Part 17 (2/2)

But, further: though, as I shall presently more fully state, I do not think the enjoyment of the elective franchise essential to citizens.h.i.+p, there can be no doubt it is one of the chiefest attributes of citizens.h.i.+p under the American Const.i.tutions; and the just and const.i.tutional possession of this right is decisive evidence of citizens.h.i.+p. The provisions made by a Const.i.tution on this subject must therefore be looked to as bearing directly on the question what persons are citizens under that Const.i.tution; and as being decisive, to this extent, that all such persons as are allowed by the Const.i.tution to exercise the elective franchise, and thus to partic.i.p.ate in the Government of the United States, must be deemed citizens of the United States.

Here, again, the consideration presses itself upon us, that if there was designed to be a particular cla.s.s of native-born persons within the States, deriving their citizens.h.i.+p from the Const.i.tution and laws of the United States, they should at least have been referred to as those by whom the President and House of Representatives were to be elected, and to whom they should be responsible.

Instead of that, we again find this subject referred to the laws of the several States. The electors of President are to be appointed in such manner as the Legislature of each State may direct, and the qualifications of electors of members of the House of Representatives shall be the same as for electors of the most numerous branch of the State Legislature.

Laying aside, then, the case of aliens, concerning which the Const.i.tution of the United States has provided, and confining our view to free persons born within the several States, we find that the Const.i.tution has recognised the general principle of public law, that allegiance and citizens.h.i.+p depend on the place of birth; that it has not attempted practically to apply this principle by designating the particular cla.s.ses of persons who should or should not come under it; that when we turn to the Const.i.tution for an answer to the question, what free persons, born within the several States, are citizens of the United States, the only answer we can receive from any of its express provisions is, the citizens of the several States are to enjoy the privileges and immunities of citizens in every State, and their franchise as electors under the Const.i.tution depends on their citizens.h.i.+p in the several States. Add to this, that the Const.i.tution was ordained by the citizens of the several States; that they were ”the people of the United States,” for whom and whose posterity the Government was declared in the preamble of the Const.i.tution to be made; that each of them was ”a citizen of the United States at the time of the adoption of the Const.i.tution,” within the meaning of those words in that instrument; that by them the Government was to be and was in fact organized; and that no power is conferred on the Government of the Union to discriminate between them, or to disfranchise any of them--the necessary conclusion is, that those persons born within the several States, who, by force of their respective Const.i.tutions and laws, are citizens of the State, are thereby citizens of the United States.

It may be proper here to notice some supposed objections to this view of the subject.

It has been often a.s.serted that the Const.i.tution was made exclusively by and for the white race. It has already been shown that in five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Const.i.tution was ordained and established. If so, it is not true, in point of fact, that the Const.i.tution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opinion, not only an a.s.sumption not warranted by anything in the Const.i.tution, but contradicted by its opening declaration, that it was ordained and established, by the people of the United States, for themselves and their posterity. And as free colored persons were then citizens of at least five States, and so in every sense part of the people of the United States, they were among those for whom and whose posterity the Const.i.tution was ordained and established.

Again, it has been objected, that if the Const.i.tution has left to the several States the rightful power to determine who of their inhabitants shall be citizens of the United States, the States may make aliens citizens.

The answer is obvious. The Const.i.tution has left to the States the determination what persons, born within their respective limits, shall acquire by birth citizens.h.i.+p of the United States; it has not left to them any power to prescribe any rule for the removal of the disabilities of alienage. This power is exclusively in Congress.

It has been further objected, that if free colored persons, born within a particular State, and made citizens of that State by its Const.i.tution and laws, are thereby made citizens of the United States, then, under the second section of the fourth article of the Const.i.tution, such persons would be ent.i.tled to all the privileges and immunities of citizens in the several States; and if so, then colored persons could vote, and be eligible to not only Federal offices, but offices even in those States whose Const.i.tutions and laws disqualify colored persons from voting or being elected to office.

