Researcher Talk: Black Sailors and Citizenship in the Era of the Gag Rule

Researcher Talk: Black Sailors and Citizenship in the Era of the Gag Rule


>>Richard McCulley: Thank you for attending
today’s researcher talk. I’m Richard McCulley, the Historian at the
Center for Legislative Archives which sponsors this series. We have never tried to lure historians to
come speak to us during the not always pleasant month of August. And we continue that very sensible tradition
next month by not having a Researcher Talk. But the series resumes on September 15 when
we will host William McAllister and Joshua Botts, two historians at the Department of State, they will discuss their book on the history
of the Foreign Relations of the United States series which earlier this year was awarded
the George Pendleton prize for an outstanding book on the history of the federal government. They will discuss how Congress helped originate
that program and played a very important role in that series evolution over the past 150
years. We are very pleased to host today’s speaker,
Kate Masur, Associate Professor of History at Northwestern University. She has researched records at the center several
times. Welcome back, Kate. She will discuss “Black Sailors and Citizenship
in the Era of the Gag Rule,” part of her book project tentatively titled Police Powers,
the Anti-Slavery Movement, and the Origins of the Fourteenth Amendment. Professor Masur is the author of An Example
for All the Land: Emancipation and the Struggle Over Equality in Washington, D. C. published
by the University of North Carolina press in 2010. She has published widely in the New
York Times and worked with the National Park Service on projects related to the 150th anniversary
of Reconstruction. Her work has been supported by the ACLS/Ryskamp Fellowship, the National
Endowment for the Humanities, and the Kluge Center at the Library of Congress. I could
go on – But as many of you are aware, Professor Masur is quite an accomplished scholar and
we are very pleased to have her today. We should have time for questions after the presentation.
Please remember to raise your hand before you ask a question so we can pass the microphone.
Thank you, very much, for joining us today, Kate.
(Applause)>>Kate Masur: Well, thank you for inviting
me. Thanks for having me here. It’s really great to be here at the National Archives
and have a chance to present new work that I’m doing. I want to thank Richard McCulley
for reaching out to me and inviting me to give a talk here today and to congratulate
you on your upcoming retirement. And that sounds like a good transition. I am going
to be talking about a new project that is under way that I’m currently working on today
and I’m going to highlight research I’ve done here at the Legislative Archives. I don’t
have a lot of slides here. I do want to show a couple of petitions that I found here at
the Center for Legislative Archives. I found when I was putting the slide show together
that petitions don’t lend themselves well to slide shows. They’re vertical and the slide
show is horizontal. You’ll see how I tried to solve that problem.
So in late November, 1833, back in the past, we are going back in time, a veteran ship
steward came into the office of a Boston abolitionist who was also a lawyer and a justice of the
peace. He gave a sworn affidavit of a freed black sailor in New Orleans. A voyage four
years earlier had taken him to Bordeaux, France and then to New Orleans. When he arrived in
the Crescent City the 30 year old Thompson requested a portion of the pay that was due
to him. The ship’s mate became angry with him, accused him of stealing, and tossed him
in jail and then attempted to sell him into slavery.
“I refused to go,” Thompson attested. Fortunately, he had connections in New Orleans. He spoke
some French and he the jailer to send word of his imprisonment to two white men, and
landlord and a merchant. The latter of whom he had sailed with long ago. The two white men came to the jail and secured Thompson’s freedom.
He was painfully aware that things could have turned out quite differently. Thompson concluded,
“If I had not had friends in New Orleans or if I had them but could not send a message
in French by the guard I could not have recovered my liberty and in all probability have been
in slavery at this time.” While in jail he encountered other free black
men who had been incarcerated and were vulnerable to being sold into slavery. There was a free
man he had known in Baltimore, William Johnson, who had been shackled and wiped. There were
three fellowship stewards who he had known along the way. Two more men from Boston, three
from New York, and one from Portland, Maine. All were slated to be sold as slaves after
20 days in jail. Unable to benefit from the type of connections that Thompson had, they
were without recourse. Thompson asked one of his friends to help but that man’s efforts
were unavailing. Thompson went to the ship on which one of the stewards had arrived which
was anchored along the levy and asked for his free papers or at least to visit the steward
in jail. The man refused chasing Thompson away shouting racial epithets at him. Quote,
“A continual stream of free colored men from Boston, New York, Philadelphia and other seaports
of the United States, “Thompson said, “is passing through this into calaboose slavery in the country” In my talk today, I’ll explore how northerners in the 1830s and ’40s galvanized against what
Thompson described – the arrest and incarceration of free black men in southern ports. Although
self-described abolitionists were part of this effort, many of its primary movers sought
to distance themselves from the radical abolitionist movement and to make a different point. They
were not arguing for the immediate abolition of slavery but for fair treatment for people
of African descent who were already free. They targeted two types of southern state
laws. First laws that permitted the arrest and incarceration of any person of African
descent without proof of freedom. And second, laws that were directly targeted at black
sailors and that treated them as potential criminals and that threatened their liberty
when in port. The heart of the northern movement against discriminatory racial laws in the
maritime south was the maritime state of Massachusetts. Activists argued that the state must protect
its own black citizens when they traveled in other states. Their use of the term “citizen”
in the context was very significant After several years of pressure in 1839 the
Massachusetts state legislate explicitly condemned the southern statute. But the state government
and its supporters were powerless in the face of southerners who claimed their racially
discriminatory laws were necessary to secure to peace and public safety. Eventually, and
as a result of pressure from Massachusetts, anti-slavery legislators in the U.S. House
of Representatives took up this issue. I will spend some time highlighting some remarkable
petitions I found at the Center for Legislative Archives. These are petitions of sailors and
ship captains who were part of the movement to insist that the South’s racially discriminatory
laws were unconstitutional. They advanced their agenda in the era of the gag rule when
both houses of Congress refused to enter petitions that called for the abolition of slavery.
