Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/19

 grandmothers and aunts; yet these respected relatives are not without the pale of the Constitution. Well may Mr. Justice Curtis remark, as he does on page 574, "An argument from speculative premises, however well chosen, that the then state of opinion in the Commonwealth of Massachusetts was not consistent with the natural rights of people of color who were born on that soil, and that they were not by the Constitution of 1780 of that State admitted to the condition of citizens, would be received with surprise by the people of that State, who know their own political history."

When Chief Justice Taney, on page 415, in commenting on laws of New Hampshire, enacted in the present century, by which no one was permitted to be enrolled in the militia of the State but free white citizens, said that "nothing could more strongly mark the entire repudiation of the African race," he must for a moment have forgotten the paramount power over this subject given to congress by the Constitution, and the act of congress of 1792, (which he cites five pages later,) providing for the enrolment of only "every free ablebodied white male citizen." When he does cite that act, it is to argue from its terms that negroes were not accounted citizens by the congress of that day. To this position Mr. Justice Curtis's answer is complete: "An assumption that none but white persons are citizens would be as inconsistent with the just import of this language as that all citizens are ablebodied or males." And Mr. Justice Curtis further shows, on page 574, that free negroes were considered citizens in New Hampshire, and also in New Jersey, at the time of the adoption of the Constitution of the United States.

For a clear statement of the law of New York, as well as of the general doctrine on this subject, we cannot do better than quote from Chancellor Kent, "whose accuracy and research no one will question," as Chief Justice Taney well remarks, on page 416, in speaking of the very note from which the following passage is taken: "It is certain that the Constitution and statute law of New York, (Const, art. 2; N.Y. Revised Statutes, vol. i. p. 126, sec. 2,) speak of men of color as being citizens, and capable of being freeholders, and entitled to vote. And if, at common law, all human beings born within the ligeance of the king, and under the king's obedience, were natural born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in