NE: a

ee OPINION + THE HON. JOHN [FOX,)

PRESIDENT JUDGE OF THE JUDICIAL DISTRICT COMPOSED OF THE — COUNTIES OF BUCKS AND MONTGOMERY,

AGAINST THE

EXERCISE OF NEGRO SUFFRAGE

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ALSO:

THEVOTE OF THE MEMBERS

OF THE PENNSYLVANIA CONVENTION, a Qn. THE onto GP ie, ep heee TO INSERT THE WORD TERE EPS Paha white,” AS ONB OF THE PROPOSED AMENDMENTS 0 3, TO? PHS ‘CONSTITUTION. ‘ Ze ° My S ey as a 2. rok aa : > HARRISBURG:

PRINTED BY PACKER, BARRETT AND PARK.

1838.

NEGRO SUFFRAGE.

Opinion of the Court of Quarter Sessions of Bucks County, deliv- ered by Judge Fox, 28th December, 1837, tn the matter of the contested election of Abraham Fretz, returnedas elected Commis- sioner of Bucks county.

This case is brought before the court, upon the complaint and peti- tionin writing, of thirty and more, of the freemen of the county of Bucks, who state: ‘* That on the 2d ‘Tuesday of October, A. D. ‘61837, the freemen of Bucks county assembled at the polls in the ‘sdifferent election districts of said county, to elect three members ‘sof the State Legislature, one County Commissioner, one Director ‘‘of the Poor, and one Auditor. And elections were held at said time, - ‘and various persons were voted for to fill the respective offices, ‘«‘That agreeably to law, the return judges of said election, from each «district in the county, assembled at the county court house, on the ‘next Friday succeeding said election, when, on summing up the “votes polled at the respective districts, it appeared that for Com- ‘‘missioner, Abraham Fretz had 3286 votes, and for the same office, ‘‘Jacob Kachline had 3261 votes ; and for the office of Auditor, Rich- ‘card Moore had 3302 votes, and for the same office, Dr. F. L. Bod- ‘der had 3300. ‘That your petitioners believe that said election was ‘‘undue, and the said Abraham Fretz and Richard Moore were un- ‘duly returned as highest in vote for the respective offices aforesaid, ‘inasmuch as between 30 and 40 votes were received from, and polled “by Negroes at said election, who, it is believed, had no legal right ‘to vote, the said 30 or 40 being a greater number than the apparent ‘smajorities of the said Abraham Fretz over the said Jacob Kach- ‘line, and the said Richard Moore over the said Dr. F. L. Bodder, ‘‘and which, if deducted from said Fretz and Moore, would place ‘said Kachline and Bodder in the majority. They therefore pray ‘“‘the'court to adopt such rules and measures as will bring the ques- ‘tion of the validity of such election, in respect to said Commis- ‘‘sioner and Auditor, before you, that the merits of the same may ‘tbe proceeded upon, and that you may decide finally upon them, ’ “according to the laws of this Commonwealth.”

This complaint is accompanied by the affidavit of two of the said freemen, who swear, ‘that the facts contained in the above peti- tion are just and true, to the best of their knowledge and belief.”

This brings the case within the provisions of the act of assembly

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passed 19th March, 1624, (Purdon’s Digest, 329—-Pamphlet laws 53,). which provides as follows :

‘‘’The returns of the election of county Commissioner, Auditor, and all other county officers elected by the freemen of any county, for contesting whose election provision has not heretofore been made by law, shall be subject to the inquiry, determination and judgment of the Court of general Quarter sessions of the peace of the proper county, upon the complaint, in writing, of thirty or more of the freemen of the said county of undue election, or return of any such officer, two of whom shall take and subscribe, an oath or affirmation, before a judge, alderman, or justice of the peace, in the county wherein they reside, accompanying such petition, stating that. the facts therein set forth are true to the best of their knowledge and belief; and the said court shall, in judging concerning such election, proceed upon the merits thereof, and shall determine finally, con- cerning the same, according to the laws of this Commonwealth.”

