History of the Negro Race in America from 1619 to 1880
Chapter 81 : "'That, upon the facts agreed to by the parties, they ought to find for the p

"'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 the Supreme Court, December term, 1856."[45]

Judge Taney gave the following opinion:

"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 Const.i.tution of the United States, and as such become ent.i.tled to all the rights and privileges and immunities guaranteed by that instrument 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 Const.i.tution.

"It will be observed that the plea applies to that cla.s.s 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 emanc.i.p.ated, 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 Const.i.tution 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 cla.s.s only, that is, of those persons who are the descendants of Africans who were imported into this country and sold as slaves.

"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 inst.i.tutions, 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 const.i.tuent member of this sovereignty. The question before us is, whether the cla.s.s of persons described in the plea in abatement compose a portion of this people, and are const.i.tuent 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 'citizen' in the Const.i.tution, 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 [405] and inferior cla.s.s of beings, who had been subjugated by the dominant race, and, whether emanc.i.p.ated 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....

"In discussing this question, we must not confound the rights of citizens.h.i.+p which a State may confer within its own limits, and the rights of citizens.h.i.+p 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 of the rights and privileges of the citizen of a State, and yet not be ent.i.tled to the rights and privileges of a citizen of any other State. For, previous to the adoption of the Const.i.tution 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 Const.i.tution of the United States. Each State may still confer them upon an alien, or any one it thinks proper, or upon any cla.s.s or description of persons; yet he would not be a citizen in the sense in which that word is used in the Const.i.tution of the United States, nor ent.i.tled 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 Const.i.tution 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 Const.i.tution, 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 ent.i.tled to the rights of a citizen, and clothed with all the [406] rights and immunities which the Const.i.tution 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, pa.s.sed since the adoption of the Const.i.tution, introduce a new member into the political community created by the Const.i.tution 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 Const.i.tution brought into existence, but were intended to be excluded from it.

"The question then arises, whether the provisions of the Const.i.tution, in relation to the personal rights and privileges to which the citizen of a State should be ent.i.tled, embraced the negro African race, at that time in this country, or who might afterwards be imported, who had then or should afterwards 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 indue him with the full rights of citizens.h.i.+p in every other State without their consent. Does the Const.i.tution 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 Const.i.tution of the United States, and, consequently, was not ent.i.tled to sue in its courts."[46]

This decision of the Supreme Court on the plea in abatement that the plaintiff (a Negro, Dred Scott) was not a citizen in the sense of the word in Article iii, Sec. 2 of the Const.i.tution, was based upon an erroneous idea respecting the location of the word _citizen_ in the instrument. The premise of the court was wrong, and hence the feebleness of the reasoning and the false conclusions. Article iii, Section 2 of the Const.i.tution, extends judicial power to all cases, in law and equity, "between citizens of different States, between citizens of the same State," etc. But Article iv, Section 2, declares that "citizens of each State shall be ent.i.tled to all privileges and immunities of citizens in the several States." The plea in abatement was brought under Article iii, but all the judges, except Justice McLean, built their decision upon the word _citizen_ as it stood in Article iv.

By the const.i.tution of Ohio, adopted in 1851, free Negroes were not only denied the right to vote, but were excluded from the militia service. This law was not repealed until 1878.

Neither the const.i.tution of 1802, nor that of 1851, discriminated against free Negroes in matters of education; but separate schools have been maintained in Ohio from the beginning down to the present time, by special acts of the Legislature.

In the territory of Indiana there were quite a number of Negroes from the beginning of the century. Some were slaves. In 1806, the first Legislature, at its second session, pa.s.sed a law in reference to _executions_, as follows:

"Sec. 7. And whereas doubts have arisen whether the time of service of negroes and mulattoes, bound to service in this territory, may be sold on execution against the master, _Be it therefore enacted_ that the time of service of such negroes or mulattoes may be sold on execution against the master, in the same manner as personal estate, immediately from which sale the said negroes or mulattoes shall serve the purchaser or purchasers for the residue of their time of service; and the said purchasers and negroes and mulattoes shall have the same remedies against each other as by the laws of the territory are mutually given them in the several cases therein mentioned, and the purchasers shall be obliged to fulfil to the said servants the contracts they made with the masters, as expressed in the indenture or agreement of servitude, and shall, for want of such contract, be obliged to give him or them their freedom due at the end of the time of service, as expressed in the second section of the law of the territory, ent.i.tled 'Law concerning servants,' adopted the twenty-second day of September, eighteen hundred and three. This act shall commence and be in force from and after the first day of February next."[47]

This was bold legislation; but it was not all. Negroes were required to carry pa.s.ses, as in the slave States. And on the 17th of September, 1807, "_An Act for the Introduction of Negroes and Mulattoes into_"

the territory was pa.s.sed.

"Sec. 1. That it shall and may be lawful for any person being the owner or possessor of any negroes or mulattoes of and above the age of fifteen years, and owning service and labor as slaves in any of the States or territories of the United States, or for any citizens of the said States or territories purchasing the same to bring the said negroes and mulattoes into this territory.

