Justice to the slave is to break his chains, and going out of the union is to leave him in his chains, and without any probable chance of getting out of them. But I come now to the great question as to the constitutionality of slavery. The recent slaveholding decision, as well as the teachings of anti-slavery men, make this a fit time to discuss the constitutional pretensions of slavery. The people of the North are a law abiding people. They love order and respect the means to that end. This sentiment has sometimes led them to the folly and wickedness of trampling upon the very life of law, to uphold its dead form.
This was so in the execution of that thrice accursed Fugitive Slave Bill. Burns and Simms were sent back to the hell of slavery after they had looked upon Bunker Hill, and heard liberty thunder in Faneuil Hall. The people permitted this outrage in obedience to the popular sentiment of reverence for law.
While men thus respect law, it becomes a serious matter so to interpret the law as to make it operate against liberty. I have a quarrel with those who fling the Supreme Law of this land between the slave and freedom.
It is a serious matter to fling the weight of the Constitution against the cause of human liberty, and those who do it, take upon them a heavy responsibility. Nothing but absolute necessity, shall, or ought to drive me to such a concession to slavery. When I admit that slavery is constitutional, I must see slavery recognized in the Constitution.
I must see that it is there plainly stated that one man of a certain description has a right of property in the body and soul of another man of a certain description. There must be no room for a doubt. In a matter so important as the loss of liberty, everything must be proved beyond all reasonable doubt. The well known rules of legal interpretation bear me out in this stubborn refusal to see slavery where slavery is not, and only to see slavery where it is.
The Supreme Court has, in its day, done something better than make slaveholding decisions. It has laid down rules of interpretation which are in harmony with the true idea and object of law and liberty. It has told us that the intention of legal instruments must prevail; and that this must be collected from its words. It has told us that language must be construed strictly in favor of liberty and justice.
It has told us where rights are infringed, where fundamental principles are overthrown, where the general system of the law is departed from, the Legislative intention must be expressed with irresistible clearness, to in-duce a court of justice to suppose a design to effect such objects.
These rules are as old as law. They rise out of the very elements of law. It is to protect human rights, and promote human welfare. Law is in its nature opposed to wrong, and must everywhere be presumed to be in favor of the right. The pound of flesh, but not one drop of blood, is a sound rule of legal interpretation.
Besides there is another rule of law as well of common sense, which requires us to look to the ends for which a law is made, and to construe its details in harmony with the ends sought. Now let us approach the Constitution from the standpoint thus indicated, and instead of finding in it a warrant for the stupendous system of robbery, comprehended in the term slavery, we shall find it strongly against that system. Such are the objects announced by the instrument itself, and they are in harmony with the Declaration of Independence, and the principles of human well-being. Neither in the preamble nor in the body of the Constitution is there a single mention of the term slave or slave holder, slave master or slave state , neither is there any reference to the color, or the physical peculiarities of any part of the people of the United States.
Neither is there anything in the Constitution standing alone, which would imply the existence of slavery in this country. I ask, then, any man to read the Constitution, and tell me where, if he can, in what particular that instrument affords the slightest sanction of slavery? Where will he find a guarantee for slavery? Will he find it in the declaration that no person shall be deprived of life, liberty, or property, without due process of law?
Will he find it in the declaration that the Constitution was established to secure the blessing of liberty? Will he find it in the right of the people to be secure in their persons and papers, and houses, and effects? Will he find it in the clause prohibiting the enactment by any State of a bill of attainder? These all strike at the root of slavery, and any one of them, but faithfully carried out, would put an end to slavery in every State in the American Union. Take, for example, the prohibition of a bill of attainder. That is a law entailing on the child the misfortunes of the parent.
This principle would destroy slavery in every State of the Union. The law of slavery is a law of attainder. The child is property because its parent was property, and suffers as a slave because its parent suffered as a slave. Thus the very essence of the whole slave code is in open violation of a fundamental provision of the Constitution, and is in open and flagrant violation of all the objects set forth in the Constitution.