Upon. this complaint, it was the duty of the court to enquire, determine, and judge, of the returns of the election complained of. The first step, naturally, in/all cases of complaint, is to give notice to the parties interested, that they may appear, and take such measures in their defence, as they may think: proper.

This was done. Abraham Fretz, the person retumed, was cited to appear onthe. first day of the last term.

_ Upon that day he appeared in court, and filed in writing , an answer as follows :—* And now to wit, this 12th day of December, A. Dé: 1837, comes Abraham Fretz,into a court of quarter sessions of Bucks county, and in answer to the citation annexed, saith that he verily believes. itis not true,.. that the election named: in the said citation: was undue, nor. that the said Abraham Fretz therein named, was - unduly returned as. highest.in vote for the office of dagen tal but that the respondent. was duly. and legally elected to said office.”

| . ApranaM FReTz.

The complaintsubstantially i is, that the said Fretz is unduly returned highest in voie for the office of county commissioner, inasmuch as between 30 and 40 votes were given by Negroes, who had no right to vote, and that this number is greater than the majority which the said Fretz hadover Jacob Kachline.

The first question that arose upon it, was, did it shew such. a ‘case, as authorised the court to proceed under the act of Assembly. If it. did not, the complaint must be dismissed. If it did, then the court. must take the means necessary to carry out the provision of. the law.:

In order to determine this, it was necessary first to decide, whether. negroes have the right of suffrage. If they have, then the complain-, ants do not show even a prima 1 facie case, and their. complaint must: fall to the ground. If they have not, then. the complaint is. well: founded upon its face, and the. court, will. take. the means.necessary to ascertain the facts, This. ds. the obvious. and natural course... .[t» would have been folly to have gone into, perhaps, ¢ atedious and expen-, sive examination to’ ascertain whether negro votes, were received, until it was first determined whether,if the fact were so, it would affect.

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the return of the election. ‘The court therefore at their last session, determined that that question should be first settled, and erick this day for the hearing.

"The question which presents itself for desisinn now is, whether negroes in Pennsylvania have the right of suffrage. ‘This is a most important question, the decision of whieh may affect. the power, the interest and the safety of every man in the community. But if the negro has the right to vote by the law of the land, it must be awarded to him, “Tf, however, he has no such right by law, then to suffer him to vote is an injury to every duly ‘qualified elector. _ Whether he-has such right, must depend upon the trae construction of the Ist section of the 3d article of the constitution of Pennsylvania, which is as follows :--‘ In elections by the citizens, every freeman. of the age of twenty-one years, having resided in the state two years next before the election, and within that time paid a state or county tax, which shall have been assessed at least six months before the election, shall enjoy the rights of an elector.”

Are negroes included within these terms, that is, is a negro a Cifi- zen, and a freeman, within he meaning of this clause of the con- stitution? »

To determine this we must inquire, what was the potion condi- tion of the negro in Pennsylvania, at the adoption of the present

constitution. In order to do this, satisfactorily, we must resort to ‘the original charters from King Charles the second to Wim. Penn, and from Wim. Penn to the people. Also to the early history and laws of the Province, and to all our constitutions.

William Penn purchased the province of Pennsylvania from the British King. He associated with him in England a number of per sons, who consented to emigrate with him to the Province, upon -eertain fundamental principles being agreed upon. Among these, that there should be a general assembly, to be elected by freemen, and the trial by jury. After this, to wit, on the 28th October, 1701, Wm. Penn promulgated a constitution for the Province, -ealled a ‘Charter of Privileges.” ‘This charter provides, among other things, as follows. :—“Forthe well governing of this Province and Territories, there shall be an assembly chosen by THE FREEMEN | thereof, to consist of four persons out of each county, &c. who shall have power to choose a speaker, &c., and shall have all other powers § privileges of an Assembly, according ty the rights and privileges of THE FREE BORN SUBJECTS OF ENarann, and as 18 USUAL, an any of the King’s plantations in America.”

