Documents in American Legal History To 1865
“There is nothing new in the world except the history you do not know.”
Harry S Truman (1884–1972)
“A lawyer without history or literature is a mechanic, a mere working mason; ifhe possesses some knowledge of these, he may venture to call himself anarchitect.”
Sir Walter Scott (1771–1832)
Prof. Douglas E. AbramsUniversity of Missouri-ColumbiaSchool of LawWinter 2006
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I. INTRODUCTION
A. History As Ongoing Debate
History is, indeed, an argument without end.
Arthur M. Schlesinger, Jr. (1917- ), U.S. historian
History is, strictly speaking, the study of questions; the study of answers belongs toanthropology and sociology.
W.H. (Wystan Hugh) Auden (1907–1973), Anglo-American poet
The often repeated saying that those who forget the lessons of history are doomed torepeat them has a lot of truth in it. But what are 'the lessons of history'? The veryattempt at definition furnishes ground for new conflicts. History is not a recipe book;past events are never replicated in the present in quite the same way. Historical eventsare infinitely variable and their interpretations are a constantly shifting process. Thereare no certainties to be found in the past.
Gerda Lerner (1920- ), U.S. historian
"History" is a Greek word which means, literally, just "investigation."
Arnold J. Toynbee (1889-1975), British historian
Nothing capable of being memorized is history.
R. G. (Robin George) Collingwood (1889-1943), British philosopher andhistorian
History is the great propagator of doubt.
A.J.P. Taylor (1906-1990), British historian
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History will die if not irritated. The only service I can do to my profession is to serve asa flea.
Henry Adams (1838-1918), U.S. historian, journalist and novelist
History has to be rewritten because history is the selection of those threads of causesor antecedents that we are interested in.
Oliver Wendell Holmes, Jr. (1841-1935), U.S. Supreme Court Justice
Who does not know history’s first law to be that an author must not dare to tellanything but the truth? And its second that he must make bold to tell the whole truth?That there must be no suggestion of partiality anywhere in his writings? Nor of malice?
Marcus Tullius Cicero (106–43 B.C.), Roman orator, philosopher andstatesman
It is the true office of history to represent the events themselves, together with thecounsels, and to leave the observations and conclusions thereupon to the liberty andfaculty of every man’s judgement.
Francis Bacon (1561-1626), British philosopher, essayist, statesman
Honest history is the weapon of freedom.
Arthur M. Schlesinger, Jr. (1917- ), U.S. historian
B. Understanding Contemporary Legal Issues
The disadvantage of men not knowing the past is that they do not know the present.History is a hill or high point of vantage, from which alone men see the town in whichthey live or the age in which they are living.
G.K. (Gilbert Keith) Chesterton (1874–1936), British author
History is a guide to navigation in perilous times. History is who we are and why we are
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the way we are.
David C. McCullough (1933- ), U.S. historian
If you would understand anything, observe its beginning and its development.
Aristotle (384 B.C - 322 B.C.), Greek philosopher
You must always know the past, for there is no real Was, there is only Is.
William Faulkner (1897-1962), U.S. novelist
The past is never dead; it's not even past.
William Faulkner (1897-1962), U.S. novelist
[E]very event has had its cause, and nothing, not the least wind that blows, is accidentor causeless. To understand what happens now one must find the cause, which may bevery long ago in its beginning, but is surely there, and therefore a knowledge of historyas detailed as possible is essential if we are to comprehend the past and be prepared forthe future.
Pearl S. Buck (1892–1973), U.S. novelist
C. Understanding the Meaning of Law and Contemporary Legal Institutions
A page of history is worth a volume of logic.
Oliver Wendell Holmes, Jr. (1841-1935), U.S. Supreme Court Justice
OLIVER WENDELL HOLMES, JR.
THE COMMON LAW 1-2 (1881)
* * * The life of the law has not been logic: it has been experience. The feltnecessities of the time, the prevalent moral and political theories, intuitions of publicpolicy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules bywhich men should be governed. The law embodies the story of a nation's development
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through many centuries, and it cannot be dealt with as if it contained only the axiomsand corollaries of a book of mathematics. In order to know what it is, we must knowwhat it has been, and what it tends to become. We must alternately consult history andexisting theories of legislation. But the most difficult labor will be to understand thecombination of the two into new products at every stage. The substance of the law atany given time pretty nearly corresponds, so far as it goes, with what is then understoodto be convenient; but its form and machinery, and the degree to which it is able to workout desired results, depend very much upon its past.
* * *
OLIVER WENDELL HOLMES, JR., THE PATH OF THE LAW, 10 HARV. L. REV. 457, 469 (1897)
* * * The rational study of law is still to a large extent the study of history.History must be a part of the study, because without it we cannot know the precisescope of rules which it is our business to know. It is a part of the rational study,because it is the first step toward an enlightened skepticism, that is, toward a deliberatereconsideration of the worth of those rules. * * *
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History is that which has happened and that which goes on happening in time. But alsoit is the stratified record upon which we set our feet, the ground beneath us; and thedeeper the roots of our being go down into the layers that lie below and beyond the ...confines of our ego, yet at the same time feed and condition it, ... the heavier is our lifewith thought and the weightier is the soul of our flesh.
Thomas Mann (1875-1955), German novelist, essayist and social critic
History isn't really about the past - settling old scores. It's about defining the presentand who we are.
Ken Burns (1953 - ), U.S. documentary film maker
The [Supreme] Court is not an organism disassociated from the conditions and historyof the times in which it exists. It does not formulate and deliver its opinions in a legalvacuum. Its Judges are not abstract and impersonal oracles, but are men whose viewsare necessarily, though by no conscious intent, affected by inheritance, education andenvironment and by the impact of history past and present * * *.
1 Charles Warren, The Supreme Court In United States History 2 (rev.
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ed. 1926).
D. Illuminating the Future
Life must be lived forward, but it can only be understood backward.
Søren Kierkegaard (1813-1855), Danish philosopher and theologian
I have but one lamp by which my feet are guided, and that is the lamp of experience. Iknow no way of judging of the future but by the past.
Edward Gibbon (1737-1794), British historian
Those who cannot learn from history are doomed to repeat it.
George Santayana (1863-1952)
We can be almost certain of being wrong about the future, if we are wrong about thepast.
G.K. (Gilbert Keith) Chesterton (1874–1936), British author
When the past no longer illuminates the future, the spirit walks in darkness.
Alexis de Tocqueville (1805-1859), French historian and political theorist
History teaches everything, even the future.
Alphonse de Lamartine (1790-1869), French writer, poet and politician
A new future requires a new past.
Eric Foner (1943- ), U.S. historian
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One faces the future with one's past.
Pearl S. Buck (1892–1973), U.S. novelist
History by apprising them [students] of the past will enable them to judge of the future;it will avail them of the experience of other times and other nations; it will qualify themas judges of the actions and designs of men; it will enable them to know ambition underevery disguise it may assume; and knowing it, to defeat its views.
Thomas Jefferson (1743–1826)
All history is but a romance, unless it is studied as an example.
George Croly (1780-1860), Irish poet, novelist and historian
History repeats itself because no one was listening the first time.
Anonymous
Fellow-citizens, we cannot escape history.
Abraham Lincoln (1809–1865) (Annual message to Congress, Dec. 1,1862).
In history, a great volume is unrolled for our instruction, drawing the materials offuture wisdom from the past errors and infirmities of mankind.
Edmund Burke (1729-1797), Anglo-Irish statesman, author, orator,political theorist, and philosopher
History cannot give us a program for the future, but it can give us a fullerunderstanding of ourselves, and of our common humanity, so that we can better face thefuture.
Robert Penn Warren (1905-1989), U.S. novelist, poet and literary critic
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Whoever wishes to foresee the future must consult the past; for human events everresemble those of preceding times. This arises from the fact that they are produced bymen who ever have been, and ever shall be, animated by the same passions, and thusthey necessarily have the same results.
Niccolo Machiavelli (1469-1527), Italian political philosopher, poet andplaywright
If the past has been an obstacle and a burden, knowledge of the past is the safest andthe surest emancipation.
Lord Acton (1834-1902), British historian
The past does not repeat itself, but it rhymes.
Mark Twain (1835-1910), U.S. humorist, satirist, writer and lecturer
We are made wise not by the recollection of our past, but by the responsibility for ourfuture.
George Bernard Shaw (1856-1950), Irish playwright
We have need of history in its entirety, not to fall back into it, but to see if we can escapefrom it.
José Ortega y Gasset (1883–1955), Spanish essayist, philosopher
History, despite its wrenching pain, cannot be unlived, but if faced with courage, neednot be lived again.
Maya Angelou (1928- ), U.S. poet, memorist and actress
E. History as Commentary
History, we can confidently assert, is useful in the sense that art and music, poetry and
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flowers, religion and philosophy are useful. Without it -- as with these -- life would bepoorer and meaner; without it we should be denied some of those intellectual and moralexperiences which give meaning and richness to life. Surely it is no accident that thestudy of history has been the solace of many of the noblest minds of every generation.
Henry Steele Commager (1902-1998), U.S. historian
History makes us some amends for the shortness of life.
Philip Skelton (1707-1787). Irish minister
History does not usually make real sense until long afterward.
Bruce Catton (1899-1978), U.S. historian
History does not belong to us; we belong to it.
Hans-Georg Gadamer (1900-2002), German philosopher
Historical awareness is a kind of resurrection.
William Least Heat Moon (1940- ), U.S. travel writer
For history is to the nation as memory is to the individual.
Arthur M. Schlesinger, Jr., (1917- ), U.S. historian
History at its best is vicarious experience.
Edmund S. Morgan (1916- ), U.S. historian
The whole value of history, of biography, is to increase my self-trust, by demonstratingwhat man can be and do.
Ralph Waldo Emerson (1803–1882), U.S. essayist, poet, philosopher
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History is Philosophy teaching by examples.
Thucydides (ca. 460 B.C.- ca. 400 B.C.), Greek historian
The principal office of history I take to be this: to prevent virtuous actions from beingforgotten, and that evil words and deeds should fear an infamous reputation withposterity.
Tacitus (c. 55–117), Roman historian
(The Histories, bk. 3, sect. 65).
The supreme purpose of history is a better world.
Herbert Hoover (1874-1964), U.S. President
Man in a word has no nature; what he has . . . is history.
Jose Ortega y Gasset (1883-1955), Spanish philosopher
The best thing which we derive from history is the enthusiasm that it raises in us.
Johann Wolfgang Goethe (1749-1832), German poet, novelist andphilosopher
II. AMERICAN LEGAL HISTORY TO 1865
THE MAGNA CARTA (June 15, 1215)
JOHN, by the grace of God King of England, Lord of Ireland, Duke of Normandy andAquitaine, and Count of Anjou, to his archbishops, bishops, abbots, earls, barons,justices, foresters, sheriffs, stewards, servants, and to all his officials and loyal subjects,Greeting.
* * *TO ALL FREE MEN OF OUR KINGDOM we have also granted, for us and our heirs
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for ever, all the liberties written out below, to have and to keep for them and their heirs,of us and our heirs:
* * *(10) If anyone who has borrowed a sum of money from Jews dies before the debt hasbeen repaid, his heir shall pay no interest on the debt for so long as he remains underage, irrespective of whom he holds his lands. If such a debt falls into the hands of theCrown, it will take nothing except the principal sum specified in the bond.
(11) If a man dies owing money to Jews, his wife may have her dower and pay nothingtowards the debt from it. If he leaves children that are under age, their needs may alsobe provided for on a scale appropriate to the size of his holding of lands. The debt is tobe paid out of the residue, reserving the service due to his feudal lords. Debts owed topersons other than Jews are to be dealt with similarly.
* * *(17) Ordinary lawsuits shall not follow the royal court around, but shall be held in afixed place.
* * * (20) For a trivial offence, a free man shall be fined only in proportion to the degree of hisoffence, and for a serious offence correspondingly, but not so heavily as to deprive himof his livelihood. In the same way, a merchant shall be spared his merchandise, and ahusbandman the implements of his husbandry, if they fall upon the mercy of a royalcourt. None of these fines shall be imposed except by the assessment on oath ofreputable men of the neighbourhood.
(21) Earls and barons shall be fined only by their equals, and in proportion to thegravity of their offence.
* * *(24) No sheriff, constable, coroners, or other royal officials are to hold lawsuits thatshould be held by the royal justices.
* * * (27) If a free man dies intestate, his movable goods are to be distributed by his next-of-kin and friends, under the supervision of the Church. The rights of his debtors are tobe preserved.
* * *(30) No sheriff, royal official, or other person shall take horses or carts for transportfrom any free man, without his consent.
(31) Neither we nor any royal official will take wood for our castle, or for any otherpurpose, without the consent of the owner.
(32) We will not keep the lands of people convicted of felony in our hand for longer thana year and a day, after which they shall be returned to the lords of the 'fees' concerned.
* * *
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(38) In future no official shall place a man on trial upon his own unsupported statement,without producing credible witnesses to the truth of it.
(39) No free man shall be seized or imprisoned, or stripped of his rights or possessions,or outlawed or exiled, or deprived of his standing in any other way, nor will we proceedwith force against him, or send others to do so, except by the lawful judgement of hisequals or by the law of the land.
(40) To no one will we sell, to no one deny or delay right or justice. * * *
(45) We will appoint as justices, constables, sheriffs, or other officials, only men thatknow the law of the realm and are minded to keep it well.
* * * (54) No one shall be arrested or imprisoned on the appeal of a woman for the death ofany person except her husband.
* * * (61) SINCE WE HAVE GRANTED ALL THESE THINGS for God, for the betterordering of our kingdom, and to allay the discord that has arisen between us and ourbarons, and since we desire that they shall be enjoyed in their entirety, with lastingstrength, for ever, we give and grant to the barons the following security:
The barons shall elect twenty-five of their number to keep, and cause to be observedwith all their might, the peace and liberties granted and confirmed to them by thischarter.
If we, our chief justice, our officials, or any of our servants offend in any respectagainst any man, or transgress any of the articles of the peace or of this security,and the offence is made known to four of the said twenty-five barons, they shallcome to us - or in our absence from the kingdom to the chief justice - to declareit and claim immediate redress. * * *
Any man who so desires may take an oath to obey the commands of the twenty-five barons for the achievement of these ends, and to join with them in assailingus to the utmost of his power. We give public and free permission to take thisoath to any man who so desires, and at no time will we prohibit any man fromtaking it. Indeed, we will compel any of our subjects who are unwilling to take itto swear it at our command.
* * *In the event of disagreement among the twenty-five barons on any matterreferred to them for decision, the verdict of the majority present shall have thesame validity as a unanimous verdict of the whole twenty-five, whether these
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were all present or some of those summoned were unwilling or unable to appear.
The twenty-five barons shall swear to obey all the above articles faithfully, andshall cause them to be obeyed by others to the best of their power.
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(63) IT IS ACCORDINGLY OUR WISH AND COMMAND that the English Churchshall be free, and that men in our kingdom shall have and keep all these liberties,rights, and concessions, well and peaceably in their fulness and entirety for them andtheir heirs, of us and our heirs, in all things and all places for ever. Both we and the barons have sworn that all this shall be observed in good faith andwithout deceit. Witness the abovementioned people and many others.
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[ S o u r c e : B r i t i s h L i b r a r y , T r e a s u r e s i n F u l l ,http:/www.bl.uk/treasures/magnacarta/translation.html]
LAWS OF THE STATE OF MISSOURI, art. 1 (1825)
SECTION 1. The common law of England, and all statutes and acts of parliament,made prior to the fourth year of the reign of James the First, and which are of a generalnature, not local to that kingdom, which common law and statutes are not repugnantto, or inconsistent with, the constitution of the United States, the constitution of thisstate, or the statute laws in force for the time bring, shall be the rule of action anddecision in this state, any law, custom or usage, to the contrary notwithstanding.
SEC. 2. Punishment, by virtue of the common law, shall, in no wise, be otherthan fine and imprisonment, and such fine shall not exceed one hundred dollars, andthe term of such imprisonment shall not exceed two months; nor shall any of the Britishstatutes, for the punishment of crimes and misdemeanors, be in force in this state.
MISSOURI REVISED STATUTES § 1.010 (2005)
The common law of England and all statutes and acts of parliament made prior to thefourth year of the reign of James the First, of a general nature, which are not local tothat kingdom and not repugnant to or inconsistent with the Constitution of the UnitedStates, the constitution of this state, or the statute laws in force for the time being, arethe rule of action and decision in this state, any custom or usage to the contrarynotwithstanding, but no act of the general assembly or law of this state shall be held tobe invalid, or limited in its scope or effect by the courts of this state, for the reason thatit is in derogation of, or in conflict with, the common law, or with such statutes or actsof parliament; but all acts of the general assembly, or laws, shall be liberally construed,
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so as to effectuate the true intent and meaning thereof.
MAYFLOWER COMPACT (1620)
IN THE NAME OF GOD, AMEN. We, whose names are underwritten, the LoyalSubjects of our dread Sovereign Lord King James, by the Grace of God, of Great Britain,France, and Ireland, King, Defender of the Faith, &c. Having undertaken for the Gloryof God, and Advancement of the Christian Faith, and the Honour of our King andCountry, a Voyage to plant the first Colony in the northern Parts of Virginia; Do bythese Presents, solemnly and mutually, in the Presence of God and one another,covenant and combine ourselves together into a civil Body Politick, for our betterOrdering and Preservation, and Furtherance of the Ends aforesaid: And by Virtuehereof do enact, constitute, and frame, such just and equal Laws, Ordinances, Acts,Constitutions, and Officers, from time to time, as shall be thought most meet andconvenient for the general Good of the Colony; unto which we promise all dueSubmission and Obedience. IN WITNESS whereof we have hereunto subscribed ournames at Cape-Cod the eleventh of November, in the Reign of our Sovereign Lord KingJames, of England, France, and Ireland, the eighteenth, and of Scotland the fifty-fourth, Anno Domini; 1620.
[Signed by 41 men, including William Bradford, William Brewster, Myles Standish andJohn Alden.]
[Source: http://www.yale.edu/lawweb/avalon/amerdoc/mayflower.htm.]
AGREEMENT OF THE SETTLERS AT EXETER IN NEW HAMPSHIRE (1639)
Whereas it hath pleased the Lord to move the Heart of our dread Sovereigns Charlesby the Grace of God King &c. to grant Licence and Libertye to sundry of his subjects toplant themselves in the Westerlle parts of America. We his loyal Subjects Brethern ofthe Church in Exeter situate and lying upon the River Pascataqua with otherInhabitants there, considering with ourselves the holy Will of God and o'er ownNecessity that we should not live without wholesomne Lawes and Civil Governmentamong us of which we are altogether destitute; do in the name of Christ and in the sightof God combine ourselves together to erect and set up among us such Government asshall be to our best discerning agreeable to the Will of God professing ourselves Subjectsto our Sovereign Lord King Charles according to the Libertyes of our English Colony ofMassachusetts, and binding of ourselves solemnly by the Grace and Help of Christ andin His Name and fear to submit ourselves to such Godly and Christian Lawes as areestablished in the realm of England to our best Knowledge, and to all other such Laweswhich shall upon good grounds be made and enacted among us according to God that
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we may live quietly and peaceably together in all godliness and honesty. Mo. 8. D. 4.1639 as attests our Hands.
