief, early agreement. Few questioned the proposed terms of article 1, section
1, which reserved the right to vote to “free white male persons of twenty-one
years of age.” This provision was carried over from the prior constitution.8 This
turned out to be the only easy meeting of the minds. Slavery was inviolable,
and free black men could not vote. But beyond that, when delegates were asked
what other rights, if any, free African Americans might be guaranteed, or when
asked if they might be citizens, discord reigned.
Such questions first arose indirectly during a debate over a proposed guar-
antee of security to “freemen” in their persons and their property. The term
“freemen” was ambiguous. Did it include only free white men, or did it include
free men of color? Opposition to the term coalesced around the view that
nothing in the constitution should impair the legislature’s right to remove free
people of color from the state, at will. To promise protection of the property
and persons of free black men was to compromise the right to remove them, it
was said. The parameters of a debate were set.
In the exchanges that followed are signs of how salient the designation
“citizen” could be. Some delegates proposed substituting the word “citizen” for
“freeman,” urging that such language would exclude free African Americans
from such protections. Free black people were patently noncitizens, in this
view. Others argued that no such amendment was necessary because free black
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By Virtue of Unjust Laws 93

people were already understood to be mere denizens – in other words, some-

where between a natural-born citizen and an alien and, in Maryland, always
subject to the state’s police power of removal. Some advocated that it was
imprudent to place free men of color outside the “pale of legal protection,”
while others urged that the convention could invoke its “right” to “violate the
rights of the colored people” only if such persons first conducted themselves
unpeaceably.9 William Blackistone, former speaker of the State Assembly,
insisted that free black people must necessarily enjoy some rights: Once “a
human being, native, or foreigner, white or black, bond or free, sets his foot
upon our soil, he is under the protection of the laws of the State.” Blackistone
conceded that he would be willing to remove free people of color to Liberia,
where they “would have rights which will not be given to them here.” But short
of that, he insisted, free African Americans should be secure in their persons
and property.10
Freemen. Denizens. Human beings. These were among the various characteri-
zations of free black Marylanders at the convention. Most lawmakers struggled
with locating a middle ground, asking what sorts of rights might be guaranteed
to African Americans. The final text of the constitution guaranteed to “free
men” security in their property and persons, while at the same time allowing
the legislature to pass “all such laws for the government, regulation and dis-
position of the free colored population . . . as they may deem necessary.”11 No
mere denizens, free African Americans might be accorded protections for their
persons and property, but the legislature had the discretion to supersede such
rights.
In the face of this fumbled opportunity, the convention’s Committee on the
Free Negro Population determined to arrive at some substantive provisions. The
committee’s charge was explicit: To submit “some prospective plan, looking to
the riddance of this State, of the free negro and mulatto population thereof,
and their colonization in Africa.”12 Its first effort was a statistical report. The
state’s free black population had increased by 1,000 percent since 1790, from
just over 8,000 to more than 73,000 people in 1850. But the most important
numbers were those that explained the relative rates of population growth for
free black versus white Marylanders: “The free negro population, given the
rate of progression, must, in a few years, exceed the white population in eleven
counties of the state.”13 What did such numbers say? To the committee, they
quantified the growth of a population that burdened the state with its passivity,
lack of ambition, and complacency. The committee’s recommendations aimed
at ridding Maryland of such people “reared in all the vices, ignorance, wants
and degradations, characterizing a class of our population called free, but in
reality the veriest slaves on earth.”14
Here was a rationale for doing what the delegates as a whole had failed to
do: enact policies that would ensure the removal of free people of color from
Maryland, a position borne of radical colonizationist thought. The committee’s
proposal came in the form of four additional articles proposed for inclusion
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94 Birthright Citizens

in the final constitution. The first clause authorized legislation for the “gov-
ernance” and “removal” of free people of color, and further directed that a
registration requirement be imposed. Here, lawmakers laid the groundwork
for a scheme that countered the voluntary quality that generally characterized
colonization. All free black people in Maryland would be on notice that they
could be forcibly removed from the state, as was expressly authorized by
law, no due process required. They would be called on to facilitate their own
removal by registering their presence with the state. The second clause declared
free people of color barred from holding “real property,” and that any such
conveyances would be “null and void.”15 Here lawmakers sought to negate a
long-standing strategy by which free black Baltimoreans had asserted ties to
the state, homeownership. As for black churches, their titles, too, would be
annulled, undercutting the center of associational life and the autonomy that
grew out of owning church sanctuaries and schools.
Proposal three voided manumissions if former slaves failed to leave the state
within thirty days of gaining their freedom. This offense, which previously
had been punished only by a fine, would lead to reenslavement. The fourth
proposed article would bar any free person of color from entering the state.
This was envisioned as an absolute bar, and here the committee’s intentions
were explicit. No longer would the movement of free blacks into or out of the
state be permitted – not pursuant to a court-ordered permit, nor in the com-
pany of whites, nor for those headed to Liberia by way of Baltimore’s port.16
The committee’s proposals were consistent with its mandate. Still, they went
nowhere. The chair, Eastern Shore slaveholder Curtis Jacobs, never persuaded
delegates to consider his report.17 Instead, deliberations were delayed by a vote
of the delegates as a whole.18 Not only were delegates unable to fix the gen-
eral status of free black people, they ignored a committee report on the matter
and effectively left the question in the hands of the legislature. After months
of deliberation, Maryland’s lawmakers had gotten no closer to settling the
question of free black people and their status. Competing ideas and interests
had scuttled consensus. More important, they exposed how divided were the
minds of white lawmakers. The 1851 constitution introduced more questions
than answers.
Baltimore’s free black activists were watching, and in response to the new
constitution, they called a Free Colored People’s Convention of their own.
They were disheartened. Black laws had long been used to pressure them
to leave the state. Now lawmakers had again openly advocated their forced
removal. There was little consolation in lawmakers’ failure to either arrive
at a consensus or set forth transparent terms for removal. The legislature
clearly retained the general discretion to enact laws it deemed appropriate
and also held a constitutionally sanctioned right to remove free black people
from the state. Black Baltimoreans responded with a well-established practice
among free black activists; a meeting that brought together sixty-one black
leaders from throughout the state. Commentators such as Frederick Douglass
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By Virtue of Unjust Laws 95

expressed surprise that such a meeting could be held in a slave state at all.
Still, ministers, teachers, barbers, and carters came together to reconsider col-
onization in Liberia and to make recommendations to the state’s free black
residents.19
A circular announcing the meeting put colonization and emigration up front,
inviting delegates to “take into serious consideration our present condition and
future prospects in this country, and contrast them with the inducements and
prospects opened to us in Liberia, or any other country.”20 Silence in the state
constitution of 1776 had left room for black Marylanders to negotiate their
status. The constitution of 1851, Chairman John Walker explained, did not
recognize them at all.21 Walker set the tone by reminding delegates how their
legal status had deteriorated over the years. Black Marylanders in 1852 lived
in the same state their fathers had lived in, he explained. But they did not live
under the same constitution.22
Walker recognized the influence of colonization in the 1850–51 consti-
tution. For example, delegate William Blackistone had measured free black
people’s rights in the United States against those they could expect to enjoy
in Liberia, promoting the colonizationist view. Maryland’s legislature had
always extended financial support to colonization, unlike Congress. By 1850
the state had expended nearly $300,000 to encourage and facilitate the
out-migration of African Americans. Just over a thousand individuals had
emigrated, while many thousands of others were witness to the black fam-
ilies who passed through Baltimore en route to Liberia. In 1852, interest was
renewed.23 This was because, as Blackistone suggested, Liberia promised a
robust citizenship, pledging to make each black Marylander “a free man”
who could exercise “all the functions of a free republican government [and
hold] an honorable position.”24 Lawyer John H. B. Latrobe had drafted the
colony’s constitution, guaranteeing to black migrants the rights to bear arms,
to trial by jury, to security in persons and property, to due process of law, to
testify and confront witnesses in court, to own real property, and to make
and enforce contracts.25 In contrast, the prospects in Maryland remained
dim. While colonization generally had been the target of African American
disdain, black Maryland’s leaders once again reconsidered the prospect of
making their lives over for the better.26
A meeting to discuss colonization was highly provocative. Before the con-
vention completed its first day, delegates were confronted by what the Sun
newspaper described as several hundred “evil disposed and riotous” individ-
uals. Protestors assailed delegates as they entered the hall, while others gained
entry and disrupted the proceedings. By the day’s end, some delegates so
feared for their safety that they abandoned the convention. The local press
credited the city police with reprimanding the “outsiders” and “rowdies” and
preventing a general melee.27 Such violence was not new in Baltimore, as black
Baltimoreans were often the targets of mob violence. But this confrontation
was distinct. The outsiders and rowdies set on disrupting the proceedings were
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96 Birthright Citizens

African Americans themselves. Talk of colonization led the city’s free black
activists to confront one another in meeting halls and in the streets.28
The 1852 convention was exceptional, and not simply for the violence that
it generated. It was still true that black-led conventions were rare in Baltimore.
And while the convention had attracted press attention well beyond the city,
that coverage likely exaggerated the significance of the clash. The local court-
house remained the main stage for confrontations over race and rights. Black
laws – those acts that broadly defined what it meant to be a free black person –
drew free people of color to clerks’ offices and judges’ courtrooms most days
of the week. Most despised the black laws that originated in Annapolis, where
legislators hammered out their compromises. Most often spearheaded by the
slaveholder-dominated Committee on the Free Colored Population, proposals
for black laws failed in the legislature as often as they succeeded, with
lawmakers breaking down along geopolitical lines: Baltimore representatives
were frequently at odds with men from the state’s south and the Eastern Shore.
Those laws that passed reflected concessions on both sides. At the same time,
they papered over the same differences that had troubled the 1850–51 con-
stitutional convention. There was no agreement about how to regard black
Marylanders before the law.
Through permits and licenses, the law’s power was being redistributed to
a degree that many working people, white as well as black, recognized. Such
documents embodied more than a contract or privilege and by the end of the
eighteenth century had come to be viewed as personal property by those who
held them, or at least that was the case in Massachusetts.29 In Baltimore it
was also true, and workers drew on the language of rights when opposing
authorities who revoked or restricted the transfer of licenses. Black law-derived
permits and licenses might be viewed in the same way. The legal authority
of white men was also affirmed. Those who provided recommendations
reinforced their standing before the court as individuals with high reputations
and discerning capacities that could undergird a judicial determination. For
judges, the authorization of permits was an imposition of their legal judgment
on the social world. All parties to a permit or license expected that, on the city’s
streets, their agreements would be respected and deferred to. There are no signs
that they were not.30
Big questions framed small permit transactions. Was there a right to
interstate travel in the 1850s, and if so, for whom? This question occupied
the thinking of courts high and low, as individual states sought to regulate
who could enter their territory and under what terms. At the heart of these
deliberations were the puzzles posed by free African Americans. Congress in
1821 had debated Missouri’s attempt to bar free black migrants by the terms
of its founding constitution. By the 1850s, the question was before the United
States Supreme Court, linked to its efforts to define Congress’s authority pur-
suant to the commerce clause. Could a state regulate interstate migration, or
was that power reserved exclusively for Congress?
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By Virtue of Unjust Laws 97

In the nation’s high court, a right to interstate travel was emerging. As early
as 1841, in Groves v. Slaughter, the Supreme Court asked whether individual
states could regulate the interstate travel of free African Americans but left the
question open.31 The issue of free black travel again undergirded the court’s
thinking in the 1849 Passenger Cases.32 Reviewing the constitutionality of
Boston’s poor law and New York’s quarantine law, the companion cases linked
the jurisprudence of interstate commerce, free black Americans, and the right to
travel.33 The initial articulation of a constitutionally guaranteed right to inter-
state travel was contained in Roger Taney’s dissent: “For all the great purposes
for which the Federal government was formed, we are one people, with one
common country. We are all citizens of the United States; and, as members of
the same community, must have the right to pass and repass through every part
of it without interruption, as freely as in our own States.”34
Free black people were, however, an exception. Taney’s use of the term
“citizen” was a sign that the right to travel was qualified. Indeed, not one of
the seven justices who wrote in the Passenger Cases argued for an unfettered
right to travel. Instead, they offered a litany of those excepted from said
right: Convicts, felons, vagabonds, paupers, the infirm, and slaves. No justice
objected to the exclusion of free African Americans and the curtailment of
their right to travel. In Taney’s view, no scheme, be it a state regulation, an act
of Congress, or an international treaty, could permit “Great Britain to ship her
paupers to Massachusetts, or send her free blacks from the West Indies into the
Southern States or into Ohio, in contravention of their local laws.”35 Essential
to the development of the court’s reasoning was the threat that the movement
of free black Americans was said to pose.36
In the local courthouse, free black men and women posed another version of
this question. If there was a right to travel, how might they act on it? The answer
was to make an appearance before the city’s criminal court. The courthouse
atmosphere also presented a challenge to asserting a right to travel. Notorious,
for example, was the courtroom of Judge Henry Stump, the sole judge to pre-
side over the city’s criminal court after his election in 1851. Later, in 1860,
Stump would be removed for being drunk and sleeping on the bench.37 Until
then, it was Stump’s careless regard for free black people that drew criticism
from the state’s court of appeals. In 1859 Thomas Watkins had been convicted
of larceny.38 Stump’s sentence exceeded permissible guidelines and directed
that Watkins be sold out of the state. The high court overturned the sentence,
noting with concern that the court record had been improperly tampered with
in an attempt to shield Stump from rebuke.39 But even with his conviction
overturned, Watkins had to use a writ of habeas corpus against the warden of
the city jail to secure his liberty. He avoided Stump during this last matter, filing
the petition with circuit court judge Z. Collins Lee.40 Neither success nor the
promise of success awaited black litigants in the Baltimore City courthouse.
Entering Stump’s courtroom, Baltimore’s free black permit seekers
must have steeled themselves for the possibility that their dignity would be
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98 Birthright Citizens

challenged. Still they went to court, with their seriousness of purpose awk-
wardly juxtaposed against a legal culture that did not always regard them with
respect. They carried their petitions, slim formulaic documents that reveal the
rhythms of their lives and the scope of their ambitions. Permitted travel took
people to Virginia’s spas for work. It took them to New York and Philadelphia,
where family awaited them. Some travelers anticipated journeys that would
begin at the port. They were bound for Trinidad, Haiti, and Liberia but took
care to ensure their right to return should their ventures fail. Travel permit
petitions were built on carefully cultivated networks. Applicants held in their
hands endorsements from white Baltimoreans who vouched for their respect-
ability and the worthiness of their journeys. Reputations were traded, black
and white people alike claiming qualities that would impress a judge. Charity
Govan and William Henry Calhoun both chose June 26, 1854, as the day to
submit their travel permit applications. It was not a day of particular note
in Baltimore. In the city’s livestock market, cattle prices continued to decline
while hogs were plentiful.41 The Baltimore Board of Health reported that city’s
health was overall “very good,” although it cautioned that infant mortality
was on the rise.42 Plans were well under way for the city’s annual Fourth of
July parade.43 The city council considered matters ranging from fire com-
pany petitions and road construction to the erection of a footbridge.44 A local
paper deemed weather the “engrossing topic of conversation.” Unseasonable
temperatures led to the hottest days in nearly two years.45
Early that summer morning, Calhoun and Govan were among those making
their way along the city’s busy streets, and it is likely they did not stand out in
the crowds. A visitor from England, Alfred Pairpoint, remarked, in unflattering
terms, on the many people of color he observed on Baltimore’s streets, from
the wharf to the markets. At work and at leisure, their ubiquitous presence
was a contrast to what he had observed in New York and Boston.46 Govan
and Calhoun headed to the courthouse; their purpose, to obtain permits for
the right to travel. Calhoun likely began the day at his home on Arch Street in
Baltimore’s densely populated Fourteenth Ward, where he lived with his wife,
Mary, and their nine children. The forty-eight-year-old was a member of the
city’s small class of skilled African American workers, having operated as a
blacksmith since at least 1848.47 Govan traveled from the opposite side of the
city, the west side’s Fifth Ward, with another woman named Charity Govan
Johnson, likely a relative.48 Govan was also a skilled artisan, with a reputation
for producing fine gilt objects.49
Just as they were ordinary figures on the city’s streets, the presence of Govan
and Calhoun in the courthouse would not have given most Baltimoreans pause.
They were among scores of Baltimoreans taking part in the court’s formal
proceedings. The docket that day included a dispute over the opening of a
city street, Cecil Alley, and the grand jury had just returned an indictment in
a case of wrongful death. Nearly twenty criminal defendants would be called
to answer to various charges, including larceny, intent to commit rape, and
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By Virtue of Unjust Laws 99

murder.50 Govan and Calhoun were to have their applications for permission
to leave the state heard by Judge Stump.51
The terms of an 1844 statute drew them to the courthouse. The statute
required those free black Marylanders intending to leave the state to secure
the court’s permission if they planned to return. Specifically, if intending to
leave the state for more than thirty days and later seek reentry, free black
Marylanders were required to secure a travel permit from the criminal court.52
The law was a double-edged sword. It conferred legal standing while also
distinguishing free blacks entering the state as different from and indeed
inferior. Newcomers were discouraged from coming to the state, and long-
time residents found their mobility restricted. In both cases, those who entered
Maryland without leave of court were subject to arrest, fine, or sale into servi-
tude.53 The statute also required an applicant to provide the written endorse-
ment of “three respectable white persons, known to be such by the judge or
judges of said court.”54
While the obstacles they faced were formidable, the court record suggests
that both Govan and Calhoun were summarily granted the permits they sought.
Each must have stood before Judge Stump and stated the purpose of his or her
travel, although these details the clerk failed to record. Govan spoke for herself
and her companion; perhaps she was traveling to visit family, a reason typi-
cally offered by permit seekers. Calhoun proposed to travel alone; perhaps he
sought work, another commonly proffered rationale.55 In these cases only the
clerk’s notes have survived. But among the loose permits sheets from 1845, we
see the range of reasons permit seekers gave for traveling outside of Maryland.
Robert Murray was a musician who planned to work in the resorts of White
Sulphur Springs, Virginia. John Jones wished to visit “his family residing in
Gettysburg, Pennsylvania.” Julia Prout was headed to New York “to attend to
her husband who [was] sick in that city.” Harriet Adams also sought a permit
to go to New York, where she would “see her sister & and brother.” Ann Boyer
was on her way to visit “her husband a cooper by trade who is now working
in Pennsylvania near Chesnut Street.” Thomas Watkins’s application was more
unusual. He received a permit to leave Maryland “for the purpose of preaching
& lecturing on religious & temperance to his own color.”56
Obtaining a travel permit rested on negotiations that produced the neces-
sary endorsements. What sorts of relationships did free African Americans have
with white men such that they would stand together before the court? Permits
from the late 1840s evidence the important role that employers played in
supporting black permit and license seekers. Often applications were expressly
endorsed with phrases that underscored the employer-employee context for the
application. These were negotiations that turned on familiarity and a delicate
dependency. Employers served as patrons whose support of a permit applica-
tion was both a reward for loyalty and a promise of protection. Exploiting
such patronage relationships appears to have been one strategy by which free
black men and women secured the permits and licenses they needed.
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100 Birthright Citizens

By the 1850s, this picture had changed. The permits granted to Govan
and Calhoun reveal how patronage and paternalism had been replaced with
contractual arrangements, and employers displaced by lawyers, clerks, and
justices of the peace. Baltimore was a city without African American lawyers.57
Lawyering was a livelihood for white men, one that occasionally meant some
white lawyers stood up for the interests of free blacks. The same men were just
as likely to promote the enforcement of black laws or property rights in per-
sons, should the opportunity arise.58
Charity Govan chose her supporters from among the city’s mature political
leaders. Among them were brothers David and John Stewart, who had long
practiced law in Baltimore. David Stewart had served in both the state legisla-
ture and the US Senate in the late 1830s and early 1840s and was well known
to the court, but not only as a legislator and practitioner. Stewart had long
accepted fees for work done on behalf of African American clients, and the
Stewarts worked as brokers for enslaved people who sought manumission by
way of self-purchase.59 James Buchanan also signed on Govan’s behalf. He was
a justice of the peace who was by statute authorized to accept a fee for such a
service.60 What Govan paid her endorsers we cannot say. But it was enough to
elicit an agreement from these courthouse regulars.
William Calhoun’s references included two of men – George William Brown
and Hugh Lennox Bond – who are remembered as important political allies
to free people of color. Brown’s reputation stemmed from his successful defeat
of proposed black laws. In 1842 he thwarted the consensus at a Maryland
slaveholders’ convention that would have imposed new, more stringent laws
on free blacks.61 Hugh Lennox Bond was a twenty-four-year-old lawyer and
Know-Nothing Party activist. His signature on Calhoun’s application was a
modest gesture of alliance. But in the post–Civil War era, Bond would, as a state
court judge and Radical Republican, be an advocate for the equal citizenship
of black Marylanders. He became a celebrated supporter of black suffrage,
and from the bench operated as an ally to those black Marylanders making
rights claims. For example, Bond declared the state’s indenture contracts
unconstitutional, a move that buttressed African American claims for familial
autonomy in the years after the Civil War.62 Attorney William Talbott, whose
firm was located near the courthouse, provided Calhoun’s third and final sig-
nature. He does not appear to have wholly shared Brown’s and Bond’s views
about free people of color, but he was not uninterested, serving on the board
of the Maryland State Colonization Society.63 Would he have preferred that
Calhoun leave the state permanently? That seems likely. But Talbott also saw
value in encouraging free people of color, while in the state, to live pursuant
to the law.64
Govan and Calhoun presented the requisite recommendations, which in
both cases were signed by members of the bar. Without remark, the court
granted each the right to leave the state and later return. Of their travels little
more is known. Calhoun returned to Baltimore and resumed his work as a
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By Virtue of Unjust Laws 101

blacksmith.65 Govan also came home to Baltimore, settling back into the same
Aisquith Street house where she remained until her death in 1878.66
Rights were not, for Govan and Calhoun, edicts set out in governing
documents or high court pronouncements. They were not claimed by way
of speeches from a podium or letters penned to an editor. Instead, they were
secured through more ordinary acts. They used their cultural knowledge and
skills to gain the “enforcement of potentially favorable laws.”67 All parties to
the proceedings expected their travel permits to function with the force of a
right. Govan and Calhoun expected citizens and constables to defer to the
permit terms. Their white supporters signed their names expecting that they
would carry weight with the court and give the permits authority. Judge Stump
expected his orders would be obeyed should the permit holders find themselves
questioned. And judges and juries, in Maryland and beyond, were expected to
honor the right of men and women like Calhoun and Govan to move between
states.
The case of barber Thomas Harvey suggests how the letter of the law did
not determine the right to travel. The men who stopped him hoped to profit
from Harvey’s circumstances: he was subject to $50 per week penalty for
every week he was out of the state and one-half of any fine collected was
to be paid directly to those who had turned him over to authorities. The
total fine of $600 would bring destitution to the Harvey family, and Harvey
himself faced the prospect of being sold into slavery. The case was heard
by a Baltimore jury. Supporting witnesses described Harvey as an “inoffen-
sive, industrious and very worthy colored man.” Harvey, whose family had
remained in Baltimore, had traveled to Philadelphia “chiefly on account of
his health,” newspapers report.68
What happened next would have disappointed lawmakers in Annapolis, but
it suggests how rights were created locally. The presiding magistrate dismissed
the case “for want of jurisdiction,” ruling that only courts (and by inference not
magistrates) could decide such cases. The magistrate denied his own authority
and dismissed the charges. Harvey endured an ordeal – arrest, a trial, and the
threat of punishment – that reinforced the value of a permit. But his exoner-
ation showed that Baltimore’s officials were prepared to bend the law. Harvey
remained in Baltimore, and could be found years later still operating his barber-
shop on Hanover Street.69
Officials in Baltimore were not the only ones in Maryland who concluded
that the act of traveling could give rise to a right to travel. Pardon petitions
evidence the tension between the provisions of state law and how local officials
thought travel should be regarded. To some, a scheme that interfered with the
need of black people to travel presented an imbalance that could be adjusted.
Richard Grason, state’s attorney in northern Cecil County, saw more than his
share of such disputes. His jurisdiction bordered on the state of Delaware, and
free black travelers were especially at risk when crossing into Maryland from
a neighboring state. Grason twice petitioned the governor, asking that a black
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102 Birthright Citizens

man and a black woman who had reentered without travel permits be excused
from prosecution. He argued that the circumstances of both travelers should be
deemed outside the law, citing the worthy purposes of their trips, the support
expressed for them by local white citizens, and their respectable characters.70
An attorney and the son of a former governor, nothing about the politically
ambitious Grason suggested he was especially allied with free black people.
In fact, he would go on to actively support the Confederacy during the Civil
War.71 Still, his sense that a black law that inhibited travel invited disorder in
his county served as an opening into which free African Americans in Cecil
County and in Baltimore stepped. Permit requirements were compatible and
even extended protection to their travel for work, family, and health, and later
their return to Maryland.
Gun ownership was no less fraught than travel. Again, black-law license
requirements made black Baltimoreans an exception to the city’s general rule.
The rule for firearms was that there was no rule: guns in Baltimore were plen-
tiful, frequently used, and oftentimes essential tools in the work of politics. But
black Baltimoreans had to request permission from the Circuit Court to own
firearms. Like those seeking travel permits, they were required to secure the
signatures of three “respectable” white references – very often, lawyers. Finally,
they appeared before Judge Z. Collins Lee, who, in open court, inquired about
each applicant’s reputation, purpose, and general suitability for gun ownership.
Once successful, gun license applicants returned to their neighborhoods with
the right to own a gun, a license authorized by the court, and a story to tell.
Practice in Baltimore diverged from general law and custom by putting
guns in the hands of African Americans. Black gun ownership generally was
restricted throughout the South, owing to varying concerns. The prospect
of gun ownership raised expectations that free black men would participate
in Southern state militias, something long barred by law. In contrast, black
militia service had caught on in the North. Between 1848 and 1860, at least
twenty independent black militia companies had been formed in New York,
Ohio, Massachusetts, Rhode Island, Pennsylvania, and what was known as
Canada West, now Ontario. Nevertheless, the companies were controversial.
In 1850 Canada’s black militia was disbanded. In Ohio, a state constitutional
convention in 1850–51 became embroiled in a debate about whether to strike
the word “white” from provisions related to military service. Massachusetts
was home to the most sustained support for black militias. There, free African
American leaders maintained independent militia organizations throughout
the 1850s.72 The questions they presented resurfaced time and again before
Maryland lawmakers, first in a constitutional convention and then in petitions
to the legislature. Baltimoreans watched this and, as William Watkins put it,
asked: “We have colored lawyers, physicians, and teachers; why not colored
soldiers?”73
Legal analysts allied with the abolitionist movement saw a clear relation-
ship between gun ownership and rights. Legal commentators like Joel Tiffany
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By Virtue of Unjust Laws 103

interpreted the US Constitution’s Second Amendment as providing for just such

a right. Tiffany was a lawyer and reporter for the New York Supreme Court
who came of age in antislavery Ohio.74 It is not clear how widely his ideas
circulated; if they did so it was only clandestinely. His was a seditious view and
it would have been folly or worse to invoke Tiffany in a Baltimore courtroom.
Free black gun owners were more often said to pose a threat, that of lending
assistance to slaves seeking freedom. Just seventy-five miles to the north and
east, the 1851 “battle for liberty” in Christiana, Pennsylvania, suggested just
that. The incident began when a Baltimore slaveholder, Edward Gorsuch, set
out with a posse and federal marshals to recapture fugitive slaves who had
escaped from his wheat farm. Two slaves had taken refuge in Pennsylvania at
the Lancaster County farm of William Parker, a free African American. Parker
was an abolitionist, a member of the local black self-protection society, and a
gun owner. Gorsuch’s band confronted Parker and his allies: “One hundred
to one hundred and fifty armed blacks all of whom are free except three . . .
and there was considerable firing of guns and other fire arms.”75 The result
was grave. Gorsuch was dead, and armed African Americans had repelled
those who claimed property in their persons.76 News from Christiana filled
Baltimore’s papers. Commentators decried the killing of a slaveholder and
lamented the hostility that Pennsylvanians held for Marylanders. Six thousand
Baltimoreans gathered in Monument Square for an “indignation meeting”
during which they vilified those who had abused the constitutional rights of
Southern slaveholders.77
Marylanders watched closely the proceedings that followed. Thirty-eight
men, black and white, were indicted for treason. But only one was tried,
and that trial provocatively demonstrated how the courtroom was a space
for the arbitration of wrongdoing and the assertion of citizenship. Castner
Hanway had been among the men who helped Parker defend his farm and the
slaves sought by Gorsuch. The courtroom proceedings were, for Maryland’s
attorney general Robert J. Brent, a world turned upside down. Free black men
received courteous if not preferred treatment, and were “admitted through
the Marshal’s office into the Court room, when crowds of white citizens were
kept outside of the door.” A black witness, key to the prosecution, declined
to testify and confessed that he had not been present during the incident. The
attorney general explained that the black men present appeared to orchestrate
their presence in an effort to confuse and perplex witnesses: “These negroes
were seen sitting in a row supported on each side by white females . . . [E]ach
of the negroes appeared with a new ‘comfort’ around their necks, their hair
carefully parted and their clothing in every respect alike, so as to present an
uniform appearance, to the eye, as far as possible.” 78 The right to defend them-
selves, invoked by Parker and his comrades in the streets, extended into the
courtroom, where their legal claims were supplemented by performances of
belonging and respectability. A capacity to bear arms, and use them, was one
linchpin in that right.
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104 Birthright Citizens

In Baltimore, although guns symbolized a capacity for self-defense, they

were also used in hunting, and it was not unremarkable for free black people
to exercise that privilege. In the antebellum South generally, conducting “a
hunt” was one embodiment of white supremacy. Slaveholders organized this
leisure activity and included slaves in the hope of engendering a sense of awe
for white mastery. Those enslaved people who gained the possibility of hunting
alone redefined the ritual’s purpose. For them, game and fowl became key
sources of food, items for trade, and independence.79 Southern elites decried
allowing blacks access to hunting deer, pheasants, or trout, as that led to greater
autonomy.80 In mid-nineteenth-century Maryland, hunting and fishing were no
longer practices governed by the right of citizens to use public land. Indeed,
heavy regulations were the order of the day by the 1850s. Still, the possibility
that black men could own guns and dogs, and use them to hunt, troubled the
meanings of race and freedom.81
Self-defense. Self-sufficiency. Gun ownership spoke clearly about how some
black Baltimoreans may have appeared to the city’s white residents. Permits
were routinely granted, with no commentary in the court records or the local
newspapers about concerns or fears. Statutory restrictions on black gun own-
ership enacted in Annapolis never suppressed black gun ownership and never
led to prosecutions for illicit, unlicensed gun possession. Striking are the many
instances in which black Baltimoreans were charged with using a gun in the
commission of a crime without being punished for failing to secure a license to
own the weapon. Daniel Hunt fired a pistol at Robert Murray with the intent
to kill.82 Frank Weeks attempted to shoot Alexander Jackson, “snapping the
weapon in his face.”83 Dennis Watkins shot Hiram Young through the arm.84
William Keys assaulted his wife, Mary, and shot her, intending to kill.85 These
free African Americans possessed guns and used them in the commission of
crimes. Still, they were never charged with having failed to secure a license.
Gun ownership was not a right as prescribed in the constitution or a statute,
but it also was not a wrong.
Some license seekers come into view enough in the records for us to explore
the meaning of such court-issued documents. Samuel Hardy and Nathan
Bowers left traces of their purpose, returning to the courthouse year after year
to renew their gun licenses. Their court appearances appear routine in the
clerk’s minutes. They appeared together, one after the other standing before
Judge Lee.86 The men were longtime residents of Baltimore. Forty-one-year-
old Bowers was a carter and a resident of Baltimore’s Twelfth Ward, where he
lived with his wife, Anna, a seamstress, and their five children.87 Hardy was
another “free man of color,” and was married with four children.88 Both men
made their living as a carters, and Hardy appears to have been the older and
more experienced of the two.89 Each man appeared with references from white
men in hand. Attorneys Richard Battee and John Ing recommended that both
Bowers and Hardy be granted permission “to keep and carry a gun for one
year.” The clerk’s notes offer a summary: Permission was granted and with
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By Virtue of Unjust Laws 105

that, the court adjourned. Bowers and Hardy left the courthouse having suc-
cessfully extended their right to carry a gun.90
Also among the petitioners was Alexander Martin, who sought licenses to
own a gun and a dog. These documents would equip Martin to leave the city
limits to hunt the deer and fowl that inhabited Baltimore’s environs. Martin
was a thirty-year-old porter who lived with his parents. His father was a mod-
estly prosperous bookkeeper and church activist who had participated in the
era’s African American religious conventions.91 Martin was recommended by
two local attorneys – George Williams Brown, who had also been a refer-
ence for William Henry Calhoun’s travel permit, and Stewart Brown, a twenty-
five-year-old lawyer. The clerk’s docket concludes: “Permission is granted to
Alexander Henry Martin a free negro to keep and carry a gun and dog for one
year.”92
Men like Bowers, Hardy, and Martin also sought to own guns as a logical
response to Baltimore City’s violent climate. Bowers likely had in mind that
just a few years earlier, in the summer of 1854, he had been the victim of an
assault and beating at the hands of a white ship’s pilot, Joseph Hebb.93 And in
1856 he had managed to fend off an attack by two black men. More generally,
a wave of violence that often included the brandishing and discharging of guns
swept through Baltimore in the 1850s. Historians have explained this violence
as largely tied to the Know-Nothing Party, which promoted the organization
of political clubs with names like the Rough Skins and the Blood Tubs and
wreaked havoc on public places and private homes. A corrupt and ineffec-
tual police force added to the danger on the city’s streets, particularly in the
evenings. Election days were especially deadly. In 1856, court business was
halted altogether when the mayhem associated with an election day caused city
authorities to shut down the courthouse.94 By the day’s end, 8 people had been
killed and 250 wounded.95
The desire among free black men to own guns for their own security was
a value widely shared in Baltimore. They did not have to maintain their guns
clandestinely at home, and they even used them without fear of reprisal.
However, concern that the state law could be invoked may have been one
reason such men sought gun licenses. Although local discretion was exercised
by the authorities in Baltimore, a change of climate or turn of events could have
led constables and watchmen to enforce licensing requirements, leaving only
those who had secured court permission safe from prosecution. Also, there was
likely some status associated with license holding. Brandishing a gun along
with a license may have distinguished men like Bowers, Hardy, and Martin as
respectable neighbors and legally savvy community members.
The most important effect of securing a gun license was how that license,
once in hand, could take on rights-like qualities as an absolute claim to carry a
gun.96 For free African Americans, the license had a potent authority attached
to it: that of its three white references and Judge Lee and the Superior Court.
The document rested on the reputations and the authority of white men. To
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106 Birthright Citizens

display or otherwise advertise a license foregrounded more than the mere fact
of gun ownership. It also advertised the holder’s capacity to secure alliances
with white men, navigate the courthouse maze, and then stand up to the
scrutiny of Judge Lee. There is no way to tell how this knowledge may have
functioned on Baltimore’s streets. It is also difficult to envision a scenario in
which a license might have been refused or disregarded. To do so would have
been to challenge the court as well as the free African American license holder.
What constable, watchman, or sheriff was prepared to directly question that
legally crafted alliance? A free black man who carried his license and his gun
might just have appeared like a man who had a right to do so.
A puzzle emerges from these examples. Unlicensed gun owners faced no
formal charges connected with gun possession, even when charged with
using a firearm during an assault or attempt to kill. There was little threat of
being punished. So why did some men take the trouble to procure a license?
Perhaps the value was symbolic as well as material; the courtroom scenes in
which licenses were issued suggest this was significant The Superior Court
was a theater for the enactment of more than one performance of citizenship.
Naturalizations were explicitly such acts. Immigrant men and women appeared
before Judge Lee to renounce their prior allegiances – to a king, an emperor,
or a state. They took an essential step toward becoming United States citizens
by declaring their intent to naturalize, and then became immediately eligible to
vote in local elections. Black men could approach citizenship only indirectly.
They could not naturalize, nor could they vote. They could, however, partici-
pate in the courtroom. Gun permit applications in hand, they stood before the
court in the same place that those seeking naturalization occupied. Looking on
was a crowd of lawyers, clerks, and spectators. And they came away with their
own piece of a citizen’s bundle of rights, the right to own a firearm.97
Permit and license requirements were intended by lawmakers to be a
burdensome scheme that curtailed the liberties of free black people and
discouraged them from remaining in the state. For some, this was sufficient
reason to leave Maryland and migrate north, west, or across the Atlantic to
Liberia. For most, black-law requirements represented an opportunity to study
both the text of the law and legal culture. How one regarded the black laws
depended on one’s understanding of how they were enforced and by whom.
Some may have derived confidence from the knowledge that certain laws, such
as gun license requirements, went unenforced. However, when enforcement
was uneven or episodic, as in the case of travel permits, greater resources were
required to avoid prosecution and penalties. Still, for all license and permit
seekers the courthouse was a place of opportunity. Free black people used
black-law proceedings to develop their legal acumen, collaborate with white
allies, assert their claims in a public setting, and alter their standing in the city’s
streets and alleys. However, assembling a bundle of rights, rights that many
associated with citizenship, was an incremental and unsure endeavor. Removal
still threatened, even as rights claims aimed to keep it at bay.
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By Virtue of Unjust Laws 107

Black laws remained much reviled by African Americans. The expansion of

their subject matter and their reach reflected lawmakers’ fears of the threats
that free African Americans were said to pose. Some hoped that stringent black
laws would cause free black men and women to abandon the United States.
This was a circumstance worthy of lament, especially as restrictions on the eco-
nomic, social, and political lives of black Americans fueled the perception that
they were not citizens at all. Gamaliel Bailey, a white antislavery commentator
and newspaper editor, decried how the deprivations brought about by black
laws were also denials of citizenship:
What are the facts? The free negro . . . is denied every privilege of citizenship. He cannot
hold an office. He cannot vote. He cannot testify in court, or sit on a jury, and is there-
fore at the mercy of every knave with a white skin. A free negro cannot keep a gun; he
cannot go out at night, without a pass from a white person who may have the charity to
assume the office of a master. He cannot go out of his neighborhood without carrying
free papers, on pain of being arrested and sent to prison. He cannot move from State to
State, in the South, under any circumstances, without forfeiting his freedom. This and
more is the law.98

But Baltimoreans knew otherwise – at least in part. Political rights eluded

the city’s black men and women. Still, they could keep guns. They could
also travel, even from state to state. If citizenship was a bundle of rights, as
Bailey suggested, then black Baltimoreans were in possession of some part
of that bundle. Bailey’s purpose had been to blame Southern lawmakers for
keeping free black Americans in “ignorance and disgrace.” He warned that
such laws prevented free black people from training for “political freedom,”
while making Southerners despots no better than those of “Russia, Austria,
or Turkey.” Black Baltimoreans likely took issue with Bailey’s characterization
of them as ignorant and disgraced. As they traveled with a permit or carried a
licensed gun, they were that much closer to citizenship.
108

To Sue and Be Sued

Courthouse Claims and the Contours of Citizenship

The first chapter of Charles Dickens’s novel Bleak House greeted readers of
Frederick Douglass’ Paper in April 1852. Douglass had in mind building a read-
ership and keeping his weekly afloat, and the English novelist was at the height
of his popularity. Dickens was a friend of the antislavery cause and attracted a
like-minded readership. Some among Douglass’s subscribers questioned giving
over the paper’s pages to a work of fiction.1 Undeterred, Douglass remained
committed to the project and, over the course of twenty months in 1852 and
1853, serialized the whole of Dickens’s novel.2 Why would black Baltimoreans
have wanted to read Bleak House? Some might have been drawn to the novel
by Douglass’s endorsement. Others would likely have remembered Dickens’s
1842 visit to the city and his subsequent critique of slavery in Baltimore,
published in American Notes.3
Through Dickens, readers of Douglass’s weekly were introduced to a satir-
ical view of problems well known to free black Americans: debt and appren-
ticeship. Dickens’s story made plain the necessity and the excesses of credit
in the nineteenth century, extending humorous sympathy to those who found
themselves beyond their means while warning against those who would
see in the losses of others an opportunity for their own gain. Though set in
London, the novel resonated with the lived experience of free black Americans,
for whom credit and debt were foundations of the associational economy of
which they were a part. Dickens never dwelt long on the high end of elite law-
making. Instead, he wrote from his experience as a legal clerk, giving Bleak
House an intimate and textured quality borrowed from the nitty-gritty details
of courtrooms, chambers, and lawyers’ offices. In his fictional telling, few
fared well in a world swirling with uncertainty and avarice, and the novel
underscored how those who incurred debt were vulnerable not only to cred-
itors. Indentures also threatened. Children whose families had little means or
otherwise fell on hard times would be put to labor, as apprentices whose true

108
109

To Sue and Be Sued 109

Figure 7.1 Insolvency petition for George Hackett. Insolvency often marked a low
point in the lives of black laborers, craftsmen, and entrepreneurs. Debt-relief proceedings
rested on a right to sue and be sued, and then went further by subverting the usual pro-
hibitions against black petitioners’ authority over white parties. Image courtesy of the
Maryland State Archives.

compensation was little more than sustenance. They were vulnerable most of
all, in Dickens’s view, to a legal system that put its own interests above all
else. Petitions for debt relief and challenges to apprenticeship contracts pro-
vide a paper trail that traces another reason free black Baltimoreans entered
the courthouse. These proceedings had less of the discriminatory premise that
travel permits and gun license applications had. Insolvency petitions and writs
of habeas corpus were tools with which African Americans could bring formal
grievances against whites to the courthouse. They testified against white parties,
even though state law prohibited it. They even served as court-appointed
trustees. In these actions, they exercised the right to sue and be sued. The result
could be the extinguishment of a debt and the restoration of a reputation; it
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110 Birthright Citizens

might be the canceling of an indenture and the return of a child to family con-
trol. Black Baltimoreans used law to their own ends. Still, justice was elusive.
Rights were not the only stakes in these proceedings. One might sue or be sued,
or act to protect one’s property, person, and family. But the outcomes of such
proceedings were not guaranteed. Disappointment often followed the triumph
of a proceeding well prosecuted.
In Baltimore, Bleak House dramas – of credit, debt, and apprenticeship,
laced together by subterfuge and intrigue – were well known.4 Their setting
was the office of the Commission for Insolvent Debtors.5 In 1854 Maryland
standardized what had been for half a century an unstable and confusing
system of debt relief. The state regularized its patchwork of general and
private laws, replacing an act of 1805 and its fifty-one amendments with a
consolidated statute. The result was a modern scheme that favored the for-
giveness of debtors rather than the satisfaction of creditors. It imposed no
residency requirements on those seeking forgiveness for what they owed. Nor
did it require that creditors consent to the discharge of debts.6 Coupled with
the terms of the 1851 state constitution, which abolished imprisonment for
debt, Maryland’s approach to insolvency relief extended benefits even to small
debtors.7
Debtors in Maryland had new recourse, but in Baltimore their fates passed
through the hands of one man, Commissioner Edward Palmer. Palmer had
originally been appointed to his post in 1838 by then Democratic governor
William Grason. Palmer spent more than twenty-five years, 1838 through
1864, on Baltimore’s Commission for Insolvent Debtors.8 In 1854 the city’s
three-person commission was replaced with just one official, and that March
Palmer was reappointed to the post by the Court of Common Pleas.9 He per-
sonally reviewed and affixed his signature to every “schedule,” or petition, filed
during his time on the commission.
Black Baltimoreans navigated the intimate exchanges of credit and debt
that were the fabric of Baltimore’s networks of transportation, trade, and
commerce. This scene was deemed risky because many remembered a time
when imprisonment for debt – said to be a trampling upon citizenship – was
extensive.10 Whether they were carters, draymen, mariners, or laborers, they
did not merely work. They were also knitted into financial relationships
that crossed lines of color and class. Debt relief kept the economy and
relationships working, providing a remedy to support household solvency
and reputational health in the leanest times. Baltimore’s small class of black
entrepreneurs and business owners saw more than their share of fiscal ups
and downs. They accumulated debts and also extended credit to others. And
when, in the ordinary course of business, those who owed them failed, so did
they. Questions then arose about how to protect the stability of a household
and restore a reputation in order to undertake whatever new scheme was
on the horizon. Insolvency petitions became one strategy. In a cross-racial
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To Sue and Be Sued 111

economy some creditors were bound to be white men and women. Many
black petitioners who came before the commission pushed the limits of gen-
erally held proscriptions on their legal capacity, giving testimony against the
interests of white creditors and serving as court-appointed trustees. Even
when black men had to testify, the proceedings went forward, often securing
the discharge of debts.
George Hackett’s insolvency petition reflected ambition and disappoint-
ment. His coal enterprise had failed, and in 1859 Hackett became one among
many dozens of insolvent Baltimoreans. In 1857, a market panic had littered
the city with men no longer able to meet even modest obligations. They, like
Hackett, made their way to the courthouse and before the commissioner for
insolvent debtors. Their accountings – to the court, to trustees, and to cred-
itors – told stories of a belonging that was fragmented and frail. But debt relief
knew no color in its formal terms, and black men were able to expand upon
their roles in the courthouse while they also grappled with the despair of hard
economic times.
“Insolvency” and “bankruptcy” were terms woven through the rhetoric
of black activists like Hackett. The terms sometimes carried a moral valence,
serving as metaphors for the condition of slaveholders’ hearts and minds.
However, there was a material quality to these ideas. Economic failure for
planters left enslaved families pulled apart and facing sale. Sometimes insol-
vency was said to be a form of vengeance visited on those who persisted in
dealing in persons said to be property. These ideas mixed with lived memory
in Baltimore City, thanks to the 1834 failure of the Bank of the Maryland.
That collapse had presaged subsequent bank failures and the financial crisis of
1837. Closer to home, the Bank of Maryland’s failure reached into the lives of
ordinary Baltimoreans, whose faith in the bank was destroyed along with their
savings. The city convulsed when depositors learned the full extent of their
losses. In the 1935 Baltimore bank riot, angry citizens targeted the home of
lawyer and bank director Reverdy Johnson, near the courthouse on Monument
Square.11
Many of the rights debated in political conventions and in the press were
embodied in petitions for debt relief. The right to contract was affirmed
as black Baltimoreans sought to collect on or be relieved of obligations
incurred in the city’s economic marketplace. They exercised standing in the
city’s courts by securing orders that provided for the discharge of debts.
Even at the end of the decade, with the rhetoric of Dred Scott declaring them
noncitizens, black Marylanders extracted from the state’s Act for the Relief
of Insolvent Debtors the sorts of rights that the 1866 Civil Rights Act later
aimed to guarantee.12
For Hackett, petitioning for debt relief was but one episode in a lifetime
spent constructing a public identity that mixed entrepreneurship with civic
leadership. Hackett began his young adult life as a seaman, stable operator, and
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112 Birthright Citizens

coal digger.13 By 1850, at the age of forty-one, he had built his own business, as
a coal agent for city residents and skilled artisans. He supported his wife, Mary,
and three children.14 Hackett’s reputation was built on his relative wealth and
benevolence. At his funeral services in 1870, Bishop John Mifflin Brown of
the AME Church would chronicle Hackett’s long history of activism in the
church, fraternal orders, and black politics, noting that his “money was spent
and whole life given in a good cause.”15 This dimension of his reputation had
been hard-won, however. Hackett’s insolvency petition paints a picture of a
man simultaneously ambitious for and humbled by the possibility of commer-
cial success.16
Debt relief petitions typically reflect some underlying events in the life of
the petitioner. This was the case for Hackett, who reported a downturn in his
business in the months prior to his filing in the fall of 1859. The now forty-
nine-year-old businessman appeared before Commissioner Palmer, signing his
name to the paperwork rather than marking it with an X, as many applicants
did. Hackett was also marked as being an African American or, in the lexicon
of Commissioner Palmer, a “Negro.” This designation appears both in the
commission’s docket book and on the petition itself, all of which was recorded
by Palmer.17
Hackett was not alone when he first appeared before Palmer. Documents
related to the appointment of a provisional trustee fill out the scene that
unfolded that day. Hackett was in the company of at least three men. There
were the two who had agreed to serve as trustees in the case, city constable
Daniel Weaver and a John H. Marriott, who posted a $200 bond. Notably,
Hackett himself did not contribute to the bond, as was frequently the case with
black petitioners. Palmer appointed Weaver provisional trustee on the spot.
A third man, William Scott, served as a witness to the trustee appointment. We
know little about these men and how they came to appear with Hackett before
the commission. Their presence suggests a series of pre-appearance negoti-
ations by which Hackett secured the alliances of others.
Hackett’s networks of debt and credit, constituted through his work as a
coal agent, are the most vivid details recorded in the case file. His petition
shows that Hackett exercised, in an everyday sense, the right to contract. Every
petitioner was required to provide such details, usually in the form of a name
and a dollar amount, and the debts that Hackett reported owed to him totaled
nearly $1,400. Hackett was a creditor who had extended goods and services
to individuals in amounts that ranged from $6, due from a William Carpenter,
to $757, owed by farmer John A. Lloyd. How might an individual with such
extensive assets come to file for debt relief? Hackett noted in his petition that
the “above debts are entirely worthless and cannot be collected.”18 He had
extended credit to twelve individuals and one company, all of whom were
unable to meet their obligations.
Hackett was, of course, also a debtor, and his list of those who had
extended him credit included eleven individuals and “sundry small debts.”
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To Sue and Be Sued 113

