THE UNIONIST.

BROOKLYN, SEPTEMBER 5, 1833

—— — — — — — — — —

[Reported for the Unionist.]

TRIAL OF MISS PRUDENCE CRANDALL.

(continued.)

Mr Ellsworth, after stating the case, and remarking on the prohibitions of the law, said that he proposed not to occupy time in relation to the facts of the case. He would willingly have advised the pupils of Miss Crandall to have testified had he not believed that in so doing they voluntarily surrendered their most sacred rights. True it was, the defendant has kept this school—‘twas no secret, and whether that constituted a crime or not was for the jury to determine. In order to convict my client, said Mr.E., you, gentlemen, must find on your oaths that she has committed a crime. You may find that she has violated an act of the State legislature, but if you also find her protected by a higher power, it will be your duty to acquit. The court he was fully assured, would charge the jury that the law was unconstitutional, if they so believed, but after all, it belonged to the people to determine whether one of them had been guilty of a crime. Each one of the jury must be satisfied for himself alone, that a crime has been committed. He flattered himself that he should be able to lead them to the conclusion that the law in question was a violation of the constitution of this State and of the United States.—The constitution of the United States was the highest power known in our land. Beyond that, no Legislature can go, and if the jury find the law not to stand well with the constitution they must say so.

The real question for the jury to settle Mr Ellsworth apprehended to be this: Can the Legislature of Connecticut pass a law prohibiting the citizens of other States from coming into this State, and there residing, to prosecute the acquisition of knowledge, in a way open to the citizens of this State. This he believed was the precise question, and it reached deep and wide—wider and deeper than was perhaps imagined. It was however claimed by his friend from Canterbury, that colored persons were not citizens, and that the provisions of the constitution, with respect to citizens of the United States, did not apply to this class of our population. The criterion of citizenship was complexion, in the view of the gentleman who had preceded him. I, said Mr E., make the criterion to be either birth or naturalization. Admitting that none but white persons can be naturalized, it does not touch the question of citizenship by birth. Is it so that a person born on our soil, is not a citizen of our soil? In the days of Revolution, said Mr E., these men fought side by side with our fathers, and shed their blood for this country, which as their country—the country to which they owed indefeasible allegiance. Their names were now inscribed on the Pension Rolls of the Government—they now received the honorable trophies of the services they had rendered. Where, said Mr E., does the gentleman get the doctrine that the rights of man, as a citizen, depend upon his color? A colored man could appeal to the laws for the protection of his rights in every State; could he, if he were not a citizen? (Mr. E. here read a few sentences from the commencement of the declaration of independence, which, he said, according to the argument of the gentleman opposed to him, ought to be changed so as to have the words “except black people” introduced between each clause). Mr E. said he was a republican, he claimed to be as much of a republican as his friend from Canterbury, and he hoped that his friend was not so ashamed of his republicanism, as to wish this instrument, the Declaration of Independence, interpolated in this manner. Our own constitution, continued Mr E., recognized, in express terms, equality of rights—that men were equal in rights, but to this the gentleman would add “except black men.” He hoped he should not live long enough to see such doctrine go forth from Connecticut. The free colored population has, and is justly entitled, to equal representation in the Congress of the United States with the white population. Could not a black man commit treason? The gentleman would have it that he could not, for none other than citizens can. (Mr E. here read from the 2d Kent’s Com. on the subject of citizenship, by birth.) I scout the Idea, said Mr E., that a man, born here by the side of me, is not a citizen because, his father was black, while I am a citizen because mine was white.