While this and much more can be said, and has been said, and much better said, by Lysander Spooner, William Goodell, Beriah Green, and Gerrit Smith, in favor of the entire unconstitutionality of slavery, what have we on the other side? How is the constitutionality of slavery made out, or attempted to be made out? First, by discrediting and casting away as worthless the most beneficent rules of legal interpretation; by disregarding the plain and common sense reading of the instrument itself; by showing that the Constitution does not mean what it says, and says what it does not mean, by assuming that the written Constitution is to be interpreted in the light of a secret and unwritten understanding of its framers, which understanding is declared to be in favor of slavery.
It is in this mean, contemptible, underhand method that the Constitution is pressed into the service of slavery. They do not point us to the Constitution itself, for the reason that there is nothing sufficiently explicit for their purpose; but they delight in supposed intentions—intentions nowhere expressed in the Constitution, and everywhere contradicted in the Constitution.
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 appealed, they would have deserved and received universal rebuke and reprobation. This opinion, at that time, was fixed and universal with the civilized portion of the white race.
It was regarded as an axiom of morals, which no one thought of disputing, and everyone habitually acted upon it, without doubting, for a moment, the correctness of the opinion. And in no nation was this opinion more fixed, and generally acted upon, than in England; the subjects of which government not only seized them on the coast of Africa, but took them, as ordinary merchandise, to where they could make a profit on them.
The opinion, thus entertained, was universally maintained on the colonies this side of the Atlantic; accordingly, Negroes of the African race were regarded by them as property, and held and bought and sold as such in every one of the thirteen colonies, which united in the Declaration of Independence, and afterwards formed the Constitution. The argument here is, that the Constitution comes down to us from a slaveholding period and a slaveholding people; and that, therefore, we are bound to suppose that the Constitution recognizes colored persons of African descent, the victims of slavery at that time, as debarred forever from all participation in the benefit of the Constitution and the Declaration of Independence, although the plain reading of both includes them in their beneficent range.
As a man, an American, a citizen, a colored man of both Anglo-Saxon and African descent, I denounce this representation as a most scandalous and devilish perversion of the Constitution, and a brazen misstatement of the facts of history. It is a fact, a great historic fact, that at the time of the adoption of the Constitution, the leading religious denominations in this land were anti-slavery, and were laboring for the emancipation of the colored people of African descent. The church of a country is often a better index of the state of opinion and feeling than is even the government itself.
The Methodists, Baptists, Presbyterians, and the denomination of Friends, were actively opposing slavery, denouncing the system of bondage, with language as burning and sweeping as we employ at this day. In , that denomination said: In , the General Assembly of that body pronounced the following judgment in respect to slavery, slaveholders, and slaveholding. The word he uses in its original import, comprehends all who are concerned in bringing any of the human race into slavery, or in retaining them in it. Stealers of men are all those who bring off slaves or freemen, and keep, sell, or buy them.
I might quote, at length, from the sayings of the Baptist Church and the sayings of eminent divines at this early period, showing that Judge Taney has grossly falsified history, but will not detain you with these quotations. The testimony of the church, and the testimony of the founders of this Republic, from the declaration downward, prove Judge Taney false; as false to history as he is to law. Washington and Jefferson, and Adams, and Jay, and Franklin, and Rush, and Hamilton, and a host of others, held no such degrading views on the subject of slavery as are imputed by Judge Taney to the Fathers of the Republic.
All, at that time, looked for the gradual but certain abolition of slavery, and shaped the constitution with a view to this grand result. George Washington can never be claimed as a fanatic, or as the representative of fanatics. The slaveholders impudently use his name for the base purpose of giving respectability to slavery. Yet, in a letter to Robert Morris, Washington uses this language — language which, at this day, would make him a terror of the slaveholders, and the natural representative of the Republican party. Washington only spoke the sentiment of his times.
There were, at that time, Abolition societies in the slave States — Abolition societies in Virginia, in North Carolina, in Maryland, in Pennsylvania, and in Georgia — all slaveholding States. Slavery was so weak, and liberty so strong, that free speech could attack the monster to its teeth. Men were not mobbed and driven out of the presence of slavery, merely because they condemned the slave system. The system was then on its knees imploring to be spared, until it could get itself decently out of the world.
