Now, this was the year the agitation movement began. Instead of the slave population decreasing during the first decade of anti-slavery discussion and work, it really increased 478,412![36]

CENSUS OF 1840.—SLAVE POPULATION.

CENSUS OF 1840.—SLAVE POPULATION.—(Continued.)

During the next decade the slave population swept forward to an increase of 716,858. The entire population of slaves was 3,204,313; 2,957,657 were unmixed Africans, and 246,656 were Mulattoes. The free Colored population amounted to 434,495, of whom 275,400 were unmixed, and 159,095 mixed or Mulatto. The total number of families owning slaves in 1850 was 347,525.

CENSUS OF 1850.—SLAVE POPULATION.

The Thirty-first Congress was three weeks attempting an organization, and at last effected it by the election of a Southerner to the Speakership, the Hon. Howell Cobb, of Georgia. President Zachary Taylor had called the attention of Congress to the admission of California and New Mexico into the Union, in his message to that body upon its assembling. On the 4th of January, 1850, Gen. Sam. Houston, United States Senator from Texas, submitted the following proposition to the Senate:

"Whereas, The Congress of the United States, possessing only a delegated authority, has no power over the subject of negro slavery within the limits of the United States, either to prohibit or to interfere with it in the States, territories, or districts, where, by municipal law, it now exists, or to establish it in any State or territory where it does not exist; but as an assurance and guarantee to promote harmony, quiet apprehension, and remove sectional prejudice, which by possibility might impair or weaken love and devotion to the Union in any part of the country, it is hereby

"Resolved, That, as the people in territories have the same inherent rights of self-government as the people in the States, if, in the exercise of such inherent rights, the people in the newly acquired territories, by the annexation of Texas and the acquisition of California and New Mexico, south of the parallel of thirty-six degrees and thirty minutes of north latitude, extending to the Pacific Ocean, shall establish negro slavery in the formation of their State governments, it shall be deemed no objection to their admission as a State or States into the Union, in accordance with the Constitution of the United States."

On the 29th of January, Henry Clay, of Kentucky, submitted to the United States Senate the following propositions looking toward an amicable adjustment of the entire slavery question:

"1. Resolved, That California, with suitable boundaries, ought, upon her application, to be admitted as one of the States of this Union, without the imposition by Congress of any restriction in respect to the exclusion or introduction of slavery within those boundaries.

"2. Resolved, That as slavery does not exist by law, and is not likely to be introduced into any of the territory acquired by the United States from the republic of Mexico, it is inexpedient for Congress to provide by law either for its introduction into, or exclusion from, any part of the said territory; and that appropriate territorial governments ought to be established by Congress in all the said territory not assigned as within the boundaries of the proposed State of California, without the adoption of any restriction or condition on the subject of slavery.

"3. Resolved, That the western boundary of the State of Texas ought to be fixed on the Rio del Norte, commencing one marine league from its mouth, and running up that river to the southern line of New Mexico, thence with that line eastwardly, and so continuing in the same direction to the line as established between the United States and Spain, excluding any portion of New Mexico, whether lying on the east or west of that river.

"4. Resolved, That it be proposed to the State of Texas, that the United States will provide for the payment of all that portion of the legitimate and bona-fide public debt of that State contracted prior to its annexation to the United States, and for which the duties on foreign imports were pledged by the said State to its creditors, not exceeding the sum of—— dollars, in consideration of the said duties so pledged having been no longer applicable to that object after the said annexation, but having thenceforward become payable to the United States; and upon the condition, also, that the said State of Texas shall, by some solemn and authentic act of her Legislature, or of a convention, relinquish to the United States any claim which she has to any part of New Mexico.

"5. Resolved, That it is inexpedient to abolish slavery in the District of Columbia whilst that institution continues to exist in the State of Maryland, without the consent of that State, without the consent of the people of the District, and without just compensation to the owners of slaves within the District.

"6. But Resolved, That it is expedient to prohibit within the District, the slave-trade in slaves brought into it from States or places beyond the limits of the District, either to be sold therein as merchandise, or to be transported to other markets without the District of Columbia.

"7. Resolved, That more effectual provision ought to be made by law, according to the requirement of the Constitution, for the restitution and delivery of persons bound to service or labor in any State, who may escape into any other State or territory in the Union. And

"8. Resolved, That Congress has no power to prohibit or obstruct the trade in slaves between the slave-holding States, but that the admission or exclusion of slaves brought from one into another of them, depends exclusively upon their own particular laws."

Senator Bell, of Tennessee, offered a series of resolutions on the same question on the 28th of February, containing nine resolves. As usual, on all propositions respecting slavery, the debate was protracted, earnest, and able. The Clay resolutions attracted most attention. Jefferson Davis, of Mississippi, said:

"Sir, we are called upon to receive this as a measure of compromise! As a measure in which we of the minority are to receive nothing. A measure of compromise! I look upon it as but a modest mode of taking that, the claim to which has been more boldly asserted by others; and, that I may be understood upon this question, and that my position may go forth to the country in the same columns that convey the sentiments of the Senator from Kentucky, I here assert, that never will I take less than the Missouri compromise line extended to the Pacific Ocean, with the specific recognition of the right to hold slaves in the territory below that line; and that, before such territories are admitted into the Union as States, slaves may be taken there from any of the United States at the option of the owners. I can never consent to give additional power to a majority to commit further aggressions upon the minority in this Union, and will never consent to any proposition which will have such a tendency, without a full guaranty or counteracting measure is connected with it."