Mr E. said that the argument which his friend had drawn from the fact that our state constitution provided that none but white citizens should become electors, would seem to be based on the assumption that the right of voting was a criterion of citizenship. Is this, he asked, the fact? Was the right of voting a test of citizenship? If it is, where are our wives and daughters? Citizens, or not? Would the gentleman denationalize them? How could persons born here be aliens? Mr E. then proceeded to examine more minutely the abstract question which he had before stated. It was, he said, a great question, one which he had not doubt would make a figure in the future history of this country. If, said Mr E., resident citizens of this state may choose their own instructors, then, he believe, that citizens from other states, here by their sides, may also choose theirs. If the Legislature of Connecticut can say to a black citizen of New York that he shall not come here to be instructed he may say so to the white citizen. Where is the distinction? It comes then to this, our Legislature can say as to the population of an adjacent state, for instance New York, it is corrupt, and its citizens shall not come within our limits—be they white or black it makes no difference. A barrier was thus at once erected around our state. An absurdity so manifest as this must strike every mind. Nothing but a high state of excitement could ever have caused the enactment of such a law as the present. The citizens of Canterbury he had no doubt, would, on reflection, perceive the impropriety of their course. The care and supervision which the Legislature had exercised over schools in this state did not, as Mr E. apprehended imply the right to exercise any such power as that set up in the new law.

The law, which regulate trades and professions, to which allusion has been made, were also, he said, of an entirely different character. These regulations and restrictions, it must be remembered, were the same for all. Whether one belonged to the state or not, these laws knew no difference. The new law has made a difference, and in that consisted the difficulty. The application of the new law must depend upon the fact whether a person was born in or out of the state. The Legislature leave the black man born here, the freedom of selecting his own instructor, and the place of instruction for his child. This privilege is denied to the black man who comes here, if it so happens that he was born out of the state. But, says the gentleman, his children may go to the district schools, to any of the high schools of academies in the state. The benefits which colored children would derive from these schools, said Mr E. would not be worth a pinch of snuff, and the gentleman knows it.—The blacks in Hartford had petitioned for a separate school, in order that they might have the benefit of the public money, which they did not enjoy now, as they were ever made hewers of wood and drawers of water, and considered the offscouring of the schools which they attended. They made commotion in every school the moment they entered it. There existed then a necessity for separate schools.—He was not going abreast of any principle of supervision which the state could properly exercise over schools, or over trades and professions, by contending for the rights of citizens to choose their own instructors, and the place of instruction, for their children, whether they were or were not citizens of this state. The old statute in relation to paupers was considered as upholding this law. By it, persons liable to become chargeable might be warned to depart, and might be publicly whipped if they did not obey the mandate. He would here thank his friend from Canterbury for obtaining a repeal of that portion of the law by which whipping was imposed. Mr E. apprehended that a state possessed the power of preventing the settlement, within its limits, of those likely to become paupers, but that the state had the power of keeping out every body from other states, he denied altogether. Will it be said that the law in question does not go to this extent? If a citizen of Massachusetts may come into this state and settle down, what is he here for? Must he be a drone? What is the privilege of moving worth to him? Citizens of other states may come here and become farmers, or lawyers, (that would be a poor business, said Mr E.) or doctors. They may, when here, said Mr E. do what citizens here may do, or the constitution is not worth a rush. ‘Twas claimed that blacks might come here and go to other schools. Might not the Legislature then say to them, and to all others, you shall send your children to the Presbyterian school—to the Baptist school, or to the Methodist school? Might not the Legislature further say, we do not like Roman Catholics, and we will therefore have no school where Catholics instruct? Gentlemen must go this length, who advocate this law. Would it be claimed that the fact of putting this power in the hands of the select men to exercise, made any difference? This was a mere parade of liberality—the select men of Canterbury would sooner shed their blood than grant Miss Crandall permission to keep this school. The power to license, said Mr E., is a power to deny—and we are to hold our most sacred rights and privileges at the pleasure of the select men; they can grant or they can prohibit.

