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nity, and excited the indignant rebuke of some of the most eminent Jurists and Statesmen of Europe, who declared the sentiments to be "so execrable as to be almost incredible." It was promptly met and answered by Judge McLean of Ohio, and Judge Curtis of Massachusetts, Associate Justices of the United-States Supreme Court.

Mr. Justice McLean, in his elaborate opinion, says:

McLean.

"Slavery is emphatically a State institution. In the ninth section Judge of the first article of the Constitution, it is provided that the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808; but a tax, or duty, may be imposed on such importation, not exceeding ten dollars for each person.'

"In the Convention, it was proposed by a committee of eleven to limit the importation of slaves to the year 1800, when Mr. Pinckney moved to extend the time to the year 1808. This motion was carried,

New Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, and Georgia voting in the affirmative; and New Jersey, Pennsylvania, and Virginia, in.the negative. In opposition to the motion, Mr. Madison said: 'Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the American character than to say nothing about it in the Constitution.' (Madison Papers.)

"We need not refer to the mercenary spirit which introduced the infamous traffic in slaves, to show the degradation of negro slavery in our country. This system was imposed upon our colonial settlements by the mother country; and it is due to truth to say, that the commercial colonies and States were chiefly engaged in the traffic. But we know as a historical fact, that James Madison, that great and good man, a leading member in the Federal Convention, was solicitous to guard the language of that instrument so as not to convey the idea that there could be property in man.

"I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Constitution in all its bearings, rather than to look behind that period into a traffic which is now declared to be piracy, and punished with death by Christian nations. I do not like to draw the sources of our domestic relations from so dark a ground.

Our

Judge

McLean.

Judge
Curtis.

independence was a great epoch in the history of freedom; and while I admit the Government was not made especially for the colored race, yet many of them were citizens of the New-England States, and exercised the rights of suffrage, when the Constitution was adopted; and it was not doubted by any intelligent person, that its tendencies would greatly ameliorate their condition.

"Many of the States, on the adoption of the Constitution, or shortly afterward, took measures to abolish slavery within their respective jurisdictions; and it is a well-known fact, that a belief was cherished by the leading men, South as well as North, that the institution of slavery would gradually decline, until it would become extinct. The increased value of slave labor, in the culture of cotton and sugar, prevented the realization of this expectation. Like all other communities and States, the South were influenced by what they considered to be their own interests.

"But, if we are to turn our attention to the dark ages of the world, why confine our view to colored slavery? On the same principles, white men were made slaves. All slavery has its origin in power, and is against right."— Howard's Reports, vol. xix. pp. 536–538.

The following is a part of the conclusive dissenting opinion of Mr. Justice Curtis :

"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 Constitution 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 Constitution.

"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 Hampshire, Massachusetts, 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 vs. 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.

Gaston

"According to the laws of this State,' says Judge Gaston, in de- Judge livering the opinion of the court, 'all human beings within it, who are cited. not slaves, fall within one of two classes. Whatever distinctions may have existed in the Roman laws between citizens and free inhabitants, they are unknown to our institutions. 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 Constitution 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 Constitution.'

Curtis.

"It has been often asserted, that the Constitution was made ex- Judge clusively 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 Constitution was ordained and established. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by any thing in the Constitution, 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

George
Bancroft.

States, they were among those for whom and whose posterity the Constitution was ordained and established." Howard's Reports, vol. xix. pp. 572, 573, 582.

The Hon. George Bancroft, in his "Oration before the Mayor, Common Council, and Citizens of New York, on the 22d of February, 1862," alluding to the opinion of Judge Taney, notwithstanding his affinities with the political party through which the Chief-Justice was raised to his high station, thus speaks:

"During all these convulsions, the United States stood unchanged, admitting none but the slightest modifications in its charter, and proving itself the most stable government of the civilized world. But at last 'we have fallen on evil days.' 'The propitious smiles of Heaven,' such are the words of Washington, 'can never be expected on a nation that disregards the eternal rules of order and right.' During eleven years of perverse government, those rules were disregarded; and it came to pass that men who should firmly avow the sentiments of Washington, and Jefferson, and Franklin, and Chancellor Livingston, were disfranchised for the public service; that the spotless ChiefJustice whom Washington placed at the head of our Supreme Court could by no possibility have been nominated for that office, or confirmed. Nay, the corrupt influence invaded even the very home of justice. The final decree of the Supreme Court, in its decision on a particular case, must be respected and obeyed: the present Chief-Justice has, on one memorable appeal, accompanied his decision with an impassioned declamation, wherein, with profound immorality, which no one has as yet fully laid bare, treating the people of the United States as a shrew to be tamed by an open scorn of the facts of history, with a dreary industry collecting cases where justice may have slumbered or weakness been oppressed, compensating for want of evidence by confidence of assertion, with a partiality that would have disgraced an advocate neglecting humane decisions of colonial courts and the enduring memorials of colonial statute-books, in his party zeal to prove that the fathers of our country held the negro to have ‘no rights which the white man was bound to respect,' he has not only denied the rights of man and the liberties of mankind, but has not left a foothold for the liberty of the white man to rest upon.

"That ill-starred disquisition is the starting-point of this rebellion,

Bancroft.

which, for a quarter of a century, had been vainly preparing to raise George its head. 'When courts of justice fail, war begins.' The so-called opinion of Taney, who, I trust, did not intend to hang out the flag of disunion, that rash offence to the conscious memory of the millions, upheaved our country with the excitement which swept over those of us who vainly hoped to preserve a strong and sufficient though narrow isthmus that might stand between the conflicting floods. No nation can adopt that judgment as its rule, and live: the judgment has in it no element of political vitality. I will not say it is an invocation of the dead past there never was a past that accepted such opinions. If we want the opinions received in the days when our Constitution was framed, we will not take them second-hand from our Chief-Justice : we will let the men of that day speak for themselves. How will our American magistrate sink, when arraigned, as he will be, before the tribunal of humanity! How terrible will be the verdict against him, when he is put in comparison with Washington's political teacher, the great Montesquieu, the enlightened magistrate of France, in what are esteemed the worst days of her monarchy! The argument from the difference of race which Taney thrusts forward with passionate confidence, as a proof of complete disqualification, is brought forward by Montesquieu as a scathing satire on all the brood of despots who were supposed to uphold slavery as tolerable in itself. The rights of MANKIND that precious word which had no equivalent in the language of Hindostan, or Judæa, or Greece, or Rome, or any ante-Christian tongue found their supporter in Washington and Hamilton, in Franklin and Livingston, in Otis, George Mason, and Gadsden; in all the greatest men of our early history. The one rule from which the makers of our first Confederacy, and then of our national Constitution, never swerved, is this: to fix no constitutional disability on any one. Whatever might stand in the way of any man, from opinion, ancestry, weakness of mind, inferiority or inconvenience of any kind, was itself not formed into a permanent disfranchisement. The Constitution of the United States was made under the recognized influence of 'the eternal rule of order and right'; so that, as far as its jurisdiction extends, it raised at once the numerous class who had been chattels into the condition of persons: it neither originates nor perpetuates inequality."-Pulpit and Rostrum, 1862, pp. 104-107.

In refutation of the common charge, that the North has changed its position on the subject of slavery, I cannot for

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