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JUDGES CURTIS AND GASTON ON TANEY.

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stitution were aware that persons held to “Of this, there can be no doubt. At the service under the laws of a State are prop

time of the ratification of the Articles of erty only to the extent and under the condi- | Confederation, all free, native-born inhabtions fixed by those laws; and that they itants of the States of New Hampshire, must cease to be available as property when Massachusetts, New York, New Jersey, and their owners voluntarily place them perma- North Carolina, though' descended from nently within another jurisdiction, where African slaves, were not only citizens of no municipal laws on the subject of Slavery those States, but such of them as had the exist ?

other necessary qualifications possessed the “Moreover, if the right exists, what are franchise of electors, on equal terms with its limits, and what are its conditions? If other citizens.” citizens of the United States have a right to take their slaves to a Territory, and hold them there as slaves, without regard to the

He proceeds to cite, in support of laws of the Territory, I suppose this right is this averment, the judgment of the not to be restricted to the citizens of slave- Supreme Court of North Carolina in holding States. A citizen of a State which does not tolerate Slavery can hardly be deni- the case of the State against Manuel, ed the power of doing the same thing. And wherein William Gaston-by far the what law of Slavery does either take with him to the Territory? If it be said to be most eminent jurist of whom that those laws respecting Slavery which existed

State could ever boast-pronounced in the particular State from which each slave the opinion of the Court in the follast came, what an anomaly is this! Where else can we find, under the laws of any civil

lowing terms. ized country, the power to introduce and permanently continue diverse systems of

" According to the laws of this State, all foreign municipal law, for holding persons

human beings within it, who are not slaves,

fall within one of two classes. Whatever in Slavery?”

distinctions may have existed in the Roman Justice Curtis is an ultra conserva- laws between citizens and free inhabitants

, tive of the State-street (Boston) school they are unknown to our institutions. Be

fore our Revolution, all free persons born —a life-long follower of Mr. Webster, within the dominions of the King of Great especially in his later and more lament- Britain, whatever their color or complexion, able days—and yet his opinion deliv- were native-born British subjects — those

born out of his allegiance were aliens. Slaered in this case evinces considerably very did not exist in England, but it did in more freedom and boldness than that the British Colonies. Slaves were not, in of Judge McLean. Though couched legal parlance, persons, but property. The

moment the incapacity, the disqualification in judicial and respectful language, of Slavery was removed, they became perit constantly, and pretty clearly, inti- sons, and were then either British subjects

,

or not British subjects, according as they mates not merely that the judgment were or were not born within the allegiance of the Court is contrary both to law of the British king. Upon the Revolution, and to fact, but that its authors well North Carolina than was consequent on the

no other change took place in the laws of know such to be the case. In reply transition from a colony dependent on a Euto Chief Justice Taney's disquisition ropean king to a free and sovereign State.

Slaves remained slaves. British subjects in as to the opinions and views of our North Carolina became North Carolina freeRevolutionary statesmen, Mr. Curtis men. Foreigners, until made members of bluntly says:

the State, remained aliens. Slaves, manu

mitted here, became freemen; and therefore, - To determine whether any free persons, if born within North Carolina, are citizens descended from Africans held in Slavery, of North Carolina ; and all free persons born were citizens of the United States under the within the State are born citizens of the Confederation, and consequently at the time State. The Constitution extended the elecof the adoption of the Constitution of the tive franchise to every freeman who had United States, it is only necessary to know

only necessary to know | arrived at the age of twenty-one, and paid a whether such persons were citizens of either public tax; and it is a matter of universal of the States under the Confederation, at I notoriety, that, under it, free persons, withthe time of the adoption of the Constitution. out regard to color, claimed and exercised “So the act of February 28, 1803 (2 Stat. He sums up his conclusions as to

This

United States.

