zens and the yellow and black citizens. He would endeavor to show the gentleman's arguments were incorrect. In this examination he would pass by all those States which held slaves. It was known, and would be admitted, that each of them had, either in their laws or constitution, deprived free negroes and mulattoes of all the political rights of citizens; such as denying them the right to vote at elections; or depriving them of the liberty to give evidence against a white person; forbidding them to bear arms; and several of these States have compelled them to depart, and forbidden them to return. For this we have been often reproached. To proceed with the course he had laid out to himself, he would begin with New Hampshire. New Hampshire had said in her constitution "that all men are born equally free and independ'ent. Have certain natural, essential, and inher'ent rights-among which are the enjoying and 'defending life and liberty," &c. In the year 1808 she passed a law to regulate her militia, in which it is, amongst other things, enacted "that each and every free able-bodied 'white male citizen of this State, resident therein, 'who is, or shall be of the age of sixteen years, and under the age of forty, &c., shall be enrolled." If the white man and the black man are born equally free and independent, and have the same natural rights, &c., among which are the enjoying and defending his life and liberty, how is the colored man to defend his life if he is prevented from the means given to the white man? This absurdity is so palpable that no man will attempt to reconcile it. No other conclusion can result, but that New Hampshire too, has yielded her assent, that free negroes and mulattoes are not citizens; but that these governments are constituted of white citizens only. A man deprived of his arms, or deprived of the means of using them as his fellowcitizens do, is deprived at least of half his defence. Republican New Hampshire would never do that. He would next examine the laws and constitution of Vermont. Although this was one of the new States, on account of her local situation and political habits, he had classed her with the States in her neighborhood. เ Vermont, also, had said, in the first article of her constitution," that all men are born equally 'free and independent, and have certain natural, inherent, and inalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety." She passed a law on the 10th of March, 1797, to regulate the militia. In which it is also enacted, (1) "that every free able-bodied white male citizen above the age of eighteen, and under fortyfive, &c., shall be enrolled," &c. The defending life and protecting property, by the appointment of Heaven, must depend upon our physical powers. And will the State of Vermont, which knows so well the benefit of arms, strip, by law, a portion of her citizens of this essential means of defending life and protecting prop (1) See Laws of Vermont, 2 vol., page 122. DECEMBER, 1820. erty? This, like the case of New Hampshire, proves that they have free negroes and mulattoes in Vermont, but have no black or yellow fellowcitizens there. Vermont, as far as the decision of one State could go, had decided the political right which each State possesses, of expelling, by law, the citizens of any other State, if any should be rash enough to attempt to go there to reside. The 19th article of her constitution, which was ratified on the 9th of July, 1793, is in the following words: "That all people have a natural and inherent right to emigrate from one State to another that will receive them." In pursuance of this authority, in their own constitution, Vermont, on the 6th November, 1801, passed a law to exclude, not only free negroes and mulattoes, but the citizens of every description, male and female, of the other States. It says, (1) "The selectmen shall have power to remove from the State any persons who come there to reside. And any person removed, and returning without permission of the selectmen, shall be whipped not exceeding ten stripes." He could not conceive how Vermont could possibly say, that the constitution of Missouri was repugnant to the Constitution of the United States, because it forbids a residence to free negroes and mulattoes, when its own laws and constitution forbid a residence to the most respectable citizens of all the other States. Unless they considered the whipping to be a saving clause, which might distinguish it from the Missouri case. However desirable a country Vermont may be, Mr. S. said, he believed there would be but few, either black or white, who would become citizens, until there should be some other mode of naturalizing than at the whipping post. Mr. S. said, the more he examined the subject the better he was satisfied that the great and respectable State of Pennsylvania, however mistaken he might think her policy, for indiscriminate emancipation, had had more benevolent views than any other State in the Union. They had examined it more than any other, and knew the rights of free negroes and mulattoes better, and defended them with more zeal. For the purpose of showing what was the opinion entertained in her Legislature, at its last session, of the right of States to prohibit the migration of free negroes and mulattoes, he would read from the journals of that body, which he then held, a resolution, offered by two of its well-informed and respectable members. (2) "A motion was made by Mr. Kerlin and 'Mr. G. Robinson, and read as follows, viz: "Resolved, That the Committee on the Judiciary system be instructed to inquire into the expediency of prohibiting the migration or importation of free negroes and mulattoes into this 'Commonwealth." This resolution was not acted on, but it shows the opinion of Pennsylvania, itself, upon the right which Missouri claims. And this resolution, it is (1) Laws of Vermont, 1 vol., page 400. (2) See Journal, page 341. 