His outstanding obligations totaled $925 (considerably less than was owed
him). This list fills out the picture of Hackett’s financial network. There
were “Mr. Beatty,” a blacksmith, and a Mr. Ridgley; Hackett owed each of
them $20. There were also James McCracken, the carter, who was owed
$50, and Mr. Klinefelter, a forwarding merchant, who was owed $250.
Hackett’s network of credit and debt and his contractual relations extended
into Baltimore’s economy of black and white farmers, skilled artisans,
entrepreneurs, and capitalists.19
Until his insolvency petition in 1859, Hackett appears to have been in
good standing in his professional circle. When pressed, he offered a more
elaborate explanation for his financial woes, an explanation that went to
repairing and sustaining his business reputation. Hackett’s answers to
interrogatories – written questions – reveal more about his situation.20 His
responses came in the form of a sworn statement in which he said he had
not, for example, made “enough to pay his expenses and that he became
aware of his insolvency some months before his application.” He denied any
suggestion that his bankruptcy was premeditated or otherwise an outgrowth
of long-standing fiscal mismanagement. To underscore the direness of his
circumstance, Hackett reported that in the months prior to his filing he had
received “for his services, [as little as] five to ten dollars per week.” Nearly
all of Hackett’s assets were held in those uncollectible debts. He reported to
the court that he had little else, “no property, besides . . . the equity . . . in his
household furniture.”
Hackett’s answers were studied responses to a lawyer’s questions. They
ensured that he could not be charged with having “conveyed, concealed or
disposed of his property to defraud or delay his creditors,” a finding that could
lead to the denial of his petition.21 His responses kept some details secret. For
example, nowhere did Hackett explain to the court that in December 1856,
seven tons of coal had been stolen from his holdings. Perhaps that case had
been too hotly contested – witnesses had appeared on both sides. A man named
Charles Parsons was found guilty and sentenced to three and a half years in
the penitentiary.22 Instead Hackett’s answers went to sustaining or repairing his
reputation generally as a businessperson. He hoped they would even ensure his
ability to contract and be extended credit in the same circles.
His sworn statement, intended to defeat the objections of white creditors,
went unremarked upon. Hackett had in substance testified against the interest
of whites, something that Maryland law generally barred free black litigants
from doing. The state’s insolvency act made no exception for this sort of cir-
cumstance. Hackett was so effective in his petition that his word ultimately
discouraged objections to the discharge of his debts. The Trenton Coal and
Railroad Company withdrew its challenge to Hackett’s petition, and the court
granted the petition. Hackett’s debts were forgiven.
Debt relief proceedings treated some black debtors as peers to their white
counterparts. Their right to make contracts and then enforce them by way
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114 Birthright Citizens

of legal proceedings was affirmed. In a sense, every black insolvency petition

that listed a white creditor was an instance in which black men gave testi-
mony against the interests of white men. Some insolvent black petitioners, like
Hackett, had the opportunity to give direct evidence against white creditors,
at least to the degree that they could provide testimony in support of the legal
forgiveness of their debts. These moments may not have been remarked upon,
but it is unlikely that they went unnoticed.
The typical insolvency petition brought by an African American in the
1850s was decided on less evidence than that in George Hackett’s case. While
we have the names and some bare facts about the more than one hundred
black insolvency petitioners in the 1850s, few of the names are found in other
sources. Many debtors were transients, at least with respect to legal culture.
Their petitions have a fleeting quality, one that suggests a courthouse visit was
made out of pressing expediency rather than a plan for long-term stability.
Still, even those who made only a brief appearance before Commissioner
Palmer were marked by the experience. Palmer used his authority and his
pen to arbitrate the legal identity of black petitioners, working against a
legislative scheme that had left race out of the debt-relief equation. Each was
recorded as “Negro.”
State law made no distinction between black and white Marylanders for
purposes of administering debt relief.23 Black petitioners initiated filings
in Palmer’s office, on average, ten times per year between 1850 and 1860.
Their petitions were distinct only in that their total average debt was lower
than that of white debtors, with an average reported amount of just under
$60.24 The majority of black petitioners were laborers, men with small debts,
although a number of skilled workers, seamen, and carters were among them.
Missing are the professional men – bankers, small proprietors, and clerks –
who appear on the lists of white petitioners. The profiles of black debtors
reflect the overall economic standing of the city’s African American commu-
nity. They were poorer and more likely to work at the bottom of the labor
market.
Typical was the 1857 petition of “Col’d Waiter” James H. Jones, who
appeared before Palmer in April of that year, just weeks after the Dred Scott
decision was reported. Jones declared that he owned no property and owed
$160 to three creditors. Cooper Peter Logue and Magistrate Basil Root posted a
bond of $100, and Logue was appointed trustee. There the formal proceedings
ended, except for a September 1857 notation of “Discharge refused” by
Commissioner Edward Palmer. Palmer explained: “Petitioner having failed to
make his appearances hath not complied with the terms and conditions of the
aforesaid law and that a discharge hath not been granted.”25 Jones asserted his
having made contracts. He initiated a suit. Was his filing a stop-gap measure?
Did he settle his debts out of court?
Insolvency petitions reveal the part that black men played in Baltimore’s
associational economy. Historian Tony Freyer has described how such
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To Sue and Be Sued 115

local networks of credit and debt operated in antebellum cities such as

Baltimore.26 Cash was in short supply, and credit extended across a broad
network of city dwellers in which many individuals both borrowed from
and loaned to others with whom they were associated by family, commu-
nity, and commerce. These were relationships built on familiarity and trust
between creditor and debtor. Through their insolvency filings we see how
black men were both creditors and debtors, though more often the latter.
Insolvency, Freyer explains, was a mechanism by which state lawmakers
bolstered the local associational economy. Generally, the proceedings favored
debtors.
Less clear is the degree to which insolvency provided sustained economic
stability to black workers. Their petitions were declined or “refused” at a high
rate, in just over 50 percent of cases, meaning that often they did not receive
the full benefits that insolvency promised. Court records are not explicit about
why so many petitions were refused. The commissioner used a standardized
form to issue such orders. In some instances, the petitioners never returned to
finalize their accounting. These same men are not easily found in other sources,
such as city directories and census returns. They are less visible and perhaps
more transient than other debtors. Insolvency proceedings could allow a debtor
to remedy an immediate problem, alleviating pressure from creditors just long
enough to regroup and relocate. By the time many petitions were denied, the
debtor could have left the jurisdiction.
A remarkable feature of these many debt-relief files is the care that
Commissioner Palmer took to mark each black applicant as “colored” or
“Negro.” Palmer was not the first official to handle an insolvency petition.
Typically, prospective applicants consulted first with a justice of the peace,
who aided in completion of the paperwork. This was especially true for black
applicants, the majority of whom were unable to read or write, as evidenced
by their X marks in place of a signature. When they arrived at Palmer’s
office, they did so with a completed petition in hand. The commissioner’s
role was to review the filing, confirm it was in order, and shepherd it though
court review. In the case of African American petitioners, Palmer took care
to amend each and every filing: by his hand he inserted a color term in
each record. The relevant statute made no distinctions between black and
white debtors. Still, for Palmer the distinction was so germane that he took
the trouble to mark the files of black petitioners as such, though he never
maintained two dockets or filing systems, one for black and another for
white petitioners.
It is common to find black litigants indicated as such in the court records
of the 1850s. Other agencies, such as the federal census bureau, marked
residents by race; in 1850, the possibilities for the census were B for black,
M for mulatto, and W for white.27 City directories distinguished between
black and white Baltimoreans to such a degree that African Americans were
listed in a separate section marked “Colored Householders.” Back in the
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116 Birthright Citizens

courthouse, most records were marked in precisely this way as well, and
in some proceedings such designations were related to the substance of
the underlying cases. For example, the enforcement of black laws applied
only to African American Baltimoreans. Criminal laws provided for dis-
tinct punishments for those African Americans convicted of crimes. Slaves
had no standing to bring many sorts of proceedings in state courts; they
were marked as slaves in court records. Free black men and women declared
themselves people of color in court proceedings, rebutting the presumption
that they were enslaved.
In insolvency proceedings the role of trustee posed another possibility for
the authority black people might exercise. David Pratt’s petition for insolvency
relief stretched those limits in the fall of 1856. He was a caulker by trade, a
“Negro” by designation of the commissioner, and he lived with his wife, Jane,
and their six children.28 Pratt’s East Avenue neighbors included the Reverends
John Fortie and Moses Clayton, notables in the city’s black activist commu-
nity.29 Pratt reported owning no property and had no debts owed to him. His
own arrears were not modest. They totaled $358, including $44 owed to grocer
and dry good dealer Robert Craig, $63 to clothier Asbury Jarrett, and $30 to
a Doctor William Baltzell.30 Likely, these men had extended credit to Pratt for
goods and services. In January 1857, the court discharged Pratt’s debts without
comment.31
More remarkable in David Pratt’s case was how the color line drawn by
Commissioner Palmer was crossed when an African American trustee was
appointed to oversee the case. The record of this appointment was made on a
preprinted form that was typically employed in the designation of trustees. The
bond was reported to have been for the sum of $5, paid by Joseph A. Pratt and
David Boston. Pratt signed with his name; Boston, by his mark, an X. Attorney
Benjamin Horwitz witnessed the document and Commissioner Edward Palmer
cosigned the form. We do not know any more about Boston, but it was Joseph
Pratt who was appointed a trustee by the court. Pratt was the petitioner’s son
and was himself African American.
Joseph Pratt was assigned a role ordinarily reserved for white men. The
appointment of a trustee was among the most critical dimensions of an insol-
vency proceeding. Private citizens had only recently become eligible to serve
as insolvency trustees. The privilege had initially been reserved for sheriffs.32
Such individuals executed their duties on behalf of the state and were charged
with serving for the benefit of the creditors. A trustee was bound “with surety
for the faithful performance of his trust” and was entitled to control all the
debtor’s property, as well as his “rights and claims,” which “shall vest in the
said trustee.” Trustees remained under the control and supervision of the court
for the duration of their appointment and were subject to removal for mis-
conduct.33 Serving in this capacity, Joseph Pratt stood in the shoes of the court
rather than those of his father. The younger Pratt occupied a status well above
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To Sue and Be Sued 117

that of any ordinary litigant. His authority derived from a court appointment,
he served in a fiduciary relationship to the debtor and his creditors, and he
remained an agent of the state for the duration of the proceeding. Nothing in
state law precluded Pratt, as an African American, from serving as trustee. Still,
a marginal note written in pencil on the “Trustee’s Bond” form suggests that
there may have been a question. Just adjacent to the signature of the witness,
attorney Benjamin Horwitz, is a sloppily scrawled marginal note that reads
“who will be trustee if required.” During this insolvency proceeding, the white
lawyer, Horwitz, stood by ready to step into the black trustee’s shoes.34
The discharge of debts could be at best bittersweet. Such was the case for
Jonathan Trusty, who filed his initial petition at the end of what was an other-
wise ordinary week in the Baltimore City courthouse. It had begun with the
continued trial of “a case in equity,” Cook v. Gheislen, before Judge Marshall
of the Superior Court, and a criminal court indictment for murder in State
v. Dale. By the week’s end, juries had rendered a verdict in favor of the plain-
tiff in an action of debt on a foreign judgment and sent Susan McDowell to
the almshouse for being a lunatic and pauper. The day after Trusty’s initial
appearance before the Commission of Insolvent Debtors, the local paper
reported: “Nothing done in the court yesterday.”35
Trusty’s case file suggests otherwise. Judge William Marshall’s bench may
have been idle that day. Still, in the nearby office of the Commission for
Insolvent Debtors, Jonathan Trusty appeared before Edward Palmer, a petition
in hand that listed $133.87½ owed to thirty-six creditors. Trusty petitioned
for the extinguishment of his debts pursuant to the state’s 1854 Act for the
Relief of Insolvent Debtors. This was, however, far more than a ministerial
encounter. Commissioner Palmer made sure to note that Trusty was black,
carefully adding to the caption that already read “Jonathan Trusty” the phrase
“Col’d Stevedore.” Palmer was noting his observation and signaled that, as a
black man, this party was somehow unlike many others.36
Trusty was a fifty-five-year-old dockworker who lived with his wife, eight
children, and one grandchild. He signed his name to the petition. The struc-
ture of his debts was not typical, though. He listed a great many creditors,
and his indebtedness to any one creditor did not exceed $11.00. Most of the
obligations Trusty enumerated were small, even when measured against other
African American debtors in this period. The average amount owed was just
under $3.72. Initially Trusty reported that he had no assets other than his
personal household belongings.37
Sometime subsequent to his initial filing, Trusty returned to the commissioner’s
office. He needed to amend his petition. Trusty corrected his initial schedule
to state that he indeed did own property relevant to the proceeding: “One
small house on Bethel Street.” Trusty’s home was, in the phrasing of the peti-
tion, “subject to sale” to satisfy his debts. The court-appointed provisional
trustee moved quickly to seize the house and land. Ads were placed in two local
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118 Birthright Citizens

newspapers, as the statute required, one published in the “German language”

and the other the Sun. Subsequently, at the behest of Benjamin Horwitz, who
was named permanent trustee in the case, the auction was set for the after-
noon of January 14, just six weeks after the initial filing. Things appeared to
be moving very quickly.38
The details of Trusty’s case evidence an unusual set of circumstances. The
relatively small amounts involved in each of his debts raise questions about
why Trusty might have filed a debt relief petition at all. Among his creditors,
for example, was a “Mr. A Kateman” to whom Trusty reported owing 87½
cents, less than one dollar. Trusty’s creditors were an organized group that
acted in concert during the proceeding. Thirteen of them petitioned the court
to have Horwitz appointed permanent trustee. Trusty’s creditors were also
more proactive than most, working together in a proceeding in which the indi-
vidual stakes were very low.
No detail of Trusty’s case is more arresting than the sale of his Bethel Street
home, described in an auction notice as “a two-story and attic Brick Dwelling,
with a Back Building.” The notice appears to have had the desired effect.
Horwitz reported to the court that the premises sold for the sum of $460 cash,
and that after satisfying all encumbrances there remained $146 to be paid out
to Trusty’s creditors, a sum that ensured his creditors would be made whole.
Left to the imagination is the scene that Saturday afternoon on Bethel Street.
Horwitz reported that a Frederick Konig was the “highest bidder,” but the
record does not say whether others had vied for the property or if the Trusty
family was present. The conclusion was far from a triumph. Jonathan Trusty
had restored some fraction of his reputation. He had been relieved from his
contractual debts. But those lofty accomplishments likely felt hollow, as Trusty
had reached them but lost his family home.
For men like Hackett, Pratt, and Trusty, the struggle for rights was one waged
with the weapons that were legal papers. Insolvency Commissioner Edward
Palmer discerned this, striking out with his pen to define the status of black
petitioners. Each racialized marking functioned to distinguish and contain the
legal agency of African Americans in his part of the courthouse. James Jones,
as best can be discerned, used his insolvency petition to fend off especially
aggressive creditors, buying himself and his family enough time to either pay
their obligations another way or leave the jurisdiction. More prosperous men,
like Hackett and Pratt, used paper and the authority of the court to the most
complex ends of all. To make their way in Baltimore’s associational economy,
they needed to be sure of their ability to receive and extend credit. They wanted
to project confidence that they could enforce contractual obligations when the
need arose. Insolvency proceedings were one component in their strategies for
well-being and stability. Through them, they might have debts forgiven. They
might also push aside race-based restrictions on their courthouse capacities.
Paper was their weapon throughout. Aided by justices of the peace and even
Commissioner Palmer, insolvency petitioners pressed through the negotiations
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To Sue and Be Sued 119

that completing complex forms and finalizing the forgiveness of debt required.
Like many nineteenth-century Americans, they managed to brush away the
stigma that falling short on obligations entailed. Debt, even that which could
not be satisfied, provided an entrée into the rituals of rights.
Property in household goods was easier to defend than were the children
of black Baltimoreans. The city’s free black people might sometimes testify
against the interests of white parties and serve as court-appointed trustees. But
in Baltimore’s Orphan’s Court, where African American families challenged the
terms and sometimes the very fact of their children’s indenture or apprenticeship
contracts, parents and “next friends” – court-recognized legal guardians – were
too often disappointed. State law opened the door to white Marylanders who
aimed to control and exploit the labor of black children. Some were farmers,
looking to rebuild a bound labor force in a region where slavery was econom-
ically less viable. Others were merchants and small urban manufacturers who
promised training in a trade in exchange for exploiting the labor of young
black Baltimoreans. Still others were speculators who bought and sold the
indentures of black boys and girls on an open market.
Apprenticeship’s viability relied on the state’s intervention into such
relationships, as measured by the Orphan’s Court records. Contracts were
initiated (especially in the case of children said to be orphans), extended (when
a young apprentice was said to have breached his or her obligations), and
traded (as farmers, merchants, and manufacturers navigated their shifting
labor needs to meet the ebb and flow of the local economy). The Orphan’s
Court also served as a forum for aggrieved free black families. They might be
formally present when their children were apprenticed, lending their approval
to arrangements regrettably necessary in a world in which education and
training for black children were limited. Black families also became parties to
the court’s apprenticeship proceedings when such arrangements went wrong,
which they often did.39
Apprenticeship was one mechanism by which black families were regulated,
especially in the realm of parent-child relationships. It also emerged as a site
in which black families asserted autonomy and authority over their children.
If the state appeared never to reject an opportunity to arbitrate such disputes,
it did more than merely buttress the interests of white indenture holders.
The state, as embodied in the Orphan’s Court judge, allowed for the possi-
bility that black parents might exercise supremacy over their children. The
case of Owings v. Williams illuminates the outlines of such a confrontation.
In June 1855 the Baltimore City Orphan’s Court summoned a Mrs. Williams,
demanding that she “show cause” (that is, formally present her objections)
to the indenture of her son, Henry. A farmer, Caleb Owings, sought to take
legal custody of young Henry and put him to work.40 Mrs. Williams did not
appear, but laborer Ebenezer Gibbs did.41 The record does not reflect what
Gibbs told the court. Did he object to the substance of Owings’s terms? Or did
he explain that Henry was already otherwise employed, or at school? Court
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records reflect that Gibbs appeared before the court as Henry’s “next friend”
and evidence was “adduced.” After considering the information before it, the
court dismissed Owings’s petition. Henry was free to return to his mother and
his community.42
Apprenticeship proceedings were structured such that black parents,
neighbors, and so-called next friends could speak on behalf of young people.
Did this extend then into the capacity to control the children’s lives and labor?
Not in every case. The ability to sue – using the writ of habeas corpus and
the opportunity to testify – may have approached the rights of citizens. The
same was not true, however, for the right to ensure the proper, correct, or
contractually provided-for regard for a young apprentice. A distressing range
of allegations surfaced as indentures underwent court scrutiny. In Rollins
v. Anderson Brothers, Edward Rollins complained about events that followed
the apprenticeship of his fourteen-year-old nephew, John, to local merchants
John and George Anderson. Rollins explained that his brother Jesse had, some
thirty months earlier, agreed to place young John under the care and in the
employ of the Andersons. But they had breached the terms of the contract
by removing the youth beyond the city limits and transferring his indenture
without the required approval of the court. John’s family was alarmed. They
could not locate the boy, “although diligent search and inquiry has been made.”
Rollins demanded that the Andersons answer for their conduct and present the
body of his nephew, filing a writ of habeas corpus.43 The record does not offer
much in the way of details. Weeks later the court dismissed Rollins’s claim,
recording nothing about the fate of John. Perhaps his disappointed family
continued their search unaided by the court.
The Rollins case is a story about the limits of rights. Edward Rollins indeed
enjoyed a capacity to sue and to testify, in that he could openly and formally
challenge the white Anderson brothers and their relationship to his nephew.
There is no reason to think that the proceedings were irregular or otherwise
predestined in their outcome. And still, being in possession of such rights did
not guarantee Rollins a just outcome. Clearly he sought the alteration if not
the rescission of John’s indenture arrangement. More literally he demanded
to know the whereabouts of John and to regain custody of the child. In this
respect he was wholly thwarted. We would be mistaken to overstate the signifi-
cance of the right to sue when such rights were never a guarantee of substan-
tive justice.
The writ of habeas corpus proved to be a tool by which black apprentices,
and their families and friends, could bring those said to be wrongdoers into the
courthouse. Their testimony alone, through what began as an ex parte, or one-
sided, claim, gave their words the force of law. The court not only permitted
black witnesses in these proceedings but also regarded their assertions as true,
at least for the purpose of compelling the appearance of indenture holders.
Charles Snell, for example, noted in city directories as a laborer, objected to
the indenture of his young daughter, seven years old.44 Whether she had been
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To Sue and Be Sued 121

held beyond the agreed upon time or subjected to mistreatment, Snell, assisted
by counsel, took out a writ of habeas corpus at the city’s Circuit Court. The
challenge was a formidable one. Snell’s daughter was held to labor by the mother
of police officer James Maddox.45 The local paper notes only that the case was
postponed. But by 1860 a census enumerator counted among those living in
Snell’s household his daughter Mary, then age twelve.46 By court order, perhaps
along with some negotiation, Snell had successfully pressed his claim.
Many disputes over apprenticeship were like that of Charles Snell, singular
confrontations with an indenture holder on one side and the apprentice on
another. In other cases, apprentices were caught in more deliberate webs. For
Michael Moan, an Irish immigrant and nightman, apprenticeship was at the
heart of a scheme that was entrepreneurial and nearly predatory. Moan bought
and sold apprenticeship contracts, pressed claims for the full value of his
investment, and appeared repeatedly at the center of disputes with apprentices,
their families, and next friends. He leveled law and custom with cutting sophis-
tication, making him a formidable adversary. Still, he was not immune to the
challenges that black Baltimoreans put up, although they stretched the limits of
their legal capacity to do so, nearly meeting Moan as equals.
Nothing in what we know about Michael Moan suggests that he had any
formal legal training. He arrived in Baltimore along with dozens of Irish
immigrants, identifying himself as a laborer.47 This modest claim had likely sat-
isfied port officials when Moan looked to sail from Liverpool to Baltimore. But
there was, from the outset of his journey, nothing ordinary about Moan. He
carried with him, for example, a “large double-case Gold Horizontal Watch,
with plain gold chain, made by H. Storey, London,” engraved “M. O. Moan”
on the case.48 Whether a sign of his wealth or his aspirations, or a souvenir
of more prosperous times, the gold watch in his pocket likely made Moan
stand out from the ordinary passengers. Perhaps because of this, even before
departing from England, Moan got a taste of what it was like to oversee a
young charge, Sarah McKenna, who was placed in his care for the voyage to
Baltimore – a turn of events that may have given Moan the idea there was
profit to be made from such vulnerable young workers. McKenna later charged
that Moan had stolen from her. According to a notice she placed in a news-
paper, McKenna had been “a lone female” who was put in Moan’s care, only
to have him take charge of her goods and “rifle” through them.49
Moan and McKenna were late arrivals among the thousands who
disembarked in Baltimore during the middle decades of the nineteenth century.
The arrival of Irish and German migrants did as much to change the city as
did the growth of the free black population. Between 1815 and 1845 approxi-
mately 850,000 Irish men, women, and children crossed the Atlantic.50 Over
the course of the 1830s, at least 55,000 entered the United States at Baltimore,
while during the 1840s and 1850s as many as 170,000 immigrants arrived in
Maryland; 100,000 in the 1850s alone.51 Germans, pressured by crop failures
and political unrest, made up half of all immigrants to the United States by
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1854.52 Ship manifests recorded the pace of this migration to Baltimore.

In 1839, for example, fifty-seven ships made the journey from Bremen to
Baltimore, more than one per week, on average. From England and Ireland,
twenty-one ships arrived in Baltimore, carrying nearly 4,000 Irish passengers,
in the first half of 1849.53
Such large numbers might suggest that Moan’s 1840 arrival on the Ellen
Brooks should have been routine.54 Such was not the case. On reaching
Baltimore his ship was immediately held in quarantine by local officials, who
suspected smallpox was aboard. They were right. A total of nineteen people
were transferred to a nearby hospital in the days that followed.55 Local residents
were anxious to get the others off the ship. The paper noted that, with many
passengers compelled to remain on board pursuant to the quarantine, “there
was a good deal of excitement among their friends on shore . . . because they
were not allowed to visit the ship.”56 One group went so far as to force its way
on board. Knives were drawn and a Doctor Martin, the city health officer, was
injured. The group managed to carry two passengers ashore.
Submitted well after the chaos of the quarantine, the charge that Moan
had stolen McKenna’s modest possessions introduces an important feature
of Moan’s nearly thirty years in Baltimore: He never avoided controversy.
McKenna leveled her accusation in November 1840, five months after the two
disembarked in Baltimore. Moan’s response to McKenna’s charge conveys
how quickly he adapted to the city’s legal culture. He explained that the ship’s
health officer, Doctor Martin, had taken charge of all the passengers’ belong-
ings, adding: “I, for one, sued him and received $31.37½ for what I lost.” All
this played out in the pages of the daily Sun through advertisements paid for
by Moan and McKenna. More than dollars and cents, reputations were at
stake. Moan went the extra mile, swearing to his statement before a justice of
the peace and annexing the statement of a third passenger, who testified that
McKenna was indebted to Moan.57 Less than six months in the city, Moan
was swearing out statements before a justice of the peace, bringing suit in the
city court for damages, and mixing legal and public statements to enhance his
position.58
The rights or wrongs of Moan’s disputes are largely lost. They generally sur-
vive only as slim newspaper notices that suggest he was a magnet for contro-
versy and not shy about appearing before a judge. In one instance, his pastor
at Saint Patrick’s Church “certified” that Moan had not caused the ejection
of a lay leader from his post.59 Thomas Davis brought suit against Moan for
malicious prosecution.60 Moan warned the public “not to receive a Promissory
Note drawn by me in favor of D. Levering,” for he had not received value for
it, he wrote for readers of the Sun.61 Moan was a witness when heirs challenged
the validity of Rachel Colvin’s will; he deemed her “exceedingly frugal but of
sound mind.”62 During the trial of John Clagett for murder, Moan testified
that he had observed the accused killer at a cattle show “shaking a pistol in
his hand . . . pale and crazy looking.” Moan explained he had not wanted to
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To Sue and Be Sued 123

cross Clagett and simply “got out of the way.”63 In a long string of cases, Moan
appealed the minor findings of local justices of the peace.64 What might be
termed a courthouse “regular,” Moan was a known figure whose familiarity
with court personnel and procedure was likely unrivaled in Baltimore.
By the early 1850s, Moan reported to city directory editors that he was
employed as a nightman, or privy cleaner; it is also known that he kept cows
at his Eden Street residence.65 And it is in records from the same decade that
his connections to various African Americans become evident. Perhaps it was
the work of a nightman that led Moan to begin trading in black apprentices.
The job was perceived by many to be “dirty and disgusting” work that was
also unhealthy.66 While the precise organization of this work in Baltimore is
not clear, it is likely that a master nightman like Moan used teams of laborers
to do the hands-on work of clearing privy pits and cesspools.67
Moan had complicated and even out-of-the-ordinary relationships with
African American workers. The example of young Benjamin Hill hints at how
lines could be blurred. Moan found himself in jail in the summer of 1850.
With him was a “colored boy,” Benjamin Hill. The two had been arrested for
assaulting and beating John Butler and his wife. When their bonds were not
immediately posted, the two were jailed. Had Moan and Hill been accomplices?
The fragmentary record suggests yes. And this was not the end of their relation-
ship, although their circumstances diverged.68 Hill would be arrested a number
of times in subsequent years. He was finally sold by the Criminal Court in 1854,
in punishment for his alleged wrongdoings. At that point Moan intervened, but
not to extricate Hill. Instead, Moan secured an order that required the sheriff
of Baltimore County to pay Moan the net proceeds of Hill’s sale as a slave
convict.69 Moan and Hill’s relationship transgressed the boundaries of master
and slave, but the law extended to Moan a set of rules from which only he was
positioned to benefit.
Other indenture cases had this same quality. Vulnerable apprentices or
“term slaves” appear to have been relatively passive, even absent, as parties
like Moan and the local courts determined who owned them and by what
terms. Moan sold the indenture contract of Michael Dorsey to James Johnson,
for example, after holding it for just shy of one year. How much he profited, the
court record does not say. Dorsey was subsequently convicted of larceny – for
stealing a watch – and sentenced to two years and six months in the peniten-
tiary. Johnson was surely disappointed, as he applied to extend Dorsey’s term
of service to compensate for his lost labor time. Dorsey never had a say, how-
ever, in the sale of his contract to Johnson or in Johnson’s application to further
bind him to labor. There is no sign that the court ever heard his point of view
directly. Still, the judge held against Johnson’s request, leaving him to appeal
to a higher court.70
Such complicated chains of ownership suggest that Moan knew how to skirt
the trouble and expense associated with reluctant and resistant apprentices, and
he likely profited from such maneuvers. In 1855 Moan purchased the indenture
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contract of William Jones, a boy of twelve who was to serve until the age of
twenty-four, for more than $300. Moan explained the complex path that had
brought Jones to this point. He was made “free and discharged from service
and servitude in accordance with an 1832 deed of manumission” from John
Berry. “Free” was a qualified term, of course; Berry then apprenticed young
Jones to Bernard Campbell in 1833. Moan acquired Jones’s contract from
Campbell and said he had encountered “trouble” with the young man that he
described as stealing. Moan appeared before the Orphan’s Court seeking to
extend Jones’s term of service, swearing that his apprentice was in the “habit
of running away [and causing] much trouble and expense.” The court assented,
extending Jones’s contract until 1867 and authorizing Moan to sell the young
man “within or without the state.” These were stock terms that accompanied
most extensions of indenture contracts; the holder won the court’s permission
to sell his apprentices. And this Moan quickly did. He passed off the trouble
to another Baltimorean, J. A. Lynch. Perhaps Lynch knew of Jones’s history, or
the final price reflected the risk. In any case, it was not long at all before Lynch
echoed Moan’s complaints. Lynch’s 1856 newspaper ad read: “Last Monday
week, my servant William Jones about 16 years old [ran away]. He was last
heard from in this city . . . formerly the property of Michael Moan.”71
His success in proceedings such as those involving Michael Dorsey and
William Jones may have emboldened Moan. He appeared to trade in appren-
ticeship contracts, unfettered by whatever opposition the young apprentices
themselves would have set out had they been present. Some were perhaps more
fortunate, at least to the degree that they were represented by court guardians
or next friends who aimed to match Moan move for move in the courthouse.
They were empowered by law to bring Moan before a judge and to compel him
to account for their friends and loved ones.
Henrietta Right had been apprenticed at the age of six to Charles Kuster.
The terms of her indenture were typical of those approved for black children
in Baltimore’s Orphan’s Court. Henrietta was reported to be “unemployed and
without means sufficient for her maintenance or support.” Her apprentice-
ship would enable her to “learn some trade or useful business.” In return for
Henrietta’s being bound to serve until age eighteen, Kuster pledged to “teach
or cause her to be taught plain sewing and housework and to supply her with
suitable clothing and maintenance.” Henrietta was to receive the “customary
freedom dues,” and Kuster also promised she would be “taught to read during
her apprenticeship or in lieu thereof [he would] give her the sum of seventy
dollars.”72
Kuster died in 1849 and his estate transferred Henrietta’s indenture to a
William Hackett.73 When Hackett died shortly thereafter, Michael Moan
entered the picture.74 It seems that Henrietta worked in Moan’s household.
At least she spent her days proximate enough to Moan that she was subject
to regular beatings. Henrietta’s next friend, Maria Johnson, swore out a writ
of habeas corpus that brought Moan before the Orphan’s Court. Johnson
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To Sue and Be Sued 125

demanded that Moan account for his treatment of Right, declaring that “she
has been most cruelly treated; that she has been dreadfully beaten and has been
in fear of her life; that said Moan does not take that care of her or treat her as
he should an apprentice.” Johnson called for the outright termination of the
contract that bound Right to Moan, explaining: “He is not [a] fit or proper
person to have the care of your petitioner.”
Johnson surfaces too briefly for us to determine who she was to Right, other
than the apprentice’s next friend. Johnson did go so far as to consult with a
local attorney, though, William C. N. Carr.75 In this she evidenced her own
legal savvy. Moan was a formidable opponent, even in the face of brutality
charges. In his answer to the court, he denied Right’s allegations, explaining
that he had “never treated said petitioner in a cruel manner and . . . [had]
treated her in a proper manner,” disciplining Right only “when she deserved it
for gross bad conduct.”76
The court was faced with competing testimony: that of Right, a young
black apprentice, versus Moan, the white businessman and property owner.
Moan might have taken the position that his words should irrefutably counter
those of Right. He might have invoked the state law barring blacks’ testimony
against whites’ interests, thus depriving Right’s allegations of any weight unless
she could produce a white witness prepared to reiterate them. But Moan did
neither of those things. Instead, he worked just out of the court’s sight in an end
run. Moan went to see a local magistrate and, through another ex parte action,
“had the girl bound to him.” This did not make the allegations disappear, but
it did have the effect of derailing the proceeding by depriving the court of jur-
isdiction. Without authority to further hear the case, the challenge concluded
with a direction that the matter be “taken to the Orphan’s Court.”77 There is
no sign that it was.
Families and friends of apprentices continued to confront Moan. In summer
1855, Isabella Jolly secured a writ of habeas corpus from the city’s Circuit
Court. Jolly’s aim was to secure the custody of a young girl, Mary Ann, whom
she had raised like a daughter. She told the court her story. About twelve years
earlier, Mary Ann had come to live with Isabella, a widow, as a child who
was in a “helpless and destitute condition.” The older woman had been like
a “parent and in health and sickness provided for said child whatever was
necessary for its comfort.” Isabella knew her authority with respect to Mary
Ann was informal. Thus, while she demanded that Michael Moan show cause
for his detention of Mary Ann, she also asked the court to make her the girl’s
indenture holder, binding Mary Ann to Isabella by law.78
The writ was issued. Isabella Jolly’s sworn statement had enough force to
bring Moan before the court. It did not, however, secure his deference. Moan
did not produce Mary Ann. Nor did he admit to having her in his custody. The
girl had “run away,” he explained, sometime after the proceeding had begun.
Moan’s time to present Mary Ann to the court was extended, and he took
advantage of what was a familiar tactic. He told the court that Mary Ann had
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been bound to him by her mother, who was someone other than Isabella. Then
he produced an indenture, a document which could be reviewed only by the
Orphan’s Court. As in the Right case, the Jolly challenge against Moan was
dismissed.79
Their capacity to sue brought Baltimore’s black apprentices into the local
courthouse. The testimony of black children and their next friends carried
important weight in that place. And allegations of wrongdoing on the part of
an indenture holder triggered the court’s authority on behalf of black claimants.
Black witnesses swore to instances of cruelty, mismanagement, and subterfuge.
But if disputes over indenture arrangements invited black claimants to stretch
the limits of their rights, they did not lead to the sort of substantive justice that
most surely hoped for.
In more cases than not, especially when facing off against savvy indenture
holders, black apprentices were out-matched. The same procedural maneuvers
that enabled them to use the writ of habeas corpus to great effect enabled
their opponents to escape scrutiny. These were likely disappointing and dis-
couraging scenarios. The capacity to sue and be sued might elevate one to a
status on par with citizens, but no outcome was guaranteed, and black children
continued to disappear and to be bought and sold in Baltimore, even if this was
accomplished through rules of procedure.
Among the lessons of Dickens’s Bleak House were those about the nature
of legal culture. Power in the novel was enacted through the wielding of paper
and documents, rather than by way of the fist or the lash. As literary scholar
Suzanne Daly explains, through documents that were “created, sanctioned,
or appropriated as evidence by legal authorities,” legal culture exercised “the
power to derange or destroy, legally and bloodlessly.”80
This framing of the courthouse as a site of contestation is in one sense
ordinary. By definition, much of what occupied clerks, judges, and juries were
disputes, disagreements, and differences to be resolved. Power was not, how-
ever, delineated only through the outcomes of cases. The courthouse was
saturated with the performance of authority. Even novice litigants would have
recognized power as animating the place, from the deployment of specialized
knowledge and language to the arrangement of space: wells and benches, boxes
and stands. Power was constructed by where people were placed and from what
place they spoke. Sartorial difference underscored social differences that took
on heightened significance in the courthouse: well-cut clothes contrasted with
the crude fabric of a laborer’s well-worn pants. Some men spoke, while others
determined who could speak, and when. There were those who wrote, making
real the proceedings by making a record of what transpired. The demeanor of
the courthouse regular – confident and at ease – contrasted with the guarded
movements of those who were new and often had the most to lose during any
given court session.81
Contests waged in the courthouse began with weapons of pen and ink
and the production of documents in collaboration with a clerk or another
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To Sue and Be Sued 127

courthouse functionary. These scenes were shielded from the public gaze,
conducted in second-floor offices. The register of wills recorded and
safeguarded estate-related records, the sheriff took complaints, the county
commissioners heard applications on public safety matters, and the clerk of
the court recorded real property proceedings and issued licenses for matters
ranging from marriage and the ownership of firearms to the sale of liquor
and the owning of dogs. These proceedings did not broadcast their power.
Still, as black Baltimoreans initiated their own claims, they found a court that
was quietly accommodating.
128

Confronting Dred Scott

Seeing Citizenship from Baltimore City

Hezekiah Grice looked back from 1859 to explain his history for the readers of
Anglo-African Magazine. Invoking the Dred Scott case, Grice explained how
the meaning of that 1857 Supreme Court decision expanded in the months and
years that followed. In his telling, Dred Scott did not stand only for a single
decision of the nation’s high court. The phrase “Dred Scott” was shorthand
for a broader struggle over race and rights, one in which black Americans
claimed to be citizens of the United States. One beginning of that struggle was
the effort by Grice and Baltimore’s Legal Rights Association in the early 1830s
to win citizenship. They had been disappointed, but Grice’s questions about
birthright remained alive. Then, in 1857, two of Baltimore’s most distinguished
lawyers, Reverdy Johnson and Roger Taney, took the occasion of Dred Scott
v. Sandford to answer Grice’s questions: No, they asserted, free people of color
were not citizens and they could not look to the Constitution for protection.
Rather than settling the question, Dred Scott stood for a controversy that
showed no sign of abating.
Citizenship was both the push and the pull that led free black men like Grice
to take up a different life in Haiti. They believed colonization schemes and
black laws in the United States were designed to press them into exile. Some
suspected that these measures might soon take on a compulsory tenor. Haitian
authorities, in contrast, welcomed them to a black republic that had thrown off
slavery and guaranteed citizenship. Grice’s encounters with attorneys William
Wirt, Horace Binney, and John Sergeant had been decisive. Something in Grice’s
questions had been too provocative, too up-ending, or too thorny to allow
for an answer, though he never speculated publicly about what their silence
meant. Perhaps they were reluctant to risk their reputations in the interests of
black Americans. The question of black citizenship may have been too incen-
diary. The political undoing of the Cherokee people’s legal victories may have
tempered their ambitions. Their silence left open a door through which others

128
129

Confronting Dred Scott 129

Figure 8.1 Docket entries for Hughes v. Jackson. This crowded court docket records
the years of litigation that led to the decision in Hughes v. Jackson, a case that began
when one neighbor seized the family of another as slaves. Maryland’s high court
rejected the logic of Dred Scott and affirmed the right of Samuel Jackson, a free black
man, to sue in the state’s courts. Justice eluded him, however, when three of his chil-
dren remained enslaved until abolition in Maryland in 1864. Image courtesy of the
Maryland State Archives.

might make the case for black citizenship, but Grice did not look back with
gratitude. In branding the experience his “Dred Scott case,” Grice placed men
like Wirt, Binney, and Sergeant in the same category as Roger Taney. If the
phrase conveyed a lament, it also leveled an indictment.1
Dred Scott was, of course, more than metaphor. In the months leading up
to the March 1857 US Supreme Court decision, newspapers stirred the interest
of Baltimoreans by reporting details of the arguments, predictions about the
outcome, and more.2 For those grappling with questions about race and citi-
zenship, a ruling from Washington might be a critical piece of the puzzle. But
there were many instances that demanded analysis in the weeks leading up
to a final resolution of Scott v. Sandford. Race and rights continued to be
arbitrated by the individual states, not abated by the imminence of a high
court ruling. In Arkansas, a bill proposed the removal of all free people of
color from the state.3 In Mississippi, the legislature passed a law prohibiting
African Americans from preaching.4 North Carolina lawmakers considered
bills that would remove black residents from the state and admit black testi-
mony in cases where persons are tried for “exciting insurrection.”5 Wisconsin
legislators contemplated prohibiting “negroes, mulattoes, Indians and black
persons” from being witnesses in that state’s courts.6 Other examples suggested
that local black activists influenced such deliberations. In Providence, Rhode
Island, there was a black-led movement to abolish separate schools for black
children.7 In Sacramento, California, a black convention was called to demand
the lifting of a ban on black testimony against white men.8
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130 Birthright Citizens

Baltimoreans saw the legal distinction between free people of color and
slaves further muddied in a dispute over the 1850 Fugitive Slave Act. The
case was brought by a Baltimore attorney and former clerk of the city court,
William Gatchell.9 Gatchell’s son had encountered a man in Philadelphia
whom the younger Gatchell believed was owned by his father.10 Philadelphia
police apprehended the man, who went by the name Henry Tiffney, and whom
the Gatchells said was a fugitive slave from Baltimore named Michael Brown.
Gatchell swore out a claim in Baltimore, before Judge Giles in the federal dis-
trict court.11 During a two-day hearing before a federally appointed slave com-
missioner, a crowd of black residents sought to attend but was barred from
the proceedings.12 Tiffney’s friends and neighbors did testify, swearing that he
had lived among them in Philadelphia for six years.13 The court nonetheless
ordered Tiffney to return with Gatchell to Baltimore. In Philadelphia, outrage
over the case lingered, leading to at least one public meeting during which
black activists reviewed the proceedings.14
The precariousness of the lives of black seamen was evident to all those who
observed their troubles. Their ill-defined status meant that their fates would
be determined in contests involving local officials, diplomatic authorities, and
ships’ captains. For example, when a British bark, the Billow, stopped over
in Baltimore on its way further south, its captain, anticipating the restrictions
imposed in Southern ports by Negro seamen’s acts, inquired about protecting
his black sailors when they were in Norfolk. He was advised that “the men
could go ashore during the day, but, if on shore at night, must have a written
pass.”15 Later, at liberty in Norfolk, two of the ship’s black sailors, William
Carter and John Powell, were arrested for being absent from their vessel
without leave; the mayor ordered that they be whipped. The ship’s captain
intervened and brokered a compromise: The men would pay the city’s costs
and then be charged with desertion and face penalties back on board the
Billow. But the British consul in Norfolk balked, stressing that the men were
British subjects not subject to local law. The mayor’s determination, he said,
was “contrary to the comity of nations, contrary to the laws of Virginia and
contrary to common sense.” Commentators disagreed. Editors of the Norfolk
Argus concluded that “the Mayor in this case is in strict conformity with State
Sovereignty, the maintenance of which is absolutely necessary for the pres-
ervation of the rights of the Slaveholding States.”16 The Baltimore American
sided with the consul’s position: “Mr. James is sustained by the Richmond
Examiner and will doubtless be by the Virginia lawyers generally.” Whatever
the correctness of a given legal position, the American offered practical advice
for black sailors: “The moral of the matter is, however, give black seamen a
written pass in Norfolk.”17
The work of Maryland’s colonization society added to a tense climate for
Baltimore’s free black population. In February 1857 the American Colonization
Society met for its fortieth annual convention. While the national colonization
movement had ebbed in influence, such was not the case in Maryland – and
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Confronting Dred Scott 131

it showed. As a first order of business, the meeting elected Baltimore’s John

H. B. Latrobe its president.18 Latrobe was no figurehead. His ascendancy to
the organization’s helm reflected the role that Marylanders played in enab-
ling a major project: the construction of the packet Mary Caroline Stevens,
fully equipped to transport black emigrants to Liberia. Predominant on the
colonization society’s 1857 agenda was conveying appreciations to those who
had supported that undertaking to the sum of $40,000. The supporters were
Marylanders through and through. John Stevens of Talbot County, Maryland,
had donated $36,000 by way of a bequest, and the ship was named for his
daughter. Thanks went to Latrobe, Elisha Whittlesey, and James Hall, trustees
of the Stevens estate. The lawyer Frederick Brune, partner of George Williams
Brown, and businessman Thomas Wilson had supported the purchase of
equipment for the vessel.19 And Doctor James Hall, agent of the Maryland State
Colonization Society, had overseen the building of the Stevens. Two hundred
nineteen African Americans had been aboard the packet’s inaugural journey in
November 1856. For those who remained in Baltimore, the robust support for
the project was a reminder that colonization sentiment in their state was alive
and thriving.
In Baltimore, the Dred Scott case was big news. The city’s daily newspaper,
the Sun, chronicled the legal wrangling generated by the freedom claims of
Dred Scott and his wife and daughters. Commentators parsed the arguments
for signs of how Roger Taney’s court would rule. And when the final deci-
sion came down, Baltimoreans quickly learned that the court had invalidated
the Missouri Compromise, making possible the extension of slavery into
federal territories. They also learned that the Scott family had no standing,
as black people, to bring a suit in federal court. On balance, the rights and
expectations of slaveholders expanded, while the freedom claims of enslaved
people collapsed.
For Baltimore’s free black community, no dimension of the case was more
salient than that which declared no black person – enslaved or free – was
a citizen of the United States. Chief Justice Taney concluded that only those
who had been citizens of the individual states at the time of the Constitution’s
adoption could be citizens of the United States. To reach this decision, he set
forth his own view of history. Taney found no evidence that black people had
been state citizens in 1787. They generally could not vote, hold public office,
or sit on juries, he explained. He declared that in the eighteenth century, black
people had had no rights that whites were bound to respect – or at least they
had no rights that could be enforced through the federal courts. Taney pointed
out that article 3 of the Constitution restricted the jurisdiction of federal
courts to specific types of cases. Dred Scott and his family had asserted their
right to bring suit there by virtue of diversity jurisdiction: When citizens of
two different states had a dispute, they could bring it before a federal court
rather than before one or the other state’s court. Scott and the respondent,
John Sandford, were of different states, and therefore federal jurisdiction, Scott
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132 Birthright Citizens

asserted, was proper. But the word “citizen” proved to be what might keep
Scott and all black Americans out of federal court. Not being citizens of the
United States, black people were barred from bringing suit in federal court
under the Constitution’s diversity-of-citizenship provision. Not only were Scott
and his family barred from bringing a federal suit, so were all black Americans.
What black Baltimoreans thought about the decision in the weeks and
months that followed is not easy to recover. Absent are speeches, memorials,
or tracts giving evidence of their reactions. A closer look at the pages of the
Sun suggests some of the information they may have had. From the paper
they would have learned that the Supreme Court was threatening their status,
a blow to those who maintained that they had rights, including the right to
be free from removal. They likely recognized a shift in emphasis in the Sun
after Dred Scott. Once a paper that avoided the subject of slavery, its pages
included robust coverage of the subject in the wake of the decision. Those
black Baltimoreans who turned to the paper for details about how the decision
might affect them would have found alarming answers.20
The Sun was widely admired for its editorial vision and skilled reporting.
Editor Arunah Abell was a career newspaperman who brought to Baltimore
years of experience from having established penny presses in New York and
Philadelphia.21 In the 1850s the paper was recognized for its pioneering,
quick, and cooperative news gathering that linked Washington, Baltimore,
Philadelphia, and New York. Innovative use of the magnetic telegraph fur-
ther extended its reach west to Ohio and Kentucky. The paper reached some
30,000 readers each day.22 Coverage of the courts and of Washington were the
paper’s signature features.23 James Lawrenson, a Post Office clerk, wrote as
the paper’s Washington correspondent between 1837 and the Civil War.24 The
Sun’s coverage was timely, detailed, wide-ranging in perspective, and rarely
partisan or commercial in its leanings.
Another Washington correspondent, Elias Kingman, took the lead in bringing
news about Dred Scott to Baltimore. He set the paper’s tone when recounting
the scene as Roger Taney read his opinion: “It was listened to with profound
interest, and will be everywhere respected for its wisdom, and acquiesced in as
the decision of the constitutional tribunal.”25 Only days after the court’s finding
was released, the Sun went out of its way to declare that “the decision, we are
glad to say, seems to be welcomed in most quarters.” Although the paper did
acknowledge there were critics, they were said to be without reason and down-
right lawless: “There are indiscreet and suicidal ravings among some of those
who know no law except that of their own violent self-will and passions.”26
The Sun also encouraged “the patriotic and conservative masses at the north
[to] receive this judgment as the law of the land and govern their conduct
accordingly.”27 Much of this early commentary was boosterism, revealing little
more than how the paper hoped the decision would be received.
In Baltimore there was an added reason to follow the Sun’s coverage of Dred
Scott. The paper served as a showcase for the city’s legal prowess. Representing
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Confronting Dred Scott 133

John Sandford before the Supreme Court was the team of Henry Geyer and
Reverdy Johnson. Baltimore had long been Johnson’s home, even when his
professional life took him to Washington. As the nation’s foremost constitu-
tional lawyer, he brought prestige to any case he took.28 He served as a US
senator and an attorney general, and he was a slaveholder at least until 1840.29
Johnson was a friend to Roger Taney, and historians have shown how his legal
acumen and intimate esteem shaped Taney’s ideas.30
Chief Justice Taney himself loomed larger than any figure in the con-
struction of Baltimore’s reputation.31 Taney began his career practicing
in Maryland and then served as a state legislator and attorney general.32
Throughout his years in Washington, Taney remained a keenly followed
and highly regarded figure.33 He spent extended time in his family home
just footsteps from Baltimore’s courthouse, and sat on the United States
Circuit Court for the District of Maryland. Despite the demands of the high
court, he occasionally led public gatherings, including bar proceedings.34 His
large oil portrait hung in the city’s Bar Library, thus presiding in the court-
house even when the chief justice was himself absent.35 The Sun had long
fueled Reverdy and Taney’s distinction through its coverage, and the men’s
involvement with Dred Scott provided another opportunity to enhance the
city’s image.
As the Sun underscored the roles of these greatly admired Baltimoreans,
it also explained the case’s implications for the city’s free black community.
For lay readers, the paper acted as an interpreter. One editorial set out the
“main propositions of constitutional law,” two of which delimited the status of
black Americans. In a city where African Americans lived awkwardly between
slavery and freedom and were embroiled in debates about their legal status,
the Sun left little question about what it believed the case meant as it outlined
those propositions:

1. That no negro, whether he be descendant of ancestors who were slaves

when the constitution was adopted or of ancestors who were free at that
time, or whether he be the descendant of free negroes who came into any
State of the United States after the constitution was adopted can, even
though he be born within the limits of a free State, be recognized by the
law as a citizen of the United States.
2. That any of the State of this confederacy may, if they see proper, confer
upon a free negro the rights of citizenship within that particular State,
either by the provision of their organic law or by direct enactment: but
the free negro upon whom this right is conferred does not for that reason
become a citizen of the United States; nor is he entitled to the benefit of
those classes in the constitution which apply to those who are both citi-
zens of a State and citizens of the United States. He cannot sue in any
of the courts of the United States, nor is he entitled to claim, if he enters
a State other than his own, the privileges and immunities that are there
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134 Birthright Citizens

enjoyed by those who are not only citizens of that State but also citizens
of the United States.36