[35 signatures follow.]
[Source: http://www.yale.edu/lawweb/avalon/states/nh06.htm]
THE FUNDAMENTAL ORDERS OF CONNECTICUTJanuary 14, 1639
For as much as it hath pleased Almighty God by the wise disposition of his divineprovidence so to order and dispose of things that we the Inhabitants and Residents ofWindsor, Hartford and Wethersfield are now cohabiting and dwelling in and upon theRiver of Connectecotte and the lands thereunto adjoining; and well knowing where apeople are gathered together the word of God requires that to maintain the peace andunion of such a people there should be an orderly and decent Government establishedaccording to God, to order and dispose of the affairs of the people at all seasons asoccasion shall require; do therefore associate and conjoin ourselves to be as one PublicState or Commonwealth; and do for ourselves and our successors and such as shall beadjoined to us at any time hereafter, enter into Combination and Confederationtogether, to maintain and preserve the liberty and purity of the Gospel of our LordJesus which we now profess, as also, the discipline of the Churches, which according tothe truth of the said Gospel is now practiced amongst us; as also in our civil affairs tobe guided and governed accordinbg to such Laws, Rules, Orders and Decrees as shallbe made, ordered, and decreed as followeth:
1. It is Ordered, sentenced, and decreed, that there shall be yearly two GeneralAssemblies or Courts, the one the second Thursday in April, the other the secondThursday in September following; the first shall be called the Court of Election, whereinshall be yearly chosen from time to time, so many Magistrates and other public Officersas shall be found requisite * * *
2. It is Ordered, sentenced, and decreed, that the election of the aforesaid Magistratesshall be in this manner: every person present and qualified for choice shall bring in (tothe person deputed to receive them) one single paper with the name of him written init whom he desires to have Governor, and that he that hath the greatest number ofpapers shall be Governor for that year. And the rest of the Magistrates or public officersto be chosen in this manner: the Secretary for the time being shall first read the namesof all that are to be put to choice and then shall severally nominate them distinctly, andevery one that would have the person nominated to be chosen shall bring in one singlepaper written upon, and he that would not have him chosen shall bring in a blank; andevery one that hath more written papers than blanks shall be a Magistrate for that
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year; which papers shall be received and told by one or more that shall be then chosenby the court and sworn to be faithful therein; but in case there should not be six chosenas aforesaid, besides the Governor, out of those which are nominated, than he or theywhich have the most writen papers shall be a Magistrate or Magistrates for the ensuingyear, to make up the aforesaid number.
* * *
7. It is Ordered, sentenced, and decreed, that after there are warrants given out for anyof the said General Courts, the Constable or Constables of each Town, shall forthwithgive notice distinctly to the inhabitants of the same, in some public assembly or by goingor sending from house to house, that at a place and time by him or them limited and set,they meet and assemble themselves together to elect and choose certain deputies to beat the General Court then following to agitate the affairs of the Commonwealth; whichsaid deputies shall be chosen by all that are admitted Inhabitants in the several Townsand have taken the oath of fidelity; provided that none be chosen a Deputy for anyGeneral Court which is not a Freeman of this Commonwealth.
The aforesaid deputies shall be chosen in manner following: every person that is presentand qualified as before expressed, shall bring the names of such, written in severalpapers, as they desire to have chosen for that employment, and these three or four,more or less, being the number agreed on to be chosen for that time, that have thegreatest number of papers written for them shall be deputies for that Court; whosenames shall be endorsed on the back side of the warrant and returned into the Court,with the Constable or Constables' hand unto the same.
* * *14th January 1639 the 11 Orders above said are voted.
COLONIAL SLAVE CODES
Virginia, 1639 - “Act X. All persons except Negroes are to be provided with arms andammunitions or be fined at the pleasure of the governor and council.”
Maryland, 1664 - That whatsoever free-born [English] woman shall intermarry withany slave [...] shall serve the master of such slave during the life of her husband; andthat all the issue of such free-born women, so married shall be slaves as their fatherswere.”
Virginia, 1705 - “All servants imported and brought into the Country [...] who were notChristians in their native Country [...] shall be accounted and be slaves. All Negro,mulatto and Indian slaves within this dominion [...] shall be held to be real estate. Ifany slave resist his master [...] correcting such slave, and shall happen to be killed insuch correction [...] the master shall be free of all punishment [...] as if such accident
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never happened.”
Virginia, 1667 - “Act III. Whereas some doubts have arisen whether children that areslaves by birth [...] should by virtue of their baptism be made free, it is enacted thatbaptism does not alter the condition to the person as to his bondage or freedom; mastersfreed from this doubt may more carefully propagate Christianity by permitting slavesto be admitted to that sacrament.”
Virginia, 1682 - “Act I. It is enacted that all servants [...] which shall be imported intothis country either by sea or by land, whether Negroes, Moors [Muslim North Africans],mulattoes or Indians who and whose parentage and native countries are not Christianat the time of their first purchase by some Christian [...] and all Indians, which shall besold by our neighboring Indians, or any other trafficking with us for slaves, are herebyadjudged, deemed and taken to be slaves to all intents and purposes any law, usage, orcustom to the contrary notwithstanding.”
THE TRIAL OF JOHN PETER ZENGER (1735)
I. Statement to the Court by New York Attorney General Bradley:
* * * May it please your honors, and you gentlemen of the jury; the [charges] nowbefore the Court, and to which the defendant Zenger, has pleaded Not Guilty, is [acharge] for printing and publishing a false, scandalous, and seditious libel, in which hisexcellency, the governor of this province, who is the King's immediate representativehere, is greatly and unjustly scandalized, person that has no regard to law nor justice;with much more * * *. This [practice] of libeling is what has always been discouraged,as a thing that tends to create differences among men, ill blood among the people, andoften times great bloodshed between the party libeling and the party libeled. There canbe no doubt but you, gentlemen of the jury, will have the same ill opinion of suchpractices as the judges have always shown upon such occasions. * * *
[Source: http:/www.law.uh.edu/teacher/zenger]
II. Defense counsel Andrew Hamilton’s argument for jury nullification (i.e., thatNew York should not apply England’s libel law):
* * * In England so great a regard and reverence is had to the judges that if anyman strikes another in Westminster Hall while the judges are sitting, he shall lose hisright hand and forfeit his land and goods for so doing. Although the judges here claimall the powers and authorities within this government that a Court of King's Bench hasin England, yet I believe Mr. Attorney will scarcely say that such a punishment couldbe legally inflicted on a man for committing such an offense in the presence of the
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judges sitting in any court within the Province of New York. The reason is obvious. Aquarrel or riot in New York can not possibly be attended with those dangerousconsequences that it might in Westminster Hall; nor, I hope, will it be alleged that anymisbehavior to a governor in The Plantations will, or ought to be, judged of or punishedas a like undutifulness would be to our sovereign. From all of which, I hope Mr.Attorney will not think it proper to apply his law cases, to support the cause of hisgovernor, which have only been judged where the king's safety or honor wasconcerned....Numberless are the instances of this kind that might be given to show thatwhat is good law at one time and in one place is not so at another time and in anotherplace.
* * *I know, may it please Your Honor, the jury may do so. But I do likewise know
that they may do otherwise. I know that they have the right beyond all dispute todetermine both the law and the fact; and where they do not doubt of the law, they oughtto do so. Leaving it to judgment of the court whether the words are libelous or not ineffect renders juries useless (to say no worse) in many cases. But this I shall haveoccasion to speak to by and by. III. Andrew Hamilton’s summation to the jury, arguing for a free press:
It is natural, it is a privilege, I will go farther, it is a right, which all free menclaim, that they are entitled to complain when they are hurt. They have a right publiclyto remonstrate against the abuses of power in the strongest terms, to put theirneighbors upon their guard against the craft or open violence of men in authority, andto assert with courage the sense they have of the blessings of liberty, the value they putupon it, and their resolution at all hazards to preserve it as one of the greatest blessingsheaven can bestow * * *.
The loss of liberty, to a generous mind, is worse than death. And yet we knowthat there have been those in all ages who for the sake of preferment, or someimaginary honor, have freely lent a helping hand to oppress, nay to destroy, theircountry.... This is what every man who values freedom ought to consider. He should actby judgment and not by affection or self-interest; for where those prevail, no ties ofeither country or kindred are regarded; as upon the other hand, the man who loves hiscountry prefers its liberty to all other considerations, well knowing that without libertylife is a misery * * *.
Power may justly be compared to a great river. While kept within its due boundsit is both beautiful and useful. But when it overflows its banks, it is then too impetuousto be stemmed; it bears down all before it, and brings destruction and desolationwherever it comes. If, then, this is the nature of power, let us at least do our duty, andlike wise men who value freedom use our utmost care to support liberty, the onlybulwark against lawless power, which in all ages has sacrificed to its wild lust and
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boundless ambition the blood of the best men that ever lived....
I hope to be pardoned, Sir, for my zeal upon this occasion....While we pay all dueobedience to men in authority we ought at the same time to be upon our guard againstpower wherever we apprehend that it may affect ourselves or our fellow subjects....
You see that I labor under the weight of many years, and am bowed down withgreat infirmities of body. Yet, old and weak as I am, I should think it my duty, ifrequired, to go to the utmost part of the land where my services could be of any use inassisting to quench the flame of prosecutions upon informations, set on foot by thegovernment to deprive a people of the right of remonstrating and complaining, too, ofthe arbitrary attempts of men in power * * *.
But to conclude: The question before the Court and you, Gentlemen of the jury,is not of small or private concern. It is not the cause of one poor printer, nor of New Yorkalone, which you are now trying. No! It may in its consequence affect every free manthat lives under a British government on the main of America. It is the best cause. Itis the cause of liberty. And I make no doubt but your upright conduct this day will notonly entitle you to the love and esteem of your fellow citizens, but every man whoprefers freedom to a life of slavery will bless and honor you as men who have baffled theattempt of tyranny, and by an impartial and uncorrupt verdict have laid a noblefoundation for securing to ourselves, our posterity, and our neighbors, that to whichnature and the laws of our country have given us a right to liberty of both exposing andopposing arbitrary power (in these parts of the world at least) by speaking and writingtruth.
[Source: Doug Lindner, The Trial of John Peter Zenger: An Account (2001),http://www.law.umkc.edu/faculty/projects/ftrials/zenger/zengeraccount.html]
CONSTITUTION OF PENNSYLVANIA (September 28, 1776)
* * *WHEREAS all government ought to be instituted and supported for the security andprotection of the community as such, and to enable the individuals who compose it toenjoy their natural rights, and the other blessings which the Author of existence hasbestowed upon man; and whenever these great ends of government are not obtained, thepeople have a right, by common consent to change it, and take such measures as tothem may appear necessary to promote their safety and happiness.
AND WHEREAS the inhabitants of this commonwealth have in consideration ofprotection only, heretofore acknowledged allegiance to the king of Great Britain; and thesaid king has not only withdrawn that protection, but commenced, and still continuesto carry on, with unabated vengeance, a most cruel and unjust war against them,
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employing therein, not only the troops of Great Britain, but foreign mercenaries,savages and slaves, for the avowed purpose of reducing them to a total and abjectsubmission to the despotic domination of the British parliament, with many other actsof tyranny, (more fully set forth in the declaration of Congress) whereby all allegianceand fealty to the said king and his successors, are dissolved and at an end, and allpower and authority derived from him ceased in these colonies.
AND WHEREAS it is absolutely necessary for the welfare and safety of the inhabitantsof said colonies, that they be henceforth free and independent States, and that just,permanent, and proper forms of government exist in every part of them, derived fromand founded on the authority of the people only, agreeable to the directions of thehonourable American Congress. We, the representatives of the freemen of Pennsylvania,in general convention met, for the express purpose of framing such a government,confessing the goodness of the great Governor of the universe (who alone knows to whatdegree of earthly happiness mankind mav attain, by perfecting the arts of government)* * * do, by virtue of the authority vested in use by our constituents, ordain, declare, andestablish, the following Declaration of Rights and Frame of Government, to be theCONSTITUTION of this commonwealth, and to remain in force therein for ever,unaltered, except in such articles as shall hereafter on experience be found to requireimprovement, and which shall by the same authority of the people, fairly delegated asthis frame of government directs, be amended or improved for the more effectualobtaining and securing the great end and design of all government, herein beforementioned.
A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THECOMMONWEALTH OR STATE OF PENNSYLVANIA
I. 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 andliberty, acquiring, possessing and protecting property, and pursuing and obtaininghappiness and safety.
II. That all men have a natural and unalienable right to worship Almighty Godaccording to the dictates of their own consciences and understanding: And that no manought or of right can be compelled to attend any religious worship, or erect or supportany place of worship, or maintain any ministry, contrary to, or against, his own free willand consent: Nor can any man, who acknowledges the being of a God, be justly deprivedor abridged of any civil right as a citizen, on account of his religious sentiments orpeculiar mode of religious worship: And that no authority can or ought to be vested in,or assumed by any power whatever, that shall in any case interfere with, or in anymanner controul, the right of conscience in the free exercise of religious worship.
III. That the people of this State have the sole, exclusive and inherent right of governing
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and regulating the internal police of the same. * * *
VI. That those who are employed in the legislative and executive business of the State,may be restrained from oppression, the people have a right, at such periods as they maythink proper, to reduce their public officers to a private station, and supply thevacancies by certain and regular elections.
VII. That all elections ought to be free; and that all free men having a sufficient evidentcommon interest with, and attachment to the community, have a right to elect officers,or to be elected into office.
VIII. That every member of society hath a right to be protected in the enjoyment of life,liberty and property, and therefore is bound to contribute his proportion towards theexpence of that protection, and yield his personal service when necessary, or anequivalent thereto: But no part of a man's property can be justly taken from him, orapplied to public uses, without his own consent, or that of his legal representatives: Norcan any man who is conscientiously scrupulous of bearing arms, be justly compelledthereto, if he will pay such equivalent, nor are the people bound by any laws, but suchas they have in like manner assented to, for their common good.
IX. That in all prosecutions for criminal offences, a man hath a right to be heard byhimself and his council, to demand the cause and nature of his accusation, to beconfronted with the witnesses, to call for evidence in his favour, and a speedy publictrial, by an impartial jury of the country, without the unanimous consent of which juryhe cannot be found guilty; nor can he be compelled to give evidence against himself; norcan any man be justly deprived of his liberty except by the laws of the land, or thejudgment of his peers.
X. That the people have a right to hold themselves, their houses, papers, andpossessions free from search and seizure, and therefore warrants without oaths oraffirmations first made, affording a sufficient foundation for them, and whereby anyofficer or messenger may be commanded or required to search suspected places, or toseize any person or persons, his or their property, not particularly described, arecontrary to that right, and ought not to be granted.
XI. That in controversies respecting property, and in suits between man and man, theparties have a right to trial by jury, which ought to be held sacred.
XII. That the people have a right to freedom of speech, and of writing, and publishingtheir sentiments; therefore the freedom of the press ought not to be restrained.
XIII. That the people have a right to bear arms for the defence of themselves and the
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state; and as standing armies in the time of peace are dangerous to liberty, they oughtnot to be kept up; And that the military should be kept under strict subordination to,and governed by, the civil power.
* * *XVI. That the people have a right to assemble together, to consult for their commongood, to instruct their representatives, and to apply to the legislature for redress ofgrievances, by address, petition, or remonstrance.
PLAN OR FRAME OF GOVERNMENT FOR THE COMMONWEALTH OR STATEOF PENNSYLVANIA
SECTION 1. The commonwealth or state of Pennsylvania shall be governed hereafterby an assembly of the representatives of the freemen of the same, and a president andcouncil, in manner and form following-
SECT. 2. The supreme legislative power shall be vested in a house of representativesof the freemen of the commonwealth or state of Pennsylvania.
SECT. 3. The supreme executive power shall be vested in a president and council.
SECT. 4. Courts of justice shall be established in the city of Philadelphia, and in everycounty of this state.
* * *
SECT. 6. Every freemen of the full age of twenty-one Years, having resided in this statefor the space of one whole Year next before the day of election for representatives, andpaid public taxes during that time, shall enjoy the right of an elector: Provided always,that sons of freeholders of the age of twenty-one years shall be intitled to vote althoughthey have not paid taxes.
* * *And each member [of the House of Representatives], before he takes his seat, shallmake and subscribe the following declaration, viz:
I do believe in one God, the creator and governor of the universe, the rewarderof the good and the punisher of the wicked. And I do acknowledge the Scripturesof the Old and New Testament to be given by Divine inspiration.
And no further or other religious test shall ever hereafter be required of any civil officeror magistrate in this State.
SECT. 13. The doors of the house in which the representatives of the freemen of thisstate shall sit in general assembly, shall be and remain open for the admission of all
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persons who behave decently, except only when the welfare of this state may require thedoors to be shut.
SECT. 14. The votes and proceedings of the general assembly shall be printed weeklyduring their sitting, with the yeas and nays, on any question, vote or resolution, whereany two members require it except when the vote is taken by ballot; and when the yeasand nays are so taken every member shall have a right to insert the reasons of his voteupon the minutes, if he desires it.
* * *SECT. 20. The president, and in his absence the vice-president, with the council, fiveof whom shall be a quorum, shall have power * * * to correspond with other states, andtransact business with the officers of government, civil and military; and to preparesuch business as may appear to them necessary to lay before the general assembly.They shall sit as judges, to hear and determine on impeachments, taking to theirassistance for advice only, the justices of the supreme court. And shall have power togrant pardons and remit fines, in all cases whatsoever, except in cases of impeachment;and in cases of treason and murder, shall have power to grant reprieves, but not topardon, until the end of the next sessions of assembly; but there shall be no remissionor mitigation of punishments on impeachments, except by act of the legislature; they arealso to take care that the laws be faithfully executed; they are to expedite the executionof such measures as may be resolved upon by the general assembly; and they may drawupon the treasury for such sums as shall be appropriated by the house: They may alsolay embargoes, or prohibit the exportation of any commodity, for any time, not exceedingthirty days, in the recess of the house only: * * *
* * *SECT. 22. Every officer of state, whether judicial or executive, shall be liable to beimpeached by the general assembly, either when in office, or after his resignation orremoval for mal-administration: All impeachments shall be before the president or vice-president and council, who shall hear and determine the same.
SECT. 23. The judges of the supreme court of judicature shall have fixed salaries, becommissioned for seven years only, though capable of re-appointment at the end of thatterm, but removable for misbehaviour at any time by the general assembly; they shallnot be allowed to sit as members in the continental congress, executive council, orgeneral assembly, nor to hold any other office civil or military, nor to take or receive feesor perquisites of any kind.
* * * SECT. 25. Trials shall be by jury as heretofore * * *.
