diff options
| -rw-r--r-- | .gitattributes | 3 | ||||
| -rw-r--r-- | 31425-8.txt | 11416 | ||||
| -rw-r--r-- | 31425-8.zip | bin | 0 -> 215937 bytes | |||
| -rw-r--r-- | 31425-h.zip | bin | 0 -> 222766 bytes | |||
| -rw-r--r-- | 31425-h/31425-h.htm | 11602 | ||||
| -rw-r--r-- | 31425.txt | 11416 | ||||
| -rw-r--r-- | 31425.zip | bin | 0 -> 215902 bytes | |||
| -rw-r--r-- | LICENSE.txt | 11 | ||||
| -rw-r--r-- | README.md | 2 |
9 files changed, 34450 insertions, 0 deletions
diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..6833f05 --- /dev/null +++ b/.gitattributes @@ -0,0 +1,3 @@ +* text=auto +*.txt text +*.md text diff --git a/31425-8.txt b/31425-8.txt new file mode 100644 index 0000000..4c3a065 --- /dev/null +++ b/31425-8.txt @@ -0,0 +1,11416 @@ +The Project Gutenberg EBook of 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, by Benjamin C. Howard + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +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 + December Term, 1856. + +Author: Benjamin C. Howard + +Release Date: February 27, 2010 [EBook #31425] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK CASE OF DRED SCOTT *** + + + + +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 therefore not entitled to sue in a +court of the United States, the form of the judgment is of little +importance; for, whether the judgment be affirmed or dismissed for +want of jurisdiction, it is justified by the decision of the court, +and is the same in effect between the parties to the suit. + + * * * * * + +Mr. Justice DANIEL. + +It may with truth be affirmed, that since the establishment of the +several communities now constituting the States of this Confederacy, +there never has been submitted to any tribunal within its limits +questions surpassing in importance those now claiming the +consideration of this court. Indeed it is difficult to imagine, in +connection with the systems of polity peculiar to the United States, a +conjuncture of graver import than that must be, within which it is +aimed to comprise, and to control, not only the faculties and +practical operation appropriate to the American Confederacy as such, +but also the rights and powers of its separate and independent +members, with reference alike to their internal and domestic authority +and interests, and the relations they sustain to their confederates. + +To my mind it is evident, that nothing less than the ambitious and +far-reaching pretension to compass these objects of vital concern, is +either directly essayed or necessarily implied in the positions +attempted in the argument for the plaintiff in error. + +How far these positions have any foundation in the nature of the +rights and relations of separate, equal, and independent Governments, +or in the provisions of our own Federal compact, or the laws enacted +under and in pursuance of the authority of that compact, will be +presently investigated. + +In order correctly to comprehend the tendency and force of those +positions, it is proper here succinctly to advert to the facts upon +which the questions of law propounded in the argument have arisen. + +This was an action of trespass _vi et armis_, instituted in the +Circuit Court of the United States for the district of Missouri, in +the name of the plaintiff in error, _a negro_ held as a slave, for the +recovery of freedom for himself, his wife, and two children, _also +negroes_. + +To the declaration in this case the defendant below, who is also the +defendant in error, pleaded in abatement that the court could not take +cognizance of the cause, because the plaintiff was not _a citizen_ of +the State of Missouri, as averred in the declaration, but was a _negro +of African descent_, and that his ancestors were of pure African +blood, and were brought into this country and sold as _negro slaves_; +and hence it followed, from the second section of the third article of +the Constitution, which creates the judicial power of the United +States, with respect to controversies between citizens of different +States, that the Circuit Court could not take cognizance of the +action. + +To this plea in abatement, a demurrer having been interposed on behalf +of the plaintiff, it was sustained by the court. After the decision +sustaining the demurrer, the defendant, in pursuance of a previous +agreement between counsel, and with the leave of the court, pleaded in +bar of the action: _1st, not guilty; 2dly, 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; 3dly, 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 at the same manner, and in virtue of the same legal +right_. + +Issues having been joined upon the above pleas in bar, the following +statement, comprising all the evidence in the cause, was agreed upon +and signed by the counsel of the respective parties, viz: + +"In the year 1834, the plaintiff was a negro slave belonging to Doctor +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 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 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 a 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. + +"R.M. FIELD, _for Plaintiff_. +"H.A. GARLAND, _for Defendant_. + +"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 cause remanded to the +Circuit Court, where it has been continued to await the decision of +this case. + +"FIELD, _for Plaintiff_. +"GARLAND, _for Defendant_." + +Upon the aforegoing agreed facts, the plaintiff prayed the court to +instruct the jury that they ought to find for the plaintiff, and upon +the refusal of the instruction thus prayed for, the plaintiff excepted +to the court's opinion. The court then, upon the prayer of the +defendant, instructed the jury, that upon the facts of this case +agreed as above, the law was with the defendant. To this opinion, +also, the plaintiff's counsel excepted, as he did to the opinion of +the court denying to the plaintiff a new trial after the verdict of +the jury in favor of the defendant. + +The question first in order presented by the record in this cause, is +that which arises upon the plea in abatement, and the demurrer to that +plea; and upon this question it is my opinion that the demurrer should +have been overruled, and the plea sustained. + +On behalf of the plaintiff it has been urged, that by the pleas +interposed in bar of a recovery in the court below, (which pleas both +in fact and in law are essentially the same with the objections +averred in abatement,) the defence in abatement has been displaced or +waived; that it could therefore no longer be relied on in the Circuit +Court, and cannot claim the consideration of this court in reviewing +this cause. This position is regarded as wholly untenable. On the +contrary, it would seem to follow conclusively from the peculiar +character of the courts of the United States, as organized under the +Constitution and the statutes, and as defined by numerous and +unvarying adjudications from this bench, that there is not one of +those courts whose jurisdiction and powers can be deduced from mere +custom or tradition; not one, whose jurisdiction and powers must not +be traced palpably to, and invested exclusively by, the Constitution +and statutes of the United States; not one that is not bound, +therefore, at all times, and at all stages of its proceedings, to look +to and to regard the special and declared extent and bounds of its +commission and authority. There is no such tribunal of the United +States as a court of _general jurisdiction_, in the sense in which +that phrase is applied to the superior courts under the common law; +and even with respect to the courts existing under that system, it is +a well-settled principle, that _consent_ can never give jurisdiction. + +The principles above stated, and the consequences regularly deducible +from them, have, as already remarked, been repeatedly and unvaryingly +propounded from this bench. Beginning with the earliest decisions of +this court, we have the cases of Bingham _v._ Cabot et al., (3 Dallas, +382;) Turner _v._ Eurille, (4 Dallas, 7;) Abercrombie _v._ Dupuis et +al., (1 Cranch, 343;) Wood _v._ Wagnon, (2 Cranch, 9;) The United +States _v._ The brig Union et al., (4 Cranch, 216;) Sullivan _v._ The +Fulton Steamboat Company, (6 Wheaton, 450;) Mollan et al. _v._ +Torrence, (9 Wheaton, 537;) Brown _v._ Keene, (8 Peters, 112,) and +Jackson _v._ Ashton, (8 Peters, 148;) ruling, in uniform and unbroken +current, the doctrine that it is essential to the jurisdiction of the +courts of the United States, that the facts upon which it is founded +should appear upon the record. Nay, to such an extent and so +inflexibly has this requisite to the jurisdiction been enforced, that +in the case of Capron _v._ Van Noorden, (2 Cranch, 126,) it is +declared, that the plaintiff in this court may assign for error his +own omission in the pleadings in the court below, where they go to the +jurisdiction. This doctrine has been, if possible, more strikingly +illustrated in a later decision, the case of The State of Rhode Island +_v._ The State of Massachusetts, in the 12th of Peters. + +In this case, on page 718 of the volume, this court, with reference to +a motion to dismiss the cause _for want of jurisdiction_, have said: +"_However late this objection has been made, or may be made, in any +cause in an inferior or appellate court of the United States_, it must +be considered and decided before any court can move one farther step +in the cause, as any movement is necessarily to exercise the +jurisdiction. Jurisdiction is the power to hear and determine the +subject-matter in controversy between the parties to a suit; to +adjudicate or exercise any judicial power over them. The question is, +whether on the case before the court their action is judicial or +extra-judicial; with or without the authority of law to render a +judgment or decree upon the rights of the litigant parties. A motion +to dismiss a cause pending in the courts of the United States, is not +analogous to a plea to the jurisdiction of a court of common law or +equity in England; there, the superior courts have a general +jurisdiction over all persons within the realm, and all causes of +action between them. It depends on the subject-matter, whether the +jurisdiction shall be exercised by a court of law or equity; but that +court to which it appropriately belongs can act judicially upon the +party and the subject of the suit, unless it shall be made apparent to +the court that the judicial determination of the case has been +withdrawn from the court of general jurisdiction to an inferior and +limited one. It is a necessary presumption that the court of general +jurisdiction can act upon the given case, when nothing to the +contrary appears; hence has arisen the rule that the party claiming an +exemption from its process must set out the reason by a special plea +in abatement, and show that some inferior court of law or equity has +the exclusive cognizance of the case, otherwise the superior court +must proceed in virtue of its general jurisdiction. A motion to +dismiss, therefore, cannot be entertained, as it does not disclose a +case of exception; and if a plea in abatement is put in, it must not +only make out the exception, but point to the particular court to +which the case belongs. There are other classes of cases where the +objection to the jurisdiction is of a different nature, as on a bill +in chancery, that the subject-matter is cognizable only by the King in +Council, or that the parties defendant cannot be brought before any +municipal court on account of their sovereign character or the nature +of the controversy; or to the very common cases which present the +question, whether the cause belong to a court of law or equity. To +such cases, a plea in abatement would not be applicable, because the +plaintiff could not sue in an inferior court. The objection goes to a +denial of any jurisdiction of a municipal court in the one class of +cases, and to the jurisdiction of any court of equity or of law in the +other, on which last the court decides according to its discretion. + +"An objection to jurisdiction on the ground of exemption from the +process of the court in which the suit is brought, or the manner in +which a defendant is brought into it, is waived by appearance and +pleading to issue; but when the objection goes to the power of the +court over the parties or the subject-matter, the defendant need not, +for he cannot, give the plaintiff a better writ. Where an inferior +court can have no jurisdiction of a case of law or equity, the ground +of objection is not taken by plea in abatement, as an exception of the +given case from the otherwise general jurisdiction of the court; +appearance does not cure the defect of judicial power, and it may be +relied on by plea, answer, demurrer, _or at the trial or hearing_. As +a denial of jurisdiction over the subject-matter of a suit between +parties within the realm, over which and whom the court has power to +act, cannot be successful in an English court of general jurisdiction, +a motion like the present could not be sustained consistently with the +principles of its constitution. _But as this court is one of limited +and special original jurisdiction_, its action must be confined to the +particular cases, controversies, and parties, over which the +Constitution and laws have authorized it to act; any proceeding +without the limits prescribed is _coram non judice_, and its action a +nullity. And whether the want or excess of power is objected by a +party, or is apparent to the court, it must surcease its action or +proceed extra-judicially." + +In the constructing of pleadings either in abatement or in bar, every +fact or position constituting a portion of the public law, or of known +or general history, is necessarily implied. Such fact or position need +not be specially averred and set forth; it is what the world at large +and every individual are presumed to know--nay, are bound to know and +to be governed by. + +If, on the other hand, there exist facts or circumstances by which a +particular case would be withdrawn or exempted from the influence of +public law or necessary historical knowledge, such facts and +circumstances form an exception to the general principle, and these +must be specially set forth and _established_ by those who would avail +themselves of such exception. + +Now, the following are truths which a knowledge of the history of the +world, and particularly of that of our own country, compels us to +know--that the African negro race never have been acknowledged as +belonging to the family of nations; that as amongst them there never +has been known or recognised by the inhabitants of other countries +anything partaking of the character of nationality, or civil or +political polity; that this race has been by all the nations of Europe +regarded as subjects of capture or purchase; as subjects of commerce +or traffic; and that the introduction of that race into every section +of this country was not as members of civil or political society, but +as slaves, as _property_ in the strictest sense of the term. + +In the plea in abatement, the character or capacity of citizen on the +part of the plaintiff is denied; and the causes which show the absence +of that character or capacity are set forth by averment. The verity of +those causes, according to the settled rules of pleading, being +admitted by the demurrer, it only remained for the Circuit Court to +decide upon their legal sufficiency to abate the plaintiff's action. +And it now becomes the province of this court to determine whether the +plaintiff below, (and in error here,) admitted to be a _negro_ of +African descent, whose ancestors were of pure African blood, and were +brought into this country and sold as negro slaves--such being his +_status_, and such the circumstances surrounding his position--whether +he can, by correct legal induction from that _status_ and those +circumstances, be clothed with the character and capacities of a +citizen of the State of Missouri? + +It may be assumed as a postulate, that to a slave, as such, there +appertains and can appertain no relation, civil or political, with the +State or the Government. He is himself strictly _property_, to be used +in subserviency to the interests, the convenience, or the will, of +his owner; and to suppose, with respect to the former, the existence +of any privilege or discretion, or of any obligation to others +incompatible with the magisterial rights just defined, would be by +implication, if not directly, to deny the relation of master and +slave, since none can possess and enjoy, as his own, that which +another has a paramount right and power to withhold. Hence it follows, +necessarily, that a slave, the _peculium_ or property of a master, and +possessing within himself no civil nor political rights or capacities, +cannot be a CITIZEN. For who, it may be asked, is a citizen? What do +the character and _status_ of citizen import? Without fear of +contradiction, it does not import the condition of being private +property, the subject of individual power and ownership. Upon a +principle of etymology alone, the term _citizen_, as derived from +_civitas_, conveys the ideas of connection or identification with the +State or Government, and a participation of its functions. But beyond +this, there is not, it is believed, to be found, in the theories of +writers on Government, or in any actual experiment heretofore tried, +an exposition of the term citizen, which has not been understood as +conferring the actual possession and enjoyment, or the perfect right +of acquisition and enjoyment, of an entire equality of privileges, +civil and political. + +Thus Vattel, in the preliminary chapter to his Treatise on the Law of +Nations, says: "Nations or States are bodies politic; societies of men +united together for the purpose of promoting their mutual safety and +advantage, by the joint efforts of their mutual strength. Such a +society has her affairs and her interests; she deliberates and takes +resolutions _in common_; thus becoming a moral person, who possesses +an understanding and a will peculiar to herself." Again, in the first +chapter of the first book of the Treatise just quoted, the same +writer, after repeating his definition of a State, proceeds to remark, +that, "from the very design that induces a number of men to form a +society, which has its common interests and which is to act in +concert, it is necessary that there should be established a public +authority, to order and direct what is to be done by each, in relation +to the end of the association. This political authority is the +_sovereignty_." Again this writer remarks: "The authority of _all_ +over each member essentially belongs to the body politic or the +State." + +By this same writer it is also said: "The citizens are the members of +the civil society; bound to this society by certain duties, and +subject to its authority; they _equally_ participate in its +advantages. The natives, or natural-born citizens, are those born in +the country, of parents who are citizens. As society cannot +perpetuate itself otherwise than by the children of the citizens, +those children naturally follow the condition of their parents, and +succeed to all their rights." Again: "I say, to be _of the country_, +it is necessary to be born of a person who is a _citizen_; for if he +be born there of a foreigner, it will be only the place of his +_birth_, and not his _country_. The inhabitants, as distinguished from +citizens, are foreigners who are permitted to settle and stay in the +country." (Vattel, Book 1, cap. 19, p. 101.) + +From the views here expressed, and they seem to be unexceptionable, it +must follow, that with the _slave_, with one devoid of rights or +capacities, _civil or political_, there could be no pact; that one +thus situated could be no party to, or actor in, the association of +those possessing free will, power, discretion. He could form no part +of the design, no constituent ingredient or portion of a society based +upon _common_, that is, upon _equal_ interests and powers. He could +not at the same time be the sovereign and the slave. + +But it has been insisted, in argument, that the emancipation of a +slave, effected either by the direct act and assent of the master, or +by causes operating in contravention of his will, produces a change in +the _status_ or capacities of the slave, such as will transform him +from a mere subject of property, into a being possessing a social, +civil, and political equality with a citizen. In other words, will +make him a citizen of the State within which he was, previously to his +emancipation, a slave. + +It is difficult to conceive by what magic the mere _surcease_ or +renunciation of an interest in a subject of _property_, by an +individual possessing that interest, can alter the essential character +of that property with respect to persons or communities unconnected +with such renunciation. Can it be pretended that an individual in any +State, by his single act, though voluntarily or designedly performed, +yet without the co-operation or warrant of the Government, perhaps in +opposition to its policy or its guaranties, can create a citizen of +that State? Much more emphatically may it be asked, how such a result +could be accomplished by means wholly extraneous, and entirely foreign +to the Government of the State? The argument thus urged must lead to +these extraordinary conclusions. It is regarded at once as wholly +untenable, and as unsustained by the direct authority or by the +analogies of history. + +The institution of slavery, as it exists and has existed from the +period of its introduction into the United States, though more humane +and mitigated in character than was the same institution, either under +the republic or the empire of Rome, bears, both in its tenure and in +the simplicity incident to the mode of its exercise, a closer +resemblance to Roman slavery than it does to the condition of +_villanage_, as it formerly existed in England. Connected with the +latter, there were peculiarities, from custom or positive regulation, +which varied it materially from the slavery of the Romans, or from +slavery at any period within the United States. + +But with regard to slavery amongst the Romans, it is by no means true +that emancipation, either during the republic or the empire, +conferred, by the act itself, or implied, the _status_ or the rights +of citizenship. + +The proud title of Roman citizen, with the immunities and rights +incident thereto, and as contradistinguished alike from the condition +of conquered subjects or of the lower grades of native domestic +residents, was maintained throughout the duration of the republic, and +until a late period of the eastern empire, and at last was in _effect_ +destroyed less by an elevation of the inferior classes than by the +degradation of the free, and the previous possessors of rights and +immunities civil and political, to the indiscriminate abasement +incident to absolute and simple despotism. + +By the learned and elegant historian of the Decline and Fall of the +Roman Empire, we are told that "In the _decline_ of the Roman empire, +the proud distinctions of the republic were gradually abolished; and +the reason or instinct of Justinian completed the simple form of an +absolute monarchy. The emperor could not eradicate the popular +reverence which always waits on the possession of hereditary wealth or +the memory of famous ancestors. He delighted to honor with titles and +emoluments his generals, magistrates, and senators, and his precarious +indulgence communicated some rays of their glory to their wives and +children. But in the eye of the law all Roman citizens were equal, and +all subjects of the empire were citizens of Rome. That inestimable +character was _degraded_ to an obsolete and empty name. The voice of a +Roman could no longer enact his laws, or create the annual ministers +of his powers; his constitutional rights might have checked the +arbitrary will of a master; and the bold adventurer from Germany or +Arabia was admitted with equal favor to the civil and military command +which the _citizen_ alone had been once entitled to assume over the +conquests of his fathers. The first Cæsars had scrupulously guarded +the distinction of _ingenuous_ and _servile_ birth, which was decided +by the condition of the mother. The slaves who were liberated by a +generous master immediately entered into the middle class of +_libertini_ or freedmen; but they could never be enfranchised from the +duties of obedience and gratitude; whatever were the fruits of their +industry, their patron and his family inherited the third part, or +even the whole of their fortune, if they died without children and +without a testament. Justinian respected the rights of patrons, but +his indulgence removed the badge of disgrace from the two inferior +orders of freedmen; whoever ceased to be a slave, obtained without +reserve or delay the station of a citizen; and at length the dignity +of an ingenuous birth _was created_ or _supposed_ by the omnipotence +of the emperor."[1] + +[Footnote 1: Vide Gibbons's Decline and Fall of the Roman Empire. +London edition of 1825, vol. 3d, chap. 44, p. 183.] + +The above account of slavery and its modifications will be found in +strictest conformity with the Institutes of Justinian. Thus, book 1st, +title 3d, it is said: "The first general division of persons in +respect to their rights is into freemen and slaves." The same title, +sec. 4th: "Slaves are born such, or become so. They are born such of +bondwomen; they become so either by _the law of nations_, as by +capture, or by the civil law." Section 5th: "In the condition of +slaves there is no diversity; but among free persons there are many. +Thus some are _ingenui_ or freemen, others _libertini_ or freedmen." + +Tit. 4th. DE INGENUIS.--"A freeman is one who is born free by being +born in matrimony, of parents who both are free, or both freed; or of +parents one free and the other freed. But one born of a free mother, +although the father be a slave or unknown, is free." + +Tit. 5th. DE LIBERTINIS.--"Freedmen are those who have been manumitted +from just servitude." + +Section third of the same title states that "freedmen were formerly +distinguished by a threefold division." But the emperor proceeds to +say: "Our _piety_ leading us to reduce all things into a better state, +we have amended our laws, and re-established the ancient usage; for +anciently liberty was simple and undivided--that is, was conferred +upon the slave as his manumittor possessed it, admitting this single +difference, that the person manumitted became only a _freed man_, +although his manumittor was a _free_ man." And he further declares: +"We have made all freed men in general become citizens of Rome, +regarding neither the age of the manumitted, nor the manumittor, nor +the ancient forms of manumission. We have also introduced many new +methods by which _slaves_ may become Roman citizens." + +By the references above given it is shown, from the nature and objects +of civil and political associations, and upon the direct authority of +history, that citizenship was not conferred by the simple fact of +emancipation, but that such a result was deduced therefrom in +violation of the fundamental principles of free political association; +by the exertion of despotic will to establish, under a false and +misapplied denomination, one equal and universal slavery; and to +effect this result required the exertions of absolute power--of a +power both in theory and practice, being in its most plenary +acceptation the SOVEREIGNTY, THE STATE ITSELF--it could not be +produced by a less or inferior authority, much less by the will or the +act of one who, with reference to civil and political rights, was +himself a _slave_. The master might abdicate or abandon his interest +or ownership in his property, but his act would be a mere abandonment. +It seems to involve an absurdity to impute to it the investiture of +rights which the sovereignty alone had power to impart. There is not +perhaps a community in which slavery is recognised, in which the power +of emancipation and the modes of its exercise are not regulated by +law--that is, by the sovereign authority; and none can fail to +comprehend the necessity for such regulation, for the preservation of +order, and even of political and social existence. + +By the argument for the plaintiff in error, a power equally despotic +is vested in every member of the association, and the most obscure or +unworthy individual it comprises may arbitrarily invade and derange +its most deliberate and solemn ordinances. At assumptions anomalous as +these, so fraught with mischief and ruin, the mind at once is +revolted, and goes directly to the conclusions, that to change or to +abolish a fundamental principle of the society, must be the act of the +society itself--of the _sovereignty_; and that none other can admit to +a participation of that high attribute. It may further expose the +character of the argument urged for the plaintiff, to point out some +of the revolting consequences which it would authorize. If that +argument possesses any integrity, it asserts the power in any citizen, +or _quasi_ citizen, or a resident foreigner of any one of the States, +from a motive either of corruption or caprice, not only to infract the +inherent and necessary authority of such State, but also materially to +interfere with the organization of the Federal Government, and with +the authority of the separate and independent States. He may +emancipate his negro slave, by which process he first transforms that +slave into a citizen of his own State; he may next, under color of +article fourth, section second, of the Constitution of the United +States, obtrude him, and on terms of civil and political equality, +upon any and every State in this Union, in defiance of all regulations +of necessity or policy, ordained by those States for their internal +happiness or safety. Nay, more: this manumitted slave may, by a +proceeding springing from the will or act of his master alone, be +mixed up with the institutions of the Federal Government, to which he +is not a party, and in opposition to the laws of that Government +which, in authorizing the extension by naturalization of the rights +and immunities of citizens of the United States to those not +originally parties to the Federal compact, have restricted that boon +to _free white aliens alone_. If the rights and immunities connected +with or practiced under the institutions of the United States can by +any indirection be claimed or deduced from sources or modes other than +the Constitution and laws of the United States, it follows that the +power of naturalization vested in Congress is not exclusive--that it +has _in effect_ no existence, but is repealed or abrogated. + +But it has been strangely contended that the jurisdiction of the +Circuit Court might be maintained upon the ground that the plaintiff +was a _resident_ of Missouri, and that, for the purpose of vesting the +court with jurisdiction over the parties, _residence_ within the State +was sufficient. + +The first, and to my mind a conclusive reply to this singular argument +is presented in the fact, that the language of the Constitution +restricts the jurisdiction of the courts to cases in which the parties +shall be _citizens_, and is entirely silent with respect to residence. +A second answer to this strange and latitudinous notion is, that it so +far stultifies the sages by whom the Constitution was framed, as to +impute to them ignorance of the material distinction existing between +_citizenship_ and mere _residence_ or _domicil_, and of the well-known +facts, that a person confessedly an _alien_ may be permitted to reside +in a country in which he can possess no civil or political rights, or +of which he is neither a citizen nor subject; and that for certain +purposes a man may have a _domicil_ in different countries, in no one +of which he is an actual personal resident. + +The correct conclusions upon the question here considered would seem +to be these: + +That in the establishment of the several communities now the States of +this Union, and in the formation of the Federal Government, the +African was not deemed politically a person. He was regarded and owned +in every State in the Union as _property_ merely, and as such was not +and could not be a party or an actor, much less a _peer_ in any +compact or form of government established by the States or the United +States. That if, since the adoption of the State Governments, he has +been or could have been elevated to the possession of political rights +or powers, this result could have been effected by no authority less +potent than that of the sovereignty--the State--exerted to that end, +either in the form of legislation, or in some other mode of operation. +It could certainly never have been accomplished by the will of an +individual operating independently of the sovereign power, and even +contravening and controlling that power. That so far as rights and +immunities appertaining to citizens have been defined and secured by +the Constitution and laws of the United States, the African race is +not and never was recognised either by the language or purposes of the +former; and it has been expressly excluded by every act of Congress +providing for the creation of citizens by _naturalization_, these +laws, as has already been remarked, being restricted to _free white +aliens_ exclusively. + +But it is evident that, after the formation of the Federal Government +by the adoption of the Constitution, the highest exertion of State +power would be incompetent to bestow a character or status created by +the Constitution, or conferred in virtue of its authority only. Upon +those, therefore, who were not originally parties to the Federal +compact, or who are not admitted and adopted as parties thereto, in +the mode prescribed by its paramount authority, no State could have +power to bestow the character or the rights and privileges exclusively +reserved by the States for the action of the Federal Government by +that compact. + +The States, in the exercise of their political power, might, with +reference to their peculiar Government and jurisdiction, guaranty the +rights of person and property, and the enjoyment of civil and +political privileges, to those whom they should be disposed to make +the objects of their bounty; but they could not reclaim or exert the +powers which they had vested exclusively in the Government of the +United States. They could not add to or change in any respect the +class of persons to whom alone the character of citizen of the United +States appertained at the time of the adoption of the Federal +Constitution. They could not create citizens of the United States by +any direct or indirect proceeding. + +According to the view taken of the law, as applicable to the demurrer +to the plea in abatement in this cause, the questions subsequently +raised upon the several pleas in bar might be passed by, as requiring +neither a particular examination, nor an adjudication directly upon +them. But as these questions are intrinsically of primary interest and +magnitude, and have been elaborately discussed in argument, and as +with respect to them the opinions of a majority of the court, +including my own, are perfectly coincident, to me it seems proper that +they should here be fully considered, and, so far as it is practicable +for this court to accomplish such an end, finally put to rest. + +The questions then to be considered upon the several pleas in bar, and +upon the agreed statement of facts between the counsel, are: 1st. +Whether the admitted master and owner of the plaintiff, holding him as +his slave in the State of Missouri, and in conformity with his rights +guarantied to him by the laws of Missouri then and still in force, by +carrying with him for his own benefit and accommodation, and as his +own slave, the person of the plaintiff into the State of Illinois, +within which State slavery had been prohibited by the Constitution +thereof, and by retaining the plaintiff during the commorancy of the +master within the State of Illinois, had, upon his return with his +slave into the State of Missouri, forfeited his rights as master, by +reason of any supposed operation of the prohibitory provision in the +Constitution of Illinois, beyond the proper territorial jurisdiction +of the latter State? 2d. Whether a similar removal of the plaintiff by +his master from the State of Missouri, and his retention in service at +a point included within no State, but situated north of thirty-six +degrees thirty minutes of north latitude, worked a forfeiture of the +right of property of the master, and the manumission of the plaintiff? + +In considering the first of these questions, the acts or declarations +of the master, as expressive of his purpose to emancipate, may be +thrown out of view, since none will deny the right of the owner to +relinquish his interest in any subject of property, at any time or in +any place. The inquiry here bears no relation to acts or declarations +of the owner as expressive of his intent or purpose to make such a +relinquishment; it is simply a question whether, irrespective of such +purpose, and in opposition thereto, that relinquishment can be +enforced against the owner of property within his own country, in +defiance of every guaranty promised by its laws; and this through the +instrumentality of a claim to power entirely foreign and extraneous +with reference to himself, to the origin and foundation of his title, +and to the independent authority of his country. A conclusive negative +answer to such an inquiry is at once supplied, by announcing a few +familiar and settled principles and doctrines of public law. + +Vattel, in his chapter on the general principles of the laws of +nations, section 15th, tells us, that "nations being free and +independent of each other in the same manner that men are naturally +free and independent, the second general law of their society is, that +each nation should be left in the peaceable enjoyment of that liberty +which she inherits from nature." + +"The natural society of nations," says this writer, "cannot subsist +unless the natural rights of each be respected." In section 16th he +says, "as a consequence of that liberty and independence, it +exclusively belongs to each nation to form her own judgment of what +her conscience prescribes for her--of what it is proper or improper +for her to do; and of course it rests solely with her to examine and +determine whether she can perform any office for another nation +without neglecting the duty she owes to herself. In all cases, +therefore, in which a nation has the right of judging what her duty +requires, no other nation can compel her to act in such or such a +particular manner, for any attempt at such compulsion would be an +infringement on the liberty of nations." Again, in section 18th, of +the same chapter, "nations composed of men, and considered as so many +free persons living together in a state of nature, are naturally +equal, and inherit from nature the same obligations and rights. Power +or weakness does not produce any difference. A small republic is no +less a sovereign state than the most powerful kingdom." + +So, in section 20: "A nation, then, is mistress of her own actions, so +long as they do not affect the proper and _perfect rights_ of any +other nation--so long as she is only _internally_ bound, and does not +lie under any _external_ and _perfect_ obligation. If she makes an ill +use of her liberty, she is guilty of a breach of duty; but other +nations are bound to acquiesce in her conduct, since they have no +right to dictate to her. Since nations are _free_, _independent_, and +_equal_, and since each possesses the right of judging, according to +the dictates of her conscience, what conduct she is to pursue, in +order to fulfil her duties, the effect of the whole is to produce, at +least externally, in the eyes of mankind, a perfect equality of rights +between nations, in the administration of their affairs, and in the +pursuit of their pretensions, without regard to the intrinsic justice +of their conduct, of which others have no right to form a definitive +judgment." + +Chancellor Kent, in the 1st volume of his Commentaries, lecture 2d, +after collating the opinions of Grotius, Heineccius, Vattel, and +Rutherford, enunciates the following positions as sanctioned by these +and other learned publicists, viz: that "nations are equal in respect +to each other, and entitled to claim equal consideration for their +rights, whatever may be their relative dimensions or strength, or +however greatly they may differ in government, religion, or manners. +This perfect equality and entire independence of all distinct States +is a fundamental principle of public law. It is a necessary +consequence of this equality, that each nation has a right to govern +itself as it may think proper, and no one nation is entitled to +dictate a form of government or religion, or a course of internal +policy, to another." This writer gives some instances of the violation +of this great national immunity, and amongst them the constant +interference by the ancient Romans, under the pretext of settling +disputes between their neighbors, but with the real purpose of +reducing those neighbors to bondage; the interference of Russia, +Prussia, and Austria, for the dismemberment of Poland; the more recent +invasion of Naples by Austria in 1821, and of Spain by the French +Government in 1823, under the excuse of suppressing a dangerous spirit +of internal revolution and reform. + +With reference to this right of self-government in independent +sovereign States, an opinion has been expressed, which, whilst it +concedes this right as inseparable from and as a necessary attribute +of sovereignty and independence, asserts nevertheless some implied and +paramount authority of a supposed international law, to which this +right of self-government must be regarded and exerted as subordinate; +and from which independent and sovereign States can be exempted only +by a protest, or by some public and formal rejection of that +authority. With all respect for those by whom this opinion has been +professed, I am constrained to regard it as utterly untenable, as +palpably inconsistent, and as presenting in argument a complete _felo +de se_. + +Sovereignty, independence, and a perfect right of self-government, can +signify nothing less than a superiority to and an exemption from all +claims by any extraneous power, however expressly they may be +asserted, and render all attempts to enforce such claims merely +attempts at usurpation. Again, could such claims from extraneous +sources be regarded as legitimate, the effort to resist or evade them, +by protest or denial, would be as irregular and unmeaning as it would +be futile. It could in no wise affect the question of superior right. +For the position here combatted, no respectable authority has been, +and none it is thought can be adduced. It is certainly irreconcilable +with the doctrines already cited from the writers upon public law. + +Neither the case of Lewis Somersett, (Howell's State Trials, vol. 20,) +so often vaunted as the proud evidence of devotion to freedom under a +Government which has done as much perhaps to extend the reign of +slavery as all the world besides; nor does any decision founded upon +the authority of Somersett's case, when correctly expounded, assail or +impair the principle of national equality enunciated by each and all +of the publicists already referred to. In the case of Somersett, +although the applicant for the _habeas corpus_ and the individual +claiming property in that applicant were both subjects and residents +within the British empire, yet the decision cannot be correctly +understood as ruling absolutely and under all circumstances against +the right of property in the claimant. That decision goes no farther +than to determine, that _within the realm of England_ there was no +authority to justify the detention of an individual in private +bondage. If the decision in Somersett's case had gone beyond this +point, it would have presented the anomaly of a repeal by laws enacted +for and limited in their operation to the realm alone, of other laws +and institutions established for places and subjects without the +limits of the realm of England; laws and institutions at that very +time, and long subsequently, sanctioned and maintained under the +authority of the British Government, and which the full and combined +action of the King and Parliament was required to abrogate. + +But could the decision in Somersett's case be correctly interpreted as +ruling the doctrine which it has been attempted to deduce from it, +still that doctrine must be considered as having been overruled by the +lucid and able opinion of Lord Stowell in the more recent case of the +slave Grace, reported in the second volume of Haggard, p. 94; in which +opinion, whilst it is conceded by the learned judge that there existed +no power to coerce the slave whilst in England, that yet, upon her +return to the island of Antigua, her _status_ as a slave was revived, +or, rather, that the title of the owner to the slave as property had +never been extinguished, but had always existed in that island. If the +principle of this decision be applicable as between different portions +of one and the same empire, with how much more force does it apply as +between nations or Governments entirely separate, and absolutely +independent of each other? For in this precise attitude the States of +this Union stand with reference to this subject, and with reference to +the tenure of every description of property vested under their laws +and held within their territorial jurisdiction. + +A strong illustration of the principle ruled by Lord Stowell, and of +the effect of that principle even in a case of express _contract_, is +seen in the case of Lewis _v._ Fullerton, decided by the Supreme Court +of Virginia, and reported in the first volume of Randolph, p. 15. The +case was this: A female slave, the property of a citizen of Virginia, +whilst with her master in the State of Ohio, was taken from his +possession under a writ of _habeas corpus_, and set at liberty. Soon, +or immediately after, by agreement between this slave and her master, +a deed was executed in Ohio by the latter, containing a stipulation +that this slave should return to Virginia, and, after a service of two +years in that State, should there be free. The law of Virginia +regulating emancipation required that deeds of emancipation should, +within a given time from their date, be recorded in the court of the +county in which the grantor resided, and declared that deeds with +regard to which this requisite was not complied with should be void. +Lewis, an infant son of this female, under the rules prescribed in +such cases, brought an action, _in forma pauperis_, in one of the +courts of Virginia, for the recovery of his freedom, claimed in virtue +of the transactions above mentioned. Upon an appeal to the Supreme +Court from a judgment against the plaintiff, Roane, Justice, in +delivering the opinion of the court, after disposing of other +questions discussed in that case, remarks: + +"As to the deed of emancipation contained in the record, that deed, +taken in connection with the evidence offered in support of it, shows +that it had a reference to the State of Virginia; and the testimony +shows that it formed a part of this contract, whereby the slave Milly +was to be brought back (as she was brought back) into the State of +Virginia. Her object was therefore to secure her freedom by the deed +within the State of Virginia, after the time should have expired for +which she had indented herself, and when she should be found abiding +within the State of Virginia. + +"If, then, this contract had an eye to the State of Virginia for its +operation and effect, the _lex loci_ ceases to operate. In that case +it must, to have its effect, conform to the laws of Virginia. It is +insufficient under those laws to effectuate an emancipation, for want +of a due recording in the county court, as was decided in the case of +Givens _v._ Mann, in this court. It is also ineffectual within the +Commonwealth of Virginia for another reason. The _lex loci_ is also to +be taken subject to the exception, that it is not to be enforced in +another country, when it violates some moral duty or the policy of +that country, or is not consistent with a positive right secured to a +third person or party by the laws of that country in which it is +sought to be enforced. In such a case we are told, '_magis jus +nostrum, quam jus alienum servemus_.'" (Huberus, tom. 2, lib. 1, tit. +3; 2 Fontblanque, p. 444.) "That third party in this instance is the +Commonwealth of Virginia, and her policy and interests are also to be +attended to. These turn the scale against the _lex loci_ in the +present instance." + +The second or last-mentioned position assumed for the plaintiff under +the pleas in bar, as it rests mainly if not solely upon the provision +of the act of Congress of March 6, 1820, prohibiting slavery in Upper +Louisiana north of thirty-six degrees thirty minutes north latitude, +popularly called the _Missouri Compromise_, that assumption renews the +question, formerly so zealously debated, as to the validity of the +provision in the act of Congress, and upon the constitutional +competency of Congress to establish it. + +Before proceeding, however, to examine the validity of the prohibitory +provision of the law, it may, so far as the rights involved in this +cause are concerned, be remarked, that conceding to that provision the +validity of a legitimate exercise of power, still this concession +could by no rational interpretation imply the slightest authority for +its operation beyond the territorial limits comprised within its +terms; much less could there be inferred from it a power to destroy or +in any degree to control rights, either of person or property, +entirely within the bounds of a distinct and independent +sovereignty--rights invested and fortified by the guaranty of that +sovereignty. These surely would remain in all their integrity, +whatever effect might be ascribed to the prohibition within the limits +defined by its language. + +But, beyond and in defiance of this conclusion, inevitable and +undeniable as it appears, upon every principle of justice or sound +induction, it has been attempted to convert this prohibitory provision +of the act of 1820 not only into a weapon with which to assail the +inherent--the _necessarily_ inherent--powers of independent sovereign +Governments, but into a mean of forfeiting that equality of rights and +immunities which are the birthright or the donative from the +Constitution of every citizen of the United States within the length +and breadth of the nation. In this attempt, there is asserted a power +in Congress, whether from incentives of interest, ignorance, faction, +partiality, or prejudice, to bestow upon a portion of the citizens of +this nation that which is the common property and privilege of +all--the power, in fine, of confiscation, in retribution for no +offence, or, if for an offence, for that of accidental locality only. + +It may be that, with respect to future cases, like the one now before +the court, there is felt an assurance of the impotence of such a +pretension; still, the fullest conviction of that result can impart to +it no claim to forbearance, nor dispense with the duty of antipathy +and disgust at its sinister aspect, whenever it may be seen to scowl +upon the justice, the order, the tranquillity, and fraternal feeling, +which are the surest, nay, the only means, of promoting or preserving +the happiness and prosperity of the nation, and which were the great +and efficient incentives to the formation of this Government. + +The power of Congress to impose the prohibition in the eighth section +of the act of 1820 has been advocated upon an attempted construction +of the second clause of the third section of the fourth article of +the Constitution, which declares that "Congress shall have power to +dispose of and to make all needful rules and regulations respecting +the _territory_ and _other property belonging_ to the United States." + +In the discussions in both houses of Congress, at the time of adopting +this eighth section of the act of 1820, great weight was given to the +peculiar language of this clause, viz: _territory_ and _other property +belonging_ to the United States, as going to show that the power of +disposing of and regulating, thereby vested in Congress, was +restricted to a _proprietary interest in the territory or land_ +comprised therein, and did not extend to the personal or political +rights of citizens or settlers, inasmuch as this phrase in the +Constitution, "_territory or other property_," identified _territory_ +with _property_, and inasmuch as _citizens_ or _persons_ could not be +property, and especially were not property _belonging_ to the United +States. And upon every principle of reason or necessity, this power to +dispose of and to regulate the _territory_ of the nation could be +designed to extend no farther than to its preservation and +appropriation to the uses of those to whom it belonged, viz: the +nation. Scarcely anything more illogical or extravagant can be +imagined than the attempt to deduce from this provision in the +Constitution a power to destroy or in any wise to impair the civil and +political rights of the citizens of the United States, and much more +so the power to establish inequalities amongst those citizens by +creating privileges in one class of those citizens, and by the +disfranchisement of other portions or classes, by degrading them from +the position they previously occupied. + +There can exist no rational or natural connection or affinity between +a pretension like this and the power vested by the Constitution in +Congress with regard to the Territories; on the contrary, there is an +absolute incongruity between them. + +But whatever the power vested in Congress, and whatever the precise +subject to which that power extended, it is clear that the power +related to a subject appertaining to the _United States_, and one to +be disposed of and regulated for the benefit and under the authority +of the _United States_. Congress was made simply the agent or +_trustee_ for the United States, and could not, without a breach of +trust and a fraud, appropriate the subject of the trust to any other +beneficiary or _cestui que trust_ than the United States, or to the +people of the United States, upon equal grounds, legal or equitable. +Congress could not appropriate that subject to any one class or +portion of the people, to the exclusion of others, politically and +constitutionally equals; but every citizen would, if any _one_ could +claim it, have the like rights of purchase, settlement, occupation, or +any other right, in the national territory. + +Nothing can be more conclusive to show the equality of this with every +other right in all the citizens of the United States, and the iniquity +and absurdity of the pretension to exclude or to disfranchise a +portion of them because they are the owners of slaves, than the fact +that the same instrument, which imparts to Congress its very existence +and its every function, guaranties to the slaveholder the title to his +property, and gives him the right to its reclamation throughout the +entire extent of the nation; and, farther, that the only private +property which the Constitution has _specifically recognised_, and has +imposed it as a direct obligation both on the States and the Federal +Government to protect and _enforce_, is the property of the master in +his slave; no other right of property is placed by the Constitution +upon the same high ground, nor shielded by a similar guaranty. + +Can there be imputed to the sages and patriots by whom the +Constitution was framed, or can there be detected in the text of that +Constitution, or in any rational construction or implication deducible +therefrom, a contradiction so palpable as would exist between a pledge +to the slaveholder of an equality with his fellow-citizens, and of the +formal and solemn assurance for the security and enjoyment of his +property, and a warrant given, as it were _uno flatu_, to another, to +rob him of that property, or to subject him to proscription and +disfranchisement for possessing or for endeavoring to retain it? The +injustice and extravagance necessarily implied in a supposition like +this, cannot be rationally imputed to the patriotic or the honest, or +to those who were merely sane. + +A conclusion in favor of the prohibitory power in Congress, as +asserted in the eighth section of the act of 1820, has been attempted, +as deducible from the precedent of the ordinance of the convention of +1787, concerning the cession by Virginia of the territory northwest of +the Ohio; the provision in which ordinance, relative to slavery, it +has been attempted to impose upon other and subsequently-acquired +territory. + +The first circumstance which, in the consideration of this provision, +impresses itself upon my mind, is its utter futility and want of +authority. This court has, in repeated instances, ruled, that whatever +may have been the force accorded to this ordinance of 1787 at the +period of its enactment, its authority and effect ceased, and yielded +to the paramount authority of the Constitution, from the period of the +adoption of the latter. Such is the principle ruled in the cases of +Pollard's Lessee _v._ Hagan, (3 How., 212,) Parmoli [Transcriber's +Note: Permoli] _v._ The First Municipality of New Orleans, (3 How., +589,) Strader _v._ Graham, (16 How., 82.) But apart from the superior +control of the Constitution, and anterior to the adoption of that +instrument, it is obvious that the inhibition in question never had +and never could have any legitimate and binding force. We may seek in +vain for any power in the convention, either to require or to accept a +condition or restriction upon the cession like that insisted on; a +condition inconsistent with, and destructive of, the object of the +grant. The cession was, as recommended by the old Congress in 1780, +made originally and completed _in terms_ to _the United States_, and +for the benefit of the United States, i.e., for _the people, all the +people_, of the United States. The condition subsequently sought to be +annexed in 1787, (declared, too, to be perpetual and immutable,) being +contradictory to the terms and destructive of the purposes of the +cession, and after the cession was consummated, and the powers of the +ceding party terminated, and the rights of the grantees, _the people +of the United States_, vested, must necessarily, so far, have been _ab +initio_ void. With respect to the power of the convention to impose +this inhibition, it seems to be pertinent in this place to recur to +the opinion of one cotemporary with the establishment of the +Government, and whose distinguished services in the formation and +adoption of our national charter, point him out as the _artifex +maximus_ of our Federal system. James Madison, in the year 1819, +speaking with reference to the prohibitory power claimed by Congress, +then threatening the very existence of the Union, remarks of the +language of the second clause of the third section of article fourth +of the Constitution, "that it cannot be well extended beyond a power +over the territory _as property_, and the power to make provisions +really needful or necessary for the government of settlers, until ripe +for admission into the Union." + +Again he says, "with respect to what has taken place in the Northwest +territory, it may be observed that the ordinance giving it its +distinctive character on the subject of slaveholding proceeded from +the old Congress, acting with the best intentions, but under a charter +which contains no shadow of the authority exercised; and it remains to +be decided how far the States formed within that territory, and +admitted into the Union, are on a different footing from its other +members as to their legislative sovereignty. As to the power of +admitting new States into the Federal compact, the questions offering +themselves are, whether Congress can attach conditions, or the new +States concur in conditions, which after admission would _abridge_ or +_enlarge_ the constitutional rights of legislation common to other +States; whether Congress can, by a compact with a new State, take +power either to or from itself, or place the new member above or below +the equal rank and rights possessed by the others; whether all such +stipulations expressed or implied would not be nullities, and be so +pronounced when brought to a practical test. It falls within the scope +of your inquiry to state the fact, that there was a proposition in the +convention to discriminate between the old and the new States by an +article in the Constitution. The proposition, happily, was rejected. +The effect of such a discrimination is sufficiently evident."[2] + +[Footnote 2: Letter from James Madison to Robert Walsh, November 27th, +1819, on the subject of the Missouri Compromise.] + +In support of the ordinance of 1787, there may be adduced the +semblance at least of obligation deducible from _compact_, the _form_ +of assent or agreement between the grantor and grantee; but this form +or similitude, as is justly remarked by Mr. Madison, is rendered null +by the absence of power or authority in the contracting parties, and +by the more intrinsic and essential defect of incompatibility with the +rights and avowed purposes of those parties, and with their relative +duties and obligations to others. If, then, with the attendant +_formalities_ of assent or compact, the restrictive power claimed was +void as to the immediate subject of the ordinance, how much more +unfounded must be the pretension to such a power as derived from that +source, (viz: the ordinance of 1787,) with respect to territory +acquired by purchase or conquest under the supreme authority of the +Constitution--territory not the subject of _mere donation_, but +obtained _in the name of all, by the combined efforts and resources of +all_, and with no condition annexed or pretended. + +In conclusion, my opinion is, that the decision of the Circuit Court, +upon the law arising upon the several pleas in bar, is correct, but +that it is erroneous in having sustained the demurrer to the plea in +abatement of the jurisdiction; that for this error the decision of the +Circuit Court should be reversed, and the cause remanded to that +court, with instructions to abate the action, for the reason set forth +and pleaded in the plea in abatement. + +In the aforegoing examination of this cause, the circumstance that the +questions involved therein had been previously adjudged between these +parties by the court of the State of Missouri, has not been adverted +to; for although it has been ruled by this court, that in instances of +concurrent jurisdiction, the court first obtaining possession or +cognizance of the controversy should retain and decide it, yet, as in +this case there had been no plea, either of a former judgment or of +_autre action pendent_, it was thought that the fact of a prior +decision, however conclusive it might have been if regularly pleaded, +could not be incidentally taken into view. + + * * * * * + +Mr. Justice CAMPBELL. + +I concur in the judgment pronounced by the Chief Justice, but the +importance of the cause, the expectation and interest it has awakened, +and the responsibility involved in its determination, induce me to +file a separate opinion. + +The case shows that the plaintiff, in the year 1834, was a negro slave +in Missouri, the property of Dr. Emerson, a surgeon in the army of the +United States. In 1834, his master took him to the military station at +Rock Island, on the border of Illinois, and in 1836 to Fort Snelling, +in the present Minnesota, then Wisconsin, Territory. While at Fort +Snelling, the plaintiff married a slave who was there with her master, +and two children have been born of this connection; one during the +journey of the family in returning to Missouri, and the other after +their return to that State. + +Since 1838, the plaintiff and the members of his family have been in +Missouri in the condition of slaves. The object of this suit is to +establish their freedom. The defendant, who claims the plaintiff and +his family, under the title of Dr. Emerson, denied the jurisdiction of +the Circuit Court, by the plea that the plaintiff was a negro of +African blood, the descendant of Africans who had been imported and +sold in this country as slaves, and thus he had no capacity as a +citizen of Missouri to maintain a suit in the Circuit Court. The court +sustained a demurrer to this plea, a trial was then had upon the +general issue, and special pleas to the effect that the plaintiff and +his family were slaves belonging to the defendant. + +My opinion in this case is not affected by the plea to the +jurisdiction, and I shall not discuss the questions it suggests. The +claim of the plaintiff to freedom depends upon the effect to be given +to his absence from Missouri, in company with his master, in Illinois +and Minnesota, and this effect is to be ascertained by a reference to +the laws of Missouri. For the trespass complained of was committed +upon one claiming to be a freeman and a citizen, in that State, and +who had been living for years under the dominion of its laws. And the +rule is, that whatever is a justification where the thing is done, +must be a justification in the forum where the case is tried. (20 How. +St. Tri., 234; Cowp. S.C., 161.) + +The Constitution of Missouri recognises slavery as a legal condition, +extends guaranties to the masters of slaves, and invites immigrants +to introduce them, as property, by a promise of protection. The laws +of the State charge the master with the custody of the slave, and +provide for the maintenance and security of their relation. + +The Federal Constitution and the acts of Congress provide for the +return of escaping slaves within the limits of the Union. No removal +of the slave beyond the limits of the State, against the consent of +the master, nor residence there in another condition, would be +regarded as an effective manumission by the courts of Missouri, upon +his return to the State. "Sicut liberis captis status restituitur sic +servus domino." Nor can the master emancipate the slave within the +State, except through the agency of a public authority. The inquiry +arises, whether the manumission of the slave is effected by his +removal, with the consent of the master, to a community where the law +of slavery does not exist, in a case where neither the master nor +slave discloses a purpose to remain permanently, and where both +parties have continued to maintain their existing relations. What is +the law of Missouri in such a case? Similar inquiries have arisen in a +great number of suits, and the discussions in the State courts have +relieved the subject of much of its difficulty. (12 B.M. Ky. R., 545; +Foster _v._ Foster, 10 Gratt. Va. R., 485; 4 Har. and McH. Md. R., +295; Scott _v._ Emerson, 15 Misso., 576; 4 Rich. S.C.R., 186; 17 +Misso., 434; 15 Misso., 596; 5 B.M., 173; 8 B.M., 540, 633; 9 B.M., +565; 5 Leigh, 614; 1 Raud., 15; 18 Pick., 193.) + +The result of these discussions is, that in general, the _status_, or +civil and political capacity of a person, is determined, in the first +instance, by the law of the domicil where he is born; that the legal +effect on persons, arising from the operation of the law of that +domicil, is not indelible, but that a new capacity or _status_ may be +acquired by a change of domicil. That questions of _status_ are +closely connected with considerations arising out of the social and +political organization of the State where they originate, and each +sovereign power must determine them within its own territories. + +A large class of cases has been decided upon the second of the +propositions above stated, in the Southern and Western courts--cases +in which the law of the actual domicil was adjudged to have altered +the native condition and _status_ of the slave, although he had never +actually possessed the _status_ of freedom in that domicil. (Rankin +_v._ Lydia, 2 A.K.M.; Herny [Transcriber's Note: Harry] _v._ Decker, +Walk., 36; 4 Mart., 385; 1 Misso., 472; Hunter _v._ Fulcher, 1 Leigh +[Transcriber's Note: full citation as given elsewhere is 1 Leigh, +172].) + +I do not impugn the authority of these cases. No evidence is found in +the record to establish the existence of a domicil acquired by the +master and slave, either in Illinois or Minnesota. The master is +described as an officer of the army, who was transferred from one +station to another, along the Western frontier, in the line of his +duty, and who, after performing the usual tours of service, returned +to Missouri; these slaves returned to Missouri with him, and had been +there for near fifteen years, in that condition, when this suit was +instituted. But absence, in the performance of military duty, without +more, is a fact of no importance in determining a question of a change +of domicil. Questions of that kind depend upon acts and intentions, +and are ascertained from motives, pursuits, the condition of the +family, and fortune of the party, and no change will be inferred, +unless evidence shows that one domicil was abandoned, and there was an +intention to acquire another. (11 L. and Eq., 6; 6 Exch., 217; 6 M. +and W., 511; 2 Curt. Ecc. R., 368.) + +The cases first cited deny the authority of a foreign law to dissolve +relations which have been legally contracted in the State where the +parties are, and have their actual domicil--relations which were never +questioned during their absence from that State--relations which are +consistent with the native capacity and condition of the respective +parties, and with the policy of the State where they reside; but which +relations were inconsistent with the policy or laws of the State or +Territory within which they had been for a time, and from which they +had returned, with these relations undisturbed. It is upon the +assumption, that the law of Illinois or Minnesota was indelibly +impressed upon the slave, and its consequences carried into Missouri, +that the claim of the plaintiff depends. The importance of the case +entitles the doctrine on which it rests to a careful examination. + +It will be conceded, that in countries where no law or regulation +prevails, opposed to the existence and consequences of slavery, +persons who are born in that condition in a foreign State would not be +liberated by the accident of their introgression. The relation of +domestic slavery is recognised in the law of nations, and the +interference of the authorities of one State with the rights of a +master belonging to another, without a valid cause, is a violation of +that law. (Wheat. Law of Na., 724; 5 Stats. at Large, 601; Calh. Sp., +378; Reports of the Com. U.S. and G.B., 187, 238, 241.) + +The public law of Europe formerly permitted a master to reclaim his +bondsman, within a limited period, wherever he could find him, and one +of the capitularies of Charlemagne abolishes the rule of prescription. +He directs, "that wheresoever, within the bounds of Italy, either the +runaway slave of the king, or of the church, or of any other man, +shall be found by his master, he shall be restored without any bar or +prescription of years; yet upon the provision that the master be a +Frank or German, or of any other nation (foreign;) but if he be a +Lombard or a Roman, he shall acquire or receive his slaves by that law +which has been established from ancient times among them." Without +referring for precedents abroad, or to the colonial history, for +similar instances, the history of the Confederation and Union affords +evidence to attest the existence of this ancient law. In 1783, +Congress directed General Washington to continue his remonstrances to +the commander of the British forces respecting the permitting negroes +belonging to the citizens of these States to leave New York, and to +insist upon the discontinuance of that measure. In 1788, the resident +minister of the United States at Madrid was instructed to obtain from +the Spanish Crown orders to its Governors in Louisiana and Florida, +"to permit and facilitate the apprehension of fugitive slaves from the +States, promising that the States would observe the like conduct +respecting fugitives from Spanish subjects." The committee that made +the report of this resolution consisted of Hamilton, Madison, and +Sedgwick, (2 Hamilton's Works, 473;) and the clause in the Federal +Constitution providing for the restoration of fugitive slaves is a +recognition of this ancient right, and of the principle that a change +of place does not effect a change of condition. The diminution of the +power of a master to reclaim his escaping bondsman in Europe commenced +in the enactment of laws of prescription in favor of privileged +communes. Bremen, Spire, Worms, Vienna, and Ratisbon, in Germany; +Carcassonne, Béziers, Toulouse, and Paris, in France, acquired +privileges on this subject at an early period. The ordinance of +William the Conqueror, that a residence of any of the servile +population of England, for a year and a day, without being claimed, in +any city, burgh, walled town, or castle of the King, should entitle +them to perpetual liberty, is a specimen of these laws. + +The earliest publicist who has discussed this subject is Bodin, a +jurist of the sixteenth century, whose work was quoted in the early +discussions of the courts in France and England on this subject. He +says: "In France, although there be some remembrance of old servitude, +yet it is not lawful here to make a slave or to buy any one of others, +insomuch as the slaves of strangers, so soon as they set their foot +within France, become frank and free, as was determined by an old +decree of the court of Paris against an ambassador of Spain, who had +brought a slave with him into France." He states another case, which +arose in the city of Toulouse, of a Genoese merchant, who had carried +a slave into that city on his voyage from Spain; and when the matter +was brought before the magistrates, the "procureur of the city, out of +the records, showed certain ancient privileges given unto them of +Tholouse, wherein it was granted that slaves, so soon as they should +come into Tholouse, should be free." These cases were cited with much +approbation in the discussion of the claims of the West India slaves +of Verdelin for freedom, in 1738, before the judges in admiralty, (15 +Causes Celébrés, p. 1; 2 Masse Droit Com., sec. 58,) and were +reproduced before Lord Mansfield, in the cause of Somersett, in 1772. +Of the cases cited by Bodin, it is to be observed that Charles V of +France exempted all the inhabitants of Paris from serfdom, or other +feudal incapacities, in 1371, and this was confirmed by several of his +successors, (3 Dulaire Hist. de Par., 546; Broud. Cout. de Par., 21,) +and the ordinance of Toulouse is preserved as follows: "_Civitas +Tholosana fuit et erit sine fine libera, adeo ut servi et ancillæ, +sclavi et sclavæ, dominos sive dominas habentes, cum rebus vel sine +rebus suis, ad Tholosam vel infrâ terminos extra urbem terminatos +accedentes acquirant libertatem_." (Hist. de Langue, tome 3, p. 69; +Ibid. 6, p. 8; Loysel Inst., b. 1, sec. 6.) + +The decisions were made upon special ordinances, or charters, which +contained positive prohibitions of slavery, and where liberty had been +granted as a privilege; and the history of Paris furnishes but little +support for the boast that she was a "_sacro sancta civitas_," where +liberty always had an asylum, or for the "self-complacent rhapsodies" +of the French advocates in the case of Verdelin, which amused the +grave lawyers who argued the case of Somersett. The case of Verdelin +was decided upon a special ordinance, which prescribed the conditions +on which West India slaves might be introduced into France, and which +had been disregarded by the master. + +The case of Somersett was that of a Virginia slave carried to England +by his master in 1770, and who remained there two years. For some +cause, he was confined on a vessel destined to Jamaica, where he was +to be sold. Lord Mansfield, upon a return to a _habeas corpus_, states +the question involved. "Here, the person of the slave himself," he +says, "is the immediate subject of inquiry, Can any dominion, +authority, or coercion, be exercised in this country, according to the +American laws?" He answers: "The difficulty of adopting the relation, +without adopting it in all its consequences, is indeed extreme, and +yet many of those consequences are absolutely contrary to the +municipal law of England." Again, he says: "The return states that the +slave departed, and refused to serve; whereupon, he was kept to be +sold abroad." "So high an act of dominion must be recognised by the +law of the country where it is used. The power of the master over his +slave has been extremely different in different countries." "The state +of slavery is of such a nature, that it is incapable of being +introduced on any reasons, moral or political, but only by positive +law, which preserves its force long after the reasons, occasion, and +time itself, from whence it was created, are erased from the memory. +It is so odious, that nothing can be suffered to support it but +positive law." That there is a difference in the systems of States, +which recognise and which do not recognise the institution of slavery, +cannot be disguised. Constitutional law, punitive law, police, +domestic economy, industrial pursuits, and amusements, the modes of +thinking and of belief of the population of the respective +communities, all show the profound influence exerted upon society by +this single arrangement. This influence was discovered in the Federal +Convention, in the deliberations on the plan of the Constitution. Mr. +Madison observed, "that the States were divided into different +interests, not by their difference of size, but by other +circumstances; the most material of which resulted partly from +climate, but principally from the effects of their having or not +having slaves. These two causes concur in forming the great division +of interests in the United States." + +The question to be raised with the opinion of Lord Mansfield, +therefore, is not in respect to the incongruity of the two systems, +but whether slavery was absolutely contrary to the law of England; for +if it was so, clearly, the American laws could not operate there. +Historical research ascertains that at the date of the Conquest the +rural population of England were generally in a servile condition, and +under various names, denoting slight variances in condition, they were +sold with the land like cattle, and were a part of its living money. +Traces of the existence of African slaves are to be found in the early +chronicles. Parliament in the time of Richard II, and also of Henry +VIII, refused to adopt a general law of emancipation. Acts of +emancipation by the last-named monarch and by Elizabeth are preserved. + +The African slave trade had been carried on, under the unbounded +protection of the Crown, for near two centuries, when the case of +Somersett was heard, and no motion for its suppression had ever been +submitted to Parliament; while it was forced upon and maintained in +unwilling colonies by the Parliament and Crown of England at that +moment. Fifteen thousand negro slaves were then living in that island, +where they had been introduced under the counsel of the most +illustrious jurists of the realm, and such slaves had been publicly +sold for near a century in the markets of London. In the northern part +of the kingdom of Great Britain there existed a class of from 30,000 +to 40,000 persons, of whom the Parliament said, in 1775, (15 George +III, chap. 28,) "many colliers, coal-heavers, and salters, are in a +state of slavery or bondage, bound to the collieries and salt works, +where they work for life, transferable with the collieries and salt +works when their original masters have no use for them; and whereas +the emancipating or setting free the colliers, coal-heavers, and +salters, in Scotland, who are now in a state of servitude, gradually +and upon reasonable conditions, would be the means of increasing the +number of colliers, coal-heavers, and salters, to the great benefit of +the public, without doing any injury to the present masters, and would +remove the reproach of allowing such a state of servitude to exist in +a free country," &c.; and again, in 1799, "they declare that many +colliers and coal-heavers still continue in a state of bondage." No +statute, from the Conquest till the 15 George III, had been passed +upon the subject of personal slavery. These facts have led the most +eminent civilian of England to question the accuracy of this judgment, +and to insinuate that in this judgment the offence of _ampliare +jurisdictionem_ by private authority was committed by the eminent +magistrate who pronounced it. + +This sentence is distinguishable from those cited from the French +courts in this: that there positive prohibitions existed against +slavery, and the right to freedom was conferred on the immigrant slave +by positive law; whereas here the consequences of slavery merely--that +is, the public policy--were found to be contrary to the law of +slavery. The case of the slave Grace, (2 Hagg.,) with four others, +came before Lord Stowell in 1827, by appeals from the West India vice +admiralty courts. They were cases of slaves who had returned to those +islands, after a residence in Great Britain, and where the claim to +freedom was first presented in the colonial forum. The learned judge +in that case said: "This suit fails in its foundation. She (Grace) was +not a free person; no injury is done her by her continuance in +slavery, and she has no pretensions to any other station than that +which was enjoyed by every slave of a family. If she depends upon such +freedom conveyed by a mere residence in England, she complains of a +violation of right which she possessed no longer than whilst she +resided in England, but which totally expired when that residence +ceased, and she was imported into Antigua." + +The decision of Lord Mansfield was, "that so high an act of dominion" +as the master exercises over his slave, in sending him abroad for +sale, could not be exercised in England under the American laws, and +contrary to the spirit of their own. + +The decision of Lord Stowell is, that the authority of the English +laws terminated when the slave departed from England. That the laws of +England were not imported into Antigua, with the slave, upon her +return, and that the colonial forum had no warrant for applying a +foreign code to dissolve relations which had existed between persons +belonging to that island, and which were legal according to its own +system. There is no distinguishable difference between the case before +us and that determined in the admiralty of Great Britain. + +The complaint here, in my opinion, amounts to this: that the judicial +tribunals of Missouri have not denounced as odious the Constitution +and laws under which they are organized, and have not superseded them +on their own private authority, for the purpose of applying the laws +of Illinois, or those passed by Congress for Minnesota, in their +stead. The eighth section of the act of Congress of the 6th of March, +1820, (3 Statutes at Large, 545,) entitled, "An act to authorize the +people of Missouri to form a State Government," &c., &c., is referred +to, as affording the authority to this court to pronounce the sentence +which the Supreme Court of Missouri felt themselves constrained to +refuse. That section of the act prohibits slavery in the district of +country west of the Mississippi, north of thirty-six degrees thirty +minutes north latitude, which belonged to the ancient province of +Louisiana, not included in Missouri. + +It is a settled doctrine of this court, that the Federal Government +can exercise no power over the subject of slavery within the States, +nor control the intermigration of slaves, other than fugitives, among +the States. Nor can that Government affect the duration of slavery +within the States, other than by a legislation over the foreign slave +trade. The power of Congress to adopt the section of the act above +cited must therefore depend upon some condition of the Territories +which distinguishes them from States, and subjects them to a control +more extended. The third section of the fourth article of the +Constitution is referred to as the only and all-sufficient grant to +support this claim. It is, that "new States may be admitted by the +Congress to this Union; but no new State shall be formed or erected +within the jurisdiction of any other State, nor any State be formed by +the junction of two or more States, or parts of States, without the +consent of the Legislatures of the States concerned, as well as of the +Congress. The Congress shall have power to dispose of and make all +needful rules and regulations respecting the territory or other +property belonging to the United States; and nothing in this +Constitution shall be so construed as to prejudice any claims of the +United States, or of any particular State." + +It is conceded, in the decisions of this court, that Congress may +secure the rights of the United States in the public domain, provide +for the sale or lease of any part of it, and establish the validity of +the titles of the purchasers, and may organize Territorial +Governments, with powers of legislation. (3 How., 212; 12 How., 1; 1 +Pet., 511; 13 P., 436; 16 H., 164.) + +But the recognition of a plenary power in Congress to dispose of the +public domain, or to organize a Government over it, does not imply a +corresponding authority to determine the internal polity, or to adjust +the domestic relations, or the persons who may lawfully inhabit the +territory in which it is situated. A supreme power to make needful +rules respecting the public domain, and a similar power of framing +laws to operate upon persons and things within the territorial limits +where it lies, are distinguished by broad lines of demarcation in +American history. This court has assisted us to define them. In +Johnson _v._ McIntosh, (8 Wheat., 595--543,) [Transcriber's Note: +modern citation form is 8 Wheat. 543, 595] they say: "According to the +theory of the British Constitution, all vacant lands are vested in the +Crown; and the exclusive power to grant them is admitted to reside in +the Crown, as a branch of the royal prerogative. + +"All the lands we hold were originally granted by the Crown, and the +establishment of a royal Government has never been considered as +impairing its right to grant lands within the chartered limits of such +colony." + +And the British Parliament did claim a supremacy of legislation +coextensive with the absoluteness of the dominion of the sovereign +over the Crown lands. The American doctrine, to the contrary, is +embodied in two brief resolutions of the people of Pennsylvania, in +1774: 1st. "That the inhabitants of these colonies are entitled to the +same rights and liberties, within the colonies, that the subjects born +in England are entitled within the realm." 2d. "That the power assumed +by Parliament to bind the people of these colonies by statutes, in all +cases whatever, is unconstitutional, and therefore the source of these +unhappy difficulties." The Congress of 1774, in their statement of +rights and grievances, affirm "a free and exclusive power of +legislation" in their several Provincial Legislatures, "in all cases +of taxation and internal polity, subject only to the negative of their +sovereign, in such manner as has been heretofore used and accustomed." +(1 Jour. Cong., 32.) + +The unanimous consent of the people of the colonies, then, to the +power of their sovereign, "to dispose of and make all needful rules +and regulations respecting the territory" of the Crown, in 1774, was +deemed by them as entirely consistent with opposition, remonstrance, +the renunciation of allegiance, and proclamation of civil war, in +preference to submission to his claim of supreme power in the +territories. + +I pass now to the evidence afforded during the Revolution and +Confederation. The American Revolution was not a social revolution. It +did not alter the domestic condition or capacity of persons within the +colonies, nor was it designed to disturb the domestic relations +existing among them. It was a political revolution, by which thirteen +dependent colonies became thirteen independent States. "The +Declaration of Independence was not," says Justice Chase, "a +declaration that the United Colonies jointly, in a collective +capacity, were independent States, &c., &c., &c., but that each of +them was a sovereign and independent State; that is, that each of them +had a right to govern itself by its own authority and its own laws, +without any control from any other power on earth." (3 Dall., 199; 4 +Cr., 212.) + +These sovereign and independent States, being united as a +Confederation, by various public acts of cession, became jointly +interested in territory, and concerned to dispose of and make all +needful rules and regulations respecting it. It is a conclusion not +open to discussion in this court, "that there was no territory within +the (original) United States, that was claimed by them in any other +right than that of some of the confederate States." (Harcourt _v._ +Gaillord, 12 Wh., 523.) "The question whether the vacant lands within +the United States," says Chief Justice Marshall, "became joint +property, or belonged to the separate States, was a momentous +question, which threatened to shake the American Confederacy to its +foundations. This important and dangerous question has been +compromised, and the compromise is not now to be contested." (6 C.R., +87.) + +The cessions of the States to the Confederation were made on the +condition that the territory ceded should be laid out and formed into +distinct republican States, which should be admitted as members to the +Federal Union, having the same rights of sovereignty, freedom, and +independence, as the other States. The first effort to fulfil this +trust was made in 1785, by the offer of a charter or compact to the +inhabitants who might come to occupy the land. + +Those inhabitants were to form for themselves temporary State +Governments, founded on the Constitutions of any of the States, but to +be alterable at the will of their Legislature; and permanent +Governments were to succeed these, whenever the population became +sufficiently numerous to authorize the State to enter the Confederacy; +and Congress assumed to obtain powers from the States to facilitate +this object. Neither in the deeds of cession of the States, nor in +this compact, was a sovereign power for Congress to govern the +Territories asserted. Congress retained power, by this act, "to +dispose of and to make rules and regulations respecting the public +domain," but submitted to the people to organize a Government +harmonious with those of the confederate States. + +The next stage in the progress of colonial government was the adoption +of the ordinance of 1787, by eight States, in which the plan of a +Territorial Government, established by act of Congress, is first seen. +This was adopted while the Federal Convention to form the Constitution +was sitting. The plan placed the Government in the hands of a +Governor, Secretary, and Judges, appointed by Congress, and conferred +power on them to select suitable laws from the codes of the States, +until the population should equal 5,000. A Legislative Council, +elected by the people, was then to be admitted to a share of the +legislative authority, under the supervision of Congress; and States +were to be formed whenever the number of the population should +authorize the measure. + +This ordinance was addressed to the inhabitants as a fundamental +compact, and six of its articles define the conditions to be observed +in their Constitution and laws. These conditions were designed to +fulfil the trust in the agreements of cession, that the States to be +formed of the ceded Territories should be "distinct republican +States." This ordinance was submitted to Virginia in 1788, and the 5th +article, embodying as it does a summary of the entire act, was +specifically ratified and confirmed by that State. This was an +incorporation of the ordinance into her act of cession. It was +conceded, in the argument, that the authority of Congress was not +adequate to the enactment of the ordinance, and that it cannot be +supported upon the Articles of Confederation. To a part of the +engagements, the assent of nine States was required, and for another +portion no provision had been made in those articles. Mr. Madison +said, in a writing nearly contemporary, but before the confirmatory +act of Virginia, "Congress have proceeded to form new States, to erect +temporary Governments, to appoint officers for them, and to prescribe +the conditions on which such States shall be admitted into the +Confederacy; all this has been done, and done without the least color +of constitutional authority." (Federalist, No. 38.) Richard Henry Lee, +one of the committee who reported the ordinance to Congress, +transmitted it to General Washington, (15th July, 1787,) saying, "It +seemed necessary, for the security of property among uninformed and +perhaps licentious people, as the greater part of those who go there +are, that a strong-toned Government should exist, and the rights of +property be clearly defined." The consent of all the States +represented in Congress, the consent of the Legislature of Virginia, +the consent of the inhabitants of the Territory, all concur to support +the authority of this enactment. It is apparent, in the frame of the +Constitution, that the Convention recognised its validity, and +adjusted parts of their work with reference to it. The authority to +admit new States into the Union, the omission to provide distinctly +for Territorial Governments, and the clause limiting the foreign slave +trade to States then existing, which might not prohibit it, show that +they regarded this Territory as provided with a Government, and +organized permanently with a restriction on the subject of slavery. +Justice Chase, in the opinion already cited, says of the Government +before, and it is in some measure true during the Confederation, that +"the powers of Congress originated from necessity, and arose out of +and were only limited by events, or, in other words, they were +revolutionary in their very nature. Their extent depended upon the +exigencies and necessities of public affairs;" and there is only one +rule of construction, in regard to the acts done, which will fully +support them, viz: that the powers actually exercised were rightfully +exercised, wherever they were supported by the implied sanction of the +State Legislatures, and by the ratifications of the people. + +The clauses in the 3d section of the 4th article of the Constitution, +relative to the admission of new States, and the disposal and +regulation of the territory of the United States, were adopted without +debate in the Convention. + +There was a warm discussion on the clauses that relate to the +subdivision of the States, and the reservation of the claims of the +United States and each of the States from any prejudice. The Maryland +members revived the controversy in regard to the Crown lands of the +Southwest. There was nothing to indicate any reference to a government +of Territories not included within the limits of the Union; and the +whole discussion demonstrates that the Convention was consciously +dealing with a Territory whose condition, as to government, had been +arranged by a fundamental and unalterable compact. + +An examination of this clause of the Constitution, by the light of the +circumstances in which the Convention was placed, will aid us to +determine its significance. The first clause is, "that new States may +be admitted by the Congress to this Union." The condition of +Kentucky, Vermont, Rhode Island, and the new States to be formed in +the Northwest, suggested this, as a necessary addition to the powers +of Congress. The next clause, providing for the subdivision of States, +and the parties to consent to such an alteration, was required, by the +plans on foot, for changes in Massachusetts, New York, Pennsylvania, +North Carolina, and Georgia. The clause which enables Congress to +dispose of and make regulations respecting the public domain, was +demanded by the exigencies of an exhausted treasury and a disordered +finance, for relief by sales, and the preparation for sales, of the +public lands; and the last clause, that nothing in the Constitution +should prejudice the claims of the United States or a particular +State, was to quiet the jealousy and irritation of those who had +claimed for the United States all the unappropriated lands. I look in +vain, among the discussions of the time, for the assertion of a +supreme sovereignty for Congress over the territory then belonging to +the United States, or that they might thereafter acquire. I seek in +vain for an annunciation that a consolidated power had been +inaugurated, whose subject comprehended an empire, and which had no +restriction but the discretion of Congress. This disturbing element of +the Union entirely escaped the apprehensive previsions of Samuel +Adams, George Clinton, Luther Martin, and Patrick Henry; and, in +respect to dangers from power vested in a central Government over +distant settlements, colonies, or provinces, their instincts were +always alive. Not a word escaped them, to warn their countrymen, that +here was a power to threaten the landmarks of this federative Union, +and with them the safeguards of popular and constitutional liberty; or +that under this article there might be introduced, on our soil, a +single Government over a vast extent of country--a Government foreign +to the persons over whom it might be exercised, and capable of binding +those not represented, by statutes, in all cases whatever. I find +nothing to authorize these enormous pretensions, nothing in the +expositions of the friends of the Constitution, nothing in the +expressions of alarm by its opponents--expressions which have since +been developed as prophecies. Every portion of the United States was +then provided with a municipal Government, which this Constitution was +not designed to supersede, but merely to modify as to its conditions. + +The compacts of cession by North Carolina and Georgia are subsequent +to the Constitution. They adopt the ordinance of 1787, except the +clause respecting slavery. But the precautionary repudiation of that +article forms an argument quite as satisfactory to the advocates for +Federal power, as its introduction would have done. The refusal of a +power to Congress to legislate in one place, seems to justify the +seizure of the same power when another place for its exercise is +found. + +This proceeds from a radical error, which lies at the foundation of +much of this discussion. It is, that the Federal Government may +lawfully do whatever is not directly prohibited by the Constitution. +This would have been a fundamental error, if no amendments to the +Constitution had been made. But the final expression of the will of +the people of the States, in the 10th amendment, is, that the powers +of the Federal Government are limited to the grants of the +Constitution. + +Before the cession of Georgia was made, Congress asserted rights, in +respect to a part of her territory, which require a passing notice. In +1798 and 1800, acts for the settlement of limits with Georgia, and to +establish a Government in the Mississippi Territory, were adopted. A +Territorial Government was organized, between the Chattahoochee and +Mississippi rivers. This was within the limits of Georgia. These acts +dismembered Georgia. They established a separate Government upon her +soil, while they rather derisively professed, "that the establishment +of that Government shall in no respects impair the rights of the State +of Georgia, either to the jurisdiction or soil of the Territory." The +Constitution provided that the importation of such persons as any of +the existing States shall think proper to admit, shall not be +prohibited by Congress before 1808. By these enactments, a prohibition +was placed upon the importation of slaves into Georgia, although her +Legislature had made none. + +This court have repeatedly affirmed the paramount claim of Georgia to +this Territory. They have denied the existence of any title in the +United States. (6 C.R., 87; 12 Wh., 523; 3 How., 212; 13 How., 381.) +Yet these acts were cited in the argument as precedents to show the +power of Congress in the Territories. These statutes were the occasion +of earnest expostulation and bitter remonstrance on the part of the +authorities of the State, and the memory of their injustice and wrong +remained long after the legal settlement of the controversy by the +compact of 1802. A reference to these acts terminates what I have to +say upon the Constitutions of the Territory within the original limits +of the United States. These Constitutions were framed by the +concurrence of the States making the cessions, and Congress, and were +tendered to immigrants who might be attracted to the vacant territory. +The legislative powers of the officers of this Government were limited +to the selection of laws from the States; and provision was made for +the introduction of popular institutions, and their emancipation from +Federal control, whenever a suitable opportunity occurred. The limited +reservation of legislative power to the officers of the Federal +Government was excused, on the plea of _necessity_; and the +probability is, that the clauses respecting slavery embody some +compromise among the statesmen of that time; beyond these, the +distinguishing features of the system which the patriots of the +Revolution had claimed as their birthright, from Great Britain, +predominated in them. + +The acquisition of Louisiana, in 1803, introduced another system into +the United States. This vast province was ceded by Napoleon, and its +population had always been accustomed to a viceroyal Government, +appointed by the Crowns of France or Spain. To establish a Government +constituted on similar principles, and with like conditions, was not +an unnatural proceeding. + +But there was great difficulty in finding constitutional authority for +the measure. The third section of the fourth article of the +Constitution was introduced into the Constitution, on the motion of +Mr. Gouverneur Morris. In 1803, he was appealed to for information in +regard to its meaning. He answers: "I am very certain I had it not in +contemplation to insert a decree _de coercendo imperio_ in the +Constitution of America.... I knew then, as well as I do now, that all +North America must at length be annexed to us. Happy indeed, if the +lust of dominion stop here. It would therefore have been perfectly +utopian to oppose a paper restriction to the violence of popular +sentiment, in a popular Government." (3 Mor. Writ., 185.) A few days +later, he makes another reply to his correspondent. "I perceive," he +says, "I mistook the drift of your inquiry, which substantially is, +whether Congress can admit, as a new State, territory which did not +belong to the United States when the Constitution was made. In my +opinion, they cannot. I always thought, when we should acquire Canada +and Louisiana, it would be proper to GOVERN THEM AS PROVINCES, AND +ALLOW THEM NO VOICE _in our councils. In wording the third_ SECTION OF +THE _fourth article, I went as far as circumstances would permit, to +establish the exclusion_. CANDOR OBLIGES ME TO ADD MY BELIEF, THAT HAD +IT BEEN MORE POINTEDLY EXPRESSED, A STRONG OPPOSITION WOULD HAVE BEEN +MADE." (3 Mor. Writ., 192.) The first Territorial Government of +Louisiana was an Imperial one, founded upon a French or Spanish model. +For a time, the Governor, Judges, Legislative Council, Marshal, +Secretary, and officers of the militia, were appointed by the +President.[3] + +[Footnote 3: Mr. Varnum said: "The bill provided such a Government as +had never been known in the United States." Mr. Eustis: "The +Government laid down in this bill is certainly a new thing in the +United States." Mr. Lucas: "It has been remarked, that this bill +establishes elementary principles never previously introduced in the +Government of any Territory of the United States. Granting the truth +of this observation," &c., &c. Mr. Macon: "My first objection to the +principle contained in this section is, that it establishes a species +of government unknown to the United States." Mr. Boyle: "Were the +President an angel instead of a man, I would not clothe him with this +power." Mr. G.W. Campbell: "On examining the section, it will appear +that it really establishes a complete despotism." Mr. Sloan: "Can +anything be more repugnant to the principles of just government? Can +anything be more despotic?"--_Annals of Congress_, 1803-'4.] + +Besides these anomalous arrangements, the acquisition gave rise to +jealous inquiries, as to the influence it would exert in determining +the men and States that were to be "the arbiters and rulers" of the +destinies of the Union; and unconstitutional opinions, having for +their aim to promote sectional divisions, were announced and +developed. "Something," said an eminent statesman, "something has +suggested to the members of Congress the policy of acquiring +geographical majorities. This is a very direct step towards disunion, +for it must foster the geographical enmities by which alone it can be +effected. This something must be a contemplation of particular +advantages to be derived from such majorities; and is it not notorious +that they consist of nothing else but usurpations over persons and +property, by which they can regulate the internal _wealth and +prosperity of States and individuals_?" + +The most dangerous of the efforts to employ a geographical political +power, to perpetuate a geographical preponderance in the Union, is to +be found in the deliberations upon the act of the 6th of March, 1820, +before cited. The attempt consisted of a proposal to exclude Missouri +from a place in the Union, unless her people would adopt a +Constitution containing a prohibition upon the subject of slavery, +according to a prescription of Congress. The sentiment is now general, +if not universal, that Congress had no constitutional power to impose +the restriction. This was frankly admitted at the bar, in the course +of this argument. The principles which this court have pronounced +condemn the pretension then made on behalf of the legislative +department. In Groves _v._ Slaughter, (15 Pet.,) the Chief Justice +said: "The power over this subject is exclusively with the several +States, and each of them has a right to decide for itself whether it +will or will not allow persons of this description to be brought +within its limits." Justice McLean said: "The Constitution of the +United States operates alike in all the States, and one State has the +same power over the subject of slavery as every other State." In +Pollard's Lessee _v._ Hagan, (3 How., 212,) the court say: "The United +States have no constitutional capacity to exercise municipal +jurisdiction, sovereignty, or eminent domain, within the limits of a +State or elsewhere, except in cases where it is delegated, and the +court denies the faculty of the Federal Government to add to its +powers by treaty or compact." + +This is a necessary consequence, resulting from the nature of the +Federal Constitution, which is a federal compact among the States, +establishing a limited Government, with powers delegated by the people +of distinct and independent communities, who reserved to their State +Governments, and to themselves, the powers they did not grant. This +claim to impose a restriction upon the people of Missouri involved a +denial of the constitutional relations between the people of the +States and Congress, and affirmed a concurrent right for the latter, +with their people, to constitute the social and political system of +the new States. A successful maintenance of this claim would have +altered the basis of the Constitution. The new States would have +become members of a Union defined in part by the Constitution and in +part by Congress. They would not have been admitted to "this Union." +Their sovereignty would have been restricted by Congress as well as +the Constitution. The demand was unconstitutional and subversive, but +was prosecuted with an energy, and aroused such animosities among the +people, that patriots, whose confidence had not failed during the +Revolution, began to despair for the Constitution.[4] Amid the utmost +violence of this extraordinary contest, the expedient contained in the +eighth section of this act was proposed, to moderate it, and to avert +the catastrophe it menaced. It was not seriously debated, nor were its +constitutional aspects severely scrutinized by Congress. For the first +time, in the history of the country, has its operation been embodied +in a case at law, and been presented to this court for their judgment. +The inquiry is, whether there are conditions in the Constitutions of +the Territories which subject the capacity and _status_ of persons +within their limits to the direct action of Congress. Can Congress +determine the condition and _status_ of persons who inhabit the +Territories? + +[Footnote 4: Mr. Jefferson wrote: "The Missouri question is the most +portentous one that ever threatened our Union. In the gloomiest +moments of the revolutionary war, I never had any apprehension equal +to that I feel from this source."] + +The Constitution permits Congress to dispose of and to make all +needful rules and regulations respecting the territory or other +property belonging to the United States. This power applies as well to +territory belonging to the United States within the States, as beyond +them. It comprehends all the public domain, wherever it may be. The +argument is, that the power to make "ALL needful rules and +regulations" "is a power of legislation," "a full legislative power;" +"that it includes all subjects of legislation in the territory," and +is without any limitations, except the positive prohibitions which +affect all the powers of Congress. Congress may then regulate or +prohibit slavery upon the public domain within the new States, and +such a prohibition would permanently affect the capacity of a slave, +whose master might carry him to it. And why not? Because no power has +been conferred on Congress. This is a conclusion universally admitted. +But the power to "make rules and regulations respecting the territory" +is not restrained by State lines, nor are there any constitutional +prohibitions upon its exercise in the domain of the United States +within the States; and whatever rules and regulations respecting +territory Congress may constitutionally make are supreme, and are not +dependent on the _situs_ of "the territory." + +The author of the Farmer's Letters, so famous in the +ante-revolutionary history, thus states the argument made by the +American loyalists in favor of the claim of the British Parliament to +legislate in all cases whatever over the colonies: "It has been urged +with great vehemence against us," he says, "and it seems to be thought +their FORT by our adversaries, that a power of regulation is a power +of legislation; and a power of legislation, if constitutional, must be +universal and supreme, in the utmost sense of the word. It is +therefore concluded that the colonies, by acknowledging the power of +regulation, acknowledged every other power." + +This sophism imposed upon a portion of the patriots of that day. Chief +Justice Marshall, in his life of Washington, says "that many of the +best-informed men in Massachusetts had perhaps adopted the opinion of +the parliamentary right of internal government over the colonies;" +"that the English statute book furnishes many instances of its +exercise;" "that in no case recollected, was their authority openly +controverted;" and "that the General Court of Massachusetts, on a late +occasion, openly recognised the principle." (Marsh. Wash., v. 2, p. +75, 76.) + +But the more eminent men of Massachusetts rejected it; and another +patriot of the time employs the instance to warn us of "the stealth +with which oppression approaches," and "the enormities towards which +precedents travel." And the people of the United States, as we have +seen, appealed to the last argument, rather than acquiesce in their +authority. Could it have been the purpose of Washington and his +illustrious associates, by the use of ambiguous, equivocal, and +expansive words, such as "rules," "regulations," "territory," to +re-establish in the Constitution of their country that _fort_ which +had been prostrated amid the toils and with the sufferings and +sacrifices of seven years of war? Are these words to be understood as +the Norths, the Grenvilles, Hillsboroughs, Hutchinsons, and +Dunmores--in a word, as George III would have understood them--or are +we to look for their interpretation to Patrick Henry or Samuel Adams, +to Jefferson, and Jay, and Dickinson; to the sage Franklin, or to +Hamilton, who from his early manhood was engaged in combating British +constructions of such words? We know that the resolution of Congress +of 1780 contemplated that the new States to be formed under their +recommendation were to have the same rights of sovereignty, freedom, +and independence, as the old. That every resolution, cession, compact, +and ordinance, of the States, observed the same liberal principle. +That the Union of the Constitution is a union formed of equal States; +and that new States, when admitted, were to enter "this Union." Had +another union been proposed in "any pointed manner," it would have +encountered not only "strong" but successful opposition. The disunion +between Great Britain and her colonies originated in the antipathy of +the latter to "rules and regulations" made by a remote power +respecting their internal policy. In forming the Constitution, this +fact was ever present in the minds of its authors. The people were +assured by their most trusted statesmen "that the jurisdiction of the +Federal Government is limited to certain enumerated objects, which +concern all members of the republic," and "that the local or municipal +authorities form distinct portions of supremacy, no more subject +within their respective spheres to the general authority, than the +general authority is subject to them within its own sphere." Still, +this did not content them. Under the lead of Hancock and Samuel Adams, +of Patrick Henry and George Mason, they demanded an explicit +declaration that no more power was to be exercised than they had +delegated. And the ninth and tenth amendments to the Constitution were +designed to include the reserved rights of the States, and the people, +within all the sanctions of that instrument, and to bind the +authorities, State and Federal, by the judicial oath it prescribes, to +their recognition and observance. Is it probable, therefore, that the +supreme and irresponsible power, which is now claimed for Congress +over boundless territories, the use of which cannot fail to react upon +the political system of the States, to its subversion, was ever within +the contemplation of the statesmen who conducted the counsels of the +people in the formation of this Constitution? When the questions that +came to the surface upon the acquisition of Louisiana were presented +to the mind of Jefferson, he wrote: "I had rather ask an enlargement +of power from the nation, where it is found necessary, than to assume +it by a construction which would make our powers boundless. Our +peculiar security is in the possession of a written Constitution. Let +us not make it blank paper by construction. I say the same as to the +opinion of those who consider the grant of the treaty-making power as +boundless. If it is, then we have no Constitution. If it has bounds, +they can be no others than the definitions of the powers which that +instrument gives. It specifies and delineates the operations permitted +to the Federal Government, and gives the powers necessary to carry +them into execution." The publication of the journals of the Federal +Convention in 1819, of the debates reported by Mr. Madison in 1840, +and the mass of private correspondence of the early statesmen before +and since, enable us to approach the discussion of the aims of those +who made the Constitution, with some insight and confidence. + +I have endeavored, with the assistance of these, to find a solution +for the grave and difficult question involved in this inquiry. My +opinion is, that the claim for Congress of supreme power in the +Territories, under the grant to "dispose of and make all needful rules +and regulations respecting _territory_," is not supported by the +historical evidence drawn from the Revolution, the Confederation, or +the deliberations which preceded the ratification of the Federal +Constitution. The ordinance of 1787 depended upon the action of the +Congress of the Confederation, the assent of the State of Virginia, +and the acquiescence of the people who recognised the validity of that +plea of necessity which supported so many of the acts of the +Governments of that time; and the Federal Government accepted the +ordinance as a recognised and valid engagement of the Confederation. + +In referring to the precedents of 1798 and 1800, I find the +Constitution was plainly violated by the invasion of the rights of a +sovereign State, both of soil and jurisdiction; and in reference to +that of 1804, the wisest statesmen protested against it, and the +President more than doubted its policy and the power of the +Government. + +Mr. John Quincy Adams, at a later period, says of the last act, "that +the President found Congress mounted to the pitch of passing those +acts, without inquiring where they acquired the authority, and he +conquered his own scruples as they had done theirs." But this court +cannot undertake for themselves the same conquest. They acknowledge +that our peculiar security is in the possession of a written +Constitution, and they cannot make it blank paper by construction. + +They look to its delineation of the operations of the Federal +Government, and they must not exceed the limits it marks out, in their +administration. The court have said "that Congress cannot exercise +municipal jurisdiction, sovereignty, or eminent domain, within the +limits of a State or elsewhere, beyond what has been delegated." We +are then to find the authority for supreme power in the Territories in +the Constitution. What are the limits upon the operations of a +Government invested with legislative, executive, and judiciary powers, +and charged with the power to dispose of and to make all needful rules +and regulations respecting a vast public domain? The feudal system +would have recognised the claim made on behalf of the Federal +Government for supreme power over persons and things in the +Territories, as an incident to this title--that is, the title to +dispose of and make rules and regulations respecting it. + +The Norman lawyers of William the Conqueror would have yielded an +implicit assent to the doctrine, that a supreme sovereignty is an +inseparable incident to a grant to dispose of and to make all needful +rules and regulations respecting the public domain. But an American +patriot, in contrasting the European and American systems, may affirm, +"that European sovereigns give lands to their colonists, but reserve +to themselves a power to control their property, liberty, and +privileges; but the American Government sells the lands belonging to +the people of the several States (i.e., United States) to their +citizens, who are already in the possession of personal and political +rights, which the Government did not give, and cannot take away." And +the advocates for Government sovereignty in the Territories have been +compelled to abate a portion of the pretensions originally made in its +behalf, and to admit that the constitutional prohibitions upon +Congress operate in the Territories. But a constitutional prohibition +is not requisite to ascertain a limitation upon the authority of the +several departments of the Federal Government. Nor are the States or +people restrained by any enumeration or definition of their rights or +liberties. + +To impair or diminish either, the department must produce an authority +from the people themselves, in their Constitution; and, as we have +seen, a power to make rules and regulations respecting the public +domain does not confer a municipal sovereignty over persons and things +upon it. But as this is "thought their fort" by our adversaries, I +propose a more definite examination of it. We have seen, Congress does +not dispose of or make rules and regulations respecting domain +belonging to themselves, but belonging to the United States. + +These conferred on their mandatory, Congress, authority to dispose of +the territory which belonged to them in common; and to accomplish that +object beneficially and effectually, they gave an authority to make +suitable rules and regulations respecting it. When the power of +disposition is fulfilled, the authority to make rules and regulations +terminates, for it attaches only upon territory "belonging to the +United States." + +Consequently, the power to make rules and regulations, from the nature +of the subject, is restricted to such administrative and conservatory +acts as are needful for the preservation of the public domain, and its +preparation for sale or disposition. The system of land surveys; the +reservations for schools, internal improvements, military sites, and +public buildings; the pre-emption claims of settlers; the +establishment of land offices, and boards of inquiry, to determine the +validity of land titles; the modes of entry, and sale, and of +conferring titles; the protection of the lands from trespass and +waste; the partition of the public domain into municipal subdivisions, +having reference to the erection of Territorial Governments and +States; and perhaps the selection, under their authority, of suitable +laws for the protection of the settlers, until there may be a +sufficient number of them to form a self-sustaining municipal +Government--these important rules and regulations will sufficiently +illustrate the scope and operation of the 3d section of the 4th +article of the Constitution. But this clause in the Constitution does +not exhaust the powers of Congress within the territorial +subdivisions, or over the persons who inhabit them. Congress may +exercise there all the powers of Government which belong to them as +the Legislature of the United States, of which these Territories make +a part. (Loughborough _v._ Blake, 5 Wheat., 317.) Thus the laws of +taxation, for the regulation of foreign, Federal, and Indian commerce, +and so for the abolition of the slave trade, for the protection of +copyrights and inventions, for the establishment of postal +communication and courts of justice, and for the punishment of crimes, +are as operative there as within the States. I admit that to mark the +bounds for the jurisdiction of the Government of the United States +within the Territory, and of its power in respect to persons and +things within the municipal subdivisions it has created, is a work of +delicacy and difficulty, and, in a great measure, is beyond the +cognizance of the judiciary department of that Government. How much +municipal power may be exercised by the people of the Territory, +before their admission to the Union, the courts of justice cannot +decide. This must depend, for the most part, on political +considerations, which cannot enter into the determination of a case of +law or equity. I do not feel called upon to define the jurisdiction of +Congress. It is sufficient for the decision of this case to ascertain +whether the residuary sovereignty of the States or people has been +invaded by the 8th section of the act of 6th March, 1820, I have +cited, in so far as it concerns the capacity and _status_ of persons +in the condition and circumstances of the plaintiff and his family. + +These States, at the adoption of the Federal Constitution, were +organized communities, having distinct systems of municipal law, +which, though derived from a common source, and recognising in the +main similar principles, yet in some respects had become unlike, and +on a particular subject promised to be antagonistic. + +Their systems provided protection for life, liberty, and property, +among their citizens, and for the determination of the condition and +capacity of the persons domiciled within their limits. These +institutions, for the most part, were placed beyond the control of the +Federal Government. The Constitution allows Congress to coin money, +and regulate its value; to regulate foreign and Federal commerce; to +secure, for a limited period, to authors and inventors, a property in +their writings and discoveries; and to make rules concerning captures +in war; and, within the limits of these powers, it has exercised, +rightly, to a greater or less extent, the power to determine what +shall and what shall not be property. + +But the great powers of war and negotiation, finance, postal +communication, and commerce, in general, when employed in respect to +the property of a citizen, refer to, and depend upon, the municipal +laws of the States, to ascertain and determine what is property, and +the rights of the owner, and the tenure by which it is held. + +Whatever these Constitutions and laws validly determine to be +property, it is the duty of the Federal Government, through the domain +of jurisdiction merely Federal, to recognise to be property. + +And this principle follows from the structure of the respective +Governments, State and Federal, and their reciprocal relations. They +are different agents and trustees of the people of the several States, +appointed with different powers and with distinct purposes, but whose +acts, within the scope of their respective jurisdictions, are mutually +obligatory. They are respectively the depositories of such powers of +legislation as the people were willing to surrender, and their duty is +to co-operate within their several jurisdictions to maintain the +rights of the same citizens under both Governments unimpaired. A +proscription, therefore, of the Constitution and laws of one or more +States, determining property, on the part of the Federal Government, +by which the stability of its social system may be endangered, is +plainly repugnant to the conditions on which the Federal Constitution +was adopted, or which that Government was designed to accomplish. Each +of the States surrendered its powers of war and negotiation, to raise +armies and to support a navy, and all of these powers are sometimes +required to preserve a State from disaster and ruin. The Federal +Government was constituted to exercise these powers for the +preservation of the States, respectively, and to secure to all their +citizens the enjoyment of the rights which were not surrendered to the +Federal Government. The provident care of the statesmen who projected +the Constitution was signalized by such a distribution of the powers +of Government as to exclude many of the motives and opportunities for +promoting provocations and spreading discord among the States, and for +guarding against those partial combinations, so destructive of the +community of interest, sentiment, and feeling, which are so essential +to the support of the Union. The distinguishing features of their +system consist in the exclusion of the Federal Government from the +local and internal concerns of, and in the establishment of an +independent internal Government within, the States. And it is a +significant fact in the history of the United States, that those +controversies which have been productive of the greatest animosity, +and have occasioned most peril to the peace of the Union, have had +their origin in the well-sustained opinion of a minority among the +people, that the Federal Government had overstepped its constitutional +limits to grant some exclusive privilege, or to disturb the legitimate +distribution of property or power among the States or individuals. Nor +can a more signal instance of this be found than is furnished by the +act before us. No candid or rational man can hesitate to believe, that +if the subject of the eighth section of the act of March, 1820, had +never been introduced into Congress and made the basis of legislation, +no interest common to the Union would have been seriously affected. +And, certainly, the creation, within this Union, of large +confederacies of unfriendly and frowning States, which has been the +tendency, and, to an alarming extent, the result, produced by the +agitation arising from it, does not commend it to the patriot or +statesman. This court have determined that the intermigration of +slaves was not committed to the jurisdiction or control of Congress. +Wherever a master is entitled to go within the United States, his +slave may accompany him, without any impediment from, or fear of, +Congressional legislation or interference. The question then arises, +whether Congress, which can exercise no jurisdiction over the +relations of master and slave within the limits of the Union, and is +bound to recognise and respect the rights and relations that validly +exist under the Constitutions and laws of the States, can deny the +exercise of those rights, and prohibit the continuance of those +relations, within the Territories. + +And the citation of State statutes prohibiting the immigration of +slaves, and of the decisions of State courts enforcing the forfeiture +of the master's title in accordance with their rule, only darkens the +discussion. For the question is, have Congress the municipal +sovereignty in the Territories which the State Legislatures have +derived from the authority of the people, and exercise in the States? + +And this depends upon the construction of the article in the +Constitution before referred to. + +And, in my opinion, that clause confers no power upon Congress to +dissolve the relations of the master and slave on the domain of the +United States, either within or without any of the States. + +The eighth section of the act of Congress of the 6th of March, 1820, +did not, in my opinion, operate to determine the domestic condition +and _status_ of the plaintiff and his family during their sojourn in +Minnesota Territory, or after their return to Missouri. + +The question occurs as to the judgment to be given in this case. It +appeared upon the trial that the plaintiff, in 1834, was in a state of +slavery in Missouri, and he had been in Missouri for near fifteen +years in that condition when this suit was brought. Nor does it appear +that he at any time possessed another state or condition, _de facto_. +His claim to freedom depends upon his temporary elocation, from the +domicil of his origin, in company with his master, to communities +where the law of slavery did not prevail. My examination is confined +to the case, as it was submitted upon uncontested evidence, upon +appropriate issues to the jury, and upon the instructions given and +refused by the court upon that evidence. My opinion is, that the +opinion of the Circuit Court was correct upon all the claims involved +in those issues, and that the verdict of the jury was justified by the +evidence and instructions. + +The jury have returned that the plaintiff and his family are slaves. + +Upon this record, it is apparent that this is not a controversy +between citizens of different States; and that the plaintiff, at no +period of the life which has been submitted to the view of the court, +has had a capacity to maintain a suit in the courts of the United +States. And in so far as the argument of the Chief Justice upon the +plea in abatement has a reference to the plaintiff or his family, in +any of the conditions or circumstances of their lives, as presented in +the evidence, I concur in that portion of his opinion. I concur in the +judgment which expresses the conclusion that the Circuit Court should +not have rendered a general judgment. + +The capacity of the plaintiff to sue is involved in the pleas in bar, +and the verdict of the jury discloses an incapacity under the +Constitution. Under the Constitution of the United States, his is an +incapacity to sue in their courts, while, by the laws of Missouri, the +operation of the verdict would be more extensive. I think it a safe +conclusion to enforce the lesser disability imposed by the +Constitution of the United States, and leave to the plaintiff all his +rights in Missouri. I think the judgment should be affirmed, on the +ground that the Circuit Court had no jurisdiction, or that the case +should be reversed and remanded, that the suit may be dismissed. + + * * * * * + +Mr. Justice CATRON. + +The defendant pleaded to the jurisdiction of the Circuit Court, that +the plaintiff was a negro of African blood; the descendant of +Africans, who had been imported and sold in this country as slaves, +and thus had no capacity as a citizen of Missouri to maintain a suit +in the Circuit Court. The court sustained a demurrer to this plea, and +a trial was had upon the pleas, of the general issue, and also that +the plaintiff and his family were slaves, belonging to the defendant. +In this trial, a verdict was given for the defendant. + +The judgment of the Circuit Court upon the plea in abatement is not +open, in my opinion, to examination in this court upon the plaintiff's +writ. + +The judgment was given for him conformably to the prayer of his +demurrer. He cannot assign an error in such a judgment. (Tidd's Pr., +1163; 2 Williams's Saund., 46 a; 2 Iredell N.C., 87; 2 W. and S., +391.) Nor does the fact that the judgment was given on a plea to the +jurisdiction, avoid the application of this rule. (Capron _v._ Van +Noorden, 2 Cr., 126; 6 Wend., 465; 7 Met., 598; 5 Pike, 1005.) + +The declaration discloses a case within the jurisdiction of the +court--a controversy between citizens of different States. The plea in +abatement, impugning these jurisdictional averments, was waived when +the defendant answered to the declaration by pleas to the merits. The +proceedings on that plea remain a part of the technical record, to +show the history of the case, but are not open to the review of this +court by a writ of error. The authorities are very conclusive on this +point. Shepherd _v._ Graves, 14 How., 505; Bailey _v._ Dozier, 6 How., +23; 1 Stewart, (Alabama,) 46; 10 Ben. Monroe, (Kentucky,) 555; 2 +Stewart, (Alabama,) 370, 443; 2 Scammon, (Illinois,) 78. Nor can the +court assume, as admitted facts, the averments of the plea from the +confession of the demurrer. That confession was for a single object, +and cannot be used for any other purpose than to test the validity of +the plea. Tompkins _v._ Ashley, 1 Moody and Mackin, 32; 33 Maine, 96, +100. + +There being nothing in controversy here but the merits, I will proceed +to discuss them. + +The plaintiff claims to have acquired property in himself, and became +free, by being kept in Illinois during two years. + +The Constitution, laws, and policy, of Illinois, are somewhat peculiar +respecting slavery. Unless the master becomes an inhabitant of that +State, the slaves he takes there do not acquire their freedom; and if +they return with their master to the slave State of his domicil, they +cannot assert their freedom after their return. For the reasons and +authorities on this point, I refer to the opinion of my brother +Nelson, with which I not only concur, but think his opinion is the +most conclusive argument on the subject within my knowledge. + +It is next insisted for the plaintiff, that his freedom (and that of +his wife and eldest child) was obtained by force of the act of +Congress of 1820, usually known as the Missouri compromise act, which +declares: "That in all that territory ceded by France to the United +States, which lies north of thirty-six degrees thirty minutes north +latitude, slavery and involuntary servitude shall be, and are hereby, +_forever prohibited_." + +From this prohibition, the territory now constituting the State of +Missouri was excepted; which exception to the stipulation gave it the +designation of a compromise. + +The first question presented on this act is, whether Congress had +power to make such compromise. For, if power was wanting, then no +freedom could be acquired by the defendant under the act. + +That Congress has no authority to pass laws and bind men's rights +beyond the powers conferred by the Constitution, is not open to +controversy. But it is insisted that, by the Constitution, Congress +has power to legislate for and govern the Territories of the United +States, and that by force of the power to govern, laws could be +enacted, prohibiting slavery in any portion of the Louisiana +Territory; and, of course, to abolish slavery _in all_ parts of it, +whilst it was, or is, governed as a Territory. + +My opinion is, that Congress is vested with power to govern the +Territories of the United States by force of the third section of the +fourth article of the Constitution. And I will state my reasons for +this opinion. + +Almost every provision in that instrument has a history that must be +understood, before the brief and sententious language employed can be +comprehended in the relations its authors intended. We must bring +before us the state of things presented to the Convention, and in +regard to which it acted, when the compound provision was made, +declaring: 1st. That "new States may be admitted by the Congress into +this Union." 