676
ARTICLE
THE FIRST CIVIL RIGHTS MOVEMENT: BLACK RIGHTS IN THE AGE OF
THE REVOLUTION AND CHIEF TANEY’S ORIGINALISM IN DRED SCOTT
Paul Finkelman
*
TABLE OF CONTENTS
INTRODUCTION ....................................................................................... 677
I. TANEY’S RACIST AND HISTORICALLY INACCURATE
CHARACTERIZATION OF BLACKS AT THE FOUNDING ...................... 679
II. BLACK RIGHTS IN THE CONTEXT OF THE REVOLUTION ................. 684
III. INEQUALITY ON THE EVE OF THE AMERICAN REVOLUTION .......... 687
IV. SLAVERY FROM ANTIQUITY TO THE MODERN ERA ........................ 691
V. SLAVERY AND FREEDOM ON THE EVE OF THE REVOLUTION: THE
BEGINNING OF CIVIL RIGHTS IN AMERICA ...................................... 695
VI. SLAVERY IN THE NORTH AND THE REVOLUTION .......................... 701
VII. THE REVOLUTION AND THE FIRST CIVIL RIGHTS MOVEMENT .. 703
*
Chancellor and Distinguished Professor of History, Gratz College. I presented an early version of
this article in 2021 at the Aoki Center for Critical Race and Nation Studies, at the University of
California, Davis, School of Law, for the symposium “Dred Scott—Beyond Black and White”; this
event was part of the Center’s series on Law and Free People of Color. I also presented some of
this at a symposium at Boston University Law School. I thank the historians, law professors,
graduate students, and law students who attended the presentation and commented and the
students and faculty at Providence College, where I also presented this work. I thank Gabriel Jack
Chin, Greg Downs, Andrew Fede, Owen M. Fiss, Mary Louise Frampton, Eric M. Freedman,
Allen C. Guelzo, Candace Jackson Gray, Gary Lawson, Kate Masur, Sharon Murphy, James
Oakes, David Thomas Orique, O.P., David Richardson, Peter Wallenstein, and Owen Williams
for their comments on this article and I thank Katherine E. McKeen at this Journal for her excellent
editing.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 677
VIII. TOWARD FREEDOM AND CIVIL RIGHTS ....................................... 707
A. Massachusetts ................................................................................ 707
B. Pennsylvania .................................................................................. 715
CONCLUSION ........................................................................................... 723
INTRODUCTION
In Dred Scott v. Sandford,
1
Chief Justice Roger B. Taney justified denying
free Blacks the right to sue in diversity in federal courts on the ground that
no Black, whether slave or free, could ever be a citizen of the United States.
He asserted that at the Founding, free Blacks were not citizens of the nation
and that they could never be incorporated into the American polity. He
infamously asserted that at the Founding, Blacks were “so far inferior, that
they had no rights which the white man was bound to respect; and that the
negro might justly and lawfully be reduced to slavery for his benefit.”
2
Taney was fundamentally wrong in these claims, and he should have
known as much. In the last three decades of the eighteenth century,
Americans actually witnessed a dramatic revolution in race relations, leading
to the first civil rights laws in U.S. history. While some states retreated from
this period of expanded civil rights in the nineteenth century, others did not.
3
1
60 U.S. (19 How.) 393 (1857).
2
Id. at 407. There were in fact diversity cases before this involving free Blacks, and no court seems
to have objected to Black litigants suing in diversity. In New Evidence That Dred Scott Was Wrong About
Whether Free Blacks Could Count for the Purposes of Federal Diversity Jurisdiction, 37 CONN. L. REV. 25
(2004), Stanton D. Krauss examines two 1793 diversity cases in the U.S. District Court in
Connecticut, brought by Peter Elkay, a free Black man from Massachusetts, against men who had
kidnapped and illegally enslaved his free-born daughters. Elkay won $250 in each case, which was
a significant amount of money at the time. Id. at 29. Krauss notes that the case gained significant
national attention, and “some version” of the case “appeared in almost one-third of the English-
language newspapers published in America . . . .” Id. Krauss’s exhaustive examination of
newspapers and the letters and private comments of political figures and leaders of the bar shows
that no one—even aggressively proslavery politicians—complained about allowing a Black to sue
in diversity. Krauss correctly observes:
[I]t defies belief that not one supporter of slavery, not one localist opposed to the expansion
of federal jurisdiction, not one Unionist concerned about minimizing unrest in pro-slavery
or localist states, would have found the time to respond publicly to Elkay if it was as
outrageous a decision as Chief Justice Taney's Dred Scott opinion would suggest. Or to do
so in private writings.
Id. at 48.
3
Kate Masur notes the importance of the distinction between state citizenship and federal citizenship
in this period. It is critically important for understanding the rights of Blacks in the North, especially
after the Founding period. In Dred Scott, Taney acknowledged that states might make free Blacks
678 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
To offer a simple example, in the Revolutionary period Massachusetts, New
Hampshire, and the fourteenth state, Vermont, enfranchised Blacks on the
same basis as Whites and preserved these rights until Reconstruction, when
they were nationalized in the Fourteenth and Fifteenth Amendments.
4
Five
other states—Pennsylvania, New York, New Jersey, North Carolina, and
Tennessee, the sixteenth state—also enfranchised free Blacks on the same
basis as Whites in their Revolutionary-era constitutions, although four would
later disenfranchise Blacks, and the fifth, New York, would expand the
franchise for Whites, but not Blacks. However, it is clear that in 1787–88,
when the Constitution was being considered, free Blacks voted on the same
basis as Whites for delegates to state ratifying conventions in the first two of
these states, as well as in the five other states, and free Blacks also voted for
members of the Vermont legislature that ratified the Bill of Rights.
5
Similarly, Blacks voted for local and state officials and members of Congress.
As such, they constituted part of the populations of citizens at the Founding.
At this time, many citizens could not vote because there were restrictions tied
to wealth, gender, and other statuses. But, at the Founding, those who could
vote—and the general class of people who could vote—were clearly part of
the polity. Put simply, people who could vote for a delegate to a state
ratifying convention were obviously members of the political community that
created the United States. Thus, if free Blacks voted they were part of the
political community—and so too might be other free Blacks who did not
meet other requirements for the franchise, such as owning sufficient
property. In the 1836 edition of his Commentaries on American Law, James Kent
conceded that free Blacks, born in the United States, were citizens, even
though they might have limited rights under the laws of other states.
6
Thus,
Taney’s claim that African Americans were not part of the polity that created
the American nation between 1775 and 1788 is simply wrong. As I explain
citizens of their polity, but that could not make them citizens of the United States. As Masur shows,
well before Dred Scott northern politicians believed that their state citizens were also citizens of the
United States. Kate Masur, The Second Missouri Compromise, State Citizenship, and African Americans’
Rights in the Antebellum United States, in A FIRE BELL IN THE PAST: THE MISSOURI CRISIS AT 200,
VOLUME II: “THE MISSOURI QUESTION” AND ITS ANSWERS 129–162 (Jeffrey L. Pasley & John
Craig Hammond eds., 2021).
4
Even before this, in 1839, Massachusetts asserted that Blacks were citizens of the state, and also
citizens of the United States. KATE MASUR, UNTIL JUSTICE BE DONE: AMERICA’S FIRST CIVIL
RIGHTS MOVEMENT, FROM THE REVOLUTION TO RECONSTRUCTION (2021) 149 [hereinafter
MASUR, UNTIL JUSTICE BE DONE].
5
As I note later in this article, some free Blacks also voted in Maryland and Connecticut in this
period. See infra notes 33–34.
6
2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 258 (3d ed., Boston, Little, Brown & Co.
1836). See also MASUR, UNTIL JUSTICE BE DONE, supra note 4, at 147–51.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 679
below, other legislation and constitutional provisions in this period
constituted the first civil rights movement in American history.
7
I. TANEY’S RACIST AND HISTORICALLY INACCURATE
CHARACTERIZATION OF BLACKS AT THE FOUNDING
Taney’s claims about Black rights were not new to him. At least a quarter
of a century before Dred Scott, Taney had argued that Blacks could never be
citizens of the United States. In 1832, as Attorney General under Andrew
Jackson, Taney had set out his views in an unpublished opinion to the
President.
8
He told Jackson that under federal law, Blacks had no political
rights, or even legal rights, except those they might “enjoy” at the
“sufferance” and “mercy” of Whites,
9
and even if free, they were a “degraded
class” of people whose “privileges” were “accorded to them as a matter of
kindness and benevolence rather than right.”
10
Taney framed this issue near
the beginning of his opinion in Dred Scott:
The question is simply this: Can a negro, whose ancestors were imported
into this country, and sold as slaves, become a member of the political
community formed and brought into existence by the Constitution of the
United States, and as such become entitled to all the rights, and privileges,
and immunities, guarantied [sic] by that instrument to the citizen? One of
which rights is the privilege of suing in a court of the United States in the
cases specified in the Constitution.
11
The defendant, John F. A. Sanford,
12
had raised this issue in a plea in
abatement in the lower court, but Circuit Judge Robert Wells rejected the
plea, asserting that if the plaintiff, Dred Scott, was free, he had the right to
sue in federal court. Because Sanford won the case in the Circuit Court, he
did not appeal Judge Wells’ ruling on the plea in abatement. Because Scott
won on this issue, he did not appeal the ruling. Thus, no one briefed or
argued this issue before the U.S. Supreme Court, but Taney began his
7
In addition to the historical context, in 1829, as a private attorney Taney had sued a free Black
man in diversity in federal court on behalf of his white client, and Taney had argued the appeal in
the Supreme Court. Taney never doubted he could sue a Black man in diversity. See Le Grand v.
Darnall, 27 U.S. (2 Pet.) 664 (1829).
8
“Unpublished Opinion of Attorney General Taney,” quoted in CARL BRENT SWISHER, ROGER B.
TANEY 154 (1935). Significantly, three years before this opinion, Taney had been an attorney in a
diversity case in which a free Black man was a party. Le Grand v. Darnall, 27 U.S. 664 (1829).
9
Taney quoted in PAUL FINKELMAN, SUPREME INJUSTICE: SLAVERY IN THE NATION’S HIGHEST
COURT 184 (2018) [hereinafter FINKELMAN, SUPREME INJUSTICE].
10
Id.
11
60 U.S. (19 How.) 393, 403 (1857).
12
The Supreme Court clerk and the reporter misspelled Sanford’s name, and so ever after, the
caption of the case contains this minor error.
680 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
opinion by asserting that a Court always has a right to consider if it has
jurisdiction. Having raised the jurisdictional issue, Taney quickly answered
it:
The question before us is, whether the class of persons described in the plea
in abatement [free African Americans] compose a portion of this people, and
are constituent members of this sovereignty? We think they are not, and that
they are not included, and were not intended to be included, under the word
"citizens" in the Constitution, and can therefore claim none of the rights and
privileges which that instrument provides for and secures to citizens of the
United States.
13
Taney based this position on an aggressive originalism, arguing that at
the Founding, people of African ancestry “were considered as a subordinate
and inferior class of beings, who had been subjugated by the dominant race,
and, whether emancipated or not, yet remained subject to their authority,
and had no rights or privileges but such as those who held the power and the
Government might choose to grant them.”
14
As I noted above, Taney
asserted that at the Founding, Blacks had “no rights which the white man
was bound to respect.”
15
Taney made a distinction between state citizenship and national
citizenship, arguing that while the states might make Blacks citizens, “no
State, since the adoption of the Constitution, can by naturalizing an alien
invest him with the rights and privileges secured to a citizen of a State under
the Federal Government, although, so far as the State alone was concerned,
he would undoubtedly be entitled to the rights of a citizen . . . .”
16
13
Dred Scott, 60 U.S. at 404.
14
Id. at 404–05.
15
Id. at 407.
16
Id. at 405–06. Article III of the Constitution gave the federal courts jurisdiction over “all Cases . .
. between Citizens of different states . . . .” U.S. CONST. art. III, § 2. If the states could grant “state
citizenship” (as Taney conceded), then linguistically, the clause meant that a person with state
citizenship, including a free Black who could vote and/or hold office, in one state, could sue a
person with state citizenship in another state. It is worth noting that in Ohio, Blacks could hold
public office even though they could not vote. The Black attorney John Mercer Langston was
elected to a number of offices in the 1850s. See Paul Finkelman, A Political Show Trial in the Northern
District: The Oberlin-Wellington Fugitive Slave Rescue Case, in JUSTICE AND LEGAL CHANGE ON THE
SHORES OF LAKE ERIE: A HISTORY OF THE U.S. DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO 15–36 (Paul Finkelman & Roberta Sue Alexander eds., 2012). However, in
Dred Scott Taney created a new test for diversity jurisdiction, based on being a citizen of the United
States, which was inconsistent with the actual text of the Constitution. In the twentieth century,
U.S. courts held that a U.S. citizen with no “state citizenship” (such as someone living abroad)
could not sue in diversity. See Smith v. Carter, 545 F.2d 909 (5th Cir. 1977), cert. denied 431 U.S.
955 (1977) and Twentieth Century-Fox Film Corp. v. Taylor, 239 F. Supp. 913 (S.D.N.Y. 1965).
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 681
Taney conceded that “every-person, and every class and description of
persons, who were at the time of the adoption of the Constitution recognised
[sic] as citizens in the several States, became also citizens of this new political
body; but none other; it was formed by them, and for them and their
posterity, but for no one else.”
17
If this were in fact the case, and if in fact
free Blacks were citizens of some states in 1787–89, then free Blacks would
have been citizens of the United States when the Constitution was written
and ratified.
Despite the fact that Blacks voted in a number of states before the
ratification of the Constitution, Taney argued—at great length—that free
Blacks were not citizens when the Constitution was adopted, and thus could
never be citizens of the United States. He justified this position by a lengthy
discussion of statutes and policies in some of the colonies and early states that
denied Blacks the same legal rights as Whites. He asserted that “for more
than a century before” the adoption of the Constitution, Blacks had “been
regarded as beings of an inferior order, and altogether unfit to associate with
the white race, either in social or political relations; and so far inferior, that
they had no rights which the white man was bound to respect; and that the
negro might justly and lawfully be reduced to slavery for his benefit.”
18
By
relying primarily on colonial law under the British Crown—which
constituted the period “for more than a century before”—Taney ignored the
changes in American law and culture that took place from the 1770s, when
the struggle against Britain began, through the end of the 1780s, when the
Constitution went into effect.
Taney supported this position with an idiosyncratic mishmash of statutes
from the colonial era, Revolutionary era, and early nineteenth century. He
used these laws, some of which were passed well after the Constitution had
been adopted, to prove that Blacks could not be considered citizens. He
offered an originalist argument that was selective and misleading.
For example, he pointed out that in 1705, colonial Massachusetts
prohibited interracial marriage, that post-Revolutionary Massachusetts
enacted a similar law in 1786,
19
and that Massachusetts reaffirmed this law
in its revised code of 1836.
20
Since Taney was trying to prove that at the
Founding Blacks could not be citizens, the marriage laws of 1705 and 1786
were perhaps useful to his argument. His use of the 1836 law implies that in
17
Dred Scott, 60 U.S. at 406.
18
Id. at 407
19
Id. at 408–09.
20
Id. at 413.
682 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
his mind, it was important to show that Blacks remained without rights into
the nineteenth century. However, the use of this law also illustrates Taney’s
disingenuous and dishonest summary of laws. This is because he neglected
to note that in 1843, Massachusetts passed a new law specifically allowing
interracial marriage.
21
If the 1836 law was relevant to prove his point, so too
would have been the 1843 law, which undermined his point. Furthermore,
Taney failed to note that other jurisdictions, such as New York, New
Hampshire, and Pennsylvania, had never prohibited interracial marriage.
Similarly misleading was his discussion of law and race in Connecticut.
Taney asserted that before the passage of a 1788 Connecticut act prohibiting
citizens of that state from participating in the African slave trade, the Nutmeg
State had never passed a law “indicating any change of opinion as to the
relative rights and position of the white and black races in this country.”
22
In
making this claim, Taney ignored the fact that in 1784, four years before the
adoption of the U.S. Constitution (and Connecticut’s anti-slave trade law),
Connecticut passed a gradual abolition law, which put the state on the road
to ending all slavery in the state. Taney later mentioned the 1784 law—not
to show that Connecticut had in fact fundamentally altered its laws on race,
but rather to show that at the Founding the state still allowed slavery.
23
But
in doing this, he did not also note that at the time the Constitution was
adopted, Connecticut was actually in the process of ending slavery.
Moreover, since the issue before Taney was the rights of free Blacks at the
Founding, the fact that in Connecticut some people were still enslaved was
hardly on point.
This sort of analysis was simply dishonest. It is impossible to comprehend
how Taney could claim that the 1784 law, setting the stage for ending slavery
in Connecticut, and providing that all children of slave women would be
born free, was not an act “indicating any change of opinion as to the relative
rights and position of the white and black races in this country.”
24
This
statute flatly rejected the presumption that Black people in Connecticut were
slaves unless they could prove otherwise, and that the children of slave
21
An Act Relating to Marriages Between Individuals of Certain Races (Act of Feb. 25, 1843), ch. 5,
1843 Mass. Acts 4. See also AMBER D. MOULTON, THE FIGHT FOR INTERRACIAL MARRIAGE
RIGHTS IN ANTEBELLUM MASSACHUSETTS (2015).
22
Dred Scott, 60 U.S. at 413.
