time therein mentioned, were to be free at a certain age, the section
is again introduced by a preamble assigning similar motive for the
act. It is in these words:
"Whereas sound policy requires that the abolition of slavery should be
effected as soon as may be consistent with the rights of individuals,
and the public safety and welfare"--showing that the right of property
in the master was to be protected, and that the measure was one of
policy, and to prevent the injury and inconvenience, to the whites, of
a slave population in the State.
And still further pursuing its legislation, we find that in the same
statute passed in 1774, which prohibited the further importation of
slaves into the State, there is also a provision by which any negro,
Indian, or mulatto servant, who was found wandering out of the town or
place to which he belonged, without a written pass such as is therein
described, was made liable to be seized by any one, and taken before
the next authority to be examined and delivered up to his master--who
was required to pay the charge which had accrued thereby. And a
subsequent section of the same law provides, that if any free negro
shall travel without such pass, and shall be stopped, seized, or taken
up, he shall pay all charges arising thereby. And this law was in full
operation when the Constitution of the United States was adopted, and
was not repealed till 1797. So that up to that time free negroes and
mulattoes were associated with servants and slaves in the police
regulations established by the laws of the State.
And again, in 1833, Connecticut passed another law, which made it
penal to set up or establish any school in that State for the
instruction of persons of the African race not inhabitants of the
State or to instruct or teach in any such school or institution, or
board or harbor for that purpose, any such person, without the
previous consent in writing of the civil authority of the town in
which such school or institution might be.
And it appears by the case of Crandall _v._ The State, reported in 10
Conn. Rep., 340, that upon an information filed against Prudence
Crandall for a violation of this law, one of the points raised in the
defence was, that the law was a violation of the Constitution of the
United States; and that the persons instructed, although of the
African race, were citizens of other States, and therefore entitled to
the rights and privileges of citizens in the State of Connecticut. But
Chief Justice Dagget, before whom the case was tried, held, that
persons of that description were not citizens of a State, within the
meaning of the word citizen in the Constitution of the United States,
and were not therefore entitled to the privileges and immunities of
citizens in other States.
The case was carried up to the Supreme Court of Errors of the State,
and the question fully argued there. But the case went off upon
another point, and no opinion was expressed on this question.
We have made this particular examination into the legislative and
judicial action of Connecticut, because, from the early hostility it
displayed to the slave trade on the coast of Africa, we may expect to
find the laws of that State as lenient and favorable to the subject
race as those of any other State in the Union; and if we find that at
the time the Constitution was adopted, they were not even there raised
to the rank of citizens, but were still held and treated as property,
and the laws relating to them passed with reference altogether to the
interest and convenience of the white race, we shall hardly find them
elevated to a higher rank anywhere else.
A brief notice of the laws of two other States, and we shall pass on
to other considerations.
By the laws of New Hampshire, collected and finally passed in 1815, no
one was permitted to be enrolled in the militia of the State, but free
white citizens; and the same provision is found in a subsequent
collection of the laws, made in 1855. Nothing could more strongly mark
the entire repudiation of the African race. The alien is excluded,
because, being born in a foreign country, he cannot be a member of the
community until he is naturalized. But why are the African race, born
in the State, not permitted to share in one of the highest duties of
the citizen? The answer is obvious; he is not, by the institutions and
laws of the State, numbered among its people. He forms no part of the
sovereignty of the State, and is not therefore called on to uphold and
defend it.
Again, in 1822, Rhode Island, in its revised code, passed a law
forbidding persons who were authorized to join persons in marriage,
from joining in marriage any white person with any negro, Indian, or
mulatto, under the penalty of two hundred dollars, and declaring all
such marriages absolutely null and void; and the same law was again
re-enacted in its revised code of 1844. So that, down to the
last-mentioned period, the strongest mark of inferiority and
degradation was fastened upon the African race in that State.
It would be impossible to enumerate and compress in the space usually
allotted to an opinion of a court, the various laws, marking the
condition of this race, which were passed from time to time after the
Revolution, and before and since the adoption of the Constitution of
the United States. In addition to those already referred to, it is
sufficient to say, that Chancellor Kent, whose accuracy and research
no one will question, states in the sixth edition of his Commentaries,
(published in 1848, 2 vol., 258, note _b_,) that in no part of the
country except Maine, did the African race, in point of fact,
participate equally with the whites in the exercise of civil and
political rights.