2d. "The Congress shall have power to dispose of and make +all needful rules and regulations respecting the territory or other +property belonging to the United States. And nothing in this +Constitution shall be so construed as to prejudice any claims of the +United States, or any particular State." + +Having ascertained the historical facts giving rise to these +provisions, the difficulty of arriving at the true meaning of the +language employed will be greatly lessened. + +The history of these facts is substantially as follows: + +The King of Great Britain, by his proclamation of 1763, virtually +claimed that the country west of the mountains had been conquered from +France, and ceded to the Crown of Great Britain by the treaty of Paris +of that year, and he says: "We reserve it under our sovereignty, +protection, and dominion, for the use of the Indians." + +This country was conquered from the Crown of Great Britain, and +surrendered to the United States by the treaty of peace of 1783. The +colonial charters of Virginia, North Carolina, and Georgia, included +it. Other States set up pretensions of claim to some portions of the +territory north of the Ohio, but they were of no value, as I suppose. +(5 Wheat., 375.) + +As this vacant country had been won by the blood and treasure of all +the States, those whose charters did not reach it, insisted that the +country belonged to the States united, and that the lands should be +disposed of for the benefit of the whole; and to which end, the +western territory should be ceded to the States united. The contest +was stringent and angry, long before the Convention convened, and +deeply agitated that body. As a matter of justice, and to quiet the +controversy, Virginia consented to cede the country north of the Ohio +as early as 1783; and in 1784 the deed of cession was executed, by her +delegates in the Congress of the Confederation, conveying to the +United States in Congress assembled, for the benefit of said States, +"all right, title, and claim, as well of soil as of jurisdiction, +which this Commonwealth hath to the _territory_ or tract of country +within the limits of the Virginia charter, situate, lying, and being +to the northwest of the river Ohio." In 1787, (July 13,) the ordinance +was passed by the old Congress to govern the Territory. + +Massachusetts had ceded her pretension of claim to western territory +in 1785, Connecticut hers in 1786, and New York had ceded hers. In +August, 1787, South Carolina ceded to the Confederation her pretension +of claim to territory west of that State. And North Carolina was +expected to cede hers, which she did do, in April, 1790. And so +Georgia was confidently expected to cede her large domain, now +constituting the territory of the States of Alabama and Mississippi. + +At the time the Constitution was under consideration, there had been +ceded to the United States, or was shortly expected to be ceded, all +the western country, from the British Canada line to Florida, and from +the head of the Mississippi almost to its mouth, except that portion +which now constitutes the State of Kentucky. + +Although Virginia had conferred on the Congress of the Confederation +power to govern the Territory north of the Ohio, still, it cannot be +denied, as I think, that power was wanting to admit a new State under +the Articles of Confederation. + +With these facts prominently before the Convention, they proposed to +accomplish these ends: + +1st. To give power to admit new States. + +2d. To dispose of the public lands in the Territories, and such as +might remain undisposed of in the new States after they were admitted. + +And, thirdly, to give power to govern the different Territories as +incipient States, not of the Union, and fit them for admission. No one +in the Convention seems to have doubted that these powers were +necessary. As early as the third day of its session, (May 29th,) +Edmund Randolph brought forward a set of resolutions containing nearly +all the germs of the Constitution, the tenth of which is as follows: + +"_Resolved_, That provision ought to be made for the admission of +States lawfully arising within the limits of the United States, +whether from a voluntary junction of government and territory or +otherwise, with the consent of a number of voices in the National +Legislature less than the whole." + +August 18th, Mr. Madison submitted, in order to be referred to the +committee of detail, the following powers as proper to be added to +those of the General Legislature: + +"To dispose of the unappropriated lands of the United States." "To +institute temporary Governments for new States arising therein." (3 +Madison Papers, 1353.) + +These, with the resolution, that a district for the location of the +seat of Government should be provided, and some others, were referred, +without a dissent, to the committee of detail, to arrange and put them +into satisfactory language. + +Gouverneur Morris constructed the clauses, and combined the views of a +majority on the two provisions, to admit new States; and secondly, to +dispose of the public lands, and to govern the Territories, in the +mean time, between the cessions of the States and the admission into +the Union of new States arising in the ceded territory. (3 Madison +Papers, 1456 to 1466.) + +It was hardly possible to separate the power "to make all needful +rules and regulations" respecting the government of the territory and +the disposition of the public lands. + +North of the Ohio, Virginia conveyed the lands, and vested the +jurisdiction in the thirteen original States, before the Constitution +was formed. She had the sole title and sole sovereignty, and the same +power to cede, on any terms she saw proper, that the King of England +had to grant the Virginia colonial charter of 1609, or to grant the +charter of Pennsylvania to William Penn. The thirteen States, through +their representatives and deputed ministers in the old Congress, had +the same right to govern that Virginia had before the cession. +(Baldwin's Constitutional Views, 90.) And the sixth article of the +Constitution adopted all engagements entered into by the Congress of +the Confederation, as valid against the United States; and that the +laws, made in pursuance of the new Constitution, to carry out this +engagement, should be the supreme law of the land, and the judges +bound thereby. To give the compact, and the ordinance, which was part +of it, full effect under the new Government, the act of August 7th, +1789, was passed, which declares, "Whereas, in order that the +ordinance of the United States in Congress assembled, for the +government of the Territory northwest of the river Ohio, may have full +effect, it is requisite that certain provisions should be made, so as +to adapt the same to the present Constitution of the United States." +It is then provided that the Governor and other officers should be +appointed by the President, with the consent of the Senate; and be +subject to removal, &c., in like manner that they were by the old +Congress, whose functions had ceased. + +By the powers to govern, given by the Constitution, those amendments +to the ordinance could be made, but Congress guardedly abstained from +touching the compact of Virginia, further than to adapt it to the new +Constitution. + +It is due to myself to say, that it is asking much of a judge, who +has for nearly twenty years been exercising jurisdiction, from the +western Missouri line to the Rocky Mountains, and, on this +understanding of the Constitution, inflicting the extreme penalty of +death for crimes committed where the direct legislation of Congress +was the only rule, to agree that he had been all the while acting in +mistake, and as an usurper. + +More than sixty years have passed away since Congress has exercised +power to govern the Territories, by its legislation directly, or by +Territorial charters, subject to repeal at all times, and it is now +too late to call that power into question, if this court could +disregard its own decisions; which it cannot do, as I think. It was +held in the case of Cross _v._ Harrison, (16 How., 193-'4,) that the +sovereignty of California was in the United States, in virtue of the +Constitution, by which power had been given to Congress to dispose of +and make all needful rules and regulations respecting the territory or +other property belonging to the United States, with the power to admit +new States into the Union. That decision followed preceding ones, +there cited. The question was then presented, how it was possible for +the judicial mind to conceive that the United States Government, +created solely by the Constitution, could, by a lawful treaty, acquire +territory over which the acquiring power had no jurisdiction to hold +and govern it, by force of the instrument under whose authority the +country was acquired; and the foregoing was the conclusion of this +court on the proposition. What was there announced, was most +deliberately done, and with a purpose. The only question here is, as I +think, how far the power of Congress is limited. + +As to the Northwest Territory, Virginia had the right to abolish +slavery there; and she did so agree in 1787, with the other States in +the Congress of the Confederation, by assenting to and adopting the +ordinance of 1787, for the government of the Northwest Territory. She +did this also by an act of her Legislature, passed afterwards, which +was a treaty in fact. + +Before the new Constitution was adopted, she had as much right to +treat and agree as any European Government had. And, having excluded +slavery, the new Government was bound by that engagement by article +six of the new Constitution. This only meant that slavery should not +exist whilst the United States exercised the power of government, in +the Territorial form; for, when a new State came in, it might do so, +with or without slavery. + +My opinion is, that Congress had no power, in face of the compact +between Virginia and the twelve other States, to _force_ slavery into +the Northwest Territory, because there, it was bound to that +"engagement," and could not break it. + +In 1790, North Carolina ceded her western territory, now the State of +Tennessee, and stipulated that the inhabitants thereof should enjoy +all the privileges and advantages of the ordinance for governing the +territory north of the Ohio river, and that Congress should assume the +government, and accept the cession, under the express conditions +contained in the ordinance: _Provided_, "That no regulation made, or +to be made, by Congress, shall tend to emancipate slaves." + +In 1802, Georgia ceded her western territory to the United States, +with the provision that the ordinance of 1787 should in all its parts +extend to the territory ceded, "that article only excepted which +forbids slavery." Congress had no more power to legislate slavery +_out_ from the North Carolina and Georgia cessions, than it had power +to legislate slavery in, north of the Ohio. No power existed in +Congress to legislate at all, affecting slavery, in either case. The +inhabitants, as respected this description of property, stood +protected whilst they were governed by Congress, in like manner that +they were protected before the cession was made, and when they were, +respectively, parts of North Carolina and Georgia. + +And how does the power of Congress stand west of the Mississippi +river? The country there was acquired from France, by treaty, in 1803. +It declares, that the First Consul, in the name of the French +Republic, doth hereby cede to the United States, in full sovereignty, +the colony or province of Louisiana, with all the rights and +appurtenances of the said territory. And, by article third, that "the +inhabitants of the ceded territory shall be incorporated in the Union +of the United States, and admitted as soon as possible, according to +the principles of the Federal Constitution, to the enjoyment of all +the rights, advantages, and immunities, of citizens of the United +States; and, in the mean time, they shall be maintained and protected +in the free enjoyment of their liberty, property, and the religion +which they profess." + +Louisiana was a province where slavery was not only lawful, but where +property in slaves was the most valuable of all personal property. The +province was ceded as a unit, with an equal right pertaining to all +its inhabitants, in every part thereof, to own slaves. It was, to a +great extent, a vacant country, having in it few civilized +inhabitants. No one portion of the colony, of a proper size for a +State of the Union had a sufficient number of inhabitants to claim +admission into the Union. To enable the United States to fulfil the +treaty, additional population was indispensable, and obviously desired +with anxiety by both sides, so that the whole country should, as soon +as possible, become States of the Union. And for this contemplated +future population, the treaty as expressly provided as it did for the +inhabitants residing in the province when the treaty was made. All +these were to be protected "_in the mean time_;" that is to say, at +all times, between the date of the treaty and the time when the +portion of the Territory where the inhabitants resided was admitted +into the Union as a State. + +At the date of the treaty, each inhabitant had the right to the _free_ +enjoyment of his property, alike with his liberty and his religion, in +every part of Louisiana; the province then being one country, he might +go everywhere in it, and carry his liberty, property, and religion, +with him, and in which he was to be maintained and protected, until he +became a citizen of a State of the Union of the United States. This +cannot be denied to the original inhabitants and their descendants. +And, if it be true that immigrants were equally protected, it must +follow that they can also stand on the treaty. + +The settled doctrine in the State courts of Louisiana is, that a +French subject coming to the Orleans Territory, after the treaty of +1803 was made, and before Louisiana was admitted into the Union, and +being an inhabitant at the time of the admission, became a citizen of +the United States by that act; that he was one of the inhabitants +contemplated by the third article of the treaty, which referred to all +the inhabitants embraced within the new State on its admission. + +That this is the true construction, I have no doubt. + +If power existed to draw a line at thirty-six degrees thirty minutes +north, so Congress had equal power to draw the line on the thirtieth +degree--that is, due west from the city of New Orleans--and to declare +that north of _that line_ slavery should never exist. Suppose this had +been done before 1812, when Louisiana came into the Union, and the +question of infraction of the treaty had then been presented on the +present assumption of power to prohibit slavery, who doubts what the +decision of this court would have been on such an act of Congress; +yet, the difference between the supposed line, and that on thirty-six +degrees thirty minutes north, is only in the degree of grossness +presented by the lower line. + +The Missouri compromise line of 1820 was very aggressive; it declared +that slavery was abolished forever throughout a country reaching from +the Mississippi river to the Pacific ocean, stretching over thirty-two +degrees of longitude, and twelve and a half degrees of latitude on its +eastern side, sweeping over four-fifths, to say no more, of the +original province of Louisiana. + +That the United States Government stipulated in favor of the +inhabitants to the extent here contended for, has not been seriously +denied, as far as I know; but the argument is, that Congress had +authority to _repeal_ the third article of the treaty of 1803, in so +far as it secured the right to hold slave property, in a portion of +the ceded territory, leaving the right to exist in other parts. In +other words, that Congress could repeal the third article entirely, at +its pleasure. This I deny. + +The compacts with North Carolina and Georgia were treaties also, and +stood on the same footing of the Louisiana treaty; on the assumption +of power to repeal the one, it must have extended to all, and Congress +could have excluded the slaveholder of North Carolina from the +enjoyment of his lands in the Territory now the State of Tennessee, +where the citizens of the mother State were the principal proprietors. + +And so in the case of Georgia. Her citizens could have been refused +the right to emigrate to the Mississippi or Alabama Territory, unless +they left their most valuable and cherished property behind them. + +The Constitution was framed in reference to facts then existing or +likely to arise: the instrument looked to no theories of Government. +In the vigorous debates in the Convention, as reported by Mr. Madison +and others, surrounding facts, and the condition and necessities of +the country, gave rise to almost every provision; and among those +facts, it was prominently true, that Congress dare not be intrusted +with power to provide that, if North Carolina or Georgia ceded her +western territory, the citizens of the State (in either case) could be +prohibited, at the pleasure of Congress, from removing to their lands, +then granted to a large extent, in the country likely to be ceded, +unless they left their slaves behind. That such an attempt, in the +face of a population fresh from the war of the Revolution, and then +engaged in war with the great confederacy of Indians, extending from +the mouth of the Ohio to the Gulf of Mexico, would end in open revolt, +all intelligent men knew. + +In view of these facts, let us inquire how the question stands by the +terms of the Constitution, aside from the treaty? How it stood in +public opinion when the Georgia cession was made, in 1802, is apparent +from the fact that no guaranty was required by Georgia of the United +States, for the protection of slave property. The Federal Constitution +was relied on, to secure the rights of Georgia and her citizens during +the Territorial condition of the country. She relied on the +indisputable truths, that the States were by the Constitution made +equals in political rights, and equals in the right to participate in +the common property of all the States united, and held in trust for +them. The Constitution having provided that "The citizens of each +State shall be entitled to all privileges and immunities of citizens +of the several States," the right to enjoy the territory as equals was +reserved to the States, and to the citizens of the States, +respectively. The cited clause is not that citizens of the United +States shall have equal privileges in the Territories, but the citizen +of each State shall come there in right of his State, and enjoy the +common property. He secures his equality through the equality of his +State, by virtue of that great fundamental condition of the Union--the +equality of the States. + +Congress cannot do indirectly what the Constitution prohibits +directly. If the slaveholder is prohibited from going to the Territory +with his slaves, who are parts of his family in name and in fact, it +will follow that men owning lawful property in their own States, +carrying with them the equality of their State to enjoy the common +property, may be told, you cannot come here with your slaves, and he +will be held out at the border. By this subterfuge, owners of slave +property, to the amount of thousand of millions, might be almost as +effectually excluded from removing into the Territory of Louisiana +north of thirty-six degrees thirty minutes, as if the law declared +that owners of slaves, as a class, should be excluded, even if their +slaves were left behind. + +Just as well might Congress have said to those of the North, you shall +not introduce into the territory south of said line your cattle or +horses, as the country is already overstocked; nor can you introduce +your tools of trade, or machines, as the policy of Congress is to +encourage the culture of sugar and cotton south of the line, and so to +provide that the Northern people shall manufacture for those of the +South, and barter for the staple articles slave labor produces. And +thus the Northern farmer and mechanic would be held out, as the +slaveholder was for thirty years, by the Missouri restriction. + +If Congress could prohibit one species of property, lawful throughout +Louisiana when it was acquired, and lawful in the State from whence it +was brought, so Congress might exclude any or all property. + +The case before us will illustrate the construction contended for. Dr. +Emerson was a citizen of Missouri; he had an equal right to go to the +Territory with every citizen of other States. This is undeniable, as I +suppose. Scott was Dr. Emerson's lawful property in Missouri; he +carried his Missouri title with him; and the precise question here is, +whether Congress had the power to annul that title. It is idle to say, +that if Congress could not defeat the title _directly_, that it might +be done indirectly, by drawing a narrow circle around the slave +population of Upper Louisiana, and declaring that if the slave went +beyond it, he should be free. Such assumption is mere evasion, and +entitled to no consideration. And it is equally idle to contend, that +because Congress has express power to regulate commerce among the +Indian tribes, and to prohibit intercourse with the Indians, that +therefore Dr. Emerson's title might be defeated within the country +ceded by the Indians to the United States as early as 1805, and which +embraces Fort Snelling. (Am. State Papers, vol. 1, p. 734.) We _must_ +meet the question, whether Congress had the power to declare that a +citizen of a State, carrying with him his equal rights, secured to him +through his State, could be stripped of his goods and slaves, and be +deprived of any participation in the common property? If this be the +true meaning of the Constitution, equality of rights to enjoy a common +country (equal to a thousand miles square) may be cut off by a +geographical line, and a great portion of our citizens excluded from +it. + +Ingenious, indirect evasions of the Constitution have been attempted +and defeated heretofore. In the passenger cases, (7 How. R.,) the +attempt was made to impose a tax on the masters, crews, and passengers +of vessels, the Constitution having prohibited a tax on the vessel +itself; but this court held the attempt to be a mere evasion, and +pronounced the tax illegal. + +I admit that Virginia could, and lawfully did, prohibit slavery +northwest of the Ohio, by her charter of cession, and that the +territory was taken by the United States with this condition imposed. +I also admit that France could, by the treaty of 1803, have prohibited +slavery in any part of the ceded territory, and imposed it on the +United States as a fundamental condition of the cession, in the mean +time, till new States were admitted in the Union. + +I concur with Judge Baldwin, that Federal power is exercised over all +the territory within the United States, pursuant to the Constitution; +_and_, the conditions of the cession, whether it was a part of the +original territory of a State of the Union, or of a foreign State, +ceded by deed or treaty; the right of the United States in or over it +depends on the contract of cession, which operates to incorporate as +well the Territory as its inhabitants into the Union. (Baldwin's +Constitutional Views, 84.) + +My opinion is, that the third article of the treaty of 1803, ceding +Louisiana to the United States, stands protected by the Constitution, +and cannot be repealed by Congress. + +And, secondly, that the act of 1820, known as the Missouri +compromise, violates the most leading feature of the Constitution--a +feature on which the Union depends, and which secures to the +respective States and their citizens an entire EQUALITY of rights, +privileges, and immunities. + +On these grounds, I hold the compromise act to have been void; and, +consequently, that the plaintiff, Scott, can claim no benefit under +it. + +For the reasons above stated, I concur with my brother judges that the +plaintiff, Scott, is a slave, and was so when this suit was brought. + + * * * * * + +Mr. Justice McLEAN and Mr. Justice CURTIS dissented. + + +Mr. Justice McLEAN dissenting. + +This case is before us on a writ of error from the Circuit Court for +the district of Missouri. + +An action of trespass was brought, which charges the defendant with an +assault and imprisonment of the plaintiff, and also of Harriet Scott, +his wife, Eliza and Lizzie, his two children, on the ground that they +were his slaves, which was without right on his part, and against law. + +The defendant filed a plea in abatement, "that said causes of action, +and each and every of them, if any such accrued to the said Dred +Scott, accrued out of the jurisdiction of this court, and exclusively +within the jurisdiction of the courts of the State of Missouri, for +that to wit, 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 the +court can or will take further cognizance of the action aforesaid." + +To this a demurrer was filed, which, on argument, was sustained by the +court, the plea in abatement being held insufficient; the defendant +was ruled to plead over. Under this rule he pleaded: 1. Not guilty; 2. +That Dred Scott was a negro slave, the property of the defendant; and +3. That Harriet, the wife, and Eliza and Lizzie, the daughters of the +plaintiff, were the lawful slaves of the defendant. + +Issue was joined on the first plea, and replications of _de injuria_ +were filed to the other pleas. + +The parties agreed to the following facts: 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, Dr. Emerson +took the plaintiff from the State of Missouri to the post of 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, Dr. +Emerson removed the plaintiff from 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 latitude thirty-six degrees thirty +minutes north, and north of the State of Missouri. Dr. Emerson held +the plaintiff in slavery, at Fort Snelling, from the 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, Major +Taliaferro took Harriet to 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 Fort Snelling, +unto Dr. Emerson, who held her in slavery, at that place, until the +year 1838. + +In the year 1836, the plaintiff and Harriet were married at Fort +Snelling, with the consent of Dr. Emerson, who 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, Dr. Emerson removed the plaintiff and said Harriet +and their daughter Eliza from Fort Snelling to the State of Missouri, +where they have ever since resided. + +Before the commencement of the suit, Dr. Emerson sold and conveyed the +plaintiff, Harriet, Eliza, and Lizzie, to the defendant, as slaves, +and he has ever since claimed to hold them as slaves. + +At the times mentioned in the plaintiff's declaration, the defendant, +claiming to be the owner, laid his hands upon said plaintiff, Harriet, +Eliza, and Lizzie, and imprisoned them; doing in this respect, +however, no more than he might lawfully do, if they were of right his +slaves at such times. + +In the first place, the plea to the jurisdiction is not before us, on +this writ of error. A demurrer to the plea was sustained, which ruled +the plea bad, and the defendant, on leave, pleaded over. + +The decision on the demurrer was in favor of the plaintiff; and as the +plaintiff prosecutes this writ of error, he does not complain of the +decision on the demurrer. The defendant might have complained of this +decision, as against him, and have prosecuted a writ of error, to +reverse it. But as the case, under the instruction of the court to the +jury, was decided in his favor, of course he had no ground of +complaint. + +But it is said, if the court, on looking at the record, shall clearly +perceive that the Circuit Court had no jurisdiction, it is a ground +for the dismissal of the case. This may be characterized as rather a +sharp practice, and one which seldom, if ever, occurs. No case was +cited in the argument as authority, and not a single case precisely in +point is recollected in our reports. The pleadings do not show a want +of jurisdiction. This want of jurisdiction can only be ascertained by +a judgment on the demurrer to the special plea. No such case, it is +believed, can be cited. But if this rule of practice is to be applied +in this case, and the plaintiff in error is required to answer and +maintain as well the points ruled in his favor, as to show the error +of those ruled against him, he has more than an ordinary duty to +perform. Under such circumstances, the want of jurisdiction in the +Circuit Court must be so clear as not to admit of doubt. Now, the plea +which raises the question of jurisdiction, in my judgment, is +radically defective. The gravamen of the plea is this: "That the +plaintiff is a negro of African descent, his ancestors being of pure +African blood, and were brought into this country, and sold as negro +slaves." + +There is no averment in this plea which shows or conduces to show an +inability in the plaintiff to sue in the Circuit Court. It does not +allege that the plaintiff had his domicil in any other State, nor that +he is not a free man in Missouri. He is averred to have had a negro +ancestry, but this does not show that he is not a citizen of Missouri, +within the meaning of the act of Congress authorizing him to sue in +the Circuit Court. It has never been held necessary, to constitute a +citizen within the act, that he should have the qualifications of an +elector. Females and minors may sue in the Federal courts, and so may +any individual who has a permanent domicil in the State under whose +laws his rights are protected, and to which he owes allegiance. + +Being born under our Constitution and laws, no naturalization is +required, as one of foreign birth, to make him a citizen. The most +general and appropriate definition of the term citizen is "a freeman." +Being a freeman, and having his domicil in a State different from that +of the defendant, he is a citizen within the act of Congress, and the +courts of the Union are open to him. + +It has often been held, that the jurisdiction, as regards parties, can +only be exercised between citizens of different States, and that a +mere residence is not sufficient; but this has been said to +distinguish a temporary from a permanent residence. + +To constitute a good plea to the jurisdiction, it must negative those +qualities and rights which enable an individual to sue in the Federal +courts. This has not been done; and on this ground the plea was +defective, and the demurrer was properly sustained. No implication can +aid a plea in abatement or in bar; it must be complete in itself; the +facts stated, if true, must abate or bar the right of the plaintiff to +sue. This is not the character of the above plea. The facts stated, if +admitted, are not inconsistent with other facts, which may be +presumed, and which bring the plaintiff within the act of Congress. + +The pleader has not the boldness to allege that this plaintiff is a +slave, as that would assume against him the matter in controversy, and +embrace the entire merits of the case in a plea to the jurisdiction. +But beyond the facts set out in the plea, the court, to sustain it, +must assume the plaintiff to be a slave, which is decisive on the +merits. This is a short and an effectual mode of deciding the cause; +but I am yet to learn that it is sanctioned by any known rule of +pleading. + +The defendant's counsel complain, that if the court take jurisdiction +on the ground that the plaintiff is free, the assumption is against +the right of the master. This argument is easily answered. In the +first place, the plea does not show him to be a slave; it does not +follow that a man is not free whose ancestors were slaves. The reports +of the Supreme Court of Missouri show that this assumption has many +exceptions; and there is no averment in the plea that the plaintiff is +not within them. + +By all the rules of pleading, this is a fatal defect in the plea. If +there be doubt, what rule of construction has been established in the +slave States? In Jacob _v._ Sharp, (Meigs's Rep., Tennessee, 114,) the +court held, when there was doubt as to the construction of a will +which emancipated a slave, "it must be construed to be subordinate to +the higher and more important right of freedom." + +No injustice can result to the master, from an exercise of +jurisdiction in this cause. Such a decision does not in any degree +affect the merits of the case; it only enables the plaintiff to assert +his claims to freedom before this tribunal. If the jurisdiction be +ruled against him, on the ground that he is a slave, it is decisive of +his fate. + +It has been argued that, if a colored person be made a citizen of a +State, he cannot sue in the Federal court. The Constitution declares +that Federal jurisdiction "may be exercised between citizens of +different States," and the same is provided in the act of 1789. The +above argument is properly met by saying that the Constitution was +intended to be a practical instrument; and where its language is too +plain to be misunderstood, the argument ends. + +In Chiræ _v._ Chiræ, (2 Wheat., 261; 4 Curtis, 99,) this court says: +"That the power of naturalization is exclusively in Congress does not +seem to be, and certainly ought not to be, controverted." No person +can legally be made a citizen of a State, and consequently a citizen +of the United States, of foreign birth, unless he be naturalized under +the acts of Congress. Congress has power "to establish a uniform rule +of naturalization." + +It is a power which belongs exclusively to Congress, as intimately +connected with our Federal relations. A State may authorize foreigners +to hold real estate within its jurisdiction, but it has no power to +naturalize foreigners, and give them the rights of citizens. Such a +right is opposed to the acts of Congress on the subject of +naturalization, and subversive of the Federal powers. I regret that +any countenance should be given from this bench to a practice like +this in some of the States, which has no warrant in the Constitution. + +In the argument, it was said that a colored citizen would not be an +agreeable member of society. This is more a matter of taste than of +law. Several of the States have admitted persons of color to the right +of suffrage, and in this view have recognised them as citizens; and +this has been done in the slave as well as the free States. On the +question of citizenship, it must be admitted that we have not been +very fastidious. Under the late treaty with Mexico, we have made +citizens of all grades, combinations, and colors. The same was done in +the admission of Louisiana and Florida. No one ever doubted, and no +court ever held, that the people of these Territories did not become +citizens under the treaty. They have exercised all the rights of +citizens, without being naturalized under the acts of Congress. + +There are several important principles involved in this case, which +have been argued, and which may be considered under the following +heads: + +1. The locality of slavery, as settled by this court and the courts of +the States. + +2. The relation which the Federal Government bears to slavery in the +States. + +3. The power of Congress to establish Territorial Governments, and to +prohibit the introduction of slavery therein. + +4. The effect of taking slaves into a new State or Territory, and so +holding them, where slavery is prohibited. + +5. Whether the return of a slave under the control of his master, +after being entitled to his freedom, reduces him to his former +condition. + +6. Are the decisions of the Supreme Court of Missouri, on the +questions before us, binding on this court, within the rule adopted. + +In the course of my judicial duties, I have had occasion to consider +and decide several of the above points. + +1. As to the locality of slavery. The civil law throughout the +Continent of Europe, it is believed, without an exception, is, that +slavery can exist only within the territory where it is established; +and that, if a slave escapes, or is carried beyond such territory, his +master cannot reclaim him, unless by virtue of some express +stipulation. (Grotius, lib. 2, chap. 15, 5, 1; lib. 10, chap. 10, 2, +1; Wicqueposts Ambassador, lib. 1, p. 418; 4 Martin, 385; Case of the +Creole in the House of Lords, 1842; 1 Phillimore on International Law, +316, 335.) + +There is no nation in Europe which considers itself bound to return to +his master a fugitive slave, under the civil law or the law of +nations. On the contrary, the slave is held to be free where there is +no treaty obligation, or compact in some other form, to return him to +his master. The Roman law did not allow freedom to be sold. An +ambassador or any other public functionary could not take a slave to +France, Spain, or any other country of Europe, without emancipating +him. A number of slaves escaped from a Florida plantation, and were +received on board of ship by Admiral Cochrane; by the King's Bench, +they were held to be free. (2 Barn. and Cres., 440.) + +In the great and leading case of Prigg _v._ The State of Pennsylvania, +(16 Peters, 594; 14 Curtis, 421,) this court say that, by the general +law of nations, no nation is bound to recognise the state of slavery, +as found within its territorial dominions, where it is in opposition +to its own policy and institutions, in favor of the subjects of other +nations where slavery is organized. If it does it, it is as a matter +of comity, and not as a matter of international right. The state of +slavery is deemed to be a mere municipal regulation, founded upon and +limited to the range of the territorial laws. This was fully +recognised in Somersett's case, (Lafft's Rep., 1; 20 Howell's State +Trials, 79,) which was decided before the American Revolution. + +There was some contrariety of opinion among the judges on certain +points ruled in Prigg's case, but there was none in regard to the +great principle, that slavery is limited to the range of the laws +under which it is sanctioned. + +No case in England appears to have been more thoroughly examined than +that of Somersett. The judgment pronounced by Lord Mansfield was the +judgment of the Court of King's Bench. The cause was argued at great +length, and with great ability, by Hargrave and others, who stood +among the most eminent counsel in England. It was held under +advisement from term to term, and a due sense of its importance was +felt and expressed by the Bench. + +In giving the opinion of the court, Lord Mansfield said: + +"The state of slavery is of such a nature that it is incapable of +being introduced on any reasons, moral or political, but only by +positive law, which preserves its force long after the reasons, +occasion, and time itself, from whence it was created, is erased from +the memory; it is of a nature that nothing can be suffered to support +it but positive law." + +He referred to the contrary opinion of Lord Hardwicke, in October, +1749, as Chancellor: "That he and Lord Talbot, when Attorney and +Solicitor General, were of opinion that no such claim, as here +presented, for freedom, was valid." + +The weight of this decision is sought to be impaired, from the terms +in which it was described by the exuberant imagination of Curran. The +words of Lord Mansfield, in giving the opinion of the court, were such +as were fit to be used by a great judge, in a most important case. It +is a sufficient answer to all objections to that judgment, that it was +pronounced before the Revolution, and that it was considered by this +court as the highest authority. For near a century, the decision in +Somersett's case has remained the law of England. The case of the +slave Grace, decided by Lord Stowell in 1827, does not, as has been +supposed, overrule the judgment of Lord Mansfield. Lord Stowell held +that, during the residence of the slave in England, "No dominion, +authority, or coercion, can be exercised over him." Under another +head, I shall have occasion to examine the opinion in the case of +Grace. + +To the position, that slavery can only exist except under the +authority of law, it is objected, that in few if in any instances has +it been established by statutory enactment. This is no answer to the +doctrine laid down by the court. Almost all the principles of the +common law had their foundation in usage. Slavery was introduced into +the colonies of this country by Great Britain at an early period of +their history, and it was protected and cherished, until it became +incorporated into the colonial policy. It is immaterial whether a +system of slavery was introduced by express law, or otherwise, if it +have the authority of law. There is no slave State where the +institution is not recognised and protected by statutory enactments +and judicial decisions. Slaves are made property by the laws of the +slave States, and as such are liable to the claims of creditors; they +descend to heirs, are taxed, and in the South they are a subject of +commerce. + +In the case of Rankin _v._ Lydia, (2 A.K. Marshall's Rep.,) Judge +Mills, speaking for the Court of Appeals of Kentucky, says: "In +deciding the question, (of slavery,) we disclaim the influence of the +general principles of liberty, which we all admire, and conceive it +ought to be decided by the law as it is, and not as it ought to be. +Slavery is sanctioned by the laws of this State, and the right to hold +slaves under our municipal regulations is unquestionable. But we view +this as a right existing by positive law of a municipal character, +without foundation in the law of nature, or the unwritten and common +law." + +I will now consider the relation which the Federal Government bears to +slavery in the States: + +Slavery is emphatically a State institution. In the ninth section of +the first article of the Constitution, it is provided "that the +migration or importation of such persons as any of the States now +existing shall think proper to admit, shall not be prohibited by the +Congress prior to the year 1808, but a tax or duty may be imposed on +such importation, not exceeding ten dollars for each person." + +In the Convention, it was proposed by a committee of eleven to limit +the importation of slaves to the year 1800, when Mr. Pinckney moved to +extend the time to the year 1808. This motion was carried--New +Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South +Carolina, and Georgia, voting in the affirmative; and New Jersey, +Pennsylvania, and Virginia, in the negative. In opposition to the +motion, Mr. Madison said: "Twenty years will produce all the mischief +that can be apprehended from the liberty to import slaves; so long a +term will be more dishonorable to the American character than to say +nothing about it in the Constitution." (Madison Papers.) + +The provision in regard to the slave trade shows clearly that Congress +considered slavery a State institution, to be continued and regulated +by its individual sovereignty; and to conciliate that interest, the +slave trade was continued twenty years, not as a general measure, but +for the "benefit of such States as shall think proper to encourage +it." + +In the case of Groves _v._ Slaughter, (15 Peters, 449; 14 Curtis, +137,) Messrs. Clay and Webster contended that, under the commercial +power, Congress had a right to regulate the slave trade among the +several States; but the court held that Congress had no power to +interfere with slavery as it exists in the States, or to regulate what +is called the slave trade among them. If this trade were subject to +the commercial power, it would follow that Congress could abolish or +establish slavery in every State of the Union. + +The only connection which the Federal Government holds with slaves in +a State, arises from that provision of the Constitution which declares +that "No person held to service or labor in one State, under the laws +thereof, escaping into another, shall, in consequence of any law or +regulation therein, be discharged from such service or labor, but +shall be delivered up, on claim of the party to whom such service or +labor may be due." + +This being a fundamental law of the Federal Government, it rests +mainly for its execution, as has been held, on the judicial power of +the Union; and so far as the rendition of fugitives from labor has +become a subject of judicial action, the Federal obligation has been +faithfully discharged. + +In the formation of the Federal Constitution, care was taken to confer +no power on the Federal Government to interfere with this institution +in the States. In the provision respecting the slave trade, in fixing +the ratio of representation, and providing for the reclamation of +fugitives from labor, slaves were referred to as persons, and in no +other respect are they considered in the Constitution. + +We need not refer to the mercenary spirit which introduced the +infamous traffic in slaves, to show the degradation of negro slavery +in our country. This system was imposed upon our colonial settlements +by the mother country, and it is due to truth to say that the +commercial colonies and States were chiefly engaged in the traffic. +But we know as a historical fact, that James Madison, that great and +good man, a leading member in the Federal Convention, was solicitous +to guard the language of that instrument so as not to convey the idea +that there could be property in man. + +I prefer the lights of Madison, Hamilton, and Jay, as a means of +construing the Constitution in all its bearings, rather than to look +behind that period, into a traffic which is now declared to be piracy, +and punished with death by Christian nations. I do not like to draw +the sources of our domestic relations from so dark a ground. Our +independence was a great epoch in the history of freedom; and while I +admit the Government was not made especially for the colored race, yet +many of them were citizens of the New England States, and exercised +the rights of suffrage when the Constitution was adopted, and it was +not doubted by any intelligent person that its tendencies would +greatly ameliorate their condition. + +Many of the States, on the adoption of the Constitution, or shortly +afterward, took measures to abolish slavery within their respective +jurisdictions; and it is a well-known fact that a belief was cherished +by the leading men, South as well as North, that the institution of +slavery would gradually decline, until it would become extinct. The +increased value of slave labor, in the culture of cotton and sugar, +prevented the realization of this expectation. Like all other +communities and States, the South were influenced by what they +considered to be their own interests. + +But if we are to turn our attention to the dark ages of the world, why +confine our view to colored slavery? On the same principles, white men +were made slaves. All slavery has its origin in power, and is against +right. + +The power of Congress to establish Territorial Governments, and to +prohibit the introduction of slavery therein, is the next point to be +considered. + +After the cession of western territory by Virginia and other States, +to the United States, the public attention was directed to the best +mode of disposing of it for the general benefit. While in attendance +on the Federal Convention, Mr. Madison, in a letter to Edmund +Randolph, dated the 22d April, 1787, says: "Congress are deliberating +on the plan most eligible for disposing of the western territory not +yet surveyed. Some alteration will probably be made in the ordinance +on that subject." And in the same letter he says: "The inhabitants of +the Illinois complain of the land jobbers, &c., who are purchasing +titles among them. Those of St. Vincent's complain of the defective +criminal and civil justice among them, as well as of military +protection." And on the next day he writes to Mr. Jefferson: "The +government of the settlements on the Illinois and Wabash is a subject +very perplexing in itself, and rendered more so by our ignorance of +the many circumstances on which a right judgment depends. The +inhabitants at those places claim protection against the savages, and +some provision for both civil and criminal justice." + +In May, 1787, Mr. Edmund Randolph submitted to the Federal Convention +certain propositions, as the basis of a Federal Government, among +which was the following: + +"_Resolved_, That provision ought to be made for the admission of +States lawfully arising within the limits of the United States, +whether from a voluntary junction of government and territory or +otherwise, with the consent of a number of voices in the National +Legislature less than the whole." + +Afterward, Mr. Madison submitted to the Convention, in order to be +referred to the committee of detail, the following powers, as proper +to be added to those of general legislation: + +"To dispose of the unappropriated lands of the United States. To +institute temporary Governments for new States arising therein. To +regulate affairs with the Indians, as well within as without the +limits of the United States." + +Other propositions were made in reference to the same subjects, which +it would be tedious to enumerate. Mr. Gouverneur Morris proposed the +following: + +"The Legislature shall have power to dispose of and make all needful +rules and regulations respecting the territory or other property +belonging to the United States; and nothing in this Constitution +contained shall be so construed as to prejudice any claims either of +the United States or of any particular State." + +This was adopted as a part of the Constitution, with two verbal +alterations--Congress was substituted for Legislature, and the word +_either_ was stricken out. + +In the organization of the new Government, but little revenue for a +series of years was expected from commerce. The public lands were +considered as the principal resource of the country for the payment of +the Revolutionary debt. Direct taxation was the means relied on to pay +the current expenses of the Government. The short period that occurred +between the cession of western lands to the Federal Government by +Virginia and other States, and the adoption of the Constitution, was +sufficient to show the necessity of a proper land system and a +temporary Government. This was clearly seen by propositions and +remarks in the Federal Convention, some of which are above cited, by +the passage of the Ordinance of 1787, and the adoption of that +instrument by Congress, under the Constitution, which gave to it +validity. + +It will be recollected that the deed of cession of western territory +was made to the United States by Virginia in 1784, and that it +required the territory ceded to be laid out into States, that the land +should be disposed of for the common benefit of the States, and that +all right, title, and claim, as well of soil as of jurisdiction, were +ceded; and this was the form of cession from other States. + +On the 13th of July, the Ordinance of 1787 was passed, "for the +government of the United States territory northwest of the river +Ohio," with but one dissenting vote. This instrument provided there +should be organized in the territory not less than three nor more than +five States, designating their boundaries. It was passed while the +Federal Convention was in session, about two months before the +Constitution was adopted by the Convention. The members of the +Convention must therefore have been well acquainted with the +provisions of the Ordinance. It provided for a temporary Government, +as initiatory to the formation of State Governments. Slavery was +prohibited in the territory. + +Can any one suppose that the eminent men of the Federal Convention +could have overlooked or neglected a matter so vitally important to +the country, in the organization of temporary Governments for the vast +territory northwest of the river Ohio? In the 3d section of the 4th +article of the Constitution, they did make provision for the admission +of new States, the sale of the public lands, and the temporary +Government of the territory. Without a temporary Government, new +States could not have been formed, nor could the public lands have +been sold. + +If the third section were before us now for consideration for the +first time, under the facts stated, I could not hesitate to say there +was adequate legislative power given in it. The power to make all +needful rules and regulations is a power to legislate. This no one +will controvert, as Congress cannot make "rules and regulations," +except by legislation. But it is argued that the word territory is +used as synonymous with the word land; and that the rules and +regulations of Congress are limited to the disposition of lands and +other property belonging to the United States. That this is not the +true construction of the section appears from the fact that in the +first line of the section "the power to dispose of the public lands" +is given expressly, and, in addition, to make all needful rules and +regulations. The power to dispose of is complete in itself, and +requires nothing more. It authorizes Congress to use the proper means +within its discretion, and any further provision for this purpose +would be a useless verbiage. As a composition, the Constitution is +remarkably free from such a charge. + +In the discussion of the power of Congress to govern a Territory, in +the case of the Atlantic Insurance Company _v._ Canter, (1 Peters, +511; 7 Curtis, 685,) Chief Justice Marshall, speaking for the court, +said, in regard to the people of Florida, "they do not, however, +participate in political power; they do not share in the Government +till Florida shall become a State; in the mean time, Florida continues +to be a Territory of the United States, governed by virtue of that +clause in the Constitution which empowers Congress 'to make all +needful rules and regulations respecting the territory or other +property belonging to the United States.'" + +And he adds, "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 fact 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 whence the power is derived, +the possession of it is unquestioned." And in the close of the +opinion, the court say, "in legislating for them [the Territories,] +Congress exercises the combined powers of the General and State +Governments." + +Some consider the opinion to be loose and inconclusive; others, that +it is _obiter dicta_; and the last sentence is objected to as +recognising absolute power in Congress over Territories. The learned +and eloquent Wirt, who, in the argument of a cause before the court, +had occasion to cite a few sentences from an opinion of the Chief +Justice, observed, "no one can mistake the style, the words so +completely match the thought." + +I can see no want of precision in the language of the Chief Justice; +his meaning cannot be mistaken. He states, first, the third section as +giving power to Congress to govern the Territories, and two other +grounds from which the power may also be implied. The objection seems +to be, that the Chief Justice did not say which of the grounds stated +he considered the source of the power. He did not specifically state +this, but he did say, "whichever may be the source whence the power is +derived, the possession of it is unquestioned." No opinion of the +court could have been expressed with a stronger emphasis; the power in +Congress is unquestioned. But those who have undertaken to criticise +the opinion, consider it without authority, because the Chief Justice +did not designate specially the power. This is a singular objection. +If the power be unquestioned, it can be a matter of no importance on +which ground it is exercised. + +The opinion clearly was not _obiter dicta_. The turning point in the +case was, whether Congress had power to authorize the Territorial +Legislature of Florida to pass the law under which the Territorial +court was established, whose decree was brought before this court for +revision. The power of Congress, therefore, was the point in issue. + +The word "territory," according to Worcester, "means land, country, a +district of country under a temporary Government." The words +"territory or other property," as used, do imply, from the use of the +pronoun other, that territory was used as descriptive of land; but +does it follow that it was not used also as descriptive of a district +of country? In both of these senses it belonged to the United +States--as land, for the purpose of sale; as territory, for the +purpose of government. + +But, if it be admitted that the word territory as used means land, and +nothing but land, the power of Congress to organize a temporary +Government is clear. It has power to make all needful regulations +respecting the public lands, and the extent of those "needful +regulations" depends upon the direction of Congress, where the means +are appropriate to the end, and do not conflict with any of the +prohibitions of the Constitution. If a temporary Government be deemed +needful, necessary, requisite, or is wanted, Congress has power to +establish it. This court says, in McCulloch _v._ The State of +Maryland, (4 Wheat., 316,) "If a certain means to carry into effect +any of the powers expressly given by the Constitution to the +Government of the Union be an appropriate measure, not prohibited by +the Constitution, the degree of its necessity is a question of +legislative discretion, not of judicial cognizance." + +The power to establish post offices and post roads gives power to +Congress to make contracts for the transportation of the mail, and to +punish all who commit depredations upon it in its transit, or at its +places of distribution. Congress has power to regulate commerce, and, +in the exercise of its discretion, to lay an embargo, which suspends +commerce; so, under the same power, harbors, lighthouses, breakwaters, +&c., are constructed. + +Did Chief Justice Marshall, in saying that Congress governed a +Territory, by exercising the combined powers of the Federal and State +Governments, refer to unlimited discretion? A Government which can +make white men slaves? Surely, such a remark in the argument must have +been inadvertently uttered. On the contrary, there is no power in the +Constitution by which Congress can make either white or black men +slaves. In organizing the Government of a Territory, Congress is +limited to means appropriate to the attainment of the constitutional +object. No powers can be exercised which are prohibited by the +Constitution, or which are contrary to its spirit; so that, whether +the object may be the protection of the persons and property of +purchasers of the public lands, or of communities who have been +annexed to the Union by conquest or purchase, they are initiatory to +the establishment of State Governments, and no more power can be +claimed or exercised than is necessary to the attainment of the end. +This is the limitation of all the Federal powers. + +But Congress has no power to regulate the internal concerns of a +State, as of a Territory; consequently, in providing for the +Government of a Territory, to some extent, the combined powers of the +Federal and State Governments are necessarily exercised. + +If Congress should deem slaves or free colored persons injurious to +the population of a free Territory, as conducing to lessen the value +of the public lands, or on any other ground connected with the public +interest, they have the power to prohibit them from becoming settlers +in it. This can be sustained on the ground of a sound national policy, +which is so clearly shown in our history by practical results, that it +would seem no considerate individual can question it. And, as regards +any unfairness of such a policy to our Southern brethren, as urged in +the argument, it is only necessary to say that, with one-fourth of the +Federal population of the Union, they have in the slave States a +larger extent of fertile territory than is included in the free +States; and it is submitted, if masters of slaves be restricted from +bringing them into free territory, that the restriction on the free +citizens of non-slaveholding States, by bringing slaves into free +territory, is four times greater than that complained of by the South. +But, not only so; some three or four hundred thousand holders of +slaves, by bringing them into free territory, impose a restriction on +twenty millions of the free States. The repugnancy to slavery would +probably prevent fifty or a hundred freemen from settling in a slave +Territory, where one slaveholder would be prevented from settling in a +free Territory. + +This remark is made in answer to the argument urged, that a +prohibition of slavery in the free Territories is inconsistent with +the continuance of the Union. Where a Territorial Government is +established in a slave Territory, it has uniformly remained in that +condition until the people form a State Constitution; the same course +where the Territory is free, both parties acting in good faith, would +be attended with satisfactory results. + +The sovereignty of the Federal Government extends to the entire limits +of our territory. Should any foreign power invade our jurisdiction, it +would be repelled. There is a law of Congress to punish our citizens +for crimes committed in districts of country where there is no +organized Government. Criminals are brought to certain Territories or +States, designated in the law, for punishment. Death has been +inflicted in Arkansas and in Missouri, on individuals, for murders +committed beyond the limit of any organized Territory or State; and no +one doubts that such a jurisdiction was rightfully exercised. If there +be a right to acquire territory, there necessarily must be an implied +power to govern it. When the military force of the Union shall conquer +a country, may not Congress provide for the government of such +country? This would be an implied power essential to the acquisition +of new territory. This power has been exercised, without doubt of its +constitutionality, over territory acquired by conquest and purchase. + +And when there is a large district of country within the United +States, and not within any State Government, if it be necessary to +establish a temporary Government to carry out a power expressly vested +in Congress--as the disposition of the public lands--may not such +Government be instituted by Congress? How do we read the Constitution? +Is it not a practical instrument? + +In such cases, no implication of a power can arise which is inhibited +by the Constitution, or which may be against the theory of its +construction. As my opinion rests on the third section, these remarks +are made as an intimation that the power to establish a temporary +Government may arise, also, on the other two grounds stated in the +opinion of the court in the insurance case, without weakening the +third section. + +I would here simply remark, that the Constitution was formed for our +whole country. An expansion or contraction of our territory required +no change in the fundamental law. When we consider the men who laid +the foundation of our Government and carried it into operation, the +men who occupied the bench, who filled the halls of legislation and +the Chief Magistracy, it would seem, if any question could be settled +clear of all doubt, it was the power of Congress to establish +Territorial Governments. Slavery was prohibited in the entire +Northwestern Territory, with the approbation of leading men, South and +North; but this prohibition was not retained when this ordinance was +adopted for the government of Southern Territories, where slavery +existed. In a late republication of a letter of Mr. Madison, dated +November 27, 1819, speaking of this power of Congress to prohibit +slavery in a Territory, he infers there is no such power, from the +fact that it has not been exercised. This is not a very satisfactory +argument against any power, as there are but few, if any, subjects on +which the constitutional powers of Congress are exhausted. It is true, +as Mr. Madison states, that Congress, in the act to establish a +Government in the Mississippi Territory, prohibited the importation of +slaves into it from foreign parts; but it is equally true, that in the +act erecting Louisiana into two Territories, Congress declared, "it +shall not be lawful for any person to bring into Orleans Territory, +from any port or place within the limits of the United States, any +slave which shall have been imported since 1798, or which may +hereafter be imported, except by a citizen of the United States who +settles in the Territory, under the penalty of the freedom of such +slave." The inference of Mr. Madison, therefore, against the power of +Congress, is of no force, as it was founded on a fact supposed, which +did not exist. + +It is refreshing to turn to the early incidents of our history, and +learn wisdom from the acts of the great men who have gone to their +account. I refer to a report in the House of Representatives, by John +Randolph, of Roanoke, as chairman of a committee, in March, +1803--fifty-four years ago. From the Convention held at Vincennes, in +Indiana, by their President, and from the people of the Territory, a +petition was presented to Congress, praying the suspension of the +provision which prohibited slavery in that Territory. The report +stated "that the rapid population of the State of Ohio sufficiently +evinces, in the opinion of your committee, that the labor of slaves is +not necessary to promote the growth and settlement of colonies in that +region. That this labor, demonstrably the dearest of any, can only be +employed to advantage in the cultivation of products more valuable +than any known to that quarter of the United States; that the +committee deem it highly dangerous and inexpedient to impair a +provision wisely calculated to promote the happiness and prosperity of +the Northwestern country, and to give strength and security to that +extensive frontier. In the salutary operation of this sagacious and +benevolent restraint, it is believed that the inhabitants will, at no +very distant day, find ample remuneration for a temporary privation of +labor and of emigration." (1 vol. State Papers, Public Lands, 160.) + +The judicial mind of this country, State and Federal, has agreed on no +subject, within its legitimate action, with equal unanimity, as on the +power of Congress to establish Territorial Governments. No court, +State or Federal, no judge or statesman, is known to have had any +doubts on this question for nearly sixty years after the power was +exercised. Such Governments have been established from the sources of +the Ohio to the Gulf of Mexico, extending to the Lakes on the north +and the Pacific Ocean on the west, and from the lines of Georgia to +Texas. + +Great interests have grown up under the Territorial laws over a +country more than five times greater in extent than the original +thirteen States; and these interests, corporate or otherwise, have +been cherished and consolidated by a benign policy, without any one +supposing the law-making power had united with the Judiciary, under +the universal sanction of the whole country, to usurp a jurisdiction +which did not belong to them. Such a discovery at this late date is +more extraordinary than anything which has occurred in the judicial +history of this or any other country. Texas, under a previous +organization, was admitted as a State; but no State can be admitted +into the Union which has not been organized under some form of +government. Without temporary Governments, our public lands could not +have been sold, nor our wildernesses reduced to cultivation, and the +population protected; nor could our flourishing States, West and +South, have been formed. + +What do the lessons of wisdom and experience teach, under such +circumstances, if the new light, which has so suddenly and +unexpectedly burst upon us, be true? Acquiescence; acquiescence under +a settled construction of the Constitution for sixty years, though it +may be erroneous; which has secured to the country an advancement and +prosperity beyond the power of computation. + +An act of James Madison, when President, forcibly illustrates this +policy. He had made up his opinion that Congress had no power under +the Constitution to establish a National Bank. In 1815, Congress +passed a bill to establish a bank. He vetoed the bill, on objections +other than constitutional. In his message, he speaks as a wise +statesman and Chief Magistrate, as follows: + +"Waiving the question of the constitutional authority of the +Legislature to establish an incorporated bank, as being precluded, in +my judgment, by the repeated recognitions under varied circumstances +of the validity of such an institution, in acts of the Legislative, +Executive, and Judicial branches of the Government, accompanied by +indications, in different modes, of a concurrence of the general will +of the nation." + +Has this impressive lesson of practical wisdom become lost to the +present generation? + +If the great and fundamental principles of our Government are never to +be settled, there can be no lasting prosperity. The Constitution will +become a floating waif on the billows of popular excitement. + +The prohibition of slavery north of thirty-six degrees thirty minutes, +and of the State of Missouri, contained in the act admitting that +State into the Union, was passed by a vote of 134, in the House of +Representatives, to 42. Before Mr. Monroe signed the act, it was +submitted by him to his Cabinet, and they held the restriction of +slavery in a Territory to be within the constitutional powers of +Congress. It would be singular, if in 1804 Congress had power to +prohibit the introduction of slaves in Orleans Territory from any +other part of the Union, under the penalty of freedom to the slave, if +the same power embodied in the Missouri compromise, could not be +exercised in 1820. + +But this law of Congress, which prohibits slavery north of Missouri +and of thirty-six degrees thirty minutes, is declared to have been +null and void by my brethren. And this opinion is founded mainly, as I +understand, on the distinction drawn between the ordinance of 1787 and +the Missouri compromise line. In what does the distinction consist? +The ordinance, it is said, was a compact entered into by the +confederated States before the adoption of the Constitution; and that +in the cession of territory authority was given to establish a +Territorial Government. + +It is clear that the ordinance did not go into operation by virtue of +the authority of the Confederation, but by reason of its modification +and adoption by Congress under the Constitution. It seems to be +supposed, in the opinion of the court, that the articles of cession +placed it on a different footing from territories subsequently +acquired. I am unable to perceive the force of this distinction. That +the ordinance was intended for the government of the Northwestern +Territory, and was limited to such Territory, is admitted. It was +extended to Southern Territories, with modifications, by acts of +Congress, and to some Northern Territories. But the ordinance was made +valid by the act of Congress, and without such act could have been of +no force. It rested for its validity on the act of Congress, the same, +in my opinion, as the Missouri compromise line. + +If Congress may establish a Territorial Government in the exercise of +its discretion, it is a clear principle that a court cannot control +that discretion. This being the case, I do not see on what ground the +act is held to be void. It did not purport to forfeit property, or +take it for public purposes. It only prohibited slavery; in doing +which, it followed the ordinance of 1787. + +I will now consider the fourth head, which is: "The effect of taking +slaves into a State or Territory, and so holding them, where slavery +is prohibited." + +If the principle laid down in the case of Prigg _v._ The State of +Pennsylvania is to be maintained, and it is certainly to be maintained +until overruled, as the law of this court, there can be no difficulty +on this point. In that case, the court says: "The state of slavery is +deemed to be a mere municipal regulation, founded upon and limited to +the range of the territorial laws." If this be so, slavery can exist +nowhere except under the authority of law, founded on usage having the +force of law, or by statutory recognition. And the court further says: +"It is manifest, from this consideration, that if the Constitution had +not contained the clause requiring the rendition of fugitives from +labor, every non-slaveholding State in the Union would have been at +liberty to have declared free all runaway slaves coming within its +limits, and to have given them entire immunity and protection against +the claims of their masters." + +Now, if a slave abscond, he may be reclaimed; but if he accompany his +master into a State or Territory where slavery is prohibited, such +slave cannot be said to have left the service of his master where his +services were legalized. And if slavery be limited to the range of the +territorial laws, how can the slave be coerced to serve in a State or +Territory, not only without the authority of law, but against its +express provisions? What gives the master the right to control the +will of his slave? The local law, which exists in some form. But where +there is no such law, can the master control the will of the slave by +force? Where no slavery exists, the presumption, without regard to +color, is in favor of freedom. Under such a jurisdiction, may the +colored man be levied on as the property of his master by a creditor? +On the decease of the master, does the slave descend to his heirs as +property? Can the master sell him? Any one or all of these acts may be +done to the slave, where he is legally held to service. But where the +law does not confer this power, it cannot be exercised. + +Lord Mansfield held that a slave brought into England was free. Lord +Stowell agreed with Lord Mansfield in this respect, and that the slave +could not be coerced in England; but on her voluntary return to +Antigua, the place of her slave domicil, her former status attached. +The law of England did not prohibit slavery, but did not authorize it. +The jurisdiction which prohibits slavery is much stronger in behalf of +the slave within it, than where it only does not authorize it. + +By virtue of what law is it, that a master may take his slave into +free territory, and exact from him the duties of a slave? The law of +the Territory does not sanction it. No authority can be claimed under +the Constitution of the United States, or any law of Congress. Will it +be said that the slave is taken as property, the same as other +property which the master may own? To this I answer, that colored +persons are made property by the law of the State, and no such power +has been given to Congress. Does the master carry with him the law of +the State from which he removes into the Territory? and does that +enable him to coerce his slave in the Territory? Let us test this +theory. If this may be done by a master from one slave State, it may +be done by a master from every other slave State. This right is +supposed to be connected with the person of the master, by virtue of +the local law. Is it transferable? May it be negotiated, as a +promissory note or bill of exchange? If it be assigned to a man from a +free State, may he coerce the slave by virtue of it? What shall this +thing be denominated? Is it personal or real property? Or is it an +indefinable fragment of sovereignty, which every person carries with +him from his late domicil? One thing is certain, that its origin has +been very recent, and it is unknown to the laws of any civilized +country. + +A slave is brought to England from one of its islands, where slavery +was introduced and maintained by the mother country. Although there is +no law prohibiting slavery in England, yet there is no law authorizing +it; and, for near a century, its courts have declared that the slave +there is free from the coercion of the master. Lords Mansfield and +Stowell agree upon this point, and there is no dissenting authority. + +There is no other description of property which was not protected in +England, brought from one of its slave islands. Does not this show +that property in a human being does not arise from nature or from the +common law, but, in the language of this court, "it is a mere +municipal regulation, founded upon and limited to the range of the +territorial laws?" This decision is not a mere argument, but it is the +end of the law, in regard to the extent of slavery. Until it shall be +overturned, it is not a point for argument; it is obligatory on myself +and my brethren, and on all judicial tribunals over which this court +exercises an appellate power. + +It is said the Territories are common property of the States, and that +every man has a right to go there with his property. This is not +controverted. But the court say a slave is not property beyond the +operation of the local law which makes him such. Never was a truth +more authoritatively and justly uttered by man. Suppose a master of a +slave in a British island owned a million of property in England; +would that authorize him to take his slaves with him to England? The +Constitution, in express terms, recognises the _status_ of slavery as +founded on the municipal law: "No person held to service or labor in +one State, _under the laws thereof_, escaping into another, shall," +&c. Now, unless the fugitive escape on a place where, by the municipal +law, he is held to labor, this provision affords no remedy to the +master. What can be more conclusive than this? Suppose a slave escape +from a Territory where slavery is not authorized by law, can he be +reclaimed? + +In this case, a majority of the court have said that a slave may be +taken by his master into a Territory of the United States, the same as +a horse, or any other kind of property. It is true, this was said by +the court, as also many other things, which are of no authority. +Nothing that has been said by them, which has not a direct bearing on +the jurisdiction of the court, against which they decided, can be +considered as authority. I shall certainly not regard it as such. The +question of jurisdiction, being before the court, was decided by them +authoritatively, but nothing beyond that question. A slave is not a +mere chattel. He bears the impress of his Maker, and is amenable to +the laws of God and man; and he is destined to an endless existence. + +Under this head I shall chiefly rely on the decisions of the Supreme +Courts of the Southern States, and especially of the State of +Missouri. + +In the first and second sections of the sixth article of the +Constitution of Illinois, it is declared that neither slavery nor +involuntary servitude shall hereafter be introduced into this State, +otherwise than for the punishment of crimes whereof the party shall +have been duly convicted; and in the second section it is declared +that any violation of this article shall effect the emancipation of +such person from his obligation to service. In Illinois, a right of +transit through the State is given the master with his slaves. This is +a matter which, as I suppose, belongs exclusively to the State. + +The Supreme Court of Illinois, in the case of Jarrot _v._ Jarrot, (2 +Gilmer, 7,) said: + +"After the conquest of this Territory by Virginia, she ceded it to the +United States, and stipulated that the titles and possessions, rights +and liberties, of the French settlers, should be guarantied to them. +This, it has been contended, secured them in the possession of those +negroes as slaves which they held before that time, and that neither +Congress nor the Convention had power to deprive them of it; or, in +other words, that the ordinance and Constitution should not be so +interpreted and understood as applying to such slaves, when it is +therein declared that there shall be neither slavery nor involuntary +servitude in the Northwest Territory, nor in the State of Illinois, +otherwise than in the punishment of crimes. But it was held that those +rights could not be thus protected, but must yield to the ordinance +and Constitution." + +The first slave case decided by the Supreme Court of Missouri, +contained in the reports, was Winny _v._ Whitesides, (1 Missouri Rep., +473,) at October term, 1824. It appeared that, more than twenty-five +years before, the defendant, with her husband, had removed from +Carolina to Illinois, and brought with them the plaintiff; that they +continued to reside in Illinois three or four years, retaining the +plaintiff as a slave; after which, they removed to Missouri, taking +her with them. + +The court held, that if a slave be detained in Illinois until he be +entitled to freedom, the right of the owner does not revive when he +finds the negro in a slave State. + +That when a slave is taken to Illinois by his owner, who takes up his +residence there, the slave is entitled to freedom. + +In the case of Lagrange [Transcriber's Note: La Grange] _v._ Chouteau, +(2 Missouri Rep., 20, at May term, 1828,) it was decided that the +ordinance of 1787 was intended as a fundamental law for those who may +choose to live under it, rather than as a penal statute. + +That any sort of residence contrived or permitted by the legal owner +of the slave, upon the faith of secret trusts or contracts, in order +to defeat or evade the ordinance, and thereby introduce slavery _de +facto_, would entitle such slave to freedom. + +In Julia _v._ McKinney, (3 Missouri Rep., 279,) it was held, where a +slave was settled in the State of Illinois, but with an intention on +the part of the owner to be removed at some future day, that hiring +said slave to a person to labor for one or two days, and receiving the +pay for the hire, the slave is entitled to her freedom, under the +second section of the sixth article of the Constitution of Illinois. + +Rachel _v._ Walker (4 Missouri Rep., 350, June term, 1836) is a case +involving, in every particular, the principles of the case before us. +Rachel sued for her freedom; and it appeared that she had been bought +as a slave in Missouri, by Stockton, an officer of the army, taken to +Fort Snelling, where he was stationed, and she was retained there as a +slave a year; and then Stockton removed to Prairie du Chien, taking +Rachel with him as a slave, where he continued to hold her three +years, and then he took her to the State of Missouri, and sold her as +a slave. + +"Fort Snelling was admitted to be on the west side of the Mississippi +river, and north of the State of Missouri, in the territory of the +United States. That Prairie du Chien was in the Michigan Territory, on +the east side of the Mississippi river. Walker, the defendant, held +Rachel under Stockton." + +The court said, in this case: + +"The officer lived in Missouri Territory, at the time he bought the +slave; he sent to a slaveholding country and procured her; this was +his voluntary act, done without any other reason than that of his +convenience; and he and those claiming under him must be holden to +abide the consequences of introducing slavery both in Missouri +Territory and Michigan, contrary to law; and on that ground Rachel was +declared to be entitled to freedom." + +In answer to the argument that, as an officer of the army, the master +had a right to take his slave into free territory, the court said no +authority of law or the Government compelled him to keep the plaintiff +there as a slave. + +"Shall it be said, that because an officer of the army owns slaves in +Virginia, that when, as officer and soldier, he is required to take +the command of a fort in the non-slaveholding States or Territories, +he thereby has a right to take with him as many slaves as will suit +his interests or convenience? It surely cannot be law. If this be +true, the court say, then it is also true that the convenience or +supposed convenience of the officer repeals, as to him and others who +have the same character, the ordinance and the act of 1821, admitting +Missouri into the Union, and also the prohibition of the several laws +and Constitutions of the non-slaveholding States." + +In Wilson _v._ Melvin, (4 Missouri R., 592,) it appeared the defendant +left Tennessee with an intention of residing in Illinois, taking his +negroes with him. After a month's stay in Illinois, he took his +negroes to St. Louis, and hired them, then returned to Illinois. On +these facts, the inferior court instructed the jury that the defendant +was a sojourner in Illinois. This the Supreme Court held was error, +and the judgment was reversed. + +The case of Dred Scott _v._ Emerson (15 Missouri R., 682, March term, +1852) will now be stated. This case involved the identical question +before us, Emerson having, since the hearing, sold the plaintiff to +Sandford, the defendant. + +Two of the judges ruled the case, the Chief Justice dissenting. It +cannot be improper to state the grounds of the opinion of the court, +and of the dissent. + +The court say: "Cases of this kind are not strangers in our court. +Persons have been frequently here adjudged to be entitled to their +freedom, on the ground that their masters held them in slavery in +Territories or States in which that institution is prohibited. From +the first case decided in our court, it might be inferred that this +result was brought about by a presumed assent of the master, from the +fact of having voluntarily taken his slave to a place where the +relation of master and slave did not exist. But subsequent cases base +the right to 'exact the forfeiture of emancipation,' as they term it, +on the ground, it would seem, that it was the duty of the courts of +this State to carry into effect the Constitution and laws of other +States and Territories, regardless of the rights, the policy, or the +institutions, of the people of this State." + +And the court say that the States of the Union, in their municipal +concerns, are regarded as foreign to each other; that the courts of +one State do not take notice of the laws of other States, unless +proved as facts, and that every State has the right to determine how +far its comity to other States shall extend; and it is laid down, that +when there is no act of manumission decreed to the free State, the +courts of the slave States cannot be called to give effect to the law +of the free State. Comity, it alleges, between States, depends upon +the discretion of both, which may be varied by circumstances. And it +is declared by the court, "that times are not as they were when the +former decisions on this subject were made." Since then, not only +individuals but States have been possessed with a dark and fell spirit +in relation to slavery, whose gratification is sought in the pursuit +of measures whose inevitable consequence must be the overthrow and +destruction of our Government. Under such circumstances, it does not +behoove the State of Missouri to show the least countenance to any +measure which might gratify this spirit. She is willing to assume her +full responsibility for the existence of slavery within her limits, +nor does she seek to share or divide it with others. + +Chief Justice Gamble dissented from the other two judges. He says: + +"In every slaveholding State in the Union, the subject of emancipation +is regulated by statute; and the forms are prescribed in which it +shall be effected. Whenever the forms required by the laws of the +State in which the master and slave are resident are complied with, +the emancipation is complete, and the slave is free. If the right of +the person thus emancipated is subsequently drawn in question in +another State, it will be ascertained and determined by the law of the +State in which the slave and his former master resided; and when it +appears that such law has been complied with, the right to freedom +will be fully sustained in the courts of all the slaveholding States, +although the act of emancipation may not be in the form required by +law in which the court sits. + +"In all such cases, courts continually administer the law of the +country where the right was acquired; and when that law becomes known +to the court, it is just as much a matter of course to decide the +rights of the parties according to its requirements, as it is to +settle the title of real estate situated in our State by its own +laws." + +This appears to me a most satisfactory answer to the argument of the +court. Chief Justice continues: + +"The perfect equality of the different States lies at the foundation +of the Union. As the institution of slavery in the States is one over +which the Constitution of the United States gives no power to the +General Government, it is left to be adopted or rejected by the +several States, as they think best; nor can any one State, or number +of States, claim the right to interfere with any other State upon the +question of admitting or excluding this institution. + +"A citizen of Missouri, who removes with his slave to Illinois, has +no right to complain that the fundamental law of that State to which +he removes, and in which he makes his residence, dissolves the +relation between him and his slave. It is as much his own voluntary +act, as if he had executed a deed of emancipation. No one can pretend +ignorance of this constitutional provision, and," he says, "the +decisions which have heretofore been made in this State, and in many +other slaveholding States, give effect to this and other similar +provisions, on the ground that the master, by making the free State +the residence of his slave, has submitted his right to the operation +of the law of such State; and this," he says, "is the same in law as a +regular deed of emancipation." + +He adds: + +"I regard the question as conclusively settled by repeated +adjudications of this court, and, if I doubted or denied the propriety +of those decisions, I would not feel myself any more at liberty to +overturn them, than I would any other series of decisions by which the +law of any other question was settled. There is with me," he says, +"nothing in the law relating to slavery which distinguishes it from +the law on any other subject, or allows any more accommodation to the +temporary public excitements which are gathered around it." + +"In this State," he says, "it has been recognised from the beginning +of the Government as a correct position in law, that a master who +takes his slave to reside in a State or Territory where slavery is +prohibited, thereby emancipates his slave." These decisions, which +come down to the year 1837, seemed to have so fully settled the +question, that since that time there has been no case bringing it +before the court for any reconsideration, until the present. In the +case of Winny _v._ Whitesides, the question was made in the argument, +"whether one nation would execute the penal laws of another," and the +court replied in this language, (Huberus, quoted in 4 Dallas,) which +says, "personal rights or disabilities obtained or communicated by the +laws of any particular place are of a nature which accompany the +person wherever he goes;" and the Chief Justice observed, in the case +of Rachel _v._ Walker, the act of Congress called the Missouri +compromise was held as operative as the ordinance of 1787. + +When Dred Scott, his wife and children, were removed from Fort +Snelling to Missouri, in 1838, they were free, as the law was then +settled, and continued for fourteen years afterwards, up to 1852, when +the above decision was made. Prior to this, for nearly thirty years, +as Chief Justice Gamble declares, the residence of a master with his +slave in the State of Illinois, or in the Territory north of Missouri, +where slavery was prohibited by the act called the Missouri +compromise, would manumit the slave as effectually as if he had +executed a deed of emancipation; and that an officer of the army who +takes his slave into that State or Territory, and holds him there as a +slave, liberates him the same as any other citizen--and down to the +above time it was settled by numerous and uniform decisions; and that +on the return of the slave to Missouri, his former condition of +slavery did not attach. Such was the settled law of Missouri until the +decision of Scott and Emerson. + +In the case of Sylvia _v._ Kirby, (17 Misso. Rep., 434,) the court +followed the above decision, observing it was similar in all respects +to the case of Scott and Emerson. + +This court follows the established construction of the statutes of a +State by its Supreme Court. Such a construction is considered as a +part of the statute, and we follow it to avoid two rules of property +in the same State. But we do not follow the decisions of the Supreme +Court of a State beyond a statutory construction as a rule of decision +for this court. State decisions are always viewed with respect and +treated as authority; but we follow the settled construction of the +statutes, not because it is of binding authority, but in pursuance of +a rule of judicial policy. + +But there is no pretence that the case of Dred Scott _v._ Emerson +turned upon the construction of a Missouri statute; nor was there any +established rule of property which could have rightfully influenced +the decision. On the contrary, the decision overruled the settled law +for near thirty years. + +This is said by my brethren to be a Missouri question; but there is +nothing which gives it this character, except that it involves the +right to persons claimed as slaves who reside in Missouri, and the +decision was made by the Supreme Court of that State. It involves a +right claimed under an act of Congress and the Constitution of +Illinois, and which cannot be decided without the consideration and +construction of those laws. But the Supreme Court of Missouri held, in +this case, that it will not regard either of those laws, without which +there was no case before it; and Dred Scott, having been a slave, +remains a slave. In this respect it is admitted this is a Missouri +question--a case which has but one side, if the act of Congress and +the Constitution of Illinois are not recognised. + +And does such a case constitute a rule of decision for this court--a +case to be followed by this court? The course of decision so long and +so uniformly maintained established a comity or law between Missouri +and the free States and Territories where slavery was prohibited, +which must be somewhat regarded in this case. Rights sanctioned for +twenty-eight years ought not and cannot be repudiated, with any +semblance of justice, by one or two decisions, influenced, as +declared, by a determination to counteract the excitement against +slavery in the free States. + +The courts of Louisiana having held, for a series of years, that where +a master took his slave to France, or any free State, he was entitled +to freedom, and that on bringing him back the status of slavery did +not attach, the Legislature of Louisiana declared by an act that the +slave should not be made free under such circumstances. This regulated +the rights of the master from the time the act took effect. But the +decision of the Missouri court, reversing a former decision, affects +all previous decisions, technically, made on the same principles, +unless such decisions are protected by the lapse of time or the +statute of limitations. Dred Scott and his family, beyond all +controversy, were free under the decisions made for twenty-eight +years, before the case of Scott _v._ Emerson. This was the undoubted +law of Missouri for fourteen years after Scott and his family were +brought back to that State. And the grave question arises, whether +this law may be so disregarded as to enslave free persons. I am +strongly inclined to think that a rule of decision so well settled as +not to be questioned, cannot be annulled by a single decision of the +court. Such rights may be inoperative under the decision in future; +but I cannot well perceive how it can have the same effect in prior +cases. + +It is admitted, that when a former decision is reversed, the technical +effect of the judgment is to make all previous adjudications on the +same question erroneous. But the case before us was not that the law +had been erroneously construed, but that, under the circumstances +which then existed, that law would not be recognised; and the reason +for this is declared to be the excitement against the institution of +slavery in the free States. While I lament this excitement as much as +any one, I cannot assent that it shall be made a basis of judicial +action. + +In 1816, the common law, by statute, was made a part of the law of +Missouri; and that includes the great principles of international law. +These principles cannot be abrogated by judicial decisions. It will +require the same exercise of power to abolish the common law, as to +introduce it. International law is founded in the opinions generally +received and acted on by civilized nations, and enforced by moral +sanctions. It becomes a more authoritative system when it results from +special compacts, founded on modified rules, adapted to the exigencies +of human society; it is in fact an international morality, adapted to +the best interests of nations. And in regard to the States of this +Union, on the subject of slavery, it is eminently fitted for a rule of +action, subject to the Federal Constitution. "The laws of nations are +but the natural rights of man applied to nations." (Vattel.) + +If the common law have the force of a statutory enactment in Missouri, +it is clear, as it seems to me, that a slave who, by a residence in +Illinois in the service of his master, becomes entitled to his +freedom, cannot again be reduced to slavery by returning to his former +domicil in a slave State. It is unnecessary to say what legislative +power might do by a general act in such a case, but it would be +singular if a freeman could be made a slave by the exercise of a +judicial discretion. And it would be still more extraordinary if this +could be done, not only in the absence of special legislation, but in +a State where the common law is in force. + +It is supposed by some, that the third article in the treaty of +cession of Louisiana to this country, by France, in 1803, may have +some bearing on this question. The article referred to provides, "that +the inhabitants of the ceded territory shall be incorporated into the +Union, and enjoy all the advantages of citizens of the United States, +and in the mean time they shall be maintained and protected in the +free enjoyment of their liberty, property, and the religion they +profess." + +As slavery existed in Louisiana at the time of the cession, it is +supposed this is a guaranty that there should be no change in its +condition. + +The answer to this is, in the first place, that such a subject does +not belong to the treaty-making power; and any such arrangement would +have been nugatory. And, in the second place, by no admissible +construction can the guaranty be carried further than the protection +of property in slaves at that time in the ceded territory. And this +has been complied with. The organization of the slave States of +Louisiana, Missouri, and Arkansas, embraced every slave in Louisiana +at the time of the cession. This removes every ground of objection +under the treaty. There is therefore no pretence, growing out of the +treaty, that any part of the territory of Louisiana, as ceded, beyond +the organized States, is slave territory. + +Under the fifth head, we were to consider whether the status of +slavery attached to the plaintiff and wife, on their return to +Missouri. + +This doctrine is not asserted in the late opinion of the Supreme Court +of Missouri, and up to 1852 the contrary doctrine was uniformly +maintained by that court. + +In its late decision, the court say that it will not give effect in +Missouri to the laws of Illinois, or the law of Congress called the +Missouri compromise. This was the effect of the decision, though its +terms were, that the court would not take notice, judicially, of those +laws. + +In 1851, the Court of Appeals of South Carolina recognised the +principle, that a slave, being taken to a free State, became free. +(Commonwealth _v._ Pleasants, 10 Leigh Rep., 697.) In Betty _v._ +Horton, the Court of Appeals held that the freedom of the slave was +acquired by the action of the laws of Massachusetts, by the said slave +being taken there. (5 Leigh Rep., 615.) + +The slave States have generally adopted the rule, that where the +master, by a residence with his slave in a State or Territory where +slavery is prohibited, the slave was entitled to his freedom +everywhere. This was the settled doctrine of the Supreme Court of +Missouri. It has been so held in Mississippi, in Virginia, in +Louisiana, formerly in Kentucky, Maryland, and in other States. + +The law, where a contract is made and is to be executed, governs it. +This does not depend upon comity, but upon the law of the contract. +And if, in the language of the Supreme Court of Missouri, the master, +by taking his slave to Illinois, and employing him there as a slave, +emancipates him as effectually as by a deed of emancipation, is it +possible that such an act is not matter for adjudication in any slave +State where the master may take him? Does not the master assent to the +law, when he places himself under it in a free State? + +The States of Missouri and Illinois are bounded by a common line. The +one prohibits slavery, the other admits it. This has been done by the +exercise of that sovereign power which appertains to each. We are +bound to respect the institutions of each, as emanating from the +voluntary action of the people. Have the people of either any right to +disturb the relations of the other? Each State rests upon the basis of +its own sovereignty, protected by the Constitution. Our Union has been +the foundation of our prosperity and national glory. Shall we not +cherish and maintain it? This can only be done by respecting the legal +rights of each State. + +If a citizen of a free State shall entice or enable a slave to escape +from the service of his master, the law holds him responsible, not +only for the loss of the slave, but he is liable to be indicted and +fined for the misdemeanor. And I am bound here to say, that I have +never found a jury in the four States which constitute my circuit, +which have not sustained this law, where the evidence required them to +sustain it. And it is proper that I should also say, that more cases +have arisen in my circuit, by reason of its extent and locality, than +in all other parts of the Union. This has been done to vindicate the +sovereign rights of the Southern States, and protect the legal +interests of our brethren of the South. + +Let these facts be contrasted with the case now before the court. +Illinois has declared in the most solemn and impressive form that +there shall be neither slavery nor involuntary servitude in that +State, and that any slave brought into it, with a view of becoming a +resident, shall be emancipated. And effect has been given to this +provision of the Constitution by the decision of the Supreme Court of +that State. With a full knowledge of these facts, a slave is brought +from Missouri to Rock Island, in the State of Illinois, and is +retained there as a slave for two years, and then taken to Fort +Snelling, where slavery is prohibited by the Missouri compromise act, +and there he is detained two years longer in a state of slavery. +Harriet, his wife, was also kept at the same place four years as a +slave, having been purchased in Missouri. They were then removed to +the State of Missouri, and sold as slaves, and in the action before us +they are not only claimed as slaves, but a majority of my brethren +have held that on their being returned to Missouri the status of +slavery attached to them. + +I am not able to reconcile this result with the respect due to the +State of Illinois. Having the same rights of sovereignty as the State +of Missouri in adopting a Constitution, I can perceive no reason why +the institutions of Illinois should not receive the same consideration +as those of Missouri. Allowing to my brethren the same right of +judgment that I exercise myself, I must be permitted to say that it +seems to me the principle laid down will enable the people of a slave +State to introduce slavery into a free State, for a longer or shorter +time, as may suit their convenience; and by returning the slave to the +State whence he was brought, by force or otherwise, the status of +slavery attaches, and protects the rights of the master, and defies +the sovereignty of the free State. There is no evidence before us that +Dred Scott and his family returned to Missouri voluntarily. The +contrary is inferable from the agreed case: "In the year 1838, Dr. +Emerson removed the plaintiff and said Harriet, and their daughter +Eliza, from Fort Snelling to the State of Missouri, where they have +ever since resided." This is the agreed case; and can it be inferred +from this that Scott and family returned to Missouri voluntarily? He +was removed; which shows that he was passive, as a slave, having +exercised no volition on the subject. He did not resist the master by +absconding or force. But that was not sufficient to bring him within +Lord Stowell's decision; he must have acted voluntarily. It would be +a mockery of law and an outrage on his rights to coerce his return, +and then claim that it was voluntary, and on that ground that his +former status of slavery attached. + +If the decision be placed on this ground, it is a fact for a jury to +decide, whether the return was voluntary, or else the fact should be +distinctly admitted. A presumption against the plaintiff in this +respect, I say with confidence, is not authorized from the facts +admitted. + +In coming to the conclusion that a voluntary return by Grace to her +former domicil, slavery attached, Lord Stowell took great pains to +show that England forced slavery upon her colonies, and that it was +maintained by numerous acts of Parliament and public policy, and, in +short, that the system of slavery was not only established by Great +Britain in her West Indian colonies, but that it was popular and +profitable to many of the wealthy and influential people of England, +who were engaged in trade, or owned and cultivated plantations in the +colonies. No one can read his elaborate views, and not be struck with +the great difference between England and her colonies, and the free +and slave States of this Union. While slavery in the colonies of +England is subject to the power of the mother country, our States, +especially in regard to slavery, are independent, resting upon their +own sovereignties, and subject only to international laws, which apply +to independent States. + +In the case of Williams, who was a slave in Granada, having run away, +came to England, Lord Stowell said: "The four judges all concur in +this--that he was a slave in Granada, though a free man in England, +and he would have continued a free man in all other parts of the world +except Granada." + +Strader _v._ Graham (10 Howard, 82, and 18 Curtis, 305) has been cited +as having a direct bearing in the case before us. In that case the +court say: "It was exclusively in the power of Kentucky to determine, +for itself, whether the employment of slaves in another State should +or should not make them free on their return." No question was before +the court in that case, except that of jurisdiction. And any opinion +given on any other point is _obiter dictum_, and of no authority. In +the conclusion of his opinion, the Chief Justice said: "In every view +of the subject, therefore, this court has no jurisdiction of the case, +and the writ of error must on that ground be dismissed." + +In the case of Spencer _v._ Negro Dennis, (8 Gill's Rep., 321,) the +court say: "Once free, and always free, is the maxim of Maryland law +upon the subject. Freedom having once vested, by no compact between +the master and the liberated slave, nor by any condition subsequent, +attached by the master to the gift of freedom, can a state of slavery +be reproduced." + +In Hunter _v._ Bulcher [Transcriber's Note: Fulcher], (1 Leigh, 172:) + +"By a statute of Maryland of 1796, all slaves brought into that State +to reside are declared free; a Virginian-born slave is carried by his +master to Maryland; the master settled there, and keeps the slave +there in bondage for twelve years, the statute in force all the time; +then he brings him as a slave to Virginia, and sells him there. +Adjudged, in an action brought by the man against the purchaser, that +he is free." + +Judge Kerr, in the case, says: + +"Agreeing, as I do, with the general view taken in this case by my +brother Green, I would not add a word, but to mark the exact extent to +which I mean to go. The law of Maryland having enacted that slaves +carried into that State for sale or to reside shall be free, and the +owner of the slave here having carried him to Maryland, and +voluntarily submitting himself and the slave to that law, it governs +the case." + +In every decision of a slave case prior to that of Dred Scott _v._ +Emerson, the Supreme Court of Missouri considered it as turning upon +the Constitution of Illinois, the ordinance of 1787, or the Missouri +compromise act of 1820. The court treated these acts as in force, and +held itself bound to execute them, by declaring the slave to be free +who had acquired a domicil under them with the consent of his master. + +The late decision reversed this whole line of adjudication, and held +that neither the Constitution and laws of the States, nor acts of +Congress in relation to Territories, could be judicially noticed by +the Supreme Court of Missouri. This is believed to be in conflict with +the decisions of all the courts in the Southern States, with some +exceptions of recent cases. + +In Marie Louise _v._ Morat et al., (9 Louisiana Rep., 475,) +[Transcriber's Note: correct citation is Louise v. Marot, 9 La. 473] +it was held, where a slave having been taken to the kingdom of France +or other country by the owner, where slavery is not tolerated, +operates on the condition of the slave, and produces immediate +emancipation; and that, where a slave thus becomes free, the master +cannot reduce him again to slavery. + +Josephine _v._ Poultney, (Louisiana Annual Rep., 329,) "where the +owner removes with a slave into a State in which slavery is +prohibited, with the intention of residing there, the slave will be +thereby emancipated, and their subsequent return to the State of +Louisiana cannot restore the relation of master and slave." To the +same import are the cases of Smith _v._ Smith, (13 Louisiana Rep., +441; Thomas _v._ Generis, Louisiana Rep., 483; Harry et al. _v._ +Decker and Hopkins, Walker's Mississippi Rep., 36.) It was held that, +"slaves within the jurisdiction of the Northwestern Territory became +freemen by virtue of the ordinance of 1787, and can assert their claim +to freedom in the courts of Mississippi." (Griffith _v._ Fanny, 1 +Virginia Rep., 143.) It was decided that a negro held in servitude in +Ohio, under a deed executed in Virginia, is entitled to freedom by the +Constitution of Ohio. + +The case of Rhodes _v._ Bell (2 Howard, 307; 15 Curtis, 152) involved +the main principle in the case before us. A person residing in +Washington city purchased a slave in Alexandria, and brought him to +Washington. Washington continued under the law of Maryland, Alexandria +under the law of Virginia. The act of Maryland of November, 1796, (2 +Maxcy's Laws, 351,) declared any one who shall bring any negro, +mulatto or other slave, into Maryland, such slave should be free. The +above slave, by reason of his being brought into Washington city, was +declared by this court to be free. This, it appears to me, is a much +stronger case against the slave than the facts in the case of Scott. + +In Bush _v._ White, (3 Monroe, 104,) the court say: + +"That the ordinance was paramount to the Territorial laws, and +restrained the legislative power there as effectually as a +Constitution in an organized State. It was a public act of the +Legislature of the Union, and a part of the supreme law of the land; +and, as such, this court is as much bound to take notice of it as it +can be of any other law." + +In the case of Rankin _v._ Lydia, before cited, Judge Mills, speaking +for the Court of Appeals of Kentucky, says: + +"If, by the positive provision in our code, we can and must hold our +slaves in the one case, and statutory provisions equally positive +decide against that right in the other, and liberate the slave, he +must, by an authority equally imperious, be declared free. Every +argument which supports the right of the master on one side, based +upon the force of written law, must be equally conclusive in favor of +the slave, when he can point out in the statute the clause which +secures his freedom." + +And he further said: + +"Free people of color in all the States are, it is believed, quasi +citizens, or, at least, denizens. Although none of the States may +allow them the privilege of office and suffrage, yet all other civil +and conventional rights are secured to them; at least, such rights +were evidently secured to them by the ordinance in question for the +government of Indiana. If these rights are vested in that or any other +portion of the United States, can it be compatible with the spirit of +our confederated Government to deny their existence in any other part? +Is there less comity existing between State and State, or State and +Territory, than exists between the despotic Governments of Europe?" + +These are the words of a learned and great judge, born and educated in +a slave State. + +I now come to inquire, under the sixth and last head, "whether the +decisions of the Supreme Court of Missouri, on the question before us, +are binding on this court." + +While we respect the learning and high intelligence of the State +courts, and consider their decisions, with others, as authority, we +follow them only where they give a construction to the State statutes. +On this head, I consider myself fortunate in being able to turn to the +decision of this court, given by Mr. Justice Grier, in Pease _v._ +Peck, a case from the State of Michigan, (18 Howard, 589,) decided in +December term, 1855. Speaking for the court, Judge Grier said: + +"We entertain the highest respect for that learned court, (the Supreme +Court of Michigan) and in any question affecting the construction of +their own laws, where we entertain any doubt, would be glad to be +relieved from doubt and responsibility by reposing on their decision. +There are, it is true, many dicta to be found in our decisions, +averring that the courts of the United States are bound to follow the +decisions of the State courts on the construction of their own laws. +But although this may be correct, yet a rather strong expression of a +general rule, it cannot be received as the annunciation of a maxim of +universal application. Accordingly, our reports furnish many cases of +exceptions to it. In all cases where there is a settled construction +of the laws of a State, by its highest judicature established by +admitted precedent, it is the practice of the courts of the United +States to receive and adopt it, without criticism or further inquiry. +When the decisions of the State court are not consistent, we do not +feel bound to follow the last, if it is contrary to our own +convictions; and much more is this the case where, after a long course +of consistent decisions, some new light suddenly springs up, or an +excited public opinion has elicited new doctrines subversive of former +safe precedent." + +These words, it appears to me, have a stronger application to the case +before us than they had to the cause in which they were spoken as the +opinion of this court; and I regret that they do not seem to be as +fresh in the recollection of some of my brethren as in my own. For +twenty-eight years, the decisions of the Supreme Court of Missouri +were consistent on all the points made in this case. But this +consistent course was suddenly terminated, whether by some new light +suddenly springing up, or an excited public opinion, or both, it is +not necessary to say. In the case of Scott _v._ Emerson, in 1852, +they were overturned and repudiated. + +This, then, is the very case in which seven of my brethren declared +they would not follow the last decision. On this authority I may well +repose. I can desire no other or better basis. + +But there is another ground which I deem conclusive, and which I will +re-state. + +The Supreme Court of Missouri refused to notice the act of Congress or +the Constitution of Illinois, under which Dred Scott, his wife and +children, claimed that they are entitled to freedom. + +This being rejected by the Missouri court, there was no case before +it, or least it was a case with only one side. And this is the case +which, in the opinion of this court, we are bound to follow. The +Missouri court disregards the express provisions of an act of Congress +and the Constitution of a sovereign State, both of which laws for +twenty-eight years it had not only regarded, but carried into effect. + +If a State court may do this, on a question involving the liberty of a +human being, what protection do the laws afford? So far from this +being a Missouri question, it is a question, as it would seem, within +the twenty-fifth section of the judiciary act, where a right to +freedom being set up under the act of Congress, and the decision being +against such right, it may be brought for revision before this court, +from the Supreme Court of Missouri. + +I think the judgment of the court below should be reversed. + + * * * * * + +Mr. Justice CURTIS dissenting. + +I dissent from the opinion pronounced by the Chief Justice, and from +the judgment which the majority of the court think it proper to render +in this case. The plaintiff alleged, in his declaration, that he was a +citizen of the State of Missouri, and that the defendant was a citizen +of the State of New York. It is not doubted that it was necessary to +make each of these allegations, to sustain the jurisdiction of the +Circuit Court. The defendant denied, by a plea to the jurisdiction, +either sufficient or insufficient, that the plaintiff was a citizen of +the State of Missouri. The plaintiff demurred to that plea. The +Circuit Court adjudged the plea insufficient, and the first question +for our consideration is, whether the sufficiency of that plea is +before this court for judgment, upon this writ of error. The part of +the judicial power of the United States, conferred by Congress on the +Circuit Courts, being limited to certain described cases and +controversies, the question whether a particular case is within the +cognizance of a Circuit Court, may be raised by a plea to the +jurisdiction of such court. When that question has been raised, the +Circuit Court must, in the first instance, pass upon and determine it. +Whether its determination be final, or subject to