Diary in America Volume I Part 13

In this city they are both numerous and wealthy. The most extravagant funeral I saw in Philadelphia was that of a black; the coaches were very numerous, as well as the pedestrians, who were all well dressed, and behaving with the utmost decorum. They were preceded by a black clergyman, dressed in his full black silk canonicals. He did look very odd, I must confess.

Singular is the degree of contempt and dislike in which the free blacks are held in all the free States of America. They are deprived of their rights as citizens; and the white pauper, who holds out his hand for charity (and there is no want of beggars in Philadelphia), will turn away from a negro, or coloured man, with disdain. It is the same thing in the Eastern States, notwithstanding their religious professions. In fact, in the United States, a negro, from his colour, and I believe his colour alone, is a degraded being. Is not this extraordinary, in a land which professes universal liberty, equality, and the rights of man? In England this is not the case. In private society no one objects to sit in company with a man of colour, provided he has the necessary education and respectability. Nor, indeed, is it the case in the Slave States, where I have frequently seen a lady in a public conveyance with her negress sitting by her, and no objection has been raised by the other parties in the coach; but in the Free States a man of colour is not admitted into a stage coach; and in all other public places, such as theatres, churches, etcetera, there is always a portion divided off for the negro population, that they may not be mixed up with the whites.

When I first landed at New York, I had a specimen of this feeling.

Fastened by a rope yarn to the rudder chains of a vessel next in the tier, at the wharf to which the packet had hauled in, I perceived the body of a black man, turning over and over with the ripple of the waves.

I was looking at it, when a lad came up: probably his curiosity was excited by my eyes being fixed in that direction. He looked, and perceiving the object, turned away with disdain, saying, "Oh, it's only a n.i.g.g.e.r."

And all the Free States in America respond to the observation, "It's only a n.i.g.g.e.r." [See note 1.] At the time that I was at Philadelphia a curious cause was decided. A coloured man of the name of James Fortin, who was, I believe, a sailmaker by profession, but at all events a person not only of the highest respectability, but said to be worth 150,000 dollars, appealed because he was not permitted to vote at elections, and claimed his right as a free citizen. The cause was tried, and the verdict, a very lengthy one, was given by the judge against him, I have not that verdict in my possession; but I have the opinion of the Supreme Court on one which was given before, and I here insert it as a curiosity. It is a remarkable feature in the tyranny and injustice of this case, that although James Fortin was not considered white enough (he is, I believe, a mulatto) to _vote_ as a citizen, he has always been quite white enough to be _taxed_ as one, and has to pay his proportion, (which, from the extent of his business, is no trifle) of all the rates and a.s.sessments considered requisite for the support of the poor, and improving and beautifying that city, of which he is declared not to be a citizen.

Although the decision of the Supreme Court enters into a lengthened detail, yet as it is very acute and argumentative, and touches upon several other points equally anomalous to the boasted freedom of the American inst.i.tutions, I wish the reader would peruse it carefully, as it will amply repay him for his trouble; and it is that he _may_ read it, that I have not inserted it in an Appendix.

The question arose upon a writ of error to the judgment of the Common Pleas of Luzerne county, in an action by Wm. Fogg, a negro, against Hiram Hobbs, inspector, and Levi Baldwin and others, judges of the election, for refusing his vote. In the Court below the plaintiff recovered. The Supreme Court being of opinion that a negro has not a right to vote under the present const.i.tution, reversed the judgment.

"Respectfully, FRED. WATTS.

"Wm. Fogg _versus_ Hiram Hobbs and others.

"The opinion of the Court was delivered by Gibson, CJ.

"This record raises, a second time, the only question on a phrase in the Const.i.tution which has occurred since its adoption; and, however partisans may have disputed the clearness and precision of phraseology, we have often been called upon to enforce its limitations of legislative power; but the business of interpretation was incidental, and the difficulty was not in the diction, but in the uncertainty of the act to which it was to be applied. I have said a question on the meaning of a phrase has arisen a second time. It would be more accurate to say the _same_ question has arisen the second time. About the year 1795, as I have it from James Gibson, Esquire, of the Philadelphia bar, the very point before us was ruled by the High Court of Errors and Appeals against the right of negro suffrage. Mr Gibson declined an invitation to be concerned in the argument, and therefore has no memorandum of the cause to direct us to the record. I have had the office searched for it; but the papers had fallen into such disorder as to preclude a hope of its discovery. Most of them were imperfect, and many were lost or misplaced. But Mr Gibson's remembrance of the decision is perfect, and ent.i.tled to full confidence. That the case was not reported, is probably owing to the fact that the judges gave no reasons; and the omission is the more to be regretted, as a report of it would have put the question at rest, and prevented much unpleasant excitement. Still, the judgment is not the less authoritative as a precedent. Standing as the court of last resort, that tribunal bore the name relation to this court that the Supreme Court does to the Common Pleas; and as its authority could not be questioned then, it cannot be questioned now.