Mr E. now proceeded to consider the rights which citizens of each state are entitled to enjoy in the several states. He read from the opinion of Judge Washington, as reported in the 4 ^th of Washington’s Circuit Court Reps. page 380, which he claimed showed conclusively that the new law of Connecticut was unconstitutional. He also maintained that the views he took of this law were supported by Judge Story, in the third volume of his recent work on the Constitution and also in Sergeant’s Constitutional law, page 385. The legislation of Congress on the subject of the Missouri question, he claimed distinctly recognized blacks as Citizens. The law when it says that no person shall keep a school for the instruction of blacks from abroad, says, in effect, that no foreign person shall come here and be taught—How were they to be taught without a teacher? This law would extinguish the light of knowledge—would degrade those who are now degraded, and depress those who are now depressed. It said to the naked, go unclothed, and to the hungry, go unfed. The distinctions which now existed on account of color were sufficiently great—the colored people had now difficulties enough to struggle with—he hoped they would not be increased.

The general policy of this law, continued Mr E., and its connexion with the subject of slavery, though a question touching deep feelings, cannot, without impropriety, be discussed here. Had he been a member of the legislature that enacted it, he might have said something on the subject, but should refrain from it on the present occasion.

In conclusion, Mr. Ellsworth thanked the jury for the attention they had paid to his remarks, which, he said, were quite unsatisfactory to himself. He hoped they would see their way clear, before they found his client guilty of a crime for endeavoring to elevate and enlighten an unfortunate portion of our race. Were they prepared to say that teaching the word of God was a crime? That it was a crime to teach children the Bible? He left the case with them. He trusted that the court would tell them that the law was unconstitutional, but if they should not, my appeal, said Mr E., is to THE PEOPLE, and to THE PEOPLE I leave my client.

Mr. Strong said that after the very full, and eloquent, and conclusive argument of his brother Ellsworth, it would be more grateful to his feelings to leave the case in the hands of the jury without adding a word. He feared that he should rather diminish than add to the force of that argument. He however found an apology for occupying a short time, in the magnitude of the case under consideration. It involves the liberties of the people.

Those who advocate the cause of the defendant, said Mr. S., are charged with endeavoring to nullify the laws. What is nullification? An attempt by the Legislature of a state, to destroy a power higher than itself. South Carolina had done this to the fullest extent—our own state had made some progress, but the right of trial by jury was still left us. A culprit is here arraigned—a female—by the courtesy of the court she had not been called upon to hold up her hand, and plead to the information against her, but she nevertheless stood there as a criminal. She was charged with giving instruction, but there was no pretence that she has inculcated bad principles. He had heard of a land where this might be criminal, but it was a land where despots reigned. Her crime consisted in this, that she had given light to those who were in mental darkness—had taught those who were ignorant, to read the bible. It was true that the persons to whom she had given instruction were descendants of that unfortunate race, who were even in a state of slavery in this country. He said this not to their reproach, but to our own. He rejoiced that public sentiment had changed on the subject—but one feeling now exists & that was not peculiar to our own country. The Legislature of Great Britain was engaged in passing a law of a very different character from the one now in question, at the very time that our Legislature passed this. Even in a country where a king and nobles constituted one branch of the legislature, a law had been passed, almost simultaneously with our own, strikingly dissimilar in its provisions. We complained that this class of persons were low, degraded, and addicted to crime. Has God made them so, or have they been made so by ignorance? ‘Twas a little boon to give them liberty, and keep them in ignorance. Better to rivet the chains of slavery, then to break those and rivet again the chains of ignorance. But one sentiment now pervaded the people of this country, with respect to educating these people—there was a difference as to the way. Some were for colonizing them, others had different views, but all agreed they ought to be instructed in some way. If they were carried out of the country in ignorance, was it not carrying them away that they might destroy themselves. Unless education accompanied them all was in vain. What, asked Mr. S., has been the course pursued by the defendant? He rejoiced that her pupils had been before the jury, and that they had had opportunities of seeing them. Were they not worthy of being instructed? Had not the defendant entirely deferred to public sentiment, in relation to keeping the races separate? What more feasible course for educating these people could be point out, than the one she had adopted? The colored race could not educate themselves—unless some person would step forward and overcome these prejudices, whether rightful or not, he should not decide, they must ever live in ignorance.

MR. STRONG, next proceeded to remark on the law.