SECT. 26. * * * All courts shall be open, and justice shall be impartially administeredwithout corruption or unnecessary delay: * * *
* * *
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SECT. 29. Excessive bail shall not be exacted for bailable offences: And all fines shallbe moderate.
* * *SECT. 32. All elections, whether by the people or in general assembly, shall be by ballot,free and voluntary: * * *
* * * SECT. 35. The printing presses shall be free to every person who undertakes to examinethe proceedings of the legislature, or any part of government.
* * *SECT. 38. The penal laws as heretofore used shall be reformed by the legislature of thisstate, as soon as may be, and punishments made in some cases less sanguinary, and ingeneral more proportionate to the crimes.
* * *SECT. 44. A school or schools shall be established in each county by the legislature, forthe convenient instruction of youth, with such salaries to the masters paid by the public,as may enable them to instruct youth at low prices: And all useful learning shall be dulyencouraged and promoted In one or more universities.
* * *Passed in Convention the 28th day of September, 1776, and signed by their order.
BENJ. FRANKLIN, Prest.
[Source: http://www.yale.edu/lawweb/avalon/states/pa08.htm.]
PENNSYLVANIA, AN ACT FOR THE GRADUAL ABOLITION OF SLAVERY (March 1, 1780)
SECTION 1. * * * We find in the distribution of the human species, that the most fertileas well as the most barren parts of the earth are inhabited by men of complexionsdifferent from ours, and from each other; from whence we may reasonably, as well asreligiously, infer, that He who placed them in their various situations, hath extendedequally his care and protection to all, and that it becometh not us to counteract hismercies. We esteem it a peculiar blessing granted to us, that we are enabled this dayto add one more step to universal civilization, by removing as much as possible thesorrows of those w ho have lived in undeserved bondage, and from which, by theassumed authority of the kings of Great Britain, no effectual, legal relief could beobtained. * * *
SECT. 2. And whereas the condition of those persons who have heretofore beendenominated Negro and Mulatto slaves, has been attended with circumstances whichnot only deprived them of the common blessings that they were by nature entitled to,but has cast them into the deepest afflictions, by an unnatural separation and sale ofhusband and wife from each other and from their children; an injury, the greatness of
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which can only be conceived by supposing that we were in the same unhappy case. * **
SECT. 3. Be it enacted, and it is hereby enacted, by the representatives of the freemanof the commonwealth of Pennsylvania, in general assembly met, and by the authorityof the same, That all persons, as well Negroes and Mulattoes as others, who shall beborn within this state from and after the passing of this act, shall not be deemed andconsidered as servants for life, or slaves; and that all servitude for life, or slavery ofchildren, in consequence of the slavery of their mothers, in the case of all children bornwithin this state, from and after the passing of this act as aforesaid, shall be, andhereby is utterly taken away, extinguished and for ever abolished.
SECT. 4. Provided always, and be it further enacted by the authority aforesaid, Thatevery Negro and Mulatto child born within this state after the passing of this act asaforesaid (who would, in case this act had not been made, have been born a servent foryears, or life, or a slave) shall be deemed to be and shall be by virtue of this act theservant of such person or his or her assigns, who would in such case have been entitledto the service of such child, until such child shall attain unto the age of twenty eightyears, in the manner and on the conditions whereon servants bound by indenture forfour years are or may be retained and holder; and shall be liable to like correction andpunishment, and entitled to like relief in case he or she be evilly treated by his or hermaster or mistress, and to like freedom dues and other privileges as servants bound byindenture for four years are or may be entitled, unless the person to whom the serviceof any such child shall belong shall abandon his or her claim to the fame; in which casethe overseers of the poor of the city, township or district respectively, where such childshall be So abandoned, shall by indenture bind out every child fo abandoned, as anapprentice for a time not exceeding the age herein before limited for the service of suchchildren.
SECT. 5. And be it further enacted by the authority aforesaid, That every person, whois or shall be the owner of any Negro or Mulatto slave or servant for life or till the ageof thirty one years, now within this state, or his lawful attorney, shall on or before thesaid first day of November next deliver or calm to be delivered in writing to the clerk ofthe peace of the county, or to the clerk of the court of record of the city of Philadelphia,in which he or the shall respectively inhabit, the name and surname and occupation orprofession of such owner, and the name of the county and township, district or wardwherein he or she resideth; and also the name and names of any such slave and slaves,and servant and servants for life or till the age of thirty one years, together with theirages and sexes severally and respectively set forth and annexed, by such person ownedor statedly employed and then being within this state, in order to ascertain anddistinguish the slaves and servants for life, and till the age of thirty one years, withinthis state, who shall be such on the said first day of November next, from all otherpersons; which particulars shall by said clerk of the sessions asked clerk of the said city
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court be entered in books to be provided for that purpose by the said clerks; and that noNegro or Mulatto, now within this state, shall from and after the said first day ofNovember, be deemed a slave or servant for life, or till the age of thirty one years,unless his or her name shall be entered as aforesaid on such record, except such Negroand Mulatto slaves and servants as are herein after excepted; the said clerk to beentitled to a fee of two dollars for each slave or servant so entered as aforesaid from thetreasurer of the county, to be allowed to him in his accounts.
SECT. 6. Provided always, That any person, in whom the ownership or right to theservice of any Negro or Mulatto shall be tested at the passing of this act, other thansuch as are herein before excepted, his or her heirs, executors, administrators andassigns, and all and every of them severally shall be liable to the overseers of the poorof the city, township or district to which any such Negro or Mulatto shall becomechargeable, for such necessary expence, with costs of fuit thereon, as such overseers maybe put to, through the neglect of the owner, master or mistress of such Negro or Mulatto* * *.
SECT. 7. And be it further enacted by the authority aforesaid, That the offences andcrimes of Negroes and Mulattoes, as well slaves and servants as freemen, shall beenquired of, adjudged, corrected and punished in like manner as the offences and crimesof the other inhabitants of this state are and shall be enquired of, adjudged, correctedand punished, and not otherwise; except that a slave shall not be admitted to bearwitness against a freeman.
SECT. 8. And be it further enacted by the authority aforesaid, That in all cases whereinsentence of death shall be pronounced against a slave, the jury before whom he or sheshall be tried, shall appraise and declare the value of such slave; and in case suchsentence be executed, the court shall make an order on the state treasurer, payable tothe owner for the fame and for the costs of prosecution; but case of remission ormitigation, for the costs only.
* * *SECT. 10. And be it further enacted by the authority aforesaid, That no man or womanof any nation or colour, except the Negroes or Mulattoes who shall be registered asaforesaid, shall at any time hereafter be deemed, adjudged, or holden within theterritories of this commonwealth as slaves or servants for life, but as free men and freewomen; except the domestic slaves attending upon delegates in congress from the otherAmerican states, foreign ministers and consuls, and persons passing through orsojourning in this state, and not becoming resident therein; and seamen employed inships not belonging to any inhabitant of this state, nor employed in any ship owned byany such inhabitant. * * *
SECT. 11. Provided always; And be it further enacted by the authority aforesaid, Thatthis act or any thing in it contained shall not give any relief or shelter to any absconding
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or runaway Negro or Mulatto slave or servant, who has absented himself or shall absenthimself from his or her owner, master or mistress residing in any other state or country,but such owner, master or mistress shall have like right and aid to demand, claim andtake away his slave or servant, as he might have had in case this act had not been made* * *.
* * * SECT. 13. Be it therefore enacted by the authority aforesaid, That no covenantof personal servitude or apprenticeship whatsoever shall be valid or binding on a Negroor Mulatto for a longer time than seven years, unless such servant or apprentice wereat the commencement of such servitude or apprenticeship under the age of twenty oneyears; in which case such Negro or Mulatto may be holden as a servant or apprenticerespectively, according to the covenant, as the case shall be, until he or she shall attainthe age of twenty eight years, but no longer. * * *
[Source: http://www.yale.edu/lawweb/avalon/states/statutes/pennst01.htm]
RATIFICATION OF THE CONSTITUTION BY THE STATE OF NEW YORK (JULY 26, 1788)
WE the Delegates of the People of the State of New York, duly elected and Met inConvention, having maturely considered the Constitution for the United States ofAmerica, agreed to on the seventeenth day of September, in the year One thousandSeven hundred and Eighty seven, by the Convention then assembled at Philadelphiain the Common-wealth of Pennsylvania (a Copy whereof precedes these presents) andhaving also seriously and deliberately considered the present situation of the UnitedStates, Do declare and make known.
That all Power is originally vested in and consequently derived from the People, andthat Government is instituted by them for their common Interest Protection andSecurity.
That the enjoyment of Life, Liberty and the pursuit of Happiness are essential rightswhich every Government ought to respect and preserve.
That the Powers of Government may be reassumed by the People, whensoever it shallbecome necessary to their Happiness; that every Power, Jurisdiction and right, whichis not by the said Constitution clearly delegated to the Congress of the United States,or the departments of the Government thereof, remains to the People of the severalStates, or to their respective State Governments to whom they may have granted thesame; And that those Clauses in the said Constitution, which declare, that Congressshall not have or exercise certain Powers, do not imply that Congress is entitled to anyPowers not given by the said Constitution; but such Clauses are to be construed eitheras exceptions to certain specified Powers, or as inserted merely for greater Caution.
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That the People have an equal, natural and unalienable right, freely and peaceably toExercise their Religion according to the dictates of Conscience, and that no ReligiousSect or Society ought to be favoured or established by Law in preference of others.
That the People have a right to keep and bear Arms; that a well regulated Militia,including the body of the People capable of bearing Arms, is the proper, natural and safedefence of a free State;
That the Militia should not be subject to Martial Law except in time of War, Rebellionor Insurrection.
That standing Armies in time of Peace are dangerous to Liberty, and ought not to bekept up, except in Cases of necessity; and that at all times, the Military should be understrict Subordination to the civil Power.
That in time of Peace no Soldier ought to be quartered in any House without the consentof the Owner, and in time of War only by the Civil Magistrate in such manner as theLaws may direct.
That no Person ought to be taken imprisoned or disseised of his freehold, or be exiledor deprived of his Privileges, Franchises, Life, Liberty or Property but by due processof Law.
That no Person ought to be put twice in Jeopardy of Life or Limb for one and the sameOffence, nor, unless in case of impeachment, be punished more than once for the sameOffence.
That every Person restrained of his Liberty is entitled to an enquiry into the lawfulnessof such restraint, and to a removal thereof if unlawful, and that such enquiry andremoval ought not to be denied or delayed, except when on account of Public Danger theCongress shall suspend the privilege of the Writ of Habeas Corpus.
That excessive Bail ought not to be required; nor excessive Fines imposed; nor Cruel orunusual Punishments inflicted.
That (except in the Government of the Land and Naval Forces, and of the Militia whenin actual Service, and in cases of Impeachment) a Presentment or Indictment by aGrand Jury ought to be observed as a necessary preliminary to the trial of all Crimescognizable by the Judiciary of the United States, and such Trial should be speedy,public, and by an impartial Jury of the County where the Crime was committed; andthat no person can be found Guilty without the unanimous consent of such Jury. * * *And that in all Criminal Prosecutions, the Accused ought to be informed of the causeand nature of his Accusation, to be confronted with his accusers and the Witnesses
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against him, to have the means of producing his Witnesses, and the assistance ofCouncil for his defense, and should not be compelled to give Evidence against himself.That the trial by Jury in the extent that it obtains by the Common Law of England isone of the greatest securities to the rights of a free People, and ought to remaininviolate.
That every Freeman has a right to be secure from all unreasonable searches andseizures of his person his papers or his property, and therefore, that all Warrants tosearch suspected places or seize any Freeman his papers or property, withoutinformation upon Oath or Affirmation of sufficient cause, are grievous and oppressive;and that all general Warrants (or such in which the place or person suspected are notparticularly designated) are dangerous and ought not to be granted.
That the People have a right peaceably to assemble together to consult for their commongood, or to instruct their Representatives; and that every person has a right to Petitionor apply to the Legislature for redress of Grievances.-That the Freedom of the Pressought not to be violated or restrained.
That there should be once in four years an Election of the President and Vice President,so that no Officer who may be appointed by the Congress to act as President in case ofthe removal, death, resignation or inability of the President and Vice President can inany case continue to act beyond the termination of the period for which the lastPresident and Vice President were elected.
* * * That the Prohibition contained in the said Constitution against ex post facto Laws,extends only to Laws concerning Crimes.
* * *That the Judicial Power of the United States in cases in which a State may be a party,does not extend to criminal Prosecutions, or to authorize any Suit by any Person againsta State.
That the Judicial Power of the United States as to Controversies between Citizens ofthe same State claiming Lands under Grants of different States is not to be construedto extend to any other Controversies between them except those which relate to suchLands, so claimed under Grants of different States.
That the Jurisdiction of the Supreme Court of the United States, or of any other Courtto be instituted by the Congress, is not in any case to be encreased enlarged or extendedby any Fiction Collusion or mere suggestion;-And That no Treaty is to be construed soto operate as to alter the Constitution of any State.
Under these impressions and declaring that the rights aforesaid cannot be abridged orviolated, and that the Explanations aforesaid are consistent with the said Constitution,
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And in confidence that the Amendments which shall have been proposed to the saidConstitution will receive an early and mature Consideration: We the said Delegates, inthe Name and in the behalf of the People of the State of New York Do by these presentsAssent to and Ratify the said Constitution. In full Confidence nevertheless that untila Convention shall be called and convened for proposing Amendments to the saidConstitution, the Militia of this State will not be continued in Service out of this Statefor a longer term than six weeks without the Consent of the Legislature thereof * * *.
* * *[Source: http://www.yale.edu/lawweb/avalon/const/ratny.htm]
RESOLUTION OF THE FIRST CONGRESS SUBMITTING TWELVE AMENDMENTS TO THE CONSTITUTION (March 4, 1789)
* * *THE Conventions of a number of the States, having at the time of their adopting theConstitution, expressed a desire, in order to prevent misconstruction or abuse of itspowers, that further declaratory and restrictive clauses should be added: And asextending the ground of public confidence in the Government, will best ensure thebeneficent ends of its institution:
RESOLVED by the Senate and House of Representatives of the United States ofAmerica, in Congress assembled, two thirds of both Houses concurring, that thefollowing Articles be proposed to the Legislatures of the several States, as Amendmentsto the Constitution of the United States, all or any of which Articles, when ratified bythree fourths of the said Legislatures, to be valid to all intents and purposes, as part ofthe said Constitution; viz:
ARTICLES in addition to, and Amendment of the Constitution of the United States ofAmerica, proposed by Congress, and ratified by the Legislatures of the several States,pursuant to the fifth Article of the original Constitution.
Article the first . . . After the first enumeration required by the first Article of theConstitution, there shall be one Representative for every thirty thousand, until thenumber shall amount to one hundred, after which, the proportion shall be so regulatedby Congress, that there shall be not less than one hundred Representatives, nor lessthan one Representative for every forty thousand persons, until the number ofRepresentatives shall amount to two hundred, after which the proportion shall be soregulated by Congress, that there shall not be less than two hundred Representatives,nor more than one Representative for every fifty thousand persons.
Article the second . . . No law, varying the compensation for the services of the Senatorsand Representatives, shall take effect, until an election of Representatives shall have
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intervened.
Article the third . . . Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise thereof; or abridging the freedom of speech, or of thepress; or the right of the people peaceably to assemble, and to petition the Governmentfor a redress of grievances.
Article the fourth . . . A well regulated Militia, being necessary to the security of a freeState, the right of the people to keep and bear Arms, shall not be infringed.
Article the fifth . . . No Soldier shall, in time of peace be quartered in any house, withoutthe consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Article the sixth . . . The right of the people to be secure in their persons, houses, papers,and effects, against unreasonable searches and seizures, shall not be violated, and noWarrants shall issue, but upon probable cause, supported by Oath or affirmation, andparticularly describing the place to be searched, and the persons or things to be seized.
Article the seventh . . . No person shall be held to answer for a capital, or otherwiseinfamous crime, unless on a presentment or indictment of a Grand Jury, except in casesarising in the land or naval forces, or in the Militia, when in actual service in time ofWar or public danger; nor shall any person be subject for the same offense to be twiceput in jeopardy of life or limb; nor shall be compelled in any criminal case to be awitness against himself, nor be deprived of life, liberty, or property, without due processof law; nor shall private property be taken for public use, without just compensation.
Article the eighth . . . In all criminal prosecutions, the accused shall enjoy the right toa speedy and public trial, by an impartial jury of the State and district wherein thecrime shall have been committed, which district shall have been previously ascertainedby law, and to be informed of the nature and cause of the accusation; to be confrontedwith the witnesses against him; to have compulsory process for obtaining witnesses inhis favor, and to have the Assistance of Counsel for his defence.
Article the ninth . . . In Suits at common law, where the value in controversy shallexceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried bya jury, shall be otherwise re-examined in any Court of the United States, than accordingto the rules of the common law.
Article the tenth . . . Excessive bail shall not be required, nor excessive fines imposed,nor cruel and unusual punishments inflicted.
Article the eleventh . . . The enumeration in the Constitution, of certain rights, shall notbe construed to deny or disparage others retained by the people.
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Article the twelfth . . . The powers not delegated to the United States by theConstitution, nor prohibited by it to the States, are reserved to the States respectively,or to the people.
* * *[Source: http://www.yale.edu/lawweb/avalon/const/resolu02.htm]
THOMAS JEFFERSON’S OPINION ON THE CONSTITUTIONALITY OF A NATIONAL BANK (1791)
* * *I consider the foundation of the Constitution as laid on this ground: That "all powers notdelegated to the United States, by the Constitution, nor prohibited by it to the States,are reserved to the States or to the people." To take a single step beyond the boundariesthus specially drawn around the powers of Congress, is to take possession of a boundlessfield of power, no longer susceptible of any definition.
The incorporation of a bank, and the powers assumed by this bill, have not, in myopinion, been delegated to the United States, by the Constitution.
I. They are not among the powers specially enumerated: for these are: 1st A power tolay taxes for the purpose of paying the debts of the United States; but no debt is paidby this bill, nor any tax laid. Were it a bill to raise money, its origination in the Senatewould condemn it by the Constitution.
2. "To borrow money." But this bill neither borrows money nor ensures the borrowingit. The proprietors of the bank will be just as free as any other money holders, to lendor not to lend their money to the public. The operation proposed in the bill first, to lendthem two millions, and then to borrow them back again, cannot change the nature of thelatter act, which will still be a payment, and not a loan, call it by what name you please.
3. To "regulate commerce with foreign nations, and among the States, and with theIndian tribes." To erect a bank, and to regulate commerce, are very different acts. Hewho erects a bank, creates a subject of commerce in its bills, so does he who makes abushel of wheat, or digs a dollar out of the mines; yet neither of these persons regulatescommerce thereby. To make a thing which may be bought and sold, is not to prescriberegulations for buying and selling. Besides, if this was an exercise of the power ofregulating commerce, it would be void, as extending as much to the internal commerceof every State, as to its external. For the power given to Congress by the Constitutiondoes not extend to the internal regulation of the commerce of a State, (that is to say ofthe commerce between citizen and citizen,) which remain exclusively with its ownlegislature; but to its external commerce only, that is to say, its commerce with anotherState, or with foreign nations, or with the Indian tribes. Accordingly the bill does notpropose the measure as a regulation of trace, but as `' productive of considerableadvantages to trade." Still less are these powers covered by any other of the special
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enumerations.
