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The Rights of the People

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    EXTRACT FROM JUSTICE CURTIS’S DISSENTING OPINION

    Under the allegations contained in this plea, and admitted by the demurrer, the question is whether any person of African descent, whose ancestors were sold as slaves in the United States, can be a citizen of the United States. If any such person can be a citizen, this plaintiff has the right to the judgment of the court that he is so, for no cause is shown by the plea why he is not so, except his descent and the slavery of his ancestors.ROP 359.4

    The first section of the second article of the Constitution uses the language, “a citizen of the United States at the time of the adoption of the Constitution.” One mode of approaching this question is to inquire who were citizens of the United States at the time of the adoption of the Constitution.ROP 360.1

    Citizens of the United States at the time of the adoption of the Constitution can have been no other than citizens of the United States under the Confederation. By the Articles of Confederation a government was organized, the style whereof was, “The United States of America.” Tin’s government was in existence when the Constitution was framed and proposed for adoption, and was to be superseded by the new government of the United States of America, organized under the Constitution. When, therefore, the Constitution speaks of citizenship of the United States existing at the time of the adoption of the Constitution, it must necessarily refer to citizenship under the government which existed prior to and at the time of such adoption.ROP 360.2

    Without going into any question concerning the powers of the Confederation to govern the territory of the United States out of the limits of the States, and, consequently, to sustain the relation of government and citizen in respect to the inhabitants of such territory, it may safely be said that the citizens of the several States were citizens of the United Slates under the Confederation.ROP 360.3

    That government was simply a confederacy of the several States, possessing a few defined powers over subjects of general concern, each State retaining every power, jurisdiction, and right not expressly delegated to the United States in Congress assembled. And no power was thus delegated to the government of the Confederation, to act on any question of citizenship, or to make any rules in respect thereto. The whole matter was left to stand upon the action of the several States, and to the natural consequence of such action, that the citizens of each State should be citizens of that Confederacy into which that State had entered, the style whereof was, “The United States of America.”ROP 360.4

    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.ROP 360.5

    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.ROP 360.6

    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.ROP 361.1

    “According to the laws of this State,” says Judge Gaston, in delivering the opinion of the court, “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 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.”ROP 361.2

    In the State vs. Newcomb (5 Iredell’s R. 253), decided in 1844, the same court referred to this case of the State vs. Manuel, and said:ROP 361.3

    “That case underwent a very laborious investigation, both by the bar and the bench. The case was brought here by appeal, and was felt to be one of great importance in principle. It was considered with an anxiety and care worthy of the principle involved, and which give it a controlling influence and authority on all questions of a similar character.”ROP 361.4

    An argument from speculative premises, however well chosen, that the then state of opinion in the commonwealth of Massachusetts was not consistent with the natural rights of people of color who were born on that soil, and that they were not, by the constitution of 1780 of that State, admitted to the condition of citizens, would be received with surprise by the people of that State who know their own political history. It is true, beyond all controversy, that persons of color descended from African slaves were by that constitution made citizens of the State, and such of them as have had the necessary qualifications have held and exercised the elective franchise as citizens from that time to the present. (See Com. vs. Aves, 18 Pick. R. 210.)ROP 362.1

    The constitution of New Hampshire conferred the elective franchise upon “every inhabitant of the State having the necessary qualifications,” of which color or descent was not one.ROP 362.2

    The constitution of New York gave the right to vote to “every male inhabitant who shall have resided,” etc., making no discrimination between free colored persons and others. (See Con. of N. Y., Art. 2, Rev. Stats, of N. Y., vol. 1, p. 126.)ROP 362.3

    That of New Jersey, to “all inhabitants of this colony, of full age, who are worth L50 proclamation money, clear estate.”ROP 362.4