review by this +appellate court, must depend upon the will of Congress; upon which +body the Constitution has conferred the power, with certain +restrictions, to establish inferior courts, to determine their +jurisdiction, and to regulate the appellate power of this court. The +twenty-second section of the judiciary act of 1789, which allows a +writ of error from final judgments of Circuit Courts, provides that +there shall be no reversal in this court, on such writ of error, for +error in ruling any plea in abatement, _other than a plea to the +jurisdiction of the court_. Accordingly it has been held, from the +origin of the court to the present day, that Circuit Courts have not +been made by Congress the final judges of their own jurisdiction in +civil cases. And that when a record comes here upon a writ of error or +appeal, and, on its inspection, it appears to this court that the +Circuit Court had not jurisdiction, its judgment must be reversed, and +the cause remanded, to be dismissed for want of jurisdiction. + +It is alleged by the defendant in error, in this case, that the plea +to the jurisdiction was a sufficient plea; that it shows, on +inspection of its allegations, confessed by the demurrer, that the +plaintiff was not a citizen of the State of Missouri; that upon this +record, it must appear to this court that the case was not within the +judicial power of the United States, as defined and granted by the +Constitution, because it was not a suit by a citizen of one State +against a citizen of another State. + +To this it is answered, first, that the defendant, by pleading over, +after the plea to the jurisdiction was adjudged insufficient, finally +waived all benefit of that plea. + +When that plea was adjudged insufficient, the defendant was obliged to +answer over. He held no alternative. He could not stop the further +progress of the case in the Circuit Court by a writ of error, on which +the sufficiency of his plea to the jurisdiction could be tried in this +court, because the judgment on that plea was not final, and no writ of +error would lie. He was forced to plead to the merits. It cannot be +true, then, that he waived the benefit of his plea to the jurisdiction +by answering over. Waiver includes consent. Here, there was no +consent. And if the benefit of the plea was finally lost, it must be, +not by any waiver, but because the laws of the United States have not +provided any mode of reviewing the decision of the Circuit Court on +such a plea, when that decision is against the defendant. This is not +the law. Whether the decision of the Circuit Court on a plea to the +jurisdiction be against the plaintiff, or against the defendant, the +losing party may have any alleged error in law, in ruling such a plea, +examined in this court on a writ of error, when the matter in +controversy exceeds the sum or value of two thousand dollars. If the +decision be against the plaintiff, and his suit dismissed for want of +jurisdiction, the judgment is technically final, and he may at once +sue out his writ of error. (Mollan _v._ Torrance, 9 Wheat., 537.) If +the decision be against the defendant, though he must answer over, and +wait for a final judgment in the cause, he may then have his writ of +error, and upon it obtain the judgment of this court on any question +of law apparent on the record, touching the jurisdiction. The fact +that he pleaded over to the merits, under compulsion, can have no +effect on his right to object to the jurisdiction. If this were not +so, the condition of the two parties would be grossly unequal. For if +a plea to the jurisdiction were ruled against the plaintiff, he could +at once take his writ of error, and have the ruling reviewed here; +while, if the same plea were ruled against the defendant, he must not +only wait for a final judgment, but could in no event have the ruling +of the Circuit Court upon the plea reviewed by this court. I know of +no ground for saying that the laws of the United States have thus +discriminated between the parties to a suit in its courts. + +It is further objected, that as the judgment of the Circuit Court was +in favor of the defendant, and the writ of error in this cause was +sued out by the plaintiff, the defendant is not in a condition to +assign any error in the record, and therefore this court is precluded +from considering the question whether the Circuit Court had +jurisdiction. + +The practice of this court does not require a technical assignment of +errors. (See the rule.) Upon a writ of error, the whole record is open +for inspection; and if any error be found in it, the judgment is +reversed. (Bank of U.S. _v._ Smith, 11 Wheat., 171.) + +It is true, as a general rule, that the court will not allow a party +to rely on anything as cause for reversing a judgment, which was for +his advantage. In this, we follow an ancient rule of the common law. +But so careful was that law of the preservation of the course of its +courts, that it made an exception out of that general rule, and +allowed a party to assign for error that which was for his advantage, +if it were a departure by the court itself from its settled course of +procedure. The cases on this subject are collected in Bac. Ab., Error +H. 4. And this court followed this practice in Capron _v._ Van +Noorden, (2 Cranch, 126,) where the plaintiff below procured the +reversal of a judgment for the defendant, on the ground that the +plaintiff's allegations of citizenship had not shown jurisdiction. + +But it is not necessary to determine whether the defendant can be +allowed to assign want of jurisdiction as an error in a judgment in +his own favor. The true question is, not what either of the parties +may be allowed to do, but whether this court will affirm or reverse a +judgment of the Circuit Court on the merits, when it appears on the +record, by a plea to the jurisdiction, that it is a case to which the +judicial power of the United States does not extend. The course of the +court is, where no motion is made by either party, on its own motion, +to reverse such a judgment for want of jurisdiction, not only in cases +where it is shown, negatively, by a plea to the jurisdiction, that +jurisdiction does not exist, but even where it does not appear, +affirmatively, that it does exist. (Pequignot _v._ The Pennsylvania +R.R. Co., 16 How., 104.) It acts upon the principle that the judicial +power of the United States must not be exerted in a case to which it +does not extend, even if both parties desire to have it exerted. +(Cutler _v._ Rae, 7 How., 729.) I consider, therefore, that when there +was a plea to the jurisdiction of the Circuit Court in a case brought +here by a writ of error, the first duty of this court is, _sua +sponte_, if not moved to it by either party, to examine the +sufficiency of that plea; and thus to take care that neither the +Circuit Court nor this court shall use the judicial power of the +United States in a case to which the Constitution and laws of the +United States have not extended that power. + +I proceed, therefore, to examine the plea to the jurisdiction. + +I do not perceive any sound reason why it is not to be judged by the +rules of the common law applicable to such pleas. It is true, where +the jurisdiction of the Circuit Court depends on the citizenship of +the parties, it is incumbent on the plaintiff to allege on the record +the necessary citizenship; but when he has done so, the defendant must +interpose a plea in abatement, the allegations whereof show that the +court has not jurisdiction; and it is incumbent on him to prove the +truth of his plea. + +In Sheppard _v._ Graves, (14 How., 27,) the rules on this subject are +thus stated in the opinion of the court: "That although, in the courts +of the United States, it is necessary to set forth the grounds of +their cognizance as courts of limited jurisdiction, yet wherever +jurisdiction shall be averred in the pleadings, in conformity with the +laws creating those courts, it must be taken, _prima facie_, as +existing; and it is incumbent on him who would impeach that +jurisdiction for causes dehors the pleading, to allege and prove such +causes; that the necessity for the allegation, and the burden of +sustaining it by proof, both rest upon the party taking the +exception." These positions are sustained by the authorities there +cited, as well as by Wickliffe _v._ Owings, (17 How., 47.) + +When, therefore, as in this case, the necessary averments as to +citizenship are made on the record, and jurisdiction is assumed to +exist, and the defendant comes by a plea to the jurisdiction to +displace that presumption, he occupies, in my judgment, precisely the +position described in Bacon Ab., Abatement: "Abatement, in the general +acceptation of the word, signifies a plea, put in by the defendant, in +which he shows cause to the court why he should not be impleaded; or, +if at all, not in the manner and form he now is." + +This being, then, a plea in abatement, to the jurisdiction of the +court, I must judge of its sufficiency by those rules of the common +law applicable to such pleas. + +The plea was as follows: "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 cognizance 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." + +The plaintiff demurred, and the judgment of the Circuit Court was, +that the plea was insufficient. + +I cannot treat this plea as a general traverse of the citizenship +alleged by the plaintiff. Indeed, if it were so treated, the plea was +clearly bad, for it concludes with a verification, and not to the +country, as a general traverse should. And though this defect in a +plea in bar must be pointed out by a special demurrer, it is never +necessary to demur specially to a plea in abatement; all matters, +though of form only, may be taken advantage of upon a general demurrer +to such a plea. (Chitty on Pl., 465.) + +The truth is, that though not drawn with the utmost technical +accuracy, it is a special traverse of the plaintiff's allegation of +citizenship, and was a suitable and proper mode of traverse under the +circumstances. By reference to Mr. Stephen's description of the uses +of such a traverse, contained in his excellent analysis of pleadings, +(Steph. on Pl., 176,) it will be seen how precisely this plea meets +one of his descriptions. No doubt the defendant might have traversed, +by a common or general traverse, the plaintiff's allegation that he +was a citizen of the State of Missouri, concluding to the country. The +issue thus presented being joined, would have involved matter of law, +on which the jury must have passed, under the direction of the court. +But by traversing the plaintiff's citizenship specially--that is, +averring those facts on which the defendant relied to show that in +point of law the plaintiff was not a citizen, and basing the traverse +on those facts as a deduction therefrom--opportunity was given to do, +what was done; that is, to present directly to the court, by a +demurrer, the sufficiency of those facts to negative, in point of law, +the plaintiff's allegation of citizenship. This, then, being a +special, and not a general or common traverse, the rule is settled, +that the facts thus set out in the plea, as the reason or ground of +the traverse must of themselves constitute, in point of law, a +negative of the allegation thus traversed. (Stephen on Pl., 183; Ch. +on Pl., 620.) And upon a demurrer to this plea, the question which +arises is, whether the facts, that the plaintiff is a negro, of +African descent, whose ancestors were of pure African blood, and were +brought into this country and sold as negro slaves, _may all be true, +and yet_ the plaintiff be a citizen of the State of Missouri, within +the meaning of the Constitution and laws of the United States, which +confer on citizens of one State the right to sue citizens of another +State in the Circuit Courts. Undoubtedly, if these facts, taken +together, amount to an allegation that, at the time of action brought, +the plaintiff was himself a slave, the plea is sufficient. It has been +suggested that the plea, in legal effect, does so aver, because, if +his ancestors were sold as slaves, the presumption is they continued +slaves; and if so, the presumption is, the plaintiff was born a slave; +and if so, the presumption is, he continued to be a slave to the time +of action brought. + +I cannot think such presumptions can be resorted to, to help out +defective averments in pleading; especially, in pleading in abatement, +where the utmost certainty and precision are required. (Chitty on Pl., +457.) That the plaintiff himself was a slave at the time of action +brought, is a substantive fact, having no necessary connection with +the fact that his parents were sold as slaves. For they might have +been sold after he was born; or the plaintiff himself, if once a +slave, might have became a freeman before action brought. To aver +that his ancestors were sold as slaves, is not equivalent, in point of +law, to an averment that he was a slave. If it were, he could not even +confess and avoid the averment of the slavery of his ancestors, which +would be monstrous; and if it be not equivalent in point of law, it +cannot be treated as amounting thereto when demurred to; for a +demurrer confesses only those substantive facts which are well +pleaded, and not other distinct substantive facts which might be +inferred therefrom by a jury. To treat an averment that the +plaintiff's ancestors were Africans, brought to this country and sold +as slaves, as amounting to an averment on the record that he was a +slave, because it may lay some foundation for presuming so, is to hold +that the facts actually alleged may be treated as intended as evidence +of another distinct fact not alleged. But it is a cardinal rule of +pleading, laid down in Dowman's case, (9 Rep., 9 b,) and in even +earlier authorities therein referred to, "that evidence shall never be +pleaded, for it only tends to prove matter of fact; and therefore the +matter of fact shall be pleaded." Or, as the rule is sometimes stated, +pleadings must not be argumentative. (Stephen on Pleading, 384, and +authorities cited by him.) In Com. Dig., Pleader E. 3, and Bac. +Abridgement, Pleas I, 5, and Stephen on Pl., many decisions under this +rule are collected. In trover, for an indenture whereby A granted a +manor, it is no plea that A did not grant the manor, for it does not +answer the declaration except by argument. (Yelv., 223.) + +So in trespass for taking and carrying away the plaintiff's goods, the +defendant pleaded that the plaintiff never had any goods. The court +said, "this is an infallible argument that the defendant is not +guilty, but it is no plea." (Dyer, a 43.) + +In ejectment, the defendant pleaded a surrender of a copyhold by the +hand of Fosset, the steward. The plaintiff replied, that Fosset was +not steward. The court held this no issue, for it traversed the +surrender only argumentatively. (Cro. Elis., 260.) + +In these cases, and many others reported in the books, the inferences +from the facts stated were irresistible. But the court held they did +not, when demurred to, amount to such inferable facts. In the case at +bar, the inference that the defendant was a slave at the time of +action brought, even if it can be made at all, from the fact that his +parents were slaves, is certainly not a necessary inference. This +case, therefore, is like that of Digby _v._ Alexander, (8 Bing., 116.) +In that case, the defendant pleaded many facts strongly tending to +show that he was once Earl of Stirling; but as there was no positive +allegation that he was so at the time of action brought, and as every +fact averred might be true, and yet the defendant not have been Earl +of Stirling at the time of action brought, the plea was held to be +insufficient. + +A lawful seizin of land is presumed to continue. But if, in an action +of trespass _quare clausum_, the defendant were to plead that he was +lawfully seized of the _locus in quo_, one month before the time of +the alleged trespass, I should have no doubt it would be a bad plea. +(See Mollan _v._ Torrance, 9 Wheat., 537.) So if a plea to the +jurisdiction, instead of alleging that the plaintiff was a citizen of +the same State as the defendant, were to allege that the plaintiff's +ancestors were citizens of that State, I think the plea could not be +supported. My judgment would be, as it is in this case, that if the +defendant meant to aver a particular substantive fact, as existing at +the time of action brought, he must do it directly and explicitly, and +not by way of inference from certain other averments, which are quite +consistent with the contrary hypothesis. I cannot, therefore, treat +this plea as containing an averment that the plaintiff himself was a +slave at the time of action brought; and the inquiry recurs, whether +the facts, that he is of African descent, and that his parents were +once slaves, are necessarily inconsistent with his own citizenship in +the State of Missouri, within the meaning of the Constitution and laws +of the United States. + +In Gassies _v._ Ballon, (6 Pet., 761,) the defendant was described on +the record as a naturalized citizen of the United States, residing in +Louisiana. The court held this equivalent to an averment that the +defendant was a citizen of Louisiana; because a citizen of the United +States, residing in any State of the Union, is, for purposes of +jurisdiction, a citizen of that State. Now, the plea to the +jurisdiction in this case does not controvert the fact that the +plaintiff resided in Missouri at the date of the writ. If he did then +reside there, and was also a citizen of the United States, no +provisions contained in the Constitution or laws of Missouri can +deprive the plaintiff of his right to sue citizens of States other +than Missouri, in the courts of the United States. + +So that, under the allegations contained in this plea, and admitted by +the demurrer, the question is, whether any person of African descent, +whose ancestors were sold as slaves in the United States, can be a +citizen of the United States. If any such person can be a citizen, +this plaintiff has the right to the judgment of the court that he is +so; for no cause is shown by the plea why he is not so, except his +descent and the slavery of his ancestors. + +The first section of the second article of the Constitution uses the +language, "a citizen of the United States at the time of the adoption +of the Constitution." One mode of approaching this question is, to +inquire who were citizens of the United States at the time of the +adoption of the Constitution. + +Citizens of the United States at the time of the adoption of the +Constitution can have been no other than citizens of the United States +under the Confederation. By the Articles of Confederation, a +Government was organized, the style whereof was, "The United States of +America." This Government was in existence when the Constitution was +framed and proposed for adoption, and was to be superseded by the new +Government of the United States of America, organized under the +Constitution. When, therefore, the Constitution speaks of citizenship +of the United States, existing at the time of the adoption of the +Constitution, it must necessarily refer to citizenship under the +Government which existed prior to and at the time of such adoption. + +Without going into any question concerning the powers of the +Confederation to govern the territory of the United States out of the +limits of the States, and consequently to sustain the relation of +Government and citizen in respect to the inhabitants of such +territory, it may safely be said that the citizens of the several +States were citizens of the United States under the Confederation. + +That Government was simply a confederacy of the several States, +possessing a few defined powers over subjects of general concern, each +State retaining every power, jurisdiction, and right, not expressly +delegated to the United States in Congress assembled. And no power was +thus delegated to the Government of the Confederation, to act on any +question of citizenship, or to make any rules in respect thereto. The +whole matter was left to stand upon the action of the several States, +and to the natural consequence of such action, that the citizens of +each State should be citizens of that Confederacy into which that +State had entered, the style whereof was, "The United States of +America." + +To determine whether any free persons, descended from Africans held in +slavery, were citizens of the United States under the Confederation, +and consequently at the time of the adoption of the Constitution of +the United States, it is only necessary to know whether any such +persons were citizens of either of the States under the Confederation, +at the time of the adoption of the Constitution. + +Of this there can be no doubt. At the time of the ratification of the +Articles of Confederation, all free native-born inhabitants of the +States of New Hampshire, Massachusetts, New York, New Jersey, and +North Carolina, though descended from African slaves, were not only +citizens of those States, but such of them as had the other necessary +qualifications possessed the franchise of electors, on equal terms +with other citizens. + +The Supreme Court of North Carolina, in the case of the State _v._ +Manuel, (4 Dev. and Bat., 20,) has declared the law of that State on +this subject, in terms which I believe to be as sound law in the other +States I have enumerated, as it was in North Carolina. + +"According to the laws of this State," says Judge Gaston in delivering +the opinion of the court, "all human beings within it, who are not +slaves, fall within one of two classes. Whatever distinctions may have +existed in the Roman laws between citizens and free inhabitants, they +are unknown to our institutions. Before our Revolution, all free +persons born within the dominions of the King of Great Britain, +whatever their color or complexion, were native-born British +subjects--those born out of his allegiance were aliens. Slavery did +not exist in England, but it did in the British colonies. Slaves were +not in legal parlance persons, but property. The moment the +incapacity, the disqualification of slavery, was removed, they became +persons, and were then either British subjects, or not British +subjects, according as they were or were not born within the +allegiance of the British King. Upon the Revolution, no other change +took place in the laws of North Carolina than was consequent on the +transition from a colony dependent on a European King, to a free and +sovereign State. Slaves remained slaves. British subjects in North +Carolina became North Carolina freemen. Foreigners, until made members +of the State, remained aliens. Slaves, manumitted here, became +freemen, and therefore, if born within North Carolina, are citizens of +North Carolina, and all free persons born within the State are born +citizens of the State. The Constitution extended the elective +franchise to every freeman who had arrived at the age of twenty-one, +and paid a public tax; and it is a matter of universal notoriety, +that, under it, free persons, without regard to color, claimed and +exercised the franchise, until it was taken from free men of color a +few years since by our amended Constitution." + +In the State _v._ Newcomb, (5 Iredell's R., 253,) decided in 1844, the +same court referred to this case of the State _v._ Manuel, and said: +"That case underwent a very laborious investigation, both by the bar +and the bench. The case was brought here by appeal, and was felt to be +one of great importance in principle. It was considered with an +anxiety and care worthy of the principle involved, and which give it a +controlling influence and authority on all questions of a similar +character." + +An argument from speculative premises, however well chosen, that the +then state of opinion in the Commonwealth of Massachusetts was not +consistent with the natural rights of people of color who were born on +that soil, and that they were not, by the Constitution of 1780 of that +State, admitted to the condition of citizens, would be received with +surprise by the people of that State, who know their own political +history. It is true, beyond all controversy, that persons of color, +descended from African slaves, were by that Constitution made citizens +of the State; and such of them as have had the necessary +qualifications, have held and exercised the elective franchise, as +citizens, from that time to the present. (See Com. _v._ Aves, 18 Pick. +R., 210.) + +The Constitution of New Hampshire conferred the elective franchise +upon "every inhabitant of the State having the necessary +qualifications," of which color or descent was not one. + +The Constitution of New York gave the right to vote to "every male +inhabitant, who shall have resided," &c.; making no discrimination +between free colored persons and others. (See Con. of N.Y., Art. 2, +Rev. Stats. of N.Y., vol. 1, p. 126.) + +That of New Jersey, to "all inhabitants of this colony, of full age, +who are worth £50 proclamation money, clear estate." + +New York, by its Constitution of 1820, required colored persons to +have some qualifications as prerequisites for voting, which white +persons need not possess. And New Jersey, by its present Constitution, +restricts the right to vote to white male citizens. But these changes +can have no other effect upon the present inquiry, except to show, +that before they were made, no such restrictions existed; and colored +in common with white persons, were not only citizens of those States, +but entitled to the elective franchise on the same qualifications as +white persons, as they now are in New Hampshire and Massachusetts. I +shall not enter into an examination of the existing opinions of that +period respecting the African race, nor into any discussion concerning +the meaning of those who asserted, in the Declaration of Independence, +that all men are created equal; that they are endowed by their Creator +with certain inalienable rights; that among these are life, liberty, +and the pursuit of happiness. My own opinion is, that a calm +comparison of these assertions of universal abstract truths, and of +their own individual opinions and acts, would not leave these men +under any reproach of inconsistency; that the great truths they +asserted on that solemn occasion, they were ready and anxious to make +effectual, wherever a necessary regard to circumstances, which no +statesman can disregard without producing more evil than good, would +allow; and that it would not be just to them, nor true in itself, to +allege that they intended to say that the Creator of all men had +endowed the white race, exclusively, with the great natural rights +which the Declaration of Independence asserts. But this is not the +place to vindicate their memory. As I conceive, we should deal here, +not with such disputes, if there can be a dispute concerning this +subject, but with those substantial facts evinced by the written +Constitutions of States, and by the notorious practice under them. And +they show, in a manner which no argument can obscure, that in some of +the original thirteen States, free colored persons, before and at the +time of the formation of the Constitution, were citizens of those +States. + +The fourth of the fundamental articles of the Confederation was as +follows: "The free inhabitants of each of these States, paupers, +vagabonds, and fugitives from justice, excepted, shall be entitled to +all the privileges and immunities of free citizens in the several +States." + +The fact that free persons of color were citizens of some of the +several States, and the consequence, that this fourth article of the +Confederation would have the effect to confer on such persons the +privileges and immunities of general citizenship, were not only known +to those who framed and adopted those articles, but the evidence is +decisive, that the fourth article was intended to have that effect, +and that more restricted language, which would have excluded such +persons, was deliberately and purposely rejected. + +On the 25th of June, 1778, the Articles of Confederation being under +consideration by the Congress, the delegates from South Carolina moved +to amend this fourth article, by inserting after the word "free," and +before the word "inhabitants," the word "white," so that the +privileges and immunities of general citizenship would be secured only +to white persons. Two States voted for the amendment, eight States +against it, and the vote of one State was divided. The language of the +article stood unchanged, and both by its terms of inclusion, "free +inhabitants," and the strong implication from its terms of exclusion, +"paupers, vagabonds, and fugitives from justice," who alone were +excepted, it is clear, that under the Confederation, and at the time +of the adoption of the Constitution, free colored persons of African +descent might be, and, by reason of their citizenship in certain +States, were entitled to the privileges and immunities of general +citizenship of the United States. + +Did the Constitution of the United States deprive them or their +descendants of citizenship? + +That Constitution was ordained and established by the people of the +United States, through the action, in each State, of those persons who +were qualified by its laws to act thereon, in behalf of themselves and +all other citizens of that State. In some of the States, as we have +seen, colored persons were among those qualified by law to act on this +subject. These colored persons were not only included in the body of +"the people of the United States," by whom the Constitution was +ordained and established, but in at least five of the States they had +the power to act, and doubtless did act, by their suffrages, upon the +question of its adoption. It would be strange, if we were to find in +that instrument anything which deprived of their citizenship any part +of the people of the United States who were among those by whom it was +established. + +I can find nothing in the Constitution which, _proprio vigore_, +deprives of their citizenship any class of persons who were citizens +of the United States at the time of its adoption, or who should be +native-born citizens of any State after its adoption; nor any power +enabling Congress to disfranchise persons born on the soil of any +State, and entitled to citizenship of such State by its Constitution +and laws. And my opinion is, that, under the Constitution of the +United States, every free person born on the soil of a State, who is a +citizen of that State by force of its Constitution or laws, is also a +citizen of the United States. + +I will proceed to state the grounds of that opinion. + +The first section of the second article of the Constitution uses the +language, "a natural-born citizen." It thus assumes that citizenship +may be acquired by birth. Undoubtedly, this language of the +Constitution was used in reference to that principle of public law, +well understood in this country at the time of the adoption of the +Constitution, which referred citizenship to the place of birth. At the +Declaration of Independence, and ever since, the received general +doctrine has been, in conformity with the common law, that free +persons born within either of the colonies were subjects of the King; +that by the Declaration of Independence, and the consequent +acquisition of sovereignty by the several States, all such persons +ceased to be subjects, and became citizens of the several States, +except so far as some of them were disfranchised by the legislative +power of the States, or availed themselves, seasonably, of the right +to adhere to the British Crown in the civil contest, and thus to +continue British subjects (McIlvain _v._ Coxe's Lessee, 4 Cranch, 209; +Inglis _v._ Sailors' Snug Harbor, 3 Peters, p. 99; Shanks _v._ Dupont, +Ibid, p. 242.) + +The Constitution having recognised the rule that persons born within +the several States are citizens of the United States, one of four +things must be true: + +_First._ That the Constitution itself has described what native-born +persons shall or shall not be citizens of the United States; or, + +_Second._ That it has empowered Congress to do so; or, + +_Third._ That all free persons, born within the several States, are +citizens of the United States; or, + +_Fourth._ That it is left to each State to determine what free +persons, born within its limits, shall be citizens of such State, and +_thereby_ be citizens of the United States. + +If there be such a thing as citizenship of the United States acquired +by birth within the States, which the Constitution expressly +recognises, and no one denies, then these four alternatives embrace +the entire subject, and it only remains to select that one which is +true. + +That the Constitution itself has defined citizenship of the United +States by declaring what persons, born within the several States, +shall or shall not be citizens of the United States, will not be +pretended. It contains no such declaration. We may dismiss the first +alternative, as without doubt unfounded. + +Has it empowered Congress to enact what free persons, born within the +several States, shall or shall not be citizens of the United States? + +Before examining the various provisions of the Constitution which may +relate to this question, it is important to consider for a moment the +substantial nature of this inquiry. It is, in effect, whether the +Constitution has empowered Congress to create privileged classes +within the States, who alone can be entitled to the franchises and +powers of citizenship of the United States. If it be admitted that the +Constitution has enabled Congress to declare what free persons, born +within the several States, shall be citizens of the United States, it +must at the same time be admitted that it is an unlimited power. If +this subject is within the control of Congress, it must depend wholly +on its discretion. For, certainly, no limits of that discretion can be +found in the Constitution, which is wholly silent concerning it; and +the necessary consequence is, that the Federal Government may select +classes of persons within the several States who alone can be entitled +to the political privileges of citizenship of the United States. If +this power exists, what persons born within the States may be +President or Vice President of the United States, or members of +either House of Congress, or hold any office or enjoy any privilege +whereof citizenship of the United States is a necessary qualification, +must depend solely on the will of Congress. By virtue of it, though +Congress can grant no title of nobility, they may create an oligarchy, +in whose hands would be concentrated the entire power of the Federal +Government. + +It is a substantive power, distinct in its nature from all others; +capable of affecting not only the relations of the States to the +General Government, but of controlling the political condition of the +people of the United States. Certainly we ought to find this power +granted by the Constitution, at least by some necessary inference, +before we can say it does not remain to the States or the people. I +proceed therefore to examine all the provisions of the Constitution +which may have some bearing on this subject. + +Among the powers expressly granted to Congress is "the power to +establish a uniform rule of naturalization." It is not doubted that +this is a power to prescribe a rule for the removal of the +disabilities consequent on foreign birth. To hold that it extends +further than this, would do violence to the meaning of the term +naturalization, fixed in the common law, (Co. Lit., 8 a, 129 a; 2 +Ves., sen., 286; 2 Bl. Com., 293,) and in the minds of those who +concurred in framing and adopting the Constitution. It was in this +sense of conferring on an alien and his issue the rights and powers of +a native-born citizen, that it was employed in the Declaration of +Independence. It was in this sense it was expounded in the Federalist, +(No. 42,) has been understood by Congress, by the Judiciary, (2 +Wheat., 259, 269; 3 Wash. R., 313, 322; 12 Wheat., 277,) and by +commentators on the Constitution. (3 Story's Com. on Con., 1-3; 1 +Rawle on Con., 84-88; 1 Tucker's Bl. Com. App., 255-259.) + +It appears, then, that the only power expressly granted to Congress to +legislate concerning citizenship, is confined to the removal of the +disabilities of foreign birth. + +Whether there be anything in the Constitution from which a broader +power may be implied, will best be seen when we come to examine the +two other alternatives, which are, whether all free persons, born on +the soil of the several States, or only such of them as may be +citizens of each State, respectively, are thereby citizens of the +United States. The last of these alternatives, in my judgment, +contains the truth. + +Undoubtedly, as has already been said, it is a principle of public +law, recognised by the Constitution itself, that birth on the soil of +a country both creates the duties and confers the rights of +citizenship. But it must be remembered, that though the Constitution +was to form a Government, and under it the United States of America +were to be one united sovereign nation, to which loyalty and obedience +on the one side, and from which protection and privileges on the +other, would be due, yet the several sovereign States, whose people +were then citizens, were not only to continue in existence, but with +powers unimpaired, except so far as they were granted by the people to +the National Government. + +Among the powers unquestionably possessed by the several States, was +that of determining what persons should and what persons should not be +citizens. It was practicable to confer on the Government of the Union +this entire power. It embraced what may, well enough for the purpose +now in view, be divided into three parts. _First_: The power to remove +the disabilities of alienage, either by special acts in reference to +each individual case, or by establishing a rule of naturalization to +be administered and applied by the courts. _Second_: Determining what +persons should enjoy the privileges of citizenship, in respect to the +internal affairs of the several States. _Third_: What native-born +persons should be citizens of the United States. + +The first-named power, that of establishing a uniform rule of +naturalization, was granted; and here the grant, according to its +terms, stopped. Construing a Constitution containing only limited and +defined powers of government, the argument derived from this definite +and restricted power to establish a rule of naturalization, must be +admitted to be exceedingly strong. I do not say it is necessarily +decisive. It might be controlled by other parts of the Constitution. +But when this particular subject of citizenship was under +consideration, and, in the clause specially intended to define the +extent of power concerning it, we find a particular part of this +entire power separated from the residue, and conferred on the General +Government, there arises a strong presumption that this is all which +is granted, and that the residue is left to the States and to the +people. And this presumption is, in my opinion, converted into a +certainty, by an examination of all such other clauses of the +Constitution as touch this subject. + +I will examine each which can have any possible bearing on this +question. + +The first clause of the second section of the third article of the +Constitution is, "The judicial power shall extend to controversies +between a State and citizens of another State; between citizens of +different States; between citizens of the same State, claiming lands +under grants of different States; and between States, or the citizens +thereof, and foreign States, citizens, or subjects." I do not think +this clause has any considerable bearing upon the particular inquiry +now under consideration. Its purpose was, to extend the judicial power +to those controversies into which local feelings or interests might so +enter as to disturb the course of justice, or give rise to suspicions +that they had done so, and thus possibly give occasion to jealousy or +ill will between different States, or a particular State and a foreign +nation. At the same time, I would remark, in passing, that it has +never been held, I do not know that it has ever been supposed, that +any citizen of a State could bring himself under this clause and the +eleventh and twelfth sections of the judiciary act of 1789, passed in +pursuance of it, who was not a citizen of the United States. But I +have referred to the clause, only because it is one of the places +where citizenship is mentioned by the Constitution. Whether it is +entitled to any weight in this inquiry or not, it refers only to +citizenship of the several States; it recognises that; but it does not +recognise citizenship of the United States as something distinct +therefrom. + +As has been said, the purpose of this clause did not necessarily +connect it with citizenship of the United States, even if that were +something distinct from citizenship of the several States, in the +contemplation of the Constitution. This cannot be said of other +clauses of the Constitution, which I now proceed to refer to. + +"The citizens of each State shall be entitled to all the privileges +and immunities of citizens of the several States." Nowhere else in the +Constitution is there anything concerning a general citizenship; but +here, privileges and immunities to be enjoyed throughout the United +States, under and by force of the national compact, are granted and +secured. In selecting those who are to enjoy these national rights of +citizenship, how are they described? As citizens of each State. It is +to them these national rights are secured. The qualification for them +is not to be looked for in any provision of the Constitution or laws +of the United States. They are to be citizens of the several States, +and, as such, the privileges and immunities of general citizenship, +derived from and guarantied by the Constitution, are to be enjoyed by +them. It would seem that if it had been intended to constitute a class +of native-born persons within the States, who should derive their +citizenship of the United States from the action of the Federal +Government, this was an occasion for referring to them. It cannot be +supposed that it was the purpose of this article to confer the +privileges and immunities of citizens in all the States upon persons +not citizens of the United States. + +And if it was intended to secure these rights only to citizens of the +United States, how has the Constitution here described such persons? +Simply as citizens of each State. + +But, further: though, as I shall presently more fully state, I do not +think the enjoyment of the elective franchise essential to +citizenship, there can be no doubt it is one of the chiefest +attributes of citizenship under the American Constitutions; and the +just and constitutional possession of this right is decisive evidence +of citizenship. The provisions made by a Constitution on this subject +must therefore be looked to as bearing directly on the question what +persons are citizens under that Constitution; and as being decisive, +to this extent, that all such persons as are allowed by the +Constitution to exercise the elective franchise, and thus to +participate in the Government of the United States, must be deemed +citizens of the United States. + +Here, again, the consideration presses itself upon us, that if there +was designed to be a particular class of native-born persons within +the States, deriving their citizenship from the Constitution and laws +of the United States, they should at least have been referred to as +those by whom the President and House of Representatives were to be +elected, and to whom they should be responsible. + +Instead of that, we again find this subject referred to the laws of +the several States. The electors of President are to be appointed in +such manner as the Legislature of each State may direct, and the +qualifications of electors of members of the House of Representatives +shall be the same as for electors of the most numerous branch of the +State Legislature. + +Laying aside, then, the case of aliens, concerning which the +Constitution of the United States has provided, and confining our view +to free persons born within the several States, we find that the +Constitution has recognised the general principle of public law, that +allegiance and citizenship depend on the place of birth; that it has +not attempted practically to apply this principle by designating the +particular classes of persons who should or should not come under it; +that when we turn to the Constitution for an answer to the question, +what free persons, born within the several States, are citizens of the +United States, the only answer we can receive from any of its express +provisions is, the citizens of the several States are to enjoy the +privileges and immunities of citizens in every State, and their +franchise as electors under the Constitution depends on their +citizenship in the several States. Add to this, that the Constitution +was ordained by the citizens of the several States; that they were +"the people of the United States," for whom and whose posterity the +Government was declared in the preamble of the Constitution to be +made; that each of them was "a citizen of the United States at the +time of the adoption of the Constitution," within the meaning of those +words in that instrument; that by them the Government was to be and +was in fact organized; and that no power is conferred on the +Government of the Union to discriminate between them, or to +disfranchise any of them--the necessary conclusion is, that those +persons born within the several States, who, by force of their +respective Constitutions and laws, are citizens of the State, are +thereby citizens of the United States. + +It may be proper here to notice some supposed objections to this view +of the subject. + +It has been often asserted that the Constitution was made exclusively +by and for the white race. It has already been shown that in five of +the thirteen original States, colored persons then possessed the +elective franchise, and were among those by whom the Constitution was +ordained and established. If so, it is not true, in point of fact, +that the Constitution was made exclusively by the white race. And that +it was made exclusively for the white race is, in my opinion, not only +an assumption not warranted by anything in the Constitution, but +contradicted by its opening declaration, that it was ordained and +established, by the people of the United States, for themselves and +their posterity. And as free colored persons were then citizens of at +least five States, and so in every sense part of the people of the +United States, they were among those for whom and whose posterity the +Constitution was ordained and established. + +Again, it has been objected, that if the Constitution has left to the +several States the rightful power to determine who of their +inhabitants shall be citizens of the United States, the States may +make aliens citizens. + +The answer is obvious. The Constitution has left to the States the +determination what persons, born within their respective limits, shall +acquire by birth citizenship of the United States; it has not left to +them any power to prescribe any rule for the removal of the +disabilities of alienage. This power is exclusively in Congress. + +It has been further objected, that if free colored persons, born +within a particular State, and made citizens of that State by its +Constitution and laws, are thereby made citizens of the United States, +then, under the second section of the fourth article of the +Constitution, such persons would be entitled to all the privileges and +immunities of citizens in the several States; and if so, then colored +persons could vote, and be eligible to not only Federal offices, but +offices even in those States whose Constitutions and laws disqualify +colored persons from voting or being elected to office. + +But this position rests upon an assumption which I deem untenable. Its +basis is, that no one can be deemed a citizen of the United States who +is not entitled to enjoy all the privileges and franchises which are +conferred on any citizen. (See 1 Lit. Kentucky R., 326.) That this is +not true, under the Constitution of the United States, seems to me +clear. + +A naturalized citizen cannot be President of the United States, nor a +Senator till after the lapse of nine years, nor a Representative till +after the lapse of seven years, from his naturalization. Yet, as soon +as naturalized, he is certainly a citizen of the United States. Nor is +any inhabitant of the District of Columbia, or of either of the +Territories, eligible to the office of Senator or Representative in +Congress, though they may be citizens of the United States. So, in all +the States, numerous persons, though citizens, cannot vote, or cannot +hold office, either on account of their age, or sex, or the want of +the necessary legal qualifications. The truth is, that citizenship, +under the Constitution of the United States, is not dependent on the +possession of any particular political or even of all civil rights; +and any attempt so to define it must lead to error. To what citizens +the elective franchise shall be confided, is a question to be +determined by each State, in accordance with its own views of the +necessities or expediencies of its condition. What civil rights shall +be enjoyed by its citizens, and whether all shall enjoy the same, or +how they may be gained or lost, are to be determined in the same way. + +One may confine the right of suffrage to white male citizens; another +may extend it to colored persons and females; one may allow all +persons above a prescribed age to convey property and transact +business; another may exclude married women. But whether native-born +women, or persons under age, or under guardianship because insane or +spendthrifts, be excluded from voting or holding office, or allowed to +do so, I apprehend no one will deny that they are citizens of the +United States. Besides, this clause of the Constitution does not +confer on the citizens of one State, in all other States, specific and +enumerated privileges and immunities. They are entitled to such as +belong to citizenship, but not to such as belong to particular +citizens attended by other qualifications. Privileges and immunities +which belong to certain citizens of a State, by reason of the +operation of causes other than mere citizenship, are not conferred. +Thus, if the laws of a State require, in addition to citizenship of +the State, some qualification for office, or the exercise of the +elective franchise, citizens of all other States, coming thither to +reside, and not possessing those qualifications, cannot enjoy those +privileges, not because they are not to be deemed entitled to the +privileges of citizens of the State in which they reside, but because +they, in common with the native-born citizens of that State, must have +the qualifications prescribed by law for the enjoyment of such +privileges, under its Constitution and laws. It rests with the States +themselves so to frame their Constitutions and laws as not to attach a +particular privilege or immunity to mere naked citizenship. If one of +the States will not deny to any of its own citizens a particular +privilege or immunity, if it confer it on all of them by reason of +mere naked citizenship, then it may be claimed by every citizen of +each State by force of the Constitution; and it must be borne in mind, +that the difficulties which attend the allowance of the claims of +colored persons to be citizens of the United States are not avoided by +saying that, though each State may make them its citizens, they are +not thereby made citizens of the United States, because the privileges +of general citizenship are secured to the citizens of each State. The +language of the Constitution is, "The citizens of each State shall be +entitled to all privileges and immunities of citizens in the several +States." If each State may make such persons its citizens, they +become, as such, entitled to the benefits of this article, if there be +a native-born citizenship of the United States distinct from a +native-born citizenship of the several States. + +There is one view of this article entitled to consideration in this +connection. It is manifestly copied from the fourth of the Articles of +Confederation, with only slight changes of phraseology, which render +its meaning more precise, and dropping the clause which excluded +paupers, vagabonds, and fugitives from justice, probably because these +cases could be dealt with under the police powers of the States, and a +special provision therefor was not necessary. It has been suggested, +that in adopting it into the Constitution, the words "free +inhabitants" were changed for the word "citizens." An examination of +the forms of expression commonly used in the State papers of that day, +and an attention to the substance of this article of the +Confederation, will show that the words "free inhabitants," as then +used, were synonymous with citizens. When the Articles of +Confederation were adopted, we were in the midst of the war of the +Revolution, and there were very few persons then embraced in the words +"free inhabitants," who were not born on our soil. It was not a time +when many, save the children of the soil, were willing to embark +their fortunes in our cause; and though there might be an inaccuracy +in the uses of words to call free inhabitants citizens, it was then a +technical rather than a substantial difference. If we look into the +Constitutions and State papers of that period, we find the inhabitants +or people of these colonies, or the inhabitants of this State, or +Commonwealth, employed to designate those whom we should now +denominate citizens. The substance and purpose of the article prove it +was in this sense it used these words: it secures to the free +inhabitants of each State the privileges and immunities of free +citizens in every State. It is not conceivable that the States should +have agreed to extend the privileges of citizenship to persons not +entitled to enjoy the privileges of citizens in the States where they +dwelt; that under this article there was a class of persons in some of +the States, not citizens, to whom were secured all the privileges and +immunities of citizens when they went into other States; and the just +conclusion is, that though the Constitution cured an inaccuracy of +language, it left the substance of this article in the National +Constitution the same as it was in the Articles of Confederation. + +The history of this fourth article, respecting the attempt to exclude +free persons of color from its operation, has been already stated. It +is reasonable to conclude that this history was known to those who +framed and adopted the Constitution. That under this fourth article of +the Confederation, free persons of color might be entitled to the +privileges of general citizenship, if otherwise entitled thereto, is +clear. When this article was, in substance, placed in and made part of +the Constitution of the United States, with no change in its language +calculated to exclude free colored persons from the benefit of its +provisions, the presumption is, to say the least, strong, that the +practical effect which it was designed to have, and did have, under +the former Government, it was designed to have, and should have, under +the new Government. + +It may be further objected, that if free colored persons may be +citizens of the United States, it depends only on the will of a master +whether he will emancipate his slave, and thereby make him a citizen. +Not so. The master is subject to the will of the State. Whether he +shall be allowed to emancipate his slave at all; if so, on what +conditions; and what is to be the political _status_ of the freed man, +depend, not on the will of the master, but on the will of the State, +upon which the political _status_ of all its native-born inhabitants +depends. Under the Constitution of the United States, each State has +retained this power of determining the political _status_ of its +native-born inhabitants, and no exception thereto can be found in the +Constitution. And if a master in a slaveholding State should carry his +slave into a free State, and there emancipate him, he would not +thereby make him a native-born citizen of that State, and consequently +no privileges could be claimed by such emancipated slave as a citizen +of the United States. For, whatever powers the States may exercise to +confer privileges of citizenship on persons not born on their soil, +the Constitution of the United States does not recognise such +citizens. As has already been said, it recognises the great principle +of public law, that allegiance and citizenship spring from the place +of birth. It leaves to the States the application of that principle to +individual cases. It secured to the citizens of each State the +privileges and immunities of citizens in every other State. But it +does not allow to the States the power to make aliens citizens, or +permit one State to take persons born on the soil of another State, +and, contrary to the laws and policy of the State where they were +born, make them its citizens, and so citizens of the United States. No +such deviation from the great rule of public law was contemplated by +the Constitution; and when any such attempt shall be actually made, it +is to be met by applying to it those rules of law and those principles +of good faith which will be sufficient to decide it, and not, in my +judgment, by denying that all the free native-born inhabitants of a +State, who are its citizens under its Constitution and laws, are also +citizens of the United States. + +It has sometimes been urged that colored persons are shown not to be +citizens of the United States by the fact that the naturalization laws +apply only to white persons. But whether a person born in the United +States be or be not a citizen, cannot depend on laws which refer only +to aliens, and do not affect the _status_ of persons born in the +United States. The utmost effect which can be attributed to them is, +to show that Congress has not deemed it expedient generally to apply +the rule to colored aliens. That they might do so, if thought fit, is +clear. The Constitution has not excluded them. And since that has +conferred the power on Congress to naturalize colored aliens, it +certainly shows color is not a necessary qualification for citizenship +under the Constitution of the United States. It may be added, that the +power to make colored persons citizens of the United States, under the +Constitution, has been actually exercised in repeated and important +instances. (See the Treaties with the Choctaws, of September 27, 1830, +art. 14; with the Cherokees, of May 23, 1836, art. 12; Treaty of +Guadalupe Hidalgo, February 2, 1848, art. 8.) + +I do not deem it necessary to review at length the legislation of +Congress having more or less bearing on the citizenship of colored +persons. It does not seem to me to have any considerable tendency to +prove that it has been considered by the legislative department of the +Government, that no such persons are citizens of the United States. +Undoubtedly they have been debarred from the exercise of particular +rights or privileges extended to white persons, but, I believe, always +in terms which, by implication, admit they may be citizens. Thus the +act of May 17, 1792, for the organization of the militia, directs the +enrollment of "every free, able-bodied, white male citizen." An +assumption that none but white persons are citizens, would be as +inconsistent with the just import of this language, as that all +citizens are able-bodied, or males. + +So the act of February 28, 1803, (2 Stat. at Large, 205,) to prevent +the importation of certain persons into States, when by the laws +thereof their admission is prohibited, in its first section forbids +all masters of vessels to import or bring "any negro, mulatto, or +other person of color, not being a native, _a citizen_, or registered +seaman of the United States," &c. + +The acts of March 3, 1813, section 1, (2 Stat. at Large, 809,) and +March 1, 1817, section 3, (3 Stat. at Large, 351,) concerning seamen, +certainly imply there may be persons of color, natives of the United +States, who are not citizens of the United States. This implication is +undoubtedly in accordance with the fact. For not only slaves, but free +persons of color, born in some of the States, are not citizens. But +there is nothing in these laws inconsistent with the citizenship of +persons of color in others of the States, nor with their being +citizens of the United States. + +Whether much or little weight should be attached to the particular +phraseology of these and other laws, which were not passed with any +direct reference to this subject, I consider their tendency to be, as +already indicated, to show that, in the apprehension of their framers, +color was not a necessary qualification of citizenship. It would be +strange, if laws were found on our statute book to that effect, when, +by solemn treaties, large bodies of Mexican and North American Indians +as well as free colored inhabitants of Louisiana have been admitted to +citizenship of the United States. + +In the legislative debates which preceded the admission of the State +of Missouri into the Union, this question was agitated. Its result is +found in the resolution of Congress, of March 5, 1821, for the +admission of that State into the Union. The Constitution of Missouri, +under which that State applied for admission into the Union, provided, +that it should be the duty of the Legislature "to pass laws to +prevent free negroes and mulattoes from coming to and settling in the +State, under any pretext whatever." One ground of objection to the +admission of the State under this Constitution was, that it would +require the Legislature to exclude free persons of color, who would be +entitled, under the second section of the fourth article of the +Constitution, not only to come within the State, but to enjoy there +the privileges and immunities of citizens. The resolution of Congress +admitting the State was upon the fundamental condition, "that the +Constitution of Missouri shall never be construed to authorize the +passage of any law, and that no law shall be passed in conformity +thereto, by which any citizen of either of the States of this Union +shall be excluded from the enjoyment of any of the privileges and +immunities to which such citizen is entitled under the Constitution of +the United States." It is true, that neither this legislative +declaration, nor anything in the Constitution or laws of Missouri, +could confer or take away any privilege or immunity granted by the +Constitution. But it is also true, that it expresses the then +conviction of the legislative power of the United States, that free +negroes, as citizens of some of the States, might be entitled to the +privileges and immunities of citizens in all the States. + +The conclusions at which I have arrived on this part of the case are: + +_First._ That the free native-born citizens of each State are citizens +of the United States. + +_Second._ That as free colored persons born within some of the States +are citizens of those States, such persons are also citizens of the +United States. + +_Third._ That every such citizen, residing in any State, has the right +to sue and is liable to be sued in the Federal courts, as a citizen of +that State in which he resides. + +_Fourth._ That as the plea to the jurisdiction in this case shows no +facts, except that the plaintiff was of African descent, and his +ancestors were sold as slaves, and as these facts are not inconsistent +with his citizenship of the United States, and his residence in the +State of Missouri, the plea to the jurisdiction was bad, and the +judgment of the Circuit Court overruling it was correct. + +I dissent, therefore, from that part of the opinion of the majority of +the court, in which it is held that a person of African descent cannot +be a citizen of the United States; and I regret I must go further, and +dissent both from what I deem their assumption of authority to examine +the constitutionality of the act of Congress commonly called the +Missouri compromise act, and the grounds and conclusions announced in +their opinion. + +Having first decided that they were bound to consider the sufficiency +of the plea to the jurisdiction of the Circuit Court, and having +decided that this plea showed that the Circuit Court had not +jurisdiction, and consequently that this is a case to which the +judicial power of the United States does not extend, they have gone on +to examine the merits of the case as they appeared on the trial before +the court and jury, on the issues joined on the pleas in bar, and so +have reached the question of the power of Congress to pass the act of +1820. On so grave a subject as this, I feel obliged to say that, in my +opinion, such an exertion of judicial power transcends the limits of +the authority of the court, as described by its repeated decisions, +and, as I understand, acknowledged in this opinion of the majority of +the court. + +In the course of that opinion, it became necessary to comment on the +case of Legrand _v._ Darnall, (reported in 2 Peters's R., 664.) In +that case, a bill was filed, by one alleged to be a citizen of +Maryland, against one alleged to be a citizen of Pennsylvania. The +bill stated that the defendant was the son of a white man by one of +his slaves; and that the defendant's father devised to him certain +lands, the title to which was put in controversy by the bill. These +facts were admitted in the answer, and upon these and other facts the +court made its decree, founded on the principle that a devise of land +by a master to a slave was by implication also a bequest of his +freedom. The facts that the defendant was of African descent, and was +born a slave, were not only before the court, but entered into the +entire substance of its inquiries. The opinion of the majority of my +brethren in this case disposes of the case of Legrand _v._ Darnall, by +saying, among other things, that as the fact that the defendant was +born a slave only came before this court on the bill and answer, it +was then too late to raise the question of the personal disability of +the party, and therefore that decision is altogether inapplicable in +this case. + +In this I concur. Since the decision of this court in Livingston _v._ +Story, (11 Pet., 351,) the law has been settled, that when the +declaration or bill contains the necessary averments of citizenship, +this court cannot look at the record, to see whether those averments +are true, except so far as they are put in issue by a plea to the +jurisdiction. In that case, the defendant denied by his answer that +Mr. Livingston was a citizen of New York, as he had alleged in the +bill. Both parties went into proofs. The court refused to examine +those proofs, with reference to the personal disability of the +plaintiff. This is the settled law of the court, affirmed so lately +as Shepherd _v._ Graves, (14 How., 27,) and Wickliff _v._ Owings, (17 +How., 51.) (See also De Wolf _v._ Rabaud, 1 Pet., 476.) But I do not +understand this to be a rule which the court may depart from at its +pleasure. If it be a rule, it is as binding on the court as on the +suitors. If it removes from the latter the power to take any objection +to the personal disability of a party alleged by the record to be +competent, which is not shown by a plea to the jurisdiction, it is +because the court are forbidden by law to consider and decide on +objections so taken. I do not consider it to be within the scope of +the judicial power of the majority of the court to pass upon any +question respecting the plaintiff's citizenship in Missouri, save that +raised by the plea to the jurisdiction; and I do not hold any opinion +of this court, or any court, binding, when expressed on a question not +legitimately before it. (Carroll _v._ Carroll, 16 How., 275.) The +judgment of this court is, that the case is to be dismissed for want +of jurisdiction, because the plaintiff was not a citizen of Missouri, +as he alleged in his declaration. Into that judgment, according to the +settled course of this court, nothing appearing after a plea to the +merits can enter. A great question of constitutional law, deeply +affecting the peace and welfare of the country, is not, in my opinion, +a fit subject to be thus reached. + +But as, in my opinion, the Circuit Court had jurisdiction, I am +obliged to consider the question whether its judgment on the merits of +the case should stand or be reversed. + +The residence of the plaintiff in the State of Illinois, and the +residence of himself and his wife in the territory acquired from +France lying north of latitude thirty-six degrees thirty minutes, and +north of the State of Missouri, are each relied on by the plaintiff in +error. As the residence in the territory affects the plaintiff's wife +and children as well as himself, I must inquire what was its effect. + +The general question may be stated to be, whether the plaintiff's +_status_, as a slave, was so changed by his residence within that +territory, that he was not a slave in the State of Missouri, at the +time this action was brought. + +In such cases, two inquiries arise, which may be confounded, but +should be kept distinct. + +The first is, what was the law of the Territory into which the master +and slave went, respecting the relation between them? + +The second is, whether the State of Missouri recognises and allows the +effect of that law of the Territory, on the _status_ of the slave, on +his return within its jurisdiction. + +As to the first of these questions, the will of States and nations, +by whose municipal law slavery is not recognised, has been manifested +in three different ways. + +One is, absolutely to dissolve the relation, and terminate the rights +of the master existing under the law of the country whence the parties +came. This is said by Lord Stowell, in the case of the slave Grace, (2 +Hag. Ad. R., 94,) and by the Supreme Court of Louisiana in the case of +Maria [Transcriber's Note: Marie] Louise _v._ Marot, (9 Louis. R., +473,) to be the law of France; and it has been the law of several +States of this Union, in respect to slaves introduced under certain +conditions. (Wilson _v._ Isabel, 5 Call's R., 430; Hunter _v._ Hulcher +[Transcriber's Note: Fulcher], 1 Leigh, 172; Stewart _v._ Oaks, 5 Har. +and John., 107.) + +The second is, where the municipal law of a country not recognising +slavery, it is the will of the State to refuse the master all aid to +exercise any control over his slave; and if he attempt to do so, in a +manner justifiable only by that relation, to prevent the exercise of +that control. But no law exists, designed to operate directly on the +relation of master and slave, and put an end to that relation. This is +said by Lord Stowell, in the case above mentioned, to be the law of +England, and by Mr. Chief Justice Shaw, in the case of the +Commonwealth _v._ Aves, (18 Pick., 193,) to be the law of +Massachusetts. + +The third is, to make a distinction between the case of a master and +his slave only temporarily in the country, _animo non manendi_, and +those who are there to reside for permanent or indefinite purposes. +This is said by Mr. Wheaton to be the law of Prussia, and was formerly +the statute law of several States of our Union. It is necessary in +this case to keep in view this distinction between those countries +whose laws are designed to act directly on the _status_ of a slave, +and make him a freeman, and those where his master can obtain no aid +from the laws to enforce his rights. + +It is to the last case only that the authorities, out of Missouri, +relied on by defendant, apply, when the residence in the +non-slaveholding Territory was permanent. In the Commonwealth _v._ +Aves, (18 Pick., 218,) Mr. Chief Justice Shaw said: "From the +principle above stated, on which a slave brought here becomes free, to +wit: that he becomes entitled to the protection of our laws, it would +seem to follow, as a necessary conclusion, that if the slave waives +the protection of those laws, and returns to the State where he is +held as a slave, his condition is not changed." It was upon this +ground, as is apparent from his whole reasoning, that Sir William +Scott rests his opinion in the case of the slave Grace. To use one of +his expressions, the effect of the law of England was to put the +liberty of the slave into a parenthesis. If there had been an act of +Parliament declaring that a slave coming to England with his master +should thereby be deemed no longer to be a slave, it is easy to see +that the learned judge could not have arrived at the same conclusion. +This distinction is very clearly stated and shown by President Tucker, +in his opinion in the case of Betty _v._ Horton, (5 Leigh's Virginia +R., 615.) (See also Hunter _v._ Fletcher [Transcriber's Note: +Fulcher], 1 Leigh's Va. R., 172; Maria [Transcriber's Note: Marie] +Louise _v._ Marot, 9 Louisiana R. [Transcriber's Note: at 473]; Smith +_v._ Smith, 13 Ib., 441; Thomas _v._ Genevieve, 16 Ib., 483; Rankin +_v._ Lydia, 2 A.K. Marshall, 467; Davies _v._ Tingle, 8 B. Munroe, +539; Griffeth [Transcriber's Note: Griffith] _v._ Fanny, Gilm. Va. R., +143; Lumford _v._ Coquillon, 14 Martin's La. R., 405; Josephine _v._ +Poultney, 1 Louis. Ann. R., 329.) + +But if the acts of Congress on this subject are valid, the law of the +Territory of Wisconsin, within whose limits the residence of the +plaintiff and his wife, and their marriage and the birth of one or +both of their children, took place, falls under the first category, +and is a law operating directly on the _status_ of the slave. By the +eighth section of the act of March 6, 1820, (3 Stat. at Large, 548,) +it was enacted that, within this Territory, "slavery and involuntary +servitude, otherwise than in the punishment of crimes, whereof the +parties shall have been duly convicted, shall be, and is hereby, +forever prohibited: _Provided, always_, that any person escaping into +the same, from whom labor or service is lawfully claimed in any State +or Territory of the United States, such fugitive may be lawfully +reclaimed, and conveyed to the person claiming his or her labor or +service, as aforesaid." + +By the act of April 20, 1836, (4 Stat. at Large, 10,) passed in the +same month and year of the removal of the plaintiff to Fort Snelling, +this part of the territory ceded by France, where Fort Snelling is, +together with so much of the territory of the United States east of +the Mississippi as now constitutes the State of Wisconsin, was brought +under a Territorial Government, under the name of the Territory of +Wisconsin. By the eighteenth section of this act, it was enacted, +"That the inhabitants of this Territory shall be entitled to and enjoy +all and singular the rights, privileges, and advantages, granted and +secured to the people of the Territory of the United States northwest +of the river Ohio, by the articles of compact contained in the +ordinance for the government of said Territory, passed on the 13th day +of July, 1787; and shall be subject to all the restrictions and +prohibitions in said articles of compact imposed upon the people of +the said Territory." The sixth article of that compact is, "there +shall be neither slavery nor involuntary servitude in the said +Territory, otherwise than in the punishment of crimes, whereof the +party shall have been duly convicted. _Provided, always_, that any +person escaping into the same, from whom labor or service is lawfully +claimed in any one of the original States, such fugitive may be +lawfully reclaimed, and conveyed to the person claiming his or her +labor or service, as aforesaid." By other provisions of this act +establishing the Territory of Wisconsin, the laws of the United +States, and the then existing laws of the State of Michigan, are +extended over the Territory; the latter being subject to alteration +and repeal by the legislative power of the Territory created by the +act. + +Fort Snelling was within the Territory of Wisconsin, and these laws +were extended over it. The Indian title to that site for a military +post had been acquired from the Sioux nation as early as September 23, +1805, (Am. State Papers, Indian Affairs, vol. 1, p. 744,) and until +the erection of the Territorial Government, the persons at that post +were governed by the rules and articles of war, and such laws of the +United States, including the eighth section of the act of March 6, +1820, prohibiting slavery, as were applicable to their condition; but +after the erection of the Territory, and the extension of the laws of +the United States and the laws of Michigan over the whole of the +Territory, including this military post, the persons residing there +were under the dominion of those laws in all particulars to which the +rules and articles of war did not apply. + +It thus appears that, by these acts of Congress, not only was a +general system of municipal law borrowed from the State of Michigan, +which did not tolerate slavery, but it was positively enacted that +slavery and involuntary servitude, with only one exception, +specifically described, should not exist there. It is not simply that +slavery is not recognised and cannot be aided by the municipal law. It +is recognised for the purpose of being absolutely prohibited, and +declared incapable of existing within the Territory, save in the +instance of a fugitive slave. + +It would not be easy for the Legislature to employ more explicit +language to signify its will that the _status_ of slavery should not +exist within the Territory, than the words found in the act of 1820, +and in the ordinance of 1787; and if any doubt could exist concerning +their application to cases of masters coming into the Territory with +their slaves to reside, that doubt must yield to the inference +required by the words of exception. That exception is, of cases of +fugitive slaves. An exception from a prohibition marks the extent of +the prohibition; for it would be absurd, as well as useless, to except +from a prohibition a case not contained within it. (9 Wheat., 200.) I +must conclude, therefore, that it was the will of Congress that the +state of involuntary servitude of a slave, coming into the Territory +with his master, should cease to exist. The Supreme Court of Missouri +so held in Rachel _v._ Walker, (4 Misso. R., 350,) which was the case +of a military officer going into the Territory with two slaves. + +But it is a distinct question, whether the law of Missouri recognised +and allowed effect to the change wrought in the _status_ of the +plaintiff, by force of the laws of the Territory of Wisconsin. + +I say the law of Missouri, because a judicial tribunal, in one State +or nation, can recognise personal rights acquired by force of the law +of any other State or nation, only so far as it is the law of the +former State that those rights should be recognised. But, in the +absence of positive law to the contrary, the will of every civilized +State must be presumed to be to allow such effect to foreign laws as +is in accordance with the settled rules of international law. And +legal tribunals are bound to act on this presumption. It may be +assumed that the motive of the State in allowing such operation to +foreign laws is what has been termed comity. But, as has justly been +said, (per Chief Justice Taney, 13 Pet., 589,) it is the comity of the +State, not of the court. The judges have nothing to do with the motive +of the State. Their duty is simply to ascertain and give effect to its +will. And when it is found by them that its will to depart from a rule +of international law has not been manifested by the State, they are +bound to assume that its will is to give effect to it. Undoubtedly, +every sovereign State may refuse to recognise a change, wrought by the +law of a foreign State, on the _status_ of a person, while within such +foreign State, even in cases where the rules of international law +require that recognition. Its will to refuse such recognition may be +manifested by what we term statute law, or by the customary law of the +State. It is within the province of its judicial tribunals to inquire +and adjudge whether it appears, from the statute or customary law of +the State, to be the will of the State to refuse to recognise such +changes of _status_ by force of foreign law, as the rules of the law +of nations require to be recognised. But, in my opinion, it is not +within the province of any judicial tribunal to refuse such +recognition from any political considerations, or any view it may take +of the exterior political relations between the State and one or more +foreign States, or any impressions it may have that a change of +foreign opinion and action on the subject of slavery may afford a +reason why the State should change its own action. To understand and +give just effect to such considerations, and to change the action of +the State in consequence of them, are functions of diplomatists and +legislators, not of judges. + +The inquiry to be made on this part of the case is, therefore, whether +the State of Missouri has, by its statute, or its customary law, +manifested its will to displace any rule of international law, +applicable to a change of the _status_ of a slave, by foreign law. + +I have not heard it suggested that there was any statute of the State +of Missouri bearing on this question. The customary law of Missouri is +the common law, introduced by statute in 1816. (1 Ter. Laws, 436.) And +the common law, as Blackstone says, (4 Com., 67,) adopts, in its full +extent, the law of nations, and holds it to be a part of the law of +the land. + +I know of no sufficient warrant for declaring that any rule of +international law, concerning the recognition, in that State, of a +change of _status_, wrought by an extra-territorial law, has been +displaced or varied by the will of the State of Missouri. + +I proceed then to inquire what the rules of international law +prescribe concerning the change of _status_ of the plaintiff wrought +by the law of the Territory of Wisconsin. + +It is generally agreed by writers upon international law, and the rule +has been judicially applied in a great number of cases that wherever +any question may arise concerning the _status_ of a person, it must be +determined according to that law which has next previously rightfully +operated on and fixed that _status_. And, further, that the laws of a +country do not rightfully operate upon and fix the _status_ of persons +who are within its limits _in itinere_, or who are abiding there for +definite temporary purposes, as for health, curiosity, or occasional +business; that these laws, known to writers on public and private +international law as personal statutes, operate only on the +inhabitants of the country. Not that it is or can be denied that each +independent nation may, if it thinks fit, apply them to all persons +within their limits. But when this is done, not in conformity with the +principles of international law, other States are not understood to be +willing to recognise or allow effect to such applications of personal +statutes. + +It becomes necessary, therefore, to inquire whether the operation of +the laws of the Territory of Wisconsin upon the _status_ of the +plaintiff was or was not such an operation as these principles of +international law require other States to recognise and allow effect +to. + +And this renders it needful to attend to the particular facts and +circumstances of this case. + +It appears that this case came on for trial before the Circuit Court +and a jury, upon an issue, in substance, whether the plaintiff, +together with his wife and children, were the slaves of the defendant. + +The court instructed the jury that, "upon the facts in this case, the +law is with the defendant." This withdrew from the jury the +consideration and decision of every matter of fact. The evidence in +the case consisted of written admissions, signed by the counsel of the +parties. If the case had been submitted to the judgment of the court, +upon an agreed statement of facts, entered of record, in place of a +special verdict, it would have been necessary for the court below, and +for this court, to pronounce its judgment solely on those facts, thus +agreed, without inferring any other facts therefrom. By the rules of +the common law applicable to such a case, and by force of the seventh +article of the amendments of the Constitution, this court is precluded +from finding any fact not agreed to by the parties on the record. No +submission to the court on a statement of facts was made. It was a +trial by jury, in which certain admissions, made by the parties, were +the evidence. The jury were not only competent, but were bound to draw +from that evidence every inference which, in their judgment, exercised +according to the rules of law, it would warrant. The Circuit Court +took from the jury the power to draw any inferences from the +admissions made by the parties, and decided the case for the +defendant. This course can be justified here, if at all, only by its +appearing that upon the facts agreed, and all such inferences of fact +favorable to the plaintiff's case, as the jury might have been +warranted in drawing from those admissions, the law was with the +defendant. Otherwise, the plaintiff would be deprived of the benefit +of his trial by jury, by whom, for aught we can know, those inferences +favorable to his case would have been drawn. + +The material facts agreed, bearing on this part of the case, are, that +Dr. Emerson, the plaintiff's master, resided about two years at the +military post of Fort Snelling, being a surgeon in the army of the +United States, his domicil of origin being unknown; and what, if +anything, he had done, to preserve or change his domicil prior to his +residence at Rock Island, being also unknown. + +Now, it is true, that under some circumstances the residence of a +military officer at a particular place, in the discharge of his +official duties, does not amount to the acquisition of a technical +domicil. But it cannot be affirmed, with correctness, that it never +does. There being actual residence, and this being presumptive +evidence of domicil, all the circumstances of the case must be +considered, before a legal conclusion can be reached, that his place +of residence is not his domicil. If a military officer stationed at a +particular post should entertain an expectation that his residence +there would be indefinitely protracted, and in consequence should +remove his family to the place where his duties were to be discharged, +form a permanent domestic establishment there, exercise there the +civil rights and discharge the civil duties of an inhabitant, while he +did no act and manifested no intent to have a domicil elsewhere, I +think no one would say that the mere fact that he was himself liable +to be called away by the orders of the Government would prevent his +acquisition of a technical domicil at the place of the residence of +himself and his family. In other words, I do not think a military +officer incapable of acquiring a domicil. (Bruce _v._ Bruce, 2 Bos. +and Pul., 230; Munroe _v._ Douglass, 5 Mad. Ch. R., 232.) This being +so, this case stands thus: there was evidence before the jury that +Emerson resided about two years at Fort Snelling, in the Territory of +Wisconsin. This may or may not have been with such intent as to make +it his technical domicil. The presumption is that it was. It is so +laid down by this court, in Ennis _v._ Smith, (14 How.,) and the +authorities in support of the position are there referred to. His +intent was a question of fact for the jury. (Fitchburg _v._ +Winchendon, 4 Cush., 190.) + +The case was taken from the jury. If they had power to find that the +presumption of the necessary intent had not been rebutted, we cannot +say, on this record, that Emerson had not his technical domicil at +Fort Snelling. But, for reasons which I shall now proceed to give, I +do not deem it necessary in this case to determine the question of the +technical domicil of Dr. Emerson. + +It must be admitted that the inquiry whether the law of a particular +country has rightfully fixed the _status_ of a person, so that in +accordance with the principles of international law that _status_ +should be recognised in other jurisdictions, ordinarily depends on the +question whether the person was domiciled in the country whose laws +are asserted to have fixed his _status_. But, in the United States, +questions of this kind may arise, where an attempt to decide solely +with reference to technical domicil, tested by the rules which are +applicable to changes of places of abode from one country to another, +would not be consistent with sound principles. And, in my judgment, +this is one of those cases. + +The residence of the plaintiff, who was taken by his master, Dr. +Emerson, as a slave, from Missouri to the State of Illinois, and +thence to the Territory of Wisconsin, must be deemed to have been for +the time being, and until he asserted his own separate intention, the +same as the residence of his master; and the inquiry, whether the +personal statutes of the Territory were rightfully extended over the +plaintiff, and ought, in accordance with the rules of international +law, to be allowed to fix his _status_, must depend upon the +circumstances under which Dr. Emerson went into that Territory, and +remained there; and upon the further question, whether anything was +there rightfully done by the plaintiff to cause those personal +statutes to operate on him. + +Dr. Emerson was an officer in the army of the United States. He went +into the Territory to discharge his duty to the United States. The +place was out of the jurisdiction of any particular State, and within +the exclusive jurisdiction of the United States. It does not appear +where the domicil of origin of Dr. Emerson was, nor whether or not he +had lost it, and gained another domicil, nor of what particular State, +if any, he was a citizen. + +On what ground can it be denied that all valid laws of the United +States, constitutionally enacted by Congress for the government of the +Territory, rightfully extended over an officer of the United States +and his servant who went into the Territory to remain there for an +indefinite length of time, to take part in its civil or military +affairs? They were not foreigners, coming from abroad. Dr. Emerson was +a citizen of the country which had exclusive jurisdiction over the +Territory; and not only a citizen, but he went there in a public +capacity, in the service of the same sovereignty which made the laws. +Whatever those laws might be, whether of the kind denominated personal +statutes, or not, so far as they were intended by the legislative +will, constitutionally expressed, to operate on him and his servant, +and on the relations between them, they had a rightful operation, and +no other State or country can refuse to allow that those laws might +rightfully operate on the plaintiff and his servant, because such a +refusal would be a denial that the United States could, by laws +constitutionally enacted, govern their own servants, residing on their +own Territory, over which the United States had the exclusive control, +and in respect to which they are an independent sovereign power. +Whether the laws now in question were constitutionally enacted, I +repeat once more, is a separate question. But, assuming that they +were, and that they operated directly on the _status_ of the +plaintiff, I consider that no other State or country could question +the rightful power of the United States so to legislate, or, +consistently with the settled rules of international law, could refuse +to recognise the effects of such legislation upon the _status_ of +their officers and servants, as valid everywhere. + +This alone would, in my apprehension, be sufficient to decide this +question. + +But there are other facts stated on the record which should not be +passed over. It is agreed that, in the year 1836, the plaintiff, while +residing in the Territory, was married, with the consent of Dr. +Emerson, to Harriet, named in the declaration as his wife, and that +Eliza and Lizzie were the children of that marriage, the first named +having been born on the Mississippi river, north of the line of +Missouri, and the other having been born after their return to +Missouri. And the inquiry is, whether, after the marriage of the +plaintiff in the Territory, with the consent of Dr. Emerson, any other +State or country can, consistently with the settled rules of +international law, refuse to recognise and treat him as a free man, +when suing for the liberty of himself, his wife, and the children of +that marriage. It is in reference to his _status_, as viewed in other +States and countries, that the contract of marriage and the birth of +children becomes strictly material. At the same time, it is proper to +observe that the female to whom he was married having been taken to +the same military post of Fort Snelling as a slave, and Dr. Emerson +claiming also to be her master at the time of her marriage, her +_status_, and that of the children of the marriage, are also affected +by the same considerations. + +If the laws of Congress governing the Territory of Wisconsin were +constitutional and valid laws, there can be no doubt these parties +were capable of contracting a lawful marriage, attended with all the +usual civil rights and obligations of that condition. In that +Territory they were absolutely free persons, having full capacity to +enter into the civil contract of marriage. + +It is a principle of international law, settled beyond controversy in +England and America, that a marriage, valid by the law of the place +where it was contracted, and not in fraud of the law of any other +place, is valid everywhere; and that no technical domicil at the place +of the contract is necessary to make it so. (See Bishop on Mar. and +Div., 125-129, where the cases are collected.) + +If, in Missouri, the plaintiff were held to be a slave, the validity +and operation of his contract of marriage must be denied. He can have +no legal rights; of course, not those of a husband and father. And the +same is true of his wife and children. The denial of his rights is the +denial of theirs. So that, though lawfully married in the Territory, +when they came out of it, into the State of Missouri, they were no +longer husband and wife; and a child of that lawful marriage, though +born under the same dominion where its parents contracted a lawful +marriage, is not the fruit of that marriage, nor the child of its +father, but subject to the maxim, _partus sequitur ventrem_. + +It must be borne in mind that in this case there is no ground for the +inquiry, whether it be the will of the State of Missouri not to +recognise the validity of the marriage of a fugitive slave, who +escapes into a State or country where slavery is not allowed, and +there contracts a marriage; or the validity of such a marriage, where +the master, being a citizen of the State of Missouri, voluntarily goes +with his slave, _in itinere_, into a State or country which does not +permit slavery to exist, and the slave there contracts marriage +without the consent of his master; for in this case, it is agreed, Dr. +Emerson did consent; and no further question can arise concerning his +rights, so far as their assertion is inconsistent with the validity of +the marriage. Nor do I know of any ground for the assertion that this +marriage was in fraud of any law of Missouri. It has been held by this +court, that a bequest of property by a master to his slave, by +necessary implication entitles the slave to his freedom; because, only +as a freeman could he take and hold the bequest. (Legrand _v._ +Darnall, 2 Pet. R., 664.) It has also been held, that when a master +goes with his slave to reside for an indefinite period in a State +where slavery is not tolerated, this operates as an act of +manumission; because it is sufficiently expressive of the consent of +the master that the slave should be free. (2 Marshall's Ken. R., 470; +14 Martin's Louis. R., 401.) + +What, then, shall we say of the consent of the master, that the slave +may contract a lawful marriage, attended with all the civil rights and +duties which belong to that relation; that he may enter into a +relation which none but a free man can assume--a relation which +involves not only the rights and duties of the slave, but those of the +other party to the contract, and of their descendants to the remotest +generation? In my judgment, there can be no more effectual abandonment +of the legal rights of a master over his slave, than by the consent of +the master that the slave should enter into a contract of marriage, in +a free State, attended by all the civil rights and obligations which +belong to that condition. + +And any claim by Dr. Emerson, or any one claiming under him, the +effect of which is to deny the validity of this marriage, and the +lawful paternity of the children born from it, wherever asserted, is, +in my judgment, a claim inconsistent with good faith and sound reason, +as well as with the rules of international law. And I go further: in +my opinion, a law of the State of Missouri, which should thus annul a +marriage, lawfully contracted by these parties while resident in +Wisconsin, not in fraud of any law of Missouri, or of any right of Dr. +Emerson, who consented thereto, would be a law impairing the +obligation of a contract, and within the prohibition of the +Constitution of the United States. (See 4 Wheat., 629, 695, 696.) + +To avoid misapprehension on this important and difficult subject, I +will state, distinctly, the conclusions at which I have arrived. They +are: + +_First._ The rules of international law respecting the emancipation of +slaves, by the rightful operation of the laws of another State or +country upon the _status_ of the slave, while resident in such foreign +State or country, are part of the common law of Missouri, and have not +been abrogated by any statute law of that State. + +_Second._ The laws of the United States, constitutionally enacted, +which operated directly on and changed the _status_ of a slave coming +into the Territory of Wisconsin with his master, who went thither to +reside for an indefinite length of time, in the performance of his +duties as an officer of the United States, had a rightful operation on +the _status_ of the slave, and it is in conformity with the rules of +international law that this change of _status_ should be recognised +everywhere. + +_Third._ The laws of the United States, in operation in the Territory +of Wisconsin at the time of the plaintiff's residence there, did act +directly on the _status_ of the plaintiff, and change his _status_ to +that of a free man. + +_Fourth._ The plaintiff and his wife were capable of contracting, and, +with the consent of Dr. Emerson, did contract a marriage in that +Territory, valid under its laws; and the validity of this marriage +cannot be questioned in Missouri, save by showing that it was in fraud +of the laws of that State, or of some right derived from them; which +cannot be shown in this case, because the master consented to it. + +_Fifth._ That the consent of the master that his slave, residing in a +country which does not tolerate slavery, may enter into a lawful +contract of marriage, attended with the civil rights and duties which +belong to that condition, is an effectual act of emancipation. And the +law does not enable Dr. Emerson, or any one claiming under him, to +assert a title to the married persons as slaves, and thus destroy the +obligation of the contract of marriage, and bastardize their issue, +and reduce them to slavery. + +But it is insisted that the Supreme Court of Missouri has settled this +case by its decision in Scott _v._ Emerson, (15 Missouri Reports, +576;) and that this decision is in conformity with the weight of +authority elsewhere, and with sound principles. If the Supreme Court +of Missouri had placed its decision on the ground that it appeared Dr. +Emerson never became domiciled in the Territory and so its laws could +not rightfully operate on him and his slave; and the facts that he +went there to reside indefinitely, as an officer of the United States, +and that the plaintiff was lawfully married there, with Dr. Emerson's +consent, were left out of view, the decision would find support in +other cases, and I might not be prepared to deny its correctness. But +the decision is not rested on this ground. The domicil of Dr. Emerson +in that Territory is not questioned in that decision; and it is placed +on a broad denial of the operation, in Missouri, of the law of any +foreign State or country upon the _status_ of a slave, going with his +master from Missouri into such foreign State or country, even though +they went thither to become, and actually became, permanent +inhabitants of such foreign State or country, the laws whereof acted +directly on the _status_ of the slave, and changed his _status_ to +that of a freeman. + +To the correctness of such a decision I cannot assent. In my judgment, +the opinion of the majority of the court in that case is in conflict +with its previous decisions, with a great weight of judicial authority +in other slaveholding States, and with fundamental principles of +private international law. Mr. Chief Justice Gamble, in his dissenting +opinion in that case, said: + +"I regard the question as conclusively settled by repeated +adjudications of this court; and if I doubted or denied the propriety +of those decisions, I would not feel myself any more at liberty to +overturn them, than I would any other series of decisions by which the +law upon any other question had been settled. There is with me nothing +in the law of slavery which distinguishes it from the law on any other +subject, or allows any more accommodation to the temporary excitements +which have gathered around it.... But in the midst of all such +excitement, it is proper that the judicial mind, calm and +self-balanced, should adhere to principles established when there was +no feeling to disturb the view of the legal questions upon which the +rights of parties depend." + +"In this State, it has been recognised from the beginning of the +Government as a correct position in law, that the master who takes his +slave to reside in a State or Territory where slavery is prohibited, +thereby emancipates his slave." (Winney _v._ Whitesides, 1 Mo., 473; +Le Grange [Transcriber's Note: La Grange] _v._ Chouteau, 2 Mo., 20; +Milley _v._ Smith, Ib., 36; Ralph _v._ Duncan, 3 Mo., 194; Julia _v._ +McKinney, Ib., 270; Nat _v._ Ruddle, Ib., 400; Rachel _v._ Walker, 4 +Mo., 350; Wilson _v._ Melvin, 592.) + +Chief Justice Gamble has also examined the decisions of the courts of +other States in which slavery is established, and finds them in +accordance with these preceding decisions of the Supreme Court of +Missouri to which he refers. + +It would be a useless parade of learning for me to go over the ground +which he has so fully and ably occupied. + +But it is further insisted we are bound to follow this decision. I do +not think so. In this case, it is to be determined what laws of the +United States were in operation in the Territory of Wisconsin, and +what was their effect on the _status_ of the plaintiff. Could the +plaintiff contract a lawful marriage there? Does any law of the State +of Missouri impair the obligation of that contract of marriage, +destroy his rights as a husband, bastardize the issue of the marriage, +and reduce them to a state of slavery? + +These questions, which arise exclusively under the Constitution and +laws of the United States, this court, under the Constitution and laws +of the United States, has the rightful authority finally to decide. +And if we look beyond these questions, we come to the consideration +whether the rules of international law, which are part of the laws of +Missouri until displaced by some statute not alleged to exist, do or +do not require the _status_ of the plaintiff, as fixed by the laws of +the Territory of Wisconsin, to be recognised in Missouri. Upon such a +question, not depending on any statute or local usage, but on +principles of universal jurisprudence, this court has repeatedly +asserted it could not hold itself bound by the decisions of State +courts, however great respect might be felt for their learning, +ability, and impartiality. (See Swift _v._ Tyson, 16 Peters's R., 1; +Carpenter _v._ The Providence Ins. Co., Ib., 495; Foxcroft _v._ +Mallet, 4 How., 353; Rowan _v._ Runnels, 5 How., 134.) + +Some reliance has been placed on the fact that the decision in the +Supreme Court of Missouri was between these parties, and the suit +there was abandoned to obtain another trial in the courts of the +United States. + +In Homer _v._ Brown, (16 How., 354,) this court made a decision upon +the construction of a devise of lands, in direct opposition to the +unanimous opinion of the Supreme Court of Massachusetts, between the +same parties, respecting the same subject-matter--the claimant having +become nonsuit in the State court, in order to bring his action in the +Circuit Court of the United States. I did not sit in that case, having +been of counsel for one of the parties while at the bar; but, on +examining the report of the argument of the counsel for the plaintiff +in error, I find they made the point, that this court ought to give +effect to the construction put upon the will by the State court, to +the end that rights respecting lands may be governed by one law, and +that the law of the place where the lands are situated; that they +referred to the State decision of the case, reported in 3 Cushing, +390, and to many decisions of this court. But this court does not seem +to have considered the point of sufficient importance to notice it in +their opinions. In Millar _v._ Austin, (13 How., 218,) an action was +brought by the endorsee of a written promise. The question was, +whether it was negotiable under a statute of Ohio. The Supreme Court +of that State having decided it was not negotiable, the plaintiff +became nonsuit, and brought his action in the Circuit Court of the +United States. The decision of the Supreme Court of the State, +reported 4 Ves., L.J., 527, was relied on. This court unanimously held +the paper to be negotiable. + +When the decisions of the highest court of a State are directly in +conflict with each other, it has been repeatedly held, here, that the +last decision is not necessarily to be taken as the rule. (State Bank +_v._ Knoop, 16 How., 369; Pease _v._ Peck, 18 How., 599.) + +To these considerations I desire to add, that it was not made known to +the Supreme Court of Missouri, so far as appears, that the plaintiff +was married in Wisconsin with the consent of Dr. Emerson, and it is +not made known to us that Dr. Emerson was a citizen of Missouri, a +fact to which that court seem to have attached much importance. + +Sitting here to administer the law between these parties, I do not +feel at liberty to surrender my own convictions of what the law +requires, to the authority of the decision in 15 Missouri Reports. + +I have thus far assumed, merely for the purpose of the argument, that +the laws of the United States, respecting slavery in this Territory, +were constitutionally enacted by Congress. It remains to inquire +whether they are constitutional and binding laws. + +In the argument of this part of the case at bar, it was justly +considered by all the counsel to be necessary to ascertain the source +of the power of Congress over the territory belonging to the United +States. Until this is ascertained, it is not possible to determine the +extent of that power. On the one side it was maintained that the +Constitution contains no express grant of power to organize and govern +what is now known to the laws of the United States as a Territory. +That whatever power of this kind exists, is derived by implication +from the capacity of the United States to hold and acquire territory +out of the limits of any State, and the necessity for its having some +government. + +On the other side, it was insisted that the Constitution has not +failed to make an express provision for this end, and that it is found +in the third section of the fourth article of the Constitution. + +To determine which of these is the correct view, it is needful to +advert to some facts respecting this subject, which existed when the +Constitution was framed and adopted. It will be found that these facts +not only shed much light on the question, whether the framers of the +Constitution omitted to make a provision concerning the power of +Congress to organize and govern Territories, but they will also aid in +the construction of any provision which may have been made respecting +this subject. + +Under the Confederation, the unsettled territory within the limits of +the United States had been a subject of deep interest. Some of the +States insisted that these lands were within their chartered +boundaries, and that they had succeeded to the title of the Crown to +the soil. On the other hand, it was argued that the vacant lands had +been acquired by the United States, by the war carried on by them +under a common Government and for the common interest. + +This dispute was further complicated by unsettled questions of +boundary among several States. It not only delayed the accession of +Maryland to the Confederation, but at one time seriously threatened +its existence. (5 Jour. of Cong., 208, 442.) Under the pressure of +these circumstances, Congress earnestly recommended to the several +States a cession of their claims and rights to the United States. (5 +Jour. of Cong., 442.) And before the Constitution was framed, it had +been begun. That by New York had been made on the 1st day of March, +1781; that of Virginia on the 1st day of March, 1784; that of +Massachusetts on the 19th day of April, 1785; that of Connecticut on +the 14th day of September, 1786; that of South Carolina on the 8th day +of August, 1787, while the Convention for framing the Constitution was +in session. + +It is very material to observe, in this connection, that each of these +acts cedes, in terms, to the United States, as well the jurisdiction +as the soil. + +It is also equally important to note that, when the Constitution was +framed and adopted, this plan of vesting in the United States, for the +common good, the great tracts of ungranted lands claimed by the +several States, in which so deep an interest was felt, was yet +incomplete. It remained for North Carolina and Georgia to cede their +extensive and valuable claims. These were made, by North Carolina on +the 25th day of February, 1790, and by Georgia on the 24th day of +April, 1802. The terms of these last-mentioned cessions will +hereafter be noticed in another connection; but I observe here that +each of them distinctly shows, upon its face, that they were not only +in execution of the general plan proposed by the Congress of the +Confederation, but of a formed purpose of each of these States, +existing when the assent of their respective people was given to the +Constitution of the United States. + +It appears, then, that when the Federal Constitution was framed, and +presented to the people of the several States for their consideration, +the unsettled territory was viewed as justly applicable to the common +benefit, so far as it then had or might attain thereafter a pecuniary +value; and so far as it might become the seat of new States, to be +admitted into the Union upon an equal footing with the original +States. And also that the relations of the United States to that +unsettled territory were of different kinds. The titles of the States +of New York, Virginia, Massachusetts, Connecticut, and South Carolina, +as well of soil as of jurisdiction, had been transferred to the United +States. North Carolina and Georgia had not actually made transfers, +but a confident expectation, founded on their appreciation of the +justice of the general claim, and fully justified by the results, was +entertained, that these cessions would be made. The ordinance of 1787 +had made provision for the temporary government of so much of the +territory actually ceded as lay northwest of the river Ohio. + +But it must have been apparent, both to the framers of the +Constitution and the people of the several States who were to act upon +it, that the Government thus provided for could not continue, unless +the Constitution should confer on the United States the necessary +powers to continue it. That temporary Government, under the ordinance, +was to consist of certain officers, to be appointed by and responsible +to the Congress of the Confederation; their powers had been conferred +and defined by the ordinance. So far as it provided for the temporary +government of the Territory, it was an ordinary act of legislation, +deriving its force from the legislative power of Congress, and +depending for its vitality upon the continuance of that legislative +power. But the officers to be appointed for the Northwestern +Territory, after the adoption of the Constitution, must necessarily be +officers of the United States, and not of the Congress of the +Confederation; appointed and commissioned by the President, and +exercising powers derived from the United States under the +Constitution. + +Such was the relation between the United States and the Northwestern +Territory, which all reflecting men must have foreseen would exist, +when the Government created by the Constitution should supersede that +of the Confederation. That if the new Government should be without +power to govern this Territory, it could not appoint and commission +officers, and send them into the Territory, to exercise there +legislative, judicial, and executive power; and that this Territory, +which was even then foreseen to be so important, both politically and +financially, to all the existing States, must be left not only without +the control of the General Government, in respect to its future +political relations to the rest of the States, but absolutely without +any Government, save what its inhabitants, acting in their primary +capacity, might from time to time create for themselves. + +But this Northwestern Territory was not the only territory, the soil +and jurisdiction whereof were then understood to have been ceded to +the United States. The cession by South Carolina, made in August, +1787, was of "all the territory included within the river Mississippi, +and a line beginning at that part of the said river which is +intersected by the southern boundary of North Carolina, and continuing +along the said boundary line until it intersects the ridge or chain of +mountains which divides the Eastern from the Western waters; then to +be continued along the top of the said ridge of mountains, until it +intersects a line to be drawn due west from the head of the southern +branch of the Tugaloo river, to the said mountains; and thence to run +a due west course to the river Mississippi." + +It is true that by subsequent explorations it was ascertained that the +source of the Tugaloo river, upon which the title of South Carolina +depended, was so far to the northward, that the transfer conveyed only +a narrow slip of land, about twelve miles wide, lying on the top of +the ridge of mountains, and extending from the northern boundary of +Georgia to the southern boundary of North Carolina. But this was a +discovery made long after the cession, and there can be no doubt that +the State of South Carolina, in making the cession, and the Congress +in accepting it, viewed it as a transfer to the United States of the +soil and jurisdiction of an extensive and important part of the +unsettled territory ceded by the Crown of Great Britain by the treaty +of peace, though its quantity or extent then remained to be +ascertained.[5] + +[Footnote 5: _Note by Mr. Justice Curtis._ This statement that _some_ +territory did actually pass by this cession, is taken from the opinion +of the court, delivered by Mr. Justice Wayne, in the case of Howard +_v._ Ingersoll, reported in 13 How., 405. It is an obscure matter, +and, on some examination of it, I have been led to doubt whether any +territory actually passed by this cession. But as the fact is not +important to the argument, I have not thought it necessary further to +investigate it.] + +It must be remembered also, as has been already stated, that not only +was there a confident expectation entertained by the other States, +that North Carolina and Georgia would complete the plan already so far +executed by New York, Virginia, Massachusetts, Connecticut, and South +Carolina, but that the opinion was in no small degree prevalent, that +the just title to this "back country," as it was termed, had vested in +the United States by the treaty of peace, and could not rightfully be +claimed by any individual State. + +There is another consideration applicable to this part of the subject, +and entitled, in my judgment, to great weight. + +The Congress of the Confederation had assumed the power not only to +dispose of the lands ceded, but to institute Governments and make laws +for their inhabitants. In other words, they had proceeded to act under +the cession, which, as we have seen, was as well of the jurisdiction +as of the soil. This ordinance was passed on the 13th of July, 1787. +The Convention for framing the Constitution was then in session at +Philadelphia. The proof is direct and decisive, that it was known to +the Convention.