Robert Yates had passed away; while Jefferson, John Adams, Madison, Marshall, Charles Pinckney, Oliver Ellsworth, Elbridge Gerry, Rufus King, Edmund Randolph, Robert Morris, Gouverneur Morris, John Langdon, George Wythe, and Richard Dobbs Spaight still remained. Not one of that number, however, survived the sixty-one years destined to pass by before the adoption of the new or civil war series of articles headed by the Thirteenth Amendment, ratified on December 18, 1865. During that interval the Union was for a time dissolved by civil war, the product of the deadly original sin of this Republic, African slavery, which had crept into the colonies prior to the Revolution. Finally in 1789 the North and the South covenanted together in what are known as the "compromises of the constitution" to perpetuate it by law forever. After that fateful compact had been signed a great moral revolt took place in the conscience of the world that ultimately destroyed the institution in this country at the end of a civil war which, for a time, disrupted the Union, in fact if not in law. The driving force of that great moral revolt manifested itself in no uncertain terms in England when Lord Mansfield, in Somersett's Case, 20 How. St. Tr. 79, held that a person forcibly detained in England as a slave, is entitled to be discharged on habeas corpus. The failure, in the celebrated case of Dred Scott, 19 How. 393,-wherein a person, having the status of a slave in a state where slavery was legal, was taken by his master into a free state of the Union in which slavery was prohibited by law, of the attempt in this country to enforce the principle thus announced by Lord Mansfield, precipitated the Civil war. The vital facts of the case, decided by the Supreme Court, March 6, 1857, were these: In 1834, Doctor Emerson took his negro slave, Dred Scott, from Missouri first to Illinois, where slavery was prohibited by statute, then to Wisconsin, a part of the Louisiana purchase, where slavery was prohibited by the Missouri Compromise. In 1838, Doctor Emerson returned with his

slave to Missouri. Then it was that Scott, or some one for him, conceived the idea that by touching the free soils of Illinois and Wisconsin during his absence he had been set free. In other words, the direct purpose of the case was to ascertain whether or not the doctrine laid down by Lord Mansfield in Somersett's case-wherein it was held that a slave, taken to England from one of the American colonies where slavery was legal, was set free by touching the soil of England, where slavery was not recognized by positive law, could be applied under our Constitution, whose compromises expressly recognized the existence of slavery as a matter of positive and supreme law. On the theory that he was a free man after his return to Missouri, Dred Scott contended that a whipping there given him by his master in 1848, was an assault and battery for which he brought suit in a state court at St. Louis and obtained judgment. While that case was pending in the State Supreme Court, Doctor Emerson sold his slave to one Sandford of the city of New York. Upon the theory that Scott and Sandford thus became "citizens of different states," the former brought suit against the latter for assault in the Federal Circuit Court for Missouri, where Sandford pleaded that the plaintiff was not as alleged a citizen of Missouri but "a negro of African descent, his ancestors were of pure African blood, and were brought into this country and sold as negro slaves." Scott in demurring to that plea claimed that he was a citizen on defendants' own showing, and his demurrer was sustained, Sandford then pleaded to the merits that plaintiff was his negro slave and that as such he had "gently laid hands on him" as he was authorized by law to do. After the court had declared the law to be with the defendant, plaintiff presented exceptions upon which the case passed to the Supreme Court, where the primary question, was one of jurisdiction. Was Scott a "citizen of Missouri" within the meaning of the Constitution? If he was not, the Federal Circuit Court had no jurisdiction of his case; and he certainly was not

a citizen but a slave, unless his residence in Illinois, where slavery was prohibited by statute, and in Wisconsin where slavery was prohibited by the Missouri Compromise had set him free. The constitutionality of the Compromise was thus the essence of the issue, because upon its validity depended the fact whether Scott's status as a slave was affected by his presence on the soil of Wisconsin. It is not likely that any jurist familiar with the practice of the Supreme Court would have seriously contended, in times free from political excitement, that the constitutionality of the Missouri Compromise, involving the entire status of slavery in the territories, was not squarely before that court on the pleadings in the Dred Scott Case, 19 How. 393. However that may be, the court so held, and that decision was conclusive upon all persons bound to respect its authority. One of the harshest critics of the judgment in question frankly admits that "the action had been brought by Scott in the Circuit Court of the United States for the District of Missouri to establish the freedom of himself, his wife, and their two children." Carson, History of the Supreme Court, p. 367. With that question squarely before it the court held that under the Constitution as it then stood, no state had the right to raise a man of African descent to the rank of a citizen so as to make him a citizen of a state or of the United States. After the end of the Civil war that judgment was affirmed by the nation as a whole when it resolved that Scott's appeal could only be granted through an amendment of the Constitution itself.

The vital importance of the case in question to the subject before us is emphasized by the fact that a grand inquest was then held, upon the eve of the Civil war, with all the machinery of learning, and with all the accessories of prolonged and exhaustive argument, in order to ascertain whether or not such a thing existed as a citizenship of the United States, defined as such by its Constitution and laws, independently of state citizenship. The most earnest seeker for such a citizenship was Mr. Justice

Curtis, who was in the highest degree qualified to ascertain it, if it existed at all. His return was non est inventus. He ascertained that there was no such thing at that time, as a citizenship of the United States, as a substantive thing independent state citizenship. He said: "I can find nothing in the Constitution, which, proprio vigore, deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native born citizens of any state after its adoption; nor any power enabling Congress to disfranchise persons born on the soil of any state, and entitled to citizenship of such state by its constitution and laws. And my opinion is that, under the Constitution of the United States, every free person born on the soil of a state, who is a citizen of that state by force of its constitution or laws, is also a citizen of the United States. That the Constitution itself has defined citizenship of the United States by declaring what persons, born within the several states, shall or not be citizens of the United States, will not be pretended. It contains no such declaration." Dissenting opinion in Dred Scott Case, 18 How. 393. When we place in juxtaposition with those weighty words the language of Section 1 of the Fourteenth Amendment-"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States"whereby the new national citizen was created, we perceive at once how prophetic they were of the definition soon to

come.

§ 16. The new national citizenship created by the Fourteenth Amendment. Mr. Justice Curtis persuaded himself that Sandford's plea to the jurisdiction was bad, and that Scott had the right to sue because "every such citizen, residing in any state, has the right to sue, and is liable to be sued in the federal courts, as a citizen of that state in which he resides." Even if we concede all the Justice claimed, it appears that such citizenship of the

United States as Scott was supposed to possess was nothing more than a secondary and dependent relation resulting from his state citizenship. Such was the solecism imbedded in the Constitution at the time of its adoption. While it created the first Federal Government that ever operated directly on citizens, the fact remained that it had no citizens in its own right. The solemn judicial ascertainment in the Dred Scott Case, 19 How. 393, that such a vacuum existed in the Constitution did more than any one thing to precipitate the Civil war; and after its close the vacuum was filled by Section 1 of the Fourteenth Amendment which, without making any direct reference to the question of race at all, contains the first positive definition ever given of citizenship of the United States as a primary and substantive thing, independent of state citizenship. It changed both its origin and character by providing that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

It is hard to exaggerate the importance of a constitutional revolution which, through the creation of this new national citizenship, shifted the center of gravity of the composite structure from the states to the nation, thus nationalizing the entire sphere of civil liberty. It is not therefore strange that we should desire to know something of the authorship of a document which has been called not inaptly, a new Magna Carta. Unfortunately, and strangely enough, the inner history of the personal authorship of the various parts of the Fourteenth Amendment is shrouded in almost as much mystery as that which surrounds the personal authorship of the old Magna Carta from which its vital part was drawn. We