23
Id. at 414. Taney also failed to note that Blacks who met the property requirements voted at the
time of ratification of the U.S. Constitution, but they were later disenfranchised by the Jeffersonian
state constitution of 1818. See Robert P. Forbes, Grating the Nutmeg: Slavery and Racism in Connecticut
from the Colonial Era to the Civil War, 20 CONN. HIST. REV. 170, 179, 182 (2013).
24
Dred Scott, 60 U.S. at 413.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 683
women would be born as slaves for life. The 1784 law irrevocably altered
these presumptions while setting the stage for all Blacks in the state to be free
people.
Taney argued that the laws regulating African Americans in 1787–89
were the only measure of the rights of free Blacks under Constitution, but he
supported this claim with cases and statutes from the 1790s through the
1830s—all passed after the ratification of the Constitution. Thus, he
discussed a Connecticut law of 1833 prohibiting free Blacks from coming into
the state to attend school.
25
It is not clear how the 1833 law illustrated the
status of free Blacks in the United States in 1787–89, but that did not seem
to bother Taney. The fact that such a law did not exist during the Revolution
or at the time the Constitution was ratified might demonstrate that at the
Founding, Connecticut did not discriminate against Black migrants or
visiting students. Equally important, Taney did not bother to note that in
1838, Connecticut repealed the 1833 law.
26
Similarly, Taney made a
reference to a Connecticut supreme court decision on the law, but not feel
the need to explain that in that case, the Connecticut court had overturned
the conviction of the only person ever prosecuted under the law.
27
As noted
earlier in this article, he also ignored the fact that in 1793, a free Black citizen
of Massachusetts had successfully sued two White men in the United States
District Court in Connecticut.
28
Many of Taney’s other claims and use of evidence on the status of Blacks
at the Founding are equally suspect. But my goal here is not to point out all
the inaccuracies in Taney’s opinion, or his selective use of evidence to
support his view that Blacks were not citizens at the Founding. Others have
done this, starting with the two dissenting justices in Dred Scott, John McLean
and Benjamin Robbins Curtis.
29
Rather, the goal here is to understand the
remarkable expansion of Black rights in the Revolutionary period.
25
Id. at 414–15.
26
Act of May 24, 1833, ch. 9, 1833 Conn. Pub. Acts 420, repealed by Act of May 31, 1838, ch. 34,
1838 Conn. Pub. Acts 30.
27
Dred Scott,
60 U.S. at 415. For a discussion of this law and the prosecution under it, see Paul
Finkelman, Prelude to the Fourteen Amendment: Black Legal Rights in the Antebellum North, 17 RUTGERS L.J.
415, 434 (1985). On the expansion of Black rights after the Founding period, see MASUR, UNTIL
JUSTICE BE DONE, supra note 4. See also the essays in REVOLUTIONS AND RECONSTRUCTIONS:
BLACK POLITICS IN THE LONG NINETEENTH CENTURY (Van Gosse & David Waldstreicher eds.,
2020).
28
See supra note 2.
29
Dred Scott, 60 U.S. at 529–564 (McLean, J., dissenting & Curtis, J., dissenting).
684 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
II. BLACK RIGHTS IN THE CONTEXT OF THE REVOLUTION
The Revolutionary era must be seen as a dramatic revolution in race
relations, leading to the first civil rights laws in United States history. Taney
ignored this history—and the many laws I discuss below—because
acknowledging them would have undermined his overly broad conclusion
that Blacks (and by implication other non-Whites, such as Chinese
immigrants who had only recently started to come to the United States when
Taney wrote his opinion) could never be citizens of the United States.
Indeed, it is reasonable to believe that Taney was hoping to preempt any
citizenship claims for immigrants and their children from Asia and the Pacific
Islands (the United States was by this time heavily involved in relations with
Hawaii), as well as some people from Mexico and Central America.
In his opinion, Taney argued—I think correctly—that the United States
Constitution was overwhelmingly proslavery.
30
But the constitutional
protection of property in human beings did not directly undermine the status
of free Blacks in the nation. Indeed, the “three-fifths clause”
31
—the best-
known clause dealing with slavery in the Constitution—only applied to
“unfree” people. Under this clause free people, including free Blacks since
1788 (and in the 1850s, all recent immigrants from China), were counted
fully for purposes of representation without regard to their race.
32
In 1787–88, when Americans ratified the Constitution, free Blacks voted
in seven
33
or possibly eight
34
states. Free Blacks in a number of states were
surely “citizens” of the nation because they voted for delegates to the state
ratification conventions, voted for members of their state legislatures, voted
30
See PAUL FINKELMAN, SLAVERY AND THE FOUNDERS: RACE AND LIBERTY IN THE AGE OF
JEFFERSON (3d ed. 2014) [hereinafter FINKELMAN, SLAVERY AND THE FOUNDERS] and
FINKELMAN, SUPREME INJUSTICE, supra note 9. For a similar analysis, see DAVID
WALDSTREICHER, SLAVERY’S CONSTITUTION: FROM REVOLUTION TO RATIFICATION (2009).
31
U.S. CONST. art. I, § 2, cl. 3.
32
It is important to remember that the census counts all people without regard to their citizenship
status, and before 1865 this meant counting all free people of color fully and slaves on a three-fifths
ratio.
33
Massachusetts, New Hampshire, Connecticut, New York New Jersey, Pennsylvania, and North
Carolina. The issue of Black voting in Connecticut has been in dispute; Robert Forbes has shown
that Blacks could vote in Connecticut in the Early National period but were deprived of the vote
when Jeffersonians took power in the state and disenfranchised Blacks in the state constitution of
1818. See Forbes, supra note 23, at 179, 182.
34
There is also evidence that some free Blacks voted in Maryland. David Skillen Bogen, The Maryland
Context of Dred Scott: The Decline in the Legal Status of Maryland Free Blacks 1776–1810, 34 AM. J.
LEGAL HIST. 381, 383 (1990). Taney was from Maryland and had practiced law there before
going to the Court, and it is quite likely he was aware that Blacks had voted in the state.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 685
for members of Congress, and were eligible to hold public office, as at least
one man did.
35
In addition, at this time slavery was under assault in a
number of states, and some states had begun to pass laws—the nation’s first
civil rights laws—to protect the fundamental rights of former slaves. Racial
equality was hardly complete, and in some states free Blacks had very few
legal protections. Taney certainly pointed that out in Dred Scott. But across
the North, new state constitutions and new laws (such as the 1780
Massachusetts Constitution and the 1780 gradual abolition act in
Pennsylvania) had begun to radically change the status of Americans of
African ancestry.
There were also some changes along these lines in the South. Until the
late 1830s, free Blacks in North Carolina and the sixteenth state, Tennessee,
admitted in 1796, could vote on the same basis as Whites.
36
During the
Revolution, Virginia passed a law allowing slaveowners to voluntarily
manumit their slaves,
37
and the legislature authorized the state attorney
general to intervene on behalf of Blacks who had been manumitted to serve
in the army if their former owners tried to re-enslave them.
38
Developments in southern criminal law also reflect the changes of the
Revolutionary era. In the seventeenth and early eighteenth centuries, the
southern colonies did not prosecute the murder of slaves in the same way
they prosecuted the killing of Whites. For example, a Virginia law of 1669
provided that “if any slave resist his master . . . and by the extremity of the
correction should chance to die, that his death shall not be accompted
ffelony, but the master . . . be acquit from molestation, since it cannot be
35
Wentworth Cheswell was first elected to public office in New Hampshire in 1768 and held local
elected office for most of the rest of his life, until he died in 1817. See Wentworth Cheswell, the Black
Man Who Rode with Revere, NEW ENGLAND HIST. SOC’Y,
https://www.newenglandhistoricalsociety.com/wentworth-cheswell-black-man-rode-paul-
revere/ [https://perma.cc/3XMP-5VXC] (last visited May 20, 2022). Alexander Twilight, a
graduate of Middlebury College, would be elected to the Vermont legislature in 1836—thirty-one
years before the decision in Dred Scott. It is hard to imagine how he could be a member of his state
legislature, and thus vote on the election of U.S. Senators, and not be a United States citizen. See
The Twilight Project, MIDDLEBURY COLL., https://www.middlebury.edu/office/twilight-
project/bio [https://perma.cc/MRR2-HDGL] (last visited May 20, 2022).
36
On Black voting in North Carolina, see JOHN HOPE FRANKLIN, THE FREE NEGRO IN NORTH
CAROLINA, 1790–1860 106–07 (1943). See also ALEXANDER KEYSSAR, THE RIGHT TO VOTE:
THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 44 (2000).
37
An Act to Authorize the Manumission of Slaves, 1782 Va. Acts ch. 21, reprinted in 11 VA. STATUTES
AT LARGE; BEING A COLLECTION OF ALL THE LAWS OF VIRGINIA FROM THE FIRST SESSION OF
THE LEGISLATURE, IN THE YEAR 1629 39–40 (William Waller Hening ed., R. & W. & G. Bartow
1823) [hereinafter Hening].
38
An Act Directing the Emancipation of Certain Slaves Who Have Served as Soldiers in This State,
1782 Va. Acts ch. 190, § 2 (11 Hening 308–309).
686 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
presumed that prepensed malice . . . should induce any man to destroy his
owne estate.”
39
In 1741, in the wake of the Stono Rebellion in South
Carolina, the North Carolina colonial legislature provided compensation to
owners for slaves killed while “dispersing any unlawful Assemblies of rebel
Slaves or Conspirators.”
40
In these colonies Black lives did not matter, except
to the extent that Blacks represented a property interest for the owner.
But the Revolutionary era brought change. By 1774, the colonies were
in open resistance to British rule. While almost no one expected war,
41
violence against British officials had taken place.
42
The emerging
Revolutionary ideology led North Carolina to give greater protection for
slaves. An act of 1774 provided that anyone found “guilty of wilfully and
maliciously killing a Slave, so that, if he had in the same Manner killed a
Freeman, he would . . . be held and deemed guilty of Murder . . . such
Offender shall, upon due and legal Conviction thereof . . . suffer Twelve
Months Imprisonment: And upon a second Conviction thereof, shall be
adjudged guilty of Murder, and shall suffer Death, without Benefit of
Clergy.”
43
This was a step forward, in a world where the killing of a slave
was usually punished by a fine, if punished at all. In 1791, in the wake of the
Revolution, the state passed a more meaningful law. The relevant portion is
worth noting with its full language:
And whereas by another act of Assembly passed in the year 1774, the killing
a slave, however wanton, cruel and deliberate, is only punishable in the first
instance by imprisonment and paying the value thereof to the owner; which
distinction of criminality between the murder of a white person and of one
who is equally an human creature, but merely of a different complexion, is
disgraceful to humanity and degrading in the highest degree to the laws and
39
An Act About the Casuall Killing of Slaves (Act I), 1669 Va. (2 Hening 270) (spelling original).
40
An Act, Concerning Servants and Slaves, 1741 N.C. Sess. Laws ch. 24, §§ 44 & 45. Considered
“the largest uprising of enslaved people in the British mainland colonies prior to the American
Revolution,” the Stono Rebellion of 1739 left “more than twenty white Carolinians and nearly
twice as many black Carolinians” dead in its wake. Today in History—September 9: The Stono Rebellion,
U.S. LIBRARY OF CONG., https://www.loc.gov/item/today-in-history/september-09/
[https://perma.cc/7FKU-U4W9]. For a full history of the Stono Rebellion, see PETER H. WOOD,
BLACK MAJORITY: NEGROES IN COLONIAL SOUTH CAROLINA FROM 1670 THROUGH THE
STONO REBELLION (1974).
41
See JOSEPH J. ELLIS, THE CAUSE: THE AMERICAN REVOLUTION AND ITS DISCONTENTS, 1773–
1783 3–51 (2021).
42
See BENJAMIN L. CARP, DEFIANCE OF THE PATRIOTS: THE BOSTON TEA PARTY AND THE
MAKING OF AMERICA (2010); Benjamin Woods Labaree, THE BOSTON TEA PARTY (Oxford
Univ. Press 1964) (1979); ROBERT MIDDLEKAUFF, THE GLORIOUS CAUSE: THE AMERICAN
REVOLUTION, 1763–1789 (2007).
43
An Act to Prevent the Willful and Malicious Killing of Slaves, 1774 N.C. Sess. Laws ch. 31 (spelling
original).
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 687
principles of a free, Christian and enlightened country: Be it enacted by the
authority aforesaid, That if any person shall hereafter be guilty of wilfully and
maliciously killing a slave, such offender shall upon the first conviction
thereof be adjudged guilty of murder, and shall suffer the same punishment
as if he had killed a free man; any law, usage or custom to the contrary
notwithstanding. Provided always, That this act shall not extend to any
person killing a slave outlawed by virtue of any act of Assembly of this state,
or to any slave in the act of resistance to his lawful owner or master, or to
any slave dying under moderate correction.
44
This act reflects the contradictions and complexities of race and slavery
in this period. On one hand, the law clearly recognizes the humanity of Black
people, and their right to some basic legal protections. But the last sentence
of the 1791 law reminds us that violence was permissible where slavery
undergirded the economy, the prosperity of the master class, and the wealth
and power of the elite. On the other hand, it undermines Taney’s claims
that Blacks (even slaves) had “no rights” and on the other hand, it
underscores that for slaves those rights could be limited or ignored to protect
the status, power, and wealth of the slaveholding class.
III. INEQUALITY ON THE EVE OF THE AMERICAN REVOLUTION
Understanding the rights and liberties of free Blacks in the United States,
and later of other people of color from China and elsewhere, starts with the
dismantling of slavery in the era of the American Revolution. As long as
Blacks were slaves,
45
the only meaningful debate over their rights concerned
44
An Act to Amend an Act . . . Passed in the Year One Thousand Seven Hundred and Seventy-Four,
Entitled, An Act to Prevent the Wilful and Malicious Killing of Slaves, 1791 N.C. Sess. Laws ch.
IV, § 3 (spelling original).
45
In the early colonial period, some Native Americans were also enslaved, but this practice
disappeared by the end of the seventeenth century in the English colonies that would become the
United States. After that, Indians were treated as members of foreign nations, sometimes as military
enemies, sometimes discriminated against by Whites, and other times welcomed into the White
community. Four striking examples illustrate the difference in treatment between Blacks and
Indians. General Andrew Jackson, who spent much of his life warring against various southeastern
tribes, nevertheless adopted an Indian child, something that would have been impossible and
unheard of if the child had been an African American. Ely S. Parker, born Ha-sa-no-an-da, was a
member of the Seneca Nation in western New York. When the Civil War began, Parker, who was
a trained engineer and a sachem of the Seneca Nation, tried to organize a volunteer regiment, but
Governor Edwin D. Morgan of New York rejected his offer, almost certainly on racial grounds.
Parker was later appointed a captain in the regular U.S. Army and ended the war as a brigadier
general on the staff of General Ulysses S. Grant. He helped draft, and then wrote out, the surrender
agreement that Robert E. Lee signed at Appomattox. See Miriam Touba, “We Are All Americans”:
Grant, Lee, and Ely Parker at Appomattox Court House, N.Y. HIST. SOC’Y MUSEUM & LIBR. (Apr. 2,
2015), https://www.nyhistory.org/blogs/we-are-all-americans-grant-lee-and-ely-parker-at-
688 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
limitations on certain barbaric punishments, such as mutilation
46
or
intentionally murdering slaves.
47
Otherwise, Blacks held in bondage had no
legal rights.
48
As Blacks became free, however, the law had to deal with their
new status.
Coming to terms with the long struggle for equality requires suspending
our own world view, in order to confront two fundamental aspects of the
Atlantic world before the era of the American Revolution: the lack of equality
and ubiquitous presence of slavery.
Before the late eighteenth century, there was virtually no sense of
“equality” in European nations or their American colonies. In a world of
hereditary monarchies, noble ranks, and other inherited statuses, “equality”
was an impossibility. Second, slavery was a common practice in the Atlantic
world (and almost everywhere else), as it had been since antiquity. Every
institution of the era—monarchies, legislatures, courts, diplomatic
appomattox-court-house-2g [https://perma.cc/8XHM-F5GK]; 2 ALEXANDER S. BIELAKOWSKI,
ETHNIC AND RACIAL MINORITIES IN THE U.S. MILITARY: AN ENCYCLOPEDIA 513–514 (2013).
Meanwhile, Stand Waite, a member of the Cherokee Nation from present day Oklahoma, rose to
the rank of Brigadier General in Confederate Army, where no Blacks could serve. See Stand Watie,
ENCYC. BRITANNICA, https://www.britannica.com/biography/Stand-Watie
[https://perma.cc/ST9W-NLTG] (last visited May 20, 2022). Between 1893 and 1933, Charles
Curtis, a member of the Kaw Nation, served in the House of Representatives, the Senate, and as
Vice President of the United States without anyone questioning his status or right to participate in
the culture of segregated Washington, D.C. He was the first person of color to be elected Vice
President and to serve as Senate majority leader (1924–29). His racial background and tribal
membership never affected his political career. See Livia Gershon, Who Was Charles Curtis, the First
Vice President of Color?, SMITHSONIAN MAG. (Jan. 13, 2021),
https://www.smithsonianmag.com/history/who-was-charles-curtis-first-non-white-vice-
president-180976742/ [https://perma.cc/3UTT-VUYQ].
46
As early as 1740, South Carolina provided that Whites could be fined for mutilating slaves.