In the light of these facts, the Constitution was framed, and framed in conformity to it. It may, however, be asked, if the Constitution were so framed that the rights of all the people were naturally protected by it, how happens it that a large part of the people have been held in slavery ever since its adoption? Have the people mistaken the requirements of their own Constitution?
Chief Justice Taney
The answer is ready. The Constitution is one thing, its administration is another, and, in this instance, a very different and opposite thing. I am here to vindicate the law, not the administration of the law. It is the written Constitution, not the unwritten Constitution, that is now before us. If, in the whole range of the Constitution, you can find no warrant for slavery, then we may properly claim it for liberty.
Good and wholesome laws are often found dead on the statute book. We may condemn the practice under them and against them, but never the law itself. To condemn the good law with the wicked practice, is to weaken, not to strengthen our testimony. It is no evidence that the Bible is a bad book, because those who profess to believe the Bible are bad.
The slaveholders of the South, and many of their wicked allies at the North, claim the Bible for slavery; shall we, therefore, fling the Bible away as a pro-slavery book? It would be as reasonable to do so as it would be to fling away the Constitution. We are not the only people who have illustrated the truth, that a people may have excellent law, and detestable practices. Our Savior denounces the Jews, because they made void the law by their traditions. We have been guilty of the same sin. Garrison have been giving to the world of late, as the true light in which to view the Constitution of the United States.
I shall follow neither. It is not what Moses allowed forthe hardness of heart, but what God requires, ought to be the rule. It may be said that it is quite true that the Constitution was designed to secure the blessings of liberty and justice to the people who made it, and to the posterity of the people who made it, but was never designed to do any such thing for the colored people of African descent.
The Constitution imposes no such mean and satanic limitations upon its own beneficent operation. It is a fitting time to take an observation to ascertain where we are, and what our prospects are. To many, the prospects of the struggle against slavery seem far from cheering. Eminent men, North and South, in Church and State, tell us that the omens are all against us. Emancipation, they tell us, is a wild, delusive idea; the price of human flesh was never higher than now; slavery was never more closely entwined about the hearts and affections of the southern people than now; that whatever of conscientious scruple, religious conviction, or public policy, which opposed the system of slavery forty or fifty years ago, has subsided; and that slavery never reposed upon a firmer basis than now.
Completing this picture of the happy and prosperous condition of this system of wickedness, they tell us that this state of things is to be set to our account. Abolition agitation has done it all. How deep is the misfortune of my poor, bleeding people, if this be so! How lost their condition, if even the efforts of their friends but sink them deeper in ruin! Without assenting to this strong representation of the increasing strength and stability of slavery, without denouncing what of untruth pervades it, I own myself not insensible to the many difficulties and discouragements that beset us on every hand.
They fling their broad and gloomy shadows across the pathway of every thoughtful colored man in this country. For one, I see them clearly, and feel them sadly. With an earnest, aching heart, I have long looked for the realization of the hope of my people. Standing, as it were, barefoot, and treading upon the sharp and flinty rocks of the present, and looking out upon the boundless sea of the future, I have sought, in my humble way, to penetrate the intervening mists and clouds, and, perchance, to descry, in the dim and shadowy distance, the white flag of freedom, the precise speck of time at which the cruel bondage of my people should end, and the long entombed millions rise from the foul grave of slavery and death.
But of that time I can know nothing, and you can know nothing.
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All is uncertain at that point. One thing, however, is certain; slaveholders are in earnest, and mean to cling to their slaves as long as they can, and to the bitter end. They show no sign of a wish to quit their iron grasp upon the sable throats of their victims. Their motto is, "a firmer hold and a tighter grip" for every new effort that is made to break their cruel power.
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The case is one of life or death with them, and they will give up only when they must do that or do worse. In one view the slaveholders have a decided advantage over all opposition. It is well to notice this advantage—the advantage of complete organization. They are organized; and yet were not at the pains of creating their organizations. The State governments, where the system of slavery exists, are complete slavery organizations. The church organizations in those States are equally at the service of slavery; while the Federal Government, with its army and navy, from the chief magistracy in Washington, to the Supreme Court, and thence to the chief marshalship at New York, is pledged to support, defend, and propagate the crying curse of human bondage.
