Section 2 of the Constitution, Extends Judicial Power to All Cases, in

law and equity, "between citizens of different States, between citizens of the same State," etc. But Article iv, Section 2, declares that "citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." The plea in abatement was brought under Article iii, but all the judges, except Justice McLean, built their decision upon the word citizen as it stood in Article iv.

By the constitution of Ohio, adopted in 1851, free Negroes were not only denied the right to vote, but were excluded from the militia service. This law was not repealed until 1878.

Neither the constitution of 1802, nor that of 1851, discriminated against free Negroes in matters of education; but separate schools have been maintained in Ohio from the beginning down to the present time, by special acts of the Legislature.

In the territory of Indiana there were quite a number of Negroes from the beginning of the century. Some were slaves. In 1806, the first Legislature, at its second session, passed a law in reference to executions, as follows:

"Sec. 7. And whereas doubts have arisen whether the time of service of negroes and mulattoes, bound to service in this territory, may be sold on execution against the master, Be it therefore enacted that the time of service of such negroes or mulattoes may be sold on execution against the master, in the same manner as personal estate, immediately from which sale the said negroes or mulattoes shall serve the purchaser or purchasers for the residue of their time of service; and the said purchasers and negroes and mulattoes shall have the same remedies against each other as by the laws of the territory are mutually given them in the several cases therein mentioned, and the purchasers shall be obliged to fulfil to the said servants the contracts they made with the masters, as expressed in the indenture or agreement of servitude, and shall, for want of such contract, be obliged to give him or them their freedom due at the end of the time of service, as expressed in the second section of the law of the territory, entitled 'Law concerning servants,' adopted the twenty-second day of September, eighteen hundred and three. This act shall commence and be in force from and after the first day of February next."

This was bold legislation; but it was not all. Negroes were required to carry passes, as in the slave States. And on the 17th of September, 1807, "An Act for the Introduction of Negroes and Mulattoes into" the territory was passed.

"Sec. 1. That it shall and may be lawful for any person being the owner or possessor of any negroes or mulattoes of and above the age of fifteen years, and owning service and labor as slaves in any of the States or territories of the United States, or for any citizens of the said States or territories purchasing the same to bring the said negroes and mulattoes into this territory.

"Sec. 2. The owners or possessors of any negroes or mulattoes as aforesaid, and bringing the same into this territory, shall, within thirty days after such removal, go with the same before the clerk of Court of Common Pleas of proper county, and in presence of said clerk the said owner or possessor shall determine and agree to, and with his or her negro or mulatto, upon the term of years which the said negro or mulatto will and shall serve his or her said owner or possessor, and the clerk shall make a record.

"Sec. 3. If any negro or mulatto removed into this territory as aforesaid shall refuse to serve his or her owner as aforesaid, it shall and may be lawful for such person, within sixty days thereafter, to remove the said negro or mulatto to any place which by the laws of the United States or territory from whence such owner or possessor may [have come] or shall be authorized to remove the same. (As quoted in Phoebe v. Jay, Breese, Ill. R., 208.)

"Sec. 4. An owner failing to act as required in the preceding sections should forfeit all claim and right to the service of such negro or mulatto.

"Sec. 5. Declares that any person removing into this territory and being the owner or possessor of any negro or mulatto as aforesaid, under the age of fifteen years, or if any person shall hereafter acquire a property in any negro or mulatto under the age aforesaid, and who shall bring them into this territory, it shall and may be lawful for such person, owner, or possessor to hold the said negro to service or labor--the males until they arrive at the age of thirty-five, and females until they arrive at the age of thirty-two years.

"Sec. 6. Provides that any person removing any negro or mulatto into this territory under the authority of the preceding sections, it shall be incumbent on such person, within thirty days thereafter, to register the name and age of such negro or mulatto with the clerk of the Court of Common Pleas for the proper county.

"Sec. 7. Requires new registry on removal to another county."

"Secs. 8, 9. Penalties by fine for breach of this act.

"Sec. 10. Clerk to take security that negro be not chargeable when his term expires.

"Sec. 12. Fees.

"Sec. 13. That the children born in said territory of a parent of color owning service or labor, by indenture according to law, should serve the master or mistress of such parent--the males until the age of thirty, and the females until the age of twenty-eight years. (As quoted in Boon v. Juliet, 1836, 1, Scammon, 258.)

"Sec. 14. That an act respecting apprentices misused by their master or mistress should apply to such children. (See the statute cited in Rankin v. Lydia, 2, A. K. Marshall's Ky., 467; and in Jarrot v. Jarrot, 2, Gilman, 19.) This act was repealed in 1810."

Under the first constitution of Indiana, adopted in 1816, Negroes were not debarred from the elective franchise. In Article i, Section 1, of the Bill of Rights, this remarkable language occurs: "That all men are born equally free and independent, and have certain natural, inherent, and unalienable rights," etc. But the very next year the primal rights of the Negro as a citizen were struck down by the following: "No negro, mulatto, or Indian shall be a witness, except in pleas of the State against negroes, mulattoes, or Indians, or in civil cases where negroes, mulattoes, or Indians alone shall be parties."

In 1819 [March 22d], an execution law was passed by which the time of service of Negroes could be sold on execution against the master, in the same manner as personal estate. From the time of the sale, such Negroes or Mulattoes were compelled to serve the buyer until the expiration of the term of service.

