Part 16 (2/2)
So in trespa.s.s for taking and carrying away the plaintiff's goods, the defendant pleaded that the plaintiff never had any goods. The court said, ”this is an infallible argument that the defendant is not guilty, but it is no plea.” (Dyer, a 43.)
In ejectment, the defendant pleaded a surrender of a copyhold by the hand of Fosset, the steward. The plaintiff replied, that Fosset was not steward. The court held this no issue, for it traversed the surrender only argumentatively. (Cro. Elis., 260.)
In these cases, and many others reported in the books, the inferences from the facts stated were irresistible. But the court held they did not, when demurred to, amount to such inferable facts. In the case at bar, the inference that the defendant was a slave at the time of action brought, even if it can be made at all, from the fact that his parents were slaves, is certainly not a necessary inference. This case, therefore, is like that of Digby _v._ Alexander, (8 Bing., 116.) In that case, the defendant pleaded many facts strongly tending to show that he was once Earl of Stirling; but as there was no positive allegation that he was so at the time of action brought, and as every fact averred might be true, and yet the defendant not have been Earl of Stirling at the time of action brought, the plea was held to be insufficient.
A lawful seizin of land is presumed to continue. But if, in an action of trespa.s.s _quare clausum_, the defendant were to plead that he was lawfully seized of the _locus in quo_, one month before the time of the alleged trespa.s.s, I should have no doubt it would be a bad plea.
(See Mollan _v._ Torrance, 9 Wheat., 537.) So if a plea to the jurisdiction, instead of alleging that the plaintiff was a citizen of the same State as the defendant, were to allege that the plaintiff's ancestors were citizens of that State, I think the plea could not be supported. My judgment would be, as it is in this case, that if the defendant meant to aver a particular substantive fact, as existing at the time of action brought, he must do it directly and explicitly, and not by way of inference from certain other averments, which are quite consistent with the contrary hypothesis. I cannot, therefore, treat this plea as containing an averment that the plaintiff himself was a slave at the time of action brought; and the inquiry recurs, whether the facts, that he is of African descent, and that his parents were once slaves, are necessarily inconsistent with his own citizens.h.i.+p in the State of Missouri, within the meaning of the Const.i.tution and laws of the United States.
In Ga.s.sies _v._ Ballon, (6 Pet., 761,) the defendant was described on the record as a naturalized citizen of the United States, residing in Louisiana. The court held this equivalent to an averment that the defendant was a citizen of Louisiana; because a citizen of the United States, residing in any State of the Union, is, for purposes of jurisdiction, a citizen of that State. Now, the plea to the jurisdiction in this case does not controvert the fact that the plaintiff resided in Missouri at the date of the writ. If he did then reside there, and was also a citizen of the United States, no provisions contained in the Const.i.tution or laws of Missouri can deprive the plaintiff of his right to sue citizens of States other than Missouri, in the courts of the United States.
So that, under the allegations contained in this plea, and admitted by the demurrer, the question is, whether any person of African descent, whose ancestors were sold as slaves in the United States, can be a citizen of the United States. If any such person can be a citizen, this plaintiff has the right to the judgment of the court that he is so; for no cause is shown by the plea why he is not so, except his descent and the slavery of his ancestors.
The first section of the second article of the Const.i.tution uses the language, ”a citizen of the United States at the time of the adoption of the Const.i.tution.” One mode of approaching this question is, to inquire who were citizens of the United States at the time of the adoption of the Const.i.tution.
Citizens of the United States at the time of the adoption of the Const.i.tution can have been no other than citizens of the United States under the Confederation. By the Articles of Confederation, a Government was organized, the style whereof was, ”The United States of America.” This Government was in existence when the Const.i.tution was framed and proposed for adoption, and was to be superseded by the new Government of the United States of America, organized under the Const.i.tution. When, therefore, the Const.i.tution speaks of citizens.h.i.+p of the United States, existing at the time of the adoption of the Const.i.tution, it must necessarily refer to citizens.h.i.+p under the Government which existed prior to and at the time of such adoption.
Without going into any question concerning the powers of the Confederation to govern the territory of the United States out of the limits of the States, and consequently to sustain the relation of Government and citizen in respect to the inhabitants of such territory, it may safely be said that the citizens of the several States were citizens of the United States under the Confederation.
That Government was simply a confederacy of the several States, possessing a few defined powers over subjects of general concern, each State retaining every power, jurisdiction, and right, not expressly delegated to the United States in Congress a.s.sembled. And no power was thus delegated to the Government of the Confederation, to act on any question of citizens.h.i.+p, or to make any rules in respect thereto. The whole matter was left to stand upon the action of the several States, and to the natural consequence of such action, that the citizens of each State should be citizens of that Confederacy into which that State had entered, the style whereof was, ”The United States of America.”
To determine whether any free persons, descended from Africans held in slavery, were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Const.i.tution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation, at the time of the adoption of the Const.i.tution.
Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hamps.h.i.+re, Ma.s.sachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.
The Supreme Court of North Carolina, in the case of the State _v._ Manuel, (4 Dev. and Bat., 20,) has declared the law of that State on this subject, in terms which I believe to be as sound law in the other States I have enumerated, as it was in North Carolina.
