History of the Negro Race in America from 1619 to 1880 Volume II Part 14

"Representatives from free States in favor of the bill, 44.

"Representatives from slave States in favor of the bill, 69.

---- 113.

"Representatives from free States against the bill, 91.

"Representatives from slave States against the bill, 9.

---- 100."

And thus, approved by the President, the measure became a law under the t.i.tle of "_An Act to Organize the Territories of Kansas and Nebraska_."

Congress had violated the sublimest principles of law, had broken faith with the people; had opened a wide door to slavery; had blotted from the map of the United States the last asylum where the oppressed might seek protection; had put the country in a way to be reddened with a fratricidal war, and made our flag a flaunting lie in the eyes of the civilized world. There was nothing to be done now but to let the leaven of sectional malice work, that had been hurled into the slavery discussions in Congress. The bloodless war of words was now transferred to the territory of Kansas, where a conflict of political parties, election frauds, and a.s.sa.s.sination did their hateful work.

The South began to put her State militia upon a war footing, and to make every preparation for battle. The Administration of President Buchanan was in the interest of the South from beginning to end. He refused to give Gov. John W. Geary, of Kansas, the military support the "_border ruffians_" made necessary; allowed the public debt to increase, our precious coin to go abroad, our treasury to become depleted, our navy to go to the distant ports of China and j.a.pan, our army to our extremest frontiers, the music of our industries to cease; and the faith of a loyal people in the perpetuity of the republic was allowed to faint amid the din of mobs and the threats of secession.

FOOTNOTES:

[36] There were nearly 500 slaves held in Northern States not placed in this census.

CHAPTER X.

THE "BLACK LAWS" OF "BORDER STATES."

STRINGENT LAWS ENACTED AGAINST FREE NEGROES AND MULATTOES.--FUGITIVE-SLAVE LAW RESPECTED IN OHIO.--A LAW TO PREVENT KIDNAPPING.--THE FIRST CONSt.i.tUTION OF OHIO.--HISTORY OF THE DRED SCOTT CASE.--JUDGE TANEY'S OPINION IN THIS CASE.--OHIO CONSt.i.tUTION OF 1851 DENIED FREE NEGROES THE RIGHT TO VOTE.--THE ESTABLISHMENT OF COLORED SCHOOLS.--LAW IN INDIANA TERRITORY IN REFERENCE TO EXECUTIONS.--AN ACT FOR THE INTRODUCTION OF NEGROES AND MULATTOES INTO THE TERRITORY.--FIRST CONSt.i.tUTION OF INDIANA.--THE ILLINOIS CONSt.i.tUTION OF 1818.--CRIMINAL CODE ENACTED.--ILLINOIS LEGISLATURE Pa.s.sES AN ACT TO PREVENT THE EMIGRATION OF FREE NEGROES INTO THE STATE.--FREE NEGROES OF THE NORTHERN STATES ENDURE RESTRICTION AND PROSCRIPTION.

Although slavery was excluded from all the new States northwest of the Ohio River, the free Negro was but little better off in Ohio, Indiana, and Illinois than in any of the Southern States. From the earliest moment of the organic existence of the border free States, severe laws were enacted against free Negroes and Mulattoes. At the second session of the first Legislature of the State of Ohio, "_An Act to Regulate Black and Mulatto Persons_"[37] was pa.s.sed.

Sec. 1. That no black or mulatto person shall be permitted to settle or reside in this State "without a certificate of his or her actual freedom."

2. Resident blacks and mulattoes to have their names recorded, etc. (Amended in 1834, Jan. 5 1, Curwen, 126.) _Proviso_, "That nothing in this act contained shall bar the lawful claim to any black or mulatto person."

3. Residents prohibited from hiring black or mulatto persons not having a certificate.

4. Forbids, under penalty, to "harbor or secrete any black or mulatto person the property of any person whatever," or to "hinder or prevent the lawful owner or owners from re-taking,"

etc.