"Sec. 2. The owners or possessors of any negroes or mulattoes as aforesaid, and bringing the same into this territory, shall, within thirty days after such removal, go with the same before the clerk of Court of Common Pleas of proper county, and in presence of said clerk the said owner or possessor shall determine and agree to, and with his or her negro or mulatto, upon the term of years which the said negro or mulatto will and shall serve his or her said owner or possessor, and the clerk shall make a record.

"Sec. 3. If any negro or mulatto removed into this territory as aforesaid shall refuse to serve his or her owner as aforesaid, it shall and may be lawful for such person, within sixty days thereafter, to remove the said negro or mulatto to any place [to]

which by the laws of the United States or territory from whence such owner or possessor may [have come] or shall be authorized to remove the same. (As quoted in Phoebe v. Jay, Breese, Ill. R., 208.)

"Sec. 4. An owner failing to act as required in the preceding sections should forfeit all claim and right to the service of such negro or mulatto.

"Sec. 5. Declares that any person removing into this territory and being the owner or possessor of any negro or mulatto as aforesaid, under the age of fifteen years, or if any person shall hereafter acquire a property in any negro or mulatto under the age aforesaid, and who shall bring them into this territory, it shall and may be lawful for such person, owner, or possessor to hold the said negro to service or labor--the males until they arrive at the age of thirty-five, and females until they arrive at the age of thirty-two years.

"Sec. 6. Provides that any person removing any negro or mulatto into this territory under the authority of the preceding sections, it shall be inc.u.mbent on such person, within thirty days thereafter, to register the name and age of such negro or mulatto with the clerk of the Court of Common Pleas for the proper county.

"Sec. 7. Requires new registry on removal to another county."

"Secs. 8, 9. Penalties by fine for breach of this act.

"Sec. 10. Clerk to take security that negro be not chargeable when his term expires.

"Sec. 12. Fees.

"Sec. 13. That the children born in said territory of a parent of color owning service or labor, by _indenture_ according to law, should serve the master or mistress of such parent--the males until the age of thirty, and the females until the age of twenty-eight years. (As quoted in Boon v. Juliet, 1836, 1, Scammon, 258.)

"Sec. 14. That an act respecting apprentices misused by their master or mistress should apply to such children. (See the statute cited in Rankin v. Lydia, 2, A. K. Marshall's Ky., 467; and in Jarrot v. Jarrot, 2, Gilman, 19.) This act was repealed in 1810."[48]

Under the first const.i.tution of Indiana, adopted in 1816, Negroes were not debarred from the elective franchise. In Article i, Section 1, of the Bill of Rights, this remarkable language occurs: "That all men are born equally free and independent, and have certain natural, inherent, and unalienable rights," etc. But the very next year the primal rights of the Negro as a citizen were struck down by the following: "No negro, mulatto, or Indian shall be a witness, except in pleas of the State against negroes, mulattoes, or Indians, or in civil cases where negroes, mulattoes, or Indians alone shall be parties."[49]

In 1819 [March 22d], an execution law was pa.s.sed by which the time of service of Negroes could be sold on execution against the master, in the same manner as personal estate. From the time of the sale, such Negroes or Mulattoes were compelled to serve the buyer until the expiration of the term of service.[50]

In 1831, an act regulating free Negroes and Mulattoes, servants and slaves, declared:

"Sec. 1. Negroes and mulattoes emigrating into the State shall give bond, etc.

"Sec. 2. In failure of this, such negro, etc., may be hired out and the proceeds applied to his benefit, or removed from the State under the poor law.

"Sec. 3. Penalty for committing such without authority.

"Sec. 4. Penalty for harboring such who have not given bond.

"Sec. 5. That the right of any persons to pa.s.s through this State, with his, her, or their negroes or mulattoes, servant or servants, when emigrating or travelling to any other State or territory or country, making no unnecessary delay, is hereby declared and secured."[51]

In 1851 the new const.i.tution limited the right of franchise to "white male citizens of the United States." "No negro or mulatto shall have the right of suffrage."

"Art. xii., Sec. 1. The militia shall consist of all able-bodied white male persons, between, etc.

"Art. xiii., Sec. 1. No negro or mulatto shall come into, or settle in the State after the adoption of this Const.i.tution.

"Sec. 2. All contracts made with any negro or mulatto coming into the State contrary to the foregoing section shall be void; and any person who shall employ such negro or mulatto or encourage him to remain in the State shall be fined not less than ten, nor more than five hundred dollars.

"Sec. 3. All fines which may be collected for a violation of the provisions of this article, or of any law hereafter pa.s.sed for the purpose of carrying the same into execution, shall be set apart and appropriated for the colonization of such negroes and mulattoes and their descendants as may be in the State at the adoption of this Const.i.tution and may be willing to emigrate.

"Sec. 4. The General a.s.sembly shall pa.s.s laws to carry out the provisions of this article."

Other severe laws were enacted calculated to modify and limit the rights of free persons of color.

The first const.i.tution of the State of Illinois, adopted in 1818, limited the [Art. ii, Sec. 27] elective franchise to "free white"