[6] It is equally clear that it was admitted and +understood not to be within the legitimate powers of the Confederation +to pass this ordinance. (Jefferson's Works, vol. 9, pp. 251, 276; +Federalist, Nos. 38, 43.) + +[Footnote 6: It was published in a newspaper at Philadelphia, in May, +and a copy of it was sent by R.H. Lee to Gen. Washington, on the 15th +of July. (See p. 261, Cor. of Am. Rev., vol. 4, and Writings of +Washington, vol. 9, p. 174.)] + +The importance of conferring on the new Government regular powers +commensurate with the objects to be attained, and thus avoiding the +alternative of a failure to execute the trust assumed by the +acceptance of the cessions made and expected, or its execution by +usurpation, could scarcely fail to be perceived. That it was in fact +perceived, is clearly shown by the Federalist, (No. 38,) where this +very argument is made use of in commendation of the Constitution. + +Keeping these facts in view, it may confidently be asserted that there +is very strong reason to believe, before we examine the Constitution +itself, that the necessity for a competent grant of power to hold, +dispose of, and govern territory, ceded and expected to be ceded, +could not have escaped the attention of those who framed or adopted +the Constitution; and that if it did not escape their attention, it +could not fail to be adequately provided for. + +Any other conclusion would involve the assumption that a subject of +the gravest national concern, respecting which the small States felt +so much jealousy that it had been almost an insurmountable obstacle to +the formation of the Confederation, and as to which all the States had +deep pecuniary and political interests, and which had been so recently +and constantly agitated, was nevertheless overlooked; or that such a +subject was not overlooked, but designedly left unprovided for, though +it was manifestly a subject of common concern, which belonged to the +care of the General Government, and adequate provision for which could +not fail to be deemed necessary and proper. + +The admission of new States, to be framed out of the ceded territory, +early attracted the attention of the Convention. Among the resolutions +introduced by Mr. Randolph, on the 29th of May, was one on this +subject, (Res. No. 10, 5 Elliot, 128,) which, having been affirmed in +Committee of the Whole, on the 5th of June, (5 Elliot, 156,) and +reported to the Convention on the 13th of June, (5 Elliot, 190,) was +referred to the Committee of Detail, to prepare the Constitution, on +the 26th of July, (5 Elliot, 376.) This committee reported an article +for the admission of new States "lawfully constituted or established." +Nothing was said concerning the power of Congress to prepare or form +such States. This omission struck Mr. Madison, who, on the 18th of +August, (5 Elliot, 439,) moved for the insertion of power to dispose +of the unappropriated lands of the United States, and to institute +temporary Governments for new States arising therein. + +On the 29th of August, (5 Elliot, 492,) the report of the committee +was taken up, and after debate, which exhibited great diversity of +views concerning the proper mode of providing for the subject, arising +out of the supposed diversity of interests of the large and small +States, and between those which had and those which had not unsettled +territory, but no difference of opinion respecting the propriety and +necessity of some adequate provision for the subject, Gouverneur +Morris moved the clause as it stands in the Constitution. This met +with general approbation, and was at once adopted. The whole section +is as follows: + +"New States may be admitted by the Congress into this Union; but no +new State shall be formed or erected within the jurisdiction of any +other State, nor any State be formed by the junction of two or more +States, or parts of States, without the consent of the Legislatures of +the States concerned, as well as of Congress. + +"The Congress shall have power to dispose of and make all needful +rules and regulations respecting the territory or other property +belonging to the United States; and nothing in this Constitution shall +be so construed as to prejudice any claims of the United States or any +particular State." + +That Congress has some power to institute temporary Governments over +the territory, I believe all agree; and, if it be admitted that the +necessity of some power to govern the territory of the United States +could not and did not escape the attention of the Convention and the +people, and that the necessity is so great, that, in the absence of +any express grant, it is strong enough to raise an implication of the +existence of that power, it would seem to follow that it is also +strong enough to afford material aid in construing an express grant of +power respecting that territory; and that they who maintain the +existence of the power, without finding any words at all in which it +is conveyed, should be willing to receive a reasonable interpretation +of language of the Constitution, manifestly intended to relate to the +territory, and to convey to Congress some authority concerning it. + +It would seem, also, that when we find the subject-matter of the +growth and formation and admission of new States, and the disposal of +the territory for these ends, were under consideration, and that some +provision therefor was expressly made, it is improbable that it would +be, in its terms, a grossly inadequate provision; and that an +indispensably necessary power to institute temporary Governments, and +to legislate for the inhabitants of the territory, was passed silently +by, and left to be deduced from the necessity of the case. + +In the argument at the bar, great attention has been paid to the +meaning of the word "territory." + +Ordinarily, when the territory of a sovereign power is spoken of, it +refers to that tract of country which is under the political +jurisdiction of that sovereign power. Thus Chief Justice Marshall (in +United States _v._ Bevans, 3 Wheat., 386) says: "What, then, is the +extent of jurisdiction which a State possesses? We answer, without +hesitation, the jurisdiction of a State is coextensive with its +territory." Examples might easily be multiplied of this use of the +word, but they are unnecessary, because it is familiar. But the word +"territory" is not used in this broad and general sense in this clause +of the Constitution. + +At the time of the adoption of the Constitution, the United States +held a great tract of country northwest of the Ohio; another tract, +then of unknown extent, ceded by South Carolina; and a confident +expectation was then entertained, and afterwards realized, that they +then were or would become the owners of other great tracts, claimed by +North Carolina and Georgia. These ceded tracts lay within the limits +of the United States, and out of the limits of any particular State; +and the cessions embraced the civil and political jurisdiction, and so +much of the soil as had not previously been granted to individuals. + +These words, "territory belonging to the United States," were not +used in the Constitution to describe an abstraction, but to identify +and apply to these actual subjects matter then existing and belonging +to the United States, and other similar subjects which might +afterwards be acquired; and this being so, all the essential qualities +and incidents attending such actual subjects are embraced within the +words "territory belonging to the United States," as fully as if each +of those essential qualities and incidents had been specifically +described. + +I say, the essential qualities and incidents. But in determining what +were the essential qualities and incidents of the subject with which +they were dealing, we must take into consideration not only all the +particular facts which were immediately before them, but the great +consideration, ever present to the minds of those who framed and +adopted the Constitution, that they were making a frame of government +for the people of the United States and their posterity, under which +they hoped the United States might be, what they have now become, a +great and powerful nation, possessing the power to make war and to +conclude treaties, and thus to acquire territory. (See Cerré _v._ +Pitot, 6 Cr., 336; Am. Ins. Co. _v._ Canter, 1 Pet., 542.) With these +in view, I turn to examine the clause of the article now in question. + +It is said this provision has no application to any territory save +that then belonging to the United States. I have already shown that, +when the Constitution was framed, a confident expectation was +entertained, which was speedily realized, that North Carolina and +Georgia would cede their claims to that great territory which lay west +of those States. No doubt has been suggested that the first clause of +this same article, which enabled Congress to admit new States, refers +to and includes new States to be formed out of this territory, +expected to be thereafter ceded by North Carolina and Georgia, as well +as new States to be formed out of territory northwest of the Ohio, +which then had been ceded by Virginia. It must have been seen, +therefore, that the same necessity would exist for an authority to +dispose of and make all needful regulations respecting this territory, +when ceded, as existed for a like authority respecting territory which +had been ceded. + +No reason has been suggested why any reluctance should have been felt, +by the framers of the Constitution, to apply this provision to all the +territory which might belong to the United States, or why any +distinction should have been made, founded on the accidental +circumstance of the dates of the cessions; a circumstance in no way +material as respects the necessity for rules and regulations, or the +propriety of conferring on the Congress power to make them. And if we +look at the course of the debates in the Convention on this article, +we shall find that the then unceded lands, so far from having been +left out of view in adopting this article, constituted, in the minds +of members, a subject of even paramount importance. + +Again, in what an extraordinary position would the limitation of this +clause to territory then belonging to the United States, place the +territory which lay within the chartered limits of North Carolina and +Georgia. The title to that territory was then claimed by those States, +and by the United States; their respective claims are purposely left +unsettled by the express words of this clause; and when cessions were +made by those States, they were merely of their claims to this +territory, the United States neither admitting nor denying the +validity of those claims; so that it was impossible then, and has ever +since remained impossible, to know whether this territory did or did +not then belong to the United States; and, consequently, to know +whether it was within or without the authority conferred by this +clause, to dispose of and make rules and regulations respecting the +territory of the United States. This attributes to the eminent men who +acted on this subject a want of ability and forecast, or a want of +attention to the known facts upon which they were acting, in which I +cannot concur. + +There is not, in my judgment, anything in the language, the history, +or the subject-matter of this article, which restricts its operation +to territory owned by the United States when the Constitution was +adopted. + +But it is also insisted that provisions of the Constitution respecting +territory belonging to the United States do not apply to territory +acquired by treaty from a foreign nation. This objection must rest +upon the position that the Constitution did not authorize the Federal +Government to acquire foreign territory, and consequently has made no +provision for its government when acquired; or, that though the +acquisition of foreign territory was contemplated by the Constitution, +its provisions concerning the admission of new States, and the making +of all needful rules and regulations respecting territory belonging to +the United States, were not designed to be applicable to territory +acquired from foreign nations. + +It is undoubtedly true, that at the date of the treaty of 1803, +between the United States and France, for the cession of Louisiana, it +was made a question, whether the Constitution had conferred on the +executive department of the Government of the United States power to +acquire foreign territory by a treaty. + +There is evidence that very grave doubts were then entertained +concerning the existence of this power. But that there was then a +settled opinion in the executive and legislative branches of the +Government, that this power did not exist, cannot be admitted, without +at the same time imputing to those who negotiated and ratified the +treaty, and passed the laws necessary to carry it into execution, a +deliberate and known violation of their oaths to support the +Constitution; and whatever doubts may then have existed, the question +must now be taken to have been settled. Four distinct acquisitions of +foreign territory have been made by as many different treaties, under +as many different Administrations. Six States, formed on such +territory, are now in the Union. Every branch of this Government, +during a period of more than fifty years, has participated in these +transactions. To question their validity now, is vain. As was said by +Mr. Chief Justice Marshall, in the American Insurance Company _v._ +Canter, (1 Peters, 542,) "the Constitution confers absolutely on the +Government of the Union the powers of making war and of making +treaties; consequently, that Government possesses the power of +acquiring territory, either by conquest or treaty." (See Cerré _v._ +Pitot, 6 Cr., 336.) And I add, it also possesses the power of +governing it, when acquired, not by resorting to supposititious +powers, nowhere found described in the Constitution, but expressly +granted in the authority to make all needful rules and regulations +respecting the territory of the United States. + +There was to be established by the Constitution a frame of government, +under which the people of the United States and their posterity were +to continue indefinitely. To take one of its provisions, the language +of which is broad enough to extend throughout the existence of the +Government, and embrace all territory belonging to the United States +throughout all time, and the purposes and objects of which apply to +all territory of the United States, and narrow it down to territory +belonging to the United States when the Constitution was framed, while +at the same time it is admitted that the Constitution contemplated and +authorized the acquisition, from time to time, of other and foreign +territory, seems to me to be an interpretation as inconsistent with +the nature and purposes of the instrument, as it is with its language, +and I can have no hesitation in rejecting it. + +I construe this clause, therefore, as if it had read, Congress shall +have power to make all needful rules and regulations respecting those +tracts of country, out of the limits of the several States, which the +United States have acquired, or may hereafter acquire, by cessions, as +well of the jurisdiction as of the soil, so far as the soil may be +the property of the party making the cession, at the time of making +it. + +It has been urged that the words "rules and regulations" are not +appropriate terms in which to convey authority to make laws for the +government of the territory. + +But it must be remembered that this is a grant of power to the +Congress--that it is therefore necessarily a grant of power to +legislate--and, certainly, rules and regulations respecting a +particular subject, made by the legislative power of a country, can be +nothing but laws. Nor do the particular terms employed, in my +judgment, tend in any degree to restrict this legislative power. Power +granted to a Legislature to make all needful rules and regulations +respecting the territory, is a power to pass all needful laws +respecting it. + +The word regulate, or regulation, is several times used in the +Constitution. It is used in the fourth section of the first article to +describe those laws of the States which prescribe the times, places, +and manner, of choosing Senators and Representatives; in the second +section of the fourth article, to designate the legislative action of +a State on the subject of fugitives from service, having a very close +relation to the matter of our present inquiry; in the second section +of the third article, to empower Congress to fix the extent of the +appellate jurisdiction of this court; and, finally, in the eighth +section of the first article are the words, "Congress shall have power +to regulate commerce." + +It is unnecessary to describe the body of legislation which has been +enacted under this grant of power; its variety and extent are well +known. But it may be mentioned, in passing, that under this power to +regulate commerce, Congress has enacted a great system of municipal +laws, and extended it over the vessels and crews of the United States +on the high seas and in foreign ports, and even over citizens of the +United States resident in China; and has established judicatures, with +power to inflict even capital punishment within that country. + +If, then, this clause does contain a power to legislate respecting the +territory, what are the limits of that power? + +To this I answer, that, in common with all the other legislative +powers of Congress, it finds limits in the express prohibitions on +Congress not to do certain things; that, in the exercise of the +legislative power, Congress cannot pass an ex post facto law or bill +of attainder; and so in respect to each of the other prohibitions +contained in the Constitution. + +Besides this, the rules and regulations must be needful. But +undoubtedly the question whether a particular rule or regulation be +needful, must be finally determined by Congress itself. Whether a law +be needful, is a legislative or political, not a judicial, question. +Whatever Congress deems needful is so, under the grant of power. + +Nor am I aware that it has ever been questioned that laws providing +for the temporary government of the settlers on the public lands are +needful, not only to prepare them for admission to the Union as +States, but even to enable the United States to dispose of the lands. + +Without government and social order, there can be no property; for +without law, its ownership, its use, and the power of disposing of it, +cease to exist, in the sense in which those words are used and +understood in all civilized States. + +Since, then, this power was manifestly conferred to enable the United +States to dispose of its public lands to settlers, and to admit them +into the Union as States, when in the judgment of Congress they should +be fitted therefor, since these were the needs provided for, since it +is confessed that Government is indispensable to provide for those +needs, and the power is, to make _all needful_ rules and regulations +respecting the territory, I cannot doubt that this is a power to +govern the inhabitants of the territory, by such laws as Congress +deems needful, until they obtain admission as States. + +Whether they should be thus governed solely by laws enacted by +Congress, or partly by laws enacted by legislative power conferred by +Congress, is one of those questions which depend on the judgment of +Congress--a question which of these is needful. + +But it is insisted, that whatever other powers Congress may have +respecting the territory of the United States, the subject of negro +slavery forms an exception. + +The Constitution declares that Congress shall have power to make +"_all_ needful rules and regulations" respecting the territory +belonging to the United States. + +The assertion is, though the Constitution says all, it does not mean +all--though it says all, without qualification, it means all except +such as allow or prohibit slavery. It cannot be doubted that it is +incumbent on those who would thus introduce an exception not found in +the language of the instrument, to exhibit some solid and satisfactory +reason, drawn from the subject-matter or the purposes and objects of +the clause, the context, or from other provisions of the Constitution, +showing that the words employed in this clause are not to be +understood according to their clear, plain, and natural signification. + +The subject-matter is the territory of the United States out of the +limits of every State, and consequently under the exclusive power of +the people of the United States. Their will respecting it, manifested +in the Constitution, can be subject to no restriction. The purposes +and objects of the clause were the enactment of laws concerning the +disposal of the public lands, and the temporary government of the +settlers thereon until new States should be formed. It will not be +questioned that, when the Constitution of the United States was framed +and adopted, the allowance and the prohibition of negro slavery were +recognised subjects of municipal legislation; every State had in some +measure acted thereon; and the only legislative act concerning the +territory--the ordinance of 1787, which had then so recently been +passed--contained a prohibition of slavery. The purpose and object of +the clause being to enable Congress to provide a body of municipal law +for the government of the settlers, the allowance or the prohibition +of slavery comes within the known and recognised scope of that purpose +and object. + +There is nothing in the context which qualifies the grant of power. +The regulations must be "respecting the territory." An enactment that +slavery may or may not exist there, is a regulation respecting the +territory. Regulations must be needful; but it is necessarily left to +the legislative discretion to determine whether a law be needful. No +other clause of the Constitution has been referred to at the bar, or +has been seen by me, which imposes any restriction or makes any +exception concerning the power of Congress to allow or prohibit +slavery in the territory belonging to the United States. + +A practical construction, nearly contemporaneous with the adoption of +the Constitution, and continued by repeated instances through a long +series of years, may always influence, and in doubtful cases should +determine, the judicial mind, on a question of the interpretation of +the Constitution. (Stuart _v._ Laird, 1 Cranch, 269; Martin _v._ +Hunter, 1 Wheat., 304; Cohens _v._ Virginia, 6 Wheat., 264; Prigg _v._ +Pennsylvania, 16 Pet., 621; Cooley _v._ Port Wardens, 12 How., 315.) + +In this view, I proceed briefly to examine the practical construction +placed on the clause now in question, so far as it respects the +inclusion therein of power to permit or prohibit slavery in the +Territories. + +It has already been stated, that after the Government of the United +States was organized under the Constitution, the temporary Government +of the Territory northwest of the river Ohio could no longer exist, +save under the powers conferred on Congress by the Constitution. +Whatever legislative, judicial, or executive authority should be +exercised therein could be derived only from the people of the United +States under the Constitution. And, accordingly, an act was passed on +the 7th day of August, 1789, (1 Stat. at Large, 50,) which recites: +"Whereas, in order that the ordinance of the United States in Congress +assembled, for the government of the territory northwest of the river +Ohio, _may continue to have full effect_, it is required that certain +provisions should be made, so as to adapt the same to the present +Constitution of the United States." It then provides for the +appointment by the President of all officers, who, by force of the +ordinance, were to have been appointed by the Congress of the +Confederation, and their commission in the manner required by the +Constitution; and empowers the Secretary of the Territory to exercise +the powers of the Governor in case of the death or necessary absence +of the latter. + +Here is an explicit declaration of the will of the first Congress, of +which fourteen members, including Mr. Madison, had been members of the +Convention which framed the Constitution, that the ordinance, one +article of which prohibited slavery, "should continue to have full +effect." Gen. Washington, who signed this bill, as President, was the +President of that Convention. + +It does not appear to me to be important, in this connection, that +that clause in the ordinance which prohibited slavery was one of a +series of articles of what is therein termed a compact. The Congress +of the Confederation had no power to make such a compact, nor to act +at all on the subject; and after what had been so recently said by Mr. +Madison on this subject, in the thirty-eighth number of the +_Federalist_, I cannot suppose that he, or any others who voted for +this bill, attributed any intrinsic effect to what was denominated in +the ordinance a compact between "the original States and the people +and States in the new territory;" there being no new States then in +existence in the territory, with whom a compact could be made, and the +few scattered inhabitants, unorganized into a political body, not +being capable of becoming a party to a treaty, even if the Congress of +the Confederation had had power to make one touching the government of +that territory. + +I consider the passage of this law to have been an assertion by the +first Congress of the power of the United States to prohibit slavery +within this part of the territory of the United States; for it clearly +shows that slavery was thereafter to be prohibited there, and it could +be prohibited only by an exertion of the power of the United States, +under the Constitution; no other power being capable of operating +within that territory after the Constitution took effect. + +On the 2d of April, 1790, (1 Stat. at Large, 106,) the first Congress +passed an act accepting a deed of cession by North Carolina of that +territory afterwards erected into the State of Tennessee. The fourth +express condition contained in this deed of cession, after providing +that the inhabitants of the Territory shall be temporarily governed in +the same manner as those beyond the Ohio, is followed by these words: +"_Provided, always_, that no regulations made or to be made by +Congress shall tend to emancipate slaves." + +This provision shows that it was then understood Congress might make a +regulation prohibiting slavery, and that Congress might also allow it +to continue to exist in the Territory; and accordingly, when, a few +days later, Congress passed the act of May 20th, 1790, (1 Stat. at +Large, 123,) for the government of the Territory south of the river +Ohio, it provided, "and the Government of the Territory south of the +Ohio shall be similar to that now exercised in the Territory northwest +of the Ohio, except so far as is otherwise provided in the conditions +expressed in an act of Congress of the present session, entitled, 'An +act to accept a cession of the claims of the State of North Carolina +to a certain district of western territory.'" Under the Government +thus established, slavery existed until the Territory became the State +of Tennessee. + +On the 7th of April, 1798, (1 Stat. at Large, 649,) an act was passed +to establish a Government in the Mississippi Territory in all respects +like that exercised in the Territory northwest of the Ohio, "excepting +and excluding the last article of the ordinance made for the +government thereof by the late Congress, on the 13th day of July, +1787." When the limits of this Territory had been amicably settled +with Georgia, and the latter ceded all its claim thereto, it was one +stipulation in the compact of cession, that the ordinance of July +13th, 1787, "shall in all its parts extend to the Territory contained +in the present act of cession, that article only excepted which +forbids slavery." The Government of this Territory was subsequently +established and organized under the act of May 10th, 1800; but so much +of the ordinance as prohibited slavery was not put in operation there. + +Without going minutely into the details of each case, I will now give +reference to two classes of acts, in one of which Congress has +extended the ordinance of 1787, including the article prohibiting +slavery, over different Territories, and thus exerted its power to +prohibit it; in the other, Congress has erected Governments over +Territories acquired from France and Spain, in which slavery already +existed, but refused to apply to them that part of the Government +under the ordinance which excluded slavery. + +Of the first class are the act of May 7th, 1800, (2 Stat. at Large, +58,) for the government of the Indiana Territory; the act of January +11th, 1805, (2 Stat. at Large, 309,) for the government of Michigan +Territory; the act of May 3d, 1809, (2 Stat. at Large, 514,) for the +government of the Illinois Territory; the act of April 20th, 1836, (5 +Stat. at Large, 10,) for the government of the Territory of Wisconsin; +the act of June 12th, 1838, for the government of the Territory of +Iowa; the act of August 14th, 1848, for the government of the +Territory of Oregon. To these instances should be added the act of +March 6th, 1820, (3 Stat. at Large, 548,) prohibiting slavery in the +territory acquired from France, being northwest of Missouri, and north +of thirty-six degrees thirty minutes north latitude. + +Of the second class, in which Congress refused to interfere with +slavery already existing under the municipal law of France or Spain, +and established Governments by which slavery was recognised and +allowed, are: the act of March 26th, 1804, (2 Stat. at Large, 283,) +for the government of Louisiana; the act of March 2d, 1805, (2 Stat. +at Large, 322,) for the government of the Territory of Orleans; the +act of June 4th, 1812, (2 Stat. at Large, 743,) for the government of +the Missouri Territory; the act of March 30th, 1822, (3 Stat. at +Large, 654,) for the government of the Territory of Florida. Here are +eight distinct instances, beginning with the first Congress, and +coming down to the year 1848, in which Congress has excluded slavery +from the territory of the United States; and six distinct instances in +which Congress organized Governments of Territories by which slavery +was recognised and continued, beginning also with the first Congress, +and coming down to the year 1822. These acts were severally signed by +seven Presidents of the United States, beginning with General +Washington, and coming regularly down as far as Mr. John Quincy Adams, +thus including all who were in public life when the Constitution was +adopted. + +If the practical construction of the Constitution contemporaneously +with its going into effect, by men intimately acquainted with its +history from their personal participation in framing and adopting it, +and continued by them through a long series of acts of the gravest +importance, be entitled to weight in the judicial mind on a question +of construction, it would seem to be difficult to resist the force of +the acts above adverted to. + +It appears, however, from what has taken place at the bar, that +notwithstanding the language of the Constitution, and the long line of +legislative and executive precedents under it, three different and +opposite views are taken of the power of Congress respecting slavery +in the Territories. + +One is, that though Congress can make a regulation prohibiting slavery +in a Territory, they cannot make a regulation allowing it; another is, +that it can neither be established nor prohibited by Congress, but +that the people of a Territory, when organized by Congress, can +establish or prohibit slavery; while the third is, that the +Constitution itself secures to every citizen who holds slaves, under +the laws of any State, the indefeasible right to carry them into any +Territory, and there hold them as property. + +No particular clause of the Constitution has been referred to at the +bar in support of either of these views. The first seems to be rested +upon general considerations concerning the social and moral evils of +slavery, its relations to republican Governments, its inconsistency +with the Declaration of Independence and with natural right. + +The second is drawn from considerations equally general, concerning +the right of self-government, and the nature of the political +institutions which have been established by the people of the United +States. + +While the third is said to rest upon the equal right of all citizens +to go with their property upon the public domain, and the inequality +of a regulation which would admit the property of some and exclude the +property of other citizens; and, inasmuch as slaves are chiefly held +by citizens of those particular States where slavery is established, +it is insisted that a regulation excluding slavery from a Territory +operates, practically, to make an unjust discrimination between +citizens of different States, in respect to their use and enjoyment of +the territory of the United States. + +With the weight of either of these considerations, when presented to +Congress to influence its action, this court has no concern. One or +the other may be justly entitled to guide or control the legislative +judgment upon what is a needful regulation. The question here is, +whether they are sufficient to authorize this court to insert into +this clause of the Constitution an exception of the exclusion or +allowance of slavery, not found therein, nor in any other part of that +instrument. To engraft on any instrument a substantive exception not +found in it, must be admitted to be a matter attended with great +difficulty. And the difficulty increases with the importance of the +instrument, and the magnitude and complexity of the interests involved +in its construction. To allow this to be done with the Constitution, +upon reasons purely political, renders its judicial interpretation +impossible--because judicial tribunals, as such, cannot decide upon +political considerations. Political reasons have not the requisite +certainty to afford rules of juridical interpretation. They are +different in different men. They are different in the same men at +different times. And when a strict interpretation of the Constitution, +according to the fixed rules which govern the interpretation of laws, +is abandoned, and the theoretical opinions of individuals are allowed +to control its meaning, we have no longer a Constitution; we are under +the government of individual men, who for the time being have power to +declare what the Constitution is, according to their own views of what +it ought to mean. When such a method of interpretation of the +Constitution obtains, in place of a republican Government, with +limited and defined powers, we have a Government which is merely an +exponent of the will of Congress; or what, in my opinion, would not be +preferable, an exponent of the individual political opinions of the +members of this court. + +If it can be shown, by anything in the Constitution itself, that when +it confers on Congress the power to make _all_ needful rules and +regulations respecting the territory belonging to the United States, +the exclusion or the allowance of slavery was excepted; or if anything +in the history of this provision tends to show that such an exception +was intended by those who framed and adopted the Constitution to be +introduced into it, I hold it to be my duty carefully to consider, and +to allow just weight to such considerations in interpreting the +positive text of the Constitution. But where the Constitution has said +_all_ needful rules and regulations, I must find something more than +theoretical reasoning to induce me to say it did not mean all. + +There have been eminent instances in this court closely analogous to +this one, in which such an attempt to introduce an exception, not +found in the Constitution itself, has failed of success. + +By the eighth section of the first article, Congress has the power of +exclusive legislation in all cases whatsoever within this District. + +In the case of Loughborough _v._ Blake, (5 Whea., 324,) the question +arose, whether Congress has power to impose direct taxes on persons +and property in this District. It was insisted, that though the grant +of power was in its terms broad enough to include direct taxation, it +must be limited by the principle, that taxation and representation are +inseparable. It would not be easy to fix on any political truth, +better established or more fully admitted in our country, than that +taxation and representation must exist together. We went into the war +of the Revolution to assert it, and it is incorporated as fundamental +into all American Governments. But however true and important this +maxim may be, it is not necessarily of universal application. It was +for the people of the United States, who ordained the Constitution, to +decide whether it should or should not be permitted to operate within +this District. Their decision was embodied in the words of the +Constitution; and as that contained no such exception as would permit +the maxim to operate in this District, this court, interpreting that +language, held that the exception did not exist. + +Again, the Constitution confers on Congress power to regulate commerce +with foreign nations. Under this, Congress passed an act on the 22d of +December, 1807, unlimited in duration, laying an embargo on all ships +and vessels in the ports or within the limits and jurisdiction of the +United States. No law of the United States ever pressed so severely +upon particular States. Though the constitutionality of the law was +contested with an earnestness and zeal proportioned to the ruinous +effects which were felt from it, and though, as Mr. Chief Justice +Marshall has said, (9 Wheat., 192,) "a want of acuteness in +discovering objections to a measure to which they felt the most +deep-rooted hostility will not be imputed to those who were arrayed in +opposition to this," I am not aware that the fact that it prohibited +the use of a particular species of property, belonging almost +exclusively to citizens of a few States, and this indefinitely, was +ever supposed to show that it was unconstitutional. Something much +more stringent, as a ground of legal judgment, was relied on--that the +power to regulate commerce did not include the power to annihilate +commerce. + +But the decision was, that under the power to regulate commerce, the +power of Congress over the subject was restricted only by those +exceptions and limitations contained in the Constitution; and as +neither the clause in question, which was a general grant of power to +regulate commerce, nor any other clause of the Constitution, imposed +any restrictions as to the duration of an embargo, an unlimited +prohibition of the use of the shipping of the country was within the +power of Congress. On this subject, Mr. Justice Daniel, speaking for +the court in the case of United States _v._ Marigold, (9 How., 560,) +says: "Congress are, by the Constitution, vested with the power to +regulate commerce with foreign nations; and however, at periods of +high excitement, an application of the terms 'to regulate commerce,' +such as would embrace absolute prohibition, may have been questioned, +yet, since the passage of the embargo and non-intercourse laws, and +the repeated judicial sanctions these statutes have received, it can +scarcely at this day be open to doubt, that every subject falling +legitimately within the sphere of commercial regulation may be +partially or wholly excluded, when either measure shall be demanded by +the safety or the important interests of the entire nation. The power +once conceded, it may operate on any and every subject of commerce to +which the legislative discretion may apply it." + +If power to regulate commerce extends to an indefinite prohibition of +the use of all vessels belonging to citizens of the several States, +and may operate, without exception, upon every subject of commerce to +which the legislative discretion may apply it, upon what grounds can I +say that power to make all needful rules and regulations respecting +the territory of the United States is subject to an exception of the +allowance or prohibition of slavery therein? + +While the regulation is one "respecting the territory," while it is, +in the judgment of Congress, "a needful regulation," and is thus +completely within the words of the grant, while no other clause of the +Constitution can be shown, which requires the insertion of an +exception respecting slavery, and while the practical construction for +a period of upwards of fifty years forbids such an exception, it +would, in my opinion, violate every sound rule of interpretation to +force that exception into the Constitution upon the strength of +abstract political reasoning, which we are bound to believe the people +of the United States thought insufficient to induce them to limit the +power of Congress, because what they have said contains no such +limitation. + +Before I proceed further to notice some other grounds of supposed +objection to this power of Congress, I desire to say, that if it were +not for my anxiety to insist upon what I deem a correct exposition of +the Constitution, if I looked only to the purposes of the argument, +the source of the power of Congress asserted in the opinion of the +majority of the court would answer those purposes equally well. For +they admit that Congress has power to organize and govern the +Territories until they arrive at a suitable condition for admission to +the Union; they admit, also, that the kind of Government which shall +thus exist should be regulated by the condition and wants of each +Territory, and that it is necessarily committed to the discretion of +Congress to enact such laws for that purpose as that discretion may +dictate; and no limit to that discretion has been shown, or even +suggested, save those positive prohibitions to legislate, which are +found in the Constitution. + +I confess myself unable to perceive any difference whatever between my +own opinion of the general extent of the power of Congress and the +opinion of the majority of the court, save that I consider it +derivable from the express language of the Constitution, while they +hold it to be silently implied from the power to acquire territory. +Looking at the power of Congress over the Territories as of the extent +just described, what positive prohibition exists in the Constitution, +which restrained Congress from enacting a law in 1820 to prohibit +slavery north of thirty-six degrees thirty minutes north latitude? + +The only one suggested is that clause in the fifth article of the +amendments of the Constitution which declares that no person shall be +deprived of his life, liberty, or property, without due process of +law. I will now proceed to examine the question, whether this clause +is entitled to the effect thus attributed to it. It is necessary, +first, to have a clear view of the nature and incidents of that +particular species of property which is now in question. + +Slavery, being contrary to natural right, is created only by municipal +law. This is not only plain in itself, and agreed by all writers on +the subject, but is inferable from the Constitution, and has been +explicitly declared by this court. The Constitution refers to slaves +as "persons held to service in one State, under the laws thereof." +Nothing can more clearly describe a _status_ created by municipal law. +In Prigg _v._ Pennsylvania, (10 Pet., 611,) this court said: "The +state of slavery is deemed to be a mere municipal regulation, founded +on and limited to the range of territorial laws." In Rankin _v._ +Lydia, (2 Marsh., 12, 470,) the Supreme Court of Appeals of Kentucky +said: "Slavery is sanctioned by the laws of this State, and the right +to hold them under our municipal regulations is unquestionable. But we +view this as a right existing by positive law of a municipal +character, without foundation in the law of nature or the unwritten +common law." I am not acquainted with any case or writer questioning +the correctness of this doctrine. (See also 1 Burge, Col. and For. +Laws, 738-741, where the authorities are collected.) + +The _status_ of slavery is not necessarily always attended with the +same powers on the part of the master. The master is subject to the +supreme power of the State, whose will controls his action towards his +slave, and this control must be defined and regulated by the municipal +law. In one State, as at one period of the Roman law, it may put the +life of the slave into the hand of the master; others, as those of the +United States, which tolerate slavery, may treat the slave as a +person, when the master takes his life; while in others, the law may +recognise a right of the slave to be protected from cruel treatment. +In other words, the _status_ of slavery embraces every condition, from +that in which the slave is known to the law simply as a chattel, with +no civil rights, to that in which he is recognised as a person for all +purposes, save the compulsory power of directing and receiving the +fruits of his labor. Which of these conditions shall attend the +_status_ of slavery, must depend on the municipal law which creates +and upholds it. + +And not only must the _status_ of slavery be created and measured by +municipal law, but the rights, powers, and obligations, which grow out +of that _status_, must be defined, protected, and enforced, by such +laws. The liability of the master for the torts and crimes of his +slave, and of third persons for assaulting or injuring or harboring or +kidnapping him, the forms and modes of emancipation and sale, their +subjection to the debts of the master, succession by death of the +master, suits for freedom, the capacity of the slave to be party to a +suit, or to be a witness, with such police regulations as have existed +in all civilized States where slavery has been tolerated, are among +the subjects upon which municipal legislation becomes necessary when +slavery is introduced. + +Is it conceivable that the Constitution has conferred the right on +every citizen to become a resident on the territory of the United +States with his slaves, and there to hold them as such, but has +neither made nor provided for any municipal regulations which are +essential to the existence of slavery? + +Is it not more rational to conclude that they who framed and adopted +the Constitution were aware that persons held to service under the +laws of a State are property only to the extent and under the +conditions fixed by those laws; that they must cease to be available +as property, when their owners voluntarily place them permanently +within another jurisdiction, where no municipal laws on the subject of +slavery exist; and that, being aware of these principles, and having +said nothing to interfere with or displace them, or to compel Congress +to legislate in any particular manner on the subject, and having +empowered Congress to make all needful rules and regulations +respecting the territory of the United States, it was their intention +to leave to the discretion of Congress what regulations, if any, +should be made concerning slavery therein? Moreover, if the right +exists, what are its limits, and what are its conditions? If citizens +of the United States have the right to take their slaves to a +Territory, and hold them there as slaves, without regard to the laws +of the Territory, I suppose this right is not to be restricted to the +citizens of slaveholding States. A citizen of a State which does not +tolerate slavery can hardly be denied the power of doing the same +thing. And what law of slavery does either take with him to the +Territory? If it be said to be those laws respecting slavery which +existed in the particular State from which each slave last came, what +an anomaly is this? Where else can we find, under the law of any +civilized country, the power to introduce and permanently continue +diverse systems of foreign municipal law, for holding persons in +slavery? I say, not merely to introduce, but permanently to continue, +these anomalies. For the offspring of the female must be governed by +the foreign municipal laws to which the mother was subject; and when +any slave is sold or passes by succession on the death of the owner, +there must pass with him, by a species of subrogation, and as a kind +of unknown _jus in re_, the foreign municipal laws which constituted, +regulated, and preserved, the _status_ of the slave before his +exportation. Whatever theoretical importance may be now supposed to +belong to the maintenance of such a right, I feel a perfect conviction +that it would, if ever tried, prove to be as impracticable in fact, as +it is, in my judgment, monstrous in theory. + +I consider the assumption which lies at the basis of this theory to be +unsound; not in its just sense, and when properly understood, but in +the sense which has been attached to it. That assumption is, that the +territory ceded by France was acquired for the equal benefit of all +the citizens of the United States. I agree to the position. But it was +acquired for their benefit in their collective, not their individual, +capacities. It was acquired for their benefit, as an organized +political society, subsisting as "the people of the United States," +under the Constitution of the United States; to be administered justly +and impartially, and as nearly as possible for the equal benefit of +every individual citizen, according to the best judgment and +discretion of the Congress; to whose power, as the Legislature of the +nation which acquired it, the people of the United States have +committed its administration. Whatever individual claims may be +founded on local circumstances, or sectional differences of condition, +cannot, in my opinion, be recognised in this court, without arrogating +to the judicial branch of the Government powers not committed to it; +and which, with all the unaffected respect I feel for it, when acting +in its proper sphere, I do not think it fitted to wield. + +Nor, in my judgment, will the position, that a prohibition to bring +slaves into a Territory deprives any one of his property without due +process of law, bear examination. + +It must be remembered that this restriction on the legislative power +is not peculiar to the Constitution of the United States; it was +borrowed from _Magna Charta_; was brought to America by our ancestors, +as part of their inherited liberties, and has existed in all the +States, usually in the very words of the great charter. It existed in +every political community in America in 1787, when the ordinance +prohibiting slavery north and west of the Ohio was passed. + +And if a prohibition of slavery in a Territory in 1820 violated this +principle of _Magna Charta_, the ordinance of 1787 also violated it; +and what power had, I do not say the Congress of the Confederation +alone, but the Legislature of Virginia, or the Legislature of any or +all the States of the Confederacy, to consent to such a violation? The +people of the States had conferred no such power. I think I may at +least say, if the Congress did then violate _Magna Charta_ by the +ordinance, no one discovered that violation. Besides, if the +prohibition upon all persons, citizens as well as others, to bring +slaves into a Territory, and a declaration that if brought they shall +be free, deprives citizens of their property without due process of +law, what shall we say of the legislation of many of the slaveholding +States which have enacted the same prohibition? As early as October, +1778, a law was passed in Virginia, that thereafter no slave should be +imported into that Commonwealth by sea or by land, and that every +slave who should be imported should become free. A citizen of Virginia +purchased in Maryland a slave who belonged to another citizen of +Virginia, and removed with the slave to Virginia. The slave sued for +her freedom, and recovered it; as may be seen in Wilson _v._ Isabel, +(5 Call's R., 425.) See also Hunter _v._ Hulsher [Transcriber's Note: +Fulcher], (1 Leigh, 172;) and a similar law has been recognised as +valid in Maryland, in Stewart _v._ Oaks, (5 Har. and John., 107.) I am +not aware that such laws, though they exist in many States, were ever +supposed to be in conflict with the principle of _Magna Charta_ +incorporated into the State Constitutions. It was certainly understood +by the Convention which framed the Constitution, and has been so +understood ever since, that, under the power to regulate commerce, +Congress could prohibit the importation of slaves; and the exercise of +the power was restrained till 1808. A citizen of the United States +owns slaves in Cuba, and brings them to the United States, where they +are set free by the legislation of Congress. Does this legislation +deprive him of his property without due process of law? If so, what +becomes of the laws prohibiting the slave trade? If not, how can a +similar regulation respecting a Territory violate the fifth amendment +of the Constitution? + +Some reliance was placed by the defendant's counsel upon the fact that +the prohibition of slavery in this territory was in the words, "that +slavery, &c., shall be and is hereby _forever_ prohibited." But the +insertion of the word _forever_ can have no legal effect. Every +enactment not expressly limited in its duration continues in force +until repealed or abrogated by some competent power, and the use of +the word "forever" can give to the law no more durable operation. The +argument is, that Congress cannot so legislate as to bind the future +States formed out of the territory, and that in this instance it has +attempted to do so. Of the political reasons which may have induced +the Congress to use these words, and which caused them to expect that +subsequent Legislatures would conform their action to the then general +opinion of the country that it ought to be permanent, this court can +take no cognizance. + +However fit such considerations are to control the action of Congress, +and however reluctant a statesman may be to disturb what has been +settled, every law made by Congress may be repealed, and, saving +private rights, and public rights gained by States, its repeal is +subject to the absolute will of the same power which enacted it. If +Congress had enacted that the crime of murder, committed in this +Indian Territory, north of thirty-six degrees thirty minutes, by or on +any white man, should _forever_ be punishable with death, it would +seem to me an insufficient objection to an indictment, found while it +was a Territory, that at some future day States might exist there, and +so the law was invalid, because, by its terms, it was to continue in +force forever. Such an objection rests upon a misapprehension of the +province and power of courts respecting the constitutionality of laws +enacted by the Legislature. + +If the Constitution prescribe one rule, and the law another and +different rule, it is the duty of courts to declare that the +Constitution, and not the law, governs the case before them for +judgment. If the law include no case save those for which the +Constitution has furnished a different rule, or no case which the +Legislature has the power to govern, then the law can have no +operation. If it includes cases which the Legislature has power to +govern, and concerning which the Constitution does not prescribe a +different rule, the law governs those cases, though it may, in its +terms, attempt to include others, on which it cannot operate. In other +words, this court cannot declare void an act of Congress which +constitutionally embraces some cases, though other cases, within its +terms, are beyond the control of Congress, or beyond the reach of that +particular law. If, therefore, Congress had power to make a law +excluding slavery from this territory while under the exclusive power +of the United States, the use of the word "forever" does not +invalidate the law, so long as Congress has the exclusive legislative +power in the territory. + +But it is further insisted that the treaty of 1803, between the United +States and France, by which this territory was acquired, has so +restrained the constitutional powers of Congress, that it cannot, by +law, prohibit the introduction of slavery into that part of this +territory north and west of Missouri, and north of thirty-six degrees +thirty minutes north latitude. + +By a treaty with a foreign nation, the United States may rightfully +stipulate that the Congress will or will not exercise its legislative +power in some particular manner, on some particular subject. Such +promises, when made, should be voluntarily kept, with the most +scrupulous good faith. But that a treaty with a foreign nation can +deprive the Congress of any part of the legislative power conferred by +the people, so that it no longer can legislate as it was empowered by +the Constitution to do, I more than doubt. + +The powers of the Government do and must remain unimpaired. The +responsibility of the Government to a foreign nation, for the exercise +of those powers, is quite another matter. That responsibility is to be +met, and justified to the foreign nation, according to the +requirements of the rules of public law; but never upon the assumption +that the United States had parted with or restricted any power of +acting according to its own free will, governed solely by its own +appreciation of its duty. + +The second section of the fourth article is, "This Constitution, and +the laws of the United States which shall be made in pursuance +thereof, and all treaties made or which shall be made under the +authority of the United States, shall be the supreme law of the land." +This has made treaties part of our municipal law; but it has not +assigned to them any particular degree of authority, nor declared that +laws so enacted shall be irrepealable. No supremacy is assigned to +treaties over acts of Congress. That they are not perpetual, and must +be in some way repealable, all will agree. + +If the President and the Senate alone possess the power to repeal or +modify a law found in a treaty, inasmuch as they can change or +abrogate one treaty only by making another inconsistent with the +first, the Government of the United States could not act at all, to +that effect, without the consent of some foreign Government. I do not +consider, I am not aware it has ever been considered, that the +Constitution has placed our country in this helpless condition. The +action of Congress in repealing the treaties with France by the act of +July 7th, 1798, (1 Stat. at Large, 578,) was in conformity with these +views. In the case of Taylor et al. _v._ Morton, (2 Curtis's Cir. Ct. +R., 454,) I had occasion to consider this subject, and I adhere to +the views there expressed. + +If, therefore, it were admitted that the treaty between the United +States and France did contain an express stipulation that the United +States would not exclude slavery from so much of the ceded territory +as is now in question, this court could not declare that an act of +Congress excluding it was void by force of the treaty. Whether or no a +case existed sufficient to justify a refusal to execute such a +stipulation, would not be a judicial, but a political and legislative +question, wholly beyond the authority of this court to try and +determine. It would belong to diplomacy and legislation, and not to +the administration of existing laws. Such a stipulation in a treaty, +to legislate or not to legislate in a particular way, has been +repeatedly held in this court to address itself to the political or +the legislative power, by whose action thereon this court is bound. +(Foster _v._ Nicolson, 2 Peters, 314; Garcia _v._ Lee, 12 Peters, +519.) + +But, in my judgment, this treaty contains no stipulation in any manner +affecting the action of the United States respecting the territory in +question. Before examining the language of the treaty, it is material +to bear in mind that the part of the ceded territory lying north of +thirty-six degrees thirty minutes, and west and north of the present +State of Missouri, was then a wilderness, uninhabited save by savages, +whose possessory title had not then been extinguished. + +It is impossible for me to conceive on what ground France could have +advanced a claim, or could have desired to advance a claim, to +restrain the United States from making any rules and regulations +respecting this territory, which the United States might think fit to +make; and still less can I conceive of any reason which would have +induced the United States to yield to such a claim. It was to be +expected that France would desire to make the change of sovereignty +and jurisdiction as little burdensome as possible to the then +inhabitants of Louisiana, and might well exhibit even an anxious +solicitude to protect their property and persons, and secure to them +and their posterity their religious and political rights; and the +United States, as a just Government, might readily accede to all +proper stipulations respecting those who were about to have their +allegiance transferred. But what interest France could have in +uninhabited territory, which, in the language of the treaty, was to be +transferred "forever, and in full sovereignty," to the United States, +or how the United States could consent to allow a foreign nation to +interfere in its purely internal affairs, in which that foreign nation +had no concern whatever, is difficult for me to conjecture. In my +judgment, this treaty contains nothing of the kind. + +The third article is supposed to have a bearing on the question. It is +as follows: "The inhabitants of the ceded territory shall be +incorporated in the Union of the United States, and admitted as soon +as possible, according to the principles of the Federal Constitution, +to the enjoyment of all the rights, advantages, and immunities, of +citizens of the United States; and in the mean time they shall be +maintained and protected in the enjoyment of their liberty, property, +and the religion they profess." + +There are two views of this article, each of which, I think, +decisively shows that it was not intended to restrain the Congress +from excluding slavery from that part of the ceded territory then +uninhabited. The first is, that, manifestly, its sole object was to +protect individual rights of the then inhabitants of the territory. +They are to be "maintained and protected in the free enjoyment of +their liberty, property, and the religion they profess." But this +article does not secure to them the right to go upon the public domain +ceded by the treaty, either with or without their slaves. The right or +power of doing this did not exist before or at the time the treaty was +made. The French and Spanish Governments while they held the country, +as well as the United States when they acquired it, always exercised +the undoubted right of excluding inhabitants from the Indian country, +and of determining when and on what conditions it should be opened to +settlers. And a stipulation, that the then inhabitants of Louisiana +should be protected in their property, can have no reference to their +use of that property, where they had no right, under the treaty, to go +with it, save at the will of the United States. If one who was an +inhabitant of Louisiana at the time of the treaty had afterwards taken +property then owned by him, consisting of fire-arms, ammunition, and +spirits, and had gone into the Indian country north of thirty-six +degrees thirty minutes, to sell them to the Indians, all must agree +the third article of the treaty would not have protected him from +indictment under the act of Congress of March 30, 1802, (2 Stat. at +Large, 139,) adopted and extended to this territory by the act of +March 26, 1804, (2 Stat. at Large, 283.) + +Besides, whatever rights were secured were individual rights. If +Congress should pass any law which violated such rights of any +individual, and those rights were of such a character as not to be +within the lawful control of Congress under the Constitution, that +individual could complain, and the act of Congress, as to such rights +of his, would be inoperative; but it would be valid and operative as +to all other persons, whose individual rights did not come under the +protection of the treaty. And inasmuch as it does not appear that any +inhabitant of Louisiana, whose rights were secured by treaty, had been +injured, it would be wholly inadmissible for this court to assume, +first, that one or more such cases may have existed; and, second, that +if any did exist, the entire law was void--not only as to those cases, +if any, in which it could not rightfully operate, but as to all +others, wholly unconnected with the treaty, in which such law could +rightfully operate. + +But it is quite unnecessary, in my opinion, to pursue this inquiry +further, because it clearly appears from the language of the article, +and it has been decided by this court, that the stipulation was +temporary, and ceased to have any effect when the then inhabitants of +the Territory of Louisiana, in whose behalf the stipulation was made, +were incorporated into the Union. + +In the cases of New Orleans _v._ De Armas et al., (9 Peters, 223,) the +question was, whether a title to property, which existed at the date +of the treaty, continued to be protected by the treaty after the State +of Louisiana was admitted to the Union. The third article of the +treaty was relied on. Mr. Chief Justice Marshall said: "This article +obviously contemplates two objects. One, that Louisiana shall be +admitted into the Union as soon as possible, on an equal footing with +the other States; and the other, that, till such admission, the +inhabitants of the ceded territory shall be protected in the free +enjoyment of their liberty, property, and religion. Had any one of +these rights been violated while these stipulations continued in +force, the individual supposing himself to be injured might have +brought his case into this court, under the twenty-fifth section of +the judicial act. But this stipulation ceased to operate when +Louisiana became a member of the Union, and its inhabitants were +'admitted to the enjoyment of all the rights, advantages, and +immunities, of citizens of the United States.'" + +The cases of Chouteau _v._ Marguerita, (12 Peters, 507,) and Permoli +_v._ New Orleans, (3 How., 589,) are in conformity with this view of +the treaty. + +To convert this temporary stipulation of the treaty, in behalf of +French subjects who then inhabited a small portion of Louisiana, into +a permanent restriction upon the power of Congress to regulate +territory then uninhabited, and to assert that it not only restrains +Congress from affecting the rights of property of the then +inhabitants, but enabled them and all other citizens of the United +States to go into any part of the ceded territory with their slaves, +and hold them there, is a construction of this treaty so opposed to +its natural meaning, and so far beyond its subject-matter and the +evident design of the parties, that I cannot assent to it. In my +opinion, this treaty has no bearing on the present question. + +For these reasons, I am of opinion that so much of the several acts of +Congress as prohibited slavery and involuntary servitude within that +part of the Territory of Wisconsin lying north of thirty-six degrees +thirty minutes north latitude, and west of the river Mississippi, were +constitutional and valid laws. + +I have expressed my opinion, and the reasons therefor, at far greater +length than I could have wished, upon the different questions on which +I have found it necessary to pass, to arrive at a judgment on the case +at bar. These questions are numerous, and the grave importance of some +of them required me to exhibit fully the grounds of my opinion. I have +touched no question which, in the view I have taken, it was not +absolutely necessary for me to pass upon, to ascertain whether the +judgment of the Circuit Court should stand or be reversed. I have +avoided no question on which the validity of that judgment depends. To +have done either more or less, would have been inconsistent with my +views of my duty. + +In my opinion, the judgment of the Circuit Court should be reversed, +and the cause remanded for a new trial. + + + + + + + + + +End of the Project Gutenberg EBook of 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, by Benjamin C. Howard + +*** END OF THIS PROJECT GUTENBERG EBOOK CASE OF DRED SCOTT *** + +***** This file should be named 31425-8.txt or 31425-8.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/3/1/4/2/31425/ + +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.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. Special rules, +set forth in the General Terms of Use part of this license, apply to +copying and distributing Project Gutenberg-tm electronic works to +protect the PROJECT GUTENBERG-tm concept and trademark. Project +Gutenberg is a registered trademark, and may not be used if you +charge for the eBooks, unless you receive specific permission. If you +do not charge anything for copies of this eBook, complying with the +rules is very easy. You may use this eBook for nearly any purpose +such as creation of derivative works, reports, performances and +research. They may be modified and printed and given away--you may do +practically ANYTHING with public domain eBooks. Redistribution is +subject to the trademark license, especially commercial +redistribution. + + + +*** START: FULL LICENSE *** + +THE FULL PROJECT GUTENBERG LICENSE +PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK + +To protect the Project Gutenberg-tm mission of promoting the free +distribution of electronic works, by using or distributing this work +(or any other work associated in any way with the phrase "Project +Gutenberg"), you agree to comply with all the terms of the Full Project +Gutenberg-tm License (available with this file or online at +http://gutenberg.org/license). + + +Section 1. General Terms of Use and Redistributing Project Gutenberg-tm +electronic works + +1.A. By reading or using any part of this Project Gutenberg-tm +electronic work, you indicate that you have read, understand, agree to +and accept all the terms of this license and intellectual property +(trademark/copyright) agreement. If you do not agree to abide by all +the terms of this agreement, you must cease using and return or destroy +all copies of Project Gutenberg-tm electronic works in your possession. +If you paid a fee for obtaining a copy of or access to a Project +Gutenberg-tm electronic work and you do not agree to be bound by the +terms of this agreement, you may obtain a refund from the person or +entity to whom you paid the fee as set forth in paragraph 1.E.8. + +1.B. "Project Gutenberg" is a registered trademark. It may only be +used on or associated in any way with an electronic work by people who +agree to be bound by the terms of this agreement. There are a few +things that you can do with most Project Gutenberg-tm electronic works +even without complying with the full terms of this agreement. See +paragraph 1.C below. There are a lot of things you can do with Project +Gutenberg-tm electronic works if you follow the terms of this agreement +and help preserve free future access to Project Gutenberg-tm electronic +works. See paragraph 1.E below. + +1.C. The Project Gutenberg Literary Archive Foundation ("the Foundation" +or PGLAF), owns a compilation copyright in the collection of Project +Gutenberg-tm electronic works. Nearly all the individual works in the +collection are in the public domain in the United States. If an +individual work is in the public domain in the United States and you are +located in the United States, we do not claim a right to prevent you from +copying, distributing, performing, displaying or creating derivative +works based on the work as long as all references to Project Gutenberg +are removed. Of course, we hope that you will support the Project +Gutenberg-tm mission of promoting free access to electronic works by +freely sharing Project Gutenberg-tm works in compliance with the terms of +this agreement for keeping the Project Gutenberg-tm name associated with +the work. You can easily comply with the terms of this agreement by +keeping this work in the same format with its attached full Project +Gutenberg-tm License when you share it without charge with others. + +1.D. The copyright laws of the place where you are located also govern +what you can do with this work. Copyright laws in most countries are in +a constant state of change. If you are outside the United States, check +the laws of your country in addition to the terms of this agreement +before downloading, copying, displaying, performing, distributing or +creating derivative works based on this work or any other Project +Gutenberg-tm work. The Foundation makes no representations concerning +the copyright status of any work in any country outside the United +States. + +1.E. Unless you have removed all references to Project Gutenberg: + +1.E.1. The following sentence, with active links to, or other immediate +access to, the full Project Gutenberg-tm License must appear prominently +whenever any copy of a Project Gutenberg-tm work (any work on which the +phrase "Project Gutenberg" appears, or with which the phrase "Project +Gutenberg" is associated) is accessed, displayed, performed, viewed, +copied or distributed: + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + +1.E.2. If an individual Project Gutenberg-tm electronic work is derived +from the public domain (does not contain a notice indicating that it is +posted with permission of the copyright holder), the work can be copied +and distributed to anyone in the United States without paying any fees +or charges. If you are redistributing or providing access to a work +with the phrase "Project Gutenberg" associated with or appearing on the +work, you must comply either with the requirements of paragraphs 1.E.1 +through 1.E.7 or obtain permission for the use of the work and the +Project Gutenberg-tm trademark as set forth in paragraphs 1.E.8 or +1.E.9. + +1.E.3. If an individual Project Gutenberg-tm electronic work is posted +with the permission of the copyright holder, your use and distribution +must comply with both paragraphs 1.E.1 through 1.E.7 and any additional +terms imposed by the copyright holder. Additional terms will be linked +to the Project Gutenberg-tm License for all works posted with the +permission of the copyright holder found at the beginning of this work. + +1.E.4. Do not unlink or detach or remove the full Project Gutenberg-tm +License terms from this work, or any files containing a part of this +work or any other work associated with Project Gutenberg-tm. + +1.E.5. Do not copy, display, perform, distribute or redistribute this +electronic work, or any part of this electronic work, without +prominently displaying the sentence set forth in paragraph 1.E.1 with +active links or immediate access to the full terms of the Project +Gutenberg-tm License. + +1.E.6. You may convert to and distribute this work in any binary, +compressed, marked up, nonproprietary or proprietary form, including any +word processing or hypertext form. However, if you provide access to or +distribute copies of a Project Gutenberg-tm work in a format other than +"Plain Vanilla ASCII" or other format used in the official version +posted on the official Project Gutenberg-tm web site (www.gutenberg.org), +you must, at no additional cost, fee or expense to the user, provide a +copy, a means of exporting a copy, or a means of obtaining a copy upon +request, of the work in its original "Plain Vanilla ASCII" or other +form. Any alternate format must include the full Project Gutenberg-tm +License as specified in paragraph 1.E.1. + +1.E.7. Do not charge a fee for access to, viewing, displaying, +performing, copying or distributing any Project Gutenberg-tm works +unless you comply with paragraph 1.E.8 or 1.E.9. + +1.E.8. You may charge a reasonable fee for copies of or providing +access to or distributing Project Gutenberg-tm electronic works provided +that + +- You pay a royalty fee of 20% of the gross profits you derive from + the use of Project Gutenberg-tm works calculated using the method + you already use to calculate your applicable taxes. The fee is + owed to the owner of the Project Gutenberg-tm trademark, but he + has agreed to donate royalties under this paragraph to the + Project Gutenberg Literary Archive Foundation. Royalty payments + must be paid within 60 days following each date on which you + prepare (or are legally required to prepare) your periodic tax + returns. Royalty payments should be clearly marked as such and + sent to the Project Gutenberg Literary Archive Foundation at the + address specified in Section 4, "Information about donations to + the Project Gutenberg Literary Archive Foundation." + +- You provide a full refund of any money paid by a user who notifies + you in writing (or by e-mail) within 30 days of receipt that s/he + does not agree to the terms of the full Project Gutenberg-tm + License. You must require such a user to return or + destroy all copies of the works possessed in a physical medium + and discontinue all use of and all access to other copies of + Project Gutenberg-tm works. + +- You provide, in accordance with paragraph 1.F.3, a full refund of any + money paid for a work or a replacement copy, if a defect in the + electronic work is discovered and reported to you within 90 days + of receipt of the work. + +- You comply with all other terms of this agreement for free + distribution of Project Gutenberg-tm works. + +1.E.9. If you wish to charge a fee or distribute a Project Gutenberg-tm +electronic work or group of works on different terms than are set +forth in this agreement, you must obtain permission in writing from +both the Project Gutenberg Literary Archive Foundation and Michael +Hart, the owner of the Project Gutenberg-tm trademark. Contact the +Foundation as set forth in Section 3 below. + +1.F. + +1.F.1. Project Gutenberg volunteers and employees expend considerable +effort to identify, do copyright research on, transcribe and proofread +public domain works in creating the Project Gutenberg-tm +collection. Despite these efforts, Project Gutenberg-tm electronic +works, and the medium on which they may be stored, may contain +"Defects," such as, but not limited to, incomplete, inaccurate or +corrupt data, transcription errors, a copyright or other intellectual +property infringement, a defective or damaged disk or other medium, a +computer virus, or computer codes that damage or cannot be read by +your equipment. + +1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right +of Replacement or Refund" described in paragraph 1.F.3, the Project +Gutenberg Literary Archive Foundation, the owner of the Project +Gutenberg-tm trademark, and any other party distributing a Project +Gutenberg-tm electronic work under this agreement, disclaim all +liability to you for damages, costs and expenses, including legal +fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT +LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE +PROVIDED IN PARAGRAPH F3. YOU AGREE THAT THE FOUNDATION, THE +TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE +LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR +INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH +DAMAGE. + +1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a +defect in this electronic work within 90 days of receiving it, you can +receive a refund of the money (if any) you paid for it by sending a +written explanation to the person you received the work from. If you +received the work on a physical medium, you must return the medium with +your written explanation. The person or entity that provided you with +the defective work may elect to provide a replacement copy in lieu of a +refund. If you received the work electronically, the person or entity +providing it to you may choose to give you a second opportunity to +receive the work electronically in lieu of a refund. If the second copy +is also defective, you may demand a refund in writing without further +opportunities to fix the problem. + +1.F.4. Except for the limited right of replacement or refund set forth +in paragraph 1.F.3, this work is provided to you 'AS-IS' WITH NO OTHER +WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO +WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR ANY PURPOSE. + +1.F.5. Some states do not allow disclaimers of certain implied +warranties or the exclusion or limitation of certain types of damages. +If any disclaimer or limitation set forth in this agreement violates the +law of the state applicable to this agreement, the agreement shall be +interpreted to make the maximum disclaimer or limitation permitted by +the applicable state law. The invalidity or unenforceability of any +provision of this agreement shall not void the remaining provisions. + +1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the +trademark owner, any agent or employee of the Foundation, anyone +providing copies of Project Gutenberg-tm electronic works in accordance +with this agreement, and any volunteers associated with the production, +promotion and distribution of Project Gutenberg-tm electronic works, +harmless from all liability, costs and expenses, including legal fees, +that arise directly or indirectly from any of the following which you do +or cause to occur: (a) distribution of this or any Project Gutenberg-tm +work, (b) alteration, modification, or additions or deletions to any +Project Gutenberg-tm work, and (c) any Defect you cause. + + +Section 2. Information about the Mission of Project Gutenberg-tm + +Project Gutenberg-tm is synonymous with the free distribution of +electronic works in formats readable by the widest variety of computers +including obsolete, old, middle-aged and new computers. It exists +because of the efforts of hundreds of volunteers and donations from +people in all walks of life. + +Volunteers and financial support to provide volunteers with the +assistance they need, are critical to reaching Project Gutenberg-tm's +goals and ensuring that the Project Gutenberg-tm collection will +remain freely available for generations to come. In 2001, the Project +Gutenberg Literary Archive Foundation was created to provide a secure +and permanent future for Project Gutenberg-tm and future generations. +To learn more about the Project Gutenberg Literary Archive Foundation +and how your efforts and donations can help, see Sections 3 and 4 +and the Foundation web page at http://www.pglaf.org. + + +Section 3. Information about the Project Gutenberg Literary Archive +Foundation + +The Project Gutenberg Literary Archive Foundation is a non profit +501(c)(3) educational corporation organized under the laws of the +state of Mississippi and granted tax exempt status by the Internal +Revenue Service. The Foundation's EIN or federal tax identification +number is 64-6221541. Its 501(c)(3) letter is posted at +http://pglaf.org/fundraising. Contributions to the Project Gutenberg +Literary Archive Foundation are tax deductible to the full extent +permitted by U.S. federal laws and your state's laws. + +The Foundation's principal office is located at 4557 Melan Dr. S. +Fairbanks, AK, 99712., but its volunteers and employees are scattered +throughout numerous locations. Its business office is located at +809 North 1500 West, Salt Lake City, UT 84116, (801) 596-1887, email +business@pglaf.org. Email contact links and up to date contact +information can be found at the Foundation's web site and official +page at http://pglaf.org + +For additional contact information: + Dr. Gregory B. Newby + Chief Executive and Director + gbnewby@pglaf.org + + +Section 4. Information about Donations to the Project Gutenberg +Literary Archive Foundation + +Project Gutenberg-tm depends upon and cannot survive without wide +spread public support and donations to carry out its mission of +increasing the number of public domain and licensed works that can be +freely distributed in machine readable form accessible by the widest +array of equipment including outdated equipment. Many small donations +($1 to $5,000) are particularly important to maintaining tax exempt +status with the IRS. + +The Foundation is committed to complying with the laws regulating +charities and charitable donations in all 50 states of the United +States. Compliance requirements are not uniform and it takes a +considerable effort, much paperwork and many fees to meet and keep up +with these requirements. We do not solicit donations in locations +where we have not received written confirmation of compliance. To +SEND DONATIONS or determine the status of compliance for any +particular state visit http://pglaf.org + +While we cannot and do not solicit contributions from states where we +have not met the solicitation requirements, we know of no prohibition +against accepting unsolicited donations from donors in such states who +approach us with offers to donate. + +International donations are gratefully accepted, but we cannot make +any statements concerning tax treatment of donations received from +outside the United States. U.S. laws alone swamp our small staff. + +Please check the Project Gutenberg Web pages for current donation +methods and addresses. Donations are accepted in a number of other +ways including checks, online payments and credit card donations. +To donate, please visit: http://pglaf.org/donate + + +Section 5. General Information About Project Gutenberg-tm electronic +works. + +Professor Michael S. Hart is the originator of the Project Gutenberg-tm +concept of a library of electronic works that could be freely shared +with anyone. For thirty years, he produced and distributed Project +Gutenberg-tm eBooks with only a loose network of volunteer support. + + +Project Gutenberg-tm eBooks are often created from several printed +editions, all of which are confirmed as Public Domain in the U.S. +unless a copyright notice is included. Thus, we do not necessarily +keep eBooks in compliance with any particular paper edition. + + +Most people start at our Web site which has the main PG search facility: + + http://www.gutenberg.org + +This Web site includes information about Project Gutenberg-tm, +including how to make donations to the Project Gutenberg Literary +Archive Foundation, how to help produce our new eBooks, and how to +subscribe to our email newsletter to hear about new eBooks. diff --git a/31425-8.zip b/31425-8.zip Binary files differnew file mode 100644 index 0000000..1eb9d6c --- /dev/null +++ b/31425-8.zip diff --git a/31425-h.zip b/31425-h.zip Binary files differnew file mode 100644 index 0000000..fceb038 --- /dev/null +++ b/31425-h.zip diff --git a/31425-h/31425-h.htm b/31425-h/31425-h.htm new file mode 100644 index 0000000..c08e76a --- /dev/null +++ b/31425-h/31425-h.htm @@ -0,0 +1,11602 @@ +<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" + "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd"> + +<html xmlns="http://www.w3.org/1999/xhtml" xml:lang="en" lang="en"> + <head> + <meta http-equiv="Content-Type" content="text/html;charset=iso-8859-1" /> + <meta http-equiv="Content-Style-Type" content="text/css" /> + <title> + The Project Gutenberg eBook of Report of the Decision in Dred Scott v. Sandford, by Benjamin C. Howard. + </title> + <style type="text/css"> + +body { + margin-left: 15%; + margin-right: 15%; +} + + h1,h2,h3,h4,h5,h6 { + text-align: center; /* all headings centered */ + clear: both; font-weight: normal; +} + +p { + margin-top: .75em; + text-align: justify; + margin-bottom: .75em; +} + +hr { + width: 65%; + margin-top: 2em; + margin-bottom: 2em; + margin-left: auto; + margin-right: auto; + clear: both; +} + +hr.med { + width: 33%; + margin-top: 2em; + margin-bottom: 2em; + margin-left: auto; + margin-right: auto; + clear: both; +} + +hr.short { + width: 15%; + margin-top: 2em; + margin-bottom: 2em; + margin-left: auto; + margin-right: auto; + clear: both; +} + +hr.shorttp { + width: 15%; + margin-top: 3em; + margin-bottom: 1em; + margin-left: auto; + margin-right: auto; + clear: both; +} + +hr.shortbp { + width: 15%; + margin-top: 1em; + margin-bottom: 3em; + margin-left: auto; + margin-right: auto; + clear: both; +} + +table { + margin-left: auto; + margin-right: auto; +} + +.pagenum {position: absolute; left: 92%; + font-size: 75%; text-indent: 0em; + border-top: solid gray 1px; border-bottom: solid gray 1px; + background-color: inherit; font-weight: normal; + font-style: normal; font-variant: normal; + text-decoration: none;} + + +/* Formatting */ +.blockquot {margin-left: 10%; margin-right: 10%;} + +.bbox {border: solid black 1px;} + +.center {text-align: center;} +.centertp {text-align: center; padding-top: 1em;} +.centerbp {text-align: center; padding-bottom: 1em;} +.centertbp {text-align: center; padding-top: 1em; padding-bottom: 1em;} + +.right {text-align: right;} + +.tp {padding-top: 1em;} +.bp {padding-bottom: 1em;} + + +/* Fonts */ +.smcap {font-variant: small-caps;} + +.xsm {font-size: 60%;} +.sm {font-size: 75%;} +.msm {font-size: 90%;} +.lg {font-size: 125%;} +.xxlg {font-size: 300%;} + +.gesperrt {letter-spacing: .2em;} + + +/* Footnotes */ +.footnote {margin-left: 10%; margin-right: 10%;} + +.footnote .label {position: absolute; right: 84%; text-align: right;} + +.fnanchor {vertical-align: baseline; + position: relative; bottom: 0.4em; + font-size: 80%; text-decoration: none;} + + +/* Transcriber Notes */ +.notes {background-color: #eeeeee; color: #000; + padding-top: .5em; padding-bottom: .5em; + padding-left: 1em; padding-right: 1em; + margin-left: 5%; margin-right: 5%;} + +.err {border-bottom: thin dotted red;} + + </style> + </head> +<body> + + +<pre> + +The Project Gutenberg EBook of 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, by Benjamin C. Howard + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +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 + December Term, 1856. + +Author: Benjamin C. Howard + +Release Date: February 27, 2010 [EBook #31425] + +Language: English + +Character set encoding: ISO-8859-1 + +*** START OF THIS PROJECT GUTENBERG EBOOK CASE OF DRED SCOTT *** + + + + +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.) + + + + + + +</pre> + + + + +<div class="notes"> +<p><i>Transcriber's Note:</i> A <a href="#CONTENTS">Table of Contents</a> has been created for the +reader's convenience. Minor, obvious printer errors have been +corrected without note. Other questionable text is marked with red +dotted underlining and a pop-up <span class="err" title="Transcriber's Note">Transcriber's Note</span>.</p> +</div> + +<p><br /></p> + +<div class="bbox"> +<h1><span class="sm">REPORT</span><br /> +<br /> +<span class="xsm">OF</span><br /> +<br /> +<span class="gesperrt">THE DECISION</span><br /> +<br /> +<span class="xsm">OF THE</span><br /> +<br /> +SUPREME COURT OF THE UNITED STATES,<br /> +<br /> +<span class="xsm">AND THE</span><br /> +<br /> +<span class="sm">OPINIONS OF THE JUDGES THEREOF,</span><br /> +<br /> +<span class="xsm">IN THE CASE OF</span><br /> +<br /> +<span class="gesperrt">DRED SCOTT</span><br /> +<br /> +<span class="xsm">VERSUS</span><br /> +<br /> +<span class="gesperrt"><span class="msm">JOHN F. A. SANDFORD.</span></span></h1> + +<h2>DECEMBER TERM, 1856.</h2> + +<hr class="shorttp" /> + +<h3><span class="gesperrt">BY BENJAMIN C. HOWARD,</span><br /> +<span class="sm">FROM THE NINETEENTH VOLUME OF HOWARD’S REPORTS.</span></h3> + +<hr class="shortbp" /> + +<p class="centerbp"> +<span class="gesperrt">WASHINGTON:<br /> +CORNELIUS WENDELL, PRINTER.<br /> +1857.</span></p> +</div> + + + + +<hr /> +<h2><a name="CONTENTS" id="CONTENTS"></a>CONTENTS</h2> + + +<p class="centertp"> +<a href="#SYLLABUS">Syllabus</a><br /> +<a href="#TANEY">Mr. Chief Justice Taney</a> (majority opinion)<br /> +<a href="#WAYNE">Mr. Justice Wayne</a> (concurrence)<br /> +<a href="#NELSON">Mr. Justice Nelson</a> (concurrence)<br /> +<a href="#GRIER">Mr. Justice Grier</a> (concurrence)<br /> +<a href="#DANIEL">Mr. Justice Daniel</a> (concurrence)<br /> +<a href="#CAMPBELL">Mr. Justice Campbell</a> (concurrence)<br /> +<a href="#CATRON">Mr. Justice Catron</a> (concurrence)<br /> +<a href="#McLEAN">Mr. Justice McLean</a> (dissent)<br /> +<a href="#CURTIS">Mr. Justice Curtis</a> (dissent)<br /> +</p> + + + +<hr /> +<p><span class="pagenum"><a name="Page_3" id="Page_3">-3-</a></span></p> + +<h2><a name="SYLLABUS" id="SYLLABUS"></a>SUPREME COURT OF THE UNITED STATES.<br /> +<span class="sm">DECEMBER TERM, 1856.</span></h2> + +<hr class="short" /> + +<h2><span class="lg"><span class="gesperrt">DRED SCOTT</span></span><br /> +<br /> +<span class="xsm">VERSUS</span><br /> +<br /> +<span class="gesperrt">JOHN F. A. SANDFORD.</span></h2> + +<hr class="short" /> + +<p class="center"><span class="smcap">Dred Scott, Plaintiff in Error</span>, <i>v.</i> <span class="smcap">John F. A. Sandford</span>.</p> + +<div class="blockquot"> +<p><span class="smcap">This</span> case was brought up, by writ of error, from the Circuit +Court of the United States for the district of Missouri.</p> + +<p>It was an action of trespass <i>vi et armis</i> instituted in the +Circuit Court by Scott against Sandford.</p> + +<p>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.</p> + +<p>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.</p> + +<p>Sandford appeared, and filed the following plea:</p> + +<table border="0" cellpadding="5" cellspacing="0" summary="caption"> +<tr> +<td class="center"> +<span class="smcap">Dred Scott</span><br /> +<i>v.</i><br /> +<span class="smcap">John F. A. Sanford.</span></td> +<td class="center"><span class="xxlg">}</span></td> +<td><i>Plea to the jurisdiction of the Court.</i></td> +</tr> +</table> + +<p class="center"><span class="smcap">April Term</span>, 1854.</p> + +<p>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<span class="pagenum"><a name="Page_4" id="Page_4">-4-</a></span> 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.</p> + +<p class="right"><span class="smcap">John F. A. Sandford.</span></p> + +<p>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.</p> + +<p>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:</p> + +<p>1. Not guilty.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>The counsel then filed the following agreed statement of +facts, viz:</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.<span class="pagenum"><a name="Page_5" id="Page_5">-5-</a></span></p> + +<p>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.</p> + +<p>Further proof may be given on the trial for either party.</p> + +<p>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.</p> + +<p>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."</p> + +<p>Whereupon, the court gave judgment for the defendant.</p> + +<p>After an ineffectual motion for a new trial, the plaintiff +filed the following bill of exceptions.</p> + +<p>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:</p> + +<p>"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."</p> + +<p>The court then gave the following instruction to the jury, +on motion of the defendant:</p> + +<p>"The jury are instructed, that upon the facts in this case, +the law is with the defendant." The plaintiff excepted to +this instruction.</p> + +<p>Upon these exceptions, the case came up to this court.</p> + +<p>It was argued at December term, 1855, and ordered to be +reargued at the present term.</p> + +<p>It was now argued by <i>Mr. Blair</i> and <i>Mr.</i> +<span class="err" title="Transcriber's Note: should be 'G.T. Curtis,' for George Ticknor Curtis"><i>G.F.</i></span> +<i>Curtis</i> for the plaintiff in error, and by <i>Mr. +Geyer</i> and <i>Mr. Johnson</i> for the defendant in error.</p> + +<p>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.</p></div> + +<hr class="med" /> + +<p>Mr. Chief Justice <a name="TANEY" id="TANEY"></a>TANEY delivered the opinion of the court.</p> + +<p>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<span class="pagenum"><a name="Page_6" id="Page_6">-6-</a></span> consideration. It has accordingly been again argued by +counsel, and considered by the court; and I now proceed to deliver its +opinion.</p> + +<p>There are two leading questions presented by the record:</p> + +<p>1. Had the Circuit Court of the United States jurisdiction to hear and +determine the case between these parties? And</p> + +<p>2. If it had jurisdiction, is the judgment it has given erroneous or +not?</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>That plea denies the right of the plaintiff to sue in a court of the +United States, for the reasons therein stated.</p> + +<p>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.</p> + +<p>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.<span class="pagenum"><a name="Page_7" id="Page_7">-7-</a></span></p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_8" id="Page_8">-8-</a></span> 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.</p> + +<p>This point was decided in the case of Bingham <i>v.</i> Cabot, (in 3 Dall., +382,) and ever since adhered to by the court. And in Jackson <i>v.</i> +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.</p> + +<p>It is needless to accumulate cases on this subject. Those already +referred to, and the cases of Capron <i>v.</i> Van Noorden, (in 2 Cr., +126,) and Montalet <i>v.</i> Murray, (4 Cr., 46,) are sufficient to show +the rule of which we have spoken. The case of Capron <i>v.</i> Van Noorden +strikingly illustrates the difference between a common-law court and a +court of the United States.</p> + +<p>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.<span class="pagenum"><a name="Page_9" id="Page_9">-9-</a></span></p> + +<p>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 +<i>v.</i> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_10" id="Page_10">-10-</a></span> 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.</p> + +<p>We proceed to examine the case as presented by the pleadings.</p> + +<p>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 subordi<span class="pagenum"><a name="Page_11" id="Page_11">-11-</a></span>nate 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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_12" id="Page_12">-12-</a></span> rights and immunities which the +Constitution and laws of the State attached to that character.</p> + +<p>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.</p> + +<p>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?</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_13" id="Page_13">-13-</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>And in no nation was this opinion more firmly fixed or more<span class="pagenum"><a name="Page_14" id="Page_14">-14-</a></span> 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.</p> + +<p>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.</p> + +<p>The legislation of the different colonies furnishes positive and +indisputable proof of this fact.</p> + +<p>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.</p> + +<p>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."</p> + +<p>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<span class="pagenum"><a name="Page_15" id="Page_15">-15-</a></span> the discretion of the justices before whom the +offender shall be convicted."</p> + +<p>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."</p> + +<p>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.</p> + +<p>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.</p> + +<p>The language of the Declaration of Independence is equally conclusive:</p> + +<p>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<span class="pagenum"><a name="Page_16" id="Page_16">-16-</a></span> 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."</p> + +<p>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."</p> + +<p>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.</p> + +<p>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.</p> + +<p>This state of public opinion had undergone no change when the +Constitution was adopted, as is equally evident from its provisions +and language.</p> + +<p>The brief preamble sets forth by whom it was formed, for what +purposes, and for whose benefit and protection. It de<span class="pagenum"><a name="Page_17" id="Page_17">-17-</a></span>clares that it +is formed by the <i>people</i> 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 <i>people</i> of the United States, and of <i>citizens</i> +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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_18" id="Page_18">-18-</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 +pleas<span class="pagenum"><a name="Page_19" id="Page_19">-19-</a></span>ure. 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_20" id="Page_20">-20-</a></span> the new Constitution, +the equal rights and privileges and rank of citizens in every other +State.</p> + +<p>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:</p> + +<p>"And whereas the increase of slaves in this state is injurious to the +poor, and inconvenient."</p> + +<p>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.</p> + +<p>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:</p> + +<p>"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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_21" id="Page_21">-21-</a></span> 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.</p> + +<p>And it appears by the case of Crandall <i>v.</i> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>A brief notice of the laws of two other States, and we shall pass on +to other considerations.</p> + +<p>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.<span class="pagenum"><a name="Page_22" id="Page_22">-22-</a></span></p> + +<p>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.</p> + +<p>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 <i>b</i>,) 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.</p> + +<p>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<span class="pagenum"><a name="Page_23" id="Page_23">-23-</a></span> 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.</p> + +<p>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.</p> + +<p>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 <i>naturalization</i> 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<span class="pagenum"><a name="Page_24" id="Page_24">-24-</a></span> 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.</p> + +<p>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 <i>free inhabitants</i> 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."</p> + +<p>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 <i>free +inhabitant</i>, 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 <i>white</i> +inhabitants in such State, which requisition should be binding."</p> + +<p>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<span class="pagenum"><a name="Page_25" id="Page_25">-25-</a></span> 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.</p> + +<p>But although this clause of the Articles of Confederation is the same +in principle with that inserted in the Constitution, yet the +comprehensive word <i>inhabitant</i>, which might be construed to include +an emancipated slave, is omitted; and the privilege is confined to +<i>citizens</i> 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 <i>citizen</i> was on +that account substituted for the words <i>free inhabitant</i>. 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.</p> + +<p>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.</p> + +<p>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 "<i>to aliens being free white persons</i>."</p> + +<p>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<span class="pagenum"><a name="Page_26" id="Page_26">-26-</a></span> at that time was perfectly +understood to be confined to the white race; and that they alone +constituted the sovereignty in the Government.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 <i>white</i> 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.</p> + +<p>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, <i>or</i> persons +of color, natives of the United States."<span class="pagenum"><a name="Page_27" id="Page_27">-27-</a></span></p> + +<p>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.</p> + +<p>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."</p> + +<p>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.</p> + +<p>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."</p> + +<p>But it is said that a person may be a citizen, and entitled to<span class="pagenum"><a name="Page_28" id="Page_28">-28-</a></span> 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.</p> + +<p>This argument overlooks the language of the provision in the +Constitution of which we are speaking.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 <i>status</i> 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.</p> + +<p>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<span class="pagenum"><a name="Page_29" id="Page_29">-29-</a></span> +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.</p> + +<p>The case of Legrand <i>v.</i> 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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_30" id="Page_30">-30-</a></span> object was to have the rights of both parties established +by judicial decision in the most speedy and least expensive manner.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_31" id="Page_31">-31-</a></span> +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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 Govern<span class="pagenum"><a name="Page_32" id="Page_32">-32-</a></span>ment 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.</p> + +<p>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.</p> + +<p>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."</p> + +<p>And upon a full and careful consideration of the subject,<span class="pagenum"><a name="Page_33" id="Page_33">-33-</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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,<span class="pagenum"><a name="Page_34" id="Page_34">-34-</a></span> 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.</p> + +<p>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 <i>this court</i>. 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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_35" id="Page_35">-35-</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 ex<span class="pagenum"><a name="Page_36" id="Page_36">-36-</a></span>clusively 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.</p> + +<p>The cases of Jackson <i>v.</i> Ashton and of Capron <i>v.</i> 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.</p> + +<p>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 <i>v.</i> Van Noorden the judgment was reversed, +because it did <i>not appear</i> that the parties were citizens of +different States. They might or might not be. But in this case it +<i>does appear</i> 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.</p> + +<p>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.</p> + +<p>We proceed, therefore, to inquire whether the facts relied on by the +plaintiff entitled him to his freedom.<span class="pagenum"><a name="Page_37" id="Page_37">-37-</a></span></p> + +<p>The case, as he himself states it, on the record brought here by his +writ of error, is this:</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 herein<span class="pagenum"><a name="Page_38" id="Page_38">-38-</a></span>before 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?</p> + +<p>We proceed to examine the first question.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_39" id="Page_39">-39-</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_40" id="Page_40">-40-</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_41" id="Page_41">-41-</a></span> 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.</p> + +<p>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<span class="pagenum"><a name="Page_42" id="Page_42">-42-</a></span> 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.</p> + +<p>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 <i>any</i> territory, nor +of <i>Territories</i>, but uses language which, according to its legitimate +meaning, points to a particular thing. The power is given in relation +only to <i>the</i> 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,<span class="pagenum"><a name="Page_43" id="Page_43">-43-</a></span> +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.</p> + +<p>And the same power of making needful rules respecting the territory +is, in precisely the same language, applied to the <i>other</i> 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.</p> + +<p>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."</p> + +<p>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<span class="pagenum"><a name="Page_44" id="Page_44">-44-</a></span> 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.</p> + +<p>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<span class="pagenum"><a name="Page_45" id="Page_45">-45-</a></span> 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.</p> + +<p>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, <i>other property</i> necessarily, by +every known rule of interpretation, must mean<span class="pagenum"><a name="Page_46" id="Page_46">-46-</a></span> 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.</p> + +<p>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."</p> + +<p>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 <i>rule</i> +of naturalization;" "to coin money and <i>regulate</i> 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.<span class="pagenum"><a name="Page_47" id="Page_47">-47-</a></span></p> + +<p>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.</p> + +<p>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."</p> + +<p>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 +par<span class="pagenum"><a name="Page_48" id="Page_48">-48-</a></span>ticular 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.</p> + +<p>But the case of the American and Ocean Insurance Companies <i>v.</i> 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.</p> + +<p>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:</p> + +<p>"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 par<span class="pagenum"><a name="Page_49" id="Page_49">-49-</a></span>ticular 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. <i>Whichever +may be the source from which the power is derived, the possession of +it is unquestionable.</i>"</p> + +<p>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 "<i>the inevitable consequence +of the right to acquire territory</i>."</p> + +<p>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."</p> + +<p>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<span class="pagenum"><a name="Page_50" id="Page_50">-50-</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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."</p> + +<p>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.<span class="pagenum"><a name="Page_51" id="Page_51">-51-</a></span></p> + +<p>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.</p> + +<p>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."</p> + +<p>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."</p> + +<p>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<span class="pagenum"><a name="Page_52" id="Page_52">-52-</a></span> court with admiralty jurisdiction, over which the +General Government had exclusive jurisdiction in the Territory.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_53" id="Page_53">-53-</a></span> 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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_54" id="Page_54">-54-</a></span> 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.</p> + +<p>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.</p> + +<p>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 estab<span class="pagenum"><a name="Page_55" id="Page_55">-55-</a></span>lished 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.</p> + +<p>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 +Gov<span class="pagenum"><a name="Page_56" id="Page_56">-56-</a></span>ernment can exercise no power over his person or property, beyond +what that instrument confers, nor lawfully deny any right which it has +reserved.</p> + +<p>A reference to a few of the provisions of the Constitution will +illustrate this proposition.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_57" id="Page_57">-57-</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_58" id="Page_58">-58-</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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. <i>v.</i> 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 <i>status</i> 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.</p> + +<p>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 <i>status</i>, as free or slave, depended on the laws +of Missouri, and not of Illinois.</p> + +<p>It has, however, been urged in the argument, that by the laws of +Missouri he was free on his return, and that this case,<span class="pagenum"><a name="Page_59" id="Page_59">-59-</a></span> therefore, +cannot be governed by the case of Strader et al. <i>v.</i> 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.</p> + +<p>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 <i>v.</i> 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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_60" id="Page_60">-60-</a></span> 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.</p> + +<p>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.</p> + +<hr class="med" /> + +<p>Mr. Justice <a name="WAYNE" id="WAYNE"></a>WAYNE.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>The case involves private rights of value, and constitutional +principles of the highest importance, about which there had<span class="pagenum"><a name="Page_61" id="Page_61">-61-</a></span> become +such a difference of opinion, that the peace and harmony of the +country required the settlement of them by judicial decision.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 <i>from the State court</i>; 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<span class="pagenum"><a name="Page_62" id="Page_62">-62-</a></span> +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.</p> + +<p>But in a case brought to this court, by appeal or by writ of error +from <i>a Circuit Court of the United States</i>, we begin a review of it, +<i>not by inquiring if this court has jurisdiction</i>, 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.</p> + +<p>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 <i>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</i>, 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.</p> + +<p>I have already said that the opinion of the court has my unqualified +assent.<span class="pagenum"><a name="Page_63" id="Page_63">-63-</a></span></p> + +<hr class="med" /> + +<p>Mr. Justice <a name="NELSON" id="NELSON"></a>NELSON.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>The defendant then plead over in bar of the action:</p> + +<p>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.</p> + +<p>The facts agreed upon were substantially as follows:</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_64" id="Page_64">-64-</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_65" id="Page_65">-65-</a></span> return to the slave State, such residence in the free +State works an emancipation.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.<span class="pagenum"><a name="Page_66" id="Page_66">-66-</a></span></p> + +<p>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.</p> + +<p>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.</p> + +<p>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."</p> + +<p>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.</p> + +<p>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.)</p> + +<p>These principles fully establish, that it belongs to the sover<span class="pagenum"><a name="Page_67" id="Page_67">-67-</a></span>eign +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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_68" id="Page_68">-68-</a></span> 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.)</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.)</p> + +<p>We come now to the decision of this court in the case of Strader et +al. <i>v.</i> 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<span class="pagenum"><a name="Page_69" id="Page_69">-69-</a></span> 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."</p> + +<p>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. <i>v.</i> 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.)</p> + +<p>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.<span class="pagenum"><a name="Page_70" id="Page_70">-70-</a></span></p> + +<p>"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."</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>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<span class="pagenum"><a name="Page_71" id="Page_71">-71-</a></span> 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.</p> + +<p>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.</p> + +<p>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.</p> + +<p>This is the substance of the grounds of the decision.</p> + +<p>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,<span class="pagenum"><a name="Page_72" id="Page_72">-72-</a></span> and, according to the +decision in the case of Strader et al. <i>v.</i> Graham, is conclusive of +the case in this court.</p> + +<p>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?</p> + +<p>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<span class="pagenum"><a name="Page_73" id="Page_73">-73-</a></span> 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.)</p> + +<p>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.</p> + +<p>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."</p> + +<p>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.</p> + +<p>The State of Louisiana, whose courts had gone further in<span class="pagenum"><a name="Page_74" id="Page_74">-74-</a></span> 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.)</p> + +<p>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.</p> + +<p>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.</p> + +<p>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 <i>v.</i> Napier, (6 Welsh, Hurtst. and Gordon +Exch. Rep., 217,) illustrates and applies the principle in the case of +an officer of the English army.</p> + +<p>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.<span class="pagenum"><a name="Page_75" id="Page_75">-75-</a></span></p> + +<p>Our conclusion is, that the judgment of the court below should be +affirmed.</p> + +<hr class="med" /> + +<p>Mr. Justice <a name="GRIER" id="GRIER"></a>GRIER.</p> + +<p>I concur in the opinion delivered by Mr. Justice Nelson on the +questions discussed by him.</p> + +<p>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 therefore not entitled to sue in a +court of the United States, the form of the judgment is of little +importance; for, whether the judgment be affirmed or dismissed for +want of jurisdiction, it is justified by the decision of the court, +and is the same in effect between the parties to the suit.</p> + +<hr class="med" /> + +<p>Mr. Justice <a name="DANIEL" id="DANIEL"></a>DANIEL.</p> + +<p>It may with truth be affirmed, that since the establishment of the +several communities now constituting the States of this Confederacy, +there never has been submitted to any tribunal within its limits +questions surpassing in importance those now claiming the +consideration of this court. Indeed it is difficult to imagine, in +connection with the systems of polity peculiar to the United States, a +conjuncture of graver import than that must be, within which it is +aimed to comprise, and to control, not only the faculties and +practical operation appropriate to the American Confederacy as such, +but also the rights and powers of its separate and independent +members, with reference alike to their internal and domestic authority +and interests, and the relations they sustain to their confederates.</p> + +<p>To my mind it is evident, that nothing less than the ambitious and +far-reaching pretension to compass these objects of vital concern, is +either directly essayed or necessarily implied in the positions +attempted in the argument for the plaintiff in error.</p> + +<p>How far these positions have any foundation in the nature of the +rights and relations of separate, equal, and independent Governments, +or in the provisions of our own Federal compact, or the laws enacted +under and in pursuance of the authority of that compact, will be +presently investigated.</p> + +<p>In order correctly to comprehend the tendency and force of those +positions, it is proper here succinctly to advert to the<span class="pagenum"><a name="Page_76" id="Page_76">-76-</a></span> facts upon +which the questions of law propounded in the argument have arisen.</p> + +<p>This was an action of trespass <i>vi et armis</i>, instituted in the +Circuit Court of the United States for the district of Missouri, in +the name of the plaintiff in error, <i>a negro</i> held as a slave, for the +recovery of freedom for himself, his wife, and two children, <i>also +negroes</i>.</p> + +<p>To the declaration in this case the defendant below, who is also the +defendant in error, pleaded in abatement that the court could not take +cognizance of the cause, because the plaintiff was not <i>a citizen</i> of +the State of Missouri, as averred in the declaration, but was a <i>negro +of African descent</i>, and that his ancestors were of pure African +blood, and were brought into this country and sold as <i>negro slaves</i>; +and hence it followed, from the second section of the third article of +the Constitution, which creates the judicial power of the United +States, with respect to controversies between citizens of different +States, that the Circuit Court could not take cognizance of the +action.</p> + +<p>To this plea in abatement, a demurrer having been interposed on behalf +of the plaintiff, it was sustained by the court. After the decision +sustaining the demurrer, the defendant, in pursuance of a previous +agreement between counsel, and with the leave of the court, pleaded in +bar of the action: <i>1st, not guilty; 2dly, 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; 3dly, 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 at the same manner, and in virtue of the same legal +right</i>.</p> + +<p>Issues having been joined upon the above pleas in bar, the following +statement, comprising all the evidence in the cause, was agreed upon +and signed by the counsel of the respective parties, viz:</p> + +<p>"In the year 1834, the plaintiff was a negro slave belonging to Doctor +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<span class="pagenum"><a name="Page_77" id="Page_77">-77-</a></span> +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.</p> + +<p>"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.</p> + +<p>"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 a military post called Jefferson barracks.</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"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.</p> + +<p>"Further proof may be given on the trial for either party.</p> + +<p class="right"> +"<span class="smcap">R.M. Field</span>, <i>for Plaintiff</i>.<br /> +"<span class="smcap">H.A. Garland</span>, <i>for Defendant</i>. +</p> + +<p>"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<span class="pagenum"><a name="Page_78" id="Page_78">-78-</a></span> cause remanded to the +Circuit Court, where it has been continued to await the decision of +this case.</p> + +<p class="right"> +"<span class="smcap">Field</span>, <i>for Plaintiff</i>.<br /> +"<span class="smcap">Garland</span>, <i>for Defendant</i>." +</p> + +<p>Upon the aforegoing agreed facts, the plaintiff prayed the court to +instruct the jury that they ought to find for the plaintiff, and upon +the refusal of the instruction thus prayed for, the plaintiff excepted +to the court's opinion. The court then, upon the prayer of the +defendant, instructed the jury, that upon the facts of this case +agreed as above, the law was with the defendant. To this opinion, +also, the plaintiff's counsel excepted, as he did to the opinion of +the court denying to the plaintiff a new trial after the verdict of +the jury in favor of the defendant.</p> + +<p>The question first in order presented by the record in this cause, is +that which arises upon the plea in abatement, and the demurrer to that +plea; and upon this question it is my opinion that the demurrer should +have been overruled, and the plea sustained.</p> + +<p>On behalf of the plaintiff it has been urged, that by the pleas +interposed in bar of a recovery in the court below, (which pleas both +in fact and in law are essentially the same with the objections +averred in abatement,) the defence in abatement has been displaced or +waived; that it could therefore no longer be relied on in the Circuit +Court, and cannot claim the consideration of this court in reviewing +this cause. This position is regarded as wholly untenable. On the +contrary, it would seem to follow conclusively from the peculiar +character of the courts of the United States, as organized under the +Constitution and the statutes, and as defined by numerous and +unvarying adjudications from this bench, that there is not one of +those courts whose jurisdiction and powers can be deduced from mere +custom or tradition; not one, whose jurisdiction and powers must not +be traced palpably to, and invested exclusively by, the Constitution +and statutes of the United States; not one that is not bound, +therefore, at all times, and at all stages of its proceedings, to look +to and to regard the special and declared extent and bounds of its +commission and authority. There is no such tribunal of the United +States as a court of <i>general jurisdiction</i>, in the sense in which +that phrase is applied to the superior courts under the common law; +and even with respect to the courts existing under that system, it is +a well-settled principle, that <i>consent</i> can never give jurisdiction.</p> + +<p>The principles above stated, and the consequences regularly deducible +from them, have, as already remarked, been repeat<span class="pagenum"><a name="Page_79" id="Page_79">-79-</a></span>edly and unvaryingly +propounded from this bench. Beginning with the earliest decisions of +this court, we have the cases of Bingham <i>v.</i> Cabot et al., (3 Dallas, +382;) Turner <i>v.</i> Eurille, (4 Dallas, 7;) Abercrombie <i>v.</i> Dupuis et +al., (1 Cranch, 343;) Wood <i>v.</i> Wagnon, (2 Cranch, 9;) The United +States <i>v.</i> The brig Union et al., (4 Cranch, 216;) Sullivan <i>v.</i> The +Fulton Steamboat Company, (6 Wheaton, 450;) Mollan et al. <i>v.</i> +Torrence, (9 Wheaton, 537;) Brown <i>v.</i> Keene, (8 Peters, 112,) and +Jackson <i>v.</i> Ashton, (8 Peters, 148;) ruling, in uniform and unbroken +current, the doctrine that it is essential to the jurisdiction of the +courts of the United States, that the facts upon which it is founded +should appear upon the record. Nay, to such an extent and so +inflexibly has this requisite to the jurisdiction been enforced, that +in the case of Capron <i>v.</i> Van Noorden, (2 Cranch, 126,) it is +declared, that the plaintiff in this court may assign for error his +own omission in the pleadings in the court below, where they go to the +jurisdiction. This doctrine has been, if possible, more strikingly +illustrated in a later decision, the case of The State of Rhode Island +<i>v.</i> The State of Massachusetts, in the 12th of Peters.</p> + +<p>In this case, on page 718 of the volume, this court, with reference to +a motion to dismiss the cause <i>for want of jurisdiction</i>, have said: +"<i>However late this objection has been made, or may be made, in any +cause in an inferior or appellate court of the United States</i>, it must +be considered and decided before any court can move one farther step +in the cause, as any movement is necessarily to exercise the +jurisdiction. Jurisdiction is the power to hear and determine the +subject-matter in controversy between the parties to a suit; to +adjudicate or exercise any judicial power over them. The question is, +whether on the case before the court their action is judicial or +extra-judicial; with or without the authority of law to render a +judgment or decree upon the rights of the litigant parties. A motion +to dismiss a cause pending in the courts of the United States, is not +analogous to a plea to the jurisdiction of a court of common law or +equity in England; there, the superior courts have a general +jurisdiction over all persons within the realm, and all causes of +action between them. It depends on the subject-matter, whether the +jurisdiction shall be exercised by a court of law or equity; but that +court to which it appropriately belongs can act judicially upon the +party and the subject of the suit, unless it shall be made apparent to +the court that the judicial determination of the case has been +withdrawn from the court of general jurisdiction to an inferior and +limited one. It is a necessary presumption that the court of general +jurisdiction can act upon the given case, when nothing to the<span class="pagenum"><a name="Page_80" id="Page_80">-80-</a></span> +contrary appears; hence has arisen the rule that the party claiming an +exemption from its process must set out the reason by a special plea +in abatement, and show that some inferior court of law or equity has +the exclusive cognizance of the case, otherwise the superior court +must proceed in virtue of its general jurisdiction. A motion to +dismiss, therefore, cannot be entertained, as it does not disclose a +case of exception; and if a plea in abatement is put in, it must not +only make out the exception, but point to the particular court to +which the case belongs. There are other classes of cases where the +objection to the jurisdiction is of a different nature, as on a bill +in chancery, that the subject-matter is cognizable only by the King in +Council, or that the parties defendant cannot be brought before any +municipal court on account of their sovereign character or the nature +of the controversy; or to the very common cases which present the +question, whether the cause belong to a court of law or equity. To +such cases, a plea in abatement would not be applicable, because the +plaintiff could not sue in an inferior court. The objection goes to a +denial of any jurisdiction of a municipal court in the one class of +cases, and to the jurisdiction of any court of equity or of law in the +other, on which last the court decides according to its discretion.</p> + +<p>"An objection to jurisdiction on the ground of exemption from the +process of the court in which the suit is brought, or the manner in +which a defendant is brought into it, is waived by appearance and +pleading to issue; but when the objection goes to the power of the +court over the parties or the subject-matter, the defendant need not, +for he cannot, give the plaintiff a better writ. Where an inferior +court can have no jurisdiction of a case of law or equity, the ground +of objection is not taken by plea in abatement, as an exception of the +given case from the otherwise general jurisdiction of the court; +appearance does not cure the defect of judicial power, and it may be +relied on by plea, answer, demurrer, <i>or at the trial or hearing</i>. As +a denial of jurisdiction over the subject-matter of a suit between +parties within the realm, over which and whom the court has power to +act, cannot be successful in an English court of general jurisdiction, +a motion like the present could not be sustained consistently with the +principles of its constitution. <i>But as this court is one of limited +and special original jurisdiction</i>, its action must be confined to the +particular cases, controversies, and parties, over which the +Constitution and laws have authorized it to act; any proceeding +without the limits prescribed is <i>coram non judice</i>, and its action a +nullity. And whether the want or excess of power is objected by a +party, or is apparent<span class="pagenum"><a name="Page_81" id="Page_81">-81-</a></span> to the court, it must surcease its action or +proceed extra-judicially."</p> + +<p>In the constructing of pleadings either in abatement or in bar, every +fact or position constituting a portion of the public law, or of known +or general history, is necessarily implied. Such fact or position need +not be specially averred and set forth; it is what the world at large +and every individual are presumed to know—nay, are bound to know and +to be governed by.</p> + +<p>If, on the other hand, there exist facts or circumstances by which a +particular case would be withdrawn or exempted from the influence of +public law or necessary historical knowledge, such facts and +circumstances form an exception to the general principle, and these +must be specially set forth and <i>established</i> by those who would avail +themselves of such exception.</p> + +<p>Now, the following are truths which a knowledge of the history of the +world, and particularly of that of our own country, compels us to +know—that the African negro race never have been acknowledged as +belonging to the family of nations; that as amongst them there never +has been known or recognised by the inhabitants of other countries +anything partaking of the character of nationality, or civil or +political polity; that this race has been by all the nations of Europe +regarded as subjects of capture or purchase; as subjects of commerce +or traffic; and that the introduction of that race into every section +of this country was not as members of civil or political society, but +as slaves, as <i>property</i> in the strictest sense of the term.</p> + +<p>In the plea in abatement, the character or capacity of citizen on the +part of the plaintiff is denied; and the causes which show the absence +of that character or capacity are set forth by averment. The verity of +those causes, according to the settled rules of pleading, being +admitted by the demurrer, it only remained for the Circuit Court to +decide upon their legal sufficiency to abate the plaintiff's action. +And it now becomes the province of this court to determine whether the +plaintiff below, (and in error here,) admitted to be a <i>negro</i> of +African descent, whose ancestors were of pure African blood, and were +brought into this country and sold as negro slaves—such being his +<i>status</i>, and such the circumstances surrounding his position—whether +he can, by correct legal induction from that <i>status</i> and those +circumstances, be clothed with the character and capacities of a +citizen of the State of Missouri?</p> + +<p>It may be assumed as a postulate, that to a slave, as such, there +appertains and can appertain no relation, civil or political, with the +State or the Government. He is himself strictly <i>property</i>, to be used +in subserviency to the interests, the con<span class="pagenum"><a name="Page_82" id="Page_82">-82-</a></span>venience, or the will, of +his owner; and to suppose, with respect to the former, the existence +of any privilege or discretion, or of any obligation to others +incompatible with the magisterial rights just defined, would be by +implication, if not directly, to deny the relation of master and +slave, since none can possess and enjoy, as his own, that which +another has a paramount right and power to withhold. Hence it follows, +necessarily, that a slave, the <i>peculium</i> or property of a master, and +possessing within himself no civil nor political rights or capacities, +cannot be a <span class="smcap">citizen</span>. For who, it may be asked, is a citizen? What do +the character and <i>status</i> of citizen import? Without fear of +contradiction, it does not import the condition of being private +property, the subject of individual power and ownership. Upon a +principle of etymology alone, the term <i>citizen</i>, as derived from +<i>civitas</i>, conveys the ideas of connection or identification with the +State or Government, and a participation of its functions. But beyond +this, there is not, it is believed, to be found, in the theories of +writers on Government, or in any actual experiment heretofore tried, +an exposition of the term citizen, which has not been understood as +conferring the actual possession and enjoyment, or the perfect right +of acquisition and enjoyment, of an entire equality of privileges, +civil and political.</p> + +<p>Thus Vattel, in the preliminary chapter to his Treatise on the Law of +Nations, says: "Nations or States are bodies politic; societies of men +united together for the purpose of promoting their mutual safety and +advantage, by the joint efforts of their mutual strength. Such a +society has her affairs and her interests; she deliberates and takes +resolutions <i>in common</i>; thus becoming a moral person, who possesses +an understanding and a will peculiar to herself." Again, in the first +chapter of the first book of the Treatise just quoted, the same +writer, after repeating his definition of a State, proceeds to remark, +that, "from the very design that induces a number of men to form a +society, which has its common interests and which is to act in +concert, it is necessary that there should be established a public +authority, to order and direct what is to be done by each, in relation +to the end of the association. This political authority is the +<i>sovereignty</i>." Again this writer remarks: "The authority of <i>all</i> +over each member essentially belongs to the body politic or the +State."</p> + +<p>By this same writer it is also said: "The citizens are the members of +the civil society; bound to this society by certain duties, and +subject to its authority; they <i>equally</i> participate in its +advantages. The natives, or natural-born citizens, are those born in +the country, of parents who are citizens. As so<span class="pagenum"><a name="Page_83" id="Page_83">-83-</a></span>ciety cannot +perpetuate itself otherwise than by the children of the citizens, +those children naturally follow the condition of their parents, and +succeed to all their rights." Again: "I say, to be <i>of the country</i>, +it is necessary to be born of a person who is a <i>citizen</i>; for if he +be born there of a foreigner, it will be only the place of his +<i>birth</i>, and not his <i>country</i>. The inhabitants, as distinguished from +citizens, are foreigners who are permitted to settle and stay in the +country." (Vattel, Book 1, cap. 19, p. 101.)