Report of the Decision of the Supreme Court of the United States, and the Opinions of the Judges Thereof, in the Case of Dred Scott versus John F. A. Sandford
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Title: Report of the Decision of the Supreme Court of the United States, and the Opinions of the Judges Thereof, in the Case of Dred Scott versus John F. A. Sandford
Author: United States. Supreme Court
Benjamin C. Howard
Other: John F. A. Sanford
Dred Scott
Release date: February 27, 2010 [eBook #31425]
Language: English
Other information and formats: www.gutenberg.org/ebooks/31425
Credits: Produced by Meredith Bach, Linda Cantoni, and the Online
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*** START OF THE PROJECT GUTENBERG EBOOK REPORT OF THE DECISION OF THE SUPREME COURT OF THE UNITED STATES, AND THE OPINIONS OF THE JUDGES THEREOF, IN THE CASE OF DRED SCOTT VERSUS JOHN F. A. SANDFORD ***
Produced by Meredith Bach, Linda Cantoni, and the Online
Distributed Proofreading Team at http://www.pgdp.net (This
book was produced from scanned images of public domain
material from the Google Print project.)
[Transcriber's Note: A Table of Contents has been created for the
reader's convenience. Minor, obvious printer errors have been
corrected without note. Other questionable text is marked by a
[Transcriber's Note].]
REPORT
OF
THE DECISION
OF THE
SUPREME COURT OF THE UNITED STATES,
AND THE
OPINIONS OF THE JUDGES THEREOF,
IN THE CASE OF
DRED SCOTT
VERSUS
JOHN F.A. SANDFORD.
DECEMBER TERM, 1856.
BY BENJAMIN C. HOWARD,
FROM THE NINETEENTH VOLUME OF HOWARD'S REPORTS.
WASHINGTON:
CORNELIUS WENDELL, PRINTER.
1857.
CONTENTS
Syllabus
Mr. Chief Justice Taney (majority opinion)
Mr. Justice Wayne (concurrence)
Mr. Justice Nelson (concurrence)
Mr. Justice Grier (concurrence)
Mr. Justice Daniel (concurrence)
Mr. Justice Campbell (concurrence)
Mr. Justice Catron (concurrence)
Mr. Justice McLean (dissent)
Mr. Justice Curtis (dissent)
SUPREME COURT OF THE UNITED STATES.
DECEMBER TERM, 1856.
DRED SCOTT
VERSUS
JOHN F.A. SANDFORD.
DRED SCOTT, PLAINTIFF IN ERROR, _v._ JOHN F.A. SANDFORD.
This case was brought up, by writ of error, from the Circuit
Court of the United States for the district of Missouri.
It was an action of trespass _vi et armis_ instituted in the
Circuit Court by Scott against Sandford.
Prior to the institution of the present suit, an action was
brought by Scott for his freedom in the Circuit Court of St.
Louis county, (State court,) where there was a verdict and
judgment in his favor. On a writ of error to the Supreme
Court of the State, the judgment below was reversed, and the
case remanded to the Circuit Court, where it was continued
to await the decision of the case now in question.
The declaration of Scott contained three counts: one, that
Sandford had assaulted the plaintiff; one, that he had
assaulted Harriet Scott, his wife; and one, that he had
assaulted Eliza Scott and Lizzie Scott, his children.
Sandford appeared, and filed the following plea:
DRED SCOTT }
_v._ } _Plea to the jurisdiction of the Court._
JOHN F.A. SANFORD. }
APRIL TERM, 1854.
And the said John F.A. Sandford, in his own proper person,
comes and says, that this court ought not to have or take
further cognisance of the action aforesaid, because he says
that said cause of action, and each and every of them, (if
any such have accrued to the said Dred Scott,) accrued to
the said Dred Scott out of the jurisdiction of this court,
and exclusively within the jurisdiction of the courts of
the State of Missouri, for that, to wit: the said plaintiff,
Dred Scott, is not a citizen of the State of Missouri, as
alleged in his declaration, because he is a negro of African
descent; his ancestors were of pure African blood, and were
brought into this country and sold as negro slaves, and this
the said Sandford is ready to verify. Wherefore he prays
judgment, whether this court can or will take further
cognizance of the action aforesaid.
JOHN F.A. SANDFORD.
To this plea there was a demurrer in the usual form, which
was argued in April, 1854, when the court gave judgment that
the demurrer should be sustained.
In May, 1854, the defendant, in pursuance of an agreement
between counsel, and with the leave of the court, pleaded in
bar of the action:
1. Not guilty.
2. That the plaintiff was a negro slave, the lawful property
of the defendant, and, as such, the defendant gently laid
his hands upon him, and thereby had only restrained him, as
the defendant had a right to do.
3. That with respect to the wife and daughters of the
plaintiff, in the second and third counts of the declaration
mentioned, the defendant had, as to them, only acted in the
same manner, and in virtue of the same legal right.
In the first of these pleas, the plaintiff joined issue; and
to the second and third, filed replications alleging that
the defendant, of his own wrong and without the cause in his
second and third pleas alleged, committed the trespasses,
&c.
The counsel then filed the following agreed statement of
facts, viz:
In the year 1834, the plaintiff was a negro slave belonging
to Dr. Emerson, who was a surgeon in the army of the United
States. In that year, 1834, said Dr. Emerson took the
plaintiff from the State of Missouri to the military post at
Rock Island, in the State of Illinois, and held him there as
a slave until the month of April or May, 1836. At the time
last mentioned, said Dr. Emerson removed the plaintiff from
said military post at Rock Island to the military post at
Fort Snelling, situate on the west bank of the Mississippi
river, in the Territory known as Upper Louisiana, acquired
by the United States of France, and situate north of the
latitude of thirty-six degrees thirty minutes north, and
north of the State of Missouri. Said Dr. Emerson held the
plaintiff in slavery at Fort Snelling, from said last
mentioned date until the year 1838.
In the year 1835, Harriet, who is named in the second count
of the plaintiff's declaration, was the negro slave of Major
Taliaferro, who belonged to the army of the United States.
In that year, 1835, said Major Taliaferro took said Harriet
to said Fort Snelling, a military post, situated as herein
before stated, and kept her there as a slave until the year
1836, and then sold and delivered her as a slave at said
Fort Snelling unto the said Dr. Emerson herein before named.
Said Dr. Emerson held said Harriet in slavery at said Fort
Snelling until the year 1838.
In the year 1836, the plaintiff and said Harriet, at said
Fort Snelling, with the consent of said Dr. Emerson, who
then claimed to be their master and owner, intermarried, and
took each other for husband and wife. Eliza and Lizzie,
named in the third count of the plaintiff's declaration, are
the fruit of that marriage. Eliza is about fourteen years
old, and was born on board the steamboat Gipsey, north of
the north line of the State of Missouri, and upon the river
Mississippi. Lizzie is about seven years old, and was born
in the State of Missouri, at the military post called
Jefferson Barracks.
In the year 1838, said Dr. Emerson removed the plaintiff and
said Harriet, and their said daughter Eliza, from said Fort
Snelling to the State of Missouri, where they have ever
since resided.
Before the commencement of this suit, said Dr. Emerson sold
and conveyed the plaintiff, said Harriet, Eliza, and Lizzie,
to the defendant, as slaves, and the defendant has ever
since claimed to hold them, and each of them, as slaves.
At the times mentioned in the plaintiff's declaration, the
defendant, claiming to be owner as aforesaid, laid his hands
upon said plaintiff, Harriet, Eliza, and Lizzie, and
imprisoned them, doing in this respect, however, no more
than what he might lawfully do, if they were of right his
slaves at such times.
Further proof may be given on the trial for either party.
It is agreed that Dred Scott brought suit for his freedom in
the Circuit Court of St. Louis county; that there was a
verdict and judgment in his favor; that on a writ of error
to the Supreme Court the judgment below was reversed, and
the same remanded to the Circuit Court, where it has been
continued to await the decision of this case.
In May, 1854, the cause went before a jury, who found the
following verdict, viz: "As to the first issue joined in
this case, we of the jury find the defendant not guilty; and
as to the issue secondly above joined, we of the jury find
that, before and at the time when, &c., in the first count
mentioned, the said Dred Scott was a negro slave, the lawful
property of the defendant; and as to the issue thirdly above
joined, we, the jury, find that, before and at the time
when, &c., in the second and third counts mentioned, the
said Harriet, wife of said Dred Scott, and Eliza and Lizzie,
the daughters of the said Dred Scott, were negro slaves, the
lawful property of the defendant."
Whereupon, the court gave judgment for the defendant.
After an ineffectual motion for a new trial, the plaintiff
filed the following bill of exceptions.
On the trial of this cause by the jury, the plaintiff, to
maintain the issues on his part, read to the jury the
following agreed statement of facts, (see agreement above.)
No further testimony was given to the jury by either party.
Thereupon the plaintiff moved the court to give to the jury
the following instruction, viz:
"That, upon the facts agreed to by the parties, they ought
to find for the plaintiff. The court refused to give such
instruction to the jury, and the plaintiff, to such refusal,
then and there duly excepted."
The court then gave the following instruction to the jury,
on motion of the defendant:
"The jury are instructed, that upon the facts in this case,
the law is with the defendant." The plaintiff excepted to
this instruction.
Upon these exceptions, the case came up to this court.
It was argued at December term, 1855, and ordered to be
reargued at the present term.
It was now argued by _Mr. Blair_ and _Mr. G.F. Curtis_
[Transcriber's Note: should be 'G.T. Curtis,' for George
Ticknor Curtis] for the plaintiff in error, and by _Mr.
Geyer_ and _Mr. Johnson_ for the defendant in error.
The reporter regrets that want of room will not allow him to
give the arguments of counsel; but he regrets it the less,
because the subject is thoroughly examined in the opinion of
the court, the opinions of the concurring judges, and the
opinions of the judges who dissented from the judgment of
the court.
* * * * *
Mr. Chief Justice TANEY delivered the opinion of the court.
This case has been twice argued. After the argument at the last term,
differences of opinion were found to exist among the members of the
court; and as the questions in controversy are of the highest
importance, and the court was at that time much pressed by the
ordinary business of the term, it was deemed advisable to continue the
case, and direct a reargument on some of the points, in order that we
might have an opportunity of giving to the whole subject a more
deliberate consideration. It has accordingly been again argued by
counsel, and considered by the court; and I now proceed to deliver its
opinion.
There are two leading questions presented by the record:
1. Had the Circuit Court of the United States jurisdiction to hear and
determine the case between these parties? And
2. If it had jurisdiction, is the judgment it has given erroneous or
not?
The plaintiff in error, who was also the plaintiff in the court below,
was, with his wife and children, held as slaves by the defendant, in
the State of Missouri; and he brought this action in the Circuit Court
of the United States for that district, to assert the title of himself
and his family to freedom.
The declaration is in the form usually adopted in that State to try
questions of this description, and contains the averment necessary to
give the court jurisdiction; that he and the defendant are citizens of
different States; that is, that he is a citizen of Missouri, and the
defendant a citizen of New York.
The defendant pleaded in abatement to the jurisdiction of the court,
that the plaintiff was not a citizen of the State of Missouri, as
alleged in his declaration, being a negro of African descent, whose
ancestors were of pure African blood, and who were brought into this
country and sold as slaves.
To this plea the plaintiff demurred, and the defendant joined in
demurrer. The court overruled the plea, and gave judgment that the
defendant should answer over. And he thereupon put in sundry pleas in
bar, upon which issues were joined; and at the trial the verdict and
judgment were in his favor. Whereupon the plaintiff brought this writ
of error.
Before we speak of the pleas in bar, it will be proper to dispose of
the questions which have arisen on the plea in abatement.
That plea denies the right of the plaintiff to sue in a court of the
United States, for the reasons therein stated.
If the question raised by it is legally before us, and the court
should be of opinion that the facts stated in it disqualify the
plaintiff from becoming a citizen, in the sense in which that word is
used in the Constitution of the United States, then the judgment of
the Circuit Court is erroneous, and must be reversed.
It is suggested, however, that this plea is not before us; and that as
the judgment in the court below on this plea was in favor of the
plaintiff, he does not seek to reverse it, or bring it before the
court for revision by his writ of error; and also that the defendant
waived this defence by pleading over, and thereby admitted the
jurisdiction of the court.
But, in making this objection, we think the peculiar and limited
jurisdiction of courts of the United States has not been adverted to.
This peculiar and limited jurisdiction has made it necessary, in these
courts, to adopt different rules and principles of pleading, so far as
jurisdiction is concerned, from those which regulate courts of common
law in England, and in the different States of the Union which have
adopted the common-law rules.
In these last-mentioned courts, where their character and rank are
analogous to that of a Circuit Court of the United States; in other
words, where they are what the law terms courts of general
jurisdiction; they are presumed to have jurisdiction, unless the
contrary appears. No averment in the pleadings of the plaintiff is
necessary, in order to give jurisdiction. If the defendant objects to
it, he must plead it specially, and unless the fact on which he relies
is found to be true by a jury, or admitted to be true by the
plaintiff, the jurisdiction cannot be disputed in an appellate court.
Now, it is not necessary to inquire whether in courts of that
description a party who pleads over in bar, when a plea to the
jurisdiction has been ruled against him, does or does not waive his
plea; nor whether upon a judgment in his favor on the pleas in bar,
and a writ of error brought by the plaintiff, the question upon the
plea in abatement would be open for revision in the appellate court.
Cases that may have been decided in such courts, or rules that may
have been laid down by common-law pleaders, can have no influence in
the decision in this court. Because, under the Constitution and laws
of the United States, the rules which govern the pleadings in its
courts, in questions of jurisdiction, stand on different principles
and are regulated by different laws.
This difference arises, as we have said, from the peculiar character
of the Government of the United States. For although it is sovereign
and supreme in its appropriate sphere of action, yet it does not
possess all the powers which usually belong to the sovereignty of a
nation. Certain specified powers, enumerated in the Constitution, have
been conferred upon it; and neither the legislative, executive, nor
judicial departments of the Government can lawfully exercise any
authority beyond the limits marked out by the Constitution. And in
regulating the judicial department, the cases in which the courts of
the United States shall have jurisdiction are particularly and
specifically enumerated and defined; and they are not authorized to
take cognizance of any case which does not come within the description
therein specified. Hence, when a plaintiff sues in a court of the
United States, it is necessary that he should show, in his pleading,
that the suit he brings is within the jurisdiction of the court, and
that he is entitled to sue there. And if he omits to do this, and
should, by any oversight of the Circuit Court, obtain a judgment in
his favor, the judgment would be reversed in the appellate court for
want of jurisdiction in the court below. The jurisdiction would not be
presumed, as in the case of a common-law English or State court,
unless the contrary appeared. But the record, when it comes before the
appellate court, must show, affirmatively, that the inferior court had
authority, under the Constitution, to hear and determine the case. And
if the plaintiff claims a right to sue in a Circuit Court of the
United States, under that provision of the Constitution which gives
jurisdiction in controversies between citizens of different States, he
must distinctly aver in his pleading that they are citizens of
different States; and he cannot maintain his suit without showing that
fact in the pleadings.
This point was decided in the case of Bingham _v._ Cabot, (in 3 Dall.,
382,) and ever since adhered to by the court. And in Jackson _v._
Ashton, (8 Pet., 148,) it was held that the objection to which it was
open could not be waived by the opposite party, because consent of
parties could not give jurisdiction.
It is needless to accumulate cases on this subject. Those already
referred to, and the cases of Capron _v._ Van Noorden, (in 2 Cr.,
126,) and Montalet _v._ Murray, (4 Cr., 46,) are sufficient to show
the rule of which we have spoken. The case of Capron _v._ Van Noorden
strikingly illustrates the difference between a common-law court and a
court of the United States.
If, however, the fact of citizenship is averred in the declaration,
and the defendant does not deny it, and put it in issue by plea in
abatement, he cannot offer evidence at the trial to disprove it, and
consequently cannot avail himself of the objection in the appellate
court, unless the defect should be apparent in some other part of the
record. For if there is no plea in abatement, and the want of
jurisdiction does not appear in any other part of the transcript
brought up by the writ of error, the undisputed averment of
citizenship in the declaration must be taken in this court to be true.
In this case, the citizenship is averred, but it is denied by the
defendant in the manner required by the rules of pleading; and the
fact upon which the denial is based is admitted by the demurrer. And,
if the plea and demurrer, and judgment of the court below upon it, are
before us upon this record, the question to be decided is, whether the
facts stated in the plea are sufficient to show that the plaintiff is
not entitled to sue as a citizen in a court of the United States.
We think they are before us. The plea in abatement and the judgment of
the court upon it, are a part of the judicial proceedings in the
Circuit Court, and are there recorded as such; and a writ of error
always brings up to the superior court the whole record of the
proceedings in the court below. And in the case of the United States
_v._ Smith, (11 Wheat., 172,) this court said, that the case being
brought up by writ of error, the whole record was under the
consideration of this court. And this being the case in the present
instance, the plea in abatement is necessarily under consideration;
and it becomes, therefore, our duty to decide whether the facts stated
in the plea are or are not sufficient to show that the plaintiff is
not entitled to sue as a citizen in a court of the United States.
This is certainly a very serious question, and one that now for the
first time has been brought for decision before this court. But it is
brought here by those who have a right to bring it, and it is our duty
to meet it and decide it.
The question is simply this: Can a negro, whose ancestors were
imported into this country, and sold as slaves, become a member of the
political community formed and brought into existence by the
Constitution of the United States, and as such become entitled to all
the rights, and privileges, and immunities, guarantied by that
instrument to the citizen? One of which rights is the privilege of
suing in a court of the United States in the cases specified in the
Constitution.
It will be observed, that the plea applies to that class of persons
only whose ancestors were negroes of the African race, and imported
into this country, and sold and held as slaves. The only matter in
issue before the court, therefore, is, whether the descendants of such
slaves, when they shall be emancipated, or who are born of parents who
had become free before their birth, are citizens of a State, in the
sense in which the word citizen is used in the Constitution of the
United States. And this being the only matter in dispute on the
pleadings, the court must be understood as speaking in this opinion of
that class only, that is, of those persons who are the descendants of
Africans who were imported into this country, and sold as slaves.