But these protesters insisted that they were raising a different issue. They were talking
about the basic rights of free people of color. And in 1842 and ’43 they finally managed to
get a hearing in the House of Representatives. I see the debate over the rights of free black
northerners traveling and working as sailors in the South as an important episode in the
history of American constitutionalism. Through the activism of sailors, captains and their allies, many northerners came to understand a significant
shortcoming in the American constitutional order. That is that under the existing framework,
it was impossible to ensure that all free Americans could enjoy basic personal liberty,
the ability to move from place to place within the nation unimpeded. It would take an amendment
to the Constitution itself, they realized, to even promise such protection, much less
deliver on it. In this sense the antebellum struggle to protect northern black sailors who docked in slave-holding states was a crucial prelude to the Fourteenth Amendment. That’s the larger picture of what I’m trying
to do here. So some background. We need to understand the racist laws passed by southern
states and by some northern ones in the context of a long history of laws designed to secure
public peace and orders. These laws alluded to police powers, that is the power of government
to do what is necessary to structure a peaceful society and to ensure their own continued
existence. In the United States, police laws came out of the English common law tradition,
just as the better-known tradition of individual rights did.
Most relevant for our purposes are English Poor Laws. Starting in the 16th century, Poor
Laws of England sought to address poverty and dependency by establishing rules by which
people must establish residency in their own jurisdictions. Poor people and other groups
that communities considered undesirable–including beggars, prostitutes, gamblers, and gypsies
– had to carry passes from one jurisdiction to another and had to obtain permits to reside
in certain places. These laws made it difficult for these marginalized people to settle in
new communities. Colonists in British North America adopted variations on English settlement
laws which were founded on the police powers of local government.
In the colonial and early national periods in the United States, local jurisdictions
used such laws to regulate internal migration, that is movement from one county or state
within the nation and immigration from abroad. So the Poor Law tradition was the foundation
for both certain kinds of settlement laws within the United States and also immigration
law before immigration law was completely federalized. It was these laws and the larger
principal that communities could exclude or regulate people based on the perception that
they posed a threat to community well-being that provided the foundation for the racially
discriminatory laws in the United States. Concern about the in-migration of free black
people usually fell along two different lines. In slave holding areas policy makers feared
that it would cause an uprising. They feared that free black people would foment uprising
among slaves. In both free and slave-holding jurisdictions, they feared that free black
people would be poor and therefore a drain on public resources. In the jurisdictions
that passed laws restricting the entry and settlement of free black people, courts typically
upheld those laws as appropriate uses of police powers. For instance a prominent Federalist
judge who was from Massachusetts gave voice to the logic in an 1821 holding that the District
of Columbia’s statutes restricting the mobility and settlement of free black people were entirely
constitutional. Local governments, the judge affirmed had
the right to pass laws to uphold the peace and morals of society “if there be a class
of people more likely than others to disturb the public peace or corrupt the public morals
and if that class can be clearly designated then governments can impose on members of
that group reasonable terms and conditions of residence designed the guard the state
from the evils it has reason to apprehend.” So these racially discriminatory laws were
upheld as appropriate uses of police powers. Now the federated structure of the United
States allowed different states as well as the District of Columbia to have different
laws when it came to free people of African American decent and any other police powers.
But what happened when people traveled from one jurisdiction to another? The question
came up in a very pointed way when the issue of whether slave owners could bring slaves
into states where slavery was outlawed. Was the government of a free state obliged to
uphold the owner’s title to a slave even if slavery was not sanctioned by state law?