”According to the laws of this State,” says Judge Gaston in delivering the opinion of the court, ”all human beings within it, who are not slaves, fall within one of two cla.s.ses. Whatever distinctions may have existed in the Roman laws between citizens and free inhabitants, they are unknown to our inst.i.tutions. Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects--those born out of his allegiance were aliens. Slavery did not exist in England, but it did in the British colonies. Slaves were not in legal parlance persons, but property. The moment the incapacity, the disqualification of slavery, was removed, they became persons, and were then either British subjects, or not British subjects, according as they were or were not born within the allegiance of the British King. Upon the Revolution, no other change took place in the laws of North Carolina than was consequent on the transition from a colony dependent on a European King, to a free and sovereign State. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the State, remained aliens. Slaves, manumitted here, became freemen, and therefore, if born within North Carolina, are citizens of North Carolina, and all free persons born within the State are born citizens of the State. The Const.i.tution extended the elective franchise to every freeman who had arrived at the age of twenty-one, and paid a public tax; and it is a matter of universal notoriety, that, under it, free persons, without regard to color, claimed and exercised the franchise, until it was taken from free men of color a few years since by our amended Const.i.tution.”
In the State _v._ Newcomb, (5 Iredell's R., 253,) decided in 1844, the same court referred to this case of the State _v._ Manuel, and said: ”That case underwent a very laborious investigation, both by the bar and the bench. The case was brought here by appeal, and was felt to be one of great importance in principle. It was considered with an anxiety and care worthy of the principle involved, and which give it a controlling influence and authority on all questions of a similar character.”
An argument from speculative premises, however well chosen, that the then state of opinion in the Commonwealth of Ma.s.sachusetts was not consistent with the natural rights of people of color who were born on that soil, and that they were not, by the Const.i.tution 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 Const.i.tution 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 Com. _v._ Aves, 18 Pick.
R., 210.)
The Const.i.tution of New Hamps.h.i.+re conferred the elective franchise upon ”every inhabitant of the State having the necessary qualifications,” of which color or descent was not one.
The Const.i.tution 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. (See Con. of N.Y., Art. 2, Rev. Stats. of N.Y., vol. 1, p. 126.)
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 Const.i.tution 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 Const.i.tution, restricts the right to vote to white male citizens. But these changes can have no other effect upon the present inquiry, except to show, that before they were made, no such restrictions existed; and colored in common with white persons, were not only citizens of those States, but ent.i.tled to the elective franchise on the same qualifications as white persons, as they now are in New Hamps.h.i.+re and Ma.s.sachusetts. I shall not enter into an examination of the existing opinions of that period respecting the African race, nor into any discussion concerning the meaning of those who a.s.serted, in the Declaration of Independence, that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. My own opinion is, that a calm comparison of these a.s.sertions of universal abstract truths, and of their own individual opinions and acts, would not leave these men under any reproach of inconsistency; that the great truths they a.s.serted on that solemn occasion, they were ready and anxious to make effectual, wherever a necessary regard to circ.u.mstances, which no statesman can disregard without producing more evil than good, would allow; and that it would not be just to them, nor true in itself, to allege that they intended to say that the Creator of all men had endowed the white race, exclusively, with the great natural rights which the Declaration of Independence a.s.serts. But this is not the place to vindicate their memory. As I conceive, we should deal here, not with such disputes, if there can be a dispute concerning this subject, but with those substantial facts evinced by the written Const.i.tutions of States, and by the notorious practice under them. And they show, in a manner which no argument can obscure, that in some of the original thirteen States, free colored persons, before and at the time of the formation of the Const.i.tution, were citizens of those States.
The fourth of the fundamental articles of the Confederation was as follows: ”The free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be ent.i.tled to all the privileges and immunities of free citizens in the several States.”
The fact that free persons of color were citizens of some of the several States, and the consequence, that this fourth article of the Confederation would have the effect to confer on such persons the privileges and immunities of general citizens.h.i.+p, were not only known to those who framed and adopted those articles, but the evidence is decisive, that the fourth article was intended to have that effect, and that more restricted language, which would have excluded such persons, was deliberately and purposely rejected.
On the 25th of June, 1778, the Articles of Confederation being under consideration by the Congress, the delegates from South Carolina moved to amend this fourth article, by inserting after the word ”free,” and before the word ”inhabitants,” the word ”white,” so that the privileges and immunities of general citizens.h.i.+p would be secured only to white persons. Two States voted for the amendment, eight States against it, and the vote of one State was divided. The language of the article stood unchanged, and both by its terms of inclusion, ”free inhabitants,” and the strong implication from its terms of exclusion, ”paupers, vagabonds, and fugitives from justice,” who alone were excepted, it is clear, that under the Confederation, and at the time of the adoption of the Const.i.tution, free colored persons of African descent might be, and, by reason of their citizens.h.i.+p in certain States, were ent.i.tled to the privileges and immunities of general citizens.h.i.+p of the United States.
Did the Const.i.tution of the United States deprive them or their descendants of citizens.h.i.+p?
<script>