: 7 Section two of article three, and section eleven | ed, and no State naturalization becomes necesof the amendment to the Federal Constitution, sary. This would seem so plain that the "wayspeak of citizen and subject as convertible faring man need not err therein terms. By the Articles of Confederation, citi zenship in the several States was expressly granted to the "free inhabitants" of each State, and it will hardly be pretended that the boon would be extended to the natives of other States beyond its enjoyment at home. This idea is clearly stated by Chief Justice Gaston, in 5 Iredell, page 253. He says: "According to the laws of this State, all 'human beings within it who are 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 'dominion of the King of Great Britain, what'ever their color or complexion, were native born British subjects; those born out of his 'allegiance are aliens." * * * "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 "British sub 'sovereign State." ** * * * * " yet this strange opinion, as if to keep up its departure from all show of reason and law, gravely pronounces that the clause to which I have referred does not "apply to a person 'who, being a citizen of a State, migrated to 'another State," (page 422;) that "the provision is confined to citizens of a State who are 'temporarily in another State, without takig up their residence therein." If this be its construction, I beg to know, and I am interest ed in knowing, how a native of Connecticut can become a citizen of Ohio. No other clause in the Constitution can have the effect to make him such; and if this does not, Ohio must act before he can be admitted to the privileges of Ohio citizenship. Supposing-vainly, as it would seem-that the Federal Constitution hd decided that point, Ohio has made no provision on the subject; so that, were the Chief Justice himself to migrate to Ohio, and there con mence suit in the Federal court against a citi; zen of Maryland, the fact that he was a native of Maryland, were his opinion law, would be a good plea to his allegation of Ohio citiz nship. 'jects in North Carolina became North Caro- If not, I should like to have the error of the lina freemen. Foreigners, until made mem'bers of the State, remained aliens." I might occupy my whole time in giving authorities and illustrations upon this point. Citizenship, as well as allegiance, is the incident of birth. The few exceptions, as to chil dren of foreign ministers or temporary sojourn ers, but confirm the doctrine; and, indeed, until the interests of Slavery demanded a dif ferent position, none other was thought of in modern law. plea pointed out, and the process explained But the phrase "citizen of the United Stater no less loosely used than the term itself. It is not only employed to mean a person entitled to all the privileges of citizens in the several States-sometimes called a general citizenbut also to designate one as primarily a citizen of the Union, as a single consolidated Government. For the former case we have seen that the Constitution has made ample provision, by making every State citizen a general citizen. But, as we go beyond that, we tread uncertain ground; and I know of no surer indication of our departure from the true idea of this Federation, than the loose habit we all have of speak But except by some act of the sovereign power, none but the native born can be citizens. The immigrant from Connecticut would be an alien in Ohio, and the Massachusetts trader enjoy none of the rights of citizens in Georgia, for the citizens of Obio and the citizens of ing of United States citizenship; and 1 clain Georgia would be those only born therein. no exemption from this indication of the seduc How, then, do immigrants from one State, or tive influence of the pervading consolidation from foreign countries, become citizens? tendencies. We sometimes speak of persons Whence obtain they these "privileges and im- as citizens of the United States, residing in a munities?" Must each State pass naturalization State, or of a double citizenship, held by each; laws; or is this matter provided for? The and in the case now under discussion, citizenConstitution provides for both cases clearly ship of the United States, instead of the State and distinctly. The exclusive power to make citizenship of the Constitution, is generally sporules for the naturalization of aliens to all the ken of as giving jurisdiction to the Federal States, is granted to Congress, so that, so far courts. as the foreign born are concerned, it alone can determine the manner in which they shall be come citizens of the States. But though Congress has no jurisdiction over the citizenship of natives, yet for them, too, the provision is equally specific. The citizens of each State are expressly made citizens of all the. States, the idea that there can be any such thing as the United States, in some sense, is clear. The That there is such a thing as citizenship of Constitution uses the term, but its meaning must be controlled by the constitutional relation of the States. I can find nothing in the Constitution, or in that relation, that gives color to or, which is the same thing, are entitled to all United States citizenship, in itself considered; the "privileges and immunities" of citizens that there can be a citizen of the United States within them. Thus the whole ground is cover-who is not a citizen of a State, or a State citi zen who is not also a citizen of the United States; or to the idea that the Federation can do anything whatever to constitute, direct, or control citizenship, except as to aliens. Of course, I speak not now of resident natives of the District of Columbia, or the Territories. They are outside the States, not provided for in the Constitution, which was made for the States, and are citizens of the Union alone, because born within its general and exclusive jurisdiction. Can it, then, be possible that this grand "Na tional" Government of ours is destitute of so important a power-the power to say who shall be its own citizens, its own people?