The paper’s tone was authoritative, suggesting that the court’s reasoning was
sound and unassailable. Thereafter, claims to black citizenship were subject to
open derision in its pages. One May 1857 commentary critiqued the political
visibility of Northern men like Charles Remond and Frederick Douglass. In
it the Sun’s editors remarked on “the impossibility of recognizing negroes as
citizens arising from their offence to the olfactories of the white race.”37 It was
an old joke, but one that took on new significance in the wake of Dred Scott.
Owing to such partisanship in the Sun’s coverage, Baltimoreans would have
to read beyond their local daily to encounter criticism of Dred Scott. Stinging
were reports on those federal district courts that limited the opinion’s effect.38
The dissenting opinions from the Supreme Court decision were taking on the
force of law. The United States Circuit Court for Indiana, for example, held
that “a negro of the African race born in the United States . . . is a citizen of
the United States . . . and entitled as such to sue in its courts.”39 Justice John
McLean had been a dissenter in the decision at the Supreme Court.40 Then in
July 1857, while sitting on the federal Circuit Court for Illinois, he limited the
scope of Dred Scott in the case of Mitchell v. Lamar. Joseph Mitchell, a free
African American from Illinois, brought a suit against Charles Lamar, a white
resident of Wisconsin.41 Lamar had assaulted Mitchell, who sustained signifi-
cant injuries and thus sought damages.42 Did the federal court have jurisdic-
tion? McLean thought it did and reasoned that Mitchell, a free black man not
descended from slaves, was a citizen in that he was “a freeman, who has a per-
manent domicile in a State, being subject to its laws in acquiring and holding
property, in the payment of taxes, and in the distribution of his estate among
creditors, or to his heirs on his decease.”43 McLean conceded that Mitchell did
not enjoy rights equivalent to those of white men. However, “it is not necessary
for a man to be an elector in order to enable him to sue in a Federal Court,”
McLean reasoned.44 “Such a man is a citizen, so as to enable him to sue, as
I think, in the Federal Courts.”45 The debate over African American citizenship
continued.
State court judges in Maine and Ohio outright refused to incorporate Dred
Scott into their determinations.46 In Ohio, one court confronted the question
when called on to interpret the phrase “citizen of the United States” as set forth
in its state constitution.47 Distinguishing Justice Taney’s opinion as limited to
descendants of slaves, the court declined to hold that a free man of mixed
racial descent could never be considered a citizen.48 In Maine, by the request
of the legislature, the justices of that state’s high court interpreted a key pro-
vision of the state constitution which provided in pertinent part that “[e]very
male citizen of the United States, of the age of twenty-one years and upwards
. . . shall be an elector for governor, senators and representatives in the town
or plantation where his residence is so established.”49 The question for the
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Confronting Dred Scott 135

court was whether free men of color could serve as electors under this provi-
sion. While the law imposed no explicit barrier to enfranchisement based on
race, the court admitted that a strict application of Dred Scott would mean the
qualification “citizen of the United States” necessarily excluded free African
Americans.50 Yet, Maine’s Supreme Court rejected such an interpretation,
writing: “We are of the opinion that our constitution does not discriminate
between the different races of people which constitute the inhabitants of our
state; but that the term, ‘citizens of the United States,’ as used in that instru-
ment, applies as well to free colored persons of African descent as to persons
descended from white ancestors.”51 Thus, at least in some non-slaveholding
states, courts declined to afford Dred Scott binding weight, even when United
States citizenship was expressly at issue.
At least one Southern state, Mississippi, ultimately deemed Dred Scott’s
reasoning consistent with state law.52 Still, the state’s high court appeared to
be of two minds. In the spring of 1858 the court held in Shaw v. Brown that a
free African American had standing to sue in pursuit of his claims as an heir.53
Writing for the majority, Justice Alexander Handy explained:

But negroes born in the United States, and free by the laws of the State in which they
reside, are in a different condition from aliens. They are natives, and not aliens. Though
not citizens of the State in which they reside, within the meaning of the Constitution of
the United States, they are inhabitants and subjects of the State, owing allegiance to it,
and entitled to protection by its laws and those of the United States; for by the common
law, and the law of nations, all persons born within the dominion of the sovereign are
his natural born subjects, and owe allegiance to him, and obedience to the laws, and are
entitled to protection.54

The court acknowledged Dred Scott as establishing African Americans as “a

subordinate and inferior class of beings” but did not go the next step and
deem them without standing to pursue their claims in the State of Mississippi.55
However, when confronted with a similar set of facts the following spring, the
court embraced Dred Scott and deemed free black people “alien strangers, of
an inferior class, incapable of comity, with which our government has no com-
mercial, social, or diplomatic intercourse.”56 Justice William Harris wrote for
the majority while Justice Handy, who had written for the majority in Shaw
just one year earlier, dissented.57
By fall 1858, Roger Taney was uncomfortably aware that his reasoning on
the matter of black citizenship was being called into question.58 The ordinarily
taciturn Taney wrote to his confidante David Perine to ask: “Have you read
the opinion of the court in this case of Scott v. Sanford? I hope you find it all
right.”59 Vexed by the “abuse that [had] been lavished” on him, the chief justice
took time out to privately pen a supplemental opinion to Dred Scott.60 It
focused on one matter alone: black citizenship at the time of the Constitution’s
ratification.61 Taney thanked his son-in-law and confidante, attorney J. Mason
Campbell, for approving of his “supplement.” The chief justice had hoped to
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136 Birthright Citizens

publish it “while the question is still exciting attention,” but “judicial pro-
priety” demanded the he wait for a relevant case to come before the court.
Publishing in pamphlet form was also out of the question: “I do not feel willing
to write a defense of one of my judicial opinions,” Taney explained. The aging
jurist suggested that its publication would come only after his death – “My
executors must in some form or other bring it before the public” – which is
indeed what would happen.62
As he had in Dred Scott, Taney in his supplement relied on historical analysis
to show that African Americans had enjoyed no rights from 1689, as British
colonial subjects, through 1787, when the Constitution was ratified.63 The
opinion was no mere exercise in argumentation. Taney explained that he stood
ready, should the court’s docket present him with another opportunity, to clarify
and to persuade: “If the questions come before the Court again in my lifetime, it
will save the trouble of again investigating and annexing the proofs.”64
Taney scoffed at all commentary “adverse” to his published opinion.
Generally, he deemed a reply not worthwhile, asserting that his critics based
their views on mere “misrepresentations and perversions.” Still, the chief
justice could not refrain from launching a thinly veiled rebuttal to Horace
Gray’s 1857 pamphlet, A Legal Review of the Case of Dred Scott. Gray was
the reporter of decisions for the Massachusetts Supreme Judicial Court, and
would be appointed to the Supreme Judicial Court of Massachusetts in 1864
and the United States Supreme Court in 1881.65 Gray’s analysis of the opinions
in Dred Scott led him to conclude: “The court have [sic] not, and could not
have, consistently with sound principles, decided that a free negro could
not be a citizen of the United States.”66 Gray challenged Taney in doctrinal
terms, but then went further to question Taney’s character. The chief justice’s
opinion, according to Gray, was “by no means the ablest or soundest of the
opinions” in the case. Its “tone and manner of reasoning, as well as in the
positions which it assumes” were “unworthy of the reputation of [Taney] that
great magistrate.”67 Taney replied that Gray’s volume was “a disingenuous
perversion and misrepresentation of . . . what the Court has decided.”68 Taney
concluded his supplemental opinion on this point, urging that that those “in
search of truth . . . will read the opinion.” Thus, he said, he would not “waste
time and throw away arguments” on commentators such as Gray.69 Contrary
to his stated indifference, Taney’s tone and the lengthy supplement suggest
that he was all too cognizant of how Dred Scott was being called into serious
question by well-informed analysts.
In a formalistic sense, there was no reason to expect a change in Maryland’s
doctrine in response to a ruling that applied only to federal courts. Still, the
Supreme Court’s determination invited questions about how other courts –
federal and state – would incorporate its conclusions into their deliberations.
The Taney Court decision may have simply been the latest volley in an ongoing
debate over race and citizenship. Or it may have set in motion a series of
changes that could reach into local venues.
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Confronting Dred Scott 137

In Baltimore, free African Americans did comment on how they saw the
case, if only by way of their actions. They continued to bring disputes to court,
much as they had before Dred Scott. They did not appear in the city’s federal
courts, but they never had. At least since 1850, black Baltimoreans had not
used the federal courts to make claims. While Taney’s opinion appeared to
formally bar them, it was a symbolic barrier. Nothing changed for them after
1857.70 The same was true in the city’s local courts. There, black Baltimoreans
continued their business as usual. They kept up their steady presence in the
local courthouse. That their names and the charges against them continued to
be marked in the pages of the city’s criminal court docket is of little surprise.
Still, there is no evidence in those records that after Dred Scott free black
people in Baltimore were more likely to be arrested. Nor were they any more
likely to be convicted of a crime.
Their court presence was unremarkable, at least to the eyes of the Sun’s
correspondents. Nothing struck them as out of order when African Americans
initiated proceedings just as they had for years. James Jones filed for insol-
vency relief for his debts, secured with the sworn support of local magistrate
Basil Root and police officer Peter Logue.71 Joseph Crawford and Edwin Scott
challenged their detentions as a deserter from a vessel and a fugitive slave,
respectively, using the writ of habeas corpus.72 Black church leaders continued
to wrangle over ownership of property and church governance.73 Confidence
appears to have been high that Dred Scott would have no effect.
It took nearly a year for the question to reach Maryland in the case of
Hughes v. Jackson. Baltimoreans watched from the sidelines as two free black
men from Dorchester County battled over whether they had the right to bring
suit in the state’s courts. The Maryland Court of Appeals, the state’s high court,
would be asked to determine whether the logic of Dred Scott – which might
be extended to bar free black Marylanders from state as well as federal court –
should become the law of the state. No formal rule required the state court to
adopt the Supreme Court’s reasoning in Dred Scott. While the Taney court was
the highest authority on the access to federal courts, Maryland’s high court
had exclusive authority courts in the state. Thus, in 1858, when the lawyers
for Hughes argued that free black people should be prohibited from suing in
Maryland, it was an open question. Once again, the state stood at a major
crossroads in its regulation of free black Americans.
Hughes v. Jackson did not pose a wholly new question. Prior cases had
examined the extent to which free black Marylanders possessed rights in the
state’s courts. The Maryland Court of Appeals had from time to time been
asked to determine the degree to which black laws, for example, might con-
flict with constitutional precepts. Under the leadership of Chief Justice John
Carroll Legrand from 1851 to 1861, the court’s conclusions were murky. Free
African Americans could sue and be sued in Maryland, but actual rulings
did not unqualifiedly affirm this view. The 1855 case of Jason v. Henderson,
for example, asked whether a free person could recover damages for being
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138 Birthright Citizens

unlawfully detained as a slave. The court said yes, as a general matter. Still,
Jason could not recover from Henderson based on the facts because Henderson
had not detained Jason “wantonly, and without color of title,” but had acted
in good faith in that he “supposed the negro to be the property of the estate he
represented, and there appears a show of title for such a claim.”74 This sort of
affirmation was but a partial victory for a litigant like Jason: He had a right to
sue, but his claim failed.
These types of outcomes continued even after Dred Scott was decided. Free
black people appeared before the state’s highest court; they were never categor-
ically excluded. The Maryland Court of Appeals issued rulings that may have
pleased advocates for free black rights, but still disappointed the actual litigants.
In December 1857, nine months after Dred Scott, the case of Atwell v. Miller
probed the rights of free people of color in Maryland. The question in the case
had been posed initially in a Baltimore trial court: Were free African Americans
barred from giving testimony against the interests of white persons?75 A 1717
state law governed the question: “No Negro or Mulatto Slave, Free Negro,
or Mulatto born of a White Woman, during the Time of Servitude by law,
shall be received as Evidence in any Cause wherein any Christian White Person
is concerned.”76 The petitioner in Atwell nevertheless attempted to introduce
the declarations of a free black man, Asbury Johns, at trial. The lower court
had refused his testimony categorically, relying on the early eighteenth-century
statute.
Before the court of appeals, the appellant urged that Johns’s testimony
should have been admitted. To resolve the question, the court might have relied
on the 1717 law, but it did not. Instead, Chief Justice Legrand ruled that the
defendants had not established the relevance of Johns’s testimony – he was not
a principal or agent such that his declarations had bearing on the case. Had
his testimony been relevant, might Johns have been able to testify? Legrand
did not close off this possibility, remarking: “This view relieves us from all
necessity of inquiring, whether the color of the party, whose declarations were
proposed to be given in evidence, could have a legal bearing on the question in
any event.”77 The court declined to decide on the right of Johns to give evidence
and left a door open. Perhaps, under another set of facts, a man of color might
be permitted to give testimony against the interests of a white party, notwith-
standing the terms of the 1717 law. Local tribunals were left with a bit more
discretion than the trial judge in Atwell had been willing to exercise.
Six months later, in Hughes v. Jackson, the state’s high court confronted
Dred Scott head on. Free black litigants forced the Maryland Court of
Appeals to consider the degree to which the state might adopt the logic of
the Supreme Court. What rights, if any, did free people of color possess in
Maryland’s legal culture? Could they bring suit, or were they by virtue of
their color barred from lodging complaints? In Baltimore, questions of race
and rights had long simmered in the local courthouse. In Dorchester County,
they boiled over.
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Confronting Dred Scott 139

Dorchester County sat on Maryland’s Eastern Shore, a portion of the state

where slaveholding remained extensive and proslavery politics dominated.78
Between 1850 and 1860 the Eastern Shore’s free black population grew
by 14 percent, and many landholders in the region depended on free black
laborers.79 Still, the area’s proximity to the free states generated tensions.
Rumors of impending slave insurrections and rising numbers of escaped slaves
generated a tense solidarity among slaveholders. Harriet Tubman carried out
her clandestine raids in Dorchester County, freeing slaves from the county’s
farms. The escape of the Dover Eight, aided by Tubman, had rocked the county
courthouse. Former slave Sam Green was arrested for aiding the group and
was prosecuted for possessing a copy of Harriet Beecher Stowe’s Uncle Tom’s
Cabin.80 Local slaveholders organized around their concerns about the free
black population, which was said to corrupt and demoralize slaves, making
men like Hughes and Jackson a troublesome presence.81
Hughes v. Jackson grew out of years of stop-and-start litigation between
William Hughes and Samuel Jackson that began in 1842 when Hughes
purchased two slaves. Hughes was a free black farmer and landowner who
managed his property with the help of four sons: Denwood, William, Josiah,
and Robert.82 He had never before been a slaveholder, though it would not
have been out of the ordinary for a farmer like Hughes to hire enslaved people
seasonally or for specialized tasks. This changed in the summer of 1842, when
he paid Catherine Ray $280 for a woman and her infant daughter.83 Hughes
bargained to hold a temporary title to this “certain Mulatto woman named
Mary Teackle and her infant child named Lilly.” He agreed that the mother
and daughter would be held only for a term of years, after which they would
be free. The arrangement was set to begin on August 15, 1840, and terminate
eleven years later, in 1851.84
Samuel Jackson’s version of the bargain between Hughes and Ray included
details nowhere recorded in the deed. Yes, Hughes had purchased Mary and
Lilly, but Hughes had done so on Jackson’s behalf. Mary Teackle was Jackson’s
wife. Hughes had permitted the Jackson family to live together in Dorchester
County while Jackson paid Hughes for the freedom of Mary and Lilly over
time. Jackson later explained that he had, from the outset of the agreement,
been in “possession” of Mary and Lilly. Together they had made a home.85
For nearly ten years the bargain between Hughes and Jackson was an agree-
able one, it seems. There were no outward signs of discord. Samuel and Mary’s
family grew to include four children: Lilly, the eldest, was followed by siblings
Theodore, Dennis, and Ellen.86 They rented a home from Hughes. Then, some-
time in 1850, shy of the end of Mary’s and Lilly’s terms as slaves, William
Hughes died. His sons Josiah and Denwood, as executors, were charged with
distributing the elder Hughes’s estate. Jackson and the Hughes brothers were
soon at odds.87 Was Jackson’s family the property of William Hughes’s estate?
The parties did not agree. Samuel Jackson, feeling their liberty under threat,
gathered his wife and children in an effort to escape the reach of the Hughes
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140 Birthright Citizens

family. They got as far as the town of Cambridge but were thwarted in their
attempts to board a ship to cross the Chesapeake Bay to the Western Shore.
Denwood Hughes intercepted the family, seizing Mary and her children.88 It
was a vexed circumstance that would take more than a decade to resolve,
during which time a local trial court, the state’s court of appeals, and a consti-
tutional convention would all weigh in. Questions about slavery and freedom
were most pressing for the Jackson family. Still, their claims would turn, in
part, on whether Samuel Jackson, as a free black man, had a right to sue in
Maryland’s courts. This was Maryland’s Dred Scott.
The Hughes’s intent soon became evident: the Jackson family was an asset.
The brothers sold the Jacksons’ three youngest children – Ellen, eight; Dennis,
seven; and Theodore, four – to a prominent and prosperous white farmer,
Alward Johnson, for $460.89 Johnson purchased the children for cash pursuant
to a bill of sale and deed that declared them to be the property of widow Mary
Ann Hughes and slaves “for life.” Johnson’s purchase agreement also provided
for the children’s eventual manumission: Ellen after eighteen years, Dennis
after twenty-four years, and Theodore after twenty-seven years. There was,
perhaps, some small comfort for Samuel and Mary Jackson in knowing that
their children would not be taken far. Johnson’s farm was also in Dorchester
County.
Samuel Jackson wasted little time before heading to the Dorchester County
courthouse. He hired a lawyer and initiated a string of lawsuits aimed at
regaining custody of his family and punishing the Hughes brothers. First
were five freedom suits filed in April 1851, just weeks after the children’s
sale to Alward Johnson. Jackson filed these petitions as the so-called next
friend of his wife and four children. Second, filed in October 1851, was
a claim against Josiah and William Hughes for trespass. Jackson sought
damages for the Hughes brothers’ unlawful detention of his family. Third,
Jackson brought suit against Denwood and Josiah Hughes as executors of
the estate of William Hughes, also in October 1851. The specific nature
of this claim the court record does not indicate. Fourth and finally, one
year later in October 1852 Jackson filed suit against Denwood and Josiah
Hughes and Alward Johnson. Again the specific charges are not recorded.
These complaints might appear scattershot, but it is more likely that nei-
ther Jackson nor his lawyer knew precisely what sort of framework the
court was likely to adopt for resolving such a dispute. In this they were not
wrong. Very quickly two of the four proceedings came to a conclusion. The
freedom suits were marked “off” the court calendar by October 1852, while
the case against the Hughes brothers as executors of their father’s estate was
settled: “Discontinued and Judgment for Defendant Costs.” Samuel Jackson
paid $19.53⅔ for his trouble.90
What followed over the next years was muddled, at least when viewed from
the vantage point of the court’s docket books. Perhaps a combination of failed
attempts at settlement combined with shifts in local political appointments
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Confronting Dred Scott 141

kept the parties from getting to the merits. Hughes and Jackson appeared
to be nearing a settlement in the trespass case in the spring of 1852. By the
fall of 1853, with no settlement in sight, the court sounded impatient when
it noted that if the case was not tried the following spring, it would enter a
judgment for the defendants. Another year had passed when a newly appointed
trial judge announced that he would disqualify himself; he had been counsel
for the Hugheses earlier in the proceeding. A new “special judge” was finally
appointed in January 1855. In the spring of 1856, Jackson’s lawyers made one
more push. A jury was sworn in April and on the twenty-fifth of that month it
found in favor of Jackson. The Hugheses were to pay him $750 plus interest
and costs for their trespass on his family. When the case was over Mary and
Lilly were granted their liberty, although the three younger children remained
in the hands of Alward Johnson.91
Samuel Jackson had managed to defeat the Hughes brothers by persuading
a jury that he had been wronged. His strongest evidence was likely the array
of white witnesses who testified on his behalf. Jackson drew from Dorchester
County’s associational networks to build his case.92 Among his witnesses
was a Hughes family neighbor, farmer William Corkran. Jackson relied on
slaveholders, including the brothers Polish and Banaman Mills. And at least
one woman testified, Eliza Hicks, a widow who owned her own farm, which
was run by her children and black laborers. The general climate suggested that
free black men and women in Dorchester County were subject to increasing
scrutiny, including in the courthouse. But a modest laborer like Samuel Jackson
could still call on the reputations and authority of local whites to substantiate
his claim. They knew enough about the bargain between Jackson and Hughes
to make them reliable and relevant witnesses. Throughout the proceedings, no
one – no lawyer, no witness, no jury member, no judge – questioned Jackson’s
right to bring suit.
Jackson’s victory at trial might have ended the matter, but Josiah Hughes
appealed the trial court’s ruling to the Maryland Court of Appeals, transforming
Samuel Jackson’s grievances from a local matter into an occasion for testing
the reach of Dred Scott. Hughes’s objections were partly routine. He sought to
overturn the verdict or otherwise have it set aside based on technical defects.93
For example, Jackson had failed to indicate in his initial pleadings that he was
a “free” negro, inviting the presumption that he was a slave and thus incap-
able of bringing suit.94 Hughes also asserted a novel position. He argued that
the Supreme Court’s logic in Dred Scott should decide the matter. The Hughes
family attorney, Elias Griswold, asserted that Samuel Jackson (and, by curious
implication, his own client), as a free black Marylander, was without standing
before the state court, as Dred Scott had been before the federal court.95 No
black person, Griswold urged, enslaved or free, had standing to sue in the state.
Jackson’s case, he concluded, must be dismissed.
Hughes provided Maryland’s high court its first opportunity to consider
the implications of Dred Scott. Griswold suggested that, in Maryland, legal
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142 Birthright Citizens

remedies for Jackson were out of reach. His argument was not tightly woven.96
Griswold did not rely on specific citizenship language in the Maryland state
constitution. Nor did he insist that there was any necessary relationship
between federal citizenship, which had been Taney’s subject, and the state citi-
zenship that might have been relevant in the Jackson case. Instead, Griswold
made a vague but cunning cultural-legal argument that might have allowed
the court to bend toward the interests of white supremacy.97 He referred to
the “opinion of Chief Justice Taney in Dred Scott” to support the view that if
Jackson was without standing to sue, the court itself was without jurisdiction.
Then, without elaboration, Griswold declared that if no law extended civil
rights to black Marylanders, “the plaintiff in this case had no right to sue.”98
Jackson’s attorneys, James Wallace and Charles Goldsborough, confronted
the problem of Dred Scott directly, arguing that Maryland should take a dis-
tinct position on the question of African Americans’ standing to sue and be
sued. Their argument relied on an alternative view of history. Since the latter
decades of the eighteenth century, Jackson’s attorneys explained, African
Americans “going at large and acting as free” had been viewed as free men.99
They had, when the Constitution was ratified, given evidence in court and
performed other acts, such as voting, that only subsequently had been reserved
to white men. The free African American occupied an “anomalous position,
having more rights than a stranger, yet not the same as an heir. He can sue and
be sued in our courts, hold property and enjoy the fullest protection of our
laws.”100 Jackson’s counsel carefully distinguished the United States citizenship
that was the subject of Dred Scott from citizenship in the state of Maryland,
arguing that even if Jackson was disqualified under the federal Constitution,
“he might still be a citizen of a State, and as such a free man.”101
Hughes presented a matter of first impression for the Maryland Court of
Appeals, while also positioning state court judges to assess Taney’s ideas. Had
Maryland’s high court adopted the chief justice’s views on race and rights,
it would have been little surprise.102 Legrand surely understood Taney’s pos-
ition. The two had a great deal in common. Both were raised in slaveholding
households.103 Both had practiced law in Baltimore before entering public ser-
vice.104 Taney had served as Maryland’s attorney general, and Legrand had
held the office of secretary of state.105 The two were also active lay leaders
in the city’s Catholic Church.106 Both men were moderate proslavery voices
whose ideas reflected a paternalism that was characteristic of Maryland’s pro-
colonization white elites.107
On the rights of black people in legal culture, however, Legrand and Taney
parted ways. Despite his general admiration for Taney and their shared cultural
sensibilities, Legrand rejected the chief justice’s reasoning and unequivocally
refused to extend Dred Scott into the state of Maryland.108 Samuel Jackson
was entitled to bring suit in the state’s courts, explained Legrand writing
for the court.109 In Maryland, there were only two instances in which black
people were presumed, by their color, to stand apart from white Americans in
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Confronting Dred Scott 143

legal culture. Blackness barred African Americans from testifying as witnesses

against white people, and in freedom suits blackness raised the rebuttable pre-
sumption that they were slaves.110 Otherwise, black Marylanders enjoyed a
broad right to sue and be sued.111 The court addressed the relevance of Dred
Scott through Taney’s own approach – a history of race and rights. “From
the earliest history of the colony,” Legrand explained, “free negroes have been
allowed to sue in our courts and to hold property, both real and personal, and
at one time, they having the necessary qualifications, were permitted to exer-
cise the elective franchise.”112 In Justice Legrand’s view, race had never served
as an absolute bar to rights in Maryland. This was consistent, he said, with the
state’s interests: “To deny to them the right of suing and being sued, would be
in point of fact to deprive them of the means of defending their possessions,
and this, too, without subserving any good purpose . . . Neither the policy of
our law, nor the well-being of this part of our population, demands the prin-
ciple of exclusion contended for by the appellant.”113
Legrand looked ahead and suggested that “so long as free negroes remain
in our midst a wholesome system induces incentives to thrift and respect-
ability, and none more effective could be suggested than the protection of
their earnings.”114 Maryland’s high court rejected Taney’s view of both the
history and the status of free black Americans. Legrand laid out for black
Marylanders a bundle of rights.115 It was an imperfect, partial, but still potent
bundle of rights: to sue and be sued, to hold property real and personal, to
defend possessions and earnings, and in some cases to vote.116 Justice Legrand
concluded by affirming the lower court judgment, entitling Samuel Jackson to
his $750.
Court decisions – event those decided by high courts, like Hughes
v. Jackson – did not settle matters in Baltimore. If George Hackett had followed
that case, his attention did not linger. In the state capital, the same radical
colonization that had inspired Octavius Taney nearly thirty year earlier was
being revived. Maryland was caught up in an “anti-free Negro” wave that was
sweeping much of the South. Lawmakers in Annapolis renewed efforts to set in
place some of the most restrictive black laws the state had ever contemplated.
Curtis Jacobs, head of the failed effort to regulate free black Marylanders in
the 1851 state constitution, led the campaign as chair of the Committee on the
Colored Population. The proposed legislation resurrected old ideas, including
prohibiting manumission, imposing a registration requirement, and developing
plans for the removal of all free black Marylanders from the state.
Jacobs shared with the Maryland Hall of Delegates a history of race and
rights that supported his radical colonizationist position. He demanded, for
example, atonement for the “horrid murder” of Edward Gorsuch at Christiana.
Enslaved people had been “happy and contented . . . before our free negroes
had become so numerous,” he claimed. “This government,” Jacobs explained,
“was made exclusively for the benefit of the white population.” Free black
people were at the root of slave uprisings, from “the bloody massacre of the
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144 Birthright Citizens

whites by the slaves on the Island of Hayti” to the “sad event at Harper’s Ferry
[when] John Brown so foolishly supposed the slaves of Virginia were . . . anx-
ious to be free.”117
Jacobs insisted that, by law, white Marylanders had the “right to re-enslave
our free negro population.” He then recounted the state’s history of black
laws from 1831 to 1858, which demonstrated that the freedom of black
Marylanders was “only nominal and sheer mockery, and that it in no sense
confers any of the attributes or rights of citizenship.” He reviewed the support
for colonization, which dated back to the 1830s. He drew on the decision in
Dred Scott, promoting it while never remarking on Hughes v. Jackson. Finally,
he acknowledged that manumission was the prerogative of slaveholders, but
said such acts merely transferred ownership to the state, which could dispose
of nominally freed people as it deemed fit.118
The Jacobs bill set off alarms in black Baltimore. The Sun employed under-
statement when it commented that the bill’s “novelty, if nothing else, will no
doubt attract considerable interest and elicit no little comment and discus-
sion.”119 A writer to the Weekly Anglo-African was more direct: “The Maryland
bill far excels any I have seen for severity. The idea of selling convicts, old per-
sons, etc., as well as our church property, is very severe.”120 No number of
claims enacted in the everyday sense would guarantee defeat of the proposed
legislation. Hackett rethought the strategy that had guided Baltimore’s black
community through the preceding decades. It was, he concluded, time to
organize on a grander scale, bringing the sentiments of black Baltimoreans
together with those of their white allies.121 Petitions were drawn up calling
for defeat of the legislation, and hundreds came out to affix their signatures.
Dissent came from many corners, including in news commentary. Southern
Maryland’s Somerset Union remarked: “We fear that his (Mr. Jacobs’) zeal
for the cause he has overshot the mark, and that his ultra position is better
calculated to retard than advance the end which he, in common with the large
majority of citizens in this part of Maryland, desires to see consummated.”122
Hackett left Baltimore, petitions in hand, for a visit to the state capital
of Annapolis. There, he confronted Curtis Jacobs, and at least one chron-
icler reports that two had a brief brawl on the statehouse lawn. The story of
their encounter, told by librarian and book collector Daniel Murray, survives
in Murray’s handwritten notes. Murray planned to publish an encyclopedia
of black history, but it never came to fruition.123 His draft entries appear to
have been compiled out of published works, interviews, and his own personal
recollections. Murray was also a Baltimorean, born in 1852, which meant he
would have been old enough to have met Hackett and his family. He recorded
this version of the confrontation in Annapolis between Hackett and Jacobs:
[Hackett] at once got up a petition to urge the Legislature to reject the monstrous
proposition of Mr. Jacobs, which was freely signed by both white and colored residents
of Balto. and to Annapolis Mr. Hackett carried it. He proceeded to the door of the
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Confronting Dred Scott 145

Legislative Chamber, and his presence being made known to Mr. Jacobs he at once
confronted Mr. Hackett and with violent gestures inquired, how dare he a negro bring
a petition to the Legislature in opposition to a bill proposed by a white member? And
without more ado lurches a blow at Mr. Hackett, who having with him a stout cane
belaboured Mr. Jacobs good and hard ere they were separate.124

Murray’s story is likely at least partly apocryphal. It is more probable that

the two met to debate the matter. When Hackett was through at the capital, the
Jacobs bill had been so modified that it could be regarded as watered down, a
credit to Hackett’s organizing efforts and the support of white allies. Hackett
had once again cloaked himself in the garb of one who had an unqualified right
to do so.
Like many legislative victories, the outcome of the Jacobs bill struggle did
not warrant celebration. Hackett and the thousands who had joined him on
paper had succeeded in petitioning the legislature, but it was a qualified success.
It was another chapter in what black Baltimoreans like Hezekiah Grice termed
their “Dred Scott,” the struggle over race and rights that Grice and his Legal
Rights Association marked as beginning in the 1830s. It stood for a Supreme
Court case that had symbolic meaning but little material effect. Roger Taney’s
reasoning was tested in many states, Maryland among them, and many jurists
avoided its most strict application, finding black Americans to hold rights in a
qualified sense. The Maryland Court of Appeals rejected the view that the state
should bar free black men and women from its halls of justice. Chief Justice
John Carroll Legrand affirmed a set of rights that were not equivalent to citi-
zenship but did include the right to sue and be sued. This possibility alone had
long given free black Marylanders an opening through which to construct their
well-being and belonging.
146

Conclusion
Rehearsals for Reconstruction: New Citizens
in a New Era

“Even in Baltimore colored men have rights that white men are bound
to respect.” The Dred Scott decision was not far from the mind of surgeon
Alexander T. Augusta when, in late spring 1863, he reflected on a series of
troubled confrontations in Baltimore. His morning had begun with a group
of “roughs” threatening him as he sat aboard a Philadelphia-bound train in
his Union officer’s uniform. Augusta fled the car, but the assault continued on
the street with a severe blow to his face that drew blood. By midafternoon
Augusta was back in his train seat, headed north in the company of fellow
officers, white men who vowed to protect him at the risk of their own lives.
Augusta would look back on the day with satisfaction, relating that some of
his assailants had “been tried and sent to Fort McHenry.”1 Augusta was keenly
aware that the sight of his uniformed black body traversing the city streets
would draw attention. Still, he claimed his place, and on that afternoon his
hard-won status was affirmed.
Behind the wit that Augusta displayed as he inverted Justice Taney’s infamous
words was an important truth. Despite persistent assertions to the contrary,
Baltimore’s free black residents had long lived as rights-bearing people who
cobbled together a strain of belonging that looked like citizenship. By 1863
the muted, indirect, and often implied rights claims that characterized the ante-
bellum years were being eclipsed by bold manifestations of black citizenship.
Amid war and on the cusp of Reconstruction, long-constrained aspirations
were being unleashed. When Augusta donned his uniform and walked through
Baltimore’s streets, he displayed an unfettered belonging that had not been
possible before the war, loosening the constraints of colonization, black laws,
and Dred Scott.
The start of the Civil War marked a new chapter in the story of race and
rights in Baltimore City. It brought renewed opportunity for black men to
perform their belonging and to conduct themselves like citizens, first and

146
147

Figure C.1 Passport application, Hezekiah Grice. The Civil War and Reconstruction
amplified the claims that black Baltimoreans had long put forth about their rights as citi-
zens. Hezekiah Grice, disappointed about the outcome of his Legal Rights Association
work, had abandoned the United States for Haiti in the 1830s, only to return to secure a
passport in 1862. Image courtesy of the National Archives and Records Administration.
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148 Birthright Citizens

foremost through military service. Thousands of men from Baltimore and the
surrounding county enlisted as soon as the Union army lifted the color bar. They
also watched as their city became a stage for the testing of the Constitution.
From the arrest and detention of local officials, including Mayor George
W. Williams, to the standoff between Abraham Lincoln and Roger Taney in
Ex parte Merryman, all Baltimoreans were students of law as the exigencies
of war changed the terms on which everyone would come to understand the
Constitution and its force in the state. Even the great writ of habeas corpus, it
turned out, could be suspended.2
Ideas about citizenship were beginning to reflect the view long espoused by
black activists. In 1862, the newest United States attorney general was called
on to give his opinion about the capacity of black men to pilot ships along the
nation’s coast. It was no secret that the answer to this question lay, as it long had,
in whether black men were viewed as citizens of the United States. President
Lincoln’s attorney general, Edward Bates, broke with his predecessors William
Wirt and Roger Taney.3 Free people of color were citizens of the United States,
offered Bates in an opinion that reviewed debates of the preceding forty years.
Bates composed the strongest treatise in support of black citizenship since that
of William Yates, published twenty-five years earlier.
Alexander Augusta was emblematic of a generation of Baltimore activists
whose lives reflected their claim to place. They had made their lives and their
politics in a city that offered few platforms and little reassurance. Augusta had
migrated from Norfolk to Baltimore as a young man. There, he married and
set his sights on a career in medicine. Racism excluded him from US medical
schools and so he joined the stream of northbound migrants to Canada, where
he earned a degree from the University of Toronto. With the outbreak of the
war, Augusta and his family returned to Baltimore. A series of army officers’
commissions propelled him to new heights. His achievements reflected broad
and ultimately sweeping national changes in the equation of race and rights.
They also carried special meaning for Baltimore’s black activists, so many of
whom had also come and gone, only to return to the city to press their claims
to belonging.
Changes to Maryland law contributed to Reconstruction-era changes,
though they did not define them. Exempted, as a loyal border state, from
President Lincoln’s Emancipation Proclamation, Maryland charted its own
path to becoming a postslavery society. Lawmakers haltingly approached
questions about black rights, much as they had always done. The state’s
Constitutional Convention of 1864 provided for immediate, unconditional
abolition, although with 30 percent of delegates opposing the measure. Long-
standing disputes like Hughes v. Jackson came to a final and more just con-
clusion. Only with the state’s abolition of slavery in 1864 did Samuel Jackson
and his wife Mary regain custody of their three youngest children. In 1864 the
family was reunited.
149

Conclusion 149

Many black laws remained in place, while others were reformed only piece-
meal. The in-migration of black people was still prohibited in 1865, although
penalties were lessened. Black criminals could be whipped or imprisoned but
no longer sold as slaves. An effort to free all persons imprisoned under laws
related to slavery lost to a tie vote. The legislature inaugurated statewide public
education, but no provisions were made for black pupils.4 Prohibitions against
interracial marriage were struck down, and the marriages of former slaves
were recognized by law. Yet, other restrictions were left in place, including the
punishment for spreading incendiary matter among black Marylanders. The
courthouse remained unreconstructed to an important degree: long-standing
limits on black testimony against white parties remained in place. Still, by 1870
political rights were being restored, with black voters participating in local
elections that spring.5
Black Baltimoreans matched lawmakers’ muddled actions with their own
characteristically bold assertions of citizenship, steps ahead of statutes and
constitutions. For some, asserting citizenship was a quiet journey. This was true
for Hezekiah Grice, who decades earlier had emigrated to Haiti, despairing of
what was possible in Baltimore. In 1862, Grice was one step ahead of state
and federal lawmakers when he appeared in New York City to apply for a US
passport.6 Grice had maintained ties to the United States; his job managing
public works for the Haitian government brought him back to New York regu-
larly.7 He headed to the office of Notary Public Abel Willmarth and testified
to his birth in Calvert County, Maryland, in 1802. His friend, Anglo-African
Magazine editor Robert Hamilton, came along and swore that Grice had been
born in the United States. The resulting document was, finally, evidence of his
citizenship. Grice had an answer to the question he had posed to lawyers and
black convention goers decades before.
More often, however, citizenship was expressed in loud voices. With George
Hackett in the lead, black men, firearms, and military service converged on
Baltimore’s streets. The earliest postwar confrontations between black and
white Baltimoreans arose when newly discharged African American soldiers
returned to the city. Bearing government-issued firearms, they were confronted
by local officials who sought to deprive them of those badges of citizenship. In
1865 black Marylanders were still refused admission to the state militia – the
issue came up in the state legislature but no action was taken. They thus began
to form their own organizations. They secured equipment – muskets purchased
from the US Army – established armories, adopted uniforms, and paraded
through city streets. The Butler Guard was among them, first appearing as an
honor guard for a public celebration sponsored by Bethel AME Church. The
captain of the Butler Guard was George Hackett. In this new role, Hackett
also would lead a contingent of “Baltimore’s colored citizens” in Abraham
Lincoln’s Washington, DC, funeral procession. He was in the company of
Nathan Bowers, who served as the Butler Guard’s first sergeant. Bowers had
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150 Birthright Citizens

long carried his gun and a court-issued permit. But publicly bearing arms as
part of a collective was possible in Baltimore only after the war.8 And doing so
in a militia named for Union general Benjamin Butler made the political signifi-
cance of such an act clear.
The local courthouse remained a site for rights claims, and in light
of a new constitution that provided for slavery’s abolition, it was pos-
sible to challenge black laws, such as those that imposed apprenticeships.
Apprenticeship remained a fraught practice, as local courts continued to
arbitrate the relationships between black children, their parents, and inden-
ture holders. Little changed in the Orphan’s Court. But now black parents
began to use the writ of habeas corpus in an unorthodox way, bringing
their grievances to the criminal court. There, Judge Henry Stump had been
unseated, and in his place was the Radical Republican Hugh Lennox Bond,
who as a young lawyer had been an ally to free black license and permit
seekers. Even though Bond’s court did not have jurisdiction, he began to
hear challenges to apprenticeship arrangements. He then went a step further.
Bond voided individual apprenticeship contracts and went on to also declare
all such agreements unconstitutional. When the state’s new constitution of
1864 abolished slavery, he reasoned, it also extinguished all legal distinctions
between the races. As a result, Bond concluded, the state’s apprenticeship
laws, which differentiated between black and white children, were void. It
was not long before the state legislature agreed.9
Educator and rights activist William Watkins did not live long enough to
join in the transformations of the Reconstruction era. In 1852 Watkins had
abandoned the city he loved for Canada, despairing that equal citizenship was
forever out of reach. He died there in 1858. Still, his early work as a teacher and
advocate for public education was remade in the postwar period. A new gen-
eration of education activists took up where Watkins had left off, beginning in
1865 with calls for local officials to support black schools.10 Reconstruction’s
statewide reforms included the establishment of public education. Funding did
not, at the start, extend to black children, but when it eventually did, black
residents’ tax dollars were earmarked for this purpose. In Baltimore, the issue
was not a new one. African American taxpayers had petitioned since the 1830s
for the return of their tax dollars. Only when their children had access to the
city’s schools, parents argued, should they have to contribute to the expense.11
Baltimore’s Reconstruction agenda included the building of new
institutions: schools. Awkward alliances with white civic leaders required
careful negotiations, much as the building of black churches had before the
war. Schools demanded unprecedented resources, and the modest tax dollars
of black Baltimoreans were not enough to build an entire system. Support
came from local philanthropists, with Judge Hugh Lennox Bond at the fore.
His Baltimore Association for the Moral and Educational Improvement of
the Colored People collected funds from black and white donors, the city
council, and Northern benefactors, and opened twenty-five schools during its
151

Conclusion 151

first year. Bond loaned his reputation to the cause and built national donor
networks that sustained it. By 1867 the federal Freedmen’s Bureau assumed
much of the responsibility for the association’s schools. Still, Bond toured the
state, expanding enthusiasm and support for black children’s education. By the
summer of that year, Baltimore’s council was calling for the establishment of a
far-reaching system of public schools for the city’s black children.12
Alliances across the color line remained fraught, and in Baltimore few white
champions of black rights were pure of heart. Bond’s personal correspondence
reveals his complicated ideas about black Baltimoreans. He abhorred the crude
racial inequality embodied in black laws and their vestiges. At the same time,
he openly doubted the intellectual capacities of black Americans and twisted
their aspirations into cruel ridicule.13 Did black activists know of Bond’s racist
ideas? Perhaps they did, although if he revealed them in a courtroom or meeting
hall, they escaped the written record. Publicly, black commentators expressed
only admiration for Bond. Whatever his private attitudes, he was lauded as
a zealous ally for advocating for black suffrage in Maryland and afterward,
as a federal judge, for presiding over South Carolina’s Ku Klux Klan trials in
1870.14
No single event better captures how Reconstruction gave license to the
ambitions of black Baltimoreans than the founding of the city’s first black
newspaper, the Lyceum Observer, in 1863. Black print culture had played
an important role in the city’s political culture of the 1820s, with men like
Hezekiah Grice and Charles Hackett serving as agents for Freedom’s Journal.
Baltimore had nurtured antislavery journalists, including William Lloyd
Garrison, through the pages of the Genius of Universal Emancipation.
William Watkins had written about the city’s political and cultural concerns
as “A Colored Baltimorean” in the Genius of Universal Emancipation and the
Liberator. Still, the city had never been home to a publication operated by
black editors for a black readership. And with good reason. State law made it a
crime to publish material that might incite free black Marylanders. But in 1863
that changed, as a band of young men organized to publish a chronicle of black
ideas and black activism.
“Maryland! My Maryland!” was the title of William Matthews’s contribu-
tion to the Observer’s first issue.15 It was a biting rebuke to the proslavery and
pro-Confederate factions in the state. “Maryland! My Maryland!” had been
the title of a secessionist anthem. With his parody, Matthews turned the very
notion of Maryland on its head; by 1863 he saw the changes that were under
way and credited black Marylanders with fomenting them: “Those men of
color, who, in the consciousness of their manhood, have leaped from the dark
recesses of ignorance, and with their hands wrote their names in unperishable
[sic] letters of renown upon the apex of Fame’s rugged mount . . . those vet-
erans who manfully stood at their post where the first of the enemy was hottest,
have been Marylanders!” Matthews’s list of black Marylanders was impres-
sive. The state had been a crucible that formed many of the era’s best and most
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152 Birthright Citizens

influential thinkers: Frederick Douglass, Henry Highland Garnet, Benjamin

Banneker, William Douglass, and William James Watkins.
Among the names of Maryland’s illustrious “men of color” was that of
one woman: “Francis Ellen Watkins Harper, a fluent writer and poetess of
no mean attainments.” Harper had been raised in Baltimore by her uncle,
William Watkins, and had taught school in the city before migrating north.16
Her reputation was as a poet, an antislavery orator, and an organizer who
had effectively recruited black troops for the Union. Watkins’s repertoire was
wide-ranging, and her force derived from her capacity to wield allegory and
sentiment interlaced with anecdote and personal reflection. She also under-
stood something about law, and wove natural-law principles and the text of
the Constitution into her prose:
Slavery is mean, because it tramples on the feeble and weak. A man comes with his
affidavits from the South and hurries before a commissioner; upon that evidence ex
parte and alone he hitches me to the car of slavery and trails my womanhood in the
dust. I stand at the threshold of the Supreme Court and ask for justice, simple justice.
Upon my tortured heart is thrown the mocking words, “You are a negro; you have no
rights which white men are bound to respect.” . . . When I come here to ask for justice,
men tell me “We have no higher law than the Constitution.”17

The awkward inclusion of Watkins Harper here is no accident. She was among
the women who were transforming black public culture – in her case, to
such an extent that it was nearly impossible for Matthews to take stock of
Baltimore’s impact on the struggle for citizenship without including this most
talented daughter. But Matthews’s inability to find more precise language –
leaving Watkins Harper listed among “men of color” – suggests that early
Reconstruction marked a turning point. Much if not most of the antebellum
era’s citizenship debate was premised in deep assumptions about its gendered
nature. Never did a claim surface that suggested womanhood precluded citi-
zenship. Still, the struggle proceeded in large part without any engagement
with the problem that gender posed for understanding and arbitrating rights.
The early debate about citizenship largely assumed it to be a problem between
and about men.
Watkins Harper and her generation of black women activists threatened
this assumption and signaled the ways in which questions of race and rights
would take on a deliberately intersectional quality in the post–Civil War
era. Indeed, when debating the terms of the Fifteenth Amendment’s voting
rights protections, it was Watkins Harper who argued, “We are all bound up
together in one great bundle of humanity.” She inaugurated a new framework
for understanding citizenship, one that extended beyond birthright to incor-
porate black women’s perspective. Their vantage point, as what she termed the
“weakest and most feeble,” made black women the measure of law’s ambition
and its capacity to arbitrate justice.
153

Conclusion 153

In 1870, Baltimore’s Monument Square was the site for a national celebra-
tion of the Fifteenth Amendment’s ratification. The Fourteenth Amendment
was already in place and with its guarantee of birthright citizenship, the
threat of radical colonization – removal – fell away. In its place, though,
arose thorny questions about political and civil rights. Black Baltimoreans
came out to see one of that city’s most distinguished sons, Frederick
Douglass, preside over a ceremony that boldly celebrated a constitutional
revolution that put African Americans, both formerly enslaved and free, on
a new footing before the law.
George Hackett did not attend that gathering. He had died just months
before. His funeral had been a grand public occasion that recognized the
remarkable array of Hackett’s distinctions. His contributions to public cul-
ture – through leadership in churches, fraternal orders, and benevolent asso-
ciations – were lauded. His entrepreneurial skills were remembered. The last
of his ventures was the founding of the black-owned Chesapeake Railway,
Marine and Dry Dock Company, which employed hundreds at its facility
in Fells Point.18 He had been a man devoted to family. And unbeknown to
Hackett, his stepdaughter Henrietta Vinton Davis would in her adult life be
a key leader of the Garvey Movement, a fitting manifestation of Hackett’s
legacy.19
Law attended Hackett in death, much as it had during each phase of his
life. He wrote a last will and testament in 1869; likely he knew he was ill.
Hackett carefully provided for his wife and three daughters. He directed
the sale of properties, the establishment of annuities, and made express
provisions for the long-term security of his children and grandchildren. In
this he had assistance. A will of such complexity required an expert hand.
And the confidence that its terms would be carried out required a trusted
one. Hackett turned in those last weeks of his life to a man he knew well,
Theophilous Horwitz. The Horwitz brothers – Theophilous, Orville, and
Benjamin – were well known to many black Baltimoreans. The three had
signed permit applications and served as trustees in insolvency proceedings.
Orville Horwitz had long been an attorney to the congregation at Bethel
Church.
The courthouse had been many things to Hackett: a site for righting wrongs
and protecting interests; a scene for the performance of rights and citizenship.
It also had been, it seems, a place for forging relationships. After many years,
George Hackett trusted Horwitz enough to place his family’s future in the
lawyer’s hands. And likely he paid the usual fee.
154
155

Epilogue
Monuments to Men

Today Baltimore’s courthouse sits in the very place that all the city’s courthouses
have occupied. As far back as the era of the American Revolution, law and the
social world have collided in that exact location. The modest courthouse of
Roger Taney’s era remained standing until the end of the nineteenth century. Its
proceedings, however, were transformed by the Civil War and emancipation,
when new state and federal constitutions rewrote the fundamental terms of
race and law. Black Baltimoreans continued to steadily stream to that building
off Monument Square, but with new claims at their disposal.
The courthouse was once again changed with the rise of Jim Crow. A place
for the enactment of interracial democracy became a battleground, testing the
power of the Reconstruction era’s civil rights acts. By the 1890s the antebellum
past was being razed. A new building with a grand scale and even grander
pretensions replaced the nineteenth century’s modest structure. This edifice
did not easily welcome rights claims. But nearby, a new icon of legal culture
was born. He was a man who spoke to issues of race and law with all the
force and conviction that had characterized Roger Taney, though with another
valence altogether. Thurgood Marshall was born in Baltimore in 1908, and in
his hometown’s courthouse he advocated a new order – desegregation – cutting
his teeth, honing his skills, and laying the groundwork for a radical reordering
of the relationship of race to rights.
It would be another seventy-five years before Thurgood Marshall would
wholly remake the courthouse as artifact of memory. In 1985, the 1890s’
edifice to Jim Crow justice was renamed. Its rededication as the Clarence
M. Mitchell, Jr. Courthouse was a powerful gesture of both remembering and
forgetting. Mitchell was a peer to Marshall and had served as lobbyist for the
National Association for the Advancement of Colored People (NAACP) for
nearly thirty years. Bearing his name, the courthouse became both a tribute to
and an emblem of the civil rights era’s vision of race and justice. But what did