The situation of this population was altogether unlike that of the
Indian race. The latter, it is true, formed no part of the colonial
communities, and never amalgamated with them in social connections or
in government. But although they were uncivilized, they were yet a
free and independent people, associated together in nations or tribes,
and governed by their own laws. Many of these political communities
were situated in territories to which the white race claimed the
ultimate right of dominion. But that claim was acknowledged to be
subject to the right of the Indians to occupy it as long as they
thought proper, and neither the English nor colonial Governments
claimed or exercised any dominion over the tribe or nation by whom it
was occupied, nor claimed the right to the possession of the
territory, until the tribe or nation consented to cede it. These
Indian Governments were regarded and treated as foreign Governments,
as much so as if an ocean had separated the red man from the white;
and their freedom has constantly been acknowledged, from the time of
the first emigration to the English colonies to the present day, by
the different Governments which succeeded each other. Treaties have
been negotiated with them, and their alliance sought for in war; and
the people who compose these Indian political communities have always
been treated as foreigners not living under our Government. It is true
that the course of events has brought the Indian tribes within the
limits of the United States under subjection to the white race; and it
has been found necessary, for their sake as well as our own, to regard
them as in a state of pupilage, and to legislate to a certain extent
over them and the territory they occupy. But they may, without doubt,
like the subjects of any other foreign Government, be naturalized by
the authority of Congress, and become citizens of a State, and of the
United States; and if an individual should leave his nation or tribe,
and take up his abode among the white population, he would be entitled
to all the rights and privileges which would belong to an emigrant
from any other foreign people.
We proceed to examine the case as presented by the pleadings.
The words "people of the United States" and "citizens" are synonymous
terms, and mean the same thing. They both describe the political body
who, according to our republican institutions, form the sovereignty,
and who hold the power and conduct the Government through their
representatives. They are what we familiarly call the "sovereign
people," and every citizen is one of this people, and a constituent
member of this sovereignty. The question before us is, whether the
class of persons described in the plea in abatement compose a portion
of this people, and are constituent members of this sovereignty? We
think they are not, and that they are not included, and were not
intended to be included, under the word "citizens" in the
Constitution, and can therefore claim none of the rights and
privileges which that instrument provides for and secures to citizens
of the United States. On the contrary, they were at that time
considered as a subordinate and inferior class of beings, who had
been subjugated by the dominant race, and, whether emancipated or not,
yet remained subject to their authority, and had no rights or
privileges but such as those who held the power and the Government
might choose to grant them.
It is not the province of the court to decide upon the justice or
injustice, the policy or impolicy, of these laws. The decision of that
question belonged to the political or law-making power; to those who
formed the sovereignty and framed the Constitution. The duty of the
court is, to interpret the instrument they have framed, with the best
lights we can obtain on the subject, and to administer it as we find
it, according to its true intent and meaning when it was adopted.
In discussing this question, we must not confound the rights of
citizenship which a State may confer within its own limits, and the
rights of citizenship as a member of the Union. It does not by any
means follow, because he has all the rights and privileges of a
citizen of a State, that he must be a citizen of the United States. He
may have all of the rights and privileges of the citizen of a State,
and yet not be entitled to the rights and privileges of a citizen in
any other State. For, previous to the adoption of the Constitution of
the United States, every State had the undoubted right to confer on
whomsoever it pleased the character of citizen, and to endow him with
all its rights. But this character of course was confined to the
boundaries of the State, and gave him no rights or privileges in other
States beyond those secured to him by the laws of nations and the
comity of States. Nor have the several States surrendered the power of
conferring these rights and privileges by adopting the Constitution of
the United States. Each State may still confer them upon an alien, or
any one it thinks proper, or upon any class or description of persons;
yet he would not be a citizen in the sense in which that word is used
in the Constitution of the United States, nor entitled to sue as such
in one of its courts, nor to the privileges and immunities of a
citizen in the other States. The rights which he would acquire would
be restricted to the State which gave them. The Constitution has
conferred on Congress the right to establish an uniform rule of
naturalization, and this right is evidently exclusive, and has always
been held by this court to be so. Consequently, no State, since the
adoption of the Constitution, can by naturalizing an alien invest him
with the rights and privileges secured to a citizen of a State under
the Federal Government, although, so far as the State alone was
concerned, he would undoubtedly be entitled to the rights of a
citizen, and clothed with all the rights and immunities which the
Constitution and laws of the State attached to that character.
It is very clear, therefore, that no State can, by any act or law of
its own, passed since the adoption of the Constitution, introduce a
new member into the political community created by the Constitution of
the United States. It cannot make him a member of this community by
making him a member of its own. And for the same reason it cannot
introduce any person, or description of persons, who were not intended
to be embraced in this new political family, which the Constitution
brought into existence, but were intended to be excluded from it.
The question then arises, whether the provisions of the Constitution,
in relation to the personal rights and privileges to which the citizen
of a State should be entitled, embraced the negro African race, at
that time in this country, or who might afterwards be imported, who
had then or should afterwards be made free in any State; and to put it
in the power of a single State to make him a citizen of the United
States, and endue him with the full rights of citizenship in every
other State without their consent? Does the Constitution of the United
States act upon him whenever he shall be made free under the laws of a
State, and raised there to the rank of a citizen, and immediately
clothe him with all the privileges of a citizen in every other State,
and in its own courts?
The court think the affirmative of these propositions cannot be
maintained. And if it cannot, the plaintiff in error could not be a
citizen of the State of Missouri, within the meaning of the
Constitution of the United States, and, consequently, was not entitled
to sue in its courts.
It is true, every person, and every class and description of persons,
who were at the time of the adoption of the Constitution recognised as
citizens in the several States, became also citizens of this new
political body; but none other; it was formed by them, and for them
and their posterity, but for no one else. And the personal rights and
privileges guarantied to citizens of this new sovereignty were
intended to embrace those only who were then members of the several
State communities, or who should afterwards by birthright or otherwise
become members, according to the provisions of the Constitution and
the principles on which it was founded. It was the union of those who
were at that time members of distinct and separate political
communities into one political family, whose power, for certain
specified purposes, was to extend over the whole territory of the
United States. And it gave to each citizen rights and privileges
outside of his State which he did not before possess, and placed him
in every other State upon a perfect equality with its own citizens as
to rights of person and rights of property; it made him a citizen of
the United States.
It becomes necessary, therefore, to determine who were citizens of the
several States when the Constitution was adopted. And in order to do
this, we must recur to the Governments and institutions of the
thirteen colonies, when they separated from Great Britain and formed
new sovereignties, and took their places in the family of independent
nations. We must inquire who, at that time, were recognised as the
people or citizens of a State, whose rights and liberties had been
outraged by the English Government; and who declared their
independence, and assumed the powers of Government to defend their
rights by force of arms.
In the opinion of the court, the legislation and histories of the
times, and the language used in the Declaration of Independence, show,
that neither the class of persons who had been imported as slaves, nor
their descendants, whether they had become free or not, were then
acknowledged as a part of the people, nor intended to be included in
the general words used in that memorable instrument.
It is difficult at this day to realize the state of public opinion in
relation to that unfortunate race, which prevailed in the civilized
and enlightened portions of the world at the time of the Declaration
of Independence, and when the Constitution of the United States was
framed and adopted. But the public history of every European nation
displays it in a manner too plain to be mistaken.
They had for more than a century before been regarded as beings of an
inferior order, and altogether unfit to associate with the white race,
either in social or political relations; and so far inferior, that
they had no rights which the white man was bound to respect; and that
the negro might justly and lawfully be reduced to slavery for his
benefit. He was bought and sold, and treated as an ordinary article of
merchandise and traffic, whenever a profit could be made by it. This
opinion was at that time fixed and universal in the civilized portion
of the white race. It was regarded as an axiom in morals as well as in
politics, which no one thought of disputing, or supposed to be open to
dispute; and men in every grade and position in society daily and
habitually acted upon it in their private pursuits, as well as in
matters of public concern, without doubting for a moment the
correctness of this opinion.
And in no nation was this opinion more firmly fixed or more uniformly
acted upon than by the English Government and English people. They not
only seized them on the coast of Africa, and sold them or held them in
slavery for their own use; but they took them as ordinary articles of
merchandise to every country where they could make a profit on them,
and were far more extensively engaged in this commerce than any other
nation in the world.
The opinion thus entertained and acted upon in England was naturally
impressed upon the colonies they founded on this side of the Atlantic.
And, accordingly, a negro of the African race was regarded by them as
an article of property, and held, and bought and sold as such, in
every one of the thirteen colonies which united in the Declaration of
Independence, and afterwards formed the Constitution of the United
States. The slaves were more or less numerous in the different
colonies, as slave labor was found more or less profitable. But no one
seems to have doubted the correctness of the prevailing opinion of the
time.
The legislation of the different colonies furnishes positive and
indisputable proof of this fact.
It would be tedious, in this opinion, to enumerate the various laws
they passed upon this subject. It will be sufficient, as a sample of
the legislation which then generally prevailed throughout the British
colonies, to give the laws of two of them; one being still a large
slaveholding State, and the other the first State in which slavery
ceased to exist.
The province of Maryland, in 1717, (ch. 13, s. 5,) passed a law
declaring "that if any free negro or mulatto intermarry with any white
woman, or if any white man shall intermarry with any negro or mulatto
woman, such negro or mulatto shall become a slave during life,
excepting mulattoes born of white women, who, for such intermarriage,
shall only become servants for seven years, to be disposed of as the
justices of the county court, where such marriage so happens, shall
think fit; to be applied by them towards the support of a public
school within the said county. And any white man or white woman who
shall intermarry as aforesaid, with any negro or mulatto, such white
man or white woman shall become servants during the term of seven
years, and shall be disposed of by the justices as aforesaid, and be
applied to the uses aforesaid."
The other colonial law to which we refer was passed by Massachusetts
in 1705, (chap. 6.) It is entitled "An act for the better preventing
of a spurious and mixed issue," &c.; and it provides, that "if any
negro or mulatto shall presume to smite or strike any person of the
English or other Christian nation, such negro or mulatto shall be
severely whipped, at the discretion of the justices before whom the
offender shall be convicted."
And "that none of her Majesty's English or Scottish subjects, nor of
any other Christian nation, within this province, shall contract
matrimony with any negro or mulatto; nor shall any person, duly
authorized to solemnize marriage, presume to join any such in
marriage, on pain of forfeiting the sum of fifty pounds; one moiety
thereof to her Majesty, for and towards the support of the Government
within this province, and the other moiety to him or them that shall
inform and sue for the same, in any of her Majesty's courts of record
within the province, by bill, plaint, or information."
We give both of these laws in the words used by the respective
legislative bodies, because the language in which they are framed, as
well as the provisions contained in them, show, too plainly to be
misunderstood, the degraded condition of this unhappy race. They were
still in force when the Revolution began, and are a faithful index to
the state of feeling towards the class of persons of whom they speak,
and of the position they occupied throughout the thirteen colonies, in
the eyes and thoughts of the men who framed the Declaration of
Independence and established the State Constitutions and Governments.
They show that a perpetual and impassable barrier was intended to be
erected between the white race and the one which they had reduced to
slavery, and governed as subjects with absolute and despotic power,
and which they then looked upon as so far below them in the scale of
created beings, that intermarriages between white persons and negroes
or mulattoes were regarded as unnatural and immoral, and punished as
crimes, not only in the parties, but in the person who joined them in
marriage. And no distinction in this respect was made between the free
negro or mulatto and the slave, but this stigma, of the deepest
degradation, was fixed upon the whole race.
We refer to these historical facts for the purpose of showing the
fixed opinions concerning that race, upon which the statesmen of that
day spoke and acted. It is necessary to do this, in order to determine
whether the general terms used in the Constitution of the United
States, as to the rights of man and the rights of the people, was
intended to include them, or to give to them or their posterity the
benefit of any of its provisions.
The language of the Declaration of Independence is equally conclusive:
It begins by declaring that, "when in the course of human events it
becomes necessary for one people to dissolve the political bands which
have connected them with another, and to assume among the powers of
the earth the separate and equal station to which the laws of nature
and nature's God entitle them, a decent respect for the opinions of
mankind requires that they should declare the causes which impel them
to the separation."
It then proceeds to say: "We hold these truths to be self-evident:
that all men are created equal; that they are endowed by their Creator
with certain unalienable rights; that among them is life, liberty, and
the pursuit of happiness; that to secure these rights, Governments are
instituted, deriving their just powers from the consent of the
governed."
The general words above quoted would seem to embrace the whole human
family, and if they were used in a similar instrument at this day
would be so understood. But it is too clear for dispute, that the
enslaved African race were not intended to be included, and formed no
part of the people who framed and adopted this declaration; for if the
language, as understood in that day, would embrace them, the conduct
of the distinguished men who framed the Declaration of Independence
would have been utterly and flagrantly inconsistent with the
principles they asserted; and instead of the sympathy of mankind, to
which they so confidently appealed, they would have deserved and
received universal rebuke and reprobation.
Yet the men who framed this declaration were great men--high in
literary acquirements--high in their sense of honor, and incapable of
asserting principles inconsistent with those on which they were
acting. They perfectly understood the meaning of the language they
used, and how it would be understood by others; and they knew that it
would not in any part of the civilized world be supposed to embrace
the negro race, which, by common consent, had been excluded from
civilized Governments and the family of nations, and doomed to
slavery. They spoke and acted according to the then established
doctrines and principles, and in the ordinary language of the day, and
no one misunderstood them. The unhappy black race were separated from
the white by indelible marks, and laws long before established, and
were never thought of or spoken of except as property, and when the
claims of the owner or the profit of the trader were supposed to need
protection.
This state of public opinion had undergone no change when the
Constitution was adopted, as is equally evident from its provisions
and language.
The brief preamble sets forth by whom it was formed, for what
purposes, and for whose benefit and protection. It declares that it
is formed by the _people_ of the United States; that is to say, by
those who were members of the different political communities in the
several States; and its great object is declared to be to secure the
blessings of liberty to themselves and their posterity. It speaks in
general terms of the _people_ of the United States, and of _citizens_
of the several States, when it is providing for the exercise of the
powers granted or the privileges secured to the citizen. It does not
define what description of persons are intended to be included under
these terms, or who shall be regarded as a citizen and one of the
people. It uses them as terms so well understood, that no further
description or definition was necessary.
But there are two clauses in the Constitution which point directly and
specifically to the negro race as a separate class of persons, and
show clearly that they were not regarded as a portion of the people or
citizens of the Government then formed.
One of these clauses reserves to each of the thirteen States the right
to import slaves until the year 1808, if it thinks proper. And the
importation which it thus sanctions was unquestionably of persons of
the race of which we are speaking, as the traffic in slaves in the
United States had always been confined to them. And by the other
provision the States pledge themselves to each other to maintain the
right of property of the master, by delivering up to him any slave who
may have escaped from his service, and be found within their
respective territories. By the first above-mentioned clause,
therefore, the right to purchase and hold this property is directly
sanctioned and authorized for twenty years by the people who framed
the Constitution. And by the second, they pledge themselves to
maintain and uphold the right of the master in the manner specified,
as long as the Government they then formed should endure. And these
two provisions show, conclusively, that neither the description of
persons therein referred to, nor their descendants, were embraced in
any of the other provisions of the Constitution; for certainly these
two clauses were not intended to confer on them or their posterity the
blessings of liberty, or any of the personal rights so carefully
provided for the citizen.
No one of that race had ever migrated to the United States
voluntarily; all of them had been brought here as articles of
merchandise. The number that had been emancipated at that time were
but few in comparison with those held in slavery; and they were
identified in the public mind with the race to which they belonged,
and regarded as a part of the slave population rather than the free.
It is obvious that they were not even in the minds of the framers of
the Constitution when they were conferring special rights and
privileges upon the citizens of a State in every other part of the
Union.
Indeed, when we look to the condition of this race in the several
States at the time, it is impossible to believe that these rights and
privileges were intended to be extended to them.
It is very true, that in that portion of the Union where the labor of
the negro race was found to be unsuited to the climate and
unprofitable to the master, but few slaves were held at the time of
the Declaration of Independence; and when the Constitution was
adopted, it had entirely worn out in one of them, and measures had
been taken for its gradual abolition in several others. But this
change had not been produced by any change of opinion in relation to
this race; but because it was discovered, from experience, that slave
labor was unsuited to the climate and productions of these States: for
some of the States, where it had ceased or nearly ceased to exist,
were actively engaged in the slave trade, procuring cargoes on the
coast of Africa, and transporting them for sale to those parts of the
Union where their labor was found to be profitable, and suited to the
climate and productions. And this traffic was openly carried on, and
fortunes accumulated by it, without reproach from the people of the
States where they resided. And it can hardly be supposed that, in the
States where it was then countenanced in its worst form--that is, in
the seizure and transportation--the people could have regarded those
who were emancipated as entitled to equal rights with themselves.
And we may here again refer, in support of this proposition, to the
plain and unequivocal language of the laws of the several States, some
passed after the Declaration of Independence and before the
Constitution was adopted, and some since the Government went into
operation.
We need not refer, on this point, particularly to the laws of the
present slaveholding States. Their statute books are full of
provisions in relation to this class, in the same spirit with the
Maryland law which we have before quoted. They have continued to treat
them as an inferior class, and to subject them to strict police
regulations, drawing a broad line of distinction between the citizen
and the slave races, and legislating in relation to them upon the same
principle which prevailed at the time of the Declaration of
Independence. As relates to these States, it is too plain for
argument, that they have never been regarded as a part of the people
or citizens of the State, nor supposed to possess any political rights
which the dominant race might not withhold or grant at their
pleasure. And as long ago as 1822, the Court of Appeals of Kentucky
decided that free negroes and mulattoes were not citizens within the
meaning of the Constitution of the United States; and the correctness
of this decision is recognised, and the same doctrine affirmed, in 1
Meigs's Tenn. Reports, 331.
And if we turn to the legislation of the States where slavery had worn
out, or measures taken for its speedy abolition, we shall find the
same opinions and principles equally fixed and equally acted upon.
Thus, Massachusetts, in 1786, passed a law similar to the colonial one
of which we have spoken. The law of 1786, like the law of 1705,
forbids the marriage of any white person with any negro, Indian, or
mulatto, and inflicts a penalty of fifty pounds upon any one who shall
join them in marriage; and declares all such marriages absolutely null
and void, and degrades thus the unhappy issue of the marriage by
fixing upon it the stain of bastardy. And this mark of degradation was
renewed, and again impressed upon the race, in the careful and
deliberate preparation of their revised code published in 1836. This
code forbids any person from joining in marriage any white person with
any Indian, negro, or mulatto, and subjects the party who shall offend
in this respect, to imprisonment, not exceeding six months, in the
common jail, or to hard labor, and to a fine of not less than fifty
nor more than two hundred dollars; and, like the law of 1786, it
declares the marriage to be absolutely null and void. It will be seen
that the punishment is increased by the code upon the person who shall
marry them, by adding imprisonment to a pecuniary penalty.