-that this power is left to its constituent parts, so to speak? These are formidable questions to consolidationists, still more so to strangers to our system; but to American Democrats the answer is easy That the Federal Constitution, so far as it is an instrument of Government, is grant by the people of the States of specific and clearly-defined powers, that there is no power where there is no grant, that none are given by implication except what are necessary to execute those ex pressly granted, and that all others are reserved to the States and the people thereof, are the axioms of their creed. We search in vain for any general Federal authority over citizenship, so that, even in the absence of the guarantee to the citizens of each State, we must inevitably find the power over this subject to be one of those reserved. The States, then, determine who are citizens; and we mean by a citizen of the United States, simply a citizen of one of the States; and when we describe a person as a citizen of the United States, residing in a State, we use a phrase liable to misconstruction; and when we speak of the double relation held by each citizen to his State and the United States, we use language politically loose, unless we mean that the latter relation is held solely through and by virtue of the first. citizens, or whether the condition of the native born is fixed. It is clear, that if any power can say what natives are citizens, it is the State alone; if no power, then the question must be decided by the general law, the Articles of Confederation, and the Constitution. By the first are included all the native born; by the second, the "free inhabitants" of the several States; and by the last, all the citizens of the several States, which last provision must refer back to the first and second. Those naturalized by the Articles of Confederation have all passed away, so that if the States have no control over citizenship, we are driven to the general law, to the inevitable result of nativity. But the States do possess power over the subject. I will not say that they can unmake, so to speak, a citizen; can change the fact of nativity, or its just effect, for I am no believer in a State's omnipotence, nor will I advocate its power to do wrong; but to confer citizenship upon other than aliens, the States are clearly competent. They are competent, for they have never parted with the power, and all powers not delegated are reserved. They are competent, for from the beginning they have conferred it without dispute; and though bad precedents should be overruled, just ones are law. Slaves, though natives, have not been re garded as citizens; for, by a legal fiction, they are, while their status remains, alien enemies, and prisoners of war; and by the African code introduced with the ancestors of these pris oners, they and the descendants of their women became slaves. This status and this fiction and this code yield to the breath of sovereignty; and these quasi alien prisoners become native born free citizens. *** To the objection that the naturalization powers of Congress authorize a citizenship of the United States without reference to a State, I reply by denying the assumption. The people of the States, that the rule of naturalization'munity created by the Constitution." If the ight be uniform, authorized Congress to pre The reasoning by which the court arrives at the impotency potency of the States in the premises is so brilliant, that I cannot refrain from giving it, as a specimen of the logic of this our infallible tribunal. The opinion says that, because the power to naturalize aliens is delegated to Congress, "it is very clear, therefore, that no State can, by any act or law of its own, introduce a new member into the political com "new member" means alien, the conclusion is very clear indeed, as well as undisputed; but sequitur that puts all dialectics to blush. "And for the same reason," that is, the reason that the power to naturalize aliens is delegated to Congress, "it," the State, "cannot introduce any person or description of persons who were not intended to be embraced in this new polit ical family," &c. This person or description of persons, by a bold falsification of history, is assumed to be the descendants of African slaves. But admit the libellous assumption of this unwritten and fraudulent intention, how scribe it, and nothing more. But aliens, nat uralized under this rule, immediately became close on the heels of this truism follows a non citizens of the State of their domicile; other wise, how can they avail themselves of the guarantee of general citizenship? te The conclusion, then, is irresistible, this court to the contrary notwithstanding, that all "the citizens of each State" are not only "entitled to the privileges and immunities of citi zens in the several States," but are, thereby, citizens of the United States. The folly of the main assumption of the court, that there exists in the States a class of native inhabitants who are not and cannot clear the logic! "For the same reason," in become citizens, equally appears, whether we deed? Because a State has authorized the say that a State may make or unmake its Federation to make rules by which aliens may acquire citizenship, for that reason it has parted with all power over the subject, not