A number of very able speeches were made on the resolutions of Mr. Clay, but the most characteristic one—the one most thoroughly representing the sentiment of the South—was made by John C. Calhoun. He said:

"The Union was in danger. The cause of this danger was the discontent at the South. And what was the cause of this discontent? It was found in the belief which prevailed among them that they could not, consistently with honor and safety, remain in the Union. And what had caused this belief? One of the causes was the long-continued agitation of the slave question at the North, and the many aggressions they had made on the rights of the South. But the primary cause was in the fact, that the equilibrium between the two sections at the time of the adoption of the Constitution had been destroyed. The first of the series of acts by which this had been done, was the ordinance of 1787, by which the South had been excluded from all the northwestern region. The next was the Missouri compromise, excluding them from all the Louisiana territory north of thirty-six degrees thirty minutes, except the State of Missouri,—in all 1,238,025 square miles, leaving to the South the southern portion of the original Louisiana territory, with Florida, to which had since been added the territory acquired with Texas,—making in all but 609,023 miles. And now the North was endeavoring to appropriate to herself the territory recently acquired from Mexico, adding 526,078 miles to the territory from which the South was, if possible, to be excluded. Another cause of the destruction of this equilibrium was our system of revenue (the tariff), the duties falling mainly upon the Southern portion of the Union, as being the greatest exporting States, while more than a due proportion of the revenue had been disbursed at the North.

"But while these measures were destroying the equilibrium between the two sections, the action of the government was leading to a radical change in its character. It was maintained that the government itself had the right to decide, in the last resort, as to the extent of its powers, and to resort to force to maintain the power it claimed. The doctrines of General Jackson's proclamation, subsequently asserted and maintained by Mr. Madison, the leading framer and expounder of the Constitution, were the doctrines which, if carried out, would change the character of the government from a federal republic, as it came from the hands of its framers, into a great national consolidated democracy."

Mr. Calhoun also spoke of the anti-slavery agitation, which, if not arrested, would destroy the Union; and he passed a censure upon Congress for receiving abolition petitions. Had Congress in the beginning adopted the course which he had advocated, which was to refuse to take jurisdiction, by the united voice of all parties, the agitation would have been prevented. He charged the North with false professions of devotion to the Union, and with having violated the Constitution. Acts had been passed in Northern States to set aside and annul the clause of the slavery question, with the avowed purpose of abolishing slavery in the States, which was another violation of the Constitution. And during the fifteen years of this agitation, in not a single instance had the people of the North denounced these agitators. How then could their professions of devotion to the Union be sincere?

Mr. Calhoun disapproved both the plan of Mr. Clay and that of President Taylor, as incapable of saving the Union. He would pass by the former without remark, as Mr. Clay had been replied to by several Senators. The Executive plan could not save the Union, because it could not satisfy the South that it could safely or honorably remain in the Union. It was a modification of the Wilmot proviso, proposing to effect the same object, the exclusion of the South from the new territory. The Executive proviso was more objectionable than the Wilmot. Both inflicted a dangerous wound upon the Constitution, by depriving the Southern States of equal rights as joint partners in these territories; but the former inflicted others equally great. It claimed for the inhabitants the right to legislate for the territories, which belonged to Congress. The assumption of this right was utterly unfounded, unconstitutional, and without example. Under this assumed right, the people of California had formed a constitution and a State government, and appointed Senators and Representatives. If the people as adventurers had conquered the territory and established their independence, the sovereignty of the country would have been vested in them. In that case they would have had the right to form a State government, and afterward they might have applied to Congress for admission into the Union. But the United States had conquered and acquired California; therefore, to them belonged the sovereignty and the powers of government over the territory. Michigan was the first case of departure from the uniform rule of acting. Hers, however, was a slight departure from established usage. The ordinance of 1787 secured to her the right of becoming a State when she should have 60,000 inhabitants. Congress delayed taking the census. The people became impatient; and after her population had increased to twice that number, they formed a constitution without waiting for the taking of the census; and Congress waived the omission, as there was no doubt of the requisite number of inhabitants. In other cases there had existed territorial governments.

Having shown how the Union could not be saved, he then proceeded to answer the question how it could be saved. There was but one way certain. Justice must be done to the South, by a full and final settlement of all the questions at issue. The North must concede to the South an equal right to the acquired territory, and fulfil the stipulations respecting fugitive slaves; must cease to agitate the slave question, and join in an amendment of the Constitution, restoring to the South the power she possessed of protecting herself, before the equilibrium between the two sections had been destroyed by the action of the government.