155
156

156 Birthright Citizens

Figure E.1 Former site of Chief Justice Roger B. Taney monument. In 2017 Chief
Justice Roger B. Taney’s figure was removed from many of its pedestals in Maryland
amid challenges to the pro-Confederate and pro-white supremacy views he was said to
stand for. Local residents remade this site in Baltimore’s Mount Vernon neighborhood
by placing an empty chair where the Taney figure once sat. The city’s other monuments
to Taney, two of which are in the local courthouse, have remained. Image courtesy of
Martha S. Jones.

the same gesture erase? Is it possible to see through Mitchell’s name to a past
less sanguine?
These days, I follow the daily goings-on in Baltimore with a special eye on
the courthouse. Commentators most often lament its dilapidated state – leaks,
vermin, and crumbling plaster. Hardly a gleaming monument to civil rights,
but a monument nonetheless. On my first visit to the courthouse, I was in a
hurry. I was headed to the Bar Library of Baltimore, to review bound volumes
157

Epilogue 157

of nineteenth-century treatises and court opinions. I spied the sole public

entrance, on Monument Square, then mounted the steps, already anticipating
the metal detectors and security pat down. Almost inside, I heard a curious call.
It wasn’t my name. The voice wasn’t one I knew. Still, it was oddly familiar –
familiar enough that I paused just a moment to glance back. It was auction day.
The organized, determined actions of creditors still animate proceedings at
the Baltimore courthouse. And those creditors still appear to be aiming to gain
possession of the only assets held by many African American families, their
homes. Since January 2008, when Baltimore charged Wells Fargo Bank with
predatory lending, the story of how banks have targeted the city’s minority
communities with unfair lending practices has become well known. Maryland’s
attorney general leveled charges against illegal “foreclosure practices, including
the ‘robo-signing’ of affidavits and other required documents.” The state’s high
court echoed the attorney general’s concerns, issuing an “emergency” rule that
explicitly “allows circuit courts to appoint independent lawyers to review fore-
closure documents for problems.”1
The mortgage crisis that began in 2008 continues to play out on the steps
of the city courthouse. On that fall afternoon, heeding Joseph Roach’s admon-
ition that scholars should spend more time in the streets, I stopped to watch.2
The drama had begun offstage, with notices published in local newspapers
and on the internet. Now, on the noticed day and time, the auctioneer had
positioned himself at the top of the steps. At his feet at were red milk crates
filled with files. He cradled a clipboard stacked with documents. He shuffled
the paperwork and conferred quietly with another man. It was the sheriff. At
some moments there was a small crowd gathered. Other times, there were only
an interested few. Now I understood his purpose, even if I could not make out
his exact words. I heard the auctioneer’s staccato words strung together in a
distinct cadence. Then a pause signaled the single-word refrain and his open
palm slapped the clipboard: “Sold.” Homes are for sale on the courthouse
steps. Insolvent debtors – today, as defaulted mortgage holders – can watch
as their homes are sold to the highest bidder. Underlying this scene are rights,
including the right to make contracts and to sue and be sued. In this haunting
performance, the city courthouse is again, as it was in the nineteenth century, a
stage for complex dramas of race and law.
Inside the courthouse, I headed upstairs. I knew I was on Roger Taney’s turf.
Both Taney’s home and the federal courthouse, where he sat on the US Circuit
Court, were just one block from Monument Square.
It still is possible to walk Taney’s streets, but only with a good dose of imagin-
ation. Some of the place names have changed, and the layout has too. Not the
slightest of those changes is, of course, the courthouse itself. The buildings of
Taney’s era were long ago razed, including the former Masonic Hall where he
presided over the federal Circuit Court. Where once stood the Taney home, on
the northeast corner of Saint Paul and Lexington Streets, is today the Courtside
Building, erected in 1918 as the Wolf Building, housing a law firm of the same
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158 Birthright Citizens

name. Perhaps the only vista that remains the same as in Taney’s era is that of
the column of the war memorial that marks Monument Square.
What is there left of Taney, and of an era in which courthouse auctions
disposed of the bodies as well as the homes of black Americans? Visit the
Baltimore courthouse and you will be struck by how it embraces and honors
its history. A courtroom space on the building’s first floor was set aside in
1984 as a museum, governed by the Baltimore Courthouse and Law Museum
Foundation. Each weekday between noon and one, visitors can study the his-
tory of the courthouse and the city’s legal culture. Volunteer attorneys serve as
docents. The courthouse also boasts of its prominent portraiture. Nearly every
courtroom and many corridors are appointed with the oil likenesses of the
city’s legal luminaries from across more than two centuries.
On my first visit, I prowled the courthouse halls and courtrooms looking for
traces of its early nineteenth-century history. I would have to make my way to
the top floor, methodically combing through the building, before I would find
him. Taney might not mind that visitors need to ascend to the building’s upper-
most floors to encounter his memory. Floors six and seven include vaulted
ceilings and a domed roof that today, after renovations in the 1950s did away
with the structure’s ground-floor atrium, are some of the building’s grandest
features. And there, Taney still presides in the building as a figure accorded
prominence and respect. I had heard tell of the Baltimore Bar Library well
before I finally visited the courthouse’s sixth floor.
The city’s lawyers had banded together in 1840 to create the library, which
had its first home in the courthouse that stood in this location from 1808 to
1895. Commentators complained about its cramped, poorly appointed rooms,
but it was a shared meeting place for the city’s legal elite and made resources
such as case reporters and legal treatises more broadly available. The library
overlooked Taney’s home, it was said, though not by design. For historians
today, the library holds tremendous allure because it is intact. The library’s
collection from the nineteenth century has been preserved, set aside in a “his-
torical” section, and researchers can browse the stacks much as nineteenth-
century local attorneys once did. Some lawyers donated their personal libraries
to the institution at the end of their career. Their book labels and handwritten
names are scattered throughout the collection. Here I hoped to see the ante-
bellum world from the perspective of the city’s practitioners.3
I had not expected to find Taney there (even though I would have welcomed
the discovery of his books). But as I pushed open the library doors, there he
was, the first to greet me even before the staff had time to rise from their
desks. Taney’s portrait is an imposing one. Completed during his lifetime by
the artist Miner Kilbourne Kellogg, it depicts the chief justice at rest in an
armchair, quill in one hand and paper under the other. A case reporter on the
table just within reach, Taney is set in an elegant frame of silk drapes, clas-
sical columns, and heavy oak furniture. He gazes beyond the frame in studied
concentration.
159

Epilogue 159

How should historians of race and law interpret the Bar Library, as an
archive? I was welcomed there. As a member of the guild, the director assured
me, lest I had forgotten, I am an honorary member of the library. I admired
the ornate vaulted ceilings, long and wide reading tables, and green-shaded
reading lamps. There was not a computer terminal in sight. I was invited to
visit the “Moose Room” in which is prominently displayed the head of said
moose. There is a story to go with it, about competing law firms and a bet: the
winner got the head. Then I made my way back to the historical room, and
I had the run of the place. I rummaged and rifled in the open stacks with no one
peering over my shoulder. I began to piece together the libraries of men I had
read about in the courthouse archives. Is there anything more alluring than
having free rein in an archive, the run of the stacks, and the sort of privacy that
lets you just sit right there on the floor and read?
But the portrait of Taney haunted me. I avoided taking it in when I stepped
out to make a phone call or get something to eat. I could not reconcile how,
despite the gracious accommodation that was extended to me, I wasn’t sure
I belonged. Or did I mean my research topic did not belong? Could I dis-
cover here a history of race and law that sought to displace Roger Taney with
Cornelius Thompson or George Hackett, one that sought to displace Dred
Scott with deliberations in the local courthouse? What part of my work was
intended to grapple with this scene? What tools did I have that might permit
me to explain how I expected to dethrone Taney in the very place in which he
still presided?
My last stop on that day was a courtroom at the other end of the hall.
It was the city’s Circuit Court, a largely commercial, big-money part of the
courthouse. It is the grandest courtroom in the building, with a domed ceiling
inscribed with the names of the city’s legal forebears. I craned my neck searching
for it: there was Taney, his name emblazoned in plaster. I had expected I might
find him here. And I took a seat at the back, thinking I would quietly observe
and reflect on all I had seen that day. But it was, as I said, a court set aside for
resolving commercial disputes, with a trial under way. And while it is a public
space, it is not unusual for the court to wonder about who visitors might be.
Mostly, in my experience, they want to be mindful about reporters.
Judge Wanda Heard eyeballed me from the bench and then beckoned her
clerk, whispering in his ear. He made his way over to me and asked my business.
I am a historian, I explained, writing a history of the early courthouse. I was
just there to observe, I said, and handed over my card. Some minutes passed
before Judge Heard paused the proceedings just long enough to go off the
record and speak directly to me: “Wait for the break. I’d like to talk with you.”
It didn’t come as an order exactly, but I knew I needed to stay. And I did. It
turned out that Heard herself is deeply interested in the courthouse and its his-
tory. I explained my project, and she presented me with a brief written history
of her courtroom. The marble, I learned, had come from the Vatican quarry.
We talked about the courthouse museum, the portraiture, and the library.
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160 Birthright Citizens

I explained more about my history of race and rights. We mentioned Taney,

and Heard, who is African American, chuckled, pointing to his name up above
her head on the ridge of the courtroom’s dome. I didn’t tell her about the
awkwardness that the chief justice’s portrait had generated in me. It turns out
I didn’t have to.
“My courtroom is haunted,” said Judge Heard. Now, I am no believer in
ghosts, but she is a judge and I was a researcher looking for clues. There had
been, over the years, a series of inexplicable incidents in her courtroom, Heard
explained. She had experienced them, and so had her clerks. Members of the
bar were ready to confirm that something was not right, up there on the sixth
floor. Some sort of spirit or force or energy was making itself felt. Broken glass
and cold chills were examples of what regulars called the courtroom’s ghost.
It was, Judge Heard believed, Roger Taney. The chief justice, whose name and
likeness were so prominently on display, was unsettled. “He might have a little
bit of a problem with me presiding,” Heard once told a reporter for the Sun.4
Her ancestors, she explained, had been slaves.
We do not need to be believers in ghosts to appreciate Judge Heard’s
story. Whether discomfort with her presence is felt by the dead or also by
the living, her story underscores the degree to which questions haunt a black
woman, the descendant of slaves, when she presides in the Baltimore court-
house. Those who challenge her authority may be spirits from the past;
they may be twenty-first-century men and women. What is certain is how
race still animates that place where the city’s courthouse has sat for more
than two centuries. Justice Taney, be he ghost or icon, remains a force in
Baltimore even today.
161

Notes

PrEFACE
1 Alfred Kelly terms this “law office history,” which refers to the “selection of data
favorable to the position being advanced without regard to or concern for contra-
dictory data or proper evaluation of the relevance of the data proffered.” Alfred
H. Kelly, “Clio and the Court: An Illicit Love Affair,” Supreme Court Review 1965
(1965): 119–58, 122.
2 On everyday public interest law practice, see Kris Shepard, Rationing Justice: Poverty
Lawyers and Poor People in the Deep South (Baton Rouge: Louisiana State
University Press, 2007). See also Nisha Agarwal and Jocelyn Simonson, “Thinking
Like a Public Interest Lawyer: Theory, Practice, and Pedagogy,” NYU Review of Law
and Social Change 34 (2010): 455–98. On the power dynamics that shape legal ser-
vices practice, see Mark Kessler, “Legal Mobilization for Social Reform: Power and
the Politics of Agenda Setting,” Law & Society Review 24, no. 1 (1990): 121–43.
On the conditions of legal practice during the 1980s, see Ginny Looney, “Biting the
Budget at Legal Services,” Southern Changes 4, nos. 4–5 (1983): 257–84. For a dis-
cussion of MFY Legal Services, for which I worked, see Noel A. Cazenave, “Ironies
of Urban Reform: Professional Turf Battles in the Planning of the Mobilization
for Youth Program Precursor to the War on Poverty,” Journal of Urban History
26, no. 1 (1999): 22–43. Kevin Olson explains citizenship in the context of the
community-action model of legal services as the capacity for self-governance, in
“Constructing Citizens,” Journal of Politics 70, no. 1 (2008): 40–53. On the early his-
tory of Mobilization for Youth, see Tamar W. Carroll, Mobilizing New York: AIDS,
Antipoverty, and Feminist Activism (Chapel Hill: University of North Carolina
Press, 2015).
3 Dave Cowan and Emma Hitchings, “ ‘Pretty Boring Stuff’: District Judges and
Housing Possession Proceedings,” Social & Legal Studies 16, no. 3 (2007): 363–82.
4 Tony Alfieri further complicates this aspect of “poverty” law practice by
foregrounding the divergences between the interests of poor people and their
lawyers. Anthony V. Alfieri, “Reconstructive Poverty Law Practice: Learning Lessons
of Client Narrative,” Yale Law Journal 100, no. 6 (April 1991): 2107–47.

161
162

162 Notes to Pages x–xi

5 On the ethical dilemmas produced when lawyers’ interests diverge from those of
their clients, see Derrick Bell, “Serving Two Masters: Integration Ideals and Client
Interests in School Desegregation Litigation,” Yale Law Journal 85, no. 3 (July
1976): 470–516.
6 On the nexus of housing organizing and housing court litigation, see Roberta Gold,
When Tenants Claimed the City: The Struggle for Citizenship in New York City
Housing (Urbana: University of Illinois Press, 2014).
7 For a depiction of the Civil Court building, including the Housing Court, see the
discussion of Judge Margaret Taylor in Milner S. Ball, The Word and the Law
(Chicago: University of Chicago Press, 1993), 24–38.
8 On gentrification in Manhattan, see Kathe Newman and Elvin K. Wyly, “The Right to
Stay Put, Revisited: Gentrification and the Resistance to Displacement in New York
City,” Urban Studies 43, nos. 1–4 (2006): 23–57, and Neil Smith and James
Defilippis, “The Reassertion of Economics: 1990s Gentrification in the Lower East
Side,” International Journal of Urban & Regional Research 23, no. 4 (1999): 638–
53. On the deinstitutionalization of people with mental illness, see Richard Warner,
“Deinstitutionalization: How Did We Get Where We Are?” Journal of Social Issues
45, no. 3 (1989): 17–30, and Gerald N. Grob, “Deinstitutionalization: The Illusion
of Policy,” Journal of Policy History 9, no. 1 (1997): 48–73.
9 For a discussion of the New York City Housing Court generally, see “Symposium: The
New York City Housing Court in the 21st Century: Can It Better Address the Problems
Before It?” special issue, Cardozo Public Law, Policy and Ethics 3 (January 2006);
Russell Engler, “And Justice for All – Including the Unrepresented Poor: Revisiting
the Roles of the Judges, Mediators, and Clerks,” Fordham Law Review 67 (April
1999): 1987–2068; Laura K. Abel and David S. Udell, “Judicial Independence: If You
Gag the Lawyers, Do You Choke the Courts? Some Implications for Judges When
Funding Restrictions Curb Advocacy by Lawyers on Behalf of the Poor,” Fordham
Urban Law Journal 29 (February 2002): 873–906; and Harvey Gee, “Is a ‘Hearing
Officer’ Really a Judge? The Presumed Role of ‘Judges’ in the Unconstitutional
New York Housing Court,” New York City Law Review 5 (Summer 2002): 1.
I benefited greatly from the discussions I had during the 2013 conference New York
City’s Housing Court at 40: Controversies, Challenges, and Prospects for Its Future,
held in New York at the New York City Bar. My thanks to the Honorable Michelle
D. Schreiber for including me among the participants.
10 On Five Points, see Tyler Anbinder, Five Points: The 19th-Century New York
City Neighborhood That Invented Tap Dance, Stole Elections, and Became the
World’s Most Notorious Slum (New York: Free Press, 2001), and James W. Cook,
“Dancing across the Color Line,” Common-Place 4, no. 1 (October 2003), www
.common-place.org. Charles Dickens, American Notes for General Circulation
(New York: Harper & Bros., 1842), 32–38. See also Rebecca Yamin, ed.,Tales
of Five Points: Working-Class Life in Nineteenth-Century New York, 7 vols.
(Washington, DC: General Services Administration, 2002). For a discussion of
approaches to writing the history of Five Points, see Alan Mayne, “Tall Tales
But True? New York’s ‘Five Points’ Slum,” Journal of Urban History 33, no. 22
(January 2007): 320–31.
11 For an overview of conditions at The Tombs, see Timothy J. Gilfoyle, “ ‘America’s
Greatest Criminal Barracks’: The Tombs and the Experience of Criminal Justice
163

Notes to Pages xi–1 163

in New York City, 1838–1897,” Journal of Urban History 29, no. 5 (2003): 525–
54. Max Page offers a contrast to New York’s Tombs by way of the develop-
ment of Philadelphia’s nineteenth-century courthouse, in “From ‘Miserable Dens’
to the ‘Marble Monster’: Historical Memory and the Design of Courthouses
in Nineteenth-Century Philadelphia,” Pennsylvania Magazine of History and
Biography 119, no. 4 (1995): 299–343.
12 On New York’s court reform, see Barry Mahoney, “The Administration of Justice
and Court Reform,” Proceedings of the Academy of Political Science 31, no. 3
(1974): 58–72.
13 For an especially vivid depiction of the Housing Court in Brooklyn, see Clyde
Haberman, “For Housing: Civil Court, Chaos Part,” New York Times, May 30,
1997; Jan Hoffman, “Chaos Presides in New York Housing Courts,” New York
Times, December 28, 1994.
14 Charlotte Libov, “In Security Move, More Metal Detectors Are Placed in Courts,”
New York Times, December 1, 1985. George A. Davidson offers a more sanguine
look at the modern courthouse in his essay, “The Lawyer’s Perspective: Celebrating
the Courthouse,” The Green Bag: An Entertaining Journal of Law 11 (Winter
2008): 159–70. Davidson’s essay was reprinted from the 2006 book Celebrating
the Courthouse: A Guide for Architects, Their Clients, and the Public, edited by
Steven Sanders (New York: Norton, 2006): 168–76.
15 Joseph Roach, Cities of the Dead: Circum-Atlantic Performance (New York:
Columbia University Press, 1996), xii.
16 Ibid.

Introduction
1 Later treatises addressed, in part, the status of free African Americans. For example,
Thomas R. R. Cobb’s An Inquiry into the Law of Negro Slavery (Philadelphia:
T. & J. W. Johnson; Savannah: W. Thorne Williams, 1858) included a final chapter
on “The effect of manumission and the status of free persons of color,” 312. Also on
the rights of former slaves, see Joel Tiffany, A Treatise on the Unconstitutionality of
American Slavery (Cleveland: J. Calyer, 1849); Samuel Nott, Slavery, and the Remedy,
or, Principles and Suggestions for a Remedial Code, 3rd ed. (Boston: Crocker and
Brewster, 1856); and John Codman Hurd, The Law of Freedom and Bondage in
the United States (Boston: Little, Brown; New York: Van Nostrand, 1858). Other
treatises were limited to the subject of slavery. Jacob D. Wheeler, A Practical Treatise
on the Law of Slavery (New York: Allan Pollock; New Orleans: Benjamin Levy,
1837); George M. Stroud, A Sketch of the Laws Relating to Slavery in the Several
States of the United States of America (Philadelphia: Kimber and Sharpless, 1827),
with one brief mention of free “negroes”; and William Goodell, Views of American
Constitutional Law: In Its Bearing upon American Slavery (Utica, NY: Jackson &
Chaplin, 1844).
2 William Yates, Rights of Colored Men to Suffrage, Citizenship and Trial by
Jury: Being a Book of Facts, Arguments and Authorities, Historical Notices and
Sketches of Debates – With Notes (Philadelphia: Merrihew and Gunn, 1838).
3 “Items: The Troy Press,” American (New York), August 10, 1832.
164

164 Notes to Pages 1–3

4 Yates was a delegate to an 1835 New York State antislavery convention, as

reported by the Liberator. “To the Friends of Immediate Emancipation in the State
of New York,” Liberator, October 3, 1835. He was a member of the three-person
delegation from Troy.
5 Yates’s report on his work with free people of color in Delaware has survived and
is published in Harold B. Hancock, “William Yates’ Letter of 1837: Slavery, and
Colored People in Delaware,” Delaware History 14 (1971): 205–16. Yates previewed
this work in the Colored American. “Letter from William Yates, Esq.: Slavery and
Colored People in Delaware,” August 12, 1837, and August 19, 1837.
6 I use the terms “free African American” and “free black” and “free people of
color” interchangeably throughout this chapter, mostly out of a writerly interest
in keeping the prose fresh. I do recognize how interpretations of “black” versus
“African American” may differ, with the former being a broader term that would
also encompass African-descended people from Africa, the Caribbean, and South
America. The term “free” may also give some readers pause, especially when reading
about Baltimore. Some historians have concluded that in Maryland many African
Americans lived by way of a quasi-freedom, even as they were in another sense
claimed as property. “Free” is intended to indicate a legal status and to suggest
how Baltimore’s black community was shrouded by the same questions that African
Americans in post-slavery Northern states confronted. These terms should not be
understood as referring to essential differences, including those of biology or gen-
etics. Race was in the nineteenth century, as it is today, a social construction. For
readability, I have not adopted cumbersome phrasings such as “people believed to
be black.” Still, my use of racial terms should not be mistaken for the promotion of
what Karen and Barbara Fields have termed racecraft. Karen E. Fields and Barbara
J. Fields, Racecraft: The Soul of Inequality in American Life (London: Verso, 2012).
7 A. W. B. Simpson, “The Rise and Fall of the Legal Treatise: Legal Principles and
the Forms of Legal Literature,” University of Chicago Law Review 48 (Summer
1981): 633–34.
8 James Kent, Commentaries on American Law, in Four Volumes (New York: O.
Halsted, 1826–30), and Joseph Story, Commentaries on the Constitution of the
United States . . . in Three Volumes (Boston: Hilliard, Gray, 1833).
9 Simpson, “The Rise and Fall of the Legal Treatise,” 670–72.
10 On networks of legal publishing (which were distinct from those of the aboli-
tionist print culture), see M. H. Hoeflich, Legal Publishing in Antebellum America
(New York: Cambridge University Press, 2010), and Erwin C. Surrency, A History
of American Law Publishing (Dobbs Ferry, NY: Oceana Publications, 1990).
11 His publisher, Merrihew and Gunn, printed African American-authored, antislavery,
and religious texts. Philadelphia National Enquirer, March 15 and March 29,
1838; The Colored American, March 3, March 15, March 22, April 5, and April
19, 1838. Also see Emancipator (New York), May 24, 1838. (“For sale at the Anti-
Slavery Office, 143 Nassau-street. Price twenty-five cents.”)
12 On African American print culture generally, see Joanna Brooks, “The Early
American Public Sphere and the Emergence of a Black Print Culture,” William and
Mary Quarterly 62, no. 1 (January 2005): 67–92. On abolitionist print culture and
law generally, see Jeannine Marie DeLombard, Slavery on Trial: Law, Abolitionism,
and Print Culture (Chapel Hill: University of North Carolina Press, 2007).
165

Notes to Pages 3–5 165

13 Yates, Rights of Colored Men, iv.

14 Ibid., 71.
15 Ibid., iii. In 1855, African American historian William Cooper Nell would publish
his The Colored Patriots of the American Revolution, with Sketches of Several
Distinguished Colored Persons: To Which Is Added a Brief Survey of the Condition
and Prospects of Colored Americans (Boston: Robert F. Wallcut, 1855), which
embraced Yates’s strategy by documenting black military service during the War
for Independence.
16 Yates, Rights of Colored Men, 47, 48–52.
17 Suffrage, Yates observed, was neither universal nor absolute. White women and
children, he pointed out, did not vote; still, they were deemed citizens. Ibid., 48.
18 Ibid., 6.
19 Ibid., 15, 36.
20 Ibid., 38. A decade later Joel Tiffany would argue that slaves were also citizens. Joel
Tiffany, A Treatise on the Unconstitutionality of American Slavery (Cleveland: J.
Calyer, 1849).
21 Yates, Rights of Colored Men, 54–75.
22 In an 1854 comment on the denial of passports to free African Americans,
Rev. Amos Beman referred readers to Yates in support of the view that free
black people were citizens of the United States. Rev. A. G. Beman, “Letter
from Rev. A. G. Beman,” Frederick Douglass’ Paper, September 15, 1854.
Preceding Thomas Sidney, Yates spoke about the “legal disabilities of the col-
ored man” to New York’s black leadership in October 1838. “Public Meeting
of the Political Association,” Colored American, October 20, 1838. “Origen,”
visiting Gettysburg, Pennsylvania, reported having “deposited in the hands of
the Secretary of the Mental and Moral Improvement Society” Yates’s book. “For
the Colored American. To the Church and Congregation at T[roy]. Letter V.,”
Colored American, October 20, 1838. Black activist Theodore S. Wright quoted
from Yates’s book in a speech to the New York State Anti-Slavery Society in
September 1837. “Is There No Eye to Pity,” Colored American, January 20,
1838. The Colored American and the Emancipator published excerpts from
Yates’s book in the winter of 1838, in anticipation of its publication. “Wm.
Yates, Esq.,” Colored American, January 13, 1838. “Unequal Laws,” Colored
American, January 13, 1838 (reprinted from the Elevator).
23 In his final letter to the Colored American, published in May 1840, Yates reported
on new antikidnapping legislation passed by New York’s legislature. “New York,”
Colored American, May 30, 1840. The Colored American reported that Yates
and his wife, Martha, lost an “infant” daughter in May 1840. “Died,” Colored
American, May 2, 1840. Yates’s services to the American Anti-Slavery Society
appeared to have been “discontinued” in fall 1838. “More Practical Measures,”
Colored American, October 27, 1838.
24 “An Act to Protect All Persons in the United States in the Civil Rights, and Furnish
the Means of Their Vindication,” 14 Stat. 27–30 (1866). Hereafter, Civil Rights Act
of 1866. US Constitution, amendment 14, section 1 (1868).
25 Civil Rights Act of 1866.
26 Copies of Yates’s treatise are noted in the Catalogue of the New-York State
Library: 1855 (Albany, NY: Charles Van Benthuysen, 1856), 824, and the Catalogue
166

166 Notes to Pages 6–7

of the Library of the Massachusetts Historical Society, vol. 2: M–Z (Boston: John
Wilson and Son, 1855), 645.
27 Janette Hoston Harris, “Woodson and Wesley: A Partnership in Building the
Association for the Study of Afro-American Life and History,” Journal of Negro
History 83, no. 2 (Spring 1998): 109–19, and Benjamin Quarles, “Charles Harris
Wesley,” Proceedings of the American Antiquarian Society 97, no. 2 (October
1987): 275–79.
28 Charles H. Wesley, “Creating and Maintaining an Historical Tradition,” Journal of
Negro History 49, no. 1 (January 1964): 13–33, quotation on 13.
29 Ibid., 21–33. R[obert] B. Lewis, Light and Truth: Collected from the Bible and
Ancient and Modern History, Containing the Universal History of the Colored
and the Indian Race, from the Creation of the World to the Present Time
(Boston: Committee of Colored Gentlemen, 1836). James W. C. Pennington, Text
Book of the Origin and History of the Colored People (Hartford, CT: L. Skinner,
1841). William C. Nell, Services of Colored Men, in the Wars of 1776 and 1812
(Boston: Prentiss & Sawyer, 1851). William Wells Brown, The Black Man: His
Antecedents, His Genius, and His Achievements (New York: Thomas Hamilton;
Boston: R. F. W. Wallcut, 1863).
30 John L. Myers, “American Antislavery Society Agents and the Free Negro, 1833–
1838,” Journal of Negro History 52, no. 3 (July 1967): 200–19. “American Anti-
Slavery Society, and the Free Colored People,” Colored American, May 20, 1837.
“Circular Letter . . . to the Free Colored Citizens of the United States,” Weekly
Advocate, February 18, 1837.
31 Myers was not, however, wholly consistent in his placement of Yates. He also
reported that Yates had been “installed as pastor on January 8, 1836, of the
Charleston Union Presbytery.” Meyers, “American Antislavery Society,” 206.
This was an error. William Black Yates, to whom this fact referred, was for all
his adult life a Presbyterian minister in Charleston, not the author of Rights of
Colored Men. Alfred Nevin, Encyclopædia of the Presbyterian Church in the
United States of America (Philadelphia: Presbyterian Encyclopaedia Publishing,
1884), 1051.
32 Harold B. Hancock, “William Yates’ Letter of 1837: Slavery, and Colored People in
Delaware,” Delaware History 14 (1971), 205–16 (citing Myers).
33 For example, Yates served on a committee devoted to “the interests of our free
colored brethren,” along with six African American agents, for the American
Anti-Slavery Society in 1838. “Encouraging to Our Heart,” Colored American,
June 2, 1838, 59; Wm. Yates, “For the Colored American. Philadelphia. June
6, 1837,” Colored American, June 10, 1837; and Wm. Yates, “For the Colored
American. Philadelphia, June 19, 1837,” Colored American, July 1, 1837. Yates
hosted the Colored American’s Charles Ray at Troy’s Seamen’s Bethel Church.
“Correspondence. Letter from Our General Agent,” Colored American, September
2, 1837. And Ray drew on Yates’s forthcoming book when he wrote: “Some say,
let the colored people leave the country! We reply NO, BRETHREN. We would
rather die a thousand deaths, in honestly and legally contending for our rights,
in this our native country.” “Disabilities of Colored People,” Colored American,
September 30, 1837. In the same issue, Yates provided to editor Cornish a short
article on “legal disabilities.” “Brother Cornish,” Colored American, September
30, 1837.
167

Notes to Pages 7–8 167

34 Wm. Yates, “For the Colored American. Brother Cornish,” Colored American, June
24, 1837. Origen, “To the Church and Congregation at T,” Colored American,
October 20, 1838; “Rights of Colored Men to Suffrage, Citizenship, Etc.,” Colored
American, April 19, 1838; “Right of Suffrage,” Colored American, March 22,
1838; “A Subterfuge, or an Apology for Oppression,” Colored American, March
22, 1838; “Yates’ Rights of Colored Men,” Colored American, March 22, 1838;
“The Ohio Memorial,” Colored American, March 22, 1838; “New and Important
Publications,” Colored American, March 15, 1838; “Important Publication,”
Colored American, March 3, 1838; and “Encouraging to Our Heart,” Colored
American, June 2, 1838.
35 “Public Meeting of the Political Association,” Colored American, October 20,
1838.
36 Contrast this with the usage of the term “our,” as in “our prospects” and “our
brethren,” by black activist Charles Reason as secretary to the “New York
Association for the Political Elevation and Improvement of the People of Color,”
where Yates was in attendance. “Public Meeting of the Political Association,”
Colored American, October 20, 1838. The call for a related meeting, issued by
black activists Patrick Henry Reason, Patrick A. Bell, and John J. Zuille, termed
the organizers “we” and spoke of “our rights.” “Public Meeting of the Political
Association,” Colored American, October 12, 1839.
37 George B. Anderson, Landmarks of Rensselaer County, New York (Syracuse,
NY: D. Mason & Co., 1897), 343.
38 “More Practical Measures,” Colored American, October 27, 1838, and “Fifth
Annual Meeting of the American Anti-Slavery Society,” Liberator, May 18,
1838.
39 Wm. Yates, “Letter from Wm. Yates, Esqr.: Brother Cornish,” Colored American,
January 27, 1838, and Wm. Yates, Esq., “Unequal Laws,” Colored American,
January 13, 1838.
40 “Public Meeting of the Political Association,” Colored American, October 20,
1838; and “Legal Disabilities of Colored People,” Colored American, January
13, 1838.
41 Charles Ray, editor of the Colored American, made a last note, reporting that
Yates and his wife, Maria, had lost an infant daughter: “We sympathize with our
worthy friends.” “Died,” Colored American, May 2, 1840. Yates appears to have
withdrawn from antislavery activism in 1840. “New-York Legislation,” National
Anti-Slavery Standard (New York), June 18, 1840. In that same year he was noted
as working as a coal agent in Albany, New York. “Coal by the Canal,” Albany
Argus, July 14, 1840. Yates and his wife, “Mariah,” appear in the 1850 census from
Albany, New York, where he is listed as a coal dealer. “William Yates,” Dwelling
No. 649, Family No. 1283, Schedule I, 6th Ward, Albany, New York, Seventh
Census of the United States, 1850, NARA.
42 Amigo, “William Wells Brown’s Book,” Pacific Appeal (San Francisco, CA,) May
30, 1863.
43 On African American public culture in San Francisco generally, see J. William
Snorgrass, “The Black Press in the San Francisco Bay Area, 1856–1900,” California
History 60, no. 4 (1981–82): 306–17; Delilah L. Beasley, The Negro Trailblazers of
California (New York: G. K. Hall, 1997; 1919); and Rudolph M. Lapp, Blacks in
Gold Rush California (New Haven, CT: Yale University Press, 1977).
168

168 Notes to Pages 8–9

44 On the experience of black Americans working in Washington’s official venues in a

somewhat different time, see Kate Masur, “Patronage and Protest in Kate Brown’s
Washington,” Journal of American History 99, no. 4 (March 2013), 1047–71.
45 The manumission of William Yates was recorded on May 15, 1841. His wife,
Emeliner Yates, and her children were manumitted just over two years later, on
August 19, 1843. The freedom certificates for Yates and his family are cataloged
in Dorothy S. Provine, District of Columbia Free Negro Registers, 1821–1861
(Bowie, MD: Heritage Books, 1996), 403, 441.
46 “Colored Men of California. No. V. Mr. Wm. H. Yates,” Pacific Appeal, August
1, 1863.
47 Douglas H. Daniels, Pioneer Urbanites: A Social and Cultural History of Black
San Francisco (Philadelphia: Temple University Press, 1980), and Lapp, Blacks
in Gold Rush California. On Yates and his daughter Frances, see Eric Gardner,
Jennie Carter: A Black Journalist of the Early West (Jackson: University Press of
Mississippi, 2007), 49n1.
48 Lapp, Blacks in Gold Rush California, 99.
49 William J. Novak, “The Legal Transformation of Citizenship in Nineteenth-Century
America,” in The Democratic Experiment: New Directions in American Political
History, ed. Meg Jacobs, William J. Novak, and Julian E. Zelizer (Princeton,
NJ: Princeton University Press, 2003), 85–119.
50 The literature on Dred Scott is voluminous, much of it aiming to evaluate the
court decision. Vincent Hopkins’s 1951 Dred Scott’s Case centered on a defense
of Roger Taney and concluded that he had been an evenhanded, restrained jurist.
In the more than half a century that followed, scholars revisited these questions
while remaining close to the text of the case and its prominent actors. Taney
has been closely scrutinized, from Don Fehrenbacher, who pointed to his pro-
Southern bias, to Mark Graber’s vision of a disciplined judge whose views were
consistent with those of the framers. Don E. Fehrenbacher, The Dred Scott Case,
Its Significance in American Law and Politics (New York: Oxford University
Press, 1978); Mark A. Graber, Dred Scott and the Problem of Constitutional Evil
(New York: Cambridge University Press, 2006). Austin Allen has tried to reconcile
Taney’s record, explaining that his decision sought to protect both slavery and the
rights of corporations. Austin Allen, Origins of the ‘Dred Scott’ Case: Jacksonian
Jurisprudence and the Supreme Court, 1837–1857 (Athens: University of Georgia
Press, 2006). Perspectives on Taney-court dissenters John McLean and Benjamin
Curtis provided a counterpoint to Taney’s conclusions. Justin Buckley Dyer,
“Lincolnian Natural Right, Dred Scott, and the Jurisprudence of John McLean,”
Polity 41, nos. 1–4 (January 2008): 63–85, and Lucas E. Morel, “The ‘Dred Scott’
Dissents: McLean, Curtis, Lincoln, and the Public Mind,” Journal of Supreme
Court History 32, no. 22 (2007): 133–51.
51 Lisa Crooms-Robinson, “The United States Constitution and the Struggle for
African American Citizenship: An Overview,” in The Oxford Handbook of
African American Citizenship, ed. Henry Louis Gates Jr. et al. (New York: Oxford
University Press, 2012), 519–20.
52 In this study I “pivot the center,” meaning that I remain throughout rooted in the
perspectives of people of African descent while asking how they were engaged
with broader contexts and influences. In the history of law, this requires studying
lawyers, jurists, and other litigants along with free people of color. Elsa Barkley
169

Notes to Pages 10–11 169

Brown, “African-American Women’s Quilting: A Framework for Conceptualizing

and Teaching African-American Women’s History,” Signs: Journal of Women in
Culture and Society 14 (1989): 921–29.
53 This approach is indebted to work on popular constitutionalism, which has drawn
the attention of legal historians to alternative realms of constitutional interpretation.
Richard A. Primus, “The Riddle of Hiram Revels,” Harvard Law Review 119, no. 6
(April 2006): 1680–734; Keith E. Whittington, Constitutional Construction: Divided
Power and Constitutional Meaning (Cambridge, MA: Harvard University Press, 1999);
Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial
Review (New York: Oxford University Press, 2004); and Rogers M. Smith, “The
Inherent Deceptiveness of Constitutional Discourse: A Diagnosis and Prescription,”
Nomos 40 (1998): 215–54. On popular constitutionalism and underenforcement of
law in a twenty-first-century example, see Ernest A. Young, “Popular Constitutionalism
and the Underenforcement Problem: The Case of the National Healthcare Law,” Law
and Contemporary Problems 75, no. 3 (2012); 157–201.
54 Hendrik Hartog, “The Constitution of Aspiration and ‘The Rights That Belong to
Us All,’” Journal of American History 74, no. 3 (December 1987): 1013–34.
55 On legal consciousness, see ibid. and Michael Grossberg, A Judgment for
Solomon: The d’Hauteville Case and Legal Experience in Antebellum America
(New York: Cambridge University Press, 1996).
56 Walter Johnson, “On Agency,” Journal of Social History 37, no. 1 (Fall
2003): 113–24.
57 For an illuminating discussion of the rights debates between critical legal studies and
critical race studies scholars, see Patricia J. Williams, “The Pain of Word Bondage,”
in The Alchemy of Race and Rights (Cambridge, MA: Harvard University Press,
1991), 146–65.
58 Corfield v. Coryell, 4 Wash. Cir. Rep. 371. Today reported at 6 Fed. Cas. 546,
no. 3,3230 C.C.E.D.Pa. 1823.
59 On this distinction, see Hendrik Hartog, “Pigs and Positivism,” Wisconsin Law
Review 4 (August 1985): 899–935.
60 On antebellum free-black politics, see Patrick Rael, Black Identity and Black
Protest in the Antebellum North (Chapel Hill: University of North Carolina Press,
2002), and Martha S. Jones, All Bound Up Together: The Woman Question in
African American Public Culture (Chapel Hill: University of North Carolina Press,
2007). On the political culture of enslaved people, see Steven Hahn, A Nation
under Our Feet: Black Political Struggles in the Rural South from Slavery to the
Great Migration (Cambridge, MA: Harvard University Press, 2004).
61 Bonnie Honig, Democracy and the Foreigner (Princeton, NJ: Princeton University
Press, 2001), 98–106. On free African Americans as foreigners, see Kunal M.
Parker, “Making Blacks Foreigners: The Legal Construction of Former Slaves in
Post-Revolutionary Massachusetts,” Utah Law Review 2001 (2001): 75–124,
and Kunal M. Parker, Making Foreigners: Immigration and Citizenship Law in
America, 1600–2000 (New York: Cambridge University Press, 2015).
62 Hartog, “The Constitution of Aspiration.”
63 Martha S. Jones, “Leave of Court: African-American Legal Claims Making in
the Era of Dred Scott v. Sandford,” in Contested Democracy: Politics, Ideology,
and Race in American History, ed. Manisha Sinha and Penny Von Eschen
(New York: Columbia University Press, 2007), 54–74.
170

170 Notes to Pages 12–13

64 Reynolds v. United States, 98 U.S. 145 (1879).

65 Ira Berlin’s Slaves Without Masters remains an essential touchstone for any study
of free African Americans in the antebellum South. Ira Berlin, Slaves without
Masters: The Free Negro in the Antebellum South (New York: Pantheon, 1975).
This study departs from Berlin’s view, arguing that free African Americans
were not reduced to slave-like status by black laws and colonization. Instead,
in Baltimore they constructed rights and a citizenship-like status. An exten-
sive literature documents the social history of free people of color in Baltimore.
See Seth Rockman, Scraping By: Wage Labor, Slavery, and Survival in Early
Baltimore (Baltimore: Johns Hopkins University Press, 2008); Christopher
Phillips, Freedom’s Port: The African American Community of Baltimore, 1790–
1860 (Urbana: University of Illinois Press, 1997); T. Stephen Whitman, The Price
of Freedom: Slavery and Freedom in Baltimore and Early National Maryland
(New York: Routledge, 1999); James Martin Wright, The Free Negro in Maryland,
1632–1860 (New York: Columbia University Press, 1921); and Frank Towers,
The Urban South and the Coming of the Civil War (Charlottesville: University of
Virginia Press, 2004).
66 For works that take this approach to the study of race and law, see Ariela J. Gross,
Double Character: Slavery and Mastery in the Antebellum Southern Courtroom
(Princeton, NJ: Princeton University Press, 2000); Laura F. Edwards, The People
and Their Peace: Legal Culture and the Transformation of Inequality in the
Post-Revolutionary South (Chapel Hill: University of North Carolina Press,
2009); Dylan Penningroth, The Claims of Kinfolk: Africa American Property
and Community in the Nineteenth-Century South (Chapel Hill: University of
North Carolina Press, 2003); Christopher Waldrep, Roots of Disorder: Race
and Criminal Justice in the American South, 1817–80 (Urbana: University of
Illinois Press, 1998); Melvin Patrick Ely, Israel on the Appomattox: A Southern
Experiment in Black from the 1790s through the Civil War (New York: Knopf,
2004); Kirt Von Daacke, Freedom Has a Face: Race, Identity, and Community
in Jefferson’s Virginia (Charlottesville: University of Virginia Press, 2012);
and Ted Maris-Wolf, Family Bonds: Free Blacks and Re-enslavement Law in
Antebellum Virginia (Chapel Hill: University of North Carolina Press, 2015).
See also Rebecca J. Scott, “Paper Thin: Freedom and Re-enslavement in the
Diaspora of the Haitian Revolution,” Law and History Review 29, no. 4
(2011): 1061–87.
67 On Maryland as the middle ground, see Robert J. Brugger, Maryland: A Middle
Temperament, 1634–1980 (Baltimore: Johns Hopkins University Press and
Maryland Historical Society, 1988), and Barbara Jeanne Fields, Slavery and
Freedom on the Middle Ground: Maryland during the Nineteenth Century (New
Haven, CT: Yale University Press, 1987).
68 Steven Hahn, The Political Worlds of Slavery and Freedom (Cambridge,
MA: Harvard University Press, 2009).
69 For this view, and this book’s general approach from its grounding in trial court
records to weaving together legal history’s cultural and intellectual threads, I am
indebted to the pioneering work of Ariela Gross. For a defining discussion of these
questions through a focus on slavery and law, see Ariela J. Gross, “Beyond Black
and White: Cultural Approaches to Race and Slavery,” Columbia Law Review 101,
no. 3 (April 2001): 640–90.
171

Notes to Pages 16–19 171

1 Being a Native, and Free Born

1 On the political rights of Baltimore’s black revolutionary generation, see David S.
Bogen, “The Maryland Context of ‘Dred Scott’: The Decline in the Legal Status
of Maryland Free Blacks, 1776–1810,” American Journal of Legal History 34,
no. 4 (1990): 381–411, and David S. Bogen, “The Annapolis Poll Books of 1800
and 1804: African American Voting in the Early Republic,” Maryland Historical
Magazine 86, no. 1 (1991): 57–65.
2 Seth Rockman, Scraping By: Wage Labor, Slavery, and Survival in Early Baltimore
(Baltimore: Johns Hopkins University Press, 2008), 45–56.
3 James A. Handy, Scraps of African Methodist Episcopal History (Philadelphia:
A.M.E. Book Concern, [1902]), 14.
4 Richard R. Wright, Centennial Encyclopaedia of the African Methodist Church
(Philadelphia: Book Concern of the A.M.E. Church, 1916), 68.
5 For an example of how local tribunals operated, see Eric Armstrong Dunbar, A
Fragile Freedom: African American Women and Emancipation in the Antebellum
City (New Haven, CT: Yale University Press, 2008), 51–52 and 62–69.
6 Handy, Scraps of African Methodist Episcopal History, 29–30. The AME Church’s
Doctrines and Discipline was published first in 1817; see The Doctrines and
Discipline of the African Methodist Episcopal Church (Philadelphia: Richard Allen
and Jacob Tapisco for the African Methodist Connection, 1817). On Doctrines and
Discipline, see Richard S. Newman, Freedom’s Prophet: Bishop Richard Allen, the
AME Church, and the Black Founding Fathers (New York: New York University
Press, 2008), 177–81.
7 On African American schooling in antebellum Baltimore, see Willa Young Banks,
“A Contradiction in Antebellum Baltimore: A Competitive School for Girls
of ‘Color’ within a Slave State,” Maryland Historical Magazine 99, no. 2 (June
2004): 132–63; Bettye J. Gardner, “William Watkins: Antebellum Black Teacher
and Writer,” Negro History Bulletin 39, no. 6 (1976): 623–24; and Bettye Gardner,
“Ante-bellum Black Education in Baltimore,” Maryland Historical Magazine 71,
no. 3 (1976): 360–66.
8 Silas Marean and James J. Fisher vs. Charles Hackett (mortgage foreclosure on
lot on Friendship St.), July 27, 1832, C295-1285, Chancery Papers, 1815–51,
Baltimore County Court, Maryland State Archives, Annapolis, MD (hereafter
MSA). Wright, Centennial Encyclopaedia, 68.
9 On Samuel Cornish, see David E. Swift, Black Prophets of Justice: Activist Clergy
before the Civil War (Baton Rouge: Louisiana State University Press, 1989), 19–46.
10 “Authorised Agents,” Freedom’s Journal, March 16, 1827.
11 “To Our Patrons,” Freedom’s Journal, March 16, 1827.
12 On black newspapers as legal primers in the twentieth century, see Joel E. Black,
“A Theory of African-American Citizenship: Richard Westbrooks, the Great
Migration, and the Chicago Defender’s ‘Legal Helps’ Column,” Journal of Southern
History 46, no. 4 (Summer 2013): 869–915.
13 Barbara Jeanne Fields, Slavery and Freedom on the Middle Ground: Maryland
during the Nineteenth Century (New Haven, CT: Yale University Press, 1987),
23–40, and Robert J. Brugger, Maryland: A Middle Temperament, 1634–1980
(Baltimore: Johns Hopkins University Press and the Maryland Historical Society,
1988), 248–306.
172

172 Notes to Pages 19–21

14 For recent work that examines Baltimore, see Rockman, Scraping By, and
Christopher Phillips, Freedom’s Port: The African American Community of
Baltimore, 1790–1860 (Urbana and Chicago: University of Illinois Press, 1997).
T. Stephen Whitman, The Price of Freedom: Slavery and Freedom in Baltimore
and Early National Maryland (New York: Routledge, 1999). Mary P. Ryan,
“Democracy Rising: The Monuments of Baltimore, 1809–1842,” Journal of Urban
History 36, no. 2 (2010): 127–50.
15 Rockman, Scraping By, 18. On Baltimore’s commercial development, see Sherry
H. Olson, Baltimore, the Building of an American City (Baltimore: Johns Hopkins
University Press, 1980), and Gary Lawson Browne, Baltimore in the Nation, 1789–
1861 (Chapel Hill: University of North Carolina Press, 1980).
16 Browne, Baltimore in the Nation, 20.
17 Garrison would be detained in the Baltimore City jail after being convicted of
libel for publishing a story about a Massachusetts merchant’s involvement in the
domestic slave trade. David K. Sullivan, “William Lloyd Garrison in Baltimore,
1829–1830,” Maryland Historical Magazine 68, no. 1 (1973): 64–79. Garrison’s
letters from the Baltimore jail are published in William Lloyd Garrison, The Letters
of William Lloyd Garrison, ed. Walter M. Merrill, vol. 1: I Will Be Heard! 1822–
1835 (Cambridge, MA: Belknap Press of Harvard University Press, 1971).
18 Glenn O. Phillips, “Maryland and the Caribbean, 1634–1984: Some Highlights,”
Maryland Historical Magazine 83, no. 3 (1988): 199–214, and Paul G. E. Clemens,
The Atlantic Economy and Colonial Maryland’s Eastern Shore: From Tobacco to
Grain (Ithaca, NY: Cornell University Press, 1980).
19 “Removal of Slaves to Hayti,” Freedom’s Journal, December 21, 1827; “American
Colonization Society,” Freedom’s Journal, November 30, 1827; “Summary,”
Freedom’s Journal, May 4, 1827.
20 “Union Seminary,” Freedom’s Journal, July 4, 1828. On the AME Church, see Carol
V. R. George, Segregated Sabbaths: Richard Allen and the Rise of Independent
Black Churches: 1760–1840 (New York: Oxford University Press, 1973); Richard
S. Newman, Freedom’s Prophet: Bishop Richard Allen, the AME Church, and
the Black Founding Fathers (New York: New York University Press, 2009);
and Martha S. Jones, All Bound Up Together: The Woman Question in African
American Public Culture, 1830–1900 (Chapel Hill: University of North Carolina
Press, 2007).
21 On New York’s gradual emancipation, see David N. Gellman, Emancipating
New York: The Politics of Slavery and Freedom, 1777–1827 (Baton Rouge: Louisiana
State University Press, 2006).
22 On free black political culture in New York and Philadelphia, see Leslie M.
Harris, In the Shadow of Slavery: African Americans in New York City, 1626–
1863 (Chicago: University of Chicago Press, 2003); Julie Winch, A Gentleman
of Color: The Life of James Forten (New York: Oxford University Press, 2002);
Shane White, Somewhat More Independent: The End of Slavery in New York City,
1770–1810 (Athens: University of Georgia Press, 1991).
23 James T. Campbell, Songs of Zion: The African Methodist Episcopal Church in
the United States and South Africa (New York: Oxford University Press, 1995),
35, and Reginald F. Hildebrand, The Times Were Strange and Stirring: Methodist
Preachers and the Crisis of Emancipation (Durham, NC: Duke University Press,
1995), 2.
173

Notes to Pages 21–23 173

24 On slavery’s expansion south and west, see Adam Rothman, Slave Country:
American Expansion and the Origins of the Deep South (Cambridge, MA:
Harvard University Press, 2007), 171–210, and Walter Johnson, River of Dark
Dreams: Slavery and Empire in the Cotton Kingdom (Cambridge, MA: Harvard
University Press, 2013), 404.
25 Steven Deyle, Carry Me Back: The Domestic Slave Trade in American Life
(New York: Oxford University Press, 2005).
26 “Trade in Negroes,” Niles’ Weekly Register, July 19, 1817.
27 Maryland Act of 1780, chapter 8 (imposes 500 pound tax on slaves brought
from outside of the state), and Maryland Act of 1783, chapter 23 (bars import
of slaves into Maryland). See also Maryland Act of 1809, chapter 138 (penalties
for captains or masters who bring black people into Maryland with the intent to
sell them within the state). Deyle, Carry Me Back, 52 (quoting Whitman, Price of
Freedom, 78).
28 “Grand Jury Room,” American and Commercial Daily Advertiser, October 29,
1816. On the far-reaching extent of kidnapping in Baltimore after 1800, see
Leroy Graham, Baltimore: The Nineteenth Century Black Capital (Washington,
DC: University Press of America, 1982), 49–58, 60, 69–70. For one example of slaves
kidnapped in Baltimore and sold in New Orleans, see Martha S. Jones, “The Case
of Jean Baptiste, un Créole de Saint-Domingue: Narrating Slavery, Freedom, and
the Haitian Revolution in Baltimore City,” in The American South and the Atlantic
World, ed. Brian Ward, Martin Bone, and William A. Link (Gainesville: University
Press of Florida, 2013), 104–28.
29 The percentage in 1819 was 3.1. These numbers are likely very low, given that many
free black seamen would have been absent from the city or living in boardinghouses
and therefore excluded from the city directory. Phillips, Freedom’s Port, 111.
30 Historian Julius Scott describes the port of Baltimore in 1793, with its relatively
high percentage of black residents, receiving fifty-three ships over a two-week
period, carrying a total of 500 people of color, all refugees from the revolution
in Saint-Domingue. Julius S. Scott, “Afro-American Sailors and the International
Communication Network: The Case of Newport Bowers,” in Jack Tar in
History: Essays in the History of Maritime Life and Labour, ed. Colin Howell and
Richard Twomey (Fredericton, NB: Acadiensis Press, 1991), 37n52.
31 Jones, “The Case of Jean Baptiste.”
32 Phillips, Freedom’s Port, 60.
33 “To the Justice of the Peace and the Constables of Baltimore County and Particularly
within This City,” Federal Gazette, September 13, 1810.
34 Humanity, “Defence,” Federal Gazette, September 13, 1810.
35 “To Our Patrons,” Freedom’s Journal, March 16, 1827.
36 “Proposals for Publishing the Freedom’s Journal: As Education,” Freedom’s
Journal, March 16, 1827.
37 Freedom’s Journal, March 16, 1827. Historian Lamont D. Thomas describes this
episode, including critical details about how the Cuffe brothers also had asserted
their Native American identity to avoid tax obligations. Finally, Thomas explains, the
Cuffes were excused only after paying the taxes due. Lamont D. Thomas, Rise to Be a
People: A Biography of Paul Cuffe (Urbana: University of Illinois Press, 1986), 7–12.
38 James Sidbury, Becoming African in America: Race and Nation in the Early Black
Atlantic (New York: Oxford University Press, 2007), 157–79.
174

174 Notes to Pages 23–29

39 “People of Color,” Freedom’s Journal, April 6, 1827.