The pen, the purse, and the sword, are united against the simple truth, preached by humble men in obscure places. This is one view. It is, thank God, only one view; there is another, and a brighter view. David, you know, looked small and insignificant when going to meet Goliath, but looked larger when he had slain his foe. The Malakoff was, to the eye of the world, impregnable, till the hour it fell before the shot and shell of the allied army. Thus hath it ever been. Oppression, organized as ours is, will appear invincible up to the very hour of its fall.
Sir, let us look at the other side, and see if there are not some things to cheer our heart and nerve us up anew in the good work of emancipation. Take this fact—for it is a fact—the anti-slavery movement has, from first to last, suffered no abatement. It has gone forth in all directions, and is now felt in the remotest extremities of the Republic.
It started small, and was without capital either in men or money. The odds were all against it. It literally had nothing to lose, and everything to gain. There was ignorance to be enlightened, error to be combatted, conscience to be awakened, prejudice to be overcome, apathy to be aroused, the right of speech to be secured, mob violence to be subdued, and a deep, radical change to be inwrought in the mind and heart of the whole nation. This great work, under God, has gone on, and gone on gloriously. Amid all changes, fluctuations, assaults, and adverses of every kind, it has remained firm in its purpose, steady in its aim, onward and upward, defying all opposition, and never losing a single battle.
Our strength is in the growth of antislavery conviction, and this has never halted. There is a significant vitality about this abolition movement. It has taken a deeper, broader, and more lasting hold upon the national heart than ordinary reform movements. Other subjects of much interest come and go, expand and contract, blaze and vanish, but the huge question of American Slavery, comprehending, as it does, not merely the weal or the woe of four millions, and their countless posterity, but the weal or the woe of this entire nation, must increase in magnitude and in majesty with every hour of its history.
From a cloud not bigger than a man's hand, it has overspread the heavens. It has risen from a grain not bigger than a mustard seed. Yet see the fowls of the air, how they crowd its branches. Politicians who cursed it, now defend it; ministers, once dumb, now speak in its praise; and presses, which once flamed with hot denunciations against it, now surround the sacred cause as by a wall of living fire.
Politicians go with it as a pillar of cloud by day, and the press as a pillar of fire by night. With these ancient tokens of success, I, for one, will not despair of our cause. Those who have undertaken to suppress and crush out this agitation for Liberty and humanity, have been most woefully disappointed.
Many who have engaged to put it down, have found themselves put down. The agitation has pursued them in all their meanderings, broken in upon their seclusion, and, at the very moment of fancied security, it has settled down upon them like a mantle of unquenchable fire. Clay, Calhoun, and Webster each tried his hand at suppressing the agitation; and they went to their graves disappointed and defeated. Loud and exultingly have we been told that the slavery question is settled, and settled forever. You remember it was settled thirty-seven years ago, when Missouri was admitted into the Union with a slaveholding constitution, and slavery prohibited in all territory north of thirty-six degrees of north latitude.
Just fifteen years afterwards, it was settled again by voting down the right of petition, and gagging down free discussion in Congress. Ten years after this it was settled again by the annexation of Texas, and with it the war with Mexico. In it was again settled. This was called a final settlement. By it slavery was virtually declared to be the equal of Liberty, and should come into the Union on the same terms. By it the right and the power to hunt down men, women, and children, in every part of this country, was conceded to our southern brethren, in order to keep them in the Union.
Four years after this settlement, the whole question was once more settled, and settled by a settlement which unsettled all the former settlements. The fact is, the more the question has been settled, the more it has needed settling. The space between the different settlements has been strikingly on the decrease. The first stood longer than any of its successors. There is a lesson in these decreasing spaces.
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The first stood fifteen years—the second, ten years—the third, five years—the fourth stood four years—and the fifth has stood the brief space of two years. This last settlement must be called the Taney settlement. We are now told, in tones of lofty exultation, that the day is lost—all lost—and that we might as well give up the struggle.