</p> + +<p>From the views here expressed, and they seem to be unexceptionable, it +must follow, that with the <i>slave</i>, with one devoid of rights or +capacities, <i>civil or political</i>, there could be no pact; that one +thus situated could be no party to, or actor in, the association of +those possessing free will, power, discretion. He could form no part +of the design, no constituent ingredient or portion of a society based +upon <i>common</i>, that is, upon <i>equal</i> interests and powers. He could +not at the same time be the sovereign and the slave.</p> + +<p>But it has been insisted, in argument, that the emancipation of a +slave, effected either by the direct act and assent of the master, or +by causes operating in contravention of his will, produces a change in +the <i>status</i> or capacities of the slave, such as will transform him +from a mere subject of property, into a being possessing a social, +civil, and political equality with a citizen. In other words, will +make him a citizen of the State within which he was, previously to his +emancipation, a slave.</p> + +<p>It is difficult to conceive by what magic the mere <i>surcease</i> or +renunciation of an interest in a subject of <i>property</i>, by an +individual possessing that interest, can alter the essential character +of that property with respect to persons or communities unconnected +with such renunciation. Can it be pretended that an individual in any +State, by his single act, though voluntarily or designedly performed, +yet without the co-operation or warrant of the Government, perhaps in +opposition to its policy or its guaranties, can create a citizen of +that State? Much more emphatically may it be asked, how such a result +could be accomplished by means wholly extraneous, and entirely foreign +to the Government of the State? The argument thus urged must lead to +these extraordinary conclusions. It is regarded at once as wholly +untenable, and as unsustained by the direct authority or by the +analogies of history.</p> + +<p>The institution of slavery, as it exists and has existed from the +period of its introduction into the United States, though more humane +and mitigated in character than was the same institution, either under +the republic or the empire of Rome, bears, both in its tenure and in +the simplicity incident to the<span class="pagenum"><a name="Page_84" id="Page_84">-84-</a></span> mode of its exercise, a closer +resemblance to Roman slavery than it does to the condition of +<i>villanage</i>, as it formerly existed in England. Connected with the +latter, there were peculiarities, from custom or positive regulation, +which varied it materially from the slavery of the Romans, or from +slavery at any period within the United States.</p> + +<p>But with regard to slavery amongst the Romans, it is by no means true +that emancipation, either during the republic or the empire, +conferred, by the act itself, or implied, the <i>status</i> or the rights +of citizenship.</p> + +<p>The proud title of Roman citizen, with the immunities and rights +incident thereto, and as contradistinguished alike from the condition +of conquered subjects or of the lower grades of native domestic +residents, was maintained throughout the duration of the republic, and +until a late period of the eastern empire, and at last was in <i>effect</i> +destroyed less by an elevation of the inferior classes than by the +degradation of the free, and the previous possessors of rights and +immunities civil and political, to the indiscriminate abasement +incident to absolute and simple despotism.</p> + +<p>By the learned and elegant historian of the Decline and Fall of the +Roman Empire, we are told that "In the <i>decline</i> of the Roman empire, +the proud distinctions of the republic were gradually abolished; and +the reason or instinct of Justinian completed the simple form of an +absolute monarchy. The emperor could not eradicate the popular +reverence which always waits on the possession of hereditary wealth or +the memory of famous ancestors. He delighted to honor with titles and +emoluments his generals, magistrates, and senators, and his precarious +indulgence communicated some rays of their glory to their wives and +children. But in the eye of the law all Roman citizens were equal, and +all subjects of the empire were citizens of Rome. That inestimable +character was <i>degraded</i> to an obsolete and empty name. The voice of a +Roman could no longer enact his laws, or create the annual ministers +of his powers; his constitutional rights might have checked the +arbitrary will of a master; and the bold adventurer from Germany or +Arabia was admitted with equal favor to the civil and military command +which the <i>citizen</i> alone had been once entitled to assume over the +conquests of his fathers. The first Cæsars had scrupulously guarded +the distinction of <i>ingenuous</i> and <i>servile</i> birth, which was decided +by the condition of the mother. The slaves who were liberated by a +generous master immediately entered into the middle class of +<i>libertini</i> or freedmen; but they could never be enfranchised from the +duties of obedience and gratitude; whatever were the fruits of<span class="pagenum"><a name="Page_85" id="Page_85">-85-</a></span> their +industry, their patron and his family inherited the third part, or +even the whole of their fortune, if they died without children and +without a testament. Justinian respected the rights of patrons, but +his indulgence removed the badge of disgrace from the two inferior +orders of freedmen; whoever ceased to be a slave, obtained without +reserve or delay the station of a citizen; and at length the dignity +of an ingenuous birth <i>was created</i> or <i>supposed</i> by the omnipotence +of the emperor."<a name="FNanchor_1_1" id="FNanchor_1_1"></a><a href="#Footnote_1_1" class="fnanchor">[1]</a></p> + +<p>The above account of slavery and its modifications will be found in +strictest conformity with the Institutes of Justinian. Thus, book 1st, +title 3d, it is said: "The first general division of persons in +respect to their rights is into freemen and slaves." The same title, +sec. 4th: "Slaves are born such, or become so. They are born such of +bondwomen; they become so either by <i>the law of nations</i>, as by +capture, or by the civil law." Section 5th: "In the condition of +slaves there is no diversity; but among free persons there are many. +Thus some are <i>ingenui</i> or freemen, others <i>libertini</i> or freedmen."</p> + +<p>Tit. 4th. <span class="smcap">De Ingenuis</span>.—"A freeman is one who is born free by being +born in matrimony, of parents who both are free, or both freed; or of +parents one free and the other freed. But one born of a free mother, +although the father be a slave or unknown, is free."</p> + +<p>Tit. 5th. <span class="smcap">De Libertinis</span>.—"Freedmen are those who have been manumitted +from just servitude."</p> + +<p>Section third of the same title states that "freedmen were formerly +distinguished by a threefold division." But the emperor proceeds to +say: "Our <i>piety</i> leading us to reduce all things into a better state, +we have amended our laws, and re-established the ancient usage; for +anciently liberty was simple and undivided—that is, was conferred +upon the slave as his manumittor possessed it, admitting this single +difference, that the person manumitted became only a <i>freed man</i>, +although his manumittor was a <i>free</i> man." And he further declares: +"We have made all freed men in general become citizens of Rome, +regarding neither the age of the manumitted, nor the manumittor, nor +the ancient forms of manumission. We have also introduced many new +methods by which <i>slaves</i> may become Roman citizens."</p> + +<p>By the references above given it is shown, from the nature and objects +of civil and political associations, and upon the direct authority of +history, that citizenship was not conferred<span class="pagenum"><a name="Page_86" id="Page_86">-86-</a></span> by the simple fact of +emancipation, but that such a result was deduced therefrom in +violation of the fundamental principles of free political association; +by the exertion of despotic will to establish, under a false and +misapplied denomination, one equal and universal slavery; and to +effect this result required the exertions of absolute power—of a +power both in theory and practice, being in its most plenary +acceptation the <span class="smcap">sovereignty, the State itself</span>—it could not be +produced by a less or inferior authority, much less by the will or the +act of one who, with reference to civil and political rights, was +himself a <i>slave</i>. The master might abdicate or abandon his interest +or ownership in his property, but his act would be a mere abandonment. +It seems to involve an absurdity to impute to it the investiture of +rights which the sovereignty alone had power to impart. There is not +perhaps a community in which slavery is recognised, in which the power +of emancipation and the modes of its exercise are not regulated by +law—that is, by the sovereign authority; and none can fail to +comprehend the necessity for such regulation, for the preservation of +order, and even of political and social existence.</p> + +<p>By the argument for the plaintiff in error, a power equally despotic +is vested in every member of the association, and the most obscure or +unworthy individual it comprises may arbitrarily invade and derange +its most deliberate and solemn ordinances. At assumptions anomalous as +these, so fraught with mischief and ruin, the mind at once is +revolted, and goes directly to the conclusions, that to change or to +abolish a fundamental principle of the society, must be the act of the +society itself—of the <i>sovereignty</i>; and that none other can admit to +a participation of that high attribute. It may further expose the +character of the argument urged for the plaintiff, to point out some +of the revolting consequences which it would authorize. If that +argument possesses any integrity, it asserts the power in any citizen, +or <i>quasi</i> citizen, or a resident foreigner of any one of the States, +from a motive either of corruption or caprice, not only to infract the +inherent and necessary authority of such State, but also materially to +interfere with the organization of the Federal Government, and with +the authority of the separate and independent States. He may +emancipate his negro slave, by which process he first transforms that +slave into a citizen of his own State; he may next, under color of +article fourth, section second, of the Constitution of the United +States, obtrude him, and on terms of civil and political equality, +upon any and every State in this Union, in defiance of all regulations +of necessity or policy, ordained by those States for their internal +happiness or safety. Nay, more: this manumitted slave<span class="pagenum"><a name="Page_87" id="Page_87">-87-</a></span> may, by a +proceeding springing from the will or act of his master alone, be +mixed up with the institutions of the Federal Government, to which he +is not a party, and in opposition to the laws of that Government +which, in authorizing the extension by naturalization of the rights +and immunities of citizens of the United States to those not +originally parties to the Federal compact, have restricted that boon +to <i>free white aliens alone</i>. If the rights and immunities connected +with or practiced under the institutions of the United States can by +any indirection be claimed or deduced from sources or modes other than +the Constitution and laws of the United States, it follows that the +power of naturalization vested in Congress is not exclusive—that it +has <i>in effect</i> no existence, but is repealed or abrogated.</p> + +<p>But it has been strangely contended that the jurisdiction of the +Circuit Court might be maintained upon the ground that the plaintiff +was a <i>resident</i> of Missouri, and that, for the purpose of vesting the +court with jurisdiction over the parties, <i>residence</i> within the State +was sufficient.</p> + +<p>The first, and to my mind a conclusive reply to this singular argument +is presented in the fact, that the language of the Constitution +restricts the jurisdiction of the courts to cases in which the parties +shall be <i>citizens</i>, and is entirely silent with respect to residence. +A second answer to this strange and latitudinous notion is, that it so +far stultifies the sages by whom the Constitution was framed, as to +impute to them ignorance of the material distinction existing between +<i>citizenship</i> and mere <i>residence</i> or <i>domicil</i>, and of the well-known +facts, that a person confessedly an <i>alien</i> may be permitted to reside +in a country in which he can possess no civil or political rights, or +of which he is neither a citizen nor subject; and that for certain +purposes a man may have a <i>domicil</i> in different countries, in no one +of which he is an actual personal resident.</p> + +<p>The correct conclusions upon the question here considered would seem +to be these:</p> + +<p>That in the establishment of the several communities now the States of +this Union, and in the formation of the Federal Government, the +African was not deemed politically a person. He was regarded and owned +in every State in the Union as <i>property</i> merely, and as such was not +and could not be a party or an actor, much less a <i>peer</i> in any +compact or form of government established by the States or the United +States. That if, since the adoption of the State Governments, he has +been or could have been elevated to the possession of political rights +or powers, this result could have been effected by no authority less +potent than that of the sovereignty—the State—exert<span class="pagenum"><a name="Page_88" id="Page_88">-88-</a></span>ed to that end, +either in the form of legislation, or in some other mode of operation. +It could certainly never have been accomplished by the will of an +individual operating independently of the sovereign power, and even +contravening and controlling that power. That so far as rights and +immunities appertaining to citizens have been defined and secured by +the Constitution and laws of the United States, the African race is +not and never was recognised either by the language or purposes of the +former; and it has been expressly excluded by every act of Congress +providing for the creation of citizens by <i>naturalization</i>, these +laws, as has already been remarked, being restricted to <i>free white +aliens</i> exclusively.</p> + +<p>But it is evident that, after the formation of the Federal Government +by the adoption of the Constitution, the highest exertion of State +power would be incompetent to bestow a character or status created by +the Constitution, or conferred in virtue of its authority only. Upon +those, therefore, who were not originally parties to the Federal +compact, or who are not admitted and adopted as parties thereto, in +the mode prescribed by its paramount authority, no State could have +power to bestow the character or the rights and privileges exclusively +reserved by the States for the action of the Federal Government by +that compact.</p> + +<p>The States, in the exercise of their political power, might, with +reference to their peculiar Government and jurisdiction, guaranty the +rights of person and property, and the enjoyment of civil and +political privileges, to those whom they should be disposed to make +the objects of their bounty; but they could not reclaim or exert the +powers which they had vested exclusively in the Government of the +United States. They could not add to or change in any respect the +class of persons to whom alone the character of citizen of the United +States appertained at the time of the adoption of the Federal +Constitution. They could not create citizens of the United States by +any direct or indirect proceeding.</p> + +<p>According to the view taken of the law, as applicable to the demurrer +to the plea in abatement in this cause, the questions subsequently +raised upon the several pleas in bar might be passed by, as requiring +neither a particular examination, nor an adjudication directly upon +them. But as these questions are intrinsically of primary interest and +magnitude, and have been elaborately discussed in argument, and as +with respect to them the opinions of a majority of the court, +including my own, are perfectly coincident, to me it seems proper that +they should here be fully considered, and, so far as it is practicable +for this court to accomplish such an end, finally put to rest.<span class="pagenum"><a name="Page_89" id="Page_89">-89-</a></span></p> + +<p>The questions then to be considered upon the several pleas in bar, and +upon the agreed statement of facts between the counsel, are: 1st. +Whether the admitted master and owner of the plaintiff, holding him as +his slave in the State of Missouri, and in conformity with his rights +guarantied to him by the laws of Missouri then and still in force, by +carrying with him for his own benefit and accommodation, and as his +own slave, the person of the plaintiff into the State of Illinois, +within which State slavery had been prohibited by the Constitution +thereof, and by retaining the plaintiff during the commorancy of the +master within the State of Illinois, had, upon his return with his +slave into the State of Missouri, forfeited his rights as master, by +reason of any supposed operation of the prohibitory provision in the +Constitution of Illinois, beyond the proper territorial jurisdiction +of the latter State? 2d. Whether a similar removal of the plaintiff by +his master from the State of Missouri, and his retention in service at +a point included within no State, but situated north of thirty-six +degrees thirty minutes of north latitude, worked a forfeiture of the +right of property of the master, and the manumission of the plaintiff?</p> + +<p>In considering the first of these questions, the acts or declarations +of the master, as expressive of his purpose to emancipate, may be +thrown out of view, since none will deny the right of the owner to +relinquish his interest in any subject of property, at any time or in +any place. The inquiry here bears no relation to acts or declarations +of the owner as expressive of his intent or purpose to make such a +relinquishment; it is simply a question whether, irrespective of such +purpose, and in opposition thereto, that relinquishment can be +enforced against the owner of property within his own country, in +defiance of every guaranty promised by its laws; and this through the +instrumentality of a claim to power entirely foreign and extraneous +with reference to himself, to the origin and foundation of his title, +and to the independent authority of his country. A conclusive negative +answer to such an inquiry is at once supplied, by announcing a few +familiar and settled principles and doctrines of public law.</p> + +<p>Vattel, in his chapter on the general principles of the laws of +nations, section 15th, tells us, that "nations being free and +independent of each other in the same manner that men are naturally +free and independent, the second general law of their society is, that +each nation should be left in the peaceable enjoyment of that liberty +which she inherits from nature."</p> + +<p>"The natural society of nations," says this writer, "cannot subsist +unless the natural rights of each be respected." In<span class="pagenum"><a name="Page_90" id="Page_90">-90-</a></span> section 16th he +says, "as a consequence of that liberty and independence, it +exclusively belongs to each nation to form her own judgment of what +her conscience prescribes for her—of what it is proper or improper +for her to do; and of course it rests solely with her to examine and +determine whether she can perform any office for another nation +without neglecting the duty she owes to herself. In all cases, +therefore, in which a nation has the right of judging what her duty +requires, no other nation can compel her to act in such or such a +particular manner, for any attempt at such compulsion would be an +infringement on the liberty of nations." Again, in section 18th, of +the same chapter, "nations composed of men, and considered as so many +free persons living together in a state of nature, are naturally +equal, and inherit from nature the same obligations and rights. Power +or weakness does not produce any difference. A small republic is no +less a sovereign state than the most powerful kingdom."</p> + +<p>So, in section 20: "A nation, then, is mistress of her own actions, so +long as they do not affect the proper and <i>perfect rights</i> of any +other nation—so long as she is only <i>internally</i> bound, and does not +lie under any <i>external</i> and <i>perfect</i> obligation. If she makes an ill +use of her liberty, she is guilty of a breach of duty; but other +nations are bound to acquiesce in her conduct, since they have no +right to dictate to her. Since nations are <i>free</i>, <i>independent</i>, and +<i>equal</i>, and since each possesses the right of judging, according to +the dictates of her conscience, what conduct she is to pursue, in +order to fulfil her duties, the effect of the whole is to produce, at +least externally, in the eyes of mankind, a perfect equality of rights +between nations, in the administration of their affairs, and in the +pursuit of their pretensions, without regard to the intrinsic justice +of their conduct, of which others have no right to form a definitive +judgment."</p> + +<p>Chancellor Kent, in the 1st volume of his Commentaries, lecture 2d, +after collating the opinions of Grotius, Heineccius, Vattel, and +Rutherford, enunciates the following positions as sanctioned by these +and other learned publicists, viz: that "nations are equal in respect +to each other, and entitled to claim equal consideration for their +rights, whatever may be their relative dimensions or strength, or +however greatly they may differ in government, religion, or manners. +This perfect equality and entire independence of all distinct States +is a fundamental principle of public law. It is a necessary +consequence of this equality, that each nation has a right to govern +itself as it may think proper, and no one nation is entitled to +dictate a form of government or religion, or a course of inter<span class="pagenum"><a name="Page_91" id="Page_91">-91-</a></span>nal +policy, to another." This writer gives some instances of the violation +of this great national immunity, and amongst them the constant +interference by the ancient Romans, under the pretext of settling +disputes between their neighbors, but with the real purpose of +reducing those neighbors to bondage; the interference of Russia, +Prussia, and Austria, for the dismemberment of Poland; the more recent +invasion of Naples by Austria in 1821, and of Spain by the French +Government in 1823, under the excuse of suppressing a dangerous spirit +of internal revolution and reform.</p> + +<p>With reference to this right of self-government in independent +sovereign States, an opinion has been expressed, which, whilst it +concedes this right as inseparable from and as a necessary attribute +of sovereignty and independence, asserts nevertheless some implied and +paramount authority of a supposed international law, to which this +right of self-government must be regarded and exerted as subordinate; +and from which independent and sovereign States can be exempted only +by a protest, or by some public and formal rejection of that +authority. With all respect for those by whom this opinion has been +professed, I am constrained to regard it as utterly untenable, as +palpably inconsistent, and as presenting in argument a complete <i>felo +de se</i>.</p> + +<p>Sovereignty, independence, and a perfect right of self-government, can +signify nothing less than a superiority to and an exemption from all +claims by any extraneous power, however expressly they may be +asserted, and render all attempts to enforce such claims merely +attempts at usurpation. Again, could such claims from extraneous +sources be regarded as legitimate, the effort to resist or evade them, +by protest or denial, would be as irregular and unmeaning as it would +be futile. It could in no wise affect the question of superior right. +For the position here combatted, no respectable authority has been, +and none it is thought can be adduced. It is certainly irreconcilable +with the doctrines already cited from the writers upon public law.</p> + +<p>Neither the case of Lewis Somersett, (Howell's State Trials, vol. 20,) +so often vaunted as the proud evidence of devotion to freedom under a +Government which has done as much perhaps to extend the reign of +slavery as all the world besides; nor does any decision founded upon +the authority of Somersett's case, when correctly expounded, assail or +impair the principle of national equality enunciated by each and all +of the publicists already referred to. In the case of Somersett, +although the applicant for the <i>habeas corpus</i> and the individual +claiming property in that applicant were both subjects and residents<span class="pagenum"><a name="Page_92" id="Page_92">-92-</a></span> +within the British empire, yet the decision cannot be correctly +understood as ruling absolutely and under all circumstances against +the right of property in the claimant. That decision goes no farther +than to determine, that <i>within the realm of England</i> there was no +authority to justify the detention of an individual in private +bondage. If the decision in Somersett's case had gone beyond this +point, it would have presented the anomaly of a repeal by laws enacted +for and limited in their operation to the realm alone, of other laws +and institutions established for places and subjects without the +limits of the realm of England; laws and institutions at that very +time, and long subsequently, sanctioned and maintained under the +authority of the British Government, and which the full and combined +action of the King and Parliament was required to abrogate.</p> + +<p>But could the decision in Somersett's case be correctly interpreted as +ruling the doctrine which it has been attempted to deduce from it, +still that doctrine must be considered as having been overruled by the +lucid and able opinion of Lord Stowell in the more recent case of the +slave Grace, reported in the second volume of Haggard, p. 94; in which +opinion, whilst it is conceded by the learned judge that there existed +no power to coerce the slave whilst in England, that yet, upon her +return to the island of Antigua, her <i>status</i> as a slave was revived, +or, rather, that the title of the owner to the slave as property had +never been extinguished, but had always existed in that island. If the +principle of this decision be applicable as between different portions +of one and the same empire, with how much more force does it apply as +between nations or Governments entirely separate, and absolutely +independent of each other? For in this precise attitude the States of +this Union stand with reference to this subject, and with reference to +the tenure of every description of property vested under their laws +and held within their territorial jurisdiction.</p> + +<p>A strong illustration of the principle ruled by Lord Stowell, and of +the effect of that principle even in a case of express <i>contract</i>, is +seen in the case of Lewis <i>v.</i> Fullerton, decided by the Supreme Court +of Virginia, and reported in the first volume of Randolph, p. 15. The +case was this: A female slave, the property of a citizen of Virginia, +whilst with her master in the State of Ohio, was taken from his +possession under a writ of <i>habeas corpus</i>, and set at liberty. Soon, +or immediately after, by agreement between this slave and her master, +a deed was executed in Ohio by the latter, containing a stipulation +that this slave should return to Virginia, and, after a service of two +years in that State, should there be free. The law of Virginia<span class="pagenum"><a name="Page_93" id="Page_93">-93-</a></span> +regulating emancipation required that deeds of emancipation should, +within a given time from their date, be recorded in the court of the +county in which the grantor resided, and declared that deeds with +regard to which this requisite was not complied with should be void. +Lewis, an infant son of this female, under the rules prescribed in +such cases, brought an action, <i>in forma pauperis</i>, in one of the +courts of Virginia, for the recovery of his freedom, claimed in virtue +of the transactions above mentioned. Upon an appeal to the Supreme +Court from a judgment against the plaintiff, Roane, Justice, in +delivering the opinion of the court, after disposing of other +questions discussed in that case, remarks:</p> + +<p>"As to the deed of emancipation contained in the record, that deed, +taken in connection with the evidence offered in support of it, shows +that it had a reference to the State of Virginia; and the testimony +shows that it formed a part of this contract, whereby the slave Milly +was to be brought back (as she was brought back) into the State of +Virginia. Her object was therefore to secure her freedom by the deed +within the State of Virginia, after the time should have expired for +which she had indented herself, and when she should be found abiding +within the State of Virginia.</p> + +<p>"If, then, this contract had an eye to the State of Virginia for its +operation and effect, the <i>lex loci</i> ceases to operate. In that case +it must, to have its effect, conform to the laws of Virginia. It is +insufficient under those laws to effectuate an emancipation, for want +of a due recording in the county court, as was decided in the case of +Givens <i>v.</i> Mann, in this court. It is also ineffectual within the +Commonwealth of Virginia for another reason. The <i>lex loci</i> is also to +be taken subject to the exception, that it is not to be enforced in +another country, when it violates some moral duty or the policy of +that country, or is not consistent with a positive right secured to a +third person or party by the laws of that country in which it is +sought to be enforced. In such a case we are told, '<i>magis jus +nostrum, quam jus alienum servemus</i>.'" (Huberus, tom. 2, lib. 1, tit. +3; 2 Fontblanque, p. 444.) "That third party in this instance is the +Commonwealth of Virginia, and her policy and interests are also to be +attended to. These turn the scale against the <i>lex loci</i> in the +present instance."</p> + +<p>The second or last-mentioned position assumed for the plaintiff under +the pleas in bar, as it rests mainly if not solely upon the provision +of the act of Congress of March 6, 1820, prohibiting slavery in Upper +Louisiana north of thirty-six degrees thirty minutes north latitude, +popularly called the <i>Missouri Compromise</i>, that assumption renews the +question, formerly so<span class="pagenum"><a name="Page_94" id="Page_94">-94-</a></span> zealously debated, as to the validity of the +provision in the act of Congress, and upon the constitutional +competency of Congress to establish it.</p> + +<p>Before proceeding, however, to examine the validity of the prohibitory +provision of the law, it may, so far as the rights involved in this +cause are concerned, be remarked, that conceding to that provision the +validity of a legitimate exercise of power, still this concession +could by no rational interpretation imply the slightest authority for +its operation beyond the territorial limits comprised within its +terms; much less could there be inferred from it a power to destroy or +in any degree to control rights, either of person or property, +entirely within the bounds of a distinct and independent +sovereignty—rights invested and fortified by the guaranty of that +sovereignty. These surely would remain in all their integrity, +whatever effect might be ascribed to the prohibition within the limits +defined by its language.</p> + +<p>But, beyond and in defiance of this conclusion, inevitable and +undeniable as it appears, upon every principle of justice or sound +induction, it has been attempted to convert this prohibitory provision +of the act of 1820 not only into a weapon with which to assail the +inherent—the <i>necessarily</i> inherent—powers of independent sovereign +Governments, but into a mean of forfeiting that equality of rights and +immunities which are the birthright or the donative from the +Constitution of every citizen of the United States within the length +and breadth of the nation. In this attempt, there is asserted a power +in Congress, whether from incentives of interest, ignorance, faction, +partiality, or prejudice, to bestow upon a portion of the citizens of +this nation that which is the common property and privilege of +all—the power, in fine, of confiscation, in retribution for no +offence, or, if for an offence, for that of accidental locality only.</p> + +<p>It may be that, with respect to future cases, like the one now before +the court, there is felt an assurance of the impotence of such a +pretension; still, the fullest conviction of that result can impart to +it no claim to forbearance, nor dispense with the duty of antipathy +and disgust at its sinister aspect, whenever it may be seen to scowl +upon the justice, the order, the tranquillity, and fraternal feeling, +which are the surest, nay, the only means, of promoting or preserving +the happiness and prosperity of the nation, and which were the great +and efficient incentives to the formation of this Government.</p> + +<p>The power of Congress to impose the prohibition in the eighth section +of the act of 1820 has been advocated upon an attempted construction +of the second clause of the third section<span class="pagenum"><a name="Page_95" id="Page_95">-95-</a></span> of the fourth article of +the Constitution, which declares that "Congress shall have power to +dispose of and to make all needful rules and regulations respecting +the <i>territory</i> and <i>other property belonging</i> to the United States."</p> + +<p>In the discussions in both houses of Congress, at the time of adopting +this eighth section of the act of 1820, great weight was given to the +peculiar language of this clause, viz: <i>territory</i> and <i>other property +belonging</i> to the United States, as going to show that the power of +disposing of and regulating, thereby vested in Congress, was +restricted to a <i>proprietary interest in the territory or land</i> +comprised therein, and did not extend to the personal or political +rights of citizens or settlers, inasmuch as this phrase in the +Constitution, "<i>territory or other property</i>," identified <i>territory</i> +with <i>property</i>, and inasmuch as <i>citizens</i> or <i>persons</i> could not be +property, and especially were not property <i>belonging</i> to the United +States. And upon every principle of reason or necessity, this power to +dispose of and to regulate the <i>territory</i> of the nation could be +designed to extend no farther than to its preservation and +appropriation to the uses of those to whom it belonged, viz: the +nation. Scarcely anything more illogical or extravagant can be +imagined than the attempt to deduce from this provision in the +Constitution a power to destroy or in any wise to impair the civil and +political rights of the citizens of the United States, and much more +so the power to establish inequalities amongst those citizens by +creating privileges in one class of those citizens, and by the +disfranchisement of other portions or classes, by degrading them from +the position they previously occupied.</p> + +<p>There can exist no rational or natural connection or affinity between +a pretension like this and the power vested by the Constitution in +Congress with regard to the Territories; on the contrary, there is an +absolute incongruity between them.</p> + +<p>But whatever the power vested in Congress, and whatever the precise +subject to which that power extended, it is clear that the power +related to a subject appertaining to the <i>United States</i>, and one to +be disposed of and regulated for the benefit and under the authority +of the <i>United States</i>. Congress was made simply the agent or +<i>trustee</i> for the United States, and could not, without a breach of +trust and a fraud, appropriate the subject of the trust to any other +beneficiary or <i>cestui que trust</i> than the United States, or to the +people of the United States, upon equal grounds, legal or equitable. +Congress could not appropriate that subject to any one class or +portion of the people, to the exclusion of others, politically and +constitutionally equals; but every citizen would, if any <i>one</i><span class="pagenum"><a name="Page_96" id="Page_96">-96-</a></span> could +claim it, have the like rights of purchase, settlement, occupation, or +any other right, in the national territory.</p> + +<p>Nothing can be more conclusive to show the equality of this with every +other right in all the citizens of the United States, and the iniquity +and absurdity of the pretension to exclude or to disfranchise a +portion of them because they are the owners of slaves, than the fact +that the same instrument, which imparts to Congress its very existence +and its every function, guaranties to the slaveholder the title to his +property, and gives him the right to its reclamation throughout the +entire extent of the nation; and, farther, that the only private +property which the Constitution has <i>specifically recognised</i>, and has +imposed it as a direct obligation both on the States and the Federal +Government to protect and <i>enforce</i>, is the property of the master in +his slave; no other right of property is placed by the Constitution +upon the same high ground, nor shielded by a similar guaranty.</p> + +<p>Can there be imputed to the sages and patriots by whom the +Constitution was framed, or can there be detected in the text of that +Constitution, or in any rational construction or implication deducible +therefrom, a contradiction so palpable as would exist between a pledge +to the slaveholder of an equality with his fellow-citizens, and of the +formal and solemn assurance for the security and enjoyment of his +property, and a warrant given, as it were <i>uno flatu</i>, to another, to +rob him of that property, or to subject him to proscription and +disfranchisement for possessing or for endeavoring to retain it? The +injustice and extravagance necessarily implied in a supposition like +this, cannot be rationally imputed to the patriotic or the honest, or +to those who were merely sane.</p> + +<p>A conclusion in favor of the prohibitory power in Congress, as +asserted in the eighth section of the act of 1820, has been attempted, +as deducible from the precedent of the ordinance of the convention of +1787, concerning the cession by Virginia of the territory northwest of +the Ohio; the provision in which ordinance, relative to slavery, it +has been attempted to impose upon other and subsequently-acquired +territory.</p> + +<p>The first circumstance which, in the consideration of this provision, +impresses itself upon my mind, is its utter futility and want of +authority. This court has, in repeated instances, ruled, that whatever +may have been the force accorded to this ordinance of 1787 at the +period of its enactment, its authority and effect ceased, and yielded +to the paramount authority of the Constitution, from the period of the +adoption of the latter. Such is the principle ruled in the cases of +Pollard's Lessee <i>v.</i> Hagan, (3 How., 212,) <span class="err" title="Transcriber's Note: Permoli">Parmoli</span> +<i>v.</i> The First Municipality of<span class="pagenum"><a name="Page_97" id="Page_97">-97-</a></span> New Orleans, (3 How., +589,) Strader <i>v.</i> Graham, (16 How., 82.) But apart from the superior +control of the Constitution, and anterior to the adoption of that +instrument, it is obvious that the inhibition in question never had +and never could have any legitimate and binding force. We may seek in +vain for any power in the convention, either to require or to accept a +condition or restriction upon the cession like that insisted on; a +condition inconsistent with, and destructive of, the object of the +grant. The cession was, as recommended by the old Congress in 1780, +made originally and completed <i>in terms</i> to <i>the United States</i>, and +for the benefit of the United States, i.e., for <i>the people, all the +people</i>, of the United States. The condition subsequently sought to be +annexed in 1787, (declared, too, to be perpetual and immutable,) being +contradictory to the terms and destructive of the purposes of the +cession, and after the cession was consummated, and the powers of the +ceding party terminated, and the rights of the grantees, <i>the people +of the United States</i>, vested, must necessarily, so far, have been <i>ab +initio</i> void. With respect to the power of the convention to impose +this inhibition, it seems to be pertinent in this place to recur to +the opinion of one cotemporary with the establishment of the +Government, and whose distinguished services in the formation and +adoption of our national charter, point him out as the <i>artifex +maximus</i> of our Federal system. James Madison, in the year 1819, +speaking with reference to the prohibitory power claimed by Congress, +then threatening the very existence of the Union, remarks of the +language of the second clause of the third section of article fourth +of the Constitution, "that it cannot be well extended beyond a power +over the territory <i>as property</i>, and the power to make provisions +really needful or necessary for the government of settlers, until ripe +for admission into the Union."</p> + +<p>Again he says, "with respect to what has taken place in the Northwest +territory, it may be observed that the ordinance giving it its +distinctive character on the subject of slaveholding proceeded from +the old Congress, acting with the best intentions, but under a charter +which contains no shadow of the authority exercised; and it remains to +be decided how far the States formed within that territory, and +admitted into the Union, are on a different footing from its other +members as to their legislative sovereignty. As to the power of +admitting new States into the Federal compact, the questions offering +themselves are, whether Congress can attach conditions, or the new +States concur in conditions, which after admission would <i>abridge</i> or +<i>enlarge</i> the constitutional rights of legislation common to other +States; whether Congress can, by a compact<span class="pagenum"><a name="Page_98" id="Page_98">-98-</a></span> with a new State, take +power either to or from itself, or place the new member above or below +the equal rank and rights possessed by the others; whether all such +stipulations expressed or implied would not be nullities, and be so +pronounced when brought to a practical test. It falls within the scope +of your inquiry to state the fact, that there was a proposition in the +convention to discriminate between the old and the new States by an +article in the Constitution. The proposition, happily, was rejected. +The effect of such a discrimination is sufficiently evident."<a name="FNanchor_2_2" id="FNanchor_2_2"></a><a href="#Footnote_2_2" class="fnanchor">[2]</a></p> + +<p>In support of the ordinance of 1787, there may be adduced the +semblance at least of obligation deducible from <i>compact</i>, the <i>form</i> +of assent or agreement between the grantor and grantee; but this form +or similitude, as is justly remarked by Mr. Madison, is rendered null +by the absence of power or authority in the contracting parties, and +by the more intrinsic and essential defect of incompatibility with the +rights and avowed purposes of those parties, and with their relative +duties and obligations to others. If, then, with the attendant +<i>formalities</i> of assent or compact, the restrictive power claimed was +void as to the immediate subject of the ordinance, how much more +unfounded must be the pretension to such a power as derived from that +source, (viz: the ordinance of 1787,) with respect to territory +acquired by purchase or conquest under the supreme authority of the +Constitution—territory not the subject of <i>mere donation</i>, but +obtained <i>in the name of all, by the combined efforts and resources of +all</i>, and with no condition annexed or pretended.</p> + +<p>In conclusion, my opinion is, that the decision of the Circuit Court, +upon the law arising upon the several pleas in bar, is correct, but +that it is erroneous in having sustained the demurrer to the plea in +abatement of the jurisdiction; that for this error the decision of the +Circuit Court should be reversed, and the cause remanded to that +court, with instructions to abate the action, for the reason set forth +and pleaded in the plea in abatement.</p> + +<p>In the aforegoing examination of this cause, the circumstance that the +questions involved therein had been previously adjudged between these +parties by the court of the State of Missouri, has not been adverted +to; for although it has been ruled by this court, that in instances of +concurrent jurisdiction, the court first obtaining possession or +cognizance of the controversy should retain and decide it, yet, as in +this case there had<span class="pagenum"><a name="Page_99" id="Page_99">-99-</a></span> been no plea, either of a former judgment or of +<i>autre action pendent</i>, it was thought that the fact of a prior +decision, however conclusive it might have been if regularly pleaded, +could not be incidentally taken into view.</p> + +<hr class="med" /> + +<p>Mr. Justice <a name="CAMPBELL" id="CAMPBELL"></a>CAMPBELL.</p> + +<p>I concur in the judgment pronounced by the Chief Justice, but the +importance of the cause, the expectation and interest it has awakened, +and the responsibility involved in its determination, induce me to +file a separate opinion.</p> + +<p>The case shows that the plaintiff, in the year 1834, was a negro slave +in Missouri, the property of Dr. Emerson, a surgeon in the army of the +United States. In 1834, his master took him to the military station at +Rock Island, on the border of Illinois, and in 1836 to Fort Snelling, +in the present Minnesota, then Wisconsin, Territory. While at Fort +Snelling, the plaintiff married a slave who was there with her master, +and two children have been born of this connection; one during the +journey of the family in returning to Missouri, and the other after +their return to that State.</p> + +<p>Since 1838, the plaintiff and the members of his family have been in +Missouri in the condition of slaves. The object of this suit is to +establish their freedom. The defendant, who claims the plaintiff and +his family, under the title of Dr. Emerson, denied the jurisdiction of +the Circuit Court, by the plea that the plaintiff was a negro of +African blood, the descendant of Africans who had been imported and +sold in this country as slaves, and thus he had no capacity as a +citizen of Missouri to maintain a suit in the Circuit Court. The court +sustained a demurrer to this plea, a trial was then had upon the +general issue, and special pleas to the effect that the plaintiff and +his family were slaves belonging to the defendant.</p> + +<p>My opinion in this case is not affected by the plea to the +jurisdiction, and I shall not discuss the questions it suggests. The +claim of the plaintiff to freedom depends upon the effect to be given +to his absence from Missouri, in company with his master, in Illinois +and Minnesota, and this effect is to be ascertained by a reference to +the laws of Missouri. For the trespass complained of was committed +upon one claiming to be a freeman and a citizen, in that State, and +who had been living for years under the dominion of its laws. And the +rule is, that whatever is a justification where the thing is done, +must be a justification in the forum where the case is tried. (20 How. +St. Tri., 234; Cowp. S.C., 161.)</p> + +<p>The Constitution of Missouri recognises slavery as a legal condition, +extends guaranties to the masters of slaves, and in<span class="pagenum"><a name="Page_100" id="Page_100">-100-</a></span>vites immigrants +to introduce them, as property, by a promise of protection. The laws +of the State charge the master with the custody of the slave, and +provide for the maintenance and security of their relation.</p> + +<p>The Federal Constitution and the acts of Congress provide for the +return of escaping slaves within the limits of the Union. No removal +of the slave beyond the limits of the State, against the consent of +the master, nor residence there in another condition, would be +regarded as an effective manumission by the courts of Missouri, upon +his return to the State. "Sicut liberis captis status restituitur sic +servus domino." Nor can the master emancipate the slave within the +State, except through the agency of a public authority. The inquiry +arises, whether the manumission of the slave is effected by his +removal, with the consent of the master, to a community where the law +of slavery does not exist, in a case where neither the master nor +slave discloses a purpose to remain permanently, and where both +parties have continued to maintain their existing relations. What is +the law of Missouri in such a case? Similar inquiries have arisen in a +great number of suits, and the discussions in the State courts have +relieved the subject of much of its difficulty. (12 B.M. Ky. R., 545; +Foster <i>v.</i> Foster, 10 Gratt. Va. R., 485; 4 Har. and McH. Md. R., +295; Scott <i>v.</i> Emerson, 15 Misso., 576; 4 Rich. S.C.R., 186; 17 +Misso., 434; 15 Misso., 596; 5 B.M., 173; 8 B.M., 540, 633; 9 B.M., +565; 5 Leigh, 614; 1 Raud., 15; 18 Pick., 193.)</p> + +<p>The result of these discussions is, that in general, the <i>status</i>, or +civil and political capacity of a person, is determined, in the first +instance, by the law of the domicil where he is born; that the legal +effect on persons, arising from the operation of the law of that +domicil, is not indelible, but that a new capacity or <i>status</i> may be +acquired by a change of domicil. That questions of <i>status</i> are +closely connected with considerations arising out of the social and +political organization of the State where they originate, and each +sovereign power must determine them within its own territories.</p> + +<p>A large class of cases has been decided upon the second of the +propositions above stated, in the Southern and Western courts—cases +in which the law of the actual domicil was adjudged to have altered +the native condition and <i>status</i> of the slave, although he had never +actually possessed the <i>status</i> of freedom in that domicil. (Rankin +<i>v.</i> Lydia, 2 A.K.M.; <span class="err" title="Transcriber's Note: Harry">Herny</span> <i>v.</i> Decker, +Walk., 36; 4 Mart., 385; 1 Misso., 472; Hunter <i>v.</i> Fulcher, +<span class="err" title="Transcriber's Note: full citation as given elsewhere is 1 Leigh, 172">1 Leigh</span>.)</p> + +<p>I do not impugn the authority of these cases. No evidence is found in +the record to establish the existence of a domicil<span class="pagenum"><a name="Page_101" id="Page_101">-101-</a></span> acquired by the +master and slave, either in Illinois or Minnesota. The master is +described as an officer of the army, who was transferred from one +station to another, along the Western frontier, in the line of his +duty, and who, after performing the usual tours of service, returned +to Missouri; these slaves returned to Missouri with him, and had been +there for near fifteen years, in that condition, when this suit was +instituted. But absence, in the performance of military duty, without +more, is a fact of no importance in determining a question of a change +of domicil. Questions of that kind depend upon acts and intentions, +and are ascertained from motives, pursuits, the condition of the +family, and fortune of the party, and no change will be inferred, +unless evidence shows that one domicil was abandoned, and there was an +intention to acquire another. (11 L. and Eq., 6; 6 Exch., 217; 6 M. +and W., 511; 2 Curt. Ecc. R., 368.)</p> + +<p>The cases first cited deny the authority of a foreign law to dissolve +relations which have been legally contracted in the State where the +parties are, and have their actual domicil—relations which were never +questioned during their absence from that State—relations which are +consistent with the native capacity and condition of the respective +parties, and with the policy of the State where they reside; but which +relations were inconsistent with the policy or laws of the State or +Territory within which they had been for a time, and from which they +had returned, with these relations undisturbed. It is upon the +assumption, that the law of Illinois or Minnesota was indelibly +impressed upon the slave, and its consequences carried into Missouri, +that the claim of the plaintiff depends. The importance of the case +entitles the doctrine on which it rests to a careful examination.</p> + +<p>It will be conceded, that in countries where no law or regulation +prevails, opposed to the existence and consequences of slavery, +persons who are born in that condition in a foreign State would not be +liberated by the accident of their introgression. The relation of +domestic slavery is recognised in the law of nations, and the +interference of the authorities of one State with the rights of a +master belonging to another, without a valid cause, is a violation of +that law. (Wheat. Law of Na., 724; 5 Stats. at Large, 601; Calh. Sp., +378; Reports of the Com. U.S. and G.B., 187, 238, 241.)</p> + +<p>The public law of Europe formerly permitted a master to reclaim his +bondsman, within a limited period, wherever he could find him, and one +of the capitularies of Charlemagne abolishes the rule of prescription. +He directs, "that wheresoever, within the bounds of Italy, either the +runaway slave of the king, or of<span class="pagenum"><a name="Page_102" id="Page_102">-102-</a></span> the church, or of any other man, +shall be found by his master, he shall be restored without any bar or +prescription of years; yet upon the provision that the master be a +Frank or German, or of any other nation (foreign;) but if he be a +Lombard or a Roman, he shall acquire or receive his slaves by that law +which has been established from ancient times among them." Without +referring for precedents abroad, or to the colonial history, for +similar instances, the history of the Confederation and Union affords +evidence to attest the existence of this ancient law. In 1783, +Congress directed General Washington to continue his remonstrances to +the commander of the British forces respecting the permitting negroes +belonging to the citizens of these States to leave New York, and to +insist upon the discontinuance of that measure. In 1788, the resident +minister of the United States at Madrid was instructed to obtain from +the Spanish Crown orders to its Governors in Louisiana and Florida, +"to permit and facilitate the apprehension of fugitive slaves from the +States, promising that the States would observe the like conduct +respecting fugitives from Spanish subjects." The committee that made +the report of this resolution consisted of Hamilton, Madison, and +Sedgwick, (2 Hamilton's Works, 473;) and the clause in the Federal +Constitution providing for the restoration of fugitive slaves is a +recognition of this ancient right, and of the principle that a change +of place does not effect a change of condition. The diminution of the +power of a master to reclaim his escaping bondsman in Europe commenced +in the enactment of laws of prescription in favor of privileged +communes. Bremen, Spire, Worms, Vienna, and Ratisbon, in Germany; +Carcassonne, Béziers, Toulouse, and Paris, in France, acquired +privileges on this subject at an early period. The ordinance of +William the Conqueror, that a residence of any of the servile +population of England, for a year and a day, without being claimed, in +any city, burgh, walled town, or castle of the King, should entitle +them to perpetual liberty, is a specimen of these laws.</p> + +<p>The earliest publicist who has discussed this subject is Bodin, a +jurist of the sixteenth century, whose work was quoted in the early +discussions of the courts in France and England on this subject. He +says: "In France, although there be some remembrance of old servitude, +yet it is not lawful here to make a slave or to buy any one of others, +insomuch as the slaves of strangers, so soon as they set their foot +within France, become frank and free, as was determined by an old +decree of the court of Paris against an ambassador of Spain, who had +brought a slave with him into France." He states another case, which +arose in the city of Toulouse, of a Genoese merchant, who had<span class="pagenum"><a name="Page_103" id="Page_103">-103-</a></span> carried +a slave into that city on his voyage from Spain; and when the matter +was brought before the magistrates, the "procureur of the city, out of +the records, showed certain ancient privileges given unto them of +Tholouse, wherein it was granted that slaves, so soon as they should +come into Tholouse, should be free." These cases were cited with much +approbation in the discussion of the claims of the West India slaves +of Verdelin for freedom, in 1738, before the judges in admiralty, (15 +Causes Celébrés, p. 1; 2 Masse Droit Com., sec. 58,) and were +reproduced before Lord Mansfield, in the cause of Somersett, in 1772. +Of the cases cited by Bodin, it is to be observed that Charles V of +France exempted all the inhabitants of Paris from serfdom, or other +feudal incapacities, in 1371, and this was confirmed by several of his +successors, (3 Dulaire Hist. de Par., 546; Broud. Cout. de Par., 21,) +and the ordinance of Toulouse is preserved as follows: "<i>Civitas +Tholosana fuit et erit sine fine libera, adeo ut servi et ancillæ, +sclavi et sclavæ, dominos sive dominas habentes, cum rebus vel sine +rebus suis, ad Tholosam vel infrâ terminos extra urbem terminatos +accedentes acquirant libertatem</i>." (Hist. de Langue, tome 3, p. 69; +Ibid. 6, p. 8; Loysel Inst., b. 1, sec. 6.)</p> + +<p>The decisions were made upon special ordinances, or charters, which +contained positive prohibitions of slavery, and where liberty had been +granted as a privilege; and the history of Paris furnishes but little +support for the boast that she was a "<i>sacro sancta civitas</i>," where +liberty always had an asylum, or for the "self-complacent rhapsodies" +of the French advocates in the case of Verdelin, which amused the +grave lawyers who argued the case of Somersett. The case of Verdelin +was decided upon a special ordinance, which prescribed the conditions +on which West India slaves might be introduced into France, and which +had been disregarded by the master.</p> + +<p>The case of Somersett was that of a Virginia slave carried to England +by his master in 1770, and who remained there two years. For some +cause, he was confined on a vessel destined to Jamaica, where he was +to be sold. Lord Mansfield, upon a return to a <i>habeas corpus</i>, states +the question involved. "Here, the person of the slave himself," he +says, "is the immediate subject of inquiry, Can any dominion, +authority, or coercion, be exercised in this country, according to the +American laws?" He answers: "The difficulty of adopting the relation, +without adopting it in all its consequences, is indeed extreme, and +yet many of those consequences are absolutely contrary to the +municipal law of England." Again, he says: "The return states that the +slave departed, and refused to serve; whereupon, he was kept to be +sold abroad." "So high<span class="pagenum"><a name="Page_104" id="Page_104">-104-</a></span> an act of dominion must be recognised by the +law of the country where it is used. The power of the master over his +slave has been extremely different in different countries." "The state +of slavery is of such a nature, that it is incapable of being +introduced on any reasons, moral or political, but only by positive +law, which preserves its force long after the reasons, occasion, and +time itself, from whence it was created, are erased from the memory. +It is so odious, that nothing can be suffered to support it but +positive law." That there is a difference in the systems of States, +which recognise and which do not recognise the institution of slavery, +cannot be disguised. Constitutional law, punitive law, police, +domestic economy, industrial pursuits, and amusements, the modes of +thinking and of belief of the population of the respective +communities, all show the profound influence exerted upon society by +this single arrangement. This influence was discovered in the Federal +Convention, in the deliberations on the plan of the Constitution. Mr. +Madison observed, "that the States were divided into different +interests, not by their difference of size, but by other +circumstances; the most material of which resulted partly from +climate, but principally from the effects of their having or not +having slaves. These two causes concur in forming the great division +of interests in the United States."</p> + +<p>The question to be raised with the opinion of Lord Mansfield, +therefore, is not in respect to the incongruity of the two systems, +but whether slavery was absolutely contrary to the law of England; for +if it was so, clearly, the American laws could not operate there. +Historical research ascertains that at the date of the Conquest the +rural population of England were generally in a servile condition, and +under various names, denoting slight variances in condition, they were +sold with the land like cattle, and were a part of its living money. +Traces of the existence of African slaves are to be found in the early +chronicles. Parliament in the time of Richard II, and also of Henry +VIII, refused to adopt a general law of emancipation. Acts of +emancipation by the last-named monarch and by Elizabeth are preserved.</p> + +<p>The African slave trade had been carried on, under the unbounded +protection of the Crown, for near two centuries, when the case of +Somersett was heard, and no motion for its suppression had ever been +submitted to Parliament; while it was forced upon and maintained in +unwilling colonies by the Parliament and Crown of England at that +moment. Fifteen thousand negro slaves were then living in that island, +where they had been introduced under the counsel of the most +illustrious jurists of the realm, and such slaves had been publicly<span class="pagenum"><a name="Page_105" id="Page_105">-105-</a></span> +sold for near a century in the markets of London. In the northern part +of the kingdom of Great Britain there existed a class of from 30,000 +to 40,000 persons, of whom the Parliament said, in 1775, (15 George +III, chap. 28,) "many colliers, coal-heavers, and salters, are in a +state of slavery or bondage, bound to the collieries and salt works, +where they work for life, transferable with the collieries and salt +works when their original masters have no use for them; and whereas +the emancipating or setting free the colliers, coal-heavers, and +salters, in Scotland, who are now in a state of servitude, gradually +and upon reasonable conditions, would be the means of increasing the +number of colliers, coal-heavers, and salters, to the great benefit of +the public, without doing any injury to the present masters, and would +remove the reproach of allowing such a state of servitude to exist in +a free country," &c.; and again, in 1799, "they declare that many +colliers and coal-heavers still continue in a state of bondage." No +statute, from the Conquest till the 15 George III, had been passed +upon the subject of personal slavery. These facts have led the most +eminent civilian of England to question the accuracy of this judgment, +and to insinuate that in this judgment the offence of <i>ampliare +jurisdictionem</i> by private authority was committed by the eminent +magistrate who pronounced it.</p> + +<p>This sentence is distinguishable from those cited from the French +courts in this: that there positive prohibitions existed against +slavery, and the right to freedom was conferred on the immigrant slave +by positive law; whereas here the consequences of slavery merely—that +is, the public policy—were found to be contrary to the law of +slavery. The case of the slave Grace, (2 Hagg.,) with four others, +came before Lord Stowell in 1827, by appeals from the West India vice +admiralty courts. They were cases of slaves who had returned to those +islands, after a residence in Great Britain, and where the claim to +freedom was first presented in the colonial forum. The learned judge +in that case said: "This suit fails in its foundation. She (Grace) was +not a free person; no injury is done her by her continuance in +slavery, and she has no pretensions to any other station than that +which was enjoyed by every slave of a family. If she depends upon such +freedom conveyed by a mere residence in England, she complains of a +violation of right which she possessed no longer than whilst she +resided in England, but which totally expired when that residence +ceased, and she was imported into Antigua."</p> + +<p>The decision of Lord Mansfield was, "that so high an act of dominion" +as the master exercises over his slave, in sending him abroad for +sale, could not be exercised in England<span class="pagenum"><a name="Page_106" id="Page_106">-106-</a></span> under the American laws, and +contrary to the spirit of their own.</p> + +<p>The decision of Lord Stowell is, that the authority of the English +laws terminated when the slave departed from England. That the laws of +England were not imported into Antigua, with the slave, upon her +return, and that the colonial forum had no warrant for applying a +foreign code to dissolve relations which had existed between persons +belonging to that island, and which were legal according to its own +system. There is no distinguishable difference between the case before +us and that determined in the admiralty of Great Britain.</p> + +<p>The complaint here, in my opinion, amounts to this: that the judicial +tribunals of Missouri have not denounced as odious the Constitution +and laws under which they are organized, and have not superseded them +on their own private authority, for the purpose of applying the laws +of Illinois, or those passed by Congress for Minnesota, in their +stead. The eighth section of the act of Congress of the 6th of March, +1820, (3 Statutes at Large, 545,) entitled, "An act to authorize the +people of Missouri to form a State Government," &c., &c., is referred +to, as affording the authority to this court to pronounce the sentence +which the Supreme Court of Missouri felt themselves constrained to +refuse. That section of the act prohibits slavery in the district of +country west of the Mississippi, north of thirty-six degrees thirty +minutes north latitude, which belonged to the ancient province of +Louisiana, not included in Missouri.</p> + +<p>It is a settled doctrine of this court, that the Federal Government +can exercise no power over the subject of slavery within the States, +nor control the intermigration of slaves, other than fugitives, among +the States. Nor can that Government affect the duration of slavery +within the States, other than by a legislation over the foreign slave +trade. The power of Congress to adopt the section of the act above +cited must therefore depend upon some condition of the Territories +which distinguishes them from States, and subjects them to a control +more extended. The third section of the fourth article of the +Constitution is referred to as the only and all-sufficient grant to +support this claim. It is, that "new States may be admitted by the +Congress to this Union; but no new State shall be formed or erected +within the jurisdiction of any other State, nor any State be formed by +the junction of two or more States, or parts of States, without the +consent of the Legislatures of the States concerned, as well as of the +Congress. The Congress shall have power to dispose of and make all +needful rules and regulations respecting the territory or other +prop<span class="pagenum"><a name="Page_107" id="Page_107">-107-</a></span>erty belonging to the United States; and nothing in this +Constitution shall be so construed as to prejudice any claims of the +United States, or of any particular State."</p> + +<p>It is conceded, in the decisions of this court, that Congress may +secure the rights of the United States in the public domain, provide +for the sale or lease of any part of it, and establish the validity of +the titles of the purchasers, and may organize Territorial +Governments, with powers of legislation. (3 How., 212; 12 How., 1; 1 +Pet., 511; 13 P., 436; 16 H., 164.)</p> + +<p>But the recognition of a plenary power in Congress to dispose of the +public domain, or to organize a Government over it, does not imply a +corresponding authority to determine the internal polity, or to adjust +the domestic relations, or the persons who may lawfully inhabit the +territory in which it is situated. A supreme power to make needful +rules respecting the public domain, and a similar power of framing +laws to operate upon persons and things within the territorial limits +where it lies, are distinguished by broad lines of demarcation in +American history. This court has assisted us to define them. In +Johnson <i>v.</i> McIntosh, (8 Wheat., <span class="err" title="Transcriber's Note: citation should be 8 Wheat., 543, 595">595—543</span>,) +they say: "According to the +theory of the British Constitution, all vacant lands are vested in the +Crown; and the exclusive power to grant them is admitted to reside in +the Crown, as a branch of the royal prerogative.</p> + +<p>"All the lands we hold were originally granted by the Crown, and the +establishment of a royal Government has never been considered as +impairing its right to grant lands within the chartered limits of such +colony."</p> + +<p>And the British Parliament did claim a supremacy of legislation +coextensive with the absoluteness of the dominion of the sovereign +over the Crown lands. The American doctrine, to the contrary, is +embodied in two brief resolutions of the people of Pennsylvania, in +1774: 1st. "That the inhabitants of these colonies are entitled to the +same rights and liberties, within the colonies, that the subjects born +in England are entitled within the realm." 2d. "That the power assumed +by Parliament to bind the people of these colonies by statutes, in all +cases whatever, is unconstitutional, and therefore the source of these +unhappy difficulties." The Congress of 1774, in their statement of +rights and grievances, affirm "a free and exclusive power of +legislation" in their several Provincial Legislatures, "in all cases +of taxation and internal polity, subject only to the negative of their +sovereign, in such manner as has been heretofore used and accustomed." +(1 Jour. Cong., 32.)</p> + +<p>The unanimous consent of the people of the colonies, then,<span class="pagenum"><a name="Page_108" id="Page_108">-108-</a></span> to the +power of their sovereign, "to dispose of and make all needful rules +and regulations respecting the territory" of the Crown, in 1774, was +deemed by them as entirely consistent with opposition, remonstrance, +the renunciation of allegiance, and proclamation of civil war, in +preference to submission to his claim of supreme power in the +territories.</p> + +<p>I pass now to the evidence afforded during the Revolution and +Confederation. The American Revolution was not a social revolution. It +did not alter the domestic condition or capacity of persons within the +colonies, nor was it designed to disturb the domestic relations +existing among them. It was a political revolution, by which thirteen +dependent colonies became thirteen independent States. "The +Declaration of Independence was not," says Justice Chase, "a +declaration that the United Colonies jointly, in a collective +capacity, were independent States, &c., &c., &c., but that each of +them was a sovereign and independent State; that is, that each of them +had a right to govern itself by its own authority and its own laws, +without any control from any other power on earth." (3 Dall., 199; 4 +Cr., 212.)</p> + +<p>These sovereign and independent States, being united as a +Confederation, by various public acts of cession, became jointly +interested in territory, and concerned to dispose of and make all +needful rules and regulations respecting it. It is a conclusion not +open to discussion in this court, "that there was no territory within +the (original) United States, that was claimed by them in any other +right than that of some of the confederate States." (Harcourt <i>v.</i> +Gaillord, 12 Wh., 523.) "The question whether the vacant lands within +the United States," says Chief Justice Marshall, "became joint +property, or belonged to the separate States, was a momentous +question, which threatened to shake the American Confederacy to its +foundations. This important and dangerous question has been +compromised, and the compromise is not now to be contested." (6 C.R., +87.)</p> + +<p>The cessions of the States to the Confederation were made on the +condition that the territory ceded should be laid out and formed into +distinct republican States, which should be admitted as members to the +Federal Union, having the same rights of sovereignty, freedom, and +independence, as the other States. The first effort to fulfil this +trust was made in 1785, by the offer of a charter or compact to the +inhabitants who might come to occupy the land.</p> + +<p>Those inhabitants were to form for themselves temporary State +Governments, founded on the Constitutions of any of the States, but to +be alterable at the will of their Legislature; and<span class="pagenum"><a name="Page_109" id="Page_109">-109-</a></span> permanent +Governments were to succeed these, whenever the population became +sufficiently numerous to authorize the State to enter the Confederacy; +and Congress assumed to obtain powers from the States to facilitate +this object. Neither in the deeds of cession of the States, nor in +this compact, was a sovereign power for Congress to govern the +Territories asserted. Congress retained power, by this act, "to +dispose of and to make rules and regulations respecting the public +domain," but submitted to the people to organize a Government +harmonious with those of the confederate States.</p> + +<p>The next stage in the progress of colonial government was the adoption +of the ordinance of 1787, by eight States, in which the plan of a +Territorial Government, established by act of Congress, is first seen. +This was adopted while the Federal Convention to form the Constitution +was sitting. The plan placed the Government in the hands of a +Governor, Secretary, and Judges, appointed by Congress, and conferred +power on them to select suitable laws from the codes of the States, +until the population should equal 5,000. A Legislative Council, +elected by the people, was then to be admitted to a share of the +legislative authority, under the supervision of Congress; and States +were to be formed whenever the number of the population should +authorize the measure.</p> + +<p>This ordinance was addressed to the inhabitants as a fundamental +compact, and six of its articles define the conditions to be observed +in their Constitution and laws. These conditions were designed to +fulfil the trust in the agreements of cession, that the States to be +formed of the ceded Territories should be "distinct republican +States." This ordinance was submitted to Virginia in 1788, and the 5th +article, embodying as it does a summary of the entire act, was +specifically ratified and confirmed by that State. This was an +incorporation of the ordinance into her act of cession. It was +conceded, in the argument, that the authority of Congress was not +adequate to the enactment of the ordinance, and that it cannot be +supported upon the Articles of Confederation. To a part of the +engagements, the assent of nine States was required, and for another +portion no provision had been made in those articles. Mr. Madison +said, in a writing nearly contemporary, but before the confirmatory +act of Virginia, "Congress have proceeded to form new States, to erect +temporary Governments, to appoint officers for them, and to prescribe +the conditions on which such States shall be admitted into the +Confederacy; all this has been done, and done without the least color +of constitutional authority." (Federalist, No. 38.) Richard Henry Lee, +one of the committee who reported the ordinance to Con<span class="pagenum"><a name="Page_110" id="Page_110">-110-</a></span>gress, +transmitted it to General Washington, (15th July, 1787,) saying, "It +seemed necessary, for the security of property among uninformed and +perhaps licentious people, as the greater part of those who go there +are, that a strong-toned Government should exist, and the rights of +property be clearly defined." The consent of all the States +represented in Congress, the consent of the Legislature of Virginia, +the consent of the inhabitants of the Territory, all concur to support +the authority of this enactment. It is apparent, in the frame of the +Constitution, that the Convention recognised its validity, and +adjusted parts of their work with reference to it. The authority to +admit new States into the Union, the omission to provide distinctly +for Territorial Governments, and the clause limiting the foreign slave +trade to States then existing, which might not prohibit it, show that +they regarded this Territory as provided with a Government, and +organized permanently with a restriction on the subject of slavery. +Justice Chase, in the opinion already cited, says of the Government +before, and it is in some measure true during the Confederation, that +"the powers of Congress originated from necessity, and arose out of +and were only limited by events, or, in other words, they were +revolutionary in their very nature. Their extent depended upon the +exigencies and necessities of public affairs;" and there is only one +rule of construction, in regard to the acts done, which will fully +support them, viz: that the powers actually exercised were rightfully +exercised, wherever they were supported by the implied sanction of the +State Legislatures, and by the ratifications of the people.</p> + +<p>The clauses in the 3d section of the 4th article of the Constitution, +relative to the admission of new States, and the disposal and +regulation of the territory of the United States, were adopted without +debate in the Convention.</p> + +<p>There was a warm discussion on the clauses that relate to the +subdivision of the States, and the reservation of the claims of the +United States and each of the States from any prejudice. The Maryland +members revived the controversy in regard to the Crown lands of the +Southwest. There was nothing to indicate any reference to a government +of Territories not included within the limits of the Union; and the +whole discussion demonstrates that the Convention was consciously +dealing with a Territory whose condition, as to government, had been +arranged by a fundamental and unalterable compact.</p> + +<p>An examination of this clause of the Constitution, by the light of the +circumstances in which the Convention was placed, will aid us to +determine its significance. The first clause is, "that new States may +be admitted by the Congress to this<span class="pagenum"><a name="Page_111" id="Page_111">-111-</a></span> Union." The condition of +Kentucky, Vermont, Rhode Island, and the new States to be formed in +the Northwest, suggested this, as a necessary addition to the powers +of Congress. The next clause, providing for the subdivision of States, +and the parties to consent to such an alteration, was required, by the +plans on foot, for changes in Massachusetts, New York, Pennsylvania, +North Carolina, and Georgia. The clause which enables Congress to +dispose of and make regulations respecting the public domain, was +demanded by the exigencies of an exhausted treasury and a disordered +finance, for relief by sales, and the preparation for sales, of the +public lands; and the last clause, that nothing in the Constitution +should prejudice the claims of the United States or a particular +State, was to quiet the jealousy and irritation of those who had +claimed for the United States all the unappropriated lands. I look in +vain, among the discussions of the time, for the assertion of a +supreme sovereignty for Congress over the territory then belonging to +the United States, or that they might thereafter acquire. I seek in +vain for an annunciation that a consolidated power had been +inaugurated, whose subject comprehended an empire, and which had no +restriction but the discretion of Congress. This disturbing element of +the Union entirely escaped the apprehensive previsions of Samuel +Adams, George Clinton, Luther Martin, and Patrick Henry; and, in +respect to dangers from power vested in a central Government over +distant settlements, colonies, or provinces, their instincts were +always alive. Not a word escaped them, to warn their countrymen, that +here was a power to threaten the landmarks of this federative Union, +and with them the safeguards of popular and constitutional liberty; or +that under this article there might be introduced, on our soil, a +single Government over a vast extent of country—a Government foreign +to the persons over whom it might be exercised, and capable of binding +those not represented, by statutes, in all cases whatever. I find +nothing to authorize these enormous pretensions, nothing in the +expositions of the friends of the Constitution, nothing in the +expressions of alarm by its opponents—expressions which have since +been developed as prophecies. Every portion of the United States was +then provided with a municipal Government, which this Constitution was +not designed to supersede, but merely to modify as to its conditions.</p> + +<p>The compacts of cession by North Carolina and Georgia are subsequent +to the Constitution. They adopt the ordinance of 1787, except the +clause respecting slavery. But the precautionary repudiation of that +article forms an argument quite as satisfactory to the advocates for +Federal power, as its intro<span class="pagenum"><a name="Page_112" id="Page_112">-112-</a></span>duction would have done. The refusal of a +power to Congress to legislate in one place, seems to justify the +seizure of the same power when another place for its exercise is +found.</p> + +<p>This proceeds from a radical error, which lies at the foundation of +much of this discussion. It is, that the Federal Government may +lawfully do whatever is not directly prohibited by the Constitution. +This would have been a fundamental error, if no amendments to the +Constitution had been made. But the final expression of the will of +the people of the States, in the 10th amendment, is, that the powers +of the Federal Government are limited to the grants of the +Constitution.</p> + +<p>Before the cession of Georgia was made, Congress asserted rights, in +respect to a part of her territory, which require a passing notice. In +1798 and 1800, acts for the settlement of limits with Georgia, and to +establish a Government in the Mississippi Territory, were adopted. A +Territorial Government was organized, between the Chattahoochee and +Mississippi rivers. This was within the limits of Georgia. These acts +dismembered Georgia. They established a separate Government upon her +soil, while they rather derisively professed, "that the establishment +of that Government shall in no respects impair the rights of the State +of Georgia, either to the jurisdiction or soil of the Territory." The +Constitution provided that the importation of such persons as any of +the existing States shall think proper to admit, shall not be +prohibited by Congress before 1808. By these enactments, a prohibition +was placed upon the importation of slaves into Georgia, although her +Legislature had made none.</p> + +<p>This court have repeatedly affirmed the paramount claim of Georgia to +this Territory. They have denied the existence of any title in the +United States. (6 C.R., 87; 12 Wh., 523; 3 How., 212; 13 How., 381.) +Yet these acts were cited in the argument as precedents to show the +power of Congress in the Territories. These statutes were the occasion +of earnest expostulation and bitter remonstrance on the part of the +authorities of the State, and the memory of their injustice and wrong +remained long after the legal settlement of the controversy by the +compact of 1802. A reference to these acts terminates what I have to +say upon the Constitutions of the Territory within the original limits +of the United States. These Constitutions were framed by the +concurrence of the States making the cessions, and Congress, and were +tendered to immigrants who might be attracted to the vacant territory. +The legislative powers of the officers of this Government were limited +to the selection of laws from the States; and provision was made for +the introduction of popular institutions, and their emanci<span class="pagenum"><a name="Page_113" id="Page_113">-113-</a></span>pation from +Federal control, whenever a suitable opportunity occurred. The limited +reservation of legislative power to the officers of the Federal +Government was excused, on the plea of <i>necessity</i>; and the +probability is, that the clauses respecting slavery embody some +compromise among the statesmen of that time; beyond these, the +distinguishing features of the system which the patriots of the +Revolution had claimed as their birthright, from Great Britain, +predominated in them.</p> + +<p>The acquisition of Louisiana, in 1803, introduced another system into +the United States. This vast province was ceded by Napoleon, and its +population had always been accustomed to a viceroyal Government, +appointed by the Crowns of France or Spain. To establish a Government +constituted on similar principles, and with like conditions, was not +an unnatural proceeding.</p> + +<p>But there was great difficulty in finding constitutional authority for +the measure. The third section of the fourth article of the +Constitution was introduced into the Constitution, on the motion of +Mr. Gouverneur Morris. In 1803, he was appealed to for information in +regard to its meaning. He answers: "I am very certain I had it not in +contemplation to insert a decree <i>de coercendo imperio</i> in the +Constitution of America.... I knew then, as well as I do now, that all +North America must at length be annexed to us. Happy indeed, if the +lust of dominion stop here. It would therefore have been perfectly +utopian to oppose a paper restriction to the violence of popular +sentiment, in a popular Government." (3 Mor. Writ., 185.) A few days +later, he makes another reply to his correspondent. "I perceive," he +says, "I mistook the drift of your inquiry, which substantially is, +whether Congress can admit, as a new State, territory which did not +belong to the United States when the Constitution was made. In my +opinion, they cannot. I always thought, when we should acquire Canada +and Louisiana, it would be proper to <span class="smcap">govern them as provinces, and +allow them no voice</span> <i>in our councils. In wording the third</i> <span class="smcap">section of +the</span> <i>fourth article, I went as far as circumstances would permit, to +establish the exclusion</i>. <span class="smcap">Candor obliges me to add my belief, that had +it been more pointedly expressed, a strong opposition would have been +made.</span>" (3 Mor. Writ., 192.) The first Territorial Government of +Louisiana was an Imperial one, founded upon a French or Spanish model. +For a time, the Governor, Judges, Legislative Council, Marshal, +Secretary, and officers of the militia, were appointed by the +President.<a name="FNanchor_3_3" id="FNanchor_3_3"></a><a href="#Footnote_3_3" class="fnanchor">[3]</a></p> +<p><span class="pagenum"><a name="Page_114" id="Page_114">-114-</a></span></p> +<p>Besides these anomalous arrangements, the acquisition gave rise to +jealous inquiries, as to the influence it would exert in determining +the men and States that were to be "the arbiters and rulers" of the +destinies of the Union; and unconstitutional opinions, having for +their aim to promote sectional divisions, were announced and +developed. "Something," said an eminent statesman, "something has +suggested to the members of Congress the policy of acquiring +geographical majorities. This is a very direct step towards disunion, +for it must foster the geographical enmities by which alone it can be +effected. This something must be a contemplation of particular +advantages to be derived from such majorities; and is it not notorious +that they consist of nothing else but usurpations over persons and +property, by which they can regulate the internal <i>wealth and +prosperity of States and individuals</i>?"</p> + +<p>The most dangerous of the efforts to employ a geographical political +power, to perpetuate a geographical preponderance in the Union, is to +be found in the deliberations upon the act of the 6th of March, 1820, +before cited. The attempt consisted of a proposal to exclude Missouri +from a place in the Union, unless her people would adopt a +Constitution containing a prohibition upon the subject of slavery, +according to a prescription of Congress. The sentiment is now general, +if not universal, that Congress had no constitutional power to impose +the restriction. This was frankly admitted at the bar, in the course +of this argument. The principles which this court have pronounced +condemn the pretension then made on behalf of the legislative +department. In Groves <i>v.</i> Slaughter, (15 Pet.,) the Chief Justice +said: "The power over this subject is exclusively with the several +States, and each of them has a right to decide for itself whether it +will or will not allow persons of this description to be brought +within its limits." Justice McLean said: "The Constitution of the +United States operates alike in all the States, and one State has the +same power over the subject of slavery as every other State." In +Pollard's Lessee <i>v.</i> Hagan, (3 How., 212,) the court say: "The United +States have no constitutional capacity to exercise municipal<span class="pagenum"><a name="Page_115" id="Page_115">-115-</a></span> +jurisdiction, sovereignty, or eminent domain, within the limits of a +State or elsewhere, except in cases where it is delegated, and the +court denies the faculty of the Federal Government to add to its +powers by treaty or compact."</p> + +<p>This is a necessary consequence, resulting from the nature of the +Federal Constitution, which is a federal compact among the States, +establishing a limited Government, with powers delegated by the people +of distinct and independent communities, who reserved to their State +Governments, and to themselves, the powers they did not grant. This +claim to impose a restriction upon the people of Missouri involved a +denial of the constitutional relations between the people of the +States and Congress, and affirmed a concurrent right for the latter, +with their people, to constitute the social and political system of +the new States. A successful maintenance of this claim would have +altered the basis of the Constitution. The new States would have +become members of a Union defined in part by the Constitution and in +part by Congress. They would not have been admitted to "this Union." +Their sovereignty would have been restricted by Congress as well as +the Constitution. The demand was unconstitutional and subversive, but +was prosecuted with an energy, and aroused such animosities among the +people, that patriots, whose confidence had not failed during the +Revolution, began to despair for the Constitution.<a name="FNanchor_4_4" id="FNanchor_4_4"></a><a href="#Footnote_4_4" class="fnanchor">[4]</a> Amid the utmost +violence of this extraordinary contest, the expedient contained in the +eighth section of this act was proposed, to moderate it, and to avert +the catastrophe it menaced. It was not seriously debated, nor were its +constitutional aspects severely scrutinized by Congress. For the first +time, in the history of the country, has its operation been embodied +in a case at law, and been presented to this court for their judgment. +The inquiry is, whether there are conditions in the Constitutions of +the Territories which subject the capacity and <i>status</i> of persons +within their limits to the direct action of Congress. Can Congress +determine the condition and <i>status</i> of persons who inhabit the +Territories?</p> + +<p>The Constitution permits Congress to dispose of and to make all +needful rules and regulations respecting the territory or other +property belonging to the United States. This power applies as well to +territory belonging to the United States within the States, as beyond +them. It comprehends all the public domain, wherever it may be. The +argument is, that<span class="pagenum"><a name="Page_116" id="Page_116">-116-</a></span> the power to make "<span class="smcap">all</span> needful rules and +regulations" "is a power of legislation," "a full legislative power;" +"that it includes all subjects of legislation in the territory," and +is without any limitations, except the positive prohibitions which +affect all the powers of Congress. Congress may then regulate or +prohibit slavery upon the public domain within the new States, and +such a prohibition would permanently affect the capacity of a slave, +whose master might carry him to it. And why not? Because no power has +been conferred on Congress. This is a conclusion universally admitted. +But the power to "make rules and regulations respecting the territory" +is not restrained by State lines, nor are there any constitutional +prohibitions upon its exercise in the domain of the United States +within the States; and whatever rules and regulations respecting +territory Congress may constitutionally make are supreme, and are not +dependent on the <i>situs</i> of "the territory."</p> + +<p>The author of the Farmer's Letters, so famous in the +ante-revolutionary history, thus states the argument made by the +American loyalists in favor of the claim of the British Parliament to +legislate in all cases whatever over the colonies: "It has been urged +with great vehemence against us," he says, "and it seems to be thought +their <span class="smcap">fort</span> by our adversaries, that a power of regulation is a power +of legislation; and a power of legislation, if constitutional, must be +universal and supreme, in the utmost sense of the word. It is +therefore concluded that the colonies, by acknowledging the power of +regulation, acknowledged every other power."</p> + +<p>This sophism imposed upon a portion of the patriots of that day. Chief +Justice Marshall, in his life of Washington, says "that many of the +best-informed men in Massachusetts had perhaps adopted the opinion of +the parliamentary right of internal government over the colonies;" +"that the English statute book furnishes many instances of its +exercise;" "that in no case recollected, was their authority openly +controverted;" and "that the General Court of Massachusetts, on a late +occasion, openly recognised the principle." (Marsh. Wash., v. 2, p. +75, 76.)</p> + +<p>But the more eminent men of Massachusetts rejected it; and another +patriot of the time employs the instance to warn us of "the stealth +with which oppression approaches," and "the enormities towards which +precedents travel." And the people of the United States, as we have +seen, appealed to the last argument, rather than acquiesce in their +authority. Could it have been the purpose of Washington and his +illustrious associates, by the use of ambiguous, equivocal, and +expansive<span class="pagenum"><a name="Page_117" id="Page_117">-117-</a></span> words, such as "rules," "regulations," "territory," to +re-establish in the Constitution of their country that <i>fort</i> which +had been prostrated amid the toils and with the sufferings and +sacrifices of seven years of war? Are these words to be understood as +the Norths, the Grenvilles, Hillsboroughs, Hutchinsons, and +Dunmores—in a word, as George III would have understood them—or are +we to look for their interpretation to Patrick Henry or Samuel Adams, +to Jefferson, and Jay, and Dickinson; to the sage Franklin, or to +Hamilton, who from his early manhood was engaged in combating British +constructions of such words? We know that the resolution of Congress +of 1780 contemplated that the new States to be formed under their +recommendation were to have the same rights of sovereignty, freedom, +and independence, as the old. That every resolution, cession, compact, +and ordinance, of the States, observed the same liberal principle. +That the Union of the Constitution is a union formed of equal States; +and that new States, when admitted, were to enter "this Union." Had +another union been proposed in "any pointed manner," it would have +encountered not only "strong" but successful opposition. The disunion +between Great Britain and her colonies originated in the antipathy of +the latter to "rules and regulations" made by a remote power +respecting their internal policy. In forming the Constitution, this +fact was ever present in the minds of its authors. The people were +assured by their most trusted statesmen "that the jurisdiction of the +Federal Government is limited to certain enumerated objects, which +concern all members of the republic," and "that the local or municipal +authorities form distinct portions of supremacy, no more subject +within their respective spheres to the general authority, than the +general authority is subject to them within its own sphere." Still, +this did not content them. Under the lead of Hancock and Samuel Adams, +of Patrick Henry and George Mason, they demanded an explicit +declaration that no more power was to be exercised than they had +delegated. And the ninth and tenth amendments to the Constitution were +designed to include the reserved rights of the States, and the people, +within all the sanctions of that instrument, and to bind the +authorities, State and Federal, by the judicial oath it prescribes, to +their recognition and observance. Is it probable, therefore, that the +supreme and irresponsible power, which is now claimed for Congress +over boundless territories, the use of which cannot fail to react upon +the political system of the States, to its subversion, was ever within +the contemplation of the statesmen who conducted the counsels of the +people in the formation of this Constitution? When<span class="pagenum"><a name="Page_118" id="Page_118">-118-</a></span> the questions that +came to the surface upon the acquisition of Louisiana were presented +to the mind of Jefferson, he wrote: "I had rather ask an enlargement +of power from the nation, where it is found necessary, than to assume +it by a construction which would make our powers boundless. Our +peculiar security is in the possession of a written Constitution. Let +us not make it blank paper by construction. I say the same as to the +opinion of those who consider the grant of the treaty-making power as +boundless. If it is, then we have no Constitution. If it has bounds, +they can be no others than the definitions of the powers which that +instrument gives. It specifies and delineates the operations permitted +to the Federal Government, and gives the powers necessary to carry +them into execution." The publication of the journals of the Federal +Convention in 1819, of the debates reported by Mr. Madison in 1840, +and the mass of private correspondence of the early statesmen before +and since, enable us to approach the discussion of the aims of those +who made the Constitution, with some insight and confidence.</p> + +<p>I have endeavored, with the assistance of these, to find a solution +for the grave and difficult question involved in this inquiry. My +opinion is, that the claim for Congress of supreme power in the +Territories, under the grant to "dispose of and make all needful rules +and regulations respecting <i>territory</i>," is not supported by the +historical evidence drawn from the Revolution, the Confederation, or +the deliberations which preceded the ratification of the Federal +Constitution. The ordinance of 1787 depended upon the action of the +Congress of the Confederation, the assent of the State of Virginia, +and the acquiescence of the people who recognised the validity of that +plea of necessity which supported so many of the acts of the +Governments of that time; and the Federal Government accepted the +ordinance as a recognised and valid engagement of the Confederation.</p> + +<p>In referring to the precedents of 1798 and 1800, I find the +Constitution was plainly violated by the invasion of the rights of a +sovereign State, both of soil and jurisdiction; and in reference to +that of 1804, the wisest statesmen protested against it, and the +President more than doubted its policy and the power of the +Government.</p> + +<p>Mr. John Quincy Adams, at a later period, says of the last act, "that +the President found Congress mounted to the pitch of passing those +acts, without inquiring where they acquired the authority, and he +conquered his own scruples as they had done theirs." But this court +cannot undertake for themselves the same conquest. They acknowledge +that our peculiar se<span class="pagenum"><a name="Page_119" id="Page_119">-119-</a></span>curity is in the possession of a written +Constitution, and they cannot make it blank paper by construction.</p> + +<p>They look to its delineation of the operations of the Federal +Government, and they must not exceed the limits it marks out, in their +administration. The court have said "that Congress cannot exercise +municipal jurisdiction, sovereignty, or eminent domain, within the +limits of a State or elsewhere, beyond what has been delegated." We +are then to find the authority for supreme power in the Territories in +the Constitution. What are the limits upon the operations of a +Government invested with legislative, executive, and judiciary powers, +and charged with the power to dispose of and to make all needful rules +and regulations respecting a vast public domain? The feudal system +would have recognised the claim made on behalf of the Federal +Government for supreme power over persons and things in the +Territories, as an incident to this title—that is, the title to +dispose of and make rules and regulations respecting it.</p> + +<p>The Norman lawyers of William the Conqueror would have yielded an +implicit assent to the doctrine, that a supreme sovereignty is an +inseparable incident to a grant to dispose of and to make all needful +rules and regulations respecting the public domain. But an American +patriot, in contrasting the European and American systems, may affirm, +"that European sovereigns give lands to their colonists, but reserve +to themselves a power to control their property, liberty, and +privileges; but the American Government sells the lands belonging to +the people of the several States (i.e., United States) to their +citizens, who are already in the possession of personal and political +rights, which the Government did not give, and cannot take away." And +the advocates for Government sovereignty in the Territories have been +compelled to abate a portion of the pretensions originally made in its +behalf, and to admit that the constitutional prohibitions upon +Congress operate in the Territories. But a constitutional prohibition +is not requisite to ascertain a limitation upon the authority of the +several departments of the Federal Government. Nor are the States or +people restrained by any enumeration or definition of their rights or +liberties.</p> + +<p>To impair or diminish either, the department must produce an authority +from the people themselves, in their Constitution; and, as we have +seen, a power to make rules and regulations respecting the public +domain does not confer a municipal sovereignty over persons and things +upon it. But as this is "thought their fort" by our adversaries, I +propose a more definite examination of it. We have seen, Congress does +not<span class="pagenum"><a name="Page_120" id="Page_120">-120-</a></span> dispose of or make rules and regulations respecting domain +belonging to themselves, but belonging to the United States.</p> + +<p>These conferred on their mandatory, Congress, authority to dispose of +the territory which belonged to them in common; and to accomplish that +object beneficially and effectually, they gave an authority to make +suitable rules and regulations respecting it. When the power of +disposition is fulfilled, the authority to make rules and regulations +terminates, for it attaches only upon territory "belonging to the +United States."</p> + +<p>Consequently, the power to make rules and regulations, from the nature +of the subject, is restricted to such administrative and conservatory +acts as are needful for the preservation of the public domain, and its +preparation for sale or disposition. The system of land surveys; the +reservations for schools, internal improvements, military sites, and +public buildings; the pre-emption claims of settlers; the +establishment of land offices, and boards of inquiry, to determine the +validity of land titles; the modes of entry, and sale, and of +conferring titles; the protection of the lands from trespass and +waste; the partition of the public domain into municipal subdivisions, +having reference to the erection of Territorial Governments and +States; and perhaps the selection, under their authority, of suitable +laws for the protection of the settlers, until there may be a +sufficient number of them to form a self-sustaining municipal +Government—these important rules and regulations will sufficiently +illustrate the scope and operation of the 3d section of the 4th +article of the Constitution. But this clause in the Constitution does +not exhaust the powers of Congress within the territorial +subdivisions, or over the persons who inhabit them. Congress may +exercise there all the powers of Government which belong to them as +the Legislature of the United States, of which these Territories make +a part. (Loughborough <i>v.</i> Blake, 5 Wheat., 317.) Thus the laws of +taxation, for the regulation of foreign, Federal, and Indian commerce, +and so for the abolition of the slave trade, for the protection of +copyrights and inventions, for the establishment of postal +communication and courts of justice, and for the punishment of crimes, +are as operative there as within the States. I admit that to mark the +bounds for the jurisdiction of the Government of the United States +within the Territory, and of its power in respect to persons and +things within the municipal subdivisions it has created, is a work of +delicacy and difficulty, and, in a great measure, is beyond the +cognizance of the judiciary department of that Government. How much +municipal power may be exercised by the people of the Territory, +before their admission to the Union, the courts of justice cannot +decide. This must depend, for<span class="pagenum"><a name="Page_121" id="Page_121">-121-</a></span> the most part, on political +considerations, which cannot enter into the determination of a case of +law or equity. I do not feel called upon to define the jurisdiction of +Congress. It is sufficient for the decision of this case to ascertain +whether the residuary sovereignty of the States or people has been +invaded by the 8th section of the act of 6th March, 1820, I have +cited, in so far as it concerns the capacity and <i>status</i> of persons +in the condition and circumstances of the plaintiff and his family.</p> + +<p>These States, at the adoption of the Federal Constitution, were +organized communities, having distinct systems of municipal law, +which, though derived from a common source, and recognising in the +main similar principles, yet in some respects had become unlike, and +on a particular subject promised to be antagonistic.</p> + +<p>Their systems provided protection for life, liberty, and property, +among their citizens, and for the determination of the condition and +capacity of the persons domiciled within their limits. These +institutions, for the most part, were placed beyond the control of the +Federal Government. The Constitution allows Congress to coin money, +and regulate its value; to regulate foreign and Federal commerce; to +secure, for a limited period, to authors and inventors, a property in +their writings and discoveries; and to make rules concerning captures +in war; and, within the limits of these powers, it has exercised, +rightly, to a greater or less extent, the power to determine what +shall and what shall not be property.</p> + +<p>But the great powers of war and negotiation, finance, postal +communication, and commerce, in general, when employed in respect to +the property of a citizen, refer to, and depend upon, the municipal +laws of the States, to ascertain and determine what is property, and +the rights of the owner, and the tenure by which it is held.</p> + +<p>Whatever these Constitutions and laws validly determine to be +property, it is the duty of the Federal Government, through the domain +of jurisdiction merely Federal, to recognise to be property.</p> + +<p>And this principle follows from the structure of the respective +Governments, State and Federal, and their reciprocal relations. They +are different agents and trustees of the people of the several States, +appointed with different powers and with distinct purposes, but whose +acts, within the scope of their respective jurisdictions, are mutually +obligatory. They are respectively the depositories of such powers of +legislation as the people were willing to surrender, and their duty is +to co-operate within their several jurisdictions to maintain the +rights of the same citizens under both Governments unim<span class="pagenum"><a name="Page_122" id="Page_122">-122-</a></span>paired. A +proscription, therefore, of the Constitution and laws of one or more +States, determining property, on the part of the Federal Government, +by which the stability of its social system may be endangered, is +plainly repugnant to the conditions on which the Federal Constitution +was adopted, or which that Government was designed to accomplish. Each +of the States surrendered its powers of war and negotiation, to raise +armies and to support a navy, and all of these powers are sometimes +required to preserve a State from disaster and ruin. The Federal +Government was constituted to exercise these powers for the +preservation of the States, respectively, and to secure to all their +citizens the enjoyment of the rights which were not surrendered to the +Federal Government. The provident care of the statesmen who projected +the Constitution was signalized by such a distribution of the powers +of Government as to exclude many of the motives and opportunities for +promoting provocations and spreading discord among the States, and for +guarding against those partial combinations, so destructive of the +community of interest, sentiment, and feeling, which are so essential +to the support of the Union. The distinguishing features of their +system consist in the exclusion of the Federal Government from the +local and internal concerns of, and in the establishment of an +independent internal Government within, the States. And it is a +significant fact in the history of the United States, that those +controversies which have been productive of the greatest animosity, +and have occasioned most peril to the peace of the Union, have had +their origin in the well-sustained opinion of a minority among the +people, that the Federal Government had overstepped its constitutional +limits to grant some exclusive privilege, or to disturb the legitimate +distribution of property or power among the States or individuals. Nor +can a more signal instance of this be found than is furnished by the +act before us. No candid or rational man can hesitate to believe, that +if the subject of the eighth section of the act of March, 1820, had +never been introduced into Congress and made the basis of legislation, +no interest common to the Union would have been seriously affected. +And, certainly, the creation, within this Union, of large +confederacies of unfriendly and frowning States, which has been the +tendency, and, to an alarming extent, the result, produced by the +agitation arising from it, does not commend it to the patriot or +statesman. This court have determined that the intermigration of +slaves was not committed to the jurisdiction or control of Congress. +Wherever a master is entitled to go within the United States, his +slave may accompany him, without any impediment from, or fear of, +Congres<span class="pagenum"><a name="Page_123" id="Page_123">-123-</a></span>sional legislation or interference. The question then arises, +whether Congress, which can exercise no jurisdiction over the +relations of master and slave within the limits of the Union, and is +bound to recognise and respect the rights and relations that validly +exist under the Constitutions and laws of the States, can deny the +exercise of those rights, and prohibit the continuance of those +relations, within the Territories.</p> + +<p>And the citation of State statutes prohibiting the immigration of +slaves, and of the decisions of State courts enforcing the forfeiture +of the master's title in accordance with their rule, only darkens the +discussion. For the question is, have Congress the municipal +sovereignty in the Territories which the State Legislatures have +derived from the authority of the people, and exercise in the States?</p> + +<p>And this depends upon the construction of the article in the +Constitution before referred to.</p> + +<p>And, in my opinion, that clause confers no power upon Congress to +dissolve the relations of the master and slave on the domain of the +United States, either within or without any of the States.</p> + +<p>The eighth section of the act of Congress of the 6th of March, 1820, +did not, in my opinion, operate to determine the domestic condition +and <i>status</i> of the plaintiff and his family during their sojourn in +Minnesota Territory, or after their return to Missouri.</p> + +<p>The question occurs as to the judgment to be given in this case. It +appeared upon the trial that the plaintiff, in 1834, was in a state of +slavery in Missouri, and he had been in Missouri for near fifteen +years in that condition when this suit was brought. Nor does it appear +that he at any time possessed another state or condition, <i>de facto</i>. +His claim to freedom depends upon his temporary elocation, from the +domicil of his origin, in company with his master, to communities +where the law of slavery did not prevail. My examination is confined +to the case, as it was submitted upon uncontested evidence, upon +appropriate issues to the jury, and upon the instructions given and +refused by the court upon that evidence. My opinion is, that the +opinion of the Circuit Court was correct upon all the claims involved +in those issues, and that the verdict of the jury was justified by the +evidence and instructions.</p> + +<p>The jury have returned that the plaintiff and his family are slaves.</p> + +<p>Upon this record, it is apparent that this is not a controversy +between citizens of different States; and that the plaintiff, at no +period of the life which has been submitted to the view of the court, +has had a capacity to maintain a suit in the courts<span class="pagenum"><a name="Page_124" id="Page_124">-124-</a></span> of the United +States. And in so far as the argument of the Chief Justice upon the +plea in abatement has a reference to the plaintiff or his family, in +any of the conditions or circumstances of their lives, as presented in +the evidence, I concur in that portion of his opinion. I concur in the +judgment which expresses the conclusion that the Circuit Court should +not have rendered a general judgment.</p> + +<p>The capacity of the plaintiff to sue is involved in the pleas in bar, +and the verdict of the jury discloses an incapacity under the +Constitution. Under the Constitution of the United States, his is an +incapacity to sue in their courts, while, by the laws of Missouri, the +operation of the verdict would be more extensive. I think it a safe +conclusion to enforce the lesser disability imposed by the +Constitution of the United States, and leave to the plaintiff all his +rights in Missouri. I think the judgment should be affirmed, on the +ground that the Circuit Court had no jurisdiction, or that the case +should be reversed and remanded, that the suit may be dismissed.</p> + +<hr class="med" /> + +<p>Mr. Justice <a name="CATRON" id="CATRON"></a>CATRON.</p> + +<p>The defendant pleaded to the jurisdiction of the Circuit Court, that +the plaintiff was a negro of African blood; the descendant of +Africans, who had been imported and sold in this country as slaves, +and thus had no capacity as a citizen of Missouri to maintain a suit +in the Circuit Court. The court sustained a demurrer to this plea, and +a trial was had upon the pleas, of the general issue, and also that +the plaintiff and his family were slaves, belonging to the defendant. +In this trial, a verdict was given for the defendant.</p> + +<p>The judgment of the Circuit Court upon the plea in abatement is not +open, in my opinion, to examination in this court upon the plaintiff's +writ.</p> + +<p>The judgment was given for him conformably to the prayer of his +demurrer. He cannot assign an error in such a judgment. (Tidd's Pr., +1163; 2 Williams's Saund., 46 a; 2 Iredell N.C., 87; 2 W. and S., +391.) Nor does the fact that the judgment was given on a plea to the +jurisdiction, avoid the application of this rule. (Capron <i>v.</i> Van +Noorden, 2 Cr., 126; 6 Wend., 465; 7 Met., 598; 5 Pike, 1005.)</p> + +<p>The declaration discloses a case within the jurisdiction of the +court—a controversy between citizens of different States. The plea in +abatement, impugning these jurisdictional averments, was waived when +the defendant answered to the declaration by pleas to the merits. The +proceedings on that plea remain a part of the technical record, to +show the history of the case, but are not open to the review of this +court by a writ<span class="pagenum"><a name="Page_125" id="Page_125">-125-</a></span> of error. The authorities are very conclusive on this +point. Shepherd <i>v.</i> Graves, 14 How., 505; Bailey <i>v.</i> Dozier, 6 How., +23; 1 Stewart, (Alabama,) 46; 10 Ben. Monroe, (Kentucky,) 555; 2 +Stewart, (Alabama,) 370, 443; 2 Scammon, (Illinois,) 78. Nor can the +court assume, as admitted facts, the averments of the plea from the +confession of the demurrer. That confession was for a single object, +and cannot be used for any other purpose than to test the validity of +the plea. Tompkins <i>v.</i> Ashley, 1 Moody and Mackin, 32; 33 Maine, 96, +100.</p> + +<p>There being nothing in controversy here but the merits, I will proceed +to discuss them.</p> + +<p>The plaintiff claims to have acquired property in himself, and became +free, by being kept in Illinois during two years.</p> + +<p>The Constitution, laws, and policy, of Illinois, are somewhat peculiar +respecting slavery. Unless the master becomes an inhabitant of that +State, the slaves he takes there do not acquire their freedom; and if +they return with their master to the slave State of his domicil, they +cannot assert their freedom after their return. For the reasons and +authorities on this point, I refer to the opinion of my brother +Nelson, with which I not only concur, but think his opinion is the +most conclusive argument on the subject within my knowledge.</p> + +<p>It is next insisted for the plaintiff, that his freedom (and that of +his wife and eldest child) was obtained by force of the act of +Congress of 1820, usually known as the Missouri compromise act, which +declares: "That in all that territory ceded by France to the United +States, which lies north of thirty-six degrees thirty minutes north +latitude, slavery and involuntary servitude shall be, and are hereby, +<i>forever prohibited</i>."</p> + +<p>From this prohibition, the territory now constituting the State of +Missouri was excepted; which exception to the stipulation gave it the +designation of a compromise.</p> + +<p>The first question presented on this act is, whether Congress had +power to make such compromise. For, if power was wanting, then no +freedom could be acquired by the defendant under the act.</p> + +<p>That Congress has no authority to pass laws and bind men's rights +beyond the powers conferred by the Constitution, is not open to +controversy. But it is insisted that, by the Constitution, Congress +has power to legislate for and govern the Territories of the United +States, and that by force of the power to govern, laws could be +enacted, prohibiting slavery in any portion of the Louisiana +Territory; and, of course, to abolish slavery <i>in all</i> parts of it, +whilst it was, or is, governed as a Territory.</p> + +<p>My opinion is, that Congress is vested with power to govern<span class="pagenum"><a name="Page_126" id="Page_126">-126-</a></span> the +Territories of the United States by force of the third section of the +fourth article of the Constitution. And I will state my reasons for +this opinion.</p> + +<p>Almost every provision in that instrument has a history that must be +understood, before the brief and sententious language employed can be +comprehended in the relations its authors intended. We must bring +before us the state of things presented to the Convention, and in +regard to which it acted, when the compound provision was made, +declaring: 1st. That "new States may be admitted by the Congress into +this Union." 2d. "The Congress shall have power to dispose of and make +all needful rules and regulations respecting the territory or other +property belonging to the United States. And nothing in this +Constitution shall be so construed as to prejudice any claims of the +United States, or any particular State."</p> + +<p>Having ascertained the historical facts giving rise to these +provisions, the difficulty of arriving at the true meaning of the +language employed will be greatly lessened.</p> + +<p>The history of these facts is substantially as follows:</p> + +<p>The King of Great Britain, by his proclamation of 1763, virtually +claimed that the country west of the mountains had been conquered from +France, and ceded to the Crown of Great Britain by the treaty of Paris +of that year, and he says: "We reserve it under our sovereignty, +protection, and dominion, for the use of the Indians."</p> + +<p>This country was conquered from the Crown of Great Britain, and +surrendered to the United States by the treaty of peace of 1783. The +colonial charters of Virginia, North Carolina, and Georgia, included +it. Other States set up pretensions of claim to some portions of the +territory north of the Ohio, but they were of no value, as I suppose. +(5 Wheat., 375.)</p> + +<p>As this vacant country had been won by the blood and treasure of all +the States, those whose charters did not reach it, insisted that the +country belonged to the States united, and that the lands should be +disposed of for the benefit of the whole; and to which end, the +western territory should be ceded to the States united. The contest +was stringent and angry, long before the Convention convened, and +deeply agitated that body. As a matter of justice, and to quiet the +controversy, Virginia consented to cede the country north of the Ohio +as early as 1783; and in 1784 the deed of cession was executed, by her +delegates in the Congress of the Confederation, conveying to the +United States in Congress assembled, for the benefit of said States, +"all right, title, and claim, as well of soil as of jurisdiction, +which this Commonwealth hath to the <i>territory</i> or tract of country +within the limits of the Vir<span class="pagenum"><a name="Page_127" id="Page_127">-127-</a></span>ginia charter, situate, lying, and being +to the northwest of the river Ohio." In 1787, (July 13,) the ordinance +was passed by the old Congress to govern the Territory.</p> + +<p>Massachusetts had ceded her pretension of claim to western territory +in 1785, Connecticut hers in 1786, and New York had ceded hers. In +August, 1787, South Carolina ceded to the Confederation her pretension +of claim to territory west of that State. And North Carolina was +expected to cede hers, which she did do, in April, 1790. And so +Georgia was confidently expected to cede her large domain, now +constituting the territory of the States of Alabama and Mississippi.</p> + +<p>At the time the Constitution was under consideration, there had been +ceded to the United States, or was shortly expected to be ceded, all +the western country, from the British Canada line to Florida, and from +the head of the Mississippi almost to its mouth, except that portion +which now constitutes the State of Kentucky.</p> + +<p>Although Virginia had conferred on the Congress of the Confederation +power to govern the Territory north of the Ohio, still, it cannot be +denied, as I think, that power was wanting to admit a new State under +the Articles of Confederation.</p> + +<p>With these facts prominently before the Convention, they proposed to +accomplish these ends:</p> + +<p>1st. To give power to admit new States.</p> + +<p>2d. To dispose of the public lands in the Territories, and such as +might remain undisposed of in the new States after they were admitted.</p> + +<p>And, thirdly, to give power to govern the different Territories as +incipient States, not of the Union, and fit them for admission. No one +in the Convention seems to have doubted that these powers were +necessary. As early as the third day of its session, (May 29th,) +Edmund Randolph brought forward a set of resolutions containing nearly +all the germs of the Constitution, the tenth of which is as follows:</p> + +<p>"<i>Resolved</i>, That provision ought to be made for the admission of +States lawfully arising within the limits of the United States, +whether from a voluntary junction of government and territory or +otherwise, with the consent of a number of voices in the National +Legislature less than the whole."</p> + +<p>August 18th, Mr. Madison submitted, in order to be referred to the +committee of detail, the following powers as proper to be added to +those of the General Legislature:</p> + +<p>"To dispose of the unappropriated lands of the United States." "To +institute temporary Governments for new States arising therein." (3 +Madison Papers, 1353.)<span class="pagenum"><a name="Page_128" id="Page_128">-128-</a></span></p> + +<p>These, with the resolution, that a district for the location of the +seat of Government should be provided, and some others, were referred, +without a dissent, to the committee of detail, to arrange and put them +into satisfactory language.</p> + +<p>Gouverneur Morris constructed the clauses, and combined the views of a +majority on the two provisions, to admit new States; and secondly, to +dispose of the public lands, and to govern the Territories, in the +mean time, between the cessions of the States and the admission into +the Union of new States arising in the ceded territory. (3 Madison +Papers, 1456 to 1466.)</p> + +<p>It was hardly possible to separate the power "to make all needful +rules and regulations" respecting the government of the territory and +the disposition of the public lands.