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Full text of "An essay on the political grade of the free coloured population under the Constitution of the United States, and the Constitution of Pennsylvania : in three parts."

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" / have often taken notice that Providence has heen pleased 
to give this one connected country to one united people: a 
people descended from the same ancestors — speaking the same 
*' language — professi^ig the same religion, and attached to the 
same principles of government. " — Hamilton. 


1 830. 


The writer of the following Essay enjoyed the opportunity of 
submitting the substance of it to the perusal of the late Chief Jus- 
tice Marshall, and received from him the flattering acknowledge- 
ment subjoined, several months before his decease. He appreciates 
the privilege of introducing his unpretending commentary upon a 
difficult section of the Constitution, under a name so renowned for 
native acuteness and so highly adorned with constitutional learning. 

Richmond, October 24, 1834. 

Dear Sir — 

On my return to this place, from a visit to our 
mountains, I had the pleasure of finding a copy of your valuable 
Inquiry into the "political grade of the free-coloured population, 
under the Constitution of the United States and the Constitution of 
Pennsylvania, " for which I am indebted to you. I have read, this 
Essay with the more pleasure, because the sentiment it conveys 
appears to me, to be perfectly sound. It is cause of real gratifica- 
tion to perceive, that in the Northern and middle States, the opin- 
ion of the intelligent on this delicate subject, on which the Slave- 
holding States are so sensitive, accords so entirely with that of 
the South. 

Permit me to thank you for this flattering mark of your polite 
iattention, and to assure you that I am, most respectfully, 

Your obedient 




Among the subjects of primary interest to the people of the 
United States, at present, may be ranked — The rapid increase of 
THE African race within their bounds. To this important 
theme the publick mind has been attracted, not only by motives of 
humanity and justice towards a degraded and injured caste, but by 
a lively principle of self-preservation, also, that sees in their 
removal from the land, the only sure hope of permanent dom^ 
tick, security. Other modes of redress, it is true, have been ^f^^ 
ed by some who affect to regard a geographical divorce of the v, mie 
and black races as replete with cruelty to the latter ; but as far as 
their experiments have yet been made, instead of operating as meas- 
ures of relief, they have rather threatened to aggravate the suffer- 
ings of the depressed class, and to end in civil convulsion. Large 
districts of the Union are kept in a state of constant anxiety and 
vigilance by the density of the coloured population, while others 
have been distracted by their insurrections and made the theatres of 
the most tragical events. Whatever palliative for these deeds of 
horrour a sensitive moralist m.ay find, in an abstract view of the 
rights of human nature, a sense of the publick safety has led to 
the adoption of a course, in those parts of the country, that betrays 
but little respect for the maxims of a humane philosophy. Dili- 
gent inquiry, we are assured, has, on most uccasions, traced the 
source of these calamities to the instigation and arts of the free 
class, removed from whose influence, the slaves are said to be duly 

[ « 3 

faithful and submissive, but when exposed to it, easily made the 
instruments of crime.* The remedy was, therefore,- directed 
against the turbulent libertine; and a system of manumission, 
requiring the departure of the negro from the State, as the condi- 
tion of his freedom, aided by a penal code tending to exterminate 
the black freeman, is, accordingly, the remedial plan now under 
trial in perhaps most of the Southern States. 

The Constitutional bearing of this rigid remedy has been made 
the subject of much speculation and argument. By some it has 
been condemned as a palpable violation of the federal rights of 
free citizens, and by others been vindicated as a necessary measure 
of self-defence — reposing nn an inalienable right, which, in every 
free government, is sure of protection, and impliedly incorporated 
in the fundamental law. 

Whatever be the just view of this Constitutional question, it is 
evident, from the subject matter of it, that all the States have a 
common, though unequal concern, in its decision. The right of 
one portion depending upon it to rid themselves of an existing 
evil, and that of the other to resist the incursion of the same evil by 
cautionary legislation. The aggrieved States, by expelling the nox- 
ious caste from their limits, are virtually introducing them upon the 
soil of the other States, to re-enact there the mischiefs for which 
they were expelled; and if the former can justify the expulsion by 
the law of self-defence, surely the latter may resort to protective 
expedients, upon the same ground. The right of emancipating a 
slave, upon condition of his leaving the State of his residence, 
rests upon judicial decisions, and is undisputed ; but there is no 
rule, either of courtesy or law, that makes it obligatory upon any 
other member of the confederacy to receive the exile; nor do we 
believe this is pretended. The Constitutional difficulty is supposed 
to grow altogether out of the expulsion of a coloured /remrm, and 
to be equally involved in the act of banishment by one State-, and 
the refusal by any other to admit the person banished. 

In many of the slave-holding States the right of residence within 
their ju risdiction,' has been denied to the free black, by solemn and 

*lKJtterof Geo. Harper to Sec. of Col. Soc. 

C Tf ] 

severe acts of legislation : while in others of the North, that right 
is enjoyed by the blacks, unmolested, either upon the precarious 
authority of publick acquiescence, or the more stable support of 
their constitutions or laws. In Pennsylvania this question remains 
undetermined ; although it may be considered as pending upon a 
postponed resolution offered at a late session of her Legislature, 
when the minds of her citizens were directed to this subject, with — 
a peculiar earnestness, by concerted movements in the slave States. 
It was then that the attention of the writer was first drawn to this 
interesting question ; and, however extensive the application of his 
conclusions may prove, it is certain that his research has been chief- 
ly prompted by the exigencies of his own Statp. 

All questions of Constitutional law have a high theoretical import- 
ance ; but the one now under consideration super-adds loftier claims 
to cool and unbiased examination, arising out of its practical re- 
sults. The political and civil rights of millions of native Ameri- 
cans are, to an indefinite extent, involved in it, and therewith, prob* 
ably, the quietude and prosperity of many of the States of this 
Union. The writer, therefore, approaches it, he trusts, with a due 
sense of its magnitude, as well as of the justice and liberality ow- 
ing to that unfortunate race v/hose interests it puts so largely at 

It may be proper to apprize the reader, in the outset, that the 
subject of this inquiry is wholly distinct from the questions touch- 
ing the propriety or policy of Slavery in the United States, and the 
expediemy of elevating or depressing them in the scale of rank. 
Any opinion that may be formed upon these topicks, therefore, is 
entirely foreign to the subject before us, excepting, indeed, that the 
principle of humanity may be considered as entering more or less 
into every discussion falling within the sphere of human rights. 

The Federal Constitution is of uniform obligation upon all the 
States of the Union — and should its provisions be clearly violated 
by the laws or practice of any one or more of the States, the example 
could have no force in sustaining a similar violation of the instru- 
ment by any other State. If, therefore, the free coloured class are 
entitled to federal privileges in any of the States, and, without 
•boing chargeable with any offence inducing a forfeiture of those 

[ 8 3 

privileges, should be banished from their territory, the act of ban^ 
ishment, although proceeding from a sovereign authority, would 
not justify either of the other States in refusing admittance to the 
refugees, if it were demanded. 

The Constitution, in all such cases, would alone be the govern- 
ing rule. But if the example cited, be one merely of a doubtful 
infraction of that instrument, and at the same time material to the 
*; protection of high publick interests, the dictates of sound policy 
ought to furnish the rule of action. For instance : Suppose Vir- 
ginia, for reasons connected with her local welfare, to expel the 
free coloured race from her soil, and that the outcasts, unaccused of 
crime, were to seek an asylum in Pennsylvania, — how would that 
State feel bound to meet the case 1 It being highly probable that 
the reception of the debased exiles, within her limits, would be 
attended with a serious disturbance of her prosperity, and at the 
same time doubtful thiat they are recognized as citizens, by the 
Constitution of the United States, would she yield to their de- 
mands ? Would she suffer the unity of her aspiring population to 
be broken by the intermixture of a black and servile caste — at once 
surrender her sense of dignity, and expose her wide spread peace 
to the secret machinations of an internal and irreclaimable enemy ? 
We will venture to answer for her, no : — She would adhere to the 
policy of her early days ; and without remitting her efforts in 
favour of a peeled and dishonoured race, she would be vigilant to 
preserve the body of her citizens from the pollution of so foreign 
and threatening an element. 

There is no Stats in the Confederacy more exposed to the incur- 
sions of the refuse black inhabitants of others, than Pennsylva- 
nia ; she has many of the coloured class already in her bosom, and 
a large part of her domain bordering upon the soil of slavery. 
Her laws, too, are mild and generous towards these people, and not 
a few of her worthiest citizens, friendly to their reception. Ac- 
cordingly, they are daily flowing in upon her — occupying the time 
of her criminal courts — filling her jails and poor-houFes, and saunt- 
ering through her towns and villages in misery and want : nor are' 
the eyes of the Commonwealth ever awakened to their numbers, 
until they have completed, as far as they are capable, a probation-' 

[ » ] 

'ary title to citizenship, under the Constitution of the State. Tliat 
this portraiture is not exaggerated, however it is to be deplored, 
we appeal even to the cursory observer. By a late report of the 
Prison Discipline Society it appears that in Pennsylvania, where 
the coloured population composes about 1 — 35th part of the whole 
number of inhabitants, more than | of the convicts were of the 
coloured ranks; and at the present day, this latter proportion is 
doubtless, greatly augmented. That this state of things is a great 
publick grievance is admitted by all who are friendly to the dignity 
and prosperity of the Commonwealth ; but, strange as it may seemj 
there are many of her citizens, ^eminent both for their disceniraent 
and legal information, who insist that it is beyond the Constitu- 
tional power of the Legislature ; and consequently, as it is a cres- 
cent evil, so is it destined to be a permanent one ! With an anx- 
ious desire for the personal and national elevation of the African 
race, we ask, can it be that the Federal Constitution binds so loath- 
some an excrescence to the vitals of any State in the Union ? If 
so, that charter has certainly failed to s6cure some of the chief ben- 
efits for which it was formed. 

That the sovereign States, composing this Union, should volun- 
tarily become parties to a frame of government that would deprive 
them of the power to guard their respective citizens from the dan- 
gers incident to a large influx of black aliens, with whom the dif- 
ference of complexion alone must ever prevent them becoming 
incorporated, is exceedingly unlikely; and in the absence of an 
express and clear provision affirming it in the federal instrument of 
government which they have adopted, the improbability of the fact 
should make us distrust any construction leading to such a con- 

Those who advocate the political equality of the white and black 

freeman, in the United States, rest the doctrine upon the 1st clause 

of the 2d section of the 4th article of the Constitution of the 

United States, which runs thus: "The citizens of each State 

shall be entitled to all privileges and immunities of citizens in the 

several States." The term citizen is no where defined in the 

Constitution ; it was employed by the Convention as a word of 

known and established meaning — descriptive of all who are capa- 


C to i 

hie of citizenship, in all of the States, with a due regard to the 
local qualifications required by each State, That such is the true 
import of the term, may, we think, be gathered, as well from the 
habits and views of the American community, both before and 
since the adoption of the Constitution, as from the authority of 
learned jurists in the countiy, who are conversant with thl Ian-- 
guage and spirit of that instrument. 

An intermediate order between the free citizen and the slave has 
existed in most countries where involuntary servitude has prveailed. 
"We have striking examples of it in the free States of antiquity, 
both under their monarchical and republican forms of government, 
and at periods signalized by the spread of liberty and learning. 
Those pertaining to it in the provinces of Greece, and comprehen- 
ded under the general term Metic, formed together a numerous 
band, and ^vere subject to sundry disabilities withheld from the citi- 
zen.* Both in the earlier and latter ages of Rome they were also 
numerous, and graduated by classes in the scale of servitude ; they 
were distinguished by the term lihertini, and prior to the intro- 
duction of the lenient policy of Justinian were but seldom advan- 
ced to the freedom of the city.t This debased order was in these 
countries generally of the same race, language, and complexion of 
the superiour classes — enjoying, in the latter state, the privilege of 
intermarriage with the plebeian ranks, but, on account of their ser- 
vile birth alone, were retained in a modified servitude. According 
to the acute Montesquieu the Roman Republick derived its stability, 
in a great degree, from the restraints imposed upon this middle 
class ; and he commends the political system by which their alle- 
giance to the state was secured in connexion with their crippled 
freedom. t 

The abolition of villeinage in England and throughout Europe, is, 
both as to its time and manner, one of the obscurest subjects of 
modern history. But if we are permitted to take the rigid bondage 
of the villein, as a guide, in tracing his progress from the servile 
tenure to the rank of pure freedom, we cannot have much doubt that 

*1 Mitford, 355. 

tl Gibb. 168. Just. Inst, title 5 

lEsprit des Loix, p. 353. 

[ 11 3 

he was elevated by enfranchisement in the body politick, but little 
above the condition of the bondsman. The privileges of state con- 
ferred by the law of England upon his issue, surpassed but incon- 
siderably, if at all, the liberality of the Justinian code towards the 
offspring of the; Roman slave. Besides, it is wholly improbable 
that a government so intrinsically based upon distinct orders of soci- 
ety as that of England, would, at a period of its history much less 
favourable to the liberty of the lower classes than the present, 
advance an enslaved portion of its subjects, at once, from their low 
estate to a station of entire freedom.* 

Were the apportionment of political and civil rights, as it exists 
in the United States, to be compared with that just noticed in other 
free countries, it would be easy to discern, in the relative colour of 
their respective inhabitants, a much stronger reason for assigning a 
limited freedom only to the emancipated negro here, than mere 
servility of birth could furnish for imposing a similar restraint upon 
the freedman there : and when these two reasons operate together, as 
they frequently do in this country, the comparison loses even the 
seihblance of a parallel. 

