Part 2 (2/2)

It would be impossible to enumerate and compress in the s.p.a.ce usually allotted to an opinion of a court, the various laws, marking the condition of this race, which were pa.s.sed from time to time after the Revolution, and before and since the adoption of the Const.i.tution 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 1848, 2 vol., 258, note _b_,) that in no part of the country except Maine, did the African race, in point of fact, partic.i.p.ate equally with the whites in the exercise of civil and political rights.

The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Const.i.tution 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 cla.s.s of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to a.s.sume 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 Const.i.tution, they looked upon them as a portion of their const.i.tuents, 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 Const.i.tution which might compel them to receive them in that character from another State. For if they were so received, and ent.i.tled 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 recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pa.s.s or pa.s.sport, 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 Const.i.tution 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 ent.i.tled to demand equal rights and privileges with their own people, within their own territories. The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of _naturalization_ is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate cla.s.s. 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 cla.s.s 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 Const.i.tution 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, pa.s.sed since the Const.i.tution was adopted, can give any right of citizens.h.i.+p outside of its own territory.

A clause similar to the one in the Const.i.tution, 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 ent.i.tled to all the privileges and immunities of free citizens in the several States.”

It will be observed, that under this Confederation, each State had the right to decide for itself, and in its own tribunals, whom it would acknowledge as a free inhabitant of another State. The term _free inhabitant_, in the generality of its terms, would certainly include one of the African race who had been manumitted. But no example, we think, can be found of his admission to all the privileges of citizens.h.i.+p in any State of the Union after these Articles were formed, and while they continued in force. And, notwithstanding the generality of the words ”free inhabitants,” it is very clear that, according to their accepted meaning in that day, they did not include the African race, whether free or not: for the fifth section of the ninth article provides that Congress should have the power ”to agree upon the number of land forces to be raised, and to make requisitions from each State for its quota in proportion to the number of _white_ inhabitants in such State, which requisition should be binding.”

Words could hardly have been used which more strongly mark the line of distinction between the citizen and the subject; the free and the subjugated races. The latter were not even counted when the inhabitants of a State were to be embodied in proportion to its numbers for the general defence. And it cannot for a moment be supposed, that a cla.s.s 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 Const.i.tution, yet the comprehensive word _inhabitant_, which might be construed to include an emanc.i.p.ated 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 subst.i.tuted 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 Const.i.tution was adopted; and also every description of persons who were not fully recognised 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 ma.s.s of proof we have still to add, that Congress has repeatedly legislated upon the same construction of the Const.i.tution that we have given. Three laws, two of which were pa.s.sed 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 a.s.sisted in framing the Const.i.tution, 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 pa.s.sed at the second session of the first Congress, March 26, 1790, and confines the right of becoming citizens ”_to aliens being free white persons_.”

Now, the Const.i.tution does not limit the power of Congress in this respect to white persons. And they may, if they think proper, authorize the naturalization of any one, of any color, who was born under allegiance to another Government. But the language of the law above quoted, shows that citizens.h.i.+p at that time was perfectly understood to be confined to the white race; and that they alone const.i.tuted 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 Const.i.tution 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 pa.s.sed in 1792, at the first session of the second Congress. The language of this law is equally plain and significant with the one just mentioned. It directs that every ”free able-bodied white male citizen” shall be enrolled in the militia. The word _white_ is evidently used to exclude the African race, and the word ”citizen” to exclude unnaturalized foreigners; the latter forming no part of the sovereignty, owing it no allegiance, and therefore under no obligation to defend it. The African race, however, born in the country, did owe allegiance to the Government, whether they were slave or free; but it is repudiated, and rejected from the duties and obligations of citizens.h.i.+p in marked language.

The third act to which we have alluded is even still more decisive; it was pa.s.sed as late as 1813, (2 Stat., 809,) and it provides: ”That from and after the termination of the war in which the United States are now engaged with Great Britain, it shall not be lawful to employ, on board of any public or private vessels of the United States, any person or persons except citizens of the United States, _or_ persons of color, natives of the United States.”

Here the line of distinction is drawn in express words. Persons of color, in the judgment of Congress, were not included in the word citizens, and they are described as another and different cla.s.s of persons, and authorized to be employed, if born in the United States.

And even as late as 1820, (chap. 104, sec. 8,) in the charter to the city of Was.h.i.+ngton, the corporation is authorized ”to restrain and prohibit the nightly and other disorderly meetings of slaves, free negroes, and mulattoes,” thus a.s.sociating them together in its legislation; and after prescribing the punishment that may be inflicted on the slaves, proceeds in the following words: ”And to punish such free negroes and mulattoes by penalties not exceeding twenty dollars for any one offence; and in case of the inability of any such free negro or mulatto to pay any such penalty and cost thereon, to cause him or her to be confined to labor for any time not exceeding six calendar months.” And in a subsequent part of the same section, the act authorizes the corporation ”to prescribe the terms and conditions upon which free negroes and mulattoes may reside in the city.”

This law, like the laws of the States, shows that this cla.s.s of persons were governed by special legislation directed expressly to them, and always connected with provisions for the government of slaves, and not with those for the government of free white citizens.

And after such an uniform course of legislation as we have stated, by the colonies, by the States, and by Congress, running through a period of more than a century, it would seem that to call persons thus marked and stigmatized, ”citizens” of the United States, ”fellow-citizens,” a const.i.tuent 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 1821, and he decided that the words ”citizens of the United States” were used in the acts of Congress in the same sense as in the Const.i.tution; and that free persons of color were not citizens, within the meaning of the Const.i.tution and laws; and this opinion has been confirmed by that of the late Attorney General, Caleb Cus.h.i.+ng, in a recent case, and acted upon by the Secretary of State, who refused to grant pa.s.sports to them as ”citizens of the United States.”

But it is said that a person may be a citizen, and ent.i.tled to that character, although he does not possess all the rights which may belong to other citizens; as, for example, the right to vote, or to hold particular offices; and that yet, when he goes into another State, he is ent.i.tled to be recognised there as a citizen, although the State may measure his rights by the rights which it allows to persons of a like character or cla.s.s resident in the State, and refuse to him the full rights of citizens.h.i.+p.

This argument overlooks the language of the provision in the Const.i.tution 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 ent.i.tled 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 Const.i.tution giving privileges and immunities in other States, does not apply to them.

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