Imagine a slave owner trying to bring a slave into Massachusetts or Pennsylvania and that
slave runs away, is the state obligated to bring the person back and observe the laws
of slavery even if slavery is not allowed in that state? This question has been explored
tin some depth by the historian, Paul Finkelman, who showed that in the early 19th century
northern states did honor the rights of traveling slave owners when the slave escaped. That
gesture was called comity, that’s the idea that local governments should allow sojourners
passing through the state to allow rights and privileges that they enjoyed at home even
if they were not legal where the person was traveling. It’s an old concept in international
law. Finkelman showed that comity gradually broke down as northern state increasingly
rejected slavery. As sectional tensions heightened, northern states increasing held that slave
owners had no rights to their slaves when they traveled on free soil.
So the principal once they come to free soil they no longer have a claim to own that person
that, principal evolved over time in the course of the antebellum period. But what happened
when in the reverse situation when freed black northerners traveled to southern states where
state laws demanded that those people carry passes and be subjected to other discriminatory
rules that made them vulnerable to arrest and even to be sold into slavery? Slave owners
claimed their citizenship rights allowed them to maintain control over their slaves even
while traveling in states where slavery was illegal. Could free black northerners claim
that their citizenship rights allowed them to keep the rights they enjoyed at home even
if the jurisdictions they traveled did not recognize those rights? So the other direction.
You might be wondering why would any free black northerner even want to go into a southern
state. Mostly they wouldn’t. Already facing difficult conditions in their own states,
why would they want to travel into a region where they were vulnerable – where they risked
arrest as runaways, kidnapping, and even sell into slavery? But many freed black northerners
were sailors and their work in the very significant coastal and international trade of this era
frequently required them to dock in southern ports. A historian named Jeffrey Bolster showed
that in the early decades of the 19th century seafaring is among the most common occupations
among northern black men. Working at sea could provide a better livelihood and better pay
than most land-locked work. Because free black sailors regularly traveled into southern states
in the course of their job and were connected to powerful commercial interests, it was in
relation to them that issues of citizenship were discussed and hashed out in the decades
before the Civil War. So they create in their travels and in their employment questions
or raised questions that people have to grapple with. At first the controversy over the rights
of freed black sailors coalesced around the state of South Carolina and its distinctive
Negro Seamen Act passed by a state legislate in 1822 reeling from the discovery Denmark
Vesey’s plot to provoke a slave uprising. This South Carolina law required all free
black sailors to stay in jail while their ships were in port. This applied to out and
state and foreign sailors. Protests began immediately and came from northerners
of laws from British captains and diplomats. Opponents of the law argued that it violated
the United States Constitution because it interfered with commerce which was definitively
in the domain of Congress. They also insisted it was an unconstitutional infringement on
the individual liberty of free men. Why should innocent sailors be deprived of
their liberty while in port? There were challenges, but the law was allowed to stand. And in 1830
in response to continuing proper tests by the British, President Andrew Jackson’s attorney
general said the law was in “perfect harmony” with the constitution. He argued that the
law was a simple matter of “internal police” resting on the principal that governments
almost unlimited power to make law they deemed necessary to insure their own continued survival,
including regulating the behavior of groups perceived as dangerous. Moreover, the attorney
general argued that the law did not interfere with the powers of Congress over commerce
or with treaties with Great Britain. He was writing in the 1830 in a moment of extensive
debate over the relationship between state police powers and the powers of congress and
the federal government. He’s writing in the middle of a lot ferment about this issue,
although mostly about issues relating to immigration and state laws that restricted immigrants
from coming in. But they argued that Congress could only override state statutes like the
Negro Seaman Act only if it was necessary and proper to the preservation of the union.
Allowing free blacks into the nation’s ports was merely a matter of convenience but not
necessary. Therefore, state laws that regulated or excluded free black people were “a justifiable
exercise of the power of the states.” This is the language speaking directly to the Constitution.
In other words, the defense of these laws always rested on police powers. As a Wilmington,
North Carolina newspaper put it, such laws “are essential for our self-preservation.”
They always come back to: we have to have these laws to preserve order in our society.
It was in the 1830s that activists and policy makers in Massachusetts began to agitate against
the South Carolina Negro Seaman Act and other racially discriminatory laws. Their position
was that although governments at every level could make laws to maintain peace and security,
governments could not make laws that treated people as criminals only because of the color
of their skin. What a concept, right? Two Massachusetts state legislators writing in
1836 dismissed any potential argument that black citizens of Massachusetts might be less
entitled to protection than white. If it be said the laws complained of, that is the southern
laws, bear most hardly on a portion of our population denominated Negroes, be it so.
