A Confusion of Language

On the legal foundations that spurred centuries of civil rights movements.

By Kate Masur

Wednesday, March 24, 2021

On the Ohio River, c. 1840. Smithsonian American Art Museum.

By the era of the American Revolution, Americans lived in a nation profoundly shaped by African slavery as well as settler colonialism, both premised on the idea that people of European origin were more entitled than others to benefit from the land and its bounty, to command labor, and to govern their communities. White Americans regularly told themselves that certain differences in background and physical appearance—in the continent where one’s ancestors originated, or in skin tone and hair texture—aligned with meaningful differences in temperament or intelligence. Many hoped to create communities, states, or even an entire nation in which white people were the only ones who mattered.

Anti-Black laws in free states such as Ohio enjoyed tremendous legitimacy and staying power. As late as the 1850s, some states in the former Northwest Territory and the far West were still adopting new ones. The laws were racist by definition because they sorted people by race and subjected those deemed “negroes and mulattoes” to regulations that white people did not face.

But race was not the only kind of difference that was significant in this society. Many of the racist laws in Ohio and elsewhere were built atop laws designed to address challenges of poverty and dependency. These legal structures dated back to the sixteenth century and the English tradition of managing the poor. Local governments in England had responded to a rising population of mobile poor people and their demands for aid by establishing regulations designed to distinguish between those who belonged in the community and those who did not. The core idea in the English poor-law tradition was that families and communities were obliged to provide for their own dependent poor, but not for transients and strangers. The most privileged people were those with a legal “settlement.” People who were legally settled in a local jurisdiction were recognized as permanent residents. If they became needy and had nowhere to turn, they might be able to draw on the public poor-relief fund. By contrast, local authorities were under no obligation to help residents who had no legal settlement. Officials could expel such people from the jurisdiction, sending them back to their place of origin. Even people considered likely to become a public charge could face regulation and removal.

Settlement law made no pretense of treating everyone equally. Its main orientation was not individual rights but community well-being, and in this context, persons who were perceived as economically and socially independent had far more privileges than those who were not. In the British North American colonies, largely as in England, local authorities monitored who was moving into the community, and they treated potentially dependent people with special suspicion. Whether someone came into the jurisdiction from elsewhere in the colonies or from abroad mattered little in this regime of regulation. What was important to authorities was knowing who was there and trying to keep needy people, especially strangers, off the books. The American Revolution did not fundamentally change such practices.

The Articles of Confederation, drafted amid the American Revolution in 1777, reflected the Anglo-American tradition of seeing the mobile poor as less than fully vested members of the community. The Articles were a precursor to the Constitution, drafted ten years later, and the goal was similar: to provide guidelines for knitting the disparate states into the “United States of America.” Part of the fourth section of the Articles was designed to facilitate migration from state to state. “The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union,” it read, “the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States.” The clause used the terms free inhabitants and citizens interchangeably. As James Madison later lamented, “There is a confusion of language here which is remarkable.” But, in making a clear distinction between free citizens and those whose status was degraded, the measure reflected the idea, commonplace at the time, that paupers, vagrants, and criminals were not entitled to the same freedom of movement as other ostensibly free people.

The measure made no mention of race, and that was by design. During debate about the Articles of Confederation in the Second Continental Congress, delegates from South Carolina had suggested inserting the word white between the words free and inhabitants. If they had had their way, the Articles would have promised privileges and immunities only to “free white inhabitants” of each state. Yet the Congress rebuffed their suggestion by a vote of eight states to two (with one state divided), so the provision remained as originally drafted. It suggested that free persons or citizens had certain privileges and immunities, without regard for race or color. And it rendered paupers, vagabonds, and fugitives as marginal, implying that local jurisdictions would be entirely within their rights to treat them as pariahs or even exclude them entirely. Such people might become dependent on local alms and disruptive of social harmony; they might threaten, either literally or figuratively, the health of the body politic.


In the 1783 Treaty of Paris, Great Britain acknowledged that the colonists had won the American Revolution and ceded to them jurisdiction over almost 900,000 square miles of territory, extending from the Atlantic Ocean westward to the Mississippi River. The nation’s legislature for most of the 1780s, the Confederation Congress, soon established rules for settlement of the area that became known as the Northwest Territory—the expanse of land, some 260,000 square miles, that lay west of the Appalachians and north of the Ohio River. The British had previously attempted to restrict white settlement in the region, hoping to avoid costly wars with Native American groups that had forged long-standing military and trading alliances with colonial powers. The U.S. government now moved to incorporate the region into the United States and open the way for settlement. In 1787 Congress passed the Northwest Ordinance, which formally established the Northwest Territory and provided mechanisms for creating political institutions and eventually converting the federal territories into new states. This was the first time the U.S. government had created a federal territory.

Consistent with the strand of Revolutionary-era thought that proclaimed natural rights and human equality, the Northwest Ordinance outlawed slavery throughout the territory. In reality, slavery already existed there. Along the Mississippi River and in areas of the Illinois Country, from the late 1600s through the 1760s, French traders enslaved Native people as laborers and within networks of kinship. African slavery also extended into the territory, particularly along the Mississippi River, where trade routes connected the Illinois Country with New Orleans. After American independence and adoption of the Northwest Ordinance, some settlers continued to fight for slavery and long-term indentures. Those efforts would ultimately prove futile, in part because so many of the white people who moved into the territory were trying to get away from slavery, not drag it along with them.

