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tion of life and liberty, and to acquire and enjoy property, and to pay no higher impositions than other citizens, and to pass through or reside in the state at pleasure, and to enjoy the elective franchise according to the regulations of the law of the state. But this immunity does not apply to every right, for some may belong exclusively to resident citizens under the laws of the state, and it was held, that a statute of New-Jersey confining the right of taking oysters within the waters of the state, to the actual inhabitants and residents of the state, was not an act infringing the constitution of the United States. The power to regulate the fisheries in the navigable waters of the states, remained in the states respectively, though the United States have a concurrent power, so far as concerns the free navigation of the waters.
The act of congress confines the description of aliens capable of naturalization to "free white persons." I presume this excludes the inhabitants of Africa, and their descendants; and it may become a question, to what extent persons of mixed blood are excluded, and what shades and degrees of mixture of colour disqualify an alien from application for the benefits of the act of naturalization.a Perhaps there might be difficulties also as
. By a statute of Virginia, in 1785, every person who hath one fourth part or more of negro blood, is deemed a mulatto, and that act is still in force. 4 Randolph, 631. The same rule is declared in Indiana. R. Stat. utes of Indiana, 1838. It is adjudged in South Carolina, that mulattoes are not white citizens within the meaning of the law, and persons tinged with negro blood, are said to be mulattoes. State v. Hayes, 1 Bailey's Rep. 275. The term is not precisely defined, nor the line of distinction between whites and men of colour accurately ascertained. It means a person of mixed white or European and negro descent, without defining exactly the proportions of blood. A remote taint will not degrade a person to the class of persons of colour, but a mere predominance of white blood is not sufficient to rescue a person from that class. It is held to be a question of fact, for a jury, upon the evidence of features and complexion, and reputation as to parentage, and that a distinct and risible admixture of negro blood, makes one a mulatto. If the admixture of African blood does not exceed the proportion of one eighth, the
to the copper-coloured natives of America, or the yellow or tawny races of the Asiatics, and it may well be doubted whether any of them are “white persons” within the purview of the law. It is the declared law of NewYork, South Carolina, and Tennessee, a and probably so understood in other states, that Indians are not citizens,
but distinct tribes, living under the protection of *73 the government, and, *consequently, they never
can be made citizens under the act of congress.b
person is deemed white. This is the rule in Louisiana, and in the code noir of France for her colonies, and it is deemed in Carolina a proper rule. State v. Davis, 2 Bailey's Rep. 558. With respect to India, it was the policy of the British parliament in 1833, to effect a complete identification of the Europeans and natives in the eye of the law, without regard to colour, birth, or religion. Ann. Reg. for 1833, Hist. p. 184. In Ohio, it has been held, that all persons nearer white than black are white persons within the constitution of the state. Jeffries v. Ankeny, 11 Ohio Rep. 372. 375. So by the case of Lane v. Baker, 12 Ohio R. 237, youths of negro, indian and white blood, but of more than one half white blood, are entitled under the school law in favor of white children, to the benefit of the common school fund.
a Goodell v. Jackson, 20 Johns. Rep. 693. State v. Managers of Elections for York, 1 Bailey's Rep. 215. The State v. Ross, 7 Yerger, 74.
o By an act of the legislature of New York of the 10th of April, 1843, ch. 87, 2 R. S 3d edit. 4, any native Indian may purchase, take, hold and convey lands in the same manner as a citizen, and whenever he becomes a freeholder to the value of $100, he becomes subject to taxation, and liable on contracts, and subject to the civil jurisdiction of the courts of law and equity as a citizen. This act gives to the Indians new and important privi. leges. Part of the Seneca tribe of Indians now (1843) own and occupy reservation lands in the S. W. part of the state of New-York. So the Oneida Indians, owning lands in the counties of Oneida and Madison, were enabled by the act of April 18th, 1843, ch. 185, to hold lands in severalty, and to sell and convey the same under the care of a superintendent on the part of the state. It is admitted that an Indian is a competent witness in a suit between white men. Coleman v. Doe, 4 Smedes of Marshall, 40. So by the act of Congress of March 3, 1843, ch. 101, provision is made for a just division of the lands belonging to the Stockbridge tribe of Indians in the territory of Wisconsin, among them individually, and patents to be is. sued to such individuals in severalty and in fee; and such Indians are thenceforth to be deemed citizens of the United States, with all the privileges and duties attached thereto, and the powers and usages of those Indians as a tribe, thenceforth to cease.