of alienage, but of citizenship. It has therefore no power to say whether its native-born inhabitants shall or shall not be general citizens; though, by the same instrument that grants this power over alienage, all powers not delegated are expressly reserved, and all ITs citi zens are expressly made general citizens! I know not what deductions of reason may be clear to eyes filled with slave plantations to eyes blinded by passion and interest; but if any schoolboy, on any other theme, should so boggle in logic, he would be at once promoted from the forum to the dunce-block. - Bat, suppose a State change this intention, and false innuendoes; the appeals to low prejudice and despotic fears; the slanders of the great dead and the miserable reasoning (?) that pervade it. With sorrowful emotions have I been through them all. And I have sometimes imagined the shades of Jay and of Marshall-men with whose national doctrines I have little sympathy, yet men who loved law and revered justice to be sadly looking o'er with me the dirty page, wondering that they ever should have looked to irresponsible bodies as a check upon popular injustice. The main historical claim I alone have time to notice: "When the Constitution was adopt"ed," says the syllabus, "they (free negroes) were not regarded in any of the States as if it ever existed: its general power over citizen-members of the community which constituted ship is clearly reserved, and, under the liberali zing influence of Democracy and Christianity, it may abandon a design it was always ashamed to put on the record. What is to hinder? But it has no power, says the Chief Justice, and for the reason that it has delegated to Congress the power to make rules of naturalization. Well, then, we must look to Congress to naturalize these persons. But Congress can only provide for the naturalization of aliens; and these persons are native born. And thus we have a "description of persons" that can never be made citizens; and for the reason, that Congress may naturalize another description of persons! And is this the new phase of the doctrine of State Rights? I have looked with anxious attention for the protests of those who annually endorse the resolutions of 1798 against this last and boldest in this court's long series of attacks upon the sovereignty of the States. The power of the States over citizenship, as clearly reserved (with the exception named) as any power can be, and the rights of those citizens to general citizenship, guarantied as plainly as language can do it, are impudently denied, and by a reasoning that would disgrace a freshman. And yet these guardians of State sover eignty-men boisterous in defence of a State's right to oppress-clamorously echo the denial. The people of some of the States are believed-I wish there were no doubt of the fact to the State, and were not numbered among its "people or citizens." If this claim be true, it must be susceptible of the most unequivocal proof. Upon so important a question, it will never do to admit a doubt. And the rule excluding these persons must have been clear and explicit; yet such explicit exclusion is not pretended. But the fact is sought to be established by a series of strained inferences and mere guesses. Resort is not had to the law and the testimony. Stat utes, constitutions, records, are passed by as unworthy of attention; and the assumption of the exclusion is founded upon the fact alone that the ancestors of its subjects had been enslaved, and they themselves were sometimes unjustly treated as though Governments had done anything else, in this world of ours, than oppress, directly or indirectly, one class or another of their citizens or subjects. ، This, then, is the proposition: "that no person whose ancestors had been oppressed, and 'who was himself ill-treated by the colonists, could have been numbered among the people or citizens." I would advise caution to those who propose to accept this proposition, a close examination of the genealogical tree, lest the conclusion might apply where least expected. But the great birth act of the Republic is in the way of the court, and the audacious sacrilege with which that act is treated, I confess, surprises me. The great principles of justice be as earnestly devoted to justice, to the doc and natural law upon which it was foundedtrines of the Declaration, and the spirit of the those principles that alone redeemed our faConstitution, as others are supposed to be to thers from the charge of criminal rebelliontheir opposite. To render fruitless that devo- are limited to a race, to a mere fraction of the tion, State sovereignty, and with it the Consti- human family; and failing in argument to tution, must be overthrown. Well may the prove this limitation, the court magisterially colored American view with vengeful joy the pronounces it "too clear for dispute." The madness of his insane tormentors, as he sees idea, so sublime yet so simple, that the them, in their eagerness to destroy every refuge from their hate, pull down upon their own heads the fair fabric of their own constitutional freedom I the com mon Father of mankind has endowed His children with rights which cannot be taken from them-the right to life and the right to liberty-this divine idea, the harmonic chain of humar society, before which our fathers bowed in humble contrition for their own inconsistency, But the doctrinal heresy of this opinion does not exceed its gross perversions of history. I do not now propose to wade through the mass yet in fervent hope for its full realization, be of those perversions; to trace the garbled facts cause of this inconsistency, is shorn of its holiofficer of the same society of