Every colony was a slaveholding colony excepting one; yet the people,

particularly that portion of them residing in districts where the black

population was greatest, hastened to meet in the battle-field the

powerful British armies in front of them, and the interminable hosts of

Indian warriors in the wilderness behind them, leaving their wives and

children, their old men and cripples, for seven long years, _to their

negroes to take care of_. Did the slaves, many of whom were savages

recently imported from Africa, butcher them, as white or Indian slaves

surely would have done, and fly to the enemy's standard for the liberty,

land, money, rum, savage luxuries and ample protection so abundantly

promised and secured to all who would desert their master's families?

History answers that not one in a thousand joined their masters'

enemies; but, on the contrary, they continued quietly their daily

labors, even in those districts where they outnumbered the white

population ten to one. They not only produced sufficient breadstuffs to

supply the families of their masters, but a surplus of flour, pork, and

beef was sent up from the slaveholding districts of Virginia to

Washington's starving army in Pennsylvania. [See Botta's History.] These

agricultural products were created by savages, naturally so indolent in

their native Africa, as to prefer to live on ant eggs and caterpillars

rather than labor for a subsistence; but for years in succession they

continued to labor in the midst of their masters' enemies--dropping

their hoes when they saw the red coats, running to tell their mistress,

and to conduct her and the children through by-paths to avoid the

British troopers, and when the enemy were out of sight returning to

their work again. The sole cause of their industry and fidelity is due

to the spiritual influence of the white race over the black.

The empire of the white man's will over the prognathous race is not

absolute, however. It can not force exercise beyond a certain speed;

neither the will nor physical force can drive negroes, for a number of

days in succession, beyond a very moderate daily labor--about one-third

less than the white man voluntarily imposes on himself. If force be used

to make them do more, they invariably do less and less, until they fall

into a state of impassivity, in which they are more plague than

profit--worthless as laborers, insensible and indifferent to punishment,

or even to life; or, in other words, they fall into the disease which I

have named Dysesthæsia Ethiopica, characterized by hebetude of mind and

insensibility of body, caused by over working and bad treatment. Some

knowledge of the ethnology of the prognathous race is absolutely

necessary for the prevention and cure of this malady in all its various

forms and stages. Dirt eating, or Cachexia Africana, is another disease,

like Dysesthæsia Ethiopica, growing out of ethnical elements peculiar to

the prognathous race. The ethnical elements assimilating the negro to

the mule, although giving rise to the last named disease, are of vast

importance to the prognathous race, because they guarantee to that race

an ample protection against the abuses of arbitrary power. A white man,

like a blooded horse, can be worked to death. Not so the negro, whose

ethnical elements, like the mule, restricts the limits of arbitrary

power over him.

Among the four millions of the prognathous race in the United States, it

will be difficult, if not impossible, to find a single individual negro,

whom the white man, armed with arbitrary power, has ever been able to

make hurt himself at work. It is beyond the power of the white man to

drive the negro into this long continued and excessive muscular

exertions such as the white laborers of Europe often impose upon

themselves to satisfy a greedy boss, under fear of losing their places,

and thereby starving themselves and families. Throughout England,

nothing is more common than decrepitude, premature old age, and a

frightful list of diseases, caused by long continued and excessive

muscular exertion. Whereas, all America can scarcely furnish an example

of the kind among the prognathous race. The white men of America have

performed many prodigies, but they have never yet been able to make a

negro overwork himself.

There are other elements peculiar to the Nigritian, on which the

disease, called negro consumption, or Cachexia Africana, depends. But

these belong to that class which subject the negro to the white man's

spiritual empire over him. When that spiritual empire is not maintained

in all its entirety, or in other words, when the negro is badly

governed, he is apt to fall under the spiritual influence of the artful

and designing of his own color, and Cachexia Africana, or consumption,

is the consequence. Better throw medicine to the dogs, than give it to a

negro patient impressed with the belief that he has walked over poison

specially laid for him, or been in some other way tricked or conjured.

He will surely die, unless treated in accordance with his ethnological

peculiarities, and the hallucination expelled.

There never has been an insurrection of the prognathous race against

their masters; and from the nature of the ethnical elements of that

race, there never can be. Hayti is no exception, it will be seen, when

the true history of the so-called insurrection of that island is

written. There have been neighborhood disturbances and bloodshed, caused

by fanaticism, and by mischievous white men getting among them and

infusing their will into them, or mesmerizing them. But, fortunately,

there is an ethnological law of their nature which estops the evil

influence of such characters by limiting their influence strictly to

personal acquaintances. The prognathous tribes in every place and

country are jealous and suspicious of all strangers, black or white, and

have ever been so.

Prior to the emancipation act in the British West Indies, the famous

Exeter Hall Junto sent out a number of emissaries of the East India

Company to Jamaica, in the garb of missionaries. After remaining a year

or two in the assumed character of Christian ministers, they began to

preach insurrectionary doctrines, and caused a number of so-called

insurrections to break out simultaneously in different parts of the

island. The insurgents in every neighborhood were confined to the

personal acquaintances of the Exeter Hall miscreants, who succeeded in

infusing their will only into those who had listened to their incendiary

harangues. This was proved upon them by the genuine missionaries, who

had long been on the island, and had gathered into their various

churches a vast number of converts. For, in no instance, did a single

convert, or any other negro, join in the numerous insurrectionary

movements who had not been personally addressed by the wolves in sheep's

clothing. The Christian missionaries, particularly the Methodists,

Baptist, Moravians, and Catholics, were very exact in collecting the

evidence of this most important ethnological truth, in consequence of

some of the planters, at the first outbreak, having confounded them with

the Exeter Hall incendiaries.

The planters finally left the Christian missionaries and their flocks

undisturbed, but proceeded to expel the false missionaries, to hang

their converts, and to burn down their chapels. The event proved that

they were wrong in not hanging the white incendiaries; because they went

home to England, preached a crusade--traveling all over the United

Kingdom--proclaiming, as they went, that they had left God's houses in

flames throughout Jamaica, and God's people hanging like dogs from the

trees in that sinful island. This so inflamed public sentiment in Great

Britain against the planters, as to unite all parties in loud calls for

the immediate passage of the emancipation act. There is good reason to

believe that the English ministry, in view of the probable effect of

that measure on the United States, and the encouragement it would afford

to the culture of sugar and other tropical products in the East Indies

and Mauritius, had previously determined to make negro freedom a leading

measure in British policy, well knowing that its effect would be to

Africanize the sugar and cotton growing regions of America. The

ethnology of the prognathous race does not stop at proving that

subordination to the white race is its normal condition. It goes

further, and proves that social and political equality is abnormal to

it, whether educated or not. Neither negroes nor mulattoes know how to

use power when given to them. They always use it capriciously and

tyrannically. Tschudi, a Swiss naturalist, [see Tschudi's Travels in

Peru, London, 1848,] says, "that in Lima and Peru generally, the free

negroes are a plague to society. Dishonesty seems to be a part of their

very nature. Free born negroes, admitted into the houses of wealthy

families, and have received, in early life, a good education, and

treated with kindness and liberality, do not differ from their

uneducated brother."

Tschudi is mistaken in supposing that dishonesty is too deeply rooted in

the negro character to be removed. They are dishonest when in the

abnormal condition without a master. They are also dishonest when in a

state of subordination, called slavery, badly provided for and not

properly disciplined and governed. But when properly disciplined,

instructed, and governed, and their animal wants provided for, it would

be difficult to find a more honest, faithful, and trustworthy people

than they are. When made contented and happy, as they always should be,

they reflect their master in their thoughts, morals, and religion, or at

least they are desirous of being like him. They imitate him in every

thing, as far as their imitative faculties, which are very strong, will

carry them. They take a pride in his wealth, or in any thing which

distinguishes him, as if they formed a part of himself, as they really

do, being under the influence of his will, and in some measure

assimilated, in their spiritual nature, to him--loving him with all the

warm and devoted affection which children manifest to their parents. He

is sure of their love and friendship, although all the world may forsake

him. But to create and maintain this happy relation, he must govern them

with strict reference to their ethnological peculiarities. He must treat

them as inferiors, not as equals, as they are not satisfied with

equality, and will despise a master who attempts to raise any one or

more of them to an equality with himself; because they become jealous

and suspicious that their master's favorites will exercise a sinister

influence over him against them.

