of civil and political privileges, to those whom they should be disposed to make the objects of their bounty; but they could not reclaim or exert the powers which they had vested exclusively in the Government of the United States. They could not add to or change in any respect the class of persons to whom alone the character of citizen of the United States appertained at the time of the adoption of the Federal Constitution. They could not create citizens of the United States by any direct or indirect proceeding.'

991

638. Judge McLean's conclusion (19 Howard, 531) that a native born negro domiciled in a State and of free condition under its local law is a citizen in view of the clause in the third Article, has been noticed in another place;' he does not allude to the clauses of the fourth Article. It is remarkable that the Judge recognizes the question to be, Who may be a citizen of a State? and not, Who may be a citizen of the United States? which last is that which the other Justices who examined this point would seem to have proposed to themselves, while examining the question whether Dred Scott was a citizen of Missouri. Judge McLean would probably determine the citizens of the United States by first determining who are citizens of a State; for on page 533 he says, "No person can legally be made a citizen of a State, and consequently a citizen of the United States, of foreign birth, unless he be naturalized under the acts of Congress."

$639. In this case Mr. Justice Curtis examined the question which he thus states (19 Howard, 571):-"The inquiry recurs, whether the facts, that he is of African descent, and that his parents were once slaves, are necessarily inconsistent with his own citizenship in the State of Missouri, within the meaning of the Constitution and laws of the United States.

"In Gassies v. Ballon (6 Pet. 761), the defendant was described on the record as a naturalized citizen of the United

It will be noticed that Judge Daniel, like the Chief Justice (ante, pp. 293, 294), assumed a peculiar definition for naturalization, and ignored the fact that the question was, Who is citizen of a State?

1

1 Vol. I. p. 436.

States, residing in Louisiana. The court held this equivalent to an averment that the defendant was a citizen of Louisiana; because a citizen of the United States, residing in any State of the Union, is, for purposes of jurisdiction, a citizen of that State. Now, the plea to the jurisdiction in this case does not controvert the fact that the plaintiff resided in Missouri at the date of the writ. If he did then reside there, and was also a citizen of the United States, no provisions contained in the Constitution or laws of Missouri can deprive the plaintiff of his right to sue citizens of States other than Missouri in the courts of the United States.

"So that, under the allegations contained in this plea, and admitted by the demurrer, the question is, whether any person of African descent, whose ancestors were sold as slaves in the United States, can be a citizen of the United States.' If any such person can be a citizen, this plaintiff has the right to the judgment of the court that he is so; for no cause is shown by the plea why he is not so, except his descent and the slavery of his ancestors.

"The first section of the second article of the Constitution [572] uses the language, "a citizen of the United States at the time of the adoption of the Constitution." One mode of approaching this question is, to inquire who were citizens of the United States at the time of the adoption of the Constitution.

*

*

*

Citizens of the United States at the time of the adoption of the Constitution can have been no other than citizens of the United States under the Confederation. * It may safely be said that the citizens of the several States were citizens of the United States under the Confederation. * **To determine whether any free persons, descended from Africans held in slavery, were citizens of the United States under the Confederation, and consequently at

At the very beginning of the inquiry, Judge Curtis, like Judge Daniel and the Chief Justice, substitutes a search after the citizens of the United States, for the question, Who are citizens of a State? though he will distinguish these last in order to ascertain those first mentioned. The two other judges would, on the contrary, determine the citizens of the United States without regard to State citizenship.

the time of the adoption of the Constitution of the United States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation, at the time of the adoption of the Constitution. Of this there can be no doubt," &c.

On pp. 573, 574, Judge Curtis referred to the constitutional law of several of the States to show that free negroes were citizens of those States and electors at the time of the ratification of the Articles of Confederation,' as showing, "in a manner which no argument can obscure, that in some of the original thirteen States, free colored persons, before and at the time of the formation of the Constitution, were citizens of those States" (ib. p. 575), and proceeds:

"The fourth of the fundamental articles of the Confederation was as follows:-The free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all the privileges and immunities of free citizens in the several States.'

"The fact that free persons of color were citizens of some of the several States, and the consequence, that this fourth article of the Confederation would have the effect to confer on such persons the privileges and immunities of general citizenship, were not only known to those who framed and adopted those articles, but the evidence is decisive, that the fourth article was intended to have that effect, and that more restricted language, which would have excluded such persons, was deliberately and purposely rejected.

"On the 25th of June, 1778, the Articles of Confederation being under consideration by the Congress, the delegates from South Carolina moved to amend this fourth article, by inserting after the word "free," and before the word "inhabitants," the word "white," so that the privileges and immunities of

1

Citing the language of Judge Gaston, in State v. Manuel, and the reference to it in State v. Newsom, ante, pp. 87, 88, notes. Judge Curtis considered the language of the Declaration of Independence of little importance as compared with these State constitutions, but expressed the opinion that the authors of that instrument did not intend to say "that the creator of all men had endowed the white race exclusively with the great natural rights" which it asserts. 19 How. 574, 575.

general citizenship would be secured only to white persons. Two States voted for the amendment, eight States against it, and the vote of one State was divided. The language of the article stood unchanged; and both by its terms of inclusion, "free inhabitants," and the strong implication from its terms of exclusion, "paupers, vagabonds, and fugitives from justice," who alone were excepted, it is clear that, under the Confederation, and at the time of the adoption of the Constitution, free colored persons of African descent might be, and, by reason of their citizenship in certain States, were entitled to the [576]. privileges and immunities of general citizenship of the United States.

"Did the Constitution of the United States deprive them or their descendants of citizenship?

"That Constitution was ordained and established by the people of the United States, through the action, in each State, of those persons who were qualified by its laws to act thereon, in behalf of themselves and all other citizens of that State. In some of the States, as we have seen, colored persons were among those qualified by law to act on this subject. These colored persons were not only included in the body of the people of the United States, by whom the Constitution was ordained and established, but in at least five of the States they had the power to act, and doubtless did act, by their suffrages, upon the question of its adoption. It would be strange, if we were to find in that instrument anything which deprived of their citizenship any part of the people of the United States who were among those by whom it was established.'

"I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption; nor any power enabling Congress to disfranchise persons born on the soil of any State, and entitled to, citizenship of such State by its constitution and laws. And my opinion is, that, under the Constitution of the United States,

1 Compare ante, p. 285, the passage in Judge Taney's opinion there noted.

every free person born on the soil of a State, who is a citizen of that State by force of its constitution or laws, is also a citizen of the United States.

"I will proceed to state the grounds of that opinion.

"The first section of the second article of the Constitution uses the language, a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been, in conformity with the common law, that free persons born within either of the colonies were subjects of the King; that by the Declaration of Independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legis lative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, [577] and thus to continue British subjects. (McIlvain v. Coxe's Lessee, 4 Cranch, 209; Inglis v. Sailor's Snug Harbor, 3 Peters, p. 99; Shanks v. Dupont, ibid, p. 242.)

"The Constitution having recognized the rule that persons born within the several States are citizens of the United States, one of four things must be true :

"First. That the Constitution itself has described what native-born persons shall or shall not be citizens of the United States; or,

"Second. That it has empowered Congress to do so; or, "Third. That all free persons, born within the several States, are citizens of the United States; or,

"Fourth. That it is left to each State to determine what free persons, born within its limits, shall be citizens of such State, and thereby be citizens of the United States.

"No person except a natural-born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President," &c.