The highest authority has spoken. The voice of the Supreme Court has gone out over the troubled waves of the National Conscience, saying peace, be still. This infamous decision of the Slaveholding wing of the Supreme Court maintains that slaves are within the contemplation of the Constitution of the United States, property; that slaves are property in the same sense that horses, sheep, and swine are property; that the old doctrine that slavery is a creature of local law is false; that the right of the slaveholder to his slave does not depend upon the local law, but is secured wherever the Constitution of the United States extends; that Congress has no right to prohibit slavery anywhere; that slavery may go in safety anywhere under the star-spangled banner; that colored persons of African descent have no rights that white men are bound to respect; that colored men of African descent are not and cannot be citizens of the United States.
You will readily ask me how I am affected by this devilish decision—this judicial incarnation of wolfishness? My answer is, and no thanks to the slave- holding wing of the Supreme Court, my hopes were never brighter than now. I have no fear that the National Conscience will be put to sleep by such an open, glaring, and scandalous tissue of lies as that decision is, and has been, over and over, shown to be. The Supreme Court of the United States is not the only power in this world.
It is very great, but the Supreme Court of the Almighty is greater. Judge Taney can do many things, but he cannot perform impossibilities. He cannot bale out the ocean, annihilate the firm old earth, or pluck the silvery star of liberty from our Northern sky. He may decide, and decide again; but he cannot reverse the decision of the Most High. He cannot change the essential nature of things— making evil good, and good evil. Happily for the whole human family, their rights have been defined, declared, and decided in a court higher than the Supreme Court.
There is no need of argument to make it clear. The voices of nature, of conscience, of reason, and of revelation, proclaim it as the right of all rights, the foundation of all trust, and of all responsibility. Man was born with it. It was his before he comprehended it. The deed conveying it to him is written in the center of his soul, and is recorded in Heaven. The sun in the sky is not more palpable to the sight than man's right to liberty is to the moral vision.
To decide against this right in the person of Dred Scott, or the humblest and most whip-scarred bondman in the land, is to decide against God. It is an open rebellion against God's government. It is an attempt to undo what God has done, to blot out the broad distinction instituted by the All-wise between men and things, and to change the image and superscription of the everliving God into a speechless piece of merchandise. Such a decision cannot stand. God will be true though every man be a liar. We can appeal from this hell-black judgment of the Supreme Court, to the court of common sense and common humanity.
We can appeal from man to God.
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If there is no justice on earth, there is yet justice in. You may close your Supreme Court against the black man's cry for justice, but you cannot, thank God, close against him the ear of a sympathising world, nor shut up the Court of Heaven. All that is merciful and just, on earth and in Heaven, will execrate and despise this edict of Taney. If it were at all likely that the people of these free States would tamely submit to this demoniacal judgment, I might feel gloomy and sad over it, and possibly it might be necessary for my people to look for a home in some other country.
But as the case stands, we have nothing to fear. In one point of view, we, the abolitionists and colored people, should meet this decision, unlooked for and monstrous as it appears, in a cheerful spirit. It is in these words: And still further pursuing its legislation, we find that in the same statute passed in , 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 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 , 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. But Chief Justice Dagget, before whom the case was tried, held, that persons of that description were not citizens of a State, within the meaning of the word citizen in the Constitution of the United States, and were not therefore entitled to the privileges and immunities of citizens in other States.
The case was carried up to the Supreme Court of Errors of the State, and the question fully argued there. But the case went off upon another point, and no opinion was expressed on this question. We have made this particular examination into the legislative and judicial action of Connecticut, because, from the early hostility it displayed to the slave trade on the coast of Africa, we may expect to find the laws of that State as lenient and favorable to the subject race as those of any other State in the Union; and if we find that at the time the Constitution was adopted, they were not even there raised to the rank of citizens, but were still held and treated as property, and the laws relating to them passed with reference altogether to the interest and convenience of the white race, we shall hardly find them elevated to a higher rank anywhere else.
