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They set forth, that on board the large number of Massachusetts vessels which are accustomed to touch at the Southern ports of this Union, it is frequently necessary to employ free persons of color. They proceed to state, that it often happens, at the ports of Charleston, Savannah, Mobile, and New Orleans, that these free persons of color are taken from the vessels to which they belong, thrown into prison, and there detained at their own expense. They submit, that such proceedings are greatly to the prejudice and detriment of their interests, and of the commerce of the nation. And they conclude by praying, that relief may be granted to them, and that the privileges of citizenship, secured by the Constitution of the United States, may
be rendered effectual in their behalf. The committee regret to say, that the facts which are set forth in the memorial, have been of too frequent and too notorious occurrence to admit of any denial or doubt. They regret still more to add, that the acts of violence complained of by the memorialists, have owed their occurrence, not to any temporary excitement or any local outbreak, but to the deliberately enacted laws of the States in whose ports they have been perpetrated. It is known to every one, that laws, making it the imperative duty of the local magistrates to search for, arrest, and imprison, any free persons of color belonging to the crews of vessels which may enter their harbors, have existed, and have often been most oppressively executed, during a long series of years, in some of the Southern States of this Union.
The existence of such a law in the State of South Carolina gave occasion, almost twenty years ago, to a formal remonstrance to our National Executive, on the part of the Government of Great Britain, as being in direct conflict with the rights which had been stipulated to British commerce by the most solemn treaties. An interesting correspondence, relating to this remonstrance, was communicated to this House during the last session of Congress, and is annexed to this report, for more convenient reference.
Laws of the same character have been more recently enacted in other States. Within the past year only, such a law has been introduced into the code of Louisiana, whether as an original enactment on the subject, or as a revised statute, the committee have not thought it important to inquire.
The committee have no hesitation in agreeing with the memorialists, that the acts of which they complain, are violations of the privileges of citizenship guaranteed by the Constitution of the United States. The Constitution of the United States expressly provides, (art. 4, sec. 2,) that “ citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” Now, it is well understood that some of the States of this Union recognize no distinction of color in relation to citizenship. Their citizens are all free; their freemen all citizens. In Massachusetts, certainly—the State from which this memorial emanates — the colored man has enjoyed the full and equal privileges of citizenship since the last remnant of slavery was abolished within her borders by the constitution of 1780, nine years before the adoption of the Constitution of the United States. The Constitution of the United States, therefore, at its adoption, found the colored man of Massachusetts a citizen of Massachusetts, and entitled him, as such, to all the privileges and immunities of a citizen in the several States. And of these privileges and immunities, the acts set forth in the memorial constitute a plain and palpable violation.
It matters not to this argument, in the opinion of the committee, what may be the precise interpretation given to this clause of the Constitution. However extended or however limited
may be the privileges and immunities which it secures, the citizens of each State are entitled to them equally, without discrimination of color or condition; and unless it is maintained that the citizens of Massachusetts generally, may be made subject to seizure and imprisonment for entering these Southern ports in the prosecution of their rightful business, whenever the Legislatures of South Carolina, or Louisiana, or Alabama, or Georgia, may see fit to enact laws to that effect, it is impossible to perceive upon what principle the acts in question can be reconciled with this constitutional provision.
The State laws under which these acts are committed, are also, in the judgment of the committee, in direct contravention of another provision of the Constitution of the United States.
The Constitution of the United States gives the power to Congress "to regulate commerce with foreign nations and among the several States." This power is, from its very nature, a para. mount and exclusive power, and has always been so considered and so construed. There is no analogy between this power of regulating commerce and most of the other powers which have been granted to the General Government. The power to regulate admits of no partition. It excludes the idea of all concurrent, as well as of all conflicting, action. It can be exercised but by one authority. Regulation may be as much disturbed and deranged, by restraining what is designed to be left free, as by licensing what is designed to be restrained. The grant necessarily carries with it the control of the whole subject, leaving nothing in reference to it for the States to act upon. But it is too obvious to require, or even bear, an argument, that the laws in question, imposing severe penalties, as they do, upon certain classes of seamen for entering certain ports, are infringements, by the States in which they have been enacted, upon this exclusive authority of the General Government.