Here was a clear statement of the position and feelings of the South respecting slavery. The ordinance of 1787 and the Missouri compromise of 1820 "were destroying the equilibrium between the two sections!" And the anti-slavery agitation, "if not arrested, would destroy the Union!" The sophistry of Calhoun sought a reasonable excuse for the South to dissolve the Union. In a speech of his, written during a spell of sickness, and read by Mr. Mason, of Virginia, he referred to Washington as "the illustrious Southerner." When it was read in the Senate Mr. Cass said:

"Our Washington—the Washington of our whole country—receives in this Senate the epithet of 'Southerner,' as if that great man, whose distinguished characteristic was his attachment to his country, and his whole country, who was so well known, and who, more than any one, deprecated all sectional feeling and all sectional action, loved Georgia better than he loved New Hampshire, because he happened to be born on the southern bank of the Potomac. I repeat, sir, that I heard with great pain that expression from the distinguished Senator from South Carolina."

There was certainly no ground for reasonable complaint on the part of the South. From the convention that framed the Federal Constitution, through all Congressional struggle, and in national politics as well, the South had secured nearly all measures asked for. And the discussion in Congress at this time was intended to divert attention from the real object of the South. Another fugitive-slave law was demanded by the South, and the Northern members voted them the right to hunt slaves upon free soil. The law passed, and was approved on the 18th of September, 1850.

It was difficult to choose between the Democratic and Whig parties by reading the planks in their platforms referring to the subject of slavery. On the 1st of June, 1852, the Democratic Convention, at Baltimore, Maryland, nominated Franklin Pierce, of New Hampshire, for the Presidency, on the forty-ninth ballot. This plank defined the position of that party on the question of slavery.

"That Congress has no power under the Constitution to interfere with or control the domestic institutions of the several States, and that such States are the sole and proper judges of every thing appertaining to their own affairs, not prohibited by the Constitution; that all efforts of the abolitionists, or others, made to induce Congress to interfere with questions of slavery, or to take incipient steps in relation thereto, are calculated to lead to the most alarming and dangerous consequences; and that all such efforts have an inevitable tendency to diminish the happiness of the people, and endanger the stability and permanency of the Union, and ought not to be countenanced by any friend of our political institutions.

"That the foregoing proposition covers, and was intended to embrace, the whole subject of slavery agitation in Congress; and therefore the Democratic party of the Union, standing on this national platform, will abide by and adhere to a faithful execution of the acts known as the compromise measures settled by the last Congress—the act for reclaiming fugitives from service or labor included; which act being designed to carry out an express provision of the Constitution, can not with fidelity thereto be repealed, nor so changed as to destroy or impair its efficiency.

"That the Democratic party will resist all attempts at renewing, in Congress or out of it, the agitation of the slavery question, under whatever shape or color the attempt may be made."

The Whig party, at the same city, in convention assembled, on the 16th of June, 1852, nominated Gen. Winfield Scott, for the Presidency, on the fifty-third ballot. The Whig party declared its position on the slavery question as follows:

"That the series of acts of the Thirty-first Congress—the act known as the fugitive-slave law included—are received and acquiesced in by the Whig party of the United States, as a settlement in principle and substance of the dangerous and exciting question which they embrace; and so far as they are concerned, we will maintain them and insist on their strict enforcement, until time and experience shall demonstrate the necessity of further legislation, to guard against the evasion of the laws on the one hand, and the abuse of their powers on the other, not impairing their present efficiency; and we deprecate all agitation of the question thus settled, as dangerous to our peace; and will discountenance all efforts to continue or renew such agitation whenever, wherever, or however the attempt may be made; and we will maintain this system as essential to the nationality of the Whig party of the Union."

The political contest ended in the autumn in favor of Mr. Pierce. The public journals in many parts of the country thought the end of the "slavery question" had come, and that as the Whigs were determined to "discountenance all efforts to continue or renew" the agitation of the subject, there was no fear of sectional strife.

In his inaugural address, March 4, 1853, President Pierce said:

"I believe that involuntary servitude is recognized by the Constitution. I believe that the States where it exists are entitled to efficient remedies to enforce the constitutional provisions. I hold that the compromise measures of 1850 are strictly constitutional, and to be unhesitatingly carried into effect. And now, I fervently hope that the question is at rest," etc.

In the month of December, upon the assembling of Congress, the President, in his message to that body, again referred to slavery as "a subject which had been set at rest by the deliberate judgment of the people." But on the 15th of December, nine days after the message of the President had been received by Congress, Mr. Dodge, of Iowa, submitted to the Senate a bill to organize the territory of Nebraska, which was referred to the Committee on Territories. After some discussion in the committee, it was finally reported back to the Senate by Mr. Douglass, of Illinois, with amendments. The report was elaborate, and raised considerable doubt as to whether the amendments did not repeal the Missouri compromise. A special report was made on the 4th of January, 1854, so amending the bill as to remove all doubt; and, contemplating the opening of all the vast territory secured forever to freedom, startled the nation from the "repose" it had apparently taken from agitation on the slavery question, and opened an interminable controversy.

