Historical Racism in America: implications from the bench and elsewhere
"All white persons or persons of European descent who were
born in any of the colonies, or resided or had been adopted
there, before 1776, and had adhered to the cause of Independence
up to July 4, 1776, were by the Declaration [of Independence]
invested with privileges of citizenship."
U. S. v. Ritchie, 58 U. S. (17 How.) 525, 539;
Ingles v. Sailor's Snug Harbor, 28 U. S. (3 Pet.) 99;
Boyd v. Nebraska, 36 L.Ed. 103, 110. (insertions added.)
"In general, 'Free White Persons,' includes members of the
white or Caucasian race, as distinct from the black, red, yellow,
and brown races."
U. S. v. Balsara (1910), 180 F. 694, 695;
In re Najour (1909), 174 F. 735;
In re Ellis (1910), 179 F. 1002, 1003;
In re Alverto (1912), 198 F. 688;
In re Akhay Kumur Mozumdar (1913), 207 F. 115. (Emphasis
added.)
"The privileges and immunities secured to citizens of each
State by the first clause of the second section of the fourth
article of the Constitution are only those which belong to
Citizenship."
Conner v. Elliott, 59 U. S. (18 How.) 591.
The infamous Dred Scott decision: Dred Scott v. Sandford, 19 How. 393 (1857)
"It becomes necessary, therefore, to determine who were
citizens of the several States when the Constitution was
adopted.
And in order to do this, we must recur to the governments and
institutions of the thirteen colonies, when they separated from
Great Britain and formed new sovereignties, and took their places
in the family of independent nations. We must inquire who, at
that time, were recognized as the people or citizens of a state,
whose rights and liberties had been outraged by the English
government; and who declared their independence and assumed the
powers of government to defend their rights by force of
arms.
"In the opinion of the court, the legislation and histories of
the times, and the language used 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."
Dred Scott v. Sanford, supra, p. 407.
"We give both of these laws in the words used by the respective legislative bodies, because the language in which they are framed, as well as the provisions contained in them, show, too plainly to be misunderstood, the degraded condition of this unhappy race. They were still in force when the revolution began, and are a faithful index to the state of feeling towards the class of persons of whom they speak, and of the position they occupied throughout the thirteen colonies, in the eyes and thoughts of the men who framed the Declaration of Independence and established the state constitutions and governments. They show that a perpetual and impassable barrier was intended to be erected between the white race and the one which they had reduced to slavery and governed as subjects with absolute and despotic power, and which they then looked upon as so far below them in the scale of created beings, that intermarriages between white persons and Negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes, not only to the parties but to the person who joined them in marriage. And no distinction in this respect was made between the free Negro or mulatto and the slave, but this stigma, of the deepest degradation, was fixed upon the whole race.
"We refer to these historical facts for the purpose of showing
the fixed opinions concerning that race, upon which the statesmen
of that day spoke and acted. It is necessary to do this in order
to determine whether the general terms used in the Constitution
of the United States, as to the rights of man and the rights of
the people, (were) intended to include them, or to give to them
or their posterity the benefit of any of its provisions. 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 entitle them, a decent
respect for the opinions of mankind requires 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 unalienable Rights; that
among these are Life, Liberty, and the pursuit of Happiness; that
to secure these rights, >Governments are instituted among men
deriving their just powers from the consent of the governed."
"The general words quoted above 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 the 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 the 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 which, by common consent, had been excluded from civilized governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines 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, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of a trader were supposed to need protection.
"This state of public opinion had undergone no change when the Constitution was adopted, as is equally evident from its provisions and language." Dred Scott v. Sanford, ibid., pp. 409, 410.
"To all this mass of proof we have still to add that Congress has repeatedly legislated upon the same construction of the Constitution that we have given. Three laws, two of which were passed almost immediately after the government went into operation, will be abundantly sufficient to show this. The two first are particularly of notice, because many of the men who assisted in framing the Constitution, and took no active part in procuring its adoption, were then in the halls of legislation, and certainly understood what they meant when they used the words "people of the United States" and "citizen" in that well considered instrument.
"The first of these acts is the naturalization law, which was
passed at the second session of the first Congress, March 26,
1790, and confines the right of becoming citizens "to aliens
being free white persons."
". . . But the language of the law above quoted shows that citizenship at that time was perfectly understood to be confined to the white race; and they alone constituted the sovereignty in the government. . . Another of the early laws of which we have spoken is the first militia law, which was passed in 1792, at the first session of the second Congress. The language of this law is equally plain and significant with the one just mentioned. It directs that every "free able-bodied white male citizen" shall be enrolled in the militia. . .
