superior control of the Constitution, and anterior to the adoption of that instrument, it is obvious that the inhibition in question never had and never could have any legitimate and binding force.

We may seek in vain for any power in the Convention, either to require or to accept a condition or restriction upon the cession like that insisted on—a condition inconsistent with, and destructive of, the object of the grant. The cession was, as recommended by the old Congress in 1780, made originally and completed in terms to the United States, and for the benefit of the United States: i. e., for the people, all the people, of the United States: the condition subsequently sought to be annexed in 1787, (declared, too, to be perpetual and immutable,) being contradictory to the terms and destructive of the purposes of the cession, and after the cession was consummated, and the powers of the ceding party terminated, and the rights of the grantees, the people of the United States, vested, must necessarily, so far, have been ab initio void.

With respect to the powers of the Convention to impose this inhibition, it seems to be pertinent in this place to recur to the opinion of one cotemporary with the establishment of the government, and whose distinguished services in the formation and adoption of our national charter, point him out as the artifex maximus of our federal system. James Madison, in the year 1819, speaking with reference to the prohibitory law claimed by Congress, then threatening the very existence of the Union, remarks of the language of the second clause of the third section of article fourth of the Constitution, "that it cannot be well extended beyond a power over the territory as property, and the power to make provisions really needful or necessary for the government of settlers, until ripe for admission into the Union."

Again he says, "with respect to what has taken place in

the Northwestern Territory, it may be observed, that the ordinance giving it its distinctive character on the subject of slaveholding proceeded from the old Congress, acting with the best intentions, but under a charter which contains no shadow of the authority exercised; and it remains to be decided how far the States formed in that territory, and admitted into the Union, are on a different footing from its other members as to their legislative sovereignty. As to the power of admitting new States into the federal compact, the questions offering themselves are, whether Congress can attach conditions, or the new States concur in conditions, which after admission would abridge or enlarge the constitutional rights of legislation common to other States: whether Congress can, by a compact with a new State, take power to or from itself, or place the new member above or below the equal rank and rights preserved by the others; whether all such stipulations, expressed or implied, would not be nullities, and be so pronounced when brought to a practical test. It falls within the scope of our inquiry to state the fact, that there was a proposition in the Convention to discriminate between the old and the new States by an article in the Constitution. The proposition, happily, was rejected. The effect of such a discrimination is sufficiently evident."

In support of the ordinance of 1787, there may be adduced the semblance, at least, of obligation deducible from compact, the form of assent or agreement between the grantor and grantee; but this form, or similitude, as is justly remarked by Mr. Madison, is rendered null by the absence of power or authority in the contracting parties, and by the more intrinsic and essential defect of incompatibility with the rights and avowed purposes of those parties, and with their relative duties and obligations to others. If, then, with the attendant formalities of assent, or compact, the restrictive power claimed was void as to the immediate

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, aud "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 full 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 inter

pretation from usage, 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 stripes; 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. If 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. I 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 influenced 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