which Franklin 3. They were universally recognised as citi was President, for pursuing its legitimate work-zens. The elective franchise, till very recently a work that wove the brightest flowers in the granted to none but citizens, was conferred upon chaplet on the brow of the philosopher-was them in nearly all the original States; was with illegally thrown into prison by a Federal judge, in my own recollection enjoyed in North Caro while his own State refused him protection, and lina. Tennessee, and Pennsylvania, and still is his own city applauded the outrage! So Wash in New York and nearly all the New England States. Their citizenship itself was scarcely, if at all, disputed. South Carolina and Delaware alone refused them the rights of electors,* but I cannot learn that even there the general isw upon the subject was doubted or sought to be changed. ness, is made but the precept of tyranny. That Sentence, that has commanded the homage of mankind, this court would thus sneeringly ren der: "We hold these truths to be self evident: 'that the superior races, if born of free mothers, 'are created equal; that they are endowed by 'their Creator with certain inalienable rights; that among them are life, liberty, and the pur 'suit of happiness; that to secure these rights 'Governments are instituted, deriving their just 'powers from the consent of such races, if free ' and white, among the governed." But our fathers deserve not this taunt. That they were not wholly consistent is too trueand what human institutions realize the ideal of those who are leading us onward and upward?but none were more keenly sensible than they of this inconsistency; none could be more aux ious to be redeemed from its charge; and not by apostacy to their sublime faith, but by "works meet for repentance." We according ly find the great and good among them anxiously laboring to carry out the doctrines of the Declaration, and as understood by them, not by this court. Franklin, Jay, Hamilton, and others, became officers of societies for the abolition of Slavery and protection of the free And to illustrate our own apostacy from these truths, in contrast with their former apprecia tion, I ask attention to the fact that a recent was made to amend it by inserting "white" he fore "inhabitants." and especially, also, as the article itself contains exceptions not including negroes. And yet, with characteristic effrontery, this court asserts that "free inhabitants" cannot include free negroes, and for the reasonmark the logic-that the Southern States, in order to throw the chief burden of the war upon the States best able to bear it, procured the adoption of the provision that the quota of land forces should be proportioned to the "whitein. habitants" of the States. Because of this spportionment of troops, therefore-no, "there. fore" is not sufficiently positive, and the sequitur requires a very strong connective-"it cannot for a moment be supposed," says the court, that "free inhabitants" can mean other than free white inhabitants! This sequitur reminds me of the boy's syllogism: "I gave my knife for a ride to Boston; my knife cost fifty cents: it is therefore fifty miles to Boston." If any one doubts the conclusion, it can be at once nailed by some authoritative pronunciamiento, that "none other can for a moment be sup posed." What fools composed the delegations that sought to insert "white" as restrictive of general citizenship, and with others actually procured its insertion as restrictive of their obli gations to raise troops! They should have known that it was always understood. ington and Jefferson, and all others whose names posterity holds in reverence, united in condemning Slavery, and especially as a glar ing inconsistency with the principles of the Declaration. But, to be more specific: This court was forced to admit, and thereby admitted away its whole case, that all who were citizens in the several States, at the time of the adoption of the Constitution, became citizens of the United States. (Page 406) So we have only to in quire whether free blacks were then citizens in I assert that the native born among them were then citizens in all the States, because any of the States. 1. They were citizens by the general law, by virtue of their nativity, unless excluded by ex press and unequivocal enactments; and I have been unable to find such exclusion in any of the States. 2. The Articles of Confederation had made them general citizens. "The free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all the privileges and immunities of 'free citizens in the several States." It would The new-fangled idea of this court was clear ly unknown in 1800. In that year, Mr. Wain presented to the House an Anti-Slavery petition from the free men of color of Philadelphis. The petitioners expressly spoke of themselves as cit izens of the United States; and although the petition caused two whole days of angry disen sion, none disputed the fact of citizenship, or claimed for it any different treatment than though it came from whites. I can only allude to the complaint of Mr. Jefferson against the attack of a British ship of war upon the Chesapeake, and killing and seis ing "American citizens" those citizens being negroes; to the proclamation of Gen. Jackson at New Orleans, calling upon the free colored people, as citizens, to rally in defence of their country; the final resolution of Congres st mitting Missouri into the Union, overruling one seem that nothing could be more plain than this, *In Virginia, Georgia, and Maryland, it is doubral and especially when an unsuccessfi attempt there was no constitutional prohibition. clause of her Constitution against free men of 