5. Black or mulatto persons coming to reside in the State with a legal certificate, to record the same.

6. "That in case any person or persons, his or their agent or agents, claiming any black or mulatto person or persons that now are or hereafter may be in this State, may apply, upon making satisfactory proof that such black or mulatto person or persons are the property of him or her who applies, to any a.s.sociate judge or justice of the peace within the State, the a.s.sociate judge or justice is hereby empowered and required, by his precept, to direct the sheriff or constable to arrest such black or mulatto person or persons, and deliver the same, in the county or towns.h.i.+p where such officers shall reside, to the claimant or claimants, or his or their agent or agents, for which service the sheriff or constable shall receive such compensation as he is ent.i.tled to receive in other cases for similar services."

7. "That any person or persons who shall attempt to remove or shall remove from this State, or who shall aid and a.s.sist in removing, contrary to the provisions of this act, any black or mulatto person or persons, without first proving, as herein before directed, that he, she, or they is or are legally ent.i.tled so to do, shall, on conviction thereof before any court having cognizance of the same, forfeit and pay the sum of one thousand dollars, one half to the use of the informer and the other half to the use of the State, to be recovered by the action of debt _quitam_ or indictment, and shall moreover be liable to the action of the party injured."

So here upon free soil, under a State government that did not recognize slavery in its const.i.tution, the Negro was compelled to produce a certificate of freedom. Thus the fugitive-slave law was recognized, but at the same time an unlawful removal of free Negroes from the State was forbidden.

At the session of 1806-7, "_An Act to Amend the Act Ent.i.tled 'an Act Regulating Black and Mulatto Persons_,'" was pa.s.sed amending the old law. The first act simply required "a certificate of freedom"; the amended law required Negroes and Mulattoes intending to settle in Ohio to give a bond not to become a charge upon the county in which they settled. Section four reads as follows:

"4. That no black or mulatto person or persons shall hereafter be permitted to be sworn or give evidence in any court of record or elsewhere in this State, in any cause depending or matter of controversy where either party to the sale is a white person, or in any prosecution which shall be inst.i.tuted in behalf of this State, against any white person."[38]

But this law did not apply to persons a shade nearer white than Mulatto [the seven-eighths law].[39] Their testimony was admissible, while that of Negroes and Mulattoes was not admitted against them. In Jordan _vs._ Smith [1846], 14, Ohio, p. 199: "A black person sued by a white, may make affidavit to a plea so as to put the plaintiff to proof."

Attention has been called to the fact that the fugitive-slave law was respected in Ohio. In 1818-19, a law was pa.s.sed to prevent the unlawful kidnapping of free Negroes, which, in its preamble, recites the provisions of the law of Congress, pa.s.sed February 12, 1793, respecting fugitives from service and labor.[40] And in 1839 the Legislature pa.s.sed another act relating to "fugitives from labor,"

etc., paving the way by the following recital:

"WHEREAS, The second section of the fourth article of the Const.i.tution of the United States declares that 'no person'

[etc., reciting it]; and whereas the laws now in force within the State of Ohio are wholly inadequate to the protection pledged by this provision of the Const.i.tution to the Southern States of this Union; and whereas it is the duty of those who reap the largest measure of benefits conferred by the Const.i.tution to recognize to their full extent the obligations which that instrument imposes; and whereas it is the deliberate conviction of this General a.s.sembly that the Const.i.tution can only be sustained as it was framed by a spirit of just compromise; therefore."

Sec. 1. Authorizes judges of courts of record, "or any justice of the peace, or the mayor of any city or town corporate," on application, etc., of claimant, to bring the fugitive before a judge within the county where the warrant was issued, or before some State judge with certain cautions as to proving the official character of the officer issuing the warrant; gives the form of warrant, directing the fugitive to be brought before, etc., "to be be dealt with as the law directs."[41]

J. Peck, Esq. [9, Ohio, p. 212], refers to the laws of 1818-19, and 1830-31, as a recognition by the State of Ohio of the power of Congress to pa.s.s the act of 1793, though that the act was not specially mentioned.