"The third act to which we have alluded is even still more
decisive; it was passed as late as 1813. . . and it
provides
"(t)hat from and after the termination of the war in which the
United States are now engaged with Great Britain, it shall not be
lawful to employ, on board of any public or private vessels of
the United States, any person or persons except citizens of the
United States, or persons of color, natives of the United
States."
"Here the line of distinction is drawn in express words. Persons
of color, in the judgment of Congress, were not included in the
word "citizens", and they are described as another and different
class of persons, and authorized to be employed, if born in the
United States."
Dred Scott v. Sanford, supra, pp. 419-421.
Pendleton v. State, 6 Ark. 509
"Are free negroes or free colored persons citizens within the
>meaning of this [Comity] clause? We think not. In recurring
to the past history of the constitution, and prior to its
formation, to that of the confederation, it will be found that
nothing beyond a kind of quasi-citizenship has ever been
recognized in the case of colored persons. . . .If citizens in a
full and constitutional sense, why were they not permitted to
participate in its formation?
They certainly were not. The constitution was the work of the
white race, the government for which it provides and of which it
is the fundamental law, is in their hands and under their
control; and it could not have been intended to place a different
race of people in all things upon terms of equality with
themselves. Indeed, if such had been the desire, its utter
impracticability is too evident to admit of doubt. The two races
differing as they do in complexion, habits, conformation, and
intellectual endowments, could not nor ever will live together
upon terms of social or political equality. A higher than human
power has so ordered it, and a greater than human agency must
change the decree. Those who framed the Constitution were aware
of this, and hence their intention to exclude them as citizens
within the meaning of the clause to which we referred."
Pendleton v. State, 6 Ark. 509.
John Adams
"There are, nevertheless, inequalities of great moment in the
mind of a legislator, because they have a natural and inevitable
influence in society. Let us enumerate some of them: 1. There is
an inequality of wealth. . . 2. BIRTH. Let no man be surprised
that this species of inequality is introduced here. Let the page
in history be quoted where any nation, ancient or modern,
civilized or savage, is mentioned, among whom no difference was
made between the citizens on account of extraction. The truth is
that more influence is allowed to this advantage in free
republics than in despotic governments, or than would be allowed
to it in simple monarchies, if severe laws had not been made from
age to age to secure it."
John Adams, A Defense of the American Constitutions, 1787, from
The Political Writings of John Adams, published by Bobbs-Merrill
Co., 1954, p. 134.
"These sources of inequality, which are common to every people
and can never be altered by any because they are founded in the
constitution of nature--this natural aristocracy among mankind
has been dilated on because it is a fact essential to be
considered in the institution of government. It forms a body of
men which contains the greatest collections of virtues and
abilities in a free government, is the brightest ornament and
glory of the nation, and may always be made the greatest blessing
of society if it be judiciously managed in the constitution. But
if this be not done, it is always the most dangerous; nay, it may
be added, it never fails to be the destruction of the
commonwealth [sovereignty]."
John Adams, A Defense of the American Constitutions, from The
Political Writings of John Adams, published by Bobbs-Merrill Co.,
1954, p. 139.
"That all men are born to equal rights is true. Every being
has a right to his own, as clear, as moral, as sacred as any
other being has. . . . But to teach that all men are born with
equal powers and faculties, to equal property and advantages
through life, is as gross a fraud, as glaring an imposition on
the credulity of the people as ever was practiced by monks, by
Druids, by Brahmins, by priests of the immortal Lama, or the
self-styled philosophers of the late French Revolution. For
Honor's sake, . . . , for truth and virtue's sake, let American
philosophers and politicians despise it."
John Adams, in a letter to a Mr. John Taylor, April 15, 1814 from
The Political Writings of John Adams, published by Bobbs-Merrill
Co., 1954, p. 201.
James Kent
"Blacks, whether born free or in bondage, if born under the
jurisdiction and allegiance of the United States, are natives,
and not aliens. They are what the common law terms natural born
subjects. . . . The better opinion, I should think, was that
Negroes or other slaves, born within and under the allegiance of
the United States, are natural born subjects, but not
citizens.
Citizens, under our Constitution and laws, mean free inhabitants,
born within the United States or naturalized under the laws of
Congress. . . "
James Kent, Commentaries on American Law, 7th ed., Volume II, pp.
275-278.
State v. Clairborne, 1 Meig's Rep. 331, 335
"But birth will not confer these advantages upon a Negro or an
Indian. If so, a man may acquire, by the accident of birth, what
the government itself has no right to grant. No Negro, or
descendant of Negroes, is a citizen of the Union, or any of the
States. They are mere "sojourners in the land", inmates, allowed
usually by tacit consent, sometimes by legislative enactment,
certain specific rights. Their status and that of the citizen is
not the same. Vattel, Book 1, para. 213. But the clause of the
Constitution in question applies to citizens, not to sojourners
or inmates."