On the 16th of January, Mr. Dixon, of Kentucky, gave notice that he would introduce a bill clearly repealing the Missouri compromise. The first champion of the repeal of the compromise of 1820 was a Northern Senator, Stephen A. Douglass, of Illinois. He hung a massive argument—excelling rather in quantity than in quality—upon the following propositions:

"From these provisions, it is apparent that the compromise measures of 1850 affirm, and rest upon, the following propositions:

"First.—That all questions pertaining to slavery in the territories, and the new States to be formed therefrom, are to be left to the decision of the people residing therein, by their appropriate representatives, to be chosen by them for that purpose.

"Second.—That 'all cases involving title to slaves,' and 'questions of personal freedom,' are to be referred to the adjudication of the local tribunals, with the right of appeal to the Supreme Court of the United States.

"Third.—That the provision of the Constitution of the United States in respect to fugitives from service, is to be carried into faithful execution in all 'the original territories,' the same as in the States.

"The substitute for the bill which your committee have prepared, and which is commended to the favorable action of the Senate, proposes to carry these propositions and principles into practical operation, in the precise language of the compromise measures of 1850."

Mr. Douglass said:

"The legal effect of this bill, if passed, was neither to legislate slavery into nor out of these territories, but to leave the people to do as they pleased. And why should any man, North or South, object to this principle? It was by the operation of this principle, and not by any dictation from the Federal government, that slavery had been abolished in half of the twelve States in which it existed at the time of the adoption of the Constitution."

On the 3d of February, Mr. Chase, of Ohio, moved to amend by striking out the words, "was superseded by the principles of the legislation of 1850, commonly called the compromise measures, and," so that the clause would read: "That the Constitution, and all laws of the United States which are not locally inapplicable, shall have the same force and effect within the said territory of Nebraska as elsewhere within the United States, except the eighth section of the act preparatory to the admission of Missouri into the Union, approved March 6, 1820, which is hereby declared inoperative."

Mr. Chase then proceeded to reply to Mr. Douglass. He called attention to that part of the President's message which referred to the "repose" of the subject of slavery, and then said:

"The agreement of the two old political parties, thus referred to by the Chief Magistrate of the country, was complete, and a large majority of the American people seemed to acquiesce in the legislation of which he spoke. A few of us, indeed, doubted the accuracy of these statements, and the permanency of this repose. We never believed that the acts of 1850 would prove to be a permanent adjustment of the slavery question. But, sir, we only represented a small, though vigorous and growing party in the country. Our number was small in Congress. By some we were regarded as visionaries, by some as factionists; while almost all agreed in pronouncing us mistaken. And so, sir, the country was at peace. As the eye swept the entire circumference of the horizon and upward to mid-heaven, not a cloud appeared; to common observation there was no mist or stain upon the clearness of the sky. But suddenly all is changed; rattling thunder breaks from the cloudless firmament. The storm bursts forth in fury. And now we find ourselves in the midst of an agitation, the end and issue of which no man can foresee.

"Now, sir, who is responsible for this renewal of strife and controversy? Not we, for we have introduced no question of territorial slavery into Congress; not we, who are denounced as agitators and factionists. No, sir; the quietists and the finalists have become agitators; they who told us that all agitation was quieted, and that the resolutions of the political conventions put a final period to the discussion of slavery. This will not escape the observation of the country. It is slavery that renews the strife. It is slavery that again wants room. It is slavery with its insatiate demand for more slave territory and more slave States. And what does slavery ask for now? Why, sir, it demands that a time-honored and sacred compact shall be rescinded—a compact which has endured through a whole generation—a compact which has been universally regarded as inviolable, North and South—a compact, the constitutionality of which few have doubted, and by which all have consented to abide."

But notwithstanding the able and eloquent speech of Mr. Chase, his amendment only received thirteen votes. The debate went on until the 3d of March, when the bill was placed upon its passage, and even then the discussion went on. When the vote was finally taken, the bill passed by a vote of 37 yeas to 14 nays. The bill went to the House, where it was made a substitute to a bill already introduced, and passed by a vote of 113 yeas to 100 nays as follows:

And thus, approved by the President, the measure became a law under the title of "An Act to Organize the Territories of Kansas and Nebraska."

Congress had violated the sublimest principles of law, had broken faith with the people; had opened a wide door to slavery; had blotted from the map of the United States the last asylum where the oppressed might seek protection; had put the country in a way to be reddened with a fratricidal war, and made our flag a flaunting lie in the eyes of the civilized world. There was nothing to be done now but to let the leaven of sectional malice work, that had been hurled into the slavery discussions in Congress. The bloodless war of words was now transferred to the territory of Kansas, where a conflict of political parties, election frauds, and assassination did their hateful work.

The South began to put her State militia upon a war footing, and to make every preparation for battle. The Administration of President Buchanan was in the interest of the South from beginning to end. He refused to give Gov. John W. Geary, of Kansas, the military support the "border ruffians" made necessary; allowed the public debt to increase, our precious coin to go abroad, our treasury to become depleted, our navy to go to the distant ports of China and Japan, our army to our extremest frontiers, the music of our industries to cease; and the faith of a loyal people in the perpetuity of the republic was allowed to faint amid the din of mobs and the threats of secession.

