Thursday, August 11, 2022

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Prior to the Civil War, African-Americans could be refused passage on common carriers in the South on the grounds that the captain feared that they might be slaves trying to escape; Justice Bradley remarked on this in the Civil Rights In Maryland, railroads and steamboats carefully guarded against transporting slaves because the ship's master could be held liable. In 1834, the Court of Appeals of Maryland upheld liability against a steamboat company for failure to find a runaway slave even though the ship's master permitted a limited search. Based on the law of 1839, the company would be liable for a penalty of five hundred dollars for transporting any slave without the written permission of the slave's owner and--in the event the slave escaped--the transportation company would also be liable to the owner for the value of the slave.

Maryland Federal District Court Judge William Fell Giles explained how these laws supported carrier discrimination:

As long as slavery existed a slave could make no contract, and the laws were very stringent to prevent common carriers from transporting colored persons who were slaves; in fact, some of the common carriers of the State refused to carry colored people as passengers without first obtaining a bond of indemnity signed by white persons to save them harmless in the event that the passengers should turn out to be slaves. This grew out of the fact that the Court of Appeals had decided that color was presumptive evidence of the condition of servitude.

As Judge Giles noted, carriers used fear of slave escapes to justify exclusion of free African-Americans as well. Statutes also imposed travel limits on free blacks. Statutes required free blacks traveling by ship to have a certificate of freedom plus a certificate of identity describing them. Further, any negro or mulatto leaving the state for more than thirty days without leaving a written statement of his plans and intention to return with the clerk of the county court, or without bringing back a certificate showing that he was restrained from returning by illness or coercion, would be treated as a resident of another state. The free negro would thus be subject to all the laws prohibiting immigration from another state. A number of states prevented free negroes from entering. This was constitutional under Dred Scott because if African-Americans were not citizens, the Privileges and Immunities Clause of Article IV did not apply to them. The corollary of exclusion empowered common carriers to refuse to carry African-Americans whose transport they feared might violate the laws of the state.