40 “Hayti, No. III: From the Scrap-Book of Afracanus,” Freedom’s Journal, May 4,
1827, and, “Hayti No. V,” Freedom’s Journal, June 29, 1827.
41 “African Free Schools in the United States,” Freedom’s Journal, June 1, 1827.
42 “Liberia,” Freedom’s Journal, February 14, 1827.
43 S. B., “Colonization Society,” Freedom’s Journal, November 9, 1827.
44 “Travelling Scraps,” Freedom’s Journal, August 15, 1828.
45 Ibid.
46 By 1664 Maryland had introduced race or color terms into its laws. Jeffrey
R. Brackett, The Negro in Maryland: A Study of the Institution of Slavery
(Baltimore: Johns Hopkins University Press, 1889), 28–30.
47 Peter M. Bergman and Jean McCarroll, The Negro in the Congressional Record,
1789–1801 (New York: Bergman Publishers, 1969), 41. Congress would authorize
similar distinctions in anticipation of the 1800 census. Ibid., 276–77.
48 Ibid., 11, 29.
49 Ibid., 13–14, 42, 81; also 9 (1802), 26 (1803).
50 The Code Noir of 1685 regulated slavery in France’s colonial empire. Malick W.
Ghachem, The Old Regime and the Haitian Revolution (New York: Cambridge
University Press, 2012), and Vernon V. Palmer, Through the Codes Darkly: Slave
Law and Civil Law in Louisiana (Clark, NJ: Lawbook Exchange, 2012).
51 David S. Bogen, “The Maryland Context of ‘Dred Scott’: The Decline in the
Legal Status of Maryland Free Blacks, 1776–1810,” American Journal of Legal
History 34, no. 4 (1990): 381–411. James M. Wright, The Free Negro in Maryland,
Columbia University Studies in the Social Sciences 97 (New York: Columbia
University, 1921), 1–319. Ira Berlin, Slaves Without Masters: The Free Negro in
the Antebellum South (New York: Pantheon, 1975).
52 Bogen, “Maryland Context of ‘Dred Scott.’ ”
53 State v. Fisher, 1 H&J 750 (Maryland, 1805). In the 1810 case of Rusk v. Sowerwine
there was evidence that in other instances black witnesses were testifying against
the interests of white parties, although in that case, a freedom suit, the court
disallowed the testimony of a free black woman. Rusk v. Sowerwine, 3H&J 97
(Maryland, 1810).
54 Brackett, Negro in Maryland.
55 Ibid.; Bogen, “Maryland Context of ‘Dred Scott.’ ”
56 “Restriction of Slavery,” 16th Cong., 2d Sess., 37 Annals of Cong. 23 (November
22, 1820).
57 “Admission of Missouri,” 16th Cong., 2d Sess., 37 Annals of Cong. 79–80
(December 9, 1820).
58 Ibid., 31–32 (December 4, 1820).
59 Ibid., 45–48 (December 7, 1820).
60 Ibid., 517–30 (December 7, 1820).
61 Ibid., 570 (December 8, 1820).
62 Ibid., 598 (December 11, 1820).
63 Ibid., 624 (December 12, 1820).
64 Enslaved people accounted for another 10,000 black people in New York. The
state would not abolish slavery until 1827.
65 Nathaniel H. Carter, William L. Stone, and Marcus T. C. Gould, Reports of
the Proceedings and Debates of the Convention of 1821, Assembled for the
175

Notes to Pages 30–32 175

Purpose of Amending the Constitution of the State of New York: Containing

All the Official Documents, Relating to the Subject, and Other Valuable Matter
(Albany: E. and E. Hosford, 1821). Paul J. Polgar, “ ‘Whenever They Judge It
Expedient’: The Politics of Partisanship and Free Black Voting Rights in Early
National New York,” American Nineteenth Century History 12, no. 1 (March
2011): 1–23. Polgar argues that it was disagreement among New York’s political
factions, not race per se, that led to the state’s nearly complete disfranchisement
of black men in 1821.
66 James Kent, Commentaries on American Law, 8th ed. (New York: W. Kent, 1854),
281–82.
67 “Gilbert Horton,” Baltimore Gazette and Daily Advertiser, October 2, 1826, and
“Case of Horton,” Cabinet (Schenectady, NY), October 4, 1826.
68 “City of Washington,” Freedom’s Journal, November 16, 1827.
69 On slavery in upstate New York, see Edgar J. McManus, A History of Negro
Slavery in New York (Syracuse, NY: Syracuse University Press, 2001).
70 Girls were bound to serve until the age of twenty-five, boys until twenty-eight. “An
Act for the Gradual Abolition of Slavery,” March 29, 1799, in Laws of the State of
New-York, Passed at the Twenty-Second Meeting of the Legislature Begun . . . the
Second Day of January, 1799 (Albany, 1799), 721–23.
71 The owner was States Dyckman. James Thomas Flexner, States Dyckman: American
Loyalist (New York: Fordham University Press, 1992).
72 Commercial Advertiser (New York), August 23 and September 2, 1826.
73 National Intelligencer, August 1, 1826.
74 “Text,” Massachusetts Spy (Worcester), August 16, 1826 (reprinted from the
Connecticut Herald).
75 Boston Traveler, August 22, 1826 (reprinted from the National Intelligencer).
76 “Case of Gilbert Horton,” Commercial Advertiser (New York), August 23, 1826.
77 “Case of Gilbert Horton,” New-York Daily Advertiser, August 25, 1826.
78 “Case of Gilbert Horton,” Commercial Advertiser. By 1828, Green was a justice of
the peace in nearby Bedford, New York.
79 “Westchester County,” Commercial Advertiser (New York), August 25, 1836. The
USS Macedonian was a naval frigate that departed Norfolk, Virginia, on June 11,
1826, for a Pacific tour. James T. DeKay, Chronicles of the Frigate Macedonian,
1809–1922 (New York: Norton, 1995).
80 Baltimore Patriot, August 29, 1826. In this report the men who visited Horton
were not named.
81 “The Case of Gilbert Horton,” Commercial Advertiser, September 2, 1826.
82 “The Case of Horton,” Commercial Advertiser (New York) September 28, 1826.
83 Daily National Intelligencer, September 11, 1826. This notice about Horton’s case
was reprinted in the Baltimore Patriot, September 12, 1826.
84 “The Case of Horton,” Commercial Advertiser (New York), September 10, 1826.
85 Bayard Tuckerman, William Jay and the Constitutional Movement for the
Abolition of Slavery (New York: Dodd, Mead, 1894), 33–38. On slavery in the
District of Columbia, see Stanley Harrold, Subversives: Antislavery Community
in Washington, D.C., 1828–1865 (Baton Rouge: Louisiana State University Press,
2003). See William Jay, Miscellaneous Writings on Slavery (Boston: J. P. Jewett
& Co.; Cleveland: Jewett, Proctor, and Worthington, 1853). Stephen R. Budney,
“William Jay (1789–1858),” in Encyclopedia of Antislavery and Abolition, vol.
176

176 Notes to Pages 33–37

2, ed. Peter Hinks and John McKivigan (Westport, CT: Greenwood Press, 2007),
383–85. See also Stephen Kantrowitz, More Than Freedom: Citizenship in a White
Republic, 1829–1889 (New York: Penguin, 2012).
86 “Laws of the District of Columbia,” Gales & Seaton’s [Congressional] Register,
19th Cong., 2nd Sess. (December 26, 1826), 555.
87 Ibid., 556. “Laws of the District of Columbia,” Daily National Intelligencer
(Washington, DC), December 27, 1826.
88 “Laws of the District of Columbia,” Gales & Seaton’s Register, 559.
89 Ibid., 565. “Free Persons of Color, House of Representatives, January 11, 1827,”
Niles’ Weekly Register, January 27, 1827.
90 “Laws of the District of Columbia,” Gales & Seaton’s Register, 566. “Legislative
Acts/Legal Proceedings,” Commercial Advertiser (New York), December 30, 1826.
91 “Free Blacks in the District of Columbia,” Congressional Register, January 11,
1827, 654. “Free Persons of Color,” Niles’ Weekly Register.
92 “Free Persons of Color in Washington,” Alexandria (VA) Gazette, January
13, 1827.
93 Thank you to Kate Masur for sharing her work on the Gilbert Horton case. Kate
Masur, “The Case of Gilbert Horton,” in possession of author.
94 “City of Washington,” Freedom’s Journal, November 16, 1827.
95 At the time of William Jay’s death in 1859, Frederick Douglass recalled in his
eulogy for Jay the role the New York judge had played in Horton’s case and as an
advocate of free black citizenship. “Eulogy of the Late Hon. Wm. Jay.” Douglass’
Monthly, June 1859.
96 “Extracts from ‘Reports of the Proceedings and Debates of the Convention of 1821
Assembled for the Purpose of Amending the Constitution of the State of New-
York.’ By N. S. Carter & W. L. Stone,” Liberator, October 26, 1833, and “Facts
Relative to Slavery in the District of Columbia,” Liberator, May 24, 1834.

2 Threats of Removal
1 Sarah Fanning, Caribbean Crossing: African Americans and the Haitian Emigration
Movement (New York: New York University Press, 2015), 12–13.
2 Robt Prout, “Baltimore Emigration Society,” Genius of Universal Emancipation
(Baltimore), November 1824. On Boyer’s scheme and Granville’s mission, see
Ousmane K. Power-Greene, Against Wind and Tide: The African American Struggle
against the Colonization Movement (New York: New York University Press, 2014),
33–34, and Léon Dénius Pamphile, Haitians and African Americans: A Heritage
of Tragedy and Hope (Gainesville: University of Florida Press, 2001), 42–45. Sara
Fanning emphasizes that central to the Haitian project were ideas about law, specif-
ically about the constitutional establishment of a black nation. Fanning, Caribbean
Crossing.
3 A Colored Baltimorean [William Watkins], “For the Genius of Universal
Emancipation,” Genius of Universal Emancipation (Baltimore), March 3, 1827.
4 C. S. Smith, A History of the African Methodist Episcopal Church (Philadelphia: Book
Concern of the AME Church, 1922), 15.
5 “Minutes and Proceedings of the First Annual Convention of the People of Color,”
Liberator, October 22, 1831. Minutes and Proceedings of the Second Annual
Convention, for the Improvement of the Free People of Color in These United
177

Notes to Pages 37–38 177

States (Philadelphia: The Convention, 1832). Minutes and Proceedings of the

Third Annual Convention, for the Improvement of the Free People of Color in
these United States (New York: The Convention, 1833).
6 “Baltimore Emigration Society,” Genius of Universal Emancipation, November
1824 (reprinted from the American, September 4, 1824).
7 On Raymond generally, see, T. Stephen Whitman, The Price of Freedom: Slavery and
Manumission in Baltimore and Early National Maryland (Lexington: University
Press of Kentucky, 1997), 141–56, and Paul K. Conkin, Prophets of
Prosperity: America’s First Political Economists (Bloomington: Indiana University
Press, 1980), 77–107. Raymond is perhaps best remembered as an early American
political economist. Donald E. Frey, “The Puritan Roots of Daniel Raymond’s
Economics,” History of Political Economy 32, no. 3 (Fall 2000): 607–29.
8 Martha S. Jones,“The Case of Jean Baptiste, un Créole de Saint-Domingue: Narrating
Slavery, Freedom, and the Haitian Revolution in Baltimore City,” in The American
South and the Atlantic World, ed. Brian Ward, Martin Bone, and William A. Link
(Gainesville: University Press of Florida, 2013), 104–28.
9 “Abstract of the Proceedings of the Anti Slavery Society of Maryland,” Providence
Gazette, September 21, 1825. “Anti Slavery Society in Maryland,” Boston Recorder,
September 30, 1825, 159. “Anti-Slave Societies,” Enquirer (Richmond, VA),
October 7, 1825. “Manumission Societies,” Commercial Advertiser (New York),
October 23, 1826.
10 Raymond even edited Lundy’s paper for a time in 1826, when the latter was
on a mission to Haiti. The two disagreed about colonization but remained
associates. Merton L. Dillon, Benjamin Lundy and the Struggle for Negro Freedom
(Urbana: University of Illinois Press, 1966), 89, 99–100 (citing Herbert Aptheker,
ed., A Documentary History of the Negro People of the United States (New York:
Citadel Press, 1968): 100).
11 On Lundy and the Haitian emigration project, see Dillon, Benjamin Lundy,
87–103.
12 The phrase “borders of belonging” is borrowed from historian Barbara Welke, who
explains the dynamics of nineteenth-century citizenship as having been shaped by
the meanings or consequences of race, gender, and ability. For Welke, the history
of citizenship turns on how belonging for some was “achieved through the subor-
dination or exclusion of others.” Barbara Young Welke, Law and the Borders of
Belonging in the Long Nineteenth Century United States (New York: Cambridge
University Press, 2010), 4–5.
13 On African American opposition to colonization, see Julie Winch, A Gentleman
of Color: The Life of James Forten (New York: Oxford University Press,
2002), and Christopher Phillips, “The Dear Name of Home: Resistance to
Colonization in Antebellum Baltimore,” Maryland Historical Magazine 91, no. 2
(1996): 180–202.
14 William Watkins, “Address,” Genius of Universal Emancipation, August 1825.
15 Robert Cowley, “Extracts from a Memorial from the Free People of Color to the
Citizens of Baltimore,” The Speeches of Henry Clay, Delivered in the Congress of
the United States (Philadelphia: Carey & Lea, 1827), 336–38. The same memorial
was first published as “Memorial of the Free People of Colour,” African Repository,
December 1, 1826; and “Memorial of the Free People of Colour,” Genius of
Universal Emancipation, December 16, 1826.
178

178 Notes to Pages 38–39

16 Cowley, “Extracts from a Memorial from the Free People of Color.” Colored
Baltimorean, “For the Genius of Universal Emancipation.” Watkins’s letter first
appeared in the July 6, 1827, issue of Freedom’s Journal. Bettye J. Gardner,
“Opposition to Emigration: A Selected Letter of William Watkins (The Colored
Baltimorean),” Journal of Negro History 67, no. 2 (1982): 155–58.
17 On the distinction between the emigration and colonization movements, see Power-
Greene, Against Wind and Tide. Power-Greene suggests there were important links
“between anticolonization agitation, blacks’ quest for citizenship rights, and the
social reform movements of the nineteenth century.” Ibid., 13.
18 “An Act Relating to the People of Colour in This State,” Maryland Law of 1831,
chap. 281 (passed March 12, 1832). The Ordinances of the Mayor and City
Council of Baltimore (Baltimore: John D. Toy, 1838), 385.
19 “Maryland in Liberia” had been established by the State Colonization Society in
1831. By 1850 the state had expended nearly $300,000 to encourage and facili-
tate the out-migration of African Americans. Just over 1,000 individuals had
made the journey to Africa’s west coast. Christopher Phillips, “The Dear Name
of Home: Resistance to Colonization in Antebellum Baltimore,” Maryland
Historical Magazine 91, no. 2 (1996): 180–202; Penelope Campbell, Maryland in
Africa: The Maryland State Colonization Society, 1831–1857 (Urbana: University
of Illinois Press, 1971); and Aaron Stopak, “The Maryland State Colonization
Society: Independent State Action in the Colonization Movement,” Maryland
Historical Magazine 63, no. 3 (1968): 275–98. My understanding of colonization
has been influenced by the work of Alex Lovit. See Alex Lovit, “ ‘The Bounds of
Habitation’: The Geography of the American Colonization Society, 1816–1860,”
PhD diss., University of Michigan, 2011.
20 David Brion Davis, The Problem of Slavery in the Age of Emancipation
(New York: Alfred A. Knopf, 2014). On colonization, see Lovit, “The Bounds
of Habitation,”; Stopak, “Maryland State Colonization Society”; and Campbell,
Maryland in Africa.
21 Douglass was married to Elizabeth Grice, daughter of Baltimore activist Hezekiah
Grice, and he later became the first black man ordained as a minister in the
Episcopal Church. He would spend most of his adult life leading Philadelphia’s
Saint Thomas African Church. George F. Bragg, “William Douglass,” in Men of
Maryland (Baltimore: Church Advocate Press, 1914), 47–53.
22 “Meeting of the Coloured People in Baltimore,” Genius of Universal Emancipation,
March 1831.
23 “The First Colored Convention,” Anglo-African Magazine, October 1859.
24 One early historian of black Maryland explains that Grice was so closely allied with
Garrison and Lundy that when the two were “mobbed” and run out of Baltimore
for a time, Grice accompanied them, only to later return to the city. Bragg, Men of
Maryland, 60.
25 Grice was a successor to Charles Hackett at Freedom’s Journal. “Authorised
Agents,” Freedom’s Journal, May 2, 1828.
26 James Sidbury, Becoming African in America: Race and Nation in the Early Black
Atlantic (New York: Oxford University Press, 2007).
27 On at least two occasions Lundy took notice of Grice’s work as a mapmaker.
“Colony in Canada,” Genius of Universal Emancipation, August 1830, and
October 1830.
179

Notes to Pages 39–40 179

28 James Sidbury explains that Russwurm stayed with Grice after arriving in
Baltimore from New York, on his way to Liberia. Sidbury, Becoming African in
America. The two had known each other for some years, at least to the extent that
Grice had been the Baltimore agent for Russwurm’s newspaper, Freedom’s Journal.
Jacqueline Bacon, Freedom’s Journal: The First African American Newspaper
(Lanham, MD: Lexington Books, 2007), 260. Also on Russwurm, see Winston
James, The Struggles of John Brown Russwurm: The Life and Writings of a Pan-
Africanist Pioneer, 1799–1851 (New York: New York University Press, 2010).
29 Sidbury, Becoming African in America; Juliet E. K. Walker, History of Black
Business in America: Capitalism, Race, Entrepreneurship (Chapel Hill: University
of North Carolina Press, 2009); Ira Berlin, Slaves without Masters: The Free Negro
in the Antebellum South (New York: Pantheon, 1975). Grice’s network extended
beyond local circles: for example, he advised Boston’s David Walker about his
incendiary Appeal to the Colored Citizens of the World before its publication
in 1829.
30 Bettye J. Gardner, “William Watkins: Antebellum Black Teacher and Writer,”
Negro History Bulletin 39, no. 6 (1976): 623–24; Jacqueline Bacon, Freedom’s
Journal, 261. Watkins would, by the 1850s, change his view and migrate to
Canada, following his niece, journalist Frances Ellen Watkins Harper. Frances Ellen
Watkins Harper and Frances Smith Foster, A Brighter Coming Day: A Frances
Ellen Watkins Harper Reader (New York, New York: Feminist Press, 1990).
By the 1830s, Watkins would come to be known for his antislavery and anti-
colonizationist politics. Bettye J. Gardner, “Opposition to Emigration, A Selected
Letter of William Watkins (The Colored Baltimorean),” Journal of Negro History
67, no. 2 (1982): 155–58.
31 Deaver also considered the prospect of emigration to Canada in the late 1820s.
“Colony in Canada,” Genius of Universal Emancipation, August 1830. Deaver
appears in the 1822–23 and 1831 city directories as a rope maker. The Baltimore
Directory of 1822 & 1823 (Baltimore: R. J. Matchett, 1822), 74, and Matchett’s
Baltimore Director, Corrected Up to June, 1831 ([Baltimore]: n.p., 1831), 102. The
Friendship Society would later be incorporated by AME activists led by Richard
Mason. Journal of the Proceedings of the House of Delegates of the State of
Maryland at a December Session Eighteen Hundred and Thirty Eight (Annapolis,
MD: By authority [J. Green, 1839]), 490, 766. Mason joined George Hackett and
Cornelius Thompson in organizing the African American ceremony on the occasion
of the death of black abolitionist, founding editor of Freedom’s Journal, and emi-
grant to Liberia John Russwurm. “Baltimore, February 28, 1852,” National Era,
April 1, 1852.
32 “For the Freedom’s Journal,” Freedom’s Journal, July 27, 1827.
33 “The First Colored Convention,” Anglo-African Magazine, October 1859.
34 Ibid. Historian Kyle Volk credits Grice and the Baltimore-based Legal Rights
Association with laying a foundation for the challenges in the 1850s to New York’s
segregated streetcars, brought by that city’s Legal Rights Association. Indeed,
Grice maintained ties to his New York-based friends, including the family of
Elizabeth Jennings, who was a petitioner in the city’s first test case. Kyle G. Volk,
Making Minorities and the Making of American Democracy (New York: Oxford
University Press, 2014), 146–58. Volk explains the Legal Rights Association as
“popular minority rights politics” through which black Americans contributed
180

180 Notes to Pages 40–42

to the nineteenth century’s “theory and practice of democracy.” Volk, Making

Minorities, 2.
35 A Colored Baltimorean, “For the Genius of Universal Emancipation,” Genius of
Universal Emancipation, July 1831.
36 Ibid.
37 See, for example, Leon Litwack and August Meier, eds., Black Leaders of the
Nineteenth Century (Urbana: University of Illinois Press, 1988), 17.
38 See, for example, Leslie M. Alexander, African or American? Black Identity and
Political Activism in New York City, 1784–1861 (Urbana: University of Illinois
Press, 2008).
39 On the 1821 debates in Congress and in the New York state constitutional conven-
tion, see Chapter 1.
40 Minutes and Proceedings of the First Annual Convention of the People of
Colour, Held by Adjournments in the City of Philadelphia, from the Sixth to the
Eleventh of June, Inclusive, 1831 (Philadelphia: Committee of Arrangements,
1831), 4–5.
41 Latrobe’s diary of 1824 notes that he attended a meeting of Baltimore’s Philomethean
Society, during which he debated whether “was it politic to encourage the emigra-
tion of free blacks to Hayti.” Entry of November 30, 1824, John H. B. Latrobe
Diaries, 1824–40, MS 1677, Maryland Historical Society (MHS), Baltimore.
Hereafter, Latrobe Diaries, MHS.
42 John H. B. Latrobe, The Justices’ Practice under the Laws of Maryland (Baltimore: F.
Lucas, 1826).
43 Entry of October 29, 1824, Latrobe Diaries, MHS. John E. Semmes was the first
to write at length about Latrobe’s early years as a lawyer, drawing in large part on
the diaries. He did not mention Latrobe’s work with African American clients. John
E. Semmes, John H. B. Latrobe and His Times, 1803–1891 (Baltimore: Norman,
Remington, 1917).
44 Entry of December 7, 1824, Latrobe Diaries, MHS.
45 Entry of December 8, 1824, Latrobe Diaries, MHS.
46 “In 1827, the city’s mayor Jacob Small ordered the night watch to arrest African
Americans out past eleven o’clock at night who could not provide a pass from
a white person. Three years later, Small was still complaining about the ‘hords
[sic] of colored persons . . . swarming’ in the city. In response, he ordered free
blacks home one hour earlier, at ten o’clock instead.” Hilary J. Moss, Schooling
Citizens: The Struggle for African American Education in Antebellum America
(Chicago: University of Chicago Press, 2000), 90. Moss cites “Baltimore Justice!”
Freedom’s Journal, August 3, 1827, and Jacob Small, “Night Watch,” Baltimore
Patriot and Mercantile Advertiser, August 27, 1830.
47 “Baltimore Justice!”
48 “Watkins a colored man called to know whether the mayor’s proclamation ordering
the colored people to be taken up after 11 o’clock pm was constitutional.” Entry of
July 21, 1827. Latrobe Diaries, MHS.
49 Entry of July 23, 1827. Latrobe Diaries, MHS.
50 Entry of February 3, 1828. Latrobe Diaries, MHS. (“Received from Hezekiah
Grice, on account. $5.00.”)
51 “Wirt Wm. Counselor at law, 284 Baltimore E of Eutaw,” Matchett’s Baltimore
Director, Corrected Up to June 1831 (Baltimore: n.p., 1831), 398.
181

Notes to Pages 42–43 181

52 An 1831 city directory reports Wirt as a “counsellor at law” at 264 Baltimore, east
of Eutaw, and Grice as a “dealer in ice,” at Aisquith Street near Orleans. Matchett’s
Baltimore Director, 155. Wirt has not been the subject of a book-length study in
more than 150 years. A brief biography can be found in Galen N. Thorp, “William
Wirt,” Journal of Supreme Court History 33, no. 3 (2008): 223–303.
53 William Wirt, The Letters of a British Spy: Originally Published in the Virginia
Argus, in August and September 1803 (Richmond: Samuel Pleasants Jr., 1803),
and The Rainbow; First Series: Originally Published in the Richmond Enquirer
(Richmond, VA: Ritchie & Worsley, 1804). Wirt would later publish The Life and
Character of Patrick Henry (New York: McElrath, Bangs, 1833).
54 17 U.S. 316 (1819) and 22 U.S. 1 (1824). William Wirt, “Rights of Free Virginia
Negroes,” in Official Opinions of the Attorneys General of the United States,
Advising the President and Heads of Departments in Relation to Their Official
Duties, ed. Benjamin F. Hall (Washington, DC: Robert Farnham, 1852): 506–9.
55 Thorp, “William Wirt.”
56 Wirt, “Rights of Free Virginia Negroes.”
57 Ibid.
58 William Wirt, “Validity of the South Carolina Police Bill,” in Opinions of the
Attorneys General of the United States, 659–61. Subsequent to Wirt’s ruling,
Southern states began to impose “Negro seamen acts” that required black sailors
remain confined aboard ship or in the local jail when in port. While Wirt disapproved
of such laws as unconstitutional, courts took the opposite view and approved them.
Philip M. Hamer, “Great Britain, the United States, and the Negro Seamen Acts,
1822–1848,” Journal of Southern History 1, no. 1 (February 1935): 3–28, and
Michael Schoeppner, “Legitimating Quarantine: Moral Contagions, the Commerce
Clause, and the Limits of Gibbons v. Ogden,” Journal of Southern Legal History
17, nos. 1/2 (2009): 81–120. On the strife that surrounded the important work of
African American coastal pilots, see Maurice Melton, “African American Maritime
Pilots in the South Atlantic Shipping Trade, 1640–1865,” Journal of the Georgia
Association of Historians 27 (2007/2008): 1–26.
59 Patent Act of 1793, Ch. 11, 1 Stat. 318 (Feb. 21, 1793). After 1800, a small opening
was created for aliens who had been two years in residence in the United States. Act
of April 17, 1800, Ch. 25, 2 Stat. 37 (1800).
60 “Thomas J. Jennings,” Anglo-African Magazine, April 1859, 126–27.
61 Jennings is credited with being the first African American granted a United States
patent. His Class III patent for “cloth, scouring” was granted in 1821. Digest of
Patents, Issued by the United States, from 1790 to January 1, 1839 (Washington,
DC: Peter Force, 1840), 89.
62 William Wirt, “The Right of the Cherokees to Impose Taxes on Traders (April 2,
1824),” in Opinions of the Attorneys General of the United States, ed. Benjamin
F. Hall (Washington: Robert Farnham, 1852), 645–53. Jill Norgren, “Lawyers and
the Legal Business of the Cherokee Republic in Courts of the United States, 1829–
1835,” Law and History Review 10, no. 2 (Autumn 1992): 235–314.
63 30 U.S. 1 (1831) and 31 U.S. 515 (1832), respectively.
64 Norgren, “Lawyers and the Legal Business of the Cherokee Republic.” Having
negotiated a fee with the Cherokee, Wirt and his cocounsel, John Sergeant, were
falsely derided for having charged the Cherokee $10,000. “Party Integrity,”
Liberator, January 28, 1832.
182

182 Notes to Pages 43–45

65 Historian Nicholas Guyatt looks at this period and concludes that there was more
than an analogy at play. Between proponents of Indian removal and advocates
of African American colonization ran a common thread: “benevolent coloniza-
tion.” In both cases, proponents sought a separation of the races to relieve their
discomfort with sharing the nation with nonwhites, and through which, it was
argued, nonwhites might demonstrate their capacity for “civilization” was equal to
that of white Americans. Guyatt explains how some proponents of Indian removal
argued that if native people were removed to unorganized western territories and
established a colony, they might gain citizenship through the same territorial pro-
cess that enfranchised white settlers. Nicholas Guyatt, “ ‘The Outskirts of Our
Happiness’: Race and the Lure of Colonization in the Early Republic,” Journal of
American History 95, no. 4 (March 2009): 986–1011.
66 “A Voice from Baltimore,” Liberator, April 2, 1831, 54. Garrison published this
missive to evidence the degree to which free men and women of color rejected the
logic of colonization.
67 “Report,” Liberator, March 12, 1831, 42.
68 “An Address to the Citizens of New York,” Liberator, February 12, 1831 (emphasis
added). Garrison reprinted these remarks from an anti-colonization pamphlet,
Resolutions of the People of Color, at a Meeting Held on the 25th of January, 1831
(New York: n.p., 1831).
69 “Miscellaneous: The United States, The State of Georgia, and the Cherokees,”
Liberator, July 9, 1831; “Miscellaneous: Speech of Mr. Wirt in the Cherokee Case,”
Liberator, July 16, 1831.
70 Norgren, “Lawyers and the Legal Business of the Cherokee Republic.”
71 “The First Colored Convention,” 309.
72 John Tyson authored a biography of his uncle that was printed by none other than
Benjamin Lundy. John Shoemaker Tyson, Life of Elisha Tyson, The Philanthropist
(Baltimore: B. Lundy, 1825).
73 “The First Colored Convention,” 309.
74 Evidence for this overview of Wirt’s practice is from the William Wirt Papers,
1802–58, MSS46110, Library of Congress, Washington, DC.
75 “The First Colored Convention,” 309.
76 Norgren, “Lawyers and the Legal Business of the Cherokee Republic.”
77 “Minutes of the American Convention,” Freedom’s Journal, February 1,
1828 (reprint from the Genius of Universal Emancipation). “Horace Binney,”
Proceedings of the American Academy of Arts and Sciences 11 (May 1875–May
1876): 351–56. Horace Binney, The Alienigenae of the United States under the
Present Naturalization Laws (Philadelphia: C. Sherman, 1853). Binney’s expertise
on questions of US citizenship would be established only decades later when he
successfully advocated that the Senate recognize that children of citizens born out-
side of the United States were themselves citizens.
78 This body, at its 1828 meeting, endorsed colonization and called for the aboli-
tion of slavery in the District of Columbia. The Maryland delegates to the con-
vention were Benjamin Lundy and Daniel Raymond. Peter Jay, Raymond, and
Binney served as counselors to the convention. “Minutes, etc., of the American
Convention,” Freedom’s Journal, February 1, 1828.
79 Historian Richard Newman explains that Richard Allen, head of Philadelphia’s
AME Church, wrote to his friend Daniel Coker indicating that “his lawyers were
183

Notes to Pages 45–46 183

great,” and urging Coker to “relay this story as much as you can.” It was one
that likely made its way to activists in Baltimore. Newman, Freedom’s Prophet,
166–69. Grice and Allen knew each other as far back as 1830, at least, when they
collaborated on the first colored convention. Their association likely extended fur-
ther back than that. Ibid., 269.
80 “The First Colored Convention.”
81 Sergeant also opposed the admission of Missouri as a slave state, during a
congressional debate. John Sergeant, “Speech on the Missouri Question,
Delivered in the House of Representatives of the United States, on the Eighth
and Ninth of February, 1820,” in Speeches of John Sergeant of Pennsylvania
(Philadelphia: E. L. Carey & A. Hart, 1832), 185–256. John Sergeant was
trained in law and intermittently served in the Pennsylvania legislature and
Congress between 1805 and 1821. He later became an effective advocate before
the Supreme Court but declined a post to that bench in 1844. He ran for vice
president, sharing the ticket with Henry Clay. Sargeant died in November 1852.
“Obituary for 1852,” Evening Post (New York), December 30, 1852. “The Late
Honorable John Sergeant, of Philadelphia,” American Law Register 1, no. 4
(February 1853): 193–98.
82 “The First Colored Convention.”
83 “At an Annual Election of the Pennsylvania Abolition Society,” Freedom’s
Journal, January 11, 1828. Historian Richard Newman explains how a formid-
able cadre of lawyers, including Sergeant, dominated the work of the Pennsylvania
Abolition Society. Richard S. Newman, The Transformation of American
Abolitionism: Fighting Slavery in the Early Republic (Chapel Hill: University of
North Carolina Press, 2002).
84 William R. Leslie, “The Pennsylvania Fugitive Slave Act of 1826,” Journal of
Southern History 18, no. 4 (November 1952): 429–45, 430, citing Annals of
Cong., 14th Cong., 1st Sess., 1068 (February 27, 1816). For the original reso-
lution, see Minutes of the Proceedings of the Fourteenth American Convention for
Promoting the Abolition of Slavery, and Improving the Condition of the African
Race, assembled at Philadelphia (Philadelphia: W. Brown, 1816).
85 “The Mystery Revealed,” Enquirer (Richmond, VA), November 3, 1826.
86 “The First Colored Convention.”
87 The Turner revolt has been the subject of extensive and at times highly contested
interpretation. For a more recent view of the case, see Patrick H. Breen, The Land
Shall Be Deluged in Blood: A New History of the Nat Turner Revolt (Oxford: Oxford
University Press, 2015), and David F. Allmendinger Jr., Nat Turner and the Rising in
Southampton County (Baltimore: Johns Hopkins University Press, 2014). Turner’s
1831 “confessions” were published. Nat Turner, The Confessions of Nat Turner,
ed. Thomas R. Gray (Baltimore: Thomas R. Gray, 1831).
88 Letter, Anonymous to Editors of the Commercial, Chronicle, and Marylander,
September 20, 1831, Item 434. Mayor’s Correspondence, 1831, Baltimore City
Archives, Baltimore (hereafter BCA). Addressed to editors of the city’s newspapers,
this letter was forwarded to the mayor with a note reading, “We have deemed it
proper to send this communication to the Mayor.”
89 Note, November 18, 1831, Item 462, Mayor’s Correspondence, 1831, BCA.
90 Ezekiel Butler to Ben Thomas, September 21, 1831, Item 463, Mayor’s Corre-
spondence, 1831, BCA.
184

184 Notes to Pages 46–52

91 A Colored Baltimorean, “An Able Reply,” Liberator, June 4, 1831.

92 Entry for January 16, 1831, Journal of the Proceedings of the Senate of the State of
Maryland (Annapolis, MD: Wm. McNeir, 1831), 55.
93 Entry for January 16, 1831, in ibid., 55.
94 Entries for February 23, 1831, February 24, 1831, and March 2, 1831, in ibid.,
191, 197, 245.
95 Maryland Laws of 1832, chap. 323, May 14, 1832.
96 H. Jefferson Powell, “Attorney General Taney and the South Carolina Police Bill,”
5 Green Bag 2d (2001): 75–100.
97 Minutes and Proceedings of the Second Annual Convention.
98 Ibid.
99 In 1843 Grice was appointed director of public works in his adopted city. Leon
D. Pamphile, Haitians and African Americans: A Heritage of Tragedy and Hope
(Gainesville: University Press of Florida, 2001). Sara Fanning offers another con-
text for Grice’s migration to Haiti: the Haitian government’s solicitation of black
migrants from the United States and its increasing fears about a conflict between
Haiti and France. On black migration to Haiti, see Sara Fanning, “The Early Roots
of Black Nationalism: Northern African Americans’ Invocations of Haiti in the
Early Nineteenth Century,” Slavery and Abolition 28, no. 1 (April 2007): 61–85,
and Fanning, Caribbean Crossing.

3 Aboard the Constitution

1 A Colored Baltimorean [William Watkins], “For the Genius of Universal
Emancipation,” Genius of Universal Emancipation, July 1831 (published on
July 4). More than twenty years later, in 1852, Frederick Douglass would deliver
his oft-cited speech on the subject, “What to the Slave Is the Fourth of July?”
in Rochester, New York. Frederick Douglass: Selected Speeches and Writings, ed.
Philip S. Foner (Chicago: Lawrence Hill, 1999), 188–206. See James A. Colaisco,
Frederick Douglass and the Fourth of July (New York: Palgrave Macmillan, 2006).
2 In this, Watkins espoused a brand of declarationism that antislavery thinkers,
like Douglass, later adopted. Ken I. Kersch, “Beyond Originalism: Conservative
Declarationism and Constitutional Redemption,” Maryland Law Review 71
(2016): 229–82.
3 Colored Baltimorean, “For the Genius of Universal Emancipation,” July 1831.
4 Ibid.
5 Bettye J. Gardner, “William Watkins: Antebellum Black Teacher and Anti-Slavery
Writer,” Negro History Bulletin, September/October 1976; Bettye J. Gardner,
“Opposition to Emigration: A Selected Letter of William Watkins (The Colored
Baltimorean),” Journal of Negro History 67, no. 2 (1982): 155–58; Bettye Gardner,
“Ante-bellum Black Education in Baltimore,” Maryland Historical Magazine 71,
no. 3 (1976): 360–66. On antebellum black education generally, see Hilary J. Moss,
Schooling Citizens: The Struggle for African American Education in Antebellum
America (Chicago: University of Chicago Press, 2000).
6 William Watkins, Address Delivered before the Moral Reform Society, in
Philadelphia, August 8, 1836 (Philadelphia: Merrihew and Gunn, 1836).
7 Hackett’s first wife, Mary Jane Gilliard, was the daughter of Nicholas Gilliard,
one of Charles Hackett’s lay colleagues in Bethel Church. Christopher Phillips,
185

Notes to Pages 52–53 185

Freedom’s Port: The African American Community of Baltimore, 1790–1860

(Urbana: University of Illinois Press, 1997), 160.
8 “Considerable Excitement,” Sun, June 20, 1837. (“Hackett was thrown into prison
to await further examination.”) “The Bloody Bones,” Sun, June 21, 1837. (“He has
been discharged guiltless; and it’s no pleasant thing to add, that the poor fellow,
who is a very worthy man, lost four or five horses in the flood.”) “Rumors of
Murder,” Liberator, July 14, 1837.
9 W. Jeffrey Bolster, Black Jacks: African American Seamen in the Age of Sail
(Cambridge, MA: Harvard University Press, 1998).
10 Regulations, Circulars, Orders & Decisions, for the Guide of Officers of the Navy
of the United States, Continued in Part and Issued since the Publication Authorized
by the Navy Department in March, 1832 (Washington, DC: C. Alexander, 1851), 6.
11 On the protection certificates and the debates over black mariners generally, see
Philip M. Hamer, “Great Britain, the United States, and the Negro Seamen Acts,
1822–1848,” Journal of Southern History 1, no. 1 (February 1935): 3–28, and
Michael Schoeppner, “Legitimating Quarantine: Moral Contagions, the Commerce
Clause, and the Limits of Gibbons v. Ogden,” Journal of Southern Legal History
17, nos. 1/2 (2009): 81–120. Nathan Perl-Rosenthal explains Seamen’s Protection
Certificates as part of an “unprecedented system for documenting and defending
American citizenship . . . available to all American sailors, regardless of race or
national origin,” between 1796 and 1803. He notes that the language of the
original 1796 legislation deliberately did not bar black seamen from acquiring
certificates. Nathan Perl-Rosenthal, Citizen Sailors: Becoming American in the Age
of Revolution (Cambridge, MA: Harvard University Press, 2015), 13, 183–90.
12 “Evidence Concerning the Effects of Immediate Emancipation,” Colored American,
June 3, 1837. “Resolutions Adopted by the A.A.A. Society,” Colored American,
June 10, 1837. “For the Colored American,” Colored American, October 21, 1837.
13 “Good News: George Davison Released,” Colored American, June 16,
1838. The pamphlet in question was Benjamin Lundy’s The War in Texas
(Philadelphia: Merrihew and Gunn, 1836).
14 “Ohio Memorial: Extract No. 5,” Colored American, April 12, 1838. The pamphlet
referred to was A. Wattles and A. Hopkins, Memorial to the General Assembly of
the State of Ohio (Cincinnati: Pugh & Dodd, 1838), published with the support of
the Ohio Anti-Slavery Society. See Ohio Anti-Slavery Society, Report of the Third
Anniversary of the Ohio Anti-Slavery Society, Held in Granville, Licking County,
Ohio, on the 30th of May, 1838 (Cincinnati: Samuel A. Alley, 1838).
15 Historians of the twentieth century would come to compare more systematically
the regimes of slavery and postslavery societies in the Americas. Still, Hackett’s
example suggests that such a comparison was already taking place as free black
people in the United States surveyed the hemisphere for measures of their status
and strategies for their activism. Frank Tannenbaum’s Slave and Citizen, the Negro
in the Americas remains the touchstone text on this question (New York: Knopf,
1946). Tannenbaum has been importantly revisited by historian Alejandro de la
Fuente in “Slave Law and Claims-Making in Cuba: The Tannenbaum Debate
Revisited,” Law and History Review 22, no. 2 (Summer 2004), 339–69, and “From
Slaves to Citizens? Tannenbaum and the Debates on Slavery, Emancipation, and
Race Relations in Latin America,” International Labor & Working-Class History
77, no. 1 (Spring 2010): 154–73.
186

186 Notes to Pages 53–55

16 On the USS Constitution generally, see Charles E. Brodine Jr., Michael J. Crawford,
and Christine F. Hughes, Interpreting Old Ironsides: An Illustrated Guide to
USS Constitution (Washington, DC: Naval Historical Center, Department of the
Navy, 2007).
17 Alexander Claxton to Francis Sorrell, Norfolk, VA, March 24, 1839, Alexander
Claxton Letters, Southern Historical Collection, University of North Carolina,
Chapel Hill.
18 Ibid.
19 Communipaw [James McCune Smith], “Heads of the Colored People: No. 5: The
Steward,” Frederick Douglass’ Paper, December 24, 1852.
20 Monthly Return of Officers and Crew of the U.S.S. Constitution, January 31,
1841, M1030, Logbooks and Journals of the USS Constitution 1798–1934,
Logbooks of US Navy Ships ca. 1801–1940, Department of the Navy, Office
of the Secretary (1798–09/1947), Record Group 24: Records of the Bureau of
Naval Personnel 1798–2007, National Archives and Records Administration
(NARA), Washington, DC. Hereafter cited as Logbooks and Journals of the USS
Constitution, NARA.
21 Tyrone G. Martin, A Most Fortunate Ship: A Narrative History of Old Ironsides
(Annapolis, MD: Naval Institute Press, 1997).
22 Historian Matthew Rafferty relies on federal circuit and district court records to
recover the centrality of law to daily life aboard US merchant vessels in the half
century before the Civil War. Matthew Rafferty, The Republic Afloat: Law, Honor,
and Citizenship in Maritime America (Chicago: University of Chicago Press, 2013).
23 Henry James Mercier and William Gallop, Life in a Man-of-War, or Scenes in “Old
Ironsides” during Her Cruise in the Pacific, by a Fore-Top-Man (Philadelphia: Lydia
M. Bailey, 1841), 30. Sidney Kaplan explains that Herman Melville borrowed
from Mercier’s text when constructing his black characters. See Sidney Kaplan,
“Herman Melville and the American National Sin: The Meaning of Benito
Cereno,” in American Studies in Black and White: Selected Essays, 1949–1989
(Amherst: University of Massachusetts Press, 1996).
24 Mercier and Gallop, Life in a Man-of-War, 165–70.
25 Entries of December 12 and December 22, 1839, M1030, Logbooks and Journals
of the USS Constitution, NARA.
26 Rules, Regulations, and Instructions for the Naval Service of the United States
(Washington City: K. DeKrafft, 1818).
27 Lieutenant William H. Kennon, “Charges and Specification of Charles
(William Bambury),” December 19, 1839; Lieutenant J. C. Rich, “Charge and
Specification (James Morris),” December 20, 1839; Captain Daniel Turner to
Commodore Alexander Claxton, December 20, 1839, Letterbook of Captain
Daniel Turner, Record Group 45: Naval Records Collection of the Office of
Naval Records and Library, NARA. (Hereafter cited as Letterbook of Captain
Daniel Turner, NARA.)
28 Commodore Alexander Claxton to Captain Daniel Turner, December 22, 1839;
Captain Daniel Turner to Lieutenant T. D. Shaw, December 25, 1839; Captain
Daniel Turner to Lieutenant William Smith, December 25, 1839; Captain Daniel
Turner to Flag Lieutenant Franklin Buchanan, December 25, 1839; Captain Daniel
Turner, “Report of the Court of Inquiry,” December 27, 1839, Letterbook of
Captain Daniel Turner, NARA.
187

Notes to Pages 55–56 187

29 Mercier and Gallop, Life in a Man-of-War, 38. Brodine, Crawford, and Hughes,
Interpreting Old Ironsides, 75.
30 Martin, A Most Fortunate Ship, 257.
31 David Turnbull, Travels in the West: Cuba; with Notice of Porto Rico, and the
Slave Trade (London: Lorgman, Orme, Brown, Green, and Longmans, 1840), 198–
202. Turnbull spent the years 1837–39 in the Caribbean.
32 Wm. A. Gibbs, “A Caution to Travelers in General,” Colored American, October
21, 1837. Jane Landers notes that Gibbs himself had been briefly detained and
interrogated in Matanzas, Cuba, and reported that he was a black carpenter
from New York without a passport. Jane Landers, Atlantic Creoles in the Age of
Revolutions (Cambridge, MA: Harvard University Press, 2011), 218–19 and 317n34.
33 Entry of July 4, 1839, M1030, Logbooks and Journals of the USS Constitution,
NARA.
34 My thanks to Roseanne Adderley for introducing me to her work on the Romney.
The bar against free black sailors in Havana had evolved over the 1830s. Legislation
in 1832 excluded Jamaican freedmen, whom Cuban officials considered a “dan-
gerous class.” After emancipation in the British Caribbean, Cuba extended its pro-
hibition against free blacks’ access to port cities in 1837. Michele Reid-Vazquez,
The Year of the Lash: Free People of Color in Cuba and the Nineteenth-Century
Atlantic World (Athens: University of Georgia Press, 2011), 72–74. Franklin W.
Knight, Slave Society in Cuba during the Nineteenth Century (Madison: University
of Wisconsin – Madison, 1970), 96–97, citing Turnbull, Travels in the West, 70.
Gibbs, “A Caution to Travelers in General.” The Romney dispute would continue
until 1839. Authorities in Madrid qualifiedly conceded admission of the black
sailors into Havana in April 1839. Endless bickering followed. The British charged
that the facilities allotted for the men’s exercise were unsanitary. Locals complained
that the black sailors were arrogant; it was found that the men were being lured
into local homes with alcohol. Sailors were occasionally detained in Havana, and
Spanish officials inspected the Romney to inventory men and equipment. By the
fall of 1839, so much trouble was being generated that the British considered
removing the ship from the port, but only in 1845 did they finally sell the hulk to
the Spanish. David R. Murray, Odious Commerce: Britain, Spain and the Abolition
of the Cuban Slave Trade (Cambridge, MA: Cambridge University Press, 1980),
114–27.
35 Entry of August 28, 1839, M1030, Logbooks and Journals of the USS Constitution,
NARA. Martin, A Most Fortunate Ship, 258.
36 Entries of September 3 and September 4, 1839, M1030, Logbooks and Journals of
the USS Constitution, NARA.
37 Entries of August 28, August 31, September 2, September 6, and September 7,
1839, M1030, Logbooks and Journals of the USS Constitution, NARA.
38 Mary C. Karasch, Slave Life in Rio de Janeiro, 1808–1850 (Princeton, NJ: Princeton
University Press, 1987), 338–42.
39 Herbert S. Klein and Francisco Vidal Luna, Slavery in Brazil (New York: Cambridge
University Press, 2010), 290–92.
40 Captain Daniel Turner to Honorable, the Secretary of the Navy, March 7, 1841,
“Letterbook of Captain Daniel Turner,” NARA. The Colored American noted news
of Claxton’s death. “General Intelligence from the Pacific,” Colored American, June
5, 1841.
188

188 Notes to Pages 57–61

41 Entry of March 3, 1841, M1030, Logbooks and Journals of the USS Constitution,
NARA.
42 Mercier and Gallop, Life in a Man-of-War, 188–89. Captain Daniel Turner to
Captain Isaac McKeever, March 13, 1841, Letterbook of Captain Daniel Turner,
NARA.
43 Entry of March 3, 1841, M1030, Logbooks and Journals of the USS Constitution,
NARA.
44 “Tuesday, 22. Arr. (at the Bar,) ship Ann, Brock, Pac. Ocean, with full cargo (2,400
bbls) sperm oil, to Jared Coffin,” “Shipping News,” Nantucket (MA) Inquirer, June
23, 1842.
45 Lloyd Pratt, “Speech, Print, and Reform on Nantucket,” in A History of the Book
in America, vol. 3: The Industrial Book, 1840–1880, ed. Scott E. Casper, Jeffrey D.
Groves, Stephen W. Nissenbaum, and Michael Winship (Chapel Hill: University of
North Carolina Press, 2009), 392–99. “Agents for this Paper,” Colored American,
September 25, 1841 (Nantucket, MA: E. J. Pompey).
46 “Meeting of Colored Citizens,” Colored American, July 10, 1841.
47 “Maryland’s Colonization Standing Boldly Out,” Colored American, June 19,
1841 (emphasis in the original).
48 Ibid.
49 “A Call for a State Convention to Extend the Elective Franchise,” Colored
American, June 19, 1841. “Great Anti-Colonization Meeting in New York,”
Colored American, June 26, 1841.