'and these companies shall again be formed incolor from other States, because it contravened 'to battalions," &c. that clause of the Constitution guarantying general citizenship; or to the former practice of granting foreign passports to free colored 88 well as hite citizens: and cannot allude at all to the thousand other similar instances that challenge attention. They all render absurd the assumption that these persons "were not regarded in any of the States as members of the community," &c. I have no time to go into further detail; but inasmuch as the Chief Justice has asserted that "it cannot be believed that the larger slave holding States regarded them as included in the 'word citizens," I will briefly refer to the acts of Virginia on the subject, which I believe was a tolerably large slaveholding State. The first action of Virginia upon citizenship I find in 10 Henning, p. 129, 130, in the act of May 3, 1779, "declaring who shall be deemed citizens of this Commonwealth." By that act, it was provided "that all white persons," &c., and "the free white inhabitants of every one of the States," should be deemed citizens, and should enjoy all the rights," &c., of citizens of Virginia. This restriction to "white per sons" within the State was so contrary to the general law, and to the spirit of the day, and the restriction to the "white inhabitants" of the other States was so contrary to the Articles of Confederation, that, at the October session, 1783, (11 Henning, 323, 324,) the act was expressly repealed, led and and it was then enacted that "all free persons born within the territory of this Commonwealth *** shall be deem'ed citizens of this Commonwealth." Here we have it on the record, plain and unequivocal, in the first year of our independence. "All free male persons" are expressly recognised as included in the words "citizens of this Commonwealth." "But this 'cannot be believed," our court would say. ""The large slaveholding States' could not so regard them; and as we have decided that 'free inhabitants means free white inhabitants, so 'free male persons' must mean free white male persons." But, as if anticipating modern judicial acumen, the same act goes on to say, "the free mulattoes in said companies or battalions shall be employed as drummers, fifers, or pioneers." So it must "be believed" that "free male persons" means free male persons. ، Further, on page 280, I find it provided that the recruiting officers shall not "enlist any negro or mulatto into the service of this or 'either of the United States, until such negro or mulatto shall produce a certificate from 'some justice of the peace of the county where'in he resides, that he is a free man." ، And in view of the fact that all the States enlisted in the armies of the Revolution their tree colored as well as white citizens, and upon the same terms; that they flocked to their country's standard with the same alacrity as the whites; that they fought and bled on every battle-field-the first blood shed in the contest being that of a negro; that ever since, they have been pensioned under the same laws as white soldiers-how intensely mean the bald assumption that they were not a part of the people of the United States! Great are the necessities of despotism, and humiliating the shifts to which it drives its votaries! This last act continued in force come forty years, till a race arose that "knew not Joseph," till after the commencement of that grand defection which has culminated in the Dred Scott decision. "It cannot be believed," indeed! If this court would give more attention to facts, and less to despotic interest and instincts, it under the general law of citizenship, and no might be led to believe many things yet hidden from its sight. If those who fought through the war to establish our liberties, who were electors in nearly every State, and voted for the delegates that adopted the Constitution, who were embraced where excluded-if they formed no part of the people or citizens of the country, I should like to know on what rest the claims of any man, when the necessities of despotism demand his exclusion? There is another fact in the legislation of Virginia, that may throw a little light upon the inquiry, as to whom this large slaveholding State regarded as included in the word citizen. In 9 Henning, 267, 268, I find "an act for regulating and disciplining the militia," passed May is a matter exclusively of State regulation; so 6, 1777, and in force, so far as I find, at the that the citizens of each State are citizens of time of the adoption of the Constitution. It the United States; and I have also negatived begins as follows: the assumption that colored natives were no"For forming the citizens of this Common- where treated and considered as a part of the 'wealth into a militia, and disciplining the same people, or citizens of the several States, at the Assembly, that all free male persons, hired ser- with the undisputed and universal modern law, for defence thereof, be it enacted by the General adoption of the Federal Constitution. So that, 'vants, and apprentices, between the ages of that makes all native members of the commufifteen and fifty years, (except the Governor, nity citizens, which law is nowhere repealed, '&c.,) shall, by the commanding officer of the and is faithfully enforced in many of the States, county in which they reside, be enrolled and it plainly appears that a native-born free deformed into companies of not less than thirty- scendant of African slaves may be a citizen of 'two nor more than sixty-eight rank and file, the United States. I have, I believe, succeeded in showing that United States citizenship, in respect to natives, 1 |