He read the preamble and said it put him in mind of the painter, who affixed a label to his pictures, lest the spectators might not otherwise be able to determine what animal he intended to delineate. The question, continued Mr S., is often asked, "would you be willing to have a school of this description in your own neighborhood?” What if we should not, could we put it down by passing an unconstitutional law? What if I did not wish my neighbor to keep a large number of dogs, could I of course compel him to put them away? This law does not prevent colored persons from coming to this State. They may come and be idle, and welcome—they may come for any earthly purpose except education. That they are told they must get in the district schools. In these schools, the colored class sit on the lowest bench. They cannot go to these schools—as soon as their minds become a little expanded, they must retire from them. He wished to have an instance pointed out where any black had continued to attend, for any length of time, and derived benefit. It was impossible that such should be the case as things now were. What they desired was a school by themselves, where, and only where, they could acquire an education. They asked of us bread, but we gave them a stone—they asked a fish, but we gave them a scorpion—there was the sting of reproach in it. We place our foot on the black, and hold him down in the dust, and then complain that he does not grow to the perfect stature of a man. There was but one Academy in the State where they could be admitted at all, and this was by the munificence of a private individual—he alluded to the late Mr Bacon of Colchester. He should have supposed by the argument of the gentleman who opened the case for the prosecution, that the new act would open the doors [of] every academy and college in the State. The proviso in the law amounted to nothing—it might as well have provided that nothing in that act should be construed to prevent colored persons from holding all the Bank stock in the State. The act exposed one to penalties who should instruct a colored person, from another State, in a sabbath school. It compelled us to obtain a license to seek out the poor, the ignorant, the destitute, and the benighted.

It is claimed, said Mr S., that the legislature have the power to regulate schools—be it so. He asked however to be pointed to an instance where the regulation depended on the character of the scholar. This law excluded those whom it pronounced bad. He would say, let all be instructed, particularly the bad that they might be made better. He spoke however with confidence, when he said, that no law had ever existed, in this State, to regulate private school. (Mr S. then read from some of the ancient statutes, regulating schools, appointing inspectors, &c.) The legislature, continued Mr S., regulated these schools because they had established them, and they undoubtedly might do so. Was this power claimed in order to prevent bad principles from being taught? He did not perceive that the defendant had offended in this respect. There was nothing bad in teaching arithmetic, geography, grammar, and the bible. If this however was the object of the law, whom did it protect? Our own citizens? No—we might teach them every thing naughty that we chose, but were restrained from doing so to those who came from abroad. This, said Mr S., is really the most diffusive kind of benevolence I ever heard of. Most of our criminal laws, continued Mr S., gives the court some discretionary power in imposing punishment, in this law the penalty is fixed, if the law itself be not fixed—if it be not pierced by the spear which emanated from the constitution. All public officers are sworn to support the constitution of the United States, and if any law interferes with that, it must be disregarded—otherwise they would incur the guilt of perjury. Whether any of the jury had taken this oath, he knew not, nor was it material to his argument. The Constitution of the United States was the supreme law, and must be regarded by all citizens, whether public officers or not. He meant to speak with all respect of the opinion of the Court, and though in civil matters the jury were bound to take the law as given from the Bench, it was otherwise in criminal questions. Here the Court advise, and the jury decide.

He intended no disrespect to the legislature which enacted this law, by the animadversions which he made concerning it. It was notorious that public feeling frequently exercised a strong influence in regard to the passage of laws. As an instance of this, he would refer to a law passed a few years since in this State, called the Steam-boat law. In this law, we cut off many of our privileges for the sake of retaliating on the State of New-York. The law was passed by acclamation. Gov. Wolcott sent a sensible well written message to the legislature, suggesting its impolicy and unconstitutionality, but it was no more regarded than if he had sent a page of the spelling book—it did not change a vote. The Dartmouth College case was another instance of the passage of a State law, in time of high excitement. Again and again had our sacred constitution been called to exert its conservative principle.