6 6 observed, was presented on or about the 20th of January, 1820, at the very moment that Legislature passed an unanimous resolution for instructing their Senators, in Congress, to oppose the admission of Missouri into the Union, unless under the restriction of prohibiting slavery, when their minds were alive to the subject. SENATE. should understand the laws and constitutions of our neighboring States. Until this question was agitated he had been led to believe that slaves, as well as free negroes and mulattoes, in the Northern States, were as unrestrained as their masters. He now had the consolation to know that the laws of South Carolina, at least, were more mild on this subject than the laws of Rhode Island. Gentlemen might say these laws were repealed for aught he knew; if they were he knew nothing about it. He had not yet heard they were repealed; he had found their statute books, which contain these laws, in the law library attached to the Senate Chamber. He supposed some of them may be growing obsolete since they sold the greater part of their slaves to the people of the Southern States. He said he would now examine the laws of Rhode Island, for she had no constitution, upon the subject of negroes and mulattoes generally. By one of their statute laws it is said, (1) "The town 'council shall, if any free negro or mulatto shall keep a disorderly house, or entertain any person or persons at unseasonable hours, break up his 'house and bind him out to service for two years." If all were citizens, why not bind out a white brother citizen as well as a black or yellow one? The nature of the offence was certainly the same, and, it is reasonable to conclude, ought to be pun-spectable State of Massachusetts would afford us ished in the same way. By another clause of the in illustrating this subject; and would first advert same statute, it is enacted, to her constitution. In the first section of the first article are to be found the following words: He would now examine the evidence the re "All men are born free and equal, and have certain natural, essential, and inalienable rights; among which may be reckoned the right of en (2) "That no white person, Indian, or mulatto, or negro, keeping house in any town, shall enter'tain any Indian, mulatto, or negro servant or 'slave; if he does, to be punished by fine," &c. Another clause of the same statute says, in treat-joying and defending their lives and liberties; ing of Indian, negro, and mulatto, servants or slaves: (3) "That none should be absent at night, after nine o'clock. If found out, to be taken up and committed to jail till morning, and then appear 'before a justice of the peace, who is ordered and 'directed to cause such servant or slave to be pub'licly whipped, by the constable, ten stripes." In the same statute book is a law of a more rigid character. It is in these words: (4) "That whosoever is suspected of trading with a servant or slave, and shall refuse to purge 'himself by oath, shall be adjudged guilty, and sentence shall be given against him." that of acquiring, possessing, and protecting prop'erty; in fine, that of seeking their safety and happiness." which appears to have been revised in 1798, and again in 1802, it is expressly enacted This declaration of rights comprehends all that a citizen could ask for, but no more than he is entitled to. And it gives to every citizen the same rights. Who will deny the right of every man, according to this constitution, to remain within the State, if he is a citizen, as long as he pleases? Who will say that marriage, to whomsoever the citizen shall think proper, if each party is agreed, is not a right of the highest importance? To grant this right to one citizen, and take it from another, would be giving to one and taking from the other Our Northern friends had taken great liberties the means of his happiness, which the constitution with the Southern people concerning the rigid secures to him so emphatically. By a law of Masmanner of treating their slaves. But this is a re-sachusetts, passed the 6th of March, 1788, and finement upon any thing of that sort to be found in the statute books of the Southern States. You can find no law for selling or binding out a free negro or mulatto, for entertaining his friends at what the town council might think an unseasonable hour. But to judge a man guilty and sentence him, if you suspect him, unless he will purge himself upon oath, is a stretch of political power, not known in any of the United States but Rhode Island. It was a species of despotism. This, however, must be added to the catalogue of evidence, which irresistibly shows that Rhode Island, as well as the other States, never intended to put free negroes and mulattoes upon the footing of citizens. Otherwise the laws would not sell the man of color for what the white man may commit without notice. Mr. S. said, this discussion would be useful in one respect, if injurious in another. We 6 "That no person, being an African or negro, other than a subject of the Emperor of Morocco, or a citizen of the United States, to be evidenced by a certificate, &c., shall tarry within this Commonwealth for a longer time than two months; if he does, the justices have power to order such person to depart, &c.; and if such person shall not depart within ten days, &c., such person shall 'be committed to the prison or house of correction. 