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“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 afterwards 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.” – pp. 407, 408.
How much of this is fact, and how much assumption, we must leave to the reader's judgment. The Chief Justice proceeds to review the legislation of the Colonies before, and of the States just after, the Revolution, to show that as a race the blacks were under many disabilities, and were subject to laws which constantly distinguished them from whites. Coming to the Constitution itself, he claims that the two provisions in it which alone allude to the race, — that permitting the importation of slaves until 1808, and that providing for the case of fugitive slaves, — "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,” he adds, “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." (p. 411.)
We have ventured to italicize a few words here, which show how strongly the judgment may be biassed by an habitual mode of construction engrafted upon simple words. The whole argument of the case hangs upon the foregone conclusion, that the restriction of the slave-trade to the year 1808 supposes all negroes to belong to a subject race, and that the provision for returning “fugitives from labor” is an assertion that a black man can have none of the personal rights so carefully provided for the citizen." The argument that the words 6 free inhabitants” in the Articles of Confederation, and “ citizens” in the Constitution, “ could not have been intended to refer to persons of color,” derives its whole weight from the same spirit and mode of interpretation. And so also the citations of Congressional legislation, which affect such persons with disabilities. It is to be recollected that all that any one wishes to establish is, that a man of color may be a citizen of a State. If that is admitted, he may sue a citizen of another State in a court of the United States. But in order to show that it is impossible for individual blacks to become citizens, we are referred to laws in which free blacks are put under disabilities similar to those of slaves; and, in much of the reasoning, the two classes are wholly confounded. Thus the Chief Justice says (p. 425): “ The only two provisions (of the Constitution) which point to them, treat them as property, and make it the duty of the government to protect it.” And he goes on, on the next page,
say: government of the United States had no right to interfere for any
other purpose but that of protecting the rights of the
owner.” The judge then examines the legislation of Congress to find a number of provisions that are supposed to lead to the conclusion that the words “ citizen” and “people," in the Constitution, are limited by some understood, but not expressed, restriction of color. We shall speak of these briefly below.
In a large part of the Union it is undoubtedly a very natural proposition to state that this Union was “only made for white persons.” It is so natural here to believe that persons of the black race may be citizens, and so notorious that they execute all the functions of citizens, and have done so from the foundation of the government, that we do not care to go into the argument on either side in detail. Of the two dissenting judges, Mr. Justice McLean treats this question very briefly. Mr. Justice Curtis considers it very thoroughly, sustaining these points :
66 1st. That the free native-born citizens of each State are citizens of the United States.
“ 2d. That, as free colored persons born within some of the States are citizens of those States, such persons are also citizens of the United States.
“ 3d. That every such citizen, residing in any State, has the right to sue, and is liable to be sued, in the federal courts, as a citizen of that State in which he resides."
In the course of an historical review to show that negroes were citizens at the time of the adoption of the Constitution, we find the following conclusive passages :
“ An argument from speculative premises, however well chosen, that the then state of opinion in the Commonwealth of Massachusetts was not consistent with the natural rights of those people who were born on that soil, and that they were not by the Constitution of 1780 of that State admitted to the condition of citizens, would be received with surprise by the people of that State, who know their own political history. It is true beyond all controversy, that persons of color descended from African slaves were, by that Constitution, made citizens of the State; and such of them as have had the necessary qualifications have held and exercised the elective franchise, as citizens, from that time to the present. (See Commonwealth vs. Aves, 18 Pick. R.)
“ The Constitution of New Hampshire conferred the elective fran
chise upon every inhabitant of the State having the necessary qualifications, of which color or descent was not one.
“ The Constitution of New York gave the right to vote to every male inhabitant who shall have resided,' &c., making no discrimination between free colored persons and others.
“ That of New Jersey, to all inhabitants of this Colony, of full age, who are worth £ 50 proclamation money, clear estate.'
“New York by its Constitution of 1820 required colored persons to have some qualifications as prerequisites for voting, which white persons need not possess. And New Jersey by its present Constitution restricts the right to vote to white male citizens. But these changes can have no other effect upon the present inquiry except to show, what indeed is indisputable, that before they were made no such restrictions existed; and colored, in common with white persons, were not only citizens of those States, but entitled to the elective franchise on the same qualifications as white persons; as they now are in New Hampshire and Massachusetts.”
That the Constitution of the United States should make a change which should deprive of their citizenship any part of that “people of the United States” by whom it was established, would have been a strange thing, and Judge Curtis says:
"I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption; nor any power.enabling Congress to disfranchise persons born on the soil of any State, and entitled to citizenship of such State by its Constitution and laws.”—p. 576.
With regard to the deductions that had been made from the fact that the naturalization laws apply only to white aliens, it is very properly replied, that it only shows that Congress did not think proper to apply the rule generally to colored aliens. The Constitution has not excluded them, but, by leaving to Congress the power to make colored persons citizens by naturalization, shows that color is not a necessary qualification for citizenship. To show that colored persons have been made citizens of the United States, under the Constitution, Judge Curtis quotes the Treaties with the Choctaws of September 27, 1830, Art. 14; with the Cherokees of May
23, 1836, Art. 12; and the Treaty of Guadalupe Hidalgo, February 2, 1848, Art. 8.
The same judge goes over all the instances of legislation cited by the Chief Justice in this connection, to show that there is nothing in them inconsistent with the citizenship of persons of color in some of the States, nor with their being citizens of the United States. He considers their tendency to be " to show that in the apprehension of their framers color was not a necessary qualification of citizenship.”
In short, — for we cannot pause longer upon the details of these distinctions, — we cannot shut our eyes to the fact, however willing or accustomed the majority of the court may be to do so, that, even in the Southern States, at least a qualified citizenship is, and always has been, allowed to men of the black races. The extremest slavery legislation recognizes the existence of a class of people (whose abbreviated title, “f. m. c.” or “f. w. c.," appears in almost every Southern newspaper) who are blacks, but not slaves. Now the moment that the laws of a State admit that there is such a person as
“ free man of color,” a “free woman of color,” the courts of that State must be open in some forın for their relief if they are wronged, and to compel them to right the wrongs they may have done to others. * Accordingly, “ free men of color" have always “sued and been sued” in Southern courts; and until recently it has been the boast of slaveholding States that suits by colored persons, even for freedom, could be brought in their courts, and not only brought, but sustained. It is not necessary to show that such persons are citizens in every extreme use of that word. They are citizens enough to claim the protection of the court. Now, the Constitution of the United States makes no citizenship of the “United States” which is not founded upon citizenship in some certain State. But it provides that the federal jurisdiction
may be exercised between citizens of different States." If then this provision for the nature of jurisdiction is to have any practical meaning, it must be this, – that a person who has such rights of citizenship that he might sue and be sued in his own State, may, if the party defendant is a citizen of another State, sue in the courts of the United States. We