The point, therefore, is not open to discussion on original grounds.

"But the omission of the judges renders it proper to show that their decision was founded in the true principles of the const.i.tution. In the first section of the third article it is declared, that 'in elections by the citizens, every _freeman_ of the age of twenty-one years, having resided in the State two years before the election, and having within that time paid _a state or county tax_,' shall enjoy the rights of an elector. Now, the argument of those who a.s.sert the claim of the coloured population is, that a negro is a _man_; and when not held to involuntary service, that he is free, consequently that he is a _freeman_; and if a freeman in the common acceptation of the term, then a freeman in every acceptation of it. This pithy and syllogistic sentence comprises the whole argument, which, however elaborated, perpetually goes back to the point from which it started. The fallacy of it is its a.s.sumption that the term 'freedom' signifies nothing but exemption from involuntary service; and that it has not a legal signification more specific. The freedom of a munic.i.p.al corporation, or body politic, implies fellows.h.i.+p and partic.i.p.ation, of corporate rights; but an inhabitant of an incorporated place, who is neither servant nor slave, though bound by its laws, may be no freeman in respect to its government. It has indeed been affirmed by text writers, that habitance, paying scot and lot, give an incidental right to corporate freedom; but the courts have refused to acknowledge it, even when the charter seemed to imply it; and when not derived from prescription or grant, it has been deemed a qualification merely, and not a t.i.tle.

(_Wilc.o.x_, chap. iii. p. 456.) Let it not be said that the legal meaning of the word freeman is peculiar to British corporations, and that we have it not in the charters and const.i.tutions of Pennsylvania.

The laws agreed upon in England in May 1682, use the word in this specific sense, and even furnish a definition of it: 'Every inhabitant of the said province that is, or shall be, a purchaser of one hundred acres of land or upwards, his heirs or a.s.signs, and every person who shall have paid his pa.s.sage, and shall have taken up one hundred acres of land, at a penny an acre, and have cultivated ten acres thereof; and every person that hath been a servant or bondsman, and is free by his service, that shall have taken up his fifty acres of land, and shall have cultivated twenty thereof; and every inhabitant, artificer, or other resident in the said province, that pays scot and lot to the government, _shall be deemed and accounted a *freeman* of the said province_; and every such person shall be capable of electing, or being elected, representatives of the people in provincial council, or general a.s.sembly of the said province.' Now, why this minute and elaborate detail? Had it been intended that all but servants and slaves should be freemen to every intent, it had been easier and more natural to say so.

