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upon them as citizens. And so it was inferred from the exclusive right of naturalization vested in congress that it could not have been intended1 to allow the states to make citizens of persons of color, because as such they would have been much more dangerous to the peace and safety of a great part of the Union than the few foreigners by reason of whose naturalization a state would perhaps have given good ground for complaint.

When the chief justice of the United States advanced such shallow and arbitrary reasoning as constitutional arguments which were to govern in the decision of legal questions of the most eminent importance, and, in the real meaning of the words, of awful political significance, what became of the proud claim of the American people that they had "a government not of men, but of laws?" With such a method of interpretation, there was nothing that could not be tortured out of the fundamental law of the Union, and nothing one wished to find that could not be discovered in it.

If, as should have been done, the question of fact were examined, whether, in the United States, negroes born free could ever, or under certain conditions, be "citizens of the United States within the meaning of the constitution," a very different result would have been reached; and Taney's own reasoning pointed out the road to be taken in such an investigation.

After he had correctly shown that a citizen of a state is not always necessarily a citizen of the United States, and why he is not, he just as correctly proves that all who

1" We cannot fail to see that they could never have left with the states a much more important power."

2 I, however, share the opinion of Justice Curtis, that, even before the adoption of the fourteenth amendment, "every free person born on the soil of a state, who is a citizen of that state by force of its

were citizens of the individual states, at the time of the adoption of the constitution, became citizens of the United States also. But now, instead of inquiring as he had promised to do1-whom the constitutions and laws of all the states had recognized as citizens, he proves (!) from the views concerning negroes then prevailing, from the fact that the celebrated introductory sentences of the Declaration of Independence should not be understood in their literal sense, and from the provision of the constitution that the importation of slaves should not be prohibited the states until the year 1808, that "the general terms in the constitution of the United States as to the rights of man and the rights of the people" should not be extended to the negro race, and that it was not intended to grant them any share in the blessings of the provisions of the constitution. This was his answer to the question, what had been the law in the several states relating to free persons of color? Spite of his great age, Taney was still in full possession of his intellectual faculties, and justice to the republicans, therefore, demands the admission that he had not made it an easy matter for them to believe in his bona fides. That there had been free persons of color who were citizens, in the different states, was as undeniable a fact as the Declaration of Independence and the constitution itself; it was moreover a universally known fact. But because Taney,

constitution or laws, is also a citizen of the United States." Williams, loc. cit., pp. 771, 772.

1 "It becomes necessary, therefore, to determine who were citizens of the several states when the constitution was adopted."

2 See the proofs of this in the opinion of Judge Curtis. Williams, loc. cit., pp. 770, 771. Other interesting proofs are to be found in Congr. Globe, I Sess. 35th Congr., pp. 211, 212. Particular attention should be called to the fact that Virginia in 1783 repealed a law of May 3, 1779, according to which only white men could be citizens,

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however, did not really examine, but only sought to prove an untenable assertion, under the guise of investigation, he had to substitute sophistical reasoning on the proposition to be proven for the answer to his own question; for this answer overthrew his argument entirely. No matter how all further questions, and especially that in the present case, i. e., the Dred Scott case, in relation to the constitutional status of free persons of color, might be answered, this much is certain, that if all those who, at the time of the adoption of the constitution, were citizens of the separate states became citizens of the United States likewise, and if there were free persons of color at that time in certain states who were also citizens, then the incorrectness of what Taney sought to prove, and pretended to clothe with the binding force of a judicial decision, was demonstrated, viz.: that persons of color could not be, and had never been, citizens of the United States, within the meaning of the constitution.

But, certain as it was that Taney had not proven his proposition, he could appeal in its favor to the decision of a state court,' to the official opinions of two attorneys

and according to the new law "all free persons born within the territory of this commonwealth. . shall be deemed citizens of this commonwealth." The boldness of the attempt, however, to dispose of the matter by vague, general reasoning on notorious facts is placed in the clearest light by this, that the motion of South Carolina to insert the word "white" between "free" and "inhabitants" in the fourth article of the Articles of Confederation, was denied. The article reads as follows: "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."