The Ohio Country—the part of the Northwest Territory that lay just west of Pennsylvania—was where settlers arrived first and in greatest numbers. The area was the site of protracted and often excruciating violence between settlers and Native groups. After the Treaty of Paris, U.S. officials hoped the region’s Native people would, like the British, consider themselves defeated. Instead, Native leaders from different tribes coalesced into confederations to fight the Americans. In 1786 one such group warned Congress that Americans must remain south of the Ohio River and threatened to defend their territory should surveyors and settlers attempt to move north. The settlers remained undaunted. In the early 1790s, under the leadership of George Washington and the Federalist Party, the U.S. government redoubled its efforts at conquest. After several battles in which the Indians of the Northwest Confederacy prevailed over American forces, a larger contingent of the U.S. Army won a major victory in the 1794 Battle of Fallen Timbers, near present-day Toledo. The next year, through the Treaty of Greenville, a delegation of Native leaders ceded most of present-day Ohio to the United States while reserving the northwestern portion of the state as Indian land.

As this phase of conflict between the United States and Native nations wound down, white settlers migrated into the area from points south and east, seeing vast potential for economic growth in a place where land was inexpensive, the climate temperate, and waterways abundant.

Ohio’s political founders began the business of lawmaking in the summer of 1795, even before the Treaty of Greenville was approved. Establishing regulations for migration and settlement, officials drew heavily on a revamped poor law that Pennsylvania had adopted in 1771, which was in turn modeled on English traditions. Like its many antecedents, Ohio’s territorial poor law provided rules for establishing legal settlement. As elsewhere, men with resources were the most privileged: if they moved into an Ohio township and bought real estate or paid substantial rent, they were considered legally settled after one year of residence. Men with fewer resources could gain settlement if they paid local taxes without incident for two consecutive years or, if they were servants or apprentices, after working for someone else for one year. Indentured servants were subjected to additional constraints. Married women were in a category of their own; upon marriage, a woman’s place of settlement became that of her husband. Every township had a three-man board of overseers of the poor that was authorized to levy taxes to support poor relief, hold elections for township offices, and visit and evaluate people who might not be self-supporting. The overseers of the poor made decisions about who was considered to be legally settled in the community, who was entitled to receive public aid if needy, and who had no real right to be there and could be removed, particularly if they became needy or threatening.

The 1795 Ohio poor law did not target people of African descent for special regulation, and the state’s first constitution, adopted in 1803, also largely rejected racial distinctions. The state constitution declared slavery illegal and explicitly banned the kind of long-term indentures that white people sought when hoping to continue holding slaves despite the Northwest Ordinance’s ban. Its enumeration of individual rights began with familiar language about human equality: “That all men are born equally free and independent, and have certain natural, inherent and unalienable rights.” Still, the constitution did not distribute political privileges equally. Voting rights were restricted to white men only, a provision that prevailed in the convention by just one vote.

Ohio was the first state carved from the Northwest Territory, but it was developing in relation to its neighbor Virginia, with which it shared a long boundary defined by the Ohio River. The Northwest Ordinance’s ban on slavery gave the river extraordinary significance as a border between slavery and freedom. The American Revolution temporarily weakened slavery in Virginia. When the war was over, however, the Virginia General Assembly moved to curtail manumissions, and the reactionary impulse intensified in the 1790s amid fears of a growing free Black population and slave rebellions in Saint-Domingue and at home. The state government increasingly sought to monitor the movement of free Black people, worried they might foment unrest among the enslaved. In 1793 it passed a law that required all free African Americans to register with town or county clerks who would record their names, sex, color, and age, and issue them certificates showing their status. That same year, Virginia lawmakers banned free people of color from moving into the state, a policy that other slave states soon emulated.

Many white residents north of the Ohio River agreed that free people of African descent posed a threat to public peace and good order, a feeling strengthened by the knowledge that Virginia was making life increasingly difficult for its own free Black residents. If Ohio did not impose restrictions, they worried, the state would become an increasingly popular destination for Black migrants.

Advocates of racial restrictions managed to accomplish in Ohio’s first legislative session what they had failed to do in the constitutional convention. The legislature that met in 1803–4 enacted a raft of laws designed to limit the migration and settlement of free people of African descent. This was the beginning of what was commonly referred to as the Ohio “black laws.” Passed in 1804, the laws erected barriers to Black migration and settlement, with enforcement located at the county level. Laws required “black or mulatto” persons seeking to “settle or reside” in the state to provide proof of their freedom to a clerk of court within two years of their arrival. All current residents who were Black or mulatto were expected to register with county clerks within five months of passage of the measure. Newcomers and current residents alike would receive certificates from clerks of court. Those certificates would also serve as labor permits, for the law stipulated that employers convicted of hiring Black people who had no certificates would be fined between ten and fifty dollars. In a measure designed with fugitive slaves in mind, the law also mandated fines for anyone who “shall employ, harbor, or conceal” a Black or mulatto person who was not registered. Every interaction with a county clerk required a fee, making it difficult for impoverished migrants to comply with the law, even if they wanted to do so.

The impulse to adopt racially discriminatory laws spread across the Old Northwest in the first decades of the nineteenth century and seeped eastward as well. But these policies did not go uncontested. Over time, a movement arose, composed of Black residents and white allies, who insisted that such laws were unjust and must not be tolerated.


Adapted from Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction by Kate Masur. Copyright © 2021 by Kate Masur. Used with permission of the publisher, W.W. Norton & Company, Inc. All rights reserved.