Nor can the States which have enacted these laws escape, in the judgment of the committee, from the charge of having violated still another provision of the Federal Constitution. The sixth article of that instrument declares, that "all treaties made, or which shall be made, under the authority of the United States, shall be a part of the supreme law of the land." But the provisions of the laws in question, wherever they are applicable to the crews of foreign vessels, are in direct conflict with most, if not with all, of the commercial treaties which have been made by the United States with foreign nations. Certainly, no treaty of commerce between the United States and any other nation is known to the committee, which contains any restrictions as to the color of the crews by which that commerce is to be carried on.
It seems to be understood, that the application of these laws to foreign vessels has of late years been suspended. This consideration, however, if true, cannot make the laws themselves less obnoxious to constitutional objections; still less can it render them more acceptable to our own citizens. The idea that foreign seamen are treated with greater clemency in our own ports than native American seamen, can only serve, on the contrary, to increase the impatience, and aggravate the odium, with which such laws are justly regarded.
The committee are aware that the laws in question have sometimes been vindicated upon considerations of domestic police; and they have no disposition to deny, that the general police power belonging to the States, by virtue of their general sovereignty, may justify them in making police regulations even in relations to matters over which an exclusive control is constitutionally vested in the National Government.
But the committee utterly deny that provisions like these can be brought within the legitimate purview of the police power. That American or foreign seamen, charged with no crime, and infected with no contagion, should be searched for on board the vessels to which they belong; should be seized while in the discharge of their duties, or, it may be, while asleep in their berths; should be dragged on shore and incarcerated, without any other examination than an examination of their skins; and should be rendered liable, in certain contingencies over which they may have no possible control, to be subjected to the ignominy and agony of the lash, and even to the infinitely more ignominious and agonizing fate of being sold into slavery for life, and all for purposes of police, - is an idea too monstrous to be entertained for a moment. It would seem almost a mockery to allude to the subject of police regulations in connection with such acts of vio. lence.
It may be difficult, perhaps, to assign the precise limits to which this police power of the States may extend. There is one limit to it, however, about which the committee conceive there can be no question. The police power of the States can never be permitted to abrogate the constitutional privileges of a whole class of citizens, upon grounds, not of any temporary moral or physical condition, but of distinctions which originate in their birth, and which are as permanent as their being. Or, to use still more general terms, the police power of the States can never justify enactments or regulations, which are in direct, positive, and permanent conflict with express provisions or fundamental principles of the national compact.
This would seem to be the doctrine laid down by the Supreme Court of the United States in the recent case of Prigg versus the Commonwealth of Pennsylvania. The Court having in that case decided that “the power of legislation in relation to fugitives from labor is exclusive in the national government," seem to have anticipated that a necessity for State interference might arise, in reference to the peace and security of the Commonwealth in which such fugitives might take refuge. They accordingly admit, that the general police power of the States would reach to such a case; but they declare that any such regulations of police “ can never be permitted to interfere with, or obstruct, the just rights of the owner to reclaim his slave, derived from the Constitution of the United States."
Now, if such a limitation be applicable to the third paragraph of the second section of the fourth article of the Constitution, it certainly cannot be less applicable to the first paragraph of the same section of the same article. If the police power of a State cannot be permitted to divest a master of his constitutional right over his slave, as secured by one of these provisions, as little can it be suffered to divest a free citizen of his constitutional right over himself, his own actions, and his own motions, as guaranteed by the other. If, on the contrary, this police power can make a citizen no citizen in one State, it is hard to perceive why it cannot make a slave no slave in another State.
There is an act on the statute book of the United States which may seem to have some reference to the subject under consideration. It bears date February 28, 1803, and contains the following, among other provisions :
“ No master or captain of any ship or vessel, or any other person, shall import or bring, or cause to be imported or brought, any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States, or seamen natives of countries beyond the Cape of Good Hope, into any port or place of the United States, which port or place shall be situated in any State, which, by law, has prohibited, or shall prohibit, the admission or importation of such negro, mulatto, or other person of color.
“ No ship or vessel arriving in any of the said ports or places