ANDREW FEDE, PEOPLE WITHOUT RIGHTS: AN INTERPRETATION OF THE FUNDAMENTALS OF
THE LAW OF SLAVERY IN THE U.S. SOUTH 100 (1992). By the end of the Revolutionary period all
of the slave states prohibited mutilation, castration, and other forms of torture or cruel and unusual
punishment. Harsh whippings, of course, were permissible. There are a few famous cases of
masters being punished for brutally murdering slaves. These are examples of the slave states
protecting the institution from the behavior of sadistic masters. See, e.g., State v. Hoover, 20 N.C.
500 (4 Dev. & Bat. 365) (1839).
47
Most of the colonies punished the willful murder of a slave, although the punishments were often
mild. South Carolina, for example, generally fined Whites who murdered slaves, but could
sentence a White servant to jail for up to three months. FEDE, supra note 46, at 62. Famously in
the antebellum period, North Carolina executed someone who murdered his slave. See Hoover, 20
N.C. 500. Both North Carolina and Mississippi executed Whites who murdered other people’s
slaves, see State v. Reed, 9 N.C. (2 Hawks) 454 (1823) and State v. Isaac Jones, 1 Miss. (1 Walker)
83 (1820), and Virginia jailed a White man who murdered his own slave, see Souther v.
Commonwealth, 48 Va. (7 Gratt.) 672 (1851).
48
THOMAS D. MORRIS, SOUTHERN SLAVERY AND THE LAW, 1619–1860 (1996); see generally FEDE,
supra note 46.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 689
conventions, the accepted rules of warfare, financial institutions (such as
banks and insurance companies), centers of learning, and all established
churches—supported and condoned slavery. Almost no one challenged the
legitimacy of slavery, even when people thought it was a bad policy.
49
Until the seventeenth century, almost no one in the western world
thought about “equality.” The European New World colonizers—Spain,
Portugal, England, France, the Netherlands, Denmark, and Sweden—were
ruled by monarchs or princes who were born into their status or had seized
it in battle. They were at the top of their hierarchical worlds. The English
monarch ruled with the help of dukes, earls, barons, lords, and various others
who mostly held their position through bloodlines and were supported by the
lesser nobility, the gentry, and the Lords of the Church, the bishops and
archbishops. The English Reformation retained the church hierarchy. The
English Church had broken with Rome, but except for substituting the
monarch for the Pope, most of the existing religious hierarchy remained in
place. The importance of hierarchy was well understood by Britain’s most
intellectual royal, King James VI of Scotland, the future King James I of
England. When Calvinists urged a more thorough reformation of the
Scottish Church, including the elimination of an ecclesiastical hierarchy,
James famously replied: “No Bishop, No King.”
50
The structure of British society contained numerous statuses, running
from the monarch and his or her noble relatives to the serfs. When serfdom
died, the urban poor, landless peasants, and common sailors remained at the
bottom of society, although without formal legal rules controlling their social
status. There had been no slaves in England since the end of the Roman
period, but there was certainly room for such a status in the structure of
British society. Magna Carta contained charming phrases about justice and
fairness, but even in theory there was no legal, political, or social equality.
Thomas More’s Utopia (1516) imagined a perfect society where most
people were equal, but he assumed there would be slaves. In any event, More
was not offering a rationale for such a place. His book, written in Latin, was
inaccessible to all but the elite, who were unlikely to challenge the status
49
On the paucity of opposition to slavery, see DAVID BRION DAVIS, THE PROBLEM OF SLAVERY IN
WESTERN CULTURE (1966). Two rare exceptions to this are BENJAMIN LAY, ALL SLAVE-KEEPERS
THAT KEEP THE INNOCENT IN BONDAGE, APOSTATES PRETENDING TO LAY CLAIM TO THE
PURE & HOLY CHRISTIAN RELIGION . . . . (Philadelphia, printed by Benjamin Franklin, 1737) and
JOHN WOOLMAN, SOME CONSIDERATIONS ON THE KEEPING OF NEGROES 42, 39 (The Gehenna
Press, 1970) (Philadelphia, printed and sold by James Chattin, 1754).
50
James VI and I (r. 1567–1625), ROYAL BRIT. HOUSEHOLD, https://www.royal.uk/james-vi-and-i-
r-1567-1625 [https://perma.cc/4YAL-YKKF] (last visited May 20, 2022).
690 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
quo.
51
Furthermore, it was not a political treatise. It was a fantasy, an
allegory, or perhaps a satirical condemnation of the implications of the
emerging opposition to the hegemony of the Roman Catholic Church in
western Europe.
In the wake of the English Civil War, some late seventeenth century
intellectuals, such as John Milton and John Locke, offered theoretical
arguments for some forms of equality and democratic government, although
neither contemplated a society where there was true legal equality for all
people.
52
Neither, for example, would have extended legal or political
equality to Roman Catholics, who were seen as a threat to English liberty, or
Jews, who had only recently been allowed to return to England after some
four centuries of exile. It is important to remember that these two
intellectuals had no meaningful impact on the actual structure of English
society or its political and legal institutions.
By the eighteenth century, some members of a few dissenting Protestant
faiths, including Quakers, Mennonites, other pietists, Methodists, and
Baptists, moved toward theological views that supported at least spiritual
equality, if not outright racial equality. In contrast to Anglicanism, which
espoused what Katharine Gerbner refers to “Protestant Supremacy”—
which she defines as “an exclusive ideal of religion based on ethnicity,” where
Christianity and Whiteness were synonymous—some Quakers in New
World colonies sought to convert their slaves and included them in their
worship meetings.
53
This belief that Blacks could be spiritually equal to
Whites inspired some Quakers to argue that race did not justify barring
Blacks from civic rights. As Quaker John Woolman wrote, “The Colour of
a Man avails nothing, in Matters of Right and Equity.”
54
But Woolman’s treatise had little impact beyond the Society of Friends.
These religious dissenters were a tiny minority in the British Empire, and
outside of Pennsylvania, mostly politically powerless. The Puritans opposed
the Anglican hierarchy, dispensing with bishops and calling their clergy
“ministers” rather than “priests.” They bridled under a monarch. But the
New England colonies still respected class distinctions and titles, maintaining
hierarchies, and rules, such as sumptuary laws, which enforced inequality.
51
THOMAS MORE, UTOPIA (Edward Arber ed., Ralph Robinson trans., London 1869) (1516).
52
See JOHN LOCKE, TWO TREATISES ON GOVERNMENT 1 (Thomas Hollis ed., London, A. Millar et
al. 1794) (1690).
53
KATHARINE GERBNER, CHRISTIAN SLAVERY: CONVERSION AND RACE IN THE PROTESTANT
ATLANTIC WORLD 2 (2019).
54
See WOOLMAN, supra note 49, at 42, 39; see also Lay, supra note 49.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 691
Puritan internal church governance, known as congregational polity, was
democratic, but participation was limited to church members—those in the
community who had experienced what the Puritans called a “visible
conversion experience” and were considered among the elect (also known as
“visible saints”).
55
The majority of most Puritan congregations were not
among the visible saints, and were thus unequal. The Puritans avoided the
problem of inequality for Catholics, Jews, Quakers, and most other non-
Puritans by simply excluding them from their colonies.
Catholic nations generally denied equality to Protestants—and in those
nations where the Reformation had taken hold, Catholics could expect
similar persecution. Jews were tolerated, or not tolerated, at the whim of
monarchs and princes. With the exception of some pietists, almost no one
imagined that Africans or Indians could be equal, even if they were not held
in bondage.
IV. SLAVERY FROM ANTIQUITY TO THE MODERN ERA
Just as it is difficult for people today to imagine a world where equality
was unknown and virtually unthinkable, it is equally hard for people in our
time to grasp the ubiquitous nature of slavery, which was culturally, legally,
and theologically accepted, economically important, and universally
common. Before the late eighteenth century, throughout the Atlantic world,
there were virtually no opponents of slavery as a system of labor, a form of a
property, and a means of social control.
56
As Orlando Patterson taught us
many years ago, for most of human history slavery was not a “peculiar
55
A useful place to start to understand Puritan conversion is EDMUND MORGAN, THE PURITAN
DILEMMA: THE STORY OF JOHN WINTHROP 68–71, 121–25 (2d ed. 1999).
56
There are three rare examples of opposition to slavery in the Atlantic world before the mid-
eighteenth century. In the mid-sixteenth century Father Bartolomé de las Casas, who later became
the Bishop of Chiapas, famously condemned the enslavement of American Indians and had some
success in persuading the Spanish Crown to limit the practice. However, this ironically led to the
increased enslavement of Africans. LEWIS HANKE, ARISTOTLE AND THE AMERICAN INDIANS: A
STUDY IN RACE PREJUDICE IN THE MODERN WORLD 18–19, 28–37 (1959). See also Armando
Lampe, Las Casas and African Slavery in the Caribbean: A Third Conversion, in BARTOLOMÉ DE LAS CASAS,
O.P.: HISTORY, PHILOSOPHY, AND THEOLOGY IN THE AGE OF EUROPEAN EXPANSION 421
(David Thomas Orique, O.P. & Rady Roldán-Figueroa eds., 2019). In 1688, a religious meeting
of Quakers and Mennonites in Germantown, in present day Philadelphia, issued a striking attack
on the morality of slavery, known as the Germantown Protest Against Slavery. It had virtually no
affect at the time but was the precursor of a movement a half century later, which led to increased
antislavery sentiment among Quakers and some other pietists. In 1700 a Puritan lawyer in
Massachusetts, Samuel Sewall, published an attack on slavery, THE SELLING OF JOSEPH: A
MEMORIAL (Boston, printed by Bartholomew Green & John Allen, 1700). See also DAVIS, supra
note 49, at 342–47.
692 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
institution.”
57
It was, with rare exceptions, found almost everywhere: “It has
existed from before the dawn of human history right down to the twentieth
century, in the most primitive of human societies and in the most civilized.”
58
People of all ethnicities, religions, and races were held as slaves and also held
slaves. In antiquity, slaves were most often outsiders—people captured in
battle or purchased on trading ventures. The ancient Greeks preferred to
enslave non-Greeks, whom they considered to be “barbarians.” Biblical law
favored the enslavement of non-Hebrews. But Greeks enslaved other
Greeks, and Hebrews enslaved fellow Jews. As the great classical historian
M. I. Finley observed, there were “Greek slaves in Greece [and] Italian slaves
in Rome.”
59
Similarly, there were Chinese slaves in China, Russian slaves in
Russia,
60
and Muslim slaves in Islamic societies.
61
Slavery, in various forms,
was common all over Africa. In West Africa, Igbos more often enslaved
Yorubas than their own kinsman (and vice versa)—but as a general matter,
West Africans held other West Africans in bondage, just as Greeks and
Romans had held their fellow Greeks and Italians as slaves.
62
From late antiquity to the end of the medieval period, Norsemen brought
so many captured Slavic peoples from the Baltic region, Russia, and Ukraine
(as well as from Ireland and Scotland) to the Mediterranean basin that the
words “Slav” and “slave,” which emerged in the twelfth century, became
almost interchangeable. But Europeans also had few qualms about enslaving
their neighbors and even their relatives. In 655 C.E., the Ninth Council of
57
ORLANDO PATTERSON, SLAVERY AND SOCIAL DEATH: A COMPARATIVE STUDY vii (1982). See
Speech on the Reception of Abolition Petition, February, 1837, in SPEECHES OF JOHN C. CALHOUN:
DELIVERED IN THE CONGRESS OF THE UNITED STATES FROM 1811 TO THE PRESENT TIME 225
(New York, Harper & Brothers 1843), https://archive.org/details/speechesofjohncc00incalh/
page/222/mode/2up?view=theater (last visited May 20, 2022) (describing slavery as a “peculiar
institution”). The proslavery politician John C. Calhoun first used this term to argue that southern
slavery was both a positive good and “special.” Id. at 225 (describing slavery as “a good—a positive
good”). The term evolved among scholars and the general public to reflect the more modern use
of “peculiar” as “different” or “unusual.” This framing influenced the first important modern
scholarly history of slavery. See KENNETH M. STAMPP, THE PECULIAR INSTITUTION: SLAVERY
IN THE ANTE-BELLUM SOUTH (1956).
58
PATTERSON, supra note 57, at xvii.
59
MOSES I. FINLEY, ANCIENT SLAVERY AND MODERN IDEOLOGY 118 (1980).
60
See PETER KOLCHIN, UNFREE LABOR: AMERICAN SLAVERY AND RUSSIAN SERFDOM (1987) and
RICHARD HELLIE, SLAVERY IN RUSSIA 1450–1725 (1982).
61
See Bernard K. Freamon’s pathbreaking study, POSSESSED BY THE RIGHT HAND: THE PROBLEM
OF SLAVERY IN ISLAMIC LAW AND MUSLIM CULTURES (2019); see also WILLIAM GERVASE
CLARENCE-SMITH, ISLAM AND THE ABOLITION OF SLAVERY (2006).
62
SLAVERY IN AFRICA: HISTORICAL AND ANTHROPOLOGICAL PERSPECTIVES (Suzanne Miers &
Igor Kopytoff eds., 1977); SLAVERY AND OTHER FORMS OF UNFREE LABOUR (Léonie J. Archer
ed., 1988) (surveying slavery in varying locations).
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 693
Toledo mandated the enslavement of the children of Catholic priests, even
though the fathers, and not the children, were the sinners who had violated
clerical vows of celibacy.
63
The Council of Pavia reaffirmed this rule in
1012.
64
In 1089, Pope Urban II “enforced clerical celibacy by granting to
secular princes the power to reduce the wives of clerics to slavery.”
65
These
rules on enslaving the children and wives of clerics were later “incorporated
into the Western Church’s collection of canons.”
66
In 1370, Pope Clement
authorized the enslavement of captured Roman Catholic Venetian soldiers
who were fighting against the Papal state. In the mid-sixteenth century, the
Church authorized the Knights of Malta to enslave European Christians who
been previously captured by Muslims and forcibly converted to Islam. These
captured Europeans soldiers, who had been compelled to serve in Muslim
armies, likely envisioned that being captured by the Knights of Malta would
lead to redemption from their years of forced conversion. But they quickly
discovered that, even as they reembraced Christianity, they were doomed to
enslavement.
67
On the eve of European expansion into Africa and the Americas, the
Vatican authorized enslavement of non-believers. In 1452, Pope Nicholas V
gave the Portuguese “full and free permission to invade, search out, capture
and subjugate the Saracens and pagans and any other unbelievers and
enemies of Christ wherever they may be . . . and to reduce their persons into
perpetual slavery.”
68
Pope Callixtus III, Pope Sixtus IV, and Pope Leo X
reiterated these authorizations, applying them to sub-Saharan Africans,
Arabs, and natives of the New World.
69
The English had no slavery at the time of their expansion into the New
World, but by the end of the seventeenth century England had emerged as a
major player in the slave trade. In the 1680s, John Locke wrote about the
fundamental rights to life, liberty, and property in his First Treatise on
Government, and asserted that “[s]lavery is so vile and miserable an estate of
man, and so directly opposite to the generous temper and courage of our
63
JOHN FRANCIS MAXWELL, SLAVERY AND THE CATHOLIC CHURCH: THE HISTORY OF
CATHOLIC TEACHING CONCERNING THE MORAL LEGITIMACY OF THE INSTITUTION OF
SLAVERY 37 (1975).
64
Id.
65
Id.
66
Id.
67
SEYMOUR DRESHER, ABOLITION: A HISTORY OF SLAVERY AND ANTISLAVERY 13 (2009);
HANKE, supra note 56, at 133.
68
MAXWELL, supra note 63, at 53; DRESHER, supra note 67, at 62–63.
69
MAXWELL, supra note 63, at 54.
694 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
nation; that it is hardly to be conceived, that an Englishman, much less a
gentleman, should plead for it.”
70
But however “vile” slavery was, Locke had
provided for it in his draft of the Fundamental Constitutions of Carolina
(1669), and though an Englishman who doubtless considered himself a
gentleman, he personally invested in the Royal Africa Company, which
imported a steady supply of African slaves to the British Caribbean and the
mainland colonies. His Second Treatise on Government provided the very
argument for slavery that he said no English gentleman “should plead for”
71
:
But there is another sort of servants, which by a peculiar name we call slaves,
who being captives taken in a just war, are by the right of nature subjected
to the absolute dominion and arbitrary power of their masters. These men
having, as I say, forfeited their lives, and with it their liberties, and lost their
estates; and being in the state of slavery, not capable of any property, cannot
in that state be considered as any part of civil society; the chief end whereof is
the preservation of property.
72
By the eighteenth century, slavery was common throughout the British
New World, to the extent that even some emerging opponents of the practice
still accepted it in some circumstances. Even when someone voiced
opposition to one iteration of slavery, almost no one challenged the
legitimacy of the institution itself. For example, in 1754 the antislavery
Quaker John Woolman condemned the African trade and hereditary slavery
on both religious and prudential grounds—but conceded the legitimacy of
lifetime slavery for criminals or captured soldiers.
73
The expansion into the Americas eventually altered the use of slaves by
western Europeans and their American descendants, and by the seventeenth
century only Africans (and occasionally Indians) were considered
enslavable.
74
This racialization of slavery was a departure from the
traditional notion that anyone might be enslaved. But it was not an
innovation or a change in the virtual universal acceptance of slavery in the
Atlantic world.