But it was not intended. It was foreseen that there would be inhabitants, neither planters nor taxable, who, though free as the winds, might be unsafe depositories of popular power; and the design was, to admit no man to the freedom of the province who had not a stake in it. That the clause which relates to freedom by service was not intended for manumitted slaves is evident, from the fact that there were none; and it regarded not slavery, but limited servitude expired by efflux of time. At that time, certainly, the case of a manumitted slave, or of his free-born progeny, was not contemplated as one to be provided for in the founder's scheme of policy: I have quoted the pa.s.sage, however, to show that the word freeman was applied in a peculiar sense to the political compact of our ancestors, resting like a corporation, on a charter from the crown; and exactly as it was applied to bodies politic at home. In entire consonance, it was declared in the Act of Union, given at Chester in the same year, that strangers and foreigners holding land 'according to the law of a freeman,' and promising obedience to the proprietary, as well as allegiance to the crown, 'shall be held and reputed freemen of the province and counties aforesaid;' and it was further declared, that when a foreigner 'shall make his request to the governor of the province _for the aforesaid freedom_, the same person shall be _admitted_ on the conditions herein expressed, paying twenty s.h.i.+llings sterling, and no more:'--modes of expression peculiarly appropriate to corporate fellows.h.i.+p. The word in the same sense pervades the charter of privileges, the act of settlement, and the act of naturalisation, in the preamble to the last of which it was said, that some of the inhabitants were 'foreigners and not freemen, according to the acceptation of the laws of England;' it held its place also in the legislative style of enactment down to the adoption of the present const.i.tution; after which, the words 'by and with the advice and consent of the freemen,' were left out, and the present style subst.i.tuted. Thus, till the instant when the phrase on which the question turns was penned, the term freeman had a peculiar and specific sense, being used like the term citizen, which supplanted it, to denote one who had a voice in public affairs. The citizens were denominated freemen even in the const.i.tution of 1776; and under the present const.i.tution, the word, though dropped in the style, was used in legislative acts, convertible with electors, so late as the year 1798, when it grew into disuse. In an act pa.s.sed the 4th of April in that year for the establishment of certain election districts, it was, for the first time, used indiscriminately with that word; since when it has been entirely disused. Now, it will not be pretended, that the legislature meant to have it inferred, that every one not a freeman within the purview, should be deemed a slave; and how can a convergent intent be collected from the same word in the const.i.tution, that every one not a slave is to be accounted an elector? Except for the word citizen, which stands in the context also as a term of qualification, an affirmance of these propositions would extend the right of suffrage to aliens; and to admit of any exception to the argument, its force being derived from the supposed universality of the term, would destroy it.

Once concede that there may be a freeman in one sense of it, who is not so in another, and the whole ground is surrendered. In what sense, then, must the convention of 1790 be supposed to have used the term?

questionless in that which it had acquired by use in public acts and legal proceedings, for the reason that a dubious staite is to be expounded by usage. 'The meaning of things spoken and written, must be as hath been constantly received.' (Vaugh. 169.) On this principle, it is difficult to discover how the word freeman, as used in previous public acts, could have been meant to comprehend a coloured race: as well might it be supposed, that the declaration of universal and unalienable freedom in both our const.i.tutions was meant to comprehend it. Nothing was ever more comprehensively predicted, and a practical enforcement of it would have liberated every slave in the State; yet mitigated slavery long continued to exist among us, in derogation of it.

Rules of interpretation demand a strictly verbal construction of nothing but a penal statute; and a const.i.tution is to be construed still more liberally than even a remedial one, because a convention legislating for ma.s.ses, can do little more than mark an outline of fundamental principles, leaving the interior gyrations and details to be filled up by ordinary legislation. 'Conventions intended to regulate the conduct of nations,' said Chief Justice Tilghman, in the Farmers'

Bank versus Smith, 3 Sergt. and Rawl. 69, 'are not to be construed like articles of agreement at the common law. It is of little importance to the public, whether a tract of land belongs to A or B. In deciding these t.i.tles, strict rules of construction may be adhered to; and it is best that they should be adhered to, though sometimes at the expense of justice. But where mult.i.tudes are to be affected by the construction of an amendment, great regard is to be paid to the spirit and intention.'

What better key to these, than the tone of antecedent legislation discoverable in the application of the disputed terms.

"But in addition to interpretation from usage, this antecedent legislation furnishes other proofs that no coloured 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, and the blacks were introduced into it as a race of slaves, whence an unconquerable prejudice of caste, which has come down to our day, insomuch that a suspicion of taint 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 harbour Indian or mulatto slaves, on pain of punishment by fine, or to deal with negro slaves, on pain of stripes; which annexed to the interdict of marriage with a 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 these cruel and degrading oppressions, what must have been the lot of their brethren in bondage? It is also true, that degrading conditions were sometimes a.s.signed to white men, but never as members of a caste. Insolvent debtors, to indicate the worst of them, are 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, till it was repealed by the Emanc.i.p.ating Act of 1789; 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. 2, sect. 6,) 'of the full age of twenty-one years, having resided in this State for the s.p.a.ce of one whole year before the day of election, and paid taxes during that time, shall enjoy the rights of an elector.' Now, if the word freeman were not potent enough to admit a free negro to suffrage under the first const.i.tution, it is difficult to discern a degree of magic in the intervening plan of emanc.i.p.ation sufficient to give it 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 that respectable men of dark complexion would often be insulted at the polls, by objections to their colour. I have heard it said, that Mr Gallatin sustained his motion to strike out on the latter ground. Whatever the motive, the disseverence is insufficient to wrap the interpretation of a word of 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 in the words of it; and though their meaning may be influenced by the sense in which they have usually been applied to extrinsic matters, we cannot receive an explanation of them from what has been moved or said in debate. The place of a judge is his forum--not the legislative hall. 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 obtained, it is not probable that a member of the majority could indicate any that was common to all; previous prepositions 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 munic.i.p.al regulations, without ill.u.s.tration from those of other States, where the condition of the race has been still less favoured.