‘It was under these charters that our ancestors setted this province. They were a community of white men exclusively—an English colony. But almost simultaneous with the settlement of the province, NEGRO SLAVERY was introduced into it, as it previously had been into all the British colonies in America. We find traces of it in the laws, so early as 1693, and in 1705, four years after the charter of. privileges, we have ‘‘ An act for the trial of negroes,”’ (Galloway’s Province laws, page 45.) In this law the word negro manifestly implies a slave, and probably at that day, all negroes in Pennsyl-

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vania were slaves. This act commences as follows: ‘ Whereas, some difficulties have arisen within this province about the man- ner of trial and punishment of negroes, committing murder, burglary, &c., and other heinous enormities, and capital offences. For the remedy thereof, and for the speedy trial and punishment,of such negro’ or negroes, offending as aforesaid, Be it enacted, &e.”” The | law then goes. on to provide*that two Justices of the Peace, with six freeholders, 1o be summoned by the Justices, shall hold a court — for the trial of any negroes charged with the said offences, with full power to convict or acquit them; and, in case of conviction — the said Justices and freeholders ‘shall issue their. warrant to the sheriff”? FOR THE EXECUTION OF ‘SUCH NEGRO OR NEGROES;’’ and further by the same act, ‘If any negro shall presume to carry any gun, sword, fowling piece, club, or any other arms or weapons what- ever, without his master’s special license, he shall be whipped with twenty lashes on his bare back.’’? And further by the same act, if more than four negroes meet in company, they shall be publicly whipped « aé the discretion of one Justice of the Peace not exceed- ing thirty-nine lashes.”

"This law, it must be remembered, was passed only four years after ihe charter of privileges under the government of Willliam Penn. It is therefore impossible to believe that the wretched negro could have been supposed to have any immunities, either under the charter from the king, orthe charter of privileges. .

In the year 1725, seven years after the death of William Penn, and while the province was still under the proprietory government,

a law was passed called ‘«‘ An act for the better regulation of negroes within this province.’’ (Province laws, 143.)'The firstsection provides that the Justices and freeholders who sentenceia negiv to be executed, shall value thenegro that his master may be paid. :

The third section is’ as follows: *¢ And whereas, it is found by: experience, that FREE NEGROES are an idle, slothful people, and often prove burthensome to the neighborhood, and afford ill example to other negroes, therefore be it enacted, &c.”’ ‘The act then, provides: that no negro shall be set free without feenn area that he shall not become chargeable. |

The fourth section provides ‘*'That if any FREE NEGRO, fit arid able to work, shall neglect so to do, and loiter and mispend, his or her — ume, or wander from place to place, any two magistrates are em- powered and requested to bind out such [FREE | NEGRO from year: to, year.’

The fifth section provides, ‘‘That no. FREE NEGRO, or MELA TOL) shall harbor or entertain any negro, Indian, or mulatto slave, under penalty of fiveishillings an hour; and if any FREE NEGRO OF MULATTO, shall deal with any negro, or other slaves, he may be publicly whip- ped with twenty one lashes.” And, by the sixth section, if any FREE NEGRO Or MULATTO be unable to, pay his fine, the Justice of the Peace may order satisfaction By SERVITUDE.

The eighth section provides, that if any FREE Neg7To | shall intermar- ry with a white, such [free] negro shall become a slave during life.

The ninth section says :—-‘* Whereas a good regulation and suitable

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si 7 management of negroes, is very much conducive to the safety and peace, as well as to the advantage of those countries which are pos- sessed of any number of them, Therefore, if any negro is found tip- pling or drinking, in or near any house where strong liquors are sold, or be absent from his master’s house after nine o’clock at night, he shall be whipped on his bare back with ten lashes.”’

