Ohio Black Code

Explanation and Analysis of the Document

There were two primary goals of Ohio’s Black Code: first, to discourage the migration of African Americans to the state and, second, to legislate the second-class citizenship of free African Americans. These two goals related directly to Ohio’s position along the Ohio River. Ohio’s proximity to Virginia and Kentucky, where tens of thousands of slaves resided, made the migration of African Americans to Ohio a logical move for freed blacks. The Ohio legislature made it difficult for African Americans to take up residency in Ohio by forcing them to register with county courts and find two property holders to vouch for their good behavior. Blacks in Ohio had to carry proof of their freedom at all times—a stipulation meant to discourage fugitive slaves from taking refuge in the nominally free state. In addition, by legislating the second-class citizenship of African Americans, the Ohio legislature defined the limits of American freedom along racial lines. African Americans in Ohio could not vote, bear arms, testify in court, or attend public schools.

“An Act to Organize and Discipline the Militia”

The Ohio Black Code consisted of a series of laws meant to define African Americans as inferior to whites. In 1803 Ohioans passed what was termed an Act to Organize and Discipline the Militia. This law required all able-bodied “white male citizens” to enroll in the militia. In 1792 the U.S. Congress had barred blacks from military service. Ohio’s militia law was thus consistent with federal militia policy.

In the early republic, Americans viewed militia service as both an obligation and a right. The Bill of Rights established the right to keep and bear arms as a fundamental privilege of American citizenship. Thus, the denial of blacks from the militia in Ohio was an explicit statement that African Americans did not share the same status as whites. In addition, in 1803 much of Ohio and the Northwest Territory remained unsettled by white Americans. Americans viewed guns as an essential tool of settlement, primarily for protection against the Native Americans who already occupied the area. Therefore, the right to bear arms and the obligation to serve in the militia were fundamental components of male citizenship on the early frontier. In denying African American men the honor of joining the militia, this law prevented them from fulfilling their social duty as male citizen protectors.

“An Act to Regulate Black and Mulatto Persons”

Another of Ohio’s black laws, an Act to Regulate Black and Mulatto Persons, was passed in January of 1804. This law more explicitly outlines the second-class citizenship of African Americans. The 1804 law addresses four issues: immigration, residency, fugitive reclamation, and kidnapping.

The law of 1804 required all blacks entering the state to provide proof of their freedom and to register with the county court. Only those certificates of freedom issued by a court and approved, signed, and sealed by the clerk of the court counted as viable proof of freedom. In order to establish residency, all blacks living in Ohio had to register with the county court and pay a registration fee of twelve and a half cents to the court clerk. African Americans living in Ohio prior to the passage of the 1804 code, as well as new immigrants, were required to register with the court. The law granted all blacks a two-year grace period to register their freedom. African Americans were expected to keep their court-issued certificates of residency with them at all times. The law also made court-issued certificates a requirement for free blacks to find employment. Whites faced a potential fine of fifty dollars for employing African Americans without a certificate or an alternative way to prove their freedom. In addition, if whites hired a fugitive slave, they could be fined fifty cents a day, payable to the owner, for every day of employment.

The immigration and residency requirements established in the 1804 law can be seen as white Ohioans’ efforts to control immigration to the state. It is important to note that the law, while restricting immigration, did not completely prohibit blacks from entering Ohio. In the first decades of the nineteenth century the Ohio River was at best a fluid barrier: Whites and blacks regularly crossed this border as migrants and especially as laborers. Ohio’s constitution banned slavery in the state, but early settlers continued to hire slaves from Kentucky to work on their farms in Ohio. In fact, historians estimate that Ohioans hired about two thousand slaves per year during the first decade of the nineteenth century. In response to this constant movement across the river, white Ohioans attempted to regulate the border between their free state and the slave states to the south. By forcing free African Americans entering the state to pay a fee, register their freedom, and provide their freedom papers when finding work, whites sought to ensure that all black immigrants were, in fact, free when they entered the state. This made it clear that Ohio was not a refuge for escaping slaves.

There are four reasons why the 1804 law should be seen as an attempt to restrict but not entirely prevent the immigration of African Americans. First, the registration fee was twelve and half cents, which provided only a small burden for immigrants. A higher fee would certainly have indicated an effort to prohibit immigration. Second, the law granted African Americans two years to register their freedom. This window allowed African Americans to obtain official manumission papers from former owners in slave states and gave them the chance to earn enough money to pay the registration fee. Third, the law offered no penalty for noncompliance, and county clerks only sporadically attempted to enforce registration. Finally, other states prohibited the immigration of African Americans outright. Many states in the South moved to this position in the antebellum period, and Indiana, Ohio’s western neighbor, prohibited black immigration in its 1851 constitution.

The law of 1804 also made Ohio’s policy for the reclamation of fugitive slaves consistent with federal law. Early in 1793 the federal government passed the Fugitive Slave Act, which established the rights of owners to retrieve escaped slaves outside their state of residence. Ohio’s law allowed masters or their agents to appeal to state judges or local justices of the peace for a certificate of removal to retrieve a runaway slave. Claimants provided some form of proof that the person was a runaway, and the judicial officer issued a warrant for the arrest of the alleged fugitive. Sheriffs were required to execute these orders. In addition, the law made people convicted of harboring or in any way hindering the retrieval of an alleged fugitive subject to a fine of ten to fifty dollars.