70
LOCKE, supra note 51, at 1; The Two Treatises of Government, STANFORD ENCYC. PHIL.,
https://plato.stanford.edu/ entries/locke/#TwoTreaGove [https://perma.cc/374R-6BCL] (last
visited May 20, 2022).
71
Id.; see also THE FUNDAMENTAL CONSTITUTIONS OF CAROLINA (Mar. 1, 1669), available through
THE AVALON PROJECT, YALE L. SCH. LILLIAN GOLDMAN L. LIBR.
https://avalon.law.yale.edu/17th_century/nc05.asp [https://perma.cc/8X8D-KJMS].
72
LOCKE, supra note 51. See also DAVIS, supra note 49, at 118.
73
WOOLMAN, supra note 49.
74
South Carolina held Indians as slaves into the 1720s, although the trade in Indian slaves ended
with the Yamasee War in 1715. EDWARD B. RUGMER, SLAVE LAW AND THE POLITICS OF
RESISTANCE IN THE EARLY ATLANTIC WORLD 76–78 (2018).
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 695
V. SLAVERY AND FREEDOM ON THE EVE OF THE REVOLUTION:
THE BEGINNING OF CIVIL RIGHTS IN AMERICA
In 1774, at the beginning of the Revolution, slavery was legal in all of the
colonies. In the northern colonies, the Black population (almost all of whom
were slaves) varied from under 2% of the population in New Hampshire to
at least 12% of New York.
75
The distribution of slaves also varied within
each colony. About one-third of Kings County (present day Brooklyn) was
enslaved, mostly owned by small farmers, but slaves were only three-tenths
of 1% of remote Cumberland County, which later became part of the state
of Vermont. The 6,000 or so slaves in Revolutionary Connecticut
constituted about 3% of the population,
76
but they were not distributed
evenly in the colony. Six and a half percent of New London County was
enslaved, but slaves made up only 3% of New Haven County and 1.5% of
Litchfield County.
77
On April 14, 1775, just days before the battle of Lexington and Concord,
two dozen (mostly Quaker) men in Philadelphia organized the Society for
the Relief of Free Negroes Unlawfully Held in Bondage.
78
This was the first
antislavery society in the British Empire. But after four meetings, the Society
disbanded because of the complications caused by the outbreak of the war.
At the time, there was no organized political agitation to end slavery in the
colonies, although most Quakers and other pietists, Methodists, and some
Baptists opposed slavery within their own communities. So did a few social
and political radicals, such as Thomas “Tom” Paine and Benjamin Rush.
79
Nor at this time were there any antislavery societies in Great Britain. The
government, the Crown, and most social and political leaders were deeply
committed to the African slave trade and colonial slavery.
80
In 1769,
Virginia attempted to tax newly imported slaves. This was not an attack on
75
ARTHUR ZILVERSMIT, THE FIRST EMANCIPATION: THE ABOLITION OF SLAVERY IN THE
NORTH 4–7 (1967).
76
See Forbes, supra note 23, at 172.
77
EDGAR J. MCMANUS, BLACK BONDAGE IN THE NORTH, 210, 205 (1973).
78
EDWARD NEEDLES, AN HISTORICAL MEMOIR OF THE PENNSYLVANIA SOCIETY FOR
PROMOTING THE ABOLITION OF SLAVERY 14–16 (Philadelphia, Merrihew & Thompson 1848).
79
See James V. Lynch, “The Limits of Revolutionary Radicalism: Tom Paine and Slavery,” 123 PA.
MAG. HIST. & BIOGRAPHY, 177–199 (1999).
80
There were many individuals in England who were increasing hostile to the African slave trade,
and to slavey itself. Most notable among these was the literary figure, Samuel Johnson. But there
were no antislavery or anti-slave trade organizations, and Britain’s “investment in the slave trade
was reaching then unprecedented levels in 1763–1775” following the acquisition of new colonies
where sugar could be grown, after the Seven Years’ War. DAVID RICHARDSON, PRINCIPLES AND
AGENTS: THE BRITISH SLAVE TRADE AND ITS ABOLITION 178–79 (Yale Univ. Press, 2022).
696 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
slavery, but an economic measure to reduce the outflow of capital from
Virginia to England, since virtually all of the African slaves coming to the
colonies arrived on British ships, owned and operated by English investors
and crews. Responding to petitions from English slave traders who opposed
the proposal, the Crown vetoed this law. In 1772, the Virginia colonial
legislature passed a new law with a prohibitive tax on imported slaves.
81
The
debate over this bill included some assertions about the “inhumanity” of the
African trade, but not about slavery itself.
82
The Virginians’ main
motivations were economic—aimed at reducing the outflow of capital to
England—and prudential. The prudential argument was based on the fear
that newly imported Africans were more dangerous than those people raised
as slaves in the Americas. Virginians argued that too many newly imported
African slaves “will endanger the very existence of your majesty’s American
domains.”
83
The Royal governor, Lord Dunmore, supported the law on
these grounds, but once again the Crown overruled a law that would limit
the trade, underscoring the government’s commitment to this important
economic engine of British prosperity.
84
The same year that the Crown vetoed Virginia’s attempts to restrict the
importation of new slaves, the Court of King’s Bench, the most important
court in England, reaffirmed the legitimacy of the African slave trade and
colonial slavery in Stewart v. Somerset.
85
At the same time, the Court concluded
that slaves could not be held in England. This outcome was based on the
complexities of English law and colonial law. In England, “the law” was
created by Parliament and judges implementing the common law.
Parliament had never established slavery in England, and it was at least
theoretically in conflict with the common law. The colonies, on the other
hand, had their own local legislatures, and were governed by a complex
81
See Christine McBurney, The First Efforts to Limit the African Slave Trade Arise in the American Revolution:
Part 2 of 3, the Middle and Southern Colonies, J. AM. REVOLUTION (Sept. 14, 2020),
https://allthingsliberty.com/2020/09/the-first-efforts-to-limit-the-african-slave-trade-arise-in-
the-american-revolution-part-2-of-3-the-middle-and-southern-colonies/
[https://perma.cc/Z2PV-HPEK].
82
The Virginia petition featured in the debate is quoted at length in FINKELMAN, SLAVERY AND THE
FOUNDERS, supra note 30, at 136 (citing ST. GEORGE TUCKER, BLACKSTONE’S COMMENTARIES
51–52 (Philadelphia, William Young Birch & Abraham Small, 1803)).
83
FINKELMAN, SLAVERY AND THE FOUNDERS, supra note 30, at 136.
84
Id. at 136–37.
85
Somerset v. Stewart (1772) 98 Eng. Rep. 499, 509 (KB). See also JAMES OLDHAM, THE MANSFIELD
MANUSCRIPTS AND THE GROWTH OF ENGLISH LAW IN THE EIGHTEENTH CENTURY 128–29
(1992).
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 697
mixture of local law, Royal decree, admiralty law, and sometimes acts by
Parliament.
A handful of opponents to slavery, led by Granville Sharp, sued on behalf
of James Somerset, who had been a slave in Virginia; Somerset was owned
by Charles Stewart, an official in Britain’s colonial bureaucracy. When
Stewart returned to England, he brought Somerset with him. When
Somerset ran away, Stewart hired a few local ruffians to capture him, tie him
up, and deposit him on a ship that would take him to Jamaica to be sold.
Sharp, who had studied law on his own but was not admitted to the bar, put
together a small team of pro bono counsel to represent Somerset. At the
time, Sharp was more or less a one-man antislavery society. There would be
no organized antislavery movement in Britain for another decade and a half.
In 1787, well after England had lost the American War, Sharp would team
up with a few younger opponents of slavery, including Thomas Clarkson and
William Wilberforce, to form The Society for Effecting the Abolition of the
Slave Trade.
86
But in 1772, Wilberforce was all of thirteen and Clarkson was
a year younger. Their energy and skill in fighting slavery would not come to
fruition until after the American War. Even then, their goal was to end the
African trade, not to end slavery in Britain’s New World colonies or in the
newly independent United States.
In Somerset, Lord Chief Justice Mansfield considered whether anyone
could be held as a slave in England, as opposed to the American colonies.
Mansfield conceded the legality of slavery in all of Britain’s American
colonies (based on local law and Royal prerogative), the legality of the
African slave trade, and the legitimacy of people in Britain participating in
this commerce. He reaffirmed that English courts would enforce business
arrangements connected to the African slave trade to the New World.
“Contract for sale of a slave is good here [England]; the sale is a matter to
which the law properly and readily attaches, and will maintain the price
according to the agreement.”
87
Mansfield’s decision condemns slavery as
“odious,”
88
suggesting his personal distaste for it. But his decision did not
threaten slavery in Jamaica, Barbados, or any of the mainland colonies that
would soon become the United States. Nor was he challenging the
legitimacy of the African slave trade. English courts, Mansfield made clear,
would support the commerce in human beings between Africa and the New
World.
86
HUGH THOMAS, THE SLAVE TRADE: THE STORY OF THE ATLANTIC SLAVE TRADE 493 (1997).
87
Somerset, 98 Eng. Rep. at 509.
88
Id. at 510.
698 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
After reaffirming support for the African trade—and, implicitly,
slavery—in all of Britain’s New World colonies, Mansfield noted that
Somerset’s case was not about either the African trade or the status of slaves
in the New World:
But here the person of the slave himself is immediately the object of enquiry;
which makes a very material difference. The now question is, Whether any
dominion, authority or coercion can be exercised in this country, on a slave
according to the American laws? The difficulty of adopting the relation,
without adopting it in all its consequences, is indeed extreme; and yet, many
of those consequences are absolutely contrary to the municipal law of
England.
89
In other words, English law would not allow beating someone up on the
streets of London, as Stewart’s minions had done, or chaining someone in
the hold of a ship docked in an English port. But Mansfield understood that
such physical coercion was necessary if anyone was to be held as a slave in
England. After looking at the case in some detail, Mansfield concluded that
Somerset had to go free:
Accordingly, the return states, that the slave departed and refused to serve;
whereupon he was kept, to be sold abroad. So high an act of dominion must
be recognized by the law of the country where it is used. The power of a
master over his slave has been extremely different, in different countries.
The state of slavery is of such a nature, that it is incapable of being
introduced on any reasons, moral or political; but only positive law, which
preserves its force long after the reasons, occasion, and time itself from
whence it was created, is erased from memory: it's so odious, that nothing
can be suffered to support it, but positive law.
90
A few years after Somerset, just as the Revolution was beginning, M.P.
David Hartley (the Younger) offered a motion that “the slave trade was
contrary to the laws of God and the rights of men.”
91
This was the first time
that anyone in the House of Commons had challenged the legitimacy of
slavery. As David Richardson notes, the motion was “doubtless premature,
even naïve,” but it does illustrate that a few leaders in England were
beginning to understand the horrors of British participation in the African
trade
92
—although, as in Somerset, the opposition was not yet focused on
89
Id. In many ways, this outcome reflects Eric Freedman’s analysis that habeas corpus cases are
generally “fact specific,” and here the fact that Somerset was actually in England led Mansfield to
issue a relatively narrow legal ruling freeing Somerset. ERIC M. FREEDMAN, MAKING HABEAS
WORK: A LEGAL HISTORY 23 (2018).
90
Somerset, 98 Eng. Rep. at 510.
91
Introduction to 2 DOCUMENTS ILLUSTRATIVE OF THE HISTORY OF THE SLAVE TRADE TO
AMERICA LV (Elizabeth Donnan ed., 1931).
92
See RICHARDSON, supra note 80, at 100.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 699
slavery itself. At this time—the beginning of the American Revolution—
there was little opposition to slavery in Parliament and “no known pressure
group outside Parliament to coordinate or mobilize opinion or action.”
93
The motion went nowhere. At the dawn of the Revolution, and for some
years after it, there was simply no organized or meaningful opposition in
England to the African slave trade or slavery in the colonies.
Less than a decade after Somerset, and before the end of the American
Revolution, Mansfield reaffirmed the legitimacy of the African slave trade in
a case that exemplifies its horrors.
94
The case involved a ship with an almost
science-fiction name, the Zong, a slaver that was off course, foundering in the
ocean, with a cargo of weakened and hungry Africans. While the slaves on
board might survive the trip, they would bring a poor price in the Caribbean
slave markets. Claiming to be almost out of water, the captain tossed about
200 living Africans into the ocean, and later made an insurance claim for
jettisoning some cargo to save the rest. This captain believed that the
insurance claim would bring more money to the ship than selling these
weakened Africans at auction.
95
Initially Mansfield supported the ship owner in a dispute with the insurer,
noting that under English insurance and maritime law, if the slaves were
thrown overboard because of necessity due to a shortage of water, “though
it shocks one very much,” in terms of law “the case of slaves was the same as
if Horses had been thrown overboard.”
96
With some understatement,
Mansfield nonetheless observed, “It is a very shocking case.”
97
But, shocking
or not, Mansfield initially upheld the claim of the slave trader, and in doing
so again affirmed the legitimacy and legality of the African slave trade.
In a second hearing, Mansfield reversed his position because of new
evidence provided by the insurance company. Using the ship’s own log, the
insurers proved that the ship was not running out of water and that the crisis
on the ship was due to poor management and an incompetent captain.
98
While the slave traders ultimately lost their case (and did not collect the
insurance money they hoped for), the Court of King’s Bench and the highly
respected Lord Mansfield had affirmed the legality of the trade, with all of its
93
See id. at 179.
94
Gregson v. Gilbert (1783) 99 Eng. Rep. 629 (KB); THOMAS, THE SLAVE TRADE, supra note 86, at
489–90.
95
JAMES WALVIN, THE ZONG: A MASSACRE, THE LAW AND THE END OF SLAVERY 101 (2011).
96
Id. at 153.
97
Id. Notably, Mansfield emphasizes that the case of the Zong both “shocks” and is “shocking” in the
same short opinion.
98
Gregson v. Gilbert (1783) 99 Eng. Rep. 629 (KB).
700 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
barbarity, including the possibility that live Africans could be thrown
overboard as jettisoned “cargo.” Neither the ship captain nor the owner of
the ship faced any legal consequences for the unnecessary death of so many
Africans. In the English courts during the era of the American Revolution,
Black lives did not matter.
The Crown’s rejection of the Virginia laws limiting the African trade in
the 1760s and 1770s, the quixotic failure of Hartley’s motion, and the cases
of Somerset and the Zong demonstrate that on the eve of the American
Revolution, England’s political and legal institutions were intensely
committed to slavery and the African trade. Nothing in English policy
threatened American or Caribbean slavery. The African slave trade, along
with the sugar, tobacco, indigo, and rice that slaves produced, were keys to
English prosperity.
99
The highest components of the British government—
Parliament, the Crown, and the Court of King’s Bench—opposed any
interference with this huge industry, which centered on commodifying
human beings and trading them like horses, as Mansfield’s decision in the
Zong made quite clear.
The failure of Virginia’s attempts to tax the slave trade, the complexity
of Somerset in prohibiting slavery in England but supporting it in the colonies,
and the case of the Zong also underscore that before, during, and after the
American Revolution, there was no organized English opposition to the
African trade or slavery in the Colonies. There was no antislavery movement
in London clamoring for the rights of Africans. At best, a few lawyers and
philanthropists could save James Somerset from being sent to the Caribbean,
and an insurance company could defeat a fraudulent claim by a slave trader.
In sum, on the eve of the American Revolution slavery was a dominant
social, political, and economic force in England and much of America. The
legal and political system in Britain and the colonies fully supported it. There
was little support for freedom, liberty, or humanitarian sympathy for Africans
and their American-born descendants. The small number of free Black
people in the American colonies were restricted by a legal and social system
designed to preserve bondage.
99
It is important to remember that cotton was a very minor crop at this time, grown profitably only
on the sea islands off the coast of Georgia and South Carolina. The most important slave produced
product was sugar.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 701
VI. SLAVERY IN THE NORTH AND THE REVOLUTION
At the beginning of the Revolution, slavery was legal in all of the thirteen
colonies that would form the United States. Concentrations of slaves varied.
While more than half of South Carolina’s population was enslaved, slaves
constituted less than two percent of New Hampshire’s population. As this
suggests, most slaves lived south of Pennsylvania. But in 1790, after the
disruptions of the war, the evacuation of many slaves (or former slaves) with
the British army, and considerable manumissions by patriots, the first census
still counted about 37,000 slaves in the three middle states (New York, New
Jersey, and Pennsylvania), as well as some 14,000 free Blacks, many of whom
would have been slaves when the war began.
100
By 1810, slavery was dead or dying in the North. Four states had
abolished it outright in their constitutions or through judicial enforcement of
their constitutions,
101
and five had passed gradual abolition laws.
102
No slaves
became immediately free under these gradual emancipation laws. However,
the children of all slave women were born free, which meant that slavery was
100
CAMPBELL GIBSON & KAY JUNG, HISTORICAL CENSUS STATISTICS ON POPULATION TOTALS
BY RACE, 1790 TO 1990, AND BY HISPANIC ORIGIN, 1970 TO 1990, FOR THE UNITED STATES,
REGIONS, DIVISIONS, AND STATES (U.S. Census Bureau, Population Div., Working Paper No. 56,
2002), http://mapmaker.rutgers.edu/REFERENCE/Hist_Pop_stats.pdf [https://perma.cc/ C2
EY-CFMD], at tbls. 45, 47 & 53 [hereinafter cited as GIBSON & JUNG].
