tucky decided that free negroes and mulattoes were not citizens within the meaning of the Constitution of the United States; and the correctness of this decision is recognized, and the same doctrine affirmed, in 1 Meig's Tenn. Reports, 331.”1

The Chief Justice then again turns to the legislation of the States which have abolished slavery. After noticing the law of Massachusetts of 1786, continued in the Code of 1836, on marriage, Judge Taney refers particularly to the laws of Connecticut, arguing, from the terms of the acts of 1774 and 1784, prohibiting the importation of slaves and abolishing slavery, that the intention or motive of the legislator was not to confer rights on the negro, but to protect or benefit the white population; and, noticing the law of 1833 and Crandall's case.' And observes that, "if we find that, at the time the Constitution was adopted, they were not even there [i. e., Connecticut] raised to the rank of citizens, but were still held and treated as property, and the laws relating to them passed with reference altogether to the interest and convenience of the white race, we shall hardly find them elevated to a higher rank any where else."

Besides these, the militia law of New Hampshire, of 1815, permitting whites only to be enrolled in the militia,' and the marriage law of Rhode Island of 1822, re-enacted in 1844, are the only State laws mentioned. On p. 416 the Chief Justice proceeds to say :—

"It would be impossible to enumeratę and compress in the space usually allotted to an opinion of a court the various laws, marking the condition of this race, which were passed from time to time after the Revolution, and before and since the adoption of the Constitution of the United States. In addition to those already referred to, it is sufficient to say that Chancellor Kent, whose accuracy and research no one will question, states in the sixth edition of his Commentaries (published in 1848, 2d vol., 258, note b), that in no part of the country, ex

See ante, pp. 41-46.

See ante, pp. 16, 92. The Judge says:-"Nothing could more strongly mark the entire repudiation of the African race. The alien is excluded because, being born in a foreign country, he cannot be a member of the community until he is naturalized. But why are the African race, born in the State, not permitted to share in one of the highest duties of the citizen? The answer is obvious: he is not, by the institutions and laws of the State, numbered among its people. He forms no part of the sovereignty of the State, and is not, therefore, called upon to maintain it."

cept Maine, did the African race, in point of fact, participate equally with the whites in the exercise of civil and political rights.

"The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed' that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed, that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For, if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations [417] which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they

1 What follows here, together with many other passages in the residue of the opinion, bears directly on the question considered in the next chapter. These passages show that the bearing of the decision of this case on questions arising under the fourth Article was not forgotten by the court.

pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.'

"It is impossible, it would seem, to believe that the great men of the slaveholding States, who took so large a share in framing the Constitution of the United States, and exercised so much influence in procuring its adoption, could have been so forgetful or regardless of their own safety and the safety of those who trusted and confided in them.

"Besides, this want of foresight and care would have been utterly inconsistent with the caution displayed in providing for the, admission of new members into this political family. For, when they gave to the citizens of each State the privileges and immunities of citizens in the several States, they at the same time took from the several States the power of naturalization, and confined that power exclusively to the Federal Government. No State was willing to permit another State to determine who should or should not be admitted as one of its citizens, and entitled to demand equal rights and privileges with their own people, within their own territories. The right of naturalization was, therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the

As it stands here the argument is:-Negroes cannot be citizens in the sense of the word in the second section of the third Article, because it would lead to their being recognized as citizens in the sense of the word in this, clause of the fourth, which consequence, it is here assumed in the argument, had by some previous demonstration been excluded. But, though the argument be herein defective, it is evident that the method of interpretation applied to citizen of a State in the third Article will apply as well to the same phrase in the fourth Article.

rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class.' And when we find the States guarding themselves from the indiscreet or improper admission by other States of emigrants from other countries, by giving the power exclusively to Congress, we cannot fail to see that they could never have left with the States a much [418] more important power-that is, the power of transforming into citizens a numerous class of persons, who in that character would be much more dangerous to the peace and safety of a large portion of the Union, than the few foreigners one of the States might improperly naturalize. The Constitution, upon its adoption, obviously took from the States all power by any subsequent legislation to introduce as a citizen into the political family of the United States any one, no matter where he was born, or what might be his character or condition; and it gave to Congress the power to confer this character upon those only who were born outside of the dominions of the United States. And no law of a State, therefore, passed since the Constitution was adopted, can give any right of citizenship outside of its own territory."