But this position rests upon an a.s.sumption which I deem untenable. Its basis is, that no one can be deemed a citizen of the United States who is not ent.i.tled to enjoy all the privileges and franchises which are conferred on any citizen. (See 1 Lit. Kentucky R., 326.) That this is not true, under the Const.i.tution of the United States, seems to me clear.

A naturalized citizen cannot be President of the United States, nor a Senator till after the lapse of nine years, nor a Representative till after the lapse of seven years, from his naturalization. Yet, as soon as naturalized, he is certainly a citizen of the United States. Nor is any inhabitant of the District of Columbia, or of either of the Territories, eligible to the office of Senator or Representative in Congress, though they may be citizens of the United States. So, in all the States, numerous persons, though citizens, cannot vote, or cannot hold office, either on account of their age, or s.e.x, or the want of the necessary legal qualifications. The truth is, that citizens.h.i.+p, under the Const.i.tution of the United States, is not dependent on the possession of any particular political or even of all civil rights; and any attempt so to define it must lead to error. To what citizens the elective franchise shall be confided, is a question to be determined by each State, in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way.

One may confine the right of suffrage to white male citizens; another may extend it to colored persons and females; one may allow all persons above a prescribed age to convey property and transact business; another may exclude married women. But whether native-born women, or persons under age, or under guardians.h.i.+p because insane or spendthrifts, be excluded from voting or holding office, or allowed to do so, I apprehend no one will deny that they are citizens of the United States. Besides, this clause of the Const.i.tution does not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities. They are ent.i.tled to such as belong to citizens.h.i.+p, but not to such as belong to particular citizens attended by other qualifications. Privileges and immunities which belong to certain citizens of a State, by reason of the operation of causes other than mere citizens.h.i.+p, are not conferred.

Thus, if the laws of a State require, in addition to citizens.h.i.+p of the State, some qualification for office, or the exercise of the elective franchise, citizens of all other States, coming thither to reside, and not possessing those qualifications, cannot enjoy those privileges, not because they are not to be deemed ent.i.tled to the privileges of citizens of the State in which they reside, but because they, in common with the native-born citizens of that State, must have the qualifications prescribed by law for the enjoyment of such privileges, under its Const.i.tution and laws. It rests with the States themselves so to frame their Const.i.tutions and laws as not to attach a particular privilege or immunity to mere naked citizens.h.i.+p. If one of the States will not deny to any of its own citizens a particular privilege or immunity, if it confer it on all of them by reason of mere naked citizens.h.i.+p, then it may be claimed by every citizen of each State by force of the Const.i.tution; and it must be borne in mind, that the difficulties which attend the allowance of the claims of colored persons to be citizens of the United States are not avoided by saying that, though each State may make them its citizens, they are not thereby made citizens of the United States, because the privileges of general citizens.h.i.+p are secured to the citizens of each State. The language of the Const.i.tution is, ”The citizens of each State shall be ent.i.tled to all privileges and immunities of citizens in the several States.” If each State may make such persons its citizens, they become, as such, ent.i.tled to the benefits of this article, if there be a native-born citizens.h.i.+p of the United States distinct from a native-born citizens.h.i.+p of the several States.