Impartiality of treatment in every particular, down to a hat or pair of

shoes, is what they all regard as one of their dearest rights. Hence,

any special favors or gifts to one, is an offense to all the rest. They

also regard as a right, when punished, not to be punished in anger, but

with cool deliberation. They will run from an angry or enraged master or

overseer, armed with a gun or a pistol. They regard all overseers who

come into the field armed with deadly weapons as cowards, and all

cowards have great difficulty in governing them. It is not physical

force which keeps them in subjection, but the spiritual force of the

white man's will. One unarmed brave man can manage a thousand by the

moral force of his will alone, much better than an hundred cowards with

guns in their hands. They also require as a right when punished, to be

punished with a switch or a whip, and not with a stick or the fist. In

this particular the ethnical law of their nature is different from all

other races of men. It is exactly the reverse of that of the American

Indian. The Indian will murder any man who strikes him with a switch, a

cowhide, or a whip, twenty years afterward, if he gets an opportunity;

but readily forgets blows, however severe, inflicted on him with the

fist, a cudgel, or a tomahawk. A remarkable ethnological peculiarity of

the prognathous race is, that any deserved punishment, inflicted on them

with a switch, cowhide, or whip, puts them into good humor with

themselves and the executioner of the punishment, provided he manifest

satisfaction by regarding the offense as atoned for.

The negro requires government in every thing, the most minute. The

Indian, on the contrary, submits to government in nothing whatever. Mr.

Jefferson was the first to notice this ethnical law of the red man. [See

his letter to Gilmer, June 7, 1816, vol. iv, page 279, Jefferson's

Correspondence.] "Every man with them," (the Indians,) says Mr.

Jefferson, "is perfectly free to follow his own inclinations; but if, in

doing this, he violates the rights of another, he is punished by the

disesteem of society or tomahawked. Their leaders conduct them by the

influence of their characters only; and they follow or not, as they

please, him of whose character, for wisdom or war, they have the highest

opinion, but, of all things, they least think of subjecting themselves

to the will of one man." Whereas the black man requires government even

in his meat and drink, his clothing, and hours of repose. Unless under

the government of one man to prescribe rules of conduct to guide him, he

will eat too much meat and not enough of bread and vegetables; he will

not dress to suit the season, or kind of labor he is engaged in, nor

retire to rest in due time to get sufficient sleep, but sit up and doze

by the fire nearly all night. Nor will the women undress the children

and put them regularly to bed. Nature is no law unto them. They let

their children suffer and die, or unmercifully abuse them, unless the

white man or woman prescribe rules in the nursery for them to go by.

Whenever the white woman superintends the nursery, whether the climate

be cold or hot, they increase faster than any other people on the globe;

but on large plantations, remote from her influence, the negro

population invariably diminishes, unless the overseer take upon himself

those duties in the lying-in and nursery department, which on small

estates are attended to by the mistress. She often sits up at night with

sick children and administers to their wants, when their own mothers are

nodding by them, and would be sound asleep if it were not for her

presence. The care that white women bestow on the nursery, is one of the

principal causes why three hundred thousand Africans, originally

imported into the territory of the United States have increased to four

millions, while in the British West Indies the number imported,

exceeded, by several millions, the actual population. It is also the

cause why the small proprietors of negro property in Maryland, Virginia,

Kentucky, and Missouri are able to supply the loss on the large Southern

plantations, which are cut off from the happy influence of the presiding

genius over civilization, morality, and population--the white woman.

The prognathous race require government also in their religious

exercises, or they degenerate into fanatical saturnalia. A discreet

white man or woman should always be present to regulate their religious

meetings.

Here the investigation into the ethnology of the prognathous race must

close, at least, for the present, leaving the most interesting part,

Fetichism, the indigenous religion of the African tribes, untouched. It

is the key to the negro character, which is difficult to learn from mere

experience. Those who are not accustomed to them have great trouble and

difficulty in managing negroes; and in consequence thereof treat them

badly. If their ethnology was better and more generally understood,

their value would be greatly increased, and their condition, as a

laboring class, would be more enviable, compared to the European

peasants, than it already is.

SLAVERY

IN THE

LIGHT OF INTERNATIONAL LAW.

BY

E. N. ELLIOTT, L.L.D.,

OF MISSISSIPPI.

SLAVERY

IN THE

LIGHT OF INTERNATIONAL LAW.

THERE are some who deny the unity of the human race; with such we have

no controversy, but it is a part of our religious belief, that "God made

of one blood all nations that dwell on the face of the earth;" and on

this we would base one of our arguments for the subordination of a part

of the human family. It is not necessary to the vindication of our

cause, or of truth, to deny the authority, or to fritter away the

evident meaning of any part of the word of God, as is done by most of

the abolitionists. It is sufficient for our purpose that we have shown

that the negro is an inferior variety of the human race; that he is

inferior in his physical structure, and in his mental and moral

organization. This orgnization incapacitates him for emerging, by his

own will and power, from barbarism, and achieving civilization and

refinement. History teaches the same lesson. We find Africa to-day, just

as it was three thousand years ago. When God created man he said to him,

"Be fruitful and multiply and replenish the earth, and subdue it, and

have dominion over the fish of the sea, and over the fowl of the air,

and over every living thing that moveth on the face of the earth." And

again, upon the re-creation after the flood, he repeated the command, in

almost the same words, to Noah and his sons. This command shows that God

had a purpose with regard to the physical world, in placing man upon it,

and that man has a mission to fulfill in subduing it, and acquiring a

control, not only over animate but also over inanimate nature. Indeed,

the one is essential to the other. Man can not control and subdue the

inferior animals, until he has acquired some control over the powers of

nature. Place him in the forest naked and unarmed, and many of the

animals are his superiors; but endow his mind with a knowledge of

nature's laws, and thus enable him to make them subservient to his

purposes, and he becomes irresistible; a god on earth. In fulfilling

this command, man elevates his nature as he increases his knowledge, and

thereby extends his powers. God requires that every part of the human

family shall fulfill this great command, and contribute their part in

rendering subservient to human use, all the faculties of nature. Nay,

even where the one talent is misimproved, he takes it away and gives it

to him, who has ten talents. It is on this principle that it is right

and in accordance with the ordinance of God, to dispossess of their

lands, mines, waterpowers, harbors, etc., a savage nation, possessing,

but not improving them, and convert them to the uses of the world of

mankind. This is the warrant for the conflict of civilization with

barbarism. Not to go back to former times, it is this precept which has

converted the former howling wilderness of this Western World, into an

earthly paradise, affording an ample subsistence to happy millions of

the most enlightened of the human family. It is this that causes effete

dynasties and nations to disappear from the face of the world, and their

places to be supplied by those full of life and energy. It is this that

is rolling back and blotting out the mongrel races of the New World, to

make room for the onward march of a higher civilization.

The manifest destiny men are not so far wrong after all; but instead of

destiny, it is the purpose and ordinance of God. Upon this principle has

England acted in reference to India, Australia, China, and in almost

every region of the globe. It is upon this principle that Europe is now

controlling the destinies of the Old World, as the United States, if

they are true to themselves, will control the destinies of the New. This

has governed us in requiring that Japan should open her ports to the

commerce, and her coal mines to the navies of the world; that she should

enrol herself in the brotherhood of nations, and perform her part in the

great drama of life. It is upon this principle that England, France, and

the United States, are requiring the same thing of China; and it is upon

this principle that the vagrant is arrested in your streets and sent to

the work-house.

These principles are clearly enunciated, and ably defended by J. Q.

Adams in his celebrated speech on the Chinese question, delivered in

1841. It is true, that he applies them to the rights of commerce only;

but by legitimate deduction, they are as applicable to the rights of

labor, as to the rights of commerce. Although nations and races have

always acted on these principles, yet at the time of the delivery of

this speech, so startling were the positions assumed by Mr. Adams, that

but few could be found who were prepared to defend them, yet none were

able to controvert them. Their general adoption at the present day only

shows what history has so long taught, that master minds are generally

in advance of their age.

In the "Memoir of J. Q. Adams," by Josiah Quincy, we have a report of

this speech. Speaking of the Chinese war, Mr. Adams says, "that by the

law of nations is to be understood, not one code of laws, binding alike

on all nations of the earth, but a system of rules, varying according to

the condition and character of the nations concerned. There is a law of

nations among Christian communities, which is the law recognized by the

Constitution of the United States, as obligatory upon them in their

intercourse with European States and colonies. But we have a different

law of nations regulating our intercourse with the Indian tribes on this

continent; another between us and the woolly-headed nations of Africa;

another with the Barbary powers; another with the flowery land, or

Celestial empire." Then, reasoning on the rights of property,

established by labor, by occupation, by compact, he maintains "that the

right of exchange, barter--in other words, of commerce--necessarily

follows; that a state of nature among men is a state of peace; the

pursuit of happiness, man's natural right; that is the duty of all men

to contribute, as much as is in their power, to one another's happiness,

and that there is no other way by which they can so well contribute to

the comfort and well-being of one another, as by commerce, or the mutual

exchange of equivalents." These views and principles he thus

illustrates:

"The duty of commercial intercourse between nations, is laid down in

terms sufficiently positive by Vattel, but he afterwards qualifies it by

a restriction, which, unless itself restricted, annuls it altogether. He

says that, although the general duty of commercial intercourse is

incumbent upon nations, yet every nation may exclude any particular

branch or article of trade, which it may deem injurious to its

interests. This can not be denied. But then a nation may multiply these

particular exclusions, until they become general, and equivalent to a

total interdict of commerce; and this, time out of mind, has been the

inflexible policy of the Chinese empire. So says Vattel, without

affixing any note of censure upon it. Yet it is manifestly incompatible

with the position which he had previously laid down, that commercial

intercourse between nations is a moral obligation upon them all."