We do not wish to be esteemed the apologist of slavery, even 
in its mildest form, but would rejoice to see both its name and 
nature withered from the world." The foregoing remarks are 
made merely to remind the reader that the practice of modified 
slavery is not peculiar to the American people, but has prevailed in 
some of the freest and most enlightened ages and nations of the 
world ; and that, as it was maintained by them upon grounds of 
political expediency alone, we cannot be equally chargeable with 
criminality, if it be found to rest, with us, upon other causes also, 
which nature herself has made insurmountable. 

The first adventurers to this country, were of the white race- 
chiefly subjects of the British crown— related by the same blood- 
speaking the same language, — and ardently united in quest of free 
and just principles of government. The introduction of the African 
race among them is well known to have an extrinsick origin— to 

*The elective franchise ik enjoyed by the free peo^ple of colour, under the amend- 
ed constitution of New Yoi-k, subject to a condition that is not exacted irom the 
white population, 2 Kent. Com. 2o9 

C 12 3 

have been the result of foreign cupidity — ^repugnant to the view* 
of freedom that inspired the colonists, and entirely irrespective of 
the s&cial principle that bound them together as a community. 
The original draught of the Declaration of Independence shews the 
slave traffick to have been one of the enumerated acts of tyranny, on 
the part of the mother country, that led to the revolution ; and vari- 
ous enactments of the colonies — rendered inoperative by the dissent 
of the crown— fully attest their uneasiness on account of the grow- 
ing numbers of this class of their inhabitants. Being admitted un- 
willingly, they were also classified without favour : instead of be- 
ing received and treated as members of the community, or even 
clothed with the right of attaining to that rank, they v^qy^ purchased 
as slaves, and made subject to the absolute disposal of their owners. 
Their manumission afterwards, was wholly an act of favour, resting 
in the discretion of their masters, and, when extended, was never 
considered to operate as a passport to the civil and political privile- 
ges enjoyed by the white society. Indeed, the annals of that early 
day do not shew that they were ever advanced to that grade of emi- 
nence in any of the colonies ; although their rights, as freemen, to 
the value of their personal services, were repeatedly recognized in 
the courts of justice. The manumitted slave of, Greece or Rome 
might be honoured with the privileges of superiour rank without 
offending any deeply seated prejudice or feeling in the breasts of 
those among whom he was elevated. Being, perhaps, often distin- 
guished above them in moral and intellectual qualities, he Avas dis- 
criminated by no physical property that was capable of being per- 
manently associated with his past servitude. Accordingly, we find, 
among other instances, iEsop, Terence, and Ph^drus, who were 
born in slavery, figuring in the prime of manhood, as the ornaments 
of science, and instructers of the polished circles of their age. But 
we may search the early history of the American Republick in 
vain for an example of any liberated African having risen to a simi- 
lar grade of equality, in either of their communities. The minds of 
the colonists were deeply impressed with the principles of universal 
freedom and philanthropy ; and, as their history testifies, in defiance 
of the temptations of interest and the frowns of the parent govern^ 
ment, they exhibited, on many occasions, an earnest and importu- 

[ 13 3 

nate sympathy in behalf of the enslaved Africans. But that history 
furnishes no evidence that they ever meditated, as a mode of relief, 
the advancement of that unfortunate race to a footing of equality 
with the white residents. The sense of justice and humanity due 
to them, that pervaded the American people, was unaccompanied by 
any desire to cultivate their communion or intimacy : On the con- 
trary, the natural antipathy of the whites towards them, arising out of 
the difference of colour, and^strengthened by the servility of the negro, 
was, perhaps, stronger then than now. The prosperous height of 
the slave-trade had created in the African race a domestick foe to the 
liberty of the colonies, not less to be dreaded, than the tyranny of 
the mother country, and accordingly served, by the most powerful 
motives, to cherish a distinction favourable to the ascendency of the 
white race. 

Dangers connected with the increase of the coloured race were 
early discerned in many of the American Colonies ; and on that 
account, as well as from humane feeling, numerous laws were pass- 
ed against the traffick in slaves.* As early as 1712 the legislative 
assembly of Pennsylvania passed a law in relation to that trafiick, 
on account of " dangers of insurrection and murder from a ne- 
gro population;" and the petition to the Throne presented by the 
house of Burgesses of Virginia in 1772, upon the same subject, is 
replete with the like sense of danger. We quote the follovving pass- 
age from it : " The importation of slaves into the colonies from the 
coast of Africa hath long been considered a trade of great inhuman- 
ity, and under its present encouragement, we have too much reason 
to fear, will endanger the very existence of your Majesty^ s Amer- 
ican Dominions, * * * * * * * * "The traffick greatly retards 
the settlement of the colonies with more useful inhabitants, 
and may, in time, have the most destructive influence. We pre- 
sume to hope that the interest of a few will be disregarded when 
placed in competition with the security and happiness of such num- 
bers of your Majesty^ s dutiful and loyal subjects."^ We are 
told, also, by Mr. Jeflerson, that, at an early period of the Com- 

*See Walsh's Appeal for a reference to these laws, p. 312, &c.— Also, 9 Wheat. 
Rep., p. 109. (note.) 
+1 Tucker's Blackstone, (Append.) 

[ 14] 

moiiwealth, a bill was reported by the revisers of the Virginia code, 
fixing a time for the emancipation of the slaves, and detailing a plan 
for colonizing them as a separate and independent people.* And 
it is well known to have been the uniform policy of the colonies, 
generally, to invite the European to their shores and confer upon 
him the highest privileges of the State, while the swarthy African was 
repelled by a penal law, or, when unwillingly admitted at a price, 
consigned to bondage. Indeed it is idle to enlarge upon such clear 
points of our colonial history as the universal debasement of the 
coloured ranks, and the motives of apprehension that contributed to 
their disfranchisement, "The experiment of improving their 
" political condition, so far as it has been already made among us," 
says the learned Judge Tucker, "proves that the emancipated 
"blacks are not ambitious of civil rights. To prevent the genera- 
" tion of such an ambition appears necessary; for if it should ever 
" rear its head, its partizans, as well as its opponents, will be enlisted 
" by nature herself, and always ranged against each other. " What- 
ever may be thought of the views of expediency here expressed, 
the authority of this writer will not be rejected as evidence of the 
early civil disqualifications of the coloured population. 

That it was not a sentiment of humanity merely, that prompted 
the colonial regulations against the slave-trade, is evident from 
another consideration. It is a well attested fact, that some of the 
most enlightened men, in those sections of the country where the 
evils of that trade were most prevalent, espoused and avowed the 
opinion that the white and black races are physically and morally 
distinct — the inferiority of the latter being supposed to unfit them 
alike for self-government and the refined enjoyments of an advanced 
state of society. Such was obviously the leaning of Mr. Jefferson's 
judgement, as may be seen from his critical speculations upon the 
relative endowments of the two races, in his "Notes on Virginia;" 
and there is respectable authority for believing, that this dogma car- 
ries back its origin to the first attempts of British avarice to enslave 
the Africans upon the soil of the colonies. To what extent this 
philosophical distinction actually obtained, may be variously conjee* 

•Notes on Virginia. 

[ 1« 3 

tured ; but when we consider the usual influence of great names in 
mouiding publick opinion, and the immense weight of private inter-' 
ests connected with slavery that musit have favoured its propagation, 
it would not seem unreasonable to infer that the doctrine won many 

The broad principle avowed in the Declaration of Independence, 
that ** all men are created free and equal, " &c., has been pronoun- 
ced not only an emphatick rebuke of slavery throughout the world, 
but an act of keen self-reproach against the American people, in 
proportion to their reluctance or indolence in promoting its abolition 
upon their own territory. It is a mistake to suppose that the band 
of patriots who promulged that noble manifesto in the cause of hu- 
man rights, meant to inculcate the principle of immediate emanci- 
pation, and the introduction of equal freedom among the white and 
black races of the colonies. Such an opinion, indeed, seems to have 
gained some currency, both at home and abroad : it is the favourite 
text of the ardent abolitionist among ourselves, who, in the height of 
a laudable, but misdirected zeal, is striving to achieve what the voice 
of nature and the impotency of his best efforts unite in proving to 
be unattainable ; and the choice theme of agitators under a foreign 
government, who are seeking the renown of Philanthropists by 
malignant tirades against the institution of slavery here, while the 
working classes of their own land are qiiietly suffered to remain in a 
state of subjection to their employers three fold more galling than the 
bondage of the American negro.* The Declaration of Independence 
was the act of the white population, performed by their representa- 
tives; and although the general proposition which it proclaims in favour 
of human freedom, liberally embraces the whole race of man, yet, it 
is evident, as well from the tenour of the instrument itself, as from the 
tone of publick feeling prevalent in the colonies at the time, that its 
true constructive reference is to the relation between the American 
people, nationally considered, or any othet political community, 
and the form or principles of government which they have, by 
nature, a right to adopt. The subject of domestick relations, or of 
private property, was not within the design or authority of the body 

*See Quart. Review, no. 89- 

[ 16 ] 

ihat framed and published the paper, and had any act been done, by 
it, with a clear tendency to the alteration or disturbance of these 
objects, it would certainly have met with a speedy and unequivocal 
reversal from the constituent power. 

AVe have no authentick record either to prove or disprove the par- 
ticipation of the free blacks in the election of deputies to the con- 
ventions that formed the several State Constitutions after the Dec- 
laration of Independence ; but the inferiour condition of that class, 
as already noticed, is conclusive evidence, that in many of the States 
they were not admitted to any share in the establishment of those 
systems of government. Such being the fact, the question presents 
itself — is their equality, with the whites, recognized in the State 
Constitutions ? Tiiese instruments of government, having been 
formed upon the known sentiments of the community, and the pre- 
existing relation of its members, ought not to be construed so as to 
violate those sentiments, or derange those relations, without a speci- 
fick reference to them ; and the rule is familiar, that a general term 
may have a restrictive meaning when the nature of the case is capa- 
ble of it, and such meaning best harmonizes with the antecedent 
views and present practice of the party concerned. Including the 
State of Georgia, where a fraction only of the coloured population 
is comprised in the constituent mass, there are fourteen states out 
of the twenty-five, whose constitutions, by express language, limit 
the distinguishing privilege of citizenship--the right of suffrage— 
to the white freeman, exclusively . In the constitutions of the other 
states south of the Potomack, where rigorous laws attest the dis- 
franchisement of the coloured man, the ievm freeman, or free inhab- 
itant, is used to designate the electoral body ; these terms must con- 
sequently be limited in their application to the white population; 
otherwise those constitutions and laws would conflict in spirit. 
"In the slave-holding states," says a sensible writer, "the free 
" blacks do, indeed, labour under civil incapacities ; and the policy 
" of denying them the higher privileges of citizenship, is impera- 
*' tive " In addition to other deprivations, they are disqualified to 
hold offices of trust or profit, to sit as jurors, or to bear testimony 

*Mr. Walsh--.see his "Appeal," p. 395 and Letters on Col. Society by 
iVi. Oarey, lou^. 

C tr ] 

in courts of law or equity, affecting the interests of a white suitor* 
To apply the term citizen^ to one labouring under such material 
disabilities would certainly be a perversion of its just import. In 
the majority of the non-slave-holding States, the numbers of the 
coloured class were too inconsiderable to merit special notice in their 
constitutions : their political grade was therefore left to be fixed by 
popular sentiment; and we need hardly add, that although they live 
in the enjoyment of some portion of civil and religious freedom, 
they are deprived, in all those States, of the higher privileges belong- 
ing to native or naturalized white citizens. Events of a serious 
character, and not unfrequent occurrence, occasioned by an incon- 
siderate zeal for the welfare of the slave, serve to evince the lively 
feelings of repugnance, that, at present, alienate and promise a perm- 
anent separation of the white and black races in that quarter of the 

Such are the facts and reflections that have occurred to us upon 
the first branch of this inquiry; and, if the subject does not abound 
in written positive proof, still, the evidence is such as to impress 
the mind, unswayed by a partizan spirit, forcibly with the conclu- 
sion, that at no period, prior to the adoption jof the federal constitu- 
tion, were the free coloured people of these States admitted to an equal 
share of political power and privileges with the white inhabitants. 


PART 11. 