Mr S. said that it was with some surprise that he had listened to the statement of the opening Counsel for the prosecution, as to the law of Pennsylvania, relating to the residence of blacks in their limits. What the gentleman asserted to be the law of that State, which he had so properly styled “the land of Penn,” was a bill reported to the legislature, but never passed into a law. Other bills had been framed and prepared to pass, in other legislatures, which Mr S. apprehended would form a miscellaneous collection. It would greatly gratify his curiosity, could he get a sight of some of them. It was no reflection on the character of our State, that under excitement, it had passed an unconstitutional law—other States had done the same. Mr S. here referred to the second section of the 4^th Article of the constitution, on which he said he relied to prove the unconstitutionality of the law. He also read from the articles of confederation, which he claimed to contain a similar provision. By the adoption of the constitution, we were, said Mr S., made one people. ‘Twas necessary—‘twas the principle of the proclamation of Gen. Jackson, so deservedly popular throughout this section of the Country. If this principle was impugned, it destroyed that which alone made our government worth anything. (Mr. S. also read from Judge Story what had before been quoted by Mr Ellsworth) In ancient times, continued Mr S., it was a proud boast—“I am a Roman citizen.” A citizen of the United States was entitled to one no less proud—I am an American citizen. We were not to say that we were citizens of Connecticut, but that we were American citizens. A portion of our country men might wish to raise the Palmetto banner, but the eagle and the stripes were our badge. The attorney for the prosecution would improve upon the Nullification of South Carolina. That State had only to pass an act excluding the standing army o the United States from her territory, and the principles of the old General’s proclamation were all nullified, or Mr S. was greatly mistaken. Were blacks citizens? The term “citizen” was to have a technical sense. He had listened with pleasure to this remark from the gentleman who opened the case, for when a word has a technical signification, it was always easy to get its precise meaning. All the technics however which seemed to attach to the word were that a citizen must not be colored. If colored persons were not citizens, Mr S. claimed that they were not inhabitants, which conclusion was manifestly absurd. Color had no connection with the question of citizenship by birth, though it had in respect to naturalization. In deference to southern views, the Militia laws of the nation, passed in 1792, did not include colored persons—the words were, “every free white male citizen”—was not this an express recognition that persons other than whites were citizens? If “citizens” meant a white person only, why was this language used? (Mr S. here read from Ingersoll’s digest 745, relative to the protections granted to American seamen, which, he said were always given to blacks as well as whites.) The war of 1812 was caused, continued Mr S., in no small degree, by the impressment of our seamen who had these protections in their pockets. Our government considered the impressment of blacks who had these protections, as standing on the same ground with the impressment of the whites, and the war was declared and fought as much on their account as on account of the whites. The law in relation to American shipping required that in order to be entitled to discriminating duties at the custom house, it must be owned in whole or in part, by American Citizens. Colored persons frequently owned ships which were uniformly regarded as the property of American citizens.

Mr S. named Paul Cuffee as an instance.

The courts of the United States were open to citizens and also to aliens—aliens, however, must describe themselves as such, in order to maintain an action. The uniform practice was for blacks to sue as citizens, never as aliens. Mr S. here read from Kent’s Com. and claimed from the doctrine there advanced that a black might go from one State to another, and enjoy in that other, the same privileges that a person of the same class enjoyed who belonged to that other State, I do not claim, said Mr S., that a citizen of an other State coming into this State, brings all privileges with him which he before enjoyed—he brings with him however the character of a citizen of the United States, and that entitles him to enjoy here, the same privileges with our citizens under circumstances similar to his own.

Gen. Jackson, said Mr S., in his proclamation at New Orleans, addressed the blacks as “fellow citizens.” Did he mean to insult them? No, he meant to recognize them as citizens and the law so recognized them. They could purchase and hold real estate, could gain a settlement, and could, in fact, do what citizen[s] could, and what aliens could not do. It would be an insult to talk of naturalizing a man born here. The constitution of our State had been alluded to, in order to prove that blacks were not citizens, because it did not allow them to vote. Voting was not test of citizenship. If it was then by the showing of the gentleman, blacks were citizens, for in New York they were allowed to vote, and were therefore, according to the gentleman, citizens of the United States in New York; of course they were citizens here.