'And for this offence, &c., he shall be whipped, &c., and ordered again to depart in ten days; and if he does not, the same process and punish'ment to be inflicted, and so toties quoties." This toties quoties, we all understand to mean that he shall be whipped as often as he returns. Many, or at least some of the States, have passed laws to regulate the solemnization of marriage, which they have a right to do. Massachusetts, on the 15th of June, 1795, passed a law for the orderly solemnization of marriages, &c., from which the following is an extract: (1) "That no person by this act authorized to marry, shall join in marriage any white person ' with any negro, Indian, or mulatto, on penalty of 'the sum of fifty pounds, two-third parts thereof 'to the use of the county wherein such offence 'shall be committed, and the residue to the prose'cutor, to be recovered by the treasurer of the county, &c., and the said marriage shall be null ' and void," &c. DECEMBER, 1820. of Connecticut and their constitution are Republican. But how can the constitution be Republican, if their free negroes and mulattoes are citizens, and not entitled to all the privileges and immunities of citizens in the several States? All men cannot be equal in rights, and be deprived of all these rights, or any of them, and still be called equal, without a gross violation of the rights it declares to be sacred. Such absurdities cannot be ascribed to the wise men of Connecticut, who so recently formed this constitution. And they must be ascribed to them, if the free negroes and mulattoes are citizens, and deprived of the elective franchise. We have been taught to consider it the highest privilege of a freeman. Some extracts from the laws of that cautious and prudent people will throw much light on the question of State sovereignty, and the powers of a State to prohibit the ingress of persons from other States. By a law of the State, published in 1792, and which was since the adoption of the Constitution of the United States, they have carried their powers much further than those assumed by Missouri for excluding the free negroes and mulattoes. He would read the extracts, which he had taken from their statute books. The first was in these words: Massachusetts emancipated her slaves, what she had not sold off, at a pretty early period after the Revolutionary war. Those alluded to must be free negroes and mulattoes. Massachusetts we all know to be a Republican State, and to have a Republican form of government. She had been called the cradle in which the Revolution had been rocked. Her early achievements in that Revolution had been conspicuous. The battles of Bunker Hill and Concord would be spoken of by posterity with delight. She had been famed for her men of eloquence, and he had the pleasure to say, without flattery or irony, that he believed justly. She had the most numerous legislative body of any State in the Union-her number of representatives was about six hundred. Amidst such a multitude of council, is it possible for one member to believe, for a moment, that such a law (1) "That when an inhabitant of any of the could have passed, to prohibit a citizen to marry United States (this State excepted) shall come whomsoever he could gain the affections of? Or to reside in any town in this State, the civil auis there a man in Massachusetts who will say that thority, or major part of them are authorized, marriage is not an essential happiness? If it is upon the application of the selectmen, if they not secured to every citizen, where is their decla-judge proper, by warrant under their hands, diration of rights? We must look for the reason of rected to either of the constables of said town, to this law, as in all the other States, in the univer-order said persons to be conveyed to the State sal assent to the degraded condition of that class of people, and from which none of the States would, perhaps, ever think it expedient to raise them. From the ranting of some enthusiasts, and (2) "The selectmen of the town are authorthe jeerings of some politicians, Mr. S. said, he had ized to warn any person, not an inhabitant of been led to believe there were no mulattoes in the this State, to depart such town, and the person so New England States. But looking into their warned, if he does not depart, shall forfeit and statute books, he found they were numerous; so pay to the treasurer of such town one dollar and much so, as to become the subjects of legislative sixty-seven cents per week. If such person recontrol, and that a long time ago. It appears 'fuses to depart, or pay his fine, such person shall they were breeding them as far back as 1788, and 'be whipped on the naked body, not exceeding ten he did not know how much earlier, but he sup-stripes, unless such person departs in ten days." posed as long ago as when they began to import the Africans into Portsmouth, in the State of New Hampshire. As the laws and constitution of Connecticut would give some aid in illustrating this question, he would refer to them. In the first section of the first article of that constitution are the following words: "That all men, when they form a social com'pact, are equal in rights." In the second section of the sixth article of that constitution it is said: "Every white male citizen ' of the United States, &c., shall be an elector." This constitution was formed on the 15th of September, 1818. The good people of that State called the convention which formed that constitution, for the express purpose of making it Republican. Nor will any one doubt but that the citizens (1) Laws of Massachusetts, vol 1, pp. 323-4. 