"In democracies," says a historian already cited, speaking of 
the Grecian Governments, "the supreme power was nominally vested 
** in all the people, yet, those called the people, who exclusively 
" shared that power, were scarcely a tenth part of the men of 
" State. " The same remark is applicable, in a degree, to the gov- 
ernment of the United States : it was nominally framed by all the 
people ; yet it is indisputable, that a large class, residents of the 
soil, had no agency, either direct or indirect, in its formation ; con- 
sequently, the privileges which the constitution imparts, in the 
absence of any specifick provision in behalf of this disfranchised 
class, can be considered applicable to those only who composed the 
sovereignty from which it emanated. The evidence of the exclusion 
of the coloured ranks, at the formation and adoption of the Federal Con- 
stitution, varies in character but little from that already collated in rela- 
tion to their political pretensions, under the earlier governments of the 
States. The constitution was formed by a convention of delegates from 
the several States, who derived their commissions from the legislative 
power — a power, which the Constitutional polity, the legislation and 
practice of the States concur in shewing the black population had 
no share in appointing. We have already endeavoured to shew that 
a different opinion would be irreconcilable with the constant views 
and policy of the whole American community. The coloured class, 
then, having no political rights on the score of constituting a portion 
of the sovereign power at the formation of the general government, — 

C l» 3 

we have next to inquire, whether, in the charter of government 
then formed, there is any specijick provision bestowing upon them 
the rights and privileges of the State 1 

By the clause of the federal constitution quoted in the first part 
of this Essay, national privileges and immunities are guarantied to 
the citizens of the States, respectively ; but, as already said, we 
are not furnished, by that instrument, with any description of the 
persons bearing this character. The reason of this omission is 
found in the right of each State to prescribe its own conditions of 
citizenship ; and as the States differ in their regulations upon this 
subject, an exact definition, excluding their differences and adopting 
only their points of agreement, was, probably, deemed by the con- 
vention equally impracticable and unnecessary. That this is an 
exclusive right of the States is not only attested by their uniform 
practice, but admitted by the clear language of the Constitution. 
It is provided in the first article of the constitution, that " the elect- 
" ors in each State shall have the qualifications requisite for electors 
"q/* the most numerous branch of the State Legislature f and 
in the second article, *' each State shall appoint in such manner as 
the legislature thereof may direct'*'' the electors of President and 
Vice President. These passages plainly shew that the phrase priv' 
ileges and immunities, in the clause under consideration, cannot be 
expounded to embrace that primary qualification of the citizen — the 
electoral right, — ^but must be viewed as descriptive, merely, of cer- 
tain local advantages incident to citizenship already acquired 
under the State laws : otherwise the laws of one State might dic- 
tate the terms of citizenship in every other. In this sense, these 
privileges and immunities are conferred upon all who are citizens 
of any of the States and have no inherent or conventional incapa- 
city to become citizens in them alL The character thus created by 
the joint operation of the State and Federal laws is, properly, a fed- 
eral CITIZEN — an appellative, comprising all who are citizens of 
either of the States by birth or naturalization, and excluding all 
whom either of the States may have placed under disabili' 
ties, whatever political favours the same class may enjoy under 
the laws of other States, By this construction no violence is done 
to the language of the constitution, while its spirit »*s harmonized 

with the prevailing state of publick sentiment, the uniformly dis- 
criminating policy of the States upon this subject, and their discre- 
pant legislation respecting the right of the free blacks from a sister 
State to enter within the limits of their respective jurisdictions.* 

Nor is this view of the constitution objectionable on the score of 
novelty : it has the sanction of the most enlightened authority in 
the country. ** The article in the constitution of the United States " 
says Chancellor Kent, " declaring that citizens of each State are 
" entitled to all the privileges and immunities of citizens in the sev- 
" eral States, applies only to natural-horn ar duly naturalized citi" 
" ze7is ; and if they remove from one State to another, they are 
** entitled to the privileges that persons of the same description are 
*' entitled to in the State to which the removal is made, and to none 
<* other. If, therefore, for instance, free persons of colour are not 
«* entitled to vote in Carolina, free persons of colour emigrating there, 
*' from a northern State, would not be entitled to vote.'*t The con- 
struction here adopted by the learned commentator is equally expli- 
cit and just; but the illustration we cannot help thinking inaccurate, 
and opposed, in part, to an opinion elsewhere expressed by the 
author in the same treatise. The word privilege^ in the constitu- 
tion, was certainly not intended to embrace the elective franchise, 
but only certain accidents of that right, growing out of local laws or 
usages. The clause in which it is found must be reconciled with 
the provisions of the 1st and 2d articles before cited, and construed, 
therefore, with a due subjection to the peculiar laws of the States, 
fixing the qualifications of citizenship ; but the things which the 
term imports are unconditionally bestowed, by the constitution, upon 
persons already supposed to be, under those laws, in the enjoyment 
of the electoral right. The various advantages implied in the phrase 
privileges and immunities it would be difllicult to specify. Judi- 
cial decisions have placed within its meaning, the license of acquir- 
ing and holding property, the exemption of that property from une« 
qual taxation, and the prefered rights of creditors in the distribution 

*In Ohio, Delaware, Missouri, Virginia, North Carolina and Georgia, 
there are rigourous laws for the exclusion of the coloured population of 
other States » 

f2 Kent. Com. p. 71. 

[91 ] 

of the estate of a deceased debtor.* But tbe constitution imparts to 
no description of people, whether white or black, in either of the 
States, the right of voting in any other State ; although it infallibly 
secures the privileges and immunities of each State to the citizens 
of all. We concur in the opinion of the author, that these federal 
advantages are confined to ^^natural-born or duly naturalized citi- 
zens but for reasons, in part, already slatcid, we must dissent from 
the implication in the extract, that free per nons of colour*^ come 
under that description. If they are included in it,, why are they not 
admitted to the privileges enjoyed by the whites of the same class^ 
throughout the bounds of the Union ? To deny the propriety of 
their exclusion from those privileges, is to charge the majority of the 
nation with a continual violation of its constitutional law. Indeed, 
the general sense of the quotation we have made, may be moulded 
into a syllogism favourable to the sound doctrine, thus : The privil- 
eges and immunities of the federal constitution apply c^ly to nat- 
ural-born or duly naturalized citizens — but free persons of colour are 
denied them in several of the States — therefore, free persons of col- 
our are not such citizens. It is with pleasure we acknowledge the 
high authority and general correctness of the works of this distin-* 
guished jurist ; nor can we, with any but a frail confidence, venture to 
question the soundness of any of his constitutional views. Our depen- 
dence is on the common lot of the most enlightened and acute minds — 
a failure to preserve, in a general treatise, technical accuracy upon 
topicks incidentally discussed. 

This inapt illustration of the chancellor seems to have misled 
Judge Jay in his strictures upon the opinion of the court in Pru- 
dence Crandall's case ;t but the views of this writer will be more 
fully noticed in the sequel. ■ 

The foregoing interpretation of the clause in question is further 
strengthened by the authority of Justice Story in his valuable 
** Commentaries on the Constitution of the United States. " The 
intention of this clause," says that writer, *'was to confer on the 
" citizens of each State^ if one may so say, a. general citizenship; 

*Exparte Bollman and Swartwout, 4 Cranch, 114—129, Sergt's. Consti- 
tutional Law, 384. 
t Jay's Inquiry, p. 40-41. 

C S» ] 

*« and to communicate all the privileges and immunities which the 
" citizens of tlie same State would be entitled to under the like cir- 
** cumstances. According to this view of a very able expositor, 
the claimants of the privileges in question, are invested with a fed- 
eral citizenship, and classed with the citizens of the State to which 
they have removed — advantages that have a necessary dependence 
upon the municipal laws of the States, and cannot be predicated of 
the free coloured inhabitants^ who, in all of the States, are ranked 
below the citizens, and, by many of them, denied the humble priv- 
ilege of ingress, permissively enjoyed by the alien* The closing 
phraseology of this definition seems to affect its precision of mean- 
ing; but whether the qualifying circumstances^^ mentioned, refer 
to the reciprocal rights o^the citizens of different States, or the res- 
traints incident to a residence in any of them not sufficiently pro- 
longed to acquire the higher privileges of citizenship, is wholly 
unimportant to the coloured race. The phrase has express allusion 
to citizens only, and is inapplicable to any who labour under a diS' 
ability of caste that unfits them for the attainment of political 
privileges in many of the States ; — consequently, it cannot be receiv- 
ed as descriptive of the condition of the free black. 

In collecting the various authorities upon the construction of this 
clause of the constitution, we cannot omit that of the learned Mr. 
Rawle, in his View of the Constitution," — a work of very supe- 
riour merit. "The citizens of each State," he informs us, **con- 
** stituted the citizens of the United States when the constitution was 
" adopted. The rights which appertained to them, as citizens of 

these respective commonwealths, accompanied them in the forma- 
"tionof the great compound commonwealth which ensued;" he 
adds, every person horn within the United States, its territories 
" or districts, whether the parents are citizens or aliens, is a natural 
" born citizen, according to the sense of the constitution, and enti- 
" tied to all the rights and privileges appertaining to that capacity. " 
We have here a lucid exhibition of the true doctrine — the phrase 
every person being limited to the white population ; and that this 
limitation was intended by the writer, is obvious, from the general 

*3 Story's Com. p. 675. 

proposition with \Vhich the passage is inti-oduced, viz : " Those 
" only who compose the people and partake of the sovereignty are 
" citizens : they alone can elect and are capable of being elected to 
*'publick offices, and of course they alone can exercise authority 
«* within the community. " It is extremely doubtful that the col- 
oured freeman has ever been elevated, by legal provision, to unqual- 
ified citizenship, in any State of the Union ; and we have met with 
no one who is prepared to maintain that he has, in the sense of this 
author, so shared in the sovereignty of any of the Amercan Govern- 
ments General or State — as to entitle him to that rank. We have 

already adduced ample historical evidence to establish the negative 
of this point ; and it is inconsistent with the limits of this essay to 
swell the mass of mere corroborative proof. 

It is urged by some, that the term citizen, is applicable to all the 
inhabitants of the States, whatever may be their strict relation to 
the government ; and that the privileges secured to them, are such- 
only as the State concerned bestows upon that class of its residents 
to which the claimants belong. If this be the true construction, it 
is equally opposed to the doctrine combatted ; for it recognizes the 
inferiour grade of the free blacks, and the authority of the States to 
place them under civil and political disabilities. But we cannot 
adopt this construction, for two reasons of considerable weight: 
First — the clause in the constitution was manifestly intended to con- 
fer a benefit upon all within its range ; but such cannot be its effect 
towards the coloured race, who, instead of bearing with them the 
title to privileges in their migration from the Northern to the Southern 
States, contract, on the contrary, a liability to the most onerous and 
depressing disqualifications. Secondly — the operation of the clause 
is co-extensive with the republick — obligatory upon all the States ; 
but, in several of the States, the free coloured people of their confeder- 
ates are prohibited the right of ingress, by expulsive and penal legisla- 
tion. This definition of the word citizen, moreover, is not in ac- 
cordance with that of standard writers on government. The ^^jus 
eximium civitatis,^^ as Cicero denominates it in his oration against 
Verres, and which distinguished the Roman civis, comprehended 
the whole circle of publick dignities and private privileges. But 
in the most flourishing days of the empire, many of the provincial 

hihabitants of the Roman State, were incapable of attaining to tkU 
superiour grade of freedom. According to Sidney, freeholders, 
who have their votes, are properly cives members of the common- 
wealth, in distinction from those who are only incolce or tnhab' 
itants, slaves, and such as being under their parents, are not yet 
free. "* Here, entire freedom and the right of voting, are specified 
as indispensable properties of the citizen ; which shews the abuse 
ol the epithet when bestowed upon any disfranchised class, who 
are, technically and accurately speaking, inhabitants only. The 
same distinction is noted by Vattel : " The citizens, " he informs 
Us, " are the members of the civil society : bound to this society by 
** certain duties, and subject to its authority, they equally participate 
" in its advantages. The perpetual inhabitants are those who have 
" received the right of a perpetual residence. They are a kind of 
" citizens of inferiour order, and are united and subject to the 
" society, without participating in all its advantages, "t 

The great fallacy consists in supposing that the Federal Constitu-- 
tion has, of itself, created a new citizen, distinct from the citizen 
under the State Governments^ — whereas, it only clothes the State 
citizen with national privileges, and exacts, in return, his allegiance 
to the General Government* 

The corresponding section in the Articles of Confederation, it is 
admitted, betrays singular inattention to verbal accuracy-^^t confu- 
sion of language that might, at some future day, have led to a seri- 
ous disturbance of the Government. The clause analagous to the 
one cited from the constitution, runs thus : ** The free inhabitants 
" of each of these States, paupers, vagabonds and fugitives from jus- 
*' tice excepted, shall be entitled to all the privileges and immunities 
** of free citizens in the several States." Now, unless the phrase 
free inhabitant here, be taken as synonymous with citizen, the 
passage would have invested the Federal Power, with a controlling 
authority over the laws of the States regulating the political grade of 
their several classes of inhabitants — an authority which the States 
never could have surrendered, consistently, with the duty of self- 
guardianship. Taken subject to this construction, the clause is sub^ 


*Sidney on Government, vol. 2, p. 312. 

f Law of Nat. B. 1 ch. le.—See also Dr. Webster'i definition. 

C as ] 

-stantially the same with that of the constitution, and consequently; 
"can shed no light upon its meaning with regard to the description of 
persons under view. 

Upon this provision of the old government, a learned writer, before 
alluded to, who has recently favoured the pubiick with a brief argu- 
ment upon the question here examined, remarks : " While these ar- 
" tides were under consideration in Congress, it appears from the 
journals, that on the 25th of June, 1778^ the delegates from South 
" Carolina moved the following amendment, in behalf of their State : 
*' *In article fourth, between the words free inhabitant, insert white. 
** Passed in the negative — ayes 2 States ; nays 8 States — 1 State 
" divided. ' Here then, was a solemn decision of the revolutionary 
"Congress, that free negroes should be entitled to all the privileges 
" and immunities of free citizens in the several States. In this 
opinion, positively expressed as it is, we cannot concur. Indeed, 
the partial application of the proposed amendment, if the language 
may be so understood, was alone sufficient, without stopping to 
enquire for any other reason, to ensure its rejection. The govern- 
ment, then in process of creation, was designed for the equal bene- 
fit of all the States, and serious matter of complaint would have 
been furnished by the introduction among its provisions, of any 
clause for the special advantage of either. But, understanding the 
language of the movers, "in behalf of their State, as referring, 
merely, to the source of the motion to amend, there is a still better 
reason for the negative decision upon it, to be found in the relative 
authority of the confederated government and the separate State sov- 
ereignties. Prior to the passage of the naturalization laws of Con- 
gress, the States reserved to themselves the right of defining their 
own terms of citizenship, arid do yet retain, upon this subject, a 
concurrent power, to some extent, with the General Government. 
The power which they retain is exclusive in reference to that branch 
of its action involved in this rejected amendment. The coloured pop- 
ulation enjoys various privileges in various States, and may, at the 
option of the sovereign power in either of them, be advanced to the 
eminence of the white native freeman. This authority was not 

*J ay's Inquiry, p. 42. The tone and language of the writer would be bet* 
xer adapted to an affirmaiive decision on a motion to insert the word black*. 


