Hughes v. Jackson: Race and Rights Beyond Dred Scott

Abstract

With its focus on race and rights in Maryland, this Article opens a new chapter in the history of black citizenship before the Civil War. Evidence from Maryland’s courts, legislature, and local courthouses establishes that free black Americans were not the people with “no rights” that Roger Taney imagined them to be. Nor, however, were they citizens in an unqualified sense. Appearing before state officials, free black Americans were able to assemble a bundle of rights — to travel, to bear arms, to make and enforce contracts, to freely exercise religion, and, central to this Article, to sue and be sued. They waged contests over, and sometimes won, the very rights that by 1866 came to be termed “civil rights” and with the Fourteenth Amendment would come to be the substance of birthright citizenship.

From high court deliberations into the lives of free black Americans, this Article examines the story of Samuel Jackson and reveals that debates over race and rights were not the matters of abstract reasoning or an end unto themselves. Samuel Jackson, this Article shows, may have won the right to sue and be sued for himself and for free black Marylanders generally. He did not, however, succeed in obtaining custody of his children. The liberty of free black Americans, and hence the integrity of Jackson’s family, would come only in the wake of the Civil War and the state constitution’s abolition of slavery. Thus, the meaning of rights remained constrained if they did not also provide a means to a more just end.