So, too, in Connecticut. We refer more particularly to the legislation
of this State, because it was not only among the first to put an end
to slavery within its own territory, but was the first to fix a mark
of reprobation upon the African slave trade. The law last mentioned
was passed in October, 1788, about nine months after the State had
ratified and adopted the present Constitution of the United States;
and by that law it prohibited its own citizens, under severe
penalties, from engaging in the trade, and declared all policies of
insurance on the vessel or cargo made in the State to be null and
void. But, up to the time of the adoption of the Constitution, there
is nothing in the legislation of the State indicating any change of
opinion as to the relative rights and position of the white and black
races in this country, or indicating that it meant to place the
latter, when free, upon a level with its citizens. And certainly
nothing which would have led the slaveholding States to suppose, that
Connecticut designed to claim for them, under the new Constitution,
the equal rights and privileges and rank of citizens in every other
State.
The first step taken by Connecticut upon this subject was as early as
1774, when it passed an act forbidding the further importation of
slaves into the State. But the section containing the prohibition is
introduced by the following preamble:
"And whereas the increase of slaves in this state is injurious to the
poor, and inconvenient."
This recital would appear to have been carefully introduced, in order
to prevent any misunderstanding of the motive which induced the
Legislature to pass the law, and places it distinctly upon the
interest and convenience of the white population--excluding the
inference that it might have been intended in any degree for the
benefit of the other.
And in the act of 1784, by which the issue of slaves, born after the
time therein mentioned, were to be free at a certain age, the section
is again introduced by a preamble assigning similar motive for the
act. It is in these words:
"Whereas sound policy requires that the abolition of slavery should be
effected as soon as may be consistent with the rights of individuals,
and the public safety and welfare"--showing that the right of property
in the master was to be protected, and that the measure was one of
policy, and to prevent the injury and inconvenience, to the whites, of
a slave population in the State.
And still further pursuing its legislation, we find that in the same
statute passed in 1774, which prohibited the further importation of
slaves into the State, there is also a provision by which any negro,
Indian, or mulatto servant, who was found wandering out of the town or
place to which he belonged, without a written pass such as is therein
described, was made liable to be seized by any one, and taken before
the next authority to be examined and delivered up to his master--who
was required to pay the charge which had accrued thereby. And a
subsequent section of the same law provides, that if any free negro
shall travel without such pass, and shall be stopped, seized, or taken
up, he shall pay all charges arising thereby. And this law was in full
operation when the Constitution of the United States was adopted, and
was not repealed till 1797. So that up to that time free negroes and
mulattoes were associated with servants and slaves in the police
regulations established by the laws of the State.
And again, in 1833, Connecticut passed another law, which made it
penal to set up or establish any school in that State for the
instruction of persons of the African race not inhabitants of the
State or to instruct or teach in any such school or institution, or
board or harbor for that purpose, any such person, without the
previous consent in writing of the civil authority of the town in
which such school or institution might be.
And it appears by the case of Crandall _v._ The State, reported in 10
Conn. Rep., 340, that upon an information filed against Prudence
Crandall for a violation of this law, one of the points raised in the
defence was, that the law was a violation of the Constitution of the
United States; and that the persons instructed, although of the
African race, were citizens of other States, and therefore entitled to
the rights and privileges of citizens in the State of Connecticut. But
Chief Justice Dagget, before whom the case was tried, held, that
persons of that description were not citizens of a State, within the
meaning of the word citizen in the Constitution of the United States,
and were not therefore entitled to the privileges and immunities of
citizens in other States.
The case was carried up to the Supreme Court of Errors of the State,
and the question fully argued there. But the case went off upon
another point, and no opinion was expressed on this question.
We have made this particular examination into the legislative and
judicial action of Connecticut, because, from the early hostility it
displayed to the slave trade on the coast of Africa, we may expect to
find the laws of that State as lenient and favorable to the subject
race as those of any other State in the Union; and if we find that at
the time the Constitution was adopted, they were not even there raised
to the rank of citizens, but were still held and treated as property,
and the laws relating to them passed with reference altogether to the
interest and convenience of the white race, we shall hardly find them
elevated to a higher rank anywhere else.
A brief notice of the laws of two other States, and we shall pass on
to other considerations.
By the laws of New Hampshire, collected and finally passed in 1815, no
one was permitted to be enrolled in the militia of the State, but free
white citizens; and the same provision is found in a subsequent
collection of the laws, made in 1855. Nothing could more strongly mark
the entire repudiation of the African race. The alien is excluded,
because, being born in a foreign country, he cannot be a member of the
community until he is naturalized. But why are the African race, born
in the State, not permitted to share in one of the highest duties of
the citizen? The answer is obvious; he is not, by the institutions and
laws of the State, numbered among its people. He forms no part of the
sovereignty of the State, and is not therefore called on to uphold and
defend it.
Again, in 1822, Rhode Island, in its revised code, passed a law
forbidding persons who were authorized to join persons in marriage,
from joining in marriage any white person with any negro, Indian, or
mulatto, under the penalty of two hundred dollars, and declaring all
such marriages absolutely null and void; and the same law was again
re-enacted in its revised code of 1844. So that, down to the
last-mentioned period, the strongest mark of inferiority and
degradation was fastened upon the African race in that State.
It would be impossible to enumerate and compress in the space usually
allotted to an opinion of a court, the various laws, marking the
condition of this race, which were passed from time to time after the
Revolution, and before and since the adoption of the Constitution of
the United States. In addition to those already referred to, it is
sufficient to say, that Chancellor Kent, whose accuracy and research
no one will question, states in the sixth edition of his Commentaries,
(published in 1848, 2 vol., 258, note _b_,) that in no part of the
country except Maine, did the African race, in point of fact,
participate equally with the whites in the exercise of civil and
political rights.
The legislation of the States therefore shows, in a manner not to be
mistaken, the inferior and subject condition of that race at the time
the Constitution was adopted, and long afterwards, throughout the
thirteen States by which that instrument was framed; and it is hardly
consistent with the respect due to these States, to suppose that they
regarded at that time, as fellow-citizens and members of the
sovereignty, a class of beings whom they had thus stigmatized; whom,
as we are bound, out of respect to the State sovereignties, to assume
they had deemed it just and necessary thus to stigmatize, and upon
whom they had impressed such deep and enduring marks of inferiority
and degradation; or, that when they met in convention to form the
Constitution, they looked upon them as a portion of their
constituents, or designed to include them in the provisions so
carefully inserted for the security and protection of the liberties
and rights of their citizens. It cannot be supposed that they intended
to secure to them rights, and privileges, and rank, in the new
political body throughout the Union, which every one of them denied
within the limits of its own dominion. More especially, it cannot be
believed that the large slaveholding States regarded them as included
in the word citizens, or would have consented to a Constitution which
might compel them to receive them in that character from another
State. For if they were so received, and entitled to the privileges
and immunities of citizens, it would exempt them from the operation of
the special laws and from the police regulations which they
considered to be necessary for their own safety. It would give to
persons of the negro race, who were recognised as citizens in any one
State of the Union, the right to enter every other State whenever they
pleased, singly or in companies, without pass or passport, and without
obstruction, to sojourn there as long as they pleased, to go where
they pleased at every hour of the day or night without molestation,
unless they committed some violation of law for which a white man
would be punished; and it would give them the full liberty of speech
in public and in private upon all subjects upon which its own citizens
might speak; to hold public meetings upon political affairs, and to
keep and carry arms wherever they went. And all of this would be done
in the face of the subject race of the same color, both free and
slaves, and inevitably producing discontent and insubordination among
them, and endangering the peace and safety of the State.
It is impossible, it would seem, to believe that the great men of the
slaveholding States, who took so large a share in framing the
Constitution of the United States, and exercised so much influence in
procuring its adoption, could have been so forgetful or regardless of
their own safety and the safety of those who trusted and confided in
them.
Besides, this want of foresight and care would have been utterly
inconsistent with the caution displayed in providing for the admission
of new members into this political family. For, when they gave to the
citizens of each State the privileges and immunities of citizens in
the several States, they at the same time took from the several States
the power of naturalization, and confined that power exclusively to
the Federal Government. No State was willing to permit another State
to determine who should or should not be admitted as one of its
citizens, and entitled to demand equal rights and privileges with
their own people, within their own territories. The right of
naturalization was therefore, with one accord, surrendered by the
States, and confided to the Federal Government. And this power granted
to Congress to establish an uniform rule of _naturalization_ is, by
the well-understood meaning of the word, confined to persons born in a
foreign country, under a foreign Government. It is not a power to
raise to the rank of a citizen any one born in the United States, who,
from birth or parentage, by the laws of the country, belongs to an
inferior and subordinate class. And when we find the States guarding
themselves from the indiscreet or improper admission by other States
of emigrants from other countries, by giving the power exclusively to
Congress, we cannot fail to see that they could never have left with
the States a much more important power--that is, the power of
transforming into citizens a numerous class of persons, who in that
character would be much more dangerous to the peace and safety of a
large portion of the Union, than the few foreigners one of the States
might improperly naturalize. The Constitution upon its adoption
obviously took from the States all power by any subsequent legislation
to introduce as a citizen into the political family of the United
States any one, no matter where he was born, or what might be his
character or condition; and it gave to Congress the power to confer
this character upon those only who were born outside of the dominions
of the United States. And no law of a State, therefore, passed since
the Constitution was adopted, can give any right of citizenship
outside of its own territory.
A clause similar to the one in the Constitution, in relation to the
rights and immunities of citizens of one State in the other States,
was contained in the Articles of Confederation. But there is a
difference of language, which is worthy of note. The provision in the
Articles of Confederation was, "that the _free inhabitants_ of each of
the States, paupers, vagabonds, and fugitives from justice, excepted,
should be entitled to all the privileges and immunities of free
citizens in the several States."
It will be observed, that under this Confederation, each State had the
right to decide for itself, and in its own tribunals, whom it would
acknowledge as a free inhabitant of another State. The term _free
inhabitant_, in the generality of its terms, would certainly include
one of the African race who had been manumitted. But no example, we
think, can be found of his admission to all the privileges of
citizenship in any State of the Union after these Articles were
formed, and while they continued in force. And, notwithstanding the
generality of the words "free inhabitants," it is very clear that,
according to their accepted meaning in that day, they did not include
the African race, whether free or not: for the fifth section of the
ninth article provides that Congress should have the power "to agree
upon the number of land forces to be raised, and to make requisitions
from each State for its quota in proportion to the number of _white_
inhabitants in such State, which requisition should be binding."
Words could hardly have been used which more strongly mark the line of
distinction between the citizen and the subject; the free and the
subjugated races. The latter were not even counted when the
inhabitants of a State were to be embodied in proportion to its
numbers for the general defence. And it cannot for a moment be
supposed, that a class of persons thus separated and rejected from
those who formed the sovereignty of the States, were yet intended to
be included under the words "free inhabitants," in the preceding
article, to whom privileges and immunities were so carefully secured
in every State.
But although this clause of the Articles of Confederation is the same
in principle with that inserted in the Constitution, yet the
comprehensive word _inhabitant_, which might be construed to include
an emancipated slave, is omitted; and the privilege is confined to
_citizens_ of the State. And this alteration in words would hardly
have been made, unless a different meaning was intended to be
conveyed, or a possible doubt removed. The just and fair inference is,
that as this privilege was about to be placed under the protection of
the General Government, and the words expounded by its tribunals, and
all power in relation to it taken from the State and its courts, it
was deemed prudent to describe with precision and caution the persons
to whom this high privilege was given--and the word _citizen_ was on
that account substituted for the words _free inhabitant_. The word
citizen excluded, and no doubt intended to exclude, foreigners who had
not become citizens of some one of the States when the Constitution
was adopted; and also every description of persons who were not fully
recognised as citizens in the several States. This, upon any fair
construction of the instruments to which we have referred, was
evidently the object and purpose of this change of words.
To all this mass of proof we have still to add, that Congress has
repeatedly legislated upon the same construction of the Constitution
that we have given. Three laws, two of which were passed almost
immediately after the Government went into operation, will be
abundantly sufficient to show this. The two first are particularly
worthy of notice, because many of the men who assisted in framing the
Constitution, and took an active part in procuring its adoption, were
then in the halls of legislation, and certainly understood what they
meant when they used the words "people of the United States" and
"citizen" in that well-considered instrument.
The first of these acts is the naturalization law, which was passed at
the second session of the first Congress, March 26, 1790, and confines
the right of becoming citizens "_to aliens being free white persons_."
Now, the Constitution does not limit the power of Congress in this
respect to white persons. And they may, if they think proper,
authorize the naturalization of any one, of any color, who was born
under allegiance to another Government. But the language of the law
above quoted, shows that citizenship at that time was perfectly
understood to be confined to the white race; and that they alone
constituted the sovereignty in the Government.
Congress might, as we before said, have authorized the naturalization
of Indians, because they were aliens and foreigners. But, in their
then untutored and savage state, no one would have thought of
admitting them as citizens in a civilized community. And, moreover,
the atrocities they had but recently committed, when they were the
allies of Great Britain in the Revolutionary war, were yet fresh in
the recollection of the people of the United States, and they were
even then guarding themselves against the threatened renewal of Indian
hostilities. No one supposed then that any Indian would ask for, or
was capable of enjoying, the privileges of an American citizen, and
the word white was not used with any particular reference to them.
Neither was it used with any reference to the African race imported
into or born in this country; because Congress had no power to
naturalize them, and therefore there was no necessity for using
particular words to exclude them.
It would seem to have been used merely because it followed out the
line of division which the Constitution has drawn between the citizen
race, who formed and held the Government, and the African race, which
they held in subjection and slavery, and governed at their own
pleasure.
Another of the early laws of which we have spoken, is the first
militia law, which was passed in 1792, at the first session of the
second Congress. The language of this law is equally plain and
significant with the one just mentioned. It directs that every "free
able-bodied white male citizen" shall be enrolled in the militia. The
word _white_ is evidently used to exclude the African race, and the
word "citizen" to exclude unnaturalized foreigners; the latter forming
no part of the sovereignty, owing it no allegiance, and therefore
under no obligation to defend it. The African race, however, born in
the country, did owe allegiance to the Government, whether they were
slave or free; but it is repudiated, and rejected from the duties and
obligations of citizenship in marked language.
The third act to which we have alluded is even still more decisive; it
was passed as late as 1813, (2 Stat., 809,) and it provides: "That
from and after the termination of the war in which the United States
are now engaged with Great Britain, it shall not be lawful to employ,
on board of any public or private vessels of the United States, any
person or persons except citizens of the United States, _or_ persons
of color, natives of the United States."
Here the line of distinction is drawn in express words. Persons of
color, in the judgment of Congress, were not included in the word
citizens, and they are described as another and different class of
persons, and authorized to be employed, if born in the United States.
And even as late as 1820, (chap. 104, sec. 8,) in the charter to the
city of Washington, the corporation is authorized "to restrain and
prohibit the nightly and other disorderly meetings of slaves, free
negroes, and mulattoes," thus associating them together in its
legislation; and after prescribing the punishment that may be
inflicted on the slaves, proceeds in the following words: "And to
punish such free negroes and mulattoes by penalties not exceeding
twenty dollars for any one offence; and in case of the inability of
any such free negro or mulatto to pay any such penalty and cost
thereon, to cause him or her to be confined to labor for any time not
exceeding six calendar months." And in a subsequent part of the same
section, the act authorizes the corporation "to prescribe the terms
and conditions upon which free negroes and mulattoes may reside in the
city."
This law, like the laws of the States, shows that this class of
persons were governed by special legislation directed expressly to
them, and always connected with provisions for the government of
slaves, and not with those for the government of free white citizens.
And after such an uniform course of legislation as we have stated, by
the colonies, by the States, and by Congress, running through a period
of more than a century, it would seem that to call persons thus marked
and stigmatized, "citizens" of the United States, "fellow-citizens," a
constituent part of the sovereignty, would be an abuse of terms, and
not calculated to exalt the character of an American citizen in the
eyes of other nations.
The conduct of the Executive Department of the Government has been in
perfect harmony upon this subject with this course of legislation. The
question was brought officially before the late William Wirt, when he
was the Attorney General of the United States, in 1821, and he decided
that the words "citizens of the United States" were used in the acts
of Congress in the same sense as in the Constitution; and that free
persons of color were not citizens, within the meaning of the
Constitution and laws; and this opinion has been confirmed by that of
the late Attorney General, Caleb Cushing, in a recent case, and acted
upon by the Secretary of State, who refused to grant passports to them
as "citizens of the United States."
But it is said that a person may be a citizen, and entitled to that
character, although he does not possess all the rights which may
belong to other citizens; as, for example, the right to vote, or to
hold particular offices; and that yet, when he goes into another
State, he is entitled to be recognised there as a citizen, although
the State may measure his rights by the rights which it allows to
persons of a like character or class resident in the State, and refuse
to him the full rights of citizenship.
This argument overlooks the language of the provision in the
Constitution of which we are speaking.
Undoubtedly, a person may be a citizen, that is, a member of the
community who form the sovereignty, although he exercises no share of
the political power, and is incapacitated from holding particular
offices. Women and minors, who form a part of the political family,
cannot vote; and when a property qualification is required to vote or
hold a particular office, those who have not the necessary
qualification cannot vote or hold the office, yet they are citizens.
So, too, a person may be entitled to vote by the law of the State, who
is not a citizen even of the State itself. And in some of the States
of the Union foreigners not naturalized are allowed to vote. And the
State may give the right to free negroes and mulattoes, but that does
not make them citizens of the State, and still less of the United
States. And the provision in the Constitution giving privileges and
immunities in other States, does not apply to them.
Neither does it apply to a person who, being the citizen of a State,
migrates to another State. For then he becomes subject to the laws of
the State in which he lives, and he is no longer a citizen of the
State from which he removed. And the State in which he resides may
then, unquestionably, determine his _status_ or condition, and place
him among the class of persons who are not recognised as citizens, but
belong to an inferior and subject race; and may deny him the
privileges and immunities enjoyed by its citizens.
But so far as mere rights of person are concerned, the provision in
question is confined to citizens of a State who are temporarily in
another State without taking up their residence there. It gives them
no political rights in the State, as to voting or holding office, or
in any other respect. For a citizen of one State has no right to
participate in the government of another. But if he ranks as a citizen
in the State to which he belongs, within the meaning of the
Constitution of the United States, then, whenever he goes into another
State, the Constitution clothes him, as to the rights of person, with
all the privileges and immunities which belong to citizens of the
State. And if persons of the African race are citizens of a State, and
of the United States, they would be entitled to all of these
privileges and immunities in every State, and the State could not
restrict them; for they would hold these privileges and immunities
under the paramount authority of the Federal Government, and its
courts would be bound to maintain and enforce them, the Constitution
and laws of the State to the contrary notwithstanding. And if the
States could limit or restrict them, or place the party in an inferior
grade, this clause of the Constitution would be unmeaning, and could
have no operation; and would give no rights to the citizen when in
another State. He would have none but what the State itself chose to
allow him. This is evidently not the construction or meaning of the
clause in question. It guaranties rights to the citizen, and the State
cannot withhold them. And these rights are of a character and would
lead to consequences which make it absolutely certain that the African
race were not included under the name of citizens of a State, and were
not in the contemplation of the framers of the Constitution when these
privileges and immunities were provided for the protection of the
citizen in other States.