The legislation of the States therefore shows, in a manner not to be
mistaken, the inferior and subject condition of that race at the time
the Constitution was adopted, and long afterwards, throughout the
thirteen States by which that instrument was framed; and it is hardly
consistent with the respect due to these States, to suppose that they
regarded at that time, as fellow-citizens and members of the
sovereignty, a class of beings whom they had thus stigmatized; whom,
as we are bound, out of respect to the State sovereignties, to assume
they had deemed it just and necessary thus to stigmatize, and upon
whom they had impressed such deep and enduring marks of inferiority
and degradation; or, that when they met in convention to form the
Constitution, they looked upon them as a portion of their
constituents, or designed to include them in the provisions so
carefully inserted for the security and protection of the liberties
and rights of their citizens. It cannot be supposed that they intended
to secure to them rights, and privileges, and rank, in the new
political body throughout the Union, which every one of them denied
within the limits of its own dominion. More especially, it cannot be
believed that the large slaveholding States regarded them as included
in the word citizens, or would have consented to a Constitution which
might compel them to receive them in that character from another
State. For if they were so received, and entitled to the privileges
and immunities of citizens, it would exempt them from the operation of
the special laws and from the police regulations which they
considered to be necessary for their own safety. It would give to
persons of the negro race, who were recognised as citizens in any one
State of the Union, the right to enter every other State whenever they
pleased, singly or in companies, without pass or passport, and without
obstruction, to sojourn there as long as they pleased, to go where
they pleased at every hour of the day or night without molestation,
unless they committed some violation of law for which a white man
would be punished; and it would give them the full liberty of speech
in public and in private upon all subjects upon which its own citizens
might speak; to hold public meetings upon political affairs, and to
keep and carry arms wherever they went. And all of this would be done
in the face of the subject race of the same color, both free and
slaves, and inevitably producing discontent and insubordination among
them, and endangering the peace and safety of the State.
It is impossible, it would seem, to believe that the great men of the
slaveholding States, who took so large a share in framing the
Constitution of the United States, and exercised so much influence in
procuring its adoption, could have been so forgetful or regardless of
their own safety and the safety of those who trusted and confided in
them.
Besides, this want of foresight and care would have been utterly
inconsistent with the caution displayed in providing for the admission
of new members into this political family. For, when they gave to the
citizens of each State the privileges and immunities of citizens in
the several States, they at the same time took from the several States
the power of naturalization, and confined that power exclusively to
the Federal Government. No State was willing to permit another State
to determine who should or should not be admitted as one of its
citizens, and entitled to demand equal rights and privileges with
their own people, within their own territories. The right of
naturalization was therefore, with one accord, surrendered by the
States, and confided to the Federal Government. And this power granted
to Congress to establish an uniform rule of _naturalization_ is, by
the well-understood meaning of the word, confined to persons born in a
foreign country, under a foreign Government. It is not a power to
raise to the rank of a citizen any one born in the United States, who,
from birth or parentage, by the laws of the country, belongs to an
inferior and subordinate class. And when we find the States guarding
themselves from the indiscreet or improper admission by other States
of emigrants from other countries, by giving the power exclusively to
Congress, we cannot fail to see that they could never have left with
the States a much more important power--that is, the power of
transforming into citizens a numerous class of persons, who in that
character would be much more dangerous to the peace and safety of a
large portion of the Union, than the few foreigners one of the States
might improperly naturalize. The Constitution upon its adoption
obviously took from the States all power by any subsequent legislation
to introduce as a citizen into the political family of the United
States any one, no matter where he was born, or what might be his
character or condition; and it gave to Congress the power to confer
this character upon those only who were born outside of the dominions
of the United States. And no law of a State, therefore, passed since
the Constitution was adopted, can give any right of citizenship
outside of its own territory.
A clause similar to the one in the Constitution, in relation to the
rights and immunities of citizens of one State in the other States,
was contained in the Articles of Confederation. But there is a
difference of language, which is worthy of note. The provision in the
Articles of Confederation was, "that the _free inhabitants_ of each of
the States, paupers, vagabonds, and fugitives from justice, excepted,
should be entitled to all the privileges and immunities of free
citizens in the several States."