II. Nor are they within either of the general phrases, which are the two following:
1. To lay taxes to provide for the general welfare of the United States, that is to say, "tolay taxes for the purpose of providing for the general welfare." For the laying of taxesis the power, and the general welfare the purpose for which the power is to be exercised.They are not to lay taxes ad libitum for any purpose they please; but only to pay thedebts or provide for the welfare of the Union. In like manner, they are not to doanything they please to provide for the general welfare, but only to lay taxes for thatpurpose. To consider the latter phrase, not as describing the purpose of the first, but asgiving a distinct and independent power to do any act they please, which might be forthe good of the Union, would render all the preceding and subsequent enumerations ofpower completely useless.
It would reduce the whole instrument to a single phrase, that of instituting a Congresswith power to do whatever would be for the good of the United States; and, as theywould be the sole judges of the good or evil, it would be also a power to do whatever evilthey please.
* * * Certainly no such universal power was meant to be given them. It was intendedto lace them up straitly within the enumerated powers, and those without which, asmeans, these powers could not be carried into effect. It is known that the very powernow proposed as a means was rejected as an end by the Convention which formed theConstitution. A proposition was made to them to authorize Congress to open canals, andan amendatory one to empower them to incorporate. But the whole was rejected, andone of the reasons for rejection urged in debate was, that then they would have a powerto erect a bank, which would render the great cities, where there were prejudices andjealousies on the subject, adverse to the reception of the Constitution.
2. The second general phrase is, "to make all laws necessary and proper for carryinginto execution the enumerated powers." But they can all be carried into executionwithout a bank. A bank therefore is not necessary, and consequently not authorized bythis phrase.
If has been urged that a bank will give great facility or convenience in the collection oftaxes, Suppose this were true: yet the Constitution allows only the means which are"necessary," not those which are merely "convenient" for effecting the enumeratedpowers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to everyone, for there is not one which ingenuity may nottorture into a convenience in some instance or other, to some one of so long a list ofenumerated powers. It would swallow up all the delegated powers, and reduce the wholeto one power, as before observed. Therefore it was that the Constitution restrained them
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to the necessary means, that is to say, to those means without which the grant of powerwould be nugatory.
* * *[Source: http://www.yale.edu/lawweb/avalon/amerdoc/bank-tj.htm]
ALEXANDER HAMILTON’S OPINION AS TO THE CONSTITUTIONALITYOF THE BANK OF THE UNITED STATES (1791)
* * *Now it appears to the Secretary of the Treasury that * * * every power vested in agovernment is in its nature sovereign, and includes, by force of the term, a right toemploy all the means requisite and fairly applicable to the attainment of the ends ofsuch power, and which are not precluded by restrictions and exceptions specified in theConstitution, or not immoral, or not contrary to the essential ends of political society.
* * ** * * [T]he Constitution, and the laws of the United States made in pursuance of it, andall treaties made, or which shall be made, under their authority, shall be the supremelaw of the land. The power which can create the supreme law of the land in any case,is doubtless sovereign as to such case.
[I]t is unquestionably incident to sovereign power to erect corporations, andconsequently to that of the United States, in relation to the objects intrusted to themanagement of the government. * * *
* * *
The first of [Jefferson’s] arguments is, that the foundation of the Constitution is laid onthis ground: " That all powers not delegated to the United States by the Constitution,nor prohibited to it by the States, are reserved for the States, or to the people." * * *
It is not denied that there are implied well as express powers, and that the former areas effectually delegated as the latter. * * *
* * * To return: It is conceded that implied powers are to be considered as delegated equallywith express ones. Then it follows, that as a power of erecting a corporation may as wellbe implied as any other thing, it may as well be employed as an instrument or mean ofcarrying into execution any of the specified powers, as any other instrument or meanwhatever. The only question must be in this, as in every other case, whether the meanto be employed or in this instance, the corporation to be erected, has a natural relationto any of the acknowledged objects or lawful ends of the government. * * *
* * *To this mode of reasoning respecting the right of employing all the means requisite tothe execution of the specified powers of the government, it is objected, that none but
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necessary and proper means are to be employed; and the Secretary of State [Jefferson]maintains, that no means are to be considered as necessary but those without which thegrant of the power would be nugatory. * * *
* * * It is certain that neither the grammatical nor popular sense of the term requires thatconstruction. According to both, necessary often means no more than needful, requisite,incidental, useful, or conducive to. It is a common mode of expression to say, that it isnecessary for a government or a person to do this or that thing, when nothing more isintended or understood, than that the interests of the government or person require, orwill be promoted by, the doing of this or that thing. * * *
* * *
[Jefferson’s] construction would beget endless uncertainty and embarrassment. Thecases must be palpable and extreme, in which it could be pronounced, with certainty,that a measure was absolutely necessary, or one, without which, the exercise of a givenpower would be nugatory. There are few measures of any government which wouldstand so severe a test. To insist upon it, would be to make the criterion of the exerciseof any implied power, a case of extreme necessity; which is rather a rule to justify theoverleaping of the bounds of constitutional authority, than to govern the ordinaryexercise of it.
* * *The degree in which a measure is necessary, can never be a test of the legal right toadopt it; that must be a matter of opinion, and can only be a test of expediency. Therelation between the measure and the end; between the nature of the mean employedtoward the execution of a power, and the object of that power must be the criterion ofconstitutionality, not the more or less of necessity or utility.
* * *This restrictive interpretation of the word necessary is also contrary to this soundmaxim of construction, namely, that the powers contained in a constitution ofgovernment, especially those which concern the general administration of the affairs ofa country, its finances, trade, defense, etc., ought to be construed liberally inadvancement of the public good. This rule does not depend on the particular form of agovernment, or on the particular demarcation of the boundaries of its powers, but on thenature and object of government itself. The means by which national exigencies are tobe provided for, national inconveniences obviated, national prosperity promoted, are ofsuch infinite variety, extent, and complexity, that there must of necessity be greatlatitude of discretion in the selection and application of those means. Hence,consequently, the necessity and propriety of exercising the authorities intrusted to agovernment on principles of liberal construction.
* * *To establish such a right [to charter a national bank], it remains to show the relationof such an institution to one or more of the specified powers of the government.Accordingly it is affirmed that it has a relation, more or less direct, to the power of
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collecting taxes, to that of borrowing money, to that of regulating trade between theStates, and to those of raising and maintaining fleets and armies. To the two former therelation Nay be said to be immediate; and in the last place it will be argued, that it isclearly within the provision which authorizes the making of all needful rules andregulations concerning the property of the United States, as the same has beenpracticed upon by the government.
* * *A bank has a direct relation to the power of borrowing money, because it is an usual,and in sudden emergencies an essential, instrument in the obtaining of loans togovernment.
A nation is threatened with a war, large sums are wanted on a sudden to make therequisite preparations. Taxes are laid for the purpose, but it requires tine to obtain thebenefit of them. Anticipation is indispensable. If there be a bank the supply can at oncebe had. If there be none, loans from individuals must be sought. The progress of theseis often too slow for the exigency ill some situations they are not practicable at all.Frequently when they are, it is of great consequence to be able to anticipate the productof them by advance from a bank.
The essentiality of such an institution as an instrument of loans is exemplified at thisvery moment. An Indian expedition is to be prosecuted. The only fund, out of which themoney can arise, consistently with the public engagements, is a tax, which only beginsto be collected in July next. The preparations, however, are instantly to be made. Themoney must, therefore, be borrowed and of whom could it be borrowed if there were nopublic banks?
* * * The institution of a bank has also a natural relation to the regulation of trade betweenthe States, in so far as it is conducive to the creation of a convenient medium ofexchange between them, and to the keeping up a full circulation, by preventing thefrequent displacement of the metals in reciprocal remittances Money is the very hingeon which commerce turns. And this does not merely mean gold and silver; many otherthings have served the purpose, with different degrees of utility. Paper has beenextensively employed.
* * * The relation of a bank to the execution of the powers that concern the common defensehas been anticipated. It has been noted, that, at this very moment, the aid of such aninstitution is essential to the measures to be pursued for the protection of our frontiers.
* * * [Source: http://www.yale.edu/lawweb/avalon/amerdoc/bank-ah.htm]
AN ACT RESPECTING ALIEN ENEMIES (July 6, 1798)
SECTION 1. Be it enacted by the Senate and House of Representatives of the United
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States of America in Congress assembled, That whenever there shall be a declared warbetween the United States and any foreign nation or government, or any invasion orpredatory incursion shall be perpetrated, attempted, or threatened against the territoryof the United States, by any foreign nation or government, and the President of theUnited States shall make public proclamation of the event, all natives, citizens,denizens, or subjects of the hostile nation or government, being males of the age offourteen years and upwards, who shall be within the United States, and not actuallynaturalized, shall be liable to be apprehended, restrained, secured and removed, asalien enemies. And the President of the United States shall be, and he is herebyauthorized, in any event, as aforesaid, by his proclamation thereof, or other public act,to direct the conduct to be observed, on the part of the United States, towards the alienswho shall become liable, as aforesaid; the manner and degree of the restraint to whichthey shall be subject, and in what cases, and upon what security their residence shallbe permitted, and to provide for the removal of those, who, not being permitted to residewithin the United States, shall refuse or neglect to depart therefrom; and to establishany other regulations which shall be found necessary in the premises and for the publicsafety * * *.
* * *[Source: U.S. Statutes at Large]
AN ACT IN ADDITION TO THE ACT, ENTITLED "AN ACT FOR THE PUNISHMENT OF CERTAIN CRIMES AGAINST THE UNITED STATES."
(THE SEDITION ACT)July 14, 1798
* * *SEC. 2. And be it farther enacted, That if any person shall write, print, utter or publish,or shall cause or procure to be written, printed, uttered or published, or shall knowinglyand willingly assist or aid in writing, printing, uttering or publishing any false,scandalous and malicious writing or writings against the government of the UnitedStates, or either house of the Congress of the United States, or the President of theUnited States, with intent to defame the said government, or either house of the saidCongress, or the said President, or to bring them, or either of them, into contempt ordisrepute; or to excite against them, or either or any of them, the hatred of the goodpeople of the United States, or to stir up sedition within the United States, or to exciteany unlawful combinations therein, for opposing or resisting any law of the UnitedStates, or any act of the President of the United States, done in pursuance of any suchlaw, or of the powers in him vested by the constitution of the United States, or to resist,oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designsof any foreign nation against United States, their people or government, then suchperson, being thereof convicted before any court of the United States having jurisdictionthereof, shall be punished by a fine not exceeding two thousand dollars, and by
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imprisonment not exceeding two years.
SEC. 3. And be it further enacted and declared, That if any person shall be prosecutedunder this act, for the writing or publishing any libel aforesaid, it shall be lawful for thedefendant, upon the trial of the cause, to give in evidence in his defence, the truth of thematter contained in Republication charged as a libel. And the jury who shall try thecause, shall have a right to determine the law and the fact, under the direction of thecourt, as in other cases.SEC. 4. And be it further enacted, That this act shall continue and be in force until thethird day of March, one thousand eight hundred and one, and no longer: Provided, thatthe expiration of the act shall not prevent or defeat a prosecution and punishment ofany offence against the law, during the time it shall be in force.
[Source: U.S. Statutes at Large]
VIRGINIA RESOLUTION (Dec. 24, 1798)
RESOLVED, * * * That the General Assembly doth particularly protest against thepalpable and alarming infractions of the Constitution, in the two late cases of the "Alienand Sedition Acts" passed at the last session of Congress; the first of which exercises apower no where delegated to the federal government, and which by uniting legislativeand judicial powers to those of executive, subverts the general principles of freegovernment; as well as the particular organization, and positive provisions of the federalconstitution; and the other of which acts, exercises in like manner, a power notdelegated by the constitution, but on the contrary, expressly and positively forbiddenby one of the amendments thererto; a power, which more than any other, ought toproduce universal alarm, because it is levelled against that right of freely examiningpublic characters and measures, and of free communication among the people thereon,which has ever been justly deemed, the only effectual guardian of every other right.
That this state having by its Convention, which ratified the federal Constitution,expressly declared, that among other essential rights, "the Liberty of Conscience andof the Press cannot be cancelled, abridged, restrained, or modified by any authority ofthe United States," and from its extreme anxiety to guard these rights from everypossible attack of sophistry or ambition, having with other states, recommended anamendment for that purpose, which amendment was, in due time, annexed to theConstitution; it would mark a reproachable inconsistency, and criminal degeneracy, ifan indifference were now shewn, to the most palpable violation of one of the Rights,thus declared and secured; and to the establishment of a precedent which may be fatalto the other.
* * *[Source: http://www.yale.edu/lawweb/avalon/virres.htm]
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KENTUCKY RESOLUTION (Dec. 3, 1799)
THE representatives of the good people of this commonwealth in general assemblyconvened, having maturely considered the answers of sundry states in the Union, totheir resolutions passed at the last session, respecting certain unconstitutional laws ofCongress, commonly called the alien and sedition laws, would be faithless indeed tothemselves, and to those they represent, were they silently to acquiesce in principlesand doctrines attempted to be maintained in all those answers, that of Virginia onlyexcepted. * * *
* * *RESOLVED, That this commonwealth considers the federal union, upon the terms andfor the purposes specified in the late compact, as conducive to the liberty and happinessof the several states: That it does now unequivocally declare its attachment to theUnion, and to that compact, agreeable to its obvious and real intention, and will beamong the last to seek its dissolution: That if those who administer the generalgovernment be permitted to transgress the limits fixed by that compact, by a totaldisregard to the special delegations of power therein contained, annihilation of the stategovernments, and the erection upon their ruins, of a general consolidated government,will be the inevitable consequence: That the principle and construction contended forby sundry of the state legislatures, that the general government is the exclusive judgeof the extent of the powers delegated to it, stop nothing short of despotism; since thediscretion of those who adminster the government, and not the constitution, would bethe measure of their powers: That the several states who formed that instrument, beingsovereign and independent, have the unquestionable right to judge of its infraction; andthat a nullification, by those sovereignties, of all unauthorized acts done under colourof that instrument, is the rightful remedy: That this commonwealth does upon the mostdeliberate reconsideration declare, that the said alien and sedition laws, are in theiropinion, palpable violations of the said constitution; and however cheerfully it may bedisposed to surrender its opinion to a majority of its sister states in matters of ordinaryor doubtful policy; yet, in momentous regulations like the present, which so vitallywound the best rights of the citizen, it would consider a silent acquiesecence as highlycriminal: That although this commonwealth as a party to the federal compact; will bowto the laws of the Union, yet it does at the same time declare, that it will not now, norever hereafter, cease to oppose in a constitutional manner, every attempt from whatquarter soever offered, to violate that compact:
AND FINALLY, in order that no pretexts or arguments may be drawn from a supposedacquiescence on the part of this commonwealth in the constitutionality of those laws,and be thereby used as precedents for similar future violations of federal compact; thiscommonwealth does now enter against them, its SOLEMN PROTEST.
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[Source: http://www.yale.edu/lawweb/avalon/kenres.htm]
OHIO BLACK LAWS (1804)
Section 1. Be it enacted by the General Assembly of the State of Ohio, That from andafter the first day of June next, no black or mulatto person shall be permitted to settleor reside in this state, unless he or she shall first produce a fair certificate from somecourt within the United States, of his or her actual freedom, which certificate shall beattested by the clerk of said court, and the seal thereof annexed thereto, by said clerk.
Sec. 2. And be it further enacted, That every black or mulatto person residing withinthis state, on or before the fifth day of June, one thousand eight hundred and four, shallenter his or her name, together with the name or names of his or her children, in theclerk's office in the county in which he, she or they reside, which shall be entered onrecord by said clerk, and thereafter the clerk's certificate of such record shall besufficient evidence of his, her or their freedom; and for every entry and certificate, theperson obtaining the same shall pay to the clerk twelve and an half cents. Providednevertheless, That nothing in this act contained shall bar the lawful claim to any blackor mulatto person.
Sec. 3. And be it further enacted , That no person or persons residents of this state, shallbe permitted to hire, or in any way employ any black or mulatto person, unless suchblack or mulatto person shall have one of the certificates as aforesaid * * *.
Sec. 4. And be it further enacted , That if any person or persons shall harbour or secretany black or mulatto person, the property of any person whatever, or shall in any wisehinder or prevent the lawful owner or owners from retaking and possessing his or herblack or mulatto servant or servants, shall, upon conviction thereof, by indictment orinformation, be be fined in any sum not less than ten nor more than fifty dollars, at thediscretion of the court, one-half thereof for the use of the informer and the other half forthe use of the state.
* * * Sec. 6. And be it further enacted , That in case any person or persons, his or their agentor agents, claiming any black or mulatto person that now are or hereafter may be in thisstate, may apply, upon making satisfactory proof that such black or mulatto person orpersons is the property of him or her who applies, to any associate judge or justice of thepeace within this state, the associate judge or justice is hereby empowered and required,by his precept, to direct the sheriff or constable to arrest such black or mulatto personor persons and deliver the same in the county or township where such officers shallreside, to the claimant or claimants or his or their agent or agents, for which service thesheriff or constable shall receive such compensation as they are entitled to receive inother cases for similar services.
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Sec. 7. And be it further enacted, That any person or persons who shall attempt toremove, or shall remove from this state, or who shall aid and assist in removing,contrary to the provisions of this act, any black or mulatto person or persons, withoutfirst proving as hereinbefore directed, that he, she or they, is or are legally entitled soto do, shall, on conviction thereof before any court having cognizance of the same, forfeitand pay the sum of one thousand dollars, one-half to the use of the informer and theother half to the use of the state, to be recovered by action of debt, qui tam , orindictment, and shall moreover be liable to the action of the party injured.
[Source: http://afroamhistory.about.com/library/blohio_blacklaws.htm]
AMENDMENTS TO THE CONSTITUTION PROPOSED BY THE HARTFORD CONVENTION (1814)
Therefore resolved.-That it be and hereby is recommended to the Legislatures of theseveral States represented in this Convention to adopt all such measures as may benecessary effectually to protect the citizens of said States from the operation and effectsof all acts which have been or may be passed by the Congress of the United States,which shall contain provisions, subjecting the militia or other citizens to forcible drafts,conscriptions, or impressments, not authorized by the Constitution of the United States
Resolved.-That it be and hereby is recommended to the said Legislatures, to authorizean immediate and earnest application to be made to the Government of the UnitedStates, requesting their consent to some arrangement, whereby the said States may,separately or in concert, be empowered to assume upon themselves the defense of theirterritory against the enemy, and a reasonable portion of the taxes, collected within saidStates, may be paid into the respective treasuries thereof, and appropriated to thepayment of the balance due said States, and to the future defense of the same. Theamount so paid into the said treasuries to be credited, and the disbursements made asaforesaid to be charged to the United States.