6 from whence he or she came," &c. Another part of the same law, in further execution of the foregoing principle, says: "If any such person returns, after warning, he is to be whipped again, and sent away again, and 'as often as there is occasion." No argument can be drawn from the facts that Missouri makes Constitutional provisions to deprive a citizen of his right of residence, and that of Connecticut is only by law. There is no man of sense and honesty, too, who will venture to say a State may prohibit by a law those whom the Constitution protects. It would be nugatory to protect a right by the Constitution, if you can destroy it by law. The constitution of a State is paramount to all other of its laws. Then, if Connecticut can prohibit the citizens of other States from remaining or residing in that State, by a law, they will certainly permit Missouri to exclude free negroes and mulattoes by their constitution. (1) Laws of Connecticut, page 240. Nor could he be easily brought to believe that a citizen of Connecticut would not rather be entirely forbidden to reside in any State to which he might remove, than to be whipped out of it after he had got there. Is it not absurd, to a demonstration, for the people of a State to say the constitution of Missouri is not republican, because it provides for excluding free negroes and mulattoes from a residence, when their own laws, recently enacted, exclude all the citizens of all the rest of the Union? South Carolina, some years ago, passed a law to prohibit slaves from the Northern States, when they were selling them to the Southern people, from coming into that State; but there was an exception in favor of the servants of public functionaries and members of Congress. The laws of Connecticut do not exempt the members of Congress themselves, much less their servants. A member of Congress, going from the Southern States to Connecticut, would not conceive himself very highly honored if put under an escort of town constables; nor could he well suppose the honor enhanced by being whipped on the naked body if he should happen to return that way. Another law of that State, published in 1796, concerning free negroes, mulattoes, and negro, mulatto, and Indian servants, is worth notice. One clause says: "Whatsoever negro, mulatto, or Indian servant, 'shall be found wandering out of the bounds of 'the town or place to which they belong, without 'a ticket, or pass, in writing, to be taken up," &c. By another clause there is a distinct and degrading restraint laid upon free negroes. It says: "No free negro is to travel without a pass from 'the selectmen or justices." So careful have they been to restrain this degraded class of people, in the same law it is provided: "That every free person shall be punished by 'fine, &c., for buying or receiving any thing from ' a free negro, mulatto, or Indian servant," &c. If free negroes and mulattoes are citizens, why this distinct restraint on their right of locomotion more than on a white citizen? If citizens, why restrained from travelling without a pass? Who is authorized by the Constitution of the United States to prescribe the terms to a particular class of citizens, by what means they shall be suffered to pass? And who shall interdict the rest of the community from buying or receiving from a particular portion of citizens, if they are citizens? The great and respectable State of New York would afford us some light also upon this subject. In the 42d article of the constitution of that State we find the following words: "And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare, that it shall 'be in the discretion of the Legislature to naturalize all such persons, and in such manner, as they 'shall think proper.' This remains a prominent part of the constitution of New York. She has reserved to herself, or to her Legislature, the sole right to naturalize all such persons as they shall think proper. They, SENATE. perhaps, may have the power to do so; but they ought to be candid enough, at least, to allow Missouri to naturalize such persons, and in such manner as they may think proper, also. Her powers are co-ordinate. But, so far is the Legislature of New York from this, that whilst she retains the power herself, she not only denies it to the State of Missouri, but has sent her resolutions of instructions to her Senators, which now lie on your table, to endeavor, by all means, to disfranchise her for attempting to exercise this right upon free negroes and mulattoes only. With what grace she can do so, let the world judge. Her citizens, too, are declaring in their bulletins that, for this defect in the Missouri constitution, she ought to be rejected, and if admitted it will, of itself, be a complete dissolution of the union of the States. By a law of New York, passed the 8th of April, 1801, they have shown, in the most emphatic words, the power which each State retains, of excluding from their limits all and every person who shall come therein. Nor are their means for imposing this power the least energetic. This power they have not limited to exclusion of free negroes and mulattoes only, as Missouri has done, but they have extended it to every class of citizens, of every age, sex, and denomination. He would read the several clauses. The first is in these words: (1) "If a stranger is entertained in the dwelling-house or out-house of any citizen for fifteen days, without giving notice to the overseers of the poor, he shall pay a fine of five dollars." 