It cannot be supposed, that, even in the common acceptation of the

' word, these miserable slaves (whether slave in name or in fact, or

ealled FREE NEGROES,) were freemen under the charters of the king,

_ or the charter of privileges. They, manifestly, had no rights under

these charters. Although free negroes, and men that were free from

the contro! of any private master, yet they were an inferior and de-

graded animal, and political slaves of the actual government. The whites were governed by one set of laws, made by ‘themselves, and the negroes by another, and a most severe code, made by their white superiors. There was no equality in their political or social condition. ‘The trial by jury projected the white man charged with crime, while a negro charged with the very same offence could be hung by the summary judgment and sentence of two magistrates and six frecholders. [tis thus plain that a free negro was nota freeman as it was understood by the provincial law-makers, William Penn and his associates.

Such was the condition of the free negroes. in Pennsylvania at the

revolution. In consequence of that event, the constitution of 1776

was adopted, and we will now examine whether that instrument ele- vated the negro in political rank.

That constitution provides that ‘every freeman of the age of 21 years having resided, &c.” shall enjoy the right of an elector; and recites “that all men are born equally free and independent,” and have certain unalienable rights, among which are enjoying and defending life and liberty,” but nevertheless, the institution of negro slavery still continued—the children of slaves were born slaves,

and the severe code for. their government still existed. ‘The conclu-_

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” any inalienable righis. Besides, the freemen of the commonwealth

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sion is irresistible, jhat negroes bond or free, were not considered by the framers of this constitution, as being Corn free, or as having

‘were directed, “to be trained and armed in its defence,” and the irial by jury was secured to all the parties to that instrument, both of which were inconsistent with the laws in force for the government of negroes. The convention of 1776, in making.a frame of Govern- ment, acted as if no such beings as negroes were in existence. ‘They were 2 degraded race, who were supposed to have no interest in the government, whatever it might be. Nz

‘The constitution of 1776, then, did not comprehend, free negroes among freemen, who were to enjoy the rights of an elector, but left them 4s they found, them, an abject and degraded race.

In 1780, however, the Legislature passed ‘‘an act for the gradual abolition of slavery.’ The most important provisions of that act are, that no negro born after its passage shall be a slave for life, and that negroes aud mulattoes shall be tried in the same manner

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ax other inhabitants of the state. It also repealed the laws above

eited for the government of negroes, but it gave them no political .

nights. ‘ PAs a OE Ja) ey I fo. yi } ; \ \ ‘ ; i (" et 3 BY i tA Le Ea ‘The Legislature could not give the negro political power. | They could not. bring within the words of the constitution a.class of men:

not contemplated , by. the convention .which framed it. This act, -

therefore, merely relieved the negro from the oppression of certain severe laws, and. provided that their offspring should pot be slaves for

life.. The act, so far.as it went to abolish slavery, could have no —

greater effect than the manumission by the authority of their masters would have had. Either would make them. free negroes, but nei- ther could make them freemen, in the sense in which that term was: used by the constitution of 1776, .The act. of. 1780. relieved the negro from, some of, the burthens imposed upon him, but it left him

still in his inferior condition, for the same. power which took off the —

burthen, might tinpose it again at pleasure. "This power to govern _

them might be exercised at. any moment by their political superiors, inany manner they might deem fitting. The same legislature which repealed the laws for their government, had power, to repeal the repealing law, and thus have revived the original laws against them.

Thus matters stood at the adoption of the present constitution. in

1790, Although relieved from. oppressive laws, the negro remained.

in his inferior and degraded condition. Even Pennsylvania still con- —

tinued to be a slave-holding state, inasmuch as all who were slaves

for life in 1780 continued to. be so; and all children, born of. slave.

parents were slaves till the age of 28. Certamly then there was no equality in their condition with the whites, who made them bond or free at their own pleasure. . It must also be taken into the account, that the constitution of the United States had just been ratified by thirteen states, niawr of which were slave-holding states, and only five non-slave holding states, and’even in these, slavery had been but very recently and partially abolished. Hagen ie