4 The City Courthouse

1 Baltimore’s 1842 city directory lists George A. Hackett as a carter, seemingly in
his parents’ home on Gay Street near Aisquith. Matchett’s Baltimore Director, or
Register of Householders (Baltimore: Baltimore Director Office, 1842), 438.
2 On the 1840 emigration to Trinidad, see Christopher Phillips, Freedom’s Port: The
African American Community of Baltimore, 1790–1860 (Urbana: University of
Illinois Press, 1997), 215–20.
3 “Emancipation in the West Indies,” Colored American, August 17, 1839. On
the development of this scheme generally, see Madhavi Kale, Fragments of
Empire: Capital, Slavery, and Indian Indentured Labor in the British Caribbean
(Philadelphia: University of Pennsylvania Press, 2010), 44–48.
4 “Description of the Island of Trinidad, and the Advantages to Be Derived from
Emigration to That Colony,” Colored American, August 31, 1839. This article was
authored by a Mr. Burnley, the Trinidadian government agent.
5 “Our Prospects,” Colored American, September 14, 1839.
6 “Emigration of Free Negroes,” Sun, January 22, 1840.
7 Maryland Laws of 1839, chap. 5.
8 “From Our Correspondent, Annapolis,” Sun, January 29, 1840.
9 Phillips explains that on November 25, 1839, there was a meeting at Bethel Church
to select delegates, at which Peck and Price were selected. Phillips, Freedom’s
Port, 190.
10 “To Emigrants to the British Island of Trinidad,” Sun, April 3, 1840. “Notice to
Emigrants to British Guiana,” Sun, April 3, 1840.
189

Notes to Pages 61–64 189

11 “Trinidad,” Sun, April 4, 1840.

12 “Public Meeting,” Sun, April 15, 1840.
13 “The Return of the Agents from British Guiana and Trinidad,” Sun, April 18, 1840.
14 Report of Messrs. Peck and Price, Who Were Appointed at a Meeting of the Free
Colored People of Baltimore, Held on the 25th November, 1839, Delegates to Visit
British Guiana, and the Island of Trinidad (Baltimore: Woods & Crane, 1840), 11.
15 “Colored Emigrants,” Sun, April 14, 1840.
16 “For Trinidad,” Sun, April 17, 1840.
17 “For Trinidad,” Sun, May 8, 1840.
18 “Another Cargo,” Sun, May 16, 1840.
19 The travel permits for emigrants from Baltimore to Trinidad are included among
miscellaneous court records. Various Travel Permits, 1840, C1-90, Baltimore
County, Baltimore County Court, Miscellaneous Court Papers, MSA.
20 Phillips, Freedom’s Port, 194. “Pursuant to Notice,” Sun, January 1, 1841.
21 “Returning of the Rev. Mr. Hunt to Newark, N.J.,” Colored American, February
13, 1841 (reporting on a January 19, 1841, meeting).
22 As late as November 1841, emigrants were still reported to be sailing out from
Baltimore for Trinidad. “Emigrants to Trinidad,” Sun, November 18, 1841.
23 “For Trinidad,” Colored American, December 4, 1841.
24 Amalgar, “Communication,” Sun, February 4, 1841.
25 Peck and Thomas S. Price, “Counter Statement,” Colored American, May 16, 1840.
26 “Messrs. Peck and Price,” Colored American, November 7, 1840.
27 “Convention of the Colored Inhabitants of the State of New York, August 18–20,
1840,” in Philip S. Foner and George E. Walker, eds., Proceedings of the Black
State Conventions, 1840–1865, vol. 1 (Philadelphia: Temple University Press,
1979), 14–15.
28 Ibid.
29 “New York State Free Suffrage Convention, September 8, 1845,” in Foner and
Walker, Proceedings of the Black State Conventions, 1:39.
30 Ibid., 39–41.
31 Proceedings and Debates of the Convention of the Commonwealth of Pennsylvania,
to Propose Amendments to the Constitution, Commenced and Held at Harrisburg,
on the Second Day of May, 1837, 14 vols. (Harrisburg, PA: Packer, Barrett, and
Parke, 1837–39).
32 Hobbs et al. v. Fogg, 6 Watts 553 (Penn. Supreme Court, 1837).
33 “Minutes of the State Convention of the Coloured Citizens of Pennsylvania,
Convened at Harrisburg, December 13th and 14th, 1848,” in Foner and Walker,
Proceedings of the Black State Conventions, 1:131.
34 “Proceedings and Address of the Coloured Citizens of N.J. Convened at Trenton,
August 21st and 22nd, 1849, for the Purpose of Taking the Initiatory Measures for
Obtaining the Right of Suffrage in This Our Native State,” in Philip S. Foner and
George E. Walker, eds., Proceedings of the Black State Conventions, 1840–1865,
vol. 2 (Philadelphia: Temple University Press, 1980), 4.
35 “Proceedings of the Connecticut State Convention, of Colored Men, Held at New
Haven on the September 12th and 13th, 1849,” in Foner and Walker, Proceedings
of the Black State Conventions, 2:20, 26–28, 31.
36 “Minutes of the State Convention, of the Colored Citizens of the State of Michigan,
Held in the City of Detroit on the 26th and 27th of October 1843, for the Purpose
190

190 Notes to Pages 64–68

of Considering Their Moral and Political Condition, as Citizens of the State,” in

Foner and Walker, Proceedings of the Black State Conventions, 1:181–97.
37 Minutes of the Fifth Annual Convention for the Improvement of the Free People
of Colour in the United States, held by Adjournments, in the Wesley Church,
Philadelphia (Philadelphia: William F. Gibbons, 1835), 6.
38 Maryland Laws of 1841, chap. 272, sections 1 and 2. Index to the Law of
Maryland: From the Year 1838 to the Year 1845, Inclusive (Annapolis, MD: Riley
& Davis, 1846.) This was a supplement to an 1835 law that barred any person
from knowingly taking part in the preparation or circulation of printed or written
materials having a tendency to create discontent among black Marylanders, or to
stir them to insurrection. Jeffrey R. Brackett, The Negro in Maryland: A Study of the
Institution of Slavery (Baltimore: Johns Hopkins University Press, 1889), 224–25.
39 “Agents for the Liberator,” Liberator, March 4, 1831.
40 “Philadelphia Committee,” Colored American, December 9, 1837.
41 “Baltimore City Court,” Sun, August 5, 1844. The record is nearly silent about who
John Pitts may have been. The following winter, a John Pitts was found guilty of
having stolen a piece of red flannel valued at $6. “Balt. City Court,” Sun, February
14, 1845.
42 John H. B. Latrobe and Fielding Lucas, Picture of Baltimore, Containing a
Description of All Objects of Interest in the City and Embellished with Views of
the Principal Public Buildings (Baltimore: F. Lucas Jr., 1832), 81–82. The selection
of Milleman contrasted markedly with the possible choice of the distinguished
architect Benjamin Latrobe, who was also in Baltimore, working on the construc-
tion of the Baltimore Basilica.
43 Silk Buckingham, America, 267–68.
44 Mary P. Ryan, “Democracy Rising: The Monuments of Baltimore, 1809–1842,”
Journal of Urban History 36, no. 2 (2010): 127–50.
45 “Worse and Worse,” Niles’ Weekly Register, February 14, 1835.
46 Court House Commissioners/Repairs, Administrative Records (1835–40), BRG 10,
series 1, BCA. “An Act to Authorize the Repairing of the Court House of Baltimore
County, and for Other Purposes,” Maryland Laws of 1834, chap. 151 (passed, March
9, 1835). “A Supplement to an Act to Authorize the Repairing of the Court House of
Baltimore County, and for Other Purposes, Passed at December Session,” Maryland
Laws of 1824, chap. 151, Maryland Laws of 1837, chap. 24 (January 30, 1838).
47 “Report to the City Council . . .,” December 30, 1850, C2045-3, Baltimore City
and County Jail, Proceedings of Visitors, MSA. African Americans were dispropor-
tionately represented, given that they made up just 17 percent of the city’s overall
population. With a criminal court that sat for four terms per year, this means that
in an average of at least 175 proceedings per term, a black Baltimorean was the
defendant.
48 Ibid. During its July term, the court held 54 jury trials and heard 300 “Saturday
cases” (for assaults, rioting, etc.) over the course of thirty-nine working days.
“Business of the Criminal Court,” Sun, July 11, 1854.
49 “Sale of Convicts,” Sun, July 3, 1858.
50 “Executor’s Sale of a Negro Man,” Sun, August 5, 1858.
51 In re Cornelius Thompson, July 31, 1845, Box 6, 1829–64, Certificates of Freedom,
T629-1, Register of Wills, Baltimore City, MSA.
191

Notes to Pages 68–69 191

52 George W. Williams to Frederick Brune, July 27, 1858, 1853, F. W. Brune (1813–
78), Incoming Letters, Box 5, Brune Family Correspondence, MS 2004, MHS.
53 Article 66, section 50, Immigration of Free Negroes, The Maryland Code: Public
General Laws and Public Local Laws, 1860 (Baltimore: John Murphy & Co.,
1860), 458–60.
54 In re Cornelius Thompson.
55 Perine had been presented with a travel permit application endorsed by Taney
before. Two weeks earlier, a Margaret Price had applied for leave to travel to visit
her family in Pittsburgh. Both Roger and Anne Taney endorsed that application. In
re Margaret Price, July 16, 1845, Box 6, 1829–64, Certificates of Freedom, T629-1,
Baltimore City, Register of Wills, 1829–64, MSA.
56 In re Samuel Brown, June 23, 1845; In re Robert Murray, June 25, 1845; In re
Erastus Briscoe, June 25, 1845; In re John Briscoe, June 25, 1845; In re James
Anderson, June 25, 1845; In re Alfred Booth, July 2, 1845; In re Perry Thomas,
July 9, 1845; In re Albert Hardy, July 19, 1845; and In re John B. Bailey, August 11,
1845, Box 6, 1829–64, Certificates of Freedom, T629-1, Baltimore City, Register of
Wills, 1829–64, MSA. Perine also accepted an application from Sarah Pelton dated
June 4, 1845, indicating that Pelton expected to accompany Mr. and Mrs. Nelson
Clarks “for their purpose of visiting some of the watering places.” In re Sarah
Pelton, June 4, 1845, ibid.
57 Taney had manumitted his own slaves years earlier, also demanding that some
of them serve him for a term of years in exchange for their manumission. On
Taney’s manumission of his slaves, see Timothy S. Huebner, “Roger B. Taney and
the Slavery Issue: Looking Beyond – and Before – Dred Scott,” Journal of American
History 97, no. 1 (June 2010): 17–38. Huebner notes that Taney’s slaves then
served him for a term of years as compensation for their liberty. Thompson appears
to have met his obligation by working for Taney at least five years. He is referred
to by name in one of Taney’s letters to his son-in-law in June 1837. Roger B. Taney
to J. Mason Campbell, June 2, 1837, Howard Papers, MSA.
58 Taney was likely suggesting this strategy in response to an 1831 state law that
provided that slaves manumitted in Maryland should be referred to the Maryland
Colonization Society and removed to Liberia. Should such freed persons refuse to
be so removed, the society was authorized to remove them to a proper place where
they would be willing to go and could to secure the assistance of the local sheriff if
necessary. Maryland Laws of 1831, chap. 281. Historian Jeffrey R. Brackett notes
that the law was not widely enforced, although Taney and Thompson would not
have known that in 1832. Brackett, The Negro in Maryland, 165–66.
59 Roger B. Taney to William L. Beall, April 1832, and Taney to Beall, February 24,
1831, Mary L. Urner Collection, MSC5818, MSA. Thompson’s obituary notes that
he “passed many years with the family of the Chief Justice, having accompanied
him when he went to Washington as a member of the cabinet, and continued with
him there the whole period of his stay.” Baltimore Sun, April 16, 1855.
60 Taney references relying on Thompson to bring cigars from Baltimore to him in
Washington in an 1837 letter to his son-in-law J. Mason Campbell. Roger B. Taney
to J. Mason Campbell, January 2, 1837, Box 20, J. M. Campbell Papers, MS
469, MHS.
61 Carl Brent Swisher, Roger B. Taney (New York: Macmillan, 1935), 518.
192

192 Notes to Pages 70–73

62 “Obituary of Cornelius Thompson,” Sun, April 16, 1855. Matchett’s Baltimore

Director, for 1849–50 (Baltimore: R. J. Matchett, 1849), 15.

5 Between the Constitution and the Discipline

of the Church
1 The church was formally incorporated as Bethel African Methodist Episcopal
Church, sometimes also referred to as Saratoga Street Bethel AME Church. This
chapter adopts the commonly used moniker Bethel Church.
2 H., “A Card to the Public,” Sun, March 2, 1849.
3 Bishop Daniel Alexander Payne, Recollections of Seventy Years, ed. C. S. Smith
(Nashville, TN: Publishing House of the AME Sunday School Union, 1888), 92.
4 Historian Gary Browne explains that just twenty churches had gradually been
established in Baltimore from the colonial period through 1815. Then, between
1816 and 1830, sixteen new congregations appeared. In addition, thirteen Bible,
missionary, and tract societies sprang up in the 1820s that had not existed before.
By 1830, religion, as defined institutionally, played a greater role in the life of
the community than ever before. Gary Lawson Browne, Baltimore in the Nation,
1789–1861 (Chapel Hill: University of North Carolina Press, 1980), 102.
5 Carol V. R. George, Segregated Sabbaths: Richard Allen and the Rise of Independent
Black Churches: 1760–1840 (New York: Oxford University Press, 1973), and
Richard S. Newman, Freedom’s Prophet: Bishop Richard Allen, the AME Church,
and the Black Founding Fathers (New York: New York University Press, 2009).
6 Jeffrey R. Brackett, The Negro in Maryland: A Study of the Institution of Slavery
(Baltimore: Johns Hopkins University, 1889).
7 Conditions in Baltimore add to our understanding of how independent black churches
fared in Southern cities. In Charleston, Richmond, and Saint Louis, in contrast, they
were subjected to expulsion or the close supervision of white authorities. Nicholas
May, “Holy Rebellion: Religious Assembly Laws in Antebellum South Carolina
and Virginia,” American Journal of Legal History 49, no. 3 (July 2007): 237–56;
and Ira Berlin, Slaves without Masters: The Free Negro in the Antebellum South
(New York: Pantheon, 1975), 73. Berlin points out that while black Methodists
failed to “penetrate much beyond Maryland,” in Savannah three black Baptist
congregations were in place by 1812. On free black churches in the South gener-
ally, see ibid., 70–78. Christopher Phillips, Freedom’s Port: The African American
Community of Baltimore, 1790–1860 (Urbana: University of Illinois Press, 1997).
On black laws see Stephen Middleton, The Black Laws: Race and the Legal Process
in Early Ohio (Athens: Ohio University Press, 2005). Jeffrey Brackett chronicled
Maryland’s black laws in his 1899 study. Brackett, The Negro in Maryland.
8 Few of Baltimore’s black churches have been the subjects of extended study,
though church historians have chronicled their evolution. See, for example, George
Freeman Bragg, History of the Afro-American Group of the Episcopal Church
(Baltimore: Church Advocate Press, 1922); Mechal Sobel, Trabelin’ On: The Slave
Journey to an Afro-Baptist Faith (Princeton, NJ: Princeton University Press, 1988);
A. Briscoe Koger, Negro Baptists of Maryland (Baltimore: n.p., 1946).
9 Such encounters were not always mutually respectful. From time to time there
were complaints lodged against black congregations for the noise generated in and
193

Notes to Pages 73–76 193

outside of their sanctuaries. “Wholesale Arrest,” Sun, August 24, 1857. “Rioting
at a Fair,” Sun, December 18, 1857. See also (on “obstructing the foot pavement”)
Sun, August 3 and October 12, 1858; August 9, 1859.
10 On legal consciousness, see Hendrik Hartog, “The Constitution of Aspiration
and ‘The Rights That Belong to Us All,’ ” Journal of American History 74,
no. 3 (December 1987): 1013–34, and Michael Grossberg, A Judgment for
Solomon: The d’Hauteville Case and Legal Experience in Antebellum America
(New York: Cambridge University Press, 1996).
11 Incorporated as the Colored Independent Wesleyan Methodist Church, in this
chapter I use its common name Zion Church when referring to the congregation.
12 “An ACT to Incorporate Certain Persons in Every Christian Church or
Congregation in This State,” Maryland Laws of 1802, chap. 111 (passed January
8, 1803).
13 “Incorporation of the First Colored Independent Wesleyan Methodist Society of
the City of Baltimore,” January 8, 1842, Liber TK 64/414, 134, CM143, Charter
Records, Baltimore County Court, MSA.
14 Matchett’s Baltimore Director, or Register of Householders (Baltimore: Baltimore
Director Office, 1842), 460.
15 For an insightful perspective on the incorporation of African American churches
in Philadelphia, see Sarah Barringer Gordon, “The African Supplement: Religion,
Race, and Corporate Law in Early National America,” William and Mary Quarterly
72, no. 3 (July 2015): 385–422.
16 “Notice,” Baltimore Patriot, June 13, 1829. By 1850 Ridgeway had remarried and
headed a household that included his second wife, Rebecca, and four children.
“Henry Ridgeway,” Dwelling No. 43, Family No. 58, Ward 15, Baltimore City,
Maryland, Seventh Census of the United States, 1850, NARA.
17 “Caution,” Sun, April 18, 1839. Purnell’s wife may indeed have had cause to
abandon him. Some months after warning creditors against Matilda, Purnell was
arrested for being drunk and disorderly. “Watch Returns,” Sun, December 9, 1839.
Sometimes legal lessons came by way of criminal proceedings.
18 The installments were detailed as 116 dollars and 66⅔ cents, plus interest, payable
on January 30 and July 30, 1845, and January 20, 1846. James Bush v. Trustees,
September 14, 1846, Chancery Papers, C295-3433, C240, Baltimore County,
Baltimore County Court, MSA.
19 Ibid.
20 “Further Examination,” Sun, July 16, 1846.
21 “City Court,” Sun, October 10, 1846.
22 J. Thomas Scharf, History of Baltimore City and County (Philadelphia: Louis
H. Everts, 1881): 437–41.
23 Slave trading in Baltimore has been explored elsewhere through the example of
Austin Woolfolk, who continued to trade in slaves after Purvis moved on to specu-
lation in real estate. See William Calderhead, “The Role of the Professional Slave
Trader in a Slave Economy: Austin Woolfolk, a Case Study,” Civil War History
23 (September 1977): 195–211. On the border-state slave trade generally, also see
William Calderhead, “How Extensive Was the Border State Slave Trade?” Civil
War History 18 (March 1972): 42–55.
24 James Bush v. Trustees. “Sales at the Exchange,” Sun, October 13, 1846.
194

194 Notes to Pages 77–79

25 See, for example, “Cash in Market,” Baltimore Patriot & Mercantile Advertiser,
November 26, 1831.
26 Jonathan B. Pritchett, “The Interregional Slave Trade and the Selection of Slaves
for the New Orleans Market,” Journal of Interdisciplinary History 28, no. 1
(Summer 1997): 57–85. Steven Deyle, Carry Me Back: The Domestic Slave Trade
in American Life (New York: Oxford University Press, 2006).
27 “Baltimore Female College,” Sun, February 28, 1849. “The House of Refuge,” Sun,
March 3, 1855.
28 Lawrence H. Mamiya, “A Social History of the Bethel African Methodist Episcopal
Church in Baltimore: The House of God and the Struggle for Freedom,” in
American Congregations, vol. 1: Portraits of Twelve Religious Communities, ed.
James P. Wind and James W. Lewis (Chicago: University of Chicago Press, 1994),
221–92.
29 A significant number of black congregants remained in the white-led church
and eventually founded another separate congregation. J. Gordon Melton,
“African American Methodism in the M.E. Tradition: The Case of Sharp Street
(Baltimore),” North Star: A Journal of African American Religious History 8, no. 2
(January 2005).
30 Here, the emergence of black Methodism in Baltimore differs from that in border-
state cities such as Saint Louis, Missouri. African American congregations did
not emerge in Saint Louis until the church’s 1844 schism over slavery. See Lucas
P. Volkman, “Church Property Disputes, Religious Freedom, and the Ordeal of
African American Methodists in Antebellum St. Louis: Farrar v. Finney (1855),”
Journal of Law & Religion 27 (2011–12): 83–139.
31 “The Constitution of the African Methodist Bethel Church of the City of Baltimore,”
April 7, 1816, Liber WG 20/83, 21, Charter Records, Baltimore County Court, CM
143, MSA.
32 “Amendments to the Constitution of the African Methodist Bethel Society or
Church in the City of Baltimore,” July 19, 1819, Liber WG 24/33, 26–27, CM 143,
Charter Records, Baltimore County Court, MSA.
33 Bethel’s expanding leadership ranks reflected the burgeoning community it
served. In the 1820s Baltimore was home to 10,300 free black people and 4,300
slaves. By 1850, the city’s free black population would be just over 25,000. The
expansion of the Bethel congregation reflected this change; its membership grew
from 633 congregants in 1816 to 1,504 in 1853. M. Ray Della, Jr., “An Analysis
of Baltimore’s Population in the 1850’s,” Maryland Historical Magazine 68, no. 1
(March 1973): 20–35. Mamiya, “Social History of the Bethel AME Church.”
34 “Incorporation of the African Methodist Bethel Church of the City of Baltimore,”
April 3, 1820, Liber WG 25/269, 27–29, Charter Records, Baltimore County
Court, CM 143, MSA. This Constitution or Incorporation Is an Extract from the
Records of the State of Maryland: Printed by Order of the Bethel Church: Present
Elder, The Rev. Edward Waters (Baltimore: Woods and Crane, 1842).
35 Brackett, The Negro in Maryland, 199. This legislation followed a general decline
in the circumstances of free black Marylanders that is most pointedly marked by
their loss of the franchise in 1801. See David S. Bogen, “The Annapolis Poll Books
of 1800 and 1804: African American Voting in the Early Republic,” Maryland
Historical Magazine 86, no. 1 (1991): 57–65, and David S. Bogen, “The Maryland
195

Notes to Pages 79–82 195

Context of ‘Dred Scott’: The Decline in the Legal Status of Maryland Free Blacks,
1776–1810,” American Journal of Legal History 34, no. 4 (1990): 381–411.
36 Brackett, The Negro in Maryland, 200. “A Further Additional Supplement to
the Act, Entitled, A Act Relating to the People of Colour of This State,” Passed
at December session, Maryland Laws of 1831, chap. 281, and Maryland Laws
of 1834, chap. 160, Ordinances of the Mayor and City Council of Baltimore
(Baltimore: John D. Toy, 1838), 462.
37 Brackett, The Negro in Maryland, 203–4. Maryland’s laws generally paralleled
those in South Carolina and Virginia. Nicholas May, “Holy Rebellion: Religious
Assembly Laws in Antebellum South Carolina and Virginia,” American Journal of
Legal History 49, no. 3 (July 2007): 237–56.
38 Brackett, The Negro in Maryland, 206.
39 African Methodist Bethel Church v. Joel P. Carmack, et al., No. 949, Equity Papers
A, Miscellaneous, T53-10, 1857, Baltimore City Circuit Court, Baltimore City,
MSA. African Methodist Bethel Church of the City of Baltimore, The Constitution
or Incorporation: Is an Extract from the Records of the State of Maryland
(Baltimore: Woods and Crane, 1842).
40 Bishop Daniel Alexander Payne, Recollections of Seventy Years, ed. C[harles]
S[pencer] Smith (Nashville, TN: Publishing House of the AME Sunday School
Union, 1888), 92. Historian Christopher Phillips explains how Bethel’s member-
ship roll indicates that a significant chasm erupted in its congregation during the
winter of 1848–49 that led to the expulsion of leaders and laity for “rebellion,”
including the lay minister Nathaniel Peck and four class leaders. Phillips, Freedom’s
Port, 139. These same events are discussed by Barbara Jeanne Fields in Slavery and
Freedom on the Middle Ground: Maryland during the Nineteenth Century (New
Haven, CT: Yale University Press), 76–84.
41 Payne, Recollections, 94.
42 The complainants included Darius Stokes, William H. G. Brown, Alexander
Murray, Henry Braddock, and George A. Hackett, as members of the AME
Church. Bill of Complaint, December 19, 1848, African Methodist Bethel Church
v. Joel P. Carmack, 1857, T53-10, Equity Papers A Miscellaneous, Circuit Court,
Baltimore City, MSA.
43 Ibid.
44 James M. Campbell explains the operation of church-based tribunals in Slavery
on Trial: Race, Class, and Criminal Justice in Antebellum Richmond, Virginia
(Gainesville: University of Florida Press, 2007), 179–85. For a discussion of such
tribunals in Philadelphia’s Mother Bethel AME Church, see Erica Armstrong
Dunbar, A Fragile Freedom: African American Women and Emancipation in the
Antebellum City (New Haven, CT: Yale University Press, 2008).
45 “Melee in a Meeting House,” Sun, March 2, 1849.
46 H., “A Card to the Public,” Sun, March 2, 1849.
47 “Melee in a Meeting House.”
48 Frederick Harris, Joel P. Carmack, Thomas Cook, and Aaron Richfield, “We, the
Undersigned,” Sun, February 28, 1849.
49 H., “A Card to the Public.”
50 Whitman Ridgway explains how Baltimore’s leaders “expressed their views through
letters published in the commercial press.” Whitman H. Ridgway, Community
196

196 Notes to Pages 82–85

Leadership in Maryland, 1790–1840: A Comparative Analysis of Power in Society

(Chapel Hill: University of North Carolina Press, 1979), 76.
51 Complainants’ Exhibit A (March 9, 1849), African Methodist Bethel Church
v. Joel P. Carmack, 1857, T53-10, Equity Papers A Miscellaneous, Circuit Court,
Baltimore City, MSA.
52 The African Methodist Bethel Church of the City of Baltimore v. Joel P. Carmack,
et al., 2 Md. 143 (1849). The chancellor set the matter down for a trial. And his
position on the defendant trustees softened. In November 1849, he dissolved the
injunction that barred Carmack and the others from involvement in church matters.
Chancellor John Johnson, “Order” (November 17, 1849), African Methodist
Bethel Church v. Joel P. Carmack.
53 “Bethel Church Case of Baltimore,” Sun, June 26, 1851.
54 James M. Wright, “The Free Negro in Maryland,” in Columbia University Studies
in the Social Sciences, Issue 97, ed. Faculty of Political Science, Columbia University
(New York: Columbia University, 1921), 1–319, 234.
55 “Committed,” Sun, July 20, 1852. “Inciting a Riot in Church,” Sun, August
10, 1852.
56 “Fatality among Horses,” Sun, November 5, 1852.
57 “Arrested for Receiving Stolen Property,” Sun, October 18, 1865, and “The Case
of Darius Stokes,” Sun, October 21, 1856. Stokes would later sue his San Francisco
church, seeking payment for a promissory note in a case not unlike his Maryland
dispute over lumber charges. “Case of Haskell v. Cornish,” Sun, April 1, 1859.
58 “Assault,” Sun, March 19, 1852.
59 “Laying of a Church Corner-Stone,” Sun, August 21, 1865.
60 This congregation was incorporated under the name Colored People’s First Baptist
Church in the City of Baltimore, referred to in this chapter as First Baptist.
61 “Incorporation of the Colored People’s First Baptist Church in the City of
Baltimore,” Liber TK 57/158, 98–101, CM143/CR39175, Charter Records,
Baltimore County Court, MSA. Clayton and Coates, et al. v. John Carey, John
Atkins, et al., 200.145.4; John Atkins & others v. Moses M. Clayton, Josiah Coates
& others, 200.145.4.4; “Briefs,” S37504, 1853, Court of Appeals; and Moses
M. Clayton, Josiah Coates & others v. John Carey, John Atkins & others, in Docket,
Court of Appeals, S412-5, December 1851–December 1854, MSA.
62 “Articles of Incorporation” (March 6 and March 14, 1837), Clayton v. Carey
(Clayton v. Carey, 4 Md 26, [June 1853]), case no. 4, Briefs, S375-5, 1853, Court
of Appeals, MSA.
63 [The Maryland Union Baptist Association], Sun, October 22, 1841.
64 “Maryland Union Baptist Association,” Sun, November 12, 1844.
65 “$7,000 Raised at Moses Clayton Memorial Heritage Luncheon,” Baltimore Afro-
American, December 8, 1979.
66 In 1841 Clayton reported having lost his pocketbook, which contained his family’s
“free papers” as well as documents that evidenced his ordination in the church.
“Lost in Washington City,” Sun, September 18, 1841.
67 George F. Adams et al., History of Baptist Churches in Maryland Connected with
the Maryland Baptist Union Association (Baltimore: J. F. Weishampel Jr., 1885), 87.
68 “The Return of the Agents from British Guiana and Trinidad,” Sun, April 18, 1840.
Clayton’s church did not host this meeting; Bethel Church was the venue, perhaps
197

Notes to Pages 86–91 197

because it had a larger sanctuary. But Clayton participated in the program, pro-
viding “singing and praying.”
69 “Complaint” (February 14, 1852), Clayton v. Carey, MSA.
70 “ Injunction Dissolution” (April 20, 1852), in Clayton v. Carey, MSA.
71 “Opinion” (Legrand) (June 23, 1853), Clayton v. Carey, MSA.
72 A. Briscoe Koger, Negro Baptists of Maryland (Baltimore: A. B. Koger, 1946).
73 On Davis and Second Baptist, see ibid.; also Mechal Sobel, Trabelin’ On: The Slave
Journey to an Afro-Baptist Faith (Princeton, NJ: Princeton University Press, 1988).
74 Crane’s speech at the opening of the new Second Colored Baptist sanctuary in 1855
is reprinted in Noah Davis, A Narrative of the Life of Rev. Noah Davis, a Colored
Man (Baltimore: John F. Weishampel Jr., 1859).
75 On religious liberty in Maryland generally, see Kenneth Lasson, “Free Exercise in
the Free State: Maryland’s Role in Religious Liberty and the First Amendment,”
Journal of Church and State 31, no. 3 (1989): 419–49; and Kenneth Lasson, “Free
Exercise in the Free State: Maryland’s Role in the Development of First Amendment
Jurisprudence,” University of Baltimore Law Review 18 (Fall 1988): 81–109.
See also Leonard Williams Levy, The Establishment Clause: Religion and the
First Amendment (Chapel Hill: University of North Carolina Press, 1994); Mark
Douglas McGarvie, One Nation under Law: America’s Early National Struggles
to Separate Church and State (DeKalb: Northern Illinois University Press, 2004);
George Petrie, Church and State in Early Maryland (Baltimore: Johns Hopkins
University Press, 1892).

6 By Virtue of Unjust Laws

1 Martin Robinson Delany, The Condition, Elevation, Emigration, and Destiny of
the Colored People of the United States (Philadelphia: published by the author,
1852). On Delany and his text, see Robert S. Levine, Martin Delany, Frederick
Douglass, and the Politics of Representative Identity (Chapel Hill: University of
North Carolina Press, 1997), 58–98.
2 Delany, Condition, Elevation, Emigration, and Destiny, 49–66.
3 Delany’s position with respect to rights reflects what Hendrik Hartog explains as
a constitutional-rights consciousness based on a utopian vision – when African
Americans are wronged there must be a remedy – and a theory of political legit-
imacy in which, to remain legitimate, the state must endorse such rights claims.
Hendrik Hartog, “The Constitution of Aspiration and ‘The Rights That Belong to
Us All,’ ” Journal of American History 74, no. 3 (December 1987): 1013–34.
4 “Address of the Colored National Convention to the People of the United States,”
Proceedings of the National Convention Held in Rochester on the 6th, 7th and 8th
of July, 1853 (Rochester, NY: Frederick Douglass’ Paper, 1853), 7–18.
5 “Address of the Colored National Convention to the People of the United States,”
Proceedings of the National Convention held in Rochester on the 6th, 7th and 8th
of July, 1853, reprinted in Minutes of the Proceedings of the National Conventions,
1830–1864, ed. Howard H. Bell (New York: Arno Press and New York Times,
1969), 25.
6 Ibid., 16.
198

198 Notes to Pages 92–95

7 Article 3, section 43 of the 1851 constitution read, “The Legislature shall not pass
any law abolishing the relation of master or slave, as it now exists in the state.”
Debates and Proceedings of the Maryland Reform Convention to Revise the State
Constitution: To Which Are Prefixed the Bill of Rights and Constitution Adopted,
2 vols. (Annapolis, MD: William N’Neir, 1851), 1:8.
8 Ibid., 1:196. Prior to the adoption of the 1809 state constitution, free men of color
had been eligible to vote and had exercised that in Maryland. See Bogen, “The
Annapolis Poll Books of 1800 and 1804.” Noteworthy here is that the right to vote
was further qualified by citizenship, with eligible voters being limited to those indi-
viduals who were “at the time of the election a citizen of the United States.” This
provision tightly bound the rights of Maryland “residents” to their status as US
citizens.
9 Ibid., 1:196.
10 Ibid., 1:259–60.
11 Ibid., 1:5.
12 Ibid., 2:220–23.
13 Ibid.
14 Ibid. The report included population numbers over time, net increases in popula-
tion by county, ratios of black to white Marylanders, and number of manumissions.
15 Ibid.
16 Ibid.
17 Willa Banks, “Curtis Washington Jacobs: Architect of Absolute Black Enslavement,
1850–1864,” Maryland Historical Magazine 104, no. 2 (Summer 2009): 120–
43. Dustin Meeker, “Curtis W. Jacobs’ Diary and Account Book, 1854–1866,”
Maryland Historical Magazine 106, no. 1 (Spring 2011): 135–35.
18 Debates and Proceedings of the Maryland Reform Convention 2:865–66. J. W.
Harry, in a 1902 analysis of the convention generally, explains that the proceedings
were unnecessarily protracted and, in the final weeks, chaotic. Harry concludes
that the failure to consider Jacobs’s report was tied to earlier debates over art-
icle 21, though his suggestion that the report’s proposed amendments were redun-
dant once article 21 had been amended appears unlikely. While changes to article
21 were intended to make possible the compulsory removal of free black people
from the state, the committee report went more precisely to their rights while they
remained in Maryland, and further introduced a ban on the ownership of real
property, a subject that had never come up during the extensive debates over article
21. James Warner Harry, The Maryland Constitution of 1851 (Baltimore: Johns
Hopkins University Press, 1902).
19 The proceedings of this convention are reprinted in “A Typical Colonization
Convention,” Journal of Negro History 1 (June 1916): 318–38; “The Free
Colored People’s Convention,” Sun, July 29, 1852; “Oppressive Legislation –
Colonization,” National Era, May 27, 1852; and Philip S. Foner and George
E. Walker, eds., Proceedings of the Black State Conventions, 1840–1865, vol. 2
(Philadelphia: Temple University Press, 1980), 42–49.
20 “A Typical Colonization Convention,” 322.
21 “A Typical Colonization Convention.”
22 Ibid.
23 On the colonization movement in Maryland, see Christopher Phillips, “The Dear
Name of Home: Resistance to Colonization in Antebellum Baltimore,” Maryland
199

Notes to Pages 95–97 199

Historical Magazine 91, no. 2 (1996): 180–202; Penelope Campbell, Maryland in

Africa: The Maryland State Colonization Society, 1831–1857 (Urbana: University
of Illinois Press, 1971); and Aaron Stopak, “The Maryland State Colonization
Society: Independent State Action in the Colonization Movement,” Maryland
Historical Magazine 63, no. 3 (1968): 275–98. Alex Lovit, “ ‘The Bounds of
Habitation’: The Geography of the American Colonization Society, 1816–1860,”
PhD diss., University of Michigan, 2011.
24 “A Typical Colonization Convention.” Phillips, “The Dear Name of Home.”
25 Constitution and Laws of Maryland in Liberia with an Appendix of Precedents:
Published by Authority of the Maryland State Colonization Society, 2nd ed.
(Baltimore: John D. Toy, 1847). On the Maryland State Colonization Society’s
Liberia colony generally, see Campbell, Maryland in Africa.
26 A Colored Canadian, “To the Editor,” Frederick Douglass’ Paper, August
26, 1853.
27 C. Christopher Brown, “Maryland’s First Political Convention by and for Its Colored
People,” Maryland Historical Magazine 88, no. 3 (October 1993): 297–325.
28 This episode in Baltimore occurred alongside the broader emergence of an
African American emigration movement in the United States. In the wake of the
Fugitive Slave Act of 1850, many free black Americans doubted their future in the
United States and organized around relocation to Africa, the Caribbean, and else-
where. Floyd J. Miller, The Search for a Black Nationality: Black Emigration and
Colonization, 1787–1863 (Urbana: University of Illinois Press, 1975); Chris Dixon,
African America and Haiti: Emigration and Black Nationalism in the Nineteenth
Century (Westport, CT: Greenwood Press, 2000). Baltimore’s emigration debates
were linked through the city’s connection to men such as William Watkins who,
while living in the North, still wrote for the antislavery press under the moniker
“The Colored Baltimorean.” Bettye J. Gardner, “Opposition to Emigration: A
Selected Letter of William Watkins (The Colored Baltimorean),” Journal of Negro
History 67, no. 2 (1982): 155–58.
29 Hendrik Hartog, “The Public Law of a County Court: Judicial Government in
Eighteenth Century Massachusetts,” American Journal of Legal History 20, no. 4
(October 1976): 282–329, 291.
30 For these insights into the practice and the culture of licensing in Baltimore, I am
deeply indebted to historian Robert Gamble, who generously shared his work
on this subject. Robert J. Gamble, “Civic Economies: Commerce, Regulation,
and Public Space in the Antebellum City,” PhD diss., Johns Hopkins University,
2014.
31 Groves v. Slaughter, 40 U.S. 449 (1841).
32 Also in Moore v. Illinois, the court concluded that whatever restrictions the
commerce clause might impose on the state, no act of the federal legislature could
prohibit the individual states from exercising their police powers and sanctioning
those who imported and harbored fugitives. This was consistent, the court
explained, with the right of the individual states to impose regulations for the
“restraint and punishment of crime, for the preservation of the health and morals
of her citizens, and of the public peace.” Among those who might be properly
excluded pursuant to such legislation were fugitive slaves, paupers, criminals, and
liberated slaves, otherwise known as free African Americans. Moore v. Illinois, 55
U.S. 13 (1852): 18, 11.
200

200 Notes to Pages 97–98

33 Smith v. Turner, 48 U.S. 283 (1849).

34 Smith v. Turner, 472. See Andrew C. Porter, “Comment: Toward a Constitutional
Analysis of the Right to Intrastate Travel,” Northwestern University Law Review 86,
no. 3 (April 1992): 820–1169; Heather E. Reser, “Comment: Airline Terrorism: The
Effect of Tightened Security on the Right to Travel,” Journal of Air Law and
Commerce 63, no 4 (May 1998): 819–49; Christopher S. Maynard, “Note: Nine-
Headed Caesar: The Supreme Court’s Thumbs-Up Approach to the Right to
Travel,” Case Western Reserve Law Review 51, no. 2 (December 2000): 297–352;
Jason S. Alloy, “158-County Banishment in Georgia: Constitutional Implications
under the State Constitutional and the Federal Right to Travel,” Georgia Law
Review 36 (Summer 2002): 1083–108.
35 Smith v. Turner, 647. In the instance of the Passenger Cases, readings of
the decision were especially widespread. The text of the court’s ruling was
disseminated to an unprecedented extent when Congress ordered 10,000 copies
of the decision be reprinted in pamphlet form, an innovation that facilitated
wide reporting on the cases. “Opinions of the Judges of the Supreme Court of
the United States in the Cases of ‘Smith v. Turner’ and ‘Norris v. the City of
Boston,’ ” Southern Quarterly Review 16, no. 32 (January 1850): 444–502.
For one discussion of the significance for nineteenth-century legal culture of
the wide dissemination of the case, see Alfred L. Brophy, “ ‘A Revolution Which
Seeks to Abolish Law, Must End Necessarily in Despotism’: Louisa McCord
and Antebellum Southern Legal Thought,” Cardozo Women’s Law Journal 5,
no. 1 (1998): 33–77.
36 Regarding the relationship between ideas about European immigrants and
African Americans, both enslaved and free, see Gerald L. Neuman, “The Lost
Century of American Immigration Law (1776–1875),” Columbia Law Review
93, no. 8 (December 1993): 1833–1901; Mary S. Bilder, “The Struggle over
Immigration: : Indentured Servants, Slaves, and Articles of Commerce,” Missouri
Law Review 61, no. 4 (1996): 745–819; and Paul Brickner, “The Passenger Cases
(1849): Justice John McLean’s ‘Cherished Policy’ as the First of Three Phases
of American Immigration Law,” Southwestern Journal of Law and Trade in the
Americas 10, no. 1 (2003–2004): 63–80. Another troubled nexus between free
African Americans and travel surfaced in the 1850s around the matter of US
passports. Craig Robertson, The Passport in America: The History of a Document
(New York: Oxford University Press, 2010), and Elizabeth Anne Pryor, Colored
Travelers: Mobility and the Fight for Citizenship before the Civil War (Chapel
Hill: University of North Carolina Press, 2016).
37 On Stump’s impeachment, see Testimony in the Case of Judge Stump, before a Joint
Committee of the Legislature (Maryland General Assembly, Joint Committee of
the Legislature, 1860).
38 “Local Matters [Arrest of Thomas Watkins],” Sun, January 5, 1859.
39 Watkins v. State of Maryland, 14 Md. 412 (1859).
40 In re Thomas M. Watkins, September 5, 1959, T219-2, MSA.
41 “Baltimore Cattle Market,” New York Daily Times, June 27, 1854.
42 “Local Matters: Mortality of Baltimore,” Sun, June 27, 1854.
43 “Local Matters: Fourth of July,” Sun, June 27, 1854.
44 “Proceedings of the City Council,” Sun, June 28, 1854, and “Local Matters: Effects
of the Heat,” Sun, June 29, 1854.
201

Notes to Pages 98–100 201

45 “Local Matters: The Weather,” Sun, June 28, 1854.