101
Massachusetts by its 1780 Constitution and judicial enforcement in 1781—see infra notes 143–44
and accompanying text for a discussion of Commonwealth v. Jennison, known as the Quock Walker
Case; New Hampshire by its 1783 Constitution; Vermont by its 1791 Constitution when it became
a state; and OH. CONST. 1803 art. VIII, § 2 (“There shall be neither slavery no involuntary
servitude in this State. . . .”) (replaced with similar language by its Constitution of 1851).
102
Pennsylvania (1780), Rhode Island (1784), Connecticut (1784), New York (1799), and New Jersey
(1804). See Peter P. Hinks, Gradual Emancipation Reflected the Struggle of Some to Envision Black Freedom,
CONN. HIST. (Jan. 2, 2020), https://connecticuthistory.org/gradual-emancipation-reflected-the-
struggle-of-some-to-envision-black-freedom/#:~:text=In%201780%2C%20Pennsylvania%
20passed%20a,initially%20resisted%20acting%20against%20slavery [https://perma.cc/2BTB-
4PY4]. The Connecticut law was not passed as a specific statute, but was simply added to a revised
code, adopted in early 1784, consolidating previous existing laws on race and slavery. The entire
gradual abolition provision read:
And whereas sound policy requires that the abolition of slavery should be effected as soon
as may be, consistent with the rights of individuals and the public safety and welfare,
Therefore, Be it enacted, That no negro or mulatto child, that shall, after the first day of
March, one thousand seven hundred and eighty-four, be born within this state, shall be
held in servitude, longer than until they arrive to the age of twenty-five years,
notwithstanding the mother or parent of such child was held in servitude at the time of its
birth; but such child, at the age aforesaid, shall be free; any law, usage, or custom to the
contrary notwithstanding.
THE PUBLIC STATUTE LAWS OF THE STATE OF CONNECTICUT, bk. I, ch. 1, at 79 (Hartford,
Hudson & Goodwin, 1808) (published by Authority of the General Assembly).
702 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
put “in the course of ultimate extinction,” as Abraham Lincoln would later
describe the process.
103
In 1799, New York passed its gradual emancipation law, and in 1817 the
state passed a law freeing all slaves in the state on July 4, 1827.
104
When this
law went into effect on the fifty-first anniversary of the Declaration of
Independence, New York became the first American state to absolutely
abolish slavery by legislative action. The changes in New York’s Black
population during this period illustrate that while gradual abolition laws did
not automatically emancipate any existing slaves, the laws undermined the
entire system and led to private manumissions. New York had more than
20,000 slaves when the 1799 law went into effect.
105
By 1820, the slave
population had been cut in half to 10,088, and it was at zero by 1830.
106
Meanwhile, during this period the free Black population grew dramatically,
suggesting that with slavery set on the road to extinction many owners simply
ended their participation in human bondage. The census found only 4,600
free Blacks in 1790. By 1800, a year after passage of the gradual abolition
act, the free Black population had more doubled to 10,417. By 1810, the
free Black population had more than doubled again to 25,333. The growth
slowed down in the next decade, reaching just over 29,000 by 1820. All
slavery ended in New York on July 4, 1827, and in 1830 there were 44,870
free Blacks in the state.
107
New Jersey did not pass a gradual abolition act until 1804. In 1800, the
state had about 12,422 slaves. By 1830, there were only 2,254 slaves in the
state, and by 1840 this had dropped to 674.
108
In 1846, New Jersey ended
all slavery in the state, but converted the few remaining slaves to the status of
103
Abraham Lincoln, House Divided Speech (June 16, 1858) [https://perma.cc/4292-FLR5].
104
An Act for the Gradual Abolition of Slavery, ch. 62, 1799 N.Y. Sess. Laws 388; An Act Relative to
Slaves and Servants, ch. 137, 1816 N.Y. Sess. Laws 2. For a significant history of ending slavery
in New York, see DAVID GELLMAN, EMANCIPATING NEW YORK: THE POLITICS OF SLAVERY
AND FREEDOM, 1777–1827 (2006).
105
The 1800 census found 20,903 slaves in the state. See GIBSON & JUNG, supra note 100, at tbl. 47.
106
The 1830 census lists seventy-five slaves in New York, but this is clearly a mistake by either the
census taker or the tabulator, or it reflects masters from other states who were visiting with their
slaves when the census was taken. See GIBSON & JUNG, supra note 100, at tbl. 47.
107
Id. at tbl. 45.
108
Id. See also GRAHAM RUSSELL HODGES, SLAVERY AND FREEDOM IN THE RURAL NORTH:
AFRICAN AMERICANS IN MONMOUTH COUNTY, NEW JERSEY, 1665–1865 (1997); GRAHAM
RUSSELL HODGES, ROOT AND BRANCH, AFRICAN AMERICANS IN NEW YORK AND EAST JERSEY,
1613–1863 (1999).
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 703
apprentices.
109
In 1787, Congress, under the Articles of Confederation, had
prohibited slavery north of the Ohio River, although a small number of
people would be held in bondage in Indiana until the 18230s and in Illinois
until the 1840s.
110
By 1850, slavery no longer existed in the North.
VII. THE REVOLUTION AND THE FIRST CIVIL RIGHTS MOVEMENT
The Revolution was the catalyst for the first civil rights movement in
American history. Before the Revolution, there were a small number of free
Blacks in the New England colonies who had some legal protections and
rights.
111
Free Black men served in some colonial militias and were involved
in protests against British rule. Between 1756 and 1763, Blacks served in
New York and New England militias during the Seven Years’ War.
112
And
in 1770, British regulars killed the former slave Crispus Attucks at the Boston
Massacre.
113
His participation in this street brawl with British troops suggests
some equality for Blacks in Boston at this time.
Importantly, militia service was a fundamental aspect of citizenship
throughout this period.
114
The fact that free Black men served in militias is
a strong indication that they were considered citizens, or had the potential to
be considered citizens, before, during, and after the Revolution. This is in
part why during the Revolution southern politicians tried to prohibit such
service by both free and enslaved Blacks, and why after the ratification of the
Constitution southerners in Congress demanded that Blacks not be enrolled
in militia duty.
115
But in the northern colonies—soon to be the northern
states—militia service was common for free Blacks and some masters
manumitted their slaves to serve in the war. On the eve of the Revolution,
Peter Salem’s owner manumitted him so he could join the local militia. He
109
An Act to Abolish Slavery, N.J. REV. STAT., § 6:6 (1846). In 1850, the census found 236 slaves in
the state, but they were probably former slaves who were legally apprentices. See GIBSON & JUNG,
supra note 100, at tbl. 45.
110
FINKELMAN, SLAVERY AND THE FOUNDERS, supra note 30, at 46–101.
111
See, e.g., Forbes, supra note 23. As noted above, one Black man, Wentworth Cheswell, had been
elected to public office in New Hampshire by this time. See supra note 35, Wentworth Cheswell, the
Black Man Who Rode with Revere.
112
BENJAMIN QUARLES, THE NEGRO IN THE AMERICAN REVOLUTION 8–9 (1962). Earlier
historians called this the French and Indian War, after the two main enemies of England and the
American colonies.
113
Henry M. Ward, Attucks, Crispus, 1 AFRICAN AMERICAN NATIONAL BIOGRAPHY 195–97 (2008).
114
AKHIL AMAR, AMERICA’S UNWRITTEN CONSTITUTION: A BIOGRAPHY 185–88, 322–27, 391–92
(2005).
115
Paul Finkelman, Race, Slavery, and Federal Law, 1789–1804: The Creation of Proslavery Constitutional Law
Before Marbury, 14 U. ST. THOMAS L.J. 1, 2, 11–13 (2018).
704 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
fought at Lexington and Concord along with a number of other Blacks,
including Prince Estabrook, who was killed in action. After the battle of
Bunker Hill, fourteen White officers singled out Salem Poor as “a brave and
gallant soldier” who deserved special commendation.
116
These officers were
fully aware that Poor was African American. Black enlistments were
controversial among southern officers. In the Continental Congress, Edward
Rutledge of South Carolina unsuccessfully tried to ban Black soldiers.
Hostility to Black enlistment reduced the number of African American under
arms until 1777, when once again the Continental army began accepting
new Black soldiers. Many were recently manumitted slaves or runaways. At
least 750 African American soldiers suffered with their White comrades in
arms at Valley Forge.
117
Among them was Salem Poor, the hero of Bunker
Hill.
118
Policies towards Black troops varied by state and region. Early in the
war, Blacks served in New England and New York regiments. Many masters
manumitted their slaves so that the newly freed Blacks could serve, since
slaves could not. Sometime available signing bonuses facilitated these private
acts, with the slaveowners claiming the bonus. In other cases, slaves were
manumitted to serve as a substitute for their owners. The slaveowner
avoided service; the slave became free. As one pioneer Black scholar noted,
“most slave soldiers received their freedom with their flintlocks. Upon
enlistment they were given certificates of manumission.”
119
Some manumissions also reflected the Revolutionary ideology of liberty.
Black military service was an important step towards ending slavery and
establishing some rights for northern Blacks. Congress initially discouraged
Black enlistment, but in 1777 this changed. By the end of the war, more than
5,000 Black soldiers had served.
120
In 1781, New York specifically
authorized masters to enlist “able bodied male slaves,” who would become
116
QUARLES supra note 112, at 11.
117
Some scholars suggest that Blacks made up as much as ten percent of the troops at Valley Forge,
which would raise their numbers to around 1,200. Harry Schenawolf, Black Soldiers in the American
Revolution Did Not Quit or Go Home on Furlough: Daily Presence Was Much Higher Than Total Percentage of
Those Who Fought (Oct. 14, 2018), REVOLUTIONARY WAR J.,
https://www.revolutionarywarjournal.com/arm-negroes-to-the-principles-of-liberty-never-to-be-
lost-in-a-contest-for-liberty-the-black-presence-in-the-american-revolutionary-army-was-much-
larger-than-what-weve-tho/ [https://perma.cc/K75B-2SVU].
118
Id. at 11; ELLIS, supra note 41, at 154.
119
QUARLES, supra note 112, at 68.
120
ELLIS, supra note 41, at 390.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 705
free after serving three years or being “regularly discharged” before that
time.
121
Most of the southern states opposed or discouraged Black enlistment, but
nevertheless it occurred. Virginia rejected calls for enlisting slaves, who
would then become free, but did allow free Blacks to serve.
122
Some Virginia
slaveowners took advantage of this to avoid military service, by asserting their
slaves were free men and having them enter in the army in their place.
123
After the war, some of these masters forcibly re-enslaved these Blacks when
they left the army. This behavior, of course, reflects greed and racism, which
are the opposite of any commitment to civil rights or human liberty.
But in 1782, with the war dying down and peace on the horizon, Virginia
passed legislation to protect the freedom of its Black veterans. Noting that
some masters had initially enlisted their slaves—asserting that they were
free—and then subsequently tried to re-enslave them, the law declared that
any
slave, who by the appointment and direction of his owner, hath enlisted in
any regiment or corps raised within this state, either on continental or state
establishment, . . . and hath served faithfully during the term of such
enlistment, or hath been [properly] discharged from such service . . . shall .
. . be fully and completely emancipated, and shall be held and deemed free
in as full and ample a manner as if each and every of them were specially
named in this act.
124
The law further provided that
the attorney-general for the commonwealth, is hereby required to
commence an action, in forma pauperis, in behalf of any of the persons above
described who shall after the passing of this act be detained in servitude by
any person whatsoever; and if upon such prosecution it shall appear that the
pauper is entitled to his freedom . . . a jury shall be empannelled to assess the
damages for his detention.
125
Reflecting the ideology of the Revolution, the legislature noted: “[I]t
appears just and reasonable that all persons enlisted as aforesaid . . . have
thereby of course contributed towards the establishment of American liberty
and independence, should enjoy the blessings of freedom as a reward for their
toils and labours.”
126
121
An Act for Raising Two Regiments for the Defence of This State on Bounties of Unappropriated
Lands, ch. 32 § 6, 1781 N.Y. Laws 351.
122
QUARLES, supra note 112, at 58.
123
Id. at 69.
124
An Act Directing the Emancipation of Certain Slaves Who Have Served As Soldiers in This State,
1782 Va. Acts ch. 190 § 2 (11 Hening 308–309).
125
Id. (spelling original).
126
Id.
706 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
This law is unique in the history of the slave South. Here a southern
legislature acknowledged and declared that some slaves had earned their
freedom, and the state provided legal counsel to help them secure their
liberty. Even more surprising, the law authorized the payment of damages
from those who had illegally held them in bondage after their military service.
This might be considered the first “civil rights act” ever passed by a southern
state.
127
It could also be seen as the first reparations act in American history,
since it required that those unscrupulous Whites—who had illegally re-
enslaved veterans—compensate the former slaves for their work after they
returned from the army. The law was narrow in its scope, only protecting a
small class of Black men, but it clearly showed that the Virginia accepted
some responsibility to protect the liberty and the economic rights of those
slaves who had earned their freedom by serving the new nation.
In 1782, Virginia also passed a law allowing masters to privately manumit
their slaves, under certain conditions, and allowing those now-free Blacks to
remain in the state.
128
In the colonial period, under British rule, private
manumission in Virginia was illegal. Under the 1782 law, manumitted slaves
had to be under age forty-five; males had to be over twenty-one and females
over eighteen.
129
The act reflected the Revolutionary spirit of some White
Virginians, and the religious sentiments of others. The law remained in force
until 1805.
130
It is estimated that in 1780 there were only 2,000 free Blacks
in Virginia,
131
but by 1810 the state had more than 30,000 free Blacks.
132
Among those masters taking advantage of the law was George
Washington.
133
Starting in 1805, Virginia went back and forth on allowing
private manumission, but it was not a simple process, and the free Black
population grew slowly, going from 30,000 in 1810 to just 56,000 on the eve
of the Civil War.
134
This contrasts with the period from 1782 to 1810, when
127
Some might consider it the first “reparations act” in U.S history, but it was more like recognition
of compensation owed by wrong doers, since it was individuals, and not the state, who were
required to compensate people illegally held in bondage. The compensation was not for work when
these veterans had been slaves, but for illegal exploitation of them after they were free.
128
An Act to Authorize the Manumission of Slaves, 1782 Va. Acts ch. 21 (11 Hening 39–40).
129
Id. at § 2.
130
See An Act to Amend the Several Laws Concerning Slaves, ch. 63, 1806 Va. Acts 251 (amending
the 1782 law).
131
FINKELMAN, SLAVERY AND THE FOUNDERS, supra note 30, at 200, 229 n.36.
132
GIBSON & JUNG, supra note 100, at tbl. 61.
133
FRITZ HIRSCHFELD, GEORGE WASHINGTON AND SLAVERY: A DOCUMENTARY HISTORY 209–
15 (1997).
134
GIBSON & JUNG, supra note 100, at tbl. 61.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 707
the free Black population was “the fastest growing element of the Southern
population.”
135
VIII. TOWARD FREEDOM AND CIVIL RIGHTS
The use of Black soldiers in the Revolution and the ideology of liberty
reflected in the Virginia acts of 1782, which protected the freedom of Black
soldiers and allowed private manumission, set the stage for the first wave of
civil rights laws in American history. This civil rights legislation was, by the
standards of our times, incomplete. With the exception of the two Virginia
acts, these laws were almost entirely limited to the states north of the southern
boundary of Pennsylvania—the boundary surveyed by Charles Mason and
Jeremiah Dixon in 1767. Enforcement mechanisms were often weak. There
was only limited equal protection of the law, and the laws did not guarantee
equal access to places of public accommodation.
Nevertheless, by the standards of the eighteenth century—and indeed by
the standards of world history—the legal changes in this period were
stunningly innovative and revolutionary. Between 1780 and 1804, four
states abolished slavery outright through a constitutional provision
136
and five
others
137
adopted legislation providing freedom for all people born in the
state and thus gradually ending slavery.
138
In the following sixteen years,
three other states
139
would enter the union with a constitutional ban on
slavery within their jurisdictions. In addition, New York would pass new
legislation freeing all slaves within its jurisdiction.
140
A careful examination of two states, Massachusetts and Pennsylvania,
illustrates this new world of liberty and civil rights.
A. Massachusetts
In 1778, the Massachusetts legislature wrote a constitution and sent it to
town meetings for approval. This was the first time any state constitution
135
IRA BERLIN, SLAVES WITHOUT MASTERS: THE FREE NEGRO IN THE ANTEBELLUM SOUTH 46–
50 (1974).
136
Massachusetts (1780); New Hampshire (1783), Vermont (1791), and Ohio (1803).
137
Pennsylvania (1780), Rhode Island (1784), Connecticut (1784), New York (1799), and New Jersey
(1804).
138
Pennsylvania (1780), Rhode Island (1784), Connecticut (1784), New York (1799), and New Jersey
(1804).
139
Indiana (1816), Illinois (1818), and Maine (1820).
140
An Act Relative to Slaves and Servants, ch. 137, § 4, 1817 N.Y. Laws 136.
708 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
was sent to the people for ratification,
141
and no other states in this period did
so. To the shock of the legislators, the people rejected the document. “The
town meetings of Massachusetts . . . openly discussed the incompatibility of
racial discrimination and the principle of equality. . . . The draft of the state
constitution presented to the towns in the spring of 1778 contained no bill of
rights and withheld the vote from Indians, mulattoes, and blacks. Many
towns thereupon demanded a bill of rights and criticized the discriminatory
article” in the proposed constitution.