99

the franchise, until it was taken from free men at Large, 205), to prevent the importation of color a few years since, by our amended of certain persons into States, when, by the Constitution."

laws thereof, their admission is prohibited, Continuing his review of the Chief in its first section forbids all masters of ves

sels to import or bring any negro, mulatto, Justice's assumptions, Judge Curtis or other person of color, not being a native, says:

a citizen, or registered seaman of the United

States, etc., etc. “It has been often asserted that the Con

“The acts of March 3, 1813, § 1 (2 Stat. stitution was made exclusively by and for

at Large, 809), and March 1, 1817, § 3 (3 the white race. It has already been shown that, in five of the thirteen original States, certainly imply that there may be persons of

Stat. at Large, 351), concerning seamen, colored persons then possessed the elective color, natives of the United States

, who are franchise, and were among those by whom

not citizens of the United States. the Constitution was ordained and estab- implication is undoubtedly in accordance lished. If so, it is not true, in point of

with the fact. For not only slaves, but fact, that the Constitution was made ex

free persons of color, born in some of the clusively by the white race. And that it States, are not citizens. But there is nothing was made exclusively for the white race is,

in these laws inconsistent with the citizenin my opinion, not only an assumption not ship of persons of color in others of the warranted by anything in the Constitution,

States, nor with their being citizens of the but contradicted by its open declaration, that it was ordained and established by the people of the United States, for themselves be attached to the particular phraseology of

" Whether much or little weight should and their posterity. And, as free colored

these and other laws, which were not persons were then citizens of at least five passed with any direct reference to the Štates, and so, in every sense, part of the subject, I consider their tendency to be, people of the United States, they were

as already indicated, to show that, in the among those for whom and whose posterity apprehension of their framers, color was the Constitution was ordained and established.”

not a necessary qualification for citizenship.

It would be strange, if laws were found on Judge Curtis is not content with our statute-book to that effect, when, by refuting the logic of the Chief Jus- solemn treaties, large bodies of Mexican

, as as tice. He seizes the weapons of his free colored persons of Louisiana, have antagonist and turns them against been admitted to citizenship of the United

States." him with decided effect. Witness the following:

Mr. Curtis cites with effect the “I do not deem it necessary to review at action of Congress in 1821 on the length the legislation of Congress having admission of Missouri, whereby that more or less bearing upon the citizenship State was constrained to abandon of colored persons. It does not seem to me to have any considerable tendency to prove and repudiate her attempt to prothat it has been considered by the legisla- hibit the settlement of free negroes tive department of the Government that no such persons are citizens of the United and mulattoes within her borders;' States. Undoubtedly, they have been de- whereof he says: barred from the exercise of particular rights or privileges extended to white persons, “It is true, that neither this legislative but, I believe, always in terms which, by declaration, nor anything in the Constituimplication, admit that they may be citi- tion or laws of Missouri, could confer or žens. Thus, the act of May 17, 1792, for take away any privilege or immunity the organization of the militia, directs the granted by the Constitution. But it is also enrollment of every 'free, able-bodied, white true that it expresses the then conviction male citizen.' An assumption that none of the legislative power of the United States, but white persons are citizens, would be as that free negroes, as citizens of some of the inconsistent with the just import of this States, might be entitled to the privileges language, as that all citizens are able-bodied, and immunities of citizens in all the States.” or males.

7 See page 80 of this work.

JUDGE CURTIS ON NEGRO CITIZENSHIP,

263

sides.

correct.

the right of Dred Scott to bring this right of each slaveholder to remove action, as follows:

with his slaves into any territory of 56 First. That the free, native-born citizens

the United States, and there retain of each State are citizens of the United and control them under the agis of States. “ Second. That, as free colored persons,

the Federal Constitution. He shows, born within some of the States, are citizens further, that the majority erred in of those States, such persons are also citi- upholding a majority of the Supreme zens of the United States. " Third. That every such citizen, re

Court of Missouri in overruling their siding in any State, has a right to sue, and own Chief Justice and their own is liable to be sued, in the Federal Courts