</p> + +<p>North of the Ohio, Virginia conveyed the lands, and vested the +jurisdiction in the thirteen original States, before the Constitution +was formed. She had the sole title and sole sovereignty, and the same +power to cede, on any terms she saw proper, that the King of England +had to grant the Virginia colonial charter of 1609, or to grant the +charter of Pennsylvania to William Penn. The thirteen States, through +their representatives and deputed ministers in the old Congress, had +the same right to govern that Virginia had before the cession. +(Baldwin's Constitutional Views, 90.) And the sixth article of the +Constitution adopted all engagements entered into by the Congress of +the Confederation, as valid against the United States; and that the +laws, made in pursuance of the new Constitution, to carry out this +engagement, should be the supreme law of the land, and the judges +bound thereby. To give the compact, and the ordinance, which was part +of it, full effect under the new Government, the act of August 7th, +1789, was passed, which declares, "Whereas, in order that the +ordinance of the United States in Congress assembled, for the +government of the Territory northwest of the river Ohio, may have full +effect, it is requisite that certain provisions should be made, so as +to adapt the same to the present Constitution of the United States." +It is then provided that the Governor and other officers should be +appointed by the President, with the consent of the Senate; and be +subject to removal, &c., in like manner that they were by the old +Congress, whose functions had ceased.</p> + +<p>By the powers to govern, given by the Constitution, those amendments +to the ordinance could be made, but Congress guardedly abstained from +touching the compact of Virginia, further than to adapt it to the new +Constitution.</p> + +<p>It is due to myself to say, that it is asking much of a judge,<span class="pagenum"><a name="Page_129" id="Page_129">-129-</a></span> who +has for nearly twenty years been exercising jurisdiction, from the +western Missouri line to the Rocky Mountains, and, on this +understanding of the Constitution, inflicting the extreme penalty of +death for crimes committed where the direct legislation of Congress +was the only rule, to agree that he had been all the while acting in +mistake, and as an usurper.</p> + +<p>More than sixty years have passed away since Congress has exercised +power to govern the Territories, by its legislation directly, or by +Territorial charters, subject to repeal at all times, and it is now +too late to call that power into question, if this court could +disregard its own decisions; which it cannot do, as I think. It was +held in the case of Cross <i>v.</i> Harrison, (16 How., 193-'4,) that the +sovereignty of California was in the United States, in virtue of the +Constitution, by which power had been given to Congress to dispose of +and make all needful rules and regulations respecting the territory or +other property belonging to the United States, with the power to admit +new States into the Union. That decision followed preceding ones, +there cited. The question was then presented, how it was possible for +the judicial mind to conceive that the United States Government, +created solely by the Constitution, could, by a lawful treaty, acquire +territory over which the acquiring power had no jurisdiction to hold +and govern it, by force of the instrument under whose authority the +country was acquired; and the foregoing was the conclusion of this +court on the proposition. What was there announced, was most +deliberately done, and with a purpose. The only question here is, as I +think, how far the power of Congress is limited.</p> + +<p>As to the Northwest Territory, Virginia had the right to abolish +slavery there; and she did so agree in 1787, with the other States in +the Congress of the Confederation, by assenting to and adopting the +ordinance of 1787, for the government of the Northwest Territory. She +did this also by an act of her Legislature, passed afterwards, which +was a treaty in fact.</p> + +<p>Before the new Constitution was adopted, she had as much right to +treat and agree as any European Government had. And, having excluded +slavery, the new Government was bound by that engagement by article +six of the new Constitution. This only meant that slavery should not +exist whilst the United States exercised the power of government, in +the Territorial form; for, when a new State came in, it might do so, +with or without slavery.</p> + +<p>My opinion is, that Congress had no power, in face of the compact +between Virginia and the twelve other States, to <i>force</i> slavery into +the Northwest Territory, because there, it was bound to that +"engagement," and could not break it.<span class="pagenum"><a name="Page_130" id="Page_130">-130-</a></span></p> + +<p>In 1790, North Carolina ceded her western territory, now the State of +Tennessee, and stipulated that the inhabitants thereof should enjoy +all the privileges and advantages of the ordinance for governing the +territory north of the Ohio river, and that Congress should assume the +government, and accept the cession, under the express conditions +contained in the ordinance: <i>Provided</i>, "That no regulation made, or +to be made, by Congress, shall tend to emancipate slaves."</p> + +<p>In 1802, Georgia ceded her western territory to the United States, +with the provision that the ordinance of 1787 should in all its parts +extend to the territory ceded, "that article only excepted which +forbids slavery." Congress had no more power to legislate slavery +<i>out</i> from the North Carolina and Georgia cessions, than it had power +to legislate slavery in, north of the Ohio. No power existed in +Congress to legislate at all, affecting slavery, in either case. The +inhabitants, as respected this description of property, stood +protected whilst they were governed by Congress, in like manner that +they were protected before the cession was made, and when they were, +respectively, parts of North Carolina and Georgia.</p> + +<p>And how does the power of Congress stand west of the Mississippi +river? The country there was acquired from France, by treaty, in 1803. +It declares, that the First Consul, in the name of the French +Republic, doth hereby cede to the United States, in full sovereignty, +the colony or province of Louisiana, with all the rights and +appurtenances of the said territory. And, by article third, that "the +inhabitants of the ceded territory shall be incorporated in the Union +of the United States, and admitted as soon as possible, according to +the principles of the Federal Constitution, to the enjoyment of all +the rights, advantages, and immunities, of citizens of the United +States; and, in the mean time, they shall be maintained and protected +in the free enjoyment of their liberty, property, and the religion +which they profess."</p> + +<p>Louisiana was a province where slavery was not only lawful, but where +property in slaves was the most valuable of all personal property. The +province was ceded as a unit, with an equal right pertaining to all +its inhabitants, in every part thereof, to own slaves. It was, to a +great extent, a vacant country, having in it few civilized +inhabitants. No one portion of the colony, of a proper size for a +State of the Union had a sufficient number of inhabitants to claim +admission into the Union. To enable the United States to fulfil the +treaty, additional population was indispensable, and obviously desired +with anxiety by both sides, so that the whole country should, as soon +as possible, become States of the Union. And for this<span class="pagenum"><a name="Page_131" id="Page_131">-131-</a></span> contemplated +future population, the treaty as expressly provided as it did for the +inhabitants residing in the province when the treaty was made. All +these were to be protected "<i>in the mean time</i>;" that is to say, at +all times, between the date of the treaty and the time when the +portion of the Territory where the inhabitants resided was admitted +into the Union as a State.</p> + +<p>At the date of the treaty, each inhabitant had the right to the <i>free</i> +enjoyment of his property, alike with his liberty and his religion, in +every part of Louisiana; the province then being one country, he might +go everywhere in it, and carry his liberty, property, and religion, +with him, and in which he was to be maintained and protected, until he +became a citizen of a State of the Union of the United States. This +cannot be denied to the original inhabitants and their descendants. +And, if it be true that immigrants were equally protected, it must +follow that they can also stand on the treaty.</p> + +<p>The settled doctrine in the State courts of Louisiana is, that a +French subject coming to the Orleans Territory, after the treaty of +1803 was made, and before Louisiana was admitted into the Union, and +being an inhabitant at the time of the admission, became a citizen of +the United States by that act; that he was one of the inhabitants +contemplated by the third article of the treaty, which referred to all +the inhabitants embraced within the new State on its admission.</p> + +<p>That this is the true construction, I have no doubt.</p> + +<p>If power existed to draw a line at thirty-six degrees thirty minutes +north, so Congress had equal power to draw the line on the thirtieth +degree—that is, due west from the city of New Orleans—and to declare +that north of <i>that line</i> slavery should never exist. Suppose this had +been done before 1812, when Louisiana came into the Union, and the +question of infraction of the treaty had then been presented on the +present assumption of power to prohibit slavery, who doubts what the +decision of this court would have been on such an act of Congress; +yet, the difference between the supposed line, and that on thirty-six +degrees thirty minutes north, is only in the degree of grossness +presented by the lower line.</p> + +<p>The Missouri compromise line of 1820 was very aggressive; it declared +that slavery was abolished forever throughout a country reaching from +the Mississippi river to the Pacific ocean, stretching over thirty-two +degrees of longitude, and twelve and a half degrees of latitude on its +eastern side, sweeping over four-fifths, to say no more, of the +original province of Louisiana.</p> + +<p>That the United States Government stipulated in favor of<span class="pagenum"><a name="Page_132" id="Page_132">-132-</a></span> the +inhabitants to the extent here contended for, has not been seriously +denied, as far as I know; but the argument is, that Congress had +authority to <i>repeal</i> the third article of the treaty of 1803, in so +far as it secured the right to hold slave property, in a portion of +the ceded territory, leaving the right to exist in other parts. In +other words, that Congress could repeal the third article entirely, at +its pleasure. This I deny.</p> + +<p>The compacts with North Carolina and Georgia were treaties also, and +stood on the same footing of the Louisiana treaty; on the assumption +of power to repeal the one, it must have extended to all, and Congress +could have excluded the slaveholder of North Carolina from the +enjoyment of his lands in the Territory now the State of Tennessee, +where the citizens of the mother State were the principal proprietors.</p> + +<p>And so in the case of Georgia. Her citizens could have been refused +the right to emigrate to the Mississippi or Alabama Territory, unless +they left their most valuable and cherished property behind them.</p> + +<p>The Constitution was framed in reference to facts then existing or +likely to arise: the instrument looked to no theories of Government. +In the vigorous debates in the Convention, as reported by Mr. Madison +and others, surrounding facts, and the condition and necessities of +the country, gave rise to almost every provision; and among those +facts, it was prominently true, that Congress dare not be intrusted +with power to provide that, if North Carolina or Georgia ceded her +western territory, the citizens of the State (in either case) could be +prohibited, at the pleasure of Congress, from removing to their lands, +then granted to a large extent, in the country likely to be ceded, +unless they left their slaves behind. That such an attempt, in the +face of a population fresh from the war of the Revolution, and then +engaged in war with the great confederacy of Indians, extending from +the mouth of the Ohio to the Gulf of Mexico, would end in open revolt, +all intelligent men knew.</p> + +<p>In view of these facts, let us inquire how the question stands by the +terms of the Constitution, aside from the treaty? How it stood in +public opinion when the Georgia cession was made, in 1802, is apparent +from the fact that no guaranty was required by Georgia of the United +States, for the protection of slave property. The Federal Constitution +was relied on, to secure the rights of Georgia and her citizens during +the Territorial condition of the country. She relied on the +indisputable truths, that the States were by the Constitution made +equals in political rights, and equals in the right to participate in +the common property of all the States united, and held in trust for<span class="pagenum"><a name="Page_133" id="Page_133">-133-</a></span> +them. The Constitution having provided that "The citizens of each +State shall be entitled to all privileges and immunities of citizens +of the several States," the right to enjoy the territory as equals was +reserved to the States, and to the citizens of the States, +respectively. The cited clause is not that citizens of the United +States shall have equal privileges in the Territories, but the citizen +of each State shall come there in right of his State, and enjoy the +common property. He secures his equality through the equality of his +State, by virtue of that great fundamental condition of the Union—the +equality of the States.</p> + +<p>Congress cannot do indirectly what the Constitution prohibits +directly. If the slaveholder is prohibited from going to the Territory +with his slaves, who are parts of his family in name and in fact, it +will follow that men owning lawful property in their own States, +carrying with them the equality of their State to enjoy the common +property, may be told, you cannot come here with your slaves, and he +will be held out at the border. By this subterfuge, owners of slave +property, to the amount of thousand of millions, might be almost as +effectually excluded from removing into the Territory of Louisiana +north of thirty-six degrees thirty minutes, as if the law declared +that owners of slaves, as a class, should be excluded, even if their +slaves were left behind.</p> + +<p>Just as well might Congress have said to those of the North, you shall +not introduce into the territory south of said line your cattle or +horses, as the country is already overstocked; nor can you introduce +your tools of trade, or machines, as the policy of Congress is to +encourage the culture of sugar and cotton south of the line, and so to +provide that the Northern people shall manufacture for those of the +South, and barter for the staple articles slave labor produces. And +thus the Northern farmer and mechanic would be held out, as the +slaveholder was for thirty years, by the Missouri restriction.</p> + +<p>If Congress could prohibit one species of property, lawful throughout +Louisiana when it was acquired, and lawful in the State from whence it +was brought, so Congress might exclude any or all property.</p> + +<p>The case before us will illustrate the construction contended for. Dr. +Emerson was a citizen of Missouri; he had an equal right to go to the +Territory with every citizen of other States. This is undeniable, as I +suppose. Scott was Dr. Emerson's lawful property in Missouri; he +carried his Missouri title with him; and the precise question here is, +whether Congress had the power to annul that title. It is idle to say, +that if Congress could not defeat the title <i>directly</i>, that it might +be done<span class="pagenum"><a name="Page_134" id="Page_134">-134-</a></span> indirectly, by drawing a narrow circle around the slave +population of Upper Louisiana, and declaring that if the slave went +beyond it, he should be free. Such assumption is mere evasion, and +entitled to no consideration. And it is equally idle to contend, that +because Congress has express power to regulate commerce among the +Indian tribes, and to prohibit intercourse with the Indians, that +therefore Dr. Emerson's title might be defeated within the country +ceded by the Indians to the United States as early as 1805, and which +embraces Fort Snelling. (Am. State Papers, vol. 1, p. 734.) We <i>must</i> +meet the question, whether Congress had the power to declare that a +citizen of a State, carrying with him his equal rights, secured to him +through his State, could be stripped of his goods and slaves, and be +deprived of any participation in the common property? If this be the +true meaning of the Constitution, equality of rights to enjoy a common +country (equal to a thousand miles square) may be cut off by a +geographical line, and a great portion of our citizens excluded from +it.</p> + +<p>Ingenious, indirect evasions of the Constitution have been attempted +and defeated heretofore. In the passenger cases, (7 How. R.,) the +attempt was made to impose a tax on the masters, crews, and passengers +of vessels, the Constitution having prohibited a tax on the vessel +itself; but this court held the attempt to be a mere evasion, and +pronounced the tax illegal.</p> + +<p>I admit that Virginia could, and lawfully did, prohibit slavery +northwest of the Ohio, by her charter of cession, and that the +territory was taken by the United States with this condition imposed. +I also admit that France could, by the treaty of 1803, have prohibited +slavery in any part of the ceded territory, and imposed it on the +United States as a fundamental condition of the cession, in the mean +time, till new States were admitted in the Union.</p> + +<p>I concur with Judge Baldwin, that Federal power is exercised over all +the territory within the United States, pursuant to the Constitution; +<i>and</i>, the conditions of the cession, whether it was a part of the +original territory of a State of the Union, or of a foreign State, +ceded by deed or treaty; the right of the United States in or over it +depends on the contract of cession, which operates to incorporate as +well the Territory as its inhabitants into the Union. (Baldwin's +Constitutional Views, 84.)</p> + +<p>My opinion is, that the third article of the treaty of 1803, ceding +Louisiana to the United States, stands protected by the Constitution, +and cannot be repealed by Congress.</p> + +<p>And, secondly, that the act of 1820, known as the Missouri<span class="pagenum"><a name="Page_135" id="Page_135">-135-</a></span> +compromise, violates the most leading feature of the Constitution—a +feature on which the Union depends, and which secures to the +respective States and their citizens an entire <span class="smcap">equality</span> of rights, +privileges, and immunities.</p> + +<p>On these grounds, I hold the compromise act to have been void; and, +consequently, that the plaintiff, Scott, can claim no benefit under +it.</p> + +<p>For the reasons above stated, I concur with my brother judges that the +plaintiff, Scott, is a slave, and was so when this suit was brought.</p> + +<hr class="med" /> + +<p>Mr. Justice McLEAN and Mr. Justice CURTIS dissented.</p> + +<hr class="short" /> + +<p>Mr. Justice <a name="McLEAN" id="McLEAN"></a>McLEAN dissenting.</p> + +<p>This case is before us on a writ of error from the Circuit Court for +the district of Missouri.</p> + +<p>An action of trespass was brought, which charges the defendant with an +assault and imprisonment of the plaintiff, and also of Harriet Scott, +his wife, Eliza and Lizzie, his two children, on the ground that they +were his slaves, which was without right on his part, and against law.</p> + +<p>The defendant filed a plea in abatement, "that said causes of action, +and each and every of them, if any such accrued to the said Dred +Scott, accrued out of the jurisdiction of this court, and exclusively +within the jurisdiction of the courts of the State of Missouri, for +that to wit, 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 the +court can or will take further cognizance of the action aforesaid."</p> + +<p>To this a demurrer was filed, which, on argument, was sustained by the +court, the plea in abatement being held insufficient; the defendant +was ruled to plead over. Under this rule he pleaded: 1. Not guilty; 2. +That Dred Scott was a negro slave, the property of the defendant; and +3. That Harriet, the wife, and Eliza and Lizzie, the daughters of the +plaintiff, were the lawful slaves of the defendant.</p> + +<p>Issue was joined on the first plea, and replications of <i>de injuria</i> +were filed to the other pleas.</p> + +<p>The parties agreed to the following facts: 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, Dr. Emerson +took the plaintiff from the State of Missouri to<span class="pagenum"><a name="Page_136" id="Page_136">-136-</a></span> the post of 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, Dr. +Emerson removed the plaintiff from 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 latitude thirty-six degrees thirty +minutes north, and north of the State of Missouri. Dr. Emerson held +the plaintiff in slavery, at Fort Snelling, from the last-mentioned +date until the year 1838.</p> + +<p>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, Major +Taliaferro took Harriet to 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 Fort Snelling, +unto Dr. Emerson, who held her in slavery, at that place, until the +year 1838.</p> + +<p>In the year 1836, the plaintiff and Harriet were married at Fort +Snelling, with the consent of Dr. Emerson, who 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.</p> + +<p>In the year 1838, Dr. Emerson removed the plaintiff and said Harriet +and their daughter Eliza from Fort Snelling to the State of Missouri, +where they have ever since resided.</p> + +<p>Before the commencement of the suit, Dr. Emerson sold and conveyed the +plaintiff, Harriet, Eliza, and Lizzie, to the defendant, as slaves, +and he has ever since claimed to hold them as slaves.</p> + +<p>At the times mentioned in the plaintiff's declaration, the defendant, +claiming to be the owner, laid his hands upon said plaintiff, Harriet, +Eliza, and Lizzie, and imprisoned them; doing in this respect, +however, no more than he might lawfully do, if they were of right his +slaves at such times.</p> + +<p>In the first place, the plea to the jurisdiction is not before us, on +this writ of error. A demurrer to the plea was sustained, which ruled +the plea bad, and the defendant, on leave, pleaded over.</p> + +<p>The decision on the demurrer was in favor of the plaintiff; and as the +plaintiff prosecutes this writ of error, he does not complain of the +decision on the demurrer. The defendant<span class="pagenum"><a name="Page_137" id="Page_137">-137-</a></span> might have complained of this +decision, as against him, and have prosecuted a writ of error, to +reverse it. But as the case, under the instruction of the court to the +jury, was decided in his favor, of course he had no ground of +complaint.</p> + +<p>But it is said, if the court, on looking at the record, shall clearly +perceive that the Circuit Court had no jurisdiction, it is a ground +for the dismissal of the case. This may be characterized as rather a +sharp practice, and one which seldom, if ever, occurs. No case was +cited in the argument as authority, and not a single case precisely in +point is recollected in our reports. The pleadings do not show a want +of jurisdiction. This want of jurisdiction can only be ascertained by +a judgment on the demurrer to the special plea. No such case, it is +believed, can be cited. But if this rule of practice is to be applied +in this case, and the plaintiff in error is required to answer and +maintain as well the points ruled in his favor, as to show the error +of those ruled against him, he has more than an ordinary duty to +perform. Under such circumstances, the want of jurisdiction in the +Circuit Court must be so clear as not to admit of doubt. Now, the plea +which raises the question of jurisdiction, in my judgment, is +radically defective. The gravamen of the plea is this: "That the +plaintiff is a negro of African descent, his ancestors being of pure +African blood, and were brought into this country, and sold as negro +slaves."</p> + +<p>There is no averment in this plea which shows or conduces to show an +inability in the plaintiff to sue in the Circuit Court. It does not +allege that the plaintiff had his domicil in any other State, nor that +he is not a free man in Missouri. He is averred to have had a negro +ancestry, but this does not show that he is not a citizen of Missouri, +within the meaning of the act of Congress authorizing him to sue in +the Circuit Court. It has never been held necessary, to constitute a +citizen within the act, that he should have the qualifications of an +elector. Females and minors may sue in the Federal courts, and so may +any individual who has a permanent domicil in the State under whose +laws his rights are protected, and to which he owes allegiance.</p> + +<p>Being born under our Constitution and laws, no naturalization is +required, as one of foreign birth, to make him a citizen. The most +general and appropriate definition of the term citizen is "a freeman." +Being a freeman, and having his domicil in a State different from that +of the defendant, he is a citizen within the act of Congress, and the +courts of the Union are open to him.</p> + +<p>It has often been held, that the jurisdiction, as regards parties, can +only be exercised between citizens of different States,<span class="pagenum"><a name="Page_138" id="Page_138">-138-</a></span> and that a +mere residence is not sufficient; but this has been said to +distinguish a temporary from a permanent residence.</p> + +<p>To constitute a good plea to the jurisdiction, it must negative those +qualities and rights which enable an individual to sue in the Federal +courts. This has not been done; and on this ground the plea was +defective, and the demurrer was properly sustained. No implication can +aid a plea in abatement or in bar; it must be complete in itself; the +facts stated, if true, must abate or bar the right of the plaintiff to +sue. This is not the character of the above plea. The facts stated, if +admitted, are not inconsistent with other facts, which may be +presumed, and which bring the plaintiff within the act of Congress.</p> + +<p>The pleader has not the boldness to allege that this plaintiff is a +slave, as that would assume against him the matter in controversy, and +embrace the entire merits of the case in a plea to the jurisdiction. +But beyond the facts set out in the plea, the court, to sustain it, +must assume the plaintiff to be a slave, which is decisive on the +merits. This is a short and an effectual mode of deciding the cause; +but I am yet to learn that it is sanctioned by any known rule of +pleading.</p> + +<p>The defendant's counsel complain, that if the court take jurisdiction +on the ground that the plaintiff is free, the assumption is against +the right of the master. This argument is easily answered. In the +first place, the plea does not show him to be a slave; it does not +follow that a man is not free whose ancestors were slaves. The reports +of the Supreme Court of Missouri show that this assumption has many +exceptions; and there is no averment in the plea that the plaintiff is +not within them.</p> + +<p>By all the rules of pleading, this is a fatal defect in the plea. If +there be doubt, what rule of construction has been established in the +slave States? In Jacob <i>v.</i> Sharp, (Meigs's Rep., Tennessee, 114,) the +court held, when there was doubt as to the construction of a will +which emancipated a slave, "it must be construed to be subordinate to +the higher and more important right of freedom."</p> + +<p>No injustice can result to the master, from an exercise of +jurisdiction in this cause. Such a decision does not in any degree +affect the merits of the case; it only enables the plaintiff to assert +his claims to freedom before this tribunal. If the jurisdiction be +ruled against him, on the ground that he is a slave, it is decisive of +his fate.</p> + +<p>It has been argued that, if a colored person be made a citizen of a +State, he cannot sue in the Federal court. The Constitution declares +that Federal jurisdiction "may be exercised between citizens of +different States," and the same is provided<span class="pagenum"><a name="Page_139" id="Page_139">-139-</a></span> in the act of 1789. The +above argument is properly met by saying that the Constitution was +intended to be a practical instrument; and where its language is too +plain to be misunderstood, the argument ends.</p> + +<p>In Chiræ <i>v.</i> Chiræ, (2 Wheat., 261; 4 Curtis, 99,) this court says: +"That the power of naturalization is exclusively in Congress does not +seem to be, and certainly ought not to be, controverted." No person +can legally be made a citizen of a State, and consequently a citizen +of the United States, of foreign birth, unless he be naturalized under +the acts of Congress. Congress has power "to establish a uniform rule +of naturalization."</p> + +<p>It is a power which belongs exclusively to Congress, as intimately +connected with our Federal relations. A State may authorize foreigners +to hold real estate within its jurisdiction, but it has no power to +naturalize foreigners, and give them the rights of citizens. Such a +right is opposed to the acts of Congress on the subject of +naturalization, and subversive of the Federal powers. I regret that +any countenance should be given from this bench to a practice like +this in some of the States, which has no warrant in the Constitution.</p> + +<p>In the argument, it was said that a colored citizen would not be an +agreeable member of society. This is more a matter of taste than of +law. Several of the States have admitted persons of color to the right +of suffrage, and in this view have recognised them as citizens; and +this has been done in the slave as well as the free States. On the +question of citizenship, it must be admitted that we have not been +very fastidious. Under the late treaty with Mexico, we have made +citizens of all grades, combinations, and colors. The same was done in +the admission of Louisiana and Florida. No one ever doubted, and no +court ever held, that the people of these Territories did not become +citizens under the treaty. They have exercised all the rights of +citizens, without being naturalized under the acts of Congress.</p> + +<p>There are several important principles involved in this case, which +have been argued, and which may be considered under the following +heads:</p> + +<p>1. The locality of slavery, as settled by this court and the courts of +the States.</p> + +<p>2. The relation which the Federal Government bears to slavery in the +States.</p> + +<p>3. The power of Congress to establish Territorial Governments, and to +prohibit the introduction of slavery therein.</p> + +<p>4. The effect of taking slaves into a new State or Territory, and so +holding them, where slavery is prohibited.</p> + +<p>5. Whether the return of a slave under the control of his<span class="pagenum"><a name="Page_140" id="Page_140">-140-</a></span> master, +after being entitled to his freedom, reduces him to his former +condition.</p> + +<p>6. Are the decisions of the Supreme Court of Missouri, on the +questions before us, binding on this court, within the rule adopted.</p> + +<p>In the course of my judicial duties, I have had occasion to consider +and decide several of the above points.</p> + +<p>1. As to the locality of slavery. The civil law throughout the +Continent of Europe, it is believed, without an exception, is, that +slavery can exist only within the territory where it is established; +and that, if a slave escapes, or is carried beyond such territory, his +master cannot reclaim him, unless by virtue of some express +stipulation. (Grotius, lib. 2, chap. 15, 5, 1; lib. 10, chap. 10, 2, +1; Wicqueposts Ambassador, lib. 1, p. 418; 4 Martin, 385; Case of the +Creole in the House of Lords, 1842; 1 Phillimore on International Law, +316, 335.)</p> + +<p>There is no nation in Europe which considers itself bound to return to +his master a fugitive slave, under the civil law or the law of +nations. On the contrary, the slave is held to be free where there is +no treaty obligation, or compact in some other form, to return him to +his master. The Roman law did not allow freedom to be sold. An +ambassador or any other public functionary could not take a slave to +France, Spain, or any other country of Europe, without emancipating +him. A number of slaves escaped from a Florida plantation, and were +received on board of ship by Admiral Cochrane; by the King's Bench, +they were held to be free. (2 Barn. and Cres., 440.)</p> + +<p>In the great and leading case of Prigg <i>v.</i> The State of Pennsylvania, +(16 Peters, 594; 14 Curtis, 421,) this court say that, by the general +law of nations, no nation is bound to recognise the state of slavery, +as found within its territorial dominions, where it is in opposition +to its own policy and institutions, in favor of the subjects of other +nations where slavery is organized. If it does it, it is as a matter +of comity, and not as a matter of international right. The state of +slavery is deemed to be a mere municipal regulation, founded upon and +limited to the range of the territorial laws. This was fully +recognised in Somersett's case, (Lafft's Rep., 1; 20 Howell's State +Trials, 79,) which was decided before the American Revolution.</p> + +<p>There was some contrariety of opinion among the judges on certain +points ruled in Prigg's case, but there was none in regard to the +great principle, that slavery is limited to the range of the laws +under which it is sanctioned.</p> + +<p>No case in England appears to have been more thoroughly examined than +that of Somersett. The judgment pronounced<span class="pagenum"><a name="Page_141" id="Page_141">-141-</a></span> by Lord Mansfield was the +judgment of the Court of King's Bench. The cause was argued at great +length, and with great ability, by Hargrave and others, who stood +among the most eminent counsel in England. It was held under +advisement from term to term, and a due sense of its importance was +felt and expressed by the Bench.</p> + +<p>In giving the opinion of the court, Lord Mansfield said:</p> + +<p>"The state of slavery is of such a nature that it is incapable of +being introduced on any reasons, moral or political, but only by +positive law, which preserves its force long after the reasons, +occasion, and time itself, from whence it was created, is erased from +the memory; it is of a nature that nothing can be suffered to support +it but positive law."</p> + +<p>He referred to the contrary opinion of Lord Hardwicke, in October, +1749, as Chancellor: "That he and Lord Talbot, when Attorney and +Solicitor General, were of opinion that no such claim, as here +presented, for freedom, was valid."</p> + +<p>The weight of this decision is sought to be impaired, from the terms +in which it was described by the exuberant imagination of Curran. The +words of Lord Mansfield, in giving the opinion of the court, were such +as were fit to be used by a great judge, in a most important case. It +is a sufficient answer to all objections to that judgment, that it was +pronounced before the Revolution, and that it was considered by this +court as the highest authority. For near a century, the decision in +Somersett's case has remained the law of England. The case of the +slave Grace, decided by Lord Stowell in 1827, does not, as has been +supposed, overrule the judgment of Lord Mansfield. Lord Stowell held +that, during the residence of the slave in England, "No dominion, +authority, or coercion, can be exercised over him." Under another +head, I shall have occasion to examine the opinion in the case of +Grace.</p> + +<p>To the position, that slavery can only exist except under the +authority of law, it is objected, that in few if in any instances has +it been established by statutory enactment. This is no answer to the +doctrine laid down by the court. Almost all the principles of the +common law had their foundation in usage. Slavery was introduced into +the colonies of this country by Great Britain at an early period of +their history, and it was protected and cherished, until it became +incorporated into the colonial policy. It is immaterial whether a +system of slavery was introduced by express law, or otherwise, if it +have the authority of law. There is no slave State where the +institution is not recognised and protected by statutory enactments +and judicial decisions. Slaves are made property by the laws of the +slave States, and as such are liable to the claims of cred<span class="pagenum"><a name="Page_142" id="Page_142">-142-</a></span>itors; they +descend to heirs, are taxed, and in the South they are a subject of +commerce.</p> + +<p>In the case of Rankin <i>v.</i> Lydia, (2 A.K. Marshall's Rep.,) Judge +Mills, speaking for the Court of Appeals of Kentucky, says: "In +deciding the question, (of slavery,) we disclaim the influence of the +general principles of liberty, which we all admire, and conceive it +ought to be decided by the law as it is, and not as it ought to be. +Slavery is sanctioned by the laws of this State, and the right to hold +slaves under our municipal regulations is unquestionable. But we view +this as a right existing by positive law of a municipal character, +without foundation in the law of nature, or the unwritten and common +law."</p> + +<p>I will now consider the relation which the Federal Government bears to +slavery in the States:</p> + +<p>Slavery is emphatically a State institution. In the ninth section of +the first article of the Constitution, it is provided "that the +migration or importation of such persons as any of the States now +existing shall think proper to admit, shall not be prohibited by the +Congress prior to the year 1808, but a tax or duty may be imposed on +such importation, not exceeding ten dollars for each person."</p> + +<p>In the Convention, it was proposed by a committee of eleven to limit +the importation of slaves to the year 1800, when Mr. Pinckney moved to +extend the time to the year 1808. This motion was carried—New +Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South +Carolina, and Georgia, voting in the affirmative; and New Jersey, +Pennsylvania, and Virginia, in the negative. In opposition to the +motion, Mr. Madison said: "Twenty years will produce all the mischief +that can be apprehended from the liberty to import slaves; so long a +term will be more dishonorable to the American character than to say +nothing about it in the Constitution." (Madison Papers.)</p> + +<p>The provision in regard to the slave trade shows clearly that Congress +considered slavery a State institution, to be continued and regulated +by its individual sovereignty; and to conciliate that interest, the +slave trade was continued twenty years, not as a general measure, but +for the "benefit of such States as shall think proper to encourage +it."</p> + +<p>In the case of Groves <i>v.</i> Slaughter, (15 Peters, 449; 14 Curtis, +137,) Messrs. Clay and Webster contended that, under the commercial +power, Congress had a right to regulate the slave trade among the +several States; but the court held that Congress had no power to +interfere with slavery as it exists in the States, or to regulate what +is called the slave trade among<span class="pagenum"><a name="Page_143" id="Page_143">-143-</a></span> them. If this trade were subject to +the commercial power, it would follow that Congress could abolish or +establish slavery in every State of the Union.</p> + +<p>The only connection which the Federal Government holds with slaves in +a State, arises from that provision of the Constitution which declares +that "No person held to service or labor in one State, under the laws +thereof, escaping into another, shall, in consequence of any law or +regulation therein, be discharged from such service or labor, but +shall be delivered up, on claim of the party to whom such service or +labor may be due."</p> + +<p>This being a fundamental law of the Federal Government, it rests +mainly for its execution, as has been held, on the judicial power of +the Union; and so far as the rendition of fugitives from labor has +become a subject of judicial action, the Federal obligation has been +faithfully discharged.</p> + +<p>In the formation of the Federal Constitution, care was taken to confer +no power on the Federal Government to interfere with this institution +in the States. In the provision respecting the slave trade, in fixing +the ratio of representation, and providing for the reclamation of +fugitives from labor, slaves were referred to as persons, and in no +other respect are they considered in the Constitution.</p> + +<p>We need not refer to the mercenary spirit which introduced the +infamous traffic in slaves, to show the degradation of negro slavery +in our country. This system was imposed upon our colonial settlements +by the mother country, and it is due to truth to say that the +commercial colonies and States were chiefly engaged in the traffic. +But we know as a historical fact, that James Madison, that great and +good man, a leading member in the Federal Convention, was solicitous +to guard the language of that instrument so as not to convey the idea +that there could be property in man.</p> + +<p>I prefer the lights of Madison, Hamilton, and Jay, as a means of +construing the Constitution in all its bearings, rather than to look +behind that period, into a traffic which is now declared to be piracy, +and punished with death by Christian nations. I do not like to draw +the sources of our domestic relations from so dark a ground. Our +independence was a great epoch in the history of freedom; and while I +admit the Government was not made especially for the colored race, yet +many of them were citizens of the New England States, and exercised +the rights of suffrage when the Constitution was adopted, and it was +not doubted by any intelligent person that its tendencies would +greatly ameliorate their condition.</p> + +<p>Many of the States, on the adoption of the Constitution, or<span class="pagenum"><a name="Page_144" id="Page_144">-144-</a></span> shortly +afterward, took measures to abolish slavery within their respective +jurisdictions; and it is a well-known fact that a belief was cherished +by the leading men, South as well as North, that the institution of +slavery would gradually decline, until it would become extinct. The +increased value of slave labor, in the culture of cotton and sugar, +prevented the realization of this expectation. Like all other +communities and States, the South were influenced by what they +considered to be their own interests.</p> + +<p>But if we are to turn our attention to the dark ages of the world, why +confine our view to colored slavery? On the same principles, white men +were made slaves. All slavery has its origin in power, and is against +right.</p> + +<p>The power of Congress to establish Territorial Governments, and to +prohibit the introduction of slavery therein, is the next point to be +considered.</p> + +<p>After the cession of western territory by Virginia and other States, +to the United States, the public attention was directed to the best +mode of disposing of it for the general benefit. While in attendance +on the Federal Convention, Mr. Madison, in a letter to Edmund +Randolph, dated the 22d April, 1787, says: "Congress are deliberating +on the plan most eligible for disposing of the western territory not +yet surveyed. Some alteration will probably be made in the ordinance +on that subject." And in the same letter he says: "The inhabitants of +the Illinois complain of the land jobbers, &c., who are purchasing +titles among them. Those of St. Vincent's complain of the defective +criminal and civil justice among them, as well as of military +protection." And on the next day he writes to Mr. Jefferson: "The +government of the settlements on the Illinois and Wabash is a subject +very perplexing in itself, and rendered more so by our ignorance of +the many circumstances on which a right judgment depends. The +inhabitants at those places claim protection against the savages, and +some provision for both civil and criminal justice."</p> + +<p>In May, 1787, Mr. Edmund Randolph submitted to the Federal Convention +certain propositions, as the basis of a Federal Government, among +which was the following:</p> + +<p>"<i>Resolved</i>, That provision ought to be made for the admission of +States lawfully arising within the limits of the United States, +whether from a voluntary junction of government and territory or +otherwise, with the consent of a number of voices in the National +Legislature less than the whole."</p> + +<p>Afterward, Mr. Madison submitted to the Convention, in order to be +referred to the committee of detail, the following powers, as proper +to be added to those of general legislation:<span class="pagenum"><a name="Page_145" id="Page_145">-145-</a></span></p> + +<p>"To dispose of the unappropriated lands of the United States. To +institute temporary Governments for new States arising therein. To +regulate affairs with the Indians, as well within as without the +limits of the United States."</p> + +<p>Other propositions were made in reference to the same subjects, which +it would be tedious to enumerate. Mr. Gouverneur Morris proposed the +following:</p> + +<p>"The Legislature shall have power to dispose of and make all needful +rules and regulations respecting the territory or other property +belonging to the United States; and nothing in this Constitution +contained shall be so construed as to prejudice any claims either of +the United States or of any particular State."</p> + +<p>This was adopted as a part of the Constitution, with two verbal +alterations—Congress was substituted for Legislature, and the word +<i>either</i> was stricken out.</p> + +<p>In the organization of the new Government, but little revenue for a +series of years was expected from commerce. The public lands were +considered as the principal resource of the country for the payment of +the Revolutionary debt. Direct taxation was the means relied on to pay +the current expenses of the Government. The short period that occurred +between the cession of western lands to the Federal Government by +Virginia and other States, and the adoption of the Constitution, was +sufficient to show the necessity of a proper land system and a +temporary Government. This was clearly seen by propositions and +remarks in the Federal Convention, some of which are above cited, by +the passage of the Ordinance of 1787, and the adoption of that +instrument by Congress, under the Constitution, which gave to it +validity.</p> + +<p>It will be recollected that the deed of cession of western territory +was made to the United States by Virginia in 1784, and that it +required the territory ceded to be laid out into States, that the land +should be disposed of for the common benefit of the States, and that +all right, title, and claim, as well of soil as of jurisdiction, were +ceded; and this was the form of cession from other States.</p> + +<p>On the 13th of July, the Ordinance of 1787 was passed, "for the +government of the United States territory northwest of the river +Ohio," with but one dissenting vote. This instrument provided there +should be organized in the territory not less than three nor more than +five States, designating their boundaries. It was passed while the +Federal Convention was in session, about two months before the +Constitution was adopted by the Convention. The members of the +Convention must therefore have been well acquainted with the +provisions of the<span class="pagenum"><a name="Page_146" id="Page_146">-146-</a></span> Ordinance. It provided for a temporary Government, +as initiatory to the formation of State Governments. Slavery was +prohibited in the territory.</p> + +<p>Can any one suppose that the eminent men of the Federal Convention +could have overlooked or neglected a matter so vitally important to +the country, in the organization of temporary Governments for the vast +territory northwest of the river Ohio? In the 3d section of the 4th +article of the Constitution, they did make provision for the admission +of new States, the sale of the public lands, and the temporary +Government of the territory. Without a temporary Government, new +States could not have been formed, nor could the public lands have +been sold.</p> + +<p>If the third section were before us now for consideration for the +first time, under the facts stated, I could not hesitate to say there +was adequate legislative power given in it. The power to make all +needful rules and regulations is a power to legislate. This no one +will controvert, as Congress cannot make "rules and regulations," +except by legislation. But it is argued that the word territory is +used as synonymous with the word land; and that the rules and +regulations of Congress are limited to the disposition of lands and +other property belonging to the United States. That this is not the +true construction of the section appears from the fact that in the +first line of the section "the power to dispose of the public lands" +is given expressly, and, in addition, to make all needful rules and +regulations. The power to dispose of is complete in itself, and +requires nothing more. It authorizes Congress to use the proper means +within its discretion, and any further provision for this purpose +would be a useless verbiage. As a composition, the Constitution is +remarkably free from such a charge.</p> + +<p>In the discussion of the power of Congress to govern a Territory, in +the case of the Atlantic Insurance Company <i>v.</i> Canter, (1 Peters, +511; 7 Curtis, 685,) Chief Justice Marshall, speaking for the court, +said, in regard to the people of Florida, "they do not, however, +participate in political power; they do not share in the Government +till Florida shall become a State; in the mean time, Florida continues +to be a Territory of the United States, governed by virtue of that +clause in the Constitution which empowers Congress 'to make all +needful rules and regulations respecting the territory or other +property belonging to the United States.'"</p> + +<p>And he adds, "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<span class="pagenum"><a name="Page_147" id="Page_147">-147-</a></span> necessarily from the fact 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 whence the power is derived, +the possession of it is unquestioned." And in the close of the +opinion, the court say, "in legislating for them [the Territories,] +Congress exercises the combined powers of the General and State +Governments."</p> + +<p>Some consider the opinion to be loose and inconclusive; others, that +it is <i>obiter dicta</i>; and the last sentence is objected to as +recognising absolute power in Congress over Territories. The learned +and eloquent Wirt, who, in the argument of a cause before the court, +had occasion to cite a few sentences from an opinion of the Chief +Justice, observed, "no one can mistake the style, the words so +completely match the thought."</p> + +<p>I can see no want of precision in the language of the Chief Justice; +his meaning cannot be mistaken. He states, first, the third section as +giving power to Congress to govern the Territories, and two other +grounds from which the power may also be implied. The objection seems +to be, that the Chief Justice did not say which of the grounds stated +he considered the source of the power. He did not specifically state +this, but he did say, "whichever may be the source whence the power is +derived, the possession of it is unquestioned." No opinion of the +court could have been expressed with a stronger emphasis; the power in +Congress is unquestioned. But those who have undertaken to criticise +the opinion, consider it without authority, because the Chief Justice +did not designate specially the power. This is a singular objection. +If the power be unquestioned, it can be a matter of no importance on +which ground it is exercised.</p> + +<p>The opinion clearly was not <i>obiter dicta</i>. The turning point in the +case was, whether Congress had power to authorize the Territorial +Legislature of Florida to pass the law under which the Territorial +court was established, whose decree was brought before this court for +revision. The power of Congress, therefore, was the point in issue.</p> + +<p>The word "territory," according to Worcester, "means land, country, a +district of country under a temporary Government." The words +"territory or other property," as used, do imply, from the use of the +pronoun other, that territory was used as descriptive of land; but +does it follow that it was not used also as descriptive of a district +of country? In both of these senses it belonged to the United +States—as land, for the purpose of sale; as territory, for the +purpose of government.<span class="pagenum"><a name="Page_148" id="Page_148">-148-</a></span></p> + +<p>But, if it be admitted that the word territory as used means land, and +nothing but land, the power of Congress to organize a temporary +Government is clear. It has power to make all needful regulations +respecting the public lands, and the extent of those "needful +regulations" depends upon the direction of Congress, where the means +are appropriate to the end, and do not conflict with any of the +prohibitions of the Constitution. If a temporary Government be deemed +needful, necessary, requisite, or is wanted, Congress has power to +establish it. This court says, in McCulloch <i>v.</i> The State of +Maryland, (4 Wheat., 316,) "If a certain means to carry into effect +any of the powers expressly given by the Constitution to the +Government of the Union be an appropriate measure, not prohibited by +the Constitution, the degree of its necessity is a question of +legislative discretion, not of judicial cognizance."</p> + +<p>The power to establish post offices and post roads gives power to +Congress to make contracts for the transportation of the mail, and to +punish all who commit depredations upon it in its transit, or at its +places of distribution. Congress has power to regulate commerce, and, +in the exercise of its discretion, to lay an embargo, which suspends +commerce; so, under the same power, harbors, lighthouses, breakwaters, +&c., are constructed.</p> + +<p>Did Chief Justice Marshall, in saying that Congress governed a +Territory, by exercising the combined powers of the Federal and State +Governments, refer to unlimited discretion? A Government which can +make white men slaves? Surely, such a remark in the argument must have +been inadvertently uttered. On the contrary, there is no power in the +Constitution by which Congress can make either white or black men +slaves. In organizing the Government of a Territory, Congress is +limited to means appropriate to the attainment of the constitutional +object. No powers can be exercised which are prohibited by the +Constitution, or which are contrary to its spirit; so that, whether +the object may be the protection of the persons and property of +purchasers of the public lands, or of communities who have been +annexed to the Union by conquest or purchase, they are initiatory to +the establishment of State Governments, and no more power can be +claimed or exercised than is necessary to the attainment of the end. +This is the limitation of all the Federal powers.</p> + +<p>But Congress has no power to regulate the internal concerns of a +State, as of a Territory; consequently, in providing for the +Government of a Territory, to some extent, the combined powers of the +Federal and State Governments are necessarily exercised.<span class="pagenum"><a name="Page_149" id="Page_149">-149-</a></span></p> + +<p>If Congress should deem slaves or free colored persons injurious to +the population of a free Territory, as conducing to lessen the value +of the public lands, or on any other ground connected with the public +interest, they have the power to prohibit them from becoming settlers +in it. This can be sustained on the ground of a sound national policy, +which is so clearly shown in our history by practical results, that it +would seem no considerate individual can question it. And, as regards +any unfairness of such a policy to our Southern brethren, as urged in +the argument, it is only necessary to say that, with one-fourth of the +Federal population of the Union, they have in the slave States a +larger extent of fertile territory than is included in the free +States; and it is submitted, if masters of slaves be restricted from +bringing them into free territory, that the restriction on the free +citizens of non-slaveholding States, by bringing slaves into free +territory, is four times greater than that complained of by the South. +But, not only so; some three or four hundred thousand holders of +slaves, by bringing them into free territory, impose a restriction on +twenty millions of the free States. The repugnancy to slavery would +probably prevent fifty or a hundred freemen from settling in a slave +Territory, where one slaveholder would be prevented from settling in a +free Territory.</p> + +<p>This remark is made in answer to the argument urged, that a +prohibition of slavery in the free Territories is inconsistent with +the continuance of the Union. Where a Territorial Government is +established in a slave Territory, it has uniformly remained in that +condition until the people form a State Constitution; the same course +where the Territory is free, both parties acting in good faith, would +be attended with satisfactory results.</p> + +<p>The sovereignty of the Federal Government extends to the entire limits +of our territory. Should any foreign power invade our jurisdiction, it +would be repelled. There is a law of Congress to punish our citizens +for crimes committed in districts of country where there is no +organized Government. Criminals are brought to certain Territories or +States, designated in the law, for punishment. Death has been +inflicted in Arkansas and in Missouri, on individuals, for murders +committed beyond the limit of any organized Territory or State; and no +one doubts that such a jurisdiction was rightfully exercised. If there +be a right to acquire territory, there necessarily must be an implied +power to govern it. When the military force of the Union shall conquer +a country, may not Congress provide for the government of such +country? This would be an implied power essential to the acquisition +of new territory.<span class="pagenum"><a name="Page_150" id="Page_150">-150-</a></span> This power has been exercised, without doubt of its +constitutionality, over territory acquired by conquest and purchase.</p> + +<p>And when there is a large district of country within the United +States, and not within any State Government, if it be necessary to +establish a temporary Government to carry out a power expressly vested +in Congress—as the disposition of the public lands—may not such +Government be instituted by Congress? How do we read the Constitution? +Is it not a practical instrument?</p> + +<p>In such cases, no implication of a power can arise which is inhibited +by the Constitution, or which may be against the theory of its +construction. As my opinion rests on the third section, these remarks +are made as an intimation that the power to establish a temporary +Government may arise, also, on the other two grounds stated in the +opinion of the court in the insurance case, without weakening the +third section.</p> + +<p>I would here simply remark, that the Constitution was formed for our +whole country. An expansion or contraction of our territory required +no change in the fundamental law. When we consider the men who laid +the foundation of our Government and carried it into operation, the +men who occupied the bench, who filled the halls of legislation and +the Chief Magistracy, it would seem, if any question could be settled +clear of all doubt, it was the power of Congress to establish +Territorial Governments. Slavery was prohibited in the entire +Northwestern Territory, with the approbation of leading men, South and +North; but this prohibition was not retained when this ordinance was +adopted for the government of Southern Territories, where slavery +existed. In a late republication of a letter of Mr. Madison, dated +November 27, 1819, speaking of this power of Congress to prohibit +slavery in a Territory, he infers there is no such power, from the +fact that it has not been exercised. This is not a very satisfactory +argument against any power, as there are but few, if any, subjects on +which the constitutional powers of Congress are exhausted. It is true, +as Mr. Madison states, that Congress, in the act to establish a +Government in the Mississippi Territory, prohibited the importation of +slaves into it from foreign parts; but it is equally true, that in the +act erecting Louisiana into two Territories, Congress declared, "it +shall not be lawful for any person to bring into Orleans Territory, +from any port or place within the limits of the United States, any +slave which shall have been imported since 1798, or which may +hereafter be imported, except by a citizen of the United States who +settles in the Territory, under the penalty of the freedom of such +slave." The inference of Mr. Madison, therefore, against the power of<span class="pagenum"><a name="Page_151" id="Page_151">-151-</a></span> +Congress, is of no force, as it was founded on a fact supposed, which +did not exist.</p> + +<p>It is refreshing to turn to the early incidents of our history, and +learn wisdom from the acts of the great men who have gone to their +account. I refer to a report in the House of Representatives, by John +Randolph, of Roanoke, as chairman of a committee, in March, +1803—fifty-four years ago. From the Convention held at Vincennes, in +Indiana, by their President, and from the people of the Territory, a +petition was presented to Congress, praying the suspension of the +provision which prohibited slavery in that Territory. The report +stated "that the rapid population of the State of Ohio sufficiently +evinces, in the opinion of your committee, that the labor of slaves is +not necessary to promote the growth and settlement of colonies in that +region. That this labor, demonstrably the dearest of any, can only be +employed to advantage in the cultivation of products more valuable +than any known to that quarter of the United States; that the +committee deem it highly dangerous and inexpedient to impair a +provision wisely calculated to promote the happiness and prosperity of +the Northwestern country, and to give strength and security to that +extensive frontier. In the salutary operation of this sagacious and +benevolent restraint, it is believed that the inhabitants will, at no +very distant day, find ample remuneration for a temporary privation of +labor and of emigration." (1 vol. State Papers, Public Lands, 160.)</p> + +<p>The judicial mind of this country, State and Federal, has agreed on no +subject, within its legitimate action, with equal unanimity, as on the +power of Congress to establish Territorial Governments. No court, +State or Federal, no judge or statesman, is known to have had any +doubts on this question for nearly sixty years after the power was +exercised. Such Governments have been established from the sources of +the Ohio to the Gulf of Mexico, extending to the Lakes on the north +and the Pacific Ocean on the west, and from the lines of Georgia to +Texas.</p> + +<p>Great interests have grown up under the Territorial laws over a +country more than five times greater in extent than the original +thirteen States; and these interests, corporate or otherwise, have +been cherished and consolidated by a benign policy, without any one +supposing the law-making power had united with the Judiciary, under +the universal sanction of the whole country, to usurp a jurisdiction +which did not belong to them. Such a discovery at this late date is +more extraordinary than anything which has occurred in the judicial +history of this or any other country. Texas, under a previous +organiza<span class="pagenum"><a name="Page_152" id="Page_152">-152-</a></span>tion, was admitted as a State; but no State can be admitted +into the Union which has not been organized under some form of +government. Without temporary Governments, our public lands could not +have been sold, nor our wildernesses reduced to cultivation, and the +population protected; nor could our flourishing States, West and +South, have been formed.</p> + +<p>What do the lessons of wisdom and experience teach, under such +circumstances, if the new light, which has so suddenly and +unexpectedly burst upon us, be true? Acquiescence; acquiescence under +a settled construction of the Constitution for sixty years, though it +may be erroneous; which has secured to the country an advancement and +prosperity beyond the power of computation.</p> + +<p>An act of James Madison, when President, forcibly illustrates this +policy. He had made up his opinion that Congress had no power under +the Constitution to establish a National Bank. In 1815, Congress +passed a bill to establish a bank. He vetoed the bill, on objections +other than constitutional. In his message, he speaks as a wise +statesman and Chief Magistrate, as follows:</p> + +<p>"Waiving the question of the constitutional authority of the +Legislature to establish an incorporated bank, as being precluded, in +my judgment, by the repeated recognitions under varied circumstances +of the validity of such an institution, in acts of the Legislative, +Executive, and Judicial branches of the Government, accompanied by +indications, in different modes, of a concurrence of the general will +of the nation."</p> + +<p>Has this impressive lesson of practical wisdom become lost to the +present generation?</p> + +<p>If the great and fundamental principles of our Government are never to +be settled, there can be no lasting prosperity. The Constitution will +become a floating waif on the billows of popular excitement.</p> + +<p>The prohibition of slavery north of thirty-six degrees thirty minutes, +and of the State of Missouri, contained in the act admitting that +State into the Union, was passed by a vote of 134, in the House of +Representatives, to 42. Before Mr. Monroe signed the act, it was +submitted by him to his Cabinet, and they held the restriction of +slavery in a Territory to be within the constitutional powers of +Congress. It would be singular, if in 1804 Congress had power to +prohibit the introduction of slaves in Orleans Territory from any +other part of the Union, under the penalty of freedom to the slave, if +the same power embodied in the Missouri compromise, could not be +exercised in 1820.</p> + +<p>But this law of Congress, which prohibits slavery north of<span class="pagenum"><a name="Page_153" id="Page_153">-153-</a></span> Missouri +and of thirty-six degrees thirty minutes, is declared to have been +null and void by my brethren. And this opinion is founded mainly, as I +understand, on the distinction drawn between the ordinance of 1787 and +the Missouri compromise line. In what does the distinction consist? +The ordinance, it is said, was a compact entered into by the +confederated States before the adoption of the Constitution; and that +in the cession of territory authority was given to establish a +Territorial Government.</p> + +<p>It is clear that the ordinance did not go into operation by virtue of +the authority of the Confederation, but by reason of its modification +and adoption by Congress under the Constitution. It seems to be +supposed, in the opinion of the court, that the articles of cession +placed it on a different footing from territories subsequently +acquired. I am unable to perceive the force of this distinction. That +the ordinance was intended for the government of the Northwestern +Territory, and was limited to such Territory, is admitted. It was +extended to Southern Territories, with modifications, by acts of +Congress, and to some Northern Territories. But the ordinance was made +valid by the act of Congress, and without such act could have been of +no force. It rested for its validity on the act of Congress, the same, +in my opinion, as the Missouri compromise line.</p> + +<p>If Congress may establish a Territorial Government in the exercise of +its discretion, it is a clear principle that a court cannot control +that discretion. This being the case, I do not see on what ground the +act is held to be void. It did not purport to forfeit property, or +take it for public purposes. It only prohibited slavery; in doing +which, it followed the ordinance of 1787.</p> + +<p>I will now consider the fourth head, which is: "The effect of taking +slaves into a State or Territory, and so holding them, where slavery +is prohibited."</p> + +<p>If the principle laid down in the case of Prigg <i>v.</i> The State of +Pennsylvania is to be maintained, and it is certainly to be maintained +until overruled, as the law of this court, there can be no difficulty +on this point. In that case, the court says: "The state of slavery is +deemed to be a mere municipal regulation, founded upon and limited to +the range of the territorial laws." If this be so, slavery can exist +nowhere except under the authority of law, founded on usage having the +force of law, or by statutory recognition. And the court further says: +"It is manifest, from this consideration, that if the Constitution had +not contained the clause requiring the rendition of fugitives from +labor, every non-slaveholding State in the Union would have been at +liberty to have declared free all runaway slaves<span class="pagenum"><a name="Page_154" id="Page_154">-154-</a></span> coming within its +limits, and to have given them entire immunity and protection against +the claims of their masters."</p> + +<p>Now, if a slave abscond, he may be reclaimed; but if he accompany his +master into a State or Territory where slavery is prohibited, such +slave cannot be said to have left the service of his master where his +services were legalized. And if slavery be limited to the range of the +territorial laws, how can the slave be coerced to serve in a State or +Territory, not only without the authority of law, but against its +express provisions? What gives the master the right to control the +will of his slave? The local law, which exists in some form. But where +there is no such law, can the master control the will of the slave by +force? Where no slavery exists, the presumption, without regard to +color, is in favor of freedom. Under such a jurisdiction, may the +colored man be levied on as the property of his master by a creditor? +On the decease of the master, does the slave descend to his heirs as +property? Can the master sell him? Any one or all of these acts may be +done to the slave, where he is legally held to service. But where the +law does not confer this power, it cannot be exercised.</p> + +<p>Lord Mansfield held that a slave brought into England was free. Lord +Stowell agreed with Lord Mansfield in this respect, and that the slave +could not be coerced in England; but on her voluntary return to +Antigua, the place of her slave domicil, her former status attached. +The law of England did not prohibit slavery, but did not authorize it. +The jurisdiction which prohibits slavery is much stronger in behalf of +the slave within it, than where it only does not authorize it.</p> + +<p>By virtue of what law is it, that a master may take his slave into +free territory, and exact from him the duties of a slave? The law of +the Territory does not sanction it. No authority can be claimed under +the Constitution of the United States, or any law of Congress. Will it +be said that the slave is taken as property, the same as other +property which the master may own? To this I answer, that colored +persons are made property by the law of the State, and no such power +has been given to Congress. Does the master carry with him the law of +the State from which he removes into the Territory? and does that +enable him to coerce his slave in the Territory? Let us test this +theory. If this may be done by a master from one slave State, it may +be done by a master from every other slave State. This right is +supposed to be connected with the person of the master, by virtue of +the local law. Is it transferable? May it be negotiated, as a +promissory note or bill of exchange? If it be assigned to a man from a +free State, may he coerce the slave by virtue of it? What shall this +thing be<span class="pagenum"><a name="Page_155" id="Page_155">-155-</a></span> denominated? Is it personal or real property? Or is it an +indefinable fragment of sovereignty, which every person carries with +him from his late domicil? One thing is certain, that its origin has +been very recent, and it is unknown to the laws of any civilized +country.</p> + +<p>A slave is brought to England from one of its islands, where slavery +was introduced and maintained by the mother country. Although there is +no law prohibiting slavery in England, yet there is no law authorizing +it; and, for near a century, its courts have declared that the slave +there is free from the coercion of the master. Lords Mansfield and +Stowell agree upon this point, and there is no dissenting authority.</p> + +<p>There is no other description of property which was not protected in +England, brought from one of its slave islands. Does not this show +that property in a human being does not arise from nature or from the +common law, but, in the language of this court, "it is a mere +municipal regulation, founded upon and limited to the range of the +territorial laws?" This decision is not a mere argument, but it is the +end of the law, in regard to the extent of slavery. Until it shall be +overturned, it is not a point for argument; it is obligatory on myself +and my brethren, and on all judicial tribunals over which this court +exercises an appellate power.</p> + +<p>It is said the Territories are common property of the States, and that +every man has a right to go there with his property. This is not +controverted. But the court say a slave is not property beyond the +operation of the local law which makes him such. Never was a truth +more authoritatively and justly uttered by man. Suppose a master of a +slave in a British island owned a million of property in England; +would that authorize him to take his slaves with him to England? The +Constitution, in express terms, recognises the <i>status</i> of slavery as +founded on the municipal law: "No person held to service or labor in +one State, <i>under the laws thereof</i>, escaping into another, shall," +&c. Now, unless the fugitive escape on a place where, by the municipal +law, he is held to labor, this provision affords no remedy to the +master. What can be more conclusive than this? Suppose a slave escape +from a Territory where slavery is not authorized by law, can he be +reclaimed?</p> + +<p>In this case, a majority of the court have said that a slave may be +taken by his master into a Territory of the United States, the same as +a horse, or any other kind of property. It is true, this was said by +the court, as also many other things, which are of no authority. +Nothing that has been said by them, which has not a direct bearing on +the jurisdiction of the court, against which they decided, can be +considered as<span class="pagenum"><a name="Page_156" id="Page_156">-156-</a></span> authority. I shall certainly not regard it as such. The +question of jurisdiction, being before the court, was decided by them +authoritatively, but nothing beyond that question. A slave is not a +mere chattel. He bears the impress of his Maker, and is amenable to +the laws of God and man; and he is destined to an endless existence.</p> + +<p>Under this head I shall chiefly rely on the decisions of the Supreme +Courts of the Southern States, and especially of the State of +Missouri.</p> + +<p>In the first and second sections of the sixth article of the +Constitution of Illinois, it is declared that neither slavery nor +involuntary servitude shall hereafter be introduced into this State, +otherwise than for the punishment of crimes whereof the party shall +have been duly convicted; and in the second section it is declared +that any violation of this article shall effect the emancipation of +such person from his obligation to service. In Illinois, a right of +transit through the State is given the master with his slaves. This is +a matter which, as I suppose, belongs exclusively to the State.</p> + +<p>The Supreme Court of Illinois, in the case of Jarrot <i>v.</i> Jarrot, (2 +Gilmer, 7,) said:</p> + +<p>"After the conquest of this Territory by Virginia, she ceded it to the +United States, and stipulated that the titles and possessions, rights +and liberties, of the French settlers, should be guarantied to them. +This, it has been contended, secured them in the possession of those +negroes as slaves which they held before that time, and that neither +Congress nor the Convention had power to deprive them of it; or, in +other words, that the ordinance and Constitution should not be so +interpreted and understood as applying to such slaves, when it is +therein declared that there shall be neither slavery nor involuntary +servitude in the Northwest Territory, nor in the State of Illinois, +otherwise than in the punishment of crimes. But it was held that those +rights could not be thus protected, but must yield to the ordinance +and Constitution."</p> + +<p>The first slave case decided by the Supreme Court of Missouri, +contained in the reports, was Winny <i>v.</i> Whitesides, (1 Missouri Rep., +473,) at October term, 1824. It appeared that, more than twenty-five +years before, the defendant, with her husband, had removed from +Carolina to Illinois, and brought with them the plaintiff; that they +continued to reside in Illinois three or four years, retaining the +plaintiff as a slave; after which, they removed to Missouri, taking +her with them.</p> + +<p>The court held, that if a slave be detained in Illinois until he be +entitled to freedom, the right of the owner does not revive when he +finds the negro in a slave State.<span class="pagenum"><a name="Page_157" id="Page_157">-157-</a></span></p> + +<p>That when a slave is taken to Illinois by his owner, who takes up his +residence there, the slave is entitled to freedom.</p> + +<p>In the case of <span class="err" title="Transcriber's Note: La Grange">Lagrange</span> <i>v.</i> Chouteau, +(2 Missouri Rep., 20, at May term, 1828,) it was decided that the +ordinance of 1787 was intended as a fundamental law for those who may +choose to live under it, rather than as a penal statute.</p> + +<p>That any sort of residence contrived or permitted by the legal owner +of the slave, upon the faith of secret trusts or contracts, in order +to defeat or evade the ordinance, and thereby introduce slavery <i>de +facto</i>, would entitle such slave to freedom.</p> + +<p>In Julia <i>v.</i> McKinney, (3 Missouri Rep., 279,) it was held, where a +slave was settled in the State of Illinois, but with an intention on +the part of the owner to be removed at some future day, that hiring +said slave to a person to labor for one or two days, and receiving the +pay for the hire, the slave is entitled to her freedom, under the +second section of the sixth article of the Constitution of Illinois.</p> + +<p>Rachel <i>v.</i> Walker (4 Missouri Rep., 350, June term, 1836) is a case +involving, in every particular, the principles of the case before us. +Rachel sued for her freedom; and it appeared that she had been bought +as a slave in Missouri, by Stockton, an officer of the army, taken to +Fort Snelling, where he was stationed, and she was retained there as a +slave a year; and then Stockton removed to Prairie du Chien, taking +Rachel with him as a slave, where he continued to hold her three +years, and then he took her to the State of Missouri, and sold her as +a slave.</p> + +<p>"Fort Snelling was admitted to be on the west side of the Mississippi +river, and north of the State of Missouri, in the territory of the +United States. That Prairie du Chien was in the Michigan Territory, on +the east side of the Mississippi river. Walker, the defendant, held +Rachel under Stockton."</p> + +<p>The court said, in this case:</p> + +<p>"The officer lived in Missouri Territory, at the time he bought the +slave; he sent to a slaveholding country and procured her; this was +his voluntary act, done without any other reason than that of his +convenience; and he and those claiming under him must be holden to +abide the consequences of introducing slavery both in Missouri +Territory and Michigan, contrary to law; and on that ground Rachel was +declared to be entitled to freedom."</p> + +<p>In answer to the argument that, as an officer of the army, the master +had a right to take his slave into free territory, the court said no +authority of law or the Government compelled him to keep the plaintiff +there as a slave.</p> + +<p>"Shall it be said, that because an officer of the army owns<span class="pagenum"><a name="Page_158" id="Page_158">-158-</a></span> slaves in +Virginia, that when, as officer and soldier, he is required to take +the command of a fort in the non-slaveholding States or Territories, +he thereby has a right to take with him as many slaves as will suit +his interests or convenience? It surely cannot be law. If this be +true, the court say, then it is also true that the convenience or +supposed convenience of the officer repeals, as to him and others who +have the same character, the ordinance and the act of 1821, admitting +Missouri into the Union, and also the prohibition of the several laws +and Constitutions of the non-slaveholding States."</p> + +<p>In Wilson <i>v.</i> Melvin, (4 Missouri R., 592,) it appeared the defendant +left Tennessee with an intention of residing in Illinois, taking his +negroes with him. After a month's stay in Illinois, he took his +negroes to St. Louis, and hired them, then returned to Illinois. On +these facts, the inferior court instructed the jury that the defendant +was a sojourner in Illinois. This the Supreme Court held was error, +and the judgment was reversed.</p> + +<p>The case of Dred Scott <i>v.</i> Emerson (15 Missouri R., 682, March term, +1852) will now be stated. This case involved the identical question +before us, Emerson having, since the hearing, sold the plaintiff to +Sandford, the defendant.</p> + +<p>Two of the judges ruled the case, the Chief Justice dissenting. It +cannot be improper to state the grounds of the opinion of the court, +and of the dissent.</p> + +<p>The court say: "Cases of this kind are not strangers in our court. +Persons have been frequently here adjudged to be entitled to their +freedom, on the ground that their masters held them in slavery in +Territories or States in which that institution is prohibited. From +the first case decided in our court, it might be inferred that this +result was brought about by a presumed assent of the master, from the +fact of having voluntarily taken his slave to a place where the +relation of master and slave did not exist. But subsequent cases base +the right to 'exact the forfeiture of emancipation,' as they term it, +on the ground, it would seem, that it was the duty of the courts of +this State to carry into effect the Constitution and laws of other +States and Territories, regardless of the rights, the policy, or the +institutions, of the people of this State."</p> + +<p>And the court say that the States of the Union, in their municipal +concerns, are regarded as foreign to each other; that the courts of +one State do not take notice of the laws of other States, unless +proved as facts, and that every State has the right to determine how +far its comity to other States shall extend; and it is laid down, that +when there is no act of manumission decreed to the free State, the +courts of the slave States<span class="pagenum"><a name="Page_159" id="Page_159">-159-</a></span> cannot be called to give effect to the law +of the free State. Comity, it alleges, between States, depends upon +the discretion of both, which may be varied by circumstances. And it +is declared by the court, "that times are not as they were when the +former decisions on this subject were made." Since then, not only +individuals but States have been possessed with a dark and fell spirit +in relation to slavery, whose gratification is sought in the pursuit +of measures whose inevitable consequence must be the overthrow and +destruction of our Government. Under such circumstances, it does not +behoove the State of Missouri to show the least countenance to any +measure which might gratify this spirit. She is willing to assume her +full responsibility for the existence of slavery within her limits, +nor does she seek to share or divide it with others.</p> + +<p>Chief Justice Gamble dissented from the other two judges. He says:</p> + +<p>"In every slaveholding State in the Union, the subject of emancipation +is regulated by statute; and the forms are prescribed in which it +shall be effected. Whenever the forms required by the laws of the +State in which the master and slave are resident are complied with, +the emancipation is complete, and the slave is free. If the right of +the person thus emancipated is subsequently drawn in question in +another State, it will be ascertained and determined by the law of the +State in which the slave and his former master resided; and when it +appears that such law has been complied with, the right to freedom +will be fully sustained in the courts of all the slaveholding States, +although the act of emancipation may not be in the form required by +law in which the court sits.</p> + +<p>"In all such cases, courts continually administer the law of the +country where the right was acquired; and when that law becomes known +to the court, it is just as much a matter of course to decide the +rights of the parties according to its requirements, as it is to +settle the title of real estate situated in our State by its own +laws."</p> + +<p>This appears to me a most satisfactory answer to the argument of the +court. Chief Justice continues:</p> + +<p>"The perfect equality of the different States lies at the foundation +of the Union. As the institution of slavery in the States is one over +which the Constitution of the United States gives no power to the +General Government, it is left to be adopted or rejected by the +several States, as they think best; nor can any one State, or number +of States, claim the right to interfere with any other State upon the +question of admitting or excluding this institution.</p> + +<p>"A citizen of Missouri, who removes with his slave to Illi<span class="pagenum"><a name="Page_160" id="Page_160">-160-</a></span>nois, has +no right to complain that the fundamental law of that State to which +he removes, and in which he makes his residence, dissolves the +relation between him and his slave. It is as much his own voluntary +act, as if he had executed a deed of emancipation. No one can pretend +ignorance of this constitutional provision, and," he says, "the +decisions which have heretofore been made in this State, and in many +other slaveholding States, give effect to this and other similar +provisions, on the ground that the master, by making the free State +the residence of his slave, has submitted his right to the operation +of the law of such State; and this," he says, "is the same in law as a +regular deed of emancipation."</p> + +<p>He adds:</p> + +<p>"I regard the question as conclusively settled by repeated +adjudications of this court, and, if I doubted or denied the propriety +of those decisions, I would not feel myself any more at liberty to +overturn them, than I would any other series of decisions by which the +law of any other question was settled. There is with me," he says, +"nothing in the law relating to slavery which distinguishes it from +the law on any other subject, or allows any more accommodation to the +temporary public excitements which are gathered around it."</p> + +<p>"In this State," he says, "it has been recognised from the beginning +of the Government as a correct position in law, that a master who +takes his slave to reside in a State or Territory where slavery is +prohibited, thereby emancipates his slave." These decisions, which +come down to the year 1837, seemed to have so fully settled the +question, that since that time there has been no case bringing it +before the court for any reconsideration, until the present. In the +case of Winny <i>v.</i> Whitesides, the question was made in the argument, +"whether one nation would execute the penal laws of another," and the +court replied in this language, (Huberus, quoted in 4 Dallas,) which +says, "personal rights or disabilities obtained or communicated by the +laws of any particular place are of a nature which accompany the +person wherever he goes;" and the Chief Justice observed, in the case +of Rachel <i>v.</i> Walker, the act of Congress called the Missouri +compromise was held as operative as the ordinance of 1787.</p> + +<p>When Dred Scott, his wife and children, were removed from Fort +Snelling to Missouri, in 1838, they were free, as the law was then +settled, and continued for fourteen years afterwards, up to 1852, when +the above decision was made. Prior to this, for nearly thirty years, +as Chief Justice Gamble declares, the residence of a master with his +slave in the State of Illinois, or in the Territory north of Missouri, +where slavery was prohibited<span class="pagenum"><a name="Page_161" id="Page_161">-161-</a></span> by the act called the Missouri +compromise, would manumit the slave as effectually as if he had +executed a deed of emancipation; and that an officer of the army who +takes his slave into that State or Territory, and holds him there as a +slave, liberates him the same as any other citizen—and down to the +above time it was settled by numerous and uniform decisions; and that +on the return of the slave to Missouri, his former condition of +slavery did not attach. Such was the settled law of Missouri until the +decision of Scott and Emerson.</p> + +<p>In the case of Sylvia <i>v.</i> Kirby, (17 Misso. Rep., 434,) the court +followed the above decision, observing it was similar in all respects +to the case of Scott and Emerson.</p> + +<p>This court follows the established construction of the statutes of a +State by its Supreme Court. Such a construction is considered as a +part of the statute, and we follow it to avoid two rules of property +in the same State. But we do not follow the decisions of the Supreme +Court of a State beyond a statutory construction as a rule of decision +for this court. State decisions are always viewed with respect and +treated as authority; but we follow the settled construction of the +statutes, not because it is of binding authority, but in pursuance of +a rule of judicial policy.</p> + +<p>But there is no pretence that the case of Dred Scott <i>v.</i> Emerson +turned upon the construction of a Missouri statute; nor was there any +established rule of property which could have rightfully influenced +the decision. On the contrary, the decision overruled the settled law +for near thirty years.</p> + +<p>This is said by my brethren to be a Missouri question; but there is +nothing which gives it this character, except that it involves the +right to persons claimed as slaves who reside in Missouri, and the +decision was made by the Supreme Court of that State. It involves a +right claimed under an act of Congress and the Constitution of +Illinois, and which cannot be decided without the consideration and +construction of those laws. But the Supreme Court of Missouri held, in +this case, that it will not regard either of those laws, without which +there was no case before it; and Dred Scott, having been a slave, +remains a slave. In this respect it is admitted this is a Missouri +question—a case which has but one side, if the act of Congress and +the Constitution of Illinois are not recognised.</p> + +<p>And does such a case constitute a rule of decision for this court—a +case to be followed by this court? The course of decision so long and +so uniformly maintained established a comity or law between Missouri +and the free States and Territories where slavery was prohibited, +which must be somewhat regarded in this case. Rights sanctioned for +twenty-eight years<span class="pagenum"><a name="Page_162" id="Page_162">-162-</a></span> ought not and cannot be repudiated, with any +semblance of justice, by one or two decisions, influenced, as +declared, by a determination to counteract the excitement against +slavery in the free States.</p> + +<p>The courts of Louisiana having held, for a series of years, that where +a master took his slave to France, or any free State, he was entitled +to freedom, and that on bringing him back the status of slavery did +not attach, the Legislature of Louisiana declared by an act that the +slave should not be made free under such circumstances. This regulated +the rights of the master from the time the act took effect. But the +decision of the Missouri court, reversing a former decision, affects +all previous decisions, technically, made on the same principles, +unless such decisions are protected by the lapse of time or the +statute of limitations. Dred Scott and his family, beyond all +controversy, were free under the decisions made for twenty-eight +years, before the case of Scott <i>v.</i> Emerson. This was the undoubted +law of Missouri for fourteen years after Scott and his family were +brought back to that State. And the grave question arises, whether +this law may be so disregarded as to enslave free persons. I am +strongly inclined to think that a rule of decision so well settled as +not to be questioned, cannot be annulled by a single decision of the +court. Such rights may be inoperative under the decision in future; +but I cannot well perceive how it can have the same effect in prior +cases.</p> + +<p>It is admitted, that when a former decision is reversed, the technical +effect of the judgment is to make all previous adjudications on the +same question erroneous. But the case before us was not that the law +had been erroneously construed, but that, under the circumstances +which then existed, that law would not be recognised; and the reason +for this is declared to be the excitement against the institution of +slavery in the free States. While I lament this excitement as much as +any one, I cannot assent that it shall be made a basis of judicial +action.</p> + +<p>In 1816, the common law, by statute, was made a part of the law of +Missouri; and that includes the great principles of international law. +These principles cannot be abrogated by judicial decisions. It will +require the same exercise of power to abolish the common law, as to +introduce it. International law is founded in the opinions generally +received and acted on by civilized nations, and enforced by moral +sanctions. It becomes a more authoritative system when it results from +special compacts, founded on modified rules, adapted to the exigencies +of human society; it is in fact an international morality, adapted to +the best interests of nations. And in regard to the States<span class="pagenum"><a name="Page_163" id="Page_163">-163-</a></span> of this +Union, on the subject of slavery, it is eminently fitted for a rule of +action, subject to the Federal Constitution. "The laws of nations are +but the natural rights of man applied to nations." (Vattel.)</p> + +<p>If the common law have the force of a statutory enactment in Missouri, +it is clear, as it seems to me, that a slave who, by a residence in +Illinois in the service of his master, becomes entitled to his +freedom, cannot again be reduced to slavery by returning to his former +domicil in a slave State. It is unnecessary to say what legislative +power might do by a general act in such a case, but it would be +singular if a freeman could be made a slave by the exercise of a +judicial discretion. And it would be still more extraordinary if this +could be done, not only in the absence of special legislation, but in +a State where the common law is in force.</p> + +<p>It is supposed by some, that the third article in the treaty of +cession of Louisiana to this country, by France, in 1803, may have +some bearing on this question. The article referred to provides, "that +the inhabitants of the ceded territory shall be incorporated into the +Union, and enjoy all the advantages of citizens of the United States, +and in the mean time they shall be maintained and protected in the +free enjoyment of their liberty, property, and the religion they +profess."</p> + +<p>As slavery existed in Louisiana at the time of the cession, it is +supposed this is a guaranty that there should be no change in its +condition.</p> + +<p>The answer to this is, in the first place, that such a subject does +not belong to the treaty-making power; and any such arrangement would +have been nugatory. And, in the second place, by no admissible +construction can the guaranty be carried further than the protection +of property in slaves at that time in the ceded territory. And this +has been complied with. The organization of the slave States of +Louisiana, Missouri, and Arkansas, embraced every slave in Louisiana +at the time of the cession. This removes every ground of objection +under the treaty. There is therefore no pretence, growing out of the +treaty, that any part of the territory of Louisiana, as ceded, beyond +the organized States, is slave territory.</p> + +<p>Under the fifth head, we were to consider whether the status of +slavery attached to the plaintiff and wife, on their return to +Missouri.</p> + +<p>This doctrine is not asserted in the late opinion of the Supreme Court +of Missouri, and up to 1852 the contrary doctrine was uniformly +maintained by that court.</p> + +<p>In its late decision, the court say that it will not give effect in +Missouri to the laws of Illinois, or the law of Congress<span class="pagenum"><a name="Page_164" id="Page_164">-164-</a></span> called the +Missouri compromise. This was the effect of the decision, though its +terms were, that the court would not take notice, judicially, of those +laws.</p> + +<p>In 1851, the Court of Appeals of South Carolina recognised the +principle, that a slave, being taken to a free State, became free. +(Commonwealth <i>v.</i> Pleasants, 10 Leigh Rep., 697.) In Betty <i>v.</i> +Horton, the Court of Appeals held that the freedom of the slave was +acquired by the action of the laws of Massachusetts, by the said slave +being taken there. (5 Leigh Rep., 615.)</p> + +<p>The slave States have generally adopted the rule, that where the +master, by a residence with his slave in a State or Territory where +slavery is prohibited, the slave was entitled to his freedom +everywhere. This was the settled doctrine of the Supreme Court of +Missouri. It has been so held in Mississippi, in Virginia, in +Louisiana, formerly in Kentucky, Maryland, and in other States.</p> + +<p>The law, where a contract is made and is to be executed, governs it. +This does not depend upon comity, but upon the law of the contract. +And if, in the language of the Supreme Court of Missouri, the master, +by taking his slave to Illinois, and employing him there as a slave, +emancipates him as effectually as by a deed of emancipation, is it +possible that such an act is not matter for adjudication in any slave +State where the master may take him? Does not the master assent to the +law, when he places himself under it in a free State?</p> + +<p>The States of Missouri and Illinois are bounded by a common line. The +one prohibits slavery, the other admits it. This has been done by the +exercise of that sovereign power which appertains to each. We are +bound to respect the institutions of each, as emanating from the +voluntary action of the people. Have the people of either any right to +disturb the relations of the other? Each State rests upon the basis of +its own sovereignty, protected by the Constitution. Our Union has been +the foundation of our prosperity and national glory. Shall we not +cherish and maintain it? This can only be done by respecting the legal +rights of each State.</p> + +<p>If a citizen of a free State shall entice or enable a slave to escape +from the service of his master, the law holds him responsible, not +only for the loss of the slave, but he is liable to be indicted and +fined for the misdemeanor. And I am bound here to say, that I have +never found a jury in the four States which constitute my circuit, +which have not sustained this law, where the evidence required them to +sustain it. And it is proper that I should also say, that more cases +have arisen in my circuit, by reason of its extent and locality, than +in all<span class="pagenum"><a name="Page_165" id="Page_165">-165-</a></span> other parts of the Union. This has been done to vindicate the +sovereign rights of the Southern States, and protect the legal +interests of our brethren of the South.</p> + +<p>Let these facts be contrasted with the case now before the court. +Illinois has declared in the most solemn and impressive form that +there shall be neither slavery nor involuntary servitude in that +State, and that any slave brought into it, with a view of becoming a +resident, shall be emancipated. And effect has been given to this +provision of the Constitution by the decision of the Supreme Court of +that State. With a full knowledge of these facts, a slave is brought +from Missouri to Rock Island, in the State of Illinois, and is +retained there as a slave for two years, and then taken to Fort +Snelling, where slavery is prohibited by the Missouri compromise act, +and there he is detained two years longer in a state of slavery. +Harriet, his wife, was also kept at the same place four years as a +slave, having been purchased in Missouri. They were then removed to +the State of Missouri, and sold as slaves, and in the action before us +they are not only claimed as slaves, but a majority of my brethren +have held that on their being returned to Missouri the status of +slavery attached to them.</p> + +<p>I am not able to reconcile this result with the respect due to the +State of Illinois. Having the same rights of sovereignty as the State +of Missouri in adopting a Constitution, I can perceive no reason why +the institutions of Illinois should not receive the same consideration +as those of Missouri. Allowing to my brethren the same right of +judgment that I exercise myself, I must be permitted to say that it +seems to me the principle laid down will enable the people of a slave +State to introduce slavery into a free State, for a longer or shorter +time, as may suit their convenience; and by returning the slave to the +State whence he was brought, by force or otherwise, the status of +slavery attaches, and protects the rights of the master, and defies +the sovereignty of the free State. There is no evidence before us that +Dred Scott and his family returned to Missouri voluntarily. The +contrary is inferable from the agreed case: "In the year 1838, Dr. +Emerson removed the plaintiff and said Harriet, and their daughter +Eliza, from Fort Snelling to the State of Missouri, where they have +ever since resided." This is the agreed case; and can it be inferred +from this that Scott and family returned to Missouri voluntarily? He +was removed; which shows that he was passive, as a slave, having +exercised no volition on the subject. He did not resist the master by +absconding or force. But that was not sufficient to bring him within +Lord Stowell's decision; he must have acted voluntarily. It would be +a<span class="pagenum"><a name="Page_166" id="Page_166">-166-</a></span> mockery of law and an outrage on his rights to coerce his return, +and then claim that it was voluntary, and on that ground that his +former status of slavery attached.</p> + +<p>If the decision be placed on this ground, it is a fact for a jury to +decide, whether the return was voluntary, or else the fact should be +distinctly admitted. A presumption against the plaintiff in this +respect, I say with confidence, is not authorized from the facts +admitted.</p> + +<p>In coming to the conclusion that a voluntary return by Grace to her +former domicil, slavery attached, Lord Stowell took great pains to +show that England forced slavery upon her colonies, and that it was +maintained by numerous acts of Parliament and public policy, and, in +short, that the system of slavery was not only established by Great +Britain in her West Indian colonies, but that it was popular and +profitable to many of the wealthy and influential people of England, +who were engaged in trade, or owned and cultivated plantations in the +colonies. No one can read his elaborate views, and not be struck with +the great difference between England and her colonies, and the free +and slave States of this Union. While slavery in the colonies of +England is subject to the power of the mother country, our States, +especially in regard to slavery, are independent, resting upon their +own sovereignties, and subject only to international laws, which apply +to independent States.</p> + +<p>In the case of Williams, who was a slave in Granada, having run away, +came to England, Lord Stowell said: "The four judges all concur in +this—that he was a slave in Granada, though a free man in England, +and he would have continued a free man in all other parts of the world +except Granada."</p> + +<p>Strader <i>v.</i> Graham (10 Howard, 82, and 18 Curtis, 305) has been cited +as having a direct bearing in the case before us. In that case the +court say: "It was exclusively in the power of Kentucky to determine, +for itself, whether the employment of slaves in another State should +or should not make them free on their return." No question was before +the court in that case, except that of jurisdiction. And any opinion +given on any other point is <i>obiter dictum</i>, and of no authority. In +the conclusion of his opinion, the Chief Justice said: "In every view +of the subject, therefore, this court has no jurisdiction of the case, +and the writ of error must on that ground be dismissed."</p> + +<p>In the case of Spencer <i>v.</i> Negro Dennis, (8 Gill's Rep., 321,) the +court say: "Once free, and always free, is the maxim of Maryland law +upon the subject. Freedom having once vested, by no compact between +the master and the liberated slave,<span class="pagenum"><a name="Page_167" id="Page_167">-167-</a></span> nor by any condition subsequent, +attached by the master to the gift of freedom, can a state of slavery +be reproduced."</p> + +<p>In Hunter <i>v.</i> <span class="err" title="Transcriber's Note: Fulcher">Bulcher</span>, (1 Leigh, 172:)</p> + +<p>"By a statute of Maryland of 1796, all slaves brought into that State +to reside are declared free; a Virginian-born slave is carried by his +master to Maryland; the master settled there, and keeps the slave +there in bondage for twelve years, the statute in force all the time; +then he brings him as a slave to Virginia, and sells him there. +Adjudged, in an action brought by the man against the purchaser, that +he is free."</p> + +<p>Judge Kerr, in the case, says:</p> + +<p>"Agreeing, as I do, with the general view taken in this case by my +brother Green, I would not add a word, but to mark the exact extent to +which I mean to go. The law of Maryland having enacted that slaves +carried into that State for sale or to reside shall be free, and the +owner of the slave here having carried him to Maryland, and +voluntarily submitting himself and the slave to that law, it governs +the case."</p> + +<p>In every decision of a slave case prior to that of Dred Scott <i>v.</i> +Emerson, the Supreme Court of Missouri considered it as turning upon +the Constitution of Illinois, the ordinance of 1787, or the Missouri +compromise act of 1820. The court treated these acts as in force, and +held itself bound to execute them, by declaring the slave to be free +who had acquired a domicil under them with the consent of his master.</p> + +<p>The late decision reversed this whole line of adjudication, and held +that neither the Constitution and laws of the States, nor acts of +Congress in relation to Territories, could be judicially noticed by +the Supreme Court of Missouri. This is believed to be in conflict with +the decisions of all the courts in the Southern States, with some +exceptions of recent cases.</p> + +<p>In Marie Louise <i>v.</i> <span class="err" title="Transcriber's Note: Marot">Morat</span> et al., (9 Louisiana Rep., <span class="err" title="Transcriber's Note: 473">475</span>,) +it was held, where a slave having been taken to the kingdom of France +or other country by the owner, where slavery is not tolerated, +operates on the condition of the slave, and produces immediate +emancipation; and that, where a slave thus becomes free, the master +cannot reduce him again to slavery.</p> + +<p>Josephine <i>v.</i> Poultney, (Louisiana Annual Rep., 329,) "where the +owner removes with a slave into a State in which slavery is +prohibited, with the intention of residing there, the slave will be +thereby emancipated, and their subsequent return to the State of +Louisiana cannot restore the relation of master and slave." To the +same import are the cases of Smith <i>v.</i> Smith, (13 Louisiana Rep., +441; Thomas <i>v.</i> Generis, Louisiana Rep., 483; Harry et al. <i>v.</i> +Decker and Hopkins, Walker's Mississippi Rep., 36.) It was held that, +"slaves within the ju<span class="pagenum"><a name="Page_168" id="Page_168">-168-</a></span>risdiction of the Northwestern Territory became +freemen by virtue of the ordinance of 1787, and can assert their claim +to freedom in the courts of Mississippi." (Griffith <i>v.</i> Fanny, 1 +Virginia Rep., 143.) It was decided that a negro held in servitude in +Ohio, under a deed executed in Virginia, is entitled to freedom by the +Constitution of Ohio.</p> + +<p>The case of Rhodes <i>v.</i> Bell (2 Howard, 307; 15 Curtis, 152) involved +the main principle in the case before us. A person residing in +Washington city purchased a slave in Alexandria, and brought him to +Washington. Washington continued under the law of Maryland, Alexandria +under the law of Virginia. The act of Maryland of November, 1796, (2 +Maxcy's Laws, 351,) declared any one who shall bring any negro, +mulatto or other slave, into Maryland, such slave should be free. The +above slave, by reason of his being brought into Washington city, was +declared by this court to be free. This, it appears to me, is a much +stronger case against the slave than the facts in the case of Scott.</p> + +<p>In Bush <i>v.</i> White, (3 Monroe, 104,) the court say:</p> + +<p>"That the ordinance was paramount to the Territorial laws, and +restrained the legislative power there as effectually as a +Constitution in an organized State. It was a public act of the +Legislature of the Union, and a part of the supreme law of the land; +and, as such, this court is as much bound to take notice of it as it +can be of any other law."</p> + +<p>In the case of Rankin <i>v.</i> Lydia, before cited, Judge Mills, speaking +for the Court of Appeals of Kentucky, says:</p> + +<p>"If, by the positive provision in our code, we can and must hold our +slaves in the one case, and statutory provisions equally positive +decide against that right in the other, and liberate the slave, he +must, by an authority equally imperious, be declared free. Every +argument which supports the right of the master on one side, based +upon the force of written law, must be equally conclusive in favor of +the slave, when he can point out in the statute the clause which +secures his freedom."</p> + +<p>And he further said:</p> + +<p>"Free people of color in all the States are, it is believed, quasi +citizens, or, at least, denizens. Although none of the States may +allow them the privilege of office and suffrage, yet all other civil +and conventional rights are secured to them; at least, such rights +were evidently secured to them by the ordinance in question for the +government of Indiana. If these rights are vested in that or any other +portion of the United States, can it be compatible with the spirit of +our confederated Government to deny their existence in any other part? +Is there less comity existing between State and State, or State<span class="pagenum"><a name="Page_169" id="Page_169">-169-</a></span> and +Territory, than exists between the despotic Governments of Europe?"</p> + +<p>These are the words of a learned and great judge, born and educated in +a slave State.</p> + +<p>I now come to inquire, under the sixth and last head, "whether the +decisions of the Supreme Court of Missouri, on the question before us, +are binding on this court."</p> + +<p>While we respect the learning and high intelligence of the State +courts, and consider their decisions, with others, as authority, we +follow them only where they give a construction to the State statutes. +On this head, I consider myself fortunate in being able to turn to the +decision of this court, given by Mr. Justice Grier, in Pease <i>v.</i> +Peck, a case from the State of Michigan, (18 Howard, 589,) decided in +December term, 1855. Speaking for the court, Judge Grier said:</p> + +<p>"We entertain the highest respect for that learned court, (the Supreme +Court of Michigan) and in any question affecting the construction of +their own laws, where we entertain any doubt, would be glad to be +relieved from doubt and responsibility by reposing on their decision. +There are, it is true, many dicta to be found in our decisions, +averring that the courts of the United States are bound to follow the +decisions of the State courts on the construction of their own laws. +But although this may be correct, yet a rather strong expression of a +general rule, it cannot be received as the annunciation of a maxim of +universal application. Accordingly, our reports furnish many cases of +exceptions to it. In all cases where there is a settled construction +of the laws of a State, by its highest judicature established by +admitted precedent, it is the practice of the courts of the United +States to receive and adopt it, without criticism or further inquiry. +When the decisions of the State court are not consistent, we do not +feel bound to follow the last, if it is contrary to our own +convictions; and much more is this the case where, after a long course +of consistent decisions, some new light suddenly springs up, or an +excited public opinion has elicited new doctrines subversive of former +safe precedent."</p> + +<p>These words, it appears to me, have a stronger application to the case +before us than they had to the cause in which they were spoken as the +opinion of this court; and I regret that they do not seem to be as +fresh in the recollection of some of my brethren as in my own. For +twenty-eight years, the decisions of the Supreme Court of Missouri +were consistent on all the points made in this case. But this +consistent course was suddenly terminated, whether by some new light +suddenly springing up, or an excited public opinion, or both, it is +not<span class="pagenum"><a name="Page_170" id="Page_170">-170-</a></span> necessary to say. In the case of Scott <i>v.</i> Emerson, in 1852, +they were overturned and repudiated.</p> + +<p>This, then, is the very case in which seven of my brethren declared +they would not follow the last decision. On this authority I may well +repose. I can desire no other or better basis.</p> + +<p>But there is another ground which I deem conclusive, and which I will +re-state.</p> + +<p>The Supreme Court of Missouri refused to notice the act of Congress or +the Constitution of Illinois, under which Dred Scott, his wife and +children, claimed that they are entitled to freedom.</p> + +<p>This being rejected by the Missouri court, there was no case before +it, or least it was a case with only one side. And this is the case +which, in the opinion of this court, we are bound to follow. The +Missouri court disregards the express provisions of an act of Congress +and the Constitution of a sovereign State, both of which laws for +twenty-eight years it had not only regarded, but carried into effect.</p> + +<p>If a State court may do this, on a question involving the liberty of a +human being, what protection do the laws afford? So far from this +being a Missouri question, it is a question, as it would seem, within +the twenty-fifth section of the judiciary act, where a right to +freedom being set up under the act of Congress, and the decision being +against such right, it may be brought for revision before this court, +from the Supreme Court of Missouri.</p> + +<p>I think the judgment of the court below should be reversed.</p> + +<hr class="med" /> + +<p>Mr. Justice <a name="CURTIS" id="CURTIS"></a>CURTIS dissenting.</p> + +<p>I dissent from the opinion pronounced by the Chief Justice, and from +the judgment which the majority of the court think it proper to render +in this case. The plaintiff alleged, in his declaration, that he was a +citizen of the State of Missouri, and that the defendant was a citizen +of the State of New York. It is not doubted that it was necessary to +make each of these allegations, to sustain the jurisdiction of the +Circuit Court. The defendant denied, by a plea to the jurisdiction, +either sufficient or insufficient, that the plaintiff was a citizen of +the State of Missouri. The plaintiff demurred to that plea. The +Circuit Court adjudged the plea insufficient, and the first question +for our consideration is, whether the sufficiency of that plea is +before this court for judgment, upon this writ of error. The part of +the judicial power of the United States, conferred by Congress on the +Circuit Courts, being limited to certain described cases and +controversies, the question whether a partic<span class="pagenum"><a name="Page_171" id="Page_171">-171-</a></span>ular case is within the +cognizance of a Circuit Court, may be raised by a plea to the +jurisdiction of such court. When that question has been raised, the +Circuit Court must, in the first instance, pass upon and determine it. +Whether its determination be final, or subject to review by this +appellate court, must depend upon the will of Congress; upon which +body the Constitution has conferred the power, with certain +restrictions, to establish inferior courts, to determine their +jurisdiction, and to regulate the appellate power of this court. The +twenty-second section of the judiciary act of 1789, which allows a +writ of error from final judgments of Circuit Courts, provides that +there shall be no reversal in this court, on such writ of error, for +error in ruling any plea in abatement, <i>other than a plea to the +jurisdiction of the court</i>. Accordingly it has been held, from the +origin of the court to the present day, that Circuit Courts have not +been made by Congress the final judges of their own jurisdiction in +civil cases. And that when a record comes here upon a writ of error or +appeal, and, on its inspection, it appears to this court that the +Circuit Court had not jurisdiction, its judgment must be reversed, and +the cause remanded, to be dismissed for want of jurisdiction.</p> + +<p>It is alleged by the defendant in error, in this case, that the plea +to the jurisdiction was a sufficient plea; that it shows, on +inspection of its allegations, confessed by the demurrer, that the +plaintiff was not a citizen of the State of Missouri; that upon this +record, it must appear to this court that the case was not within the +judicial power of the United States, as defined and granted by the +Constitution, because it was not a suit by a citizen of one State +against a citizen of another State.</p> + +<p>To this it is answered, first, that the defendant, by pleading over, +after the plea to the jurisdiction was adjudged insufficient, finally +waived all benefit of that plea.</p> + +<p>When that plea was adjudged insufficient, the defendant was obliged to +answer over. He held no alternative. He could not stop the further +progress of the case in the Circuit Court by a writ of error, on which +the sufficiency of his plea to the jurisdiction could be tried in this +court, because the judgment on that plea was not final, and no writ of +error would lie. He was forced to plead to the merits. It cannot be +true, then, that he waived the benefit of his plea to the jurisdiction +by answering over. Waiver includes consent. Here, there was no +consent. And if the benefit of the plea was finally lost, it must be, +not by any waiver, but because the laws of the United States have not +provided any mode of reviewing the decision of the Circuit Court on +such a plea, when that decision is against the defendant. This is not +the<span class="pagenum"><a name="Page_172" id="Page_172">-172-</a></span> law. Whether the decision of the Circuit Court on a plea to the +jurisdiction be against the plaintiff, or against the defendant, the +losing party may have any alleged error in law, in ruling such a plea, +examined in this court on a writ of error, when the matter in +controversy exceeds the sum or value of two thousand dollars. If the +decision be against the plaintiff, and his suit dismissed for want of +jurisdiction, the judgment is technically final, and he may at once +sue out his writ of error. (Mollan <i>v.</i> Torrance, 9 Wheat., 537.) If +the decision be against the defendant, though he must answer over, and +wait for a final judgment in the cause, he may then have his writ of +error, and upon it obtain the judgment of this court on any question +of law apparent on the record, touching the jurisdiction. The fact +that he pleaded over to the merits, under compulsion, can have no +effect on his right to object to the jurisdiction. If this were not +so, the condition of the two parties would be grossly unequal. For if +a plea to the jurisdiction were ruled against the plaintiff, he could +at once take his writ of error, and have the ruling reviewed here; +while, if the same plea were ruled against the defendant, he must not +only wait for a final judgment, but could in no event have the ruling +of the Circuit Court upon the plea reviewed by this court. I know of +no ground for saying that the laws of the United States have thus +discriminated between the parties to a suit in its courts.</p> + +<p>It is further objected, that as the judgment of the Circuit Court was +in favor of the defendant, and the writ of error in this cause was +sued out by the plaintiff, the defendant is not in a condition to +assign any error in the record, and therefore this court is precluded +from considering the question whether the Circuit Court had +jurisdiction.</p> + +<p>The practice of this court does not require a technical assignment of +errors. (See the rule.) Upon a writ of error, the whole record is open +for inspection; and if any error be found in it, the judgment is +reversed. (Bank of U.S. <i>v.</i> Smith, 11 Wheat., 171.)</p> + +<p>It is true, as a general rule, that the court will not allow a party +to rely on anything as cause for reversing a judgment, which was for +his advantage. In this, we follow an ancient rule of the common law. +But so careful was that law of the preservation of the course of its +courts, that it made an exception out of that general rule, and +allowed a party to assign for error that which was for his advantage, +if it were a departure by the court itself from its settled course of +procedure. The cases on this subject are collected in Bac. Ab., Error +H. 4. And this court followed this practice in Capron <i>v.</i> Van +Noor<span class="pagenum"><a name="Page_173" id="Page_173">-173-</a></span>den, (2 Cranch, 126,) where the plaintiff below procured the +reversal of a judgment for the defendant, on the ground that the +plaintiff's allegations of citizenship had not shown jurisdiction.</p> + +<p>But it is not necessary to determine whether the defendant can be +allowed to assign want of jurisdiction as an error in a judgment in +his own favor. The true question is, not what either of the parties +may be allowed to do, but whether this court will affirm or reverse a +judgment of the Circuit Court on the merits, when it appears on the +record, by a plea to the jurisdiction, that it is a case to which the +judicial power of the United States does not extend. The course of the +court is, where no motion is made by either party, on its own motion, +to reverse such a judgment for want of jurisdiction, not only in cases +where it is shown, negatively, by a plea to the jurisdiction, that +jurisdiction does not exist, but even where it does not appear, +affirmatively, that it does exist. (Pequignot <i>v.</i> The Pennsylvania +R.R. Co., 16 How., 104.) It acts upon the principle that the judicial +power of the United States must not be exerted in a case to which it +does not extend, even if both parties desire to have it exerted. +(Cutler <i>v.</i> Rae, 7 How., 729.) I consider, therefore, that when there +was a plea to the jurisdiction of the Circuit Court in a case brought +here by a writ of error, the first duty of this court is, <i>sua +sponte</i>, if not moved to it by either party, to examine the +sufficiency of that plea; and thus to take care that neither the +Circuit Court nor this court shall use the judicial power of the +United States in a case to which the Constitution and laws of the +United States have not extended that power.</p> + +<p>I proceed, therefore, to examine the plea to the jurisdiction.</p> + +<p>I do not perceive any sound reason why it is not to be judged by the +rules of the common law applicable to such pleas. It is true, where +the jurisdiction of the Circuit Court depends on the citizenship of +the parties, it is incumbent on the plaintiff to allege on the record +the necessary citizenship; but when he has done so, the defendant must +interpose a plea in abatement, the allegations whereof show that the +court has not jurisdiction; and it is incumbent on him to prove the +truth of his plea.</p> + +<p>In Sheppard <i>v.</i> Graves, (14 How., 27,) the rules on this subject are +thus stated in the opinion of the court: "That although, in the courts +of the United States, it is necessary to set forth the grounds of +their cognizance as courts of limited jurisdiction, yet wherever +jurisdiction shall be averred in the pleadings, in conformity with the +laws creating those courts, it must be taken, <i>prima facie</i>, as +existing; and it is incumbent<span class="pagenum"><a name="Page_174" id="Page_174">-174-</a></span> on him who would impeach that +jurisdiction for causes dehors the pleading, to allege and prove such +causes; that the necessity for the allegation, and the burden of +sustaining it by proof, both rest upon the party taking the +exception." These positions are sustained by the authorities there +cited, as well as by Wickliffe <i>v.</i> Owings, (17 How., 47.)</p> + +<p>When, therefore, as in this case, the necessary averments as to +citizenship are made on the record, and jurisdiction is assumed to +exist, and the defendant comes by a plea to the jurisdiction to +displace that presumption, he occupies, in my judgment, precisely the +position described in Bacon Ab., Abatement: "Abatement, in the general +acceptation of the word, signifies a plea, put in by the defendant, in +which he shows cause to the court why he should not be impleaded; or, +if at all, not in the manner and form he now is."</p> + +<p>This being, then, a plea in abatement, to the jurisdiction of the +court, I must judge of its sufficiency by those rules of the common +law applicable to such pleas.</p> + +<p>The plea was as follows: "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 cognizance 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."</p> + +<p>The plaintiff demurred, and the judgment of the Circuit Court was, +that the plea was insufficient.</p> + +<p>I cannot treat this plea as a general traverse of the citizenship +alleged by the plaintiff. Indeed, if it were so treated, the plea was +clearly bad, for it concludes with a verification, and not to the +country, as a general traverse should. And though this defect in a +plea in bar must be pointed out by a special demurrer, it is never +necessary to demur specially to a plea in abatement; all matters, +though of form only, may be taken advantage of upon a general demurrer +to such a plea. (Chitty on Pl., 465.)