C 2» 3 

telinquished either by the compact that resulted in the articles of 
confederation, or by the later or more generous one on the part of 
the States that produced the present constitution. If, therefore, the 
political bodies entrusted with the digest of these frames of govern- 
ment had ventured to engraft among their powers this distinct res- 
ervation of the States, the act might have been disowned by the 
States as a clear invasion of their rights, and would, in all probability, 
have been so met. Had the word white been inserted in the arti- 
cle, according to the proposed amendment, the States might never 
have been able, consistently with the provision, to elevate their col- 
oured inhabitants to the enjoyment of perfect citizenship — a meas- 
ure that, at this day, is not without numerous and ardent advocates, 
in many of them. Whereab, by the suppression of* the qualifying 
word, each member of the confederacy was left to its own discretion 
on a point plainly embraced by its reserved powers. From these 
considerations, it is inferrible, that the clause of the Articles of Con- 
federation in question, was not, according to the judgement of the 
writer just quoted, intended to comprise "/ree negroes^ " but was 
left by the framers of the instrument like its corresponding clause 
in the constitution — subject to such exposition as would be most 
compatible with the laws and practice of the States, and the true 
relations of the constituent members of the compound government. 

To this view of the subject it has been objected from another 
quarter, that the constitution, in apportioning the representation 
among the States according to the " vjjiole number of free per sons,'*'' 
virtually bestowed a general citizenship to the extent of the enumer- 
ation.* Now, although the omission of any class of the people by 
the law fixing the constituent body may be fairly regarded as a polit- 
ical disfranchisement of that class-— as in the Constitution of Geor- 
gia — yet it does not follow, that all who are included in that body, 
whether by a general or specifick description, belong to the rank of 
citizens ; and to this extent the argument must go. It is founded 
upon tho . erroneous notion, that all who constitute the basis of its 
representation are ipso facto entitled to choose representatives. The 
wise men who formed the constitution had neither the inclination 

^Review of Judge Dagget's charge m Crandall's case, by "Lysias," ix^ 
Nat. Gaz, for Nov. 1833. 

[ 37 3 

saor the power to interfere with'the electoral body of the States, nor 
%o distinguish, by superiour privileges, any class of the collective 
community. But, independent of this fact, the spirit of the objec* 
tion here would obviously ascribe the highest qualification of the 
citizen, not only to indented servants, and resident aliens, but to 
three fifths of the slaves, also, who are equally included in the fed- 
eral numbers — a conclusion at which no rational view of the gov- 
ernment can ever arrive. It was wholly foreign to the object of this 
xjonstitutional provision to designate those who were to have an active 
participation in the government : it is avowedly not confined to either 
the citizens or free inhabitants, but, with one exception, embraces 
persons of every rank and description. The mere residents of a 
<;ountry, bound only by a temporary fealty, have personal rights, and 
may have rights of property, requiring, and therefore entitled to 
receive the protection of the government and laws — it is proper, 
therefore, that they should not be overlooked in adjusting the rule 
of representation. Such is the principle upon which the liberal 
rule of the Federal Constitution is based ; its purpose was to secure 
to the States, an influence in the popular branch of the legislature — 
according to their number of inhabitants, respectively, without the 
most distant reference to the political rights or privileges of any 
class of their population. 

Equally fallacious is the pretence that the liability of colouied 
freemen to taxation, coupled with their right of acquiring and hold- 
ing properity, constitutes them citizens.* These incidents, it is 
true, may, by the common law, be regarded as attributes of citizen- 
ship ; btrt that law, it has been judicially decided, is but an imper- 
fect criterion of alienage in this country ;t and in most of the States, 
the alien, we believe, is subject to taxation and the duty of bearing 
arms, and enjoys the privileges mentioned with regard to property, 
but has no claim to the higher and more valuable rights of the citi- 
zen. Every just government extends the arm of protection over all 
its inhabitants, and they, in return, owe it, according to their char- 
acter, natural or local allegiance, the violation of either of which ia 

*Jay's Inquiry, p. 44. 

iStewart vs. Poster, 2 Binn. 118. 

[ 28 J 

punishable as treason :* but still, this relationship of the parties is 
considered in every sound treatise upon national law, as distinct; 
from that between the State and citizen. The capacities allowed to 
the alien in the United States are peculiar, and serve to contrast the 
generous policy of a youthful and free government with the jealous 
restraints of a feud-al age whieh time only consecrates under a mon- 

The view here contended for, derives support, al«o, from the ten- 
our of the federal legislation. The naturalization law of 1802 that 
was passed by congress in execution of the power confided to that 
body by the constitution, is expressly limited to aliens of the white 
race. The language of the first section is, " Any alien, being a 
" free white person, may be admitted to become a citizen of the 
<* United States, or any of them, on the following conditions, " «fec. 
Thus, the coinplexion of the alien is made an essential pre-requisite 
to his admission to the rights of a citizen, in a mode sanctioned by 
the constitution, and that bestows the character as perfectly as birth ; 
how then can birth impart the character when the complewion here 
required, is wanting ? It has been the uniform policy of the Uni- 
ted States to encourage emigration ; and if the coloured freeman can, 
under the constitution, succeed by nativity to the rights and immu- 
nities of citizenship, the spirit of that instrument is certainly not 
manifest in the exclusion of the foreigner from the same benefits, by 
naturalization, on account of his having the same colour. The law 
just referred to affords unequivocal evidence that, in the judgement 
of the law-making power, at least, the colour of the African race is 
a constitutional harrier to their admission to the rank of citizens, 
in the United States. 

Concurrent testimony upon this head is furnished by the act of 
congress of 1804, providing a temporary government for the Louisi-> 
ana Territory. By this law the same distinction of the races is 
recognized, and the civil privileges of the Territory are confined to 
the " free male white " residents. The 9th section provides that 
" all free male white persons who are house-keepers and who shall 
" have resided one year, at least, in the said Territory, shall ba 

n East. PI. Cr. ch. % 

[ Sd ] 

required to serve as grand and petit jurors in the courts of the 
«<* said Territory, " (fee. Now there is nothing in the language of 
the constitution, respecting the publick domain, that authorizes this 
discrimination in favour of the white race ; but it was doubtless the 
belief of the legislature that pasf'ed the law, that the plain sense of 
the instrument approved the discrimination ; and it is with a view 
to this fact, only, that the case is cited. Regarding this high legis- 
lative authority as unfolding the true spirit of the constitution, how 
does the genius of the statute quoted comport with the political 
equality of the two races, under the immediate government of the 
constitution ? Is there credulity to believe that a charter of govern- 
ment would, without express words, sanction a partial distribution 
only of State privileges in one of its territorial districts, whose inhab- 
itants were soon to be incorporated, indiscriminately, with the nation- 
al mass of citizens, if others, standing in the order of the disfran- 
chised class, are entitled, by the provisions of the charter itself, to a 
full share of those privileges ? Any construction of the constitution, 
involving so flagrant an incongruity, must ever be received, if at all, 
with many scruples of distrust. This evidence is corroborated by 
the act of 1803, passed to incorporate the city of Washington. In 
providing for the election of the council the right of voting is ex- 
pressly limited, by the law, to the white population. It is worthy 
of observation that this act of preference prevails within a district 
subject to the exclusive and permanent legislation of the federal 
power, and cannot, therefore, be viewed in the light of a concession 
to the prejudices of the inhabitants, who, like those of a territory, 
were soon to acquire the right of establishing the distinction by a 
sovereign government of their own, over the same theatre. 

A looser phraseology has crept into other enactments of Congress, 
but, as will appear on examination, without any material - bearing 
upon the question at issue. The act of 28th Feb. 1803, passed 
" to prevent the importation of certain persons into pertain States," 
&c., provides for the punishment of any person who shall " import 
** or bring any negro, mulatto, or other person of colour, not being 
"a native, a citizen, or registered seaman of the United States, Sfc.^ 
** into any port or place of the United States, situated in any State 

C 80 J 

which, by law, has prohibited or shall prohibit the admission or 
importation of such negro," &c.*' The inference drawn on a 
hasty perusal of this passage is, that the subjects of importation 
described, although persons of colour, may, also, be citizens of the 
United States, A careful examination of the whole law will prove 
this inference to be incorrect. The act was passed under the power 
conferred upon congress by the 1st clause of the 2d section o.f_the 
constitution, and is pointedly directed against the slave traffick: the 
crime which it denounces is not migration, but forciUe importa- 
tion for objects of slavery — the penalty which it threatens is held 
in terrour over the man-stealer, and not over the voluntary emi- 
grant. It is farther to be observed, that the persons subject to be 
imported, in violation of its provisions, must be such as the States 
concerned have declared by law, their unwillingness to admit $ 
consequently, they cannot be citizens of the other States, according 
to the constitutional description of the term- — as no State in the 
Union has power to exclude, from its limits, the citizens of the 
other States — the right of ingress and egress, throughout the bounds 
of the confederacy, being unquestionably among the privileges se- 
cured by the Federal Constitution to all who are State citizens, 
within its meaning.! The whole object and tenour of the act, there- 
fore, shews the phrase citizen of the United States to be redundant 
and expletive, and make it unnecassary to dwell upon the grammat- 
ical unfairness of ascribing citizenship to a class, by language, of dis- 
tinct negation. 

The joint resolution of the Senate and House of Representatives, 
admitting Missouri into the Union, is, perhaps, deserving of more 
attention. When that exciting subject was under debate in the pub- 
lick councils, the question here discussed was embraced in it, and 
elicited much zeal and ingenuity on both sides. On the application 
of the people of Missouri, a law was passed, by congress, for their 
incorporation into the Union, as a State, on the usual republican 
principles. When the constitution of the inchoate State, was pre- 
sented for acceptance, it became a question, whether, in that insti-u- 

♦3 U. S. Laws, p. 529. 
t4 John. ch. R. 430. 

[31 ] 

ment, those principles were complied with ? It was urged that the 
4th article and 26th section, which directed the legislature of thd 
State, "to prevent, by I^l^, free negroes or mulattoes from coming 
to and settling in the State, '* was repugnant to the clause of the 
constitution of the United States, now under consideration, and a 
violation of the rights of the citizens of the several States. Aftet 
being made the subject of much harsh and critical comment, the 
objectionable clause was referred to a committee of three, of which 
the venerable and acute Mr. Loundes was chairman;* The report 
of this committee was favourable to the republican spirit of the re- 
ferred clause, but it avoids a decision of the present question, by 
iremitting it as one of " nice and difficult inquiry to judicial cogni- 
zance. " 'The committee, however, indulged in some general views 
with regard to it, which, on account of the high respectability of 
their source, we submit to the reader in the following extract from thO 
report: "Of all the articles in our constitution," says the commit- 
tee, " there is, probably, not one more difficult to construe well, than 
" that which gives to the citizens of each State, the privileges and 
"immunities of the several States; there is not one, attention to 
" whose spirit, is more necessary to the convenient and beneficial con- 
"nectionof the States; nor one of which too loose a construction 
" would, more completely, break down their defensive power, and 
"lead, more directly, to thiiir consolidation. This much, indeed j 
" seems to be settled by the established constitutions of States in 
" every section of our Union : that a State has a right to dis- 
" criminate between the white and the black man, both in respect 
^^to political and civil privileges, though both be citizens of 
another State : to give to one^ for instance, the right of voting 
" and of serving on juries, which it refuses to the other. How 
"far this discrimination may be carried, is obviously a matter ^f 
"nice and difficult inquiry. "t According to this testimony, the 
grade of the free coloured man, in the American community, is 
depressed greatly below that of the white citizen : he is adjudged 

*The committee consisted of Mr. Loundes, Mr. Sergeant and Mr. Smith, 
but the report was admitted, by the chairman, to have received the assent 
of the majority only. 

*Nile's Reg. vol.'lD, p, 206-7. 