It will be observed, that under this Confederation, each State had the
right to decide for itself, and in its own tribunals, whom it would
acknowledge as a free inhabitant of another State. The term _free
inhabitant_, in the generality of its terms, would certainly include
one of the African race who had been manumitted. But no example, we
think, can be found of his admission to all the privileges of
citizenship in any State of the Union after these Articles were
formed, and while they continued in force. And, notwithstanding the
generality of the words "free inhabitants," it is very clear that,
according to their accepted meaning in that day, they did not include
the African race, whether free or not: for the fifth section of the
ninth article provides that Congress should have the power "to agree
upon the number of land forces to be raised, and to make requisitions
from each State for its quota in proportion to the number of _white_
inhabitants in such State, which requisition should be binding."
Words could hardly have been used which more strongly mark the line of
distinction between the citizen and the subject; the free and the
subjugated races. The latter were not even counted when the
inhabitants of a State were to be embodied in proportion to its
numbers for the general defence. And it cannot for a moment be
supposed, that a class of persons thus separated and rejected from
those who formed the sovereignty of the States, were yet intended to
be included under the words "free inhabitants," in the preceding
article, to whom privileges and immunities were so carefully secured
in every State.
But although this clause of the Articles of Confederation is the same
in principle with that inserted in the Constitution, yet the
comprehensive word _inhabitant_, which might be construed to include
an emancipated slave, is omitted; and the privilege is confined to
_citizens_ of the State. And this alteration in words would hardly
have been made, unless a different meaning was intended to be
conveyed, or a possible doubt removed. The just and fair inference is,
that as this privilege was about to be placed under the protection of
the General Government, and the words expounded by its tribunals, and
all power in relation to it taken from the State and its courts, it
was deemed prudent to describe with precision and caution the persons
to whom this high privilege was given--and the word _citizen_ was on
that account substituted for the words _free inhabitant_. The word
citizen excluded, and no doubt intended to exclude, foreigners who had
not become citizens of some one of the States when the Constitution
was adopted; and also every description of persons who were not fully
recognised as citizens in the several States. This, upon any fair
construction of the instruments to which we have referred, was
evidently the object and purpose of this change of words.
To all this mass of proof we have still to add, that Congress has
repeatedly legislated upon the same construction of the Constitution
that we have given. Three laws, two of which were passed almost
immediately after the Government went into operation, will be
abundantly sufficient to show this. The two first are particularly
worthy of notice, because many of the men who assisted in framing the
Constitution, and took an active part in procuring its adoption, were
then in the halls of legislation, and certainly understood what they
meant when they used the words "people of the United States" and
"citizen" in that well-considered instrument.
The first of these acts is the naturalization law, which was passed at
the second session of the first Congress, March 26, 1790, and confines
the right of becoming citizens "_to aliens being free white persons_."
Now, the Constitution does not limit the power of Congress in this
respect to white persons. And they may, if they think proper,
authorize the naturalization of any one, of any color, who was born
under allegiance to another Government. But the language of the law
above quoted, shows that citizenship at that time was perfectly
understood to be confined to the white race; and that they alone
constituted the sovereignty in the Government.
Congress might, as we before said, have authorized the naturalization
of Indians, because they were aliens and foreigners. But, in their
then untutored and savage state, no one would have thought of
admitting them as citizens in a civilized community. And, moreover,
the atrocities they had but recently committed, when they were the
allies of Great Britain in the Revolutionary war, were yet fresh in
the recollection of the people of the United States, and they were
even then guarding themselves against the threatened renewal of Indian
hostilities. No one supposed then that any Indian would ask for, or
was capable of enjoying, the privileges of an American citizen, and
the word white was not used with any particular reference to them.
Neither was it used with any reference to the African race imported
into or born in this country; because Congress had no power to
naturalize them, and therefore there was no necessity for using
particular words to exclude them.
It would seem to have been used merely because it followed out the
line of division which the Constitution has drawn between the citizen
race, who formed and held the Government, and the African race, which
they held in subjection and slavery, and governed at their own
pleasure.