142
Significantly, the draft constitution
also failed to end slavery in the Commonwealth. In 1780, Massachusetts
adopted a different constitution, written mostly by John Adams. The first
sentence of the document asserted:
All men are born free and equal, and have certain natural, essential and
inalienable rights, among which may be reckoned the right of enjoying and
defending their lives and liberties; that of acquiring, possessing and
protecting property, and in fine of seeking and obtaining their safety and
happiness.
143
Most people in Massachusetts believed that this clause ended slavery.
After the adoption of the Constitution, many slaves simply declared
themselves free and walked away from their bondage. In 1781, a slave
named Quock Walker left his master, Nathaniel Jennison, and went to work
for a neighbor. Jennison tracked Walker down, beat him, and dragged him
back to bondage on his farm. Walker in turn filed a criminal complaint and
Jennison was prosecuted for battery and false imprisonment. The jury
convicted Jennison based on Chief Justice William Cushing’s charge:
The defense set up in this case afforded much scope for discussion and has
been fully considered. It is founded on the assumed proposition that slavery
had been by law established in this province: that rights to slaves, as property,
acquired by law, ought not to be divested by any construction of the
Constitution by implication; and that slavery in that instrument is not
expressly abolished. It is true, without investigating the right of christians to
hold Africans in perpetual servitude, that they had been considered by some
of the Province laws as actually existing among us; but nowhere do we find
it expressly established. It was a usage—a usage which took its origins from
141
Paul Finkelman, The Nefarious Intentions of the Framers?, 84 U. CHI. L. REV. 2155–56 (2017). It is
worth noting that a recent major book on this period, MICHAEL KLARMAN, THE FRAMERS' COUP:
THE MAKING OF THE UNITED STATES CONSTITUTION 618 (2016), incorrectly argues that
ratification of state constitutions was common, when in fact Massachusetts was the only state to do
it. Had Pennsylvania, New York, or New Jersey adopted the Massachusetts model, it is possible
that they too would have ended slavery outright. In this period neither Rhode Island nor
Connecticut adopted a new constitution, and thus there was no opportunity to end slavery outright
as a constitutional provision.
142
WILLI PAUL ADAMS, THE FIRST AMERICAN CONSTITUTIONS 163, 83–84 (1980).
143
MASS. CONST. art. I.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 709
the practice of some of the European nations and the regulations for the
benefit of trade of the British government respecting its then colonies. But
whatever usages formerly prevailed or slid in upon us by the example of
others on the subject, they can no longer exist. Sentiments more favorable
to the natural rights of mankind, and to that innate desire for liberty which
heaven, without regard to complexion or shape, has planted in the human
breast have prevailed since the glorious struggle for our rights began. And
these sentiments led the framers of our constitution of government by which
the people of this commonwealth have solemnly bound themselves to each
other to declare—that all men are born free and equal; and that every subject is entitled
to liberty, and to have it guarded by the laws as well as his life and property.
In short, without resorting to implication in constructing the constitution,
slavery is in my judgement as effectively abolished as it can be by the granting
of rights and privileges wholly incompatible and repugnant to its existence.
The court are therefore fully of the opinion that perpetual servitude can no
longer be tolerated in our government, and that liberty can only be forfeited
by some criminal conduct or relinquished by personal consent or contract. .
. . The Def[endan]t must be found guilty as the facts charged are not
contraverted.
144
Commonwealth v. Jennison is arguably the first civil rights case in the United
States. It is also the first American case in which a court expansively read a
constitutional provision to support liberty and the rights of a racial minority.
More importantly, the Massachusetts Constitution of 1780 was the first
political document in the western world—and probably in the history of the
entire world—to unconditionally abolish slavery. Slavery had faded away in
post-Roman England, only to be replaced by serfdom. But nowhere had a
political body consciously decided to end bondage and immediately free all
those enslaved within its jurisdiction.
Significantly, the Massachusetts Court ignored the economic claims of
Jennison. This deliberate choice may have surprised some American
slaveowners with human “property” in the Revolutionary era. The
Revolution was fought over private property as well as liberty. The
Revolutionary slogan “taxation without representation is tyranny” combined
notions of self-government with a rejection of the idea that the government
could arbitrarily take private property from people.
145
The United States
Constitution would ultimately support this idea in what became the Fifth
144
John D. Cushing, The Cushing Court and the Abolition of Slavery in Massachusetts, 5 AM. J. LEG. HIST.
132–33 (1961).
145
Nat’l Const. Ctr. Staff, On This Day: “No Taxation Without Representation!”, NAT’L CONST. CTR. (Oct.
7, 2021), https://constitutioncenter.org/blog/no-taxation-without-representation#:~:text=James
%20Otis%2C%20a%20firebrand%20lawyer,a%20series%20of%20public%20arguments
[https://perma.cc/VYJ7-V4WQ] (attributing the quotation to Massachusetts representative and
lawyer James Otis).
710 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
Amendment.
146
In 1857, Chief Justice Taney would use this Amendment to
give slaveowners the right to take their human property with them to any
federal territory.
147
In early 1862, the law ending slavery in the District of
Columbia would provide compensation for masters on the theory (in part
based on Taney’s decision in Dred Scott) that uncompensated emancipation
by statute was an unconstitutional taking.
148
There was also an important
practical issue in the structure of the D.C. Emancipation law. With the war
raging, it was important not to antagonize slaveholders in the loyal slave
states—Kentucky, Missouri, Maryland, Delaware, and the area that would
soon become the state of West Virginia. As Lincoln told Senator Orville
Browning the previous year, “to lose Kentucky is nearly . . . to lose the whole
game.”
149
Similarly, early in the war, when a group of ministers urged
Lincoln to free all the slaves in nation, saying he would then have God on his
side, Lincoln allegedly replied: “I hope to have God on my side, but I must
have Kentucky.”
150
Thus, in 1862 Congress compensated slaveowners in the
District of Columbia because it was politically practical and possibly
constitutionally necessary.
But when Congress abolished slavery through the Thirteenth
Amendment, it avoided a takings question because the new amendment
superseded the Fifth Amendment. By the time Congress passed the
Amendment in early 1865, it was clear the traitorous regime in Richmond
would lose the war and that no slaveowners in the four loyal slave states
would be joining the doomed Confederate war effort. But the Amendment
also neatly avoided the takings issue. Congress reaffirmed this in the
Fourteenth Amendment, which specifically provided that “neither the
United States nor any State shall assume or pay any debt or obligation
incurred in aid of insurrection or rebellion against the United States, or any
claim for the loss or emancipation of any slave; but all such debts, obligations
146
U.S. CONST. amend. V.
147
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
148
An Act for the Release of Certain Persons Held to Service or Labor in the District of Columbia,
ch. 54, 12 Stat. 376 (1862). See also Paul Finkelman, Lincoln v. The Proslavery Constitution: How a Railroad
Lawyer’s Constitutional Theory Made Him the Great Emancipator, 47 ST. MARY’S L.J. 63 (2015); KATE
MASUR, AN EXAMPLE FOR ALL THE LAND: EMANCIPATION AND THE STRUGGLE OVER
EQUALITY IN WASHINGTON, D.C. (2010).
149
Letter from Abraham Lincoln to Orville H. Browning (Sept. 22, 1861), in 4 THE COLLECTED
WORKS OF ABRAHAM LINCOLN 531–32 (Roy P. Basler ed., 1953) [hereinafter COLLECTED
WORKS].
150
Paul Finkelman, Lincoln, Emancipation, and the Limits of Constitutional Change, 2008 SUP. CT. REV. 349,
361 (2009).
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 711
and claims shall be held illegal and void.”
151
The Supreme Court still hears
cases under the takings clause of the Fifth Amendment,
152
but has never had
to consider the right of slaveowners to compensation.
Abolition in Massachusetts avoided the takings issue because—as with
the Thirteenth Amendment—the “taking” came from a constitutional
provision, which would supersede any property claim. In 1790 the first
federal census found no slaves in the state. Free Blacks, who could vote on
the same basis as Whites, participated in political life. But, ironically, the
ending of slavery in Massachusetts may have been almost too speedy to
resolve the many practical and legal implications from such a dramatic
change in law and social policy. The legislature did not considered how the
heritage of slavery would affect race relations, or the status of free Blacks; and
after slaves were emancipated under the law, there were no further public
debates about the need for new laws to address slavery’s legacy on Black
lives.
153
As a result, there was no working concept of “equal protection”
beyond traditional criminal law, no notion that private businesses could be
required to serve Blacks, and no contemplation of how to accommodate a
complete end slavery in Massachusetts while it remained legal in all other
states within the newly created “Perpetual Union.”
154
The incompleteness
of Massachusetts’ approach in disowning slavery is reflected in Chief Justice
Taney’s strategic arguments in Dred Scott. Taney ignored the major
breakthrough of the 1780 Massachusetts Constitution, which legally ended
all slavery and enfranchised Blacks and Indians on the same basis as Whites.
In trying to prove that Blacks were not citizens in the 1780s, Taney was able
to accurately note some of the inconsistencies between the abolition of slavery
in the North, citizenship, and full equality.
In the three quarters of a century after the 1780 emancipation,
Massachusetts would gradually create a society without formal
discrimination, but it would take legislation, as well as some judicial acts, to
do so. Three examples illustrate this.
In Commonwealth v. Aves (1836), the Massachusetts Supreme Judicial Court
heard a novel case involving the status of Med, a six-year-old slave child who
151
U.S. CONST. amend. XIV, § 4.
152
See, e.g., Kelo v. City of New London, 545 U.S. 469 (2005); Dolan v. City of Tigard, 512 U.S. 374
(1994); Nollan v. Cal. Coastal Comm’n, 483 U.S. 825 (1987); Lucas v. South Carolina Coastal
Comm’n, 505 U.S. 1003 (1982).
153
JOANNE POPE MELISH, DISOWNING SLAVERY: GRADUAL EMANCIPATION AND "RACE" IN NEW
ENGLAND, 1780–1860 (1998).
154
The Articles of Confederation, written in 1778 and finally ratified in 1781, created a “perpetual
union between the states,” as described in the document’s full title.
712 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
had been brought to the state from Louisiana by a former resident of Boston
who was visiting her family.
155
Women from the Boston Female Anti-Slavery
Society, posing as representatives of the local Sunday school, investigated
Med’s status, determined she was a slave, gathered evidence, and hired
counsel to bring a private habeas corpus action to liberate her.
156
In this case
of first impression, Chief Justice Lemuel Shaw concluded that no one could
be held as a slave in Massachusetts, except for fugitives from other states,
whose status was regulated by the U.S. Constitution.
157
In freeing Med, Chief Justice Shaw easily applied the state constitution,
noting:
It is now to be considered as an established rule, that by the constitution and
laws of this Commonwealth, before the adoption of the constitution of the
United States, in 1789, slavery was abolished, as being contrary to the
principles of justice, and of nature, and repugnant to the provisions of the
declaration of rights, which is a component part of the constitution of the
State.
158
After reviewing the history of slavery in Massachusetts, Shaw explained:
[I]t is sufficient for the purposes of the case before us, that by the constitution
adopted in 1780, slavery was abolished in Massachusetts, upon the ground
that it is contrary to natural right and the plain principles of justice. The
terms of the first article of the declaration of rights are plain and explicit.
“All men are born free and equal, and have certain natural, essential, and
unalienable rights, which are, the right of enjoying and defending their lives
and liberties, that of acquiring, possessing, and protecting property.” It
would be difficult to select words more precisely adapted to the abolition of
negro slavery. According to the laws prevailing in all the States, where
slavery is upheld, the child of a slave is not deemed to be born free, a slave
has no right to enjoy and defend his own liberty, or to acquire, possess, or
protect property. That the description was broad enough in its terms to
embrace negroes, and that it was intended by the framers of the constitution
to embrace them, is proved by the earliest contemporaneous construction,
by an unbroken series of judicial decisions, and by a uniform practice from
the adoption of the constitution to the present time. The whole tenor of our
155
Commonwealth v. Aves, 25 Mass. 193, 18 Pick. 193 (1836).
156
The Boston Female Anti-Slavery Society hired one of the most distinguished lawyers in Boston,
Rufus Choate, to argue the case. See PAUL FINKELMAN, SLAVERY IN THE COURTROOM: AN
ANNOTATED BIBLIOGRAPHY OF AMERICAN CASES 25, 28 (1985). Choate’s arguments are found
in CASE OF THE SLAVE CHILD MED., REPORT OF ARGUMENTS OF COUNSEL AND THE OPINION
OF THE COURT IN THE CASE OF COMMONWEALTH VS. AVES; TRIED AND DETERMINED BY THE
SUPREME JUDICIAL COURT OF MASSACHUSETTS (Boston, Isaac Knapp, 1836).
157
35 Mass. 193,
18 Pick. 193 (1836). For a full discussion of this case, see PAUL FINKELMAN, AN
IMPERFECT UNION: SLAVERY, FEDERALISM, AND COMITY 103–08 (The Lawbook Exchange Ltd.
2000) (1981) [hereinafter FINKELMAN, AN IMPERFECT UNION]. On Shaw and Med’s case, see
LEONARD W. LEVY, THE LAW OF THE COMMONWEALTH AND CHIEF JUSTICE SHAW (1957).
158
Id. at 208.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 713
policy, of our legislation and jurisprudence, from that time to the present,
has been consistent with this construction, and with no other.
159
While the Massachusetts constitution had ended slavery, it had not
provided for any regulation of race or status based on race. A 1788
Massachusetts statute concerned vagabonds and the support of indigents
160
required Blacks to prove their freedom when entering the state. Of course,
no Whites were required to prove their status to enter the state, because all
Whites were by definition free. At the time, slavery was still legal in three of
the states bordering Massachusetts—New York, Connecticut, and Rhode
Island. Thus, this law was more about interstate comity in the new nation,
before the adoption of the Constitution, than an assault on free Blacks. While
the law reflected racist notions that fugitive slaves would become burdens on
society, it did not prohibit free Blacks from moving to the state. There is no
evidence that this law was ever enforced before it was repealed sub silentio in
1835.
161
The history of antebellum Black education in Massachusetts illustrates
both the limitations of the constitution in protecting Black rights and the
importance of political activism by Blacks and Whites, in a state where there
were no racial restrictions on voting. In 1800, the city of Boston refused to
appropriate funds for a public school for Blacks. In 1820, Boston established
a segregated public school for Blacks. By the late 1840s, most schools in
Massachusetts were integrated, but Boston still maintained separate schools
for Blacks. In 1846, the Boston Black community, led by a Black printer and
historian, William C. Nell, petitioned the Boston School Committee to
integrate the city's schools. This agitation led to the nation's first school
desegregation case, Roberts v. City of Boston.
162
Benjamin F. Roberts sued to
have his daughter, Sarah, admitted to the closest school to where they lived.
Representing Roberts were Charles Sumner, a White antislavery lawyer,
future United States Senator, and eventually the author the Civil Rights Act
of 1875, and Robert Morris, Jr., the second African American admitted to
159
Id. at 210.
160
An Act for Suppressing and Punishing of Rogues, Vagabonds, Common Beggars, and Other Idle,
Disorderly and Lewd Persons (Mar. 26, 1788), 1788 MASS. GEN. LAWS ch. 21, repealed sub silentio
by An Act for the Regulation of Gaols and Houses of Correction (Mar. 29, 1834), 1834 MASS. GEN.
LAWS ch. 151. No trace of the 1788 Act is found in the 1835 Massachusetts Revised Statutes.
161
An Act for Suppressing and Punishing of Rogues, Vagabonds, Common Beggars, and Other Idle,
Disorderly and Lewd Persons (Mar. 26, 1788), 1788 MASS. GEN. LAWS ch. 21, repealed sub silentio
by An Act for the Regulation of Gaols and Houses of Correction (Mar. 29, 1834), 1834 MASS. GEN.
LAWS ch. 151. No trace of the 1788 Act is found in the 1835 Massachusetts Revised Statutes. A
discussion of this can be found in MASUR, UNTIL JUSTICE BE DONE, supra note 4, at 58.
162
Roberts v. City of Boston, 59 Mass. (5 Cush.) 198 (1850).
714 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
practice law in the United States.
163
Sumner argued for the inherent equality
of all people, making constitutional, policy, and psychological arguments
similar to those used in Brown v. Board of Education.
164
However, in the first use
of the “separate but equal doctrine” in American law, Chief Justice Shaw
upheld Boston’s system of segregating Black children.
165
Unlike the U.S. Constitution at the time of Brown, the Massachusetts
Constitution did not have an “equal protection clause” or a “due process
clause.” Chief Justice Shaw ruled that under Massachusetts law, school
districts had vast discretion in assigning students without state interference or
any constitutional limitations. Shaw asserted that “[i]n the absence of special
legislation on this subject, the law has vested the power in the [school]
committee to regulate the system of distribution and classification; and when
this power is reasonably exercised, without being abused or perverted by
colorable pretences [sic], the decision of the committee must be deemed
conclusive.”
166
Today, of course, we would consider race as an unreasonable
classification of students, but in 1850 racial classifications existed in almost
all states and in federal law, and Shaw saw nothing unreasonable about it in
public education.
While not winning in the Supreme Judicial Court on constitutional
grounds, the state’s Black community and its antislavery White allies won in
the legislature. Supporters of equal schooling, including Blacks voters,
petitioned the state legislature to prohibit segregated schools throughout the
state.
