By this it is evident that "paupers, vagabonds, and fugitives from justice" were the only persons excluded from the right of citizenship. The following is the history of the Dred Scott case:

"In the year 1834, the plaintiff was a negro slave belonging to Dr. Emerson, who was a surgeon in the army of the United States. In that year, 1834, said Dr. Emerson took the plaintiff from the State of Missouri to the military post at Rock Island, in the State of Illinois, and held him there as a slave until the month of April or May, 1836. At the time last mentioned, said Dr. Emerson removed the plaintiff from said military post at Rock Island to the military post at Fort Snelling, situate on the west bank of the Mississippi River, in the territory known as Upper Louisiana, acquired by the United States of France, and situate north of the latitude of thirty-six degrees thirty minutes north, and north of the State of Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort Snelling, from said last-mentioned date until the year 1838.

"In the year 1835, Harriet, who is named in the second count of the plaintiff's declaration, was the negro slave of Major Taliaferro, who belonged to the army of the United States. In that year, 1835, said Major Taliaferro took said Harriet to said Fort Snelling, a military post, situated as herein before stated, and kept her there as a slave until the year 1836, and then sold and delivered her as a slave at said Fort Snelling unto the said Dr. Emerson herein before named. Said Dr. Emerson held said Harriet in slavery at said Fort Snelling until the year 1838.

"In the year 1836, the plaintiff and said Harriet at said Fort Snelling, with the consent of said Dr. Emerson, who then claimed to be their master and owner, intermarried, and took each other for husband and wife. Eliza and Lizzie, named in the third count of the plaintiff's declaration, are the fruit of that marriage. Eliza is about fourteen years old, and was born on board the steamboat 'Gipsey,' north of the north line of the State of Missouri, and upon the river Mississippi. Lizzie is about seven years old, and was born in the State of Missouri, at the military post called Jefferson Barracks.

"In the year 1838, said Dr. Emerson removed the plaintiff and said Harriet and their said daughter Eliza from said Fort Snelling to the State of Missouri, where they have ever since resided.

"Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie to the defendant, as slaves, and the defendant has ever since claimed to hold them and each of them as slaves.

"At the time mentioned in the plaintiff's declaration, the defendant, claiming to be owner as aforesaid, laid his hands upon said plaintiff, Harriet, Eliza, and Lizzie, and imprisoned them, doing in this respect, however, no more than what he might lawfully do if they were of right his slaves at such times.

. . . . . . . . .

"It is agreed that Dred Scott brought suit for his freedom in the Circuit Court of St. Louis County; that there was a verdict and judgment in his favor; that on a writ of error to the Supreme Court the judgment below was reversed, and the same remanded to the Circuit Court, where it has been continued to await the decision of this case.

"In May, 1854, the cause went before a jury, who found the following verdict, viz.: 'As to the first issue joined in this case, we of the jury find the defendant not guilty; and as to the issue secondly above joined, we of the jury find that before and at the time when, etc., in the first count mentioned, the said Dred Scott was a negro slave, the lawful property of the defendant; and as to the issue thirdly above joined, we, the jury, find that before and at the time when, etc., in the second and third counts mentioned, the said Harriet, wife of said Dred Scott, and Eliza and Lizzie, the daughters of the said Dred Scott, were negro slaves, the lawful property of the defendant.'

"Whereupon, the court gave judgment for the defendant.

"After an ineffectual motion for a new trial, the plaintiff filed the following bill of exceptions.

"On the trial of this cause by the jury, the plaintiff, to maintain the issues on his part, read to the jury the following agreed statement of facts (see agreement above). No further testimony was given to the jury by either party. Thereupon the plaintiff moved the court to give to the jury the following instructions, viz.:

"'That, upon the facts agreed to by the parties, they ought to find for the plaintiff.' The court refused to give such instruction to the jury, and the plaintiff, to such refusal, then and there duly excepted.

The court then gave the following instruction to the jury, on motion of the defendant:

"'The jury are instructed, that upon the facts in this case, the law is with the defendant.' The plaintiff excepted to this instruction.

"Upon these exceptions, the case came up to the Supreme Court, December term, 1856."[45]

Judge Taney gave the following opinion:

"The question is simply this: Can a negro, whose ancestors were imported into this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights and privileges and immunities guaranteed by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution.

"It will be observed that the plea applies to that class of persons only whose ancestors were negroes of the African race, and imported into this country, and sold and held as slaves. The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State, in the sense in which the word citizen is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country and sold as slaves.

. . . . . . . . .

"We proceed to examine the case as presented by the pleadings.

"The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the government through their representatives. They are what we familiarly call the 'sovereign people, and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty. We think they are not, and that they are not included, and were not intended to be included, under the word 'citizen' in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate [405] and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the government might choose to grant them.

"It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws....

"In discussing this question, we must not confound the rights of citizenship which a State may confer within its own limits, and the rights of citizenship as a member of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all of the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen of any other State. For, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character of course was confined to the boundaries of the State, and gave him no rights or privileges in other States beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privileges by adopting the Constitution of the United States. Each State may still confer them upon an alien, or any one it thinks proper, or upon any class or description of persons; yet he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its courts, nor to the privileges and immunities of a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has always been held by this court to be so. Consequently no State, since the adoption of the Constitution, can, by naturalizing an alien, invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was concerned, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the [406] rights and immunities which the Constitution and laws of the State attached to that character.

"It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Constitution of the United States. It cannot make him a member of this community by making him a member of its own. And, for the same reason, it cannot introduce any person or description of persons who were not intended to be embraced in this new political family, which the Constitution brought into existence, but were intended to be excluded from it.

"The question then arises, whether the provisions of the Constitution, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the negro African race, at that time in this country, or who might afterwards be imported, who had then or should afterwards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and indue him with the full rights of citizenship in every other State without their consent. Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised there to the rank of a citizen, and immediately clothe him with all the privileges of a citizen in every other State and in its own courts?

"The court think the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the Constitution of the United States, and, consequently, was not entitled to sue in its courts."[46]

This decision of the Supreme Court on the plea in abatement that the plaintiff (a Negro, Dred Scott) was not a citizen in the sense of the word in Article iii, Sec. 2 of the Constitution, was based upon an erroneous idea respecting the location of the word citizen in the instrument. The premise of the court was wrong, and hence the feebleness of the reasoning and the false conclusions. Article iii, 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."[47]