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JUDGES CURTIS AND GASTON ON TANEY.

stitution were aware that persons held to service under the laws of a State are property only to the extent and under the conditions fixed by those laws; and that they must cease to be available as property when their owners voluntarily place them permanently within another jurisdiction, where no municipal laws on the subject of Slavery exist?

'Moreover, if the right exists, what are its limits, and what are its conditions? If 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 laws of the Territory, I suppose this right is not to be restricted to the citizens of slaveholding States. A citizen of a State which does not tolerate Slavery can hardly be denied the power of doing the same thing. And what law of Slavery does either take with him to the Territory? If it be said to be those laws respecting Slavery which existed in the particular State from which each slave last came, what an anomaly is this! Where else can we find, under the laws of any civilized country, the power to introduce and permanently continue diverse systems of foreign municipal law, for holding persons in Slavery?"

Justice Curtis is an ultra conservative of the State-street (Boston) school a life-long follower of Mr. Webster, especially in his later and more lamentable days--and yet his opinion delivered in this case evinces considerably more freedom and boldness than that

of Judge McLean. Though couched in judicial and respectful language, it constantly, and pretty clearly, intimates not merely that the judgment of the Court is contrary both to law and to fact, but that its authors well know such to be the case. In reply to Chief Justice Taney's disquisition as to the opinions and views of our Revolutionary statesmen, Mr. Curtis bluntly says:

"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 such persons were citizens of either of the States under the Confederation, at the time of the adoption of the Constitution.

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"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."

He proceeds to cite, in support of this averment, the judgment of the Supreme Court of North Carolina in the case of the State against Manuel, wherein William Gaston-by far the most eminent jurist of whom that State could ever boast-pronounced the opinion of the Court in the following terms .

"According to the laws of this State, all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the Roman laws between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the 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, North Carolina than was consequent on the no other change took place in the laws of 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."

Continuing his review of the Chief Justice's assumptions, Judge Curtis says:

"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 an assumption not warranted by anything in the Constitution, but contradicted by its open 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."

Judge Curtis is not content with refuting the logic of the Chief Justice. He seizes the weapons of his antagonist and turns them against him with decided effect. Witness the following:

"I do not deem it necessary to review at length the legislation of Congress having more or less bearing upon the citizenship of colored persons. It does not seem to me to have any considerable tendency to prove that it has been considered by the legislative department of the Government that no such persons are citizens of the United States. Undoubtedly, they have been debarred from the exercise of particular rights or privileges extended to white persons, but, I believe, always in terms which, by implication, admit that they may be citizens. Thus, the act of May 17, 1792, for the organization of the militia, directs the enrollment of every 'free, able-bodied, white male citizen.' An assumption that none but white persons are citizens, would be as inconsistent with the just import of this language, as that all citizens are able-bodied, or males.

"So the act of February 28, 1803 (2 Stat.

at Large, 205), to prevent the importation of certain persons into States, when, by the laws thereof, their admission is prohibited, in its first section forbids all masters of vessels to import or bring any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States,' etc., etc.

"The acts of March 3, 1813, § 1 (2 Stat. at Large, 809), and March 1, 1817, § 3 (3 Stat. at Large, 351), concerning seamen, certainly imply that there may be persons of color, natives of the United States, who are

not citizens of the United States. This

implication is undoubtedly in accordance with the fact. For not only slaves, but free persons of color, born in some of the States, are not citizens. But there is nothing in these laws inconsistent with the citizenStates, nor with their being citizens of the ship of persons of color in others of the

United States.

"Whether much or little weight should be attached to the particular phraseology of these and other laws, which were not passed with any direct reference to the subject, I consider their tendency to be, as already indicated, to show that, in the apprehension of their framers, color was not a necessary qualification for citizenship. It would be strange, if laws were found on our statute-book to that effect, when, by and North American Indians, as well as solemn treaties, large bodies of Mexican free colored persons of Louisiana, have been admitted to citizenship of the United

States."

Mr. Curtis cites with effect the action of Congress in 1821 on the admission of Missouri, whereby that State was constrained to abandon and repudiate her attempt to prohibit the settlement of free negroes and mulattoes within her borders;" whereof he says:

"It is true, that neither this legislative declaration, nor anything in the Constitution or laws of Missouri, could confer or take away any privilege or immunity granted by the Constitution. But it is also true that it expresses the then conviction of the legislative power of the United States, that free negroes, as citizens of some of the States, might be entitled to the privileges and immunities of citizens in all the States."

He sums up his conclusions as to

7 See page 80 of this work.

JUDGE CURTIS ON NEGRO CITIZENSHIP.

263

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

"First. That the free, native-born citizens of each State are citizens of the United States.

"Second. That, as free colored persons, born within some of the States, are citizens of those States, such persons are also citi

zens of the United States.

"Third. That every such citizen, residing in any State, has a right to sue, and is liable to be sued, in the Federal Courts,

as a citizen of that State in which he resides.

"Fourth. That, as the plea to the jurisdiction in this case shows no facts except that the plaintiff was of African descent, and that his ancestors were sold as slaves, and as these facts are not inconsistent with his

with his slaves into any territory of the United States, and there retain and control them under the ægis of the Federal Constitution. He shows, further, that the majority erred in upholding a majority of the Supreme Court of Missouri in overruling their own Chief Justice and their own former decisions, whereby it had been established, in accordance with kindred decisions in Louisiana, as in other Slave States, that a slave taken by his master, or removed with his assent, to a Free State, or to any country wherein Slavery is prohibit

citizenship of the United States and his residence in the State of Missouri, the plea to the jurisdiction was bad, and the judged, becomes thereby a freeman, and ment of the Circuit Court overruling it was correct.

"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.