The same doctrine, with regard to the duties of _individuals_ in a

community, that is here advanced by Mr. Adams with regard to _races_ and

_nations_, is thus set forth in Blackstone's Commentaries, book iv,

chap. xxxiii: "_There is not a more necessary, or more certain maxim, in

the frame and constitution of society, than that every individual must

contribute his share, in order to the well-being of the community._"

The first principle laid down by Mr. Adams is, that the same code of

international law does not apply to all nations alike, but that it

varies with the condition and character of the people; that one code of

laws applies to the enlightened and Christian nations of Europe, but an

entirely different one to the pagan, woolly-headed, barbarians of

Africa. What would be just and right with regard to the African, would

be eminently unjust towards the European. Though it would be a great

wrong to reduce the European to a condition of servitude, it does not

follow that it would be equally wrong to enslave the African. If all the

human races were alike, one code of international laws would apply to

the whole, but so long as the African continues to be an inferior race,

they must be treated as such.

But again, Mr. Adams clearly lays down the principle that no nation or

race can be permitted, in any way, to isolate itself from the community

of nations, but is morally bound to contribute all in its power to the

well-being of the whole race, at the same time that it secures its own.

If it possesses territory which it occupies, but does not improve, it

must yield it to the claims of civiilization. If it has productions

valuable to the world, it is morally bound to exchange them. If it has

ports, harbors, coal mines, or other facilities for commerce and

manufactures, it must allow other nations to participate in its

advantages. If it has a superabundant supply of labor, it must be

rendered available. If, then, it is right that civilization and progress

should appropriate the hunting grounds of the Indian race; if it is

right that China and Japan should be required to open their ports to the

commerce of the world, it must be equally right that the great store

house of labor in Africa should be opened for the benefit of the human

race. In the Western World, a vast continent of fertile land and

propitious climate, was possessed, not improved, by a sparse hunter

race; but the law of God and of nations required that the earth should

be subdued and replenished, and now God has enlarged Japheth, and he

dwells in these tents of Shem. China, Japan, and other regions of Asia,

are inhabited by teeming millions, rich in the productions of art, yet

scarcely able to obtain a meagre sustenance, and rigidly excluding all

intercourse with the outer world, but at the demands of commerce the

barriers are broken down, and they, in common with other nations, are

benefited by the change. Africa has long possessed a superabundant

population of indolent, degraded, pagan savages, useless to the world

and to themselves. Numberless efforts have been made to elevate them in

the scale of existence, in their own country, but all in vain. Even when

partially civilized, under the control of the white man, they soon

relapse into barbarism, if emancipated from this control. But a colony

of them, some two hundred years since, were imported into the Western

World, and placed subordinate to the white race; and now, if we are to

believe the abolitionists, they have improved so rapidly as to have

become equal, if not superior, to the white race. Certainly they are far

superior to their ancestors, or their brethren in Africa. At the same

time, they have conferred an equal benefit on the world. They supply a

demand for labor which can not otherwise be met, and their products not

only clothe the civilized world, but also are the life-blood of its

commerce.

It is not necessary to the discussion of this topic, that we should show

_what_ are the laws of nations, applicable to the different races

enumerated by Mr. Adams; though it is manifest to the most casual

observer, that the laws applicable to them are radically different. What

would be thought of a minister at the court of St. James, who should

propose to carry out with Great Britain, the same course of policy we

pursue towards the Indian tribes; or of the English minister at our

capital, who would exact from us the concessions required of the rajahs

of India, or the chiefs of Australia? The radical difference is this:

among civilized and Christian nations, the law recognizes a perfect

equality, and requires an entire reciprocity; but between an elevated

and a degraded or inferior race, this inequality is recognized, and an

influence and a superiority is accorded to the one, which is denied to

the other. This is well illustrated by our present intercourse with

Mexico, and should we establish a protectorate over that unhappy

country, for their good and our own, it would be in strict accordance

with these principles. With some nations we have diplomatic intercourse,

on terms of perfect equality and reciprocity; others we treat as

inferiors, and assume over them some degree of control, while we

nevertheless recognize them as legitimate governments. But there are

other nations or races, with whom we form no diplomatic relations, and

whose governments we do not recognize. In this latter class are included

most of the inhabitants of Africa, and of Hayti; or in other words, the

_negro race_. The reason is, that those nations performing their duties

to the human race, according to the ordinance of God, are to be

recognized as not needing our assistance, or requiring our guardianship;

those fulfilling only in part, should be considered in a state of

tutelage, but those that fulfill none, or but few of these duties,

require to be made subservient to the superior races, in order that they

may fulfill the great ends of their existence. This subordination has

existed in all times, among all nations, and with all races. But as soon

as any race became so developed as no longer to require it, it ceased to

exist. In this way, and in this alone,--except by the deportation of the

slaves--has slavery ever ceased to exist, in any community; nor can it

be otherwise in the future. Emancipation in name, is not always freedom

in reality. The free blacks of our Northern States and the West Indies,

are, as a mass, more abject slaves than any on our Southern plantations.

Nor is it possible for them to acquire a more elevated position, until

they shall have acquired the requisite qualifications for that position.

At the present time, with the exception of serfdom, peonage, and

political slavery, this subordination is confined to the negro race. Why

is this so? Manifestly because they have shown themselves incapable, in

their own land, of emerging from barbarism, achieving civilization and

refinement, performing their duties to the human race, and becoming

entitled to a position as equals among the nations of the earth. Until

such improvement takes place as shall entitle them to this exalted

position, their own happiness and well-being, their duties to the human

race, the claims of civilization, the progress of society, the law of

nations, and the ordinance of God, require that they should be placed in

a subordinate position to a superior race. Experience also shows us

that this is their normal and natural position. In their native land

they still are what they have always been, a pagan, savage, servile

race, fulfilling their duties neither to themselves, to God, nor to the

human race; but under the tutelage of a superior race, they are elevated

in the scale of existence, improved mentally, morally, and physically,

and are thus enabled to do their part in contributing to the well-being

of the human race. But so far as our experience goes, this development

is not permanent, but is liable to retrogression as soon as the

influence of the superior race is removed. Like the electro-magnet,

whose power is lost the moment it is insulated from the vivifying power

of electricity, so the servile race loses its power when removed from

the control of a superior intellect. The example of our own free blacks,

those emancipated in the West Indies, Sierra Leone, and even Liberia,

are conclusive on this point.

It becomes us not to speculate too curiously concerning God's plan in

governing the world, much less to strive to thwart his purposes with our

puny arms; he will work out his purposes of good to the human race, in

his own good time and way, whether it meets our views or not. But from

the revelation of his purpose concerning the descendants of the three

progenitors of the human race after the flood, it is manifest that the

children of Ham were to be a servile race; as their final

disinthrallment is nowhere spoken of, it is exceedingly improbable that

slavery will cease to exist till the end of time. It is true that

Ethiopia shall stretch forth her hands to God; but this is being

fulfilled on a grander scale than ever before has been witnessed, even

in our midst, in this Western World, where God has enlarged Japheth,

where he dwells in the tents of Shem, and where Cainan is his servant.

PORT GIBSON, MISSISSIPPI, _February 22, 1860_.

DECISION

OF THE

SUPREME COURT

OF THE UNITED STATES

IN THE

DRED SCOTT CASE.

DRED SCOTT DECISION.

SUPREME COURT OF THE UNITED STATES,

DECEMBER TERM, 1856.

DRED SCOTT

_versus_

JOHN F. A. SANDFORD.

DRED SCOTT, PLAINTIFF IN ERROR, _v._ JOHN F. A. SANDFORD.

THIS case was brought up, by writ of error, from the Circuit Court of

the United States for the district of Missouri.

It was an action of trespass _vi et armis_ instituted in the Circuit

Court by Scott against Sandford.

Prior to the institution of the present suit, an action was brought by

Scott for his freedom in the Circuit Court of St. Louis county, (State

court,) where there was a verdict and judgment in his favor. On a writ

of error to the Supreme Court of the State, the judgment below was

reversed, and the case remanded to the Circuit Court, where it was

continued to await the decision of the case now in question.

The declaration of Scott contained three counts: one, that Sandford had

assaulted the plaintiff; one, that he had assaulted Harriet Scott, his

wife; and one, that he had assaulted Eliza Scott and Lizzie Scott, his

children.

Sandford appeared, and filed the following plea:

DRED SCOTT }

_v._ } _Plea to the Jurisdiction of the Court._

JOHN F. A. SANDFORD. }

APRIL TERM, 1854.