State v. Clairborne, 1 Meig's Rep. 331, 335.
Amy v. Smith, 1 Litt. Ky. R. 334
"It results, then, that the plaintiff cannot have been a
citizen, either of Pennsylvania or of Virginia, unless she
belonged to a class of society upon which, by the institutions of
the states, was conferred a right to enjoy all the privileges and
immunities appertaining to the state. That this was the case
there is no evidence in the record to show, and the presumption
is against it. Free Negroes and mulattoes are, almost everywhere,
considered and treated as a degraded race of people; insomuch so,
that, under the Constitution and laws of the United States, they
cannot become citizens of the United States."
Amy v. Smith, 1 Litt. Ky. R. 334.
"But as the laws of the United States do not now authorize any
but a white person to become a citizen, it marks the national
sentiment upon the subject and creates a presumption that no
state had made persons of color citizens. . . .And as it respects
Virginia, we know that free people of color have never been
considered, or treated, either in the practice of the country or
by the laws of the state, as possessing the rights and privileges
of citizens."
Amy v. Smith, supra, p. 334. (Emphasis added.)
"Prior to the adoption of the Constitution of the United
States, each state had a right to make citizens of any persons
they pleased; but as the Federal Constitution does not authorize
any but white persons to become citizens of the United States, it
furnishes a presumption that none other were then citizens of any
state; which presumption will stand until repealed by positive
testimony."
id. (Emphasis added.)
"The American colonies brought with them the common, and not the civil law; and each state, at the revolution, adopted either more or less of it, and not one of them exploded the principle that the place of birth conferred citizenship." Ibid., pp. 337, 338.
"Again, according to a well established principle of the
common law, now in force, none but citizens can hold our
lands."
Amy v. Smith, supra, p. 339.
"Hence I conclude that every white person at least, born
within the United States, whether male or female, is, by birth, a
citizen within the meaning of our Constitution, and as such has
rights secured by it. . ." Ibid., p. 341.
William Wurtz
Attorney-General of the United States, one William Wurtz, in an opinion dated November 7, 1821:
I presume that the description, "citizen of the United States", used in the Constitution, has the same meaning that it has in the several acts of Congress passed under the authority of the Constitution; otherwise there will arise a vagueness and uncertainty in our laws which will make their execution, if not impracticable, at least extremely difficult and dangerous.
Looking to the Constitution as the standard of meaning, it seems very manifest that no person is included in the description of "citizen of the United States" who has not the full rights of a citizen in the state of his residence. Among other proofs of this, it will be sufficient to advert to the constitutional provision that "the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states".
Now, if a person born and residing in Virginia but possessing none of the high characteristic privileges of a citizen of the state is nevertheless a citizen of Virginia in the sense of the Constitution, then, on his removal into another state, he acquires all the immunities and privileges of a citizen of that other state, although he possessed none of them in the state of his nativity; a consequence which certainly could not have been in the contemplation of the Convention.
Again: the only qualification required by the Constitution to render a person eligible as President, Senator, or Representative of the United States is that he shall be a "citizen of the United States" of a given age and residence. Free Negroes and mulattoes can satisfy the requisites of age and residence as well as the white man; and if nativity, residence, and allegiance combined (without the rights and privileges of a white man) are sufficient to make him a "citizen of the United States" in the same sense of the Constitution, then free Negroes and mulattoes are eligible to those high offices, and may command the purse and the sword of the nation.
For these and other reasons, which might easily be multiplied, I am of the opinion that the Constitution, by the description of "citizens of the United States", intended those only who enjoyed the full and equal privileges of white citizens in the state of their residence. If this be correct, and if I am right also in the other position -- that we must affix the same sense to this description when found in an act of Congress, as it manifestly has in the Constitution--then free people of color in Virginia are not citizens of the United States in the sense of our shipping laws, or any other laws, passed under the authority of the Federal Constitution; for such people have very few of the privileges of the citizens of Virginia.1. They can vote at no election, although they might be freeholders.
2. They are incapable of any office of trust or profit, civil or military.
3. They are not competent witnesses against a white man in any case, civil or criminal.
4. They are not enrolled in the militia, are incapable of bearing arms, and are forbidden even to have in their possession military weapons, under the penalties of forfeiture and whipping.
5. They are subject to severe corporal punishment for raising their hand against a white man, except in defense of a wanton assault.
6. They are incapable of contracting marriage with a white woman, and the attempt is severely punished.
These are some of the incapacities which distinguished them from the white citizens of Virginia; but they are, I think, amply sufficient to show that such persons could not have been intended to be embraced by the description "citizens of the United States" in the sense of the Constitution and acts of Congress.