"Having first decided that they were bound to consider the sufficiency of the plea to the jurisdiction of the Circuit Court, and having decided that this plea showed that the Circuit Court had not jurisdiction, and consequently that this is a case to which the judicial power of the United States does not extend, they have gone on to examine the merits of the case as they appeared on

the trial before the court and jury, on the issues joined on the pleas in bar, and so have reached the question of the power of Congress to pass the act of 1820. On so grave a subject as this, I feel obliged to say that, in my opinion, such an exertion of judicial power transcends the limits of the authority of the Court, as described by its repeated decisions, and, as I understand, acknowledged in this opinion of the majority of the Court."

Mr. Curtis proceeds to confute at length, and with decided ability, the doctrines of the majority, affirming the invalidity of the Missouri Restriction, and asserting the paramount

cannot be returned or reduced again to Slavery. It cannot, however, be necessary to quote further on this head. He concludes:

"For these reasons, I am of the opinion that so much of the several acts of Congress as prohibited Slavery and involuntary servitude within that part of the Territory of Missouri lying north of thirty-six degrees thirty minutes north latitude, and west of the river Mississippi, were constitutional and valid laws.

"In my opinion, the judgment of the Circuit Court should be reversed, and the cause remanded for a new trial."

The majority of the Justices composing the Supreme Court, after deciding that Dred Scott had no standing in that Court, and that the case was, therefore, entirely beyond, or outside of, its jurisdiction, had proceeded to take and make jurisdiction, for the purpose of ousting Congress and the people from all right or power to exclude Slavery from the Federal Territories, organized or unorganized. Congress had repeatedly, and from the very origin of the Government, legislated on this subject, and to this end. The Supreme Court now interposes, in a case

wherein it proclaims itself devoid of jurisdiction, and denies the validity of such legislation. The people are treated as inclining to usurp the power of excluding human bondage from their territorial possessions; so the Court decides that they have no rights in the premises, no power to act on the question. If twenty millions of freemen were unanimously and earnestly to insist that Freedom should be the law of their common territories, while but one slaveholder should claim the privilege of taking his slaves to and holding them in said territories, the claim of this one slaveholder, according to the Court, would override and defeat, conclusively, the earnest demands of those twenty millions of freemen. The war upon the Missouri Restriction, and against Slavery Inhibition in

the Territories generally, had been
commenced and prosecuted under
the banner of “
the banner of "Popular Sovereign-
ty;" and it was to this complexion
it had come at last; and it was of
this judgment, just about to be pro-
claimed to an astounded people, that
Mr. Buchanan, in his Inaugural
aforesaid, says:

"The whole territorial question being
thus settled upon the principle of Popular
Sovereignty a principle as ancient as free
government itself-everything of a practical
nature has been decided. No other ques-
tion remains for adjustment; because all
agree that, under the Constitution, Slavery
in the States is beyond the reach of any
human power, except that of the respective
States themselves wherein it exists. May
we not, then, hope that the long agitation
on this subject is approaching its end, and
that the geographical parties to which it
has given birth, so much dreaded by the
father of his country, will speedily become
extinct?"
!

XIX.

OUR 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. the windows of Citizen Genet,

OUR EARLY FOREIGN POLICY-FRANCE.

265

ing a strict neutrality between revolutionary France and the banded despots who assailed her, they did not entirely escape the imputation of ingratitude, if not positive bad faith. Our country was deeply indebted to France for the generous and vitally important assistance received from her in our Revolutionary struggle; and, although France was not-as nations, like individuals, seldom are

2

that assistance, the advantage accruing to and the obligation incurred by us were scarcely lessened by that consideration. When barely two of our seven years' arduous struggle had passed, Louis XVI. decided to acknowledge our independence; and his minister soon after united with our envoys in a treaty of alliance, whereof the preponderance of benefits was very greatly on our side. And among the stipulations of that treaty-a treaty whereby we profited too much in the general to be fastidious as to the particulars-was the following:

burned Jay's treaty in the streets, and clamored violently for alliance with revolutionary France and war upon Tory England, were, of course, anti-Federal; and their voices and votes helped to strengthen the Republican opposition in Congress, and to swell the steadily-growing host that, in due time, ousted the Federalists from power, by electing Mr. Jef ferson to the Presidency. But Mr. Jefferson himself never-entirely disinterested in rendering shared in the blind passions by which he so largely profited. An earnest and unchanging devotee of cheap, simple, and frugal government, he profoundly realized that wars were costly, and alliances perilous; and, while he hated the British Government as embodying whatever was, at the same time, most pernicious to our country, and most seductive to her wealthy and commercial classes, he never, after our independence was achieved, was eager to tempt again the desperate chances, the certain devastations and enduring burdens, of war with Great Britain. Before the close of his Presidency,' the popular feeling would have fully justified and sustained him in declaring war, but he wisely forbore; and it was only after the strong infusion of young blood into the councils of the Republican party, through the election of Messrs. Clay, Grundy, Calhoun, John Holmes, etc., to Congress, that the hesitation of the cautious and philosophic Madison was overborne by their impetuosity, and war actually proclaimed.

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When Washington and his advisers definitively resolved on preserv

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

"ART. XI. The two parties guarantee mutually, from the present time and forever, against all other powers, to wit: The United States, to his Most Christian Majesty, the present possessions of the crown of France in America, as well as those which it may acquire by the future treaty of peace: And his Most Christian Majesty guarantees on his part to the United States their liberty, sovereignty, and independence, absolute and unlimited, as well in matters of government as commerce, and also their possessions, and the additions or conquests that their confederation may obtain during the war, from any of the dominions now or heretofore possessed by Great Britain in North America, conformably to the 5th and 6th articles above written, the whole as

their possessions shall be fixed and assured to the said States, at the moment of the

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

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