CHAPTER X.
THE "BLACK LAWS" OF "BORDER STATES."

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ALTHOUGH slavery was excluded from all the new States northwest of the Ohio River, the free Negro was but little better off in Ohio, Indiana, and Illinois than in any of the Southern States. From the earliest moment of the organic existence of the border free States, severe laws were enacted against free Negroes and Mulattoes. At the second session of the first Legislature of the State of Ohio, "An Act to Regulate Black and Mulatto Persons"[37] was passed.

Sec. 1. That no black or mulatto person shall be permitted to settle or reside in this State "without a certificate of his or her actual freedom."

2. Resident blacks and mulattoes to have their names recorded, etc. (Amended in 1834, Jan. 5 1, Curwen, 126.) Proviso, "That nothing in this act contained shall bar the lawful claim to any black or mulatto person."

3. Residents prohibited from hiring black or mulatto persons not having a certificate.

4. Forbids, under penalty, to "harbor or secrete any black or mulatto person the property of any person whatever," or to "hinder or prevent the lawful owner or owners from re-taking," etc.

5. Black or mulatto persons coming to reside in the State with a legal certificate, to record the same.

6. "That in case any person or persons, his or their agent or agents, claiming any black or mulatto person or persons that now are or hereafter may be in this State, may apply, upon making satisfactory proof that such black or mulatto person or persons are the property of him or her who applies, to any associate judge or justice of the peace within the State, the associate judge or justice is hereby empowered and required, by his precept, to direct the sheriff or constable to arrest such black or mulatto person or persons, and deliver the same, in the county or township where such officers shall reside, to the claimant or claimants, or his or their agent or agents, for which service the sheriff or constable shall receive such compensation as he is entitled to receive in other cases for similar services."

7. "That any person or persons who shall attempt to remove or shall remove from this State, or who shall aid and assist in removing, contrary to the provisions of this act, any black or mulatto person or persons, without first proving, as herein before directed, that he, she, or they is or are legally entitled so to do, shall, on conviction thereof before any court having cognizance of the same, forfeit and pay the sum of one thousand dollars, one half to the use of the informer and the other half to the use of the State, to be recovered by the action of debt quitam or indictment, and shall moreover be liable to the action of the party injured."

So here upon free soil, under a State government that did not recognize slavery in its constitution, the Negro was compelled to produce a certificate of freedom. Thus the fugitive-slave law was recognized, but at the same time an unlawful removal of free Negroes from the State was forbidden.

At the session of 1806-7, "An Act to Amend the Act Entitled 'an Act Regulating Black and Mulatto Persons,'" was passed amending the old law. The first act simply required "a certificate of freedom"; the amended law required Negroes and Mulattoes intending to settle in Ohio to give a bond not to become a charge upon the county in which they settled. Section four reads as follows:

"4. That no black or mulatto person or persons shall hereafter be permitted to be sworn or give evidence in any court of record or elsewhere in this State, in any cause depending or matter of controversy where either party to the sale is a white person, or in any prosecution which shall be instituted in behalf of this State, against any white person."[38]

But this law did not apply to persons a shade nearer white than Mulatto [the seven-eighths law].[39] Their testimony was admissible, while that of Negroes and Mulattoes was not admitted against them. In Jordan vs. Smith [1846], 14, Ohio, p. 199: "A black person sued by a white, may make affidavit to a plea so as to put the plaintiff to proof."

Attention has been called to the fact that the fugitive-slave law was respected in Ohio. In 1818-19, a law was passed to prevent the unlawful kidnapping of free Negroes, which, in its preamble, recites the provisions of the law of Congress, passed February 12, 1793, respecting fugitives from service and labor.[40] And in 1839 the Legislature passed another act relating to "fugitives from labor," etc., paving the way by the following recital:

"Whereas, The second section of the fourth article of the Constitution of the United States declares that 'no person' [etc., reciting it]; and whereas the laws now in force within the State of Ohio are wholly inadequate to the protection pledged by this provision of the Constitution to the Southern States of this Union; and whereas it is the duty of those who reap the largest measure of benefits conferred by the Constitution to recognize to their full extent the obligations which that instrument imposes; and whereas it is the deliberate conviction of this General Assembly that the Constitution can only be sustained as it was framed by a spirit of just compromise; therefore."

Sec. 1. Authorizes judges of courts of record, "or any justice of the peace, or the mayor of any city or town corporate," on application, etc., of claimant, to bring the fugitive before a judge within the county where the warrant was issued, or before some State judge with certain cautions as to proving the official character of the officer issuing the warrant; gives the form of warrant, directing the fugitive to be brought before, etc., "to be be dealt with as the law directs."[41]

J. Peck, Esq. [9, Ohio, p. 212], refers to the laws of 1818-19, and 1830-31, as a recognition by the State of Ohio of the power of Congress to pass the act of 1793, though that the act was not specially mentioned.