    New York, by its Constitution of 1820, required colored persons to have some qualifications as prerequisites for voting which white persons need not possess. And New Jersey, by its present Constitution, restricts the right to vote to white male citizens. But these changes can have no other effect upon the present inquiry except to show that, before they were made, no such restrictions existed, and colored, in common with white persons, were not only citizens of those States, but entitled to the elective franchise on the same qualifications as white persons, as they now are in New Hampshire and Massachusetts. I shall not enter into an examination of the existing opinions of that period respecting the African race, nor into any discussion concerning the meaning of those who asserted, in the Declaration of Independence, that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. My own opinion is that a calm comparison of these assertions of universal abstract truths, and of their own individual opinions and acts, would not leave these men under any reproach of inconsistency; that the great truths they asserted on that solemn occasion they were ready and anxious to make effectual wherever a necessary regard to circumstances, which no statesman can disregard without producing more evil than good, would allow; and that it would not be just to them, nor true in itself, to allege that they intended to say that the Creator of all men had endowed the white race exclusively with the great natural rights which the Declaration of Independence asserts. But this is not the place to vindicate their memory. As I conceive, we should deal here, not with such disputes, if there can be a dispute concerning this subject, but with those substantial facts evinced by the written constitutions of States, and by the notorious practice under them. And they show, in a manner which no argument can obscure, that in some of the original thirteen States free colored persons, before and at the time of the formation of the Constitution, were citizens of those States.ROP 362.5

    The fourth of the fundamental articles of the Confederation was as follows: “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.”ROP 363.1

    The fact that free persons of color were citizens of some of the several States, and the consequence, that this fourth article of the Confederation would have the effect to confer on such persons the privileges and immunities of general citizenship, were not only known to those who framed and adopted those articles, but the evidence is decisive that the fourth article was intended to have that effect, and that more restricted language, which would have excluded such persons, was deliberately and purposely rejected.ROP 363.2

    On the 25th of June, 1778, the Articles of Confederation being under consideration by the Congress, the delegates from South Carolina moved to amend this fourth article, by inserting after the word “free,” and before the word “inhabitants,” the word “white,” so that the privileges and immunities of general citizenship would be secured only to white persons. Two States voted for the amendment, eight States against it, and the vote of one State was divided. The language of the article stood unchanged, and both by its terms of inclusion, “free inhabitants,” and the strong implication from its terms of exclusion, “paupers, vagabonds, and fugitives from justice,“ who alone were excepted, it is clear that under the Confederation, and at the time of the adoption of the Constitution, free colored persons of African descent might be and by reason of their citizenship in certain States, were entitled to the privileges and immunities of general citizenship of the United States.ROP 363.3

    Did the Constitution of the United States deprive them or their descendants of citizenship?ROP 364.1

    That Constitution was ordained and established by the people of the United States, through the action, in each State, of those persons who were qualified by its laws to act thereon, in behalf of themselves and all other citizens of that State. In some of the States, as we have seen, colored persons were among those qualified by law to act on this subject. These colored persons were not only included in the body of “the people of the United States,” by whom the Constitution was ordained and established, but in at least five of the States they had the power to act, and doubtless did act, by their suffrages, upon the question of its adoption. It would be strange if we were to find in that instrument anything which deprived of their citizenship any part of the people of the United States who were among those by whom it was established.ROP 364.2

    I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption, nor any power enabling Congress to disfranchise persons born on the soil of any State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is that under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States....ROP 364.3

    It has been often asserted that the Constitution was made exclusively by and for the white race. It has already been shown that in five of the thirteen original States colored persons then possessed the elective franchise, and were among those by whom the 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 any assumption not warranted by anything 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 States, they were among those for whom and whose posterity the Constitution was ordained and established....ROP 364.4

    The conclusions at which I have arrived on this part of the case are:-ROP 365.1

    First, that the free native-born citizens of each State are citizens of the United States.ROP 365.2

    Second, that as free colored persons born within some of the States are citizens of those States, such persons are also citizens of the United States.ROP 365.3

    Third, that every such citizen, residing in any State, has the right to sue, and is liable to be sued, in the federal courts as a citizen of that State in which he resides.ROP 365.4

    Fourth, that as the plea to the jurisdiction in this case shows no facts, except that the plaintiff was of African descent, and his ancestors were sold as slaves, and as these facts are not inconsistent with his citizenship of the United States, and his residence in the State of Missouri, the plea to the jurisdiction was bad, and the judgment of the Circuit Court overruling it was correct.ROP 365.5

    I dissent, therefore, from that part of the opinion of the majority of the court in which it is held that a person of African descent cannot be a citizen of the United States; and I regret I must go further, and dissent both from what I deem their assumption of authority to examine the constitutionality of the act of Congress commonly called the Missouri Compromise Act, and the grounds and conclusions announced in their opinion.ROP 365.6

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