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F ®lje jDreb Bcolt (Tcisc.
I' MINORITY REPORT
ft
WON. WILLIAM H.WELSH,
IN THE SENATE OF PA.,
the Select Committee to which was referred
& the Resolutions relative to the Decision of the
f Supreme Court of the United Slates in the
a Died Scott case.
L The undersigned, members of (he select
■committee to which was relerred the resolu-
It ions relative lo the decision of the Supreme
gL'ouit of the United States in the Dred Scott
, case, not agreeing with the opinions and con
clusions of their three colleagues in the re
port submitted by them, beg leave lo present
their views in relation lo lhe question before
the committee.
Before touching upon the great principles
contained in the decision, the minority ol
your committee deem it both right and prop
er to advert to one or two points which are
involvedjin the discussion of this subject.—
We cannot but,express our deep regret, that
a hostile attitude lias been assumed towards
the recent action of the Supreme Court of
the United Slates. Whatever difference of
opikton may exist in reference to that decis
ion, it should receive the respect and sanc
tion ol all iaw-Rbiding citizens, until the
same breatii that gave it existence shall pro
nounce its principles ertoneous and its doc
trines untenable. To ' repudiate" it—lo say
that it is "inoperative as law"—and to pro
claim its authors "dictatorial," "tyrannical,"
and "unworthy of confidence and respect,"
cannot but be regarded as startling proposi
tions in the candid estimation of all who
View that Court as the great conservative ele
ment in our gov eminent, and the constitution
al protector of the rights and liberties ol the
people. Such terms are, at least, of question
able propriety.'Their boldness is only equal
led by their cuer fallaciousness. Instead- of
miernpting to weaken the influence of the ju
diciary by assailing it with hollow and_ un
meaning declamation, we should endeavor
to throw around it the broad and ample shield
of public cot,fMenee. While it is acknowl
edged as one of the co-ordinale branches of
our government, it must be considered su
preme in the enunciation of law and sacred
in the assertion of author'lls. In the past its
binding force lias been the oil which has
calmed tbe troubled waters and qoieled the
stormy sea of fanaticism; and in the future,
if the hand of narrow sectionalism should be
raised to break down the barriers erected to
protect the Constitution, the inheient strength
contained within that Court of last resort,
will be found to be of sufficient power to re
sist and overcome all the assaults that may
be aimed at the common liberties of more
than twenty-five millions of white freen.en.—
Viewing it in the light just indicated, we feel
called upon by an imperative sense of duty,
most earnes'ly lo deprecate all efforts to
bring its decisions into disrepute, or to rob it
of that potential sway which has hitherto
made it the true conservator of our national
freedom.
The minority of or.r committee, also beg
leave to call in question the propriety of a
Slate Legislature attempting to review the ac
tion of the Supreme Court of the United
Slates. It must be patent to every one that
such a course is entirely futile and without
any possible effect. No practical results, or
positive benefit, can, in any way, acctue to
the patties raising such an issue. The pow
ers of a Stale Legislature and the functions
>f the United Slates judiciary are settled and
distinct in their nature. They can never come
in conflict. Entirely independent of each
othsr, they have their separate and determin
ed sphere of operations. This legislature
was not chosen by the people of Pennsylva
nia to engage in useless discussions upon
questions which, under ta most extended
privileges, should never arise upon this floor.
They have no business here. This is not the
proper forum for their consideration, and rais
ing the question of "jurisdiction," we confi
dently assert, that if the "opinions and dec
larations" of the Supreme Court be, as is al
leged, "extra judicial," in a greater degree
is the action of the majority df the commit
tee, extra-legislative. They propose no mea
sure that can affect that coon—they assume
no authority to resist or oppose its decisions
they ask no legislation that would, in any
manner, cure the evils of whioh tbey so
loudly complain. While we cannot refuse
them the luxury of lamenting over the de
cision of that tribunal, wa most emphatical
ly deny their right in a legislative capacity
to interfere with its action or to controvert its
opinions. The greatest criminal in the land
may bewail his sentence, but r.o one will
pretend to say it is his prerogative to arraign
the Judge who condemned bim. The reso
lutions submitted by the majority must, there
fore, be regarded as "void" and altogether
"inoperative as law." The legislature of
Pennsylvania may enact them, and every
day replace them on her statute books. The
voice of denunciation may echo through her
balls and go out upon the wings of the wind
BLOOMSBX?feGv€OLUMBIA COUNTY, PA., WEDNESDAY. MAY 27. 1857.