The case of Legrand _v._ Darnall (2 Peters, 664) has been referred to
for the purpose of showing that this court has decided that the
descendant of a slave may sue as a citizen in a court of the United
States; but the case itself shows that the question did not arise and
could not have arisen in the case.
It appears from the report, that Darnall was born in Maryland, and was
the son of a white man by one of his slaves, and his father executed
certain instruments to manumit him, and devised to him some landed
property in the State. This property Darnall afterwards sold to
Legrand, the appellant, who gave his notes for the purchase-money. But
becoming afterwards apprehensive that the appellee had not been
emancipated according to the laws of Maryland, he refused to pay the
notes until he could be better satisfied as to Darnall's right to
convey. Darnall, in the mean time, had taken up his residence in
Pennsylvania, and brought suit on the notes, and recovered judgment in
the Circuit Court for the district of Maryland.
The whole proceeding, as appears by the report, was an amicable one;
Legrand being perfectly willing to pay the money, if he could obtain a
title, and Darnall not wishing him to pay unless he could make him a
good one. In point of fact, the whole proceeding was under the
direction of the counsel who argued the case for the appellee, who was
the mutual friend of the parties, and confided in by both of them, and
whose only object was to have the rights of both parties established
by judicial decision in the most speedy and least expensive manner.
Legrand, therefore, raised no objection to the jurisdiction of the
court in the suit at law, because he was himself anxious to obtain the
judgment of the court upon his title. Consequently, there was nothing
in the record before the court to show that Darnall was of African
descent, and the usual judgment and award of execution was entered.
And Legrand thereupon filed his bill on the equity side of the Circuit
Court, stating that Darnall was born a slave, and had not been legally
emancipated, and could not therefore take the land devised to him, nor
make Legrand a good title; and praying an injunction to restrain
Darnall from proceeding to execution on the judgment, which was
granted. Darnall answered, averring in his answer that he was a free
man, and capable of conveying a good title. Testimony was taken on
this point, and at the hearing the Circuit Court was of opinion that
Darnall was a free man and his title good, and dissolved the
injunction and dismissed the bill; and that decree was affirmed here,
upon the appeal of Legrand.
Now, it is difficult to imagine how any question about the citizenship
of Darnall, or his right to sue in that character, can be supposed to
have arisen or been decided in that case. The fact that he was of
African descent was first brought before the court upon the bill in
equity. The suit at law had then passed into judgment and award of
execution, and the Circuit Court, as a court of law, had no longer any
authority over it. It was a valid and legal judgment, which the court
that rendered it had not the power to reverse or set aside. And unless
it had jurisdiction as a court of equity to restrain him from using
its process as a court of law, Darnall, if he thought proper, would
have been at liberty to proceed on his judgment, and compel the
payment of the money, although the allegations in the bill were true,
and he was incapable of making a title. No other court could have
enjoined him, for certainly no State equity court could interfere in
that way with the judgment of a Circuit Court of the United States.
But the Circuit Court as a court of equity certainly had equity
jurisdiction over its own judgment as a court of law, without regard
to the character of the parties; and had not only the right, but it
was its duty--no matter who were the parties in the judgment--to
prevent them from proceeding to enforce it by execution, if the court
was satisfied that the money was not justly and equitably due. The
ability of Darnall to convey did not depend upon his citizenship, but
upon his title to freedom. And if he was free, he could hold and
convey property, by the laws of Maryland, although he was not a
citizen. But if he was by law still a slave, he could not. It was
therefore the duty of the court, sitting as a court of equity in the
latter case, to prevent him from using its process, as a court of
common law, to compel the payment of the purchase-money, when it was
evident that the purchaser must lose the land. But if he was free, and
could make a title, it was equally the duty of the court not to suffer
Legrand to keep the land, and refuse the payment of the money, upon
the ground that Darnall was incapable of suing or being sued as a
citizen in a court of the United States. The character or citizenship
of the parties had no connection with the question of jurisdiction,
and the matter in dispute had no relation to the citizenship of
Darnall. Nor is such a question alluded to in the opinion of the
court.
Besides, we are by no means prepared to say that there are not many
cases, civil as well as criminal, in which a Circuit Court of the
United States may exercise jurisdiction, although one of the African
race is a party; that broad question is not before the court. The
question with which we are now dealing is, whether a person of the
African race can be a citizen of the United States, and become thereby
entitled to a special privilege, by virtue of his title to that
character, and which, under the Constitution, no one but a citizen can
claim. It is manifest that the case of Legrand and Darnall has no
bearing on that question, and can have no application to the case now
before the court.
This case, however, strikingly illustrates the consequences that would
follow the construction of the Constitution which would give the power
contended for to a State. It would in effect give it also to an
individual. For if the father of young Darnall had manumitted him in
his lifetime, and sent him to reside in a State which recognised him
as a citizen, he might have visited and sojourned in Maryland when he
pleased, and as long as he pleased, as a citizen of the United States;
and the State officers and tribunals would be compelled, by the
paramount authority of the Constitution, to receive him and treat him
as one of its citizens, exempt from the laws and police of the State
in relation to a person of that description, and allow him to enjoy
all the rights and privileges of citizenship, without respect to the
laws of Maryland, although such laws were deemed by it absolutely
essential to its own safety.
The only two provisions which point to them and include them, treat
them as property, and make it the duty of the Government to protect
it; no other power, in relation to this race, is to be found in the
Constitution; and as it is a Government of special delegated powers,
no authority beyond these two provisions can be constitutionally
exercised. The Government of the United States had no right to
interfere for any other purpose but that of protecting the rights of
the owner, leaving it altogether with the several States to deal with
this race, whether emancipated or not, as each State may think
justice, humanity, and the interests and safety of society, require.
The States evidently intended to reserve this power exclusively to
themselves.
No one, we presume, supposes that any change in public opinion or
feeling, in relation to this unfortunate race, in the civilized
nations of Europe or in this country, should induce the court to give
to the words of the Constitution a more liberal construction in their
favor than they were intended to bear when the instrument was framed
and adopted. Such an argument would be altogether inadmissible in any
tribunal called on to interpret it. If any of its provisions are
deemed unjust, there is a mode prescribed in the instrument itself by
which it may be amended; but while it remains unaltered, it must be
construed now as it was understood at the time of its adoption. It is
not only the same in words, but the same in meaning, and delegates the
same powers to the Government, and reserves and secures the same
rights and privileges to the citizen; and as long as it continues to
exist in its present form, it speaks not only in the same words, but
with the same meaning and intent with which it spoke when it came from
the hands of its framers, and was voted on and adopted by the people
of the United States. Any other rule of construction would abrogate
the judicial character of this court, and make it the mere reflex of
the popular opinion or passion of the day. This court was not created
by the Constitution for such purposes. Higher and graver trusts have
been confided to it, and it must not falter in the path of duty.
What the construction was at that time, we think can hardly admit of
doubt. We have the language of the Declaration of Independence and of
the Articles of Confederation, in addition to the plain words of the
Constitution itself; we have the legislation of the different States,
before, about the time, and since, the Constitution was adopted; we
have the legislation of Congress, from the time of its adoption to a
recent period; and we have the constant and uniform action of the
Executive Department, all concurring together, and leading to the same
result. And if anything in relation to the construction of the
Constitution can be regarded as settled, it is that which we now give
to the word "citizen" and the word "people."
And upon a full and careful consideration of the subject, the court
is of opinion, that, upon the facts stated in the plea in abatement,
Dred Scott was not a citizen of Missouri within the meaning of the
Constitution of the United States, and not entitled as such to sue in
its courts; and, consequently, that the Circuit Court had no
jurisdiction of the case, and that the judgment on the plea in
abatement is erroneous.
We are aware that doubts are entertained by some of the members of the
court, whether the plea in abatement is legally before the court upon
this writ of error; but if that plea is regarded as waived, or out of
the case upon any other ground, yet the question as to the
jurisdiction of the Circuit Court is presented on the face of the bill
of exception itself, taken by the plaintiff at the trial; for he
admits that he and his wife were born slaves, but endeavors to make
out his title to freedom and citizenship by showing that they were
taken by their owner to certain places, hereinafter mentioned, where
slavery could not by law exist, and that they thereby became free, and
upon their return to Missouri became citizens of that State.
Now, if the removal of which he speaks did not give them their
freedom, then by his own admission he is still a slave; and whatever
opinions may be entertained in favor of the citizenship of a free
person of the African race, no one supposes that a slave is a citizen
of the State or of the United States. If, therefore, the acts done by
his owner did not make them free persons, he is still a slave, and
certainly incapable of suing in the character of a citizen.
The principle of law is too well settled to be disputed, that a court
can give no judgment for either party, where it has no jurisdiction;
and if, upon the showing of Scott himself, it appeared that he was
still a slave, the case ought to have been dismissed, and the judgment
against him and in favor of the defendant for costs, is, like that on
the plea in abatement, erroneous, and the suit ought to have been
dismissed by the Circuit Court for want of jurisdiction in that court.
But, before we proceed to examine this part of the case, it may be
proper to notice an objection taken to the judicial authority of this
court to decide it; and it has been said, that as this court has
decided against the jurisdiction of the Circuit Court on the plea in
abatement, it has no right to examine any question presented by the
exception; and that anything it may say upon that part of the case
will be extra-judicial, and mere obiter dicta.
This is a manifest mistake; there can be no doubt as to the
jurisdiction of this court to revise the judgment of a Circuit Court,
and to reverse it for any error apparent on the record, whether it be
the error of giving judgment in a case over which it had no
jurisdiction, or any other material error; and this, too, whether
there is a plea in abatement or not.
The objection appears to have arisen from confounding writs of error
to a State court, with writs of error to a Circuit Court of the United
States. Undoubtedly, upon a writ of error to a State court, unless the
record shows a case that gives jurisdiction, the case must be
dismissed for want of jurisdiction in _this court_. And if it is
dismissed on that ground, we have no right to examine and decide upon
any question presented by the bill of exceptions, or any other part of
the record. But writs of error to a State court, and to a Circuit
Court of the United States, are regulated by different laws, and stand
upon entirely different principles. And in a writ of error to a
Circuit Court of the United States, the whole record is before this
court for examination and decision; and if the sum in controversy is
large enough to give jurisdiction, it is not only the right, but it is
the judicial duty of the court, to examine the whole case as presented
by the record; and if it appears upon its face that any material error
or errors have been committed by the court below, it is the duty of
this court to reverse the judgment, and remand the case. And certainly
an error in passing a judgment upon the merits in favor of either
party, in a case which it was not authorized to try, and over which it
had no jurisdiction, is as grave an error as a court can commit.
The plea in abatement is not a plea to the jurisdiction of this court,
but to the jurisdiction of the Circuit Court. And it appears by the
record before us, that the Circuit Court committed an error, in
deciding that it had jurisdiction, upon the facts in the case,
admitted by the pleadings. It is the duty of the appellate tribunal to
correct this error; but that could not be done by dismissing the case
for want of jurisdiction here--for that would leave the erroneous
judgment in full force, and the injured party without remedy. And the
appellate court therefore exercises the power for which alone
appellate courts are constituted, by reversing the judgment of the
court below for this error. It exercises its proper and appropriate
jurisdiction over the judgment and proceedings of the Circuit Court,
as they appear upon the record brought up by the writ of error.
The correction of one error in the court below does not deprive the
appellate court of the power of examining further into the record, and
correcting any other material errors which may have been committed by
the inferior court. There is certainly no rule of law--nor any
practice--nor any decision of a court--which even questions this
power in the appellate tribunal. On the contrary, it is the daily
practice of this court, and of all appellate courts where they reverse
the judgment of an inferior court for error, to correct by its
opinions whatever errors may appear on the record material to the
case; and they have always held it to be their duty to do so where the
silence of the court might lead to misconstruction or future
controversy, and the point has been relied on by either side, and
argued before the court.
In the case before us, we have already decided that the Circuit Court
erred in deciding that it had jurisdiction upon the facts admitted by
the pleadings. And it appears that, in the further progress of the
case, it acted upon the erroneous principle it had decided on the
pleadings, and gave judgment for the defendant, where, upon the facts
admitted in the exception, it had no jurisdiction.
We are at a loss to understand upon what principle of law, applicable
to appellate jurisdiction, it can be supposed that this court has not
judicial authority to correct the last-mentioned error, because they
had before corrected the former; or by what process of reasoning it
can be made out, that the error of an inferior court in actually
pronouncing judgment for one of the parties, in a case in which it had
no jurisdiction, cannot be looked into or corrected by this court,
because we have decided a similar question presented in the pleadings.
The last point is distinctly presented by the facts contained in the
plaintiff's own bill of exceptions, which he himself brings here by
this writ of error. It was the point which chiefly occupied the
attention of the counsel on both sides in the argument--and the
judgment which this court must render upon both errors is precisely
the same. It must, in each of them, exercise jurisdiction over the
judgment, and reverse it for the errors committed by the court below;
and issue a mandate to the Circuit Court to conform its judgment to
the opinion pronounced by this court, by dismissing the case for want
of jurisdiction in the Circuit Court. This is the constant and
invariable practice of this court, where it reverses a judgment for
want of jurisdiction in the Circuit Court.
It can scarcely be necessary to pursue such a question further. The
want of jurisdiction in the court below may appear on the record
without any plea in abatement. This is familiarly the case where a
court of chancery has exercised jurisdiction in a case where the
plaintiff had a plain and adequate remedy at law, and it so appears by
the transcript when brought here by appeal. So also where it appears
that a court of admiralty has exercised jurisdiction in a case
belonging exclusively to a court of common law. In these cases there
is no plea in abatement. And for the same reason, and upon the same
principles, where the defect of jurisdiction is patent on the record,
this court is bound to reverse the judgment, although the defendant
has not pleaded in abatement to the jurisdiction of the inferior
court.
The cases of Jackson _v._ Ashton and of Capron _v._ Van Noorden, to
which we have referred in a previous part of this opinion, are
directly in point. In the last-mentioned case, Capron brought an
action against Van Noorden in a Circuit Court of the United States,
without showing, by the usual averments of citizenship, that the court
had jurisdiction. There was no plea in abatement put in, and the
parties went to trial upon the merits. The court gave judgment in
favor of the defendant with costs. The plaintiff thereupon brought his
writ of error, and this court reversed the judgment given in favor of
the defendant, and remanded the case with directions to dismiss it,
because it did not appear by the transcript that the Circuit Court had
jurisdiction.
The case before us still more strongly imposes upon this court the
duty of examining whether the court below has not committed an error,
in taking jurisdiction and giving a judgment for costs in favor of the
defendant; for in Capron _v._ Van Noorden the judgment was reversed,
because it did _not appear_ that the parties were citizens of
different States. They might or might not be. But in this case it
_does appear_ that the plaintiff was born a slave; and if the facts
upon which he relies have not made him free, then it appears
affirmatively on the record that he is not a citizen, and consequently
his suit against Sandford was not a suit between citizens of different
States, and the court had no authority to pass any judgment between
the parties. The suit ought, in this view of it, to have been
dismissed by the Circuit Court, and its judgment in favor of Sandford
is erroneous, and must be reversed.
It is true that the result either way, by dismissal or by a judgment
for the defendant, makes very little, if any, difference in a
pecuniary or personal point of view to either party. But the fact that
the result would be very nearly the same to the parties in either form
of judgment would not justify this court in sanctioning an error in
the judgment which is patent on the record, and which, if sanctioned,
might be drawn into precedent, and lead to serious mischief and
injustice in some future suit.
We proceed, therefore, to inquire whether the facts relied on by the
plaintiff entitled him to his freedom.
The case, as he himself states it, on the record brought here by his
writ of error, is this:
The plaintiff was a negro slave, belonging to Dr. Emerson, who was a
surgeon in the army of the United States. In the year 1834, he took
the plaintiff from the State of Missouri to the military post at Rock
Island, in the State of Illinois, and held him there as a slave until
the month of April or May, 1836. At the time last mentioned, said Dr.
Emerson removed the plaintiff from said military post at Rock Island
to the military post at Fort Snelling, situate on the west bank of the
Mississippi river, in the Territory known as Upper Louisiana, acquired
by the United States of France, and situate north of the latitude of
thirty-six degrees thirty minutes north, and north of the State of
Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort
Snelling, from said last-mentioned date until the year 1838.
In the year 1835, Harriet, who is named in the second count of the
plaintiff's declaration, was the negro slave of Major Taliaferro, who
belonged to the army of the United States. In that year, 1835, said
Major Taliaferro took said Harriet to said Fort Snelling, a military
post, situated as hereinbefore stated, and kept her there as a slave
until the year 1836, and then sold and delivered her as a slave, at
said Fort Snelling, unto the said Dr. Emerson hereinbefore named. Said
Dr. Emerson held said Harriet in slavery at said Fort Snelling until
the year 1838.
In the year 1836, the plaintiff and Harriet intermarried, at Fort
Snelling, with the consent of Dr. Emerson, who then claimed to be
their master and owner. Eliza and Lizzie, named in the third count of
the plaintiff's declaration, are the fruit of that marriage. Eliza is
about fourteen years old, and was born on board the steamboat Gipsey,
north of the north line of the State of Missouri, and upon the river
Mississippi. Lizzie is about seven years old, and was born in the
State of Missouri, at the military post called Jefferson Barracks.
In the year 1838, said Dr. Emerson removed the plaintiff and said
Harriet, and their said daughter Eliza, from said Fort Snelling to the
State of Missouri, where they have ever since resided.
Before the commencement of this suit, said Dr. Emerson sold and
conveyed the plaintiff, and Harriet, Eliza, and Lizzie, to the
defendant, as slaves, and the defendant has ever since claimed to hold
them, and each of them, as slaves.
In considering this part of the controversy, two questions arise: 1.
Was he, together with his family, free in Missouri by reason of the
stay in the territory of the United States hereinbefore mentioned?
And 2. If they were not, is Scott himself free by reason of his
removal to Rock Island, in the State of Illinois, as stated in the
above admissions?
We proceed to examine the first question.