</p> + +<p>The truth is, that though not drawn with the utmost technical +accuracy, it is a special traverse of the plaintiff's allegation<span class="pagenum"><a name="Page_175" id="Page_175">-175-</a></span> of +citizenship, and was a suitable and proper mode of traverse under the +circumstances. By reference to Mr. Stephen's description of the uses +of such a traverse, contained in his excellent analysis of pleadings, +(Steph. on Pl., 176,) it will be seen how precisely this plea meets +one of his descriptions. No doubt the defendant might have traversed, +by a common or general traverse, the plaintiff's allegation that he +was a citizen of the State of Missouri, concluding to the country. The +issue thus presented being joined, would have involved matter of law, +on which the jury must have passed, under the direction of the court. +But by traversing the plaintiff's citizenship specially—that is, +averring those facts on which the defendant relied to show that in +point of law the plaintiff was not a citizen, and basing the traverse +on those facts as a deduction therefrom—opportunity was given to do, +what was done; that is, to present directly to the court, by a +demurrer, the sufficiency of those facts to negative, in point of law, +the plaintiff's allegation of citizenship. This, then, being a +special, and not a general or common traverse, the rule is settled, +that the facts thus set out in the plea, as the reason or ground of +the traverse must of themselves constitute, in point of law, a +negative of the allegation thus traversed. (Stephen on Pl., 183; Ch. +on Pl., 620.) And upon a demurrer to this plea, the question which +arises is, whether the facts, that the plaintiff is a negro, of +African descent, whose ancestors were of pure African blood, and were +brought into this country and sold as negro slaves, <i>may all be true, +and yet</i> the plaintiff be a citizen of the State of Missouri, within +the meaning of the Constitution and laws of the United States, which +confer on citizens of one State the right to sue citizens of another +State in the Circuit Courts. Undoubtedly, if these facts, taken +together, amount to an allegation that, at the time of action brought, +the plaintiff was himself a slave, the plea is sufficient. It has been +suggested that the plea, in legal effect, does so aver, because, if +his ancestors were sold as slaves, the presumption is they continued +slaves; and if so, the presumption is, the plaintiff was born a slave; +and if so, the presumption is, he continued to be a slave to the time +of action brought.</p> + +<p>I cannot think such presumptions can be resorted to, to help out +defective averments in pleading; especially, in pleading in abatement, +where the utmost certainty and precision are required. (Chitty on Pl., +457.) That the plaintiff himself was a slave at the time of action +brought, is a substantive fact, having no necessary connection with +the fact that his parents were sold as slaves. For they might have +been sold after he was born; or the plaintiff himself, if once a +slave, might have<span class="pagenum"><a name="Page_176" id="Page_176">-176-</a></span> became a freeman before action brought. To aver +that his ancestors were sold as slaves, is not equivalent, in point of +law, to an averment that he was a slave. If it were, he could not even +confess and avoid the averment of the slavery of his ancestors, which +would be monstrous; and if it be not equivalent in point of law, it +cannot be treated as amounting thereto when demurred to; for a +demurrer confesses only those substantive facts which are well +pleaded, and not other distinct substantive facts which might be +inferred therefrom by a jury. To treat an averment that the +plaintiff's ancestors were Africans, brought to this country and sold +as slaves, as amounting to an averment on the record that he was a +slave, because it may lay some foundation for presuming so, is to hold +that the facts actually alleged may be treated as intended as evidence +of another distinct fact not alleged. But it is a cardinal rule of +pleading, laid down in Dowman's case, (9 Rep., 9 b,) and in even +earlier authorities therein referred to, "that evidence shall never be +pleaded, for it only tends to prove matter of fact; and therefore the +matter of fact shall be pleaded." Or, as the rule is sometimes stated, +pleadings must not be argumentative. (Stephen on Pleading, 384, and +authorities cited by him.) In Com. Dig., Pleader E. 3, and Bac. +Abridgement, Pleas I, 5, and Stephen on Pl., many decisions under this +rule are collected. In trover, for an indenture whereby A granted a +manor, it is no plea that A did not grant the manor, for it does not +answer the declaration except by argument. (Yelv., 223.)</p> + +<p>So in trespass for taking and carrying away the plaintiff's goods, the +defendant pleaded that the plaintiff never had any goods. The court +said, "this is an infallible argument that the defendant is not +guilty, but it is no plea." (Dyer, a 43.)</p> + +<p>In ejectment, the defendant pleaded a surrender of a copyhold by the +hand of Fosset, the steward. The plaintiff replied, that Fosset was +not steward. The court held this no issue, for it traversed the +surrender only argumentatively. (Cro. Elis., 260.)</p> + +<p>In these cases, and many others reported in the books, the inferences +from the facts stated were irresistible. But the court held they did +not, when demurred to, amount to such inferable facts. In the case at +bar, the inference that the defendant was a slave at the time of +action brought, even if it can be made at all, from the fact that his +parents were slaves, is certainly not a necessary inference. This +case, therefore, is like that of Digby <i>v.</i> Alexander, (8 Bing., 116.) +In that case, the defendant pleaded many facts strongly tending to +show that he was once Earl of Stirling; but as there was no positive +alle<span class="pagenum"><a name="Page_177" id="Page_177">-177-</a></span>gation that he was so at the time of action brought, and as every +fact averred might be true, and yet the defendant not have been Earl +of Stirling at the time of action brought, the plea was held to be +insufficient.</p> + +<p>A lawful seizin of land is presumed to continue. But if, in an action +of trespass <i>quare clausum</i>, the defendant were to plead that he was +lawfully seized of the <i>locus in quo</i>, one month before the time of +the alleged trespass, I should have no doubt it would be a bad plea. +(See Mollan <i>v.</i> Torrance, 9 Wheat., 537.) So if a plea to the +jurisdiction, instead of alleging that the plaintiff was a citizen of +the same State as the defendant, were to allege that the plaintiff's +ancestors were citizens of that State, I think the plea could not be +supported. My judgment would be, as it is in this case, that if the +defendant meant to aver a particular substantive fact, as existing at +the time of action brought, he must do it directly and explicitly, and +not by way of inference from certain other averments, which are quite +consistent with the contrary hypothesis. I cannot, therefore, treat +this plea as containing an averment that the plaintiff himself was a +slave at the time of action brought; and the inquiry recurs, whether +the facts, that he is of African descent, and that his parents were +once slaves, are necessarily inconsistent with his own citizenship in +the State of Missouri, within the meaning of the Constitution and laws +of the United States.</p> + +<p>In Gassies <i>v.</i> Ballon, (6 Pet., 761,) the defendant was described on +the record as a naturalized citizen of the United States, residing in +Louisiana. The court held this equivalent to an averment that the +defendant was a citizen of Louisiana; because a citizen of the United +States, residing in any State of the Union, is, for purposes of +jurisdiction, a citizen of that State. Now, the plea to the +jurisdiction in this case does not controvert the fact that the +plaintiff resided in Missouri at the date of the writ. If he did then +reside there, and was also a citizen of the United States, no +provisions contained in the Constitution or laws of Missouri can +deprive the plaintiff of his right to sue citizens of States other +than Missouri, in the courts of the United States.</p> + +<p>So that, under the allegations contained in this plea, and admitted by +the demurrer, the question is, whether any person of African descent, +whose ancestors were sold as slaves in the United States, can be a +citizen of the United States. If any such person can be a citizen, +this plaintiff has the right to the judgment of the court that he is +so; for no cause is shown by the plea why he is not so, except his +descent and the slavery of his ancestors.</p> + +<p>The first section of the second article of the Constitution<span class="pagenum"><a name="Page_178" id="Page_178">-178-</a></span> uses the +language, "a citizen of the United States at the time of the adoption +of the Constitution." One mode of approaching this question is, to +inquire who were citizens of the United States at the time of the +adoption of the Constitution.</p> + +<p>Citizens of the United States at the time of the adoption of the +Constitution can have been no other than citizens of the United States +under the Confederation. By the Articles of Confederation, a +Government was organized, the style whereof was, "The United States of +America." This Government was in existence when the Constitution was +framed and proposed for adoption, and was to be superseded by the new +Government of the United States of America, organized under the +Constitution. When, therefore, the Constitution speaks of citizenship +of the United States, existing at the time of the adoption of the +Constitution, it must necessarily refer to citizenship under the +Government which existed prior to and at the time of such adoption.</p> + +<p>Without going into any question concerning the powers of the +Confederation to govern the territory of the United States out of the +limits of the States, and consequently to sustain the relation of +Government and citizen in respect to the inhabitants of such +territory, it may safely be said that the citizens of the several +States were citizens of the United States under the Confederation.</p> + +<p>That Government was simply a confederacy of the several States, +possessing a few defined powers over subjects of general concern, each +State retaining every power, jurisdiction, and right, not expressly +delegated to the United States in Congress assembled. And no power was +thus delegated to the Government of the Confederation, to act on any +question of citizenship, or to make any rules in respect thereto. The +whole matter was left to stand upon the action of the several States, +and to the natural consequence of such action, that the citizens of +each State should be citizens of that Confederacy into which that +State had entered, the style whereof was, "The United States of +America."</p> + +<p>To determine whether any free persons, descended from Africans held in +slavery, were citizens of the United States under the Confederation, +and consequently at the time of the adoption of the Constitution of +the United States, it is only necessary to know whether any such +persons were citizens of either of the States under the Confederation, +at the time of the adoption of the Constitution.</p> + +<p>Of this there can be no doubt. At the time of the ratification of the +Articles of Confederation, all free native-born inhabitants of the +States of New Hampshire, Massachusetts, New<span class="pagenum"><a name="Page_179" id="Page_179">-179-</a></span> York, New Jersey, and +North Carolina, though descended from African slaves, were not only +citizens of those States, but such of them as had the other necessary +qualifications possessed the franchise of electors, on equal terms +with other citizens.</p> + +<p>The Supreme Court of North Carolina, in the case of the State <i>v.</i> +Manuel, (4 Dev. and Bat., 20,) has declared the law of that State on +this subject, in terms which I believe to be as sound law in the other +States I have enumerated, as it was in North Carolina.</p> + +<p>"According to the laws of this State," says Judge Gaston in delivering +the opinion of the court, "all human beings within it, who are not +slaves, fall within one of two classes. Whatever distinctions may have +existed in the Roman laws between citizens and free inhabitants, they +are unknown to our institutions. Before our Revolution, all free +persons born within the dominions of the King of Great Britain, +whatever their color or complexion, were native-born British +subjects—those born out of his allegiance were aliens. Slavery did +not exist in England, but it did in the British colonies. Slaves were +not in legal parlance persons, but property. The moment the +incapacity, the disqualification of slavery, was removed, they became +persons, and were then either British subjects, or not British +subjects, according as they were or were not born within the +allegiance of the British King. Upon the Revolution, no other change +took place in the laws of North Carolina than was consequent on the +transition from a colony dependent on a European King, to a free and +sovereign State. Slaves remained slaves. British subjects in North +Carolina became North Carolina freemen. Foreigners, until made members +of the State, remained aliens. Slaves, manumitted here, became +freemen, and therefore, if born within North Carolina, are citizens of +North Carolina, and all free persons born within the State are born +citizens of the State. The Constitution extended the elective +franchise to every freeman who had arrived at the age of twenty-one, +and paid a public tax; and it is a matter of universal notoriety, +that, under it, free persons, without regard to color, claimed and +exercised the franchise, until it was taken from free men of color a +few years since by our amended Constitution."</p> + +<p>In the State <i>v.</i> Newcomb, (5 Iredell's R., 253,) decided in 1844, the +same court referred to this case of the State <i>v.</i> Manuel, and said: +"That case underwent a very laborious investigation, both by the bar +and the bench. The case was brought here by appeal, and was felt to be +one of great importance in principle. It was considered with an +anxiety and care worthy of the principle involved, and which give it a +control<span class="pagenum"><a name="Page_180" id="Page_180">-180-</a></span>ling influence and authority on all questions of a similar +character."</p> + +<p>An argument from speculative premises, however well chosen, that the +then state of opinion in the Commonwealth of Massachusetts was not +consistent with the natural rights of people of color who were born on +that soil, and that they were not, by the Constitution of 1780 of that +State, admitted to the condition of citizens, would be received with +surprise by the people of that State, who know their own political +history. It is true, beyond all controversy, that persons of color, +descended from African slaves, were by that Constitution made citizens +of the State; and such of them as have had the necessary +qualifications, have held and exercised the elective franchise, as +citizens, from that time to the present. (See Com. <i>v.</i> Aves, 18 Pick. +R., 210.)</p> + +<p>The Constitution of New Hampshire conferred the elective franchise +upon "every inhabitant of the State having the necessary +qualifications," of which color or descent was not one.</p> + +<p>The Constitution of New York gave the right to vote to "every male +inhabitant, who shall have resided," &c.; making no discrimination +between free colored persons and others. (See Con. of N.Y., Art. 2, +Rev. Stats. of N.Y., vol. 1, p. 126.)</p> + +<p>That of New Jersey, to "all inhabitants of this colony, of full age, +who are worth £50 proclamation money, clear estate."</p> + +<p>New York, by its Constitution of 1820, required colored persons to +have some qualifications as prerequisites for voting, which white +persons need not possess. And New Jersey, by its present Constitution, +restricts the right to vote to white male citizens. But these changes +can have no other effect upon the present inquiry, except to show, +that before they were made, no such restrictions existed; and colored +in common with white persons, were not only citizens of those States, +but entitled to the elective franchise on the same qualifications as +white persons, as they now are in New Hampshire and Massachusetts. I +shall not enter into an examination of the existing opinions of that +period respecting the African race, nor into any discussion concerning +the meaning of those who asserted, in the Declaration of Independence, +that all men are created equal; that they are endowed by their Creator +with certain inalienable rights; that among these are life, liberty, +and the pursuit of happiness. My own opinion is, that a calm +comparison of these assertions of universal abstract truths, and of +their own individual opinions and acts, would not leave<span class="pagenum"><a name="Page_181" id="Page_181">-181-</a></span> these men +under any reproach of inconsistency; that the great truths they +asserted on that solemn occasion, they were ready and anxious to make +effectual, wherever a necessary regard to circumstances, which no +statesman can disregard without producing more evil than good, would +allow; and that it would not be just to them, nor true in itself, to +allege that they intended to say that the Creator of all men had +endowed the white race, exclusively, with the great natural rights +which the Declaration of Independence asserts. But this is not the +place to vindicate their memory. As I conceive, we should deal here, +not with such disputes, if there can be a dispute concerning this +subject, but with those substantial facts evinced by the written +Constitutions of States, and by the notorious practice under them. And +they show, in a manner which no argument can obscure, that in some of +the original thirteen States, free colored persons, before and at the +time of the formation of the Constitution, were citizens of those +States.</p> + +<p>The fourth of the fundamental articles of the Confederation was as +follows: "The free inhabitants of each of these States, paupers, +vagabonds, and fugitives from justice, excepted, shall be entitled to +all the privileges and immunities of free citizens in the several +States."</p> + +<p>The fact that free persons of color were citizens of some of the +several States, and the consequence, that this fourth article of the +Confederation would have the effect to confer on such persons the +privileges and immunities of general citizenship, were not only known +to those who framed and adopted those articles, but the evidence is +decisive, that the fourth article was intended to have that effect, +and that more restricted language, which would have excluded such +persons, was deliberately and purposely rejected.</p> + +<p>On the 25th of June, 1778, the Articles of Confederation being under +consideration by the Congress, the delegates from South Carolina moved +to amend this fourth article, by inserting after the word "free," and +before the word "inhabitants," the word "white," so that the +privileges and immunities of general citizenship would be secured only +to white persons. Two States voted for the amendment, eight States +against it, and the vote of one State was divided. The language of the +article stood unchanged, and both by its terms of inclusion, "free +inhabitants," and the strong implication from its terms of exclusion, +"paupers, vagabonds, and fugitives from justice," who alone were +excepted, it is clear, that under the Confederation, and at the time +of the adoption of the Constitution, free colored persons of African +descent might be, and, by reason of their citizenship in certain +States, were entitled to the<span class="pagenum"><a name="Page_182" id="Page_182">-182-</a></span> privileges and immunities of general +citizenship of the United States.</p> + +<p>Did the Constitution of the United States deprive them or their +descendants of citizenship?</p> + +<p>That Constitution was ordained and established by the people of the +United States, through the action, in each State, of those persons who +were qualified by its laws to act thereon, in behalf of themselves and +all other citizens of that State. In some of the States, as we have +seen, colored persons were among those qualified by law to act on this +subject. These colored persons were not only included in the body of +"the people of the United States," by whom the Constitution was +ordained and established, but in at least five of the States they had +the power to act, and doubtless did act, by their suffrages, upon the +question of its adoption. It would be strange, if we were to find in +that instrument anything which deprived of their citizenship any part +of the people of the United States who were among those by whom it was +established.</p> + +<p>I can find nothing in the Constitution which, <i>proprio vigore</i>, +deprives of their citizenship any class of persons who were citizens +of the United States at the time of its adoption, or who should be +native-born citizens of any State after its adoption; nor any power +enabling Congress to disfranchise persons born on the soil of any +State, and entitled to citizenship of such State by its Constitution +and laws. And my opinion is, that, under the Constitution of the +United States, every free person born on the soil of a State, who is a +citizen of that State by force of its Constitution or laws, is also a +citizen of the United States.</p> + +<p>I will proceed to state the grounds of that opinion.</p> + +<p>The first section of the second article of the Constitution uses the +language, "a natural-born citizen." It thus assumes that citizenship +may be acquired by birth. Undoubtedly, this language of the +Constitution was used in reference to that principle of public law, +well understood in this country at the time of the adoption of the +Constitution, which referred citizenship to the place of birth. At the +Declaration of Independence, and ever since, the received general +doctrine has been, in conformity with the common law, that free +persons born within either of the colonies were subjects of the King; +that by the Declaration of Independence, and the consequent +acquisition of sovereignty by the several States, all such persons +ceased to be subjects, and became citizens of the several States, +except so far as some of them were disfranchised by the legislative +power of the States, or availed themselves, seasonably, of the right +to adhere to the British Crown in the civil contest,<span class="pagenum"><a name="Page_183" id="Page_183">-183-</a></span> and thus to +continue British subjects (McIlvain <i>v.</i> Coxe's Lessee, 4 Cranch, 209; +Inglis <i>v.</i> Sailors' Snug Harbor, 3 Peters, p. 99; Shanks <i>v.</i> Dupont, +Ibid, p. 242.)</p> + +<p>The Constitution having recognised the rule that persons born within +the several States are citizens of the United States, one of four +things must be true:</p> + +<p><i>First.</i> That the Constitution itself has described what native-born +persons shall or shall not be citizens of the United States; or,</p> + +<p><i>Second.</i> That it has empowered Congress to do so; or,</p> + +<p><i>Third.</i> That all free persons, born within the several States, are +citizens of the United States; or,</p> + +<p><i>Fourth.</i> That it is left to each State to determine what free +persons, born within its limits, shall be citizens of such State, and +<i>thereby</i> be citizens of the United States.</p> + +<p>If there be such a thing as citizenship of the United States acquired +by birth within the States, which the Constitution expressly +recognises, and no one denies, then these four alternatives embrace +the entire subject, and it only remains to select that one which is +true.</p> + +<p>That the Constitution itself has defined citizenship of the United +States by declaring what persons, born within the several States, +shall or shall not be citizens of the United States, will not be +pretended. It contains no such declaration. We may dismiss the first +alternative, as without doubt unfounded.</p> + +<p>Has it empowered Congress to enact what free persons, born within the +several States, shall or shall not be citizens of the United States?</p> + +<p>Before examining the various provisions of the Constitution which may +relate to this question, it is important to consider for a moment the +substantial nature of this inquiry. It is, in effect, whether the +Constitution has empowered Congress to create privileged classes +within the States, who alone can be entitled to the franchises and +powers of citizenship of the United States. If it be admitted that the +Constitution has enabled Congress to declare what free persons, born +within the several States, shall be citizens of the United States, it +must at the same time be admitted that it is an unlimited power. If +this subject is within the control of Congress, it must depend wholly +on its discretion. For, certainly, no limits of that discretion can be +found in the Constitution, which is wholly silent concerning it; and +the necessary consequence is, that the Federal Government may select +classes of persons within the several States who alone can be entitled +to the political privileges of citizenship of the United States. If +this power exists, what persons born within the States may be +President or Vice Pres<span class="pagenum"><a name="Page_184" id="Page_184">-184-</a></span>ident of the United States, or members of +either House of Congress, or hold any office or enjoy any privilege +whereof citizenship of the United States is a necessary qualification, +must depend solely on the will of Congress. By virtue of it, though +Congress can grant no title of nobility, they may create an oligarchy, +in whose hands would be concentrated the entire power of the Federal +Government.</p> + +<p>It is a substantive power, distinct in its nature from all others; +capable of affecting not only the relations of the States to the +General Government, but of controlling the political condition of the +people of the United States. Certainly we ought to find this power +granted by the Constitution, at least by some necessary inference, +before we can say it does not remain to the States or the people. I +proceed therefore to examine all the provisions of the Constitution +which may have some bearing on this subject.</p> + +<p>Among the powers expressly granted to Congress is "the power to +establish a uniform rule of naturalization." It is not doubted that +this is a power to prescribe a rule for the removal of the +disabilities consequent on foreign birth. To hold that it extends +further than this, would do violence to the meaning of the term +naturalization, fixed in the common law, (Co. Lit., 8 a, 129 a; 2 +Ves., sen., 286; 2 Bl. Com., 293,) and in the minds of those who +concurred in framing and adopting the Constitution. It was in this +sense of conferring on an alien and his issue the rights and powers of +a native-born citizen, that it was employed in the Declaration of +Independence. It was in this sense it was expounded in the Federalist, +(No. 42,) has been understood by Congress, by the Judiciary, (2 +Wheat., 259, 269; 3 Wash. R., 313, 322; 12 Wheat., 277,) and by +commentators on the Constitution. (3 Story's Com. on Con., 1-3; 1 +Rawle on Con., 84-88; 1 Tucker's Bl. Com. App., 255-259.)</p> + +<p>It appears, then, that the only power expressly granted to Congress to +legislate concerning citizenship, is confined to the removal of the +disabilities of foreign birth.</p> + +<p>Whether there be anything in the Constitution from which a broader +power may be implied, will best be seen when we come to examine the +two other alternatives, which are, whether all free persons, born on +the soil of the several States, or only such of them as may be +citizens of each State, respectively, are thereby citizens of the +United States. The last of these alternatives, in my judgment, +contains the truth.</p> + +<p>Undoubtedly, as has already been said, it is a principle of public +law, recognised by the Constitution itself, that birth on the soil of +a country both creates the duties and confers the rights of +citizenship. But it must be remembered, that though<span class="pagenum"><a name="Page_185" id="Page_185">-185-</a></span> the Constitution +was to form a Government, and under it the United States of America +were to be one united sovereign nation, to which loyalty and obedience +on the one side, and from which protection and privileges on the +other, would be due, yet the several sovereign States, whose people +were then citizens, were not only to continue in existence, but with +powers unimpaired, except so far as they were granted by the people to +the National Government.</p> + +<p>Among the powers unquestionably possessed by the several States, was +that of determining what persons should and what persons should not be +citizens. It was practicable to confer on the Government of the Union +this entire power. It embraced what may, well enough for the purpose +now in view, be divided into three parts. <i>First</i>: The power to remove +the disabilities of alienage, either by special acts in reference to +each individual case, or by establishing a rule of naturalization to +be administered and applied by the courts. <i>Second</i>: Determining what +persons should enjoy the privileges of citizenship, in respect to the +internal affairs of the several States. <i>Third</i>: What native-born +persons should be citizens of the United States.</p> + +<p>The first-named power, that of establishing a uniform rule of +naturalization, was granted; and here the grant, according to its +terms, stopped. Construing a Constitution containing only limited and +defined powers of government, the argument derived from this definite +and restricted power to establish a rule of naturalization, must be +admitted to be exceedingly strong. I do not say it is necessarily +decisive. It might be controlled by other parts of the Constitution. +But when this particular subject of citizenship was under +consideration, and, in the clause specially intended to define the +extent of power concerning it, we find a particular part of this +entire power separated from the residue, and conferred on the General +Government, there arises a strong presumption that this is all which +is granted, and that the residue is left to the States and to the +people. And this presumption is, in my opinion, converted into a +certainty, by an examination of all such other clauses of the +Constitution as touch this subject.</p> + +<p>I will examine each which can have any possible bearing on this +question.</p> + +<p>The first clause of the second section of the third article of the +Constitution is, "The judicial power shall extend to controversies +between a State and citizens of another State; between citizens of +different States; between citizens of the same State, claiming lands +under grants of different States; and between States, or the citizens +thereof, and foreign States,<span class="pagenum"><a name="Page_186" id="Page_186">-186-</a></span> citizens, or subjects." I do not think +this clause has any considerable bearing upon the particular inquiry +now under consideration. Its purpose was, to extend the judicial power +to those controversies into which local feelings or interests might so +enter as to disturb the course of justice, or give rise to suspicions +that they had done so, and thus possibly give occasion to jealousy or +ill will between different States, or a particular State and a foreign +nation. At the same time, I would remark, in passing, that it has +never been held, I do not know that it has ever been supposed, that +any citizen of a State could bring himself under this clause and the +eleventh and twelfth sections of the judiciary act of 1789, passed in +pursuance of it, who was not a citizen of the United States. But I +have referred to the clause, only because it is one of the places +where citizenship is mentioned by the Constitution. Whether it is +entitled to any weight in this inquiry or not, it refers only to +citizenship of the several States; it recognises that; but it does not +recognise citizenship of the United States as something distinct +therefrom.</p> + +<p>As has been said, the purpose of this clause did not necessarily +connect it with citizenship of the United States, even if that were +something distinct from citizenship of the several States, in the +contemplation of the Constitution. This cannot be said of other +clauses of the Constitution, which I now proceed to refer to.</p> + +<p>"The citizens of each State shall be entitled to all the privileges +and immunities of citizens of the several States." Nowhere else in the +Constitution is there anything concerning a general citizenship; but +here, privileges and immunities to be enjoyed throughout the United +States, under and by force of the national compact, are granted and +secured. In selecting those who are to enjoy these national rights of +citizenship, how are they described? As citizens of each State. It is +to them these national rights are secured. The qualification for them +is not to be looked for in any provision of the Constitution or laws +of the United States. They are to be citizens of the several States, +and, as such, the privileges and immunities of general citizenship, +derived from and guarantied by the Constitution, are to be enjoyed by +them. It would seem that if it had been intended to constitute a class +of native-born persons within the States, who should derive their +citizenship of the United States from the action of the Federal +Government, this was an occasion for referring to them. It cannot be +supposed that it was the purpose of this article to confer the +privileges and immunities of citizens in all the States upon persons +not citizens of the United States.<span class="pagenum"><a name="Page_187" id="Page_187">-187-</a></span></p> + +<p>And if it was intended to secure these rights only to citizens of the +United States, how has the Constitution here described such persons? +Simply as citizens of each State.</p> + +<p>But, further: though, as I shall presently more fully state, I do not +think the enjoyment of the elective franchise essential to +citizenship, there can be no doubt it is one of the chiefest +attributes of citizenship under the American Constitutions; and the +just and constitutional possession of this right is decisive evidence +of citizenship. The provisions made by a Constitution on this subject +must therefore be looked to as bearing directly on the question what +persons are citizens under that Constitution; and as being decisive, +to this extent, that all such persons as are allowed by the +Constitution to exercise the elective franchise, and thus to +participate in the Government of the United States, must be deemed +citizens of the United States.</p> + +<p>Here, again, the consideration presses itself upon us, that if there +was designed to be a particular class of native-born persons within +the States, deriving their citizenship from the Constitution and laws +of the United States, they should at least have been referred to as +those by whom the President and House of Representatives were to be +elected, and to whom they should be responsible.</p> + +<p>Instead of that, we again find this subject referred to the laws of +the several States. The electors of President are to be appointed in +such manner as the Legislature of each State may direct, and the +qualifications of electors of members of the House of Representatives +shall be the same as for electors of the most numerous branch of the +State Legislature.</p> + +<p>Laying aside, then, the case of aliens, concerning which the +Constitution of the United States has provided, and confining our view +to free persons born within the several States, we find that the +Constitution has recognised the general principle of public law, that +allegiance and citizenship depend on the place of birth; that it has +not attempted practically to apply this principle by designating the +particular classes of persons who should or should not come under it; +that when we turn to the Constitution for an answer to the question, +what free persons, born within the several States, are citizens of the +United States, the only answer we can receive from any of its express +provisions is, the citizens of the several States are to enjoy the +privileges and immunities of citizens in every State, and their +franchise as electors under the Constitution depends on their +citizenship in the several States. Add to this, that the Constitution +was ordained by the citizens of the several States; that they were +"the people of the United States," for whom<span class="pagenum"><a name="Page_188" id="Page_188">-188-</a></span> and whose posterity the +Government was declared in the preamble of the Constitution to be +made; that each of them was "a citizen of the United States at the +time of the adoption of the Constitution," within the meaning of those +words in that instrument; that by them the Government was to be and +was in fact organized; and that no power is conferred on the +Government of the Union to discriminate between them, or to +disfranchise any of them—the necessary conclusion is, that those +persons born within the several States, who, by force of their +respective Constitutions and laws, are citizens of the State, are +thereby citizens of the United States.</p> + +<p>It may be proper here to notice some supposed objections to this view +of the subject.</p> + +<p>It has been often asserted that the Constitution was made exclusively +by and for the white race. It has already been shown that in five of +the thirteen original States, colored persons then possessed the +elective franchise, and were among those by whom the Constitution was +ordained and established. If so, it is not true, in point of fact, +that the Constitution was made exclusively by the white race. And that +it was made exclusively for the white race is, in my opinion, not only +an assumption not warranted by anything in the Constitution, but +contradicted by its opening declaration, that it was ordained and +established, by the people of the United States, for themselves and +their posterity. And as free colored persons were then citizens of at +least five States, and so in every sense part of the people of the +United States, they were among those for whom and whose posterity the +Constitution was ordained and established.</p> + +<p>Again, it has been objected, that if the Constitution has left to the +several States the rightful power to determine who of their +inhabitants shall be citizens of the United States, the States may +make aliens citizens.</p> + +<p>The answer is obvious. The Constitution has left to the States the +determination what persons, born within their respective limits, shall +acquire by birth citizenship of the United States; it has not left to +them any power to prescribe any rule for the removal of the +disabilities of alienage. This power is exclusively in Congress.</p> + +<p>It has been further objected, that if free colored persons, born +within a particular State, and made citizens of that State by its +Constitution and laws, are thereby made citizens of the United States, +then, under the second section of the fourth article of the +Constitution, such persons would be entitled to all the privileges and +immunities of citizens in the several States; and if so, then colored +persons could vote, and be<span class="pagenum"><a name="Page_189" id="Page_189">-189-</a></span> eligible to not only Federal offices, but +offices even in those States whose Constitutions and laws disqualify +colored persons from voting or being elected to office.</p> + +<p>But this position rests upon an assumption which I deem untenable. Its +basis is, that no one can be deemed a citizen of the United States who +is not entitled to enjoy all the privileges and franchises which are +conferred on any citizen. (See 1 Lit. Kentucky R., 326.) That this is +not true, under the Constitution of the United States, seems to me +clear.</p> + +<p>A naturalized citizen cannot be President of the United States, nor a +Senator till after the lapse of nine years, nor a Representative till +after the lapse of seven years, from his naturalization. Yet, as soon +as naturalized, he is certainly a citizen of the United States. Nor is +any inhabitant of the District of Columbia, or of either of the +Territories, eligible to the office of Senator or Representative in +Congress, though they may be citizens of the United States. So, in all +the States, numerous persons, though citizens, cannot vote, or cannot +hold office, either on account of their age, or sex, or the want of +the necessary legal qualifications. The truth is, that citizenship, +under the Constitution of the United States, is not dependent on the +possession of any particular political or even of all civil rights; +and any attempt so to define it must lead to error. To what citizens +the elective franchise shall be confided, is a question to be +determined by each State, in accordance with its own views of the +necessities or expediencies of its condition. What civil rights shall +be enjoyed by its citizens, and whether all shall enjoy the same, or +how they may be gained or lost, are to be determined in the same way.</p> + +<p>One may confine the right of suffrage to white male citizens; another +may extend it to colored persons and females; one may allow all +persons above a prescribed age to convey property and transact +business; another may exclude married women. But whether native-born +women, or persons under age, or under guardianship because insane or +spendthrifts, be excluded from voting or holding office, or allowed to +do so, I apprehend no one will deny that they are citizens of the +United States. Besides, this clause of the Constitution does not +confer on the citizens of one State, in all other States, specific and +enumerated privileges and immunities. They are entitled to such as +belong to citizenship, but not to such as belong to particular +citizens attended by other qualifications. Privileges and immunities +which belong to certain citizens of a State, by reason of the +operation of causes other than mere citizenship, are not conferred. +Thus, if the laws of a State require, in addition to<span class="pagenum"><a name="Page_190" id="Page_190">-190-</a></span> citizenship of +the State, some qualification for office, or the exercise of the +elective franchise, citizens of all other States, coming thither to +reside, and not possessing those qualifications, cannot enjoy those +privileges, not because they are not to be deemed entitled to the +privileges of citizens of the State in which they reside, but because +they, in common with the native-born citizens of that State, must have +the qualifications prescribed by law for the enjoyment of such +privileges, under its Constitution and laws. It rests with the States +themselves so to frame their Constitutions and laws as not to attach a +particular privilege or immunity to mere naked citizenship. If one of +the States will not deny to any of its own citizens a particular +privilege or immunity, if it confer it on all of them by reason of +mere naked citizenship, then it may be claimed by every citizen of +each State by force of the Constitution; and it must be borne in mind, +that the difficulties which attend the allowance of the claims of +colored persons to be citizens of the United States are not avoided by +saying that, though each State may make them its citizens, they are +not thereby made citizens of the United States, because the privileges +of general citizenship are secured to the citizens of each State. The +language of the Constitution is, "The citizens of each State shall be +entitled to all privileges and immunities of citizens in the several +States." If each State may make such persons its citizens, they +become, as such, entitled to the benefits of this article, if there be +a native-born citizenship of the United States distinct from a +native-born citizenship of the several States.</p> + +<p>There is one view of this article entitled to consideration in this +connection. It is manifestly copied from the fourth of the Articles of +Confederation, with only slight changes of phraseology, which render +its meaning more precise, and dropping the clause which excluded +paupers, vagabonds, and fugitives from justice, probably because these +cases could be dealt with under the police powers of the States, and a +special provision therefor was not necessary. It has been suggested, +that in adopting it into the Constitution, the words "free +inhabitants" were changed for the word "citizens." An examination of +the forms of expression commonly used in the State papers of that day, +and an attention to the substance of this article of the +Confederation, will show that the words "free inhabitants," as then +used, were synonymous with citizens. When the Articles of +Confederation were adopted, we were in the midst of the war of the +Revolution, and there were very few persons then embraced in the words +"free inhabitants," who were not born on our soil. It was not a time +when many, save the<span class="pagenum"><a name="Page_191" id="Page_191">-191-</a></span> children of the soil, were willing to embark +their fortunes in our cause; and though there might be an inaccuracy +in the uses of words to call free inhabitants citizens, it was then a +technical rather than a substantial difference. If we look into the +Constitutions and State papers of that period, we find the inhabitants +or people of these colonies, or the inhabitants of this State, or +Commonwealth, employed to designate those whom we should now +denominate citizens. The substance and purpose of the article prove it +was in this sense it used these words: it secures to the free +inhabitants of each State the privileges and immunities of free +citizens in every State. It is not conceivable that the States should +have agreed to extend the privileges of citizenship to persons not +entitled to enjoy the privileges of citizens in the States where they +dwelt; that under this article there was a class of persons in some of +the States, not citizens, to whom were secured all the privileges and +immunities of citizens when they went into other States; and the just +conclusion is, that though the Constitution cured an inaccuracy of +language, it left the substance of this article in the National +Constitution the same as it was in the Articles of Confederation.</p> + +<p>The history of this fourth article, respecting the attempt to exclude +free persons of color from its operation, has been already stated. It +is reasonable to conclude that this history was known to those who +framed and adopted the Constitution. That under this fourth article of +the Confederation, free persons of color might be entitled to the +privileges of general citizenship, if otherwise entitled thereto, is +clear. When this article was, in substance, placed in and made part of +the Constitution of the United States, with no change in its language +calculated to exclude free colored persons from the benefit of its +provisions, the presumption is, to say the least, strong, that the +practical effect which it was designed to have, and did have, under +the former Government, it was designed to have, and should have, under +the new Government.</p> + +<p>It may be further objected, that if free colored persons may be +citizens of the United States, it depends only on the will of a master +whether he will emancipate his slave, and thereby make him a citizen. +Not so. The master is subject to the will of the State. Whether he +shall be allowed to emancipate his slave at all; if so, on what +conditions; and what is to be the political <i>status</i> of the freed man, +depend, not on the will of the master, but on the will of the State, +upon which the political <i>status</i> of all its native-born inhabitants +depends. Under the Constitution of the United States, each State has +retained this power of determining the political <i>status</i> of its +na<span class="pagenum"><a name="Page_192" id="Page_192">-192-</a></span>tive-born inhabitants, and no exception thereto can be found in the +Constitution. And if a master in a slaveholding State should carry his +slave into a free State, and there emancipate him, he would not +thereby make him a native-born citizen of that State, and consequently +no privileges could be claimed by such emancipated slave as a citizen +of the United States. For, whatever powers the States may exercise to +confer privileges of citizenship on persons not born on their soil, +the Constitution of the United States does not recognise such +citizens. As has already been said, it recognises the great principle +of public law, that allegiance and citizenship spring from the place +of birth. It leaves to the States the application of that principle to +individual cases. It secured to the citizens of each State the +privileges and immunities of citizens in every other State. But it +does not allow to the States the power to make aliens citizens, or +permit one State to take persons born on the soil of another State, +and, contrary to the laws and policy of the State where they were +born, make them its citizens, and so citizens of the United States. No +such deviation from the great rule of public law was contemplated by +the Constitution; and when any such attempt shall be actually made, it +is to be met by applying to it those rules of law and those principles +of good faith which will be sufficient to decide it, and not, in my +judgment, by denying that all the free native-born inhabitants of a +State, who are its citizens under its Constitution and laws, are also +citizens of the United States.</p> + +<p>It has sometimes been urged that colored persons are shown not to be +citizens of the United States by the fact that the naturalization laws +apply only to white persons. But whether a person born in the United +States be or be not a citizen, cannot depend on laws which refer only +to aliens, and do not affect the <i>status</i> of persons born in the +United States. The utmost effect which can be attributed to them is, +to show that Congress has not deemed it expedient generally to apply +the rule to colored aliens. That they might do so, if thought fit, is +clear. The Constitution has not excluded them. And since that has +conferred the power on Congress to naturalize colored aliens, it +certainly shows color is not a necessary qualification for citizenship +under the Constitution of the United States. It may be added, that the +power to make colored persons citizens of the United States, under the +Constitution, has been actually exercised in repeated and important +instances. (See the Treaties with the Choctaws, of September 27, 1830, +art. 14; with the Cherokees, of May 23, 1836, art. 12; Treaty of +Guadalupe Hidalgo, February 2, 1848, art. 8.)</p> + +<p>I do not deem it necessary to review at length the legisla<span class="pagenum"><a name="Page_193" id="Page_193">-193-</a></span>tion of +Congress having more or less bearing on the citizenship of colored +persons. It does not seem to me to have any considerable tendency to +prove that it has been considered by the legislative department of the +Government, that no such persons are citizens of the United States. +Undoubtedly they have been debarred from the exercise of particular +rights or privileges extended to white persons, but, I believe, always +in terms which, by implication, admit they may be citizens. Thus the +act of May 17, 1792, for the organization of the militia, directs the +enrollment of "every free, able-bodied, white male citizen." An +assumption that none but white persons are citizens, would be as +inconsistent with the just import of this language, as that all +citizens are able-bodied, or males.</p> + +<p>So the act of February 28, 1803, (2 Stat. at Large, 205,) to prevent +the importation of certain persons into States, when by the laws +thereof their admission is prohibited, in its first section forbids +all masters of vessels to import or bring "any negro, mulatto, or +other person of color, not being a native, <i>a citizen</i>, or registered +seaman of the United States," &c.</p> + +<p>The acts of March 3, 1813, section 1, (2 Stat. at Large, 809,) and +March 1, 1817, section 3, (3 Stat. at Large, 351,) concerning seamen, +certainly imply there may be persons of color, natives of the United +States, who are not citizens of the United States. This implication is +undoubtedly in accordance with the fact. For not only slaves, but free +persons of color, born in some of the States, are not citizens. But +there is nothing in these laws inconsistent with the citizenship of +persons of color in others of the States, nor with their being +citizens of the United States.</p> + +<p>Whether much or little weight should be attached to the particular +phraseology of these and other laws, which were not passed with any +direct reference to this subject, I consider their tendency to be, as +already indicated, to show that, in the apprehension of their framers, +color was not a necessary qualification of citizenship. It would be +strange, if laws were found on our statute book to that effect, when, +by solemn treaties, large bodies of Mexican and North American Indians +as well as free colored inhabitants of Louisiana have been admitted to +citizenship of the United States.</p> + +<p>In the legislative debates which preceded the admission of the State +of Missouri into the Union, this question was agitated. Its result is +found in the resolution of Congress, of March 5, 1821, for the +admission of that State into the Union. The Constitution of Missouri, +under which that State applied for admission into the Union, provided, +that it should be the duty<span class="pagenum"><a name="Page_194" id="Page_194">-194-</a></span> of the Legislature "to pass laws to +prevent free negroes and mulattoes from coming to and settling in the +State, under any pretext whatever." One ground of objection to the +admission of the State under this Constitution was, that it would +require the Legislature to exclude free persons of color, who would be +entitled, under the second section of the fourth article of the +Constitution, not only to come within the State, but to enjoy there +the privileges and immunities of citizens. The resolution of Congress +admitting the State was upon the fundamental condition, "that the +Constitution of Missouri shall never be construed to authorize the +passage of any law, and that no law shall be passed in conformity +thereto, by which any citizen of either of the States of this Union +shall be excluded from the enjoyment of any of the privileges and +immunities to which such citizen is entitled under the Constitution of +the United States." It is true, that neither this legislative +declaration, nor anything in the Constitution or laws of Missouri, +could confer or take away any privilege or immunity granted by the +Constitution. But it is also true, that it expresses the then +conviction of the legislative power of the United States, that free +negroes, as citizens of some of the States, might be entitled to the +privileges and immunities of citizens in all the States.</p> + +<p>The conclusions at which I have arrived on this part of the case are:</p> + +<p><i>First.</i> That the free native-born citizens of each State are citizens +of the United States.</p> + +<p><i>Second.</i> That as free colored persons born within some of the States +are citizens of those States, such persons are also citizens of the +United States.</p> + +<p><i>Third.</i> That every such citizen, residing in any State, has the right +to sue and is liable to be sued in the Federal courts, as a citizen of +that State in which he resides.</p> + +<p><i>Fourth.</i> That as the plea to the jurisdiction in this case shows no +facts, except that the plaintiff was of African descent, and his +ancestors were sold as slaves, and as these facts are not inconsistent +with his citizenship of the United States, and his residence in the +State of Missouri, the plea to the jurisdiction was bad, and the +judgment of the Circuit Court overruling it was correct.</p> + +<p>I dissent, therefore, from that part of the opinion of the majority of +the court, in which it is held that a person of African descent cannot +be a citizen of the United States; and I regret I must go further, and +dissent both from what I deem their assumption of authority to examine +the constitutionality of the act of Congress commonly called the +Missouri compro<span class="pagenum"><a name="Page_195" id="Page_195">-195-</a></span>mise act, and the grounds and conclusions announced in +their opinion.</p> + +<p>Having first decided that they were bound to consider the sufficiency +of the plea to the jurisdiction of the Circuit Court, and having +decided that this plea showed that the Circuit Court had not +jurisdiction, and consequently that this is a case to which the +judicial power of the United States does not extend, they have gone on +to examine the merits of the case as they appeared on the trial before +the court and jury, on the issues joined on the pleas in bar, and so +have reached the question of the power of Congress to pass the act of +1820. On so grave a subject as this, I feel obliged to say that, in my +opinion, such an exertion of judicial power transcends the limits of +the authority of the court, as described by its repeated decisions, +and, as I understand, acknowledged in this opinion of the majority of +the court.</p> + +<p>In the course of that opinion, it became necessary to comment on the +case of Legrand <i>v.</i> Darnall, (reported in 2 Peters's R., 664.) In +that case, a bill was filed, by one alleged to be a citizen of +Maryland, against one alleged to be a citizen of Pennsylvania. The +bill stated that the defendant was the son of a white man by one of +his slaves; and that the defendant's father devised to him certain +lands, the title to which was put in controversy by the bill. These +facts were admitted in the answer, and upon these and other facts the +court made its decree, founded on the principle that a devise of land +by a master to a slave was by implication also a bequest of his +freedom. The facts that the defendant was of African descent, and was +born a slave, were not only before the court, but entered into the +entire substance of its inquiries. The opinion of the majority of my +brethren in this case disposes of the case of Legrand <i>v.</i> Darnall, by +saying, among other things, that as the fact that the defendant was +born a slave only came before this court on the bill and answer, it +was then too late to raise the question of the personal disability of +the party, and therefore that decision is altogether inapplicable in +this case.</p> + +<p>In this I concur. Since the decision of this court in Livingston <i>v.</i> +Story, (11 Pet., 351,) the law has been settled, that when the +declaration or bill contains the necessary averments of citizenship, +this court cannot look at the record, to see whether those averments +are true, except so far as they are put in issue by a plea to the +jurisdiction. In that case, the defendant denied by his answer that +Mr. Livingston was a citizen of New York, as he had alleged in the +bill. Both parties went into proofs. The court refused to examine +those proofs, with reference to the personal disability of the +plaintiff. This is the<span class="pagenum"><a name="Page_196" id="Page_196">-196-</a></span> settled law of the court, affirmed so lately +as Shepherd <i>v.</i> Graves, (14 How., 27,) and Wickliff <i>v.</i> Owings, (17 +How., 51.) (See also De Wolf <i>v.</i> Rabaud, 1 Pet., 476.) But I do not +understand this to be a rule which the court may depart from at its +pleasure. If it be a rule, it is as binding on the court as on the +suitors. If it removes from the latter the power to take any objection +to the personal disability of a party alleged by the record to be +competent, which is not shown by a plea to the jurisdiction, it is +because the court are forbidden by law to consider and decide on +objections so taken. I do not consider it to be within the scope of +the judicial power of the majority of the court to pass upon any +question respecting the plaintiff's citizenship in Missouri, save that +raised by the plea to the jurisdiction; and I do not hold any opinion +of this court, or any court, binding, when expressed on a question not +legitimately before it. (Carroll <i>v.</i> Carroll, 16 How., 275.) The +judgment of this court is, that the case is to be dismissed for want +of jurisdiction, because the plaintiff was not a citizen of Missouri, +as he alleged in his declaration. Into that judgment, according to the +settled course of this court, nothing appearing after a plea to the +merits can enter. A great question of constitutional law, deeply +affecting the peace and welfare of the country, is not, in my opinion, +a fit subject to be thus reached.</p> + +<p>But as, in my opinion, the Circuit Court had jurisdiction, I am +obliged to consider the question whether its judgment on the merits of +the case should stand or be reversed.</p> + +<p>The residence of the plaintiff in the State of Illinois, and the +residence of himself and his wife in the territory acquired from +France lying north of latitude thirty-six degrees thirty minutes, and +north of the State of Missouri, are each relied on by the plaintiff in +error. As the residence in the territory affects the plaintiff's wife +and children as well as himself, I must inquire what was its effect.</p> + +<p>The general question may be stated to be, whether the plaintiff's +<i>status</i>, as a slave, was so changed by his residence within that +territory, that he was not a slave in the State of Missouri, at the +time this action was brought.</p> + +<p>In such cases, two inquiries arise, which may be confounded, but +should be kept distinct.</p> + +<p>The first is, what was the law of the Territory into which the master +and slave went, respecting the relation between them?</p> + +<p>The second is, whether the State of Missouri recognises and allows the +effect of that law of the Territory, on the <i>status</i> of the slave, on +his return within its jurisdiction.</p> + +<p>As to the first of these questions, the will of States and na<span class="pagenum"><a name="Page_197" id="Page_197">-197-</a></span>tions, +by whose municipal law slavery is not recognised, has been manifested +in three different ways.</p> + +<p>One is, absolutely to dissolve the relation, and terminate the rights +of the master existing under the law of the country whence the parties +came. This is said by Lord Stowell, in the case of the slave Grace, (2 +Hag. Ad. R., 94,) and by the Supreme Court of Louisiana in the case of +<span class="err" title="Transcriber's Note: Marie">Maria</span> Louise <i>v.</i> Marot, (9 Louis. R., +473,) to be the law of France; and it has been the law of several +States of this Union, in respect to slaves introduced under certain +conditions. (Wilson <i>v.</i> Isabel, 5 Call's R., 430; Hunter <i>v.</i> +<span class="err" title="Transcriber's Note: Fulcher">Hulcher</span>, 1 Leigh, 172; Stewart <i>v.</i> Oaks, 5 Har. +and John., 107.)</p> + +<p>The second is, where the municipal law of a country not recognising +slavery, it is the will of the State to refuse the master all aid to +exercise any control over his slave; and if he attempt to do so, in a +manner justifiable only by that relation, to prevent the exercise of +that control. But no law exists, designed to operate directly on the +relation of master and slave, and put an end to that relation. This is +said by Lord Stowell, in the case above mentioned, to be the law of +England, and by Mr. Chief Justice Shaw, in the case of the +Commonwealth <i>v.</i> Aves, (18 Pick., 193,) to be the law of +Massachusetts.</p> + +<p>The third is, to make a distinction between the case of a master and +his slave only temporarily in the country, <i>animo non manendi</i>, and +those who are there to reside for permanent or indefinite purposes. +This is said by Mr. Wheaton to be the law of Prussia, and was formerly +the statute law of several States of our Union. It is necessary in +this case to keep in view this distinction between those countries +whose laws are designed to act directly on the <i>status</i> of a slave, +and make him a freeman, and those where his master can obtain no aid +from the laws to enforce his rights.</p> + +<p>It is to the last case only that the authorities, out of Missouri, +relied on by defendant, apply, when the residence in the +non-slaveholding Territory was permanent. In the Commonwealth <i>v.</i> +Aves, (18 Pick., 218,) Mr. Chief Justice Shaw said: "From the +principle above stated, on which a slave brought here becomes free, to +wit: that he becomes entitled to the protection of our laws, it would +seem to follow, as a necessary conclusion, that if the slave waives +the protection of those laws, and returns to the State where he is +held as a slave, his condition is not changed." It was upon this +ground, as is apparent from his whole reasoning, that Sir William +Scott rests his opinion in the case of the slave Grace. To use one of +his expressions, the effect of the law of England was to put the +liberty of the slave into a parenthesis. If there had been an<span class="pagenum"><a name="Page_198" id="Page_198">-198-</a></span> act of +Parliament declaring that a slave coming to England with his master +should thereby be deemed no longer to be a slave, it is easy to see +that the learned judge could not have arrived at the same conclusion. +This distinction is very clearly stated and shown by President Tucker, +in his opinion in the case of Betty <i>v.</i> Horton, (5 Leigh's Virginia +R., 615.) (See also Hunter <i>v.</i> <span class="err" title="Transcriber's Note: Fulcher">Fletcher</span>, +1 Leigh's Va. R., 172; <span class="err" title="Transcriber's Note: Marie">Maria</span> +Louise <i>v.</i> Marot, <span class="err" title="Transcriber's Note: 9 Louisiana R., 473">9 Louisiana R.</span>; Smith +<i>v.</i> Smith, 13 Ib., 441; Thomas <i>v.</i> Genevieve, 16 Ib., 483; Rankin +<i>v.</i> Lydia, 2 A.K. Marshall, 467; Davies <i>v.</i> Tingle, 8 B. Munroe, +539; <span class="err" title="Transcriber's Note: Griffith">Griffeth</span> <i>v.</i> Fanny, Gilm. Va. R., +143; Lumford <i>v.</i> Coquillon, 14 Martin's La. R., 405; Josephine <i>v.</i> +Poultney, 1 Louis. Ann. R., 329.)</p> + +<p>But if the acts of Congress on this subject are valid, the law of the +Territory of Wisconsin, within whose limits the residence of the +plaintiff and his wife, and their marriage and the birth of one or +both of their children, took place, falls under the first category, +and is a law operating directly on the <i>status</i> of the slave. By the +eighth section of the act of March 6, 1820, (3 Stat. at Large, 548,) +it was enacted that, within this Territory, "slavery and involuntary +servitude, otherwise than in the punishment of crimes, whereof the +parties shall have been duly convicted, shall be, and is hereby, +forever prohibited: <i>Provided, always</i>, that any person escaping into +the same, from whom labor or service is lawfully claimed in any State +or Territory of the United States, such fugitive may be lawfully +reclaimed, and conveyed to the person claiming his or her labor or +service, as aforesaid."</p> + +<p>By the act of April 20, 1836, (4 Stat. at Large, 10,) passed in the +same month and year of the removal of the plaintiff to Fort Snelling, +this part of the territory ceded by France, where Fort Snelling is, +together with so much of the territory of the United States east of +the Mississippi as now constitutes the State of Wisconsin, was brought +under a Territorial Government, under the name of the Territory of +Wisconsin. By the eighteenth section of this act, it was enacted, +"That the inhabitants of this Territory shall be entitled to and enjoy +all and singular the rights, privileges, and advantages, granted and +secured to the people of the Territory of the United States northwest +of the river Ohio, by the articles of compact contained in the +ordinance for the government of said Territory, passed on the 13th day +of July, 1787; and shall be subject to all the restrictions and +prohibitions in said articles of compact imposed upon the people of +the said Territory." The sixth article of that compact is, "there +shall be neither slavery nor involuntary servitude in the said +Territory, otherwise than in<span class="pagenum"><a name="Page_199" id="Page_199">-199-</a></span> the punishment of crimes, whereof the +party shall have been duly convicted. <i>Provided, always</i>, that any +person escaping into the same, from whom labor or service is lawfully +claimed in any one of the original States, such fugitive may be +lawfully reclaimed, and conveyed to the person claiming his or her +labor or service, as aforesaid." By other provisions of this act +establishing the Territory of Wisconsin, the laws of the United +States, and the then existing laws of the State of Michigan, are +extended over the Territory; the latter being subject to alteration +and repeal by the legislative power of the Territory created by the +act.</p> + +<p>Fort Snelling was within the Territory of Wisconsin, and these laws +were extended over it. The Indian title to that site for a military +post had been acquired from the Sioux nation as early as September 23, +1805, (Am. State Papers, Indian Affairs, vol. 1, p. 744,) and until +the erection of the Territorial Government, the persons at that post +were governed by the rules and articles of war, and such laws of the +United States, including the eighth section of the act of March 6, +1820, prohibiting slavery, as were applicable to their condition; but +after the erection of the Territory, and the extension of the laws of +the United States and the laws of Michigan over the whole of the +Territory, including this military post, the persons residing there +were under the dominion of those laws in all particulars to which the +rules and articles of war did not apply.</p> + +<p>It thus appears that, by these acts of Congress, not only was a +general system of municipal law borrowed from the State of Michigan, +which did not tolerate slavery, but it was positively enacted that +slavery and involuntary servitude, with only one exception, +specifically described, should not exist there. It is not simply that +slavery is not recognised and cannot be aided by the municipal law. It +is recognised for the purpose of being absolutely prohibited, and +declared incapable of existing within the Territory, save in the +instance of a fugitive slave.</p> + +<p>It would not be easy for the Legislature to employ more explicit +language to signify its will that the <i>status</i> of slavery should not +exist within the Territory, than the words found in the act of 1820, +and in the ordinance of 1787; and if any doubt could exist concerning +their application to cases of masters coming into the Territory with +their slaves to reside, that doubt must yield to the inference +required by the words of exception. That exception is, of cases of +fugitive slaves. An exception from a prohibition marks the extent of +the prohibition; for it would be absurd, as well as useless, to except +from a prohibi<span class="pagenum"><a name="Page_200" id="Page_200">-200-</a></span>tion a case not contained within it. (9 Wheat., 200.) I +must conclude, therefore, that it was the will of Congress that the +state of involuntary servitude of a slave, coming into the Territory +with his master, should cease to exist. The Supreme Court of Missouri +so held in Rachel <i>v.</i> Walker, (4 Misso. R., 350,) which was the case +of a military officer going into the Territory with two slaves.</p> + +<p>But it is a distinct question, whether the law of Missouri recognised +and allowed effect to the change wrought in the <i>status</i> of the +plaintiff, by force of the laws of the Territory of Wisconsin.</p> + +<p>I say the law of Missouri, because a judicial tribunal, in one State +or nation, can recognise personal rights acquired by force of the law +of any other State or nation, only so far as it is the law of the +former State that those rights should be recognised. But, in the +absence of positive law to the contrary, the will of every civilized +State must be presumed to be to allow such effect to foreign laws as +is in accordance with the settled rules of international law. And +legal tribunals are bound to act on this presumption. It may be +assumed that the motive of the State in allowing such operation to +foreign laws is what has been termed comity. But, as has justly been +said, (per Chief Justice Taney, 13 Pet., 589,) it is the comity of the +State, not of the court. The judges have nothing to do with the motive +of the State. Their duty is simply to ascertain and give effect to its +will. And when it is found by them that its will to depart from a rule +of international law has not been manifested by the State, they are +bound to assume that its will is to give effect to it. Undoubtedly, +every sovereign State may refuse to recognise a change, wrought by the +law of a foreign State, on the <i>status</i> of a person, while within such +foreign State, even in cases where the rules of international law +require that recognition. Its will to refuse such recognition may be +manifested by what we term statute law, or by the customary law of the +State. It is within the province of its judicial tribunals to inquire +and adjudge whether it appears, from the statute or customary law of +the State, to be the will of the State to refuse to recognise such +changes of <i>status</i> by force of foreign law, as the rules of the law +of nations require to be recognised. But, in my opinion, it is not +within the province of any judicial tribunal to refuse such +recognition from any political considerations, or any view it may take +of the exterior political relations between the State and one or more +foreign States, or any impressions it may have that a change of +foreign opinion and action on the subject of slavery may afford a +reason why the State should change its own action. To understand and +give<span class="pagenum"><a name="Page_201" id="Page_201">-201-</a></span> just effect to such considerations, and to change the action of +the State in consequence of them, are functions of diplomatists and +legislators, not of judges.</p> + +<p>The inquiry to be made on this part of the case is, therefore, whether +the State of Missouri has, by its statute, or its customary law, +manifested its will to displace any rule of international law, +applicable to a change of the <i>status</i> of a slave, by foreign law.</p> + +<p>I have not heard it suggested that there was any statute of the State +of Missouri bearing on this question. The customary law of Missouri is +the common law, introduced by statute in 1816. (1 Ter. Laws, 436.) And +the common law, as Blackstone says, (4 Com., 67,) adopts, in its full +extent, the law of nations, and holds it to be a part of the law of +the land.</p> + +<p>I know of no sufficient warrant for declaring that any rule of +international law, concerning the recognition, in that State, of a +change of <i>status</i>, wrought by an extra-territorial law, has been +displaced or varied by the will of the State of Missouri.</p> + +<p>I proceed then to inquire what the rules of international law +prescribe concerning the change of <i>status</i> of the plaintiff wrought +by the law of the Territory of Wisconsin.</p> + +<p>It is generally agreed by writers upon international law, and the rule +has been judicially applied in a great number of cases that wherever +any question may arise concerning the <i>status</i> of a person, it must be +determined according to that law which has next previously rightfully +operated on and fixed that <i>status</i>. And, further, that the laws of a +country do not rightfully operate upon and fix the <i>status</i> of persons +who are within its limits <i>in itinere</i>, or who are abiding there for +definite temporary purposes, as for health, curiosity, or occasional +business; that these laws, known to writers on public and private +international law as personal statutes, operate only on the +inhabitants of the country. Not that it is or can be denied that each +independent nation may, if it thinks fit, apply them to all persons +within their limits. But when this is done, not in conformity with the +principles of international law, other States are not understood to be +willing to recognise or allow effect to such applications of personal +statutes.</p> + +<p>It becomes necessary, therefore, to inquire whether the operation of +the laws of the Territory of Wisconsin upon the <i>status</i> of the +plaintiff was or was not such an operation as these principles of +international law require other States to recognise and allow effect +to.</p> + +<p>And this renders it needful to attend to the particular facts and +circumstances of this case.<span class="pagenum"><a name="Page_202" id="Page_202">-202-</a></span></p> + +<p>It appears that this case came on for trial before the Circuit Court +and a jury, upon an issue, in substance, whether the plaintiff, +together with his wife and children, were the slaves of the defendant.</p> + +<p>The court instructed the jury that, "upon the facts in this case, the +law is with the defendant." This withdrew from the jury the +consideration and decision of every matter of fact. The evidence in +the case consisted of written admissions, signed by the counsel of the +parties. If the case had been submitted to the judgment of the court, +upon an agreed statement of facts, entered of record, in place of a +special verdict, it would have been necessary for the court below, and +for this court, to pronounce its judgment solely on those facts, thus +agreed, without inferring any other facts therefrom. By the rules of +the common law applicable to such a case, and by force of the seventh +article of the amendments of the Constitution, this court is precluded +from finding any fact not agreed to by the parties on the record. No +submission to the court on a statement of facts was made. It was a +trial by jury, in which certain admissions, made by the parties, were +the evidence. The jury were not only competent, but were bound to draw +from that evidence every inference which, in their judgment, exercised +according to the rules of law, it would warrant. The Circuit Court +took from the jury the power to draw any inferences from the +admissions made by the parties, and decided the case for the +defendant. This course can be justified here, if at all, only by its +appearing that upon the facts agreed, and all such inferences of fact +favorable to the plaintiff's case, as the jury might have been +warranted in drawing from those admissions, the law was with the +defendant. Otherwise, the plaintiff would be deprived of the benefit +of his trial by jury, by whom, for aught we can know, those inferences +favorable to his case would have been drawn.</p> + +<p>The material facts agreed, bearing on this part of the case, are, that +Dr. Emerson, the plaintiff's master, resided about two years at the +military post of Fort Snelling, being a surgeon in the army of the +United States, his domicil of origin being unknown; and what, if +anything, he had done, to preserve or change his domicil prior to his +residence at Rock Island, being also unknown.</p> + +<p>Now, it is true, that under some circumstances the residence of a +military officer at a particular place, in the discharge of his +official duties, does not amount to the acquisition of a technical +domicil. But it cannot be affirmed, with correctness, that it never +does. There being actual residence, and this being presumptive +evidence of domicil, all the circumstances<span class="pagenum"><a name="Page_203" id="Page_203">-203-</a></span> of the case must be +considered, before a legal conclusion can be reached, that his place +of residence is not his domicil. If a military officer stationed at a +particular post should entertain an expectation that his residence +there would be indefinitely protracted, and in consequence should +remove his family to the place where his duties were to be discharged, +form a permanent domestic establishment there, exercise there the +civil rights and discharge the civil duties of an inhabitant, while he +did no act and manifested no intent to have a domicil elsewhere, I +think no one would say that the mere fact that he was himself liable +to be called away by the orders of the Government would prevent his +acquisition of a technical domicil at the place of the residence of +himself and his family. In other words, I do not think a military +officer incapable of acquiring a domicil. (Bruce <i>v.</i> Bruce, 2 Bos. +and Pul., 230; Munroe <i>v.</i> Douglass, 5 Mad. Ch. R., 232.) This being +so, this case stands thus: there was evidence before the jury that +Emerson resided about two years at Fort Snelling, in the Territory of +Wisconsin. This may or may not have been with such intent as to make +it his technical domicil. The presumption is that it was. It is so +laid down by this court, in Ennis <i>v.</i> Smith, (14 How.,) and the +authorities in support of the position are there referred to. His +intent was a question of fact for the jury. (Fitchburg <i>v.</i> +Winchendon, 4 Cush., 190.)</p> + +<p>The case was taken from the jury. If they had power to find that the +presumption of the necessary intent had not been rebutted, we cannot +say, on this record, that Emerson had not his technical domicil at +Fort Snelling. But, for reasons which I shall now proceed to give, I +do not deem it necessary in this case to determine the question of the +technical domicil of Dr. Emerson.</p> + +<p>It must be admitted that the inquiry whether the law of a particular +country has rightfully fixed the <i>status</i> of a person, so that in +accordance with the principles of international law that <i>status</i> +should be recognised in other jurisdictions, ordinarily depends on the +question whether the person was domiciled in the country whose laws +are asserted to have fixed his <i>status</i>. But, in the United States, +questions of this kind may arise, where an attempt to decide solely +with reference to technical domicil, tested by the rules which are +applicable to changes of places of abode from one country to another, +would not be consistent with sound principles. And, in my judgment, +this is one of those cases.</p> + +<p>The residence of the plaintiff, who was taken by his master, Dr. +Emerson, as a slave, from Missouri to the State of Illinois, and +thence to the Territory of Wisconsin, must be deemed to<span class="pagenum"><a name="Page_204" id="Page_204">-204-</a></span> have been for +the time being, and until he asserted his own separate intention, the +same as the residence of his master; and the inquiry, whether the +personal statutes of the Territory were rightfully extended over the +plaintiff, and ought, in accordance with the rules of international +law, to be allowed to fix his <i>status</i>, must depend upon the +circumstances under which Dr. Emerson went into that Territory, and +remained there; and upon the further question, whether anything was +there rightfully done by the plaintiff to cause those personal +statutes to operate on him.</p> + +<p>Dr. Emerson was an officer in the army of the United States. He went +into the Territory to discharge his duty to the United States. The +place was out of the jurisdiction of any particular State, and within +the exclusive jurisdiction of the United States. It does not appear +where the domicil of origin of Dr. Emerson was, nor whether or not he +had lost it, and gained another domicil, nor of what particular State, +if any, he was a citizen.</p> + +<p>On what ground can it be denied that all valid laws of the United +States, constitutionally enacted by Congress for the government of the +Territory, rightfully extended over an officer of the United States +and his servant who went into the Territory to remain there for an +indefinite length of time, to take part in its civil or military +affairs? They were not foreigners, coming from abroad. Dr. Emerson was +a citizen of the country which had exclusive jurisdiction over the +Territory; and not only a citizen, but he went there in a public +capacity, in the service of the same sovereignty which made the laws. +Whatever those laws might be, whether of the kind denominated personal +statutes, or not, so far as they were intended by the legislative +will, constitutionally expressed, to operate on him and his servant, +and on the relations between them, they had a rightful operation, and +no other State or country can refuse to allow that those laws might +rightfully operate on the plaintiff and his servant, because such a +refusal would be a denial that the United States could, by laws +constitutionally enacted, govern their own servants, residing on their +own Territory, over which the United States had the exclusive control, +and in respect to which they are an independent sovereign power. +Whether the laws now in question were constitutionally enacted, I +repeat once more, is a separate question. But, assuming that they +were, and that they operated directly on the <i>status</i> of the +plaintiff, I consider that no other State or country could question +the rightful power of the United States so to legislate, or, +consistently with the settled rules of international law, could refuse +to recognise the effects<span class="pagenum"><a name="Page_205" id="Page_205">-205-</a></span> of such legislation upon the <i>status</i> of +their officers and servants, as valid everywhere.</p> + +<p>This alone would, in my apprehension, be sufficient to decide this +question.</p> + +<p>But there are other facts stated on the record which should not be +passed over. It is agreed that, in the year 1836, the plaintiff, while +residing in the Territory, was married, with the consent of Dr. +Emerson, to Harriet, named in the declaration as his wife, and that +Eliza and Lizzie were the children of that marriage, the first named +having been born on the Mississippi river, north of the line of +Missouri, and the other having been born after their return to +Missouri. And the inquiry is, whether, after the marriage of the +plaintiff in the Territory, with the consent of Dr. Emerson, any other +State or country can, consistently with the settled rules of +international law, refuse to recognise and treat him as a free man, +when suing for the liberty of himself, his wife, and the children of +that marriage. It is in reference to his <i>status</i>, as viewed in other +States and countries, that the contract of marriage and the birth of +children becomes strictly material. At the same time, it is proper to +observe that the female to whom he was married having been taken to +the same military post of Fort Snelling as a slave, and Dr. Emerson +claiming also to be her master at the time of her marriage, her +<i>status</i>, and that of the children of the marriage, are also affected +by the same considerations.</p> + +<p>If the laws of Congress governing the Territory of Wisconsin were +constitutional and valid laws, there can be no doubt these parties +were capable of contracting a lawful marriage, attended with all the +usual civil rights and obligations of that condition. In that +Territory they were absolutely free persons, having full capacity to +enter into the civil contract of marriage.</p> + +<p>It is a principle of international law, settled beyond controversy in +England and America, that a marriage, valid by the law of the place +where it was contracted, and not in fraud of the law of any other +place, is valid everywhere; and that no technical domicil at the place +of the contract is necessary to make it so. (See Bishop on Mar. and +Div., 125-129, where the cases are collected.)</p> + +<p>If, in Missouri, the plaintiff were held to be a slave, the validity +and operation of his contract of marriage must be denied. He can have +no legal rights; of course, not those of a husband and father. And the +same is true of his wife and children. The denial of his rights is the +denial of theirs. So that, though lawfully married in the Territory, +when they came out of it, into the State of Missouri, they were no +longer<span class="pagenum"><a name="Page_206" id="Page_206">-206-</a></span> husband and wife; and a child of that lawful marriage, though +born under the same dominion where its parents contracted a lawful +marriage, is not the fruit of that marriage, nor the child of its +father, but subject to the maxim, <i>partus sequitur ventrem</i>.</p> + +<p>It must be borne in mind that in this case there is no ground for the +inquiry, whether it be the will of the State of Missouri not to +recognise the validity of the marriage of a fugitive slave, who +escapes into a State or country where slavery is not allowed, and +there contracts a marriage; or the validity of such a marriage, where +the master, being a citizen of the State of Missouri, voluntarily goes +with his slave, <i>in itinere</i>, into a State or country which does not +permit slavery to exist, and the slave there contracts marriage +without the consent of his master; for in this case, it is agreed, Dr. +Emerson did consent; and no further question can arise concerning his +rights, so far as their assertion is inconsistent with the validity of +the marriage. Nor do I know of any ground for the assertion that this +marriage was in fraud of any law of Missouri. It has been held by this +court, that a bequest of property by a master to his slave, by +necessary implication entitles the slave to his freedom; because, only +as a freeman could he take and hold the bequest. (Legrand <i>v.</i> +Darnall, 2 Pet. R., 664.) It has also been held, that when a master +goes with his slave to reside for an indefinite period in a State +where slavery is not tolerated, this operates as an act of +manumission; because it is sufficiently expressive of the consent of +the master that the slave should be free. (2 Marshall's Ken. R., 470; +14 Martin's Louis. R., 401.)</p> + +<p>What, then, shall we say of the consent of the master, that the slave +may contract a lawful marriage, attended with all the civil rights and +duties which belong to that relation; that he may enter into a +relation which none but a free man can assume—a relation which +involves not only the rights and duties of the slave, but those of the +other party to the contract, and of their descendants to the remotest +generation? In my judgment, there can be no more effectual abandonment +of the legal rights of a master over his slave, than by the consent of +the master that the slave should enter into a contract of marriage, in +a free State, attended by all the civil rights and obligations which +belong to that condition.</p> + +<p>And any claim by Dr. Emerson, or any one claiming under him, the +effect of which is to deny the validity of this marriage, and the +lawful paternity of the children born from it, wherever asserted, is, +in my judgment, a claim inconsistent with good faith and sound reason, +as well as with the rules of international law. And I go further: in +my opinion, a law of the State<span class="pagenum"><a name="Page_207" id="Page_207">-207-</a></span> of Missouri, which should thus annul a +marriage, lawfully contracted by these parties while resident in +Wisconsin, not in fraud of any law of Missouri, or of any right of Dr. +Emerson, who consented thereto, would be a law impairing the +obligation of a contract, and within the prohibition of the +Constitution of the United States. (See 4 Wheat., 629, 695, 696.)</p> + +<p>To avoid misapprehension on this important and difficult subject, I +will state, distinctly, the conclusions at which I have arrived. They +are:</p> + +<p><i>First.</i> The rules of international law respecting the emancipation of +slaves, by the rightful operation of the laws of another State or +country upon the <i>status</i> of the slave, while resident in such foreign +State or country, are part of the common law of Missouri, and have not +been abrogated by any statute law of that State.</p> + +<p><i>Second.</i> The laws of the United States, constitutionally enacted, +which operated directly on and changed the <i>status</i> of a slave coming +into the Territory of Wisconsin with his master, who went thither to +reside for an indefinite length of time, in the performance of his +duties as an officer of the United States, had a rightful operation on +the <i>status</i> of the slave, and it is in conformity with the rules of +international law that this change of <i>status</i> should be recognised +everywhere.</p> + +<p><i>Third.</i> The laws of the United States, in operation in the Territory +of Wisconsin at the time of the plaintiff's residence there, did act +directly on the <i>status</i> of the plaintiff, and change his <i>status</i> to +that of a free man.</p> + +<p><i>Fourth.</i> The plaintiff and his wife were capable of contracting, and, +with the consent of Dr. Emerson, did contract a marriage in that +Territory, valid under its laws; and the validity of this marriage +cannot be questioned in Missouri, save by showing that it was in fraud +of the laws of that State, or of some right derived from them; which +cannot be shown in this case, because the master consented to it.</p> + +<p><i>Fifth.</i> That the consent of the master that his slave, residing in a +country which does not tolerate slavery, may enter into a lawful +contract of marriage, attended with the civil rights and duties which +belong to that condition, is an effectual act of emancipation. And the +law does not enable Dr. Emerson, or any one claiming under him, to +assert a title to the married persons as slaves, and thus destroy the +obligation of the contract of marriage, and bastardize their issue, +and reduce them to slavery.</p> + +<p>But it is insisted that the Supreme Court of Missouri has settled this +case by its decision in Scott <i>v.</i> Emerson, (15 Missouri Reports, +576;) and that this decision is in conformity<span class="pagenum"><a name="Page_208" id="Page_208">-208-</a></span> with the weight of +authority elsewhere, and with sound principles. If the Supreme Court +of Missouri had placed its decision on the ground that it appeared Dr. +Emerson never became domiciled in the Territory and so its laws could +not rightfully operate on him and his slave; and the facts that he +went there to reside indefinitely, as an officer of the United States, +and that the plaintiff was lawfully married there, with Dr. Emerson's +consent, were left out of view, the decision would find support in +other cases, and I might not be prepared to deny its correctness. But +the decision is not rested on this ground. The domicil of Dr. Emerson +in that Territory is not questioned in that decision; and it is placed +on a broad denial of the operation, in Missouri, of the law of any +foreign State or country upon the <i>status</i> of a slave, going with his +master from Missouri into such foreign State or country, even though +they went thither to become, and actually became, permanent +inhabitants of such foreign State or country, the laws whereof acted +directly on the <i>status</i> of the slave, and changed his <i>status</i> to +that of a freeman.</p> + +<p>To the correctness of such a decision I cannot assent. In my judgment, +the opinion of the majority of the court in that case is in conflict +with its previous decisions, with a great weight of judicial authority +in other slaveholding States, and with fundamental principles of +private international law. Mr. Chief Justice Gamble, in his dissenting +opinion in that case, said:</p> + +<p>"I regard the question as conclusively settled by repeated +adjudications of this court; and if I doubted or denied the propriety +of those decisions, I would not feel myself any more at liberty to +overturn them, than I would any other series of decisions by which the +law upon any other question had been settled. There is with me nothing +in the law of slavery which distinguishes it from the law on any other +subject, or allows any more accommodation to the temporary excitements +which have gathered around it.... But in the midst of all such +excitement, it is proper that the judicial mind, calm and +self-balanced, should adhere to principles established when there was +no feeling to disturb the view of the legal questions upon which the +rights of parties depend."</p> + +<p>"In this State, it has been recognised from the beginning of the +Government as a correct position in law, that the master who takes his +slave to reside in a State or Territory where slavery is prohibited, +thereby emancipates his slave." (Winney <i>v.</i> Whitesides, 1 Mo., 473; +<span class="err" title="Transcriber's Note: La Grange">Le Grange</span> <i>v.</i> Chouteau, 2 Mo., 20; +Milley <i>v.</i> Smith, Ib., 36; Ralph <i>v.</i> Duncan, 3 Mo., 194; Julia <i>v.</i> +McKinney, Ib., 270; Nat <i>v.</i> Ruddle, Ib., 400; Rachel <i>v.</i> Walker, 4 +Mo., 350; Wilson <i>v.</i> Melvin, 592.)<span class="pagenum"><a name="Page_209" id="Page_209">-209-</a></span></p> + +<p>Chief Justice Gamble has also examined the decisions of the courts of +other States in which slavery is established, and finds them in +accordance with these preceding decisions of the Supreme Court of +Missouri to which he refers.</p> + +<p>It would be a useless parade of learning for me to go over the ground +which he has so fully and ably occupied.</p> + +<p>But it is further insisted we are bound to follow this decision. I do +not think so. In this case, it is to be determined what laws of the +United States were in operation in the Territory of Wisconsin, and +what was their effect on the <i>status</i> of the plaintiff. Could the +plaintiff contract a lawful marriage there? Does any law of the State +of Missouri impair the obligation of that contract of marriage, +destroy his rights as a husband, bastardize the issue of the marriage, +and reduce them to a state of slavery?</p> + +<p>These questions, which arise exclusively under the Constitution and +laws of the United States, this court, under the Constitution and laws +of the United States, has the rightful authority finally to decide. +And if we look beyond these questions, we come to the consideration +whether the rules of international law, which are part of the laws of +Missouri until displaced by some statute not alleged to exist, do or +do not require the <i>status</i> of the plaintiff, as fixed by the laws of +the Territory of Wisconsin, to be recognised in Missouri. Upon such a +question, not depending on any statute or local usage, but on +principles of universal jurisprudence, this court has repeatedly +asserted it could not hold itself bound by the decisions of State +courts, however great respect might be felt for their learning, +ability, and impartiality. (See Swift <i>v.</i> Tyson, 16 Peters's R., 1; +Carpenter <i>v.</i> The Providence Ins. Co., Ib., 495; Foxcroft <i>v.</i> +Mallet, 4 How., 353; Rowan <i>v.</i> Runnels, 5 How., 134.)</p> + +<p>Some reliance has been placed on the fact that the decision in the +Supreme Court of Missouri was between these parties, and the suit +there was abandoned to obtain another trial in the courts of the +United States.</p> + +<p>In Homer <i>v.</i> Brown, (16 How., 354,) this court made a decision upon +the construction of a devise of lands, in direct opposition to the +unanimous opinion of the Supreme Court of Massachusetts, between the +same parties, respecting the same subject-matter—the claimant having +become nonsuit in the State court, in order to bring his action in the +Circuit Court of the United States. I did not sit in that case, having +been of counsel for one of the parties while at the bar; but, on +examining the report of the argument of the counsel for the plaintiff +in error, I find they made the point, that this court ought to give +effect to the construction put upon the will by the State<span class="pagenum"><a name="Page_210" id="Page_210">-210-</a></span> court, to +the end that rights respecting lands may be governed by one law, and +that the law of the place where the lands are situated; that they +referred to the State decision of the case, reported in 3 Cushing, +390, and to many decisions of this court. But this court does not seem +to have considered the point of sufficient importance to notice it in +their opinions. In Millar <i>v.</i> Austin, (13 How., 218,) an action was +brought by the endorsee of a written promise. The question was, +whether it was negotiable under a statute of Ohio. The Supreme Court +of that State having decided it was not negotiable, the plaintiff +became nonsuit, and brought his action in the Circuit Court of the +United States. The decision of the Supreme Court of the State, +reported 4 Ves., L.J., 527, was relied on. This court unanimously held +the paper to be negotiable.</p> + +<p>When the decisions of the highest court of a State are directly in +conflict with each other, it has been repeatedly held, here, that the +last decision is not necessarily to be taken as the rule. (State Bank +<i>v.</i> Knoop, 16 How., 369; Pease <i>v.</i> Peck, 18 How., 599.)</p> + +<p>To these considerations I desire to add, that it was not made known to +the Supreme Court of Missouri, so far as appears, that the plaintiff +was married in Wisconsin with the consent of Dr. Emerson, and it is +not made known to us that Dr. Emerson was a citizen of Missouri, a +fact to which that court seem to have attached much importance.</p> + +<p>Sitting here to administer the law between these parties, I do not +feel at liberty to surrender my own convictions of what the law +requires, to the authority of the decision in 15 Missouri Reports.</p> + +<p>I have thus far assumed, merely for the purpose of the argument, that +the laws of the United States, respecting slavery in this Territory, +were constitutionally enacted by Congress. It remains to inquire +whether they are constitutional and binding laws.</p> + +<p>In the argument of this part of the case at bar, it was justly +considered by all the counsel to be necessary to ascertain the source +of the power of Congress over the territory belonging to the United +States. Until this is ascertained, it is not possible to determine the +extent of that power. On the one side it was maintained that the +Constitution contains no express grant of power to organize and govern +what is now known to the laws of the United States as a Territory. +That whatever power of this kind exists, is derived by implication +from the capacity of the United States to hold and acquire territory +out of the limits of any State, and the necessity for its having some +government.<span class="pagenum"><a name="Page_211" id="Page_211">-211-</a></span></p> + +<p>On the other side, it was insisted that the Constitution has not +failed to make an express provision for this end, and that it is found +in the third section of the fourth article of the Constitution.</p> + +<p>To determine which of these is the correct view, it is needful to +advert to some facts respecting this subject, which existed when the +Constitution was framed and adopted. It will be found that these facts +not only shed much light on the question, whether the framers of the +Constitution omitted to make a provision concerning the power of +Congress to organize and govern Territories, but they will also aid in +the construction of any provision which may have been made respecting +this subject.</p> + +<p>Under the Confederation, the unsettled territory within the limits of +the United States had been a subject of deep interest. Some of the +States insisted that these lands were within their chartered +boundaries, and that they had succeeded to the title of the Crown to +the soil. On the other hand, it was argued that the vacant lands had +been acquired by the United States, by the war carried on by them +under a common Government and for the common interest.</p> + +<p>This dispute was further complicated by unsettled questions of +boundary among several States. It not only delayed the accession of +Maryland to the Confederation, but at one time seriously threatened +its existence. (5 Jour. of Cong., 208, 442.) Under the pressure of +these circumstances, Congress earnestly recommended to the several +States a cession of their claims and rights to the United States. (5 +Jour. of Cong., 442.) And before the Constitution was framed, it had +been begun. That by New York had been made on the 1st day of March, +1781; that of Virginia on the 1st day of March, 1784; that of +Massachusetts on the 19th day of April, 1785; that of Connecticut on +the 14th day of September, 1786; that of South Carolina on the 8th day +of August, 1787, while the Convention for framing the Constitution was +in session.</p> + +<p>It is very material to observe, in this connection, that each of these +acts cedes, in terms, to the United States, as well the jurisdiction +as the soil.</p> + +<p>It is also equally important to note that, when the Constitution was +framed and adopted, this plan of vesting in the United States, for the +common good, the great tracts of ungranted lands claimed by the +several States, in which so deep an interest was felt, was yet +incomplete. It remained for North Carolina and Georgia to cede their +extensive and valuable claims. These were made, by North Carolina on +the 25th day of February, 1790, and by Georgia on the 24th day of +April,<span class="pagenum"><a name="Page_212" id="Page_212">-212-</a></span> 1802. The terms of these last-mentioned cessions will +hereafter be noticed in another connection; but I observe here that +each of them distinctly shows, upon its face, that they were not only +in execution of the general plan proposed by the Congress of the +Confederation, but of a formed purpose of each of these States, +existing when the assent of their respective people was given to the +Constitution of the United States.</p> + +<p>It appears, then, that when the Federal Constitution was framed, and +presented to the people of the several States for their consideration, +the unsettled territory was viewed as justly applicable to the common +benefit, so far as it then had or might attain thereafter a pecuniary +value; and so far as it might become the seat of new States, to be +admitted into the Union upon an equal footing with the original +States. And also that the relations of the United States to that +unsettled territory were of different kinds. The titles of the States +of New York, Virginia, Massachusetts, Connecticut, and South Carolina, +as well of soil as of jurisdiction, had been transferred to the United +States. North Carolina and Georgia had not actually made transfers, +but a confident expectation, founded on their appreciation of the +justice of the general claim, and fully justified by the results, was +entertained, that these cessions would be made. The ordinance of 1787 +had made provision for the temporary government of so much of the +territory actually ceded as lay northwest of the river Ohio.</p> + +<p>But it must have been apparent, both to the framers of the +Constitution and the people of the several States who were to act upon +it, that the Government thus provided for could not continue, unless +the Constitution should confer on the United States the necessary +powers to continue it. That temporary Government, under the ordinance, +was to consist of certain officers, to be appointed by and responsible +to the Congress of the Confederation; their powers had been conferred +and defined by the ordinance. So far as it provided for the temporary +government of the Territory, it was an ordinary act of legislation, +deriving its force from the legislative power of Congress, and +depending for its vitality upon the continuance of that legislative +power. But the officers to be appointed for the Northwestern +Territory, after the adoption of the Constitution, must necessarily be +officers of the United States, and not of the Congress of the +Confederation; appointed and commissioned by the President, and +exercising powers derived from the United States under the +Constitution.</p> + +<p>Such was the relation between the United States and the Northwestern +Territory, which all reflecting men must have foreseen would exist, +when the Government created by the<span class="pagenum"><a name="Page_213" id="Page_213">-213-</a></span> Constitution should supersede that +of the Confederation. That if the new Government should be without +power to govern this Territory, it could not appoint and commission +officers, and send them into the Territory, to exercise there +legislative, judicial, and executive power; and that this Territory, +which was even then foreseen to be so important, both politically and +financially, to all the existing States, must be left not only without +the control of the General Government, in respect to its future +political relations to the rest of the States, but absolutely without +any Government, save what its inhabitants, acting in their primary +capacity, might from time to time create for themselves.</p> + +<p>But this Northwestern Territory was not the only territory, the soil +and jurisdiction whereof were then understood to have been ceded to +the United States. The cession by South Carolina, made in August, +1787, was of "all the territory included within the river Mississippi, +and a line beginning at that part of the said river which is +intersected by the southern boundary of North Carolina, and continuing +along the said boundary line until it intersects the ridge or chain of +mountains which divides the Eastern from the Western waters; then to +be continued along the top of the said ridge of mountains, until it +intersects a line to be drawn due west from the head of the southern +branch of the Tugaloo river, to the said mountains; and thence to run +a due west course to the river Mississippi."</p> + +<p>It is true that by subsequent explorations it was ascertained that the +source of the Tugaloo river, upon which the title of South Carolina +depended, was so far to the northward, that the transfer conveyed only +a narrow slip of land, about twelve miles wide, lying on the top of +the ridge of mountains, and extending from the northern boundary of +Georgia to the southern boundary of North Carolina. But this was a +discovery made long after the cession, and there can be no doubt that +the State of South Carolina, in making the cession, and the Congress +in accepting it, viewed it as a transfer to the United States of the +soil and jurisdiction of an extensive and important part of the +unsettled territory ceded by the Crown of Great Britain by the treaty +of peace, though its quantity or extent then remained to be +ascertained.<a name="FNanchor_5_5" id="FNanchor_5_5"></a><a href="#Footnote_5_5" class="fnanchor">[5]</a></p> + +<p>It must be remembered also, as has been already stated, that not only +was there a confident expectation entertained by the<span class="pagenum"><a name="Page_214" id="Page_214">-214-</a></span> other States, +that North Carolina and Georgia would complete the plan already so far +executed by New York, Virginia, Massachusetts, Connecticut, and South +Carolina, but that the opinion was in no small degree prevalent, that +the just title to this "back country," as it was termed, had vested in +the United States by the treaty of peace, and could not rightfully be +claimed by any individual State.</p> + +<p>There is another consideration applicable to this part of the subject, +and entitled, in my judgment, to great weight.</p> + +<p>The Congress of the Confederation had assumed the power not only to +dispose of the lands ceded, but to institute Governments and make laws +for their inhabitants. In other words, they had proceeded to act under +the cession, which, as we have seen, was as well of the jurisdiction +as of the soil. This ordinance was passed on the 13th of July, 1787. +The Convention for framing the Constitution was then in session at +Philadelphia. The proof is direct and decisive, that it was known to +the Convention.<a name="FNanchor_6_6" id="FNanchor_6_6"></a><a href="#Footnote_6_6" class="fnanchor">[6]</a> It is equally clear that it was admitted and +understood not to be within the legitimate powers of the Confederation +to pass this ordinance. (Jefferson's Works, vol. 9, pp. 251, 276; +Federalist, Nos. 38, 43.)</p> + +<p>The importance of conferring on the new Government regular powers +commensurate with the objects to be attained, and thus avoiding the +alternative of a failure to execute the trust assumed by the +acceptance of the cessions made and expected, or its execution by +usurpation, could scarcely fail to be perceived. That it was in fact +perceived, is clearly shown by the Federalist, (No. 38,) where this +very argument is made use of in commendation of the Constitution.</p> + +<p>Keeping these facts in view, it may confidently be asserted that there +is very strong reason to believe, before we examine the Constitution +itself, that the necessity for a competent grant of power to hold, +dispose of, and govern territory, ceded and expected to be ceded, +could not have escaped the attention of those who framed or adopted +the Constitution; and that if it did not escape their attention, it +could not fail to be adequately provided for.</p> + +<p>Any other conclusion would involve the assumption that a subject of +the gravest national concern, respecting which the small States felt +so much jealousy that it had been almost an insurmountable obstacle to +the formation of the Confederation, and as to which all the States had +deep pecuniary and political interests, and which had been so recently +and constantly agita<span class="pagenum"><a name="Page_215" id="Page_215">-215-</a></span>ted, was nevertheless overlooked; or that such a +subject was not overlooked, but designedly left unprovided for, though +it was manifestly a subject of common concern, which belonged to the +care of the General Government, and adequate provision for which could +not fail to be deemed necessary and proper.</p> + +<p>The admission of new States, to be framed out of the ceded territory, +early attracted the attention of the Convention. Among the resolutions +introduced by Mr. Randolph, on the 29th of May, was one on this +subject, (Res. No. 10, 5 Elliot, 128,) which, having been affirmed in +Committee of the Whole, on the 5th of June, (5 Elliot, 156,) and +reported to the Convention on the 13th of June, (5 Elliot, 190,) was +referred to the Committee of Detail, to prepare the Constitution, on +the 26th of July, (5 Elliot, 376.) This committee reported an article +for the admission of new States "lawfully constituted or established." +Nothing was said concerning the power of Congress to prepare or form +such States. This omission struck Mr. Madison, who, on the 18th of +August, (5 Elliot, 439,) moved for the insertion of power to dispose +of the unappropriated lands of the United States, and to institute +temporary Governments for new States arising therein.</p> + +<p>On the 29th of August, (5 Elliot, 492,) the report of the committee +was taken up, and after debate, which exhibited great diversity of +views concerning the proper mode of providing for the subject, arising +out of the supposed diversity of interests of the large and small +States, and between those which had and those which had not unsettled +territory, but no difference of opinion respecting the propriety and +necessity of some adequate provision for the subject, Gouverneur +Morris moved the clause as it stands in the Constitution. This met +with general approbation, and was at once adopted. The whole section +is as follows:</p> + +<p>"New States may be admitted by the Congress into this Union; but no +new State shall be formed or erected within the jurisdiction of any +other State, nor any State be formed by the junction of two or more +States, or parts of States, without the consent of the Legislatures of +the States concerned, as well as of Congress.</p> + +<p>"The Congress shall have power to dispose of and make all needful +rules and regulations respecting the territory or other property +belonging to the United States; and nothing in this Constitution shall +be so construed as to prejudice any claims of the United States or any +particular State."</p> + +<p>That Congress has some power to institute temporary Governments over +the territory, I believe all agree; and, if it be admitted that the +necessity of some power to govern the terri<span class="pagenum"><a name="Page_216" id="Page_216">-216-</a></span>tory of the United States +could not and did not escape the attention of the Convention and the +people, and that the necessity is so great, that, in the absence of +any express grant, it is strong enough to raise an implication of the +existence of that power, it would seem to follow that it is also +strong enough to afford material aid in construing an express grant of +power respecting that territory; and that they who maintain the +existence of the power, without finding any words at all in which it +is conveyed, should be willing to receive a reasonable interpretation +of language of the Constitution, manifestly intended to relate to the +territory, and to convey to Congress some authority concerning it.</p> + +<p>It would seem, also, that when we find the subject-matter of the +growth and formation and admission of new States, and the disposal of +the territory for these ends, were under consideration, and that some +provision therefor was expressly made, it is improbable that it would +be, in its terms, a grossly inadequate provision; and that an +indispensably necessary power to institute temporary Governments, and +to legislate for the inhabitants of the territory, was passed silently +by, and left to be deduced from the necessity of the case.</p> + +<p>In the argument at the bar, great attention has been paid to the +meaning of the word "territory."</p> + +<p>Ordinarily, when the territory of a sovereign power is spoken of, it +refers to that tract of country which is under the political +jurisdiction of that sovereign power. Thus Chief Justice Marshall (in +United States <i>v.</i> Bevans, 3 Wheat., 386) says: "What, then, is the +extent of jurisdiction which a State possesses? We answer, without +hesitation, the jurisdiction of a State is coextensive with its +territory." Examples might easily be multiplied of this use of the +word, but they are unnecessary, because it is familiar. But the word +"territory" is not used in this broad and general sense in this clause +of the Constitution.</p> + +<p>At the time of the adoption of the Constitution, the United States +held a great tract of country northwest of the Ohio; another tract, +then of unknown extent, ceded by South Carolina; and a confident +expectation was then entertained, and afterwards realized, that they +then were or would become the owners of other great tracts, claimed by +North Carolina and Georgia. These ceded tracts lay within the limits +of the United States, and out of the limits of any particular State; +and the cessions embraced the civil and political jurisdiction, and so +much of the soil as had not previously been granted to individuals.</p> + +<p>These words, "territory belonging to the United States,"<span class="pagenum"><a name="Page_217" id="Page_217">-217-</a></span> were not +used in the Constitution to describe an abstraction, but to identify +and apply to these actual subjects matter then existing and belonging +to the United States, and other similar subjects which might +afterwards be acquired; and this being so, all the essential qualities +and incidents attending such actual subjects are embraced within the +words "territory belonging to the United States," as fully as if each +of those essential qualities and incidents had been specifically +described.</p> + +<p>I say, the essential qualities and incidents. But in determining what +were the essential qualities and incidents of the subject with which +they were dealing, we must take into consideration not only all the +particular facts which were immediately before them, but the great +consideration, ever present to the minds of those who framed and +adopted the Constitution, that they were making a frame of government +for the people of the United States and their posterity, under which +they hoped the United States might be, what they have now become, a +great and powerful nation, possessing the power to make war and to +conclude treaties, and thus to acquire territory. (See Cerré <i>v.</i> +Pitot, 6 Cr., 336; Am. Ins. Co. <i>v.</i> Canter, 1 Pet., 542.) With these +in view, I turn to examine the clause of the article now in question.</p> + +<p>It is said this provision has no application to any territory save +that then belonging to the United States. I have already shown that, +when the Constitution was framed, a confident expectation was +entertained, which was speedily realized, that North Carolina and +Georgia would cede their claims to that great territory which lay west +of those States. No doubt has been suggested that the first clause of +this same article, which enabled Congress to admit new States, refers +to and includes new States to be formed out of this territory, +expected to be thereafter ceded by North Carolina and Georgia, as well +as new States to be formed out of territory northwest of the Ohio, +which then had been ceded by Virginia. It must have been seen, +therefore, that the same necessity would exist for an authority to +dispose of and make all needful regulations respecting this territory, +when ceded, as existed for a like authority respecting territory which +had been ceded.</p> + +<p>No reason has been suggested why any reluctance should have been felt, +by the framers of the Constitution, to apply this provision to all the +territory which might belong to the United States, or why any +distinction should have been made, founded on the accidental +circumstance of the dates of the cessions; a circumstance in no way +material as respects the necessity for rules and regulations, or the +propriety of conferring<span class="pagenum"><a name="Page_218" id="Page_218">-218-</a></span> on the Congress power to make them. And if we +look at the course of the debates in the Convention on this article, +we shall find that the then unceded lands, so far from having been +left out of view in adopting this article, constituted, in the minds +of members, a subject of even paramount importance.</p> + +<p>Again, in what an extraordinary position would the limitation of this +clause to territory then belonging to the United States, place the +territory which lay within the chartered limits of North Carolina and +Georgia. The title to that territory was then claimed by those States, +and by the United States; their respective claims are purposely left +unsettled by the express words of this clause; and when cessions were +made by those States, they were merely of their claims to this +territory, the United States neither admitting nor denying the +validity of those claims; so that it was impossible then, and has ever +since remained impossible, to know whether this territory did or did +not then belong to the United States; and, consequently, to know +whether it was within or without the authority conferred by this +clause, to dispose of and make rules and regulations respecting the +territory of the United States. This attributes to the eminent men who +acted on this subject a want of ability and forecast, or a want of +attention to the known facts upon which they were acting, in which I +cannot concur.</p> + +<p>There is not, in my judgment, anything in the language, the history, +or the subject-matter of this article, which restricts its operation +to territory owned by the United States when the Constitution was +adopted.</p> + +<p>But it is also insisted that provisions of the Constitution respecting +territory belonging to the United States do not apply to territory +acquired by treaty from a foreign nation. This objection must rest +upon the position that the Constitution did not authorize the Federal +Government to acquire foreign territory, and consequently has made no +provision for its government when acquired; or, that though the +acquisition of foreign territory was contemplated by the Constitution, +its provisions concerning the admission of new States, and the making +of all needful rules and regulations respecting territory belonging to +the United States, were not designed to be applicable to territory +acquired from foreign nations.</p> + +<p>It is undoubtedly true, that at the date of the treaty of 1803, +between the United States and France, for the cession of Louisiana, it +was made a question, whether the Constitution had conferred on the +executive department of the Government of the United States power to +acquire foreign territory by a treaty.<span class="pagenum"><a name="Page_219" id="Page_219">-219-</a></span></p> + +<p>There is evidence that very grave doubts were then entertained +concerning the existence of this power. But that there was then a +settled opinion in the executive and legislative branches of the +Government, that this power did not exist, cannot be admitted, without +at the same time imputing to those who negotiated and ratified the +treaty, and passed the laws necessary to carry it into execution, a +deliberate and known violation of their oaths to support the +Constitution; and whatever doubts may then have existed, the question +must now be taken to have been settled. Four distinct acquisitions of +foreign territory have been made by as many different treaties, under +as many different Administrations. Six States, formed on such +territory, are now in the Union. Every branch of this Government, +during a period of more than fifty years, has participated in these +transactions. To question their validity now, is vain. As was said by +Mr. Chief Justice Marshall, in the American Insurance Company <i>v.</i> +Canter, (1 Peters, 542,) "the Constitution confers absolutely on the +Government of the Union the powers of making war and of making +treaties; consequently, that Government possesses the power of +acquiring territory, either by conquest or treaty." (See Cerré <i>v.</i> +Pitot, 6 Cr., 336.) And I add, it also possesses the power of +governing it, when acquired, not by resorting to supposititious +powers, nowhere found described in the Constitution, but expressly +granted in the authority to make all needful rules and regulations +respecting the territory of the United States.</p> + +<p>There was to be established by the Constitution a frame of government, +under which the people of the United States and their posterity were +to continue indefinitely. To take one of its provisions, the language +of which is broad enough to extend throughout the existence of the +Government, and embrace all territory belonging to the United States +throughout all time, and the purposes and objects of which apply to +all territory of the United States, and narrow it down to territory +belonging to the United States when the Constitution was framed, while +at the same time it is admitted that the Constitution contemplated and +authorized the acquisition, from time to time, of other and foreign +territory, seems to me to be an interpretation as inconsistent with +the nature and purposes of the instrument, as it is with its language, +and I can have no hesitation in rejecting it.</p> + +<p>I construe this clause, therefore, as if it had read, Congress shall +have power to make all needful rules and regulations respecting those +tracts of country, out of the limits of the several States, which the +United States have acquired, or may hereafter acquire, by cessions, as +well of the jurisdiction as of the<span class="pagenum"><a name="Page_220" id="Page_220">-220-</a></span> soil, so far as the soil may be +the property of the party making the cession, at the time of making +it.</p> + +<p>It has been urged that the words "rules and regulations" are not +appropriate terms in which to convey authority to make laws for the +government of the territory.</p> + +<p>But it must be remembered that this is a grant of power to the +Congress—that it is therefore necessarily a grant of power to +legislate—and, certainly, rules and regulations respecting a +particular subject, made by the legislative power of a country, can be +nothing but laws. Nor do the particular terms employed, in my +judgment, tend in any degree to restrict this legislative power. Power +granted to a Legislature to make all needful rules and regulations +respecting the territory, is a power to pass all needful laws +respecting it.