lo the people of ibis Commonwealth,, The
suppressed cry of resislanee maybe heard,
and even the strong arm of lawless faction
may be lifted in defiance of the conatilotion
al authori'y of that Court. Yet it will still
survive, and be proudly looked upon as the
guardian of the people's rights, long alter its
assailants have passed icto oblivion. Afar
from scuffling partisans, nnawed by the res
tive murmurs of reckless demagogues, and
unseduced by the blandishments of place or
power, that fearless and independent jndici."
ary, which has always been the glory of our
free and happy country, will still continue
to perform its acknowledged constitutional
functions and enunciate those great princi
ples of government upon which our nation
al fabric was founded.
It is not our purpose, In thns expressing our
views and opinions, lo attempt a vindication
of the Supreme Court of the (Thiled States,
or its decision. We feel satisfied that time
will prove the soundness of the letter, as well
as the wisdom ol its authors. Believingi
however, that the majority report does not
present the case which originated this dis
cussion in a fair and proper light, it becomes
our earnest duty to examine, as briefly as
possible, the important question introduced
into this body by the resolutions now under
consideration.
What are the facte in this caae t The rec
ord shows the following : "Dr. Emmerson,
a surgeon in the army of the United States,
while siationed at Jefferson barracks in the
year 1834, held a negro slave, named Dred
Scott, under the laws of Missouri. In that
year, Emmerson took Scott from Missouri lo
the military post at Rock Island, in the free
Slate of Illinois, and held him there as a
slave till 1836. Al the time last mentioned,
Scott was removed by his master to the mil
itary post at Fort Snelling, in the Territory
of Minnesota, situated on the west bank of
ihn Mississippi river, in the Territory known
as the Upper Louisiana, acquired by the
United Slates from France. In the year 1835,
Major Taliaferro, of the Uniied Slates army,
took a female slave, named Harriet, to Fort
Snelling, the military post before mentioned,
and sold her to Dr. Fmmerson, and in the
following year she married the said Scott
with- the consent and approbation of his
master. Two children, Eliza and Lizzie,
were the fruits of that marriage—the one
born on board the steamboat Gipsey, north
of the north line of the State of Missouri, on
the Mississippi river, and the other at Jeffer
son barracks, in Missouri. In 1838, Dr. Em
merson removed Scott and his wife and
daughter, Irom Fort Snelling, back io itio
seme of Missouri where they have since re
sided, and where their second child, Lizzie,
was born. Before the commencement of
tliis suit, Dr. Emmerson sold and conveyed
the said Dred Scolt and his family, to Mr. J.
F. A. Sunford, as slaves, under the local law
ol Missouri, who subsequently left that Stale
and took up his residence in New York. The
reenrd, also, shows that at certain times Mr.
Sanford, claiming lo be the owner of said
Scott and his family, laid his hands upon the
latter and imprisoned them, doing in this re
spect, however, no more than what he might
lawfully do if they were ol right his slaves."
After Sanford's removal to New York,
Scott instituted a suit against him in St. Lou
is county, Missouri, in the Circuit Court of
the Uniied States, under the judiciary act of
1789, in the form of an action at common
law, for trespass vi el armis and false impris
onment. The Court decided the suit against
the plaintiff, and on an appeal the case was
taken lo the Supreme Court of the Uniied
Slates. After an able and elaborate argu
ment on both sides, the opinion of the Court,
sustaining the Court below, was delivered
by Chief Juetice Taney, and concurred in
by five of his colleagues—namely: Justices
Wavne, Catron, Grier, Daniel and Campbell.
It ia a source ol much regret that we have
not before us an authorized copy of the opin
ion, and in its absence we are compelled lo
take the report as it appeared in the daily
journals. Upon an examination of that de
cision we discover two leading points, viz :
First. That negroes, whether slaves or
free—that is, men of the African race—are
not citizens of the Uniied States within the
meaning of the second section ol the fourth
article of the Constitution.
Sjcond. That the legal condition of a
slave is not affected by bis temporary sojourn
in any other State ill this confederacy; but
on his return into a slave State, his former
condition of slavery, to all intents and pur
poses, re attaches to him.