Mr Strong here replied to the arguments which had been drawn from the course of legislation pursued by other States in respect to the blacks—the law of Ohio, &c. He read the law of Louisiana, which affixed a penalty of $500 or the first offence of instruct[ing] a black in the Sabbath Schools, death for the second. The jury, he said, were not to regard the laws of other States as necessarily giving the true construction to the Constitution.—These laws, if unconstitutional, did not support our law, and it was their province to decide their constitutionality. He also referred to a late opinion of Judge Baldwin, given in the Circuit Court of the United States, and also to the opinion of Judge Washington before referred to, with respect to the rights of citizens of the U. States in the several states.

Our ancient law, said Mr. S., which allowed persons to be carried out of the State, who were not citizens, was restrained from operating on apprentices, because they came for the acquisition of knowledge.—While minors were prevented from contracting for any thing but necessaries, they were allowed in express terms, to contract for the purpose of education.—Was education, he asked, a fundamental right? Ferdinand of Spain, he presumed did not believe that it was, neither did that king who was now chased through Portugal—and why? because education was the basis of liberty. Should such however be the doctrine of this free land? If our law had said that blacks in this state should not be educated at all, though inhuman and unchristian, it would not be liable to the same objections that it now is. The case seemed to him as plain as any he had ever submitted to a jury. The conclusion followed on the heel of the premises. If a school was opened to blacks who belonged to this state, it was certain it must be open to those who came from other states, under the same circumstances, for by the Constitution of the United States, they were entitled to a community of rights.

As it regarded the license, which, under this law, might be obtained of the select men and civil authority, ‘twas nothing at all—it would not be given, but, if it would, we were not bound to ask it. As well might we be told that we should not eat without their permission. That would merely starve the body—this starved the mind—it kept on husks that which confer[s] on man his immortality.

It was claimed that we had other laws of a similar character. ‘Twas no matter—it made this law no better—doing wrong once was no apology for doing it again, much less did it create a right to do it. Make the law equal as to its application and he would find no fault.

He took the case of Eliza Glasko—she was an inhabitant of the state, and Ann Eliza Hammond was not. What difference could the Legislature make in relation to these persons as to the right to attend what school they chose? As to the law requiring citizens of other states to give bonds before they could maintain an action in our Courts, it operated equally—citizens of our state, if they resided out, were subject to the law—it depended simply on residence. The law providing against the settlement of paupers would not sustain this law. That required bonds for the support of those likely to become chargeable. Bonds were not sought here, except the bonds which tie the mind, and fetter the man—not bonds of security, but bonds of vassalage. It cannot, said Mr S. be sustained. The people would not endure the alien law of ‘98—‘twas abhorrent to the principles of our government, and drove from power the man that made it. This law has features even more odious than that. The people will not and ought not to endure it. By sanctioning this law, he said the jury would sanction a principle which would prevent them or their sons from emigrating to the western states.

He trusted he need spend no more time—he believed they would do their duty. He should ask the court to charge them that the law was obnoxious to the charges he has made against it, but should the court do otherwise, his appeal was to them. It was their prerogative to pass upon this law which owed its creation to an excited state of feeling. To them he looked for a verdict which would maintain civil liberty.

Mr WELCH regretted the duty that had devolved upon him [in] his state of health,* and his recent connexion with the case, would, he said, perhaps prevent him from doing to the case even that justice which might have been in his power to do under other circumstances. Besides the eloquence and ingenuity of the defendant’s counsel might have diverted the mind of the jury from the real issue. He should discharge his duty without personal feeling. If he had before harbored any, he should strive to banish it from his mind now. He wished the right of the state of Connecticut to be fairly, impartially, and dispassionately examined. The government asked no conviction but upon principles which could be consistently reconciled with justice and the constitution. The fact that the defendant was a female had been alluded to, but this altered not her rights. She had the same and none other rights, than every citizen. Her hoped the jury would not be misled by the impassioned flashes of eloquence which they had heard from her counsel. He would have them pause and examine. The rights of the judge and the beggar were the same at the bar of justice. Rights there, were common, but artificial rights in society were different. The rights of citizens had been pressed upon their attention—the rights of states must not be forgotten.

