But for the difference which has been historically accentuated in North America between white and black which difference has inflicted much of suffering upon both races, it would not be necessary to consider such a subject as the citizenship status of the free Negro prior to 1860. Before the Constitution of the United States was amended by the addition thereto of the Fourteenth Amendment the statement that "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States" was the only definite deliverance to be found in that instrument in relation to the subject of citizenship. In other words there was no national definition of citizenship, and up to the time of the deliverance of the Dred Scott Decision in 1857, there had been no comprehensive treatment of the subject in adjudications by the Supreme Court of the United States. The mention of the term "citizens" in the Constitution in the quotation just given indicates that it had a meaning of such generally accepted significance that definition was not necessary. Presumably citizenship conveyed then, as it conveys now, an idea exactly the opposite of that conveyed by the term slavery. A slave everywhere in the world was understood to be a person who was absolved from allegiance, and was not due protection as that term is ordinarily understood, and who could not invoke ordinary legal process nor own property; a citizen was a person who owed allegiance, was entitled to protection, had the right to invoke all the processes of the law, could become the owner of property, and possibly, if not a woman or a child, exercise the right of the elective franchise. Such was the common understanding of the term citizen at the adoption of the Constitution, and such is substantially the understanding of that term at the present date. However, due to the presence of the Negro in the body politic, the exigencies of the situation suggested an interpretation of the term citizen which might not otherwise have existed, but for the presence of the Negro. The exigency grew out of the fact that toward the end of the eighteenth century and the beginning of the nineteenth there
grew into the minds of men the conception that slavery was a condition appertaining to black men alone, that color was an unmistakable proof of the condition of a slave, and that the fact that one was of African descent carried with it this inevitable social degradation. In the decisions of the courts of a number of the States we find this principle enunciated. In North Carolina the Supreme Court of that State, in 1828, decided that "The presumption of slavery arises from a black African complexion." In 1839, the Supreme Court of Indiana, in passing upon the constitutionality of the law entitled: "An act concerning free Negroes and Mulattoes and slaves," held that where a Negro laid claim to freedom the burden of proof was on him to show it inasmuch as persons of the African race were presumed to be slaves. In 1842, the Supreme Court of Ohio decided that under the law of that State "Color alone is sufficient to indicate a Negro's inability to testify against a white man. It has always been admitted that our political institutions embrace the white population only. Persons of color were not recognized as having any political existence; they had no agency in our political organizations, and possessed no political rights under it. Two or three of the States form exceptions. The constitutions of fourteen expressly exclude persons of color; and in the balance of the States they are excluded on the grounds that they were never recognized as part of the body politic." (Thatcher vs. Hawk, 4th Ohio, Rep., 351.) While this opinion expressed a widely prevalent sentiment at that time I have been unable to find a decision of any court in any of the original thirteen States north of Maryland, except Connecticut, which expresses this view. In their moral and intellectual nature the inhabitants of Connecticut exhibit many wide differences from the inhabitants of the rest of New England. These citations show how thoroughly the conception of the difference arising from the difference of color was imbedded in the mind at that time. Such instances of judicial interpretation were to be found in all of the slave States, and in those States which were carved out of the northwest territory, which Virginia ceded to the general government in 1787. In this connection it is pertinent to observe that it is the most natural thing in the world that the States carved out of this northwest territory should have followed not only the legal system of the parent State, but should have adopted many of its practices and modes of thought, and passed them on to succeeding generations.