[ 38 ] 

to be subject both to civil and political disabilities in all the States f 
at the option of the ruling power, no matter what rights or privile- 
ges he may have enjoyed, as a resident, of any of them ; while the 
native or naturalized white man is, constitutionally, exempt from all 
such liability. The committee, it is true, acknowledges that the 
debated clause had received, from others, a construction applicable 
*' to such free negroes and mulattoes as are citizens of the United 
** States, and that their exclusion had been deemed repugnant to the 
"Federal Constitution;" but as there is a subsequent reference in 
the report, to the large class of free negroes and mulattoes who 
cannot be considered as the citizens of any State, it is not easy 
to perceive the grounds of the distinction thus assumed, or to recon- 
cile the language in which it is stated, with the strong and explicit 
terms of the passage previously cited. While we confess some 
perplexity here, we cannot help suspecting, that the committee may 
have, inconsiderately, yielded to a distinction that owed its origin 
less to a calm study of the constitution than to the ardour of debate* 
The soundness of the report, however, may not be considered as in 
need even of this apology. For, in the first place, there are many 
individuals in the country, of mixed blood, who exhibit so remote 
and undefined a connectioa with the debased class, as to claim, in 
their behalf, a relaxation of the constitutional rule. These persons, 
it would not seem improper, to protect against the contemplated 
legislation of the new State, and accordingly, they may have been 
included, by the committee, in the privileged mass. In the second 
place, coloured seamen in the employment of the general govern- 
ment, although liable to the restraint meditated by the Constitution of 
Missouri, do still, in some sense, fall within the description of citi- 
zens of the United States, and the use of the phrase, therefore, 
inapt as its connection may be, in the report, on account of that 
liabiUty, cannot be considered as wholly unjustifiable. We reject 
the idea, altogether, that the statesmen on this committee could have 
been misled by the notion, that the regulations of any one or more 
of the States, upon the subject of citizenship, could at all effect the 
distribution of its privileges in the remaining States. Indeed, the 
general tenour of the report being so clearly confirmatory of th^ 
doctrine here advanced, a slight incongi-uity in its language merits^ 

[ S3 3 

e>niy, a cursory consideration. The resolution subjoined to this 
report was superseded by a joint resolution of the two houses, which 
provided, that the obnoxious clause should be retained in the new 
State constitution subject to the condition " that it shall never be 
** construed so as to deprive any citizen of any State of the privile- 
** ges or immunities to which he is entitled as a citizen of the United 
" States.'* In this peaceful adjustment of the controversy there 
was, professedly i no legislative decision upon the federal bearing 
of the clause. That question was suffered to remain as it was 
found. If the resolution adopted, assert the political claims of the 
coloured race, the Constitution of Missouri, with more boldness, 
resists them. The restriction imposed upon the construction 
of the clause, merely reserves the rights of citizens ; and who 
ever doubted that a new State, by the very act of acceding to the 
federal league, voluntarily submits to this limitation of its authority ? 
The termination of this embarrassing subject, by so happy a com- 
promise, restored the harmony of the country ; but it left the ques- 
tion here considered, undetermined, and where the committee had 
placed it — before the Judicial forum. 

In the two instances last noticed, nothing of weight can be ex* 
tracted from the action of congress in relation to the subject of this 
inquiry ; the problem is scarcely touched. But in the laws previ- 
ously cited we have direct legislative decisions upon the very sub- 
ject matter,— «n unequivocal denial of civil and political privile- 
ges to persons (f colour. These laws import, not merely an adju- 
dication of an abstract principle, but the application of a constitu- 
tional rule, by a co-ordinate branch of the government, to a real 
case, and may be likened, on the score of authority, to the judgement 
of a court of law upon a litigated suit : 

Nunquam lex aliud, judex aliud dixit* 

To the strong testimony here adduced, the distinguished author 

of the Commentaries upon American LaWj " has added the weight 

of his enlightened opinion. *' In most of the United Slates, " says 

he, " there is a distinction in respect to political privileges be- 

" tween free white persons and free coloured persons of African 

" blood ; and in no part of the country do the latter, in point of 


C»4 3 

" fact, participate equally with the whites, in the exercise of civil 
" and political rights. The African race are essentially a degraded 
** casiey of inferiour rank and condition in society, To ascribe 
the rights and offices of citizenship to a class thus situated, is with- 
out any example in history, and nothing short, indeed, of an abuse 
of language. This passage clearly indicates the erroiir of the one 
before selected from the same treatise, which assigned by implica- 
tion, a higher rank to the free negro ; and proceeding as it does, 
from an eminent jurist in a free State, where the claims of the col- 
oured race have such numerous, persevering, and able advocates, it 
is unexposed to the suspicion of sectional prejudice, and promises a 
powerful influence in the cause of truth. 

The principle here contended for, is supported by a solemn judi- 
cial decision, in the court of Appeals of Kentucky, in the case of 
Amy, (a woman of colour,) vs. Smith .t It was there resolved, by 
the court, that "Prior to the adoption of the constitution of the 
** United States, each State had a right to make citizens of any pcr- 
*' sons they pleased ; but as the federal constitution does not author- 
*' ize any but white "persons to become citizens of the United States, 
** it furnishes a presumption that none other were then citizens of 
" any State ; which presumption will stand until repelled by posi' 
** iive testimony,'''' Again, says the court, " Roman citizens were 
" the highest class to whom the jus civitatis belonged, and the jus 
" civitatis conferred upon those who were in possession of it^ alt 
rights and privileges, civil f political and religious. When the 
" term came to be applied to the inhabitants of a State it necessarily 
carried with it the same signification^ with reference to the priv- 
*' ileges of the Stale, which had been implied by it, with reference 
"to the privileges of a city: and it is in this sense that the term 
"citizen is believed to be generally, if not universally, understood 
"in the United States." 

" This, indeed, evidently appears to be the sense in tvhich the 
" term is used in the clause of the constitution which is under 
" consideration. For the terms * privileges and immunities ' which 
" are expressive of the objects intended to be secured to the citizens^ 

*a Kent. Com. p. 258— (note.) 
tLittell'8 Rep. p. 326. 

<* of each Stat6 in every other, plainly import, according to the best 
usage of our language, something more than those ordinary rights 
of personal security and property, which, by the courtesy of all 
** civilized nations, are extended to the citizens or subjects of other 
"countries, while they reside among them."— Further : " Free we- 
groes and mulattoes are almost every where considered and trea- 
ted as a degraded race of people, insomuch that under the consii- 
tutio7i of the United States^ they cannot become citizens of the 
" United States^' 

Such is the pointed decision of a «uperiour court in one of the 
oldest members of the confederacy. We are not . aware that its 
authority has ever been over-ruled or questioned by any judicial tri- 
bunal in the United States : it is, therefore, entitled, by that comity 
which prevails between the States, to the credit of establishing the 
law upon the question involved in tlis decision. It must also be 
conceded that the reasoning of the court is predicated upon a forci- 
ble analogy drawn from the Roman laws, and unfolds, in a just spirit, 
the true derivation of the proper attributes of citizenship. 

A case involving the same question more recently occurred in one 
of the inferiour courts of Connecticut. It was an information, filed 
by the Attorney General, against one Prudence Crandall, "for 
"boarding and lodging free coloured persons for the purpose of 
" instruction, not being inhabitants of the State," in alleged viola- 
tion of a State h\\\ The counsel for the accused, contended, that 
the law under wliUth the prosecution had been instituted, was repug- 
nant to the consiiuiiion of the United States, which secured to the 
free coloured inhabitants of all the States, the right of ingress and 
residence in any of them. But the presiding Judge, (Dagget,) 
charged the jury, decidedly, against this position, and chiefly upon 
the authority of the learned commentator quoted above, " To my 
mind" says the judge in his charge, "it would be a perversion of 
"terms and the well known rule of construction to say that slaves, 
" free blacks, or Indians, were citizens, within the meaning of that 
" term, as used in the constitution." The point to be met was still 
comparatively novel, and one of great delicacy in so northern a sec- 
tion of the Union ; yet the charge is pertinent and direct, suited to 

[ 86 ] 

the purity and independence of the judicial office, and stands alone, 
without the bolstering of forced precedents. 

While we bear this testimony to the general merit of this decis- 
ion, we would not be understood as concurring, altogether, in the 
train of argument by which its conclusion is arrived ut. We have 
bsfore endeavoured to shew that the 1st art. of the constitution, upon 
which his honour constructs a portion of his reasoning, has no con- 
nection with the question he was called upon to decide; nor can we 
assent to the opinion that the condition of the Indians furnishes an 
apt iUustration of that of the African race, in the United States. 
With regard to the provision of the constitution, — it aims at no des- 
cription of citizenship, but merely establishes the standard of federal 
representation. And as for the aborigines of the country, — however 
their nomadic habits may unfit them for the local lives of citizens, 
it is by no means clear that they do not belong, legally^ as well as 
physiologically to the white race, or that they labour under any 
incapacity, not growing out of thuir erratick character, to become 
American citir ens. 

The verdict of the jury in Miss Crandall's case was in accordance 
with the opinion of the court ; but on the removal of the cause to 
tlie higli court of errours, the proceedings below were reversed on 
technical grounds, and no other decision was pronounced upon the 
question at issue. 

The reader has been apprized that the views of the court, in the 
case just noticed, have elicited a pungent commentary from the pen 
of Judge Jay, of New-York, in an essay lately published by him, 
on "The character and tendency of the American Colonization 
Society," &;c. We now proceed, with brevity, to redeem our 
promise in relation to the merits of that commentary. This res- 
pectable writer and lawyer is evidently an ardent friend of the anti- 
slavery cause, and whatever deficiency the rigour of criticism may 
detect in the scope of his argument, a liberal philanthropist may 
find fully atoned for in the humanity of his heart. With the mo- 
tives of the writer, pure and elevated as they may have been, we 
have no concern, but only with the soundness of his logick in ex- 
pounding the meaning of the constitution, with reference to the 
question here examined. His reasons drawn from the discussion of 

[ ay ] 

the Articles of Confederation, have already been disposed of ; those 
which he has derived from other sources, yet claim our attention. 

The author of the " Inquiry " assumes, upon the authority of 
the extract from "Kent's Commentaries," (page 20 of this treatise,) 
that free coloured persons are included by the term citizerif in the 
federal constitution. This, we have attempted to shew, is a casual 
errour in that very instructive and enlightened work, and at issue 
with the laws and practice of many of the States. It is a petitio 
principii of the clearest character — without any foundation either 
in the language of the constitution, the distribution and exercise of 
the sovereign power, or the general understanding of the people. 

The Connecticvit Judge is censured, by his reviewer, for doubting 
" that free blacks are styled citizens in the laws of congress or any 
of the States," and it is tauntingly added, *'it would seem thus that 
men with black skins cannot be citizens unless the laws expressly 
declare them to be so." Had the writer been more attentive, we 
will not say to the forms of courtesy but to the origin and continu- 
ous history of the American community, he would have suppressed 
this sneer. From their first introduction into this country, and until 
they spread over the whole continent, the negro race were reduced 
to slavery, by the white population, on account, not of their foreign 
nativity or descent, but of their colour and moral degradation ; and 
as these traits of inferiority were in no degree diminished by their 
state of bondage, nothing short of express legislation could, at the 
establishment of the government, have so effectually vanquished the 
antipathy of the dominant race towards them, as to admit of their 
enjoying the political and civil privileges of the State. Indeed, the 
experience of the nation has proved that legislation itself, seconded 
as it has been by the arm of charity and benevolence, is inadequate 
to raise even the most eminent of the coloured ranks to a footing of 
equality with the whites. It is for the reviewer to explain how it 
happened that these portions of his country's history were either 
overlooked or undervalued in the concoction of his argument. 

The zeal and diligence of the learned critick have not been suc- 
cessful in discovering a solitary law of congress that bestows, in 
distinct affirmative language, the title of pitizen upon a black man. 
The act of 1803, to which he refers, demands, as we have shewn, 

L as ] 

a very different construction; and the inference drawn from the 
phrase "/ree white male citizens,'^ loosely employed by the act of 
1792, for organizing the militia, is forced and inconclusive. It is 
forced because the use of the word male does not imply the posses- 
sion of equal rights and privileges by the female ; nor does the terra 
citizen absolve the alien from the duties enjoined by the law. It is 
also inconclusive, for admitting the phrase to be used partially in a 
critical sense, the free blacks were treated, even at that period, in 
some of the States, as local citizens, and might, therefore, with pro- 
priety, be so exempted by the law, according to the accustomed policy 
of the government, from military service. But the phrase is evident- 
ly a general positive description, without any tacit admission what- 
ever, in favour of the coloured population. 

The writer again affirms, that, " impressed coloured sailors have 
♦* been claimed, by the national government, as citizens of the United 
" States ; and coloured men, going to Europe, have received passports 
" from the department of Slate, certifying that they were citizens 
"of the United States."* This may all be conceded, and grows 
out of the protective duty of the government, towards all who are 
subject to its authority, and bound by no allegiance to a foreign 
power. The term citizen is sufficiently exact, under such circum- 
stances, to indicate the foreign relation of the individual, and ensure 
his personal security ; but the relation which he sustains, to his own 
confederated government, will not admit of that description, unless 
it is sanctioned by the concurrence of the separate State powers. 
This point has been before enlarged upon, at suitable length. 

The general question before us, is unaffected by the peculiar 
polity of any particular State or States. We are fully apprized 
that, in New-York, and some of the other States, the coloured ranks 
are allowed, to a certain extent, the rights and immunities of the 
white community ; but, as long as the States retain their separate 
independence, the constitution or statute book of neither of them, 
can controul the terms of citizenship in the rest ; nor can the title of 
federal citizen be allotted to any resident, from a partial regard to 
the local regulations of the State where he may chance to be domi- 

*Jay'8 Inquiry, p. 43-4* 

C 99 ] 

ciled. The deductions of the author of the »• Inquiry,*' from this 
source are, therefore, foreign to the subject upon which we are 

We take leave of this sensible writer, under a lively conviction 
that his intellectual perceptions have been insensibly warped by the 
predilections of his breast, and that a calm revisal of this part of his 
essay will conduct his mind to an opposite conclusion. 