Does alter the case? Are they not citizens? Have they not the same rights enjoyed by others,
that of being protected by the government under which they live. Under the southern
state police laws these two legislators from Massachusetts argued men were deprived of
their liberty on no other evidence than that of color and complexion. It’s significant
that they identified color and complexion as inappropriate criteria for singling people
out. It is intuitive to us now, but it was not the case then. These legislators weren’t
arguing against policing laws in general, they were merely saying that a person’s skin
color should not make him or her a suspect. Pressure continued in Massachusetts and elsewhere
as anti-slavery newspapers circulated accounts of free black sailors imprisoned in the South
under various racially discriminatory laws. The testimony I read earlier from Thompson
was brought to light as part of an effort to alert people to what was happening to sailors
in the South. The Massachusetts legislature took action for the first time in 1839 when
it passed resolutions condemning the statutes as both unconstitutional and “in utter derogation
of that great principal of the common law which presumes every person to be innocent
until proven guilty.” The 1839 resolution empowered the governor to use public funds
to send emissaries into southern states to get black people out of jail. But in the larger
sense what could really be done? States could not tell other states what laws to pass. Besides
relying on southern legislatures to change their mind, the other recourse was to the
federal government. Yet the federal role here was not immediately clear. In 1830, the attorney
general declared the laws completely constitutional insisting they didn’t conflict with Congress’s
jurisdiction and that they fell under the categories of powers reserved by the states.
Was it possible to challenge that interpretation of the Constitution?
In a significant 1836 petition in Massachusetts, petitioners turned to the Constitution’s preamble
but that was not necessarily the best place to go. The preamble said the purpose of the
Constitution was to establish justice, ensure domestic tranquility, provide for the common
defense, promote the general welfare and secure the blessings of liberty to ourselves and
to our posterity. The preamble alluded to police powers to insure tranquility
and promote public welfare. Although this part of the Constitution could be used to
argue for liberty and inequality, it could be used in the other direction – as a statement
that security came first. But in the preamble was the Constitution’s language about citizenship
and comity. This was before the Fourteenth Amendment created the idea of birth right
citizenship and the idea that everyone born in the United States was afforded equal rights.
That was passed by Congress in 1866 and ratified in 1868. So we don’t have that yet. In most
situations state citizenship was more important than national citizenship. It would come into
play if people were traveling abroad, the United States government considered itself
responsible for U.S. citizens when they were out of the country but to matters internal
to the U.S., citizenship was considered a state-based status. And that is how the Constitution
refers to it in Article 4, section 2: “The citizens of each state shall be entitled to
all the privileges and immunities of citizens in the several states.” But it also suggested
a federal role in ensuring that all citizens enjoy privileges and immunities when they
travel to other states. It was the one place in the Constitution that these people from
Massachusetts and their allies could grab onto to make the argument to Congress that
they needed to step in against these racially discriminatory state laws. Now southern leaders
usually denied this clause of the Constitution was relevant to the question of freed black
sojourners. They did not recognize their own free blacks residents as citizens nor did
they recognize the free blacks whose home states considered them citizens should be
treated as citizens when they visited other states. By contrast Massachusetts and other
northern states insisted that free people absolutely were state citizens and fully vested
members of the community. They rejected the idea of people of African descent be singled
out based only on their skin color even in the name of policing public order. They insisted
that the state had an obligation to protect those citizens, when they were mistreated
while in other states similar to the way national government was obliged to look after its citizens
when they were in other countries. And they argued that the U.S. government had a role
to play in protecting all citizens, including black citizens’ basic rights when they traveled
in the nation. This argument is not at all accepted by courts, by any major interpreter
of the Constitution. They’re basically advancing an argument that they wish people bought into
but it’s not actually what most people subscribed to. But it did provide an opening for going
to Congress. Not surprisingly if you’re aware of the history
of Congress in this period. A key figure was John Quincy Adams, the former president who
lost his bid for reelection but was elected to the United States House in 1830. Well known
for his campaign against the gag rule, Adams was working with other antislavery Whigs to
say that the slave power in Congress had grown much too powerful. Adams provoked an uproar
when he introduced a petition calling for the dissolution of the union. And in the course
of defending himself from censure for having introduced that petition, he raised the issue
of unfair treatment of black sailors. On February 2, 1842, Adams persuaded the House to pass
a resolution asking the president to submit all documentation from the State Department
regarding earlier protests against the laws, especially an 1823 holding by a federal judge
that the original South Carolina Negro Seaman Law was unconstitutional. These documents
in the State Department because of the British protests against the laws. So that law had
created an international conflict even as it was creating a conflict within the nation.
Adams knew very well those documents existed because he had been the Secretary of State
during the Monroe administration when South Carolina first passed this controversial law.