Was the law Constitutional? Possibly it was not. Laws has been passed which undoubtedly were unconstitutional, and if this was, he asked no conviction under it. They had but one course to pursue. If the law was contrary to the constitution they were bound to acquit—no one, if such was the character of the law, would acquiesce in the decision more cheerfully than himself. The gentlemen opposed to him has said, very emphatically, that they appealed to the people if the court decided the law to be constitutional. The jury, he said, were the people. It was no doubt true that in criminal cases the jury could decide [thus] in spite of the court, but, was it enviable? Would they desire to do it? Rights were at stake, the rights of the state as well as the rights of the party.—He would have the jury look at the result of their verdict as it respected the effects it would have on these rights. They might take the law into their own hands and acquit the defendant. They sacrificed the rights of the state beyond remedy by doing so—their verdict against the state was final. If, however, they found a verdict against the defendant, it had no such effect on her. The case could be carried to another tribunal where she could have perfect justice, and where her rights would not be at all prejudiced by a conviction here. ‘Twas no hardship to her, and a contrary course might do an irremediable wrong to the state.

They had been told that they had, that day, to decide a great question—an exciting one. It was true. Why then had they been called so loudly to take the case from the court? If they decided the law to be unconstitutional ‘twould be no evidence except between the same parties as a matter of fact. Another jury might decide the law to be constitutional, and thus what was a crime at one time would be no crime at another, though tried under the same law. He had no idea that they had any motive but to discharge impartially their duties as jurors.

Mr W. said, that as the defendant, by her plea, had put all the facts necessary to her conviction in issue, he should now examine the proof. The counsel for the defence had seemed tacitly to admit the facts charged to be true, but as he did not mean to desert any part of the case which the gentlemen opposed to him had not distinctly admitted to be in favor of the prosecution, he should recapitulate the evidence, and see if a case had been made out. (Mr W. here examined the testimony, commented upon it at length, and claimed that it was perfectly conclusive.)

The gentlemen who had argued for the defence, said Mr W., never meant to make the constitutionality of this law a point in the case. They thought they had thrown a barrier around their client by closing the mouths of witnesses. It was the object of the gentlemen to go out of court in triumph for want of proof to convict, but the grating doors of a certain building, though it did not unstop deaf ears, did open dumb mouths. The witnesses then spoke, notwithstanding the gentlemen had hoped to apply to them the gag law. Their efforts had proved ineffectual—their flag was furled, and when he saw the quivering step of a retreating army he believed that they anticipated defeat.

Mr W. rejoiced that a spirit was going abroad to improve the colored race. ‘Twas one thing however to produce a reformation by proper and legal means and another by improper and illegal ones. He would refrain no longer from considering the constitutional question in the case. The law was called unconstitutional because it was said to prohibit free persons of color from coming into this state, from other states, to be educated. Mr W. said that he knew no better way of testing constitutionality of a law, than a comparison of the law with the provisions of the constitution. Whenever they came in collision, it was easy to decide which must stand.—By this test then, by a comparison of the letter of the law with the letter of the constitution, he perceived no discrepancy. (Mr W. here read the second section of the fourth article of the constitution and then read the law.) Now, continued Mr W. this law does not prohibit any one from coming here for any purpose, if permission be obtained. If it is on the prohibition that gentlemen claim the law to be unconstitutional. But if permission be granted in all cases when asked, as possibly it may be, where is the unconstitutionality of the law? The gentlemen claim that it is prohibitory and therefore unconstitutional—it may never be prohibitory; how then is it unconstitutional? In order, gentlemen, said Mr W., to determine that this law is unconstitutional, you must look through the vista of coming time, and with a keen prophetic vision, foresee that the civil authority will never grant their license. You must settle a question of face which you cannot settle. If you can find this fact, put it in your verdict—render this libel on your understandings along with it—such a principle as this ought not to be contended for—the tears of contrition should blot it out, and the blush of shame should light a fire to consume it.