, former decisions, whereby it had been as a citizen of that State in which he re

established, in accordance with kin"Fourth. That, as the plea to the juris- dred decisions in Louisiana, as in that the plaintiff' was of African descent, and other Slave States, that a slave taken that his ancestors were sold as slaves, and by his master, or removed with his as these facts are not inconsistent with his citizenship of the United States and his assent, to a Free State, or to any residence in the State of Missouri, the plea country wherein Slavery is prohibitto the jurisdiction was bad, and the judg- ed, becomes thereby a freeman, and ment of the Circuit Court overruling it was

cannot be returned or reduced again "I dissent, therefore, from that part of to Slavery. It cannot, however, be the opinion of the majority of the court in which it is held that a person of African necessary to quote further on this descent cannot be a citizen of the United head. He concludes: States; and I regret I must go further, and dissent both from what I deem their assump

“For these reasons, I am of the opinion

that so much of the several acts of Congress tion of authority to examine the constitutionality of the act of Congress commonly | tude within that part of the Territory of

as prohibited Slavery and involuntary servicalled the Missouri Compromise act, and the grounds and conclusions announced in their Missouri lying north of thirty-six degrees

thirty minutes north latitude, and west of opinion. “Having first decided that they were

the river Mississippi, were constitutional bound to consider the sufficiency of the plea to the jurisdiction of the Circuit Court, and

“In my opinion, the judgment of the having decided that this plea showed that

Circuit Court should be reversed, and the

cause remanded for a new trial.”' the Circuit Court had not jurisdiction, and consequently that this is a case to which the judicial power of the United States does

The majority of the Justices comnot extend, they have gone on to examine posing the Supreme Court, after dethe merits of the case as they appeared on ciding that Dred Scott had no standthe trial before the court and jury, on the issues joined on the pleas in bar, and so ing in that Court, and that the case have reached the question of the power of was, therefore, entirely beyond, or Congress to pass the act of 1820. On so outside of, its jurisdiction, had prograve a subject as this, I feel obliged to say that, in my opinion, such an exertion of ceeded to take and make jurisdiction, judicial power transcends the limits of the for the purpose of ousting Congress authority of the Court

, as described by its and the people from all right or repeated decisions, and, as I understand, acknowledged in this opinion of the majori- power to exclude Slavery from the ty of the Court."

Federal Territories, organized or unMr. Curtis proceeds to confute at organized. Congress had repeatedly, length, and with decided ability, the and from the very origin of the Govdoctrines of the majority, affirming ernment, legislated on this subject, the invalidity of the Missouri Re- and to this end. The Supreme striction, and asserting the paramount Court now interposes, in a

and valid laws.

case

و3

wherein it proclaims itself devoid of the Territories generally, had been jurisdiction, and denies the validity commenced and prosecuted under of such legislation. The people are the banner of “Popular Sovereigntreated as inclining to usurp the ty;" and it was to this complexion power of excluding human bondage it had come at last; and it was of from their territorial possessions ; so this judgment, just about to be prothe Court decides that they have no claimed to an astounded people, that rights in the premises, no power to Mr. Buchanan, in his Inaugural act on the question. If twenty mil- aforesaid, says: lions of freemen were unanimously

“The whole territorial question being and earnestly to insist that Freedom thus settled upon the principle of Popular should be the law of their common Sovereignty--principle as ancient as free

government itself-everything of a practical territories, while but one slaveholder nature has been decided. No other quesshould claim the privilege of taking tion remains for adjustment; because all his slaves to and holding them in agree that, under the Constitution, Slavery

in the States is beyond the reach of any said territories, the claim of this one human power, except that of the respective slaveholder, according to the Court, States themselves wherein it exists. May

we not, then, hope that the long agitation would override and defeat, conclu- on this subject is approaching its end, and sively, the earnest demands of those that the geographical parties to which it twenty millions of freemen. The has given birth, so much dreaded by the

father of his country, will speedily become war upon the Missouri Restriction, extinct ?" and against Slavery Inhibition in !

