Part 2 (1/2)
This state of public opinion had undergone no change when the Const.i.tution 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 Const.i.tution which point directly and specifically to the negro race as a separate cla.s.s 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 Const.i.tution. 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 Const.i.tution; 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 emanc.i.p.ated 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 Const.i.tution 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 Const.i.tution 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 acc.u.mulated 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 emanc.i.p.ated as ent.i.tled 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 pa.s.sed after the Declaration of Independence and before the Const.i.tution 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 cla.s.s, in the same spirit with the Maryland law which we have before quoted. They have continued to treat them as an inferior cla.s.s, 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 Const.i.tution of the United States; and the correctness of this decision is recognised, and the same doctrine affirmed, in 1 Meigs'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, Ma.s.sachusetts, in 1786, pa.s.sed 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 b.a.s.t.a.r.dy. 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 pa.s.sed in October, 1788, about nine months after the State had ratified and adopted the present Const.i.tution of the United 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 Const.i.tution, 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 Const.i.tution, 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 pa.s.sed 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 pa.s.s 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 a.s.signing 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 pa.s.sed 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 pa.s.s 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 pa.s.s, and shall be stopped, seized, or taken up, he shall pay all charges arising thereby. And this law was in full operation when the Const.i.tution of the United States was adopted, and was not repealed till 1797. So that up to that time free negroes and mulattoes were a.s.sociated with servants and slaves in the police regulations established by the laws of the State.
And again, in 1833, Connecticut pa.s.sed 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 inst.i.tution, 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 inst.i.tution might be.
And it appears by the case of Crandall _v._ The State, reported in 10 Conn. Rep., 340, that upon an information filed against Prudence Crandall for a violation of this law, one of the points raised in the defence was, that the law was a violation of the Const.i.tution of the United States; and that the persons instructed, although of the African race, were citizens of other States, and therefore ent.i.tled 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 Const.i.tution of the United States, and were not therefore ent.i.tled 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 Const.i.tution 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 pa.s.sed 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 pa.s.s on to other considerations.
By the laws of New Hamps.h.i.+re, collected and finally pa.s.sed in 1815, no one was permitted to be enrolled in the militia of the State, but free white citizens; and the same provision is found in a subsequent collection of the laws, made in 1855. Nothing could more strongly mark the entire repudiation of the African race. The alien is excluded, because, being born in a foreign country, he cannot be a member of the community until he is naturalized. But why are the African race, born in the State, not permitted to share in one of the highest duties of the citizen? The answer is obvious; he is not, by the inst.i.tutions 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, pa.s.sed 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.