Resolved.-That it be, and it hereby is, recommended to the Legislatures of the aforesaidStates, to pass laws (where it has not already been done) authorizing the Governors orCommanders-in Chief of their militia to make detachments from the same, or to formvoluntary corps, as shall be most convenient and conformable to their Constitutions,and to cause the same to be well armed equipped and disciplined, and held in readinessfor service * * *.
Resolved.-That the following amendments of the Constitution of the United States, berecommended to the States as aforesaid, to be proposed by them for adoption by theState Legislatures, and, in such cases as may be deemed expedient, by a Conventionchosen by the people of each State.
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And it is further recommended, that the said States shall persevere in their efforts toobtain such amendments, until the same shall be effected.
First.-Representatives and direct taxes shall be apportioned among the several Stateswhich may be included within this union, according to their respective numbers of freepersons, including those bound to serve for a term of years, and excluding Indians nottaxed, and all other persons.
Second.-No new State shall be admitted into the union by Congress in virtue of thepower granted by the Constitution, without the concurrence of two-thirds of bothHouses.
Third.-Congress shall not have power to lay any embargo on the ships or vessels of thecitizens of the United States, in the ports or harbors thereof, for more than sixty days.
Fourth.-Congress shall not have power, without the concurrence of two-thirds of bothHouses, to interdict the commercial intercourse between the United States and anyforeign nation or the dependencies thereof.
Fifth.-Congress shall not make or declare war, or authorize acts of hostility against anyforeign nation, without the concurrence of two-thirds of both Houses, except such actsof hostility be in defense of the territories of the United States when actually invaded.
Sixth.-No person who shall hereafter be naturalized, shall be eligible as a member of theSenate or House of Representatives of the United States, nor capable of holding anycivil office under the authority of the United States.
Seventh.-The same person shall not be elected President of the United States a secondtime; nor shall the President be elected from the same State two terms in succession.
Resolved.-That if the application of these States to the government of the United States,recommended in a foregoing Resolution, should be unsuccessful, and peace should notbe concluded and the defense of these States should be neglected, as it has been sincethe commencement of the war, it will in the opinion of this Convention be expedient forthe Legislatures of the several States to appoint Delegates to another Convention, tomeet at Boston, in the State of Massachusetts, on the third Thursday of June next withsuch powers and instructions as the exigency of a crisis so momentous may require.
[Source: http://www.yale.edu/lawweb/avalon/amerdoc/hartconv.htm]
SLAVE CODES OF THE STATE OF GEORGIA (1848)
SEC. I. CAPITAL OFFENCES.
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1. Capital crimes when punished with death.
The following shall be considered as capital offences, when committed by a slave or freeperson of color: insurrection, or an attempt to excite it; committing a rape, or attemptingit on a free white female; murder of a free white person, or murder of a slave or freeperson of color, or poisoning of a human being; every and each of these offences shall,on conviction, be punished with death.
2. When punished by death, or at discretion of the court.
And the following, also, shall be considered as capital offences, when committed by aslave or free person of color: assaulting a free white person with intent to murder, orwith a weapon likely to produce death; maiming a free white person; burglary, or arsonof any description; also, any attempt to poison a human being; every and each of theseoffences shall, on conviction, be punished with death, or such other punishment as thecourt in their judgement shall think most proportionate to the offence, and best promotethe object of the law, and operate as a preventive for like offences in future.
3. Punishment for manslaughter.
And in case a verdict of manslaughter shall be found by the jury, the punishment shallbe by whipping, at the discretion of the court, and branded on the cheek with the letterM.
4. Punishment of slaves for striking white persons.
If any slave shall presume to strike any white person, such slave upon trial andconviction before the justice or justices, according to the direction of this act, shall forthe first offence suffer such punishment as the said justice or justices shall in his ortheir discretion think fit, not extending to life or limb; and for the second offence, sufferdeath: but in case any such slave shall grievously wound, maim , or bruise any whiteperson, though it shall be only the first offence, such slave shall suffer death.
5. When the striking a white person justifiable.
Provided always, that such striking, wounding, maiming, or bruising, be not done by thecommand, and in defense of the person or property of the owner or other person havethe care and government of such slave, in which case the slave shall be wholly excused,and the owner or other person having the care and government of such slave, shall beanswerable, as if the act has been committed by himself.
6. Punishment for burning or attempting to burn houses in a town.
The willful and malicious burning or setting fire to, or attempting to burn a house in a
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city, town, or village, when committed by a slave or free person of color, shall bepunished with death.
7. Punishment for burning or attempting to burden houses in the country.
The willful and malicious burning a dwelling house on a farm or plantation, orelsewhere, (not in a city, town or village) or the setting fire thereto, in the nighttime,when the said house is actually occupied by a person or persons, with the intent to burnthe same, when committed by a slave or free person of color, shall be punished by death.
* * *9. Punishment of free persons of color for inveigling slaves.
If any free person of color commits the offence of inveigling or enticing away any slaveor slaves, for the purpose of, and with the intention to aid and assist such slave or slavesleaving the service of his or their owner or owners, or in going to another state, suchperson so offending shall, for each and every such offence, on conviction, be confined inthe penitentiary at hard labor for one.
10. Punishment for circulating incendiary documents.
If any slave, Negro, mustizoe, or free person of color, or any other person, shall circulate,bring, or cause to be circulated or brought into this state, or aid or assist in any manner,or be instrumental in aiding or assisting in the circulation or bringing into this state,or in any manner concerned in any written or printed pamphlet, paper, or circular, forthe purpose of exciting to insurrection, conspiracy, or resistance among the slaves,Negroes, or free persons of color of this state, against their owners or the citizens of thisstate, the said person or persons offending against this section of this act, shall bepunished with death.
SEC. II. MINOR OFFENCES.
11. Punishment for teaching slaves or free persons of color to read.
If any slave, Negro, or free person of color, or any white person, shall teach any otherslave, Negro, or free person of color, to read or write either written or printedcharacters, the said free person of color or slave shall be punished by fine and whipping,or fine or whipping, at the discretion of the court.
* * *13. Punishment of slaves for harboring slaves.
If any free person or any slave shall harbor, conceal, or entertain any slave that shall
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run away, or shall be charged or accused of any criminal matter, every free Negro,mulatto, and mustizoe, and every slave that shall harbor, conceal, or entertain any suchslave, being duly convicted thereof according to the direction of this act, if a slave, shallsuffer such corporeal punishment, not extending to life or limb, as the justice or justiceswho shall try such slave shall in his or their discretion think fit; and if a free person,shall forfeit the sum of thirty shillings for the first day, and three shillings for every daysuch slave shall have been absent from his or her owner or employer, to be recoveredand applied as in this act hereafter directed.
14. Punishment of free persons of color for harboring slaves.
All free persons of color within this state, who shall harbor, conceal, or entertain a slaveor slaves who shall be charged or accused or any criminal matter, or shall be a runaway,shall, upon conviction (in addition to the penalty already provided for in said section),be subject to the same punishment as slaves are under said section of the above recitedact. 15. Constables authorized to search suspected premises for fugitive slaves.
Any lawful constable having reason to suspect that runaway slaves, or such Negroeswho may be charged or accused of any criminal offence, are harbored, concealed, orentertained in the house or houses of such slaves or free persons of color, they or any ofthem are authorized to enter such houses, and make search for the said runaway orrunaways, or accused criminal or criminals.
16. Persons of color not allowed to preach or exhort without written license.
No person of color, whether free or slave, shall be allowed to preach to, exhort, or joinin any religious exercise with any persons of color, either free or slave, there being morethat seven persons of color present. * * *
* * *23. Offences not defined, how punished.
All other offences committed by a slave or free person of color, either against personsor property, or against another slave or person of color, shall be punished at thediscretion of the court before whom such slave or person of color shall be tired, suchcourt having in view the principles of humanity in passing sentence, and in no case shallthe same extend to life or limb.
* * *SEC. III. EVIDENCE.
40. Persons considered competent witnesses.
On the trial of a slave or free person of color, any witness shall be sworn who believesin God and a future state of rewards and punishments.
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* * *[Source: http://www.toptags.com/aama/docs/geocodes.htm]
DOUGLAS E. ABRAMS, A VERY SPECIAL PLACE IN LIFE: THE HISTORY OF JUVENILE JUSTICE IN MISSOURI 27-36 (2003)
From 1854 to 1929, a few private eastern child protective agencies * * *relocat[ed] as many as a quarter of a million destitute children from eastern slums tohomes in rural Missouri and other midwestern states. This sustained migration wasthe now almost forgotten “orphan trains,” which left a legacy as the nation’s firstsustained experiment with foster care for dependent children.
The orphan trains’ 75-year run began in New York City, which had the greatestmass poverty in the United States in the early 1850s, and the widest gulf between richand poor. Industrialism and essentially unregulated European immigration into thenation’s largest port of call had produced the most squalid slums and the largestpopulation of street children Americans had ever seen. In 1849, the city’s police chiefreported that 3,000 children, nearly 1% of the city’s population, were homeless with noplace to sleep but in the streets and alleys, under stairwells or in abandoned buildings.
Enter Charles Loring Brace, a social worker from a comfortable Connecticutfamily who found the children’s asylums destructive and unnecessary for healthychildren. Fresh from studies at the Union Theological Seminary, the twenty-seven-year-old Brace created the Children’s Aid Society (CAS) in 1853 to provide shelter andeducation for New York’s homeless and abandoned children.
Private philanthropy could not build asylums fast enough to house New YorkCity’s booming population of homeless and neglected children. One winter, Bracereported seeing small homeless boys piled together to keep warm under the stairs ofprinting offices, and two little boys sleeping in the Harlem Bridge’s iron tube. “To sleepin boxes, or under stairways, or in hay-barges on the coldest winter nights, for a merechild, was hard enough,” he wrote, “but often to have no food, to be kicked and cuffedby the older ruffians, and shoved about by the police, standing barefooted and in ragsunder doorways as the winter storm raged, and to know that in all the great city therewas not a single door open with welcome to the little rover – this was harder.”
Brace developed a plan, born of both altruism and necessity. Cash-strapped andwith its shelter overflowing in 1854, the CAS began sending trainloads of these childrenfrom the City’s most abject slums westward because, as Brace put it, “[t]he cultivatorsof the soil are in America our most solid and intelligent class.”
Legal barriers to massive relocation of poor children were nonexistent in the1850s. With children viewed as legal incompetents in domestic matters and almost astheir parents’ property, relocation raised no serious objection in either the sending or
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receiving states that courts had not heard from the children themselves, or from adultsrepresenting them. Parents of the orphan train riders were also essentially voicelessbecause they were near or beyond the brink of destitution, unlikely to complain toauthorities or receive the law’s sympathetic ear if they did.
Also nonexistent were practical barriers to the orphan trains. For most of themid- to late nineteenth century, the general public in the sending states did not knowabout the mass migration because poor immigrant children often fell through thecracks. Most states did not regularly record births until after World War I. Publicschool authorities did not systematically track children. Adoption laws were new andinfrequently used, and Social Security numbers and the instantaneous mass media werestill decades away.
Wealthy citizens in the sending states who knew about the orphan trainsgenerally supported relocation wholeheartedly, at least partly because they wereunwilling to finance local care. Theodore Roosevelt, Sr. (the future President’s father)and other well-heeled philanthropists believed that relocation was for the children’s owngood. Relocation was also seen as good of the cities which feared the children’s pettythievery and sensed that mass child poverty would breed mass adult crime later on.
In 1872, Brace wrote an autobiography whose provocative title, The DangerousClasses of New York, demonstrated his own perception of the orphan trains asinsurance against future crime. The Children’s Aid Society circulated a flyer that spokeof “draining the city of these children.” Even New York’s Association for theImprovement of the Condition of the Poor, generally hostile to relocating the urban poor,acknowledged in 1858 that “relief of our overburdened city of its pauperism, bymigration to the country is a very popular idea.”
By the 1860s, other nonprofit relief organizations copied the CAS and beganoperating orphan trains from eastern slums to farms, mostly in the nation’s heartland.One was the New England Home For Little Wanderers, based in Boston, another citystruggling with pockets of abject poverty. Caring for infants and young children werethe Sisters of Charity of St. Vincent de Paul, who established the New York FoundlingAsylum in 1869. Later known as the New York Foundling Hospital, the asylum calledits migrations “Mercy Trains.” The Sisters of Charity even placed a cradle in theasylum lobby so mothers could safely abandon their babies in anonymity.
By the time Missouri’s last recorded orphan train left Trenton in 1929, the CASand the other private agencies had relocated as many as 250,000 destitute city children.St. Louis was often a gateway to the west, as children arriving there would be placedon separate trains for various destinations. Thousands of these children found newhomes on Missouri farms * * *.
The name “orphan trains” is actually a misnomer because nearly half the
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estimated quarter million young riders were not orphans. They had at least one livingparent, unemployed, sick with cholera or other disease, violent, alcoholic, drug addictedor simply too poor to support their families, even with earnings from their children’slabor. The urban poor had no social safety net -- no unemployment insurance, workers’compensation, extended medical care insurance, maximum hours laws or otherprotections that awaited twentieth century legislation.
Some parents abandoned their children to the Children’s Aid Society, oftenanonymously in swaddling clothes on doorsteps or other public places. Other orphantrain riders had run away and were living on the street, including some children bornout of wedlock in an era when Americans did not look kindly on “bastards” or theirunmarried, often young and destitute, parents. Some riders came to the Societythemselves and sought help. Still other riders were turned over to the CAS by lawenforcement authorities after being picked up for begging, vagrancy, thievery,prostitution or other crimes. Without their parents’ knowledge or consent, some riderswere simply taken off the streets or relocated from overcrowded orphanages becausefood was scarce and begging common in private institutions like the New York HomeFor Friendless Boys and the Brooklyn Benevolent Society. Some parents werereportedly coerced into surrendering their children.
Brace and most of the orphan trains’ other operators truly believed westwardmigration from urban squalor to rural open spaces would benefit the needy children.Many of these urban social workers disdained the children’s poor parents as much asthey disdained asylums and other institutions, but the workers were certainly not theonly Americans during the Gilded Age who found harsh industrialism repulsive,yearned nostalgically for a simpler rural life and believed uncritically in the virtues ofhard outdoor farm work. Without meaningful federal or state involvement in childprotection, social workers who recoiled at overcrowding, disease and homelessness inthe teeming eastern slums saw little choice but to try relocating the children, one wayor another.
The orphan trains yield a compelling story. Trainloads of children, often with noidea why they were on board or where they were going, would depart from New Yorkand other eastern cities with agents of the CAS or other sending organization.Inquisitive children were often simply told they were going to “take a trip.” The entireprocess almost certainly inspired fear and trepidation in the hearts and minds of citychildren suddenly uprooted from their families, sometimes without farewells. Travelingalone hundreds of miles to unknown destinations across rural landscape unlikeanything they had ever seen, older children sensed they would never return.
The orphan trains would make well-publicized stops along the way in midwesternrural train stations, auditoriums, general stores and meeting halls. These whistle-stopssuited Missouri well because, except in the south central and southeast parts of thestate, railroads linked almost all moderately sized towns and were responsible for the
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emergence of the state’s four largest cities, St. Louis, Kansas City, St. Joseph andSpringfield.
Some orphan train children were “tagged” before their eastern departure, givena number to wear on their clothing that matched a number held by a family at themidwestern stop. The matched family could take the child on arrival, but would sufferno consequence if they reneged at the last minute because the child did not meet theirexpectations.
Most orphan train riders were untagged, so first impressions mattered. Theprearranged train stops were attended by large crowds of townspeople who wanted tolook the children over. To make the children look more appealing, agents on the trainwould clean and dress them up in new clothes, sometimes the only garments theyowned. Older children were sometimes told to demonstrate any skill they might have,such as singing or dancing. Children would be led off the train to line up for thetownspeoples’ inspection on a platform and see whether they would be chosen. “We’dstop in these little towns and get out of the trains, and they’d interview us,” said onerider decades later, “It was kind of like a cattle auction. If they liked us, they wouldtake us.” “They would look you over pretty good,” sometimes even prodding the child,feeling his muscles and checking his teeth for good health if the family was looking foran extra hand to work the farm.
In 2002, Elizabeth Wilde recalled her experience on the Greenfield Opera Houseplatform in Greene County when she was five years old in 1919. “We were all so gol-darn tired, and this preacher got up and said, ‘These children are real tired. And they’rehungry. If anyone in this crowd will take one of these children and give them dinner,then you and your wife talk it over. And if you want to keep ‘em, we’ll put your namedown and give you three weeks to try ‘em out.’” “It was just like taking a car out andtesting it,” said Ms. Wilde, who acknowledged that she was better off in Missouri thanshe would have been if she had remained in New York City.
Siblings were routinely separated with little second thought. “We used to watchgroups of three or four little brothers and sisters holding on to one another and justcrying on the train because one of their siblings had just been adopted at the last stop,”one rider said years later. “I had a hold of little Johnny” on the platform, another riderrecalled of his brother, “but they pried us loose.”
Townspeople would pick and choose among the children. The ones selected wouldgo home with their new parents to rural surroundings unlike anything they had everseen before. Parents could return the children to the Society within a year if things didnot work out as planned, and some children did indeed have to make more than one tripwestward. Aside from adoption, receiving states had no legal mechanisms for assuringthe welfare of the child left within their borders.
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Little thought was given to the fragile sensibilities of rejected children. Childrennot selected at a particular stop, often because they were smaller and might not behardy workers, would repeat the inspection process at the next stop until a match wasmade. Children not selected by the last stop might be returned to New York, perhapsto repeat the trip on another orphan train all over again. “Can you imagine being thelast one?,” a rider’s daughter said years later.
* * * What became of the orphan train riders? Many found loving homes with
midwestern families who desperately wanted a child, either because they could not haveone of their own or because they had lost a child in an era when infant and childmortality was considerably higher than today. Other riders faced abuse or led difficultchildhoods with families seeking little more than free farm labor in days when suchlabor was scarce and modern farm machinery was unknown. Children were seen asminiature adults expected to earn their keep, and hard work was seen as a cure forcharacter flaws that had assertedly afflicted the child’s family with poverty to beginwith. Some riders were transferred informally from family to family free from legalscrutiny because Missouri did not require court approval for transfers of children until1917.
Many CAS riders were born Catholic to immigrant Irish, German and Italianparents, or born Jewish to eastern Europeans once the new immigration began in the1880s. Many of these children were raised Protestant once they arrived at theirdestinations. Because scarcely any black children were included on the trains, NewYork’s black community sought to serve these children through such organizations asthe Colored Orphan Asylum.