There is one view of this article ent.i.tled to consideration in this connection. It is manifestly copied from the fourth of the Articles of Confederation, with only slight changes of phraseology, which render its meaning more precise, and dropping the clause which excluded paupers, vagabonds, and fugitives from justice, probably because these cases could be dealt with under the police powers of the States, and a special provision therefor was not necessary. It has been suggested, that in adopting it into the Const.i.tution, the words ”free inhabitants” were changed for the word ”citizens.” An examination of the forms of expression commonly used in the State papers of that day, and an attention to the substance of this article of the Confederation, will show that the words ”free inhabitants,” as then used, were synonymous with citizens. When the Articles of Confederation were adopted, we were in the midst of the war of the Revolution, and there were very few persons then embraced in the words ”free inhabitants,” who were not born on our soil. It was not a time when many, save the children of the soil, were willing to embark their fortunes in our cause; and though there might be an inaccuracy in the uses of words to call free inhabitants citizens, it was then a technical rather than a substantial difference. If we look into the Const.i.tutions and State papers of that period, we find the inhabitants or people of these colonies, or the inhabitants of this State, or Commonwealth, employed to designate those whom we should now denominate citizens. The substance and purpose of the article prove it was in this sense it used these words: it secures to the free inhabitants of each State the privileges and immunities of free citizens in every State. It is not conceivable that the States should have agreed to extend the privileges of citizens.h.i.+p to persons not ent.i.tled to enjoy the privileges of citizens in the States where they dwelt; that under this article there was a cla.s.s of persons in some of the States, not citizens, to whom were secured all the privileges and immunities of citizens when they went into other States; and the just conclusion is, that though the Const.i.tution cured an inaccuracy of language, it left the substance of this article in the National Const.i.tution the same as it was in the Articles of Confederation.

The history of this fourth article, respecting the attempt to exclude free persons of color from its operation, has been already stated. It is reasonable to conclude that this history was known to those who framed and adopted the Const.i.tution. That under this fourth article of the Confederation, free persons of color might be ent.i.tled to the privileges of general citizens.h.i.+p, if otherwise ent.i.tled thereto, is clear. When this article was, in substance, placed in and made part of the Const.i.tution of the United States, with no change in its language calculated to exclude free colored persons from the benefit of its provisions, the presumption is, to say the least, strong, that the practical effect which it was designed to have, and did have, under the former Government, it was designed to have, and should have, under the new Government.

It may be further objected, that if free colored persons may be citizens of the United States, it depends only on the will of a master whether he will emanc.i.p.ate his slave, and thereby make him a citizen.

Not so. The master is subject to the will of the State. Whether he shall be allowed to emanc.i.p.ate his slave at all; if so, on what conditions; and what is to be the political _status_ of the freed man, depend, not on the will of the master, but on the will of the State, upon which the political _status_ of all its native-born inhabitants depends. Under the Const.i.tution of the United States, each State has retained this power of determining the political _status_ of its native-born inhabitants, and no exception thereto can be found in the Const.i.tution. And if a master in a slaveholding State should carry his slave into a free State, and there emanc.i.p.ate him, he would not thereby make him a native-born citizen of that State, and consequently no privileges could be claimed by such emanc.i.p.ated slave as a citizen of the United States. For, whatever powers the States may exercise to confer privileges of citizens.h.i.+p on persons not born on their soil, the Const.i.tution of the United States does not recognise such citizens. As has already been said, it recognises the great principle of public law, that allegiance and citizens.h.i.+p spring from the place of birth. It leaves to the States the application of that principle to individual cases. It secured to the citizens of each State the privileges and immunities of citizens in every other State. But it does not allow to the States the power to make aliens citizens, or permit one State to take persons born on the soil of another State, and, contrary to the laws and policy of the State where they were born, make them its citizens, and so citizens of the United States. No such deviation from the great rule of public law was contemplated by the Const.i.tution; and when any such attempt shall be actually made, it is to be met by applying to it those rules of law and those principles of good faith which will be sufficient to decide it, and not, in my judgment, by denying that all the free native-born inhabitants of a State, who are its citizens under its Const.i.tution and laws, are also citizens of the United States.