167
These petitions were successful in 1855, when the state prohibited
segregated schools.
168
This outcome was a legacy of Revolutionary
Massachusetts.
In sum, the Revolutionary constitution of 1780 enfranchised Blacks and
led to an immediate end to slavery in Massachusetts. The Constitution
ultimately led to a political climate where substantial equality could be
achieved over the next eighty years. By the eve of the Civil War, Blacks in
Massachusetts would have equal access to schools, railroad cars, jury boxes,
163
Paul Finkelman, Not Only the Judges’ Robes Were Black: African American Lawyers As Social Engineers, 47
STAN. L. REV. 161, 172 (1994).
164
347 U.S. 483 (1954).
165
Roberts, 59 Mass. 198.
166
Id. at 209.
167
JAMES HORTON & LOIS HORTON, BLACK BOSTONIANS: FAMILY LIFE AND COMMUNITY
STRUGGLE IN THE ANTEBELLUM NORTH 74–5 (1979).
168
An Act in Amendment of “An Act Concerning Public Schools” (Apr. 28, 1855), 1855 MASS. GEN.
LAWS ch. 256. For a full documentary history of this issue, see JIM CROW IN BOSTON: THE ORIGIN
OF THE SEPARATE BUT EQUAL DOCTRINE (Leonard W. Levy & Douglas Jones eds., 1974).
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 715
and ballot boxes. Despite racial prejudice against social equality, the
legislature repealed prohibitions on interracial marriage.
169
Black lawyers
would appear in court, and a few Blacks would be elected or appointed to
public office. Except for unlucky fugitive slaves who were captured in the
Bay State, no one had been held as a slave since the early 1780s.
Thus, when Massachusetts ratified the U.S. Constitution, there were no
slaves in the state and all Black men were able to vote on the same basis as
Whites. In Dred Scott, Chief Justice Taney ignored this history because it
would have completely undermined his claims that Blacks were not citizens
of the United States. On the contrary, they were voting citizens of
Massachusetts during the Revolution in 1780 and when the state elected
delegates to its ratifying convention in 1788.
B. Pennsylvania
On April 14, 1775, the first antislavery organization in the nation—the
Society for the Relief of Free Negroes Unlawfully Held in Bondage—held its
first meeting in Philadelphia. Five days later the Revolution began, and
within a few months the society collapsed, having met only four times.
170
But
the lack of an organization did not stop agitation to end bondage. Indeed,
the Revolution stimulated antislavery activity.
Pennsylvania had far more slaves than Massachusetts, and many owners
were politically connected.
171
Slaveholding was common among middle-
class and upper-class Philadelphians. The ideology of the Revolution cut in
conflicting directions in Pennsylvania. Support for liberty was strong, but so
too was support for private property. There was significant opposition to
taking slaves from owners, depriving some people of their valuable property
in order to give liberty to others.
As noted above, Massachusetts avoided the “takings” question by a
constitutional provision, which overrode any statutory or common law
claims. The United States would eventually do this with the Thirteenth
169
An Act Relating to Marriages Between Individuals of Certain Races (Feb. 25, 1843), 1843 MASS.
GEN. LAWS ch. 5. See also PETER WALLENSTEIN, TELL THE COURT I LOVE MY WIFE: RACE,
MARRIAGE, AND LAW—AN AMERICAN HISTORY (2002); AMBER D. MOULTON, THE FIGHT FOR
INTERRACIAL MARRIAGE RIGHTS IN ANTEBELLUM MASSACHUSETTS (2015).
170
NEEDLES, supra note 78, at 14–16.
171
GARY B. NASH, FORGING FREEDOM: THE FORMATION OF PHILADELPHIA’S BLACK
COMMUNITY, 1720–1840 38 (1988).
716 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
Amendment, and then explicitly override any claims for compensation for
the loss of slaves in the Fourteenth Amendment.
172
But the “takings” question was clearly an issue in 1780 when
Pennsylvania began to end slavery through legislation. Throughout the
colonial period and the first five years of the Revolution, Pennsylvanians
acquired slaves, investing in a legally recognized and relatively expensive
form of property. In 1765, there were about 1,400 slaves in Philadelphia.
173
There were a significant number of slaveholders in the southwestern part of
the state, where boundaries were fluid and slaveowners from Maryland and
Virginia sometimes settled. There were also large numbers of slaveowners
in York and Lancaster Counties, along the Maryland border.
174
The political
weight of these slaveowners was not insignificant.
Some local political issues also affected opposition to slavery. The
strongest support for abolition was among Quakers and other pietists.
Quakers constituted a significant proportion—but not a majority—of the
state. Most were also pacifists, unwilling to take up arms for either side of
the conflict. However, some Quakers were openly sympathetic to the British,
who did not pressure them to become combatants or even to actively support
the Crown. Others were simply neutral, unwilling to participate in a military
conflict. But neutrality is suspect during a revolution. Many patriots
considered Quakers to be Tories, even when they were not; this view was
exacerbated by the fact that some leading Quakers were Tories.
175
Thus,
during the Revolution, the largest and most economically powerful
community opposed to slavery in Pennsylvania was also the most politically
weak and vulnerable.
Geopolitical issues further complicated ending slavery in Pennsylvania.
The state bordered Virginia, the largest state with the most slaves, as well as
Maryland and Delaware, which would remain slave states until the Civil
War. Its other neighbors, New York and New Jersey, had the largest
percentage of slaves in the North, and would be the last two northern states
to take steps to end slavery. Most importantly, Philadelphia was the nation’s
largest city and the national capital. Delegates to the Continental Congress
172
U.S. CONST. amend. XIV, § 4 (“But neither the United States nor any State shall assume or pay
any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any
claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be
held illegal and void.”).
173
NASH, supra note 171, at 38.
174
EDGAR MCMANUS, BLACK BONDAGE IN THE NORTH 207 (1973).
175
Shannon E. Duffy, Loyalists, ENCYC. OF GREATER PHILA., https://philadelphiaencyclopedia.org/
archive/loyalists/ [https://perma.cc/GR3K-9PXZ] (last visited May 20, 2022).
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 717
from the southern states resided there, often with some slaves in tow. A
precipitous abolition of slavery would complicate interstate harmony,
undermine the war against Britain, undermine Philadelphia’s status as the
country’s leading city, and jeopardize its role as the national capital.
These considerations made an immediate emancipation in Pennsylvania
impossible. But there was strong opposition to the institution, which seemed
like a blot on a nation that had proclaimed that “all men are created equal”
and were entitled to “Life, Liberty and pursuit of happiness.”
176
Thus, in
1778, the state legislature began to consider how to end slavery.
177
On
March 1, 1780 the legislature passed An Act for the Gradual Abolition of
Slavery.
178
It would serve as a model for similar laws passed in Connecticut,
Rhode Island, New York, and New Jersey, and the Canadian province of
Upper Canada (Ontario).
179
It was the first time in the history of the world that
a legislature had passed a statute to end slavery. Simultaneously the
legislature sought to prepare the children of slaves—who would be born
free—for their freedom.
180
Racial attitudes—what today we would identify
as racism—further complicated these dramatic changes.
The Pennsylvania act was truly remarkable. Unlike the simple sentence
in the Massachusetts Constitution, this complex statute balanced the desire
to end slavery with the need to avoid a property-owners revolt against taking
private assets (slaves). Because the law gradually ended slavery, the legislators
understood that there would a long period of time when most Blacks would
be free, but some would still be in bondage. In addition, the legislature had
to balance the political concerns of being a free state surrounded by slave
states and the home of the nation’s capital, where many slave owning political
leaders, military officers, diplomats, businessmen, and war refugees might
congregate. Another complication concerned the exiting legal structure.
Unlike Massachusetts, slavery—and racial control—was embedded in
Pennsylvania law. The legislature had to simultaneously protect the liberty
176
THE DECLARATION OF INDEPENDENCE pmbl. (U.S. 1776).
177
A history of this legislation is found in ZILVERSMIT, supra note 75, at 124–37.
178
An Act for the Gradual Abolition of Slavery, ch. 146, 1780 Pa. Laws 282.
179
An Act to Prevent the Further Introduction of Slaves and to Limit the Terms of Contracts for
Servitude Within This Province 1793, 33 Geo. 3 c. 7 (Eng.).
180
The act did this indirectly, in Section 6, by making the owner of a slave women liable for the
maintenance of Black children who might need public assistance after they served out their
indenture. The members of the Pennsylvania legislature apparently expected that masters would
educate the children of their slaves to prepare them for freedom to avoid later financial costs. It is
easy to criticize this provision as lacking a strong enforcement provision. It illustrates the difficulty
of a legislature creating a new and unique social policy quickly and without any precedents to
follow.
718 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
of free Blacks, protect the society from revolts of those still in bondage,
protect the property interests of masters who still owned slaves, and prevent
slaveowners from evading the law by perpetuating bondage and furthering
their own economic interests. It was a tall order.
The law contains two preambles. The first acknowledged the American
struggle against British “tyranny” and “how miraculously” they had been
delivered from “the variety of dangers to which we have been exposed.”
Reverently, but non-theistically, the legislature thanked “that being, from
whom every good and perfect gift cometh” for American military success.
The legislature rejoiced that it could “extend a portion of that freedom to
others, which hath been extended to us.” Confronting race directly—which
was unusual at the time—the legislature asserted that “[i]t is not for us to
enquire why, in the creation of mankind, the inhabitants of the several parts
of the earth were distinguished by a difference in feature or complexion.”
Attempting to blame Britain for slavery, the legislature celebrated that the
people of Pennsylvania have
a peculiar blessing granted to us, that we are enabled this day to add one
more step to universal civilization, by removing, as much as possible, the
sorrows of those who have lived in undeserved bondage, and from which, by
the assumed authority of the kings of Great-Britain, no effectual, legal relief
could be obtained.
181
In other words, success in the Revolution allowed for the abolition of slavery.
This preamble underscores how American opponents of slavery fully
understood that emancipation was impossible within the British Empire.
They welcomed the Revolution because it allowed them to end human
bondage within their community. This quasi-religious statement is followed
a second preamble that condemns both slavery and British tyranny.
Significantly, it recognizes one of the great horrors of slavery—the
destruction of Black families.
And whereas the condition of those persons, who have heretofore been
denominated Negro and Mulatto slaves, has been attended with
circumstances, which not only deprived them of the common blessings that
they were by nature entitled to, but has cast them into the deepest afflictions,
by an unnatural separation and sale of husband and wife from each other
and from their children, an injury, the greatness of which can only be
conceived by supposing that we were in the same unhappy case. In justice,
therefore, to persons so unhappily circumstanced, and who, having no
prospect before them whereon they may rest their sorrows and their hopes,
have no reasonable inducement to render their service to society, which they
otherwise might, and also in grateful commemoration of our own happy
181
An Act for the Gradual Abolition of Slavery, ch. 146, 1780 Pa. Laws 282, § 1.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 719
deliverance from that state of unconditional submission, to which we were
doomed by the tyranny of Britain.
182
This remarkable paragraph is one of the few instances in United States
history where the White majority articulated the notion that to understand
the pain and oppression of slavery and race discrimination, Whites should
imagine themselves being treated the way that Blacks were treated.
183
After articulating the moral and Revolutionary basis of the law, the
legislature turned to the difficult problem of actually ending slavery. Under
this law all children born in Pennsylvania as of March 1, 1780, would be
born free. The clause recognized—and rejected—the longstanding
American rule that the children of slave mothers are born as slaves for life:
184
That all persons, as well Negroes and Mulattoes as others, who shall be born
within this state from and after the passing of this act, shall not be deemed
and considered as servants for life, or slaves; and that all servitude for life, or
slavery of children, in consequence of the slavery of their mothers, in the case
of all children born within this state, from and after the passing of this act as
aforesaid, shall be, and hereby is utterly taken away, extinguished and for
ever abolished.
185
This provision avoided “taking” any existing property. The 1780 law
cleverly took nothing from slaveowners that they currently owned, although
it denied them any future interest in the replication of their human property
through births. However, this led to a new problem: Who would pay for the
cost of raising the children of slave women? The law required the owner of
the mother to do so, and in return the children would serve the mother’s
owner as indentured servants until they turned twenty-eight.
186
This was an
182
Id. at § 2.
183
In 1688, a Mennonite/Quaker meeting in Germantown, Pennsylvania articulated a similar notion.
Germantown Protest Against Slavery (1688), reprinted in KERMIT L. HALL, PAUL FINKELMAN &
JAMES W. ELY, JR., AMERICAN LEGAL HISTORY: CASES AND MATERIALS (5th ed., 2017). In 1963,
President John F. Kennedy would make a similar argument, when introducing what became the
Civil Rights Act of 1964. Kennedy said:
If an American, because his skin is dark, cannot eat lunch in a restaurant open to the
public, if he cannot send his children to the best public school available, if he cannot vote
for the public officials who will represent him, if, in short, he cannot enjoy the full and free
life which all of us want, then who among us would be content to have the color of his skin
changed and stand in his place? Who among us would be content with the counsels of
patience and delay?
President John F. Kennedy, Televised Address to the Nation on Civil Rights (June 11,
1963), https://www.jfklibrary.org/learn/about-jfk/historic-speeches/televised-address-to-the-
nation-on-civil-rights [https://perma.cc/G7PR-WAUV].
184
This rule was first promulgated by the Virginia House of Burgesses, the colonial legislature, in 1662.
See Negro Womens Children to Serve According to the Condition of the Mother (Act 12), 1662 Va.
Acts (2 Hening 170).
185
An Act for the Gradual Abolition of Slavery, ch. 146, 1780 Pa. Laws 282, § 3.
186
Id. at § 4.
720 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
excessively long indenture and gave the owners of slave women an enormous
payback for the cost of raising these children. This was deeply unfair to these
free-born Blacks, who were forced to serve the owners of their mothers for
many of their most productive years.
187
Some other states followed the
Pennsylvania model, but would reduce the indenture time.
188
Why such long
indentures? The legislature possibly did not carefully consider the length of
the indenture, or the lawmakers believed that without this enormous
compensation for the owners of slave women, the law would not pass.
The law made masters financially liable to the overseers of the poor if the
children of slave women could not support themselves after their
indenture.
189
This incentivized slaveowners to prepare the children of their
slaves for freedom. The law also required an elaborate registration system to
prevent illegal importation of new slaves.
190
Courts would strictly enforce
this law, leading to some Blacks becoming free because they were not
properly registered.
191
The law also dramatically provided significant equal protections rights
for both indentured Blacks and slaves: “That the offences and crimes of
Negroes and Mulattoes, as well slaves and servants as freemen, shall be
enquired of, adjudged, corrected and punished, in like manner as the
offences and crimes of the other inhabitants of this state are and shall be
enquired of, adjudged, corrected and punished, and not otherwise, except
that a slave shall not be admitted to bear witness against a freeman.” This
was the first time an American legislature treated slave defendants the same
way that free people were treated. Every colony—and, after 1776, every
other state where slavery was legal—had special punishments, rules, laws,
and trials for slaves. Pennsylvania no longer did. Granting the right of free
Blacks to testify against Whites—and that would include the indentured
children of slave mothers, testifying against those who owned their mothers
and fathers—also broke new ground. In no other slave jurisdiction in the
187
See Robert William Fogel & Stanley L. Engerman, Philanthropy at Bargain Prices: Notes on the Economics of
Gradual Emancipation, J. LEGAL STUDS. 377 (1974).
188
Rhode Island provided that the children of slave women would serve their mother’s master until
they reached adulthood—eighteen for women and twenty-one for men. See An Act Authorizing
the Manumission of Negroes, Mulattoes and Others, and for the Gradual Abolition of Slavery,
1784 R.I. Sess. Laws 6–8. On the other hand, New York initially kept the female children of slave
women in servitude until age twenty-five and the male children until age twenty-eight. See An Act
for the Gradual Abolition of Slavery, ch. 62, 1799 N.Y. Sess. Laws 388.
189
An Act for the Gradual Abolition of Slavery, ch. 146, 1780 Pa. Laws 282, § 6.
190
Id. at § 5.
191
See, e.g., Respublica v. Negro Betsey, 1 U.S. (1 Dall.) 469 (1789); Wilson v. Belinda, 3 Serg. & Rawle
396 (Pa. 1817).
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 721
nation could Blacks, slave or free, testify against Whites. These provisions,
granting equal protection for all free Blacks and substantial protections for
slaves could not be found in any other slave state,
192
and should be seen as
the first civil rights law in the United States. Under this law, the twenty-one-
year-old daughter of a slave woman would still be indentured to her mother’s
owner, but the child would have been able to testify against the owner for
abusing her mother. Furthermore, the law allowed slaves and indentured
Blacks to sue their masters, or lodge a complaint with authorities, and “be
entitled to like relief, in case he or she be evilly treated by his or her master
or mistress.”
193
When freed from their indenture, the children of slave
mothers were to be given the same “freedom dues and other privileges” as
White apprentices and indentured servants.
194
This contrasts with laws
further south, which allowed for the re-enslavement of manumitted slaves, or
even the enslavement of free born Blacks.
195
The law did not allow slaves to testify against free people, Black or White.
This made sense—however unfair it was—in a society where slaves were
present. But even here the law was innovative because it applied to all free
people, not just Whites. Thus status (as a slave), not race, became the critical
factor on limiting testimony. As noted above, the law allowed free Blacks to
testify against Whites, something no other slave state allowed, and allowed
Blacks to complain about being “evilly treated.”