Few orphan train riders were ever formally adopted by their new midwesternfamilies. The children’s selection and later care and upbringing ordinarily wentunmonitored because modern mass communication and state social welfare agencieswere still years away. The sending societies could not afford to supervise the newparents’ promises to provide education and church attendance, and in any eventgenerally lacked personnel trained and experienced in supervision. The children’s cityof birth, their natural parents and the sending societies themselves never heard frommost of the riders again. Riders’ letters to their natural parents generally wentundelivered.
Brace himself seemed unconcerned about the loose procedures, and unmindfulthat most of his pint-sized immigrants had not yet reached their teens. “The children,”he said matter-of-factly, “are free to leave if ill-treated or dissatisfied, and the farmerscan dismiss them if they find them useless or otherwise ill-suited.” Brace also presumedfancifully that the children and their new parents were contracting parties on an equalfooting. “The employers [Brace’s words] agree to send the children to school, and, ofcourse, to treat them kindly. Beyond this there is no agreement and . . . the relation isleft much to the feeling of both parties.”
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What was Missouri’s attitude about the orphan trains? The official record issketchy, but it appears that the essentially rural state welcomed the influx of free laborat the beginning, when the state placed high priority on recruiting a rural workforcethrough immigration. * * *
Missouri lost many men and much property during the Civil War and, withuncultivated agricultural land covering more than half the state, competed mightily toattract immigrants from the east to help recover from the conflict. * * *
* * *By the end of the nineteenth century, midwestern states began losing patience
with what the U.S. Children’s Bureau would indelicately call the eastern states’ practiceof sending “the social waste of their congestion” westward on the orphan trains. * * *
Missouri criminalized child-importation in 1901. The law prohibited personsfrom bringing into the state a child “having any contagious or incurable disease or beingof feeble mind or vicious character.” Out-of-state associations were required toguarantee the State Board of Charities and Corrections that they would place no suchchild in the state, and that they would promptly remove any child who became a publiccharge within five years after being brought into the state.
Missouri’s 1901 legislation pulled no punches. A blunt emergency clauseprovided for immediate effectiveness because “the New York children’s aid society ispouring car loads of children into the state without properly supervising them, therebyburdening our commonwealth.” Some questions arose about the constitutionality ofstate restrictions on children’s free movement, but Missouri courts had no occasion toprovide answers. The state received $3000 bonds from the New York Children’s AidSociety and the New York Foundling Asylum in 1901 and 1910 respectively. The StateBoard of Charities and Corrections began requiring quarterly reports from out-of-statechild placing societies, but enforcement efforts went no further.
* * * The orphan trains ended in 1929, casualties of child welfare programs and othersocial forces in the sending and receiving states alike. Sending states began creatingnew programs to aid poor families in their own homes. Where family distress made in-home care unfeasible, foster care enabled sending states to place children locally.Court-approved adoption became a more palatable local alternative to distantrelocation.
Receiving states began losing sentiment for poor eastern children when theydeveloped their own local poverty once the western frontier closed late in the nineteenthcentury. Child labor and compulsory education laws made it difficult to get work fromorphan train riders. The need for inexpensive farm labor declined when economicdistress hit family farms and the rural heartland in the early twenties, even before the1929 stock market crash devastated the rest of the nation.
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* * * All the while, the orphan trains remained an obscure footnote in Americanhistory. Few history books today even mention their seventy-five-year run, and fewschoolchildren hear the stories. * * *
In the 1980s, as the number of living orphan train riders dwindled with thepassage of decades, some riders began speaking at public gatherings and meeting hallsand holding annual reunions. Between 1990 and 2002, twelve reunions were held inMissouri – five in Jefferson City, five in Trenton, and one each in Columbia and Monett.The state had an elaborate orphan train exhibit at the Capitol in Jefferson City in 2000.The verdict of history, and of the riders themselves, remains mixed. Like ElizabethWilde, many riders recognized that they had a better life in Missouri once they left thesqualid urban ghettoes of their birth. Other riders found their childhood journey asource of lasting embarrassment and took their stories to the grave, reluctant to sharetheir experiences even with their own children and grandchildren.
The orphan train riders and their descendants have enriched life in the Missouricommunities that became their new homes. Stories of their essentially forced massmigration nonetheless argue persuasively for paying careful attention to the quality ofthe foster care programs that remove children from distressed families today. Idealismdoubtlessly motivated many of the orphan train operators, and many children * * *found better lives in Missouri and other midwestern states. The physical and emotionalhardships imposed on other riders nonetheless remains part of the calculus. Thesehardships teach what can happen when children are removed from their homes withoutcareful consideration of reasonable alternatives, when foster parents are not carefullyscreened, when the children’s living conditions are not reasonably monitored afterplacement, and when courts do not participate meaningfully in the process before andafter placement.
SENECA FALLS CONVENTION DECLARATION OF SENTIMENTS (1848)
When, in the course of human events, it becomes necessary for one portion of the familyof man to assume among the people of the earth a position different from that whichthey have hitherto occupied, but one to which the laws of nature and of nature's Godentitle them, a decent respect to the opinions of mankind requires that they shoulddeclare the causes that impel them to such a course.
We hold these truths to be self-evident: that all men and women are created equal; thatthey are endowed by their Creator with certain inalienable rights; that among these arelife, liberty, and the pursuit of happiness; that to secure these rights governments areinstituted, deriving their just powers from the consent of the governed. Whenever anyform of government becomes destructive of these ends, it is the right of those who sufferfrom it to refuse allegiance to it, and to insist upon the institution of a new government,laying its foundation on such principles, and organizing its powers in such form, as to
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them shall seem most likely to effect their safety and happiness. Prudence, indeed, willdictate that governments long established should not be changed for light and transientcauses; and accordingly all experience hath shown that mankind are more disposed tosuffer, while evils are sufferable, than to right themselves by abolishing the forms towhich they were accustomed. But when a long train of abuses and usurpations,pursuing invariably the same object, evinces a design to reduce them under absolutedespotism, it is their duty to throw off such government, and to provide new guards fortheir future security. Such has been the patient sufferance of the women under thisgovernment, and such is now the necessity which constrains them to demand the equalstation to which they are entitled.
The history of mankind is a history of repeated injuries and usurpations on the part ofman toward woman, having in direct object the establishment of an absolute tyrannyover her. To prove this, let facts be submitted to a candid world.
He has never permitted her to exercise her inalienable right to the elective franchise.
He has compelled her to submit to laws, in the formation of which she had no voice.
He has withheld from her rights which are given to the most ignorant and degradedmen--both natives and foreigners.
Having deprived her of this first right of a citizen, the elective franchise, thereby leavingher without representation in the halls of legislation, he has oppressed her on all sides.
He has made her, if married, in the eye of the law, civilly dead.
He has taken from her all right in property, even to the wages she earns.
He has made her, morally, an irresponsible being, as she can commit many crimes withimpunity, provided they be done in the presence of her husband. In the covenant ofmarriage, she is compelled to promise obedience to her husband, he becoming to allintents and purposes, her master--the law giving him power to deprive her of herliberty, and to administer chastisement.
He has so framed the laws of divorce, as to what shall be the proper causes, and in caseof separation, to whom the guardianship of the children shall be given, as to be whollyregardless of the happiness of women--the law, in all cases, going upon a falsesupposition of the supremacy of man, and giving all power into his hands.After depriving her of all rights as a married woman, if single, and the owner ofproperty, he has taxed her to support a government which recognizes her only when herproperty can be made profitable to it.
He has monopolized nearly all the profitable employments, and from those she is
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permitted to follow, she receives but a scanty remuneration.
He closes against her all the avenues to wealth and distinction which he considers mosthonorable to himself. As a teacher of theology, medicine, or law, she is not known.
He has denied her the facilities for obtaining a thorough education, all colleges beingclosed against her.
He allows her in Church, as well as State, but a subordinate position, claiming Apostolicauthority for her exclusion from the ministry, and, with some exceptions, from anypublic participation in the affairs of the Church.
He has created a false public sentiment by giving to the world a different code of moralsfor men and women, by which moral delinquencies which exclude women from society,are not only tolerated, but deemed of little account in man.
He has usurped the prerogative of Jehovah himself, claiming it as his right to assign forher a sphere of action, when that belongs to her conscience and to her God.
He has endeavored, in every way that he could, to destroy her confidence in her ownpowers, to lessen her self-respect, and to make her willing to lead a dependent andabject life.
Now, in view of this entire disfranchisement of one-half the people of this country, theirsocial and religious degradation--in view of the unjust laws above mentioned, andbecause women do feel themselves aggrieved, oppressed, and fraudulently deprived oftheir most sacred rights, we insist that they have immediate admission to all the rightsand privileges which belong to them as citizens of the United States.
In entering upon the great work before us, we anticipate no small amount ofmisconception, misrepresentation, and ridicule; but we shall use every instrumentalitywithin our power to effect our object. We shall employ agents, circulate tracts, petitionthe State and National legislatures, and endeavor to enlist the pulpit and the press inour behalf. We hope this Convention will be followed by a series of Conventionsembracing every part of the country.
[Source: E.C. Stanton, S.B. Anthony and M.J. Gage, eds., History of Women's Suffrage,vol. 1 (1887), 70.]
SOJOURNER TRUTH, AIN’T I A WOMAN?(Women's Convention, Akron, Ohio, 1851)
Well, children, where there is so much racket there must be something out of kilter. Ithink that 'twixt the negroes of the South and the women at the North, all talking about
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rights, the white men will be in a fix pretty soon. But what's all this here talking about?
That man over there says that women need to be helped into carriages, and lifted overditches, and to have the best place everywhere. Nobody ever helps me into carriages, orover mud-puddles, or gives me any best place! And ain't I a woman? Look at me! Lookat my arm! I have ploughed and planted, and gathered into barns, and no man couldhead me! And ain't I a woman? I could work as much and eat as much as a man - whenI could get it - and bear the lash as well! And ain't I a woman? I have borne thirteenchildren, and seen most all sold off to slavery, and when I cried out with my mother'sgrief, none but Jesus heard me! And ain't I a woman?
Then they talk about this thing in the head; what's this they call it? [member ofaudience whispers, "intellect"] That's it, honey. What's that got to do with women'srights or negroes' rights? If my cup won't hold but a pint, and yours holds a quart,wouldn't you be mean not to let me have my little half measure full?
Then that little man in black there, he says women can't have as much rights as men,'cause Christ wasn't a woman! Where did your Christ come from? Where did your Christcome from? From God and a woman! Man had nothing to do with Him.
If the first woman God ever made was strong enough to turn the world upside down allalone, these women together ought to be able to turn it back , and get it right side upagain! And now they is asking to do it, the men better let them.
Obliged to you for hearing me, and now old Sojourner ain't got nothing more to say.
FREDERICK DOUGLASS, THE MEANING OF JULY FOURTH FOR THE NEGRO (1852)
Fellow Citizens, I am not wanting in respect for the fathers of this republic. The signersof the Declaration of Independence were brave men. They were great men, too -- greatenough to give frame to a great age. It does not often happen to a nation to raise, at onetime, such a number of truly great men. The point from which I am compelled to viewthem is not, certainly, the most favorable; and yet I cannot contemplate their greatdeeds with less than admiration. They were statesmen, patriots and heroes, and for thegood they did, and the principles they contended for, I will unite with you to honor theirmemory.* * *
* * * Fellow-citizens, pardon me, allow me to ask, why am I called upon to speak hereto-day? What have I, or those I represent, to do with your national independence? Arethe great principles of political freedom and of natural justice, embodied in thatDeclaration of Independence, extended to us? and am I, therefore, called upon to bringour humble offering to the national altar, and to confess the benefits and express devoutgratitude for the blessings resulting from your independence to us?
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Would to God, both for your sakes and ours, that an affirmative answer could betruthfully returned to these questions! Then would my task be light, and my burdeneasy and delightful. For who is there so cold, that a nation's sympathy could not warmhim? Who so obdurate and dead to the claims of gratitude, that would not thankfullyacknowledge such priceless benefits? Who so stolid and selfish, that would not give hisvoice to swell the hallelujahs of a nation's jubilee, when the chains of servitude had beentorn from his limbs? I am not that man. In a case like that, the dumb might eloquentlyspeak, and the "lame man leap as an hart."
But such is not the state of the case. I say it with a sad sense of the disparity betweenus. I am not included within the pale of glorious anniversary! Your high independenceonly reveals the immeasurable distance between us. The blessings in which you, thisday, rejoice, are not enjoyed in common. The rich inheritance of justice, liberty,prosperity and independence, bequeathed by your fathers, is shared by you, not by me.The sunlight that brought light and healing to you, has brought stripes and death to me.This Fourth July is yours, not mine. You may rejoice, I must mourn. To drag a man infetters into the grand illuminated temple of liberty, and call upon him to join you injoyous anthems, were inhuman mockery and sacrilegious irony. Do you mean, citizens,to mock me, by asking me to speak to-day? If so, there is a parallel to your conduct. Andlet me warn you that it is dangerous to copy the example of a nation whose crimes,towering up to heaven, were thrown down by the breath of the Almighty, burying thatnation in irrevocable ruin! I can to-day take up the plaintive lament of a peeled andwoe-smitten people!
* * *
Fellow-citizens, above your national, tumultuous joy, I hear the mournful wail ofmillions! whose chains, heavy and grievous yesterday, are, to-day, rendered moreintolerable by the jubilee shouts that reach them. If I do forget, if I do not faithfullyremember those bleeding children of sorrow this day, "may my right hand forget hercunning, and may my tongue cleave to the roof of my mouth!" To forget them, to passlightly over their wrongs, and to chime in with the popular theme, would be treasonmost scandalous and shocking, and would make me a reproach before God and theworld. My subject, then, fellow-citizens, is American slavery. I shall see this day and itspopular characteristics from the slave's point of view. Standing there identified with theAmerican bondman, making his wrongs mine, I do not hesitate to declare, with all mysoul, that the character and conduct of this nation never looked blacker to me than onthis 4th of July! Whether we turn to the declarations of the past, or to the professionsof the present, the conduct of the nation seems equally hideous and revolting. Americais false to the past, false to the present, and solemnly binds herself to be false to thefuture. Standing with God and the crushed and bleeding slave on this occasion, I will,in the name of humanity which is outraged, in the name of liberty which is fettered, inthe name of the constitution and the Bible which are disregarded and trampled upon,dare to call in question and to denounce, with all the emphasis I can command,everything that serves to perpetuate slavery ‹ the great sin and shame of America! "Iwill not equivocate; I will not excuse"; I will use the severest language I can command;and yet not one word shall escape me that any man, whose judgment is not blinded by
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prejudice, or who is not at heart a slaveholder, shall not confess to be right and just.
But I fancy I hear some one of my audience say, "It is just in this circumstance that youand your brother abolitionists fail to make a favorable impression on the public mind.Would you argue more, an denounce less; would you persuade more, and rebuke less;your cause would be much more likely to succeed." But, I submit, where all is plainthere is nothing to be argued. What point in the anti-slavery creed would you have meargue? On what branch of the subject do the people of this country need light? Must Iundertake to prove that the slave is a man? That point is conceded already. Nobodydoubts it. The slaveholders themselves acknowledge it in the enactment of laws for theirgovernment. They acknowledge it when they punish disobedience on the part of theslave. There are seventy-two crimes in the State of Virginia which, if committed by ablack man (no matter how ignorant he be), subject him to the punishment of death;while only two of the same crimes will subject a white man to the like punishment.What is this but the acknowledgment that the slave is a moral, intellectual, andresponsible being? The manhood of the slave is conceded. It is admitted in the fact thatSouthern statute books are covered with enactments forbidding, under severe fines andpenalties, the teaching of the slave to read or to write. When you can point to any suchlaws in reference to the beasts of the field, then I may consent to argue the manhood ofthe slave. When the dogs in your streets, when the fowls of the air, when the cattle onyour hills, when the fish of the sea, and the reptiles that crawl, shall be unable todistinguish the slave from a brute, then will I argue with you that the slave is a man!
For the present, it is enough to affirm the equal manhood of the Negro race. Is it notastonishing that, while we are ploughing, planting, and reaping, using all kinds ofmechanical tools, erecting houses, constructing bridges, building ships, working inmetals of brass, iron, copper, silver and gold; that, while we are reading, writing andciphering, acting as clerks, merchants and secretaries, having among us lawyers,doctors, ministers, poets, authors, editors, orators and teachers; that, while we areengaged in all manner of enterprises common to other men, digging gold in California,capturing the whale in the Pacific, feeding sheep and cattle on the hill-side, living,moving, acting, thinking, planning, living in families as husbands, wives and children,and, above all, confessing and worshipping the Christian's God, and looking hopefullyfor life and immortality beyond the grave, we are called upon to prove that we are men!
Would you have me argue that man is entitled to liberty? that he is the rightful ownerof his own body? You have already declared it. Must I argue the wrongfulness ofslavery? Is that a question for Republicans? Is it to be settled by the rules of logic andargumentation, as a matter beset with great difficulty, involving a doubtful applicationof the principle of justice, hard to be understood? How should I look to-day, in thepresence of Americans, dividing, and subdividing a discourse, to show that men havea natural right to freedom? speaking of it relatively and positively, negatively andaffirmatively. To do so, would be to make myself ridiculous, and to offer an insult toyour understanding. There is not a man beneath the canopy of heaven that does notknow that slavery is wrong for him.
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What, am I to argue that it is wrong to make men brutes, to rob them of their liberty,to work them without wages, to keep them ignorant of their relations to their fellowmen, to beat them with sticks, to flay their flesh with the lash, to load their limbs withirons, to hunt them with dogs, to sell them at auction, to sunder their families, to knockout their teeth, to burn their flesh, to starve them into obedience and submission totheir masters? Must I argue that a system thus marked with blood, and stained withpollution, is wrong? No! I will not. I have better employment for my time and strengththan such arguments would imply.
What, then, remains to be argued? Is it that slavery is not divine; that God did notestablish it; that our doctors of divinity are mistaken? There is blasphemy in thethought. That which is inhuman, cannot be divine! Who can reason on such aproposition? They that can, may; I cannot. The time for such argument is passed.
At a time like this, scorching irony, not convincing argument, is needed. O! had I theability, and could reach the nation's ear, I would, to-day, pour out a fiery stream ofbiting ridicule, blasting reproach, withering sarcasm, and stern rebuke. For it is notlight that is needed, but fire; it is not the gentle shower, but thunder. We need thestorm, the whirlwind, and the earthquake. The feeling of the nation must be quickened;the conscience of the nation must be roused; the propriety of the nation must bestartled; the hypocrisy of the nation must be exposed; and its crimes against God andman must be proclaimed and denounced.
What, to the American slave, is your 4th of July? I answer; a day that reveals to him,more than all other days in the year, the gross injustice and cruelty to which he is theconstant victim. To him, your celebration is a sham; your boasted liberty, an unholylicense; your national greatness, swelling vanity; your sounds of rejoicing are empty andheartless; your denunciation of tyrants, brass fronted impudence; your shouts of libertyand equality, hollow mockery; your prayers and hymns, your sermons andthanksgivings, with all your religious parade and solemnity, are, to Him, mere bombast,fraud, deception, impiety, and hypocrisy -- a thin veil to cover up crimes which woulddisgrace a nation of savages. There is not a nation on the earth guilty of practices moreshocking and bloody than are the people of the United States, at this very hour.