And the said John F. A. Sandford, in his own proper person, comes and

says that this court ought not to have or take further cognizance of the

action aforesaid, because he says that said cause of action, and each

and every of them, (if any such have accrued to the said Dred Scott,)

accrued to the said Dred Scott out of the jurisdiction of this court,

and exclusively within the jurisdiction of the courts of the State of

Missouri, for that, to wit: the said plaintiff, Dred Scott, is not a

citizen of the State of Missouri, as alleged in his declaration, because

he is a negro of African descent; his ancestors were of pure African

blood, and were brought into this country and sold as negro slaves, and

this the said Sandford is ready to verify. Wherefore, he prays judgment

whether this court can or will take further cognizance of the action

aforesaid.

JOHN F. A. SANDFORD.

* * * * *

To this plea there was a demurrer in the usual form, which was argued in

April, 1854, when the court gave judgment that the demurrer should be

sustained.

In May, 1854, the defendant, in pursuance of an agreement between

counsel, and with the leave of the court, pleaded in bar of the action:

1. Not guilty.

2. That the plaintiff was a negro slave, the lawful property of the

defendant, and, as such, the defendant gently laid his hands upon him,

and thereby had only restrained him, as the defendant had a right to do.

3. That with respect to the wife and daughters of the plaintiff, in the

second and third counts of the declaration mentioned, the defendant had,

as to them, only acted in the same manner, and in virtue of the same

legal right.

In the first of these pleas, the plaintiff joined issue; and to the

second and third, filed replications alleging that the defendant, of his

own wrong and without the cause in his second and third pleas alleged,

committed the trespasses, etc.

The counsel then filed the following agreed statement of facts, viz:

In the year 1834, the plaintiff was a negro slave belonging to Dr.

Emerson, who was a surgeon in the army of the United States. In that

year, 1834, said Dr. Emerson took the plaintiff from the State of

Missouri to the military post at Rock Island, in the State of Illinois,

and held him there as a slave until the month of April or May, 1836. At

the time last mentioned, said Dr. Emerson removed the plaintiff from

said military post at Rock Island to the military post at Fort Snelling,

situate on the west bank of the Mississippi river, in the Territory

known as Upper Louisiana, acquired by the United States of France, and

situate north of the latitude of thirty-six degrees thirty minutes

north, and north of the State of Missouri. Said Dr. Emerson held the

plaintiff in slavery at said Fort Snelling, from said last-mentioned

date until the year 1838.

In the year 1835, Harriet, who is named in the second count of the

plaintiff's declaration, was the negro slave of Major Taliaferro, who

belonged to the army of the United States. In that year, 1835, said

Major Taliaferro took said Harriet to said Fort Snelling, a military

post, situated as hereinbefore stated, and kept her there as a slave

until the year 1836, and then sold and delivered her as a slave at said

Fort Snelling unto the said Dr. Emerson hereinbefore named. Said Dr.

Emerson held said Harriet in slavery at said Fort Snelling until the

year 1838.

In the year 1836, the plaintiff and said Harriet at said Fort Snelling,

with the consent of said Dr. Emerson, who then claimed to be their

master and owner, intermarried, and took each other for husband and

wife. Eliza and Lizzie, named in the third count of the plaintiff's

declaration, are the fruit of that marriage. Eliza is about fourteen

years old, and was born on board the steamboat Gipsey, north of the

north line of the State of Missouri, and upon the river Mississippi.

Lizzie is about seven years old, and was born in the State of Missouri,

at the military post called Jefferson Barracks.

In the year 1838, said Dr. Emerson removed the plaintiff and said

Harriet and their said daughter Eliza, from said Fort Snelling to the

State of Missouri, where they have ever since resided.

Before the commencement of this suit, said Dr. Emerson sold and conveyed

the plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as

slaves, and the defendant has ever since claimed to hold them and each

of them as slaves.

At the times mentioned in the plaintiff's declaration, the defendant,

claiming to be owner as aforesaid, laid his hands upon said plaintiff,

Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect,

however, no more than what he might lawfully do if they were of right

his slaves at such times.

Further proof may be given on the trial for either party.

It is agreed that Dred Scott brought suit for his freedom in the Circuit

Court of St. Louis county; that there was a verdict and judgment in his

favor; that on a writ of error to the Supreme Court, the judgment below

was reversed, and the same remanded to the Circuit Court, where it has

been continued to await the decision of this case.

In May, 1854, the cause went before a jury, who found the following

verdict, viz: "As to the first issue joined in this case, we of the jury

find the defendant not guilty; and as to the issue secondly above

joined, we of the jury find that before and at the time when, etc., in

the first count mentioned, the said Dred Scott was a negro slave, the

lawful property of the defendant; and as to the issue thirdly above

joined, we, the jury, find that before and at the time when, etc., in

the second and third counts mentioned, the said Harriet, wife of said

Dred Scott, and Eliza and Lizzie, the daughters of the said Dred Scott,

were negro slaves, the lawful property of the defendant."

Whereupon, the court gave judgment for the defendant.

After an ineffectual motion for a new trial, the plaintiff filed the

following bill of exceptions.

On the trial of this cause by the jury, the plaintiff, to maintain the

issues on his part, read to the jury the following agreed statement of

facts, (see agreement above.) No further testimony was given to the jury

by either party. Thereupon the plaintiff moved the court to give to the

jury the following instruction, viz:

"That, upon the facts agreed to by the parties, they ought to find for

the plaintiff. The court refused to give such instruction to the jury,

and the plaintiff, to such refusal, then and there duly excepted."

The court then gave the following instruction to the jury, on motion of

the defendant:

"The jury are instructed, that upon the facts in this case, the law is

with the defendant." The plaintiff excepted to this instruction.

Upon these exceptions, the case came up to this court.

It was argued at December term, 1855, and ordered to be reargued at the

present term.

* * * * *

It was now argued by Mr. Blair and Mr. G. F. Curtis for the plaintiff in

error, and by Mr. Geyer and Mr. Johnson for the defendant in error.

* * * * *

Mr. Chief Justice Taney delivered the opinion of the court.

This case has been twice argued. After the argument of the last term,

differences of opinion were found to exist among the members of the

court; and as the questions in controversy are of the highest

importance, and the court was at that time much pressed by the ordinary

business of the term, it was deemed advisable to continue the case, and

direct a reargument on some of the points, in order that we might have

an opportunity of giving to the whole subject a more deliberate

consideration. It has accordingly been again argued by counsel, and

considered by the court; and I now proceed to deliver its opinion.

There are two leading questions presented by the record:

1. Had the Circuit Court of the United States jurisdiction to hear and

determine the case between these parties? And

2. If it had jurisdiction, is the judgment it has given erroneous or

not?

The plaintiff in error, who was also the plaintiff in the court below,

was, with his wife and children, held as slaves by the defendant, in the

State of Missouri; and he brought this action in the Circuit Court of

the United States for that district, to assert the title of himself and

his family to freedom.

The declaration is in the form usually adopted in that State to try

questions of this description, and contains the averment necessary to

give the court jurisdiction; that he and the defendant are citizens of

different States; that is, that he is a citizen of Missouri, and the

defendant a citizen of New York.

The defendant pleaded in abatement to the jurisdiction of the court,

that the plaintiff was not a citizen of the State of Missouri, as

alleged in his declaration, being a negro of African descent, whose

ancestors were of pure African blood, and who were brought into this

country and sold as slaves.

To this plea the plaintiff demurred, and the defendant joined in

demurrer. The court overruled the plea, and gave judgment that the

defendant should answer over. And he therefore put in sundry pleas in

bar, upon which issues were joined; and at the trial the verdict and

judgment were in his favor. Whereupon the plaintiff brought this writ of

error.

Before we speak of the pleas in bar, it will be proper to dispose of the

questions which have arisen on the plea in abatement.

That plea denies the right of the plaintiff to sue in a court of the

United States, for the reasons therein stated.

If the question raised by it is legally before us, and the court should

be of opinion that the facts stated in it disqualify the plaintiff from

becoming a citizen, in the sense in which that word is used in the

Constitution of the United States, then the judgment of the Circuit

Court is erroneous and must be reversed.

It is suggested, however, that this plea is not before us; and that as

the judgment in the court below on this plea was in favor of the

plaintiff, he does not seek to reverse it, or bring it before the court

for revision by his writ of error; and also that the defendant waived

this defense by pleading over, and thereby admitted the jurisdiction of

the court.

But in making this objection, we think the peculiar and limited

jurisdiction of courts of the United States has not been adverted to.

This peculiar and limited jurisdiction, has made it necessary, in these

courts, to adopt different rules and principles of pleading, so far as

jurisdiction is concerned, from those which regulate courts of common

law in England, and in the different States of the Union which have

adopted the common-law rules.