He in fact was one of the main people involved in passing these documents back and forth
between South Carolina and the British government. Now we get to see some petitions. So after
Adams gets the House to resolve to investigate the unfair laws of South Carolina and produce
these papers, people who cared about this issue in the northeast and Cincinnati galvanized
and sent petitions to Congress, These are mostly from sailors and ship captains and
their allies. This is a petition from black sailors in New York. It’s a petition of 220
people who identified themselves as “freed colored citizens of the United States and
the state of New York.” They are using that citizenship language. And this is the text
of the petition, “who claim that by virtue of their citizenship the Constitution guaranteed
them, quote, rights of life, liberty and the pursuit of happiness.” In the course of pursuing
their vocation in South Carolina, Georgia and Cuba “many had been arrested and thrust
into prisons and dungeons.” And all were liable to be incarcerated “whenever our business
call us to any of those places in the due prosecution of our lawful concerns without
any crime being brought or alleged against us except that of our complexion.” They asked
Congress to be protect them as citizens of the United States. And this petition is really
long so here is my solution. Picture it being long but it goes on and on and on and on and
on. No, that’s the endorsement. This on the side the writing on the side said these names
were taken at a public meeting called by colored seaman. I haven’t found a newspaper account
of that meeting but people met together to get signatures on this petition. It has 220
names on it. African American sailors and their supporters in Boston set up a petition
with 60 names asking Congress to pass laws to protect them from the unjust and unconstitutional
statutes of the southern states. Many notable, including Frederick Douglass, signed that
petition. Ship captains also mobilized. From New York
came a petition complaining that in Cuba and in the coast United States cities of Charleston,
Savanah, Mobile, and New Orleans, they were exposed to having their crews taken out of
their vessels and incarcerated in prisons greatly to the detriment of their interest.”
Nantucket captains likewise complained of the many complexities and burdens and expenses
associated with the laws that not only forced them to pay to get the sailors released from
jail but required them to hire other people to do with work that the otherwise jailed
seamen would have done. The Nantucket captains maintained that these laws were far worse
for the black sailors themselves who were subject to the “loathsome jails of southern
ports.” The black sailors were forced to stay home at the cost of abandoning their best
means of an honest subsistence. Interestingly from Cincinnati, here is another
way of dealing with the issue, I just made it really small. From Cincinnati came a petition
from merchants and steam boat owners who did business in that city or were “otherwise interested
in the trade of the western waters,” complaining of the great inconvenience in their business
from the laws of Louisiana and Mississippi that prohibited the entrance of freed persons
of color and if they did come, “subjected them to impressment and other penalties by
which laws your memorialists are prevented from employing as cooks, stewards, firemen,
and othersie on boats traveling between Cincinnati and those states.” The petitioners believed
as well that the laws were “unjust to the colored persons themselves and were advised
they were incompatible with the Constitution of the United States” and they respectfully
ask that “Congress will take such action on the subject that will address the wrongs complained
of.” So you’ll notice in suggesting the laws restricting
the liberties of black sailors impinged on the operation of trade and a sailor’s ability
to pursue their vocations, many of these petitions were alluding to the Constitution which gave
Congress alone the power to regulate interstate commerce. They’re not just saying it’s a violation
of individual liberty but it is also an encroachment on what Congress was supposed to have power
over. In this way they seem to be suggesting the
direction they wanted Congress to go or the ways they believed Congress had the power
to intervene in the situation. So these petitions are submitted in winter of 1842 after Adam’s
resolution passes. What happened after is an example of how people wanted Congress to
deal with slavery and race were to circumvent the gag rule in order to get a hearing. And
this happened a lot. A lot of these anti-slavery Whigs at this time tried to figure out ways
of presenting petitions that dealt with slavery but didn’t directly call for the abolition
of slavery so that petitions would have to be heard.
President Tyler duly responded to the House’s request for information about the history
of the South Carolina law. Agitation continued in Massachusetts as the state legislature
passed more resolutions, called for action to test these laws in federal court, and pressed
their congressional delegations to do more. Jonathan Ingersal Votich, a renowned merchant
and captain, got signatures from 150 of what John Quincy Adams called “the most respectable
and distinguished citizens of Boston.” Some of them were owners and masters of vessels.
They tried to find the most elite, respected, shipping oriented people of Boston to sign
on this petition. This petition was brief and to the point and it adopted the language
of citizenship and constitutionalism. On ships landing in Charleston, Savannah, Mobile and
New Orleans, they said “freed persons of color on their ships were frequently taken from
their vessels, thrown into prison, and detained at their own expense.” The practice hurt the
sailors and the interest of the shippers as well. They asked Congress to grant sailors
relief and render in their behalf the privileges of citizenship afforded by the Constitution
of the United States. Again, they were trying to use ideas about citizenship and commerce
to persuade Congress that there is a role that they can play.
This is an advanced and creative vision of citizenship in this period because there is
no prevailing interpretation that citizenship needs to be protected at the federal leve.
