LEGAL STATUS OF THE NEGRO

By Hon. Ray Rushton of the Montgomery Alabama Bar.

Lord Shaw of Dumferline in his address upon "The Widening Range of the Law" before the last meeting of the American Bar Association called attention to the fact that our jurisprudence, in so far as it pertained to the law of contract, came to us highly developed from the common law, and graciously admitted that our contributions to that department of jurisprudence "have been very real and literatim almost monumental", but he, although evidently familiar with our institution in a general way said that our problems in the department of what he termed "The Law of Status" have been, and still are, so overwhelmingly extended that he, apologetically, almost suggested "that harmonizing them is a vain dream and an objectionable or impractical idea."

Observations like this by such a distinguished and learned British lawyer naturally suggest to American practicing lawyers, all of whom are, in a greater or less degree, students and historians, an interesting and profitable field for reflection. The law of status in America is and has always been, probably more extended than in any country in the world. An interesting paper could easily be written on the status of the Indians, the Aborigines of America, who at one time, were the owners of the land reaching from ocean to ocean, and the laws, treaties and other methods by which titles have been divested out of them and invested in us, as well as their personal status from time to time as wards of the Nation.

A paper might also be written with much profit on the status of married women from the time of the Common law which treated them as the "weaker vessel" to the present time when justice has liberated their condition and made them the equal of men before the law in all respects, and gallantry still acclaims them our superiors.

Another interesting subject and probably a timely one, would be the status of the alien. The provisions of the Act of Congress permitting naturalization are confined "to aliens being free white persons, and to aliens of African nativity and to persons of African descent." No person between these two extremes need apply. The Supreme Court of the United States in the recent case of Takao Ozawa, the Jap and the more recent case of Bhazat Siugh Thind, the Hindoo, says that it is not a question of superiority of one man over another but merely the interpretation of ordinary language-and the Hindoo was shut out although of Caucasian descent.

Another interesting phase of the law of status of more recent devevlopment is that of the child, as shown by the enactment throughout the country of Child Labor Laws and Juvenile Delinquent Laws, the former having become a national question and the subject of several proposed amendments to the Federal Constitution introduced in the recently expired 67th Congress, designed to meet a recent decision.

Any one of these different phases of the law of status would be properly the subject of a paper of rather extended length, in order to give it anything like intelligent treatment and a paper covering all of them would be too much extended to impose upon my readers at any one time. I sincerely hope someone will in the immediate future, trace the legal development of each of them.

For the present address I have selected from this branch of the law, The Legal Status of the Negro and will attempt without prejudice to review the legal history of this class of our citizens by reviewing to some extent, the various decisions of the State and Federal Courts which in a very lucid way portrays his status from time to time in the past with the end in view of clearly defining to the usually well informed lawyer, who has probably never given much attention to the subject, as well as to the uniformed citizen, who has probably never given any serious study to the question at all, a clearer view of his present legal situation.

It is said that "The Englishman is at his best when doing justice”, and the record shows that English lawyers and English judges have been wonderfully successful in carrying the principles of the common law, following their flags into every country and every clime, and have administered it to people of every color, race and creed in such a manner that English law is greatly respected throughout their vast dominions. But while the Englishmen's problems have, in many instances, been similar to our own, they have rarely had the "White Man's Burden" presented to them at home. Our negro problem has, from the beginning, been a great deal more delicate for the reason that his presence was not on a distant shore, but in many instances under our own roofs, and in all instances at least in our back yards.

It is not my purpose to "open any old sores," and it is far from my purpose to make any suggestions along sectional or political lines, but merely to enable everyone, including the negro himself, to fully understand his legal status. I am hopeful of demonstrating to the outside world and especially to learned and enlightened Englishmen, that even of this, the most difficult of all our problems, our courts and

lawyers look upon harmonizing it with law and principle, not as a "vain dream" much less as "an objectionable or impractical idea."

During his long habitation of Africa, the negro made no progress in the arts, science or education. It must also be admitted that in America, both as a slave and as a freed man, he has little to his credit by way of contribution to our modern highly developed civilization, except his docile performance of tasks of labor prescribed to him by others. With no outside interference he has in the main served well in felling the forests and tilling the ground, but everything materially connected with his presence in America has in its effect upon the white man ranged from degradation to tragedy, and, politically, from compromise to bloody war.

To song and story, and especially to humorous anecdote, he has, as a medium, been the chief contributor. Foster's songs, "My Old Kentucky Home," and "Way Down Upon the Sewanee River" have a charm that touches the heart even of the uninstructed, and yet charms and appeals to the greatest artists, while the strains of "Dixie" evoke an ejaculation misscalled the "Rebel Yell" that expresses throughout the civilized world, martial, enthusiastic patriotism. The fund of anecdotes that have been invented by our wits and humorists and framed in the language of the darky, would fill many volumes and for many years the author who can master his dialect and at the same time delineate his phylisophic characteristics, has the greatest number of readers. The "sayings" of Uncle Remus are a classic and we must admit that there is no distinctive American literature and nothing of folk lore has been evolved than that which emanates, either in fact or fiction, from his humble cabin.