46 Alfred Pairpoint, Uncle Sam and His Country; or, Sketches of America, 1854–55–
56 (London: Simpkin, Marshall, 1857), 219–24.
47 Baltimore’s 1848 city directory reports Calhoun as a blacksmith; however, by 1858
he is reported working as a waiter. Matchett’s Baltimore Director, for 1847–8
(Baltimore: R. J. Matchett, 1847), 375, and, John W. Woods,Woods’ Baltimore
Directory, for 1858–59 (Baltimore: John W. Woods, 1858), 445.
48 “Charity Govens,” Dwelling No. 782, Family No. 960, Ward 5, Baltimore,
Maryland, Seventh Census of the United States, 1850, NARA, and, Woods, Woods’
Baltimore Directory, for 1858–59, 452.
49 Letter to the Editor, Frederick Douglass’ Paper, August 26, 1853.
50 “Proceedings in the Courts,” Sun, June 27, 1854.
51 Entry for June 26, 1854, Minutes, 1851–54, T483, Baltimore City, Criminal
Court, MSA.
52 In 1844, the year the statute was enacted, the legislature limited the period
during which free black residents could leave the state for more than thirty days
to May through November. Jeffrey R. Brackett, The Negro in Maryland: A Study
of the Institution of Slavery (Baltimore: Johns Hopkins University Press, 1889),
177, 179.
53 Since 1807 Maryland had barred the entry of free black people into the state.
Ibid., 176.
54 Ibid., 177–83; The Maryland Code: Public General Laws and Public Local Laws,
1860 (Baltimore: John Murphy & Co., 1860). In the early 1850s these strictures
continued to be imposed. “Local Matters: Border Kidnapping,” Sun, June 17, 1852.
As discussed in Neuman, “The Lost Century of Immigration Law,” numerous
Southern states imposed similar restrictions on the movement of free black
residents. Based on his review of the court records, Christopher Phillips reports that
between 1832 and 1845, 1,430 free black Baltimoreans submitted travel permit
applications; just over half, 55 percent, were men, and just over 27 percent signed
with their signatures. Christopher Phillips, Freedom’s Port: The African American
Community of Baltimore, 1790–1860 (Urbana: University of Illinois Press, 1997),
168. These statistics reflect only the surviving permit applications. For example,
few applications for years after 1845 have survived.
55 Brackett, The Negro in Maryland, 175–83.
56 In re Robert Murray (June 28, 1845), In re John Jones (August 12, 1845), In re
Julia Prout (July 15, 1845), In re Harriet Adams (July 9, 1845), In re Ann Boyer
(June 9, 1845), and In re Thomas Watkins (June 6, 1845), Certificates of Freedom
[sic], T629-1, 1829–64, Register of Wills, Baltimore City, MSA.
57 This contrasts with cities like Boston, where black lawyers were in practice. William
Leonard, “Black and Irish Relations in Nineteenth Century Boston: The Interesting
Case of Lawyer Robert Morris,” Historical Journal of Massachusetts 37, no. 1
(Spring 2009): 64–85.
58 For a sense of this less ideological and more transactional relationship to black
litigants, see Eric Foner’s discussions of Abraham Lincoln’s 1840s law practice
in The Fiery Trial: Abraham Lincoln and American Slavery (New York: Norton,
2010), 46–51. Foner compares attorney Lincoln’s relationships with free black
litigants to that of Salmon Chase, whose legal work reflected his ideas about the
rights of slaves and free black men and women. Ibid., 43–46.
202

202 Notes to Pages 100–101

59 T. Stephen Whitman, The Price of Freedom: Slavery and Manumission in

Baltimore and Early National Maryland (Lexington: University Press of Kentucky,
1997), 126.
60 Matchett’s Baltimore Director, 58. Clement Dorsey, The General Public Statutory
Law and Public Local Law of the State of Maryland, from the Year 1692 to 1839
Inclusive: With Annotations Thereto, and a Copious Index (Baltimore: John
D. Toy, 1840), 1530.
61 The Bench and Bar of Maryland: A History, 1634–1901, vol. 2 (New York: Lewis
Publishing, 1901), 489–90. Brown discussed this episode in his 1887 memoir.
George William Brown, Baltimore and the Nineteenth of April, 1861: A Study of
the War, ed. Kevin C. Ruffner (Baltimore: Johns Hopkins University Press, 1887;
2001); Brackett, The Negro in Maryland, 242–46. Just a few years after signing
Calhoun’s application, Brown would be elected mayor of Baltimore.
62 Richard P. Fuke, “Hugh Lennox Bond and Radical Republican Ideology,” Journal
of Southern History 45, no. 4 (November 1979): 569–86. Bond was also among the
leaders of the Baltimore Association for the Moral and Educational Improvement
of the Colored People. Richard P. Fuke, “The Baltimore Association for the Moral
and Educational Improvement of the Colored People, 1864–1870,” Maryland
Historical Magazine 66, no. 4 (Winter 1971): 369–404.
63 Phillips, Freedom’s Port, 233. “George W. Brown,” in The Bench and Bar of
Maryland, 2:484–505. “The Maryland State Colonization Society,” Sun, February
1, 1859.
64 Permit and license holders possessed rights to the extent that court proceedings
provided them the “trump” over competing claims. Of course, such rights depended
on a range of others for their guarantee, and they could be trumped in the future by
a broader public interest. See Hartog, “The Constitution of Aspiration.”
65 Woods’ Baltimore Directory, for 1858–59 (Baltimore: John W. Woods, 1858),
18, 445.
66 Christian Recorder, October 10, 1863. Charity Govan (October 28, 1878), S1483-
1, 1875–80, Index 96, Baltimore City, Maryland Indexes (Death Record, BC,
Index), MSA.
67 Alejandro de la Fuente, “Slave Law and Claims-Making in Cuba: The Tannenbaum
Debate Revisited,” Law and History Review 22 (Summer 2004): 339. Also on
legal claims making, see Rebecca J. Scott, “Reclaiming Gregoria’s Mule: The
Meaning of Freedom in the Arimao and Caunao Valleys, Cienfuegos, Cuba,
1880–1899,” Past & Present [Great Britain] 170 (2001): 181–216. Christopher
Waldrep discovers freed people’s legal agency in the immediate post-emancipation
era in his examination of Black Code-created courts in Mississippi. Christopher
Waldrep, “Substituting Law for the Lash: Emancipation and Legal Formalism in
a Mississippi County Court,” Journal of American History 82, no. 4 (March
1996): 1425–51.
68 “Local Matters: Interesting Question,” Sun, January 4, 1856; “Local Matters:
Magisterial Decision,” Sun, January 5, 1856.
69 “Local Matters: Interesting Question”; “Local Matters: Magisterial Decision.”
In the 1860 census, Harvey is recorded as a thirty-year-old barber with a wife,
Martha, daughter Ellen, seven, and another child, Charles Jackson, also age
seven. “Thomas Harvey,” Dwelling No. 2, Family No. 2, Ward 17, Baltimore
City, Maryland, 1860 US Census, Population Schedule, NARA. In the 1860
203

Notes to Pages 102–104 203

City Directory, he is noted as a barber at 67 Hanover with home on Eutaw

near Henrietta. Woods’ Baltimore City Directory (Baltimore: John W. Woods,
1860), 440.
70 In re Nancy Johnson (October 8, 1856) and In re Peter Bostick (February 24,
1857), Pardon Papers, S1031-15, 1856, Secretary of State, State of Maryland,
MSA. Bostick was pardoned by the governor and continued living in Cecil County
until at least 1860. The fate of Nancy Johnson we do not know. “Peter Bostick,”
Dwelling 1306, Family No. 1396, District 2, County of Cecil, Maryland, 1860 U.S.
Census, Population Schedule, NARA.
71 “Ex-Judge Richard Grason,” Maryland Journal, September 23, 1893.
72 Charles Sumner, during the state’s 1853 constitutional convention, defended a
Massachusetts militia organized without “distinction of color or race.” “On the
Colored Militia,” Frederick Douglass’ Paper, July 15, 1853.
73 See, generally, Jeffrey R. Kerr-Ritchie, “Rehearsal for War: Black Militias in the
Atlantic World,” Slavery and Abolition 25, no. 1 (April 2005): 1–34, for an insightful
overview of black militias. Watkins is quoted from his tract, Our Rights as Men: An
Address Delivered in Boston, before the Legislative Committee on the Militia,
February 24, 1853 (Boston: Benjamin R. Roberts, 1853). Nicholas Johnson argues
that in the antebellum decades there is evidence of a “budding culture of gun own-
ership and a commitment to self-defense” among enslaved and free black people.
Johnson does not, however, consider cases in which guns were held by license.
Nicholas Johnson, Negroes and the Gun: The Black Tradition of Arms (Amherst,
NY: Prometheus Books, 2014). See also “Distinction by Color in a Bill for Classing
the Militia, January 22, 1806, Congressional Globe,” in Peter M. Bergman and
Jean McCarroll, The Negro in the Congressional Record, vol. 3: Seventh to Ninth
Congress, 1801–1807 (New York: Bergman Publishers, 1969), 140.
74 Joel Tiffany, A Treatise on the Unconstitutionality of American Slavery
(Cleveland: J. Calyer, 1849), 117–20. On Tiffany, see Paul Finkelman, ed., Slavery
and the Law (Lanham, MD: Rowman & Littlefield, 2002); and Saul Cornell, “A
New Paradigm for the Second Amendment,” Law and History Review 22, no. 2
(Spring 2004): 161–67, 166.
75 Robert J. Brent, Report of Attorney General Brent, to His Excellency, Gov. Lowe,
in Relation to the Christiana Treason Trials, in the Circuit Court of the United
States (Annapolis: Thomas E. Martin, 1852), 13.
76 In the incident’s wake, thirty-eight men, nearly all free African Americans, were
indicted and charged with treason. Still, just one man, Castner Hanway, a local
white miller and Parker’s neighbor, stood trial. A Philadelphia jury acquitted him.
Thomas P. Slaughter, Bloody Dawn: The Christiana Riot and Racial Violence in
the Antebellum North (New York: Oxford, 1991); Ella Forbes, But We Have No
Country: The 1851 Christiana, Pennsylvania, Resistance (Cherry Hill, NJ: Africana
Homestead, 1998).
77 Jonathan Katz, Resistance at Christiana: A Documentary Account (New York:
Thomas Y. Crowell Company, 1974), 157.
78 Brent, Report of Attorney General Brent, 4.
79 Nicolas W. Proctor, Bathed in Blood: Hunting and Mastery in the Old South
(Charlottesville and London: University of Virginia Press, 2002), 3–4.
80 Scott E. Giltner, Hunting and Fishing in the New South: Black Labor and White
Leisure after the Civil War (Baltimore: Johns Hopkins University Press, 2008),
204

204 Notes to Pages 104–105

1–5. See also Steven Hahn, “Hunting, Fishing, and Foraging: Common Rights
and Class Relations in the Postbellum South,” Radical History Review 26 (1982):
37–64.
81 The broader subject of arming enslaved people in the Americas is addressed in
Christopher Leslie Brown and Philip D. Morgan, eds., Arming Slaves: From
Classical Times to the Modern Age (New Haven, CT: Yale University Press, 2006).
82 State v. Daniel Hunt (negro) (January 25, 1859), Box 10, 1859, C1849-10, Criminal
Docket, Criminal Court, Baltimore City, MSA, and State v. Daniel Hunt (col.)
(No. 83, January Term 1859), C2057-13, City Criminal Docket, Jail, Baltimore
City, MSA.
83 State v. Frank Weeks (December 10, 1858), Box 9, 1858, C1849-9, Criminal
Docket, Criminal Court, Baltimore City, Maryland, MSA.
84 State v. Dennis Watkins (June 2, 1858), C2057-13, City Criminal Docket, Jail,
Baltimore City, MSA.
85 State v. William Keys (“col’d”) (January 11, 1859), C2057-13, City Criminal
Docket, Jail, Baltimore City, MSA.
86 The Superior Court records reflect appearances by Bowers and Hardy in 1856,
1857, and 1858. Entry of November 16, 1856, C219-1, Minutes, 1851–57,
Baltimore City Superior Court, MSA. The court’s records reflect that an additional
gun permit was granted in 1856. Entry of January 12, 1856, C219-1, Minutes,
1851–57, Baltimore City Superior Court, MSA. On Thursday, November 22, 1855,
“Samuel Hardy, a free colored man was granted a license to keep and carry a
gun.” Entry of November 22, 1855, C219-1, Minutes, 1851–57, Baltimore City
Superior Court, MSA. Zaccheus Collins Lee had served as US district attorney
from 1848 to 1855, prior to taking the Superior Court bench. Edmund Jennings
Lee, Lee of Virginia, 1642–1892: Biographical and Genealogical Sketches
(Philadelphia: Edmund Jennings Lee, 1895), 466–67.
87 “Nathan Bowers,” Dwelling No. 1159, Family No. 1334, Ward 12, Baltimore City,
Maryland, 1860 US Federal Census, Population Schedule, NARA.
88 “Samuel Hardy,” Dwelling No. 1180, Family No. 1502, Ward 17, Baltimore City,
Maryland, 1860 US Federal Census, Population Schedule, NARA.
89 City directories report Hardy’s trade as that of carter since at least 1842. Matchett’s
Baltimore Director, or Register of Householders (Baltimore: Baltimore Director
Office, 1842), 439.
90 In re Samuel Handy (November 22, 1855), C219-1, Minutes, Superior Court,
Baltimore City, MSA. In re Samuel Handy (November 22, 1855), 1851-56,
C251-1, Rough Minutes, Superior Court, Baltimore City, MSA. In re Nathan
Bowers and In re Samuel Handy (November 26, 1856), 1851-56, C251-1, Rough
Minutes, Superior Court, Baltimore City, MSA. In re Nathan Brown [sic] and
Samuel Hardy [sic] (September 18, 1858), C219-2, Minutes, 1858–62, Superior
Court, Baltimore City, MSA. In re Nathan Bower [sic] and In re Samuel Hardy
(September 18, 1858), 1851–56, C251-1, Rough Minutes, Superior Court,
Baltimore City, MSA.
91 In re Alexander Henry Martin (March 11, 1859), C219-2, Minutes, 1858–62,
Superior Court, Baltimore City, MSA. In re Alexander Henry Martin (March
11, 1859), 1851–56, C251-1, Rough Minutes, Superior Court, Baltimore City,
MSA. “Alexander Martin,” Dwelling 399, Family No. 441, 14th Ward, Baltimore
City, 1860 US Federal Census, NARA. “Proceedings of the First Maryland State
205

Notes to Pages 105–110 205

Convention of the Colored Protestant Methodist Churches,” North Star, November

23, 1849.
92 In re Alexander Henry Martin (March 11, 1859), C219-2, Minutes, 1858–62,
Superior Court, Baltimore City, MSA. In re Alexander Henry Martin (March 11,
1859), 1851–56, C251-1, Rough Minutes, Superior Court, Baltimore City, MSA.
93 “For Court,” Sun, June 23, 1854.
94 “Local Matters: The Election of Yesterday – The Governor and Mayor – Lawless
Proceedings at the Polls,” Sun, November 5, 1856; “Local Matters: Further
Particulars of the Election Riots,” Sun, November 6, 1856.
95 On Baltimore as “Mobtown,” see Richard Chew, “The Origins of Mob Town: Social
Division and Racial Conflict in the Baltimore Riots of 1812,” Maryland Historical
Magazine 104, no. 3 (2009): 272–301; Francis F. Beirne, The Amiable Baltimoreans
(Baltimore: Johns Hopkins University Press, 1984); David Detzer, Dissonance: The
Turbulent Days between Fort Sumter and Bull Run (New York: Houghton
Mifflin Harcourt, 2007); Jessica I. Elfenbein, John R. Breihan, and Thomas L.
Hollowak, From Mobtown to Charm City: New Perspectives on Baltimore’s Past
(Baltimore: Maryland Historical Society, 2002); and Paul A. Gilge, “The Baltimore
Riots of 1812 and the Breakdown of the Anglo-American Mob Tradition,” Journal
of Social History 13, no. 4 (Summer 1980): 547–64.
96 William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-
Century America (Chapel Hill: University of North Carolina Press, 1996), 90–95.
97 Unlike in cases with African American litigants, the court clerk did not explicitly
designate Europeans as such. Local newspapers did, on occasion, note litigants as
“German” or “Irish,” in much the same way they would note African Americans as
“colored.” “Proceedings in the Court,” Sun, May 15, 1854.
98 “Free Negroes in Virginia,” National Era (Washington, DC), August 31, 1854.

7 To Sue and Be Sued

1 “Could not the space occupied by Dickens’ ‘Bleak House’ be better occupied?”
queried James Dawes. Letter from James S. Dawes, Frederick Douglass’ Paper,
August 27, 1852.
2 Baltimoreans also could read Bleak House in the pages of Harper’s Magazine,
which advertised its installments in the Baltimore Sun. “In Advance!!! Harper’s
Magazine for May,” Sun, April 26, 1852.
3 Charles Dickens, American Notes for General Circulation (London: Chapman and
Hall, 1842).
4 For one example of how Bleak House was a touchstone for thinking about court
reform in Baltimore, see “The New Land of Evidence,” Sun, June 11, 1852.
5 In 1827 the US Supreme Court ruled that a state bankruptcy law, which operated
prospectively, did not violate the US Constitution. Ogden v. Sanders, 25 U.S.
213 (1827). Five years later, in 1832, the court ruled that a Maryland debtor
could not discharge a debt incurred in Louisiana in a Maryland state insol-
vency proceeding. Boyle v. Zacharie, 31 U.S. 635 (1832). After 1841, Congress
left the matter of insolvency to the individual states. For an overview of fed-
eral bankruptcy legislation through 1867, see Elizabeth Lee Thompson,
The Reconstruction of Southern Debtors: Bankruptcy after the Civil War
206

206 Notes to Pages 110–113

(Athens: University of Georgia Press, 2004). Thompson explains that Congress’s

1841 act was in force just one year, and was not replaced until after the Civil
War, in 1867. Ibid., 22. See also David A. Skeel Jr., Debt’s Dominion: A History
of Bankruptcy Law in America (Princeton, NJ: Princeton University Press,
2001).
6 For an overview of the changes in Maryland’s insolvency laws during the first
half of the nineteenth century, see Peter J. Coleman, Debtors and Creditors in
America: Insolvency, Imprisonment for Debt, and Bankruptcy, 1607–1900
(Madison: State Historical Society of Wisconsin, 1974), 162–78.
7 “An Act for the Relief of Insolvent Debtors,” Maryland Laws of 1854, chap. 193
(enacted March 10, 1854.). Coleman, Debtors and Creditors in America, 162–78.
8 “Appointments by the Governor – Confirmed by the Senate,” Sun, January 28,
1839; “Commissioner of Insolvent Debtors,” Sun, March 13, 1854; and “Death
of a Citizen,” Sun, February 27, 1864. Palmer unsuccessfully ran for judge of the
Orphan’s Court in 1851. Sun, July 25, 1851.
9 “The Commissioner of Insolvent Debtors,” Sun, March 14, 1854. There was a dis-
pute over who was empowered to appoint the new commissioner, the court or the
governor. “The Commissioner of Insolvent Debtors,” Sun, March 13, 1854.
10 Beccaria, “Imprisonment for Debt,” Freedom’s Journal, October 31, 1828.
11 Robert E. Shalope, The Baltimore Bank Riot: Political Upheaval in Antebellum
Maryland (Urbana: University of Illinois Press, 2009).
12 Historians have explored the general cultural-legal meanings of insolvency. Bruce
H. Mann, Republic of Debtors: Bankruptcy in the Age of American Independence
(Cambridge, MA: Harvard University Press, 2002). Scott Sandage foregrounds
the character of the “loser” across US history, juxtaposing the “quest for success”
against the “ordeal of failure,” in Born Losers: A History of Failure in America
(Cambridge, MA: Harvard University Press, 2005). See also Edward Balleisen,
Navigating Failure: Bankruptcy and Commercial Society in Antebellum America
(Chapel Hill: University of North Carolina Press, 2001), for a close examination of
the records of the 1841 federal Bankruptcy Act.
13 Christopher Phillips, Freedom’s Port: The African American Community of
Baltimore, 1790–1860 (Urbana: University of Illinois Press, 1997), 97.
14 “George Hackett,” Dwelling No., 610, Family No. 674, 6th Ward, Baltimore,
Seventh Census of the United States, 1850, NARA.
15 “The Late Geo. A. Hackett, Esq.,” Christian Recorder, May 7, 1870.
16 The discussion of Hackett’s petition is based on the record in In re George Hackett,
Case. No. 1113, September 13, 1859, Court of Common Pleas, MSA.
17 In re George A. Hackett, Negro Agent (September 13, 1859), Case No. 1113,
T515-28, Insolvency Papers, Court of Common Pleas, Baltimore City, MSA.
18 Ibid.
19 Historian Joanna Cohen suggests that these same transactions might be thought
of as a manifestation of Hackett’s right, as a citizen, “to purchase.” Joanna Cohen,
“ ‘The Right to Purchase Is as Free as the Right to Sell’: Defining Consumers as
Citizens in the Auction-house Conflicts of the Early Republic,” Journal of the Early
Republic 30, no. 1 (Spring 2010): 25–62.
20 Benjamin Horwitz, attorney for the railroad company, prepared the interroga-
tories presented to Hackett. Horwitz is an intriguing figure who appears as an
attorney, a trustee, and sometimes a witness in many African Americans’ insolvency
207

Notes to Pages 113–117 207

filings of the late 1850s. He was the youngest of three brothers in Baltimore, all
of whom were lawyers. His eldest brother, Orville, appears to have been the most
distinguished of the three. J. Thomas Scharf, History of Baltimore City and County
(Philadelphia: Louis H. Everts, 1881), 701–2.
21 “Act for the Relief of Insolvent Debtors,” sections 7 and 8.
22 State of Maryland v. Charles Parsons (col’d), 1849, Criminal Docket, Criminal
Court, Baltimore City, MSA.
23 This does not appear to be oversight, in any sense, by the state legislature. Indeed, on
the same date that the state enacted its new Act for the Relief of Insolvent Debtors,
it also explicitly distinguished the standing of black versus white Marylanders with
the Act for the Better Protection of Slaveholders, which prohibited dealings with
“any free negro or mulatto, or any negro or mulatto servant or slave” between
sunset and sunrise. “An Act for the Better Protections of Slaveholders,” Maryland
Law of 1854, chap. 194 (March 10, 1854).
24 Records exist for 103 “colored” debtors between 1850 and 1860. They owed a
total of $6,132. Only twelve debtors owed more than $100. Hackman Samuel
Wilson reported the highest debt, at $1,215. In re Samuel Wilson (November 15,
1854), Box 5, T515-14, Insolvency Papers, Court of Common Pleas, Baltimore
City, MSA. John Jones, a laborer, reported obligations totaling the lowest amount,
$5. In re John Jones (June 19, 1851), Box 11, T515-9, 1852, Insolvency Papers,
Court of Common Pleas, Baltimore City, MSA.
25 In re James H. Jones (April 22, 1857), Box 18, T515-21, Insolvency Papers, Court
of Common Pleas, Baltimore City, Court of Common Pleas, MSA.
26 Tony A. Freyer, Producers versus Capitalists: Constitutional Conflict in Antebellum
America (Charlottesville: University of Virginia Press, 1994).
27 On the history of race and the United States census see, Paul Schor, Counting
Americans: How the US Census Classified the Nation (New York: Oxford
University Press, 2017).
28 “David Pratt,” Dwelling No. 740, Family No. 911, 5th Ward, Baltimore, Seventh
Census of the United States, 1850, NARA. “David Pratt,” Dwelling No. 39, Family
No. 45, 5th Ward, Baltimore City, NARA. “Pratt, David,” Matchett’s Baltimore
Director, for 1855–56 (Baltimore: B. J. Matchett, 1855), 374.
29 “Fortie, Rev. John,” Matchett’s Baltimore Director of 1855–56, 360; “Clayton,
Moses C.,” ibid., 357.
30 For details on Pratt’s creditors, see John W. Woods,Woods’ Baltimore Directory,
for 1856–57 (Baltimore: John W. Woods, 1856), 15, 57, 135.
31 In re David Pratt, Case no. 561, October 1, 1856, Court of Common Pleas, MSA.
32 Coleman, Debtors and Creditors in America, 171.
33 “Act for the Relief of Insolvent Debtors,” sections 2 and 11.
34 In at least two insolvency cases heard prior to Pratt’s, African American men served
as court-appointed trustees. Joshua Lucas was appointed trustee in the case of Wesley
Thomas. In re Wesley Thomas (Negro Bricklayer) (July 26, 1853), Case No. 112,
Box 7, T515-33, Insolvency Papers, Court of Common Pleas, Baltimore City, MSA.
Thomas Nevitt was appointed trustee in connection with the petition of George
Taylor. In re George Taylor (Negro Laborer) (September 22, 1852), Case No. 201,
Box 7, T515-33, Insolvency Papers, Court of Common Pleas, Baltimore City, MSA.
35 “Proceedings of the Court,” Sun, November 30, December 1, and December
3, 1853.
208

208 Notes to Pages 117–121

36 In re Jonathan Trusty (Negro Stevedore) (December 2, 1853), Case No. 172, Box
7, T515-33, Insolvency Papers, Court of Common Pleas, Baltimore City, MSA.
37 Ibid.
38 Ibid.
39 T600, Orphan’s Court Docket, 1854–61, Register of Wills, Baltimore City, MSA;
and T604, Orphan’s Court Proceedings, 1851–70, Register of Wills, Baltimore
City, MSA.
40 Owings was a courthouse regular owing to his repeated efforts to control the
labor of black Baltimoreans, enslaved and free. Caleb D. Owings, “One Hundred
Dollars Reward,” Sun, October 15, 1849 (runaway Benjamin Marshall Hardy).
Caleb D. Owings v. Henry Williams (a negro boy) (June 5, 1855), T600-2, 1855,
Orphan’s Court Docket, Register of Wills, Baltimore City, MSA. In Owings
v. Burgess, Owings successfully petitioned to extend the term of service or sell out of
state eighteen-year-old Elias Burgess. Owings subsequently sold Burgess to William
Kriesmann. William Kriesman v. Elias Burgess (a negro boy) (June 27, 1855), T-
621, Petitions, Orphan’s Court, Register of Wills, Baltimore City, MSA. (January
9, 1855), T600-2, 1855, Orphan’s Court Docket, Register of Wills, Baltimore City,
MSA. Owings v. Burgess, T604-3, 1854–56, Orphan’s Court Proceedings, Register
of Wills, Baltimore City, MSA.
41 “Gibbs Ebenezer,” Matchett’s Baltimore Director for 1855–56 (Baltimore: B.
J. Matchett, [1855]), 125 (Laborer, 91 Bethel).
42 Owings v. Williams (a certain negro boy), T604-3, 1854–56, Orphan’s Court
Docket, Register of Wills, Baltimore City, MSA; and T600-2, 1855, Orphan’s Court
Proceedings, Register of Wills, Baltimore City, MSA.
43 On the writ of habeas corpus generally, see Paul D. Halliday, Habeas Corpus: From
England to Empire (Cambridge, MA: Harvard University Press, 2010).
44 “Local Matters,” Sun, April 13, 1854. “Snell, Charles,” in R. J. Matchett, Matchett’s
Baltimore Directory for 1851 (Baltimore: Richard J. Matchett, 1851), 337 (Laborer,
90 Orchard).
45 “Local Matters,” Sun, April 13, 1854. Matchett’s Baltimore Directory for 1851,
337. Matchett’s Baltimore Directory for 1855–56, 414. Woods’ Baltimore City
Directory Ending Year 1860 (Baltimore: John W. Woods, 1860), 454. Woods’
Baltimore Directory, for 1856–57 (Baltimore: John W. Woods, 1856), 319.
46 “Charles Snell,” Dwelling No. 5071, Family No. 5295, 18th Ward, Baltimore City,
1860 US Federal Census, Population Schedule, NARA.
47 “Michael Moan,” Ship Ellen Brooks (June 1, 1840), Baltimore. Passenger Lists of
Vessels Arriving at Baltimore, 1820–81. NARA.
48 “Lost,” Sun, December 22, 1840.
49 “To the Public,” Sun, November 6, 1840.
50 D. Randall Beirne, “The Impact of Black Labor on European Immigration into
Baltimore’s Oldtown, 1790–1910,” Maryland Historical Magazine 83, no. 4
(Winter 1988): 331–45. The pace of Irish immigration increased after the that
country’s 1846 potato famine.
51 Historian Seth Rockman recommends caution in relying on these numbers,
pointing out that even official tallies from this period were certainly undercounts.
Seth Rockman, Scraping By: Wage Labor, Slavery, and Survival in Early Baltimore
(Baltimore: Johns Hopkins University Press, 2008), 285n36. Phillips, Freedom’s
Port, 195.
209

Notes to Pages 122–123 209

52 By 1870 Germans would outnumber Irish immigrants to Baltimore by a ratio of 5

to 2. Beirne, “Impact of Black Labor,” 336.
53 Ibid., 336.
54 “Shipping Intelligence,” Pilot and Transcript, May 28, 1840. The ship was reported
to have landed at Baltimore on May 27; it remained in quarantine for two weeks,
until June 10. “Shipping Intelligence,” Baltimore Pilot, June 10, 1840. The trip
from Liverpool was completed in just over seven weeks, as the ship cleared that
port on April 14. “Liverpool,” Pilot and Transcript (Baltimore), May 18, 1840.
55 “Summary of News,” Boston Recorder, June 12, 1840.
56 “Police Intelligence,” Sun, June 2, 1840.
57 “Liverpool, April, 1840,” Sun, November 7, 1840.
58 “Caution to the Public,” Sun, November 5, 1840.
59 “St. Patrick’s Church,” Sun, November 8, 1841.
60 “Local Matters,” Sun, October 27, 1847.
61 “Notice,” Sun, May 5, 1852.
62 “Proceedings of the Courts,” Sun, February 6, 1855.
63 “Proceedings of the Courts, Criminal Court,” Sun, December 5, 1857.
64 “John McBride vs. John and Michael Moan,” Sun, January 26, 1853. “Benjamin
Ringgold vs. Michael Moan,” Sun, May 17, 1855. “Michael Moan vs. M. B. Cline,”
Sun, May 26, 1855. “Michael Moan vs. Patrick Nay,” Sun, June 4, 1855. “William
Leech vs. M. Moan,” Sun, January 28, 1856. “Michael Moan vs. James Haggerty,”
Sun, May 24, 1856. “Thomas Kelley vs. Michael Moan,” Sun, October 3, 1855.
65 Matchett’s Baltimore Director, for 1849–50 (Baltimore: R. J. Matchett, 1849),
277; R. J. Matchett, Matchett’s Baltimore Directory for 1851 (Baltimore: Richard
J. Matchett, 1851), 191. Matchett’s Baltimore Director for 1853–54, 217;
Matchett’s Baltimore Director for 1855–56, 237; Woods’ Baltimore Directory, for
1856–57, 186. From time to time Moan published notices in the paper of cows
straying from his property, sometimes offering a reward for their return. “Strayed,”
Sun, June 14, 1855; “Strayed,” Sun, October 28, 1863.
66 “The Diseases of Nightmen,” Retrospect of the Medical Sciences 5, no. 110
(November 5, 1842): 121 (reprinted from Annales d’Hygiene Publique,
July 1842).
67 The privy system of New York City has received the most careful study of those
in the nineteenth-century United States. Joan H. Geismar, “What Is Night Soil?
Thoughts on an Urban Privy,” Historical Archaeology 27, no. 2 (1993) 57–70.
68 “Local Matters,” Sun, July 8, 1850.
69 “Benjamin Hill” (slave) (January 8, 1854), Entry 2298, C2057-11,1854–54, City
Criminal Docket, Jail, Baltimore City, MSA. (Stealing an building flow valve worth
$8. Released.) Entry for April 1, 1854, T483-1, Minutes, 1851–54, Baltimore City,
Criminal Court, MSA.
70 “James Johnson to Michael Moan” (indenture) (March 1, 1851), Folder 20, C192-
1, Indentures, Register of Wills, Baltimore City, MSA. Michael Dorsey v. James
Johnson (a negro boy) (August 14, 1854), Box 183, T621-18, 1851–58, Petitions,
Register of Wills, Baltimore City, MSA. Michael Dorsey v. James Johnson (a negro
apprentice) (February 7 1855), T600-2, 1855, Orphan’s Court Docket, Register
of Wills, Baltimore City, MSA. Michael Dorsey v. James Johnson (negro appren-
tice) (1856), T600-3, 1856, Orphan’s Court Docket, Register of Wills, Baltimore
City, MSA. Michael Dorsey v. James Johnson (negro apprentice) (January 22,
210

210 Notes to Pages 124–130

1856), T621-18, Petition, Orphan’s Court, Register of Wills, Baltimore City, MSA.
Michael Dorsey v. James Johnson (negro apprentice), (February 16, 1856), C160-
2, 1853–66, Appeals and Issues, Register of Wills, Baltimore City, MSA. Dorsey
v. Johnson (negro apprentice) (June 4, 1858), T621-18, Petitions, Orphan’s Court,
Register of Wills, Baltimore City, MSA.
71 Michael Moan v. William Jones (a negro boy), T604-3, 1854–56, Proceedings,
Orphan’s Court, Register of Wills, Baltimore City, MSA. Michael Moan vs. William
Jones (a negro boy) (April 25, 1855), T600-2, 1855, Orphan’s Court Docket,
Register of Wills, Baltimore City, MSA. “Ran Away from the Subscriber,” Sun,
September 2, 1856.
72 Henrietta Right, by her next friend Maria Johnson v. Michael Moan (January 24,
1855), Petitions, Orphan’s Court, Register of Wills, Baltimore City, MSA.
73 “This is to Give Notice,” Sun, February 2, 1849.
74 “Died,” Sun, September 26, 1851.
75 Henrietta Right, by her next friend Maria Johnson v. Michael Moan. “Legislative
Acts/Legal Proceedings,” Sun, February 17, 1855.
76 Henrietta Right, by her next friend Maria Johnson v. Michael Moan.
77 Petition of Mary Johnson, Isabella Jolly vs. Michael Moan (January 24, 1855),
Petitions, Orphan’s Court, Register of Wills, Baltimore City, MSA. “Legislative
Acts/Legal Proceedings,” Sun, February 17, 1855.
78 Isabella Jolly vs. Michael Moan (July 6, 1855), Petitions, Orphan’s Court, Register of
Wills, Baltimore City, MSA. “Legislative Acts/Legal Proceedings,” Sun, June 28, 1855.
79 “Proceedings of the Courts: City Circuit Court,” Sun, July 14, 1855.
80 Suzanne Daly, “Belligerent Instruments: The Documentary Violence of Bleak
House,” Studies in the Novel 47, no. 1 (Spring 2015): 20–42.
81 On the architecture of antebellum courthouses, see Martha J. McNamara, From
Tavern to Courthouse: Architecture and Ritual in American Law, 1685–1860
(Baltimore: Johns Hopkins University Press, 2004).

8 Confronting Dred Scott

1 “The First Colored Convention,” Anglo-African Magazine, October 1859.
2 “Washington, Dec. 16,” Sun, December 17, 1856; “United States Supreme Court,”
Sun, December 17, 1856; “The Dred Scott Freedom Trial,” Sun, December 18,
1856; “The Freedom Trial,” Sun, December 19, 1856; “Washington, March 6,”
Sun, March 7, 1857; “The Dred Scott Decision,” Sun, March 10, 1857; and “The
Dred Scott Case in New York,” Sun, March 11, 1857.
3 “Free Colored Persons in Arkansas,” Sun, January 24, 1857.
4 “Colored Persons at the South,” Sun, February 5, 1857.
5 “Colored Persons in the South,” Sun, February 5, 1857. “Negro Testimony,” Sun,
January 14, 1857.
6 “A Bill,” Sentinel of Freedom, January 20, 1857.
7 “Mixing Colors,” Sun, March 4, 1857.
8 Among the leaders of the convention was the former slave William Yates. “From
California,” Sun, January 15, 1857.
9 Gatchell served the City Court from 1845 to 1851. “Local Matters: City Court,”
Sun, February 2, 1845.
10 “The Baltimore Fugitive Slave in Philadelphia,” Sun, January 19, 1857.
211

Notes to Pages 130–133 211

11 “Petition of William H. Gatchell in the Fugitive Slave Petition Book, January 13,
1857,” Record Group 21: Records of District Courts of the United States, 1685–
2009, National Archives Catalog, https://research.archives.gov/id/278903.
12 Eric H. Walther, The Shattering of the Union: America in the 1850s (New York:
Rowman & Littlefield, 2004), 115.
13 “Baltimore Fugitive Slave in Philadelphia.”
14 “Philadelphia,” Sun, February 4, 1857. “The Philadelphia Slave Case: The Fugitive
Given Up to His Owner,” Sun, January 19, 1857, and February 2, 1857.
15 “ ‘State Sovereignty’ and Black Seamen,” Alexandria Gazette, February 27, 1857.
“Colored Seamen,” Sun, February 27, 1857.
16 “State Sovereignty,” Charleston Mercury, February 21, 1857.
17 “ ‘State Sovereignty’ and Black Seamen.”
18 “Annual Meeting of the American Colonization Society,” African Repository,
February 1857.
19 “Thomas Wilson,” Baltimore: Past and Present, with Biographical Sketches of Its
Representative Men (Baltimore: Richardson & Bennett, 1871): 533–37.
20 In the two decades after its 1837 founding, the newspaper’s attitude had been,
as one scholar put it, “idiosyncratic but ambivalent.” The Sun ran ads aimed at
the recapture of runaways and promoting the sale of enslaved people. At the
same time, it criticized the continuation of the international slave trade. Nicholas
G. Penniman IV, “Baltimore’s Daily Press and Slavery, 1857–1860,” Maryland
Historical Magazine 99, no. 4 (Winter 2004): 491–507.
21 Harold A. Williams, “Light for All: Arunah S. Abell and the Rise of the Baltimore
‘Sun,’ ” Maryland Historical Magazine 82, no. 3 (Fall 1987): 197–213.
22 Penniman, “Baltimore’s Daily Press and Slavery.”
23 Correspondent John Reed, for example, was credited with “attending mostly to
court cases” for more than twenty years. Williams, “Light for All.”
24 Lawrenson’s items were marked “From Our Washington Correspondent.” Williams,
“Light for All.”
25 “Washington, March 6,” Sun, March 7, 1857. Kingman published under the pen
name “Ion.” Harold A. Williams, The Baltimore Sun, 1837–1987 (Baltimore: Johns
Hopkins University Press, 1987), 269. He is said to have been the first journalist
to set up as a permanent correspondent based in Washington. Rufus R. Wilson,
Washington: The Capital City, and Its Part in the History of the Nation, vol. 1
(New York: J. B. Lippincott, 1902), 219.
26 “The Decision in the Supreme Court,” Sun, March 9, 1857.
27 “The Dred Scott Case,” Sun, March 11, 1857.
28 Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and
Politics (New York: Oxford University Press, 1978), 155–58.
29 Institutional historians would bestow “great” status on Johnson for his “wit, moral
courage, and profound mind,” calling him “an undefeated hero of the forum and
the bar.” H. L. Mencken, A Monograph of the New Baltimore Court House: One
of the Greatest Examples of American Architecture, and the Foremost Court
House of the United States; Including an Historical Sketch of the Early Courts
of Maryland (Baltimore: A. Hoen, 1899), 9–28. He would later become a border-
state Unionist and support the Thirteenth Amendment. Michael Vorenberg, Final
Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment
(New York: Cambridge University Press, 2001).
212

212 Notes to Pages 133–134

30 Fehrenbacher, The Dred Scott Case, 155–58.

31 In addition to chronicling Taney’s decisions and his terms on the Baltimore Circuit
Court bench, local papers reported on his day-to-day activities. See J. W., “Letter
from Old Point Comfort,” Sun, August 1, 1851 (noting Taney and his family
vacationing in Old Point Comfort, VA); “Local Matters,” Sun, July 16, 1851 (naming
Taney as one of the honored guests at the St. Mary’s College commencement);
“Local Matters,” Sun, April 28, 1851 (describing how Taney was in attendance
at Archbishop Eccleston’s funeral); “Married,” Sun, February 10, 1852 (reporting
the marriage of Taney’s daughter Maria to Richard T. Allison); “Meeting of the
Members of the Baltimore Bar,” Sun, July 12, 1853, 1 (reporting that Taney was
called from his home to preside over a memorial honoring the recently deceased
Judge John Glenn).
32 See Carl Brent Swisher, Roger B. Taney (New York: Macmillan, 1935), 28–37,
114–15.
33 Ibid., 469–72.
34 Ibid., 353–57.
35 Miner Kilbourne Kellogg’s portrait of Taney, measuring just over 75 by 62 inches,
was completed in 1849.
36 “The Dred Scott Case,” Sun, March 11, 1857.
37 Sun, May 19, 1857, quoted in Penniman, “Baltimore’s Daily Press and Slavery.”
38 Fehrenbacher discusses these cases in The Dred Scott Case, 692, nn. 91 and 92.
39 See Roger Brooke Taney, “Supplement to the Dred Scott Opinion” (1858), in
Samuel Tyler, Memoir of Roger Brooke Taney, LL.D., Chief Justice of the Supreme
Court of the United States (Baltimore: J. Murphy, 1876), 578.
40 See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 529–64 (1857). See Lucas E.
Morel, “The Dred Scott Dissents: McLean, Curtis, Lincoln, and the Public Mind,”
Journal of Supreme Court History 32, no. 22 (2007): 133, 134–38.
41 See “Can Colored Men Sue in the Federal Courts?” Washington (PA) Reporter,
July 22, 1857; “Important Decision in the U.S. Circuit Court: James C. Mitchell
vs. Charles Lamar,” Chicago Daily Tribune, July 15, 1857; Chicago Democratic
Press, May 15, 1857; New York Evening Post, May 20, 1857; and National Era
(Washington, DC), July 30, 1857.
42 “A Case under the Dred Scott Decision,” New York Herald, July 13, 1858.
43 “Important Decision in the U.S. Circuit Court.”
44 “Can Colored Men Sue in the Federal Courts?”
45 “Important Decision in the U.S. Circuit Court.”
46 See, e.g., Opinions of the Justices of the Supreme Judicial Court, on Question
Propounded by the Senate, 44 Me. 505, 508 (1857) (declining to apply Dred Scott
when interpreting the phrase “citizen of the United States”); Anderson v. Millikin,
9 Ohio St. 568, 577 (1859) (“The question is not, what the phrase ‘citizen of the
United States’ means in the light of the decision in the case of Dred Scott v. Sandford,
but what the framers of our [state] constitution intended by the use of that phrase,
and what, in the connection in which it is found, and with the light and knowledge
possessed when it was used, it was intended to mean.”); see also Opinion of the
Justices of the Supreme Judicial Court, 41 N.H. 553, 553 (1857) (affirming consti-
tutionality of “[a]n act to secure freedom and the rights of citizenship to persons
in this State,” which was passed by the N.H. House of Representatives on June 26,
1857). For an example in which a local court declined to follow the reasoning in
213

Notes to Pages 134–135 213

Dred Scott to bar an African American from suing, see generally Richard F. Nation,
“Violence and the Rights of African Americans in Civil War–Era Indiana: The Case
of James Hays,” Indiana Magazine of History 100, no. 32 (2004): 215–30.
47 Anderson v. Milliken, 570. The court was required to interpret an 1851 amendment
to the state’s constitution, changing its requirement for electorship to “white male
citizen of the United States” from “white male inhabitants.” The latter, originally
used in the state’s 1802 constitution, had been widely interpreted to include not
only white males but also free men of mixed-race descent whose bloodline was less
than half black. Anderson v. Milliken, 569–70.
48 Anderson v. Milliken, 572, 577.
49 Opinions of the Justices of the Supreme Judicial Court, 44 Maine at 507.
Fehrenbacher, The Dred Scott Case, 688n53.
50 Opinions of the Justices of the Supreme Judicial Court, 507–8.
51 Opinions of the Justices of the Supreme Judicial Court, 515–16.
52 See Heirn v. Bridault, 37 Miss. 209, 224–25 (1859); Shaw v. Brown, 35 Miss. 246,
315–16 (1858).
53 See Shaw v. Brown, 246, 320–21.
54 Ibid., 315.
55 For background on Shaw, manumissions, and the right of emancipated black
nonresidents to sue for their inheritance in Mississippi courts, see Paul Finkelman,
An Imperfect Union: Slavery, Federalism, and Comity (Chapel Hill: University of
North Carolina Press, 1981), 287–90; Bernie D. Jones, Fathers of Conscience: Mixed-
Race Inheritance in the Antebellum South (Athens: University of Georgia Press,
2009), 55–57.
56 Heirn v. Bridault, 37 Miss. 209, 224–25 (1859). The majority in Heirn rejected
Shaw and its reliance on comity to hold that a free black woman from Louisiana
had no right to sue for her inheritance in Mississippi, ultimately concluding “free
negroes . . . are to be regarded as alien enemies or strangers prohibited, and without
the pale of comity, and incapable of acquiring or maintaining property in this State
which will be recognized by our courts.” Heirn v. Bridault, 233. For a detailed
analysis of how Mississippi fit into the broader antebellum trend of states “denying
blacks’ legal citizenship and insisting on their foreignness,” see Kunal M. Parker,
“Citizenship and Immigration Law, 1800–1924: Resolutions of Membership and
Territory,” in The Cambridge History of Law in America, vol. 2, ed. Michael
Grossberg and Christopher Tomlins (Cambridge: Cambridge University Press,
2008), 168–203.
57 See Heirn v. Bridault, 37 Miss. at 234 (Handy, J., dissenting) (arguing because
plaintiff was “alleged to have been a citizen of Louisiana, and the presumption is,
that her rights and capabilities as such continue. The question, then, as to her right,
as a free person of color of the State of Louisiana, to take a legacy, is the same as
that decided in Shaw v. Brown”).
58 See Taney, “Supplement to the Dred Scott Opinion,” 578–79, 598–608.
59 Roger Brooke Taney to David Perine (June 16, 1857), Box 2, Perine Family Papers,
1783–1941, MS 645, MHS.
60 Fehrenbacher, The Dred Scott Case, 687n42, citing Roger Brooke Taney to Caleb
Cushing (November 9, 1857), Caleb Cushing Papers, Manuscripts Division,
Library of Congress, Washington, DC.
61 Taney, “Supplement to the Dred Scott Opinion,” 578–608.
214

214 Notes to Pages 136–138

62 Roger B. Taney to J. Mason Campbell, February 19, 1861; and Roger Brooke
Taney to James Mason Campbell, February 18, 1861, Box 22, MS 469, John Eager
Howard Papers, 1662–1919, 1817–68 (Roger Brooke Taney Correspondence
[1817–72]), MHS. Taney did circulate the supplemental opinion privately, for
example to his “friend Mr Stone, one of the Bar of [Washington, DC].” Roger
B. Taney to J. Mason Campbell, October 23, 1863 (Washington), Box 22, MS
469, John Eager Howard Papers, 1662–1919, 1817–68 (Roger Brooke Taney
Correspondence [1817–72]), MHS. The supplement would finally be published,
but only after a good amount of wrangling between his family, friends, and his first
biographer, Samuel Tyler. Samuel Tyler to J. Mason Campbell, November 20, 1864;
Samuel Tyler to F. M. Etting, November 18, 1864; and David M. Perine to F. M.
Etting, March 1874, Box 22, MS 469, John Eager Howard Papers, 1662–1919,
1817–68 (Roger Brooke Taney Correspondence [1817–72]), MHS.
63 Taney, “Supplement to the Dred Scott Opinion,” 579–93.
64 Roger B. Taney, “Statement of the Historical Fact in the Opinion of the Supreme
Court of the United States in the Dred Scott Case,” Box 9, Perine Family Papers,
1783–1941, MS 645, MHS. Taney, “Supplement to the Dred Scott Opinion,” 578.
Historian Don Fehrenbacher characterizes Taney’s supplemental opinion as a
“curious document.” Fehrenbacher, The Dred Scott Case, 445. The opinion would
remain unpublished until nearly a decade after Taney’s death. See Tyler, Memoir of
Roger Brooke Taney, 485–86.
65 Clare Cushman, The Supreme Court Justices: Illustrated Biographies, 1789–1993
(Washington, DC: Congressional Quarterly, 1993).
66 Horace Gray, A Legal Review of the Case of Dred Scott, as Decided by the Supreme
Court of the United States 57 (1857), 57. Fehrenbacher cites this as an article by
John Lowell and Horace Gray in The Law Reporter (June 1857). Theirs was the
“aberration” view, which concluded Taney had strayed from his usual style and
quality of mind.
67 Gray, A Legal Review, 9.
68 Taney, “Supplement to the Dred Scott Opinion,” 607.
69 Ibid., 608.
70 A review of the docket books of the Federal Circuit Court, Baltimore, for the
1850s evidences no litigants identified as African American. The first black party to
appear in that court after 1850 does so in 1863.
71 In re James H. Jones (April 22, 1857), Box 18, T515-21, Insolvency Papers, Court
of Common Pleas, Baltimore City, Court of Common Pleas, MSA. On Root, see
Wood’s Baltimore Directory, for 1856–57 (Baltimore: John W. Woods, 1856),
289. On Logue, see Matchett’s Baltimore Director, for 1855–56 (Baltimore: B.
J. Matchett, [1855]), 209.
72 “Proceedings of the Courts,” Sun, January 6, 1858.
73 African Methodist Bethel Church v. Joel P. Carmack, et al., No. 949, Equity Papers
A, Miscellaneous, T53-10, 1857, Baltimore City Circuit Court, Baltimore City,
MSA (Circuit Court Order, May 13, 1857).
74 Jason v. Henderson, 7 Md. 430 (1855).
75 On restricting black testimony, see Jeffrey R. Brackett, The Negro in Maryland: A
Study of the Institution of Slavery (Baltimore: N. Murray, Publication Agent, Johns
Hopkins University, 1889), 190–94.
215

Notes to Pages 138–141 215

76 Maryland Laws of 1717, chap. 13, § 2. Thomas Bacon, Laws of Maryland at Large
(Annapolis: Jonas Green, 1765).
77 Atwell v. Miller, 11 Md. 348 (1857).
78 See Barbara Jeanne Fields, Slavery and Freedom on the Middle Ground: Maryland
during the Nineteenth Century (New Haven, CT: Yale University Press,
1985), 66–67.
79 See Fields, Slavery and Freedom, 70.
80 On Tubman, see Catherine Clinton, Harriet Tubman: The Road to Freedom
(Boston: Little, Brown, 2004); Jean M. Humez, Harriet Tubman: The Life and Life
Stories (Madison: University of Wisconsin Press, 2003); and Kate Clifford Larson,
Bound for the Promised Land: Harriet Tubman, Portrait of an American Hero
(New York: Ballantine, 2004).
81 Fields notes that by 1860 free blacks made up 19 percent of the Eastern Shore’s
total population. Fields, Slavery and Freedom, 70.
82 Last will and testament of William Hughes, November 25, 1850, MSA. In his will
Hughes enumerates in detail the property to be left to his children, including land,
cattle, sheep, and cash. No express mention is made of his holding property in per-
sons. However, he provided that the “balance” of his estate was to be inherited by
his wife, Mary, and this may well have included enslaved people.
83 Bill of Sale, Catherine S. M. Ray to William Hughes, July 8, 1842, Dorchester
County Circuit Court, Chattel Records, 1852–60, vol. 776, 195–96, MSA.
84 Dorchester County Circuit Court, Chattel Records, 1852–60, vol. 776, 195–96,
FJH 2, MSA CM427-2, MSA.
85 Samuel Jackson v. Denwood Hughes, William Hughes, and Alward Johnson,
Dorchester County Circuit Court, Equity Papers, T2318-3, MSA.
86 Ibid.
87 Josiah Hughes in following year, 1852, served as a representative to the state’s “col-
ored” colonization convention, and in the 1860s he would seek ordination to the
ministry in the AME Church. C. Christopher Brown, “Maryland’s First Political
Convention by and for Its Colored People,” Maryland Historical Society 88, no. 5
(Fall 1993): 324–35.
88 Samuel Jackson v. Denwood Hughes, William Hughes, and Alward Johnson,
Dorchester County Circuit Court, Equity Papers, T2318-3, MSA.
89 Bill of Sale and Deed, Alward Johnson from Josiah Hughes and others, March 15,
1851, MSA.
90 Docket entry (October 1851), Samuel Jackson, negro v. Denwood Hughes and
Josiah Hughes exors of William Hughes, MSA.
91 The court would not remark on this turn of events. Only later, during the
Civil War, would the family’s manumissions be recorded. Mary and daughter
Lilly received freedom papers on December 22, 1863, based on the terms of
their sale to William Hughes. The three remaining children remained stayed in
the possession of Alward Johnson until after Maryland abolished slavery in
November 1864. Their manumission was recorded in the state’s overall inven-
tory of slaves in 1867. C-690, Certificates of Freedom, 1851–64, Circuit Court,
Dorchester County, MSA.
92 Tony Allan Freyer, Producers versus Capitalists: Constitutional Conflict in
Antebellum America (Charlottesville: University of Virginia Press, 1994).
216

216 Notes to Pages 141–143

93 See Hughes v. Jackson, 12 Md. 450 (1858), 451, 462–63. “Argument of Appellee,”
Hughes v. Jackson, S375-21, Briefs, 1857–58, Court of Appeals, MSA.
94 See Hughes v. Jackson, 462 (describing the question presented to the court as
“whether a negro can maintain an action in this State, without first averring in
his pleadings, and establishing by proof, his freedom”). “Argument of Appellee,”
Hughes v. Jackson, MSA.
95 Hughes v. Jackson, 450, 451, 452–55; “Argument of Appellee,” Hughes
v. Jackson, MSA.
96 See Hughes v. Jackson, 450, 451, 452–55; “Argument of Appellee,” Hughes
v. Jackson, MSA.
97 See Hughes v. Jackson, 450, 451, 452–55; “Argument of Appellee,” Hughes
v. Jackson, MSA.
98 Hughes v. Jackson, 455; “Argument of Appellee,” Hughes v. Jackson, MSA.
99 Hughes v. Jackson, 459; “Argument of Appellee,” Hughes v. Jackson, MSA.
100 Hughes v. Jackson, 459; “Argument of Appellee,” Hughes v. Jackson, MSA.
101 Hughes v. Jackson, 459; “Argument of Appellee,” Hughes v. Jackson, MSA.
102 For a history of the Maryland Court of Appeals, see generally Hall Hammond,
“Commemoration of the Two Hundredth Anniversary of the Maryland Court
of Appeals: A Short History,” Maryland Law Review 38, no. 2 (1978): 229–41.
Notably, the court was restructured pursuant to the state’s new 1851 constitution,
which provided for, among other innovations, the election of Maryland Court of
Appeals justices for ten-year terms. Ibid., 235.
103 Tyler, Memoir of Roger Brooke Taney, 124–25; Carroll T. Bond, The Court of
Appeals of Maryland: A History (Baltimore: J. Murphy, 1928), 153–61.
104 Tyler, Memoir of Roger Brooke Taney, 160; see “The Late Hen. John C. Legrand,
Chief Justice of the State of Maryland,” Daily Dispatch (Richmond), January 11,
1862, 2.
105 Tyler, Memoir of Roger Brooke Taney, 163; “The Late Hon. John C. Legrand.”
106 See Tyler, Memoir of Roger Brooke Taney, 475–76; “The Late Chief Justice
Legrand: Meeting of the Members of the Bar – Adjournment of the Court –
Funeral of the Deceased,” Sun, December 31, 1861.
107 Regarding Taney, see Swisher, Roger B. Taney, 97–99; Timothy S. Huebner,
“Roger B. Taney and the Slavery Issue: Looking Beyond – and Before – Dred
Scott,” Journal of American History 97, no. 1 (June 2010): 32–37. John Carroll
Legrand, Letter to Hon. Reverdy Johnson, on the Proceedings at the Meeting,
Held at Maryland Institute, January 10th, 1861 (n.p., 1861); and, Eugene S.
Vansickle, “A Transnational Vision for African Colonization: John H. B. Latrobe
and the Future of Maryland in Liberia,” Journal Of Transatlantic Studies 1, no. 2
(2003): 214–32.
108 Hughes v. Jackson, 459.
109 Hughes v. Jackson, 464. For an overview of Legrand’s tenure on the Maryland
Court of Appeals, see Bond, Court of Appeals of Maryland, 153–61.
110 Hughes v. Jackson, 463.
111 Hughes v. Jackson, 463–64.
112 Ibid.
113 Hughes v. Jackson, 464.
114 Ibid.
217

Notes to Pages 143–146 217

115 See Hughes v. Jackson, 463–64. The “bundle of rights” metaphor is adapted from
T. H. Marshall’s view that citizenship cannot be reduced to any specific right and
that many Americans throughout time have possessed only a partial version of
citizenship. See T. H. Marshall, Citizenship and Social Class and Other Essays
(Cambridge: Cambridge University Press, 1950), 10–27. While I do not share
Marshall’s view that citizenship rights can be characterized as progressively
amassed, his metaphor displaces the view that citizenship can be reduced to a “yes
or no” matter, or that it can be reduced to any one right, such as that of natural-
ization or the franchise.
116 Legal historian David Bogen carefully examines the legal status of black
Marylanders in the early republic and demonstrates that black Marylanders
experienced a decline in their standing at the start of the century. David S.
Bogen, “The Maryland Context of ‘Dred Scott’: The Decline in the Legal Status
of Maryland Free Blacks, 1776–1810,” American Journal of Legal History 34,
no. 4 (1990): 396–411, and David S. Bogen, “The Annapolis Poll Books of 1800
and 1804: African American Voting in the Early Republic,” Maryland Historical
Magazine 86, no. 1 (1991): 57–65.
117 Curtis M. Jacobs, Speech of Col. Curtis M. Jacobs, on the Free Colored Population
(Annapolis, MD: Elihu S. Riley, 1860).
118 Ibid.
119 “The Colored Population: Important Bills before the Maryland Legislature,”
Sun, February 2, 1860. Historian Christopher Phillips recounts the struggle over
the Jacobs Bill in Phillips, Freedom’s Port: The African American Community of
Baltimore, 1790–1860 (Champaign: University of Illinois Press, 1997), 232–34.
120 Delphic, “Our Baltimore Letter,” Weekly Anglo-African, February 18, 1860.
121 One white minister wrote to the Weekly Anglo-African to express his outrage
and his objections to the bill. “The Conflict in Maryland,” Weekly Anglo-African,
March 3, 1860.
122 “The Legislature and the Colored Population,” Sun, February 9, 1860, quoting the
Somerset Union.
123 On Murray, see Elizabeth Dowling Taylor, The Original Black Elite: Daniel
Murray and the Story of a Forgotten Era (New York: Amistad, 2017); Billie
E. Walker, “Daniel Alexander Payne Murray (1852–1925), Forgotten Librarian,
Bibliographer, and Historian,” Libraries & Culture 40, no. 1 (Winter 2005): 25–
37; and Robert L. Harris, “Daniel Murray and ‘The Encyclopedia of the Colored
Race,’ ” Phylon 37, no. 3 (1976): 270–82.
124 Daniel Murray Papers, 1881–1955, 1966, Micro 577, Wisconsin Historical
Society, Madison.