It has been intimated before, that the true condition of the col- 
oured race receives a farther illustration from the policy that led the 
States, at an early day, to enact laws against the slave traffick ; and 
that policy was shewn, by evidence cited from their colonial history, 
to have been dictated by an awakening sense of national freedom 
and security— prompted by a clear perception of dangers menacing 
the State in an overgrown coloured population^ This conservative 
power of the colonies over the unity and repose of their own citi- 
zens, so essential to their welfare, was frequently called into exer- 
cise by their respective governments, but was almost as frequently 
frustrated by the sordid views of the parent country. After the 
Declaration of Independence, and before the federal exercise of the 
power under the constitution, it was effectually employed by many 
of the States, with the countenance and aid of the general govern- 
ment ; and the domestick bearing which it has more recently assum- 
ed, proves that it cannot, by legitimate construction, be limited, 
to tlie mischiefs, merely, of the foreign trade. In the formation of 
the constitution this power was conferred, concurrently, upon the 
federal government, by the 9th section of the 1st article. To have 
parted with it, entirely, would have been an abdication of the right 
of self-protection on the part of the States, and probably have 
involved the general government in a course of invidious legislation 
for the interiour welfare of some of the States that might have 
engendered jealousy and discord. The power, therefore, was pru- 
dently retained by the States, 21^ well as transferred to the common 
government, and may be put forth, by them, at any emergency, to 
correct an existing or repel a minatory evil. The possession, by 

[40 J 

the States, of this important power of self-defence, is recognized 
both by the laws of the nation and the decisions of its courts : its 
existence, we believe, has never been denied ; and it is only strange 
that any can narrow its sound exercise within the bounds of its 
orignal and proper range, on account, merely, of the changed form 
of the eviL 

The 1st clause of the 9th section of the 1st article of the consti- 
tution, provides, that " the migration or importation of such persons 
** as any of the States, now existing shall think proper to admit, shall 

not be prohibited, by congress, prior to the year 1808 ; but a tax 
" may be imposed on such importation, not exceeding ten dollars for 
*'each person." This clause, it is contended by the advocates of a 
restrictive construction, relates altogether to the foreign slave 
trade-^d.s well the reserved prohibitory State power which it im- 
plies, as the equally distinct federal power which it delegates. 
Whatever may be thought of this opinion, at the present day, there 
cannot be much doubt, that, in the infancy of the government, it 
was maintained by respectable authority ; and its bearing upon the 
question discussed, may be seen in the fact, that, in proportion as 
the design of the clause can be confined to the distant slave traffick, 
are the political claims of the black freemen, in the United States, 
unaffected by its operation. It mtist not, however, be forgotten, 
tliat even should the power confided by the clause, to congress, be 
limited to the foreign traffick, it cannot be construed to abridge the 
pre-existing power of self-protection in the States, which must be 
co-extensive with the sources of the evil. 

The late Judge Addison, in speaking of this provision, says, "it 
"is well known that the prohibition in view, respected only slaves. 
" This was universally understood at the time of the publication of 
" the constitution, during its discussion, and ever since."* If this 
be the just meaning of the passage, it would seem to have been 
introduced, mainly, for the defence of the natural rights of the 
African, with but a secondary reference to the unity and peace of the 
American people : it would shew the power of congress to be ple- 
nary, for the former object, but quite inadequate to the demands of 

*See his " Defence of tlie Alien Act. " 

[ 41 J 

ilie latter. The torrid zone might empty its inhabitants upon our 
shores until they equalled the number of our white population, and 
the authority of the general government, although competent to with- 
hold from them the privilege of naturalization, would yet be una- 
ble to repel their inroad as voluntary emigrants, or prevent their 
eventual accession, through the power of the State institutions, to a 
proportionate share of the political power ! It would seem suffi- 
cient to admit the possibility of such an event to expose the inaccu- 
racy of a construction denying the power to avert it. 

The " Federalist" adopts the same strict view of this passage of 
the constitution, yet notices — with but little deference, it is truej 
the more liberal exposition of which it is susceptible. It is to be 
lamented that this branch of its subject has been honoured with so 
brief a commentary in that standard work.* 

Mr. Martin, in his letter a(klressed to the legislature of Mary- 
land, explanatory of the proceedings of the Federal Convention, 
maintains, in like manner, that the clause was intended to have a 
specifick reference to the slave trade; but, from a delicate regard 
to American ears, its language was so framed as to apply, with equal 
force, to every description of foreigners.! A singular oversight 
this, indeed — one, if we are to judge from the debates, that seems 
to have eluded the discernment of all the members who composed 
that enlightened body. Such, doubtles-s, was the opinion of the 
writer of the letter ; but that the same sentiment pervaded the ma- 
jority of the convention, may well be questioned. That the federal 
government chould have been armed, through inadvertence, with 
authority to prohibit emigration to the country, at a period when all 
felt the importance of its generous encouragement, is a supposition 
involving too bold a censure upon the wisdom and circumspection 
of the men who framed the constitution, to be admitted upon the 
testimony of any one witness, however respectable. It is apparent, 
from the very passage of the letter to which we have referred, that, 
the writer, acute as he was known to be, laboured under some mis- 
conception of the clause in question. He affirms, that it is so 

*" Federalist," no. 42. 
tElliott's Debates, v. 4, p. 35-6. 


[ 4SS J 

l^orded, "as reafly to authorize the general government to impose 
" a duty of ten dollars on every foreigner who comes into s* 

State to become a citizen, whether he comes absolutely free or 
" qualiliedly so, as a servant;" whereas, the language of the provis-^ 
ion expressly confines the duty to the imported class «/one-— exclu- 
sive, probably, even of servants, according to the popular accepta- 
tation of the term. The views of other delegates, upon this pointy 
will not be found to sustain the representative from Maryland. 

This strict construction of the clause is, also, partially favoured 
by the learned author of the *' Commentaries on the Constitution of 
the United States" — a work of eminent authority and great useful- 
ness. After maintaining that the migration and importation of 
slaves, was the sole object of the clause, the writer in a future sec- 
tion admits, that migration seems, appropriately, to apply to vol^ 
untary arrivals, as importation does to involuntary arrivals." 
These positions appear to us, mutually repulsive : we cannot recon- 
cile them, or account for the incoherent use of the word migration 
to denote the transportation of a slave, in any manner consistent 
with the proved sagacity of the author. The commentary indicates- 
the perplexing effect of conflicting authorities upon a subject which 
was not deemed of sufficient value to repay the labour of harmoni- 
zing them. 

This accumulated evidence, receiving its last accession at so re- 
cent a period, and from a source so competent as the work just 
cited, is deserving of high consideration ; and, although it may not 
be demonstrative of the full scope of the clause, it ought to be suffi- 
cient, perhaps, to prove that the slave trade was its principal object. 
But, that the provision was designed to extend to others, as well as- 
African slaves, may be gathered from testimony equally stringent. 
It appears, by the journal of the Federal Convention, that the word 
migration was retained in this clause of the constitution, in oppo- 
sition to an amendment that was offered, omitting it ; some speci- 
fick meaning was, therefore, attached to it. In the language of Mr. 
Rawle, "the section has a commercial, moral, and political mean- 
ing," and should be construed accordingly. The word importation 
is well understood to refer, solely, to the slave trade ; but migra- 
tion cannot, philologically at least, have that application. In its 

[ 4a ] 

loosest acceptation, it imports a vohmtary change of place ; in its 
^■Riore exact sense, the change is confined to different parts of the 
same country. According to this latter sense, it can have no allu- 
sion to foreigners, and in either sense, it is wholly irrelevant to both 
the foreign and domestick t^affick in slaves — inasmuch as their 
change of residence is always compulsory. 

In support of the narrow construction. Judge Addison, insists, 
th'^t migration was used to correspond with the word persons, and 
is descriptive of the slave's passage over land, after his importation, 
or arrival.* Plausible as this explanation may at first appear, it is 
unquestionably at variance with the true meaning of the passage. 
It involves the absurdity of supposing that a power to prohibit the 
sale and consequent transfer of the slaves, might be exercised after 
their importation had been allowed, and the tax paid ; or, that the 
importation of slaves was taxed for the benefit of the publick treas- 
ury, with a punick faith that subjected their proprietor to a heavy 
penalty afterwards, at the option of the government, in the event of 
their migration or removal. — In answer to a charge made in the 
convention of Pennsylvania, that white aliens were liable to the 
duty authorized by this section, it was stated by Mr. Wilson, who 
had been a delegate in the Federal Convention, that the pJmiseology 
of the section was selected with care, and that the migratory class 
were exempt from the pecuniary burden.t This is the authority of 
a discerning and conspicuous party to that instrument of government, 
and shews that the free European, as well as the captured African, 
was designed to be embraced in the form of words adopted by its 
framers. Mr. Iredell, who was also a member of that body from 
North Carolina, replied to an argument on the same point, in the 
convention of his own State, by saying — '* The committee will ob- 
" serve the distinction'^between the words migration, importation. 

The first part of the clause will extend to persons who come into 
" the country as free people, or are brought as slaves ; but the last 
" part extends to slaves only. The wovd migration, refers to free 

persons $ but the word importation, refers to slaves, because free 

people cannot be imported^^X This explanation of the clause 

♦Defence of Alien Act. 

fEUiott's Debates, vol. 3, p. 251. p. 98. 

[ 44 ] 

was received as satisfactory, and the 9th section was passed withoiii 
farther debate. 

To the foregoing may be added the higher testimony, in the esti- 
mation of many, of the resolutions relative to the constitutionality 
of the Alien and Sedition laws, prepared by Mr. Jefferson, and 
adopted by the legislature of Kentucky, in 1798 ; and also, the 
report of Mr. Madison, upon a series, equally loyal in tenour, adopt- 
ed in the same year, by the legislature of Virginia. The 5th reso- 
lution, of the former set, affirms, that the clause under consideration, 
has reference to ivhite aliens and reserved to the several States, 
authority to admit them until the year 1808 ; and, the report men- 
tioned, in its comments upon the fourth resolution of the latter 
series, notices this constitutional argument of the democratick sage, 
in terms of evident commendation. For the sake of brevity, the 
reader is referred to these celebrated documents in the 4th vol. of 
Elliott's Debates. As Mr. Madison has made an ingenious effort to 
vindicate these illustrious acts of patriotism, on the part of two 
kindred States, against the charge of nullification, we should be glad 
to see the acumen that still distinguishes his venerable years, suc- 
cessfully employed in repelling the charge of contrariety between 
the passage here alluded to in his report, and the exposition of the 
same clause, in the " Federalist," which publick opinion has attrib- 
uted to his own pen,* 

The interpretation that has been given, in the present view, to 
this branch of the constitution, by the Supreme court of the United 
States, in the case of Gibbons vs, Ogden, is now the most authori- 
tative — being incorporated with the supreme law of the land.t The 
Chief Justice, in his elaborate opinion in that case, assents to the 
position of the counsel for the appellee, that the section under con- 
sideration, is an exception for a limited period, in favour of the 
States, of the power over commerce., granted to the general govern- 
ment. He maintains, farther, that the word migration^ in its con- 
stitutional sense,, has reference to navigation, as a branch of com- 
merce, and may be viewed as descriptive of *' voluntary arrivals 
whether the transportation be by land or water, or both — and whelh- 

*This was written in the lifetime of that distinguished statesman. 
fWheat. Rep. v. 9, p. 1. 

L4« ] 

the intercourse be with a foreign nation, or only between the 
States, We extract the annexed passage from his opinion : " Mi' 
" gration applies as appropriately to voluntary, as importation does 
«' to involuntary arrivals; and so far as an exception from a power 
** proves its existence, this section proves that the power to regulate 
*' commerce applies equally to the regulation of vessels in trans- 
** porting men who pass from place to place voluntarily, and to those 
"who pass involuntarily." Again: "the sense of the nation, on 
*< this subject, (commerce) is unequivocally manifested by the pro- 
** visions made in laws, for transporting goods by land, between 
*« Baltimore and Providence, between New-York and Philadelphia, 
*< and between Philadelphia and Baltimore." A mind less liable to 
errour, in expounding the meaning of the constitution, was, proba- 
bly, no where to be found, than that of this truly venerable judge ; 
and it is apparent, from his remarks quoted, that the clause to which 
they relate, comprises in its commercial aspect, not merely slaves, 
but aliens generally, and even citizens. This commercial action 
of the clause proceeds, exclusively, from the federal power; because 
the entire control of commerce, in all its branches — saving for the 
limited period excepted in this clause — was invested in congress, 
by a distinct provision of the constitution ; and this control is, prop- 
erly speaking, of a regulative, and not a prohibitive character. 
But the " moral and politicaV^ action of the section noticed by Mr. 
Rawle, and which in a less detjree claimed the attention of the court 
in the above case, has no connection with any other article of the 
constitution — is wholly prohibitive in its nature, and shared by 
the State authorities as a reserved right. And although, under this 
bearing, citizens are removed from its operation by the 2nd section 
of the 4th article of the constitution — persons migrating, {voluntas 
rily, of course, according to the opinion of the Chief Justice,) are, 
nevertheless, reached by it, or else the word migration is virtually 
expunged from the clause. 