In this "Government of Laws" every phase of human activity, or, we might more properly say, every phase of human dispute or difference of opinion, finds its way finally in some form or other, to the courts, and we will now proceed without further preliminary to review to some extent the many interesting cases in the books where lawyers and judges have, in many various forms, had to deal with these "persons of color" brought amongst us without their consent, tutelaged by slavery from savages to docile domestics and a knowledge of the Christian religion, and finally at the cost of billions in treasure and the lives of the flower of a continent, to the privileges of freedom and citizenship in a land and under a government where Opportunity offers the greatest rewards to Morality and Competency.

An examination of the various court decisions reveal some very interesting cases involving his status, and if I was disposed to treat

the subject in anything like a humorous way, or be guilty of alliteration, I could well denominate this paper "Cully's Curious Cases in the Courts." But the real questions involved were not only delicate but in their last analysis grave, prosiac and serious.

THE WORD "SLAVE” IS NOWHERE USED IN THE ORIGINAL OF THE FEDERAL CONSTITUTION

At the beginning of the Government the negro question was a very delicate one with the fathers. In Jefferson's original draft of the Declaration of Independence, the importation of slaves against our consent was one of the things charged to George the Third's Governments-but it was stricken out before its adoption. Mr. Madison saw to it that the word "slave" was not used anywhere in the original of the Constitution. Neither is the word "negro" used. They are spoken of as "persons", "persons bound to service", and "persons held to service or labor". The fathers fully recognized the evils of slavery and would have, no doubt, provided for its complete àbolition, had it been feasible. But under the circumstances they had to content themselves with giving the general government the power to prevent the traffic, and even had to forego that power until after the year 1808. It would be ungenerous on our part to criticise them for not settling the matter at once and for all time. At that time slavery existed in some form in all of the states, and they probably did as well as could be expected when they accorded to the general government the postponed power to stop the traffic. It must be remembered that we in modern times began the war on the liquor evil by first attacking the traffic. The result was that negroes were left in the condition of property with a guaranty of protection as such to their masters.

THE ORIGIN OF SLAVERY IN AMERICA

In the case of "The Antelope" 10th Wheaton, 66, Judge Marshall gives the origin and the history of slavery. He says:

"But from the earliest times it has existed, and has confered rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was, that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced repugnant to the laws of nations, which is certainly to be tried by the test of general usage. That which has received the assent of all, must be the law of all.

"Slavery, then, has its origin in force but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful.

"Throughout Christendom, this harsh rule has been exploded, and war is no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal. The parties to the modern law of nations do not propagate their principles by force but Africa has not yet

adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. Can those who have themselves renounced this law, be permitted to participate in its effects by purchasing the beings who are its victims?

"Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution in those principles of action which are sanctioned by the usages, the national acts, and the general assent of that portion of the world of which he considers himself as a part, and to whose law the appeal is made. * A jurist could not say that a prac. tice thus supported was illegal, and that those engaged in it might be punished, either personally, or by deprivation of property."

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From the Antelope case we learn, therefore, that the negro's status as a slave resulted from their being unfortunate captives of wars between tribes of their own race in his home in Africa, and it is further shown from the opinion and magnificent briefs of counsel in the Antelope case, that slavery was introduced into America among us during our colonial state against the solemn remonstrances of our legislative assemblies. Free America did not introduce it. She led the way in a measure for prohibiting the slave trade. The Revolution which made us an independent nation, found slavery existing among us as a calamity entailed upon us by the commercial policies of the parent country. In an attempt to mitigate the evil at its source, it was felt that they were compelled to tolerate the existence of domestic slavery under municipal laws.

The Antelope case involved the rights of citizens of Spain and Portugal and in it Marshall was passing upon the slave trade as effected by the Law of Nations, but he also wrote the opinion in at least two other cases which involved the status of the negro from the standpoint of domestic law.

In 1783, more than four years before the adoption of the Constitution, the State of Maryland passed an act entitled "an Act to prohibit the bringing of slaves into the state", in the body of which act it was provided that "after the passing of this act it shall be unlawful to import or bring into this state, by land or water, any negro, mulatio or other slave, for sale, or to reside within this state; and any person brought into this state as a slave contrary to this act, if a slave before, shall thereupon immediately cease to be a slave and shall be free." The act contained a proviso that its provisions should not apply to "any citizen of some one of the United States carrying his slaves into this state with a bona fide intention of settling therein',, and permitted such citizens to bring his slave with him, but prescribed that he should prove to the "naval officer or collector of the tax',, the bona fide intention to settle in the state and that such slave or slaves had been an inhabitant of one of the United States for three whole