1. Tbs first point decided is one of vast
importance to the people of litis Uoion, and
cannot fail to exert a powerful influence
throughout the United Slates. In the major
ity report we find this proposition stigmatized
as "novel and startling," thd "contrary to all
past history and judicial precedent." Thia
assumption we hold to be entirely unfounded,
and assert that our "past history" establishes
just the reverse. In sustaining this position
the Chief Justice argues the question in the
fallowing manner:
" They who framed the Declaration or In
dependence were men of too mnoh honor,
education and intelligence to eay what they
did not believe; and tbey knew that m no
part of the civilized world were the negro
race, by common coneect. admitted to the
rights of freemen. They spoke and acted
according to the praotices, doctrines and
usages of the day. That unfortunate race
was supposed to be reparated from the
whites, and was never thought or spoken of
except as propsny. These opinions under
went no change when the Constitution was
adopted. The preamble sets forth for what
purpose and for whose benefit it was form
ed. It was formed by the people—such as
Trttb Md UfltL-WINMr Country.
had been membeta of the original States
and Ihe great ofcjuot was to 'secure the blea
ainga of liberty to oorseifhajtnd oor poster
ity.' It speaks in jMMHßg rms of cilizon
and people of the when pro
riding for tbe powers
fining whit dgcripnoft.fftjjWlraoog sboold b<
included or who slionfd bp regarded a' citi
zens. Bat two clauses mlhe Coostituflru
point to the negro race as separate, and no
regaled as citizens, for whom the C%rstita
lion was adopted. One clause reserves tb<
right to import slates until 180$, and in th<
second, the States pledge theWselves one t<
another, to preserve the rights of Ihe master
and to deliver np slaves esoaping to their re
spective territories. By the first elauee, tht
right to ■purchase and hold Ihie property!
directly sanctioned and authorized hy th<
persona who framed the Constitution, fo
twenty years; and the States pledged them
selves to uphold the right ot the msster a
long as the government then formed shal
endure. And this shows, conclusively, tha
another description of persons was embracei
in the provisions of the Constitution. Thesi
two clauses were not intended to confer upot
them, or their posterity, the blessaings of lib
erty so carefully conferred upon the whites
None of Ibis class ever emigrated to tin
United States voluntarily. They were al
articles of merchandize. Tbe number eman
cipated were as few compared with ihost
who were held in slavery, and not sufficient
ly numerous to attract attention ss a separate
class, and were regarded as a part of the
slave population, rather than free."
This line of argument has not been met and
controverted by the majority of your com'
mittee. It is clear and conclusive that ourt
was designed to be a government of whih
men. It was not intended by its founders
that any other class, or race, should ever be
permitted to control its destinies. The inter
mingling of races upon our soil—a soil won
by Ihe blood of white men—is so repugnant
to "reason and humanity," that we cannot
view it ir. any other light than monstrous. —
The infusion of mixed blood into the veins
of our people, would bring innumerable
evils in its train. The health, the vigor, and
Ihe intellectual strength that characterize the
population now gathered together upon our
shores, would be lost and destroyed by the
inevitable degeneracy flowing from a degrad
ing and heterogeneous amalgamation. The
distinctive tastes and babita and degree ol
refinement ol the white and colored races
would be mingled in inextricable confusion,
and the acknowledged superiority of the for
mer, ee the revolting p— of admixture
continued, would silently disappear in the
same proportion as the corrupting element
of the latter instilled itself into the blood of
our descendants. To protect ourselves and
our posterity from such alarming results, we
must carefully guard against the causes
which would certainly produce them. This
can only be done by placing a barrier, wide
and impassable, between the two races now
'in conflict; and such we hold to be the true
merit of the recent deciaioc of tbe Coort,
which, in its future application and develop
ment, will amply shield us from the dangers
to which we have adverted. However much
we may regret the nnlortunale condition of
tbe colored race, we cannot, in our examina
tion of a question fraught with so much inter
est, lose eight of the great truth that "self
preservation is the first law of nature."
To admit the citizenship of ihe negro, is to
place him, without limitation, upon the same
equality with the white man. Its ultimate
effect would be to witness the African and
his descendants blustering around tbe polls
in the exercise of the same inestimable
privileges now enjoysd by the great Cau
casian race, and perhaps a few years would
exhibit the startling spectacle of colored rep
resentatives occupying the same 6eats now
so respectably filled by Ihe msjority of the
committee. Such a state of things would be
full of perils .to our common country, tnd
was never contemplated by the fathers of
the repnblic. The Articles of Confedera
tion, adopted by the thirteen original States,
at a time when emancipated negroes were
"not sufficiently numerous to attract atten
tion as a separate class," but "were regard
ed as a part of the slave population," con
tains the following artiole.