The first constitution of Ohio [1802] restricted the right of suffrage to "all white male inhabitants." "In all elections, all white male inhabitants above the age of twenty-one years, having resided in the State one year next preceding the election, and who have paid or are charged with a State or county tax, shall enjoy the right of an elector," etc.[42] This was repeated in the Bill of Rights adopted in 1851.[43]

Article iv., Section 2, of the Constitution of the United States says: "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." The question as to whether free Negroes were included in the above was discussed at great length in the Dred Scott case, where Chief-Justice Taney took the ground that a Negro was not a citizen under the fourth article of the Constitution. But the fourth article of the Articles of Confederation [1778] recognized free Negroes as citizens. It is given here:

"Art. 4.—The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States—paupers, vagabonds, and fugitives from justice excepted—shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof, respectively; provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, from any other State, of which the owner is an inhabitant; provided, also, that no imposition, duty, or restriction shall be laid by any State on the property of the United States, or either of them."[44]

By this it is evident that "paupers, vagabonds, and fugitives from justice" were the only persons excluded from the right of citizenship. The following is the history of the Dred Scott case:

"In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. In that year, 1834, said Dr. Emerson took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi River, in the territory known as Upper Louisiana, acquired by the United States of France, and situate north of the latitude of thirty-six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling, from said last-mentioned date until the year 1838.

"In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post, situated as herein before stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave at said Fort Snelling unto the said Dr. Emerson herein before named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838.

"In the year 1836, the plaintiff and said Harriet at said Fort Snelling, with the consent of said Dr. Emerson, who then claimed to be their master and owner, intermarried, and took each other for husband and wife. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat 'Gipsey,' north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks.

"In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and their said daughter Eliza from said Fort Snelling to the State of Missouri, where they have ever since resided.

"Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie to the defendant, as slaves, and the defendant has ever since claimed to hold them and each of them as slaves.

"At the time mentioned in the plaintiff's declaration, the defendant, claiming to be owner as aforesaid, laid his hands upon said plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect, however, no more than what he might lawfully do if they were of right his slaves at such times.

. . . . . . . . .

"It is agreed that Dred Scott brought suit for his freedom in the Circuit Court of St. Louis County; that there was a verdict and judgment in his favor; that on a writ of error to the Supreme Court the judgment below was reversed, and the same remanded to the Circuit Court, where it has been continued to await the decision of this case.

"In May, 1854, the cause went before a jury, who found the following verdict, viz.: 'As to the first issue joined in this case, we of the jury find the defendant not guilty; and as to the issue secondly above joined, we of the jury find that before and at the time when, etc., in the first count mentioned, the said Dred Scott was a negro slave, the lawful property of the defendant; and as to the issue thirdly above joined, we, the jury, find that before and at the time when, etc., in the second and third counts mentioned, the said Harriet, wife of said Dred Scott, and Eliza and Lizzie, the daughters of the said Dred Scott, were negro slaves, the lawful property of the defendant.'

"Whereupon, the court gave judgment for the defendant.

"After an ineffectual motion for a new trial, the plaintiff filed the following bill of exceptions.

"On the trial of this cause by the jury, the plaintiff, to maintain the issues on his part, read to the jury the following agreed statement of facts (see agreement above). No further testimony was given to the jury by either party. Thereupon the plaintiff moved the court to give to the jury the following instructions, viz.:

"'That, upon the facts agreed to by the parties, they ought to find for the plaintiff.' The court refused to give such instruction to the jury, and the plaintiff, to such refusal, then and there duly excepted.

The court then gave the following instruction to the jury, on motion of the defendant:

"'The jury are instructed, that upon the facts in this case, the law is with the defendant.' The plaintiff excepted to this instruction.

"Upon these exceptions, the case came up to the Supreme Court, December term, 1856."[45]

Judge Taney gave the following opinion:

"The question is simply this: Can a negro, whose ancestors were imported into this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights and privileges and immunities guaranteed by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

"It will be observed that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country and sold as slaves.

. . . . . . . . .

"We proceed to examine the case as presented by the pleadings.

"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. They are what we familiarly call the 'sovereign people, and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty. We think they are not, and that they are not included, and were not intended to be included, under the word 'citizen' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate [405] and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.

"It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws....

"In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen of any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character of course was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently no State, since the adoption of the Constitution, can, by naturalizing an alien, invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the [406] rights and immunities which the Constitution and laws of the State attached to that character.

"It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And, for the same reason, it cannot introduce any person or description of persons who were not intended to be embraced in this new political family, which the Constitution brought into existence, but were intended to be excluded from it.

"The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country, or who might afterwards be imported, who had then or should afterwards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and indue him with the full rights of citizenship in every other State without their consent. Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State and in its own courts?