A brief notice of the laws of two other States, and we shall pass on to other considerations. By the laws of New Hampshire, collected and finally passed in , 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 Nothing could more strongly mark the entire repudiation of the African race. The alien is excluded, because, being born in a foreign country, he cannot be a member of the community until he is naturalized. But why are the African race, born in the State, not permitted to share in one of the highest duties of the citizen?
The answer is obvious; he is not, by the institutions and laws of the State, numbered among its people. He forms no part of the sovereignty of the State, and is not therefore called on to uphold and defend it. Again, in , 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 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 , 2 vol. The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens.
It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety.
It would give to persons of the negro race, who were 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.
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The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class.
And when we find the States guarding themselves from the indiscreet or improper admission by other States of emigrants from other countries, by giving the power exclusively to Congress, we cannot fail to see that they could never have left with the States a much more important power -- that is, the power of transforming into citizens a numerous class of persons, who in that character would be much more dangerous to the peace and safety of a large portion of the Union, than the few foreigners one of the States might improperly naturalize.
The Constitution upon its adoption obviously took from the States all power by any subsequent legislation to introduce as a citizen into the political family of the United States any one, no matter where he was born, or what might be his character or condition; and it gave to Congress the power to confer this character upon those only who were born outside of the dominions of the United States.
And no law of a State, therefore, passed since the Constitution was adopted, can give any right of citizenship outside of its own territory. A clause similar to the one in the Constitution, in relation to the rights and immunities of citizens of one State in the other States, was contained in the Articles of Confederation. But there is a difference of language, which is worthy of note. The provision in the Articles of Confederation was, "that the free inhabitants of each of the States, paupers, vagabonds, and fugitives from justice, excepted, should be entitled to all the privileges and immunities of free citizens in the several States.
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: The latter were not even counted when the inhabitants of a State were to be embodied in proportion to its numbers from the general defence.
And it cannot for a moment be supposed, that a class of persons thus separated and rejected from those who formed the sovereignty of the States, were yet intended to be included under the words "free inhabitants," in the preceding article, to whom privileges and immunities were so carefully secured in every State. But although this clause of the Articles of Confederation is the same in principle with that inserted in the Constitution, yet the comprehensive word inhabitant, which might be construed to include an emancipated slave, is omitted; and the privilege is confined to citizens of the State.
And this alteration in words would hardly have been made, unless a different meaning was intended to be conveyed, or a possible doubt removed. The just and fair inference is, that as this privilege was about to be placed under the protection of the General Government, and the words expounded by its tribunals, and all power in relation to it taken from the State and its courts, it was deemed prudent to describe with precision and caution the persons to whom this high privilege was given -- and the word citizen was on that account substituted for the words free inhabitant.
The word citizen excluded, and no doubt intended to exclude, foreigners who had not become citizens of some one of the States when the Constitution was adopted; and also every description of persons who were not fully 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, , and confines the right of becoming citizens "to aliens being free 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 , at the first session of the second Congress. The language of this law is equally plain and significant with the one just mentioned. It directs that every "free able-bodied white male citizen" shall be enrolled in the militia. The word white is evidently used to exclude the African race, and the word "citizen" to exclude unnaturalized foreigners; the latter forming no part of the sovereignty, owing it no allegiance, and therefore under no obligation to defend it. The African race, however, born in the country, did owe allegiance to the Government, whether they were slave or free; but it is repudiated, and rejected from the duties and obligations of citizenship in marked language.
The third act to which we have alluded is even still more decisive; it was passed as late as , 2 Stat. 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 , chap. And after such an uniform course of legislation as we have stated, by the colonies, by the States, and by Congress, running through a period of more than a century, it would seem that to call persons thus marked and stigmatized, "citizens" of the United States, "fellow-citizens," a constituent part of the sovereignty, would be an abuse of terms, and not calculated to exalt the character of an American citizen in the eyes of other nations.
The conduct of the Executive Department of the Government has been in perfect harmony upon this subject with this course of legislation. The question was brought officially before the late William Wirt, when he was the Attorney General of the United States, in , 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.