XIX.

O UR FOREIGN POLICY - CUBA.

THE foundations of our foreign | To Washington and his eminent policy were firmly and strongly laid compatriots in our Revolutionary during the Presidency, and under struggle, and in the framing of our the councils, of Washington. To Federal Union, is the credit justly mind our own business, and leave due of having originated and firmly other nations to manage their affairs, upheld this policy, in defiance of and to preserve, recast, or modify popular passion, and under circumtheir respective governments, as to stances of great difficulty and emthem shall seem fit and advantageous barrassment. But Jefferson, Madi--to regard the rule actually estab- son, George Clinton, Gerry, and lished and operative in any nation their associate founders of the Repubas the rightful government of that lican party, very generally yielded to nation, however widely divergent this policy a tacit, if not positive and it may be from our own notions emphatic, approval. The mob of the of what is wisest and most beneficent: seaboard cities, who shouted beneath such are its great cardinal principles. I the windows of Citizen Genet,

OUR EARLY FOREIGN POLICY_FRANCE.

265

burned Jay's treaty in the streets, , ing a strict neutrality between revoand clamored violently for alliance lutionary France and the banded with revolutionary France and war despots who assailed her, they did upon Tory England, were, of course, not entirely escape the imputation of anti-Federal; and their voices and ingratitude, if not positive bad faith. votes helped to strengthen the Re- Our country was deeply indebted to publican opposition in Congress, and France for the generous and vitally to swell the steadily-growing host important assistance received from that, in due time, ousted the Federal her in our Revolutionary struggle; ists from power, by electing Mr. Jef- and, although France was not—as ferson to the Presidency.

nations, like individuals, seldom are But Mr. Jefferson himself never-entirely disinterested in rendering shared in the blind passions by which that assistance, the advantage accruhe so largely profited. An earnest ing to and the obligation incurred by and unchanging devotee of cheap, us were scarcely lessened by that consimple, and frugal government, he sideration. When barely two of our profoundly realized that wars were seven years' arduous struggle had costly, and alliances perilous; and, passed, Louis XVI. decided to acwhile he hated the British Govern- knowledge our independence; and ment as embodying whatever was, at his minister soon after united with the same time, most pernicious to our envoys in a treaty of alliance, our country, and most seductive to whereof the preponderance of beneher wealthy and commercial classes, fits was very greatly on our side. he never, after our independence And among the stipulations of that was achieved, was eager to tempt treaty—a treaty whereby we profited again the desperate chances, the cer- too much in the general to be fastiditain devastations and enduring bur- ous as to the particulars — was the dens, of war with Great Britain. following: Before the close of his Presidency,

"ART. XI. The two parties guarantee the popular feeling would have fully mutually, from the present time and forjustified and sustained him in declar- ever, against all other powers, to wit: ing war, but he wisely forbore; and Majesty, the present possessions of the crown

The United States, to his Most Christian it was only after the strong infusion of France in America, as well as those which of young blood into the councils of it may acquire by the future treaty of peace:

And His Most Christian Majesty guarantees the Republican party, through the on his part to the United States their liberelection of Messrs. Clay, Grundy, ty, sovereignty, and independence, absolute Calhoun, John Holmes, etc., to Con- ment as commerce, and also their posses

and unlimited, as well in matters of governgress, that the hesitation of the cau- sions, and the additions or conquests that tious and philosophic Madison was

their confederation may obtain during the overborne by their impetuosity, and heretofore possessed by Great Britain in

war, from any of the dominions now or war actually proclaimed.

North America, conformably to the 5th and When Washington and his advi- 6th articles above written, the whole as

their possessions shall be fixed and assured sers definitively resolved on preserv- to the said States, at the moment of the

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1 On the occasion of the outrageous attack on the frigate Chesapeake by the Leopard.

2 February 6, 1778. This treaty was kept secret for several months.

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