Aar. iv. "Tne belter to secure and per
petuate mutual friendship and intercourse
among Ihe people of the different Slates, in
this Union, the FREE inhabitants of each of
these States, paupers, vagabonds, and fugi
tives from justice excepted, shall be entitled
to all privilege* and immunities of FREE citi
zens in tbe several Stales; and Ihe people
of each State shall have free ingress and
egress to and from any o'hei Slate, and shall
enjoy therein all the privilege* of trade and
commerce, subject tq the same duties, im
positions, and restrictions as the inhabitants
thereof respectively, provided that such re
strictions shall not extend so far aa to prevent
the removal ol PROPERTY imported into any
State, to any other Stale of which Ihe owner it
an inhabitant; provided also that no imposi
tion, duties or restriction shall be land by
any Stale on the property of the United
States, or either of item."
When the foregoing article was adopted,
the negro was essentially regarded in all the
Slates aa merchantable property. Tha word
'free' there use, was intended to embrace,
exclusively, the then existing white popula
tion, and in its application was not designed
to include any other class of people. The
word 'property,' as employed in tbe Article*
of Conlederation, clearly covered tbe negro,
and at that time, within its trne intent and
meaning, be was recognized as an "article
of merchandize." The adoption ol '.be Con
stitution, in 1789, wrought no change what
ever in the meaning of the worda "free" and
"property," or in the peculiar status of the
African. At has been indicated by the
Chief Juetice, "but two clansea of the Con
atitotion point to the negro raoe"—the one in
reference to the suppression of the slave
trade after the year 1808, and the other re
lating to the rights of the master to reoover
fugitives from labor. There ia not a word er
syllable, in that well gusrded instrument,
which coolers the high attiibutee of citizen
ship upon the colored race. Thia position
is no new or "novel" one, ae hat been
strangely asserted in the majority report.—
It was first officially promulgated in 1812,
by William Wirt, when Attorney General of
lbs United States, more than t quarter of a
century before the Dred Scott decision ex
cited the attention of the people. The ques
tion erase nfon thfe construction of the navi
gation laws of the United States, which re
quire that masters Cf vessels shall be citizens.
In view of this statute, a difficulty arose in
the Treasury Department, as to whether a
free negro of Virginia could be placed in
command of a vessel; and the point was
submitted to Mr. Wirt for his decision. In
answer lo the inquiry, he replied, officially,
as follows:
"I presume that the description, 'citizens
of the Uniied States,' used in tbe Constitu
tion, has the same meaning that it had in
the several acta of Congress passed nnder
the authority of the Constitution; otherwise
there will arise a vagueness and" uncertainty
in oar laws whioh will make their execution,
if not impracticable, Bt least extremely diffi
cult and dangerous. Looking to the Consti
tution as the standard of meaning, it seems
very manifest that no person ia included in
the description of citizen of the Uniied Stales
who has not the full rights of a citizen in
the State of bis residence. Among other
proofs of this, it will be sufficient lo advert
to the constitutional provision, that (he citi
zens of each State shall be entitled to all (he
privileges and immunities of citizens of the
several States.
"Now, if a person born and residing in
Virginia, but possessing none of the high
characteristic privileges of a citizen of the
State, is nevertheless a citizen of Virginia,
in the 6ense of the Constitution, then, on his
removal lo another State, he acquires all the
immunities and privileges of a citizen of that
Slate, although lie possessed none of them
in the State of hit nativity, e consequence
which certainly could not have been in tbe
contemplation of the convention. Again: tbe
only qualification ,required by the Conaliio
tioo to isnder a persofl, eligible as President,
Senator, or Representative of thq, United
Slates is, that he shall be a 'citizen of the
United States' of a given age and residence.
Free Degroeß and mulattoes can satisfy the
requisitions of age and residendetas well as
the wLite man; and if nativity, residence and
allegiance combined (without the rights and
privileges of a white man) are sufficient to
make him a 'citizen of the United Slates' in
the sense of the Constitution, then free ne
groes and mulattoes are eligible to those
high offices, and may command the purse
and sword of the nation.