The final provision of the law dealt specifically with the kidnapping of free African Americans. The law dictated that a $1,000 fine be imposed on anyone who removed, attempted to remove, or assisted in the removal of a black person without following the legal process. Half of this fine went to the informer and the other half to the state. The fugitive reclamation and kidnapping provisions of the 1804 law deal directly with Ohio’s long border with slaveholding states. The law confirmed the right of slaveholders to cross the border and retrieve escaped slaves. This was a clear statement that Ohio was not a refuge for fugitives. Therefore, while Ohio may have been a free state, white Ohioans placated their southern neighbors with their willingness to accommodate the peculiar needs of the so-called peculiar institution of slavery. However, the kidnapping provision also indicated that white Ohioans would not allow slaveholders complete liberty in their state. The law offered a stiff penalty for those attempting to kidnap and remove free African Americans. White Ohioans did, in fact, come to the aid of free blacks when Kentuckians came to carry them back across the border. This suggests that while many whites in Ohio may not have accepted African Americans as equals, at the very least many recognized African Americans as human beings who deserved the most basic level of liberty.

African Americans used the antikidnapping provision in combination with the registration requirement to protect themselves. While probably not the intention of legislators, the registration of their freedom in the courts provided free blacks in Ohio with documented proof of their freedom, which protected them from potential kidnapping.

“An Act to Amend the Last Named Act ‘An Act to Regulate Black and Mulatto Persons’”

In an effort led by Representative Beecher, the Ohio legislature amended the Act to Regulate Black and Mulatto Persons in January 1807. The 1807 amendments made a clearer statement about the second-class status of African Americans in Ohio. Under the new law, African Americans had to enter into a bond with two or more property holders “in the penal sum of five hundred dollars” within twenty days of immigrating to Ohio. This did not mean that African Americans had to pay five hundred dollars upon entry to the state; in fact, no money had to be posted by anyone. The bond required that the two property holders agree to pay five hundred dollars only if the migrating person of color failed to maintain “good behavior” and became a burden on the community. In addition, the law raised the fine for employing or harboring unregistered African Americans from fifty to one hundred dollars. Half of this fine was paid to the informant.

The 1804 law did not outline a penalty for African Americans who failed to register with the court. The amendment fixed this loophole and granted the Overseers of the Poor the authority to remove any noncompliant blacks from the township. The Overseers was a state agency charged with the responsibility of regulating paupers; essentially, this law extended the authority of the Overseers to include African Americans. The Overseers of the Poor had the authority to remove paupers, but the law did not require them to do so. In addition, paupers could avoid removal by posting a bond.

Whereas the 1804 laws were aimed primarily at controlling the immigration of African Americans, the 1807 amendments defined the place of African Americans within the state. Many white residents of Ohio had migrated from the slave states of Kentucky and Virginia, where it was widely believed that slavery had made African Americans incapable of enjoying the privileges of freedom. Whites who held these beliefs feared that social anarchy would accompany any form of black emancipation. At the same time, they recognized the value of black labor—provided the terms of employment placed whites in a position of authority. Ohio’s constitution allowed indentured servitude as long as both parties entered into the agreement in a perfect state of freedom. This demonstrates that while white Ohioans rejected chattel slavery in their state, they accepted, and perhaps even embraced, contractually bound black labor.

The 1807 amendment reflected this ambivalence. The 1804 law had failed to slow the tide of black migration, and Ohio legislators like Beecher feared that the state would be overrun by black migrants. The 1807 amendment made immigration more prohibitive by binding new migrants to established citizens. The law should be viewed as an attempt to apply the regulatory procedures of a slave system to Ohio’s free society. Ohio’s black laws put an agency and citizens, rather than slaveholders, directly in charge of regulating the African American population in order to ensure the “good behavior” of its members.

In reality, the immigration restrictions of the 1807 law were seldom enforced. In addition, the Overseers of the Poor received little support for the forceful eviction of unregistered African Americans from the state. The African American population in Ohio grew substantially throughout the pre–Civil War years. Between 1800 and 1830 the state’s black population grew from roughly 340 to over 9,500, a fact that has led historians to conclude that the Black Code was much harsher on paper than in practice. Nonetheless, the code made it clear that African Americans were not welcome and, perhaps even more significant, not trusted in Ohio. The laws put the burden of proof of freedom on African Americans and were indicative of the precarious position of blacks in Ohio.

The final provisions of the 1807 amendment further restricted the rights of African Americans in Ohio: “No black or mulatto person or persons shall hereafter be permitted to be sworn or give evidence in any court of record, or elsewhere, in this state, in any cause depending, or matter of controversy, where either party to the same is a white person.” A white person could testify in an Ohio court against a black person, but a black person could testify only in a case that involved another African American; thus, blacks could not offer testimony for or against white defendants. By denying them complete access to the justice system, this final provision further defined African Americans as second-class citizens in Ohio. African Americans were the only group specifically excluded from the courts. As a result of this law, whites were not prosecuted for crimes committed against African Americans. Free African Americans vehemently complained about this restriction in newspapers such as the Colored American and during the reformist convention movement of the 1840s—a movement to pressure local governments and the federal government to enfranchise black men and protect the civil rights of African Americans. Blacks believed that this law, perhaps more than any other, left them susceptible to persecution and even reenslavement.