That the negro race was then, and still is, a degraded caste, and

inferior in rank to ‘the white, cannot, I think, be doubted. What white man would not feel himself insulted by a serious imputation

that he was a negro, and who, having believed himself to be of the —

white race, if he should be found to be strongly tainted with black blood, would not feel and experience, that he had. fallen greatly in the social scale? What white parent, if he had any affection for them, could contemplate without deep grief and mortification the’ probable social condition of his mulatto children? Into what depth

of degradation would a white female previously in the elevated | ranks of life, sink, who should dare to brave public feeling so far/as

to marry anegro? ‘In most of the United States,” says Chancellor i

Kent in his commentaries, “ there is a distinction, in respect to politi-

‘eal privileges, between free white persons and free colored persons. . ie * of African‘blood; and in no part. of the country do the latter,,.in

** point of fact, participate equally, with the whites, in the exereise of

‘civil and) political rights, The African race are essentially a de- “* graded caste of inferior rank and condition in society... Martias .

ivf aes ae

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_ ges between them and the whites are forbidden in some of the states, ‘*and when not absolutely contrary to law, they are revolting, and. “regarded as an offence against public decorum. In Illinois, (a free “‘state) by a law of 1829, marriages between whites and negroes ‘or mulattoes are declared void, and) the persons are liable to be *‘ whipped, fined and imprisoned.’ In Massachusetts, although it was declared ‘that slavery was abolished by the revolution vet it is held that a marriage between a white person and a negro or mulatto is absolutely void. In Ohio, a few years since,-a law was passed. expelling from the state, the whole body of its black population. ‘Then are FREE negroes embraced within the terms of the present constitution so as to have the right to vote? "The words which de- clare who shall be electors, are, “In elections by the citizens, every “freeman of the age of 21 years, &¢. “shall enjoy the rights of an ‘selector.’ This is the same as the constitution of 1776, except _that-in the present constitution, the clause commences with. the words. ‘‘ In elections by the citizens,” 3 u Ifthe word citizen gives the negro the the right to vote, then also ut gives him the right to be voted for, and exercise the office of governor, senator, or any other office, because to be a citizen, (with residence,) is all the qualification required by the constitution. This clause of itself, makes this result sufficiently plain. But besides, all) those parts of the constitution, which mention the election of the officers of government, provide that they shall be citizens and cho- sen by the citizens. | Who are citizens within the meaning of the constitution? The people, and their successors of the samé'caste, who established it: The people, in whom according to the declaration of rights, 2d sec. article, *‘ all power is inherent,” and by whose authority, ‘all free governments are founded,” and ‘for whose peace, safety and happiness they are instituted.”” The sovereign people, in whom, collectively, is vested all political power, and who. individually are component parts of the sovereign authority, and are, equal to each other in all rights, powers, immunities and privileges. “Wx THE Propie,”’ commences the constitution of the commonwealth. of Pennsylvania, ‘‘ordain and establish this constitution’ for its govern- Meni) te Is it possible that an inferior and degraded race were called in to. take part in these high functions? That they composed.a part of the sovereign auihority, and suddenly were elevated from their abject condition, to be individually the equal in power and privileges, of, the white man, who immediately before was immeasurably his Superior in all these respects? Can it be conceived that, cireumstan- cedas they were, that convention contemplated that a negro, in any possible case, should hold offices of the highest dignity in. the commonwealth? Yet certainly they might, if they were intended to be comprehended in the term citizen. |

But further, of the term citizen. The framers “of the constitu- .

tion of Pennsyivania in making that instrument, manifestly, had in view the constitution of the United States. They adhered to it as

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closely as the difference of circumstances would admit. ‘That con- ~ stitution went into operation in March, 1'789, and the convention of Pennsylvania met on the 24th of November in the same year. It needs but aslight comparison to be satisfied, that the constitution of the United: States served as a model for that of iE In addition to this, it is to be remarked, that Judge James Wilson, who had been a delegate from Pennsylvania in the United States Con-— vention, was a member of the Pennsylvania. Convention, and one — of the committee appointed by the latter, which reported the original draught of the constitution. Judge Wilson was eminent as alawyer, and an energetic and active member of both conventions. From these ~ facts the inference is irresistible, that every important word, used by the framers of the constitution of the United States, was used in the same sense by those who framed: that of Pennsylvania.