The act of Congress, upon which the plaintiff relies, declares that
slavery and involuntary servitude, except as a punishment for crime,
shall be forever prohibited in all that part of the territory ceded by
France, under the name of Louisiana, which lies north of thirty-six
degrees thirty minutes north latitude, and not included within the
limits of Missouri. And the difficulty which meets us at the threshold
of this part of the inquiry is, whether Congress was authorized to
pass this law under any of the powers granted to it by the
Constitution; for if the authority is not given by that instrument, it
is the duty of this court to declare it void and inoperative, and
incapable of conferring freedom upon any one who is held as a slave
under the laws of any one of the States.
The counsel for the plaintiff has laid much stress upon that article
in the Constitution which confers on Congress the power "to dispose of
and make all needful rules and regulations respecting the territory or
other property belonging to the United States;" but, in the judgment
of the court, that provision has no bearing on the present
controversy, and the power there given, whatever it may be, is
confined, and was intended to be confined, to the territory which at
that time belonged to, or was claimed by, the United States, and was
within their boundaries as settled by the treaty with Great Britain,
and can have no influence upon a territory afterwards acquired from a
foreign Government. It was a special provision for a known and
particular territory, and to meet a present emergency, and nothing
more.
A brief summary of the history of the times, as well as the careful
and measured terms in which the article is framed, will show the
correctness of this proposition.
It will be remembered that, from the commencement of the Revolutionary
war, serious difficulties existed between the States, in relation to
the disposition of large and unsettled territories which were included
in the chartered limits of some of the States. And some of the other
States, and more especially Maryland, which had no unsettled lands,
insisted that as the unoccupied lands, if wrested from Great Britain,
would owe their reservation to the common purse and the common sword,
the money arising from them ought to be applied in just proportion
among the several States to pay the expenses of the war, and ought not
to be appropriated to the use of the State in whose chartered limits
they might happen to lie, to the exclusion of the other States, by
whose combined efforts and common expense the territory was defended
and preserved against the claim of the British Government.
These difficulties caused much uneasiness during the war, while the
issue was in some degree doubtful, and the future boundaries of the
United States yet to be defined by treaty, if we achieved our
independence.
The majority of the Congress of the Confederation obviously concurred
in opinion with the State of Maryland, and desired to obtain from the
States which claimed it a cession of this territory, in order that
Congress might raise money on this security to carry on the war. This
appears by the resolution passed on the 6th of September, 1780,
strongly urging the States to cede these lands to the United States,
both for the sake of peace and union among themselves, and to maintain
the public credit; and this was followed by the resolution of October
10th, 1780, by which Congress pledged itself, that if the lands were
ceded, as recommended by the resolution above mentioned, they should
be disposed of for the common benefit of the United States, and be
settled and formed into distinct republican States, which should
become members of the Federal Union, and have the same rights of
sovereignty, and freedom, and independence, as other States.
But these difficulties became much more serious after peace took
place, and the boundaries of the United States were established. Every
State, at that time, felt severely the pressure of its war debt; but
in Virginia, and some other States, there were large territories of
unsettled lands, the sale of which would enable them to discharge
their obligations without much inconvenience; while other States,
which had no such resource, saw before them many years of heavy and
burdensome taxation; and the latter insisted, for the reasons before
stated, that these unsettled lands should be treated as the common
property of the States, and the proceeds applied to their common
benefit.
The letters from the statesmen of that day will show how much this
controversy occupied their thoughts, and the dangers that were
apprehended from it. It was the disturbing element of the time, and
fears were entertained that it might dissolve the Confederation by
which the States were then united.
These fears and dangers were, however, at once removed, when the State
of Virginia, in 1784, voluntarily ceded to the United States the
immense tract of country lying northwest of the river Ohio, and which
was within the acknowledged limits of the State. The only object of
the State, in making this cession, was to put an end to the
threatening and exciting controversy, and to enable the Congress of
that time to dispose of the lands, and appropriate the proceeds as a
common fund for the common benefit of the States. It was not ceded,
because it was inconvenient to the State to hold and govern it, nor
from any expectation that it could be better or more conveniently
governed by the United States.
The example of Virginia was soon afterwards followed by other States,
and, at the time of the adoption of the Constitution, all of the
States, similarly situated, had ceded their unappropriated lands,
except North Carolina and Georgia. The main object for which these
cessions were desired and made, was on account of their money value,
and to put an end to a dangerous controversy, as to who was justly
entitled to the proceeds when the lands should be sold. It is
necessary to bring this part of the history of these cessions thus
distinctly into view, because it will enable us the better to
comprehend the phraseology of the article in the Constitution, so
often referred to in the argument.
Undoubtedly the powers of sovereignty and the eminent domain were
ceded with the land. This was essential, in order to make it
effectual, and to accomplish its objects. But it must be remembered
that, at that time, there was no Government of the United States in
existence with enumerated and limited powers; what was then called the
United States, were thirteen separate, sovereign, independent States,
which had entered into a league or confederation for their mutual
protection and advantage, and the Congress of the United States was
composed of the representatives of these separate sovereignties,
meeting together, as equals, to discuss and decide on certain measures
which the States, by the Articles of Confederation, had agreed to
submit to their decision. But this Confederation had none of the
attributes of sovereignty in legislative, executive, or judicial
power. It was little more than a congress of ambassadors, authorized
to represent separate nations, in matters in which they had a common
concern.
It was this Congress that accepted the cession from Virginia. They had
no power to accept it under the Articles of Confederation. But they
had an undoubted right, as independent sovereignties, to accept any
cession of territory for their common benefit, which all of them
assented to; and it is equally clear, that as their common property,
and having no superior to control them, they had the right to exercise
absolute dominion over it, subject only to the restrictions which
Virginia had imposed in her act of cession. There was, as we have
said, no Government of the United States then in existence with
special enumerated and limited powers. The territory belonged to
sovereignties, who, subject to the limitations above mentioned, had a
right to establish any form of government they pleased, by compact or
treaty among themselves, and to regulate rights of person and rights
of property in the territory, as they might deem proper. It was by a
Congress, representing the authority of these several and separate
sovereignties, and acting under their authority and command, (but not
from any authority derived from the Articles of Confederation,) that
the instrument usually called the ordinance of 1787 was adopted;
regulating in much detail the principles and the laws by which this
territory should be governed; and among other provisions, slavery is
prohibited in it. We do not question the power of the States, by
agreement among themselves, to pass this ordinance, nor its obligatory
force in the territory, while the confederation or league of the
States in their separate sovereign character continued to exist.
This was the state of things when the Constitution of the United
States was formed. The territory ceded by Virginia belonged to the
several confederated States as common property, and they had united in
establishing in it a system of government and jurisprudence, in order
to prepare it for admission as States, according to the terms of the
cession. They were about to dissolve this federative Union, and to
surrender a portion of their independent sovereignty to a new
Government, which, for certain purposes, would make the people of the
several States one people, and which was to be supreme and controlling
within its sphere of action throughout the United States; but this
Government was to be carefully limited in its powers, and to exercise
no authority beyond those expressly granted by the Constitution, or
necessarily to be implied from the language of the instrument, and the
objects it was intended to accomplish; and as this league of States
would, upon the adoption of the new Government, cease to have any
power over the territory, and the ordinance they had agreed upon be
incapable of execution, and a mere nullity, it was obvious that some
provision was necessary to give the new Government sufficient power to
enable it to carry into effect the objects for which it was ceded, and
the compacts and agreements which the States had made with each other
in the exercise of their powers of sovereignty. It was necessary that
the lands should be sold to pay the war debt; that a Government and
system of jurisprudence should be maintained in it, to protect the
citizens of the United States who should migrate to the territory, in
their rights of person and of property. It was also necessary that the
new Government, about to be adopted, should be authorized to maintain
the claim of the United States to the unappropriated lands in North
Carolina and Georgia, which had not then been ceded, but the cession
of which was confidently anticipated upon some terms that would be
arranged between the General Government and these two States. And,
moreover, there were many articles of value besides this property in
land, such as arms, military stores, munitions, and ships of war,
which were the common property of the States, when acting in their
independent characters as confederates, which neither the new
Government nor any one else would have a right to take possession of,
or control, without authority from them; and it was to place these
things under the guardianship and protection of the new Government,
and to clothe it with the necessary powers, that the clause was
inserted in the Constitution which gives Congress the power "to
dispose of and make all needful rules and regulations respecting the
territory or other property belonging to the United States." It was
intended for a specific purpose, to provide for the things we have
mentioned. It was to transfer to the new Government the property then
held in common by the States, and to give to that Government power to
apply it to the objects for which it had been destined by mutual
agreement among the States before their league was dissolved. It
applied only to the property which the States held in common at that
time, and has no reference whatever to any territory or other property
which the new sovereignty might afterwards itself acquire.
The language used in the clause, the arrangement and combination of
the powers, and the somewhat unusual phraseology it uses, when it
speaks of the political power to be exercised in the government of the
territory, all indicate the design and meaning of the clause to be
such as we have mentioned. It does not speak of _any_ territory, nor
of _Territories_, but uses language which, according to its legitimate
meaning, points to a particular thing. The power is given in relation
only to _the_ territory of the United States--that is, to a territory
then in existence, and then known or claimed as the territory of the
United States. It begins its enumeration of powers by that of
disposing, in other words, making sale of the lands, or raising money
from them, which, as we have already said, was the main object of the
cession, and which is accordingly the first thing provided for in the
article. It then gives the power which was necessarily associated with
the disposition and sale of the lands--that is, the power of making
needful rules and regulations respecting the territory. And whatever
construction may now be given to these words, every one, we think,
must admit that they are not the words usually employed by statesmen
in giving supreme power of legislation. They are certainly very unlike
the words used in the power granted to legislate over territory which
the new Government might afterwards itself obtain by cession from a
State, either for its seat of Government, or for forts, magazines,
arsenals, dock yards, and other needful buildings.
And the same power of making needful rules respecting the territory
is, in precisely the same language, applied to the _other_ property
belonging to the United States--associating the power over the
territory in this respect with the power over movable or personal
property--that is, the ships, arms, and munitions of war, which then
belonged in common to the State sovereignties. And it will hardly be
said, that this power, in relation to the last-mentioned objects, was
deemed necessary to be thus specially given to the new Government, in
order to authorize it to make needful rules and regulations respecting
the ships it might itself build, or arms and munitions of war it might
itself manufacture or provide for the public service.
No one, it is believed, would think a moment of deriving the power of
Congress to make needful rules and regulations in relation to property
of this kind from this clause of the Constitution. Nor can it, upon
any fair construction, be applied to any property but that which the
new Government was about to receive from the confederated States. And
if this be true as to this property, it must be equally true and
limited as to the territory, which is so carefully and precisely
coupled with it--and like it referred to as property in the power
granted. The concluding words of the clause appear to render this
construction irresistible; for, after the provisions we have
mentioned, it proceeds to say, "that nothing in the Constitution shall
be so construed as to prejudice any claims of the United States, or of
any particular State."
Now, as we have before said, all of the States, except North Carolina
and Georgia, had made the cession before the Constitution was adopted,
according to the resolution of Congress of October 10, 1780. The
claims of other States, that the unappropriated lands in these two
States should be applied to the common benefit, in like manner, was
still insisted on, but refused by the States. And this member of the
clause in question evidently applies to them, and can apply to nothing
else. It was to exclude the conclusion that either party, by adopting
the Constitution, would surrender what they deemed their rights. And
when the latter provision relates so obviously to the unappropriated
lands not yet ceded by the States, and the first clause makes
provision for those then actually ceded, it is impossible, by any
just rule of construction, to make the first provision general, and
extend to all territories, which the Federal Government might in any
way afterwards acquire, when the latter is plainly and unequivocally
confined to a particular territory; which was a part of the same
controversy, and involved in the same dispute, and depended upon the
same principles. The union of the two provisions in the same clause
shows that they were kindred subjects; and that the whole clause is
local, and relates only to lands, within the limits of the United
States, which had been or then were claimed by a State; and that no
other territory was in the mind of the framers of the Constitution, or
intended to be embraced in it. Upon any other construction it would be
impossible to account for the insertion of the last provision in the
place where it is found, or to comprehend why, or for what object, it
was associated with the previous provision.
This view of the subject is confirmed by the manner in which the
present Government of the United States dealt with the subject as soon
as it came into existence. It must be borne in mind that the same
States that formed the Confederation also formed and adopted the new
Government, to which so large a portion of their former sovereign
powers were surrendered. It must also be borne in mind that all of
these same States which had then ratified the new Constitution were
represented in the Congress which passed the first law for the
government of this territory; and many of the members of that
legislative body had been deputies from the States under the
Confederation--had united in adopting the ordinance of 1787, and
assisted in forming the new Government under which they were then
acting, and whose powers they were then exercising. And it is obvious
from the law they passed to carry into effect the principles and
provisions of the ordinance, that they regarded it as the act of the
States done in the exercise of their legitimate powers at the time.
The new Government took the territory as it found it, and in the
condition in which it was transferred, and did not attempt to undo
anything that had been done. And, among the earliest laws passed under
the new Government, is one reviving the ordinance of 1787, which had
become inoperative and a nullity upon the adoption of the
Constitution. This law introduces no new form or principles for its
government, but recites, in the preamble, that it is passed in order
that this ordinance may continue to have full effect, and proceeds to
make only those rules and regulations which were needful to adapt it
to the new Government, into whose hands the power had fallen. It
appears, therefore, that this Congress regarded the purposes to which
the land in this Territory was to be applied, and the form of
government and principles of jurisprudence which were to prevail
there, while it remained in the Territorial state, as already
determined on by the States when they had full power and right to make
the decision; and that the new Government, having received it in this
condition, ought to carry substantially into effect the plans and
principles which had been previously adopted by the States, and which
no doubt the States anticipated when they surrendered their power to
the new Government. And if we regard this clause of the Constitution
as pointing to this Territory, with a Territorial Government already
established in it, which had been ceded to the States for the purposes
hereinbefore mentioned--every word in it is perfectly appropriate and
easily understood, and the provisions it contains are in perfect
harmony with the objects for which it was ceded, and with the
condition of its government as a Territory at the time. We can, then,
easily account for the manner in which the first Congress legislated
on the subject--and can also understand why this power over the
territory was associated in the same clause with the other property of
the United States, and subjected to the like power of making needful
rules and regulations. But if the clause is construed in the expanded
sense contended for, so as to embrace any territory acquired from a
foreign nation by the present Government, and to give it in such
territory a despotic and unlimited power over persons and property,
such as the confederated States might exercise in their common
property, it would be difficult to account for the phraseology used,
when compared with other grants of power--and also for its association
with the other provisions in the same clause.
The Constitution has always been remarkable for the felicity of its
arrangement of different subjects, and the perspicuity and
appropriateness of the language it uses. But if this clause is
construed to extend to territory acquired by the present Government
from a foreign nation, outside of the limits of any charter from the
British Government to a colony, it would be difficult to say, why it
was deemed necessary to give the Government the power to sell any
vacant lands belonging to the sovereignty which might be found within
it; and if this was necessary, why the grant of this power should
precede the power to legislate over it and establish a Government
there; and still more difficult to say, why it was deemed necessary so
specially and particularly to grant the power to make needful rules
and regulations in relation to any personal or movable property it
might acquire there. For the words, _other property_ necessarily, by
every known rule of interpretation, must mean property of a different
description from territory or land. And the difficulty would perhaps
be insurmountable in endeavoring to account for the last member of the
sentence, which provides that "nothing in this Constitution shall be
so construed as to prejudice any claims of the United States or any
particular State," or to say how any particular State could have
claims in or to a territory ceded by a foreign Government, or to
account for associating this provision with the preceding provisions
of the clause, with which it would appear to have no connection.
The words "needful rules and regulations" would seem, also, to have
been cautiously used for some definite object. They are not the words
usually employed by statesmen, when they mean to give the powers of
sovereignty, or to establish a Government, or to authorize its
establishment. Thus, in the law to renew and keep alive the ordinance
of 1787, and to re-establish the Government, the title of the law is:
"An act to provide for the government of the territory northwest of
the river Ohio." And in the Constitution, when granting the power to
legislate over the territory that may be selected for the seat of
Government independently of a State, it does not say Congress shall
have power "to make all needful rules and regulations respecting the
territory;" but it declares that "Congress shall have power to
exercise exclusive legislation in all cases whatsoever over such
District (not exceeding ten miles square) as may, by cession of
particular States and the acceptance of Congress, become the seat of
the Government of the United States."
The words "rules and regulations" are usually employed in the
Constitution in speaking of some particular specified power which it
means to confer on the Government, and not, as we have seen, when
granting general powers of legislation. As, for example, in the
particular power to Congress "to make rules for the government and
regulation of the land and naval forces, or the particular and
specific power to regulate commerce;" "to establish an uniform _rule_
of naturalization;" "to coin money and _regulate_ the value thereof."
And to construe the words of which we are speaking as a general and
unlimited grant of sovereignty over territories which the Government
might afterwards acquire, is to use them in a sense and for a purpose
for which they were not used in any other part of the instrument. But
if confined to a particular Territory, in which a Government and laws
had already been established, but which would require some alterations
to adapt it to the new Government, the words are peculiarly applicable
and appropriate for that purpose.
The necessity of this special provision in relation to property and
the rights or property held in common by the confederated States, is
illustrated by the first clause of the sixth article. This clause
provides that "all debts, contracts, and engagements entered into
before the adoption of this Constitution, shall be as valid against
the United States under this Government as under the Confederation."
This provision, like the one under consideration, was indispensable if
the new Constitution was adopted. The new Government was not a mere
change in a dynasty, or in a form of government, leaving the nation or
sovereignty the same, and clothed with all the rights, and bound by
all the obligations of the preceding one. But, when the present United
States came into existence under the new Government, it was a new
political body, a new nation, then for the first time taking its place
in the family of nations. It took nothing by succession from the
Confederation. It had no right, as its successor, to any property or
rights of property which it had acquired, and was not liable for any
of its obligations. It was evidently viewed in this light by the
framers of the Constitution. And as the several states would cease to
exist in their former confederated character upon the adoption of the
Constitution, and could not, in that character, again assemble
together, special provisions were indispensable to transfer to the new
Government the property and rights which at that time they held in
common; and at the same time to authorize it to lay taxes and
appropriate money to pay the common debt which they had contracted;
and this power could only be given to it by special provisions in the
Constitution. The clause in relation to the territory and other
property of the United States provided for the first, and the clause
last quoted provided for the other. They have no connection with the
general powers and rights of sovereignty delegated to the new
Government, and can neither enlarge nor diminish them. They were
inserted to meet a present emergency, and not to regulate its powers
as a Government.
