Chapter X: The "black Laws" of "border States."

STRINGENT LAWS ENACTED AGAINST FREE NEGROES AND
MULATTOES.--FUGITIVE-SLAVE LAW RESPECTED IN OHIO.--A LAW TO
PREVENT KIDNAPPING.--THE FIRST CONSTITUTION OF OHIO.--HISTORY OF
THE DRED SCOTT CASE.--JUDGE TANEY'S OPINION IN THIS CASE.--OHIO
CONSTITUTION OF 1851 DENIED FREE NEGROES THE RIGHT TO VOTE.--THE
ESTABLISHMENT OF COLORED SCHOOLS.--LAW IN INDIANA TERRITORY IN
REFERENCE TO EXECUTIONS.--AN ACT FOR THE INTRODUCTION OF NEGROES
AND MULATTOES INTO THE TERRITORY.--FIRST CONSTITUTION OF
INDIANA.--THE ILLINOIS CONSTITUTION OF 1818.--CRIMINAL CODE
ENACTED.--ILLINOIS LEGISLATURE PASSES AN ACT TO PREVENT THE
EMIGRATION OF FREE NEGROES INTO THE STATE.--FREE NEGROES OF THE
NORTHERN STATES ENDURE RESTRICTION AND PROSCRIPTION.

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,