What then is the sense in which the word ‘People’ and the word’ ‘Citizen’ is used in the constitution of the United States? It must be kept in mind that of the thirteen states who adopted that consti- tution, EIGHT, to wit, New York, New Jersey, Delaware, Maryland, ° Virginia, North Carolina, South Carolina and Georgia, were slave — holding states at the time of its passage in the convention, and only FIVE, to wit, Massachusetts, New Hampshire, Connecticut, Rhode Island, and Pennsylvania had done any thing to abolish slavery. -A decided majority of the'states then were slave-holding states, and the vote upon all questions in the convention was by states.

The constitution commences, “Wr THE Propte of the United — States,’’ for the general purposes mentioned, ‘‘do ordain and establish this constitution for the United States of America.” ~

The second section of the fourth article is as follows :

\ “‘OF CITIZENS.”

“The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.’’ Is-it possible to conceive that a body of men, composed as that convention was, would have — contemplated that a negro was his equal in rights and privileges? ‘That the same being who, in his ‘state. was either a legal slave, and — for many purposes not considered even a person, but a mere chattel, and if called free, the victim of severe laws made by his white masters for their own safety, at the expense of his liberty and happiness, should in the general government, be his equal in political power ? Could any one of the slave-holding states have supposed that they were making acompact, by which a free negro of another state would have the right to pass into a slave holding state, and there be entitled — to all the privileges and immunities of a citizen of thatstate? 1t ap- — pears to me that the very statement of these questions carries with it a decided negative. mer Via )

But again, by an amendment to the constituticn, adopted in 1789 _ itis provided that ‘¢the right of the People to keep and bear arms shall not be infringed.” ei | rat, ae This, if there were nothing else, would be conclusive to show that negroes were not included in the term People, because bearing — arms, has, at all times—in every slave-holding state, been considered

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i | inconsistent with the condition of the free negro m such state, and severe laws have always existed to prevent it. ‘Therefore, when it is provided that the People shall hear arms, &c., it follows, that free negroes are not included in that term. Hie ke .

The determination of the people of the U. S. to exclude negroes from citizenship may be also strongly inferred from the fact, that the first naturalization law which was passed on the 26th March, 1790,

_only one year after the adoption of the constitution, confines, as do all the other naturalization laws, the right to become a citizen to Free Wuiret Persons.

For all these reasons I think it is clear, that the framers of the constitution of the United States did not intend to include negroes either in the term People or Citizen. I am confirmed in this opinion by that of the court of appealsin Kentucky. In the case of Amy vs. Smith, 1 Little, 333, they decide directly that free negroes and mu- lattoes are not such citizens as were contemplated by the article of the United States constitution.

These terms in the constitution of the United States and of the state, being used in relation to the same subject matter, about the same time, by a portion of the same people, must it seems to me, necessa- rily, reeeive the same construction. \ And, as negroes are plainly not included in. them in the constitution of the United States, it follows that they are not included in them in the constitution of Pennsyl} vania:

The words ‘‘People’”’ and “Citizen,” however, in both constitu- tions were, probably borrowed from the Roman Republic. ‘The people of Rome were sovereign, and the good citizen of Rome, that is he who resided in Rome, was enrolled as su¢h, and capable of dignities, was individually a part of the actual sovereignty. ‘There is, therefore, strong analogy to each other in the meaning of these terms, as existing in the ancient Republic, and as I conceive they are used in our constitution. There were citizens of Rome of several grades— some without the right of suffrage, and some (Freedmen) could be raised to no office of honor. A negro in Pennsylvania may, perhaps, be considered as a citizen of inferior grade, incapable of political power or dignities, but equal in civil rights to the white race. ‘The manumitted slaves in the United States,” says the writer of the Arti-

scle Freedmen in the Encyclopedia Americana “have this disadvan- - tage in comparison with the Fréedmen among the ancients, that their color continually recalls their former condition, and ‘connects them

with the remainder of the same race in servitude, while it produces a

marked distinction between them and ‘their former-masters. This

has! prevented them from being admitted to the full rights of citt- zens of the United States.” |