It has sometimes been urged that colored persons are shown not to be citizens of the United States by the fact that the naturalization laws apply only to white persons. But whether a person born in the United States be or be not a citizen, cannot depend on laws which refer only to aliens, and do not affect the _status_ of persons born in the United States. The utmost effect which can be attributed to them is, to show that Congress has not deemed it expedient generally to apply the rule to colored aliens. That they might do so, if thought fit, is clear. The Const.i.tution has not excluded them. And since that has conferred the power on Congress to naturalize colored aliens, it certainly shows color is not a necessary qualification for citizens.h.i.+p under the Const.i.tution of the United States. It may be added, that the power to make colored persons citizens of the United States, under the Const.i.tution, has been actually exercised in repeated and important instances. (See the Treaties with the Choctaws, of September 27, 1830, art. 14; with the Cherokees, of May 23, 1836, art. 12; Treaty of Guadalupe Hidalgo, February 2, 1848, art. 8.)

I do not deem it necessary to review at length the legislation of Congress having more or less bearing on the citizens.h.i.+p of colored persons. It does not seem to me to have any considerable tendency to prove that it has been considered by the legislative department of the Government, that no such persons are citizens of the United States.

Undoubtedly they have been debarred from the exercise of particular rights or privileges extended to white persons, but, I believe, always in terms which, by implication, admit they may be citizens. Thus the act of May 17, 1792, for the organization of the militia, directs the enrollment of ”every free, able-bodied, white male citizen.” An a.s.sumption that none but white persons are citizens, would be as inconsistent with the just import of this language, as that all citizens are able-bodied, or males.

So the act of February 28, 1803, (2 Stat. at Large, 205,) to prevent the importation of certain persons into States, when by the laws thereof their admission is prohibited, in its first section forbids all masters of vessels to import or bring ”any negro, mulatto, or other person of color, not being a native, _a citizen_, or registered seaman of the United States,” &c.

The acts of March 3, 1813, section 1, (2 Stat. at Large, 809,) and March 1, 1817, section 3, (3 Stat. at Large, 351,) concerning seamen, certainly imply there may be persons of color, natives of the United States, who are not citizens of the United States. This implication is undoubtedly in accordance with the fact. For not only slaves, but free persons of color, born in some of the States, are not citizens. But there is nothing in these laws inconsistent with the citizens.h.i.+p of persons of color in others of the States, nor with their being citizens of the United States.

Whether much or little weight should be attached to the particular phraseology of these and other laws, which were not pa.s.sed with any direct reference to this subject, I consider their tendency to be, as already indicated, to show that, in the apprehension of their framers, color was not a necessary qualification of citizens.h.i.+p. It would be strange, if laws were found on our statute book to that effect, when, by solemn treaties, large bodies of Mexican and North American Indians as well as free colored inhabitants of Louisiana have been admitted to citizens.h.i.+p of the United States.

In the legislative debates which preceded the admission of the State of Missouri into the Union, this question was agitated. Its result is found in the resolution of Congress, of March 5, 1821, for the admission of that State into the Union. The Const.i.tution of Missouri, under which that State applied for admission into the Union, provided, that it should be the duty of the Legislature ”to pa.s.s laws to prevent free negroes and mulattoes from coming to and settling in the State, under any pretext whatever.” One ground of objection to the admission of the State under this Const.i.tution was, that it would require the Legislature to exclude free persons of color, who would be ent.i.tled, under the second section of the fourth article of the Const.i.tution, not only to come within the State, but to enjoy there the privileges and immunities of citizens. The resolution of Congress admitting the State was upon the fundamental condition, ”that the Const.i.tution of Missouri shall never be construed to authorize the pa.s.sage of any law, and that no law shall be pa.s.sed in conformity thereto, by which any citizen of either of the States of this Union shall be excluded from the enjoyment of any of the privileges and immunities to which such citizen is ent.i.tled under the Const.i.tution of the United States.” It is true, that neither this legislative declaration, nor anything in the Const.i.tution or laws of Missouri, could confer or take away any privilege or immunity granted by the Const.i.tution. But it is also true, that it expresses the then conviction of the legislative power of the United States, that free negroes, as citizens of some of the States, might be ent.i.tled to the privileges and immunities of citizens in all the States.

The conclusions at which I have arrived on this part of the case are:

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