* * *
[Source: The Life and Writings of Frederick Douglass, Volume II, Pre-Civil War Decade1850-1860 (Philip S. Foner ed. 1950).]
SCOTT, A MAN OF COLOR v. EMERSON15 Mo. 576.
Supreme Court of Missouri, 1852.
ERROR to the St. Louis Circuit Court..
NORRIS, for Plaintiff in error. [Asserting that the Missouri compromise was unconstitutional:]
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* * *Suppose Congress should pass a law declaring that the keeping of black horses,
a species of property existing in Missouri and recognized by the Constitution of theUnited States and of Missouri, "shall be and the same is hereby prohibited in theterritory of Utah." The same government that passes the law, through the executivedepartment, orders an officer, who unfortunately owns a black horse, that he canneither sell, lose nor give away, to the territory of Utah, and he takes with him his saidhorse (I admit that the horse, if there were horse abolitionists there, would get hisfreedom in Utah); but when he comes back here and asks you to give him up, would youdo it? This is perhaps a strong and coarse illustration, but is it not a case in point?
* * *
SCOTT, J.
This was an action instituted by Dred Scott against Irene Emerson, the wife andadministratrix of Dr. John Emerson, to try his right to freedom. His claim is based uponthe fact that his late master held him in servitude in the State of Illinois, and also inthat territory ceded by France to the United States, under the name of Louisiana, whichlies north of 36 degrees 30 minutes, north latitude, not included within the limits of theState of Missouri.
* * ** * * On almost three sides the State of Missouri is surrounded by free soil. If one
of our slaves touch that soil with his master's assent, he becomes entitled to hisfreedom. Considering the numberless instances in which those living along an extremefrontier would have occasion to occupy their slaves beyond our boundary, how hardwould it be if our courts should liberate all the slaves who should thus be employed.How unreasonable to ask it. If a master sends his slave to hunt his horses or cattlebeyond the boundary, shall he thereby be liberated? But our courts, it is said, will notgo so far. If not go the entire length, why go at all? The obligation to enforce to theproper degree, is as obligatory as to enforce any degree. * * *
* * *In States and Kingdoms in which slavery is the least countenanced, and where
there is a constant struggle against its existence, it is admitted law, that if a slaveaccompanies his master to a country in which slavery is prohibited, and remains therea length of time, if during his continuance in such country there is no act ofmanumission decreed by its courts, and he afterwards returns to his master's domicil,where slavery prevails, he has no right to maintain a suit founded upon a claim ofpermanent freedom. * * *
As to the consequences of slavery, they are much more hurtful to the master thanthe slave. There is no comparison between the slave in the United States and the cruel,uncivilized negro in Africa. When the condition of our slaves is contrasted with the stateof their miserable race in Africa; when their civilization, intelligence and instruction inreligious truths are considered, and the means now employed to restore them to thecountry from which they have been torn, bearing with them the blessings of civilizedlife, we are almost persuaded, that the introduction of slavery amongst us was, in the
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providence of God, who makes the evil passions of men subservient to His own glory, ameans of placing that unhappy race within the pale of civilized nations.
Judge Ryland concurring, the judgment will be reversed, and the causeremanded.
Gamble, J., dissenting opinion. [omitted]
DRED SCOTT v. SANDFORD60 U.S. 393.
Supreme Court of the United States, 1856.
Mr. Chief Justice TANEY delivered the opinion of the court.
* * *The question is simply this: Can a negro, whose ancestors were imported into this
country, and sold as slaves, become a member of the political community formed andbrought into existence by the Constitution of the United States, and as such becomeentitled to all the rights, and privileges, and immunities, guarantied by that instrumentto the citizen? One of which rights is the privilege of suing in a court of the UnitedStates in the cases specified in the Constitution.
It will be observed, that the plea applies to that class of persons only whoseancestors were negroes of the African race, and imported into this country, and sold andheld as slaves. The only matter in issue before the court, therefore, is, whether thedescendants of such slaves, when they shall be emancipated, or who are born of parentswho had become free before their birth, are citizens of a State, in the sense in which theword citizen is used in the Constitution of the United States. And this being the onlymatter in dispute on the pleadings, the court must be understood as speaking in thisopinion of that class only, that is, of those persons who are the descendants of Africanswho were imported into this country, and sold as slaves.
The situation of this population was altogether unlike that of the Indian race.The latter, it is true, formed no part of the colonial communities, and neveramalgamated with them in social connections or in government. But although they wereuncivilized, they were yet a free and independent people, associated together in nationsor tribes, and governed by their own laws. Many of these political communities weresituated in territories to which the white race claimed the ultimate right of dominion.But that claim was acknowledged to be subject to the right of the Indians to occupy itas long as they thought proper, and neither the English nor colonial Governmentsclaimed or exercised any dominion over the tribe or nation by whom it was occupied, norclaimed the right to the possession of the territory, until the tribe or nation consentedto cede it. These Indian Governments were regarded and treated as foreignGovernments, as much so as if an ocean had separated the red man from the white; andtheir freedom has constantly been acknowledged, from the time of the first emigration
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to the English colonies to the present day, by the different Governments whichsucceeded each other. Treaties have been negotiated with them, and their alliancesought for in war; and the people who compose these Indian political communities havealways been treated as foreigners not living under our Government. It is true that thecourse of events has brought the Indian tribes within the limits of the United Statesunder subjection to the white race; and it has been found necessary, for their sake aswell as our own, to regard them as in a state of pupilage, and to legislate to a certainextent over them and the territory they occupy. But they may, without doubt, like thesubjects of any other foreign Government, be naturalized by the authority of Congress,and become citizens of a State, and of the United States; and if an individual shouldleave his nation or tribe, and take up his abode among the white population, he wouldbe entitled to all the rights and privileges which would belong to an emigrant from anyother foreign people. * * *
* * * The question before us is, whether the class of persons described in the pleain abatement [slaves] compose a portion of this people, and are constituent membersof this sovereignty? We think they are not, and that they are not included, and were notintended to be included, under the word ‘‘citizens‘‘ in the Constitution, and can thereforeclaim none of the rights and privileges which that instrument provides for and securesto citizens of the United States. On the contrary, they were at that time considered asa subordinate and inferior class of beings, who had been subjugated by the dominantrace, and, whether emancipated or not, yet remained subject to their authority, and hadno rights or privileges but such as those who held the power and the Government mightchoose to grant them.
* * *
It is very clear, therefore, that no State can, by any act or law of its own, passedsince the adoption of the Constitution, introduce a new member into the politicalcommunity created by the Constitution of the United States. It cannot make him amember of this community by making him a member of its own. And for the samereason it cannot introduce any person, or description of persons, who were not intendedto be embraced in this new political family, which the Constitution brought intoexistence, but were intended to be excluded from it.
The question then arises, whether the provisions of the Constitution, in relationto the personal rights and privileges to which the citizen of a State should be entitled,embraced the negro African race, at that time in this country, or who might afterwardsbe imported, who had then or should afterwards be made free in any State; and to putit in the power of a single State to make him a citizen of the United States, and enduehim with the full rights of citizenship in every other State without their consent? Doesthe Constitution of the United States act upon him whenever he shall be made freeunder the laws of a State, and raised there to the rank of a citizen, and immediatelyclothe him with all the privileges of a citizen in every other State, and in its own courts?
The court think the affirmative of these propositions cannot be maintained. Andif it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within
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the meaning of the Constitution of the United States, and, consequently, was notentitled to sue in its courts.
* * *In the opinion of the court, the legislation and histories of the times, and the
language used in the Declaration of Independence, show, that neither the class ofpersons who had been imported as slaves, nor their descendants, whether they hadbecome free or not, were then acknowledged as a part of the people, nor intended to beincluded in the general words used in that memorable instrument.
It is difficult at this day to realize the state of public opinion in relation to thatunfortunate race, which prevailed in the civilized and enlightened portions of the worldat the time of the Declaration of Independence, and when the Constitution of the UnitedStates was framed and adopted. But the public history of every European nationdisplays it in a manner too plain to be mistaken.
They had for more than a century before been regarded as beings of an inferiororder, and altogether unfit to associate with the white race, either in social or politicalrelations; and so far inferior, that they had no rights which the white man was boundto respect; and that the negro might justly and lawfully be reduced to slavery for hisbenefit. He was bought and sold, and treated as an ordinary article of merchandise andtraffic, whenever a profit could be made by it. This opinion was at that time fixed anduniversal in the civilized portion of the white race. It was regarded as an axiom inmorals as well as in politics, which no one thought of disputing, or supposed to be opento dispute; and men in every grade and position in society daily and habitually actedupon it in their private pursuits, as well as in matters of public concern, withoutdoubting for a moment the correctness of this opinion.
And in no nation was this opinion more firmly fixed or more uniformly acted uponthan by the English Government and English people. They not only seized them on thecoast of Africa, and sold them or held them in slavery for their own use; but they tookthem as ordinary articles of merchandise to every country where they could make aprofit on them, and were far more extensively engaged in this commerce than any othernation in the world.
The opinion thus entertained and acted upon in England was naturallyimpressed upon the colonies they founded on this side of the Atlantic. And, accordingly,a negro of the African race was regarded by them as an article of property, and held,and bought and sold as such, in every one of the thirteen colonies which united in theDeclaration of Independence, and afterwards formed the Constitution of the UnitedStates. The slaves were more or less numerous in the different colonies, as slave laborwas found more or less profitable. But no one seems to have doubted the correctness ofthe prevailing opinion of the time.
* * *[The Court then discussed a 1717 Maryland 1717 law and a 1705 Massachusetts
law.] * * * [T]he language in which they are framed, as well as the provisions containedin them, show, too plainly to be misunderstood, the degraded condition of this unhappy
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race. They were still in force when the Revolution began, and are a faithful index to thestate of feeling towards the class of persons of whom they speak, and of the position theyoccupied throughout the thirteen colonies, in the eyes and thoughts of the men whoframed the Declaration of Independence and established the State Constitutions andGovernments. They show that a perpetual and impassable barrier was intended to beerected between the white race and the one which they had reduced to slavery, andgoverned as subjects with absolute and despotic power, and which they then lookedupon as so far below them in the scale of created beings, that intermarriages betweenwhite persons and negroes or mulattoes were regarded as unnatural and immoral, andpunished as crimes, not only in the parties, but in the person who joined them inmarriage. And no distinction in this respect was made between the free negro ormulatto and the slave, but this stigma, of the deepest degradation, was fixed upon thewhole race.
* * *The language of the Declaration of Independence is equally conclusive:
* * ** * * [I]t is too clear for dispute, that the enslaved African race were not intended
to be included, and formed no part of the people who framed and adopted thisdeclaration; for if the language, as understood in that day, would embrace them, theconduct of the distinguished men who framed the Declaration of Independence wouldhave been utterly and flagrantly inconsistent with the principles they asserted; andinstead of the sympathy of mankind, to which they so confidently appealed, they wouldhave deserved and received universal rebuke and reprobation.
Yet the men who framed this declaration were great men -- high in literaryacquirements -- high in their sense of honor, and incapable of asserting principlesinconsistent with those on which they were acting. They perfectly understood themeaning of the language they used, and how it would be understood by others; and theyknew that it would not in any part of the civilized world be supposed to embrace thenegro race, which, by common consent, had been excluded from civilized Governmentsand the family of nations, and doomed to slavery. They spoke and acted according to thethen established doctrines and principles, and in the ordinary language of the day, andno one misunderstood them. The unhappy black race were separated from the white byindelible marks, and laws long before established, and were never thought of or spokenof except as property, and when the claims of the owner or the profit of the trader weresupposed to need protection.
This state of public opinion had undergone no change when the Constitution wasadopted, as is equally evident from its provisions and language.
The brief preamble sets forth by whom it was formed, for what purposes, and forwhose benefit and protection. It declares that it is formed by the people of the UnitedStates; that is to say, by those who were members of the different political communitiesin the several States; and its great object is declared to be to secure the blessings ofliberty to themselves and their posterity. It speaks in general terms of the people of theUnited States, and of citizens of the several States, when it is providing for the exercise
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of the powers granted or the privileges secured to the citizen. It does not define whatdescription of persons are intended to be included under these terms, or who shall beregarded as a citizen and one of the people. It uses them as terms so well understood,that no further description or definition was necessary.
But there are two clauses in the Constitution which point directly and specificallyto the negro race as a separate class of persons, and show clearly that they were notregarded as a portion of the people or citizens of the Government then formed.
One of these clauses reserves to each of the thirteen States the right to importslaves until the year 1808, if it thinks proper. And the importation which it thussanctions was unquestionably of persons of the race of which we are speaking, as thetraffic in slaves in the United States had always been confined to them. And by theother provision the States pledge themselves to each other to maintain the right ofproperty of the master, by delivering up to him any slave who may have escaped fromhis service, and be found within their respective territories. By the first above-mentioned clause, therefore, the right to purchase and hold this property is directlysanctioned and authorized for twenty years by the people who framed the Constitution.And by the second, they pledge themselves to maintain and uphold the right of themaster in the manner specified, as long as the Government they then formed shouldendure. And these two provisions show, conclusively, that neither the description ofpersons therein referred to, nor their descendants, were embraced in any of the otherprovisions of the Constitution; for certainly these two clauses were not intended toconfer on them or their posterity the blessings of liberty, or any of the personal rightsso carefully provided for the citizen.
No one of that race had ever migrated to the United States voluntarily; all ofthem had been brought here as articles of merchandise. The number that had beenemancipated at that time were but few in comparison with those held in slavery; andthey were identified in the public mind with the race to which they belonged, andregarded as a part of the slave population rather than the free. It is obvious that theywere not even in the minds of the framers of the Constitution when they were conferringspecial rights and privileges upon the citizens of a State in every other part of the Union.
Indeed, when we look to the condition of this race in the several States at thetime, it is impossible to believe that these rights and privileges were intended to beextended to them.
It is very true, that in that portion of the Union where the labor of the negro racewas found to be unsuited to the climate and unprofitable to the master, but few slaveswere held at the time of the Declaration of Independence; and when the Constitutionwas adopted, it had entirely worn out in one of them, and measures had been taken forits gradual abolition in several others. But this change had not been produced by anychange of opinion in relation to this race; but because it was discovered, fromexperience, that slave labor was unsuited to the climate and productions of these States:for some of the States, where it had ceased or nearly ceased to exist, were actively
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engaged in the slave trade, procuring cargoes on the coast of Africa, and transportingthem for sale to those parts of the Union where their labor was found to be profitable,and suited to the climate and productions. And this traffic was openly carried on, andfortunes accumulated by it, without reproach from the people of the States where theyresided. And it can hardly be supposed that, in the States where it was thencountenanced in its worst form -- that is, in the seizure and transportation -- the peoplecould have regarded those who were emancipated as entitled to equal rights withthemselves.
* * *We need not refer, on this point, particularly to the laws of the present
slaveholding States. Their statute books are full of provisions in relation to this class,in the same spirit with the Maryland law which we have before quoted. They havecontinued to treat them as an inferior class, and to subject them to strict policeregulations, drawing a broad line of distinction between the citizen and the slave races,and legislating in relation to them upon the same principle which prevailed at the timeof the Declaration of Independence. As relates to these States, it is too plain forargument, that they have never been regarded as a part of the people or citizens of theState, nor supposed to possess any political rights which the dominant race might notwithhold or grant at their pleasure. * * *
And if we turn to the legislation of the States where slavery had worn out, ormeasures taken for its speedy abolition, we shall find the same opinions and principlesequally fixed and equally acted upon. * * *
The legislation of the States therefore shows, in a manner not to be mistaken, theinferior and subject condition of that race at the time the Constitution was adopted, andlong afterwards, throughout the thirteen States by which that instrument was framed;and it is hardly consistent with the respect due to these States, to suppose that theyregarded at that time, as fellow-citizens and members of the sovereignty, a class ofbeings whom they had thus stigmatized; whom, as we are bound, out of respect to theState sovereignties, to assume they had deemed it just and necessary thus to stigmatize,and upon whom they had impressed such deep and enduring marks of inferiority anddegradation; or, that when they met in convention to form the Constitution, they lookedupon them as a portion of their constituents, or designed to include them in theprovisions so carefully inserted for the security and protection of the liberties and rightsof their citizens. It cannot be supposed that they intended to secure to them rights, andprivileges, and rank, in the new political body throughout the Union, which every oneof them denied within the limits of its own dominion. More especially, it cannot bebelieved that the large slaveholding States regarded them as included in the wordcitizens, or would have consented to a Constitution which might compel them to receivethem in that character from another State. For if they were so received, and entitled tothe privileges and immunities of citizens, it would exempt them from the operation ofthe special laws and from the police regulations which they considered to be necessaryfor their own safety. It would give to persons of the negro race, who were recognized ascitizens in any one State of the Union, the right to enter every other State wheneverthey pleased, singly or in companies, without pass or passport, and without obstruction,
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to sojourn there as long as they pleased, to go where they pleased at every hour of theday or night without molestation, unless they committed some violation of law for whicha white man would be punished; and it would give them the full liberty of speech inpublic and in private upon all subjects upon which its own citizens might speak; to holdpublic meetings upon political affairs, and to keep and carry arms wherever they went.And all of this would be done in the face of the subject race of the same color, both freeand slaves, and inevitably producing discontent and insubordination among them, andendangering the peace and safety of the State.
* * ** * * Congress has repeatedly legislated upon the same construction of the
Constitution that we have given. * * *Three laws, two of which were passed almostimmediately after the Government went into operation, will be abundantly sufficientto show this. The two first are particularly worthy of notice, because many of the menwho assisted in framing the Constitution, and took an active part in procuring itsadoption, were then in the halls of legislation, and certainly understood what theymeant when they used the words ‘‘people of the United States' and ‘‘citizen’’ in that well-considered instrument.
The first of these acts is the naturalization law, which was passed at the secondsession of the first Congress, March 26, 1790, and confines the right of becoming citizens“to aliens being free white persons.”
* * *Another of the early laws of which we have spoken, is the first militia law, which
was passed in 1792, at the first session of the second Congress. The language of this lawis equally plain and significant with the one just mentioned. It directs that every ‘‘freeable-bodied white male citizen‘‘ shall be enrolled in the militia. The word white isevidently used to exclude the African race, and the word ‘‘citizen‘‘ to excludeunnaturalized foreigners; the latter forming no part of the sovereignty, owing it noallegiance, and therefore under no obligation to defend it. The African race, however,born in the country, did owe allegiance to the Government, whether they were slave orfree; but it is repudiated, and rejected from the duties and obligations of citizenship inmarked language.
The third act to which we have alluded is even still more decisive; it was passedas late as 1813, and it provides: ‘‘That from and after the termination of the war inwhich the United States are now engaged with Great Britain, it shall not be lawful toemploy, on board of any public or private vessels of the United States, any person orpersons except citizens of the United States, or persons of color, natives of the UnitedStates.