In these last-mentioned courts, where their character and rank are

analagous to that of a Circuit Court of the United States; in other

words, where they are what the law terms courts of general jurisdiction;

they are presumed to have jurisdiction, unless the contrary appears. No

averment in the pleadings of the plaintiff is necessary, in order to

give jurisdiction. If the defendant objects to it, he must plead it

specially, and unless the fact on which he relies is found to be true by

a jury, or admitted to be true by the plaintiff, the jurisdiction can

not be disputed in an appellate court.

Now, it is not necessary to inquire whether in courts of that

description a party who pleads over in bar, when a plea to the

jurisdiction has been ruled against him, does or does not waive his

plea; nor whether upon a judgment in his favor on the pleas in bar, and

a writ of error brought by the plaintiff, the question upon the plea in

abatement would be open for revision in the appellate court. Cases that

may have been decided in such courts, or rules that may have been laid

down by common-law pleaders, can have no influence in the decision in

this court. Because, under the Constitution and laws of the United

States, the rules which govern the pleadings in its courts, in questions

of jurisdiction, stand on different principles and are regulated by

different laws.

This difference arises, as we have said, from the peculiar character of

the Government of the United States. For although it is sovereign and

supreme in its appropriate sphere of action, yet it does not possess all

the powers which usually belong to the sovereignty of a nation. Certain

specified powers, enumerated in the Constitution, have been conferred

upon it; and neither the legislative, executive, nor judicial

departments of the Government can lawfully exercise any authority beyond

the limits marked out by the Constitution. And in regulating the

judicial department, the cases in which the courts of the United States

shall have jurisdiction are particularly and specifically enumerated and

defined; and they are not authorized to take cognizance of any case

which does not come within the description therein specified. Hence,

when a plaintiff sues in a court of the United States, it is necessary

that he should show, in his pleadings, that the suit he brings is within

the jurisdiction of the court, and that he is entitled to sue there. And

if he omits to do this, and should, by any oversight of the Circuit

Court, obtain a judgment in his favor, the judgment would be reversed in

the appellate court for want of jurisdiction in the court below. The

jurisdiction would not be presumed, as in the case of a common-law

English or State court, unless the contrary appeared. But the record,

when it comes before the appellate court, must show, affirmatively, that

the inferior court had authority, under the Constitution, to hear and

determine the case. And if the plaintiff claims a right to sue in a

Circuit Court of the United States, under that provision of the

Constitution which gives jurisdiction in controversies between citizens

of different States, he must distinctly aver in his pleadings that they

are citizens of different States; and he can not maintain his suit

without showing that fact in the pleadings.

This point was decided in the case of Bingham _v._ Cabot, (in 3 Dall.,

382,) and ever since adhered to by the court. And in Jackson _v._ Ashton

(8 Pet., 148,) it was held that the objection to which it was open could

not be waived by the opposite party, because consent of parties could

not give jurisdiction.

It is needless to accumulate cases on this subject. Those already

referred to, and the cases of Capron _v._ Van Noorden, (in 2 Cr. 126.,)

and Montalet _v._ Murray, (4 Cr., 46,) are sufficient to show the rule

of which we have spoken. The case of Capron _v._ Van Noorden strikingly

illustrates the difference between a common-law court and a court of the

United States.

If, however, the fact of citizenship is avered in the declaration, and

the defendant does not deny it, and put it in issue by plea in

abatement, he can not offer evidence at the trial to disprove it, and

consequently can not avail himself of the objection in the appellate

court, unless the defect should be apparent in some other part of the

record. For if there is no plea in abatement, and the want of

jurisdiction does not appear in any other part of the transcript brought

up by the writ of error, the undisputed averment of citizenship in the

declaration must be taken in this court to be true. In this case, the

citizenship is averred, but it is denied by the defendant in the manner

required by the rules of pleading, and the fact upon which the denial is

based is admitted by the demurrer. And, if the plea and demurrer, and

judgment of the court below upon it, are before us upon this record, the

question to be decided is, whether the facts stated in the plea are

sufficient to show that the plaintiff is not entitled to sue as a

citizen in a court of the United States.

We think they are before us. The plea in abatement and the judgment of

the court upon it, are a part of the judicial proceedings in the Circuit

Court, and are there recorded as such; and a writ of error always brings

up to the superior court the whole record of the proceedings in the

court below. And in the case of the United States _v._ Smith, (11

Wheat., 172,) this court said, that the case being brought up by writ of

error, the whole record was under the consideration of this court. And

this being the case in the present instance, the plea in abatement is

necessarily under consideration; and it becomes, therefore, our duty to

decide whether the facts stated in the plea are or are not sufficient to

show that the plaintiff is not entitled to sue as a citizen in a court

of the United States.

This is certainly a very serious question, and one that now for the

first time has been brought for decision before this court. But it is

brought here by those who have a right to bring it, and it is our duty

to meet it and decide it.

The question is simply this: Can a negro whose ancestors were imported

into this country, and sold as slaves, become a member of the political

community formed and brought into existence by the Constitution of the

United States, and as such become entitled to all the rights and

privileges and immunities guaranteed to the citizen? One of which rights

is the privilege of suing in a court of the United States in the cases

specified in the Constitution.

It will be observed, that the plea applies to that class of persons only

whose ancestors were negroes of the African race, and imported into this

country, and sold and held as slaves. The only matter in issue before

the court, therefore, is, whether the descendants of such slaves, when

they shall be emancipated, or who are born of parents who had become

free before their birth, are citizens of a State, in the sense in which

the word citizen is used in the Constitution of the United States. And

this being the only matter in dispute on the pleadings, the court must

be understood as speaking in this opinion of that class only, that is,

of those persons who are the descendants of Africans who were imported

into this country, and sold as slaves.

The situation of this population was altogether unlike that of the

Indian race. The latter, it is true, formed no part of the colonial

communities, and never amalgamated with them in social connections or in

government. But although they were uncivilized, they were yet a free and

independent people, associated together in nations or tribes, and

governed by their own laws. Many of these political communities were

situated in territories to which the white race claimed the ultimate

right of dominion. But that claim was acknowledged to be subject to the

right of the Indians to occupy it as long as they thought proper, and

neither the English nor colonial Governments claimed or exercised any

dominion over the tribe or nation by whom it was occupied, nor claimed

the right to the possession of the territory, until the tribe or nation

consented to cede it. These Indian Governments were regarded and

treated as foreign Governments, as much so as if an ocean had separated

the red man from the white; and their freedom has constantly been

acknowledged, from the time of the first emigration to the English

colonies to the present day, by the different Governments which

succeeded each other. Treaties have been negotiated with them, and their

alliance sought for in war; and the people who compose these Indian

political communities have always been treated as foreigners not living

under our Government. It is true that the course of events has brought

the Indian tribes within the limits of the United States under

subjection to the white race; and it has been found necessary, for their

sake as well as our own, to regard them as in a state of pupilage, and

to legislate to a certain extent over them and the territory they

occupy. But they may, without doubt, like the subjects of any other

foreign Government, be naturalized by the authority of Congress, and

become citizens of a State, and of the United States; and if an

individual should leave his nation or tribe, and take up his abode among

the white population, he would be entitled to all the rights and

privileges which would belong to an emigrant from any other foreign

people.

We proceed to examine the case as presented by the pleadings.

The words "people of the United States" and "citizens" are synonymous

terms, and mean the same thing. They both describe the political body

who, according to our republican institutions, form the sovereignty, and

who hold the power and conduct the Government through their

representatives. They are what we familiarly call the "sovereign

people," and every citizen is one of this people, and a constituent

member of this sovereignty. The question before us is, whether the class

of persons described in the plea in abatement compose a portion of this

people, and are constituent members of this sovereignty? We think they

are not, and that they are not included, and were not intended to be

included, under the word "citizens" in the Constitution, and can

therefore claim none of the rights and privileges which that instrument

provides for and secures to citizens of the United States. On the

contrary, they were at that time considered as a subordinate and

inferior class of beings, who had been subjugated by the dominant race,

and, whether emancipated or not, yet remained subject to their

authority, and had no rights or privileges but such as those who held

the power and the government might choose to grant them.

It is not the province of the court to decide upon the justice or

injustice, the policy or impolicy, of these laws. The decision of that

question belonged to the political or law-making power; to those who

formed the sovereignty and framed the Constitution. The duty of the

court is, to interpret the instrument they have framed, with the best

lights we can obtain on the subject, and to administer it as we find it,

according to its true intent and meaning when it was adopted.

In discussing this question, we must not confound the rights of

citizenship which a State may confer within its own limits, and the

rights of citizenship as a member of the Union. It does not by any means

follow, because he has all the rights and privileges of a citizen of a

State, that he must be a citizen of the United States. He may have all

the rights and privileges of the citizen of a State, and yet not be

entitled to the rights and privileges of a citizen in any other State.