1 The State v. Claiborne, 1 Meigs (Tenn.), p. 331. "The citizens spoken of (art. IV, sec. 2, § 1) are those entitled to all (!) the privileges and immunities of citizens. But free negroes were never, in any state, entitled to all the privileges of citizens, and consequently were

general and to a law of the United States. Hence this decision could not create the impression that "the pro

not intended to be included when this word was used in the constitution;" and, "the meaning of the language is that no privilege enjoyed by, or immunities allowed to, the most favored class (!) of citizens in said state shall be withheld from a citizen of any other state." There is not a word in the constitution that affords the least support for the claim that it recognizes different classes of citizens. Under such a construction what would become of women and minors?

1 Wirt's Opinion of November 7, 1821 (Op. of Att'y Gen'], I, 506 ff). The opinion, however, does not go so far as would appear from Taney. Wirt only says that in Virginia free persons of color are not citizens within the meaning of the constitution. He says: "Looking to the constitution as the standard of meaning, it seems very manifest that no person is included in the description of citizen of the United States who has not the full rights of a citizen in the state of his residence;" and, "I am of the opinion that the constitution, by the description of 'citizens of the United States,' intended those only who enjoyed the full and equal privileges of white citizens in the state of their residence." These definitions seem to me by no means happy. Practically, little can be made of these sentences. Although, for instance, a person can unquestionably be a citizen without having the right of suffrage, and, conversely, have the right of suffrage without being a citizen, it can scarcely be questioned that the right of suffrage belongs to the "full rights of a citizen." An exact and exhaustive enumeration of the "full rights of a citizen "— both of the United States and of the separate states it has not yet been possible to make; and Caleb Cushing says, in an official opinion on the provision of the constitution that "the citizens of each state shall be entitled to all privileges and immunities of citizens of several states: ""What that means, if it means anything, it is very hard to say " (loc. cit., VIII, p. 304). But be this as it may, Wirt certainly does not say that free persons of color in no state have or can have the "full rights of a citizen," and hence never can be citizens of the United States. Whether he thought so I do not know, but it is certainly probable that he did, since he says that a negro or mulatto would be eligible to the presidency of the United States "if nativity, residence and allegiance combined (without the rights and privileges of a white man) are suffi

2 A law of May 3, 1813, provides that, after the close of the war with England, "it shall not be lawful to employ on board any of the pub

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slavery construction of the constitution" had won a new victory. It was only making sure of a success long since achieved great enough, indeed, to embitter the republicans, but neither involving so vital a constitutional principle nor politically of so much importance as to

cient to make him a citizen of the United States in the sense of the constitution." The founders of the constitution, as well as Wirt, would certainly have considered a colored president an absurdity, but this fact does not make the objection a constitutional argument. The Philadelphia convention did not consider all the subtle questions which would grow out of the question of citizenship; least of all did it dream of this logical consequence, because a colored president was a practical impossibility.

The second opinion comes from Caleb Cushing. Taney does not give any reference to it, and I have been able to find none which treats the question directly. If, as I suppose, that of July 5, 1856, on the "Relations of Indians to Citizenship" (loc. cit., VII, p. 746), be meant, it might have remained unmentioned, as Cushing simply expressed, in passing, his agreement with Wirt, but gives no reason for his opinion beyond that.

lic or private vessels of the United States any person or persons except citizens of the United States, or persons of colour, natives of the United States." (Stat. at L., II, p. 809.) From this opposition of terms, however, it does not necessarily follow that, in the opinion of congress, persons of color could never be citizens of the United States. Nobody questioned that the great majority of them were not citizens. But it was in contradiction with the wording of the law to construe this passage to the effect that persons of color, even if they were not citizens of the United States, might be employed on American ships, provided they were natives of the United States. Indeed, one must so construe it, unless it be assumed that the congress of 1813 and that of 1803 had thought differently on this constitutional question, for in a law of February 28, 1803, already quoted in the second volume of this work, we read: "Any negro, mulatto, or other person of color, not being a native, a citizen or registered seaman of the United States." (Stat. at L., II, p. 205.) Taney cited also the naturalization law of March 26, 1790, and the militia law of 1792, in support of his position. I do not, however, think it necessary to enter into a discussion of this question, because he could make it say what he wanted to find in it only by an over-artful interpretation.