Yet it is proper to say, that the second section of the fourth article of the Federal Const.i.tution presents an obstacle to the political freedom of the negro, which seems to be insuperable. It is to be remembered that citizens.h.i.+p, as well as freedom, is a const.i.tutional qualification; and how it could be conferred, so as to overbear the laws, imposing countless disabilities on him in other States, is a problem of difficult solution. In this aspect, the question becomes one, not of intention, but of power; so doubtful, as to forbid the exercise of it. Every man must lament the necessity of the disabilities; but slavery is to be dealt with by those whose existence depends on the skill with which it is treated. Considerations of mere humanity, however, belong to a cla.s.s with which, as judges, we have nothing to do; and, interpreting the const.i.tution in the spirit of our own inst.i.tutions, we are bound to p.r.o.nounce that men of colour are dest.i.tute of t.i.tle to the elective franchise: their blood, however, may become so diluted in successive descent, as to lose its distinctive character; and then both policy and justice require that previous disabilities should cease. By the amended const.i.tution of North Carolina, no free negro, mulatto, or free person of mixed blood, descended from negro ancestors to the fourth generation inclusive, _though one ancestor of each generation may have been a white person_, shall vote for the legislature. I regret to say, no similar regulation, for practical purposes, has been attempted here; in consequence of which, every case of disputed colour must be determined by no particular rule, but by the discretion of the judges; and thus a great const.i.tutional right, even under the proposed amendments of the const.i.tution, will be left the sport of caprice. In conclusion, we are of opinion the court erred in directing that the plaintiff could have his action against the defendant for the rejection of his vote.

Judgment reversed."

It will be observed by those who have had patience to read through so long a legal doc.u.ment, that reference is made to the unjust prejudice against any taint of the African blood. There is an existing proof of the truth of this remark, in the case of one of the most distinguished members of the House of Representatives. This gentleman has some children who are not of pure blood; but, to his honour, he has done his duty by them, he has educated them, and received them into his house as his acknowledged daughters. What is the consequence? Why, it is considered that by so doing he has outraged society; and whenever they want to raise a cry against him, this is the charge, and very injurious it is to his popularity,--"that he has done his duty as a father and a Christian."

"Captain Marryat, we are a very moral people!"

The laws of the State relative to the intermarriage of the whites with the coloured population are also referred to. A case of this kind took place at New York when I was there; and as soon as the ceremony was over, the husband, I believe it was, but either the husband or the wife, was seized by the mob, and put under the pump for half an hour. At Boston, similar modes of expressing public opinion have been adopted, notwithstanding that that city is the stronghold of the abolitionists.

It also refers to the white slavery, which was not abolished until the year 1789. Previous to that period, a man who arrived out, from the old continent, and could not pay his pa.s.sage, was put up to auction for the amount of his debt, and was compelled to serve until he had worked it out with the purchaser. But not only for the debt of pa.s.sage-money, but for other debts, a white man was put up to auction, and sold to the best bidder. They tell a curious story, for the truth of which I cannot vouch, of a lawyer, a very clever but dissipated and extravagant man, who, having contracted large debts and escaped to New Jersey, was taken and put up to auction; a keen Yankee purchased him, and took him regularly round to all the circuits to plead causes, and made a very considerable sum out of him before his time expired.

I have observed that Mr Fortin, the coloured man, was considered quite white enough to pay taxes. It is usually considered in this country, that by going to America you avoid taxation, but such is not the case.

The munic.i.p.al taxes are not very light. I could not obtain any very satisfactory estimates from the other cities, but I gained thus much from Philadelphia.

The a.s.sessments are on property.

City Tax, 70 cents upon the 100 dollars valuation.

