Justice Curtis in his dissenting opinion, after declaring the principle that the Constitution must have recognized as citizens of the United States all those who were recognized by the States as citizens at the time the Constitution was adopted, took issue with Chief Justice Taney as to the statement that in 1789 free negroes were nowhere in America recognized as citizens. At that time, he alleged, not only were all free native-born inhabitants of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, including those descended from African slaves, citizens of those States, but free negroes, where they had the necessary qualifications, possessed the franchise of electors on equal terms with other citizens. Hence, he declared, when the Constitution was adopted these became citizens of the United States, and of course remained citizens of the States in which they were domiciled. "I can find nothing in the Constitution," he said, 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."8

8 In an able article, entitled "Emancipation and Citizenship" in the Yale Laic Journal, XV, 263 (April, 1906), Mr. Gordon E. Sherman shows conclusively the fact that during the period from 1775 to 1789 free negroes were very generally held to be citizens of the colonies or States in which they lived, but that there soon began in some commonwealths a desire to banish the freedmen from their borders, to prohibit their entrance from other States, and to deny the privileges and status of citizenship to such as remained within their several jurisdictions. The historical data supplied by this article fully demonstrate the incorrectness of Taney's assertion that, at the time the Constitution was adopted, the free negro was nowhere regarded as a citizen or as qualified for citizenship. Furthermore, there had been, prior to the Dred Scott case, several decisions of state courts in which free negroes had been held to be citizens. Thus, for example, in State v. Manuel (3 IVv. ft Bat. 20), decided in 1835, the court said: "According to the laws of this State all human beings within it who are not slaves fall within one or two classes. Whatever distinctions may have existed in the Roman law between citizens and free inhabitants they are unknown to our institutions. Before our Revolution all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native born British subjects; those born out of his allegiance were aliens. Slavery did not exist in England, but it did exist in the British colonies. Slaves were not, in legal parlance, persons, but property. The moment the incapacity - or disqualification of color - was removed they became persons, and were then either British subjects, according as they wore or were not born within the allegiance of the British King. Upon the Revolution no other change took place in the law of North Carolina than was consequent

It will be noticed that Curtis, in his opinion, makes federal citizenship dependent on state citizenship - that everyone who is by the Constitution or laws of a State a citizen thereof, is ipso facto, a federal citizen, and that, indeed, the General Government is without the power to deny its citizenship to those thus created state citizens by state law. This he states still more exupon the transition from a colony dependent on an European king to a free and sovereign State. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the State, continued aliens. Slaves manumitted here became freemen; and, therefore, if born within North Carolina are citizens of North Carolina, and all free persons born within the State are born citizens of the State. A few only of the principal objections which have been urged against this view of what we considered the legal doctrine will be noticed. It has been said that by the Constitution of the United States the power of naturalization has been conferred exclusively upon Congress, and therefore it cannot be competent for any State by its municipal regulations to a make a citizen. But what is naturalization? It is the removal of the disabilities of alienage. Emancipation is the removal of the incapacity of slavery. The latter depends wholly upon the internal regulations of the State; the former belongs to the Government of the United States. It would be a dangerous mistake to confound them."

The court then goes on to show that the state Constitution gave the franchise to every adult, without regard to color, who had paid a public tax. For cases holding that the free negro was not a citizen, see Amy v. Smith (1 Litt. [Ky.] 326), decided in 1822; Crandall v. State (10 Conn. 339), decided in 1834; State v. Claiborne (1 Meigs [Tenn.] 331), decided in 1838; Pendleton v. State (6 Ark. 509), decided in 1846; Cooper v. Mayor (4 Ga. 68), decided in 1848. In the first of these cases the court said: "Prior to the adoption of the federal Constitution the States had a right of making citizens of any persons they pleased, but as the Constitution does not authorize any but white persons to become citizens of the United States it furnishes a presumption that none others were citizens at the time of its adoption."

In Pendleton v. State the judge declared: "If citizens in a full and constitutional sense, why werethey not permitted to participate in its formation? They certainly were not. The Constitution was the work of the white race; the Government, for which it provides, and of which it is the fundamental law, is in their hands and under their control; and it could not have been intended to place a different race of people in all things upon terms of equality with themselves. Indeed, if such had been the desire, its utter impracticability is too evident to admit of doubt. The two races, differing a3 they do in complexion, habits, conformation, and intellectual endowments, could not, nor ever will live together upon terms of social or political equality. A higher than human power has so ordered it, and a greater than human plicitly a little later on. The only power granted to Congress with reference to the subject, he says, is that of naturalization, and this extends only to the removal of the disabilities of foreign birth. These disabilities removed, it is left, he declares, with the States individually to determine whether or not the persons thus relieved of such disabilities, are to be admitted to state citizenship and thereby to federal citizenship. Even as to native-born free white persons it is left to the States to determine whether or not they shall be recognized as citizens. In his opinion, Curtis says: "Undoubtedly, as has already been said, it is a principle of public law, recognized by the Constitution itself, that birth on the soil of a country both creates the duties and confers the rights of citizenship. But it must be remembered, that though the Constitution was to form a government, and under it the United States of America were to be one united sovereign nation, to which loyalty and obedience on the one side, and from which protection and privileges on the other, would be due, yet the several sovereign States, whose people were then citizens, were not only to continue in existence, but with powers unimpaired, except so far as they were granted by the people of the National Government. Among the powers unquestionably possessed by the several States, was that of determining what persons should and what persons should not be citizens. It was practicable to confer on the government of the Union this entire power. It embraced what may, well enough for the purpose now in view, be divided into three parts: First, the powers to remove the disabilities of alienage, either by special acts in reference to each individual case, or by establishing a rule of naturalization to be administered and applied by the courts. Second: Determining what persons should enjoy the privileges of citizenship, in respect to the internal affairs of the several agency must change the decree. Those who framed the Constitution were aware of this, and hence their intention to exclude them as citizens within the meaning of the clause to which we have referred."