In respect to the meaning of the term “citizen” in the constitution, Mr. W. claimed that the ground taken by Mr. Judson, in opening the case, was tenable—that the term was used in a technical sense. He denied that it meant all persons who lived and moved within certain limits, as he understood the gentleman to claim. (Mr. W. here read from the articles of confederation, to support his construction of the term “citizen.”) He said that his brother Strong had read this quotation of a long trot, as though he feared the jury would understand it, and perceive the fallacy of his argument. Mr W. claimed that there was a distinction between the term “people” or “inhabitants,” in the article of confederation, and the term “citizens” in the constitution. He also read from Dr. Webster’s dictionary the definition of “citizen,” and insisted that blacks do not come within it.—Mr. W. also read and commented on the subject of naturalization, and claimed that Congress had never treated blacks as capable of becoming citizens. It was not the policy of the government. The Missouri question had been alluded to, but the whole of it was one continued act of political juggling—he should not think of appealing to it as authority for any thing.

Mr. W. said that he derived a strong argument in construction which he gave the constitution from the usages and legislation of other states. He then went on to remark at length upon the statutes of many of the states, in relation to the black population. If blacks were citizens he said the legislatures of many of the states must be called worse than Turkish tyrants—He dwelt with much emphasis and ability on the laws of Massachusetts and Rhode Island, prohibiting the intermarriage of whites and blacks. These laws said Mr. W., could only be reconciled with the constitution on the ground that blacks were not citizens. The right of education had been called a fundamental right. He was not disposed to contest the truth of this position. The right of selecting the partner of one’s joys and sorrows was however a right no less dear, no less sacred, than the right of selecting those whom we will have to educate our children. If our law was unconstitutional it was clear that all these laws to which he had alluded were also unconstitutional. He did not believe they were—the fact that they had been acquiesced in so long was evidence conclusive to his mind that they were not.

The case had been so fully gone into by his associate who opened the case, that he would not detain the jury longer. He put the rights of the state into their hands, and also the rights of the defendant, under direction of the court as to the law. They were not to inquire whether their verdict would advance the power of one party of another—whether it would feed or allay the excitement which existed. They should forget all that did not legitimately belong to the case—even the eloquence of the gentleman wo had argued for the defence should be forgotten, so far as it was not relevant. Duties were theirs—consequences devolved elsewhere.

His Honor Judge EATON then charged the jury in substance as follows.

Gentlemen of the Jury:

Prudence Crandall is charged in the information before you, with a violation of a certain statute law of this state, forbidding the setting up of a school for the instruction of colored persons, not inhabitants of this state, or boarding or harboring them for the purpose of instruction. Provided the acts charged are proved to be done, the day is not material, if since the passage of the law, and before the filing of the information. Neither are the names nor the number of the persons instructed material. The facts must be proved to your satisfaction, gentlemen, and whether they are so or not you are the sole judges—it is not the duty of the court even to advise in relation to the measure of proof.

As to the law of the case, this also belongs to you to decide, but the Court has a duty to perform with regard to it. That duty is, to advise you as to its validity and constitutionality. It has been claimed at the Bar that the law is unconstitutional, and that the state legislature had no power to pass it. It is gratifying to the court, gentlemen, that its opinion is not final—that it can be revised by a higher tribunal, and corrected if erroneous. The opinion of the Court is, that the law is constitutional and obligatory on the people of this state.—You will take the case into consideration, gentlemen, and render a verdict of guilty or not guilty, as to you shall seem just and proper.

The jury retired, and after an absence of several hours, returned into Court not having agreed on a verdict. They were again ordered out, and again returned not having agreed. The third time they stated to the court that there was no probability that they should ever agree. The court then discharged them. This operates as a continuance of the case to the next term of the County Court to be holden on the second Tuesday of December next. F.

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