6 This clause goes to punish any hospitable man who shall have the rashness to entertain a stranger. Whatever may be the custom of the people of that State, the laws deny to a stranger even the rights of hospitality. The next clause comes a little closer to the stranger. He would read it. It is in these words: (2) "If such person continues above forty days, the justices can call on all the inhabitants of the town or city, and the person may be sent to jail, &c. And the justices may cause such stranger to be conveyed from constable to constable, until transported into any other State, if from thence he came." This stranger may be a man of the purest morality, the most accomplished manners, extensive fortune, or most finished education; or he may be an object for the exercise of charity; it is immaterial which he is put into the hands of a constable, who hands him to his brother constable, and so he goes on, until they hand him out of the State of New York. This is the first legal entertainment which a gentleman or lady, for they are to be entertained pretty much alike, are subjected to when they visit the State of New York, if they remain forty days. There was another clause, if they made a second visit, which entertains them in a different style. It is in the following words: (3) "If such person returns, the justices, if they 'think proper, may direct him to be whipped by (1) Laws of New York, vol. 1, p. 568. SENATE. return." every constable into whose hands he shall come; ed. He had been thus tedious that he might give 'to be whipped, if a man not exceeding thirty-nine them chapter and verse. He had done so, because lashes, and if a woman not exceeding twenty-five he believed the policy of the States throughout the 'lashes. And so as often as such person shall Union, on this subject, had heretofore been but little known, and which, he thought, on this occasion, ought to be elicited. More time would, he had no doubt, have enabled him to have shown many other State regulations relating to the same purpose. Such as he had been able to obtain he had submitted, in the humble hope that they would be useful, and enable other gentlemen to improve. He knew he had consumed much time already, and more than he wished to have done; but the subject would not suffer him to abridge it, for which he begged pardon. But he had yet a little bundle for Rhode Island, which some gentlemen might not think quite applicable; but, as he had heretofore spoken of the facts contained in it, when in debate on the same subject, he would rely upon the favor of the Senate to be indulged. It may be said, this law was only intended to guard against transient poor from other States. The rights of a poor man are and ought to be held, if he is a citizen of the United States, as sacred as the rights of the rich man. But this law itself has made no distinction. The constitution authorizes the Legislature to naturalize in such manner as they shall think proper. If this was the manner of naturalizing, and no other appeared yet to have been adopted, to be whipped at the public whipping post by every town constable into whose hand he should come, it was not so very inviting to foreigners; and it was more than probable that but few would like the certificate, as the registry is to be made, on the back of the man, by thirtynine lashes, (Moses's Law;) of the woman, by What he had to read and say was nothing more twenty-five lashes. It has been remarked by en- than paying a compliment to Rhode Island. That lightened travellers, that the attention to ladies is State had not only been very bitter against slavein proportion to the civilization and refined man-holders generally, but had been particularly so, at ners of nations. New York has given in this law a proof of her refinement of manners by their marked attention to ladies, as they are to receive fourteen lashes less than the gentlemen. However romantic this may all appear, it is literally true that such a law is not only to be found in the statute books of New York, but has been enacted twelve years since the adoption of the Constitution of the United States, is now in full force, and is constantly practised upon; by which they can drag from the State the most worthy gentleman or lady of the United States, by the rude hand of town constables; and, if they should dare to return, can make them hug the whipping post. Yet, with this gigantic stretch of power in full exercise by their own State, the people of that State are riding foremost in the cause of the wandering vagabond free negroes and mulattoes with a view to thrust them upon others, or with some other more unkind view. If this concatenation of Constitutional and legal authorities, beginning with the Declaration of Independence itself, and running through the Constitution and every law of the United States, wherever the subject could occur, or be acted on, as well as a voluminous concurrence of the State constitutions and State laws, all bearing directly on this question, without a solitary case to be found to contravene them, when combined with that universal sentiment and universal rule of action of the whole of the white population of the whole nation, denying positively all the precious and val uable privileges of citizenship to free negroes and mulattoes, would not demonstrate that they were not citizens, he knew no human proof which could comprehend it. Mr. SMITH said he should offer no more legal or Constitutional authorities. What he had offered were within the statute books and constitutions of the several States, sent here by authority of those States, as an evidence of their State policy. Therefore, those authorities could not be question the last session of Congress, against Missouri, unless |