The person who engineered this petition found a congressional sponsor in Robert Winthrop
who accepted the challenge of bringing the petition before the House and consulted with
Adams about how to avoid having it tabled under the gag rule. In a letter to Votich,
he explained his strategy in introducing the petition and laid out the constitutional dilemmas
they faced. I think this is a marvelous statement of the problems. You can read along with this
extended quote. This is Winthrop to Votich in Boston. The mode of doing it under the
existing rules is however very private. All petitions which do not come under the 21st
rule are to be filed with the clerk and by him handed to the committee which may be endorsed
upon them. I might make it a special business to present it in a more formal way but the
consequence would be that it will be laid on the table as soon as it is received and
will never receive any consideration by the committee or the House. On the other hand,
by offering it through the medium of the Clerk, it is certain to go into the hands of a committee
and they must report it on to the house. On consultation with Mr. Adams”I have determined
to take this course. I’ve not quite made up my mind whether it’s best to endorse it for
the Judiciary Committee or the Committee on Commerce” Doubtless, there will be the customary
flair-up when the report is made. The report can propose no definite course of action.
Congress cannot breach the state laws. The courts along are competent to act on the subject
and even they would find it hard to get at them. The most that can be done by a committee
is to recognize the seizure of freed colored sailors as a violation of their privileges
as citizens and the laws under which the seizure takes place is a violation of the Constitution
of the United States.” What he says here ends up happening. He decided
to go with the Commerce Committee of which he happened to be a member. And the tabled
petitions from the previous winter were filed with the committee which is an interesting
fact for those of us who work in archives. The Commerce Committee – reported back. The
majority report strongly condemned the state’s statutes that restricted the liberty of free
black sailors. It appended the historical documents that John Quincy Adams had requested
which included a powerful 1823 decision by a South Carolina federal judge that the original
Negro Seaman Act was unconstitutional. The committee echoed that finding, concluding
that it was unconstitutional on three separate grounds. They interfered with the treaty making
powers of Congress, with the Congress powers of commerce, and were a violation of individual
rights. The committee conceded that the state did have the power to make their own police
regulations but denied that the Seaman’s Act was part of that. It was “monstrous” , Winthrop’s report insisted that people charged with no crime could be seized and incarcerated with no due process to determine
their guilt or innocence and that they could even be whipped and sold into slavery. It
was crucial to balance the needs to maintain peace but how is this balance to be achieved?
The committee did not lay down a single principal but said the police powers could never be
permitted to violation the constitutional privileges of citizens “because of distinctions
that originate in their birth and are part of their being”–in this case, it is the color
of their skin. Yet the report held that Congress could do
very little. It seemed to have no means of affording relief. As Winthrop stated in a
private letter Constitution didn’t give Congress power to override laws such as these. The
only possible avenue for undermining them was to turn to the federal courts. That route
would be difficult as well. It was virtually impossible to get a prisoner held under state
law into federal courts. Judges did not have the power to issue writs of habeas corpus
to state prisoners. The best Winthrop could do was propose resolutions that denounced
the laws as unconstitutional. If the majority report was talking about ideals but not finding
a way forward, a minority report, offered by Kenneth Rainor, a Whig of North Carolina,
was far less idealistic and far more faithful to contemporary constitutional interpretation.
Rainor’s report argued that the original South Carolina law passed in the aftermath of a
slave conspiracy was a means of safety, a protection of self-defense, “forced on the
state by stern necessity.” Other states followed suit out of concern for self-preservation,
he insisted, concern brought on by the rising anti-slavery movement. White southerners feared
that black sailors from the North would circulate abolitionist literature and for the sake of
peace, they could not allow that to happen. Once again, going back to the language of
survival and of police powers. Rainor also rejected the argument about citizenship.
He argued that the comity clause which I showed you before was inapplicable in this case because
when — just because you’re recognized as a citizen in your home state doesn’t mean
we have to recognize you as a citizen in our state. When you’re in a new place you have
to abide by the rules of our state and there was no applicability of the comity clause
of the Constitution. He turned it around saying if the northerners want it that way they would
have to allow southern whites to enforce they are citizenship rights to maintain their slaves
when they traveled in northern states. We can get Congress to force you to allow us
to keep our slaves when we are in Massachusetts or Pennsylvania. So there was a majority report
and a minority report. The fact that any of this reporting existed at all was the result
of Winthrop’s strategy of sending petitions to the Commerce Committee. The house agreed
to print thousands of copies for circulation among the American people so it resulted in
5,000 copies of a document which is number 80 of this Congress. John Quincy Adams recorded
in his diary mailing it out to constituents. It was a way of publicizing the issue. Winthrop
later called for a vote on the resolution to condemn — he proposed to condemn these
acts even if he couldn’t do anything about it and that proposal was tabled. So which
is what they would have expected. Of course it was tabled. No matter, the printed copies
of the report were seen available. The issue with Winthrop, he was a conservative, but
a stalwart on the issue of black freedom. By 1850, he was in the Senate and over the
course of a debate over the Fugitive Slave Act, Winthrop returned to the issue insisting
that if Congress were going to make it easier for southern white citizens to exercise their
rights to reclaim their slaves, Congress should protect the rights of freed black northerners
who by virtue of their profession traveled into southern states. So he did not let this
issue go. So my argument is that the roiling debate
about the rights of freed black sailors brought about by the testimony of people like Joseph
Thompson and in states like Massachusetts but in other states as well, and eventually
into the United States Congress, this issue taught antislavery northerners an important
lesson, that the rights of free black people and all people could not be adequately protected
under the existing constitutional order. They were thinking about changing the constitution.