"For these and other reasons, which might
easily be multiplied, [ am of the opinion that
the Constitution, by the description of 'citi
zens of the United States,' intended those
only who enjoyed the full and equal privi
leges of white citizens in the State of their
residence."
Aflet further discussing the question, Mr.
Attorney General Wirt concludes Ilia opin
ion in the following words:
"Upon the whole, I am of the opinion,
that free persona of color in Virginia are not
citizens of tbe Uniied Stales, within the in
tent and meaning of the acts regulating for
eign and coasting trade, so as to be qualified
to command vessels." (Opinion* of Attorney's
Gen. ofU. S., Vol. l.js. 506, ed. 1852.
Concurrent with this important decision of
the Treasury Department, under tbe direc
tion of the Attorney General, runs the unbro
ken action of the Poet Office Department of
our country. Since the organization of the
government by the act of Congress, "no
person of color can be engaged in the Post
Office or io the transportation of mail ulatler."
In that branch of the government, the negro,
free or bond, baa no constitutional existence,
and ia not permitted to be employed in any
of its ramifications. Not regarded by it as a
citizen under the Constitution of the United
Slates, he is therefore debarred from dis
charging any of its various function*. Nor
has the Stale Department been lees decided
in its action upon this question. The fol
lowing official dooument, in reference to the
granting of pasaporta, was addressed to a cit
izen of New York, under the direction of the
Secretary of Slate, and needs on comment
from the undersigned:
DxPiRTMENT or STATE,
Washington, Nov. 4, 1856.
SIR : Yonr letters of the 29th nit. and 3d
inst., requesting passports for eleven colored
parsons, have been received, and I am direct
ed by tbe Secretary to inform you that the
papers transmitted by you do not wanaot the
department in complying with yonr request.
A passport ia a certificate that the person
to whom it is granted is e citizen of the Uni
ted States,'and it can-only be issued npon
proof of this fact. In the papers whioh ac
company yoar communication there ia not
salialactory evidence that the peraons for
whom yon request passports are of thia de
sert ption. They are represented in yonr letter
aa "colored," and described in the affidavits
as "black," Irom which statements it may be
fairly inferred that they are negroes. If this
is so, there can be no donbt that they are not
citizens of the United State*.
The question whether free negroes are
■uoh citizens, Is now presented for the first
time, but has repeatedly arisen in the admin
istration of both National and State govern
ments. Ia 1821, a controversy arose as to
whether free petsone of color were citizens
ol the United States within the intent and
meaning of the acta of Congress regulating
foreign and-#ossting trade, so as to be quali
fied to command veseels; and Mr. Wirt, At
torney General, decided (hat they were not;
and he moreover held the words "citizens of
the United Slates," were used in the acta ol
Congress in (be same sense as in the Con
stitution. This view is also folly sustained
in a recent opinion of the present Attorney
General.
The judicial decisions of the country are to
the same (fleet, fo Kent's Commentaries,
vol. 2, p. 277, it is stated that in 1882 Chief
Justice Daggett, of Connecticut, held that free
blacks are rot "citizens" within the meaning
of the term as nsed in the constitution of the
United Slates; and the Supreme Court of
Tennessee, in the caae of the State against
Claiborne, held theeame doctrine. Such be
ing the constrnction of the Constitution in
regard lo free persons of color, it ia conceiv
ed that tbiy cannot be regarded, when be
yond the jurisdiction of the government, ae
entitled to the lull rights ol citizens; but the
Secretary directs me to say that though the
department could not certify that such per
sons are citizens of (he United States, yet, if
satisfied of the troth of the facts, it wonld
give a certificate, that they were born in the
United Suites, are free, and that the govern
ment thereof would regard it to be iisduty lo
protect them if wronged by a foreign govern
ment while within its jurisdiction fdt a legal
aud proper purpose.
I am, eir, respectfully,
Your obedient servant,
J- A. THOMAS, Ass't Sec.