"The court think the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts."[46]

This decision of the Supreme Court on the plea in abatement that the plaintiff (a Negro, Dred Scott) was not a citizen in the sense of the word in Article iii, Sec. 2 of the Constitution, was based upon an erroneous idea respecting the location of the word citizen in the instrument. The premise of the court was wrong, and hence the feebleness of the reasoning and the false conclusions. Article iii, Section 2 of the Constitution, extends judicial power to all cases, in law and equity, "between citizens of different States, between citizens of the same State," etc. But Article iv, Section 2, declares that "citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." The plea in abatement was brought under Article iii, but all the judges, except Justice McLean, built their decision upon the word citizen as it stood in Article iv.

By the constitution of Ohio, adopted in 1851, free Negroes were not only denied the right to vote, but were excluded from the militia service. This law was not repealed until 1878.

Neither the constitution of 1802, nor that of 1851, discriminated against free Negroes in matters of education; but separate schools have been maintained in Ohio from the beginning down to the present time, by special acts of the Legislature.

In the territory of Indiana there were quite a number of Negroes from the beginning of the century. Some were slaves. In 1806, the first Legislature, at its second session, passed a law in reference to executions, as follows:

"Sec. 7. And whereas doubts have arisen whether the time of service of negroes and mulattoes, bound to service in this territory, may be sold on execution against the master, Be it therefore enacted that the time of service of such negroes or mulattoes may be sold on execution against the master, in the same manner as personal estate, immediately from which sale the said negroes or mulattoes shall serve the purchaser or purchasers for the residue of their time of service; and the said purchasers and negroes and mulattoes shall have the same remedies against each other as by the laws of the territory are mutually given them in the several cases therein mentioned, and the purchasers shall be obliged to fulfil to the said servants the contracts they made with the masters, as expressed in the indenture or agreement of servitude, and shall, for want of such contract, be obliged to give him or them their freedom due at the end of the time of service, as expressed in the second section of the law of the territory, entitled 'Law concerning servants,' adopted the twenty-second day of September, eighteen hundred and three. This act shall commence and be in force from and after the first day of February next."[47]

This was bold legislation; but it was not all. Negroes were required to carry passes, as in the slave States. And on the 17th of September, 1807, "An Act for the Introduction of Negroes and Mulattoes into" the territory was passed.

"Sec. 1. That it shall and may be lawful for any person being the owner or possessor of any negroes or mulattoes of and above the age of fifteen years, and owning service and labor as slaves in any of the States or territories of the United States, or for any citizens of the said States or territories purchasing the same to bring the said negroes and mulattoes into this territory.

"Sec. 2. The owners or possessors of any negroes or mulattoes as aforesaid, and bringing the same into this territory, shall, within thirty days after such removal, go with the same before the clerk of Court of Common Pleas of proper county, and in presence of said clerk the said owner or possessor shall determine and agree to, and with his or her negro or mulatto, upon the term of years which the said negro or mulatto will and shall serve his or her said owner or possessor, and the clerk shall make a record.

"Sec. 3. If any negro or mulatto removed into this territory as aforesaid shall refuse to serve his or her owner as aforesaid, it shall and may be lawful for such person, within sixty days thereafter, to remove the said negro or mulatto to any place [to] which by the laws of the United States or territory from whence such owner or possessor may [have come] or shall be authorized to remove the same. (As quoted in Phœbe v. Jay, Breese, Ill. R., 208.)

"Sec. 4. An owner failing to act as required in the preceding sections should forfeit all claim and right to the service of such negro or mulatto.

"Sec. 5. Declares that any person removing into this territory and being the owner or possessor of any negro or mulatto as aforesaid, under the age of fifteen years, or if any person shall hereafter acquire a property in any negro or mulatto under the age aforesaid, and who shall bring them into this territory, it shall and may be lawful for such person, owner, or possessor to hold the said negro to service or labor—the males until they arrive at the age of thirty-five, and females until they arrive at the age of thirty-two years.

"Sec. 6. Provides that any person removing any negro or mulatto into this territory under the authority of the preceding sections, it shall be incumbent on such person, within thirty days thereafter, to register the name and age of such negro or mulatto with the clerk of the Court of Common Pleas for the proper county.

"Sec. 7. Requires new registry on removal to another county."

"Secs. 8, 9. Penalties by fine for breach of this act.

"Sec. 10. Clerk to take security that negro be not chargeable when his term expires.

"Sec. 12. Fees.

"Sec. 13. That the children born in said territory of a parent of color owning service or labor, by indenture according to law, should serve the master or mistress of such parent—the males until the age of thirty, and the females until the age of twenty-eight years. (As quoted in Boon v. Juliet, 1836, 1, Scammon, 258.)

"Sec. 14. That an act respecting apprentices misused by their master or mistress should apply to such children. (See the statute cited in Rankin v. Lydia, 2, A. K. Marshall's Ky., 467; and in Jarrot v. Jarrot, 2, Gilman, 19.) This act was repealed in 1810."[48]

Under the first constitution of Indiana, adopted in 1816, Negroes were not debarred from the elective franchise. In Article i, Section 1, of the Bill of Rights, this remarkable language occurs: "That all men are born equally free and independent, and have certain natural, inherent, and unalienable rights," etc. But the very next year the primal rights of the Negro as a citizen were struck down by the following: "No negro, mulatto, or Indian shall be a witness, except in pleas of the State against negroes, mulattoes, or Indians, or in civil cases where negroes, mulattoes, or Indians alone shall be parties."[49]

In 1819 [March 22d], an execution law was passed by which the time of service of Negroes could be sold on execution against the master, in the same manner as personal estate. From the time of the sale, such Negroes or Mulattoes were compelled to serve the buyer until the expiration of the term of service.[50]

In 1831, an act regulating free Negroes and Mulattoes, servants and slaves, declared:

"Sec. 1. Negroes and mulattoes emigrating into the State shall give bond, etc.