In 1839 John Quincy Adams proposed a gradual emancipation law – an amendment in Congress
to the Constitution. Some people petitioned for the repeal of the Three-fifth Compromise,
so these folks already had in mind that certain aspects of the Constitution were going to
need to change. But at this point they were at a stalemate.
There was no possibility of changing the Constitution under the regime they had, so the existing
order was going to continue. And I’ll just say briefly Justice Taney in the Dred Scott
decision of 1857 mentions this. He affirms that states can use their police powers even
to the point of discriminating against people because they are of African descent. He says:
Look, if anyone wants to change this, they know what to do. Change the Constitution.
So that’s actually in the Dred Scott decision. He knew it would be impossible to pass a constitutional
amendment at that point. Little did he or anyone else know that an opportunity would
soon be at hand. The chance to change the Constitution and to make progress toward a
national promise to protect the basic rights of all free people arrived only because of
the extraordinary conditions brought about by the American Civil War. The Fourteenth
Amendment about citizenship and equal rights established crucial limits on the police powers
of the states and in some ways it was designed to solve the problems experienced by free
northern black sailors in the South. The petitions from sailors and captains in the Legislative
Archives are not filed with the tabled petitions denied under the gag rule, because of Robert
Winthrop’s strategy of putting them before the House Commerce Committee. The Serial Set,
House Report 80, provides context for those petitions. But that’s not all. The research
in this paper was also conducted in the Massachusetts State Archives and the Massachusetts Historical
Society which is where I found letters between Vodich and Winthrop. And also documentation
of the work of activists and of the state legislature. One of the most exciting things
about this project has been putting the conversations in relation the one other. The whole story
of history is never really available to us as researchers. There are many gaps in the
story I’ve told today some of which can probably be filled by further research and others that
may be unresolvable. The intricate story of the movement for racial equality, moving from
the local to state level and then to the national level can only be told through research among
multiple archives. I hope this works add something to our understanding of the tortured history
of race, police powers, and individual liberties in the United States.
Thank you. (Applause)
>>Audience Member: Thank you, very much, Kate, for the speech today. I’d like to go
back to the beginning of your presentation when you talked about the sailor in New Orleans.
Can you talk about French law and the impact or influence of French law as it relates to
slavery? Also you mentioned the sailor had friends who speak French. Can you talk about
being rescued? If he’s in jail, what influence would be required to be released from prison?
Was there a bribe? What kind of influence would be required to get someone out of prison?
>>Kate Masur: Thanks for those questions. I can’t really say anything about French law.
And at this point Americans controlled New Orleans at this point. So the laws in New
Orleans and Louisiana as I understand it, when it comes to this issue and the issue
here because in fact New Orleans at that time did not have a Negro Seaman Act, they passed
one later. Just because they didn’t have a law that restricted the liberty of black sailors
didn’t mean these issues didn’t come up. The laws across the southern states, including
Louisiana which had a French heritage basically, said if you were a person of African descent
at large on the streets, you were asked to produce evidence of what you were doing or
some kind of evidence that you were a free person. If you couldn’t produce that, you
were going to be thrown in jail until your owner came and picked you up or you can produce
evidence to the satisfaction of the authorities that you are a free person. So what would
have happened in this situation, the Thompson spoke French and he was able to use French
to talk to the jail guard. He didn’t say that the two friends who came and helped him were
of French origin. I think they were probably Anglo. So he used French to tell the jail
guard, I have a couple friends in this city, find them. Those people would have come and
to the satisfaction of the jailors testified that Thompson was a free man. Now this left
room for all kinds of arbitrary distinctions. It was up to the clerk at the jail to decide
who was credible in the absence of papers but if two elite respected white members of
the New Orleans community said I’ve known this guy for a long time then he can get out.
I wouldn’t say it’s a bribe. It’s about who can come in and say the person is a free person
and therefore shouldn’t be in jail.>>Audience Member: Hi, professor. Thank you
for this presentation. It is quite enlightening. My question concerns the free black sailors
themselves, and your discussion sort of veers off from the petitions to talk about congressional
and state legislature action. But what are the sailors doing beyond signing the petition
or is their signature on these petitions the end all be all of their sort of activism or
one of the unknown elements of history that you spoke about at the end that we know much
more about what Congress is doing on the issue then perhaps the sailors themselves on the
ground.>>Kate Masur: There’s a terrific book, Black
Jacks by Jerry Bolster, on this where he found that with the advance of these southern laws
as more states passed them and cracked down, there were fewer black sailors sailing in
and out of southern ports. So it caused people to drop out of business because they didn’t
want to risk what could happen to them in these ports and that’s alluded to in the Nantucket
petition where the captains say that they have to give up this really good source of
livelihood. And there’s a lot going on with freed black sailors. There would be sailors’
homes in cities where sailors would stay when they were in port. In New York, for instance,
I guess black sailors were not welcomed in the traditional white sailor’s home. A guy
by the name of William Powell established a black sailors’ home. I have a feeling that
Powell had something to do with that petition. Powell was an outspoken abolitionist and he
had contact with all of these sailors coming in and out where the sailors would stay and
sleep. A lot has been written and that’s not my main question here but it’s not like a
big mystery. That’s knowable information.>>Audience Member: My question is how did
or did gender intersect this debate. Color should not affect citizenship. Should gender?