That the several States possess a reserved power over the moral 
and political objects of the section, in concurrence with a similar 
power bestowed upon the federal government, may be inferred from 
other parts of the same lucid opinion , but perhaps, with greater 
clearness from the following passage of the opinion of the late Jus- 

[46 3 

tice Johnson, delivered in the same case : ** Although," says he, 
** the leading object of this section, undoubtedly, was the importa- 
** tion of slaves, yet the words are obviously calculated to comprise 
persons of all descriptions f and to recognize in congress, a power 
to prohibit, when the States permit, although it cannot permit 
** when the States prohibit, It may be asked, why was the exer- 
cise of the federal power restrained for twenty years, if any thing 
else was intended by the provision, than a temporary concession to 
the slave holding States ; or if any other class than slaves were to be 
subject to its action ? Plausible as this objection to the extent of 
the power may at first appear, it vanishes when we consider thai 
the restriction imposed, was designed to have reference only to the 
slave trade — to the persons imported ; and that the evils incident to 
the contemplated migrations, were already so completely within 
the unrestrained power of the States, as to be incapable of any - 
increased terrours during the continuance of the check, upon the 
general government. We noticed before, the motives of delicacy 
and discretion that have, probably, hitherto withheld the common 
government from the use of this power which the people have 
left so amply in possession of the several State sovereignties. 

Such being the sound exposition of this section of the constitu- 
tion, the question recurs— who are the migrants against whom its 
moral s.nd political force is to be directed ? We have seen that they 
cannot be citizens, and yet they are in voluntary transit. Are they 
resident aliens of the white race ? Such a supposition would seem 
to be at war, not only with the uniform policy of the States that 
sought to swell the number of their white inhabitants, but also, with 
that exclusive discretionary authority to admit aliens to the rights of 
citizenship, which had been conferred upon congress, by the previ- 
ous section. Still, however, we are told by the constitutional arbi- 
ters of the question, that this very description of persons, are sub- 
ject to the operation of the clause. But to what extent are they 
subject to it? Is not their responsibility confined, entirely, to its 
commercial bearing ? were they not a class whom the States, gen- 
erally, at that early day, eagerly invoked to augment their resour- 
ces and power — whom many of them favoured with the right of 
purchasing, holding, and transmitting property — and who, in very 

C 47 3 

numerous instances, were bound by the strongest ties of blood and 
sympathy, to their own citizens ? Strange indeed then, would it 
appear, that there should be a specifick power delegated in the con-* 
stitution to prohibit the privilege of free locomotion, which they 
had long been enjoying*, to persons so essential to the growth and 
defence of the country, on account of a probable danger, from their 
presence, to the moral order or political freedom of the States ! 

But should it even be supposed, contrary to the fact, that white 
aliens occupied, at the formation of the constitution, a position so 
obnoxious to the State communities as to make it expedient to clothe 
the national government with power to abridge the sphere of their 
movements, — it does not follow, that there were none others of 
whom equal jealousy was entertained, and from whom, if indulged 
with unrestrained license, even more serious evils were to be appre- 
hended. That the coloured population was so viewed, no unpreju- 
diced mind, that is at all familiar with the history of the country, 
can deny. The legislative proceedings of Pennsylvania and Vir- 
ginia, before noticed, afford conclusive evidence of this fact. The 
complaints of these States, it is true, related, by the necessity of 
the case, to slaves-—iox the whole negro race of the colonies was 
then, with few exceptions, held in bondage : but the prospective mis- 
chiefs complained of, sprung, not from the incident of enslavement, 
but from the alienation of feeling inseparable from a diversity of 
colour and caste* Had the servile condition of the blacks occa- 
sioned the grievance, the remedy of manumission was at hand, and 
would, doubtless, have been urged by the opponents of the meas- 
ures, as a triumphant argument, against their adoption. So shallow 
a pretence, had it been employed, would have passed unnoticed, as 
the suggestion of folly, or provoked reproof, as the mockery of 
insolence. The experience of the country since, has painfully pro- 
ved, how just was the cause of the anxiety then felt, on account of 
the increasing numbers of the negro population ; if it has not in an 
equal degree, demonstrated how accidental was its connection with 
the discontents of slavery. 

But what says the constitutional provision itself, upon this point? 
The persons in view, are there described as those whom " any of 
the States shall think proper to admit " — language that has evident 

C 48 ] 

allusion to past manifestations of feeling, on the part of some of 
the States, towards a particular class of people, other than citizens — ^ 
a class, which their future welfare required, should remain liable to 
exclusion from the limits of those States, according to their own 
views of policy. To whom, then, can the plain spirit of the sec- 
tion be so applicable as to the coloured race— bond or free t Their 
disproportionate increase by sudden influx, as a distinct race, unal- 
terably alien in origin, complexion, and character, is the danger to 
be resisted ; and it matters not whence they come, or how free their 
pretensions or birth. They may be the enslaved victims of an in- 
human traffick, from abroad, or the liberated exiles from a sister 
State, at home — conveyed by forcible importation^ or voluntary mi- 
gration ; still they are of an order essentially alien to the white com- 
munity, incapable of being incorporated v/ith it, except by destroy- 
ing its unity, and liable, therefore, to be repulsed by either of the 
States, as hurtful to their prosperity. Any other conclusion would 
leave the welfare of the States in greater insecurity than it was be- 
fore the formation of the Union. 

It is worthy of observation, how accurately this theory accords 
with the policy that has confined the naturalization laws to ivhite 
aliens alone. Had they been extended to the tropical race, they 
would have come into serious conflict with the settled practice and 
laws of several of the States, and created the singular anomaly of 
two distinct classes of black freemen, in the same State — the one oc- 
cupying a degraded rank, and the other advanced to the dignity of 

After all, we cannot refrain from recurring to the common under- 
standing of the country, as an irrefragable argument in support of 
the doctrine here maintained. That understanding cannot be mis- 
taken, and furnishes, upon questions of constitutional law, perhaps, 
the least fallible guide. It may not be inapt, therefore, to conclude 
this head with the lanoruaore of the lamented Marshall, in the case 
last cited, modified to suit the present subject: " All America un- 
" derstands, and has uniformly understood the word citizen, to eX" 

dude the coloured race. It was so understood, and must have 
*' been so understood, when the constitution was formed. The con- 

C 4* J 

" vention must have used the word in that sense, because all have 
" understood it in that sense, and the attempt to extend it comes too 

We are sensible that, in applying the rule of interpretation here 
advocated, difficulties may arise out of the various shades of colour 
that pervade the human family ; but however embarrassing these 
may prove, as they can involve only questions of fact, they should 
have no force in determining the law. The same obstacle may 
have opposed the execution of the law of 1804, for the government 
of the Louisiana Territory, and may be daily presented in the exe- 
cution of the naturalization laws ; but who would assert that these 
laws were therefore, abrogated, or that iheir plain directions should 
be disregarded? With respect to the mass of the coloured pop- 
ulation, in the United States, the application of the rule will be 
easy ; and where the natural mark of inferiority is so faintly im- 
pressed as to leave a decided predominance of the white blood, a 
liberal judge would hardly feel it a duty to repel the application. 
The learned commentator, of New-York, remarks, upon this sub- 
ject, with reference to the naturalization law : "I presume it ex- 
" eludes the inhabitants of Africa and their deceiidants, and it may 
*' become a question, to what extent persons of mixed blood, as mu- 
" lattoes, are excluded, and what shades and degrees of mixture of 
" colour disqualify an alien from application for the benefits of the 
" act of naturalization. Perhaps there might be difficulties, also, as 
*' to the copper-coloured natives of America, or the yellow or tawny 
" race of Asiatics, though I should doubt whether any of them were 
*** white persons,' within the purview of the law." When we 
consider that the tawny and olive coloured tribes are usually classed, 

*The writer has been informed j by a highly respectable acquaintance, 
who was a member of the House of Representatives at the time the inhab- 
itants of Missouri applied for admission into the Union, that Mr. Charles 
Pinkney, in the course of the debate upon that application, avowed himself 
the author of the section of the constitution, which provides, that "the cit- 
izens of each State shall be entitled to all privileges and immunities of 
citizens in the several States and added, " so help me God, I did not 
intend it should embrace the coloured population*" 


by naturalists, in one of the subdivisions of the ivhite race, we can 
hardly refrain from doubting, that this opinion of the chancellor is 
sufficiently liberal for the spirit of the law, which it cautiously pro- 
fesses to interprets 



If the foregoing views be correct, it follows, that every State in 
the Union has the sovereign power of prohibiting the coloured 
inhabitants of the other States from entering and becoming resident 
v/ithin its bounds. In some districts of Pennsylvania, and in other 
of the free States, that class is admitted to some share of polit- 
ical privileges. This, however, is a mere gratuity, and often of but 
transient enjoyment — the suspension of a disability which the con- 
stitution imposes, through the tenderness of those who happen to 
be entrusted, for the time, with its local administration. Extensive 
as this practice may be, it must still be regarded as one rather of 
sectional concern, and entirely at the option of the States in which 
it is tolerated : it never can be supposed to eradicate the defensive 
authority of those States, and to leave them exposed, at all times, to 
the pestilent irruptions of the black refugees from others. The czV- 
izens of any one State cannot avail themselves, at pleasure, of the 
local advantages of any other State, in defiance of its municipal 
rules ; and much less can non-residents of a debased rank arro- 
gate so high a privilege. 

But let us briefly consider what is the true political rank, under 
the constitution, of the free blacks, in Pennsylvania? — as it is chief- 
ly to advance the interests of this, his native State, that the writer 
has entered upon the present inquiry. This is a subject that has 
already produced some speculation, and upon which it is known, 

C fiS ] 

there are different opinions entertained by intelligent men — a fact 
that has occasioned us some surprise, as the data upon which our 
judgement is to be formed upon the question, are singularly ample 
and demonstrative. 

On account of the smallness of their numbers, during the propri- 
etary government, there are but few references to the free coloured 
inhabitants of the Province, in any of its early legislation. From 
these, perhaps, nothing can be gathered that is decisive of their 
claims to membership in the body politick. It was not until after 
the revolution, when, by their increase, they had acquired some 
importance in the State, that they came to be the subject of speci- 
fick legislative notice. But, from that era, whether we form our 
opinion upon the general sentiment of the community or the mani- 
fest spirit of its laws, it will be difficult to avoid the belief that they 
have no just claim to the rank of citizens. 

The law of 1712, before alluded to, may not be unworthy of 
passing attention, in this connection also. It was enacted, as we 
are informed by the preamble, to prevent the dangers incident to a 
large negro population, and under the auspices of rulers whose 
minds were strongly imbued with the doctrine of equal rights among 
all the tribes of mankind. It must be acknowledged that the provis- 
ions of this statute as clearly indicate a disposition, on the part of 
the whites, to preserve themselves a distinct and separate common- 
wealth, as the penalty which they inflict upon the hapless African 
illustrates the mildness and humanity of the provincial government.* 

The frame of government digested for the province by Penn, 
conferred the electoral privilege—which is commonly esteemed the 
highest evidence of genuine political freedom — upon the resident 
freemen; and the laws accompanying the charter to the proprietary 
ascribed that character to every inhabitant who pays scot and lot,^^ 
and every person who hath been a servant or bondsman, and is 
free by his service,''^ There being, probably, none of the African 

*The black intruder was liable to be sold, under this law— a rigour for 
which there is some apology in the formidable state of the slave trade, 
at that time, and the heartless thirst for gain, in the parent country, that 
hazarded the very existence of her colonies, by the prosecution of tliat 
detestable traflck. 

race in the province, at that early day, who were not in slavery^ 
they could not be considered as falling within the description of 
these laws ; and, indeed, had there been a manumitted class, the 
language employed evidently contemplates a freedom acquired by 
the expiration of a contract for a limited service. This construc- 
tion is plainly just, but receives corroboration, as well from the 29th 
section, following, in relation to servants, as from the entire omission 
of the code, notwithstanding the solicitude of its authors to provide 
for all classes, to notice the wants of the enslaved race. 

That the coloured man is clothed with the political rights and 
privileges of the white man, is an opinion, which, as far as we are 
informed, at no period generally prevailed in Pennsylvania, On 
the contrary, he has always been viewed as a quasi freeman, only— • 
deriving his imperfect freedom from the will of the white commu- 
nity, and enjoying it under their government rather by toleration 
than right. His occupation is usually menial ; his social and civil 
grade below that of the meanest white man ; and, by the stern law of 
common consent, he is absolutely ineligible to the pettiest office — an 
incapacity utterly at variance with the rights of citizenship, under a 
republick, where stations of profit and trust are, politically speak- 
ing, accessible to the. whole body of citizens. 

The new system of government that was adopted by the people 
of the State, in the year of the Declaration of Independence, 
breathes the same spirit. It was formed by a convention in which 
the coloured class had no representation, either as electors or as a 
numerical portion of the constituent body. The first chapter pro- 
vides, " That all elections ought to be /ree, and that all freemen, 
*' having a sufficient evident common interest with, and attachment 
" to the community, have a right to elect officers, or be elected into 
** office:"* and the 16th section of 2d chapter, that ^^every freeman 
** of full age, who has resided in the State two years, and paid pub- 
*'lick taxes, shall enjoy the right of an elector. To ascertain 
the extent of the application of the word freeman, in this latter 
passage, it must obviously be taken in connection with the qualify- 
ing language used in the previous one ; and it would follow, that no 

♦Conventions of Peansylvanw. p. 56. 

person could be considered as coming under that denomination who 
had not the common interest and attachment there required. The 
coloured ranks, being almost universally in a state of slavery, can- 
not, with any reason or fairness, be pronounced within the purview 
of this clause ; nor even supposing them to have been free, were 
their characters at all answerable to the description here furnished. 
Were they not then, and are they not still, a disinterested and dis- 
affected class ? How could he be supposed to feel a common interest 
with a society whose interests he is doomed to subserve as an infe- 
riour? and where was the ground of his attachment to the govern- 
ment, when the reward which it was destined to meet, was social 
and civil degradation, and exclusion from all share in the honours, 
the offices, and profits of the State ? Tlie only patriotism to be 
relied upon, boasts, not merely of the impartial protection of the 
government, but of an equal share in the administration of its pow- 
ers, and never can be supposed to animate the bosom cf a depressed 
class, suffering under legal restrictions, and deprived of a voice in 
the councils of legislation. 