Indeed, a similar provision was deemed necessary, in relation to
treaties made by the Confederation; and when in the clause next
succeeding the one of which we have last spoken, it is declared that
treaties shall be the supreme law of the land, care is taken to
include, by express words, the treaties made by the confederated
States. The language is: "and all treaties made, or which shall be
made, under the authority of the United States, shall be the supreme
law of the land."
Whether, therefore, we take the particular clause in question, by
itself, or in connection with the other provisions of the
Constitution, we think it clear, that it applies only to the
particular territory of which we have spoken, and cannot, by any just
rule of interpretation, be extended to territory which the new
Government might afterwards obtain from a foreign nation.
Consequently, the power which Congress may have lawfully exercised in
this Territory, while it remained under a Territorial Government, and
which may have been sanctioned by judicial decision, can furnish no
justification and no argument to support a similar exercise of power
over territory afterwards acquired by the Federal Government. We put
aside, therefore, any argument, drawn from precedents, showing the
extent of the power which the General Government exercised over
slavery in this Territory, as altogether inapplicable to the case
before us.
But the case of the American and Ocean Insurance Companies _v._ Canter
(1 Pet., 511) has been quoted as establishing a different construction
of this clause of the Constitution. There is, however, not the
slightest conflict between the opinion now given and the one referred
to; and it is only by taking a single sentence out of the latter and
separating it from the context, that even an appearance of conflict
can be shown. We need not comment on such a mode of expounding an
opinion of the court. Indeed it most commonly misrepresents instead of
expounding it. And this is fully exemplified in the case referred to,
where, if one sentence is taken by itself, the opinion would appear to
be in direct conflict with that now given; but the words which
immediately follow that sentence show that the court did not mean to
decide the point, but merely affirmed the power of Congress to
establish a Government in the Territory, leaving it an open question,
whether that power was derived from this clause in the Constitution,
or was to be necessarily inferred from a power to acquire territory by
cession from a foreign Government. The opinion on this part of the
case is short, and we give the whole of it to show how well the
selection of a single sentence is calculated to mislead.
The passage referred to is in page 542, in which the court, in
speaking of the power of Congress to establish a Territorial
Government in Florida until it should become a State, uses the
following language:
"In the mean time Florida continues to be a Territory of the United
States, governed by that clause of the Constitution which empowers
Congress to make all needful rules and regulations respecting the
territory or other property of the United States. Perhaps the power of
governing a territory belonging to the United States, which has not,
by becoming a State, acquired the means of self-government, may
result, necessarily, from the facts that it is not within the
jurisdiction of any particular State, and is within the power and
jurisdiction of the United States. The right to govern may be the
inevitable consequence of the right to acquire territory. _Whichever
may be the source from which the power is derived, the possession of
it is unquestionable._"
It is thus clear, from the whole opinion on this point, that the court
did not mean to decide whether the power was derived from the clause
in the Constitution, or was the necessary consequence of the right to
acquire. They do decide that the power in Congress is unquestionable,
and in this we entirely concur, and nothing will be found in this
opinion to the contrary. The power stands firmly on the latter
alternative put by the court--that is, as "_the inevitable consequence
of the right to acquire territory_."
And what still more clearly demonstrates that the court did not mean
to decide the question, but leave it open for future consideration, is
the fact that the case was decided in the Circuit Court by Mr. Justice
Johnson, and his decision was affirmed by the Supreme Court. His
opinion at the circuit is given in full in a note to the case, and in
that opinion he states, in explicit terms, that the clause of the
Constitution applies only to the territory then within the limits of
the United States, and not to Florida, which had been acquired by
cession from Spain. This part of his opinion will be found in the note
in page 517 of the report. But he does not dissent from the opinion of
the Supreme Court; thereby showing that, in his judgment, as well as
that of the court, the case before them did not call for a decision on
that particular point, and the court abstained from deciding it. And
in a part of its opinion subsequent to the passage we have quoted,
where the court speak of the legislative power of Congress in Florida,
they still speak with the same reserve. And in page 546, speaking of
the power of Congress to authorize the Territorial Legislature to
establish courts there, the court say: "They are legislative courts,
created in virtue of the general right of sovereignty which exists in
the Government, or in virtue of that clause which enables Congress to
make all needful rules and regulations respecting the territory
belonging to the United States."
It has been said that the construction given to this clause is new,
and now for the first time brought forward. The case of which we are
speaking, and which has been so much discussed, shows that the fact is
otherwise. It shows that precisely the same question came before Mr.
Justice Johnson, at his circuit, thirty years ago--was fully
considered by him, and the same construction given to the clause in
the Constitution which is now given by this court. And that upon an
appeal from his decision the same question was brought before this
court, but was not decided because a decision upon it was not required
by the case before the court.
There is another sentence in the opinion which has been commented on,
which even in a still more striking manner shows how one may mislead
or be misled by taking out a single sentence from the opinion of a
court, and leaving out of view what precedes and follows. It is in
page 546, near the close of the opinion, in which the court say: "In
legislating for them," (the territories of the United States,)
"Congress exercises the combined powers of the General and of a State
Government." And it is said, that as a State may unquestionably
prohibit slavery within its territory, this sentence decides in effect
that Congress may do the same in a Territory of the United States,
exercising there the powers of a State, as well as the power of the
General Government.
The examination of this passage in the case referred to, would be more
appropriate when we come to consider in another part of this opinion
what power Congress can constitutionally exercise in a Territory, over
the rights of person or rights of property of a citizen. But, as it is
in the same case with the passage we have before commented on, we
dispose of it now, as it will save the court from the necessity of
referring again to the case. And it will be seen upon reading the page
in which this sentence is found, that it has no reference whatever to
the power of Congress over rights of person or rights of property--but
relates altogether to the power of establishing judicial tribunals to
administer the laws constitutionally passed, and defining the
jurisdiction they may exercise.
The law of Congress establishing a Territorial Government in Florida,
provided that the Legislature of the Territory should have legislative
powers over "all rightful objects of legislation; but no law should be
valid which was inconsistent with the laws and Constitution of the
United States."
Under the power thus conferred, the Legislature of Florida passed an
act, erecting a tribunal at Key West to decide cases of salvage. And
in the case of which we are speaking, the question arose whether the
Territorial Legislature could be authorized by Congress to establish
such a tribunal, with such powers; and one of the parties, among other
objections, insisted that Congress could not under the Constitution
authorize the Legislature of the Territory to establish such a
tribunal with such powers, but that it must be established by Congress
itself; and that a sale of cargo made under its order, to pay salvors,
was void, as made without legal authority, and passed no property to
the purchaser.
It is in disposing of this objection that the sentence relied on
occurs, and the court begin that part of the opinion by stating with
great precision the point which they are about to decide.
They say: "It has been contended that by the Constitution of the
United States, the judicial power of the United States extends to all
cases of admiralty and maritime jurisdiction; and that the whole of
the judicial power must be vested 'in one Supreme Court, and in such
inferior courts as Congress shall from time to time ordain and
establish.' Hence it has been argued that Congress cannot vest
admiralty jurisdiction in courts created by the Territorial
Legislature."
And after thus clearly stating the point before them, and which they
were about to decide, they proceed to show that these Territorial
tribunals were not constitutional courts, but merely legislative, and
that Congress might, therefore, delegate the power to the Territorial
Government to establish the court in question; and they conclude that
part of the opinion in the following words: "Although admiralty
jurisdiction can be exercised in the States in those courts only which
are established in pursuance of the third article of the Constitution,
the same limitation does not extend to the Territories. In legislating
for them, Congress exercises the combined powers of the General and
State Governments."
Thus it will be seen by these quotations from the opinion, that the
court, after stating the question it was about to decide in a manner
too plain to be misunderstood, proceeded to decide it, and announced,
as the opinion of the tribunal, that in organizing the judicial
department of the Government in a Territory of the United States,
Congress does not act under, and is not restricted by, the third
article in the Constitution, and is not bound, in a Territory, to
ordain and establish courts in which the judges hold their offices
during good behaviour, but may exercise the discretionary power which
a State exercises in establishing its judicial department, and
regulating the jurisdiction of its courts, and may authorize the
Territorial Government to establish, or may itself establish, courts
in which the judges hold their offices for a term of years only; and
may vest in them judicial power upon subjects confided to the
judiciary of the United States. And in doing this, Congress
undoubtedly exercises the combined power of the General and a State
Government. It exercises the discretionary power of a State Government
in authorizing the establishment of a court in which the judges hold
their appointments for a term of years only, and not during good
behaviour; and it exercises the power of the General Government in
investing that court with admiralty jurisdiction, over which the
General Government had exclusive jurisdiction in the Territory.
No one, we presume, will question the correctness of that opinion; nor
is there anything in conflict with it in the opinion now given. The
point decided in the case cited has no relation to the question now
before the court. That depended on the construction of the third
article of the Constitution, in relation to the judiciary of the
United States, and the power which Congress might exercise in a
Territory in organizing the judicial department of the Government. The
case before us depends upon other and different provisions of the
Constitution, altogether separate and apart from the one above
mentioned. The question as to what courts Congress may ordain or
establish in a Territory to administer laws which the Constitution
authorizes it to pass, and what laws it is or is not authorized by the
Constitution to pass, are widely different--are regulated by different
and separate articles of the Constitution, and stand upon different
principles. And we are satisfied that no one who reads attentively the
page in Peters's Reports to which we have referred, can suppose that
the attention of the court was drawn for a moment to the question now
before this court, or that it meant in that case to say that Congress
had a right to prohibit a citizen of the United States from taking any
property which he lawfully held into a Territory of the United States.
This brings us to examine by what provision of the Constitution the
present Federal Government, under its delegated and restricted powers,
is authorized to acquire territory outside of the original limits of
the United States, and what powers it may exercise therein over the
person or property of a citizen of the United States, while it remains
a Territory, and until it shall be admitted as one of the States of
the Union.
There is certainly no power given by the Constitution to the Federal
Government to establish or maintain colonies bordering on the United
States or at a distance, to be ruled and governed at its own pleasure;
nor to enlarge its territorial limits in any way, except by the
admission of new States. That power is plainly given; and if a new
State is admitted, it needs no further legislation by Congress,
because the Constitution itself defines the relative rights and
powers, and duties of the State, and the citizens of the State, and
the Federal Government. But no power is given to acquire a Territory
to be held and governed permanently in that character.
And indeed the power exercised by Congress to acquire territory and
establish a Government there, according to its own unlimited
discretion, was viewed with great jealousy by the leading statesmen
of the day. And in the Federalist, (No. 38,) written by Mr. Madison,
he speaks of the acquisition of the Northwestern Territory by the
confederated States, by the cession from Virginia, and the
establishment of a Government there, as an exercise of power not
warranted by the Articles of Confederation, and dangerous to the
liberties of the people. And he urges the adoption of the Constitution
as a security and safeguard against such an exercise of power.
We do not mean, however, to question the power of Congress in this
respect. The power to expand the territory of the United States by the
admission of new States is plainly given; and in the construction of
this power by all the departments of the Government, it has been held
to authorize the acquisition of territory, not fit for admission at
the time, but to be admitted as soon as its population and situation
would entitle it to admission. It is acquired to become a State, and
not to be held as a colony and governed by Congress with absolute
authority; and as the propriety of admitting a new State is committed
to the sound discretion of Congress, the power to acquire territory
for that purpose, to be held by the United States until it is in a
suitable condition to become a State upon an equal footing with the
other States, must rest upon the same discretion. It is a question for
the political department of the Government, and not the judicial; and
whatever the political department of the Government shall recognise as
within the limits of the United States, the judicial department is
also bound to recognise, and to administer in it the laws of the
United States, so far as they apply, and to maintain in the Territory
the authority and rights of the Government, and also the personal
rights and rights of property of individual citizens, as secured by
the Constitution. All we mean to say on this point is, that, as there
is no express regulation in the Constitution defining the power which
the General Government may exercise over the person or property of a
citizen in a Territory thus acquired, the court must necessarily look
to the provisions and principles of the Constitution, and its
distribution of powers, for the rules and principles by which its
decision must be governed.
Taking this rule to guide us, it may be safely assumed that citizens
of the United States who migrate to a Territory belonging to the
people of the United States, cannot be ruled as mere colonists,
dependent upon the will of the General Government, and to be governed
by any laws it may think proper to impose. The principle upon which
our Governments rest, and upon which alone they continue to exist, is
the union of States, sovereign and independent within their own limits
in their internal and domestic concerns, and bound together as one
people by a General Government, possessing certain enumerated and
restricted powers, delegated to it by the people of the several
States, and exercising supreme authority within the scope of the
powers granted to it, throughout the dominion of the United States. A
power, therefore, in the General Government to obtain and hold
colonies and dependent territories, over which they might legislate
without restriction, would be inconsistent with its own existence in
its present form. Whatever it acquires, it acquires for the benefit of
the people of the several States who created it. It is their trustee
acting for them, and charged with the duty of promoting the interests
of the whole people of the Union in the exercise of the powers
specifically granted.
At the time when the Territory in question was obtained by cession
from France, it contained no population fit to be associated together
and admitted as a State; and it therefore was absolutely necessary to
hold possession of it, as a Territory belonging to the United States,
until it was settled and inhabited by a civilized community capable of
self-government, and in a condition to be admitted on equal terms with
the other States as a member of the Union. But, as we have before
said, it was acquired by the General Government, as the representative
and trustee of the people of the United States, and it must therefore
be held in that character for their common and equal benefit; for it
was the people of the several States, acting through their agent and
representative, the Federal Government, who in fact acquired the
Territory in question, and the Government holds it for their common
use until it shall be associated with the other States as a member of
the Union.
But until that time arrives, it is undoubtedly necessary that some
Government should be established, in order to organize society, and to
protect the inhabitants in their persons and property; and as the
people of the United States could act in this matter only through the
Government which represented them, and through which they spoke and
acted when the Territory was obtained, it was not only within the
scope of its powers, but it was its duty to pass such laws and
establish such a Government as would enable those by whose authority
they acted to reap the advantages anticipated from its acquisition,
and to gather there a population which would enable it to assume the
position to which it was destined among the States of the Union. The
power to acquire necessarily carries with it the power to preserve and
apply to the purposes for which it was acquired. The form of
government to be established necessarily rested in the discretion of
Congress. It was their duty to establish the one that would be best
suited for the protection and security of the citizens of the United
States, and other inhabitants who might be authorized to take up their
abode there, and that must always depend upon the existing condition
of the Territory, as to the number and character of its inhabitants,
and their situation in the Territory. In some cases a Government,
consisting of persons appointed by the Federal Government, would best
subserve the interests of the Territory, when the inhabitants were few
and scattered, and new to one another. In other instances, it would be
more advisable to commit the powers of self-government to the people
who had settled in the Territory, as being the most competent to
determine what was best for their own interests. But some form of
civil authority would be absolutely necessary to organize and preserve
civilized society, and prepare it to become a State; and what is the
best form must always depend on the condition of the Territory at the
time, and the choice of the mode must depend upon the exercise of a
discretionary power by Congress, acting within the scope of its
constitutional authority, and not infringing upon the rights of person
or rights of property of the citizen who might go there to reside, or
for any other lawful purpose. It was acquired by the exercise of this
discretion, and it must be held and governed in like manner, until it
is fitted to be a State.
But the power of Congress over the person or property of a citizen can
never be a mere discretionary power under our Constitution and form of
Government. The powers of the Government and the rights and privileges
of the citizen are regulated and plainly defined by the Constitution
itself. And when the Territory becomes a part of the United States,
the Federal Government enters into possession in the character
impressed upon it by those who created it. It enters upon it with its
powers over the citizen strictly defined, and limited by the
Constitution, from which it derives its own existence, and by virtue
of which alone it continues to exist and act as a Government and
sovereignty. It has no power of any kind beyond it; and it cannot,
when it enters a Territory of the United States, put off its
character, and assume discretionary or despotic powers which the
Constitution has denied to it. It cannot create for itself a new
character separated from the citizens of the United States, and the
duties it owes them under the provisions of the Constitution. The
Territory being a part of the United States, the Government and the
citizen both enter it under the authority of the Constitution, with
their respective rights defined and marked out; and the Federal
Government can exercise no power over his person or property, beyond
what that instrument confers, nor lawfully deny any right which it has
reserved.
A reference to a few of the provisions of the Constitution will
illustrate this proposition.
For example, no one, we presume, will contend that Congress can make
any law in a Territory respecting the establishment of religion, or
the free exercise thereof, or abridging the freedom of speech or of
the press, or the right of the people of the Territory peaceably to
assemble, and to petition the Government for the redress of
grievances.
Nor can Congress deny to the people the right to keep and bear arms,
nor the right to trial by jury, nor compel any one to be a witness
against himself in a criminal proceeding.
These powers, and others, in relation to rights of person, which it is
not necessary here to enumerate, are, in express and positive terms,
denied to the General Government; and the rights of private property
have been guarded with equal care. Thus the rights of property are
united with the rights of person, and placed on the same ground by the
fifth amendment to the Constitution, which provides that no person
shall be deprived of life, liberty, and property, without due process
of law. And an act of Congress which deprives a citizen of the United
States of his liberty or property, merely because he came himself or
brought his property into a particular Territory of the United States,
and who had committed no offence against the laws, could hardly be
dignified with the name of due process of law.
So, too, it will hardly be contended that Congress could by law
quarter a soldier in a house in a Territory without the consent of the
owner, in time of peace; nor in time of war, but in a manner
prescribed by law. Nor could they by law forfeit the property of a
citizen in a Territory who was convicted of treason, for a longer
period than the life of the person convicted; nor take private
property for public use without just compensation.
The powers over person and property of which we speak are not only not
granted to Congress, but are in express terms denied, and they are
forbidden to exercise them. And this prohibition is not confined to
the States, but the words are general, and extend to the whole
territory over which the Constitution gives it power to legislate,
including those portions of it remaining under Territorial Government,
as well as that covered by States. It is a total absence of power
everywhere within the dominion of the United States, and places the
citizens of a Territory, so far as these rights are concerned, on the
same footing with citizens of the States, and guards them as firmly
and plainly against any inroads which the General Government might
attempt, under the plea of implied or incidental powers. And if
Congress itself cannot do this--if it is beyond the powers conferred
on the Federal Government--it will be admitted, we presume, that it
could not authorize a Territorial Government to exercise them. It
could confer no power on any local Government, established by its
authority, to violate the provisions of the Constitution.
It seems, however, to be supposed, that there is a difference between
property in a slave and other property, and that different rules may
be applied to it in expounding the Constitution of the United States.
And the laws and usages of nations, and the writings of eminent
jurists upon the relation of master and slave and their mutual rights
and duties, and the powers which Governments may exercise over it,
have been dwelt upon in the argument.