H. H. lticE, New York city.
The several acta of Congtess io reference to
the naturalization of foreigners, exhibit the
same settled and determinate policy. Under
their provisions no negro, or bis descendants,
can be naturalized, or be made citizens of
the United States. The words of the first act
ol Congress, passed but a few months after
the adoption of the Federal Constitution, and
sanctioned by tbe approval of George Wash
ington, are as follows: "Any alien, being a
free while person, may become a citizen,"
&c. The act of 1795 uses the following lan
guage : "Any free white person may become
a citizen," ko. Tha act of 1798, signed by
John Adams, and thai of 1802, approved by
Thomas Jefferson, make use of the same spe
cific language ; and the subsequent enact
ments of Congress, passed in 1813 and 1824,
indicats precisely the same restrictive policy
upon the negro race. Chancellor Kent, in
his " Commentaries on American Law,"
sustains this point in the following words :
" The act of Congress confines the descrip
tion of aliens capable of naturalization, to
'free white persons.' I presume this excludes
the inhabitants of Africa and their descend
ants ; and it may become a question, to what
extent persons of mixed blood are excluded,
and what shades and degrees of mixture ol
color disqualify an alien from application
for the benefits of the act of naturalization.
Perhaps there might be difficulties also, as
to the copper-colored natives of America, or
the yellowflpr tawney races of the Asiatics,
and it may well be doubted whether any ol
them are 'while persons' within the purview
of the law."— (2 Kent's Com. Bth Ed. 36 )
The same distinguished writer says :
" In most of the United Slates there is a
distinction in respect lo the political privile
ges, between free white prrsons and free col
ored personsof Afiican blood; and in no part
of the country, except in Maine, do the latter,
in point of lacl, participate equally with the
whites, in the exercise of civil and political
rights."—(2 Kent, Notes, 278.)
He then proceeds to examine, at length,
the varioue disabilities nnder which the ne
gro race labor io the different Slates, and
alter citing various authorities whioh prove
that, as a general thing, they do not possess
and enjoy the same privileges and immuni
ties belonging lo a citizen under tbe Consti
tution of the Uoited States, he employs the
following significant language: "The better
opinion I should think, was, that negroes, or
other slaves, born within and nnder the alle
giance of the United States, are natural born
subjects, but not citizens." (2 Kent, Notes,
p. 222.)
But we are told that "judicial precedent"
it against us, and "there is no such logio in
the books" as will snstairi (he point at issue,
or that "can in any way be tortured into the
support of the doctrine, that a colored person
cannot be a citizen of any Stste, or of the
Uniied States." Let us see ho* far we are
supported by the authority of the courts.
In the yeat 1838, the Supreme Court of Ten
nessee decided and adjudged, that fiee blacks
were not citizens wilbin the provisions of the
second section of tb* fourth article of the Con
stilntion of tbe United States. (State vs. Clai
borne, 1. Meig's Reps. 331.) And in tha same
Stale, Chief Justice Catron, in the case of
Pxshtr tie. Dubbs, 6 Yergtr's Reps. 119, "give*
a strong picture of the degradation of free ne
groes living among whites, without motive
and without hope."
Ie the Slate of Connecticut, the same deci
sion is arrived at in e case which is thns sta
ted by Chsnoellor Kent in the notes to bis
Commentaries, vol. 2, page 281: "In Con
necticut, by statute, in 1833, any colored per
son, not an inhabitant ot tbe State, who eball
come to reside there for tbe purpose of being
iaatraoled, may be removed, under tbe aot
for the admission and settlement of inhabi
tant* ; and it wu made penal to set up or
establish any school or literary institution in
that State, for the instruction of colored per
sons not inhabitants of the State, or to instruct
or leach in any such school or institution, or
to board or barbor, for that purpose, any such
person without the previous consent in wri
ting, of the civil authority of the town in
which stjch school or institotion might be.
In an information onder that provision sgtinst
Prudence Crandall, filed by the public prose
cutor, it was held by Chief Justice Daggett,
at the trial in 1833, (bat free blacks ware not
citizens within the meaning of the term, as
used in the Constitution of the United Stales."
By referring lo the case, as reported, we
find the subjoined forcibli language used by
Chief Justice Daggett. Having presented the
act of Assembly onder which the information
was made, he asks the qneslinn : "Docs it
clearly viola'e the Constitution of the United
Slates? The section claimed lo have been
violated reads as follows, to wit: Art. 4 sec.
2 'The citizens of each State shall be entitled
to all privileges and immunities of citizens
in the seversl States,' It baa been urged,
that this section was made to direct exclu
sively the action of the general government,
and, therefore, can never be applied to State
laws. Thia ia not the opinion of the court.
