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States a partial representation for their slaves, and that such has been the practical construction for nearly seventy years; but if even free negroes are not to be counted as persons, this practice must be abandoned.
The Chief Justice evidently does not mean to be misunderstood in this matter, for, in speaking of the condition of the African race in this country at the time of the Declaration of Independence, and of the framing and adoption of the Constitution of the United States, he tells us: "They had for more than a century before been regarded as beings of an inferior order; and so far inferior, that they had no rights which the white man was bound to respect;" and "were never thought of or spoken of except as property." pp. 407, 410. But the Constitution of the United States uniformly speaks of them, even when enslaved, as "persons"—"persons" in determining the apportionment of representatives and direct taxes among the several States—"persons," the migration or importation of whom should not be prohibited by congress before 1808—"persons," still, who, if they escape from service or labor, shall be delivered up. That Constitution further provides: "No person shall be deprived of life, liberty, or property, without due process of law." The substance of this provision had been familiar to the people of this country and their English ancestors for many centuries. The great English charter declared: "Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de libero tenemento suo, vel libertatibus, vel liberis consuetudinibus suis, aut utlgetur, aut exuletur, aut aliquo modo desruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae. Nulli vendemus, nulli negabimus, aut differemus, rectum vel justitiam" On which Lord Coke remarks: Nullus liber, &c. This extends to villeins, saving against their lord, for they are free against all men, saving against their lord," 2 Inst. 45; and, in support of this, refers to Littleton, section 189, where it is said: "Every villein is able and free to sue all manner of actions against every person, except against his lord, to whom he is villein. And yet in certain things he may have against his lord an action," of which many examples are then given, the most remarkable of which is in section 193: "Also, if a villein sueth an action of trespass, or any other action, against his lord in one county; and the lord saith that he shall not be answered, because he is his villein regardant to his manor in another county; and the plaintiff saith that he is free, and of a free estate, and not a villein; this shall be tried in the county where the plaintiff hath conceived his