"Sec. 2. In failure of this, such negro, etc., may be hired out and the proceeds applied to his benefit, or removed from the State under the poor law.

"Sec. 3. Penalty for committing such without authority.

"Sec. 4. Penalty for harboring such who have not given bond.

"Sec. 5. That the right of any persons to pass through this State, with his, her, or their negroes or mulattoes, servant or servants, when emigrating or travelling to any other State or territory or country, making no unnecessary delay, is hereby declared and secured."[51]

In 1851 the new constitution limited the right of franchise to "white male citizens of the United States." "No negro or mulatto shall have the right of suffrage."

"Art. xii., Sec. 1. The militia shall consist of all able-bodied white male persons, between, etc.

"Art. xiii., Sec. 1. No negro or mulatto shall come into, or settle in the State after the adoption of this Constitution.

"Sec. 2. All contracts made with any negro or mulatto coming into the State contrary to the foregoing section shall be void; and any person who shall employ such negro or mulatto or encourage him to remain in the State shall be fined not less than ten, nor more than five hundred dollars.

"Sec. 3. All fines which may be collected for a violation of the provisions of this article, or of any law hereafter passed for the purpose of carrying the same into execution, shall be set apart and appropriated for the colonization of such negroes and mulattoes and their descendants as may be in the State at the adoption of this Constitution and may be willing to emigrate.

"Sec. 4. The General Assembly shall pass laws to carry out the provisions of this article."

Other severe laws were enacted calculated to modify and limit the rights of free persons of color.

The first constitution of the State of Illinois, adopted in 1818, limited the [Art. ii, Sec. 27] elective franchise to "free white" persons. Article v, Sec. 1, exempted "negroes, mulattoes, and Indians" from service in the militia. In March, 1819, "An Act Respecting Free Negroes, Mulattoes, Servants, and Slaves" passed. Sec. 1 required Negro and Mulatto persons coming into the State to produce a certificate of freedom. Sec. 2 required them to register their family as well as themselves. Sec. 3 required persons bringing slaves into the State, for the purpose of emancipating them, to give bonds. Passes were required of Colored people, and many other hard exactions. The bill above referred to contained twenty-five sections.[52]

On the 6th of January, 1827, a criminal code was enacted for offences committed by Negroes and servants, which contained many cruel features. On the 2d of February a law was passed declaring that all Negroes, Mulattoes, and Indians were incompetent to be witnesses in any court against a white person; and that a person having one fourth part Negro blood shall be adjudged a Mulatto. This law was re-enacted in 1845.[53] In 1853, February 12th, the Legislature of Illinois passed "An Act to Prevent the Immigration of Free Negroes into this State."

"Secs. 1, 2. Fine and imprisonment for bringing slave, for any purpose, into the State. Proviso: 'That this shall not be construed so as to affect persons or slaves, bona fide, travelling through this State from and to any other State in the United States.'

"Sec. 3. Misdemeanor for negro or mulatto, bond or free, to come with intention of residing.

"Sec. 4. Such may be prosecuted and fined or sold, for time, for fine and costs.

"Secs. 5, 6, 7. If such do not afterwards remove, increased fine and like proceedings, etc., etc. Appeal allowed to the circuit.

"Sec. 8. If claimed as fugitive slave, after being thus arrested, a justice of the peace, 'after hearing the evidence, and being satisfied that the person or persons claiming said negro or mulatto is or are the owner or owners of and entitled to the custody of said negro or mulatto, in accordance with the laws of the United States passed upon this subject,' shall give the owner a certificate, after his paying the costs and the negro's unpaid fine, 'and the said owner or agent so claiming shall have a right to take and remove said slave out of the State.'

"Sec. 9. Punishment of justice for nonfeasance, and of witness falsely accusing negro."[54]

While slavery had no legal, constitutional existence in the three border States, there were, in fact, quite a number of slaves within their jurisdiction during the first generation of their existence. And the free people of Color were, first, denied the right of citizenship; second, excluded from the militia service; third, ruled out of the courts whenever their testimony was offered against a white person; fourth, could not come into the free border States without producing a certificate of freedom; and, fifth, were annoyed by many little, mean laws in the exercise of the few rights they were suffered to enjoy. A full description of the infamous "Black Code" of these States would occupy too much space, and, therefore, the dark subject must be dismissed. Posterity shall know, however, how patiently the free Negroes of the Northern States endured the restrictions and proscriptions which law and public sentiment threw across their social and political pathway!