subject of the ordinance, how much more unfounded must be the pretensions of such a power as derived from that source, (viz., the ordinance of 1787,) with respect to territory acquired by purchase or conquest under the supreme authority of the Constitution—territory not the subject of mere donation, but obtained in the name of all, by the combined efforts and resources of all, and with no condition annexed or pretended.

Synopsis of the case of Hobbs and others, against Fogg, in the Supreme Court of Pennsylvania, in 1837, (6 Watts, 553.)

The plaintiff below, Fogg, was a colored man, or mulatto, and offered his vote at a general election in the township of Greenfield, Luzerne county, which was refused by the Board of Election. He then brought his action to recover damages against the Board, and "to maintain his rights as a citizen and freeman of the State.” The case arose under the old Constitution, which declared that "every freeman, of the fall age of twenty-one years," &c., "shall enjoy the rights of an elector.” The present Constitution prefixes the word white to the word freeman.

The facts of the case were admitted, and the court below directed judgment for the plaintiff.

In the Supreme Court, the case was argued by Hon. John N. Conyngham and Hon. H. B. Wright, for plaintiffs in error; and by Hon. Luther Kidder and Greenough, for defendant in error. The opinion of the Court was delivered by Chief Justice Gibson, from which we make the following extract. It will be seen that it takes the same ground, as to the citizenship of the negro, as does the Dred Scott case. Gibson C. J.

But in addition to interpretation from nsage, this antecedent legislation furnishes other proofs that no colored race was party to our social


compact. As was justly remarked by President Fox, in the matter of the late contested election, our ancestors settled the province as a community of white men, whence an unconquerable prejudice of caste, which has come down to our day, insomuch that a suspicion of tint still has the unjust effect of sinking the subject of it below the common level. Consistently with this prejudice, is it to be credited that parity of rank would be allowed to such a race? Let the question be answered by the statute of 1726, which denominated it an idle and a slothful people; which directed the magistrates to bind out free negroes for laziness or vagrancy; which forbade them to harbor Indian or mulatto slaves, on pain of

ripes; which annexed to the interdict with a marriage with white, the penalty of reduction to slavery; which punished them for tippling, with stripes; and even a white person with servitude for intermarriage with a negro. Il freemen, in a political sense, were subjects of those cruel and degrading oppressions, what must have been the lot of their brethren in bondage? It is also true, that degrading positions were sometimes assigned to white men, but never as members of a caste. Insolvent debtors, to indicate the worst of them, were compelled to make satisfaction by servitude; but that was borrowed from a kindred and still less rational principle of the common law. This act of 1726, however, remained in force until it was repealed by the emancipating act of 1780; and it is irrational to believe that the progress of liberal sentiments was so rapid in the next ten years, as to produce a determination in the Convention of 1790, to raise this depressed race to the level of the white one. If such were its purpose, it is strange that the word chosen to effect it should have been the very one chosen by the Convention of 1776, to designate a white elector. "Every freeman," it is said, chap. ii, sec. 6, "of the full age of twenty-one years before the day of election, and having paid taxes during that time, shall enjoy the rights of an elector." Now if the word freeman was not potent enough to admit a free negro to suffrage under the first Constitution, it is difficult to discern a degree of magic in the intervening plan of emancipation, sufficient to give it adequate potency in the apprehension of the Convention under the second.

The only thing in the history of the Convention which casts a doubt upon the intent, is the fact, that the word white was prefixed to the word freeman in the report of the committee, and subsequently struck out; probably because it was thought superfluous, or still more probably, because it was feared respectable men of dark complexion would be often insulted at the polls, by objections to their color. have heard it said, that Mr. Gallatin sustained his motion to strike out on the latter ground. Whatever the motion, the disseverance is insufficient to warp the interpretation of a word on such settled and determinate meaning as the one which remained. A legislative body speaks to the judiciary only through its final act, and expresses its will only in the words of it; and though their meaning may be infinenced by the sense in which they have usually been applied to intrinsic matters, we cannot receive an explanation of them from what has been moved or said in debate. Were he even disposed to pry into the motives of the members, it would be impossible for him to ascertain them; and in attempting to discover the ground on which the conclusion was attained, it is not probable that a member of the majority could indicate anything that was common to all. Previous propositions are merged in the act of consummation, and the interpreter of it must look to that alone.

I have thought it fair to treat the question as it stands, affected by our own municipal regulations, without illustration from those of other States, where the condition of the race has been still less favored. Yet it is proper to say that the second section of the fourth article of the federal Constitution presents an obstacle to the political freedom of the

negro, which seems to be insuperable. It is to be remembered that citizenship as well as freedom is a constitutional qualification; and how it could be conferred so as to overbear the laws imposing countless disabilities on him in other States, is a problem of difficult solution. In this aspect the question becomes one not of intention, but of power; and of power so doubtful as to forbid the exercise of it. Every man must lament the necessity of these disabilities; but slavery is to be dealt with by those whose existence depends on the skill with which it is treated. Considerations of mere humanity, however, belong to a class with which, as judges, we have nothing to do ; and interpreting the Constitution in the spirit of our institutions, we are bound to pronounce that men of color are destitute of tile to the elective franchise. Their blood, however, may become so diluted in successive descents as to lose its distinotive character, and then both policy and justice require that previous disabilities should cease. By the amended Constitution of North Carolina, no free negro, mulatto, or free person of mixed blood, descended from negro ancestors, to the fourth generation inclusive, though one ancestor of each generation may have been a white person, shall vote for members of the legislature.

I regret to say, no similar regulation for practical parposes has been attempted here, in consequence of which every case of disputed color must be determined by no particular rule, but by the discretion of the judges, and thus a great constitutional right, even under the proposed amendments of the Constitution, will be left a sport of caprice. In conclusion, we are of opinion the court erred in directing that the plaintiff could have his action against the defendant for the rejection of his vote.

Judgment reversed.

Extract from the opinion of Judge Story.

The Supreme Court of the United States in the case of Prigg vs. the Commonwealth of Pennsylvania, 16th Peters? Rep., wherein Judge Story, in delivering the opinion of the court, says:

“It is bistorically well known that the clause in the Constitution of the United States, relating to persons owing service and labor in one State escaping into other States, was to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves, as property, in every State in the Union into which they might escape from the State where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slaveholding States; and, indeed, was so vital to the preservation of their domestic interests and institutions, that it cannot be doubted that it is constituted a fundamental article, without che adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevailing in the non-slaveholding States, by preventing them from intermeddling with, or obstructing, or abolishing the rights of the owners of slaves.


“The clause in the Constitution of the United States, relating to fugitives from labor, manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no State law or regulation can in any way qualify, regulate, control, or restrain.

* “The owner of a fugitive slave has the same right to seize, and to take him in a State to which he has escaped or fled that he had in the State from which he escaped ; and it is well known that this right to seize or recapture is universally acknowledged in all the slaveholding States. The court have not the slightest hesitation in holding, that under and in virtue of the Constitution, the owner of the

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