The plsio and obvious meaning of this pro
vision is to secure to the citizens o f all the
States the same privileges aa are secured to
ous own, by our own Stale laws. * *
The persons contemplated in this act are not
citizens within the meaning of that section
of the Constitution of the United States which
1 have just read. Let me begin by putting
I this plain question: Are staves citizens? At
the adoption of the Constitution of the United
States every State was a slave State. Massa
chusetts bad begun the work of emancipation
within her borders. And Connecticut, ss early
as 1784, had enacted laws making all those
free at the age of 2b, who might be born
I within the State after that time. We all
know that slavery ia recognized in that Con
stitution ; and it is the duly of thia court lo
take that Constitution as it is, for we have
sworn to support it. Although the term 'sla
very' cannot be lound written out in the Con
stitution, yet no one can mistake tbe object
of the 3d section of the 4ih article : 'No per
son held to service or labor in one State, under
the laws theteof, escaping to another, shall,
in consequence of any law or regulation there
in, be discharged from such service or labor,
but shall be delivered, upon claim of the
party to whom such service or labor may be
doe.
"The 2d section of the Ist article, reads aa
follows: 'Representatives and direct taxes
shall be apportioned among the several States
which may be included in thia Union, accof
ding to their respective numbers, which shall
be determined by adding lo the whole num
ber of free persons, including those bound to
service for a term of years, and excluding
Indians r.ot taxed, three-fifths of all other
persons.' The 'other persons' are slaves, end
they become the basis of representation, by
adding them to the while population in that
proportion. Then slaves were not consider
ed citizens by tbe framera of the Constitution.
"Are free blacks citizens ? It has been in
geniously- said, that vessels may be owned
and navigated by free blacks, and that the
American flag will protect them ; but you will
remember that the statute which makes thia
provision, is an act of Congress, and not the
Constitution. Admit, if yon please, that Mr.
Coffee, a respectable merchant, has owned
vessels, and sailed them under the American
flag; yet this does not prove him to be such
a citizen as the Constitution contemplates
Rut that question Blends undecided by any
legal tribunal within my knowledge. * *
"To my mind it would be a perversion of
terms, and the well-known rule ol construc
tion, to say that slaves, free blacks or lodians
were citizens, within the meaning of that
term,as used in the Constitution. God forbid
that I should add to the degredation ol this
race of men ; but I am bound by my duty to
say tbey are not citizens."— [Ciandall vs. The
Stale, 10 Connecticut Reps. 243.]
In June, 1837, the same court laid down
a similar docirine in the decision of a case
adverse to a slave, who had been brought
from Georgia to Connecticut. Chief Justice
Williams, although deciding that the slave
could not be held in bondage under the
lex loci of the State, was compelled to admit,
in referring to the constitution of Connecti
cut, that "Slaves cannot be said to be par
ties to that compact, [he is speaking of our
social compact,] or to be represented in it.
The very definition of a slave, as given in
the Louisiana code, shows, that he conld
not be contemplated as a party to a nation
al compact. 'A slave is one who is in the
power of a master to whom he belongs.—
The master may sell him, dispose ofhia
person, his industry and his labor. He can
do nothing, possess nothing, nor acquire
anything, but what mußt belong to his mas
ter.' So, too, when by another article in
the constitution, all colored persona are ex
cluded from the privilege of electors, it
would seem as if all such persona were
considered as excluded from the social com
pact."
And he says further:
"The Bth section of the bill of rights (of
Connecticut) has also been pressed upon
us; that 'the people shall be secure in their
persons, houses, papers and possessions,
from unreasonable searches or seizures.'—
This is almost a transcript to the 4th article
of the amendments of the United States.—
And the fact that this amendment was
adopted at all, and that amidst all the con
flict of opinions upon the subject of slavery,
this clause has never been claimed to affect
[Two Dollars per Annum.
NUMBER 19.
that subject, shows very strongly that it was
not intended to apply to that descriptiorr of
persons. When the preamble to the'con
stitution of the United States speaks of
'WbThs Pcoplx— — to secure the bless
ingsW liberty to ourselves and our poster
ity, do ordain and establish this constitu
tion,' it cannot be seriously contended, that
it included that class of people called
slaves; and the term 'people,' in jthe bill of
rights, must have been used in a similar
sense. The Bth section of the bill of rights,
then, cannot be intended to include slaves.