County Tax, 65 cents upon ditto.

_Poor's_ Rate, 40 cents.

Taxes on Horses, 1 dollar each.

Taxes on Dogs, half a dollar each.

_Poll_ Tax, from a quarter dollar to 4 dollars each person.

It is singular that such a tax as the _poll_ tax, that which created the insurrection of Wat Tyler in England, should have forced its way into a democracy. In the collection of their taxes, they are quite as summary as they are in England. This is the notice:

"You are hereby informed, that your property is included in a list of delinquents now preparing, and will be advertised and sold for the a.s.sessments due thereon. (This being the last call.)

"Your immediate attention will save the costs of advertising, sale, etcetera.

"-- Collector.

"Collector's Office, Number 1, State of --."

It is a strange fact, and one which must have attracted the reader's notice, that there should be a poor's rate in America, where there is work for every body; and still stranger that there should be one in the city of Philadelphia, in which, perhaps, there are more beneficent and charitable inst.i.tutions than in any city in the world of the same population: notwithstanding this there are many mendicants in the street. All this arises from the advantage taken of an unwise philanthropy in the first place, many people preferring to live upon alms in preference to labour; and next from the state of dest.i.tution to which many of the emigrants are reduced after their arrival, and before they can obtain employment. Indeed, not only Philadelphia, but Baltimore and New York, are equally charged for the support of these people--the two first by legal enactment, the latter by voluntary subscription. And it is much to the credit of the inhabitants of all these cities that the charge is paid cheerfully, and that an appeal is never made in vain.

But let the Americans beware: the poor rate at present is trifling--40 cents in the 100 dollars, or about 1.75 pence in the pound; but they must recollect, that they were not more in England about half a century back, and see to what they have risen now! It is the principle which is bad. There are now in Philadelphia more than 1,500 paupers, who live entirely upon the public, but who, if relief had not been continued to them, would, in all probability, by this time, have found their way to where their labour is required. The Philadelphians are proverbially generous and charitable; but they should remember that in thus yielding to the dictates of their hearts, they are sowing the seeds of what will prove a bitter curse to their posterity. See note 2.

Note 1. "On the whole, I cannot help considering it a mistake to suppose that slavery has been abolished in the Northern States of the Union. It is true, indeed, that in these States the power of compulsory labour no longer exists; and that one human being within their limits can no longer claim property in the thews and sinews of another. But is this all that is implied in the boon of freedom? if the word mean anything, it must mean the enjoyment of equal rights, and the unfettered exercise in each individual of such powers and faculties as G.o.d has given. In this true meaning of the word, it may be safely a.s.serted that this poor degraded cla.s.s are still slaves--they are subject to the most grinding and humiliating of all slaveries, that of universal and unconquerable prejudice. The whip, indeed, has been removed from the back of the negro; but the chains are still upon his limbs, and he bears the brand of degradation on his forehead. What is it but the mere abuse of language to call him _free_, who is tyrannically deprived of all the motives to exertion which animate other men? The law, in truth, has left him in that most pitiable of all conditions--_a masterless slave_."--_Hamilton's Men and Manners in America_.

Note 2. Miss Martineau, who is not always wrong, in her remarks upon pauperism in the United States, observes:--"The amount, altogether, is far from commensurate with the charity of the community; and it is to be hoped that the curse of a legal charity will be avoided in a country where it certainly cannot become necessary within any a.s.signable time.

I was grieved to see the magnificent Pauper Asylum near Philadelphia, made to accommodate, luxuriously, 1,200 persons; and to have its arrangements pointed out to me, as yielding more comforts to the inmates than the labourer could secure at home by any degree of industry and prudence."

VOLUME TWO, CHAPTER TWENTY THREE.

Was.h.i.+ngton. Here are a.s.sembled from every State in the Union what ought to be the collected talent, intelligence, and high principle of a free and enlightened nation. Of talent and intelligence there is a very fair supply, but principle is not so much in demand; and in everything, and everywhere, by the demand the supply is always regulated.

Everybody knows that _Was.h.i.+ngton_ has a Capitol; but the misfortune is that the Capitol wants a city. There it stands, reminding you of a general without an army, only surrounded and followed by a parcel of ragged little dirty boys, for such is the appearance of the dirty, straggling, ill-built houses which lie at the foot of it.