The Chief Justice then refers to the language of the Articles of Confederation as indicating this discrimination among the inhabitants' of the States. He declares that it is "very clear" that "free inhabitants" in the Article means only free white inhabitants, and argues, also, that the change of words in the Constitution indicates that citizen is more than "free inhabitant," even if that applied to free negroes.

Judge Taney afterwards (19 How., 419-421) refers to the

In this argument naturalization is supposed to have in the Constitution a different meaning from that which it has in the jurisprudence of England and continental Europe (ante, p. 275). The idea that it means making an alien a citizen in a higher sense than native-born subject is new, unless it may have been suggested by Judge Mills in the Kentucky case (ante, p. 16, n.) But, if this be admitted, it is mere assumption, or arguing in a circle, to say that the power to naturalize does not extend to negroes because they are, "by the laws of the country, of an inferior class;" for the very question here is-Are they of such an inferior class, in view of the Constitution, that they cannot be citizens of a State?

2 It is difficult to fix upon a term general enough to include the negro race, and also in harmony with the language of this opinion. Judge Taney will not allow that negroes of any status can be citizens, or free inhabitants, or people. He has designated them as still property after manumission or emancipation.

legislation of Congress in admitting only white aliens to naturalization, and the acts wherein the term citizen is used in connection with words distinguishing persons in respect to color, as confirming the view which limits the term citizen of the United States to whites.' These laws will hereinafter be noticed. The part of the opinion which then follows (19 How., 421-423) is more particularly applicable to the question considered in the next chapter, viz.: What are the privileges and immunities secured to citizens by this clause of the fourth Article? But it is here to be noticed as repudiating the idea that the term citizen may have different meanings in different connections.

Judge Taney here says:-"But it is said that a person may be a citizen, and entitled [422] to that character, although he does not possess all the rights which may belong to other citizens; as, for example, the right to vote, or to hold particular offices; and that yet, when he goes into another State, he is entitled to be recognized there as a citizen, although the State may mea

In the Chief Justice's argument citizenship is taken to mean a condition of civil privilege beyond the simple condition of domiciled inhabitant, native or naturalized, and the power of naturalization is taken to be the power of making a person a citizen in this enlarged sense. So the Judge argues in other places that the States cannot now determine who are citizens, because the power to naturalize has been given to Congress (19 How., 405). And he here speaks of naturalizing the native-born Indian, and denies all power in Congress to naturalize the Americanborn negro. The Judge says:-"Now, the Constitution does not limit the power of Congress in this respect to white persons. And they may, if they think proper, authorize the naturalization of any one, of any color, who was born under allegiance to another government. But the language of the law above quoted shows that citizenship at that time was perfectly understood to be confined to the white race; and that they alone constituted the sovereignty in the government.

Congress might, as we before said, have authorized the naturalization of Indians, because they were aliens and foreigners. But, in their then untutored and savage state, no one would have thought of admitting them as citizens in a civilized community. And, moreover, the atrocities they had but recently committed, when they were the allies of Great Britain in the Revolutionary war, were yet fresh in the recollection of the people of the United States, and they were even then guarding themselves against the threatened renewal of Indian hostilities. No one supposed, then, that any Indian would ask for, or was capable of enjoying, the privileges of an American citizen, and the word white was not used with any particular reference to them.

"Neither was it used with any reference to the African race imported into or born in this country; because Congress had no power to naturalize them, and therefore there was no necessity for using particular words to exclude them.

"It would seem to have been used merely because it followed out the line of division which the Constitution has drawn between the citizen race, who formed and held the Government, and the African race, which they held in subjection and slavery, and governed at their own pleasure." 19 How. 419, 420.