For, previous to the adoption of the Constitution of the United States,

every State had the undoubted right to confer on whomsoever it pleased

the character of citizen, and to endow him with all its rights. But this

character of course was confined to the boundaries of the State, and

gave him no rights or privileges in other States beyond those secured to

him by the laws of nations and the comity of States. Nor have the

several States surrendered the power of conferring these rights and

privileges by adopting the Constitution of the United States. Each State

may still confer them upon an alien, or any one it thinks proper, or

upon any class or description of persons; yet he would not be a citizen

in the sense in which that word is used in the Constitution of the

United States, nor entitled to sue as such in one of its courts, nor to

the privileges and immunities of a citizen in the other States. The

rights which he would acquire would be restricted to the State which

gave them. The Constitution has conferred on Congress the right to

establish an uniform rule of naturalization, and this right is evidently

exclusive, and has always been held by this court to be so.

Consequently, no State, since the adoption of the Constitution, can by

naturalizing an alien invest him with the rights and privileges secured

to a citizen of a State under the Federal Government, although, so far

as the State alone was concerned, he would undoubtedly be entitled to

the rights of a citizen, and clothed with all the rights and immunities

which the Constitution and laws of the State attached to that

character.

It is very clear, therefore, that no State can, by any act or law of its

own, passed since the adoption of the Constitution, introduce a new

member into the political community created by the Constitution of the

United States. It cannot make him a member of this community by making

him a member of its own. And for the same reason it cannot introduce any

person or description of persons, who were not intended to be embraced

in this new political family, which the Constitution brought into

existence, but were intended to be excluded from it.

The question then arises, whether the provisions of the Constitution, in

relation to the personal rights and privileges to which the citizen of a

State should be entitled, embraced the negro African race, at that time

in this country, or who might afterward be imported, who had then or

should afterward be made free in any State; and to put it in the power

of a single State to make him a citizen of the United States, and endue

him with the full rights of citizenship in every other State without

their consent? Does the Constitution of the United States act upon him

whenever he shall be made free under the laws of a State, and raised

there to the rank of a citizen, and immediately clothe him with all the

privileges of a citizen in every other State, and in its own courts?

The court think the affirmative of these propositions cannot be

maintained. And if it cannot, the plaintiff in error could not be a

citizen of the State of Missouri, within the meaning of the Constitution

of the United States, and, consequently, was not entitled to sue in its

courts.

It is true, every person, and every class and description of persons,

who were at the time of the adoption of the Constitution recognized as

citizens in the several States, became also citizens of this new

political body; but none other; it was formed by them, and for them and

their posterity, but for no one else. And the personal rights and

privileges guaranteed to citizens of this new sovereignty were intended

to embrace those only who were then members of the several State

communities, or who should afterward by birthright or otherwise become

members, according to the provisions of the Constitution and the

principles on which it was founded. It was the union of those who were

at that time members of distinct and separate political communities into

one political family, whose power, for certain specified purposes, was

to extend over the whole territory of the United States. And it gave to

each citizen rights and privileges outside of his State which he did not

before possess, and placed him in every other State upon a perfect

equality with its own citizens as to rights of person and rights of

property; it made him a citizen of the United States.

It becomes necessary, therefore, to determine who were citizens of the

several States when the Constitution was adopted. And in order to do

this, we must recur to the governments and institutions of the thirteen

colonies, when they separated from Great Britain and formed new

sovereignities, and took their places in the family of independent

nations. We must inquire who, at that time, were recognized as the

people or citizens of a State, whose rights and liberties had been

outraged by the English Government; and who declared their independence,

and assumed the powers of Government to defend their rights by force of

arms.

In the opinion of the court, the legislation and histories of the times,

and the language used in the Declaration of Independence, show, that

neither the class of persons who had been imported as slaves, nor their

descendants, whether they had become free or not, were then acknowledged

as a part of the people, nor intended to be included in the general

words used in that memorable instrument.

It is difficult at this day to realize the state of public opinion in

relation to that unfortunate race, which prevailed in the civilized and

enlightened portions of the world at the time of the Declaration of

Independence, and when the Constitution of the United States was framed

and adopted. But the public history of every European nation displays it

in a manner too plain to be mistaken.

They had for more than a century before been regarded as beings of an

inferior order, and altogether unfit to associate with the white race,

either in social or political relations; and so far inferior, that they

had no rights which the white man was bound to respect; and that the

negro might justly and lawfully be reduced to slavery for his benefit.

He was bought and sold, and treated as an ordinary article of

merchandise and traffic, whenever a profit could be made by it. This

opinion was at that time fixed and universal in the civilized portion of

the white race. It was regarded as an axiom in morals as well as in

politics, which no one thought of disputing, or supposed to be open to

dispute; and men in every grade and position in society daily and

habitually acted upon it in their private pursuits, as well as in

matters of public concern, without doubting for a moment the correctness

of this opinion.

And in no nation was this opinion more firmly fixed or more uniformly

acted upon than by the English Government and English people. They not

only seized them on the coast of Africa, and sold them or held them in

slavery for their own use; but they took them as ordinary articles of

merchandise to every country where they could make a profit on them, and

were far more extensively engaged in this commerce, than any other

nation in the world.

The opinion thus entertained and acted upon in England was naturally

impressed upon the colonies they founded on this side of the Atlantic.

And, accordingly, a negro of the African race was regarded by them as an

article of property, and held, and bought and sold as such, in every one

of the thirteen colonies which united in the Declaration of

Independence, and afterward formed the Constitution of the United

States. The slaves were more or less numerous in the different colonies,

as slave labor was found more or less profitable. But no one seems to

have doubted the correctness of the prevailing opinion of the time.

The legislation of the different colonies furnishes positive and

indisputable proof of this fact.

It would be tedious, in this opinion, to enumerate the various laws they

passed upon this subject. It will be sufficient, as a sample of the

legislation which then generally prevailed throughout the British

colonies, to give the laws of two of them; one being still a large

slaveholding State, and the other the first State in which slavery

ceased to exist.

The province of Maryland, in 1717, (chap, xiii, s. 5,) passed a law

declaring "that if any free negro or mulatto intermarry with any white

woman, or if any white man shall intermarry with any negro or mulatto

woman, such negro or mulatto shall become a slave during life, excepting

mulattoes born of white women, who, for such intermarriage, shall only

become servants for seven years, to be disposed of as the justices of

the county court, where such marriage so happens, shall think fit; to be

applied by them toward the support of a public school within the said

county. And any white man or white woman who shall intermarry as

aforesaid, with any negro or mulatto, such white man or white woman

shall become servants during the term of seven years, and shall be

disposed of by the justices as aforesaid, and be applied to the uses

aforesaid."

The other colonial law to which we refer was passed by Massachusetts in

1705, (chap, vi.) It is entitled "An act for the better preventing of a

spurious and mixed issue," etc.; and it provides, that "if any negro or

mulatto shall presume to smite or strike any person of the English or

other Christian nation, such negro or mulatto shall be severely whipped,

at the discretion of the justices before whom the offender shall be

convicted."

And "that none of her Majesty's English or Scottish subjects, nor of any

other Christian nation, within this province, shall contract matrimony

with any negro or mulatto; nor shall any person, duly authorized to

solemnize marriage, presume to join any such in marriage, on pain of

forfeiting the sum of fifty pounds; one moiety thereof to her Majesty,

for and toward the support of the Government within this province, and

the other moiety to him or them that shall inform and sue for the same

in any of her Majesty's courts of record within the province, by bill,

plaint, or information."

We give both of these laws in the words used by the respective

legislative bodies, because the language in which they are framed, as

well as the provisions contained in them, show, too plainly to be

misunderstood, the degraded condition of this unhappy race. They were

still in force when the Revolution began, and are a faithful index to

the state of feeling toward the class of persons of whom they speak, and

of the position they occupied throughout the thirteen colonies, in the

eyes and thoughts of the men who framed the Declaration of Independence

and established the State Constitutions and Governments. They show that

a perpetual and impassable barrier was intended to be erected between

the white race and the one which they had reduced to slavery, and

governed as subjects with absolute and despotic power, and which they

then looked upon as so far below them in the scale of created beings,

that intermarriages between white persons and negroes or mulattoes were

regarded as unnatural and immoral, and punished as crimes, not only in

the parties, but in the person who joined them in marriage. And no

distinction in this respect was made between the free negro or mulatto

and the slave, but this stigma, of the deepest degradation, was fixed

upon the whole race.

We refer to these historical facts for the purpose of showing the fixed

opinions concerning that race, upon which the statesmen of that day

spoke and acted. It is necessary to do this, in order to determine

whether the general terms used in the Constitution of the United States,

as to the rights of man and the rights of the people, was intended to

include them, or to give to them or their posterity the benefit of any

of its provisions.

The language of the Declaration of Independence is equally conclusive:

It begins by declaring "that when in the course of human events it

becomes necessary for one people to dissolve the political bands which

have connected them with another, and to assume among the powers of the

earth the separate and equal station to which the laws of nature and

nature's God entitle them, a decent respect for the opinions of mankind

requires that they should declare the causes which impel them to the

separation."