The authority of the Declaration of Independence has sometimes been urged in support of the perfect equality of the negro with the white race—‘‘all men’? says that instrument, ‘‘are created equal ;: they are endowed) by their creator with certain inalienable rights ; among these are life, libérty, and the pursuit of happiness.”” But the weight of this authority, in its application to the negro, may be duly

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estimated when we consider ‘hat all the stafes whose delegates made that declaration roere slave holding» states. ‘Thai no {

. within any one of them, (Pennsylvania included) was bern the — |

of his white master. but all, without exception, whether slaves‘or free negroes, were the subjects of unequal and severe laws. “They had no inalienable: rights but were the creatures of their master’s will.

A -practice undera law, immediately after its passage, is always,

edence of what thelaw is: From the best infermation I havebeen |

able to obiain, no negro has eyer voted im the city or county of” pelphia, where there were probably more negroes than in all the rest of the state. In the majority of the counties they have not been suf

fered to. vote, and the practice to permit them to do so any where,

grew up long after the adoption of the constitution. It no doubtarose~ from a misconception of the term freeman, as used im the constitu-

tion; the term was considered simply as opposed to slave, and the

argument was, that as a negro was free, therefore he was 2 freeman, and consequently enabled to vote. Evenif this were correctit could

not avail, because they must be etfizens as well as freemen, anda’ free negro, as I have already shown, by the Jaws as they, stoed at

the adoption of the constitution, was 2 very different being from a

citizen.

We find the word freeman applied to electors in the BO of Charles the second to Wm. Penn, in all the charters, and agreements, and concessions of Wm. Penn, and in all our censtitutions, and laws relative to bearing arms down to the present day. . Surely then, unless there be some plain reason fora change, it must be deemed to have the same meaning in the constitution of 1790. as it had im all these constitutions and laws which preceded it. _ have already, shown that in none of these could the term include a free negro and a> is suf- cient to determine the present question.

But, I presume, that the word freeman is used in the constitation, and in the previous charters, in the common law sense of one who has certain privileges in a corporate town orstate. ‘This is Ithink, from ‘‘An act for naturalization”? passed in 1700, Appendix Province laws, 15, which recites as follows : “*Sincesome of the peo- ple that live therein, (Pennsylvania) andare likely to come thereint, ’ are foreigners, and not freemen according to the acceptation of the laws of England.” The act then provides that upon certain

pro- | -ceedings had, the said foreigners shall be *‘naturalized,”” and “shave @

and enjoy te ‘them and their heirs the same rights and immunities’

of and unto the privileges of this government, as fully and wre

as any of the Aing’s natural born subjects.” This then, as recog = nized at that early day, was what made fhe freeman of nia, having the rights and immunities and privileges of the ment,’’ as at common law; the freeman was he who had all the’privi-” leges and immunities of the body politic te which he belonged. ~~ “The freeman of the Commonwealth.” says the constitution of 790, ‘shall be armed and disciplined for defence.” Now this is a positive constitutional provision, and has, from the adoption of the constitution, been carried into effeet by Militia laws for arming the

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white population ; but negroes have been directly excluded by the use of the word ‘‘white”’ to designate those subject to its provisions. If negroes were considered as freemen, why were they not included in these laws ?. If they were embraced by, the. cons titution, then the several legislatures, from its adoption to this time, hiave violated it by making a partial law, when it was required to make a general one.

I therefore think this early and continued legislative construction of « this part of the constitution, strong evidence of its true meaning. tr 3 _ Besides, the true policy of Pennsylvania at the ado ption.of the con- stitution, certainly was to hold the negro populatiom entirely under the control of the government. She was bounded by five slave hold- ing states. Powerful and: hostile Indian- tribes pressed upon the north-western frontier, and were in the occupation of a part of her territory. The. abolition of slavery within her own borders was still an almost solitary and not long tried experiment. ‘Ihe new general government was but just established, and what would be the result of the actual condition of public affairs, no man could foresee. The tim@ was very unpropitious, andit would have been most unwise in the people of that day, to have raised into political equality with themselves, a race of men who might. become: hostile, and whose hostility. if connected with that,of others of the same race, might be most extensively injurious, if not fatal.