Before the adoption of the present constitution of the United States, the power of naturalization resided in the several states; and the constitution of New York, as it was originally passed,a required all persons born out of the United States, and naturalized by the legislature, to take an oath abjuring all foreign allegiance and subjection, in all matters, ecclesiastical as well as civil. This was intended, and so it operated, to exclude from the benefits of naturalization Roman Catholics who acknowledged the spiritual supremacy of the pope, and it was the result of former fears and prejudices (still alive and active at the commencement of our revolution) respecting the religion of the Romish church, which European history had taught us to believe was incompatible with perfect national independence, or the freedom and good order of civil society. So extremely strong, and so astonishingly fierce and unrelenting was public prejudice on this subject, in the early part of our colonial history, that we find it declared by law in the beginning of the last century, b that every Jesuit and popish priest who should continue in the colony after a given day, should be condemned to perpetual imprisonment; and if he broke prison and escaped, and was retaken, he should be put to death. That law, said Mr. Smith, the historian of the colony as late as the year 1756,c was worthy of perpetual duration !
Art. 42. • Colony Laws, vol. i. p. 38, Livingston J. Smith's edit.
• Smith's History of New York, p. 111. In the act declaring the rights and privileges of the people of the colony of New York, in 1691, all persons" prosessing faith in God by Jesus Christ, his only son," were allowed the free exercise and enjoyment of their religious profession and worship, with the exception of “persons of the Roman religion," who were not to exercise their manner of worship contrary to the laws of England. Brad. for.l's edition of the laws of New-York, 1719. As late as 1753, the legislature of Virginia passed an act extremely severe upon popish recusants, placing them under the most oppressive disabilities.
OF THE LAW CONCERNING MARRIAGE.
The primary and most important of the domestic relations, is that of husband and wife. It has its foundation in nature, and is the only lawful relation by which Providence has permitted the continuance of the human race. In every age it has had a propitious influence on the moral improvement and happiness of mankind. It is one of the chief foundations of social order. We may justly place to the credit of the institution of marriage, a great share of the blessings which flow from refinement of manners, the education of children, the sense of justice, and the cultivation of the liberal arts. In the examination of this interesting contract, I shall, in the first place, consider how a marriage may be lawfully made; and, secondly, how it may be lawfully dissolved; and, lastly, I shall take a view of the rights and duties which belong to that relation.
(1.) All persons who have not the regular use of the understanding, sufficient to deal with discretion in the
common affairs of life, as idiots and lunatics, (ex*76 cept in their lucid intervals,) *are incapable of
agreeing to any contract, and of course to that of
· The great philosophical poet of antiquity, who was, however, most absurd in much of his philosophical theory, but eminently beautiful, tender, and sublime in his poetry, supposes the civilization of mankind to have been the result of marriage and family establishments.
Castaque privatæ veneris connubia lata
Lucret. de Rer. Nat. lib. 5.
marriage. But though marriage with an idiot or lunatic be absolutely void, and no sentence of avoidance be absolutely necessary,a yet, as well for the sake of the good order of society, as for the peace of mind of all persons concerned, it is expedient that the nullity of the marriage should be ascertained and declared by the decree of a court of competent jurisdiction.b The existence and extent of mental disease, and how far it may be sufficient, by the darkness and disorder which it brings upon the human faculties, to make void the marriage contract, may sometimes be a perplexing question, extremely distressing to the injured party, and fatal to the peace and happiness of families.c Whether the relation of husband and wife lawfully exists, never should be left uncertain. Suits to annul a marriage, by reason of idiocy or lunacy, have consequently been often instituted and sustained in the spiritual courts in England. The proper tribunal for the investigation of this question, when it is brought up directly, and for the mere purpose of testing the validity of the contract, will depend upon the local institutions of every state. In those states which have equity tribunals it belongs to them,e and where there are no such tribunals distinct from the supreme courts of common law jurisdiction,
- Browning v. Peane, 2 Phillimore's Rep. 19. 69.
Hayes v. Watts, 3 Phil. Rep. 44. Sir Wm. Scott, in Pertreis v. Tondear, 1 Hagg. Cons. Rep. 138. Crump v. Morgan, 3 Iredell N. C. Eq. Rep. 91.
• There is a very interesting judicial discussion in McElroy's case, 6 Watts & Serg. 451, on the subject of lunacy, and the question is, whether the mind is deranged to such an extent as to disqualify the party from conducting himself with personal safety to himself and others, and from managing and disposing his own affairs, and discharging his relative duties.
& Ash's case, Prec. in Ch. 203. 1 Eq. Cas. Abr. 278. pl. 6. Ex parte Turing, 1 Ves. g Bea. 140. Turner v. Meyers, 1 Hagg. Consist. Rep. 414. Countess of Portsmouth v. Earl of Portsmouth, 1 Hagg. Eccl. Rep. 355. Shelford on Marriage and Divorce, p. 183—201.
• Wightman v. Wightman, 4 Johns. Ch. Rep. 343. Cramp v. Morgan, 3 Iredell, N. C. Eq. Cases. 91. In this and many other points relative to domestic rights, the English ecclesiastical law is considered as part of the common law.