It then proceeds to say: "We hold these truths to be self-evident: that

all men are created equal; that they are endowed by their Creator with

certain unalienable rights; that among them is life, liberty, and the

pursuit of happiness; that to secure these rights, Governments are

instituted, deriving their just powers from the consent of the

governed."

The general words above quoted would seem to embrace the whole human

family, and if they were used in a similar instrument at this day would

be so understood. But it is too clear for dispute, that the enslaved

African race were not intended to be included, and formed no part of the

people who framed and adopted this declaration; for if the language, as

understood in that day, would embrace them, the conduct of the

distinguished men who framed the Declaration of Independence would have

been utterly and flagrantly inconsistent with the principles they

asserted; and instead of the sympathy of mankind, to which they so

confidently appealed, they would have deserved and received universal

rebuke and reprobation.

Yet the men who framed this declaration were great men--high in literary

acquirements--high in their sense of honor, and incapable of asserting

principles inconsistent with those on which they were acting. They

perfectly understood the meaning of the language they used, and how it

would be understood by others; and they knew that it would not in any

part of the civilized world be supposed to embrace the negro race, which

by common consent, had been excluded from civilized Governments and the

family of nations, and doomed to slavery. They spoke and acted according

to the then established doctrines and principles, and in the ordinary

language of the day, and no one misunderstood them. The unhappy black

race were separated from the white by indelible marks, and laws long

before established, and were never thought of or spoken of except as

property, and when the claims of the owner or the profit of the trader

were supposed to need protection.

This state of public opinion had undergone no change when the

Constitution was adopted, as is equally evident from its provisions and

language.

The brief preamble sets forth by whom it was formed, for what purposes,

and for whose benefit and protection. It declares that it is formed by

the _people_ of the United States; that is to say, by those who were

members of the different political communities in the several States;

and its great object is declared to be to secure the blessings of

liberty to themselves and their posterity. It speaks in general terms of

the _people_ of the United States, and of _citizens_ of the several

States, when it is providing for the exercise of the powers granted or

the privileges secured to the citizen. It does not define what

description of persons are intended to be included under these terms, or

who shall be regarded as a citizen and one of the people. It uses them

as terms so well understood, that no further description or definition

was necessary.

But there are two clauses in the Constitution which point directly and

specifically to the negro race as a separate class of persons, and show

clearly that they were not regarded as a portion of the people or

citizens of the Government then formed.

One of these clauses reserves to each of the thirteen States the right

to import slaves until the year 1808, if it thinks proper. And the

importation which it thus sanctions was unquestionably of persons of the

race of which we are speaking, as the traffic in slaves in the United

States had always been confined to them. And by the other provision the

States pledge themselves to each other to maintain the right of property

of the master, by delivering up to him any slave who may have escaped

from his service, and be found within their respective territories. By

the first above-mentioned clause, therefore, the right to purchase and

hold this property is directly sanctioned and authorized for twenty

years by the people who framed the Constitution. And by the second, they

pledge themselves to maintain and uphold the right of the master in the

manner specified, as long as the Government they then formed should

endure. And these two provisions show, conclusively, that neither the

description of persons therein referred to, nor their descendants, were

embraced in any of the other provisions of the Constitution; for

certainly these two clauses were not intended to confer on them or their

posterity the blessings of liberty, or any of the personal rights so

carefully provided for the citizen.

No one of that race had ever migrated to the United States voluntarily;

all of them had been brought here as articles of merchandise. The number

that had been emancipated at that time were but few in comparison with

those held in slavery; and they were identified in the public mind with

the race to which they belonged, and regarded as a part of the slave

population rather than the free. It is obvious that they were not even

in the minds of the framers of the Constitution when they were

conferring special rights and privileges upon the citizens of a State in

every other part of the Union.

Indeed, when we look to the condition of this race in the several States

at the time, it is impossible to believe that these rights and

privileges were intended to be extended to them.

It is very true, that in that portion of the Union where the labor of

the negro race was found to be unsuited to the climate and unprofitable

to the master, but few slaves were held at the time of the Declaration

of Independence; and when the Constitution was adopted, it had entirely

worn out in one of them, and measures had been taken for its gradual

abolition in several others. But this change had not been produced by

any change of opinion in relation to this race; but because it was

discovered, from experience, that slave labor was unsuited to the

climate and productions of these States: for some of the States, where

it had ceased or nearly ceased to exist, were actively engaged in the

slave trade, procuring cargoes on the coast of Africa, and transporting

them for sale to those parts of the Union where their labor was found to

be profitable, and suited to the climate and productions. And this

traffic was openly carried on, and fortunes accumulated by it, without

reproach from the people of the States where they resided. And it can

hardly be supposed that, in the States where it was then countenanced in

its worst form--that is, in the seizure and transportation--the people

could have regarded those who were emancipated as entitled to equal

rights with themselves.

And we may here again refer, in support of this proposition, to the

plain and unequivocal language of the laws of the several States, some

passed after the Declaration of Independence and before the Constitution

was adopted, and some since the Government went into operation.

We need not refer, on this point, particularly to the laws of the

present slaveholding States. Their statute books are full of provisions

in relation to this class, in the same spirit with the Maryland law

which we have before quoted. They have continued to treat them as an

inferior class, and to subject them to strict police regulations,

drawing a broad line of distinction between the citizen and the slave

races, and legislating in relation to them upon the same principle which

prevailed at the time of the Declaration of Independence. As relates to

these States, it is too plain for argument, that they have never been

regarded as a part of the people or citizens of the State, nor supposed

to possess any political rights which the dominant race might not

withhold or grant at their pleasure. And as long ago as 1822, the Court

of Appeals of Kentucky decided that free negroes and mulattoes were not

citizens within the meaning of the Constitution of the United States;

and the correctness of this decision is recognized, and the same

doctrine affirmed, in 1 Meig's Tenn. Reports, 331.

And if we turn to the legislation of the States where slavery had worn

out, or measures taken for its speedy abolition, we shall find the same

opinions and principles equally fixed and equally acted upon.

Thus, Massachusetts, in 1786, passed a law similar to the colonial one

of which we have spoken. The law of 1786, like the law of 1705, forbids

the marriage of any white person with any negro, Indian, or mulatto, and

inflicts a penalty of fifty pounds upon any one who shall join them in

marriage; and declares all such marriages absolutely null and void, and

degrades thus the unhappy issue of the marriage by fixing upon it the

stain of bastardy. And this mark of degradation was renewed and again

impressed upon the race, in the careful and deliberate preparation of

their revised code, published in 1836. This code forbids any person from

joining in marriage any white person with any Indian, negro, or mulatto,

and subjects the party who shall offend in this respect, to

imprisonment, not exceeding six months in the common jail, or to hard

labor, and to a fine of not less than fifty nor more than two hundred

dollars; and like the law of 1786, it declares the marriage to be

absolutely null and void. It will be seen that the punishment is

increased by the code upon the person who shall marry them, by adding

imprisonment to a pecuniary penalty.

So, too, in Connecticut. We refer more particularly to the legislation

of this State, because it was not only among the first to put an end to

slavery within its own territory, but was the first to fix a mark of

reprobation upon the African slave trade. The law last mentioned was

passed in October, 1788, about nine months after the State had ratified

and adopted the present Constitution of the Unitied States; and by that

law it prohibited its own citizens, under severe penalties, from

engaging in the trade, and declared all policies of insurance on the

vessel or cargo made in the State to be null and void. But up to the

time of the adoption of the Constitution, there is nothing in the

legislation of the State indicating any change of opinion as to the

relative rights and position of the white and black races in this

country, or indicating that it meant to place the latter, when free,

upon a level with its citizens. And certainly nothing which would have

led the slaveholding States to suppose that Connecticut designed to

claim for them, under the new Constitution, the equal rights and

privileges and rank of citizens in every other State.

The first step taken by Connecticut upon this subject was as early as

1774, when it passed an act forbidding the further importation of slaves

into the State. But the section containing the prohibition is introduced

by the following preamble:

"And whereas the increase of slaves in this State is injurious to the

poor, and inconvenient."

This recital would appear to have been carefully introduced, in order to

prevent any misunderstanding of the motive which induced the Legislature

to pass the law, and places it distinctly upon the interest and

convenience of the white population--excluding the inference that it

might have been intended in any degree for the benefit of the other.

And in the act of 1784, by which the issue of slaves, born after the

time therein mentioned, were to be free at a certain age, the section is

again introduced by a preamble assigning a 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

defense 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 any where 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 can not 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 a

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 1846, 2 vols., 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 afterward, 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 can not 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 to 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 recognized

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 can not 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 defense. And it can not 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 recognized 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 slaves 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. civ, 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 offense; 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 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 recognized 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

office. Women and minors, who form a part of the political family, can

not vote; and when a property qualification is required to vote or hold

a particular office, those who have not the necessary qualification can

not 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 recognized as citizens, but belong to

an inferior and subject race; and may deny him the privileges and

immunities enjoyed by its citizens.

