But this law did not apply to persons a shade nearer white than Mulatto [the seven-eighths law].' Their testimony was admissible, while that of Negroes and Mulattoes was not admitted against them. In Jordan vs. Smith [1846], 14, Ohio, p. 199: "A black person sued by a white, may make affidavit to a plea so as to put the plaintiff to proof."

Attention has been called to the fact that the fugitive-slave law was respected in Ohio. In 1818-19, a law was passed to prevent the unlawful kidnapping of free Negroes, which, in its preamble, recites the provisions of the law of Congress, passed February 12, 1793, respecting fugitives from service and labor." And in 1839 the Legislature passed another act relating to fugitives from labor," etc., paving the way by the following recital:

66

"WHEREAS, The second section of the fourth article of the Constitution of the United States declares that no person' [etc., reciting it]; and whereas the laws now in force within the State of Ohio are wholly inadequate to the protection pledged by this provision of the Constitution to the Southern States of this Union; and whereas it is the duty of those who reap the largest measure of benefits conferred by the Constitution to recognize to their full extent the obligations which that instrument imposes; and whereas it is the deliberate conviction of this General Assembly that the Constitution can only be sustained as it was framed by a spirit of just compromise; therefore."

Sec. I.

Authorizes judges of courts of record, "or any justice of the peace, or the mayor of any city or town corporate," on application, etc., of claimant, to bring the fugitive before a judge within the county. where the warrant was issued, or before some State judge with certain cautions as to proving the official character of the officer issuing the warrrant; gives the form of warrant, directing the fugitive to be brought before, etc., " to be be dealt with as the law directs."

J. Peck, Esq. [9, Ohio, p. 212], refers to the laws of 1818-19, and 1830-31, as a recognition by the State of Ohio of the power of Congress to pass the act of 1793, though that the act was not specially mentioned.

The first constitution of Ohio [1802] restricted the right of suffrage to "all white male inhabitants." "In all elections, all white male inhabitants above the age of twenty-one years, hav

'Jeffries vs. Ankeny, 11, Ohio, p. 375.

Curwen, p. 533.

22, Chase L., p. 1052.

ing resided in the State one year next preceding the election, and who have paid or are charged with a State or county tax, shall enjoy the right of an elector," etc.' This was repeated in the Bill of Rights adopted in 1851.2

Article iv., Section 2, of the Constitution of the United States says: "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." The question as to whether free Negroes were included in the above was discussed at great length in the Dred Scott case, where Chief-Justice Taney took the ground that a Negro was not a citizen under the fourth article of the Constitution. But the fourth article of the Articles of Confederation [1778] recognized free Negroes as citizens. It is given here:

"ART. 4.—The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States-paupers, vagabonds, and fugitives from justice excepted-shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof, respectively; provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, from any other State, of which the owner is an inhabitant; provided, also, that no imposition, duty, or restriction shall be laid by any State on the property of the United States, or either of them.""

By this it is evident that "paupers, vagabonds, and fugitives from justice" were the only persons excluded from the right of citizenship. The following is the history of the Dred Scott case:

"In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. In that year, 1834, said Dr. Emerson took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi River, in the territory. known as Upper Louisiana, acquired by the United States of France, Ibid., p. 111.

'Revised Statutes of Ohio, vol. i. p. 60.

3

Elliot's Debates, vol. i. p. 79.

2

and situate north of the latitude of thirty-six degrees thirty minutes. north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling, from said last-mentioned date. until the year 1838.

"In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post, situated as herein before stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave at said Fort Snelling unto the said Dr. Emerson herein before named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838.

"In the year 1836, the plaintiff and said Harriet at said Fort Snelling, with the consent of said Dr. Emerson, who then claimed to be their master and owner, intermarried, and took each other for husband and wife. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat 'Gipsey,' north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks.

"In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and their said daughter Eliza from said Fort Snelling to the State of Missouri, where they have ever since resided.

"Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie to the defendant, as slaves, and the defendant has ever since claimed to hold them and each of them as slaves.

"At the time mentioned in the plaintiff's declaration, the defendant, claiming to be owner as aforesaid, laid his hands upon said plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect, however, no more than what he might lawfully do if they were of right his slaves at such times.

"It is agreed that Dred Scott brought suit for his freedom in the Circuit Court of St. Louis County; that there was a verdict and judgment in his favor; that on a writ of error to the Supreme Court the judgment below was reversed, and the same remanded to the Circuit Court, where it has been continued to await the decision of this case.

"In May, 1854, the cause went before a jury, who found the following verdict, viz.: 'As to the first issue joined in this case, we of the jury find the defendant not guilty; and as to the issue secondly above

joined, we of the jury find that before and at the time when, etc., in the first count mentioned, the said Dred Scott was a negro slave, the lawful property of the defendant; and as to the issue thirdly above joined, we, the jury, find that before and at the time when, etc., in the second and third counts mentioned, the said Harriet, wife of said Dred Scott, and Eliza and Lizzie, the daughters of the said Dred Scott, were negro slaves, the lawful property of the defendant.'

Whereupon, the court gave judgment for the defendant.

"After an ineffectual motion for a new trial, the plaintiff filed the following bill of exceptions.

On the trial of this cause by the jury, the plaintiff, to maintain the issues on his part, read to the jury the following agreed statement of facts (see agreement above). No further testimony was given to the jury by either party. Thereupon the plaintiff moved the court to give to the jury the following instructions, viz. :

"That, upon the facts agreed to by the parties, they ought to find. for the plaintiff.' The court refused to give such instruction to the jury, and the plaintiff, to such refusal, then and there duly excepted.

The court then gave the following instruction to the jury, on motion of the defendant :

"The jury are instructed, that upon the facts in this case, the law is with the defendant.' The plaintiff excepted to this instruction.

"Upon these exceptions, the case came up to the Supreme Court, December term, 1856."1 1

Judge Taney gave the following opinion:

"The question is simply this: Can a negro, whose ancestors were imported into this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights and privileges and immunities guaranteed by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

"It will be observed that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the

'Sanford's Dred Scott Case, pp. 397-399.

court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country and sold as slaves.

"We proceed to examine the case as presented by the pleadings.

The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their - representatives. They are what we familiarly call the sovereign people, and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty. We think they are not, and that they are not included, and were not intended to be included, under the word 'citizen' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate [405] and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.

"It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws..

"In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen of any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character of course was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the