The laws that were passed soon after the adoption cf the new 
frame of government, for the purpose of establishing its authority 
over the people, have, also, a manifest reference to the alienated 
condition of the coloured population. The inhabitants of the pro- 
vince having just been released from subjection to the British crown, 
it was judged expedient to require some legal test of their fidelity 
to the independent government. For this purpose laws were enact- 
ed in several successive years,* requiring the inhabitants to take an 
oath of allegiance to the government ; but these laws were express- 
ly confined to the "male ivhite inhabitants." Now, we would ask 
any candid mind, to account for this exemption of the coloured race 
upon any principle consistent with their rights as free citizens. 
Unless it be preposterously assumed as a testimony of their supe- 
riour loyalty to a government which they had no agency in con- 
structing and M'cre to enjoy none in administering, it can only be 
received as conclusive evidence of their political disfranchisement. 
These laws were afterwards repealed by the act of 1789, for abol- 

n777, 1778, 1779. See Dall's Edition of Laws. 

L 55 J 

ishing tests, and of course in no wise affected the condition of tW 
coloured race, who were expressly absolved from their operation. 

The act of 1780, that put an end to the institution of slavery in 
the commonwealth, confers some privileges, also, upon the black 
freeman. When accused of crime he is allowed, by it, the advan- 
tage of the same rules of trial that are applicable to the white man. 
But here the favour ceases ; his civil and political incapacities, so 
familiar in practice, and in part, so distinctly recognized by subse- 
quent legislation, were permitted to remain unaltered — discrimina- 
ting his rank by a line broad and deep, from that of the white 

It was after these solemn and repeated declarations of the sover- 
eign will of the commonwealth, respecting the political grade of its 
coloured inhabitants, that the present constitution of Pennsylvania 
was formed. After the manner of the federal constitution, it fur- 
nishes us no definition of the words citizen and freemen, employed 
in it, but leaves them to be understood according to their established 
acceptation. That acceptation, we have briefly endeavoured to 
shew, has exclusive reference to white residents. It need hardly be 
averred, that the black class had no representative of their own colour 
in the convention that formed the State constitution, and although, 
like unnaturalized foreigners, they may be included by the language 
of that instrument in the constituent body, we may look in vain into 
it for a provision advancing them to the rights and immunities of cit- 

If there is anv remainino; legal evidence that can add to the force 
of these views, it is the construction given to the constitution by 
the legislature, on the subject of the militia system. The constitu- 
tion provides, by the 11th section of the 6th article, that the free- 
''men of this commonwealth shall be armed and disciplined for its 
** defence.'' The section is imperative and without any discrimina- 
tion of classes or colour ; yet the legislature in executing its com- 
mand, has passed laws restricting the duty of a soldier to " white 
male persons." Here we have another legal exemption of the col- 
oured race, from an onerous duty required of the white population. 
Why this partiality in favour of a hardy and robust people ? Why 
this unequal apportionment of the burdens of the State, in violation 

[ «6 ] 

of the express injunction of the constitution, if the term freemen^ 
ill the section cited, comprises the coloured inhabitants ? It is rare, 
indeed, that evidence so forcible and pointed is brought to bear upon 
questions of constitutional law, and when it is honestly weighed in 
connection with the numerous dist^ualifications to which the free 
black is known to be subject in practice, we cannot, under a due 
sense of responsibility, withhold from it our conviction. 

In the outset of this part, we alluded to a prevalent custom in 
some sections of the State, of admitting coloured freemen to the 
elective franchise. To fault the generosity of this custom, forms 
no part of our present object ; but we hesitate not to pronounce it 
destitute of all legal foundation. The qualifications that entitle to 
that valuable property of the citizen, the black is not only unpos- 
sessed of, but without the capacity to attain. Enjoying the protec- 
tion of the government and laws, over both his person and property, 
the common tribute of the resident and his property may be exacted 
in return, without affecting his political grade. A law, higher than 
human, connected, under a permissive Providence with fortuitous 
causes, infringing the natural rights of his race, has, under the exist- 
ing government of the State, effectually, if not permanently, debarr- 
ed him from the rank and privileges of a constitutional citizen. 

The provisions of a law that would afford an adequate safeguard 
to the State, against the incursions of the coloured outcasts from 
other States, we venture not to prescribe. The subject will, doubt- 
less, demand much deliberation, as the end in view, is one both of 
difficult and painful accomplishment. Effective measures may, 
probably, require an infusion of rigour ; but little short of that 
which the policy of the South has deemed necessary, to drive 
the unhappy exiles from their native land. In addition to the penal 
laws, already in force in some of the Southern States, against the 
free negroes, projects are constantly springing up, in others, for 
expeUing them from their limits. Let Pennsylvania then, be watch* 
ful of the dark cloud that threatens to obscure her brightness. Let 
her stand upon the defensive against these insidious attacks upon her 
welfare, and by speedy and energetick action, secure the benefits of 
her rising greatness for the enjoyment of her own citizens, unshar- 
ed by an alien, servile and worn-out population of other latitudes. 

t i5t ] 

^he writer wishes it to be borne in mind, th^it in expressing the 
iforegoing views*, he had no predilections to gratify — no favourite 
theory to sustain, or project to further, separate from the general 
welfare of the American community. His inquiries have been gui- 
ded, solely, by an earnest regard to truth ; and the conclusion to 
of which they have led, has been adopted more with feelings of 
reluctance than cordiality. The situation of the coloured race in 
the United States is deeply unfortunate, and addresses a thrilling ap- 
peal to the sympathies and kindness of their superiours in fortune, 
holding them in difterent degrees of subjection. But that situation, 
deplorable : as it is^ must, We are persuaded, ever continue to be, 
under the present government of these States, one of civil and polit. 
ical inferiority. Should the competent expounders of the laws 
chance to decide that the free negro is entitled to the privileges of 
citizenship, cui bono the decision ? the law of popular sentiment — 
always transcendant in a republick — would speedily reverse it in 
practice. The distinction of the two races is a natural one, con- 
verted by accidental causes to the prejudice of the black: artificial 
rules may disaffirm, but they can never obliterate it. We consider 
of no account supposed physical and moral differences that unfold 
themselves only to the vision of a sectional philosophy ; but the 
colour of the African, although not debasing in itself, has become^ 
by circumstances, irremediable at this day, here, a badge of servitude, 
and must forever, we believe, prevent any general amalgamation of 
the races. Tkis is, indeed, a very important subject, wholly dis- 
tinct from the one examined in the preceding pages, and not likely 
to be ever settled by abstract discussion. It pervades the cherished 
affections of the breast — entwines itself with our habits of life and 
education,— and, by the very force of its moral impression, irresista- 
bly sways the judgement. Indeed We cannot reason upon it : no 
sooner is it broached than/eeZing, consecrated and quickened by the 
tenderest relations, usurps the power of decision and retains it indig- 
nant and unmoved. 

So revolting is the idea of merging the distinction between the 

white and coloured population, in a social union, that even the 

ardent abolitionist deprecates it ; yet the propriety of emancipating 

^.he slaves, and admitting them, when free, to political and civil 


[38 ] 

rights, is earnestly insisted on.* We have no feeling towards the col- 
oured class that is not blended with a lively sense of humanity and 
justice ; but we have a strong conviction that if the constitution 
could be so amended as to admit of their advancement to the rights 
and jprivilegcs of the white community, the favour would, in due 
time, be followed by as close an intimacy between the two classes, 
as wealth, good morals, and education now produce between the 
different circles of society. We have already examples, sufficiently 
numerous, of low bred profligates forcing alliances with females who 
are the pride and ornament of the communities in which they move: 
These are among the evils incident to the structure of the best reg- 
ulated social state. Still, however, the affianced parties are of the 
saine race and colour, and their personal dishonour may be forgotten 
in the merit of their descendants. But when an union of the two 
races results from the limited intercourse already permitted between 
them by the custom of society, and the mark of disgrace becomes 
transmissible, what do we find in the walk or character of its inno- 
cent bearer to sooth the sorrow which the event occasioned, or represent 
the birth and standing of those whom the misfortune has overtaken ? 
We regret to see such repulsive notions of equality espoused by 
discerning minds in this country. They may well be fitted to effect 
the purposes of foreign incendiaries, whose aim is to unsettle the 
principles of our social order ; or to reign in the meridian of Hayti, 
where they are habitually realized among a mixed and licentious 
population ; but they have nothing germane to the habitudes of the 
American people, cither in thought, feeling, or action, and we trust, 
never can obtain a permanent foot-hold upon their soil. Judging 
from the present state of opinion upon this subject in the country, 
there is but little ground for reasonable anxiety. It is not probable 
that the requisite number of States will ever concur in an amend- 
ment of the constitution that threatens the nation with such odious 
consequences ; and such of the individual States as may choose to 
encounter the evil from motives of humanity or policy, will be apt 
to furnish an example sufficiently monitory to deter the remainder 
from its imitation. 

♦Jay's Inquiry, p. 148, 

C«» J 

But, it may be asked, is there no kind or generous provision to be 
made for the emancipated black? Without feeling obliged to. an- 
swer a question that has so frequently shaken the land, we have no 
disposition to evade it. The African belongs to a tribe of people that 
have sustained the most grievous injury at our hands, and their case 
demands, therefore, every practicable reparation. But the indemnity 
required, we do not believe, can either be bestowed or enjoyed under 
the government of the United States. We would point this unfor- 
tunate race to the encouraging examples of the oppressed in other 
lands, who sought and obtained upon a foreign shore, the freedom 
and comforts that were denied them in the country of their birth. 
The exodus of the Israelites, from Egyptian bondage, was conduc" 
ted under Divine auspices, and secured to them a free and prosper- 
ous government — abounding in resources and power. The appall- 
ing obstacles that opposed their progress, are familiar ; but the noble 
cnterprize overcame them all, and has handed down an instruc- 
tive lesson to future ages, for the benefit of the injured and 
abused subject. So the gallant adventurers, who, apparently 
under the same unerring guidance, fled to these shores, and landed 
at Plymouth and Powhatan, were refugees from oppression in the 
home of their nativity, and sailed in quest of a region where they 
might erect the standard of freedom, and exult in the blessings of 
self-government. The perils and hardships to which they were 
doomed, forms the brightest page in the history of their adopted 
country, and addresses another powerful exhortation to all who are 
suffering under the yoke of a consolidated tyranny, in any form — 
who are capable of setting a just value upon liberty, and willing to 
make the efforts necessary to its achievement. 

Considering the alluring offers of a free government and a smiling 
home in the Liberian Settlement, that are made to the coloured free- 
man of the United States, it appears not a little strange that they 
should be spurned by him. The fact either evinces a want of the 
requisite moral courage to govern himself— a pitiable incredulity— 
or a natural proneness to the grovelling servile relation which he 
here occupies. He is tempted there by all the high privileges of 
political and civil freedom, from a land of servitude and jealousy ; 
he is enticed by a fee simple estate in a tract of land of inexhausti- 


[ 60 ] 

ble fertility, capable of being enlarged and iinproved by the acquisi- 
tion of his industry ; he is invited by all the moral associations 
connected with the climate and country of his ancestors ; by the 
lucrative pursuits of commerce and the arts, and by every prospect 
that can ensure stability and happiness to a contented and flourishing 
community. When we contrast these powerful attractions with the 
hazards and sufferings that frowned upon, but not to dishearten, 
other colonists, and especially those who planted themselves upon 
the howling and inhospitable soil of America, we cannot but look 
upon the " homeless Lybian" as the victim of unfortunate delusion, 
or as destitute of every manly aspiration that adorns and dignifies 

Regarding, as we do, the provision held forth by the Colonization 
Society, and its auxiliaries, as the only safe and practicable relief for 
the African race in this country, it seems to us important in a high 
degree, to the interests of both the white and coloured communities, 
that the latter should be duly impressed with the advantages thus 
held out to their choice. Let this be effected, and with it, let an 
adequate proportion of the publick revenue be applied in aid of 
these laudable institutions, and the manumitted slave will be no lon- 
ger an outcast and stranger in the land of his nurture, but the proud 
and happy possessor of an independent and comfortable home.* 

"^We have read the Essay on Slavery, by professor Dew, with that satis- 
faction which a performance so elaborate, so ingenious, and yet so candid, 
cannot fail to produce. He has endeavoured to shew, by arithmetical cal- 
culation, that the colonization scheme can never sensibly diminish the col- 
oured population of the country, on account of the immense expense that 
must he incurred in the purchase and deportation of the slaves, ana the stim- 
ulus that would be afforded to the domestick traffics, in them, by this new out- 
let. The learned writer is, probably, mistaken in both these particulars. 
For, with regard to the expense supposed, in the great majority of instan- 
ces, the colonists have been emancipated gratuitously j and we believe, con- 
tliiue so to be, greatly beyond the means of transportation at the command 
of the societies. And as to the fresh domestick supplies, which it is imagin- 
ed would follow this foreign drain, they cannot, by the laws of trade, be 
attendant on a system of manumission, without reward ; and if they were, 
the co-operation of the States, or the power of the general government., 
could restrict the internal commerce, in slaves, to the necessary extent, ov 
even prohibit it altogether.