the franchise, until it was taken from free men of color a few years since, by our amended Constitution.
Continuing his review of the Chief Justice
's assumptions, Judge Curtis
It has been often asserted that the Constitution was made exclusively by and for the white race.
It has already been shown that, in five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established.
If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race.
And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its open declaration, that it was ordained and established by the people of the United States, for themselves and their posterity.
And, as free colored persons were then citizens of at least five States, and so, in every sense, part of the people of the United States, they were among those for whom and whose posterity the Constitution was ordained and established.
is not content with refuting the logic of the Chief Justice
He seizes the weapons of his antagonist and turns them against him with decided effect.
Witness the following:
I do not deem it necessary to review at length the legislation of Congress having more or less bearing upon the citizenship of colored persons.
It does not seem to me to have any considerable tendency to prove that it has been considered by the legislative department of the Government that no such persons are citizens of the United States.
Undoubtedly, they have been debarred from the exercise of particular rights or privileges extended to white persons, but, I believe, always in terms which, by implication, admit that they may be citizens.
Thus, the act of May 17, 1792, for the organization of the militia, directs the enrollment of every “ free, able-bodied, white male citizen.”
An assumption that none but white persons are citizens, would be as inconsistent with the just import of this language, as that all citizens are able-bodied, or males.
So the act of February 28, 1803 (2 Stat.
at Large, 205), to prevent the importation of certain persons into States, when, by the laws thereof, their admission is prohibited, in its first section forbids all masters of vessels to import or bring “ any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States,” etc., etc.
The acts of March 3, 1813, § 1 (2 Stat.
at Large, 809), and March 1, 1817, § 3 (3 Stat.
at Large, 351), concerning seamen, certainly imply that there may be persons of color, natives of the United States, who are not citizens of the United States.
This implication is undoubtedly in accordance with the fact.
For not only slaves, but free persons of color, born in some of the States, are not citizens.
But there is nothing in these laws inconsistent with the citizenship of persons of color in others of the States, nor with their being citizens of the United States.
Whether much or little weight should be attached to the particular phraseology of these and other laws, which were not passed with any direct reference to the subject, I consider their tendency to be, as already indicated, to show that, in the apprehension of their framers, color was not a necessary qualification for citizenship.
It would be strange, if laws were found on our statute-book to that effect, when, by solemn treaties, large bodies of Mexican and North American Indians, as well as free colored persons of Louisiana, have been admitted to citizenship of the United States.
cites with effect the action of Congress in 1821 on the admission of Missouri
, whereby that State was constrained to abandon and repudiate her attempt to prohibit the settlement of free negroes and mulattoes within her borders ;1
whereof he says:
It is true, that neither this legislative declaration, nor anything in the Constitution or laws of Missouri, could confer or take away any privilege or immunity granted by the Constitution.
But it is also true that it expresses the then conviction of the legislative power of the United States, that free negroes, as citizens of some of the States, might be entitled to the privileges and immunities of citizens in all the States.
He sums up his conclusions as to