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In the opinion of the court, the legislation and histories of the times, and the language nsed in the Declaration of Independence, show that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included 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 that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.
They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for hia benefit. He was bought and sold, and treated as an ordinary article of merchandise and traffic, whenever a profit could be made by it. This opinion was at that time fixed and universal in the civilized portion of the white race. It was regarded as an axiom in morals as well as in politics, which no one thought of disputing, or supposed to be open to dispute; and men in every grade and position in society daily and habitually acted upon it in their private pursuits, as well as in matters of public concern, without doubting for a moment the correctness of this opinion.
And in no nation was this opinion more firmly fixed or more uniformly acted upon than by the English government and English people. They not only seized them on the coast of Africa, and sold them or held them in slavery for their own use; but they took them as ordinary articles of merchandise to every country where they could make a profit on them, and even far more extensively engaged in this commerce than any other nation in the world.
The opinion thus entertained and acted upon in England was naturally impressed 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 the Declaration of Independence, and afterwards formed the Constitution of the United States. The slaves were more or less numerous in the different colonies, as slave labor was found more or less profitable. But no one seems to have doubted the correctness of the prevailing opinion of the time. The legislation of the different colonies furnished positive and indisputable proof of this fact.
It would be tedious, in this opinion, to enumerate the various laws they passed upon this subject. It will be sufficient, as a sample of the legislation which then generally prevailed throughout the British colonies, to give the laws of two of them, one being still a large slaveholding State, and the other the first State in which slavery ceased to exist.
The Province of Maryland, in HI7, (ch. 13, s. 5,) passed a law declaring "that if any free negro or mulatto intermarry with any white woman, or any white man shall intermarry with any negro or mulatto woman, such negro or mulatto shall become a slave during life, excepting mulattoes born of white women, who, for such intermarriage, shall only become servants for seven years, to be disposed of as the justices of the county court, where such marriage so happens, shall think fit, to be applied by them toward the support of a public school within the said county. And any white man or white woman, who shall intermarry as aforesaid, with any negro or mulatto, such white man or white woman shall become a servant for or during the term of seven years, and shall be disposed of by the justices as aforesaid, and be applied to the uses aforesaid."
The other colonial law to which we refer, was passed by Massachusetts, in 1705, (ch. 6.) It is entitled "An Act for the better preventing of a spurious and mixed issue," &c, and it provides "that if any negro or mulatto shall presume to strike or smite any person of the English or other Christian nation, such negro or mulatto shall be severely whipped, at the discretion of the justice before whom the offender Bhall be convicted."
And "that none of her Majesty's English or Scottish subjects, nor of any other Christian nation within this province, shall contract matrimony with any negro or mulatto; nor shall any person duly authorized to solemnize marriage, presume to join any such in marriage, on pain of forfeiting the sum of fifty pounds, one moiety thereof to her Majesty, for and toward the support of the government within this province, and the other moiety to him or them who shall inform and sue for the same, in any of her Majesty's courts of record, within the province, by.bill, plaint, or information." ******
The language of the Declaration of Independence is equally conclusive. It begins by declaring, that "When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth the separate and equal station to which the laws of nature, and nature's God, entitled them, a decent respect for the opinions of mankind require that they should declare the causes which impel them to the separation."
It then proceeds to say: "We hold these truths to be self-evident—That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among them is life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted, deriving their just powers from the consent of the governed."
The general words, above quoted, would seem to embrace the whole human family; and if they were used in a similar instrument at this day, would be so understood. But it 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 this Declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with principles they asserted; and instead of the sympathy of mankind to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.
Yet, the men who framed this Declaration were great men—high in literary acquirements—high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not, in any part of the civilized world, be supposed to embrace the negro race, w^hich, by common cousent, had been excluded from civilized government and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrine and principles, and in the ordinary language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and laws long before established, ahd were never thought or spoken of except as property, and when the claims of the owners, or the profit of the trader, were supposed to need protection.
This state of public opinion had received or undergone no change when the Constitution was adopted, as is equally evident from its provisions and language. ******
And if we turn to the legislation of the States where slavery had worn out, or measures taken for its speedy abolition, we shall find the same opinions and principles, equally fixed and equally acted upon.
Thus, Massachusetts, in 1786, passed a law similar to the Colonial one, of which we have spoken. The law of 1786, like the law of 1705, forbids the marriage of any white person to any negro, Indian, or mulatto, and inflicts a penalty of fifty pounds upon any one who shall join them in marriage; and declares all such marriages absolutely null and void, and degrades thus the unhappy issue of the marriage, by fixing upon it the stain of bastardy. And this mark of degradation was renewed, and again impressed upon the race, in the careful and deliberate preparation of their revised code, published in 1836. This code forbids any person from joining in marriage any white person with any Indian, negro, or mulatto, and subjects the party who shall offend in this respect, to imprisonment, not exceeding six months, in the common jail, or to hard labor, and to a fine not less than fifty or more than two thousand dollars; and, like the law of 1786, it declares the marriages absolutely null and void. It will be seen that the punishment is increased by the code upon the person who shall marry them, by adding imprisonment to a pecuniary penalty.
So, too, in Connecticut. We refer more particularly to the legislation of this State, because it was not only among the first to put an end to slavery within its own territory, but was the first to fix a mark of reprobation upon the African slave trade. The law last mentioned was passed in October 1788, about nine months after the State had ratified and adopted the present Constitution of the United States; and by that law it prohibited its own citizens, under severe penalties, from engaging in the trade, and declared all policies of insurance on the vessel or cargo made in the State to be null and void. But, up to time of the adoption