The first const.i.tution of Ohio [1802] restricted the right of suffrage to "all white male inhabitants." "In all elections, all white male inhabitants above the age of twenty-one years, having resided in the State one year next preceding the election, and who have paid or are charged with a State or county tax, shall enjoy the right of an elector," etc.[42] This was repeated in the Bill of Rights adopted in 1851.[43]

Article iv., Section 2, of the Const.i.tution of the United States says: "The citizens of each State shall be ent.i.tled to all privileges and immunities of citizens in the several States." The question as to whether free Negroes were included in the above was discussed at great length in the Dred Scott case, where Chief-Justice Taney took the ground that a Negro was not a citizen under the fourth article of the Const.i.tution. But the fourth article of the Articles of Confederation [1778] recognized free Negroes as citizens. It is given here:

"ART. 4.--The better to secure and perpetuate mutual friends.h.i.+p and intercourse among the people of the different States in this Union, the free inhabitants of each of these States--paupers, vagabonds, and fugitives from justice excepted--shall be ent.i.tled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof, respectively; provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, from any other State, of which the owner is an inhabitant; provided, also, that no imposition, duty, or restriction shall be laid by any State on the property of the United States, or either of them."[44]

By this it is evident that "paupers, vagabonds, and fugitives from justice" were the only persons excluded from the right of citizens.h.i.+p.

The following is the history of the Dred Scott case:

"In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States.

In that year, 1834, said Dr. Emerson took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr.

Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi River, in the territory known as Upper Louisiana, acquired by the United States of France, and situate north of the lat.i.tude of thirty-six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling, from said last-mentioned date until the year 1838.

"In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post, situated as herein before stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave at said Fort Snelling unto the said Dr. Emerson herein before named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838.

"In the year 1836, the plaintiff and said Harriet at said Fort Snelling, with the consent of said Dr. Emerson, who then claimed to be their master and owner, intermarried, and took each other for husband and wife. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage.

Eliza is about fourteen years old, and was born on board the steamboat 'Gipsey,' north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks.

"In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and their said daughter Eliza from said Fort Snelling to the State of Missouri, where they have ever since resided.

"Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie to the defendant, as slaves, and the defendant has ever since claimed to hold them and each of them as slaves.

"At the time mentioned in the plaintiff's declaration, the defendant, claiming to be owner as aforesaid, laid his hands upon said plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect, however, no more than what he might lawfully do if they were of right his slaves at such times.

"It is agreed that Dred Scott brought suit for his freedom in the Circuit Court of St. Louis County; that there was a verdict and judgment in his favor; that on a writ of error to the Supreme Court the judgment below was reversed, and the same remanded to the Circuit Court, where it has been continued to await the decision of this case.

"In May, 1854, the cause went before a jury, who found the following verdict, viz.: 'As to the first issue joined in this case, we of the jury find the defendant not guilty; and as to the issue secondly above joined, we of the jury find that before and at the time when, etc., in the first count mentioned, the said Dred Scott was a negro slave, the lawful property of the defendant; and as to the issue thirdly above joined, we, the jury, find that before and at the time when, etc., in the second and third counts mentioned, the said Harriet, wife of said Dred Scott, and Eliza and Lizzie, the daughters of the said Dred Scott, were negro slaves, the lawful property of the defendant.'

"Whereupon, the court gave judgment for the defendant.

"After an ineffectual motion for a new trial, the plaintiff filed the following bill of exceptions.

"On the trial of this cause by the jury, the plaintiff, to maintain the issues on his part, read to the jury the following agreed statement of facts (see agreement above). No further testimony was given to the jury by either party. Thereupon the plaintiff moved the court to give to the jury the following instructions, viz.: