Chapter XXIV: 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 This law was not repealed until 1878.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 Phoebe 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!

FOOTNOTES:

[37] 1, Chase, p. 393, sects. 1-7.

[38] 1, Chase, p. 555.

[39] Jeffries _vs._ Ankeny, 11, Ohio, p. 375.

[40] 2, Chase L., p. 1052.

[41] Curwen, p. 533.

[42] Revised Statutes of Ohio, vol. i. p. 60.

[43] Ibid., p. 111.

[44] Elliot's Debates, vol. i. p. 79.

[45] Sanford's Dred Scott Case, pp. 397-399.

[46] Howard's Reports, vol. xix. pp. 403-405, sq.

[47] Hurd, vol ii. p. 123.

[48] Terr. laws 1807-8, p. 423.

[49] Laws of 1817, ch. 3, sec. 52.

[50] See Hurd, vol. ii. p. 129.

[51] Revised Laws of Indiana, 1838.

[52] Session Laws, 1819, p. 354. R. S., 1833, p. 466.

[53] R. S., 1845, p. 154.

[54] Rev. St. of 1856, p. 780.