But in considering the question before us, it must be borne in mind
that there is no law of nations standing between the people of the
United States and their Government, and interfering with their
relation to each other. The powers of the Government, and the rights
of the citizen under it, are positive and practical regulations
plainly written down. The people of the United States have delegated
to it certain enumerated powers, and forbidden it to exercise others.
It has no power over the person or property of a citizen but what the
citizens of the United States have granted. And no laws or usages of
other nations, or reasoning of statesmen or jurists upon the relations
of master and slave, can enlarge the powers of the Government, or take
from the citizens the rights they have reserved. And if the
Constitution recognises the right of property of the master in a
slave, and makes no distinction between that description of property
and other property owned by a citizen, no tribunal, acting under the
authority of the United States, whether it be legislative, executive,
or judicial, has a right to draw such a distinction, or deny to it the
benefit of the provisions and guarantees which have been provided for
the protection of private property against the encroachments of the
Government.
Now, as we have already said in an earlier part of this opinion, upon
a different point, the right of property in a slave is distinctly and
expressly affirmed in the Constitution. The right to traffic in it,
like an ordinary article of merchandise and property, was guarantied
to the citizens of the United States, in every State that might desire
it, for twenty years. And the Government in express terms is pledged
to protect it in all future time, if the slave escapes from his
owner. This is done in plain words--too plain to be misunderstood. And
no word can be found in the Constitution which gives Congress a
greater power over slave property, or which entitles property of that
kind to less protection than property of any other description. The
only power conferred is the power coupled with the duty of guarding
and protecting the owner in his rights.
Upon these considerations, it is the opinion of the court that the act
of Congress which prohibited a citizen from holding and owning
property of this kind in the territory of the United States north of
the line therein mentioned, is not warranted by the Constitution, and
is therefore void; and that neither Dred Scott himself, nor any of his
family, were made free by being carried into this territory; even if
they had been carried there by the owner, with the intention of
becoming a permanent resident.
We have so far examined the case, as it stands under the Constitution
of the United States, and the powers thereby delegated to the Federal
Government.
But there is another point in the case which depends on State power
and State law. And it is contended, on the part of the plaintiff, that
he is made free by being taken to Rock Island, in the State of
Illinois, independently of his residence in the territory of the
United States; and being so made free, he was not again reduced to a
state of slavery by being brought back to Missouri.
Our notice of this part of the case will be very brief; for the
principle on which it depends was decided in this court, upon much
consideration, in the case of Strader et al. _v._ Graham, reported in
10th Howard, 82. In that case, the slaves had been taken from Kentucky
to Ohio, with the consent of the owner, and afterwards brought back to
Kentucky. And this court held that their _status_ or condition, as
free or slave, depended upon the laws of Kentucky, when they were
brought back into that State, and not of Ohio; and that this court had
no jurisdiction to revise the judgment of a State court upon its own
laws. This was the point directly before the court, and the decision
that this court had not jurisdiction turned upon it, as will be seen
by the report of the case.
So in this case. As Scott was a slave when taken into the State of
Illinois by his owner, and was there held as such, and brought back in
that character, his _status_, as free or slave, depended on the laws
of Missouri, and not of Illinois.
It has, however, been urged in the argument, that by the laws of
Missouri he was free on his return, and that this case, therefore,
cannot be governed by the case of Strader et al. _v._ Graham, where it
appeared, by the laws of Kentucky, that the plaintiffs continued to be
slaves on their return from Ohio. But whatever doubts or opinions may,
at one time, have been entertained upon this subject, we are
satisfied, upon a careful examination of all the cases decided in the
State courts of Missouri referred to, that it is now firmly settled by
the decisions of the highest court in the State, that Scott and his
family upon their return were not free, but were, by the laws of
Missouri, the property of the defendant; and that the Circuit Court of
the United States had no jurisdiction, when, by the laws of the State,
the plaintiff was a slave, and not a citizen.
Moreover, the plaintiff, it appears, brought a similar action against
the defendant in the State court of Missouri, claiming the freedom of
himself and his family upon the same grounds and the same evidence
upon which he relies in the case before the court. The case was
carried before the Supreme Court of the State; was fully argued there;
and that court decided that neither the plaintiff nor his family were
entitled to freedom, and were still the slaves of the defendant; and
reversed the judgment of the inferior State court, which had given a
different decision. If the plaintiff supposed that this judgment of
the Supreme Court of the State was erroneous, and that this court had
jurisdiction to revise and reverse it, the only mode by which he could
legally bring it before this court was by writ of error directed to
the Supreme Court of the State, requiring it to transmit the record to
this court. If this had been done, it is too plain for argument that
the writ must have been dismissed for want of jurisdiction in this
court. The case of Strader and others _v._ Graham is directly in
point; and, indeed, independent of any decision, the language of the
25th section of the act of 1789 is too clear and precise to admit of
controversy.
But the plaintiff did not pursue the mode prescribed by law for
bringing the judgment of a State court before this court for revision,
but suffered the case to be remanded to the inferior State court,
where it is still continued, and is, by agreement of parties, to await
the judgment of this court on the point. All of this appears on the
record before us, and by the printed report of the case.
And while the case is yet open and pending in the inferior State
court, the plaintiff goes into the Circuit Court of the United States,
upon the same case and the same evidence, and against the same party,
and proceeds to judgment, and then brings here the same case from the
Circuit Court, which the law would not have permitted him to bring
directly from the State court. And if this court takes jurisdiction
in this form, the result, so far as the rights of the respective
parties are concerned, is in every respect substantially the same as
if it had in open violation of law entertained jurisdiction over the
judgment of the State court upon a writ of error, and revised and
reversed its judgment upon the ground that its opinion upon the
question of law was erroneous. It would ill become this court to
sanction such an attempt to evade the law, or to exercise an appellate
power in this circuitous way, which it is forbidden to exercise in the
direct and regular and invariable forms of judicial proceedings.
Upon the whole, therefore, it is the judgment of this court, that it
appears by the record before us that the plaintiff in error is not a
citizen of Missouri, in the sense in which that word is used in the
Constitution; and that the Circuit Court of the United States, for
that reason, had no jurisdiction in the case, and could give no
judgment in it. Its judgment for the defendant must, consequently, be
reversed, and a mandate issued, directing the suit to be dismissed for
want of jurisdiction.
* * * * *
Mr. Justice WAYNE.
Concurring as I do entirely in the opinion of the court, as it has
been written and read by the Chief Justice--without any qualification
of its reasoning or its conclusions--I shall neither read nor file an
opinion of my own in this case, which I prepared when I supposed it
might be necessary and proper for me to do so.
The opinion of the court meets fully and decides every point which was
made in the argument of the case by the counsel on either side of it.
Nothing belonging to the case has been left undecided, nor has any
point been discussed and decided which was not called for by the
record, or which was not necessary for the judicial disposition of it,
in the way that it has been done, by more than a majority of the
court.
In doing this, the court neither sought nor made the case. It was
brought to us in the course of that administration of the laws which
Congress has enacted, for the review of cases from the Circuit Courts
by the Supreme Court.
In our action upon it, we have only discharged our duty as a distinct
and efficient department of the Government, as the framers of the
Constitution meant the judiciary to be, and as the States of the Union
and the people of those States intended it should be, when they
ratified the Constitution of the United States.
The case involves private rights of value, and constitutional
principles of the highest importance, about which there had become
such a difference of opinion, that the peace and harmony of the
country required the settlement of them by judicial decision.
It would certainly be a subject of regret, that the conclusions of the
court have not been assented to by all of its members, if I did not
know from its history and my own experience how rarely it has happened
that the judges have been unanimous upon constitutional questions of
moment, and if our decision in this case had not been made by as large
a majority of them as has been usually had on constitutional questions
of importance.
Two of the judges, Mr. Justices McLean and Curtis, dissent from the
opinion of the court. A third, Mr. Justice Nelson, gives a separate
opinion upon a single point in the case, with which I concur, assuming
that the Circuit Court had jurisdiction; but he abstains altogether
from expressing any opinion upon the eighth section of the act of
1820, known commonly as the Missouri Compromise law, and six of us
declare that it was unconstitutional.
But it has been assumed, that this court has acted extra-judicially in
giving an opinion upon the eighth section of the act of 1820, because,
as it has decided that the Circuit Court had no jurisdiction of the
case, this court had no jurisdiction to examine the case upon its
merits.
But the error of such an assertion has arisen in part from a
misapprehension of what has been heretofore decided by the Supreme
Court, in cases of a like kind with that before us; in part, from a
misapplication to the Circuit Courts of the United States, of the
rules of pleading concerning pleas to the jurisdiction which prevail
in common-law courts; and from its having been forgotten that this
case was not brought to this court by appeal or writ of error from a
State court, but by a writ of error to the Circuit Court of the United
States.
The cases cited by the Chief Justice to show that this court has now
only done what it has repeatedly done before in other cases, without
any question of its correctness, speak for themselves. The differences
between the rules concerning pleas to the jurisdiction in the courts
of the United States and common-law courts have been stated and
sustained by reasoning and adjudged cases; and it has been shown that
writs of error to a State court and to the Circuit Courts of the
United States are to be determined by different laws and principles.
In the first, it is our duty ascertain if this court has jurisdiction,
under the twenty-fifth section of the judiciary act, to review the
case _from the State court_; and if it shall be found that it has not,
the case is at end, so far as this court is concerned; for our power
to review the case upon its merits has been made, by the twenty-fifth
section, to depend upon its having jurisdiction; when it has not, this
court cannot criticise, controvert, or give any opinion upon the
merits of a case from a State court.
But in a case brought to this court, by appeal or by writ of error
from _a Circuit Court of the United States_, we begin a review of it,
_not by inquiring if this court has jurisdiction_, but if that court
has it. If the case has been decided by that court upon its merits,
but the record shows it to be deficient in those averments which by
the law of the United States must be made by the plaintiff in the
action, to give the court jurisdiction of his case, we send it back to
the court from which it was brought, with directions to be dismissed,
though it has been decided there upon its merits.
So, in a case containing the averments by the plaintiff which are
necessary to give the Circuit Court jurisdiction, if the defendant
shall file his plea in abatement denying the truth of them, and the
plaintiff shall demur to it, and the court should _erroneously sustain
the plaintiff's demurrer, or declare the plea to be insufficient, and
by doing so require the defendant to answer over by a plea to the
merits, and shall decide the case upon such pleading_, this court has
the same authority to inquire into the jurisdiction of that court to
do so, and to correct its error in that regard, that it had in the
other case to correct its error, in trying a case in which the
plaintiff had not made those averments which were necessary to give
the court jurisdiction. In both cases the record is resorted to, to
determine the point of jurisdiction; but, as the power of review of
cases from a Federal court, by this court, is not limited by the law
to a part of the case, this court may correct an error upon the
merits; and there is the same reason for correcting an erroneous
judgment of the Circuit Court, where the want of jurisdiction appears
from any part of the record, that there is for declaring a want of
jurisdiction for a want of necessary averments. Any attempt to control
the court from doing so by the technical common-law rules of pleading
in cases of jurisdiction, when a defendant has been denied his plea to
it, would tend to enlarge the jurisdiction of the Circuit Court, by
limiting this court's review of its judgments in that particular. But
I will not argue a point already so fully discussed. I have every
confidence in the opinion of the court upon the point of jurisdiction,
and do not allow myself to doubt that the error of a contrary
conclusion will be fully understood by all who shall read the argument
of the Chief Justice.
I have already said that the opinion of the court has my unqualified
assent.
* * * * *
Mr. Justice NELSON.
I shall proceed to state the grounds upon which I have arrived at the
conclusion, that the judgment of the court below should be affirmed.
The suit was brought in the court below by the plaintiff, for the
purpose of asserting his freedom, and that of Harriet, his wife, and
two children.
The defendant plead, in abatement to the suit, that the cause of
action, if any, accrued to the plaintiff out of the jurisdiction of
the court, and exclusively within the jurisdiction of the courts of
the State of Missouri; for, that the said plaintiff is not a citizen
of the State of Missouri, as alleged in the declaration, because he is
a negro of African descent; his ancestors were of pure African blood,
and were brought into this country and sold as negro slaves.
To this plea the plaintiff demurred, and the defendant joined in
demurrer. The court below sustained the demurrer, holding that the
plea was insufficient in law to abate the suit.
The defendant then plead over in bar of the action:
1. The general issue. 2. That the plaintiff was a negro slave, the
lawful property of the defendant. And 3. That Harriet, the wife of
said plaintiff, and the two children, were the lawful slaves of the
said defendant. Issue was taken upon these pleas, and the cause went
down to trial before the court and jury, and an agreed state of facts
was presented, upon which the trial proceeded, and resulted in a
verdict for the defendant, under the instructions of the court.
The facts agreed upon were substantially as follows:
That in the year 1834, the plaintiff, Scott, was a negro slave of Dr.
Emerson, who was a surgeon in the army of the United States; and in
that year he took the plaintiff from the State of Missouri to the
military post at Rock Island, in the State of Illinois, and held him
there as a slave until the month of April or May, 1836. At this date,
Dr. Emerson removed, with the plaintiff from the Rock Island post to
the military post at Fort Snelling, situate on the west bank of the
Mississippi river, in the Territory of Upper Louisiana, and north of
the latitude thirty-six degrees thirty minutes, and north of the State
of Missouri. That he held the plaintiff in slavery, at Fort Snelling,
from the last-mentioned date until the year 1838.
That in the year 1835, Harriet, mentioned in the declaration, was a
negro slave of Major Taliaferro, who belonged to the army of the
United States; and in that year he took her to Fort Snelling, already
mentioned, and kept her there as a slave until the year 1836, and then
sold and delivered her to Dr. Emerson, who held her in slavery, at
Fort Snelling, until the year 1838. That in the year 1836, the
plaintiff and Harriet were married, at Fort Snelling, with the
consent of their master. The two children, Eliza and Lizzie, are the
fruit of this marriage. The first is about fourteen years of age, and
was born on board the steamboat Gipsey, north of the State of
Missouri, and upon the Mississippi river; the other, about seven years
of age, was born in the State of Missouri, at the military post called
Jefferson Barracks.
In 1838, Dr. Emerson removed the plaintiff, Harriet, and their
daughter Eliza, from Fort Snelling to the State of Missouri, where
they have ever since resided. And that, before the commencement of
this suit, they were sold by the Doctor to Sandford, the defendant,
who has claimed and held them as slaves ever since.
The agreed case also states that the plaintiff brought a suit for his
freedom, in the Circuit Court of the State of Missouri, on which a
judgment was rendered in his favor; but that, on a writ of error from
the Supreme Court of the State, the judgment of the court below was
reversed, and the cause remanded to the circuit for a new trial.
On closing the testimony in the court below, the counsel for the
plaintiff prayed the court to instruct the jury, upon the agreed state
of facts, that they ought to find for the plaintiff; when the court
refused, and instructed them that, upon the facts, the law was with
the defendant.
With respect to the plea in abatement, which went to the citizenship
of the plaintiff, and his competency to bring a suit in the Federal
courts, the common-law rule of pleading is, that upon a judgment
against the plea on demurrer, and that the defendant answer over, and
the defendant submits to the judgment, and pleads over to the merits,
the plea in abatement is deemed to be waived, and is not afterwards to
be regarded as a part of the record in deciding upon the rights of the
parties. There is some question, however, whether this rule of
pleading applies to the peculiar system and jurisdiction of the
Federal courts. As, in these courts, if the facts appearing on the
record show that the Circuit Court had no jurisdiction, its judgment
will be reversed in the appellate court for that cause, and the case
remanded with directions to be dismissed.
In the view we have taken of the case, it will not be necessary to
pass upon this question, and we shall therefore proceed at once to an
examination of the case upon its merits. The question upon the merits,
in general terms, is, whether or not the removal of the plaintiff, who
was a slave, with his master, from the State of Missouri to the State
of Illinois, with a view to a temporary residence, and after such
residence and return to the slave State, such residence in the free
State works an emancipation.
As appears from an agreed statement of facts, this question has been
before the highest court of the State of Missouri, and a judgment
rendered that this residence in the free State has no such effect;
but, on the contrary, that his original condition continued unchanged.
The court below, the Circuit Court of the United States for Missouri,
in which this suit was afterwards brought, followed the decision of
the State court, and rendered a like judgment against the plaintiff.
The argument against these decisions is, that the laws of Illinois,
forbidding slavery within her territory, had the effect to set the
slave free while residing in that State, and to impress upon him the
condition and status of a freeman; and that, by force of these laws,
this status and condition accompanied him on his return to the slave
State, and of consequence he could not be there held as a slave.
This question has been examined in the courts of several of the
slaveholding States, and different opinions expressed and conclusions
arrived at. We shall hereafter refer to some of them, and to the
principles upon which they are founded. Our opinion is, that the
question is one which belongs to each State to decide for itself,
either by its Legislature or courts of justice; and hence, in respect
to the case before us, to the State of Missouri--a question
exclusively of Missouri law, and which, when determined by that State,
it is the duty of the Federal courts to follow it. In other words,
except in cases where the power is restrained by the Constitution of
the United States, the law of the State is supreme over the subject of
slavery within its jurisdiction.
As a practical illustration of the principle, we may refer to the
legislation of the free States in abolishing slavery, and prohibiting
its introduction into their territories. Confessedly, except as
restrained by the Federal Constitution, they exercised, and
rightfully, complete and absolute power over the subject. Upon what
principle, then, can it be denied to the State of Missouri? The power
flows from the sovereign character of the States of this Union;
sovereign, not merely as respects the Federal Government--except as
they have consented to its limitation--but sovereign as respects each
other. Whether, therefore, the State of Missouri will recognise or
give effect to the laws of Illinois within her territories on the
subject of slavery, is a question for her to determine. Nor is there
any constitutional power in this Government that can rightfully
control her.
Every State or nation possesses an exclusive sovereignty and
jurisdiction within her own territory; and, her laws affect and bind
all property and persons residing within it. It may regulate the
manner and circumstances under which property is held, and the
condition, capacity, and state, of all persons therein; and, also, the
remedy and modes of administering justice. And it is equally true,
that no State or nation can affect or bind property out of its
territory, or persons not residing within it. No State, therefore, can
enact laws to operate beyond its own dominions, and, if it attempts to
do so, it may be lawfully refused obedience. Such laws can have no
inherent authority extra-territorially. This is the necessary result
of the independence of distinct and separate sovereignties.
Now, it follows from these principles, that whatever force or effect
the laws of one State or nation may have in the territories of
another, must depend solely upon the laws and municipal regulations of
the latter, upon its own jurisprudence and polity, and upon its own
express or tacit consent.