"The 10th section of the bill of rights also
provides, that 'no person shall be arrested,
detained, or punished, except in cases
clearly warranted by law.' And under this
the petitioner rests a claim. But this only
brings us back jto the question, What de
tentions are warranted by law? If the
power of a master over his slave is one re
cognized by law, then this article in the
bijl of rights cannot affect the question be
fore the Court. And while this solicitude
for personal liberty manifested in the Con
stitution, makes it our duty to inquire, with
great care, whether this detention is clearly
warranted by law, well feel bound to de
clare, as the result of our examination of
the constitution ot this State, that is pro
visions do not, and were not intended, to
vary the relation of master and servant, as
by law established, at the time of the adop
tion of that instrument. And in this opin
ion the court are unanimous." ( Jackson vs.
Bullock, 12 Connecticut Rips. 43.)
In Pennsylvania, also, it has been deci
<)pd that 'free blacks' were not citizens un
der our former constitution and laws. In
1835 it was held by the Supreme Court of
this State, (before theiadoption of our pres
ent constitution, which contains a'restrio
tive clause upon negro suffrage, and when
the question might have been a mooted
one,) that free persons of colot did not ful
fil the requirements necessary to constituto
a qualified elector, and that they did not
come up to the standard of citizenship as
prescribed by our laws, or the Constitution
of the United States. The case came before
the Supreme Court of Pennsylvania on a
suit instituted by a free negro against the
officers of an election for denying him the
privilege of voting for State officers. The
opinion of the Court was delivered by
Chief Justice Gibson, and is marked with
that peculiar vigor of thought and expres
sion which characterizesallthe productions
of that eminent Judge. In his analysis of
the case ho informs us that: "About tho
year 1795, as I have it from James Gibson,
Esq., of the Philadelphia bar, the very point
before us was ruled by the high court of
errors and appeals against the right of ne
gro suffrage."
After establishing the doctrine that free
negroes according to usage and prior legis
lation were not freemen within the purview
of our constitution, he adds:
''But in addition to interpretation from
usage, this antecedent legislation furnishes
other proofs that no colored race was party
to our social compact. As was justly re
marked by President Fox, in the matter of
the late contested election, our ancestors
settled the province as a community of
white men; and the blacks were introduced
into it as a race of slaves; whence an un
conquerable prejudice of caste, which has
come down to our day, insomucli that a
suspicion of taint still has the unjust effect
of sinking the subject of it below the com
mon level. Consistently with this preju
dice, is it to be credited that parity of rank
would be allowed to such a race? Let the
question be answered by the statute of
1726, which denominated it an idle and
slothful people; which enjoined the magis
trates to bind out free negroes for laziness
and vagrancy; which forbade them to har
bor Indian or mulatto slaves, on pain of
punishment by fine, or to deal with negro
slaves on pain of stripes; which annexed to
the interdict of marriage with a white, the
penalty of reduction to slavery; which pun
ished them for tippling, with stripes, and
even a white person with servitude for in
termarriage with a negro. * * •
"I have thought it fair to treat the ques
tion as it stands affected by our own munici
pal regulations without illustration from
those of other States, where the condition of
the race had been still less favored. Yet it
is proper to say that the second section of
the fourth article of the Federal Constitution,
presents an obstacle to the political freedom
of the negro which seems to be insuperablo.
It is to be remembered that citizenship, as
well as freedom, is a constitutional qualifi
cation ; and how it could be conferred so as
to overbear the laws imposing countless dis
abilities on him in other States, is a problem
of difficult solution. In this aspect the ques
tion becomes one, not of intention, but of
power; and of power so doubtful as to forbid
the exercise of it. Every man must lament
the necessity ot there disabilities; but sla
very is to be dealt with by those whose ex
istence depends on the skill with which it
Is treated. Considerations of mere humanity,
however, belong to a class with which, as
Judges, we have nothing to do; and inter
preting the Constitution in the spirit of our
institutions, we are bound to pronounco that
men of color are destitute of title to the elec
tive franchise. ( Hobbs ct al. w. Foggs, 6
Watts, 555 )
In controversion of the spirit of these au
thorities, the majority of the committeo
cite several cases to support their position,
and among the number we find four taken
from the decisions of the Supreme Court of
the United Stales, vix: Lee vs. Lee, 8 Peters,
48; Wallingsford vs. Allen, to Peters, 583;