Here the line of distinction is drawn in express words. Persons of color, in thejudgment of Congress, were not included in the word citizens, and they are describedas another and different class of persons, and authorized to be employed, if born in theUnited States.
* * ** * * [U]pon a full and careful consideration of the subject, the court is of opinion,
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that, upon the facts stated in the plea in abatement, Dred Scott was not a citizen ofMissouri within the meaning of the Constitution of the United States, and not entitledas such to sue in its courts; and, consequently, that the Circuit Court had no jurisdictionof the case, and that the judgment on the plea in abatement is erroneous.
* * *The principle of law is too well settled to be disputed, that a court can give no
judgment for either party, where it has no jurisdiction; and if, upon the showing of Scotthimself, it appeared that he was still a slave, the case ought to have been dismissed, andthe judgment against him and in favor of the defendant for costs, is, like that on theplea in abatement, erroneous, and the suit ought to have been dismissed by the CircuitCourt for want of jurisdiction in that court.
* * *[T]here can be no doubt as to the jurisdiction of this court to revise the judgment
of a Circuit Court, and to reverse it for any error apparent on the record, whether it bethe error of giving judgment in a case over which it had no jurisdiction, or any othermaterial error; and this, too, whether there is a plea in abatement or not.
* * *The correction of one error in the court below does not deprive the appellate court
of the power of examining further into the record, and correcting any other materialerrors which may have been committed by the inferior court. There is certainly no ruleof law -- nor any practice-nor any decision of a court -- which even questions this powerin the appellate tribunal. On the contrary, it is the daily practice of this court, and of allappellate courts where they reverse the judgment of an inferior court for error, tocorrect by its opinions whatever errors may appear on the record material to the case;and they have always held it to be their duty to do so where the silence of the courtmight lead to misconstruction or future controversy, and the point has been relied onby either side, and argued before the court.
* * *We proceed, therefore, to inquire whether the facts relied on by the plaintiff
entitled him to his freedom. * * *
The act of Congress, upon which the plaintiff relies, declares that slavery andinvoluntary servitude, except as a punishment for crime, shall be forever prohibited inall that part of the territory ceded by France, under the name of Louisiana, which liesnorth of thirty-six degrees thirty minutes north latitude, and not included within thelimits of Missouri. And the difficulty which meets us at the threshold of this part of theinquiry is, whether Congress was authorized to pass this law under any of the powersgranted to it by the Constitution; for if the authority is not given by that instrument,it is the duty of this court to declare it void and inoperative, and incapable of conferringfreedom upon any one who is held as a slave under the have of any one of the States.
* * *Now, as we have already said in an earlier part of this opinion, upon a different
point, the right of property in a slave is distinctly and expressly affirmed in theConstitution. The right to traffic in it, like an ordinary article of merchandise andproperty, was guarantied to the citizens of the United States, in every State that might
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desire it, for twenty years. And the Government in express terms is pledged to protectit in all future time, if the slave escapes from his owner. This is done in plain words-tooplain to be misunderstood. And no word can be found in the Constitution which givesCongress a greater power over slave property, or which entitles property of that kindto less protection that property of any other description. The only power conferred is thepower coupled with the duty of guarding and protecting the owner in his rights.
Upon these considerations, it is the opinion of the court that the act of Congresswhich prohibited a citizen from holding and owning property of this kind in the territoryof the United States north of the line therein mentioned, is not warranted by theConstitution, and is therefore void; and that neither Dred Scott himself, nor any of hisfamily, were made free by being carried into this territory; even if they had been carriedthere by the owner, with the intention of becoming a permanent resident.
* * *Upon the whole, therefore, it is the judgment of this court, that it appears by the
record before us that the plaintiff in error is not a citizen of Missouri, in the sense inwhich that word is used in the Constitution; and that the Circuit Court of the UnitedStates, for that reason, had no jurisdiction in the case, and could give no judgment init. Its judgment for the defendant must, consequently, be reversed, and a mandateissued, directing the suit to be dismissed for want of jurisdiction.
[Concurring and dissenting opinions omitted]
ALABAMA ORDINANCE OF SECESSION (January 11, 1861)
An Ordinance to dissolve the union between the State of Alabama and the other Statesunited under the compact styled "The Constitution of the United States of America"
Whereas, the election of Abraham Lincoln and Hannibal Hamlin to the offices ofpresident and vice-president of the United States of America, by a sectional party,avowedly hostile to the domestic institutions and to the peace and security of the peopleof the State of Alabama, preceded by many and dangerous infractions of the constitutionof the United States by many of the States and people of the Northern section, is apolitical wrong of so insulting and menacing a character as to justify the people of theState of Alabama in the adoption of prompt and decided measures for their future peaceand security, therefore:
Be it declared and ordained by the people of the State of Alabama, in Conventionassembled, That the State of Alabama now withdraws, and is hereby withdrawn fromthe Union known as "the United States of America," and henceforth ceases to be one ofsaid United States, and is, and of right ought to be a Sovereign and Independent State.
Sec 2. Be it further declared and ordained by the people of the State of Alabama inConvention assembled, That all powers over the Territory of said State, and over thepeople thereof, heretofore delegated to the Government of the United States of America,be and they are hereby withdrawn from said Government, and are hereby resumed and
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vested in the people of the State of Alabama.
And as it is the desire and purpose of the people of Alabama to meet the slaveholdingStates of the South, who may approve such purpose, in order to frame a provisional aswell as permanent Government upon the principles of the Constitution of the UnitedStates,
Be it resolved by the people of Alabama in Convention assembled, That the people of theStates of Delaware, Maryland, Virginia, North Carolina, South Carolina, Florida,Georgia, Mississippi, Louisiana, Texas, Arkansas, Tennessee, Kentucky and Missouri,be and are hereby invited to meet the people of the State of Alabama, by theirDelegates, in Convention, on the 4th day of February, A.D., 1861, at the city ofMontgomery, in the State of Alabama, for the purpose of consulting with each other asto the most effectual mode of securing concerted and harmonious action in whatevermeasures may be deemed most desirable for our common peace and security.
And be it further resolved, That the President of this Convention, be and is herebyinstructed to transmit forthwith a copy of the foregoing Preamble, Ordinance, andResolutions to the Governors of the several States named in said resolutions.
Done by the people of the State of Alabama, in Convention assembled, at Montgomery,on this, the eleventh day of January, A.D. 1861.
[Source: http://www.confederatemilitaryhistory.com/reference/documents/ordinances/al.php]
CONFEDERATE STATES OF AMERICADECLARATION OF THE IMMEDIATE CAUSES WHICH
INDUCE AND JUSTIFY THE SECESSION OF SOUTH CAROLINA FROM THE FEDERAL UNION
(December 24, 1860)
The people of the State of South Carolina, in Convention assembled, on the 26th day ofApril, A.D., 1852, declared that the frequent violations of the Constitution of the UnitedStates, by the Federal Government, and its encroachments upon the reserved rights ofthe States, fully justified this State in then withdrawing from the Federal Union; butin deference to the opinions and wishes of the other slaveholding States, she forbore atthat time to exercise this right. Since that time, these encroachments have continuedto increase, and further forbearance ceases to be a virtue.
And now the State of South Carolina having resumed her separate and equal placeamong nations, deems it due to herself, to the remaining United States of America, andto the nations of the world, that she should declare the immediate causes which haveled to this act.
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In the year 1765, that portion of the British Empire embracing Great Britain, undertookto make laws for the government of that portion composed of the thirteen AmericanColonies. A struggle for the right of self-government ensued, which resulted, on the 4thof July, 1776, in a Declaration, by the Colonies, "that they are, and of right ought to be,FREE AND INDEPENDENT STATES; and that, as free and independent States, theyhave full power to levy war, conclude peace, contract alliances, establish commerce, andto do all other acts and things which independent States may of right do."
They further solemnly declared that whenever any "form of government becomesdestructive of the ends for which it was established, it is the right of the people to alteror abolish it, and to institute a new government." * * *
In pursuance of this Declaration of Independence, each of the thirteen States proceededto exercise its separate sovereignty; adopted for itself a Constitution, and appointedofficers for the administration of government in all its departments -- Legislative,Executive and Judicial. For purposes of defense, they united their arms and theircounsels; and, in 1778, they entered into a League known as the Articles ofConfederation, whereby they agreed to entrust the administration of their externalrelations to a common agent, known as the Congress of the United States, expresslydeclaring, in the first Article "that each State retains its sovereignty, freedom andindependence, and every power, jurisdiction and right which is not, by thisConfederation, expressly delegated to the United States in Congress assembled."
Under this Confederation the war of the Revolution was carried on, and on the 3rd ofSeptember, 1783, the contest ended, and a definite Treaty was signed by Great Britain,in which she acknowledged the independence of the Colonies in the following terms:"ARTICLE 1-- His Britannic Majesty acknowledges the said United States, viz: NewHampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut,New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina,South Carolina and Georgia, to be FREE, SOVEREIGN AND INDEPENDENTSTATES; that he treats with them as such; and for himself, his heirs and successors,relinquishes all claims to the government, propriety and territorial rights of the sameand every part thereof."
Thus were established the two great principles asserted by the Colonies, namely: theright of a State to govern itself; and the right of a people to abolish a Government whenit becomes destructive of the ends for which it was instituted. And concurrent with theestablishment of these principles, was the fact, that each Colony became and wasrecognized by the mother Country a FREE, SOVEREIGN AND INDEPENDENTSTATE.
* * *The parties to whom this Constitution was submitted, were the several sovereignStates; they were to agree or disagree, and when nine of them agreed the compact wasto take effect among those concurring; and the General Government, as the commonagent, was then invested with their authority.
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If only nine of the thirteen States had concurred, the other four would have remainedas they then were-- separate, sovereign States, independent of any of the provisions ofthe Constitution. In fact, two of the States did not accede to the Constitution until longafter it had gone into operation among the other eleven; and during that interval, theyeach exercised the functions of an independent nation.
By this Constitution, certain duties were imposed upon the several States, and theexercise of certain of their powers was restrained, which necessarily implied theircontinued existence as sovereign States. But to remove all doubt, an amendment wasadded, which declared that the powers not delegated to the United States by theConstitution, nor prohibited by it to the States, are reserved to the States, respectively,or to the people. * * *
Thus was established, by compact between the States, a Government with definiteobjects and powers, limited to the express words of the grant. This limitation left thewhole remaining mass of power subject to the clause reserving it to the States or to thepeople, and rendered unnecessary any specification of reserved rights.
We hold that the Government thus established is subject to the two great principlesasserted in the Declaration of Independence; and we hold further, that the mode of itsformation subjects it to a third fundamental principle, namely: the law of compact. Wemaintain that in every compact between two or more parties, the obligation is mutual;that the failure of one of the contracting parties to perform a material part of theagreement, entirely releases the obligation of the other; and that where no arbiter isprovided, each party is remitted to his own judgment to determine the fact of failure,with all its consequences.
In the present case, that fact is established with certainty. We assert that fourteen ofthe States have deliberately refused, for years past, to fulfill their constitutionalobligations, and we refer to their own Statutes for the proof.
The Constitution of the United States, in its fourth Article, provides as follows: "Noperson held to service or labor in one State, under the laws thereof, escaping intoanother, shall, in consequence of any law or regulation therein, be discharged from suchservice or labor, but shall be delivered up, on claim of the party to whom such serviceor labor may be due."
This stipulation was so material to the compact, that without it that compact would nothave been made. The greater number of the contracting parties held slaves * * *.
The same article of the Constitution stipulates also for rendition by the several Statesof fugitives from justice from the other States.
The General Government, as the common agent, passed laws to carry into effect thesestipulations of the States. For many years these laws were executed. But an increasinghostility on the part of the non-slaveholding States to the institution of slavery, has led
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to a disregard of their obligations, and the laws of the General Government have ceasedto effect the objects of the Constitution. The States of Maine, New Hampshire, Vermont,Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana,Michigan, Wisconsin and Iowa, have enacted laws which either nullify the Acts ofCongress or render useless any attempt to execute them. * * * Thus the constitutedcompact has been deliberately broken and disregarded by the non-slaveholding States,and the consequence follows that South Carolina is released from her obligation.
The ends for which the Constitution was framed are declared by itself to be "to form amore perfect union, establish justice, insure domestic tranquility, provide for thecommon defence, promote the general welfare, and secure the blessings of liberty toourselves and our posterity."
These ends it endeavored to accomplish by a Federal Government, in which each Statewas recognized as an equal, and had separate control over its own institutions. Theright of property in slaves was recognized by giving to free persons distinct politicalrights, by giving them the right to represent, and burthening them with direct taxes forthree-fifths of their slaves; by authorizing the importation of slaves for twenty years;and by stipulating for the rendition of fugitives from labor.
We affirm that these ends for which this Government was instituted have beendefeated, and the Government itself has been made destructive of them by the actionof the non-slaveholding States. Those States have assume the right of deciding upon thepropriety of our domestic institutions; and have denied the rights of propertyestablished in fifteen of the States and recognized by the Constitution; they havedenounced as sinful the institution of slavery; they have permitted open establishmentamong them of societies, whose avowed object is to disturb the peace and to eloign theproperty of the citizens of other States. They have encouraged and assisted thousandsof our slaves to leave their homes; and those who remain, have been incited byemissaries, books and pictures to servile insurrection.
For twenty-five years this agitation has been steadily increasing, until it has nowsecured to its aid the power of the common Government. Observing the forms of theConstitution, a sectional party has found within that Article establishing the ExecutiveDepartment, the means of subverting the Constitution itself. A geographical line hasbeen drawn across the Union, and all the States north of that line have united in theelection of a man to the high office of President of the United States, whose opinions andpurposes are hostile to slavery. He is to be entrusted with the administration of thecommon Government, because he has declared that that "Government cannot endurepermanently half slave, half free," and that the public mind must rest in the belief thatslavery is in the course of ultimate extinction.
This sectional combination for the submersion of the Constitution, has been aided insome of the States by elevating to citizenship, persons who, by the supreme law of theland, are incapable of becoming citizens; and their votes have been used to inauguratea new policy, hostile to the South, and destructive of its beliefs and safety.
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On the 4th day of March next, this party will take possession of the Government. It hasannounced that the South shall be excluded from the common territory, that the judicialtribunals shall be made sectional, and that a war must be waged against slavery untilit shall cease throughout the United States.
The guaranties of the Constitution will then no longer exist; the equal rights of theStates will be lost. The slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become theirenemy.
Sectional interest and animosity will deepen the irritation, and all hope of remedy isrendered vain, by the fact that public opinion at the North has invested a great politicalerror with the sanction of more erroneous religious belief.
We, therefore, the People of South Carolina, by our delegates in Convention assembled,appealing to the Supreme Judge of the world for the rectitude of our intentions, havesolemnly declared that the Union heretofore existing between this State and the otherStates of North America, is dissolved, and that the State of South Carolina has resumedher position among the nations of the world, as a separate and independent State; withfull power to levy war, conclude peace, contract alliances, establish commerce, and todo all other acts and things which independent States may of right do.
[Committee signatures]
[Source: http://www.yale.edu/lawweb/avalon/csa/scarsec.htm]
PRESIDENT ABRAHAM LINCOLNEMANCIPATION PROCLAMATION (January 1, 1863)
Whereas, on the twenty-second day of September, in the year of our Lord one thousandeight hundred and sixty-two, a proclamation was issued by the President of the UnitedStates, containing, among other things, the following, to wit:
"That on the first day of January, in the year of our Lord one thousand eight hundredand sixty-three, all persons held as slaves within any State or designated part of aState, the people whereof shall then be in rebellion against the United States, shall bethen, thenceforward, and forever free; and the Executive Government of the UnitedStates, including the military and naval authority thereof, will recognize and maintainthe freedom of such persons, and will do no act or acts to repress such persons, or anyof them, in any efforts they may make for their actual freedom.
"That the Executive will, on the first day of January aforesaid, by proclamation,designate the States and parts of States, if any, in which the people thereof,respectively, shall then be in rebellion against the United States; and the fact that anyState, or the people thereof, shall on that day be, in good faith, represented in the
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Congress of the United States by members chosen thereto at elections wherein amajority of the qualified voters of such State shall have participated, shall, in theabsence of strong countervailing testimony, be deemed conclusive evidence that suchState, and the people thereof, are not then in rebellion against the United States."
Now, therefore I, Abraham Lincoln, President of the United States, by virtue of thepower in me vested as Commander-in-Chief, of the Army and Navy of the United Statesin time of actual armed rebellion against the authority and government of the UnitedStates, and as a fit and necessary war measure for suppressing said rebellion, do, onthis first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do publicly proclaimed for the full periodof one hundred days, from the day first above mentioned, order and designate as theStates and parts of States wherein the people thereof respectively, are this day inrebellion against the United States, the following, to wit:
Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines,Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne,Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans)Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia,(except the forty-eight counties designated as West Virginia, and also the counties ofBerkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk,including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for thepresent, left precisely as if this proclamation were not issued.
And by virtue of the power, and for the purpose aforesaid, I do order and declare thatall persons held as slaves within said designated States, and parts of States, are, andhenceforward shall be free; and that the Executive government of the United States,including the military and naval authorities thereof, will recognize and maintain thefreedom of said persons.
And I hereby enjoin upon the people so declared to be free to abstain from all violence,unless in necessary self-defence; and I recommend to them that, in all cases whenallowed, they labor faithfully for reasonable wages.
And I further declare and make known, that such persons of suitable condition, will bereceived into the armed service of the United States to garrison forts, positions, stations,and other places, and to man vessels of all sorts in said service.
And upon this act, sincerely believed to be an act of justice, warranted by theConstitution, upon military necessity, I invoke the considerate judgment of mankind,and the gracious favor of Almighty God.
* * *[Source: http://www.yale.edu/lawweb/avalon/emancipa.htm]
PRESIDENT ABRAHAM LINCOLN
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GETTYSBURG ADDRESS (November, 19, 1863)
Four score and seven years ago our fathers brought forth on this continent a new nation,conceived in Liberty, and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether that nation, or any nation, soconceived and so dedicated, can long endure. We are met on a great battle-field of thatwar. We have come to dedicate a portion of that field, as a final resting place for thosewho here gave their lives that that nation might live. It is altogether fitting and properthat we should do this.
But, in a larger sense, we can not dedicate—we can not consecrate—we can nothallow—this ground. The brave men, living and dead, who struggled here, haveconsecrated it, far above our poor power to add or detract. The world will little note, norlong remember what we say here, but it can never forget what they did here. It is for usthe living, rather, to be dedicated here to the unfinished work which they who foughthere have thus far so nobly advanced. It is rather for us to be here dedicated to the greattask remaining before us — that from these honored dead we take increased devotionto that cause for which they gave the last full measure of devotion — that we herehighly resolve that these dead shall not have died in vain — that this nation, underGod, shall have a new birth of freedom — and that government of the people, by thepeople, for the people, shall not perish from the earth.
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