Did woman travel to the South in this state? Did they come across any different discrimination
than black men?>>Kate Masur: This version of citizenship
which excludes the right to vote, there’s a debate about whether the right to vote is
a prerequisite of citizenship or not but this version of citizenship of basic rights to
liberty and own and transact property is in theory not gendered. It’s available to all
people, men and women to. Incarcerate a black woman because of the color of her skin would
be equally offensive to the idea of citizenship as a man. But in practice because of the institution
of marriage, women had less or different kinds of liberties than men. So there’s a kind of
yes it’s supposed to be gender neutral but then again women’s conditions of life especially
married women did not guarantee your promise of freed mobility. Most of these sailors were
men but there’s a case in Massachusetts that got the attention of a woman who traveled
as an employee of a family from Massachusetts to I think it was New Orleans. She was basically
some sort of servant or employee of a Massachusetts family, went to New Orleans, on the way back
the boat was shipwrecked along the coast of North Carolina, she was taken off that shipwreck
and sold into slavery in North Carolina. That’s an instance of a woman
— how she got to a southern state is different from a black sailor who would be working aboard
a ship but it suggests that it would be operated similarly. It’s an interesting question. You’re
next.>>Audience Member: I was from the Caribbean
so I come to this with a different look and I grew up in the Netherlands. So there are
a few questions that come out of this. Over time with the increase of abolitionist movement
but also with England getting rid of slavery, with getting rid of the slave trade theoretically
in the United States of America, with France eventually following England to get rid of
slavery also. Did this have an impact of what was going on in the South? Did it lead to
the increase — the need on the part of the southern states to even more carefully control
these black sailors? And great African American historian who just died, slavery and freedom,
John Hope Franklin, he talks about sailors as kind of black ambassadors. So another issue
is how do you see these issues with the, you know, the growing backlash against African
Americans, the losing — they had started out after the revolution getting voting rights.
Did that in your mind also create a growing kind of restlessness under the blacks to fight
for all of these issues? So how do you see this playing out in the international context
applying to what was going on?>>Kate Masur: Yeah, yeah, thanks. Well, I
mean one things that comes to mind is that so several — a lot have good work has been
done on black sailor in the Atlantic as agents of revolution and freedom, and their ability
to travel from place to place and talk about ideas of freedom coming out of the Haitian
revolution but they can spread the contagion of liberty and talk about these things. Concretely,
David Walker’s appeal, he had tried to get black sailors to circulate that in the slave
states. One thing that is paradoxical in a way, these white southern plantation holding
interests were famous as advocates of free trade. They wanted as much free circulation
of goods as possible but they had to stop the circulation of ideas. They feared desperately
the circulation of ideas. So it’s really tough to be in that situation because how do you
promote commerce but stop certain kinds of people or certain kinds of ideas from coming in. So it really kind of speaks to one of the problems and paradoxes of the antebellum south.>>Audience Member: One other question. (Speaker
off microphone) do you see that over time — (speaker off microphone)
>>Kate Masur: Right. It’s a huge question we are facing to this day. So the question,
the relationship between sort of individual freedom and liberty and the development of
capitalism and commerce, it’s a very tricky one. I find it interesting that this stuff
goes through the Commerce Committee. and in some ways the parallel – Or, for example, the passage of civil rights legislation in the 20th century under the commerce clause of the Constitution, not under the Fourteenth Amendment slash the
comity clause. The comity clause itself that I talked about today is similar to the commerce
powers or invokes a similar idea as the commerce powers of Congress in that it’s about dealing
with relationships among states. So I keep coming back to this idea about in the federalist
structure of the United States what perpetually brings people to a crisis over individual
rights is the issue of crossing state lines. So whether it’s these guys or the freedom
riders, it is those kind of issues that forces people to kind of look at how much of the
kind of inequality that we permit in local areas are we going to allow when the nation
as a whole looks at it. So there are really interesting resonances or questions that relates
to the particular structures of the Constitution and federalism to these issues but it always
is invoking commerce.>>Richard McCulley: I will have to invoke
the clock because we are right at the 1:00 time. Thank you so much, Kate.
(Applause)

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