The law allowed anyone visiting Pennsylvania to keep a slave in the state
for up to six months.
196
This was an explicit modification of the Somerset
precedent, which required the immediate emancipation of any slave brought
into a non-slave jurisdiction. Because Somerset was decided before the
Revolution, the principle was imbedded in American law. However, Somerset
was based on the understanding, as Lord Mansfield clearly stated, that
192
An Act for the Gradual Abolition of Slavery, ch. 146, 1780 Pa. Laws 282, § 7.
193
Id. at § 4
194
Id.
195
For example, a Virginia act of 1705 authorized the manumission of slaves for “meritorious
services,” but allowed for their re-enslavement and public sale if they remained in the colony for
more than a month after being manumitted. An Act Directing the Trial of Slaves, Committing
Capital Crimes; and for the More Effectual Punishing Conspiracies and Insurrections of Them;
and for the Better Government of Negros, Mulattos, and Indians, Bond or Free, 1723 Va. Acts ch.
4 (4 Hening 126). Similarly, in 1837 Virginia provided that manumitted Blacks who were not given
permission to live in the county where they had been manumitted had to leave the states within one
year and any former slaves “so remaining, shall forfeit their right to freedom, and may be
apprehended and sold . . . .” An Act Amending the Laws Concerning Emancipated Slaves, Free
Negroes and Mulattoes, ch. 70, § 2, 1837 Va. Acts 48.
196
An Act for the Gradual Abolition of Slavery, ch. 146, 1780 Pa. Laws 282, § 10.
722 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
slavery could only be exist if it had been created, or at least supported, by
positive law. Thus, Mansfield wrote:
The state of slavery is of such a nature, that it is incapable of being
introduced on any reasons, moral or political; but only positive law, which
preserves its force long after the reasons, occasion, and time itself from
whence it was created, is erased from memory: it's so odious, that nothing
can be suffered to support it, but positive law.
197
Unlike England, Pennsylvania had been supporting slavery with positive
law in the colonial period, and the 1780 law recognized the existence of some
slaves in the state, even as the law set the state on the road to total abolition.
The law balanced the Somerset principle with the reality that slavery had, and
still did, exist in Pennsylvania. Without any special provision for visitors, any
slaves coming into the state would be immediately free. But as part of a
“perpetual union” with slave states, the legislature had to specifically modify
the Somerset principle. The six months rule made sense in a state where
slavery was dying, but not yet dead. This modified version of Somerset also
made sense in a nation where all other states (including Massachusetts at this
time) allowed slavery. Thus, slaveowners from Virginia, Maryland,
Delaware, New York, or New Jersey could flee to Pennsylvania if the British
occupied their neighborhood. Allowing fellow patriots from other states to
bring their slaves into the state for a short period of time seemed reasonable
in the emerging nation. But if they stayed longer than six months, the slaves
would become free. A 1788 law immediately emancipated the slaves of
anyone who moved to the state “intending to inhabit or reside therein.”
198
Intention to reside could be construed by such actions as starting a business,
renting property for more than six months, buying real property, voting in
the state, or a declaration of the intention to remain in Pennsylvania.
199
The six months limitation did not apply to the “domestic slaves attending
upon Delegates in Congress from the other American states, foreign
Ministers and Consuls.”
200
This made perfect sense. If Philadelphia was to
remain the nation’s capital, the state had to allow political leaders to bring
slaves with them. However, the law would be strictly construed. When a
U.S. Senator from South Carolina left office for two years, but remained in
197
Somerset v. Stewart (1772) 98 Eng. Rep. 499, 510 (KB).
198
An Act to Explain and Amend an Act, Entitled, “An Act for the Gradual Abolition of Slavery,” ch.
394, § 1, 1788 Pa. Laws 586.
199
For a full discussion of this issue and the cases implementing the law, see FINKELMAN, AN
IMPERFECT UNION, supra note 157 at 46–69, 137–44.
200
An Act for the Gradual Abolition of Slavery, ch. 146, 1780 Pa. Laws 282, § 10.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 723
Philadelphia, his slave won his freedom, even though the politician had
subsequently been reelected to the Senate.
201
In 1788, Pennsylvania bolstered the 1780 law.
202
Beyond strengthening
registration procedures for the children of slave mothers, the law prohibited
Pennsylvanians from engaging in the African slave trade, selling indentured
Blacks out of the state, kidnapping free Blacks, removing a pregnant slave to
a slave state so that her child would be born a slave for life, or selling slaves
away from their spouses.
203
This last provision was unique in American slave
law, as it formally recognized the legitimacy of slave marriages.
CONCLUSION
In 1775, as the Revolution began, slavery was legal in every American
colony, Blacks were universally considered “enslavable,” and there was no
organized political opposition to slavery in England or the American
colonies. Members of some faiths opposed slavery, free Blacks and slaves
naturally did, and some proto-revolutionaries, like Benjamin Rush and
Thomas Paine, were openly hostile to slavery. In Britain, political actions
against slavery were mostly limited to attempts to slow down or stop the
African slave trade,
204
but these projects were singularly unsuccessful. The
slave trade was simply too profitable to consider ending it. While the Court
of Kings Bench in England had made it clear that slaves brought to the
mother country were entitled to freedom, Lord Chief Justice Mansfield also
supported the African slave trade and the enslavement of Blacks in the
thirteen mainland colonies and Britain’s other New World colonies,
including Canada and the Caribbean. Indeed, the enslavement of Africans
and their American-born descendants was legal, vibrant, and profitable
throughout the Americas, from Spanish Argentina to British Canada.
In 1765, on the eve of the Revolutionary period, free Blacks in most of
the northern mainland colonies had some rights, but most were at best
residents or “denizens” and could not really even be considered second class
citizens. Some were veterans of the Seven Years’ War, which the colonists
called the French and Indian War. As such, they were possibly considered
part of the political community, but there is no evidence they voted. The
201
Butler v. Hopper, 4 Fed. Cas. 904 (1806).
202
An Act to Explain and Amend an Act, Entitled, “An Act for the Gradual Abolition of Slavery,”
1788 Pa. Laws 586, 589.
203
Id. at §§ 4, 2, 3, 6, 7, & 8.
204
In addition to acts in Virginia, there were petitions against the trade circulating in Pennsylvania.
See NASH, supra note 171, at 39–43.
724 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
status of free Blacks in the South was worse. While private manumission was
possible in the northern colonies, it was illegal in Virginia
205
—the colony with
the most slaves—and North Carolina. Limited manumission was possible in
South Carolina and Maryland. Almost all Blacks throughout the colonies
were enslaved. For example, in 1765, Philadelphia—the most cosmopolitan
city in the colonies—had 1,400 slaves and only 100 free Blacks.
206
The Revolution altered the status of Blacks. By 1783, there were only
400 slaves in Philadelphia and about 1,000 free Blacks. By 1804, every
northern state had either abolished slavery outright or passed laws to set it
on the course of extinction. Gradual emancipation meant that some masters
would keep their slaves to the bitter end, but in most places the new laws
stimulated manumissions. In New York the slave population declined
rapidly after the passage of that state’s gradual abolition act, while the free
Black population grew dramatically.
207
The laws also affected social norms
and legal rights, with Blacks participating in public life, serving in the militias,
and voting—and, as noted above, at least one African American was elected
to public office.
The Revolutionary-era thus changed the culture and rights of people of
color in the United States. The history of race relations in the United States
is rooted in slavery. The legal history of Black rights—and the rights of other
minorities—begins with emancipation in the Revolutionary era. If there
were no free Blacks, if virtually all Blacks were slaves, then there would have
not been any debate over Black rights, because generally slaves had no rights.
They were people without rights.
As noted earlier, in Dred Scott Chief Justice Roger B. Taney infamously
declared that at the founding all African Americans “were considered as a
subordinate and inferior class of beings” who “had no rights or privileges but
such as those who held the power and the Government might choose to grant
205
In 1782, Virginia allowed masters to voluntarily manumit their slaves for the first time in more than
a century. An Act to Authorize the Manumission of Slaves, ch. 21, 1782 Va. Acts 39. The law
limited manumissions to able-bodied adult slaves under the age of forty-five and allowed these free
people to be sold for limited terms if they could not pay their taxes. Masters manumitting slaves
had to pay registration fees and could be charged to maintain their former slaves if they could not
support themselves. This was not a civil rights law, but more of a grudging admission that some
Virginia slaveowners no longer wanted to own slaves. The passage of this law led to a massive
growth in the free Black population in Virginia, as the number of free Blacks grew from an
estimated 2,000 to over 30,000 by 1810. However, in 1805 Virginia changed its laws and the
growth of the free Black population slowed to a trickle. An Act to Amend the Several Laws
Concerning Slaves, ch. 63, 1805 Va. Acts 251–253.
206
NASH, supra note 171, at 38.
207
See GIBSON & JUNG, supra note 100, at tbl. 47.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 725
them.”
208
Taney asserted Blacks were “so far inferior, that they had no rights
which the white man was bound to respect; and that the negro might justly
and lawfully be reduced to slavery for his benefit.”
209
If he had been writing about the American colonies before the
Revolutionary era, Taney would have been mostly (but not completely)
correct. But the history of the Revolutionary era shows that Blacks had been
acting as citizens and participated in public life for more than a decade before
the Constitutional Convention opened. Blacks had served in the state militias
and in the Continental Army and Navy during the Revolution. Military
service was an obligation of citizens. The Black veterans of the Revolution
were clearly citizens in many states. Had Taney been a better scholar and
interested in the reality of Black rights in the United States, he would have
known this. In 1855, just two years before Taney wrote his opinion in Dred
Scott, the Black abolitionist William C. Nell published one of the first serious
books on the history of Blacks in the United States: The Colored Patriots of the
American Revolution.
210
Nell had spearheaded the successful campaign in
Massachusetts to ban segregation in the public schools. The most famous
novelist in the nation, Harriet Beecher Stowe, wrote an introduction to Nell’s
book, while the great abolitionist orator (and Harvard trained lawyer)
Wendell Phillips wrote a second introduction to a paperbound “pamphlet”
edition of the book.
Similarly, as the story in Pennsylvania, Massachusetts, New York, and
other new states shows, by 1787–88 when the Constitution was written and
ratified, free Blacks voted in six northern states, and also in North Carolina
and probably Maryland—the Chief Justice’s home state.
211
In Pennsylvania,
even slaves had some legal protections and rights in the Revolutionary era.
The Revolution led to the first Civil Rights revolution in the United States.
Chief Justice Taney of course ignored or misrepresented this history
because he was determined to “prove” that Blacks could never be citizens of
the United States, and he was equally determined to give slavery even more
protections than the Constitution afforded the institution. For Chief Justice
Taney, Black history did not matter.
208
60 U.S. 393, 404–05 (1857).
209
Id. at 407.
210
WILLIAM C. NELL, 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.
Walcutt, 1855). Available at Documenting the American South (1999), UNIV. N.C. CHAPEL HILL,
https://docsouth.unc.edu/neh/nell/nell.html [https://perma.cc/7ENX-9BMN].
211
See JOHN HOPE FRANKLIN, THE FREE NEGRO IN NORTH CAROLINA, 1790–1860 (1943)
726 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
Taney’s overreach in Dred Scott backfired. The decision invigorated
northern opposition to the spread of slavery and offended an enormous
number of northerners. The vast number of northerners were not ready to
accept social equality for Blacks, or even their participation in electoral
politics. But many were also unwilling to deny them basic legal rights.
Abraham Lincoln became the voice of these attitudes. Antebellum
Illinois, where Lincoln lived, was one of the most racist states in the North.
When seeking public office, Lincoln was not in a position to argue for an end
to southern slavery or for northern Black political and social equality. In his
1858 Senate campaign, running against Taney’s opinion in Dred Scott, Lincoln
travelled a careful line—opposing social equality, interracial marriage, and
Black suffrage, but supporting the promise of the Declaration of
Independence for all Americans, and arguing that Blacks should have basic
economic and legal rights. In a debate with Stephen A. Douglas, after
denying that he favored Black suffrage or racial equality, Lincoln asserted:
but I hold that, notwithstanding all this, there is no reason in the world why
the negro is not entitled to all the rights enumerated in the Declaration of
Independence—the right of life, liberty and the pursuit of happiness. I hold
that he is as much entitled to these as the white man. I agree with Judge
Douglas that he is not my equal in many respects, certainly not in color—
perhaps not in intellectual and moral endowments; but in the right to eat the
bread without leave of anybody else which his own hand earns, he is my
equal and the equal of Judge Douglas, and the equal of every other man.
212
Lincoln lost in 1858 because senators were elected by the state legislature,
and the Illinois legislature was gerrymandered to overrepresent the
conservative Democratic counties in the southern part of the state. But
Lincoln’s articulate evisceration of Taney’s opinion catapulted him to the
Republican presidential nomination and the White House.
Lincoln was the first president to openly articulate his personal and
political hatred for slavery, declaring, “if slavery is not wrong than nothing is
wrong.”
213
The election of a man who had said that slavery should be put
“in the course of ultimate extinction”
214
led to secession, civil war, and
ultimately the Fourteenth Amendment, which reversed Dred Scott, by
declaring that “All persons born or naturalized in the United States, and
212
3 COLLECTED WORKS, supra note 149, at 249. Lincoln’s comment on Blacks not being equal to
him “in color” illustrates his deft political skills. Campaigning in Illinois, where Blacks had few
rights and there were few opponents of slavery, he was able to parry Senator Douglas’s race-baiting
without actually saying anything meaningful.
213
Lincoln to Albert G. Hodges (Apr. 4, 1864), 7 COLLECTED WORKS, supra note 149, at 282.
214
Abraham Lincoln, A House Divided, Speech at Springfield, Illinois (June 16, 1858), 2 COLLECTED
WORKS, supra note 149, at 461.
June 2022] THE FIRST CIVIL RIGHTS MOVEMENT 727
subject to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside.”
215
During the debates over this Amendment, some senators and
representatives wanted to limit the citizenship clause to White people and
people of African ancestry. While these tepid supporters of equality
recognized the need to make Blacks citizens—especially after more than
200,000 of them served in the Army and Navy during the Civil War—they
wanted to exclude the Chinese, who California Congressman William Higby
called “a pagan race.”
216
But in 1866, when this debate took place, the
Republican majority in Congress was in no mood to prevaricate about race
and racism—the ideology that had led the South to secede and to start a war
that slaughtered more than 630,000 Americans.
Taney’s racist overreach in Dred Scott and the creation of Confederacy on
the basis of White supremacy
217
led to the expansive language of Section 1 of
the Fourteenth Amendment and set the stage for “a new birth of freedom,”
to use Lincoln’s language,
218
and ultimately civil rights laws. The majority
in Congress favored a broad notion of citizenship, as Pennsylvania Senator
Simon Cameron made clear in 1869, after he returned to the Senate
following his service as Secretary of War and U.S. Ambassador to Russia
during the Civil War. Cameron argued that citizenship and equal voting
rights “invites into our country everybody; the negro, the Irishman, the
German, the Frenchman, the Scotchman, the Englishman, and the
Chinaman.”
219
Cameron’s understanding of the amended Constitution reversed
Taney’s lifelong commitment to denying rights to Blacks, and, by
implication, to Asians and other non-Whites who might come to the United
States. His understanding would set the stage for the Supreme Court
affirming in United States v. Wong Kim Ark
220
that “all” persons born in the
215
U.S. CONST. amend. XIV, § 1.
216
Cong. Globe, 39th Cong., 1st Sess. 2756 (1866) quoted in John Hayakawa Torok, Reconstruction and
Racial Nativism: Chinese Immigrants and the Debates on the Thirteenth, Fourteenth, and Fifteenth Amendments and
Civil Rights Law, 3 ASIAN L.J. 55, 80 (1996). For a greater discussion of this debate, see Paul
Finkelman, Original Intent and the Fourteenth Amendment: Into the Black Hole of Constitutional Law, 89 CHI.–
KENT L. REV. 1019, 1024–29 (2014).
217
I have detailed this ideology in Paul Finkelman, States’ Rights, Southern Hypocrisy, and the Crisis of the
Union, 45 AKRON L. REV. 449–478 (2012).
218
Abraham Lincoln, Gettysburg Address (Nov. 19, 1863), http://www.abrahamlincolnonline.org/
lincoln/speeches/gettysburg.htm [https://perma.cc/AQ4R-P4ZR].
219
WILLIAM E. NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO
JUDICIAL DOCTRINE 87 (1988).
220
169 U.S. 648 (1898).
728 JOURNAL OF CONSTITUTIONAL LAW [Vol. 24.3
United States, except the children of diplomats, are citizens at birth.
221
Cameron’s understanding also reflected the partial fulfillment of the civil
rights movement that began during the American Revolution.
Unfortunately, it would be an incomplete revolution for almost two
centuries, and while the legal structure has changed, social, political, and
economic forces continue to undermine equality. We have come a long way
since 1775, when slavery was legal in all the thirteen new states and equality
was unknown. But we are not there yet.
221
See Gabriel J. Chin & Paul Finkelman, Birthright Citizenship, Slave Trade Legislation, and the Origins of
Federal Immigration Regulation, 54 U.C. DAVIS L. REV. 2215 (2021) (examining the implications of
Wong Kim Ark and other case law in defining citizenship status for various groups).