Judge Story observes, in his Conflict of Laws, (p. 24,) "that a State
may prohibit the operation of all foreign laws, and the rights growing
out of them, within its territories." "And that when its code speaks
positively on the subject, it must be obeyed by all persons who are
within reach of its sovereignty; when its customary unwritten or
common law speaks directly on the subject, it is equally to be
obeyed."
Nations, from convenience and comity, and from mutual interest, and a
sort of moral necessity to do justice, recognise and administer the
laws of other countries. But, of the nature, extent, and utility, of
them, respecting property, or the state and condition of persons
within her territories, each nation judges for itself; and is never
bound, even upon the ground of comity, to recognise them, if
prejudicial to her own interests. The recognition is purely from
comity, and not from any absolute or paramount obligation.
Judge Story again observes, (398,) "that the true foundation and
extent of the obligation of the laws of one nation within another is
the voluntary consent of the latter, and is inadmissible when they are
contrary to its known interests." And he adds, "in the silence of any
positive rule affirming or denying or restraining the operation of the
foreign laws, courts of justice presume the tacit adoption of them by
their own Government, unless they are repugnant to its policy or
prejudicial to its interests." (See also 2 Kent Com., p. 457; 13
Peters, 519, 589.)
These principles fully establish, that it belongs to the sovereign
State of Missouri to determine by her laws the question of slavery
within her jurisdiction, subject only to such limitations as may be
found in the Federal Constitution; and, further, that the laws of
other States of the Confederacy, whether enacted by their Legislatures
or expounded by their courts, can have no operation within her
territory, or affect rights growing out of her own laws on the
subject. This is the necessary result of the independent and sovereign
character of the State. The principle is not peculiar to the State of
Missouri, but is equally applicable to each State belonging to the
Confederacy. The laws of each have no extra-territorial operation
within the jurisdiction of another, except such as may be voluntarily
conceded by her laws or courts of justice. To the extent of such
concession upon the rule of comity of nations, the foreign law may
operate, as it then becomes a part of the municipal law of the State.
When determined that the foreign law shall have effect, the municipal
law of the State retires, and gives place to the foreign law.
In view of these principles, let us examine a little more closely the
doctrine of those who maintain that the law of Missouri is not to
govern the status and condition of the plaintiff. They insist that the
removal and temporary residence with his master in Illinois, where
slavery is inhibited, had the effect to set him free, and that the
same effect is to be given to the law of Illinois, within the State of
Missouri, after his return. Why was he set free in Illinois? Because
the law of Missouri, under which he was held as a slave, had no
operation by its own force extra-territorially; and the State of
Illinois refused to recognise its effect within her limits, upon
principles of comity, as a state of slavery was inconsistent with her
laws, and contrary to her policy. But, how is the case different on
the return of the plaintiff to the State of Missouri? Is she bound to
recognise and enforce the law of Illinois? For, unless she is, the
status and condition of the slave upon his return remains the same as
originally existed. Has the law of Illinois any greater force within
the jurisdiction of Missouri, than the laws of the latter within that
of the former? Certainly not. They stand upon an equal footing.
Neither has any force extra-territorially, except what may be
voluntarily conceded to them.
It has been supposed, by the counsel for the plaintiff, that a rule
laid down by Huberus had some bearing upon this question. Huberus
observes that "personal qualities, impressed by the laws of any place,
surround and accompany the person wherever he goes, with this effect:
that in every place he enjoys and is subject to the same law which
other persons of his class elsewhere enjoy or are subject to." (De
Confl. Leg., lib. 1, tit. 3, sec. 12; 4 Dallas, 375 n.; 1 Story Con.
Laws, pp. 59, 60.)
The application sought to be given to the rule was this: that as Dred
Scott was free while residing in the State of Illinois, by the laws of
that State, on his return to the State of Missouri he carried with him
the personal qualities of freedom, and that the same effect must be
given to his status there as in the former State. But the difficulty
in the case is in the total misapplication of the rule.
These personal qualities, to which Huberus refers, are those impressed
upon the individual by the law of the domicil; it is this that the
author claims should be permitted to accompany the person into
whatever country he might go, and should supersede the law of the
place where he had taken up a temporary residence.
Now, as the domicil of Scott was in the State of Missouri, where he
was a slave, and from whence he was taken by his master into Illinois
for a temporary residence, according to the doctrine of Huberus, the
law of his domicil would have accompanied him, and during his
residence there he would remain in the same condition as in the State
of Missouri. In order to have given effect to the rule, as claimed in
the argument, it should have been first shown that a domicil had been
acquired in the free State, which cannot be pretended upon the agreed
facts in the case. But the true answer to the doctrine of Huberus is,
that the rule, in any aspect in which it may be viewed, has no bearing
upon either side of the question before us, even if conceded to the
extent laid down by the author; for he admits that foreign Governments
give effect to these laws of the domicil no further than they are
consistent with their own laws, and not prejudicial to their own
subjects; in other words, their force and effect depend upon the law
of comity of the foreign Government. We should add, also, that this
general rule of Huberus, referred to, has not been admitted in the
practice of nations, nor is it sanctioned by the most approved jurists
of international law. (Story Con., sec. 91, 96, 103, 104; 2 Kent.
Com., p. 457, 458; 1 Burge Con. Laws, pp. 12, 127.)
We come now to the decision of this court in the case of Strader et
al. _v._ Graham, (10 How., p. 2.) The case came up from the Court of
Appeals, in the State of Kentucky. The question in the case was,
whether certain slaves of Graham, a resident of Kentucky, who had been
employed temporarily at several places in the State of Ohio, with
their master's consent, and had returned to Kentucky into his service,
had thereby become entitled to their freedom. The Court of Appeals
held that they had not. The case was brought to this court under the
twenty-fifth section of the judiciary act. This court held that it had
no jurisdiction, for the reason, the question was one that belonged
exclusively to the State of Kentucky. The Chief Justice, in delivering
the opinion of the court, observed that "every State has an undoubted
right to determine the status or domestic and social condition of the
persons domiciled within its territory, except in so far as the powers
of the States in this respect are restrained, or duties and
obligations imposed upon them, by the Constitution of the United
States. There is nothing in the Constitution of the United States, he
observes, that can in any degree control the law of Kentucky upon this
subject. And the condition of the negroes, therefore, as to freedom or
slavery, after their return, depended altogether upon the laws of that
State, and could not be influenced by the laws of Ohio. It was
exclusively in the power of Kentucky to determine, for herself,
whether their employment in another State should or should not make
them free on their return."
It has been supposed, in the argument on the part of the plaintiff,
that the eighth section of the act of Congress passed March 6, 1820,
(3 St. at Large, p. 544,) which prohibited slavery north of thirty-six
degrees thirty minutes, within which the plaintiff and his wife
temporarily resided at Fort Snelling, possessed some superior virtue
and effect, extra-territorially, and within the State of Missouri,
beyond that of the laws of Illinois, or those of Ohio in the case of
Strader et al. _v._ Graham. A similar ground was taken and urged upon
the court in the case just mentioned, under the ordinance of 1787,
which was enacted during the time of the Confederation, and re-enacted
by Congress after the adoption of the Constitution, with some
amendments adapting it to the new Government. (1 St. at Large, p. 50.)
In answer to this ground, the Chief Justice, in delivering the opinion
of the court, observed: "The argument assumes that the six articles
which that ordinance declares to be perpetual, are still in force in
the States since formed within the territory, and admitted into the
Union. If this proposition could be maintained, it would not alter the
question; for the regulations of Congress, under the old Confederation
or the present Constitution, for the government of a particular
Territory, could have no force beyond its limits. It certainly could
not restrict the power of the States, within their respective
territories, nor in any manner interfere with their laws and
institutions, nor give this court control over them.
"The ordinance in question, he observes, if still in force, could have
no more operation than the laws of Ohio in the State of Kentucky, and
could not influence the decision upon the rights of the master or the
slaves in that State."
This view, thus authoritatively declared, furnishes a conclusive
answer to the distinction attempted to be set up between the
extra-territorial effect of a State law and the act of Congress in
question.
It must be admitted that Congress possesses no power to regulate or
abolish slavery within the States; and that, if this act had attempted
any such legislation, it would have been a nullity. And yet the
argument here, if there be any force in it, leads to the result, that
effect may be given to such legislation; for it is only by giving the
act of Congress operation within the State of Missouri, that it can
have any effect upon the question between the parties. Having no such
effect directly, it will be difficult to maintain, upon any consistent
reasoning, that it can be made to operate indirectly upon the subject.
The argument, we think, in any aspect in which it may be viewed, is
utterly destitute of support upon any principles of constitutional
law, as, according to that, Congress has no power whatever over the
subject of slavery within the State; and is also subversive of the
established doctrine of international jurisprudence, as, according to
that, it is an axiom that the laws of one Government have no force
within the limits of another, or extra-territorially, except from the
consent of the latter.
It is perhaps not unfit to notice, in this connection, that many of
the most eminent statesmen and jurists of the country entertain the
opinion that this provision of the act of Congress, even within the
territory to which it relates, was not authorized by any power under
the Constitution. The doctrine here contended for, not only upholds
its validity in the territory, but claims for it effect beyond and
within the limits of a sovereign State--an effect, as insisted, that
displaces the laws of the State, and substitutes its own provisions in
their place.
The consequences of any such construction are apparent. If Congress
possesses the power, under the Constitution, to abolish slavery in a
Territory, it must necessarily possess the like power to establish it.
It cannot be a one-sided power, as may suit the convenience or
particular views of the advocates. It is a power, if it exists at all,
over the whole subject; and then, upon the process of reasoning which
seeks to extend its influence beyond the Territory, and within the
limits of a State, if Congress should establish, instead of abolish,
slavery, we do not see but that, if a slave should be removed from
the Territory into a free State, his status would accompany him, and
continue, notwithstanding its laws against slavery. The laws of the
free State, according to the argument, would be displaced, and the act
of Congress, in its effect, be substituted in their place. We do not
see how this conclusion could be avoided, if the construction against
which we are contending should prevail. We are satisfied, however, it
is unsound, and that the true answer to it is, that even conceding,
for the purposes of the argument, that this provision of the act of
Congress is valid within the Territory for which it was enacted, it
can have no operation or effect beyond its limits, or within the
jurisdiction of a State. It can neither displace its laws, nor change
the status or condition of its inhabitants.
Our conclusion, therefore, is, upon this branch of the case, that the
question involved is one depending solely upon the law of Missouri,
and that the Federal court sitting in the State, and trying the case
before us, was bound to follow it.
The remaining question for consideration is, What is the law of the
State of Missouri on this subject? And it would be a sufficient answer
to refer to the judgment of the highest court of the State in the very
case, were it not due to that tribunal to state somewhat at large the
course of decision and the principles involved, on account of some
diversity of opinion in the cases. As we have already stated, this
case was originally brought in the Circuit Court of the State, which
resulted in a judgment for the plaintiff. The case was carried up to
the Supreme Court for revision. That court reversed the judgment
below, and remanded the cause to the circuit, for a new trial. In that
state of the proceeding, a new suit was brought by the plaintiff in
the Circuit Court of the United States, and tried upon the issues and
agreed case before us, and a verdict and judgment for the defendant,
that court following the decision of the Supreme Court of the State.
The judgment of the Supreme Court is reported in the 15 Misso. R., p.
576. The court placed the decision upon the temporary residence of the
master with the slaves in the State and Territory to which they
removed, and their return to the slave State; and upon the principles
of international law, that foreign laws have no extra-territorial
force, except such as the State within which they are sought to be
enforced may see fit to extend to them, upon the doctrine of comity of
nations.
This is the substance of the grounds of the decision.
The same question has been twice before that court since, and the same
judgment given, (15 Misso. R., 595; 17 Ib., 434.) It must be admitted,
therefore, as the settled law of the State, and, according to the
decision in the case of Strader et al. _v._ Graham, is conclusive of
the case in this court.
It is said, however, that the previous cases and course of decision in
the State of Missouri on this subject were different, and that the
courts had held the slave to be free on his return from a temporary
residence in the free State. We do not see, were this to be admitted,
that the circumstance would show that the settled course of decision,
at the time this case was tried in the court below, was not to be
considered the law of the State. Certainly, it must be, unless the
first decision of a principle of law by a State court is to be
permanent and irrevocable. The idea seems to be, that the courts of a
State are not to change their opinions, or, if they do, the first
decision is to be regarded by this court as the law of the State. It
is certain, if this be so, in the case before us, it is an exception
to the rule governing this court in all other cases. But what court
has not changed its opinions? What judge has not changed his?
Waiving, however, this view, and turning to the decisions of the
courts of Missouri, it will be found that there is no discrepancy
between the earlier and the present cases upon this subject. There are
some eight of them reported previous to the decision in the case
before us, which was decided in 1852. The last of the earlier cases
was decided in 1836. In each one of these, with two exceptions, the
master or mistress removed into the free State with the slave, with a
view to a permanent residence--in other words, to make that his or her
domicil. And in several of the cases, this removal and permanent
residence were relied on, as the ground of the decision in favor of
the plaintiff. All these cases, therefore, are not necessarily in
conflict with the decision in the case before us, but consistent with
it. In one of the two excepted cases, the master had hired the slave
in the State of Illinois from 1817 to 1825. In the other, the master
was an officer in the army, and removed with his slave to the military
post of Fort Snelling, and at Prairie du Chien, in Michigan,
temporarily, while acting under the orders of his Government. It is
conceded the decision in this case was departed from in the case
before us, and in those that have followed it. But it is to be
observed that these subsequent cases are in conformity with those in
all the slave States bordering on the free--in Kentucky, (2 Marsh.,
476; 5 B. Munroe, 176; 9 Ib., 565)--in Virginia, (1 Rand., 15; 1
Leigh, 172; 10 Grattan, 495)--in Maryland, (4 Harris and McHenry, 295,
322, 325.) In conformity, also, with the law of England on this
subject, Ex parte Grace, (2 Hagg. Adm., R., 94,) and with the opinions
of the most eminent jurists of the country. (Story's Confl., 396 a; 2
Kent Com., 258 n.; 18 Pick., 193, Chief Justice Shaw. See Corresp.
between Lord Stowell and Judge Story, 1 vol. Life of Story, p. 552,
558.)
Lord Stowell, in communicating his opinion in the case of the slave
Grace to Judge Story, states, in his letter, what the question was
before him, namely: "Whether the emancipation of a slave brought to
England insured a complete emancipation to him on his return to his
own country, or whether it only operated as a suspension of slavery in
England, and his original character devolved on him again upon his
return." He observed, "the question had never been examined since an
end was put to slavery fifty years ago," having reference to the
decision of Lord Mansfield in the case of Somersett; but the practice,
he observed, "has regularly been, that on his return to his own
country, the slave resumed his original character of slave." And so
Lord Stowell held in the case.
Judge Story, in his letter in reply, observes: "I have read with great
attention your judgment in the slave case, &c. Upon the fullest
consideration which I have been able to give the subject, I entirely
concur in your views. If I had been called upon to pronounce a
judgment in a like case, I should have certainly arrived at the same
result." Again he observes: "In my native State, (Massachusetts,) the
state of slavery is not recognised as legal; and yet, if a slave
should come hither, and afterwards return to his own home, we should
certainly think that the local law attached upon him, and that his
servile character would be redintegrated."
We may remark, in this connection, that the case before the Maryland
court, already referred to, and which was decided in 1799, presented
the same question as that before Lord Stowell, and received a similar
decision. This was nearly thirty years before the decision in that
case, which was in 1828. The Court of Appeals observed, in deciding
the Maryland case, that "however the laws of Great Britain in such
instances, operating upon such persons there, might interfere so as to
prevent the exercise of certain acts by the masters, not permitted, as
in the case of Somersett, yet, upon the bringing Ann Joice into this
State, (then the province of Maryland,) the relation of master and
slave continued in its extent, as authorized by the laws of this
State." And Luther Martin, one of the counsel in that case, stated, on
the argument, that the question had been previously decided the same
way in the case of slaves returning from a residence in Pennsylvania,
where they had become free under her laws.
The State of Louisiana, whose courts had gone further in holding the
slave free on his return from a residence in a free State than the
courts of her sister States, has settled the law, by an act of her
Legislature, in conformity with the law of the court of Missouri in
the case before us. (Sess. Law, 1846.)
The case before Lord Stowell presented much stronger features for
giving effect to the law of England in the case of the slave Grace
than exists in the cases that have arisen in this country, for in that
case the slave returned to a colony of England over which the Imperial
Government exercised supreme authority. Yet, on the return of the
slave to the colony, from a temporary residence in England, he held
that the original condition of the slave attached. The question
presented in cases arising here is as to the effect and operation to
be given to the laws of a foreign State, on the return of the slave
within an independent sovereignty.
Upon the whole, it must be admitted that the current of authority,
both in England and in this country, is in accordance with the law as
declared by the courts of Missouri in the case before us, and we think
the court below was not only right, but bound to follow it.
Some question has been made as to the character of the residence in
this case in the free State. But we regard the facts as set forth in
the agreed case as decisive. The removal of Dr. Emerson from Missouri
to the military posts was in the discharge of his duties as surgeon in
the army, and under the orders of his Government. He was liable at any
moment to be recalled, as he was in 1838, and ordered to another post.
The same is also true as it respects Major Taliaferro. In such a case,
the officer goes to his post for a temporary purpose, to remain there
for an uncertain time, and not for the purpose of fixing his permanent
abode. The question we think too plain to require argument. The case
of the Attorney General _v._ Napier, (6 Welsh, Hurtst. and Gordon
Exch. Rep., 217,) illustrates and applies the principle in the case of
an officer of the English army.
A question has been alluded to, on the argument, namely: the right of
the master with his slave of transit into or through a free State, on
business or commercial pursuits, or in the exercise of a Federal
right, or the discharge of a Federal duty, being a citizen of the
United States, which is not before us. This question depends upon
different considerations and principles from the one in hand, and
turns upon the rights and privileges secured to a common citizen of
the republic under the Constitution of the United States. When that
question arises, we shall be prepared to decide it.
Our conclusion is, that the judgment of the court below should be
affirmed.
* * * * *
Mr. Justice GRIER.
I concur in the opinion delivered by Mr. Justice Nelson on the
questions discussed by him.
I also concur with the opinion of the court as delivered by the Chief
Justice, that the act of Congress of 6th March, 1820, is
unconstitutional and void; and that, assuming the facts as stated in
the opinion, the plaintiff cannot sue as a citizen of Missouri in the
courts of the United States. But, that the record shows a prima facie
case of jurisdiction, requiring the court to decide all the questions
properly arising in it; and as the decision of the pleas in bar shows
that the plaintiff is a slave, and ther
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