But so far as mere rights of persons are concerned, the provision in

question is confined to citizens of a State who are temporarily in

another State without taking up their residence there. It gives them no

political rights in the State, as to voting or holding office, or in any

other respect. For a citizen of one State has no right to participate in

the government of another. But if he ranks as a citizen in the State to

which he belongs, within the meaning of the Constitution of the United

States, then, whenever he goes into another State, the Constitution

clothes him, as to the rights of person, with all the privileges and

immunities which belong to citizens of the State. And if persons of the

African race are citizens of a State, and of the United States, they

would be entitled to all these privileges and immunities in every State,

and the State could not restrict them; for they would hold these

privileges and immunities under the paramount authority of the Federal

Government, and its courts would be bound to maintain and enforce them,

the Constitution and laws of the State to the contrary notwithstanding.

And if the States could limit or restrict them, or place the party in an

inferior grade, this clause of the Constitution would be unmeaning, and

could have no operation; and would give no rights to the citizen when in

another State. He would have none but what the State itself chose to

allow him. This is evidently not the construction or meaning of the

clause in question. It guaranties rights, to the citizen, and the State

can not withhold them. And these rights are of a character and would

lead to consequences which make it absolutely certain that the African

race were not included under the name of citizens of a State, and were

not in the contemplation of the framers of the Constitution when these

privileges and immunities were provided for the protection of the

citizen in other States.

The case of Legrand _v._ Darnall (2 Peters, 664) has been referred to

for the purpose of showing that this court has decided that the

descendant of a slave may sue as a citizen in a court of the United

States; but the case itself shows that the question did not arise and

could not have arisen in the case.

It appears from the report, that Darnell was born in Maryland, and was

the son of a white man by one of his slaves, and his father executed

certain instruments to manumit him, and devised to him some landed

property in the State. This property Darnall afterward sold to Legrand,

the appellant, who gave his notes for the purchase-money. But becoming

afterward apprehensive that the appellee had not been emancipated

according to the laws of Maryland, he refused to pay the notes until he

could be better satisfied as to Darnell's right to convey. Darnall, in

the mean time, had taken up his residence in Pennsylvania, and brought

suit on the notes, and recovered judgment in the Circuit Court for the

district of Maryland.

The whole proceeding, as appears by the report, was an amicable one;

Legrand being perfectly willing to pay the money, if he could obtain a

title, and Darnall not wishing him to pay unless he could make him a

good one. In point of fact, the whole proceeding was under the direction

of the counsel who argued the case for the appellee, who was the mutual

friend of the parties, and confided in by both of them, and whose only

object was to have the rights of both parties established by judicial

decision in the most speedy and least expensive manner.

Legrand, therefore, raised no objection to the jurisdiction of the court

in the suit at law, because he was himself anxious to obtain the

judgment of the court upon his title. Consequently, there was nothing in

the record before the court to show that Darnall was of African descent,

and the usual judgment and award of execution was entered. And Legrand

thereupon filed his bill on the equity side of the Circuit Court,

stating that Darnall was born a slave, and had not been legally

emancipated, and could not therefore take the land devised to him, nor

make Legrand a good title; and praying an injunction to restrain Darnall

from proceeding to execution on the judgment, which was granted.

Darnall answered, averring in his answer that he was a free man, and

capable of conveying a good title. Testimony was taken on this point,

and at the hearing the Circuit Court was of opinion that Darnall was a

free man and his title good, and dissolved the injunction and dismissed

the bill; and that decree was affirmed here, upon the appeal of Legrand.

Now, it is difficult to imagine how any question about the citizenship

of Darnall, or his right to sue in that character, can be supposed to

have risen or been decided in that case. The fact that he was of African

descent was first brought before the court upon the bill in equity. The

suit at law had then passed into judgment and award of execution, and

the Circuit Court, as a court of law, had no longer any authority over

it. It was a valid and legal judgment, which the court that rendered it

had not the power to reverse or set aside. And unless it had

jurisdiction as a court of equity to restrain him from using its process

as a court of law, Darnall, if he thought proper, would have been at

liberty to proceed on his judgment, and compel the payment of the money,

although the allegations in the bill were true, and he was incapable of

making a title. No other court could have enjoined him, for certainly no

State equity court could interfere in that way with the judgment of a

Circuit Court of the United States.

But the Circuit Court as a court of equity certainly had equity

jurisdiction over its own judgment as a court of law, without regard to

the character of the parties; and had not only the right, but it was its

duty--no matter who were the parties in the judgment--to prevent them

from proceeding to enforce it by execution, if the court was satisfied

that the money was not justly and equitably due. The ability of Darnall

to convey did not depend upon his citizenship, but upon his title to

freedon. And if he was free, he could hold and convey property, by the

laws of Maryland, although he was not a citizen. But if he was by law

still a slave, he could not. It was therefore the duty of the court,

sitting as a court of equity in the latter case, to prevent him from

using its process, as a court of common law, to compel the payment of

the purchase-money, when it was evident that the purchaser must lose the

land. But if he was free and could make a title, it was equally the duty

of the court not to suffer Legrand to keep the land, and refuse the

payment of the money, upon the ground that Darnall was incapable of

suing or being sued as a citizen in a court of the United States. The

character or citizenship of the parties had no connection with the

question of jurisdiction, and the matter in dispute had no relation to

the citizenship of Darnall. Nor is such a question alluded to in the

opinion of the Court.

Beside, we are by no means prepared to say that there are not many

cases, civil as well as criminal, in which a Circuit Court of the United

States may exercise jurisdiction, although one of the African race is a

party; that broad question is not before the court. The question with

which we are now dealing is, whether a person of the African race can be

a citizen of the United States, and become thereby entitled to a special

privilege, by virtue of his title to that character, and which, under

the Constitution, no one but a citizen can claim. It is manifest that

the case of Legrand and Darnall has no bearing on that question, and can

have no application to the case now before the court.

This case, however, strikingly illustrates the consequences that would

follow the construction of the Constitution which would give the power

contended for to a State. It would in effect give it also to an

individual. For if the father of young Darnall had manumitted him in his

lifetime, and sent him to reside in a State which recognized him as a

citizen, he might have visited and sojourned in Maryland when he

pleased, and as long as he pleased, as a citizen of the United States;

and the State officers and tribunals would be compelled, by the

paramount authority of the Constitution, to receive him and treat him as

one of its citizens, exempt from the laws and police of the State in

relation to a person of that description, and allow him to enjoy all the

rights and privileges of citizenship without respect to the laws of

Maryland, although such laws were deemed by it absolutely essential to

its own safety.

The only two provisions which point to them and include them, treat them

as property, and make it the duty of the Government to protect it; no

other power, in relation to this race, is to be found in the

Constitution; and as it is a Government of special, delegated, powers,

no authority beyond these two provisions can be constitutionally

exercised. The Government of the United States had no right to interfere

for any other purpose but that of protecting the rights of the owner,

leaving it altogether with the several States to deal with this race,

whether emancipated or not, as each State may think justice, humanity,

and the interests and safety of society, require. The States evidently

intended to reserve this power exclusively to themselves.

No one, we presume, supposes that any change in public opinion or

feeling, in relation to this unfortunate race, in the civilized nations

of Europe or in this country, should induce the court to give to the

words of the Constitution a more liberal construction in their favor

than they were intended to bear when the instrument was framed and

adopted. Such an argument would be altogether inadmissible in any

tribunal called on to interpret it. If any of its provisions are deemed

unjust, there is a mode prescribed in the instrument itself, by which it

may be amended; but while it remains unaltered, it must be construed now

as it was understood at the time of its adoption. It is not only the

same in words, but the same in meaning, and delegates the same powers to

the Government, and reserves and secures the same rights and privileges

to citizens; and as long as it continues to exist in its present form,

it speaks not only in the same words, but with the same meaning and

intent with which it spoke when it came from the hands of its framers,

and was voted on and adopted by the people of the United States. Any

other rule of construction would abrogate the judicial character of this

court, and make it the mere reflex of the popular opinion or passion of

the day. This court was not created by the Constitution for such

purposes. Higher and graver trusts have been confided to it, and it must

not falter in the path of duty.

What the construction was at that time, we think can hardly admit of

doubt. We have the language of the Declaration of Independence and of

the Articles of Confederation, in addition to the plain words of the

Constitution itself; we have the legislation of the different States,

before, about the time, and since, the Constitution was adopted; we have

the legislation of Congress, from the time of its adoption to a recent

period; and we have the constant and uniform action of the Executive

Department, all concurring together, and leading to the same result. And

if any thing in relation to the construction of the Constitution can be

regarded as settled, it is that which we now give to the word "citizen"

and the word "people."