[have thus.come tothe conclusion, thatthe people of Pennsylvania, who framed the. present constitution were a political community of white men exclusively, and that colored persons of the African blood, were not contemplated by that, constitution. ‘That the latter have not, and never had, any chartered or constitutional ‘rights, but have always been, and.still are, subject to such laws as the sovereign pow- er may make for their government. ..That power miay elevate the negro, if it deem. fitting to equality in political power, with) itself. Whether it would be wise so to da.is,nota matter of consideration now. It is enough for us that they, have not yet done so. The constitution of 1790, left them as it found them under that of 1776.

But, (that my opinion of their rights. may not be mistanderstood,) although . political. power is not the birth right of the neg ro in Penn- sylvania, yet his civil rights, as distinguished from political, are by the law, precisely the same as those of the white man. -'This equal- ity is-absolute, practical, and efficient... If he is injured,, he has the same legal remedy, and if he injures another hegis subject. but to the same penalty, as any other person. He is protected in the enjoy- ment of his life and liberty, and pursuit of happiness, by the same laws which govern the white race. It is true’he is still subject to the power of the legislature, who may, andif circumstanees ‘should ever demand it, probably: will, place such restraints upon him as the safety of the people may require. Whether the elevation of the negro to political equality with the white race, would conduee to the safety or happiness of either, is nota.question now for decision.

For the}, reasons given, the Court ‘are of opinion that a negro in Pennsylvania HAS NOT TILE RIGHT OF SUFFRAGE, and therefore they, will now take the means-necessary to ascertain the truth of the facts alleged in the complaint.

PENNSYLVANIA CONVENTION.

stitution.

14.

d > Sit)

Nxero Surrkacz—and vote on Mr. Martin’s motion to insert the word ** WHIT” as one of the proposed amendments to the Con*

| YEAS, in fanor of the amendment, and opposed to negro suffrage :

Mr. Banks | Mr. Fry

- Barclay Fuller Barndollar | Gamble Bedford — Gearhart Bigelow Gilmore Bonham Grennell Brown,of Northa. Harris

. Brown, of Phila. Hastings Chambers Hayhurst Clapp Helffenstein Clarke, of Indiana Henderson of Dau. Cleavinger High Cline Hopkinson

'. Crain Houpt

Crawford Hyde Crum. Ingersoll Cummin Keim Curll Kennedy Darragh Krebs, Dillinger Lyons Donagant Magee Donnell Mann Doran | Martin Dunlop. M’Cahen Fleming Meredith Foulkrad Merrill

Mr. Miller

Nevin

Overfield Payne

Pollock Purviance — Read

Riter

Ritter

Rogers

Russell

Seager

Scheetz

Sellers

Seltzer

Shellito — Smith, of Colum. Smyth, of Centre Snively Sterigere Stickel Sturdevant Taggart Were Woodward—?77.

NAYS—opposed to the amendment and in favor of negro suffrage :

Mr. Agnew Mr. Clarke, of Beaver Mr. Denny Ayers — Clark, of Dauphin Dickey . Baldwin Coates _ Dickerson Biddle Cochran Earle. Care Cox Farrelly’ Chandler, Chester Craig Forward Chandler, Phila, Cunningham Hays Chauncey Darlington

Heister

15

. NAYS. Mr. Jenks - Mr Merkel Mr. Sill Kerr Montgomery Thomas Konigmacher _ Pennypacker Todd Maclay Porter, Lancaster Weidman M’Call Reigart White M’Dow Scott Young Serrill Sergeant,Pr’t. 45.

rsENT—Messrs. Barnitz, Bell, Brown, of Lancaster, Butler, Henderson, of Allegheny, Long, Myers, Porter, of N orthamp- ton, Royer, Stevens. 7

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