In 1831, an act regulating free Negroes and Mulattoes, servants and slaves, declared:

"Sec. 1. Negroes and mulattoes emigrating into the State shall give bond, etc.

"Sec. 2. In failure of this, such negro, etc., may be hired out and the proceeds applied to his benefit, or removed from the State under the poor law.

"Sec. 3. Penalty for committing such without authority.

"Sec. 4. Penalty for harboring such who have not given bond.

"Sec. 5. That the right of any persons to pass through this State, with his, her, or their negroes or mulattoes, servant or servants, when emigrating or travelling to any other State or territory or country, making no unnecessary delay, is hereby declared and secured."

In 1851 the new constitution limited the right of franchise to "white male citizens of the United States." "No negro or mulatto shall have the right of suffrage."

"Art. xii., Sec. 1. The militia shall consist of all able-bodied white male persons, between, etc.

"Art. xiii., Sec. 1. No negro or mulatto shall come into, or settle in the State after the adoption of this Constitution.

"Sec. 2. All contracts made with any negro or mulatto coming into the State contrary to the foregoing section shall be void; and any person who shall employ such negro or mulatto or encourage him to remain in the State shall be fined not less than ten, nor more than five hundred dollars.

"Sec. 3. All fines which may be collected for a violation of the provisions of this article, or of any law hereafter passed for the purpose of carrying the same into execution, shall be set apart and appropriated for the colonization of such negroes and mulattoes and their descendants as may be in the State at the adoption of this Constitution and may be willing to emigrate.

"Sec. 4. The General Assembly shall pass laws to carry out the provisions of this article."

Other severe laws were enacted calculated to modify and limit the rights of free persons of color.

The first constitution of the State of Illinois, adopted in 1818, limited the [Art. ii, Sec. 27] elective franchise to "free white" persons. Article v, Sec. 1, exempted "negroes, mulattoes, and Indians" from service in the militia. In March, 1819, "An Act Respecting Free Negroes, Mulattoes, Servants, and Slaves" passed. Sec. 1 required Negro and Mulatto persons coming into the State to produce a certificate of freedom. Sec. 2 required them to register their family as well as themselves. Sec. 3 required persons bringing slaves into the State, for the purpose of emancipating them, to give bonds. Passes were required of Colored people, and many other hard exactions. The bill above referred to contained twenty-five sections.

On the 6th of January, 1827, a criminal code was enacted for offences committed by Negroes and servants, which contained many cruel features. On the 2d of February a law was passed declaring that all Negroes, Mulattoes, and Indians were incompetent to be witnesses in any court against a white person; and that a person having one fourth part Negro blood shall be adjudged a Mulatto. This law was re-enacted in 1845. In 1853, February 12th, the Legislature of Illinois passed "An Act to Prevent the Immigration of Free Negroes into this State."

"Secs. 1, 2. Fine and imprisonment for bringing slave, for any purpose, into the State. Proviso: 'That this shall not be construed so as to affect persons or slaves, bona fide, travelling through this State from and to any other State in the United States.'

"Sec. 3. Misdemeanor for negro or mulatto, bond or free, to come with intention of residing.

"Sec. 4. Such may be prosecuted and fined or sold, for time, for fine and costs.

"Secs. 5, 6, 7. If such do not afterwards remove, increased fine and like proceedings, etc., etc. Appeal allowed to the circuit.

"Sec. 8. If claimed as fugitive slave, after being thus arrested, a justice of the peace, 'after hearing the evidence, and being satisfied that the person or persons claiming said negro or mulatto is or are the owner or owners of and entitled to the custody of said negro or mulatto, in accordance with the laws of the United States passed upon this subject,' shall give the owner a certificate, after his paying the costs and the negro's unpaid fine, 'and the said owner or agent so claiming shall have a right to take and remove said slave out of the State.'

"Sec. 9. Punishment of justice for nonfeasance, and of witness falsely accusing negro."

While slavery had no legal, constitutional existence in the three border States, there were, in fact, quite a number of slaves within their jurisdiction during the first generation of their existence. And the free people of Color were, first, denied the right of citizenship; second, excluded from the militia service; third, ruled out of the courts whenever their testimony was offered against a white person; fourth, could not come into the free border States without producing a certificate of freedom; and, fifth, were annoyed by many little, mean laws in the exercise of the few rights they were suffered to enjoy. A full description of the infamous "Black Code" of these States would occupy too much space, and, therefore, the dark subject must be dismissed. Posterity shall know, however, how patiently the free Negroes of the Northern States endured the restrictions and proscriptions which law and public sentiment threw across their social and political pathway!

FOOTNOTES:

1, Chase, p. 393, sects. 1-7.

1, Chase, p. 555.

Jeffries vs. Ankeny, 11, Ohio, p. 375.

2, Chase L., p. 1052.

Curwen, p. 533.

Revised Statutes of Ohio, vol. i. p. 60.

Ibid., p. 111.

Elliot's Debates, vol. i. p. 79.

Sanford's Dred Scott Case, pp. 397-399.

Howard's Reports, vol. xix. pp. 403-405, sq.

Hurd, vol ii. p. 123.

Terr. laws 1807-8, p. 423.

Laws of 1817, ch. 3, sec. 52.

See Hurd, vol. ii. p. 129.

Revised Laws of Indiana, 1838.

Session Laws, 1819, p. 354. R. S., 1833, p. 466.

R. S., 1845, p. 154.

Rev. St. of 1856, p. 780.