This argument overlooks the language of the provision in the Constitution of which we are speaking. Undoubtedly, a person may be a citizen, that is, a member of the community who form the sovereignty, although he exercises no share of the political power, and is incapacitated from holding particular offices. Women and minors, who form a part of the political family, cannot vote; and when a property qualification is required to vote or hold a particular office, those who have not the necessary qualification cannot vote or hold the office, yet they are citizens.
So, too, a person may be entitled to vote by the law of the State, who is not a citizen even of the State itself. And in some of the States of the Union foreigners not naturalized are allowed to vote. And the State may give the right to free negroes and mulattoes, but that does not make them citizens of the State, and still less of the United States. And the provision in the Constitution giving privileges and immunities in other States, does not apply to them.
Neither does it apply to a person who, being the citizen of a State, migrates to another State. For then he becomes subject to the laws of the State in which he lives, and he is no longer a citizen of the State from which he removed. And the State in which he resides may then, unquestionably, determine his status or condition, and place him among the class of persons who are not 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 person 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 of 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 cannot 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, 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 Darnall 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 afterwards sold to Legrand, the appellant, who gave his notes for the purchase-money. But becoming afterwards 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 Darnall'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 arisen 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 freedom. 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. Besides, 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 States 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 the citizen; 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 anything 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.
We are aware that doubts are entertained by some of the members of the court, whether the plea in abatement is legally before the court upon this writ of error; but if that plea is regarded as waived, or out of the case upon any other ground, yet the question as to the jurisdiction of the Circuit Court is presented on the face of the bill of exception itself, taken by the plaintiff at the trial; for he admits that he and his wife were born slaves, but endeavors to make out his title to freedom and citizenship by showing that they were taken by their owner to certain places, hereinafter mentioned, where slavery could not by law exist, and that they thereby became free, and upon their return to Missouri became citizens of that State.
Now, if the removal of which he speaks did not give them their freedom, then by his own admission he is still a slave; and whatever opinions may be entertained in favor of the citizenship of a free person of the African race, no one supposes that a slave is a citizen of the State or of the United States. If, therefore, the acts done by his owner did not make them free persons, he is still a slave, and certainly incapable of suing in the character of a citizen. The principle of law is too well settled to be disputed, that a court can give no judgment for either party, where it has no jurisdiction; and if, upon the showing of Scott himself, it appeared that he was still a slave, the case ought to have been dismissed, and the judgment against him and in favor of the defendant for costs, is, like that on the plea in abatement, erroneous, and the suit ought to have been dismissed by the Circuit Court for want of jurisdiction in that court.
But, before we proceed to examine this part of the case, it may be proper to notice an objection taken to the judicial authority of this court to decide it; and it has been said, that as this court has decided against the jurisdiction of the Circuit Court on the plea in abatement, it has no right to examine any question presented by the exception; and that anything it may say upon that part of the case will be extra-judicial, and mere obiter dicta. This is a manifest mistake; there can be no doubt as to the jurisdiction of this court to revise the judgment of a Circuit Court, and to reverse it for any error apparent on the record, whether it be the error of giving judgment in a case over which it had no jurisdiction, or any other material error; and this, too, whether there is a plea in abatement or not.
The objection appears to have arisen from confounding writs of error to a State court, with writs of error to a Circuit Court of the United States. Undoubtedly, upon a writ of error to a State court, unless the record shows a case that gives jurisdiction, the case must be dismissed for want of jurisdiction in this court. And if it is dismissed on that ground, we have no right to examine and decide upon any question presented by the bill of exceptions, or any other part of the record.
But writs of error to a State court, and to a Circuit Court of the United States, are regulated by different laws, and stand upon entirely different principles. And in a writ of error to a Circuit Court of the United States, the whole record is before this court for examination and decision; and if the sum in controversy is large enough to give jurisdiction, it is not only the right, but it is the judicial duty of the court, to examine the whole case as presented by the record; and if it appears upon its face that any material error or errors have been committed by the court below, it is the duty of this court to reverse the judgment, and remand the case.
And certainly an error in passing a judgment upon the merits in favor of either party, in a case which it was not authorized to try, and over which it had no jurisdiction, is as grave an error as a court can commit. The plea in abatement is not a plea to the jurisdiction of this court, but to the jurisdiction of the Circuit Court.