Bradburn reasoned that the U.S. Constitution protected black sailors because they were citizens of Massachusetts, but he buried contested assumptions about sovereignty and citizenship in his constitutional claims. Indeed, he spoke as part of a minority in opposition to South Carolina’s Negro Seamen Act because so many disagreed that black people were entitled to legal protections as citizens. And although he invoked federal authority, Bradburn declared it “a paramount duty of the state, to protect its citizens.”14 He argued around unresolved constitutional questions about the relationship between state and federal governments and state and national citizenship. Still, it is clear that Bradburn understood that citizen status was an important legal concept and that claiming the status could be a productive strategy for protecting black Americans. He read the Constitution in the same ways that many black activists did, using its ambiguities to secure legal protections for black people. His arguments convey the uncertainty surrounding the precise relationship between a citizen and different American governments, a question that black activists would work to resolve in the coming years.
FIGURE 2. “The sailor’s description of a chase & capture,” George Cruikshank (1822). Black men found gainful employment at sea, and many also enjoyed feelings of freedom and a sense of community among fellow sailors. As southern state lawmakers worked to protect slavery, the mobility of black sailors raised important questions about sovereignty and citizenship. Rare Book and Special Collections Division, Library of Congress.
Amos Daley and his counsel as well as George Bradburn made arguments with transformative potential for American law. In the antebellum period, lawmakers generally agreed that citizenship indicated a person’s connection to a place, but they held varying ideas about the bonds of sovereignty and allegiance that would link individual citizens and various levels of American government. In fact, segments of the American population showed little concern with the content of citizen status, emphasizing instead their connections to community organizations to secure political and social powers. Few agreed whether local, state, or federal authorities should determine the content of citizenship or even that the content of citizen status should be important for their lives.15
At the same time that George Bradburn issued his minority report, another group of lawmakers from his state argued in favor of federal sovereignty yet denied that it would secure black rights. In February 1839, a group of women delivered a petition to the Massachusetts House that 1,400 other women had signed, calling for “the immediate repeal of all laws of the State which make any distinction among its inhabitants on account of color.” The petitioners cited a law that excluded black men from state militias, but the Committee on the Judiciary appointed to handle the petitions denied that this exclusion was unjust. Massachusetts law called for only white men to serve in militias, which was “but the recital, in terms, of the act of Congress, the supreme law of the land.” As for the exclusion, they called it a “silent exemption” through which “the colored citizen” had been relieved of the obligation of militia service. Even if they wished otherwise, they could not act, for the petition asked legislators to “cut the knot which cannot be untied.” “The power of enrolling the citizens in the militia belongs to the United States,” they concluded, “and not to the state sovereignty.”16 It is unclear how they arrived at that decision, but committee members stated that federal authority should determine at least one aspect of citizenship. In the process, Massachusetts legislators highlighted what was, for black Americans, the vexing problem of citizenship’s uncertain meaning. Although the lawmakers described black men as “colored citizens,” they did not feel that that status should allow them to form or serve in state militias. Instead, they presented a citizen status that was not necessarily connected to rights. Black activists could use the citizenship in their work, but those who opposed them could also deploy the same tool to further constrict black freedom.
The response to the women’s petition also points to the ways federal authority as established was potentially oppressive for black Americans. While Bradburn invoked both federal law and state birthright to claim citizenship for black people, his colleagues covered themselves in the same constitutional authority to deny responsibility for a specific exclusionary legal act. Perhaps this explains the approaches that Bradburn and Amos Daley took in challenging the Negro Seamen Act. They may have argued that black people were citizens based on their status in New England states because they were uncertain that federal authorities would agree with their claims. The way they used the Privileges and Immunities Clause—claiming a federal citizen status based on its conferral at the state level—could empower antislavery or antiracist northern lawmakers to deem black people citizens and could skirt potential opposition by a larger national government that included dozens of proslavery and racist lawmakers. They looked to exploit the particular opening that interstate comity provided to begin building a federal legal status for black Americans.
State judges similarly delivered a range of opinions on the way citizenship should function in a federal system. Judicial disagreements about sovereignty and black rights in Pennsylvania were central to the process of disfranchising black men in the state. As with the denial of black militia access in Massachusetts, the fact that citizenship was so vague made it possible for judges to construct the status in ways that both secured and denied specific rights to black Americans. For example, on October 13, 1835, William Fogg, a free black man living in Luzerne County in northeastern Pennsylvania, traveled to the polls to vote in races for governor and other state and local positions. Fogg met all of the state qualifications for a voter: he was over twenty-one years old, had lived in the county for at least two years, and had paid taxes to the county government at least six months before the election date. But when he presented his ballot and qualifications to Hiram Hobbs, who served as inspector for the election, Hobbs “refused to receive his vote.” Fogg sought legal redress and gained a favorable hearing from Judge David Scott, who instructed the jury that the election official Hobbs had unjustly abridged Fogg’s rights. Hobbs’s attorneys argued that because of his race, Fogg “was not a citizen within the meaning of the constitution,” but Judge Scott said that argument imposed an additional, extralegal qualification for suffrage. Further, Scott said, Pennsylvania’s gradual abolition law, passed in 1780, suggested that state lawmakers had wanted “to make the man of colour a freeman.” He claimed that the state’s founding generation had been looking to allow black men access to the legal status of freeman, which had traditionally been linked to voting.17 There was nothing explicit in state law that excluded black people from voting, and so, Scott ruled, William Fogg ought to have the right to vote.18
Judge Scott’s instructions compelled the jury to agree that Fogg had been unjustly disfranchised, but his forceful directions would become the foundation for Hiram Hobbs’s appeal. In the state supreme court, Chief Justice John Bannister Gibson found, or perhaps created, a legal basis to disfranchise black people. He mentioned a 1795 decision in a state appellate court that prohibited black suffrage, and although he produced no written record of that case, through word of mouth and memory, Gibson ruled that it was valid precedent. He proceeded to dismiss Scott’s arguments by crafting a history in