Conclusion
1 “The Late Attack upon Surgeon Augusta, in Baltimore,” Lyceum Observer, June
5, 1863. “The Late Outrage upon Surgeon Augusta, in Baltimore,” Christian
Recorder, May 20, 1863. C. Peter Ripley et al., eds., The Black Abolitionist Papers,
vol. 5 (Chapel Hill: University of North Carolina Press, 1992), 205–11, and
Claudia Floyd, Union-Occupied Maryland: A Civil War Chronicle of Civilians
and Soldiers (Charleston, SC: History Press, 2014).
218

218 Notes to Pages 148–150

2 On Ex parte Merryman and President Lincoln’s suspension of the writ of habeas

corpus in that Maryland case, see Jonathan W. White, Abraham Lincoln and Treason
in the Civil War: The Trials of John Merryman (Baton Rouge: Louisiana State
University Press, 2011), and Brian McGinty, The Body of John Merryman: Abraham
Lincoln and the Suspension of Habeas Corpus (Cambridge, MA: Harvard University
Press, 2011). On Baltimore’s 1861 Pratt Street riot, see Frank Towers, The Urban
South and the Coming of the Civil War (Charlottesville: University of Virginia
Press, 2004), and “‘A Vociferous Army of Howling Wolves’: Baltimore’s Civil War
Riot of April 19, 1861,” Maryland Historian 23, no. 2 (December 1992): 1–27.
3 Edward Bates, Opinion of Attorney General Bates on Citizenship (Washington,
DC: Government Printing Office, 1863). On the origins of Bates’s opinion, see
James P. McClure et al., “Circumventing the Dred Scott Decision: Edward Bates,
Salmon P. Chase, and the Citizenship of African Americans,” Civil War History 43,
no. 4 (1997): 279–309.
4 Jeffrey R. Brackett, Notes on the Progress of the Colored People of Maryland since
the War (Baltimore: Johns Hopkins University, 1890).
5 Ibid.
6 The precise timing of Grice’s application might be explained by something as
simple as his travel schedule between Haiti and the United States. Or he might
have heard news that in London, black activist J. Sella Martin had been granted
a passport by ambassador to Britain Charles Francis Adams. On Sella Martin, see
Elizabeth Anne Pryor, Colored Travelers: Mobility and the Fight for Citizenship
before the Civil War (Chapel Hill: University of North Carolina Press, 2016),
citing “Rev. J. Sella Martin’s Farewell to England,” Liberator, February 28, 1862.
Pryor explains that the secretary of state’s position on passports would formally
change in 1864 to make it clear that black Americans were entitled to such
documents.
7 Grice’s name is on the manifests of ships traveling between Port-au-Prince and
New York into the 1850s and 1860s. Brig Finance, Port-au-Prince to Philadelphia
(September 21, 1835), Selected Passenger and Crew Lists and Manifests, NARA.
General Marion, Port Republican to New York (June 15, 1844); schooner John
A. C. Burne, to New York (August 31, 1859); and brig Isabel Buermann, Port-
au-Prince to New York (March 12, 1862), Passenger Lists of Vessels Arriving at
New York, 1820–97, NARA. On the movement of merchants between Haiti and
New York and other Atlantic ports, see Julia Gaffield, “ ‘Outrages on the Laws of
Nations’: American Merchants and Diplomacy after the Haitian Declaration of
Independence,” in The Haitian Declaration of Independence: Creation, Context,
and Legacy, ed. Julia Gaffield (Charlottesville: University of Virginia Press, 2016).
8 Richard P. Fuke, “Blacks, Whites, and Guns: Interracial Violence in Post-
Emancipation Maryland,” Maryland Historical Magazine 92, no. 3 (Fall
1997): 327–47. Fuke provides a rich accounting of how guns were being wielded,
used, and spoken about.
9 “Work While It Is Day,” Freedmen’s Record, March 1, 1866. In 1867 the US Circuit
Court, sitting in Baltimore, would conclude that the state’s apprenticeship laws
violated the terms of the Civil Rights Act of 1866. “Judicial,” Christian Recorder,
October 26, 1867.
10 Bettye C. Thomas, “Public Education and Black Protest in Baltimore, 1865–1900,”
Maryland Historical Magazine 73, no. 3 (Fall 1976): 381–91.
219

Notes to Pages 150–160 219

11 Bettye Gardner, “Antebellum Black Education in Baltimore,” Maryland Historical

Magazine 71, no. 3 (Fall 1976): 360–66.
12 Richard Paul Fuke, “The Baltimore Association for the Moral and Educational
Improvement of the Colored People, 1864–1870,” Maryland Historical Magazine
66, no. 4 (Winter 1971): 369–404. “An Ordinance Supplementary to an Ordinance
Entitled An Ordinance Providing for the Education of Children of Colored Parents
in the City of Baltimore” (April 2, 1868), Item 1649, SC5511, Deposit Collection,
Baltimore City Archives Records Collection, MSA.
13 Most relevant here are Bond’s letters to his wife, “Katie,” most of which are
undated. Hugh Lennox Bond Papers, 1850–73, MS 1159, MHS.
14 On Bond, see Norman Gross, Noble Purposes: Nine Champions of the Rule of
Law (Athens: Ohio University Press, 2007).
15 William E. Matthews, “Maryland! My Maryland!” Lyceum Observer, June 5,
1863, 1.
16 “Mrs. Frances Ellen Watkins Harper,” Christian Recorder, February 17, 1866.
Melba Joyce Boyd, Discarded Legacy: Politics and Poetics in the Life of Frances
E. W. Harper, 1825–1911 (Detroit: Wayne State University Press, 1994).
17 “New York City Anti-Slavery Society,” National Anti-Slavery Standard, May
23, 1857.
18 Bettye C. Thomas, “A Nineteenth Century Black Operated Shipyard, 1866–
1884: Reflections upon Its Inception and Ownership,” Journal of Negro History
59, no. 1 (January 1974): 1–12.
19 Thanks to historian Natanya Duncan for making the connection between
George Hackett and Henrietta Vinton Davis for me. Natanya Duncan, “‘If Our
Men Hesitate Then the Women of the Race Must Come Forward’: Henrietta
Vinton Davis and the UNIA in New York,” New York History 95, no. 4 (Fall
2014): 558–83.

Epilogue
1 “Maryland Court of Appeals Adopts New Foreclosure Rule,” Daily Record,
October 19, 2010.
2 Joseph Roach, Cities of the Dead: Circum-Atlantic Performance (New York:
Columbia University Press, 1996), xii.
3 The Honorable James F. Schneider, A Guide to the Clarence M. Mitchell, Jr. Courthouse,
Baltimore, Maryland (Baltimore: Baltimore Courthouse and Law Museum Foundation,
2009). The Baltimore City Circuit Court & Baltimore Bar Library Art Collection in
Connection with the Maryland State Archives, MSA SC 5590.
4 “A Room to Chill the Blood,” Sun, March 23, 2008.
220
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239

Index

Abell, Arunah, 132 American Anti-Slavery Society, 1, 2, 6–7, 8,

abolitionists, 1, 3, 7, 45, 53, 54, 58, 91, 102–3, 164n4, 166n33
183n83; Baltimore and, 20, 39, 172n17, American Colonization Society (ACS), 37, 38,
178n24, 179n31, see also antislavery 39, 44, 130–31
movement; emancipation; slavery American Convention for Promoting the
Act for the Relief of Insolvent Debtors Abolition of Slavery, 45, 182n78
(Maryland), 111, 117, 207n23 American Notes (Dickens), xi, 108
Adams, John Quincy, 32, 43 American Revolution, 3, 4, 16, 23, 64, 165n15
African American political conventions, 37, Anderson, George, 120
43, 65, 210n8; birthright citizenship rights Anderson, John, 120
and, 36, 40–41, 63–64; black laws and, 9, Anglo-African Magazine, 128, 149
91, 129; colonization schemes and, antebellum law: birthright citizenship rights
94–96, 215n87; emigration and, 40, 70; and, 4–5, 12, 41; Cherokee sovereignty and,
free African American citizenship and, 43–44, 45, 128, 181n64; citizenship rights
90–91, 149; Hezekiah Grice and, 36, 40, and, 12, 42, 177n12; free African American
48–49, 149, 182–83n79; voting rights citizenship and, 1–6, 7–8, 9–12, 29–30,
and, 9, 63, 64, see also Baltimore; New 37–38, 40, 163n1; free African Americans
York State and, 1–6, 9–12, 13–14, 19, 24–25, 26,
African American press, 3, 17, 18–19, 20, 41–42, 168–69n52, 169n53, 170n65,
22–24, 34, 37, 65, 128, 149, 151, see also 174n53; patents and, 43, 181nn59, 61, see
Freedom’s Journal also black laws; black laws in Maryland;
African Americans, post-emancipation, xi, Dred Scott case; free African Americans
148, 155, 157, 218n; citizenship rights and, in court
5–6, 9, 10, 14–15; education and, 15, antislavery movement, 34, 107, 108, 152;
150–51; as soldiers, 146, 149–50; voting Baltimore and, 13, 35, 37, 39, 44, 45, 53,
rights and, 9, 100, 151 64–65, 151, 184n2, 199n28; free African
African Americans, pre-emancipation, see free American citizenship and, 1–3, 5, 89,
African Americans; slavery 167n41; Massachusetts and, 20–21, 57, 58;
African Methodist Episcopal (AME) Church, New York State and, 1, 8, 164n4,
6, 21, 83, 112, 179n31, 182–83n79, 165nn22–23; William Yates and,
215n87; Baltimore and, 16–18, 37, 39, 1–3, 6–7, 8, 164nn4, 11, 165nn22–23,
75, 78, 79; Bethel Church and, 16, 18, 78, 166n33, 167n41
79, 80, 195n42; Ebenezer AME Church apprentices, 14, 15, 100, 108, 109, 119–21,
and, 80, 84 123–26, 150, 218n9

239
240

240 Index

Arkansas, 129 Baltimore Female College, 77

Association for the Study of Negro Life and Baltimore Patriot, 31, 74, 175nn80, 83
History (ASNLH), 6 Baltimore Sun, 95, 118, 122, 144, 160,
Atwell v. Miller, 138 211nn20, 24–25; court reporting and, 137,
Augusta, Alexander T., 146, 148 211n23, 212n31; Dred Scott case and,
131, 132–34
Bailey, Gamaliel, 107 Bank of Maryland, 111
Baltimore: abolitionists and, 20, 39, 172n17, Banneker, Benjamin, 152
178n24, 179n31; African American political Baptist churches, 84–88, 196n60, 197n74
conventions and, 64, 65, 94–96; African Bates, Edward, 148
American press and, 17, 18–19, 34, 65, 151; Battee, Richard, 104
antislavery movement and, 13, 35, 37, 39, Berry, John, 124
44, 45, 53, 64–65, 151, 184n2, 199n28; Bethel Church, 52, 85, 149, 184–85n7, 192n1,
black laws and, 42, 46, 64–65, 91–92, 96, 194n33, 195n42; colonization schemes and,
97–98, 180nn46, 48, 199n30; churches 35, 59, 61, 188n9, 196–97n68; courts and,
and, 13–14, 16–18, 192n4; Civil War and, 71–72, 77–84, 86, 153, 196n52; emigration
146–48; colonization schemes and, 34, 35, and, 59, 61; free African American
37, 38–39, 48, 59, 95, 131; courts and, education and, 16, 18
66–67, 110, 155–60, 190nn47–48, 211n23; Bethel Church v. Carmack, 79–84, 196n52
debt and, 110–18, 206n9; emigration and, Binney, Horace, 45, 48, 128, 129, 182nn77–78
35, 38, 59–63, 64, 85, 95, 178n19, 180n41, Black convention movement, see African
188n9, 199n28; free African American American political conventions
churches and, 16–19, 20, 21, 52, 71–76, Blackistone, William, 93, 95
78–79, 80–88, 192n8, 192–93n9, 194n33; black laws: birthright citizenship rights and,
free African American citizenship and, 1, 89–90; colonization schemes and, 38, 39,
23–24, 52, 170n65; free African Americans 46–48, 128; courts and, 14, 96, 97–98,
and, 12, 21–22, 39, 164n6, 173nn29–30; 116; education and, 5, 26, 129; free African
free African Americans in court and, 13, 24, American churches and, 21, 73, 79, 83, 94,
65–66, 67–70, 71, 72, 96, 97–106, 110–27, 192n7, 194–95n35; free African American
137, 190n47, 214n70; German immigrants opposition to, 9, 13, 40, 91, 94–95, 96,
and, 122, 209n52; gun ownership and, 90, 107, 144–45; free African American
102–6, 107, 204n86; Irish immigrants and, removal and, 1, 90, 94, 107; free African
121–26, 208nn50–51, 209nn52, 54; new American seamen and, 26, 30–34, 181n58;
antebellum buildings and, 66–67, 190n42; in-migration and, 5, 25, 27, 47, 94, 149;
Reconstruction and, 150–52, 153; sailors interstate travel and, 21, 25, 28, 30–32,
and, 22, 53, 173nn29–30; slavery and, 33, 94; militia service and, 3, 25, 102, 149;
76–77, 94, 193n23; Roger B. Taney and, 13, naturalization and, 3, 25, 106; property
68, 128, 133, 155, 156, 157–58, 159, 160, and, 26, 29, 70, 94; Reconstruction and,
212nn31, 35; transport connections and, 149, 150, 202n67; religious meetings and,
19–20, see also Legal Rights Association; 47, 73, 79, 83, 192n7, 194–95n35; rights in
Maryland court and, 3, 9, 26, 129, 137–38, 143–45,
Baltimore (monument), 66 174n53; state constitutions and, 26, 27, 28,
Baltimore American, 130 29, 102; voting rights and, 3, 25–26, 28, 29,
Baltimore Association for the Moral and 39, 194–95n35
Educational Improvement of the Colored black laws in Maryland, 16, 96; African
People, 150–51, 202n62 American press and, 64–65, 149, 151,
Baltimore Bar Library, 158–59 190n38; Baltimore and, 42, 46, 64–65,
Baltimore Clipper, 20 91–92, 96, 97–98, 180nn46, 48, 199n30;
Baltimore Courthouse and Law Museum colonization schemes and, 46–48,
Foundation, 158 57–58, 60; courts and, 97–98, 174n46; gun
Baltimore Emigration Society, 35 ownership and, 47, 90, 91–92, 102–6; in-
Baltimore Exchange, 76 migration and, 25, 28, 47, 94, 99, 201n53;
241

Index 241

property and, 26, 70, 94; religious meetings 165n20; taxation and, 29, 173n37; voting
and, 47, 73, 79, 83; rights in court and, rights and, 9, 11, 198n8, 213n47, see
26, 129, 137–38, 143–45, 174n53; state also black laws; black laws in Maryland;
constitution and, 26, 28, 60; travel and, free African American citizenship; US
21, 25, 26, 60, 68, 70, 91–92, 94, 99–102, Constitution
201nn52–54; voting rights and, 25–26, 28, Civil Rights Act of 1866, 5, 11, 12, 14,
39, 194–95n35, see also Maryland 110, 218n9
Black Man: His Antecedents, His Genius, and Civil War, 146–48
His Achievements, The (Brown), 6, 8 Clagett, John, 122–23
Bleak House (Dickens), 108, 110, 126, Claxton, Alexander, 53, 55, 56, 57
205nn1–2 Clayton, Moses, 84, 85, 86, 87–88, 116,
Bond, Hugh Lennox, 100, 150–51, 196n66, 196–97n68
202n62, 219n13 Clinton, DeWitt, 32, 34
Bowers, Nathan, 104–5, 149–50, 204n86 Coker, Daniel, 78, 79, 182–83n79
Boyer, Jean-Pierre, 35 colonization schemes, 20, 34, 177n10,
Brazil, 53, 55, 56 182n78; African American political
Brent, Robert J., 103 conventions and, 94–96, 215n87; forced
Brice, Nicholas, 38, 61 removal and, 1, 13, 46–48, 50, 57, 58, 59,
British Guiana, 59, 60, 61, 62, 63, 85 94, 128, 143, 144, 153, 191n58, 198n18;
Brown, Benjamin, 86–87 free African American citizenship and, 23,
Brown, George William, 68, 100, 105, 37, 39, 178n17; free African American
131, 202n61 opposition to, 13, 37, 38–39, 40, 44, 46,
Brown, John Mifflin, 112 49, 57, 58, 63, 95–96, 166n33, 178n17,
Brown, Stewart, 105 182nn66, 68; Indian removal and, 43–44,
Brown, William Wells, 6, 8 128, 182n65; removal and, 41, 47–48,
Brune, Frederick, 68, 131 57–58, 60–61, 63, 88, 90, 93–94, 129; US
Buchanan, James, 100 Congress and, 37, 38, 47, 95; white support
Burrill, James, 28 for, 37–38, 131, see also Baltimore; British
Bush, James, 74–76 Guiana; emigration; free African American
Butler, Benjamin, 150 churches; Haiti; Liberia; Maryland; Trinidad
Butler Guard, 149–50 Colored American, 57, 62–63, 65,
165n22, 167n41
Calhoun, William Henry, 98, 99, 100–101, Colored Independent Wesleyan Methodist
105, 201n47 Church, see Zion Church
California, 129, 210n8; San Francisco and, 8, Colored National Convention, 90–91
9, 72, 83, 196n57 Commentaries on American Law (Kent), 3, 29
Campbell, J. Mason, 60, 68, 135 Commission for Insolvent Debtors, 110, 111,
Canada, 37, 39, 40, 49, 148, 150, 179nn30–31 114–15, 116, 117–19, 206n9
Carey, John, 86, 87–88 Committee on the Free Colored Population,
Caribbean, 19, 20, 22, 173n30; emancipation 93–94, 96, 143, 198nn14, 18
and, 23, 59–60, 61, 62; emigration and, 59, Condition, Elevation, Emigration, and Destiny
60–63, 64, 85 of the Colored People of the United States,
Carmack, Joel, 80, 81, 82, 196n52 The (Delany), 89
Carr, William C. N., 125 Connecticut, 5, 31, 64
census, 25, 115–16, 174n47 Cook v. Gheislen, 117
Cherokee Nation v. Georgia, 43 Corfield v. Coryell, 10
Cherokee sovereignty, 43–44, 45, 128, 181n64 Cornish, Samuel, 18–19
churches, see Baltimore; free African American Cowley, Robert, 35, 37, 64
churches Crandall, Prudence, 5
citizenship, 15, 29, 88, 182n65, 182n77, Crane, William, 84, 85, 87, 88, 197n74
185n11, 206n19; antebellum law and, 12, Crew, Edward T., 61–62
42, 177n12; slaves and, 5, 9, 29–30, 131, Cuba, 53, 55–56, 187n34
242

242 Index

Cuffe, John, 23, 173n37 permits and, 61, 94, 98, 189n19, see also
Cuffe, Paul, 23, 173n37 colonization schemes; Haiti; Liberia
Ex parte Merryman, 148
Daly, Suzanne, 126
Davis, Henrietta Vinton, 153, 219n19 Fifteenth Amendment, 152, 153
Davis, Noah, 87, 88 First Baptist Church, 84–87, 196n60
Deaver, James, 35, 37, 39, 40, 41, 179n31 Forrest, French, 55
Declaration of Independence, 4, 31, 40, 41, Forsyth, John, Sr., 33
50, 64, 90 Fourteenth Amendment, 1, 5, 9, 153
Delany, Martin, 89–90, 197n3 France, 23, 25, 38, 174n50, 184n99, see
Delaware, 7, 65, 101, 164n5 also Haiti
democracy, 11, 37 Frederick Douglass’ Paper, 53, 108, 205n1
desegregation, 15, 155 free African American churches, 6, 71–76,
Dickens, Charles, xi, 108, 109, 126, 112, 192–93n9, 194nn29–30; Baltimore
205nn1–2 and, 16–19, 20, 21, 52, 71–76, 78–79,
Doctrines and Discipline, 18, 78–79, 83 80–88, 192n8, 192–93n9, 194n33; Baptist
Dorchester County, 137, 138–41, 215n81 churches and, 84–88, 196n60, 197n74;
Dorsey, Michael, 123, 124 black laws and, 21, 73, 79, 83, 94, 192n7,
Douglass, Frederick, 57, 90, 94–95, 108, 134, 194–95n35; church law and, 18, 74,
152, 153, 176n95, 184nn1–2 78–79, 83, 88; church tribunals and, 18, 81,
Douglass, William, 39, 152, 178n21 83; colonization schemes and, 35, 59, 61,
Dover Eight, 139 62, 88, 188n9, 196–97n68; constitutions
Dred Scott case, 13, 114, 131–36, 146, 159, and, 78–79, 80, 82, 83, 84–85; courts and,
214nn62, 64, 66; Baltimore press coverage 71–72, 74, 76, 77–84, 86–88, 153, 196n52;
and, 14, 129, 131, 132–34; courts and, 14, debt and, 75–76, 77, 86, 87, 193nn16–17;
134–35, 137–38, 141–44, 145, 212–13n46; education and, 16, 18, 20; emigration and,
free African American citizenship and, 9, 59, 60–61, 62, 85, 188n9; incorporation
112, 128, 131, 133–36, 143, 168n50, and, 74, 78, 79, 84–85, 87, 192n1, 193n11,
212–13n46, 213nn47, 56–57, 217n115; 196n60; property and, 13–14, 18, 79,
slavery and, 9, 129, 131, 132, 137, see also 86–87, 88, 94, 137, see also African
Taney, Roger B.; US Supreme Court Methodist Episcopal (AME) Church;
Bethel Church
Ebenezer AME Church, 80, 84 free African American citizenship: African
Elevator, 8, 9 American political conventions and, 36,
Ellis, Powhatan, 55 40–41, 63–64, 90–91, 149; antebellum law
emancipation, 13, 39; British Caribbean and, and, 1–6, 7–8, 9–12, 29–30, 37, 40,
23, 59–60, 61, 62; gradual emancipation 163n1; birthright citizenship rights and,
schemes and, 19, 20, 21, 30, 37, 175n70; 4–5, 9, 14, 27, 36, 39, 41, 42, 50–52, 63–64,
northern cities and, 20–21 89–91, 128–29, 153; Civil War and,
Emancipation Proclamation, 148 146–48; colonization schemes and, 23, 37,
emigration: Baltimore and, 35, 38, 59–63, 64, 39, 178n17; courts and, 1–3, 10, 13, 14,
85, 95, 178n19, 180n41, 188n9, 199n28; 19, 70, 88, 120, 153; debt and, 112, 119,
British Caribbean and, 59, 61–63, 64, 85; 206n19; free African American seamen and,
Canada and, 37, 39, 40, 49, 148, 150, 23, 52–53, 64, 185n11; gun ownership and,
179nn30–31; citizenship rights and, 11, 102–3, 105–6; Indian removal and, 43–45,
70, 89–90, 128; vs. colonization schemes, 128, 182n65; passports and, 147, 149,
37–38; free African American churches 165n22, 200n36, 218n6; state constitutions
and, 59, 60–61, 62, 85, 188n9; free African and, 23, 24, 26–27, 29–30, 90, 92–93,
American embrace of, 35, 37, 49–50, 59, 197n3, 198n8, 213n47; taxation and, 23,
178n19, 199n28; free African American 173n37; travel permits and, 96, 97–98,
opposition to, 62, 63, 166n33; New York 99, 101, 107; women and, 152, see also
State and, 59, 62, 63, 166n33; travel African American press; Baltimore; black
243

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laws; black laws in Maryland; Dred Scott 34; dog ownership and, 105, 127; gun
case; free African American voting rights; ownership and, 14, 47, 90, 91–92, 102–6,
Maryland; Missouri; New York State; US 107, 127, 150, 203n73, 204n86; racial
Congress; US Constitution designation and, 116, 205n97, 214n70;
free African American interstate travel, 12, 14; testifying rights and, 3, 26, 129, 134, 137,
black laws and, 21, 25, 26, 28, 30–32, 33, 141, 142–43, 149, 174n53, 216n94; travel
94, 99–102, 201nn52–54; travel permits permits and, 60, 61, 68, 69–70, 91–92, 98,
and, 60, 68, 69–70, 91–92, 96, 97–98, 99–101, 105, 107, 189n19, 191nn55–56,
99–101, 107, 191nn55–56, 202nn61, 64, 202nn61, 64, 203n70; white lawyers and,
203n70; US Supreme Court and, 11, 91, 41–42, 100, 102, 104, 105, 106, 117,
96, 97, 199n32, 200nn35–36, see also 142, 201n58, 202n61, 206–7n20, see
emigration also Baltimore; black laws; black laws in
free African Americans: antebellum law and, Maryland; Dred Scott case; free African
1–6, 9–12, 13–14, 19, 24–25, 26, 41–42, American churches
168–69n52, 169n53, 170n65, 174n53; free African American voting rights: African
children and, 140, 148, 150, 215n91; American political conventions and, 9, 63,
defined, 164n6; education and, 5, 16, 18, 64; citizenship rights and, 3, 4, 5, 19, 29,
20, 26, 52, 84, 89, 129, 149, 150–51; 63, 64, 92, 135; disenfranchisement and, 3,
hunting and, 104, 105; as lawyers, 100, 25, 26, 28, 39, 64, 174–75n65, 194–95n35,
201n57; military service and, 3, 5, 28, 64, 198n8, 213n47; Maryland and, 25–26, 28,
165n15; militia service and, 3, 25, 102, 149, 39, 92, 143, 194–95n35, 198n8; New York
150, 203n72; as nightmen, 123; patents State and, 3, 19, 29, 63, 174–75n65, see
and, 43, 181n61; population growth, also black laws; black laws in Maryland;
early nineteenth century, and, 13, 93, 139, voting rights
198n14, 215n81; property and, 26, 29, 93, Free Colored People’s Convention, 94–96
94, 143, 198n18; sale into servitude and, Freedmen’s Bureau, 151
19, 21, 25, 30–33, 45, 67, 77, 99, 123, 124, Freedom’s Journal, 17, 18–19, 20, 22–24, 30,
208n40; seasonal work and, 21, 68, 98, 99; 34, 37, 39, 65, 151, 178n25, 179nn28, 31
state constitutions and, 93–94, 96, 134–35, Freeman, Moses, 35, 37
213n47; as Union soldiers, 146, 148, Freeman, Richard, 62
149–50, 152; white lawyers and, 151, Freyer, Tony, 114–15
153; wills and, 127, 153, 215n82, see also Friendship Society, 39–40, 179n31
colonization schemes; emigration; free Fugitive Slave Act of 1850, 130, 199n28
African American churches; free African
American citizenship; slavery Garnet, Henry Highland, 6, 152
free African American seamen, 22, 137, Garrison, William Lloyd, 20, 34, 39, 151,
173nn29–30, 186n23; barred from 172n17, 178n24, 182nn66, 68
disembarking, 42–43, 48, 56, 130, 181n58, Garvey Movement, 153
187n34; black laws and, 26, 30–34, Gatchell, William, 130, 210n9
181n58; citizenship rights and, 23, 52–53, Genius of Universal Emancipation (Lundy),
64, 185n11; legal proceedings and, 54–55, 20, 38, 39, 40, 50, 151
186n22; presumed to be slaves, 19, 30–31, Georgia, 43, 44
34; racism and, 52, 54; Seamen’s Protection German immigrants, 121–22, 205n97, 209n52
Certificates and, 51, 53, 185n11; as Geyer, Henry, 133
stewards, 52, 53–55, 56 Gibbons v. Ogden, 42
free African Americans in court: Gibbs, Ebenezer, 119, 120
apprenticeship contracts and, 14, 15, 108, Gibson, Henry, 70
109, 119–21, 123–26, 150; children and, Gilliard, Mary Jane, see Hackett, Mary Jane
119–21, 124–26; citizenship rights and, 106; Gilliard, Nicholas, 61, 184–85n7
crimes and, 41, 65, 67, 97, 98, 104, 105, Gloucester, Stephen, 65
116, 117, 134, 149; debt and, 18, 70, Godefroy, Maximilian, 66
108–10, 112–15, 116–19, 137, 207nn24, Goldsborough, Charles, 142
244

244 Index

Gorsuch, Edward, 103, 143 Haitian Emigration Association, 37

Govan, Charity, 98, 99, 100, 101 Haitian Revolution, 22, 173n30
Granville, Jonathan, 35, 37 Hall, James, 131
Grason, Richard, 101–2 Hamilton, Robert, 149
Grason, William, 110 Hancock, Harold, 7
Gray, Horace, 136, 214n66 Handy, Alexander, 135
Great Britain, 56, 59, 130, 187n34; British Hanway, Castner, 103, 203n76
Caribbean and, 23, 59–60, 61–63, 64, 85 Hardy, Samuel, 104–5, 204nn86, 89
Green, Oliver, 31, 32, 175n78 Harper, Robert Goodloe, 41
Green, Sam, 139 Harris, William, 135
Green, Thomas, 37 Harvey, Thomas, 101, 202–3n69
Grice, Hezekiah, 151, 178nn21, 24–25, 27, Heard, Wanda, 159–60
179nn28–29; African American political Heath, U. S., 61
conventions and, 36, 40, 48–49, 149, Hill, Benjamin, 123
182–83n79; emigration and, 39, 40, 48–49, HMS Romney, 56
147, 149, 184n99, 218nn6–7; free African Hobbs, et al. v. Fogg, 64
American citizenship and, 36, 37, 39, 40, Honig, Bonnie, 11
41, 42, 43, 44–45, 48–49, 128–29, 145, Horton, Gilbert, 19, 30–33, 34, 175nn71, 80,
147, 149, 218n6; Legal Rights Association 83, 176nn93, 95
and, 37, 39, 40, 41, 42, 47, 48–49, 145, 147, Horton, Peter, 30
179–80n34 Horwitz, Benjamin, 116, 117, 118, 153,
Griswold, Elias, 141–42 206–7n20
Groves v. Slaughter, 97 Horwitz, Orville, 68, 86, 153, 206–7n20
gun ownership, 203n76, 218n8; free African Horwitz, Theophilous, 153
Americans and, 14, 47, 90, 91–92, 102–6, House of Refuge, 77
107, 127, 150, 203n73, 204n86 Hughes, Daniel, 69
Hughes, Denwood, 139–40, 141
Hackett, Charles, 16–19, 52, 59; African Hughes, Josiah, 139–40, 141, 215n87
American press and, 17, 18–19, 22, 37, 39, Hughes, Mary Ann, 140
151, 178n25; Bethel Church and, 16, 18, Hughes, William, 139, 140, 141, 215nn82, 91
35, 79, 82, 184–85n7 Hughes v. Jackson, 129, 137, 138, 139,
Hackett, George, 16, 18, 58, 61, 79, 143, 159, 141–42, 143, 144, 148, 216n94
179n31, 219n19; Baltimore and, 59, 65–66, Hughlett Bill, 47
188n1; Bethel Church and, 18, 52, 59, 71,
81, 82, 83–84, 184–85n7, 195n42; black Illinois, 134
laws and, 144–45; courts and, 52, 65–66, Indiana, 134
83–84, 109, 111–14, 118, 185n8, 206–7n20; Ing, John, 104
death and, 153; debt and, 109, 111–14, 118, insolvency trustees, 116–17, 207n34
206n19, 206–7n20; free African American interracial marriage, 149
citizenship and, 149, 206n19; as ship’s Irish immigrants, xi, 121–26, 205n97,
steward and, 52, 53–55, 56–57 208nn50–51, 209nn52, 54
Hackett, Henrietta, 82, see also Davis,
Henrietta Vinton Jackson, Andrew, 5, 43, 91
Hackett, Mary Jane, 52, 59, 184–85n7 Jackson, Mary, 139, 140, 141, 148,
Hackett, William, 124 215nn82, 91
Hahn, Steven, 13 Jackson, Samuel, 129, 139–40, 141, 142,
Haiti, 176n2; citizenship rights and, 38, 48, 143, 148
49, 128; colonization schemes and, 35, 37, Jacobs, Curtis, 94, 143–45, 198n18
38, 128, 177n10, 180n41; emancipation Jason v. Henderson, 137–38
and, 23, 128; emigration and, 35, 37, 38, Jay, John, 32
39, 48–49, 128, 147, 149, 180n41, 184n99, Jay, William, 32, 34, 176n95
218nn6–7 Jennings, Elizabeth, 179–80n34
245

Index 245

Jennings, Thomas, 43, 181n61 Lyceum Observer, 151

Jim Crow, 155 Lynch, J. A., 124
Johns, Asbury, 138
Johnson, Alward, 140, 141 Maddox, James, 121
Johnson, Charity Govan, 98 Maine, 134–35
Johnson, James, 123 Marshall, Thurgood, 155
Johnson, John, 82, 196n52 Marshall, William, 117
Johnson, Maria, 124–25 Martin, Alexander, 105
Johnson, Reverdy, 14, 111, 128, 133, 211n29 Martin, Luther, 22
Jolly, Isabella, 125–26 Maryland, 20; apprenticeship contracts and,
Jones, James H., 114–15, 118, 137 119, 150, 218n9; church incorporation
Jones, William, 124 and, 74, 84; colonization schemes and, 13,
Justices’ Practice under the Law of Maryland, 14, 38, 41, 46–48, 50, 57–58, 60–61, 95,
The (Latrobe), 41 130–31, 143, 144, 178n19, 191n58; debt
and, 110, 111, 113–14, 117, 205–6n5,
Kellogg, Miner Kilbourne, 158 207n23; forced removal of free blacks and,
Kent, James, 3, 29–30 13, 14, 46–47, 57, 58, 59, 92–94, 198n18,
Kingman, Elias, 132, 211n25 217n121; free African American citizenship
Know-Nothing Party, 100, 105 and, 24–25, 28, 70, 92–93, 142, 143, 164n6,
Ku Klux Klan, 151 198n8, 217n116; free African American
Kuster, Charles, 124 education and, 18, 26; hunting and, 104,
105; Reconstruction and, 150–52; slave
Lamar, Charles, 134 manumission and, 69, 94, 191n58; slavery
Latrobe, John H. B., 41–42, 95, 131, and, 12–13, 21, 22, 37, 76–77, 92, 129, 139,
180nn41, 43 143, 148, 150, 173n27, 198n7, 207n23;
Lawrenson, James, 132, 211n24 state constitution of, 24, 26, 92–94, 95, 96,
lawyers, ix–xii, 161nn1, 4, see also free 102, 110, 142, 143, 148, 150, 198nn7–8,
African Americans; free African Americans 18, 216n102; voting rights and, 25–26, 28,
in court 39, 92, 143, 151, 194–95n35, 198n8, see
Leakin, S. C., 61 also Baltimore; black laws in Maryland
Lee, Z. Collins, 97, 102, 104, 105, Maryland Baptist Union Association, 84
106, 204n86 Maryland Court of Appeals, 86, 137, 138,
Legal Review of the Case of Dred Scott, A 141, 142, 145, 216n102
(Gray), 136 Maryland State Colonization Society, 38, 41,
Legal Rights Association, 37, 39, 40, 41, 47–48, 57, 100, 130–31, 178n19, 191n58
42, 46, 47, 48–49, 50, 128, 145, 147, Maryland Union Baptist Association, 85
179–80n34 Massachusetts, 96, 102, 136, 201n57, 203n72;
Legrand, John Carroll, 137, 138, 142–43, 145 antislavery movement and, 20–21, 57, 58
Liberator (Garrison), 34, 39, 65, 151 Matthews, William, 151, 152
Liberia: citizenship rights and, 23, 49, 93, McCullough v. Maryland, 42
95; colonization schemes and, 23, 37, 38, McKenna, Sarah, 121, 122
39, 60, 93, 95, 131, 178n19, 191n58; McLean, John, 134
emigration and, 23, 39, 48, 94, 178n19, Methodist Episcopal Church, 78
179nn28, 31 Mexico, 53, 55
Lincoln, Abraham, 148, 149, 201n58 Michigan, 64
literacy, 18, 74, 75 Milleman, George, 66, 190n42
Livingstone, Edward, 48 Mississippi, 129, 135, 213nn56–57
Logue, Peter, 114, 137 Missouri, 183n81; free African American
Louisiana, 5, 91, 213nn56–57 citizenship and, 26–28, 29, 30, 33, 90–91;
Lowndes, William, 28 in-migration and, 5, 19, 27, 96
Lundy, Benjamin, 20, 37, 38, 39, 40, 177n10, Missouri Compromise, 131
178nn24, 27, 182nn72, n78,, 185n13 Mitchell, Clarence M., Jr., 155–56
246

246 Index

Mitchell, Joseph, 134 Pairpoint, Alfred, 98

Mitchell v. Lamar, 134 Palmer, Edward, 110, 112, 114–15, 116, 117,
Moale, Randle, 75 118, 206n8
Moan, Michael, 121, 122–26, 209n65 Parker, William, 103, 203n76
Monument Square, 66, 67, 68, 103, 111, 153, Passenger Cases, 97, 200n35
155, 157 Payne, Daniel, 71, 79–80, 81
Moore, Jacob, 74, 75, 76 Peck, Nathaniel, 61, 62–63, 64, 188n9, 195n40
Murray, Daniel, 144–45 Pennsylvania, 19, 21, 45, 64, 103
Myers, John, 6–7, 8, 166n31 Pennsylvania Abolition Society, 45, 183n83
Perine, David, 68, 135, 191nn55–56
National Association for the Advancement Phoenix Society, 64
of Colored People (NAACP), 155 Pitts, John, 65, 190n41
Native Americans, 5, 173n37, 182n65; Pratt, David, 116, 117, 118, 207n34
Cherokee sovereignty and, 43–44, 45, Pratt, Joseph A., 116–17
128, 181n64 Price, Thomas, 61, 62–63, 188n9
naturalization, 3, 12, 25, 106 Purnell, Daniel, 74, 76, 193n17
Naturalization Act of 1790, 25 Purnell, Matilda, 74, 193n17
Negro seamen acts, 52–53, 181n58 Purvis, James F., 76–77, 193n23
Negro Seamen’s Act (South Carolina),
42–43, 48 racism, 3–4, 16, 40, 65, 89, 146, 148, 151; the
New Jersey, 3, 64 navy and, 52, 54
New York Association for the Political railroads, 20
Elevation and Improvement of the People Ray, Charles, 63, 166n33, 167n41
of Color, 7 Raymond, Daniel, 37, 45, 177nn7, 10,
New York City, xi–xii, 31, 179–80n34, 182n78
209n67 Reconstruction, 148, 150–52, 153, 155;
New York City Housing Court, ix–xii, African American citizenship rights and,
162n9 5–6, 9, 10, 14–15; black laws and, 149,
New York State: African American political 150, 202n67
conventions and, 40–41, 62, 63, 90–91; religion, 11–12, 72–76, see also free African
antislavery movement and, 1, 8, 164n4, American churches
165nn22–23; emigration and, 59, 62, 63, religious meetings, 12, 70, 71; black laws and,
166n33; free African American citizenship 47, 73, 79, 83, 192n7, 194–95n35
and, 28–30, 31–33, 34, 63–64, 90–91, Revolutionary War, see American Revolution
167n36, 176n95; gradual emancipation Reynolds v. United States, 12
schemes and, 19, 21, 30, 175n70; slavery Rhode Island, 28, 64, 102, 129
and, 29–30, 174n64, 175n70; state Ridgeway, Henry, 74, 193n16
constitution and, 26–27, 29–30, 32; Right, Henrietta, 124–25
voting rights and, 3, 19, 29, 63, Rights of Colored Men to Suffrage,
174–75n65 Citizenship, and Trial by Jury (William
Nichols, Hamlet, 41 Yates), 1–6, 7–8
night soil, 123, 209n67 Roach, Joseph, xii, 157
Niles, Hezekiah, 20, 21 Rollins, Edward, 120
Niles’ Register, 20 Rollins v. Anderson Brothers, 120
North Carolina, 129 Root, Basil, 114, 137
Russworm, John, 39, 179nn28, 31
Ohio, 102, 103, 134, 213n47
Orphan’s Court, 68, 119–20, 124–25, 126, Sandford, John, 131–32, 133
150, 206n8 San Francisco, 8, 9, 72, 83, 196n57
Owen, John, 31–32 Scott, Dred, 131–32, 141, see also Dred
Owings, Caleb, 119–20, 208n40 Scott case
Owings v. Williams, 119–20 Scott v. Sandford, see Dred Scott case
247

Index 247

Seamen’s Protection Certificates, 51, Taney, Roger B., 46, 48, 148; Baltimore and,
53, 185n11 13, 68, 128, 133, 155, 156, 157–58, 159,
Second Amendment, 91, 103 160, 212nn31, 35; current legacy of, 155,
Second Baptist Church, 87, 197n74 156, 157–58, 159, 160; Dred Scott case
segregation, 78, 179–80n34 and, 9, 13, 14, 128, 129, 131–36, 137, 142,
Sergeant, John, 28, 45, 48, 128, 129, 181n64, 143, 145, 146, 168n50, 214nn62, 64, 66;
183nn81, 83 interstate travel and, 60, 68, 69, 97, 191n55;
Sharp Street Methodist Church, 20, 52, 61, 62, slave manumission and, 69, 191nn57–60
73, 78, 194n29 Taylor, Mary, 83
Shaw v. Brown, 135, 213nn56–57 Teackle, Mary, see Jackson, Mary
slavery, 12–13, 174n64, 175n70, 182n78, Texas, 53, 185n13
207n23; in the Americas, 53, 54, 185n15; Thompson, Cornelius, 60, 68, 69–70, 159,
citizenship rights and, 5, 9, 29–30, 131, 179n31; manumission and, 69,
165n20; courts and, 37, 45, 67, 116, 137, 191nn57–60
141, 143; Dred Scott case and, 9, 129, 131, Tiffany, Joel, 102–3, 165n20
132, 137; France and, 25, 174n50; free Tiffney, Henry, 130
African Americans and, 3, 5, 18, 19, 22, Trail of Tears, 43
103, 139–40, 143–44, 203n76, 215n82; Trinidad, 59, 60, 61–62, 63, 85, 189n19
fugitives and, 30–31, 45, 67, 103, 130, 137, Trusty, Jonathan, 117–18
139–40, 199n28, 203n76, 211n20; Great Tubman, Harriet, 139
Britain and, 56, 59, 187n34; gun ownership Turner, Daniel, 53, 55
and, 103, 104, 203nn73, 76; manumission Turner, Nat, 46, 79
and, 18, 22, 30, 69, 85, 94, 100, 124, 141, Tyson, Elisha, 44, 182n72
144, 168n45, 191n57, 196n66, 215n91; Tyson, John, 44, 182n72
Northern cities and, 20–21; slave trade
and, 25, 53, 76–77, 172n17, 193n23, Uncle Tom’s Cabin (Stowe), 139
211n20; slave uprisings and, 21, 46, 79, Union Baptist Church, 86–87
139, 143–44; the South and, 21, 45, see US Congress, 43, 174n47, 205–6n5, 206n12;
also abolitionists; antislavery movement; black laws and, 25, 28; colonization
emancipation; Maryland; New York State schemes and, 37, 38, 47, 95; free African
Small, Jacob, 42, 180n46 American citizenship and, 24–25, 27–28,
smallpox, 122 29, 32–34, 90–91; free African American
Smith, David, 79 seamen and, 43, 52; Missouri and, 26–28,
Smith, James McCune, 53 33, 90–91, 96, 183n81
Snell, Charles, 120–21 US Constitution, 19, 22, 148, 205–6n5;
South Carolina, 27, 48, 151 birthright citizenship rights and, 39–40, 41,
State v. Crandall, 64 43–44, 90–91; black laws and, 42, 180n48,
State v. Dale, 117 181n58; Cherokee sovereignty and, 43, 44;
State v. Fisher, 26 citizenship rights and, 10, 28, 29, 32, 33, 41;
Stevens, John, 131 colonization schemes and, 47, 48; commerce
Stewart, David, 100 clause and, 96, 199n32; free African
Stewart, John, 100 American citizenship and, 4, 5, 24, 26, 33,
Stokes, Darius, 71–72, 80, 81, 83, 37, 45, 48, 64, 128, 135, 136, 197n3; free
195n42, 196n57 African American rights in court and, 131,
Stokes, Robert, 71, 81 142; gun ownership and, 91, 103; privileges
Story, Joseph, 3 and immunities clause and, 4, 5, 10, 24, 26,
Stowe, Harriet Beecher, 139 27, 28, 29, 32, 33, 40, 41, 43, 64; voting
Stump, Henry, 97, 99, 101, 150 rights and, 29, 152
US Navy, 52, 53, 54–55
Talbott, William, 100 USS Constitution, 53–57
Taney, Anne, 60, 68, 191n55 USS Macedonian, 30, 175n79
Taney, Octavius, 46–48, 143 USS St. Louis, 55
248

248 Index

US Supreme Court, 8, 13, 48, 183n81, Watkins Harper, Francis Ellen, 152
205–6n5; Cherokee sovereignty and, Weekly Anglo-African, 144, 217n121
43–44, 45, 181n64; Dred Scott case and, Wesley, Charles, 6, 7
9, 128, 129, 131–36, 137, 138, 141, 145; Whelan, George, 76
interstate travel and, 11, 91, 96, 97, 199n32, White Sulphur Springs, 68, 99
200nn35–36 white supremacy, 104, 142, 156
Whittlesey, Elisha, 131
Vermont, 27 Wickliffe, Charles, 33
voting rights, 92; African Americans, post- Williams, George W., 148
emancipation, and, 9, 100, 149, 151; Wirt, William, 48, 181nn52–53; Cherokee
citizenship rights and, 9, 11, 198n8, sovereignty and, 43, 44, 45, 128, 181n64;
213n47; US Constitution and, 29, 152; free African American citizenship and,
women and, 152, 165n17, see also black 44–45, 128, 129, 148; free African
laws; black laws in Maryland; free African American seamen and, 42–43, 52,
American voting rights; Maryland 181n58
Wisconsin, 129, 134
Walker, John, 95 Worcester v. Georgia, 43, 45
Wallace, James, 142 Worthington, W. D. G., 61
Ward, Aaron, 32–34 writ of habeas corpus, 14, 97, 120–21,
War of 1812, 5, 64, 66 125–26, 137, 148, 150
Washington, Bushrod, 10
Washington, DC, 25, 45, 69, 191nn59–60, Yates, Emeliner, 8, 168n45
211n25; free African American citizenship Yates, William, 1–8, 9, 164n5, 165n15,
and, 33–34; free African American seamen 166n31; antislavery movement and,
and, 19, 30–31, 32 1–3, 6–7, 8, 164nn4, 11, 165nn22–23,
Watkins, Thomas, 97, 99 166n33, 167n41; free African American
Watkins, William, 37, 102, 152, 180n48; citizenship and, 1–8, 91, 148, 165n17; racial
African American press and, 65, 151, background and, 7, 167n36
178n16, 199n28; colonization schemes and, Yates, William (African American), 8–9,
38, 40, 46, 179n30; free African American 168n45, 210n8
citizenship and, 45, 50, 184n2; free African
American education and, 52, 150; Legal Zion Church, 73, 74–76, 77,
Rights Association and, 39, 40, 41, 42, 50 193nn11, 18