The allegiance which the free man of color owes to the State of Virginia is no evidence of citizenship; for he owes it not in consequence of any oath of allegiance.
He is not required or permitted to take any such oath; the allegiance which he owes is that which a sojourning stranger owes--the mere consequence and return for the protection which he receives from the laws. . . .
Opinions of the Attorneys General, Volume 1, pp. 506-508.
Stephens, A Constitutional View of the Late War between the States
U. S. Senator Robert H. Toombs of Georgia in Boston in 1856, as to the inevitable consequences of trespassing on the preamble and altering the posterity of "free white":
"Therefore, so far from being a necessary and proper means of executing a granted powers, it is an arbitrary and despotic usurpation against the letter, the spirit, and the declared purposes of the Constitution; for its exercise neither "promote(s) the general welfare", nor "secure(s) the blessings of liberty to ourselves and to our posterity", but, on the contrary, puts in jeopardy all these inestimable blessings. It loosens the bonds of Union, seeks to establish injustice, disturbs the domestic tranquility, weakens the common defense, and endangers the general welfare by sowing hatreds and discords among our people, and puts in eminent peril the liberties of the white race, by whom and for whom the Constitution was made. . . "
Stephens, A Constitutional View of the Late War between the States, National Publ., Vol. I, p. 632.
WITNESSES
Foreigners Against White Persons
The below citations are presented for historical purposes only. Through these we can see racial disparities and the effects of Supreme Court of the United States rulings upon society.
'Racial' tensions can be enforced upon the People, if they fail to recognize that these cause more harm than good. When there are those who believe they are superior to those surrounding them, inequity brings social injustice.
"Criminal Act 14, provides, "No black, or mulatto
person,or Indian shall be allowed to give evidence in favor of,
or against a white man."
People v. Hall (1854), 4 C. 399.
"Civil Practice Act 394, provides, "No Indian or Negro
shall be allowed to testify in any action in which a white person
is a party."
People v. Hall (1854), 4 C. 399.
"The words, "Indian," "Negro," "Black" and "White," are
generic terms, designating race. Therefore, Chinese and all other
people not white, are included in the prohibition from being
witnesses against whites."
People v. Hall (1854), 4 C. 399.
"People v. Hall (4 C. 399), excluding Chinese witnesses in
suits to which white persons are parties, is affirmed."
Speer v. See Yup Co. (1859), 13 C. 73.
"The indicium of color is not an infallible test of the
competency of a witness, under the act excluding blackes,
mulattoes, and Indians, from testifying for or against white
persons."
People v. Elyea (1859), 14 C. 144.
"It may be a sufficient test in many cases, but only when it
is so decided as to leave no doubt of the race to which the
witness belongs."
People v. Elyea (1859), 14 C. 144.
"In a criminal action against a white person, a black or
mulatto person--though the injured party--cannot, under the
statute, be a witness against the defendant."
People v. Howard (1860), 17 C. 63.
"The words "in favor of or against any white person," in the
act prohibiting persons of one-half or more Indian blood, or
Mongolian, or Chinese, from giving evidence, refer to the
defendant alone in a criminal action. (Per Sanderson, C.
J.)"
People v. Awa (1865), 27 C. 638.
"A defendant in a criminal case who is a Chinaman is entitled
to produce Chinese witnesses in his behalf."
People v. Awa (1865), 27 C. 638.
"The fourteenth amendment to the Constitution of the United
States does not conflict with the power of the legislature in the
exercise of its discretion to exclude Chinamen from the right to
testify in the state courts."
People v. Brady (1870), 40 C. 198, 6 Am. Rep. 604,
overruling People v. Washington (1869), 36 C. 658.
"Crimes Act 14, as amended in 1863, provided that no
"Indian, Mongolian or Chinese shall be permitted to give evidence
in the courts of the state in favor of or against a white man,"
is not in conflict with constitutional amendment 14, which
provides that persons born or naturalized in the United States
are citizens, etc., that no state shall make any law abrogating
the privileges or immunities of citizens, nor deprive any person
of life, liberty or property without due process of law, nor deny
to any within its jurisdiction the equal protection of the laws;
since the restrictions by such amendment imposed on states relate
to substantial personal rights of liberty, property, etc., and do
not extend to mere rules of evidence."
People v. Brady (1870), 40 C. 198, 6 Am. Rep. 604,
overruling People v. Washington (1869), 36 C. 658.
"The evidence of a Chinaman cannot be admitted to prove a
white man guilty of manslaughter."
People v. Harrington (1872), 1 C.U. 768.