Another of the early laws of which we have spoken, is the first
militia law, which was passed in 1792, at the first session of the
second Congress. The language of this law is equally plain and
significant with the one just mentioned. It directs that every "free
able-bodied white male citizen" shall be enrolled in the militia. The
word _white_ is evidently used to exclude the African race, and the
word "citizen" to exclude unnaturalized foreigners; the latter forming
no part of the sovereignty, owing it no allegiance, and therefore
under no obligation to defend it. The African race, however, born in
the country, did owe allegiance to the Government, whether they were
slave or free; but it is repudiated, and rejected from the duties and
obligations of citizenship in marked language.
The third act to which we have alluded is even still more decisive; it
was passed as late as 1813, (2 Stat., 809,) and it provides: "That
from and after the termination of the war in which the United States
are now engaged with Great Britain, it shall not be lawful to employ,
on board of any public or private vessels of the United States, any
person or persons except citizens of the United States, _or_ persons
of color, natives of the United States."
Here the line of distinction is drawn in express words. Persons of
color, in the judgment of Congress, were not included in the word
citizens, and they are described as another and different class of
persons, and authorized to be employed, if born in the United States.
And even as late as 1820, (chap. 104, sec. 8,) in the charter to the
city of Washington, the corporation is authorized "to restrain and
prohibit the nightly and other disorderly meetings of slaves, free
negroes, and mulattoes," thus associating them together in its
legislation; and after prescribing the punishment that may be
inflicted on the slaves, proceeds in the following words: "And to
punish such free negroes and mulattoes by penalties not exceeding
twenty dollars for any one offence; and in case of the inability of
any such free negro or mulatto to pay any such penalty and cost
thereon, to cause him or her to be confined to labor for any time not
exceeding six calendar months." And in a subsequent part of the same
section, the act authorizes the corporation "to prescribe the terms
and conditions upon which free negroes and mulattoes may reside in the
city."
This law, like the laws of the States, shows that this class of
persons were governed by special legislation directed expressly to
them, and always connected with provisions for the government of
slaves, and not with those for the government of free white citizens.
And after such an uniform course of legislation as we have stated, by
the colonies, by the States, and by Congress, running through a period
of more than a century, it would seem that to call persons thus marked
and stigmatized, "citizens" of the United States, "fellow-citizens," a
constituent part of the sovereignty, would be an abuse of terms, and
not calculated to exalt the character of an American citizen in the
eyes of other nations.
The conduct of the Executive Department of the Government has been in
perfect harmony upon this subject with this course of legislation. The
question was brought officially before the late William Wirt, when he
was the Attorney General of the United States, in 1821, and he decided
that the words "citizens of the United States" were used in the acts
of Congress in the same sense as in the Constitution; and that free
persons of color were not citizens, within the meaning of the
Constitution and laws; and this opinion has been confirmed by that of
the late Attorney General, Caleb Cushing, in a recent case, and acted
upon by the Secretary of State, who refused to grant passports to them
as "citizens of the United States."
But it is said that a person may be a citizen, and entitled to that
character, although he does not possess all the rights which may
belong to other citizens; as, for example, the right to vote, or to
hold particular offices; and that yet, when he goes into another
State, he is entitled to be recognised there as a citizen, although
the State may measure his rights by the rights which it allows to
persons of a like character or class resident in the State, and refuse
to him the full rights of citizenship.
This argument overlooks the language of the provision in the
Constitution of which we are speaking.
Undoubtedly, a person may be a citizen, that is, a member of the
community who form the sovereignty, although he exercises no share of
the political power, and is incapacitated from holding particular
offices. Women and minors, who form a part of the political family,
cannot vote; and when a property qualification is required to vote or
hold a particular office, those who have not the necessary
qualification cannot vote or hold the office, yet they are citizens.
So, too, a person may be entitled to vote by the law of the State, who
is not a citizen even of the State itself. And in some of the States
of the Union foreigners not naturalized are allowed to vote. And the
State may give the right to free negroes and mulattoes, but that does
not make them citizens of the State, and still less of the United
States. And the provision in the Constitution giving privileges and
immunities in other States, does not apply to them.
Neither does it apply to a person who, being the citizen of a State,
migrates to another State. For then he becomes subject to the laws of
the State in which he lives, and he is no longer a citizen of the
State from which he removed. And the State in which he resides may
then, unquestionably, determine his _status_ or condition, and place
him among the class of persons who are not recognised as citizens, but
belong to an inferior and subject race; and may deny him the
privileges and immunities enjoyed by its citizens.