</p> + +<p>The word regulate, or regulation, is several times used in the +Constitution. It is used in the fourth section of the first article to +describe those laws of the States which prescribe the times, places, +and manner, of choosing Senators and Representatives; in the second +section of the fourth article, to designate the legislative action of +a State on the subject of fugitives from service, having a very close +relation to the matter of our present inquiry; in the second section +of the third article, to empower Congress to fix the extent of the +appellate jurisdiction of this court; and, finally, in the eighth +section of the first article are the words, "Congress shall have power +to regulate commerce."</p> + +<p>It is unnecessary to describe the body of legislation which has been +enacted under this grant of power; its variety and extent are well +known. But it may be mentioned, in passing, that under this power to +regulate commerce, Congress has enacted a great system of municipal +laws, and extended it over the vessels and crews of the United States +on the high seas and in foreign ports, and even over citizens of the +United States resident in China; and has established judicatures, with +power to inflict even capital punishment within that country.</p> + +<p>If, then, this clause does contain a power to legislate respecting the +territory, what are the limits of that power?</p> + +<p>To this I answer, that, in common with all the other legislative +powers of Congress, it finds limits in the express prohibitions on +Congress not to do certain things; that, in the exercise of the +legislative power, Congress cannot pass an ex post facto law or bill +of attainder; and so in respect to each of the other prohibitions +contained in the Constitution.</p> + +<p>Besides this, the rules and regulations must be needful. But +undoubtedly the question whether a particular rule or regulation be +needful, must be finally determined by Congress itself. Whether a law +be needful, is a legislative or political,<span class="pagenum"><a name="Page_221" id="Page_221">-221-</a></span> not a judicial, question. +Whatever Congress deems needful is so, under the grant of power.</p> + +<p>Nor am I aware that it has ever been questioned that laws providing +for the temporary government of the settlers on the public lands are +needful, not only to prepare them for admission to the Union as +States, but even to enable the United States to dispose of the lands.</p> + +<p>Without government and social order, there can be no property; for +without law, its ownership, its use, and the power of disposing of it, +cease to exist, in the sense in which those words are used and +understood in all civilized States.</p> + +<p>Since, then, this power was manifestly conferred to enable the United +States to dispose of its public lands to settlers, and to admit them +into the Union as States, when in the judgment of Congress they should +be fitted therefor, since these were the needs provided for, since it +is confessed that Government is indispensable to provide for those +needs, and the power is, to make <i>all needful</i> rules and regulations +respecting the territory, I cannot doubt that this is a power to +govern the inhabitants of the territory, by such laws as Congress +deems needful, until they obtain admission as States.</p> + +<p>Whether they should be thus governed solely by laws enacted by +Congress, or partly by laws enacted by legislative power conferred by +Congress, is one of those questions which depend on the judgment of +Congress—a question which of these is needful.</p> + +<p>But it is insisted, that whatever other powers Congress may have +respecting the territory of the United States, the subject of negro +slavery forms an exception.</p> + +<p>The Constitution declares that Congress shall have power to make +"<i>all</i> needful rules and regulations" respecting the territory +belonging to the United States.</p> + +<p>The assertion is, though the Constitution says all, it does not mean +all—though it says all, without qualification, it means all except +such as allow or prohibit slavery. It cannot be doubted that it is +incumbent on those who would thus introduce an exception not found in +the language of the instrument, to exhibit some solid and satisfactory +reason, drawn from the subject-matter or the purposes and objects of +the clause, the context, or from other provisions of the Constitution, +showing that the words employed in this clause are not to be +understood according to their clear, plain, and natural signification.</p> + +<p>The subject-matter is the territory of the United States out of the +limits of every State, and consequently under the exclusive power of +the people of the United States. Their<span class="pagenum"><a name="Page_222" id="Page_222">-222-</a></span> will respecting it, manifested +in the Constitution, can be subject to no restriction. The purposes +and objects of the clause were the enactment of laws concerning the +disposal of the public lands, and the temporary government of the +settlers thereon until new States should be formed. It will not be +questioned that, when the Constitution of the United States was framed +and adopted, the allowance and the prohibition of negro slavery were +recognised subjects of municipal legislation; every State had in some +measure acted thereon; and the only legislative act concerning the +territory—the ordinance of 1787, which had then so recently been +passed—contained a prohibition of slavery. The purpose and object of +the clause being to enable Congress to provide a body of municipal law +for the government of the settlers, the allowance or the prohibition +of slavery comes within the known and recognised scope of that purpose +and object.</p> + +<p>There is nothing in the context which qualifies the grant of power. +The regulations must be "respecting the territory." An enactment that +slavery may or may not exist there, is a regulation respecting the +territory. Regulations must be needful; but it is necessarily left to +the legislative discretion to determine whether a law be needful. No +other clause of the Constitution has been referred to at the bar, or +has been seen by me, which imposes any restriction or makes any +exception concerning the power of Congress to allow or prohibit +slavery in the territory belonging to the United States.</p> + +<p>A practical construction, nearly contemporaneous with the adoption of +the Constitution, and continued by repeated instances through a long +series of years, may always influence, and in doubtful cases should +determine, the judicial mind, on a question of the interpretation of +the Constitution. (Stuart <i>v.</i> Laird, 1 Cranch, 269; Martin <i>v.</i> +Hunter, 1 Wheat., 304; Cohens <i>v.</i> Virginia, 6 Wheat., 264; Prigg <i>v.</i> +Pennsylvania, 16 Pet., 621; Cooley <i>v.</i> Port Wardens, 12 How., 315.)</p> + +<p>In this view, I proceed briefly to examine the practical construction +placed on the clause now in question, so far as it respects the +inclusion therein of power to permit or prohibit slavery in the +Territories.</p> + +<p>It has already been stated, that after the Government of the United +States was organized under the Constitution, the temporary Government +of the Territory northwest of the river Ohio could no longer exist, +save under the powers conferred on Congress by the Constitution. +Whatever legislative, judicial, or executive authority should be +exercised therein could be derived only from the people of the United +States under the Constitution. And, accordingly, an act was passed on +the<span class="pagenum"><a name="Page_223" id="Page_223">-223-</a></span> 7th day of August, 1789, (1 Stat. at Large, 50,) which recites: +"Whereas, in order that the ordinance of the United States in Congress +assembled, for the government of the territory northwest of the river +Ohio, <i>may continue to have full effect</i>, it is required that certain +provisions should be made, so as to adapt the same to the present +Constitution of the United States." It then provides for the +appointment by the President of all officers, who, by force of the +ordinance, were to have been appointed by the Congress of the +Confederation, and their commission in the manner required by the +Constitution; and empowers the Secretary of the Territory to exercise +the powers of the Governor in case of the death or necessary absence +of the latter.</p> + +<p>Here is an explicit declaration of the will of the first Congress, of +which fourteen members, including Mr. Madison, had been members of the +Convention which framed the Constitution, that the ordinance, one +article of which prohibited slavery, "should continue to have full +effect." Gen. Washington, who signed this bill, as President, was the +President of that Convention.</p> + +<p>It does not appear to me to be important, in this connection, that +that clause in the ordinance which prohibited slavery was one of a +series of articles of what is therein termed a compact. The Congress +of the Confederation had no power to make such a compact, nor to act +at all on the subject; and after what had been so recently said by Mr. +Madison on this subject, in the thirty-eighth number of the +<i>Federalist</i>, I cannot suppose that he, or any others who voted for +this bill, attributed any intrinsic effect to what was denominated in +the ordinance a compact between "the original States and the people +and States in the new territory;" there being no new States then in +existence in the territory, with whom a compact could be made, and the +few scattered inhabitants, unorganized into a political body, not +being capable of becoming a party to a treaty, even if the Congress of +the Confederation had had power to make one touching the government of +that territory.</p> + +<p>I consider the passage of this law to have been an assertion by the +first Congress of the power of the United States to prohibit slavery +within this part of the territory of the United States; for it clearly +shows that slavery was thereafter to be prohibited there, and it could +be prohibited only by an exertion of the power of the United States, +under the Constitution; no other power being capable of operating +within that territory after the Constitution took effect.</p> + +<p>On the 2d of April, 1790, (1 Stat. at Large, 106,) the first Congress +passed an act accepting a deed of cession by North<span class="pagenum"><a name="Page_224" id="Page_224">-224-</a></span> Carolina of that +territory afterwards erected into the State of Tennessee. The fourth +express condition contained in this deed of cession, after providing +that the inhabitants of the Territory shall be temporarily governed in +the same manner as those beyond the Ohio, is followed by these words: +"<i>Provided, always</i>, that no regulations made or to be made by +Congress shall tend to emancipate slaves."</p> + +<p>This provision shows that it was then understood Congress might make a +regulation prohibiting slavery, and that Congress might also allow it +to continue to exist in the Territory; and accordingly, when, a few +days later, Congress passed the act of May 20th, 1790, (1 Stat. at +Large, 123,) for the government of the Territory south of the river +Ohio, it provided, "and the Government of the Territory south of the +Ohio shall be similar to that now exercised in the Territory northwest +of the Ohio, except so far as is otherwise provided in the conditions +expressed in an act of Congress of the present session, entitled, 'An +act to accept a cession of the claims of the State of North Carolina +to a certain district of western territory.'" Under the Government +thus established, slavery existed until the Territory became the State +of Tennessee.</p> + +<p>On the 7th of April, 1798, (1 Stat. at Large, 649,) an act was passed +to establish a Government in the Mississippi Territory in all respects +like that exercised in the Territory northwest of the Ohio, "excepting +and excluding the last article of the ordinance made for the +government thereof by the late Congress, on the 13th day of July, +1787." When the limits of this Territory had been amicably settled +with Georgia, and the latter ceded all its claim thereto, it was one +stipulation in the compact of cession, that the ordinance of July +13th, 1787, "shall in all its parts extend to the Territory contained +in the present act of cession, that article only excepted which +forbids slavery." The Government of this Territory was subsequently +established and organized under the act of May 10th, 1800; but so much +of the ordinance as prohibited slavery was not put in operation there.</p> + +<p>Without going minutely into the details of each case, I will now give +reference to two classes of acts, in one of which Congress has +extended the ordinance of 1787, including the article prohibiting +slavery, over different Territories, and thus exerted its power to +prohibit it; in the other, Congress has erected Governments over +Territories acquired from France and Spain, in which slavery already +existed, but refused to apply to them that part of the Government +under the ordinance which excluded slavery.</p> + +<p>Of the first class are the act of May 7th, 1800, (2 Stat. at<span class="pagenum"><a name="Page_225" id="Page_225">-225-</a></span> Large, +58,) for the government of the Indiana Territory; the act of January +11th, 1805, (2 Stat. at Large, 309,) for the government of Michigan +Territory; the act of May 3d, 1809, (2 Stat. at Large, 514,) for the +government of the Illinois Territory; the act of April 20th, 1836, (5 +Stat. at Large, 10,) for the government of the Territory of Wisconsin; +the act of June 12th, 1838, for the government of the Territory of +Iowa; the act of August 14th, 1848, for the government of the +Territory of Oregon. To these instances should be added the act of +March 6th, 1820, (3 Stat. at Large, 548,) prohibiting slavery in the +territory acquired from France, being northwest of Missouri, and north +of thirty-six degrees thirty minutes north latitude.</p> + +<p>Of the second class, in which Congress refused to interfere with +slavery already existing under the municipal law of France or Spain, +and established Governments by which slavery was recognised and +allowed, are: the act of March 26th, 1804, (2 Stat. at Large, 283,) +for the government of Louisiana; the act of March 2d, 1805, (2 Stat. +at Large, 322,) for the government of the Territory of Orleans; the +act of June 4th, 1812, (2 Stat. at Large, 743,) for the government of +the Missouri Territory; the act of March 30th, 1822, (3 Stat. at +Large, 654,) for the government of the Territory of Florida. Here are +eight distinct instances, beginning with the first Congress, and +coming down to the year 1848, in which Congress has excluded slavery +from the territory of the United States; and six distinct instances in +which Congress organized Governments of Territories by which slavery +was recognised and continued, beginning also with the first Congress, +and coming down to the year 1822. These acts were severally signed by +seven Presidents of the United States, beginning with General +Washington, and coming regularly down as far as Mr. John Quincy Adams, +thus including all who were in public life when the Constitution was +adopted.</p> + +<p>If the practical construction of the Constitution contemporaneously +with its going into effect, by men intimately acquainted with its +history from their personal participation in framing and adopting it, +and continued by them through a long series of acts of the gravest +importance, be entitled to weight in the judicial mind on a question +of construction, it would seem to be difficult to resist the force of +the acts above adverted to.</p> + +<p>It appears, however, from what has taken place at the bar, that +notwithstanding the language of the Constitution, and the long line of +legislative and executive precedents under it, three different and +opposite views are taken of the power of Congress respecting slavery +in the Territories.<span class="pagenum"><a name="Page_226" id="Page_226">-226-</a></span></p> + +<p>One is, that though Congress can make a regulation prohibiting slavery +in a Territory, they cannot make a regulation allowing it; another is, +that it can neither be established nor prohibited by Congress, but +that the people of a Territory, when organized by Congress, can +establish or prohibit slavery; while the third is, that the +Constitution itself secures to every citizen who holds slaves, under +the laws of any State, the indefeasible right to carry them into any +Territory, and there hold them as property.</p> + +<p>No particular clause of the Constitution has been referred to at the +bar in support of either of these views. The first seems to be rested +upon general considerations concerning the social and moral evils of +slavery, its relations to republican Governments, its inconsistency +with the Declaration of Independence and with natural right.</p> + +<p>The second is drawn from considerations equally general, concerning +the right of self-government, and the nature of the political +institutions which have been established by the people of the United +States.</p> + +<p>While the third is said to rest upon the equal right of all citizens +to go with their property upon the public domain, and the inequality +of a regulation which would admit the property of some and exclude the +property of other citizens; and, inasmuch as slaves are chiefly held +by citizens of those particular States where slavery is established, +it is insisted that a regulation excluding slavery from a Territory +operates, practically, to make an unjust discrimination between +citizens of different States, in respect to their use and enjoyment of +the territory of the United States.</p> + +<p>With the weight of either of these considerations, when presented to +Congress to influence its action, this court has no concern. One or +the other may be justly entitled to guide or control the legislative +judgment upon what is a needful regulation. The question here is, +whether they are sufficient to authorize this court to insert into +this clause of the Constitution an exception of the exclusion or +allowance of slavery, not found therein, nor in any other part of that +instrument. To engraft on any instrument a substantive exception not +found in it, must be admitted to be a matter attended with great +difficulty. And the difficulty increases with the importance of the +instrument, and the magnitude and complexity of the interests involved +in its construction. To allow this to be done with the Constitution, +upon reasons purely political, renders its judicial interpretation +impossible—because judicial tribunals, as such, cannot decide upon +political considerations. Political reasons have not the requisite +certainty to afford rules of ju<span class="pagenum"><a name="Page_227" id="Page_227">-227-</a></span>ridical interpretation. They are +different in different men. They are different in the same men at +different times. And when a strict interpretation of the Constitution, +according to the fixed rules which govern the interpretation of laws, +is abandoned, and the theoretical opinions of individuals are allowed +to control its meaning, we have no longer a Constitution; we are under +the government of individual men, who for the time being have power to +declare what the Constitution is, according to their own views of what +it ought to mean. When such a method of interpretation of the +Constitution obtains, in place of a republican Government, with +limited and defined powers, we have a Government which is merely an +exponent of the will of Congress; or what, in my opinion, would not be +preferable, an exponent of the individual political opinions of the +members of this court.</p> + +<p>If it can be shown, by anything in the Constitution itself, that when +it confers on Congress the power to make <i>all</i> needful rules and +regulations respecting the territory belonging to the United States, +the exclusion or the allowance of slavery was excepted; or if anything +in the history of this provision tends to show that such an exception +was intended by those who framed and adopted the Constitution to be +introduced into it, I hold it to be my duty carefully to consider, and +to allow just weight to such considerations in interpreting the +positive text of the Constitution. But where the Constitution has said +<i>all</i> needful rules and regulations, I must find something more than +theoretical reasoning to induce me to say it did not mean all.</p> + +<p>There have been eminent instances in this court closely analogous to +this one, in which such an attempt to introduce an exception, not +found in the Constitution itself, has failed of success.</p> + +<p>By the eighth section of the first article, Congress has the power of +exclusive legislation in all cases whatsoever within this District.</p> + +<p>In the case of Loughborough <i>v.</i> Blake, (5 Whea., 324,) the question +arose, whether Congress has power to impose direct taxes on persons +and property in this District. It was insisted, that though the grant +of power was in its terms broad enough to include direct taxation, it +must be limited by the principle, that taxation and representation are +inseparable. It would not be easy to fix on any political truth, +better established or more fully admitted in our country, than that +taxation and representation must exist together. We went into the war +of the Revolution to assert it, and it is incorporated as fundamental +into all American Governments. But however true and im<span class="pagenum"><a name="Page_228" id="Page_228">-228-</a></span>portant this +maxim may be, it is not necessarily of universal application. It was +for the people of the United States, who ordained the Constitution, to +decide whether it should or should not be permitted to operate within +this District. Their decision was embodied in the words of the +Constitution; and as that contained no such exception as would permit +the maxim to operate in this District, this court, interpreting that +language, held that the exception did not exist.</p> + +<p>Again, the Constitution confers on Congress power to regulate commerce +with foreign nations. Under this, Congress passed an act on the 22d of +December, 1807, unlimited in duration, laying an embargo on all ships +and vessels in the ports or within the limits and jurisdiction of the +United States. No law of the United States ever pressed so severely +upon particular States. Though the constitutionality of the law was +contested with an earnestness and zeal proportioned to the ruinous +effects which were felt from it, and though, as Mr. Chief Justice +Marshall has said, (9 Wheat., 192,) "a want of acuteness in +discovering objections to a measure to which they felt the most +deep-rooted hostility will not be imputed to those who were arrayed in +opposition to this," I am not aware that the fact that it prohibited +the use of a particular species of property, belonging almost +exclusively to citizens of a few States, and this indefinitely, was +ever supposed to show that it was unconstitutional. Something much +more stringent, as a ground of legal judgment, was relied on—that the +power to regulate commerce did not include the power to annihilate +commerce.</p> + +<p>But the decision was, that under the power to regulate commerce, the +power of Congress over the subject was restricted only by those +exceptions and limitations contained in the Constitution; and as +neither the clause in question, which was a general grant of power to +regulate commerce, nor any other clause of the Constitution, imposed +any restrictions as to the duration of an embargo, an unlimited +prohibition of the use of the shipping of the country was within the +power of Congress. On this subject, Mr. Justice Daniel, speaking for +the court in the case of United States <i>v.</i> Marigold, (9 How., 560,) +says: "Congress are, by the Constitution, vested with the power to +regulate commerce with foreign nations; and however, at periods of +high excitement, an application of the terms 'to regulate commerce,' +such as would embrace absolute prohibition, may have been questioned, +yet, since the passage of the embargo and non-intercourse laws, and +the repeated judicial sanctions these statutes have received, it can +scarcely at this day be open to doubt, that every subject falling +legitimately<span class="pagenum"><a name="Page_229" id="Page_229">-229-</a></span> within the sphere of commercial regulation may be +partially or wholly excluded, when either measure shall be demanded by +the safety or the important interests of the entire nation. The power +once conceded, it may operate on any and every subject of commerce to +which the legislative discretion may apply it."</p> + +<p>If power to regulate commerce extends to an indefinite prohibition of +the use of all vessels belonging to citizens of the several States, +and may operate, without exception, upon every subject of commerce to +which the legislative discretion may apply it, upon what grounds can I +say that power to make all needful rules and regulations respecting +the territory of the United States is subject to an exception of the +allowance or prohibition of slavery therein?</p> + +<p>While the regulation is one "respecting the territory," while it is, +in the judgment of Congress, "a needful regulation," and is thus +completely within the words of the grant, while no other clause of the +Constitution can be shown, which requires the insertion of an +exception respecting slavery, and while the practical construction for +a period of upwards of fifty years forbids such an exception, it +would, in my opinion, violate every sound rule of interpretation to +force that exception into the Constitution upon the strength of +abstract political reasoning, which we are bound to believe the people +of the United States thought insufficient to induce them to limit the +power of Congress, because what they have said contains no such +limitation.</p> + +<p>Before I proceed further to notice some other grounds of supposed +objection to this power of Congress, I desire to say, that if it were +not for my anxiety to insist upon what I deem a correct exposition of +the Constitution, if I looked only to the purposes of the argument, +the source of the power of Congress asserted in the opinion of the +majority of the court would answer those purposes equally well. For +they admit that Congress has power to organize and govern the +Territories until they arrive at a suitable condition for admission to +the Union; they admit, also, that the kind of Government which shall +thus exist should be regulated by the condition and wants of each +Territory, and that it is necessarily committed to the discretion of +Congress to enact such laws for that purpose as that discretion may +dictate; and no limit to that discretion has been shown, or even +suggested, save those positive prohibitions to legislate, which are +found in the Constitution.</p> + +<p>I confess myself unable to perceive any difference whatever between my +own opinion of the general extent of the power of Congress and the +opinion of the majority of the court, save<span class="pagenum"><a name="Page_230" id="Page_230">-230-</a></span> that I consider it +derivable from the express language of the Constitution, while they +hold it to be silently implied from the power to acquire territory. +Looking at the power of Congress over the Territories as of the extent +just described, what positive prohibition exists in the Constitution, +which restrained Congress from enacting a law in 1820 to prohibit +slavery north of thirty-six degrees thirty minutes north latitude?</p> + +<p>The only one suggested is that clause in the fifth article of the +amendments of the Constitution which declares that no person shall be +deprived of his life, liberty, or property, without due process of +law. I will now proceed to examine the question, whether this clause +is entitled to the effect thus attributed to it. It is necessary, +first, to have a clear view of the nature and incidents of that +particular species of property which is now in question.</p> + +<p>Slavery, being contrary to natural right, is created only by municipal +law. This is not only plain in itself, and agreed by all writers on +the subject, but is inferable from the Constitution, and has been +explicitly declared by this court. The Constitution refers to slaves +as "persons held to service in one State, under the laws thereof." +Nothing can more clearly describe a <i>status</i> created by municipal law. +In Prigg <i>v.</i> Pennsylvania, (10 Pet., 611,) this court said: "The +state of slavery is deemed to be a mere municipal regulation, founded +on and limited to the range of territorial laws." In Rankin <i>v.</i> +Lydia, (2 Marsh., 12, 470,) the Supreme Court of Appeals of Kentucky +said: "Slavery is sanctioned by the laws of this State, and the right +to hold them under our municipal regulations is unquestionable. But we +view this as a right existing by positive law of a municipal +character, without foundation in the law of nature or the unwritten +common law." I am not acquainted with any case or writer questioning +the correctness of this doctrine. (See also 1 Burge, Col. and For. +Laws, 738-741, where the authorities are collected.)</p> + +<p>The <i>status</i> of slavery is not necessarily always attended with the +same powers on the part of the master. The master is subject to the +supreme power of the State, whose will controls his action towards his +slave, and this control must be defined and regulated by the municipal +law. In one State, as at one period of the Roman law, it may put the +life of the slave into the hand of the master; others, as those of the +United States, which tolerate slavery, may treat the slave as a +person, when the master takes his life; while in others, the law may +recognise a right of the slave to be protected from cruel treatment. +In other words, the <i>status</i> of slavery embraces every condition, from +that in which the slave is known to the law simply as a<span class="pagenum"><a name="Page_231" id="Page_231">-231-</a></span> chattel, with +no civil rights, to that in which he is recognised as a person for all +purposes, save the compulsory power of directing and receiving the +fruits of his labor. Which of these conditions shall attend the +<i>status</i> of slavery, must depend on the municipal law which creates +and upholds it.</p> + +<p>And not only must the <i>status</i> of slavery be created and measured by +municipal law, but the rights, powers, and obligations, which grow out +of that <i>status</i>, must be defined, protected, and enforced, by such +laws. The liability of the master for the torts and crimes of his +slave, and of third persons for assaulting or injuring or harboring or +kidnapping him, the forms and modes of emancipation and sale, their +subjection to the debts of the master, succession by death of the +master, suits for freedom, the capacity of the slave to be party to a +suit, or to be a witness, with such police regulations as have existed +in all civilized States where slavery has been tolerated, are among +the subjects upon which municipal legislation becomes necessary when +slavery is introduced.</p> + +<p>Is it conceivable that the Constitution has conferred the right on +every citizen to become a resident on the territory of the United +States with his slaves, and there to hold them as such, but has +neither made nor provided for any municipal regulations which are +essential to the existence of slavery?</p> + +<p>Is it not more rational to conclude that they who framed and adopted +the Constitution were aware that persons held to service under the +laws of a State are property only to the extent and under the +conditions fixed by those laws; that they must cease to be available +as property, when their owners voluntarily place them permanently +within another jurisdiction, where no municipal laws on the subject of +slavery exist; and that, being aware of these principles, and having +said nothing to interfere with or displace them, or to compel Congress +to legislate in any particular manner on the subject, and having +empowered Congress to make all needful rules and regulations +respecting the territory of the United States, it was their intention +to leave to the discretion of Congress what regulations, if any, +should be made concerning slavery therein? Moreover, if the right +exists, what are its limits, and what are its conditions? If citizens +of the United States have the right to take their slaves to a +Territory, and hold them there as slaves, without regard to the laws +of the Territory, I suppose this right is not to be restricted to the +citizens of slaveholding States. A citizen of a State which does not +tolerate slavery can hardly be denied the power of doing the same +thing. And what law of slavery does either take with him to the +Territory? If it be said to be those laws respecting<span class="pagenum"><a name="Page_232" id="Page_232">-232-</a></span> slavery which +existed in the particular State from which each slave last came, what +an anomaly is this? Where else can we find, under the law of any +civilized country, the power to introduce and permanently continue +diverse systems of foreign municipal law, for holding persons in +slavery? I say, not merely to introduce, but permanently to continue, +these anomalies. For the offspring of the female must be governed by +the foreign municipal laws to which the mother was subject; and when +any slave is sold or passes by succession on the death of the owner, +there must pass with him, by a species of subrogation, and as a kind +of unknown <i>jus in re</i>, the foreign municipal laws which constituted, +regulated, and preserved, the <i>status</i> of the slave before his +exportation. Whatever theoretical importance may be now supposed to +belong to the maintenance of such a right, I feel a perfect conviction +that it would, if ever tried, prove to be as impracticable in fact, as +it is, in my judgment, monstrous in theory.</p> + +<p>I consider the assumption which lies at the basis of this theory to be +unsound; not in its just sense, and when properly understood, but in +the sense which has been attached to it. That assumption is, that the +territory ceded by France was acquired for the equal benefit of all +the citizens of the United States. I agree to the position. But it was +acquired for their benefit in their collective, not their individual, +capacities. It was acquired for their benefit, as an organized +political society, subsisting as "the people of the United States," +under the Constitution of the United States; to be administered justly +and impartially, and as nearly as possible for the equal benefit of +every individual citizen, according to the best judgment and +discretion of the Congress; to whose power, as the Legislature of the +nation which acquired it, the people of the United States have +committed its administration. Whatever individual claims may be +founded on local circumstances, or sectional differences of condition, +cannot, in my opinion, be recognised in this court, without arrogating +to the judicial branch of the Government powers not committed to it; +and which, with all the unaffected respect I feel for it, when acting +in its proper sphere, I do not think it fitted to wield.</p> + +<p>Nor, in my judgment, will the position, that a prohibition to bring +slaves into a Territory deprives any one of his property without due +process of law, bear examination.</p> + +<p>It must be remembered that this restriction on the legislative power +is not peculiar to the Constitution of the United States; it was +borrowed from <i>Magna Charta</i>; was brought to America by our ancestors, +as part of their inherited liberties, and has existed in all the +States, usually in the very words of<span class="pagenum"><a name="Page_233" id="Page_233">-233-</a></span> the great charter. It existed in +every political community in America in 1787, when the ordinance +prohibiting slavery north and west of the Ohio was passed.</p> + +<p>And if a prohibition of slavery in a Territory in 1820 violated this +principle of <i>Magna Charta</i>, the ordinance of 1787 also violated it; +and what power had, I do not say the Congress of the Confederation +alone, but the Legislature of Virginia, or the Legislature of any or +all the States of the Confederacy, to consent to such a violation? The +people of the States had conferred no such power. I think I may at +least say, if the Congress did then violate <i>Magna Charta</i> by the +ordinance, no one discovered that violation. Besides, if the +prohibition upon all persons, citizens as well as others, to bring +slaves into a Territory, and a declaration that if brought they shall +be free, deprives citizens of their property without due process of +law, what shall we say of the legislation of many of the slaveholding +States which have enacted the same prohibition? As early as October, +1778, a law was passed in Virginia, that thereafter no slave should be +imported into that Commonwealth by sea or by land, and that every +slave who should be imported should become free. A citizen of Virginia +purchased in Maryland a slave who belonged to another citizen of +Virginia, and removed with the slave to Virginia. The slave sued for +her freedom, and recovered it; as may be seen in Wilson <i>v.</i> Isabel, +(5 Call's R., 425.) See also Hunter <i>v.</i> <span class="err" title="Transcriber's Note: Fulcher">Hulsher</span>, +(1 Leigh, 172;) and a similar law has been recognised as +valid in Maryland, in Stewart <i>v.</i> Oaks, (5 Har. and John., 107.) I am +not aware that such laws, though they exist in many States, were ever +supposed to be in conflict with the principle of <i>Magna Charta</i> +incorporated into the State Constitutions. It was certainly understood +by the Convention which framed the Constitution, and has been so +understood ever since, that, under the power to regulate commerce, +Congress could prohibit the importation of slaves; and the exercise of +the power was restrained till 1808. A citizen of the United States +owns slaves in Cuba, and brings them to the United States, where they +are set free by the legislation of Congress. Does this legislation +deprive him of his property without due process of law? If so, what +becomes of the laws prohibiting the slave trade? If not, how can a +similar regulation respecting a Territory violate the fifth amendment +of the Constitution?</p> + +<p>Some reliance was placed by the defendant's counsel upon the fact that +the prohibition of slavery in this territory was in the words, "that +slavery, &c., shall be and is hereby <i>forever</i> prohibited." But the +insertion of the word <i>forever</i> can have no legal effect. Every +enactment not expressly limited in its<span class="pagenum"><a name="Page_234" id="Page_234">-234-</a></span> duration continues in force +until repealed or abrogated by some competent power, and the use of +the word "forever" can give to the law no more durable operation. The +argument is, that Congress cannot so legislate as to bind the future +States formed out of the territory, and that in this instance it has +attempted to do so. Of the political reasons which may have induced +the Congress to use these words, and which caused them to expect that +subsequent Legislatures would conform their action to the then general +opinion of the country that it ought to be permanent, this court can +take no cognizance.</p> + +<p>However fit such considerations are to control the action of Congress, +and however reluctant a statesman may be to disturb what has been +settled, every law made by Congress may be repealed, and, saving +private rights, and public rights gained by States, its repeal is +subject to the absolute will of the same power which enacted it. If +Congress had enacted that the crime of murder, committed in this +Indian Territory, north of thirty-six degrees thirty minutes, by or on +any white man, should <i>forever</i> be punishable with death, it would +seem to me an insufficient objection to an indictment, found while it +was a Territory, that at some future day States might exist there, and +so the law was invalid, because, by its terms, it was to continue in +force forever. Such an objection rests upon a misapprehension of the +province and power of courts respecting the constitutionality of laws +enacted by the Legislature.</p> + +<p>If the Constitution prescribe one rule, and the law another and +different rule, it is the duty of courts to declare that the +Constitution, and not the law, governs the case before them for +judgment. If the law include no case save those for which the +Constitution has furnished a different rule, or no case which the +Legislature has the power to govern, then the law can have no +operation. If it includes cases which the Legislature has power to +govern, and concerning which the Constitution does not prescribe a +different rule, the law governs those cases, though it may, in its +terms, attempt to include others, on which it cannot operate. In other +words, this court cannot declare void an act of Congress which +constitutionally embraces some cases, though other cases, within its +terms, are beyond the control of Congress, or beyond the reach of that +particular law. If, therefore, Congress had power to make a law +excluding slavery from this territory while under the exclusive power +of the United States, the use of the word "forever" does not +invalidate the law, so long as Congress has the exclusive legislative +power in the territory.<span class="pagenum"><a name="Page_235" id="Page_235">-235-</a></span></p> + +<p>But it is further insisted that the treaty of 1803, between the United +States and France, by which this territory was acquired, has so +restrained the constitutional powers of Congress, that it cannot, by +law, prohibit the introduction of slavery into that part of this +territory north and west of Missouri, and north of thirty-six degrees +thirty minutes north latitude.</p> + +<p>By a treaty with a foreign nation, the United States may rightfully +stipulate that the Congress will or will not exercise its legislative +power in some particular manner, on some particular subject. Such +promises, when made, should be voluntarily kept, with the most +scrupulous good faith. But that a treaty with a foreign nation can +deprive the Congress of any part of the legislative power conferred by +the people, so that it no longer can legislate as it was empowered by +the Constitution to do, I more than doubt.</p> + +<p>The powers of the Government do and must remain unimpaired. The +responsibility of the Government to a foreign nation, for the exercise +of those powers, is quite another matter. That responsibility is to be +met, and justified to the foreign nation, according to the +requirements of the rules of public law; but never upon the assumption +that the United States had parted with or restricted any power of +acting according to its own free will, governed solely by its own +appreciation of its duty.</p> + +<p>The second section of the fourth article is, "This Constitution, and +the laws of the United States which shall be made in pursuance +thereof, and all treaties made or which shall be made under the +authority of the United States, shall be the supreme law of the land." +This has made treaties part of our municipal law; but it has not +assigned to them any particular degree of authority, nor declared that +laws so enacted shall be irrepealable. No supremacy is assigned to +treaties over acts of Congress. That they are not perpetual, and must +be in some way repealable, all will agree.</p> + +<p>If the President and the Senate alone possess the power to repeal or +modify a law found in a treaty, inasmuch as they can change or +abrogate one treaty only by making another inconsistent with the +first, the Government of the United States could not act at all, to +that effect, without the consent of some foreign Government. I do not +consider, I am not aware it has ever been considered, that the +Constitution has placed our country in this helpless condition. The +action of Congress in repealing the treaties with France by the act of +July 7th, 1798, (1 Stat. at Large, 578,) was in conformity with these +views. In the case of Taylor et al. <i>v.</i> Morton, (2 Curtis's Cir. Ct. +R.,<span class="pagenum"><a name="Page_236" id="Page_236">-236-</a></span> 454,) I had occasion to consider this subject, and I adhere to +the views there expressed.</p> + +<p>If, therefore, it were admitted that the treaty between the United +States and France did contain an express stipulation that the United +States would not exclude slavery from so much of the ceded territory +as is now in question, this court could not declare that an act of +Congress excluding it was void by force of the treaty. Whether or no a +case existed sufficient to justify a refusal to execute such a +stipulation, would not be a judicial, but a political and legislative +question, wholly beyond the authority of this court to try and +determine. It would belong to diplomacy and legislation, and not to +the administration of existing laws. Such a stipulation in a treaty, +to legislate or not to legislate in a particular way, has been +repeatedly held in this court to address itself to the political or +the legislative power, by whose action thereon this court is bound. +(Foster <i>v.</i> Nicolson, 2 Peters, 314; Garcia <i>v.</i> Lee, 12 Peters, +519.)</p> + +<p>But, in my judgment, this treaty contains no stipulation in any manner +affecting the action of the United States respecting the territory in +question. Before examining the language of the treaty, it is material +to bear in mind that the part of the ceded territory lying north of +thirty-six degrees thirty minutes, and west and north of the present +State of Missouri, was then a wilderness, uninhabited save by savages, +whose possessory title had not then been extinguished.</p> + +<p>It is impossible for me to conceive on what ground France could have +advanced a claim, or could have desired to advance a claim, to +restrain the United States from making any rules and regulations +respecting this territory, which the United States might think fit to +make; and still less can I conceive of any reason which would have +induced the United States to yield to such a claim. It was to be +expected that France would desire to make the change of sovereignty +and jurisdiction as little burdensome as possible to the then +inhabitants of Louisiana, and might well exhibit even an anxious +solicitude to protect their property and persons, and secure to them +and their posterity their religious and political rights; and the +United States, as a just Government, might readily accede to all +proper stipulations respecting those who were about to have their +allegiance transferred. But what interest France could have in +uninhabited territory, which, in the language of the treaty, was to be +transferred "forever, and in full sovereignty," to the United States, +or how the United States could consent to allow a foreign nation to +interfere in its purely internal affairs, in which that foreign nation +had no concern<span class="pagenum"><a name="Page_237" id="Page_237">-237-</a></span> whatever, is difficult for me to conjecture. In my +judgment, this treaty contains nothing of the kind.</p> + +<p>The third article is supposed to have a bearing on the question. It is +as follows: "The inhabitants of the ceded territory shall be +incorporated in the Union of the United States, and admitted as soon +as possible, according to the principles of the Federal Constitution, +to the enjoyment of all the rights, advantages, and immunities, of +citizens of the United States; and in the mean time they shall be +maintained and protected in the enjoyment of their liberty, property, +and the religion they profess."</p> + +<p>There are two views of this article, each of which, I think, +decisively shows that it was not intended to restrain the Congress +from excluding slavery from that part of the ceded territory then +uninhabited. The first is, that, manifestly, its sole object was to +protect individual rights of the then inhabitants of the territory. +They are to be "maintained and protected in the free enjoyment of +their liberty, property, and the religion they profess." But this +article does not secure to them the right to go upon the public domain +ceded by the treaty, either with or without their slaves. The right or +power of doing this did not exist before or at the time the treaty was +made. The French and Spanish Governments while they held the country, +as well as the United States when they acquired it, always exercised +the undoubted right of excluding inhabitants from the Indian country, +and of determining when and on what conditions it should be opened to +settlers. And a stipulation, that the then inhabitants of Louisiana +should be protected in their property, can have no reference to their +use of that property, where they had no right, under the treaty, to go +with it, save at the will of the United States. If one who was an +inhabitant of Louisiana at the time of the treaty had afterwards taken +property then owned by him, consisting of fire-arms, ammunition, and +spirits, and had gone into the Indian country north of thirty-six +degrees thirty minutes, to sell them to the Indians, all must agree +the third article of the treaty would not have protected him from +indictment under the act of Congress of March 30, 1802, (2 Stat. at +Large, 139,) adopted and extended to this territory by the act of +March 26, 1804, (2 Stat. at Large, 283.)</p> + +<p>Besides, whatever rights were secured were individual rights. If +Congress should pass any law which violated such rights of any +individual, and those rights were of such a character as not to be +within the lawful control of Congress under the Constitution, that +individual could complain, and the act of Congress, as to such rights +of his, would be inoperative; but it<span class="pagenum"><a name="Page_238" id="Page_238">-238-</a></span> would be valid and operative as +to all other persons, whose individual rights did not come under the +protection of the treaty. And inasmuch as it does not appear that any +inhabitant of Louisiana, whose rights were secured by treaty, had been +injured, it would be wholly inadmissible for this court to assume, +first, that one or more such cases may have existed; and, second, that +if any did exist, the entire law was void—not only as to those cases, +if any, in which it could not rightfully operate, but as to all +others, wholly unconnected with the treaty, in which such law could +rightfully operate.</p> + +<p>But it is quite unnecessary, in my opinion, to pursue this inquiry +further, because it clearly appears from the language of the article, +and it has been decided by this court, that the stipulation was +temporary, and ceased to have any effect when the then inhabitants of +the Territory of Louisiana, in whose behalf the stipulation was made, +were incorporated into the Union.</p> + +<p>In the cases of New Orleans <i>v.</i> De Armas et al., (9 Peters, 223,) the +question was, whether a title to property, which existed at the date +of the treaty, continued to be protected by the treaty after the State +of Louisiana was admitted to the Union. The third article of the +treaty was relied on. Mr. Chief Justice Marshall said: "This article +obviously contemplates two objects. One, that Louisiana shall be +admitted into the Union as soon as possible, on an equal footing with +the other States; and the other, that, till such admission, the +inhabitants of the ceded territory shall be protected in the free +enjoyment of their liberty, property, and religion. Had any one of +these rights been violated while these stipulations continued in +force, the individual supposing himself to be injured might have +brought his case into this court, under the twenty-fifth section of +the judicial act. But this stipulation ceased to operate when +Louisiana became a member of the Union, and its inhabitants were +'admitted to the enjoyment of all the rights, advantages, and +immunities, of citizens of the United States.'"</p> + +<p>The cases of Chouteau <i>v.</i> Marguerita, (12 Peters, 507,) and Permoli +<i>v.</i> New Orleans, (3 How., 589,) are in conformity with this view of +the treaty.</p> + +<p>To convert this temporary stipulation of the treaty, in behalf of +French subjects who then inhabited a small portion of Louisiana, into +a permanent restriction upon the power of Congress to regulate +territory then uninhabited, and to assert that it not only restrains +Congress from affecting the rights of property of the then +inhabitants, but enabled them and all other citizens of the United +States to go into any part of the<span class="pagenum"><a name="Page_239" id="Page_239">-239-</a></span> ceded territory with their slaves, +and hold them there, is a construction of this treaty so opposed to +its natural meaning, and so far beyond its subject-matter and the +evident design of the parties, that I cannot assent to it. In my +opinion, this treaty has no bearing on the present question.</p> + +<p>For these reasons, I am of opinion that so much of the several acts of +Congress as prohibited slavery and involuntary servitude within that +part of the Territory of Wisconsin lying north of thirty-six degrees +thirty minutes north latitude, and west of the river Mississippi, were +constitutional and valid laws.</p> + +<p>I have expressed my opinion, and the reasons therefor, at far greater +length than I could have wished, upon the different questions on which +I have found it necessary to pass, to arrive at a judgment on the case +at bar. These questions are numerous, and the grave importance of some +of them required me to exhibit fully the grounds of my opinion. I have +touched no question which, in the view I have taken, it was not +absolutely necessary for me to pass upon, to ascertain whether the +judgment of the Circuit Court should stand or be reversed. I have +avoided no question on which the validity of that judgment depends. To +have done either more or less, would have been inconsistent with my +views of my duty.</p> + +<p>In my opinion, the judgment of the Circuit Court should be reversed, +and the cause remanded for a new trial.</p> + + + +<hr /> +<h2>FOOTNOTES</h2> + + +<div class="footnote"><p><a name="Footnote_1_1" id="Footnote_1_1"></a><a href="#FNanchor_1_1"><span class="label">[1]</span></a> Vide Gibbons's Decline and Fall of the Roman Empire. +London edition of 1825, vol. 3d, chap. 44, p. 183.</p></div> + +<div class="footnote"><p><a name="Footnote_2_2" id="Footnote_2_2"></a><a href="#FNanchor_2_2"><span class="label">[2]</span></a> Letter from James Madison to Robert Walsh, November 27th, +1819, on the subject of the Missouri Compromise.</p></div> + +<div class="footnote"><p><a name="Footnote_3_3" id="Footnote_3_3"></a><a href="#FNanchor_3_3"><span class="label">[3]</span></a> Mr. Varnum said: "The bill provided such a Government as +had never been known in the United States." Mr. Eustis: "The +Government laid down in this bill is certainly a new thing in the +United States." Mr. Lucas: "It has been remarked, that this bill +establishes elementary principles never previously introduced in the +Government of any Territory of the United States. Granting the truth +of this observation," &c., &c. Mr. Macon: "My first objection to the +principle contained in this section is, that it establishes a species +of government unknown to the United States." Mr. Boyle: "Were the +President an angel instead of a man, I would not clothe him with this +power." Mr. G.W. Campbell: "On examining the section, it will appear +that it really establishes a complete despotism." Mr. Sloan: "Can +anything be more repugnant to the principles of just government? Can +anything be more despotic?"—<i>Annals of Congress</i>, 1803-'4.</p></div> + +<div class="footnote"><p><a name="Footnote_4_4" id="Footnote_4_4"></a><a href="#FNanchor_4_4"><span class="label">[4]</span></a> Mr. Jefferson wrote: "The Missouri question is the most +portentous one that ever threatened our Union. In the gloomiest +moments of the revolutionary war, I never had any apprehension equal +to that I feel from this source."</p></div> + +<div class="footnote"><p><a name="Footnote_5_5" id="Footnote_5_5"></a><a href="#FNanchor_5_5"><span class="label">[5]</span></a> <i>Note by Mr. Justice Curtis.</i> This statement that <i>some</i> +territory did actually pass by this cession, is taken from the opinion +of the court, delivered by Mr. Justice Wayne, in the case of Howard +<i>v.</i> Ingersoll, reported in 13 How., 405. It is an obscure matter, +and, on some examination of it, I have been led to doubt whether any +territory actually passed by this cession. But as the fact is not +important to the argument, I have not thought it necessary further to +investigate it.</p></div> + +<div class="footnote"><p><a name="Footnote_6_6" id="Footnote_6_6"></a><a href="#FNanchor_6_6"><span class="label">[6]</span></a> It was published in a newspaper at Philadelphia, in May, +and a copy of it was sent by R.H. Lee to Gen. Washington, on the 15th +of July. (See p. 261, Cor. of Am. Rev., vol. 4, and Writings of +Washington, vol. 9, p. 174.)</p></div> + + + + + + + + + + + +<pre> + + + + + +End of the Project Gutenberg EBook of 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, by Benjamin C. Howard + +*** END OF THIS PROJECT GUTENBERG EBOOK CASE OF DRED SCOTT *** + +***** This file should be named 31425-h.htm or 31425-h.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/3/1/4/2/31425/ + +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.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. Special rules, +set forth in the General Terms of Use part of this license, apply to +copying and distributing Project Gutenberg-tm electronic works to +protect the PROJECT GUTENBERG-tm concept and trademark. Project +Gutenberg is a registered trademark, and may not be used if you +charge for the eBooks, unless you receive specific permission. If you +do not charge anything for copies of this eBook, complying with the +rules is very easy. You may use this eBook for nearly any purpose +such as creation of derivative works, reports, performances and +research. They may be modified and printed and given away--you may do +practically ANYTHING with public domain eBooks. Redistribution is +subject to the trademark license, especially commercial +redistribution. + + + +*** START: FULL LICENSE *** + +THE FULL PROJECT GUTENBERG LICENSE +PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK + +To protect the Project Gutenberg-tm mission of promoting the free +distribution of electronic works, by using or distributing this work +(or any other work associated in any way with the phrase "Project +Gutenberg"), you agree to comply with all the terms of the Full Project +Gutenberg-tm License (available with this file or online at +http://gutenberg.org/license). + + +Section 1. General Terms of Use and Redistributing Project Gutenberg-tm +electronic works + +1.A. By reading or using any part of this Project Gutenberg-tm +electronic work, you indicate that you have read, understand, agree to +and accept all the terms of this license and intellectual property +(trademark/copyright) agreement. If you do not agree to abide by all +the terms of this agreement, you must cease using and return or destroy +all copies of Project Gutenberg-tm electronic works in your possession. +If you paid a fee for obtaining a copy of or access to a Project +Gutenberg-tm electronic work and you do not agree to be bound by the +terms of this agreement, you may obtain a refund from the person or +entity to whom you paid the fee as set forth in paragraph 1.E.8. + +1.B. "Project Gutenberg" is a registered trademark. It may only be +used on or associated in any way with an electronic work by people who +agree to be bound by the terms of this agreement. There are a few +things that you can do with most Project Gutenberg-tm electronic works +even without complying with the full terms of this agreement. See +paragraph 1.C below. There are a lot of things you can do with Project +Gutenberg-tm electronic works if you follow the terms of this agreement +and help preserve free future access to Project Gutenberg-tm electronic +works. See paragraph 1.E below. + +1.C. The Project Gutenberg Literary Archive Foundation ("the Foundation" +or PGLAF), owns a compilation copyright in the collection of Project +Gutenberg-tm electronic works. Nearly all the individual works in the +collection are in the public domain in the United States. If an +individual work is in the public domain in the United States and you are +located in the United States, we do not claim a right to prevent you from +copying, distributing, performing, displaying or creating derivative +works based on the work as long as all references to Project Gutenberg +are removed. Of course, we hope that you will support the Project +Gutenberg-tm mission of promoting free access to electronic works by +freely sharing Project Gutenberg-tm works in compliance with the terms of +this agreement for keeping the Project Gutenberg-tm name associated with +the work. You can easily comply with the terms of this agreement by +keeping this work in the same format with its attached full Project +Gutenberg-tm License when you share it without charge with others. + +1.D. The copyright laws of the place where you are located also govern +what you can do with this work. Copyright laws in most countries are in +a constant state of change. If you are outside the United States, check +the laws of your country in addition to the terms of this agreement +before downloading, copying, displaying, performing, distributing or +creating derivative works based on this work or any other Project +Gutenberg-tm work. The Foundation makes no representations concerning +the copyright status of any work in any country outside the United +States. + +1.E. Unless you have removed all references to Project Gutenberg: + +1.E.1. The following sentence, with active links to, or other immediate +access to, the full Project Gutenberg-tm License must appear prominently +whenever any copy of a Project Gutenberg-tm work (any work on which the +phrase "Project Gutenberg" appears, or with which the phrase "Project +Gutenberg" is associated) is accessed, displayed, performed, viewed, +copied or distributed: + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + +1.E.2. If an individual Project Gutenberg-tm electronic work is derived +from the public domain (does not contain a notice indicating that it is +posted with permission of the copyright holder), the work can be copied +and distributed to anyone in the United States without paying any fees +or charges. If you are redistributing or providing access to a work +with the phrase "Project Gutenberg" associated with or appearing on the +work, you must comply either with the requirements of paragraphs 1.E.1 +through 1.E.7 or obtain permission for the use of the work and the +Project Gutenberg-tm trademark as set forth in paragraphs 1.E.8 or +1.E.9. + +1.E.3. If an individual Project Gutenberg-tm electronic work is posted +with the permission of the copyright holder, your use and distribution +must comply with both paragraphs 1.E.1 through 1.E.7 and any additional +terms imposed by the copyright holder. Additional terms will be linked +to the Project Gutenberg-tm License for all works posted with the +permission of the copyright holder found at the beginning of this work. + +1.E.4. Do not unlink or detach or remove the full Project Gutenberg-tm +License terms from this work, or any files containing a part of this +work or any other work associated with Project Gutenberg-tm. + +1.E.5. Do not copy, display, perform, distribute or redistribute this +electronic work, or any part of this electronic work, without +prominently displaying the sentence set forth in paragraph 1.E.1 with +active links or immediate access to the full terms of the Project +Gutenberg-tm License. + +1.E.6. You may convert to and distribute this work in any binary, +compressed, marked up, nonproprietary or proprietary form, including any +word processing or hypertext form. However, if you provide access to or +distribute copies of a Project Gutenberg-tm work in a format other than +"Plain Vanilla ASCII" or other format used in the official version +posted on the official Project Gutenberg-tm web site (www.gutenberg.org), +you must, at no additional cost, fee or expense to the user, provide a +copy, a means of exporting a copy, or a means of obtaining a copy upon +request, of the work in its original "Plain Vanilla ASCII" or other +form. Any alternate format must include the full Project Gutenberg-tm +License as specified in paragraph 1.E.1. + +1.E.7. Do not charge a fee for access to, viewing, displaying, +performing, copying or distributing any Project Gutenberg-tm works +unless you comply with paragraph 1.E.8 or 1.E.9. + +1.E.8. You may charge a reasonable fee for copies of or providing +access to or distributing Project Gutenberg-tm electronic works provided +that + +- You pay a royalty fee of 20% of the gross profits you derive from + the use of Project Gutenberg-tm works calculated using the method + you already use to calculate your applicable taxes. The fee is + owed to the owner of the Project Gutenberg-tm trademark, but he + has agreed to donate royalties under this paragraph to the + Project Gutenberg Literary Archive Foundation. Royalty payments + must be paid within 60 days following each date on which you + prepare (or are legally required to prepare) your periodic tax + returns. Royalty payments should be clearly marked as such and + sent to the Project Gutenberg Literary Archive Foundation at the + address specified in Section 4, "Information about donations to + the Project Gutenberg Literary Archive Foundation." + +- You provide a full refund of any money paid by a user who notifies + you in writing (or by e-mail) within 30 days of receipt that s/he + does not agree to the terms of the full Project Gutenberg-tm + License. You must require such a user to return or + destroy all copies of the works possessed in a physical medium + and discontinue all use of and all access to other copies of + Project Gutenberg-tm works. + +- You provide, in accordance with paragraph 1.F.3, a full refund of any + money paid for a work or a replacement copy, if a defect in the + electronic work is discovered and reported to you within 90 days + of receipt of the work. + +- You comply with all other terms of this agreement for free + distribution of Project Gutenberg-tm works. + +1.E.9. If you wish to charge a fee or distribute a Project Gutenberg-tm +electronic work or group of works on different terms than are set +forth in this agreement, you must obtain permission in writing from +both the Project Gutenberg Literary Archive Foundation and Michael +Hart, the owner of the Project Gutenberg-tm trademark. Contact the +Foundation as set forth in Section 3 below. + +1.F. + +1.F.1. Project Gutenberg volunteers and employees expend considerable +effort to identify, do copyright research on, transcribe and proofread +public domain works in creating the Project Gutenberg-tm +collection. Despite these efforts, Project Gutenberg-tm electronic +works, and the medium on which they may be stored, may contain +"Defects," such as, but not limited to, incomplete, inaccurate or +corrupt data, transcription errors, a copyright or other intellectual +property infringement, a defective or damaged disk or other medium, a +computer virus, or computer codes that damage or cannot be read by +your equipment. + +1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right +of Replacement or Refund" described in paragraph 1.F.3, the Project +Gutenberg Literary Archive Foundation, the owner of the Project +Gutenberg-tm trademark, and any other party distributing a Project +Gutenberg-tm electronic work under this agreement, disclaim all +liability to you for damages, costs and expenses, including legal +fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT +LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE +PROVIDED IN PARAGRAPH F3. YOU AGREE THAT THE FOUNDATION, THE +TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE +LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR +INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH +DAMAGE. + +1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a +defect in this electronic work within 90 days of receiving it, you can +receive a refund of the money (if any) you paid for it by sending a +written explanation to the person you received the work from. If you +received the work on a physical medium, you must return the medium with +your written explanation. The person or entity that provided you with +the defective work may elect to provide a replacement copy in lieu of a +refund. If you received the work electronically, the person or entity +providing it to you may choose to give you a second opportunity to +receive the work electronically in lieu of a refund. If the second copy +is also defective, you may demand a refund in writing without further +opportunities to fix the problem. + +1.F.4. Except for the limited right of replacement or refund set forth +in paragraph 1.F.3, this work is provided to you 'AS-IS' WITH NO OTHER +WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO +WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR ANY PURPOSE. + +1.F.5. Some states do not allow disclaimers of certain implied +warranties or the exclusion or limitation of certain types of damages. +If any disclaimer or limitation set forth in this agreement violates the +law of the state applicable to this agreement, the agreement shall be +interpreted to make the maximum disclaimer or limitation permitted by +the applicable state law. The invalidity or unenforceability of any +provision of this agreement shall not void the remaining provisions. + +1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the +trademark owner, any agent or employee of the Foundation, anyone +providing copies of Project Gutenberg-tm electronic works in accordance +with this agreement, and any volunteers associated with the production, +promotion and distribution of Project Gutenberg-tm electronic works, +harmless from all liability, costs and expenses, including legal fees, +that arise directly or indirectly from any of the following which you do +or cause to occur: (a) distribution of this or any Project Gutenberg-tm +work, (b) alteration, modification, or additions or deletions to any +Project Gutenberg-tm work, and (c) any Defect you cause. + + +Section 2. Information about the Mission of Project Gutenberg-tm + +Project Gutenberg-tm is synonymous with the free distribution of +electronic works in formats readable by the widest variety of computers +including obsolete, old, middle-aged and new computers. It exists +because of the efforts of hundreds of volunteers and donations from +people in all walks of life. + +Volunteers and financial support to provide volunteers with the +assistance they need, are critical to reaching Project Gutenberg-tm's +goals and ensuring that the Project Gutenberg-tm collection will +remain freely available for generations to come. In 2001, the Project +Gutenberg Literary Archive Foundation was created to provide a secure +and permanent future for Project Gutenberg-tm and future generations. +To learn more about the Project Gutenberg Literary Archive Foundation +and how your efforts and donations can help, see Sections 3 and 4 +and the Foundation web page at http://www.pglaf.org. + + +Section 3. Information about the Project Gutenberg Literary Archive +Foundation + +The Project Gutenberg Literary Archive Foundation is a non profit +501(c)(3) educational corporation organized under the laws of the +state of Mississippi and granted tax exempt status by the Internal +Revenue Service. The Foundation's EIN or federal tax identification +number is 64-6221541. Its 501(c)(3) letter is posted at +http://pglaf.org/fundraising. Contributions to the Project Gutenberg +Literary Archive Foundation are tax deductible to the full extent +permitted by U.S. federal laws and your state's laws. + +The Foundation's principal office is located at 4557 Melan Dr. S. +Fairbanks, AK, 99712., but its volunteers and employees are scattered +throughout numerous locations. Its business office is located at +809 North 1500 West, Salt Lake City, UT 84116, (801) 596-1887, email +business@pglaf.org. Email contact links and up to date contact +information can be found at the Foundation's web site and official +page at http://pglaf.org + +For additional contact information: + Dr. Gregory B. Newby + Chief Executive and Director + gbnewby@pglaf.org + + +Section 4. Information about Donations to the Project Gutenberg +Literary Archive Foundation + +Project Gutenberg-tm depends upon and cannot survive without wide +spread public support and donations to carry out its mission of +increasing the number of public domain and licensed works that can be +freely distributed in machine readable form accessible by the widest +array of equipment including outdated equipment. Many small donations +($1 to $5,000) are particularly important to maintaining tax exempt +status with the IRS. + +The Foundation is committed to complying with the laws regulating +charities and charitable donations in all 50 states of the United +States. Compliance requirements are not uniform and it takes a +considerable effort, much paperwork and many fees to meet and keep up +with these requirements. We do not solicit donations in locations +where we have not received written confirmation of compliance. To +SEND DONATIONS or determine the status of compliance for any +particular state visit http://pglaf.org + +While we cannot and do not solicit contributions from states where we +have not met the solicitation requirements, we know of no prohibition +against accepting unsolicited donations from donors in such states who +approach us with offers to donate. + +International donations are gratefully accepted, but we cannot make +any statements concerning tax treatment of donations received from +outside the United States. U.S. laws alone swamp our small staff. + +Please check the Project Gutenberg Web pages for current donation +methods and addresses. Donations are accepted in a number of other +ways including checks, online payments and credit card donations. +To donate, please visit: http://pglaf.org/donate + + +Section 5. General Information About Project Gutenberg-tm electronic +works. + +Professor Michael S. Hart is the originator of the Project Gutenberg-tm +concept of a library of electronic works that could be freely shared +with anyone. For thirty years, he produced and distributed Project +Gutenberg-tm eBooks with only a loose network of volunteer support. + + +Project Gutenberg-tm eBooks are often created from several printed +editions, all of which are confirmed as Public Domain in the U.S. +unless a copyright notice is included. Thus, we do not necessarily +keep eBooks in compliance with any particular paper edition. + + +Most people start at our Web site which has the main PG search facility: + + http://www.gutenberg.org + +This Web site includes information about Project Gutenberg-tm, +including how to make donations to the Project Gutenberg Literary +Archive Foundation, how to help produce our new eBooks, and how to +subscribe to our email newsletter to hear about new eBooks. + + +</pre> + +</body> +</html> diff --git a/31425.txt b/31425.txt new file mode 100644 index 0000000..d8b4387 --- /dev/null +++ b/31425.txt @@ -0,0 +1,11416 @@ +The Project Gutenberg EBook of 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, by Benjamin C. Howard + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + + +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 + December Term, 1856. + +Author: Benjamin C. Howard + +Release Date: February 27, 2010 [EBook #31425] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK CASE OF DRED SCOTT *** + + + + +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 therefore not entitled to sue in a +court of the United States, the form of the judgment is of little +importance; for, whether the judgment be affirmed or dismissed for +want of jurisdiction, it is justified by the decision of the court, +and is the same in effect between the parties to the suit. + + * * * * * + +Mr. Justice DANIEL. + +It may with truth be affirmed, that since the establishment of the +several communities now constituting the States of this Confederacy, +there never has been submitted to any tribunal within its limits +questions surpassing in importance those now claiming the +consideration of this court. Indeed it is difficult to imagine, in +connection with the systems of polity peculiar to the United States, a +conjuncture of graver import than that must be, within which it is +aimed to comprise, and to control, not only the faculties and +practical operation appropriate to the American Confederacy as such, +but also the rights and powers of its separate and independent +members, with reference alike to their internal and domestic authority +and interests, and the relations they sustain to their confederates. + +To my mind it is evident, that nothing less than the ambitious and +far-reaching pretension to compass these objects of vital concern, is +either directly essayed or necessarily implied in the positions +attempted in the argument for the plaintiff in error. + +How far these positions have any foundation in the nature of the +rights and relations of separate, equal, and independent Governments, +or in the provisions of our own Federal compact, or the laws enacted +under and in pursuance of the authority of that compact, will be +presently investigated. + +In order correctly to comprehend the tendency and force of those +positions, it is proper here succinctly to advert to the facts upon +which the questions of law propounded in the argument have arisen. + +This was an action of trespass _vi et armis_, instituted in the +Circuit Court of the United States for the district of Missouri, in +the name of the plaintiff in error, _a negro_ held as a slave, for the +recovery of freedom for himself, his wife, and two children, _also +negroes_. + +To the declaration in this case the defendant below, who is also the +defendant in error, pleaded in abatement that the court could not take +cognizance of the cause, because the plaintiff was not _a citizen_ of +the State of Missouri, as averred in the declaration, but was a _negro +of African descent_, and that his ancestors were of pure African +blood, and were brought into this country and sold as _negro slaves_; +and hence it followed, from the second section of the third article of +the Constitution, which creates the judicial power of the United +States, with respect to controversies between citizens of different +States, that the Circuit Court could not take cognizance of the +action. + +To this plea in abatement, a demurrer having been interposed on behalf +of the plaintiff, it was sustained by the court. After the decision +sustaining the demurrer, the defendant, in pursuance of a previous +agreement between counsel, and with the leave of the court, pleaded in +bar of the action: _1st, not guilty; 2dly, 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; 3dly, 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 at the same manner, and in virtue of the same legal +right_. + +Issues having been joined upon the above pleas in bar, the following +statement, comprising all the evidence in the cause, was agreed upon +and signed by the counsel of the respective parties, viz: + +"In the year 1834, the plaintiff was a negro slave belonging to Doctor +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 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 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 a 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. + +"R.M. FIELD, _for Plaintiff_. +"H.A. GARLAND, _for Defendant_. + +"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 cause remanded to the +Circuit Court, where it has been continued to await the decision of +this case. + +"FIELD, _for Plaintiff_. +"GARLAND, _for Defendant_." + +Upon the aforegoing agreed facts, the plaintiff prayed the court to +instruct the jury that they ought to find for the plaintiff, and upon +the refusal of the instruction thus prayed for, the plaintiff excepted +to the court's opinion. The court then, upon the prayer of the +defendant, instructed the jury, that upon the facts of this case +agreed as above, the law was with the defendant. To this opinion, +also, the plaintiff's counsel excepted, as he did to the opinion of +the court denying to the plaintiff a new trial after the verdict of +the jury in favor of the defendant. + +The question first in order presented by the record in this cause, is +that which arises upon the plea in abatement, and the demurrer to that +plea; and upon this question it is my opinion that the demurrer should +have been overruled, and the plea sustained. + +On behalf of the plaintiff it has been urged, that by the pleas +interposed in bar of a recovery in the court below, (which pleas both +in fact and in law are essentially the same with the objections +averred in abatement,) the defence in abatement has been displaced or +waived; that it could therefore no longer be relied on in the Circuit +Court, and cannot claim the consideration of this court in reviewing +this cause. This position is regarded as wholly untenable. On the +contrary, it would seem to follow conclusively from the peculiar +character of the courts of the United States, as organized under the +Constitution and the statutes, and as defined by numerous and +unvarying adjudications from this bench, that there is not one of +those courts whose jurisdiction and powers can be deduced from mere +custom or tradition; not one, whose jurisdiction and powers must not +be traced palpably to, and invested exclusively by, the Constitution +and statutes of the United States; not one that is not bound, +therefore, at all times, and at all stages of its proceedings, to look +to and to regard the special and declared extent and bounds of its +commission and authority. There is no such tribunal of the United +States as a court of _general jurisdiction_, in the sense in which +that phrase is applied to the superior courts under the common law; +and even with respect to the courts existing under that system, it is +a well-settled principle, that _consent_ can never give jurisdiction. + +The principles above stated, and the consequences regularly deducible +from them, have, as already remarked, been repeatedly and unvaryingly +propounded from this bench. Beginning with the earliest decisions of +this court, we have the cases of Bingham _v._ Cabot et al., (3 Dallas, +382;) Turner _v._ Eurille, (4 Dallas, 7;) Abercrombie _v._ Dupuis et +al., (1 Cranch, 343;) Wood _v._ Wagnon, (2 Cranch, 9;) The United +States _v._ The brig Union et al., (4 Cranch, 216;) Sullivan _v._ The +Fulton Steamboat Company, (6 Wheaton, 450;) Mollan et al. _v._ +Torrence, (9 Wheaton, 537;) Brown _v._ Keene, (8 Peters, 112,) and +Jackson _v._ Ashton, (8 Peters, 148;) ruling, in uniform and unbroken +current, the doctrine that it is essential to the jurisdiction of the +courts of the United States, that the facts upon which it is founded +should appear upon the record. Nay, to such an extent and so +inflexibly has this requisite to the jurisdiction been enforced, that +in the case of Capron _v._ Van Noorden, (2 Cranch, 126,) it is +declared, that the plaintiff in this court may assign for error his +own omission in the pleadings in the court below, where they go to the +jurisdiction. This doctrine has been, if possible, more strikingly +illustrated in a later decision, the case of The State of Rhode Island +_v._ The State of Massachusetts, in the 12th of Peters. + +In this case, on page 718 of the volume, this court, with reference to +a motion to dismiss the cause _for want of jurisdiction_, have said: +"_However late this objection has been made, or may be made, in any +cause in an inferior or appellate court of the United States_, it must +be considered and decided before any court can move one farther step +in the cause, as any movement is necessarily to exercise the +jurisdiction. Jurisdiction is the power to hear and determine the +subject-matter in controversy between the parties to a suit; to +adjudicate or exercise any judicial power over them. The question is, +whether on the case before the court their action is judicial or +extra-judicial; with or without the authority of law to render a +judgment or decree upon the rights of the litigant parties. A motion +to dismiss a cause pending in the courts of the United States, is not +analogous to a plea to the jurisdiction of a court of common law or +equity in England; there, the superior courts have a general +jurisdiction over all persons within the realm, and all causes of +action between them. It depends on the subject-matter, whether the +jurisdiction shall be exercised by a court of law or equity; but that +court to which it appropriately belongs can act judicially upon the +party and the subject of the suit, unless it shall be made apparent to +the court that the judicial determination of the case has been +withdrawn from the court of general jurisdiction to an inferior and +limited one. It is a necessary presumption that the court of general +jurisdiction can act upon the given case, when nothing to the +contrary appears; hence has arisen the rule that the party claiming an +exemption from its process must set out the reason by a special plea +in abatement, and show that some inferior court of law or equity has +the exclusive cognizance of the case, otherwise the superior court +must proceed in virtue of its general jurisdiction. A motion to +dismiss, therefore, cannot be entertained, as it does not disclose a +case of exception; and if a plea in abatement is put in, it must not +only make out the exception, but point to the particular court to +which the case belongs. There are other classes of cases where the +objection to the jurisdiction is of a different nature, as on a bill +in chancery, that the subject-matter is cognizable only by the King in +Council, or that the parties defendant cannot be brought before any +municipal court on account of their sovereign character or the nature +of the controversy; or to the very common cases which present the +question, whether the cause belong to a court of law or equity. To +such cases, a plea in abatement would not be applicable, because the +plaintiff could not sue in an inferior court. The objection goes to a +denial of any jurisdiction of a municipal court in the one class of +cases, and to the jurisdiction of any court of equity or of law in the +other, on which last the court decides according to its discretion. + +"An objection to jurisdiction on the ground of exemption from the +process of the court in which the suit is brought, or the manner in +which a defendant is brought into it, is waived by appearance and +pleading to issue; but when the objection goes to the power of the +court over the parties or the subject-matter, the defendant need not, +for he cannot, give the plaintiff a better writ. Where an inferior +court can have no jurisdiction of a case of law or equity, the ground +of objection is not taken by plea in abatement, as an exception of the +given case from the otherwise general jurisdiction of the court; +appearance does not cure the defect of judicial power, and it may be +relied on by plea, answer, demurrer, _or at the trial or hearing_. As +a denial of jurisdiction over the subject-matter of a suit between +parties within the realm, over which and whom the court has power to +act, cannot be successful in an English court of general jurisdiction, +a motion like the present could not be sustained consistently with the +principles of its constitution. _But as this court is one of limited +and special original jurisdiction_, its action must be confined to the +particular cases, controversies, and parties, over which the +Constitution and laws have authorized it to act; any proceeding +without the limits prescribed is _coram non judice_, and its action a +nullity. And whether the want or excess of power is objected by a +party, or is apparent to the court, it must surcease its action or +proceed extra-judicially." + +In the constructing of pleadings either in abatement or in bar, every +fact or position constituting a portion of the public law, or of known +or general history, is necessarily implied. Such fact or position need +not be specially averred and set forth; it is what the world at large +and every individual are presumed to know--nay, are bound to know and +to be governed by. + +If, on the other hand, there exist facts or circumstances by which a +particular case would be withdrawn or exempted from the influence of +public law or necessary historical knowledge, such facts and +circumstances form an exception to the general principle, and these +must be specially set forth and _established_ by those who would avail +themselves of such exception. + +Now, the following are truths which a knowledge of the history of the +world, and particularly of that of our own country, compels us to +know--that the African negro race never have been acknowledged as +belonging to the family of nations; that as amongst them there never +has been known or recognised by the inhabitants of other countries +anything partaking of the character of nationality, or civil or +political polity; that this race has been by all the nations of Europe +regarded as subjects of capture or purchase; as subjects of commerce +or traffic; and that the introduction of that race into every section +of this country was not as members of civil or political society, but +as slaves, as _property_ in the strictest sense of the term. + +In the plea in abatement, the character or capacity of citizen on the +part of the plaintiff is denied; and the causes which show the absence +of that character or capacity are set forth by averment. The verity of +those causes, according to the settled rules of pleading, being +admitted by the demurrer, it only remained for the Circuit Court to +decide upon their legal sufficiency to abate the plaintiff's action. +And it now becomes the province of this court to determine whether the +plaintiff below, (and in error here,) admitted to be a _negro_ of +African descent, whose ancestors were of pure African blood, and were +brought into this country and sold as negro slaves--such being his +_status_, and such the circumstances surrounding his position--whether +he can, by correct legal induction from that _status_ and those +circumstances, be clothed with the character and capacities of a +citizen of the State of Missouri? + +It may be assumed as a postulate, that to a slave, as such, there +appertains and can appertain no relation, civil or political, with the +State or the Government. He is himself strictly _property_, to be used +in subserviency to the interests, the convenience, or the will, of +his owner; and to suppose, with respect to the former, the existence +of any privilege or discretion, or of any obligation to others +incompatible with the magisterial rights just defined, would be by +implication, if not directly, to deny the relation of master and +slave, since none can possess and enjoy, as his own, that which +another has a paramount right and power to withhold. Hence it follows, +necessarily, that a slave, the _peculium_ or property of a master, and +possessing within himself no civil nor political rights or capacities, +cannot be a CITIZEN. For who, it may be asked, is a citizen? What do +the character and _status_ of citizen import? Without fear of +contradiction, it does not import the condition of being private +property, the subject of individual power and ownership. Upon a +principle of etymology alone, the term _citizen_, as derived from +_civitas_, conveys the ideas of connection or identification with the +State or Government, and a participation of its functions. But beyond +this, there is not, it is believed, to be found, in the theories of +writers on Government, or in any actual experiment heretofore tried, +an exposition of the term citizen, which has not been understood as +conferring the actual possession and enjoyment, or the perfect right +of acquisition and enjoyment, of an entire equality of privileges, +civil and political. + +Thus Vattel, in the preliminary chapter to his Treatise on the Law of +Nations, says: "Nations or States are bodies politic; societies of men +united together for the purpose of promoting their mutual safety and +advantage, by the joint efforts of their mutual strength. Such a +society has her affairs and her interests; she deliberates and takes +resolutions _in common_; thus becoming a moral person, who possesses +an understanding and a will peculiar to herself." Again, in the first +chapter of the first book of the Treatise just quoted, the same +writer, after repeating his definition of a State, proceeds to remark, +that, "from the very design that induces a number of men to form a +society, which has its common interests and which is to act in +concert, it is necessary that there should be established a public +authority, to order and direct what is to be done by each, in relation +to the end of the association. This political authority is the +_sovereignty_." Again this writer remarks: "The authority of _all_ +over each member essentially belongs to the body politic or the +State." + +By this same writer it is also said: "The citizens are the members of +the civil society; bound to this society by certain duties, and +subject to its authority; they _equally_ participate in its +advantages. The natives, or natural-born citizens, are those born in +the country, of parents who are citizens. As society cannot +perpetuate itself otherwise than by the children of the citizens, +those children naturally follow the condition of their parents, and +succeed to all their rights." Again: "I say, to be _of the country_, +it is necessary to be born of a person who is a _citizen_; for if he +be born there of a foreigner, it will be only the place of his +_birth_, and not his _country_. The inhabitants, as distinguished from +citizens, are foreigners who are permitted to settle and stay in the +country." (Vattel, Book 1, cap. 19, p. 101.) + +From the views here expressed, and they seem to be unexceptionable, it +must follow, that with the _slave_, with one devoid of rights or +capacities, _civil or political_, there could be no pact; that one +thus situated could be no party to, or actor in, the association of +those possessing free will, power, discretion. He could form no part +of the design, no constituent ingredient or portion of a society based +upon _common_, that is, upon _equal_ interests and powers. He could +not at the same time be the sovereign and the slave. + +But it has been insisted, in argument, that the emancipation of a +slave, effected either by the direct act and assent of the master, or +by causes operating in contravention of his will, produces a change in +the _status_ or capacities of the slave, such as will transform him +from a mere subject of property, into a being possessing a social, +civil, and political equality with a citizen. In other words, will +make him a citizen of the State within which he was, previously to his +emancipation, a slave. + +It is difficult to conceive by what magic the mere _surcease_ or +renunciation of an interest in a subject of _property_, by an +individual possessing that interest, can alter the essential character +of that property with respect to persons or communities unconnected +with such renunciation. Can it be pretended that an individual in any +State, by his single act, though voluntarily or designedly performed, +yet without the co-operation or warrant of the Government, perhaps in +opposition to its policy or its guaranties, can create a citizen of +that State? Much more emphatically may it be asked, how such a result +could be accomplished by means wholly extraneous, and entirely foreign +to the Government of the State? The argument thus urged must lead to +these extraordinary conclusions. It is regarded at once as wholly +untenable, and as unsustained by the direct authority or by the +analogies of history. + +The institution of slavery, as it exists and has existed from the +period of its introduction into the United States, though more humane +and mitigated in character than was the same institution, either under +the republic or the empire of Rome, bears, both in its tenure and in +the simplicity incident to the mode of its exercise, a closer +resemblance to Roman slavery than it does to the condition of +_villanage_, as it formerly existed in England. Connected with the +latter, there were peculiarities, from custom or positive regulation, +which varied it materially from the slavery of the Romans, or from +slavery at any period within the United States. + +But with regard to slavery amongst the Romans, it is by no means true +that emancipation, either during the republic or the empire, +conferred, by the act itself, or implied, the _status_ or the rights +of citizenship. + +The proud title of Roman citizen, with the immunities and rights +incident thereto, and as contradistinguished alike from the condition +of conquered subjects or of the lower grades of native domestic +residents, was maintained throughout the duration of the republic, and +until a late period of the eastern empire, and at last was in _effect_ +destroyed less by an elevation of the inferior classes than by the +degradation of the free, and the previous possessors of rights and +immunities civil and political, to the indiscriminate abasement +incident to absolute and simple despotism. + +By the learned and elegant historian of the Decline and Fall of the +Roman Empire, we are told that "In the _decline_ of the Roman empire, +the proud distinctions of the republic were gradually abolished; and +the reason or instinct of Justinian completed the simple form of an +absolute monarchy. The emperor could not eradicate the popular +reverence which always waits on the possession of hereditary wealth or +the memory of famous ancestors. He delighted to honor with titles and +emoluments his generals, magistrates, and senators, and his precarious +indulgence communicated some rays of their glory to their wives and +children. But in the eye of the law all Roman citizens were equal, and +all subjects of the empire were citizens of Rome. That inestimable +character was _degraded_ to an obsolete and empty name. The voice of a +Roman could no longer enact his laws, or create the annual ministers +of his powers; his constitutional rights might have checked the +arbitrary will of a master; and the bold adventurer from Germany or +Arabia was admitted with equal favor to the civil and military command +which the _citizen_ alone had been once entitled to assume over the +conquests of his fathers. The first Caesars had scrupulously guarded +the distinction of _ingenuous_ and _servile_ birth, which was decided +by the condition of the mother. The slaves who were liberated by a +generous master immediately entered into the middle class of +_libertini_ or freedmen; but they could never be enfranchised from the +duties of obedience and gratitude; whatever were the fruits of their +industry, their patron and his family inherited the third part, or +even the whole of their fortune, if they died without children and +without a testament. Justinian respected the rights of patrons, but +his indulgence removed the badge of disgrace from the two inferior +orders of freedmen; whoever ceased to be a slave, obtained without +reserve or delay the station of a citizen; and at length the dignity +of an ingenuous birth _was created_ or _supposed_ by the omnipotence +of the emperor."[1] + +[Footnote 1: Vide Gibbons's Decline and Fall of the Roman Empire. +London edition of 1825, vol. 3d, chap. 44, p. 183.] + +The above account of slavery and its modifications will be found in +strictest conformity with the Institutes of Justinian. Thus, book 1st, +title 3d, it is said: "The first general division of persons in +respect to their rights is into freemen and slaves." The same title, +sec. 4th: "Slaves are born such, or become so. They are born such of +bondwomen; they become so either by _the law of nations_, as by +capture, or by the civil law." Section 5th: "In the condition of +slaves there is no diversity; but among free persons there are many. +Thus some are _ingenui_ or freemen, others _libertini_ or freedmen." + +Tit. 4th. DE INGENUIS.--"A freeman is one who is born free by being +born in matrimony, of parents who both are free, or both freed; or of +parents one free and the other freed. But one born of a free mother, +although the father be a slave or unknown, is free." + +Tit. 5th. DE LIBERTINIS.--"Freedmen are those who have been manumitted +from just servitude." + +Section third of the same title states that "freedmen were formerly +distinguished by a threefold division." But the emperor proceeds to +say: "Our _piety_ leading us to reduce all things into a better state, +we have amended our laws, and re-established the ancient usage; for +anciently liberty was simple and undivided--that is, was conferred +upon the slave as his manumittor possessed it, admitting this single +difference, that the person manumitted became only a _freed man_, +although his manumittor was a _free_ man." And he further declares: +"We have made all freed men in general become citizens of Rome, +regarding neither the age of the manumitted, nor the manumittor, nor +the ancient forms of manumission. We have also introduced many new +methods by which _slaves_ may become Roman citizens." + +By the references above given it is shown, from the nature and objects +of civil and political associations, and upon the direct authority of +history, that citizenship was not conferred by the simple fact of +emancipation, but that such a result was deduced therefrom in +violation of the fundamental principles of free political association; +by the exertion of despotic will to establish, under a false and +misapplied denomination, one equal and universal slavery; and to +effect this result required the exertions of absolute power--of a +power both in theory and practice, being in its most plenary +acceptation the SOVEREIGNTY, THE STATE ITSELF--it could not be +produced by a less or inferior authority, much less by the will or the +act of one who, with reference to civil and political rights, was +himself a _slave_. The master might abdicate or abandon his interest +or ownership in his property, but his act would be a mere abandonment. +It seems to involve an absurdity to impute to it the investiture of +rights which the sovereignty alone had power to impart. There is not +perhaps a community in which slavery is recognised, in which the power +of emancipation and the modes of its exercise are not regulated by +law--that is, by the sovereign authority; and none can fail to +comprehend the necessity for such regulation, for the preservation of +order, and even of political and social existence. + +By the argument for the plaintiff in error, a power equally despotic +is vested in every member of the association, and the most obscure or +unworthy individual it comprises may arbitrarily invade and derange +its most deliberate and solemn ordinances. At assumptions anomalous as +these, so fraught with mischief and ruin, the mind at once is +revolted, and goes directly to the conclusions, that to change or to +abolish a fundamental principle of the society, must be the act of the +society itself--of the _sovereignty_; and that none other can admit to +a participation of that high attribute. It may further expose the +character of the argument urged for the plaintiff, to point out some +of the revolting consequences which it would authorize. If that +argument possesses any integrity, it asserts the power in any citizen, +or _quasi_ citizen, or a resident foreigner of any one of the States, +from a motive either of corruption or caprice, not only to infract the +inherent and necessary authority of such State, but also materially to +interfere with the organization of the Federal Government, and with +the authority of the separate and independent States. He may +emancipate his negro slave, by which process he first transforms that +slave into a citizen of his own State; he may next, under color of +article fourth, section second, of the Constitution of the United +States, obtrude him, and on terms of civil and political equality, +upon any and every State in this Union, in defiance of all regulations +of necessity or policy, ordained by those States for their internal +happiness or safety. Nay, more: this manumitted slave may, by a +proceeding springing from the will or act of his master alone, be +mixed up with the institutions of the Federal Government, to which he +is not a party, and in opposition to the laws of that Government +which, in authorizing the extension by naturalization of the rights +and immunities of citizens of the United States to those not +originally parties to the Federal compact, have restricted that boon +to _free white aliens alone_. If the rights and immunities connected +with or practiced under the institutions of the United States can by +any indirection be claimed or deduced from sources or modes other than +the Constitution and laws of the United States, it follows that the +power of naturalization vested in Congress is not exclusive--that it +has _in effect_ no existence, but is repealed or abrogated. + +But it has been strangely contended that the jurisdiction of the +Circuit Court might be maintained upon the ground that the plaintiff +was a _resident_ of Missouri, and that, for the purpose of vesting the +court with jurisdiction over the parties, _residence_ within the State +was sufficient. + +The first, and to my mind a conclusive reply to this singular argument +is presented in the fact, that the language of the Constitution +restricts the jurisdiction of the courts to cases in which the parties +shall be _citizens_, and is entirely silent with respect to residence. +A second answer to this strange and latitudinous notion is, that it so +far stultifies the sages by whom the Constitution was framed, as to +impute to them ignorance of the material distinction existing between +_citizenship_ and mere _residence_ or _domicil_, and of the well-known +facts, that a person confessedly an _alien_ may be permitted to reside +in a country in which he can possess no civil or political rights, or +of which he is neither a citizen nor subject; and that for certain +purposes a man may have a _domicil_ in different countries, in no one +of which he is an actual personal resident. + +The correct conclusions upon the question here considered would seem +to be these: + +That in the establishment of the several communities now the States of +this Union, and in the formation of the Federal Government, the +African was not deemed politically a person. He was regarded and owned +in every State in the Union as _property_ merely, and as such was not +and could not be a party or an actor, much less a _peer_ in any +compact or form of government established by the States or the United +States. That if, since the adoption of the State Governments, he has +been or could have been elevated to the possession of political rights +or powers, this result could have been effected by no authority less +potent than that of the sovereignty--the State--exerted to that end, +either in the form of legislation, or in some other mode of operation. +It could certainly never have been accomplished by the will of an +individual operating independently of the sovereign power, and even +contravening and controlling that power. That so far as rights and +immunities appertaining to citizens have been defined and secured by +the Constitution and laws of the United States, the African race is +not and never was recognised either by the language or purposes of the +former; and it has been expressly excluded by every act of Congress +providing for the creation of citizens by _naturalization_, these +laws, as has already been remarked, being restricted to _free white +aliens_ exclusively. + +But it is evident that, after the formation of the Federal Government +by the adoption of the Constitution, the highest exertion of State +power would be incompetent to bestow a character or status created by +the Constitution, or conferred in virtue of its authority only. Upon +those, therefore, who were not originally parties to the Federal +compact, or who are not admitted and adopted as parties thereto, in +the mode prescribed by its paramount authority, no State could have +power to bestow the character or the rights and privileges exclusively +reserved by the States for the action of the Federal Government by +that compact. + +The States, in the exercise of their political power, might, with +reference to their peculiar Government and jurisdiction, guaranty the +rights of person and property, and the enjoyment of civil and +political privileges, to those whom they should be disposed to make +the objects of their bounty; but they could not reclaim or exert the +powers which they had vested exclusively in the Government of the +United States. They could not add to or change in any respect the +class of persons to whom alone the character of citizen of the United +States appertained at the time of the adoption of the Federal +Constitution. They could not create citizens of the United States by +any direct or indirect proceeding. + +According to the view taken of the law, as applicable to the demurrer +to the plea in abatement in this cause, the questions subsequently +raised upon the several pleas in bar might be passed by, as requiring +neither a particular examination, nor an adjudication directly upon +them. But as these questions are intrinsically of primary interest and +magnitude, and have been elaborately discussed in argument, and as +with respect to them the opinions of a majority of the court, +including my own, are perfectly coincident, to me it seems proper that +they should here be fully considered, and, so far as it is practicable +for this court to accomplish such an end, finally put to rest. + +The questions then to be considered upon the several pleas in bar, and +upon the agreed statement of facts between the counsel, are: 1st. +Whether the admitted master and owner of the plaintiff, holding him as +his slave in the State of Missouri, and in conformity with his rights +guarantied to him by the laws of Missouri then and still in force, by +carrying with him for his own benefit and accommodation, and as his +own slave, the person of the plaintiff into the State of Illinois, +within which State slavery had been prohibited by the Constitution +thereof, and by retaining the plaintiff during the commorancy of the +master within the State of Illinois, had, upon his return with his +slave into the State of Missouri, forfeited his rights as master, by +reason of any supposed operation of the prohibitory provision in the +Constitution of Illinois, beyond the proper territorial jurisdiction +of the latter State? 2d. Whether a similar removal of the plaintiff by +his master from the State of Missouri, and his retention in service at +a point included within no State, but situated north of thirty-six +degrees thirty minutes of north latitude, worked a forfeiture of the +right of property of the master, and the manumission of the plaintiff? + +In considering the first of these questions, the acts or declarations +of the master, as expressive of his purpose to emancipate, may be +thrown out of view, since none will deny the right of the owner to +relinquish his interest in any subject of property, at any time or in +any place. The inquiry here bears no relation to acts or declarations +of the owner as expressive of his intent or purpose to make such a +relinquishment; it is simply a question whether, irrespective of such +purpose, and in opposition thereto, that relinquishment can be +enforced against the owner of property within his own country, in +defiance of every guaranty promised by its laws; and this through the +instrumentality of a claim to power entirely foreign and extraneous +with reference to himself, to the origin and foundation of his title, +and to the independent authority of his country. A conclusive negative +answer to such an inquiry is at once supplied, by announcing a few +familiar and settled principles and doctrines of public law. + +Vattel, in his chapter on the general principles of the laws of +nations, section 15th, tells us, that "nations being free and +independent of each other in the same manner that men are naturally +free and independent, the second general law of their society is, that +each nation should be left in the peaceable enjoyment of that liberty +which she inherits from nature." + +"The natural society of nations," says this writer, "cannot subsist +unless the natural rights of each be respected." In section 16th he +says, "as a consequence of that liberty and independence, it +exclusively belongs to each nation to form her own judgment of what +her conscience prescribes for her--of what it is proper or improper +for her to do; and of course it rests solely with her to examine and +determine whether she can perform any office for another nation +without neglecting the duty she owes to herself. In all cases, +therefore, in which a nation has the right of judging what her duty +requires, no other nation can compel her to act in such or such a +particular manner, for any attempt at such compulsion would be an +infringement on the liberty of nations." Again, in section 18th, of +the same chapter, "nations composed of men, and considered as so many +free persons living together in a state of nature, are naturally +equal, and inherit from nature the same obligations and rights. Power +or weakness does not produce any difference. A small republic is no +less a sovereign state than the most powerful kingdom." + +So, in section 20: "A nation, then, is mistress of her own actions, so +long as they do not affect the proper and _perfect rights_ of any +other nation--so long as she is only _internally_ bound, and does not +lie under any _external_ and _perfect_ obligation. If she makes an ill +use of her liberty, she is guilty of a breach of duty; but other +nations are bound to acquiesce in her conduct, since they have no +right to dictate to her. Since nations are _free_, _independent_, and +_equal_, and since each possesses the right of judging, according to +the dictates of her conscience, what conduct she is to pursue, in +order to fulfil her duties, the effect of the whole is to produce, at +least externally, in the eyes of mankind, a perfect equality of rights +between nations, in the administration of their affairs, and in the +pursuit of their pretensions, without regard to the intrinsic justice +of their conduct, of which others have no right to form a definitive +judgment." + +Chancellor Kent, in the 1st volume of his Commentaries, lecture 2d, +after collating the opinions of Grotius, Heineccius, Vattel, and +Rutherford, enunciates the following positions as sanctioned by these +and other learned publicists, viz: that "nations are equal in respect +to each other, and entitled to claim equal consideration for their +rights, whatever may be their relative dimensions or strength, or +however greatly they may differ in government, religion, or manners. +This perfect equality and entire independence of all distinct States +is a fundamental principle of public law. It is a necessary +consequence of this equality, that each nation has a right to govern +itself as it may think proper, and no one nation is entitled to +dictate a form of government or religion, or a course of internal +policy, to another." This writer gives some instances of the violation +of this great national immunity, and amongst them the constant +interference by the ancient Romans, under the pretext of settling +disputes between their neighbors, but with the real purpose of +reducing those neighbors to bondage; the interference of Russia, +Prussia, and Austria, for the dismemberment of Poland; the more recent +invasion of Naples by Austria in 1821, and of Spain by the French +Government in 1823, under the excuse of suppressing a dangerous spirit +of internal revolution and reform. + +With reference to this right of self-government in independent +sovereign States, an opinion has been expressed, which, whilst it +concedes this right as inseparable from and as a necessary attribute +of sovereignty and independence, asserts nevertheless some implied and +paramount authority of a supposed international law, to which this +right of self-government must be regarded and exerted as subordinate; +and from which independent and sovereign States can be exempted only +by a protest, or by some public and formal rejection of that +authority. With all respect for those by whom this opinion has been +professed, I am constrained to regard it as utterly untenable, as +palpably inconsistent, and as presenting in argument a complete _felo +de se_. + +Sovereignty, independence, and a perfect right of self-government, can +signify nothing less than a superiority to and an exemption from all +claims by any extraneous power, however expressly they may be +asserted, and render all attempts to enforce such claims merely +attempts at usurpation. Again, could such claims from extraneous +sources be regarded as legitimate, the effort to resist or evade them, +by protest or denial, would be as irregular and unmeaning as it would +be futile. It could in no wise affect the question of superior right. +For the position here combatted, no respectable authority has been, +and none it is thought can be adduced. It is certainly irreconcilable +with the doctrines already cited from the writers upon public law. + +Neither the case of Lewis Somersett, (Howell's State Trials, vol. 20,) +so often vaunted as the proud evidence of devotion to freedom under a +Government which has done as much perhaps to extend the reign of +slavery as all the world besides; nor does any decision founded upon +the authority of Somersett's case, when correctly expounded, assail or +impair the principle of national equality enunciated by each and all +of the publicists already referred to. In the case of Somersett, +although the applicant for the _habeas corpus_ and the individual +claiming property in that applicant were both subjects and residents +within the British empire, yet the decision cannot be correctly +understood as ruling absolutely and under all circumstances against +the right of property in the claimant. That decision goes no farther +than to determine, that _within the realm of England_ there was no +authority to justify the detention of an individual in private +bondage. If the decision in Somersett's case had gone beyond this +point, it would have presented the anomaly of a repeal by laws enacted +for and limited in their operation to the realm alone, of other laws +and institutions established for places and subjects without the +limits of the realm of England; laws and institutions at that very +time, and long subsequently, sanctioned and maintained under the +authority of the British Government, and which the full and combined +action of the King and Parliament was required to abrogate. + +But could the decision in Somersett's case be correctly interpreted as +ruling the doctrine which it has been attempted to deduce from it, +still that doctrine must be considered as having been overruled by the +lucid and able opinion of Lord Stowell in the more recent case of the +slave Grace, reported in the second volume of Haggard, p. 94; in which +opinion, whilst it is conceded by the learned judge that there existed +no power to coerce the slave whilst in England, that yet, upon her +return to the island of Antigua, her _status_ as a slave was revived, +or, rather, that the title of the owner to the slave as property had +never been extinguished, but had always existed in that island. If the +principle of this decision be applicable as between different portions +of one and the same empire, with how much more force does it apply as +between nations or Governments entirely separate, and absolutely +independent of each other? For in this precise attitude the States of +this Union stand with reference to this subject, and with reference to +the tenure of every description of property vested under their laws +and held within their territorial jurisdiction. + +A strong illustration of the principle ruled by Lord Stowell, and of +the effect of that principle even in a case of express _contract_, is +seen in the case of Lewis _v._ Fullerton, decided by the Supreme Court +of Virginia, and reported in the first volume of Randolph, p. 15. The +case was this: A female slave, the property of a citizen of Virginia, +whilst with her master in the State of Ohio, was taken from his +possession under a writ of _habeas corpus_, and set at liberty. Soon, +or immediately after, by agreement between this slave and her master, +a deed was executed in Ohio by the latter, containing a stipulation +that this slave should return to Virginia, and, after a service of two +years in that State, should there be free. The law of Virginia +regulating emancipation required that deeds of emancipation should, +within a given time from their date, be recorded in the court of the +county in which the grantor resided, and declared that deeds with +regard to which this requisite was not complied with should be void. +Lewis, an infant son of this female, under the rules prescribed in +such cases, brought an action, _in forma pauperis_, in one of the +courts of Virginia, for the recovery of his freedom, claimed in virtue +of the transactions above mentioned. Upon an appeal to the Supreme +Court from a judgment against the plaintiff, Roane, Justice, in +delivering the opinion of the court, after disposing of other +questions discussed in that case, remarks: + +"As to the deed of emancipation contained in the record, that deed, +taken in connection with the evidence offered in support of it, shows +that it had a reference to the State of Virginia; and the testimony +shows that it formed a part of this contract, whereby the slave Milly +was to be brought back (as she was brought back) into the State of +Virginia. Her object was therefore to secure her freedom by the deed +within the State of Virginia, after the time should have expired for +which she had indented herself, and when she should be found abiding +within the State of Virginia. + +"If, then, this contract had an eye to the State of Virginia for its +operation and effect, the _lex loci_ ceases to operate. In that case +it must, to have its effect, conform to the laws of Virginia. It is +insufficient under those laws to effectuate an emancipation, for want +of a due recording in the county court, as was decided in the case of +Givens _v._ Mann, in this court. It is also ineffectual within the +Commonwealth of Virginia for another reason. The _lex loci_ is also to +be taken subject to the exception, that it is not to be enforced in +another country, when it violates some moral duty or the policy of +that country, or is not consistent with a positive right secured to a +third person or party by the laws of that country in which it is +sought to be enforced. In such a case we are told, '_magis jus +nostrum, quam jus alienum servemus_.'" (Huberus, tom. 2, lib. 1, tit. +3; 2 Fontblanque, p. 444.) "That third party in this instance is the +Commonwealth of Virginia, and her policy and interests are also to be +attended to. These turn the scale against the _lex loci_ in the +present instance." + +The second or last-mentioned position assumed for the plaintiff under +the pleas in bar, as it rests mainly if not solely upon the provision +of the act of Congress of March 6, 1820, prohibiting slavery in Upper +Louisiana north of thirty-six degrees thirty minutes north latitude, +popularly called the _Missouri Compromise_, that assumption renews the +question, formerly so zealously debated, as to the validity of the +provision in the act of Congress, and upon the constitutional +competency of Congress to establish it. + +Before proceeding, however, to examine the validity of the prohibitory +provision of the law, it may, so far as the rights involved in this +cause are concerned, be remarked, that conceding to that provision the +validity of a legitimate exercise of power, still this concession +could by no rational interpretation imply the slightest authority for +its operation beyond the territorial limits comprised within its +terms; much less could there be inferred from it a power to destroy or +in any degree to control rights, either of person or property, +entirely within the bounds of a distinct and independent +sovereignty--rights invested and fortified by the guaranty of that +sovereignty. These surely would remain in all their integrity, +whatever effect might be ascribed to the prohibition within the limits +defined by its language. + +But, beyond and in defiance of this conclusion, inevitable and +undeniable as it appears, upon every principle of justice or sound +induction, it has been attempted to convert this prohibitory provision +of the act of 1820 not only into a weapon with which to assail the +inherent--the _necessarily_ inherent--powers of independent sovereign +Governments, but into a mean of forfeiting that equality of rights and +immunities which are the birthright or the donative from the +Constitution of every citizen of the United States within the length +and breadth of the nation. In this attempt, there is asserted a power +in Congress, whether from incentives of interest, ignorance, faction, +partiality, or prejudice, to bestow upon a portion of the citizens of +this nation that which is the common property and privilege of +all--the power, in fine, of confiscation, in retribution for no +offence, or, if for an offence, for that of accidental locality only. + +It may be that, with respect to future cases, like the one now before +the court, there is felt an assurance of the impotence of such a +pretension; still, the fullest conviction of that result can impart to +it no claim to forbearance, nor dispense with the duty of antipathy +and disgust at its sinister aspect, whenever it may be seen to scowl +upon the justice, the order, the tranquillity, and fraternal feeling, +which are the surest, nay, the only means, of promoting or preserving +the happiness and prosperity of the nation, and which were the great +and efficient incentives to the formation of this Government. + +The power of Congress to impose the prohibition in the eighth section +of the act of 1820 has been advocated upon an attempted construction +of the second clause of the third section of the fourth article of +the Constitution, which declares that "Congress shall have power to +dispose of and to make all needful rules and regulations respecting +the _territory_ and _other property belonging_ to the United States." + +In the discussions in both houses of Congress, at the time of adopting +this eighth section of the act of 1820, great weight was given to the +peculiar language of this clause, viz: _territory_ and _other property +belonging_ to the United States, as going to show that the power of +disposing of and regulating, thereby vested in Congress, was +restricted to a _proprietary interest in the territory or land_ +comprised therein, and did not extend to the personal or political +rights of citizens or settlers, inasmuch as this phrase in the +Constitution, "_territory or other property_," identified _territory_ +with _property_, and inasmuch as _citizens_ or _persons_ could not be +property, and especially were not property _belonging_ to the United +States. And upon every principle of reason or necessity, this power to +dispose of and to regulate the _territory_ of the nation could be +designed to extend no farther than to its preservation and +appropriation to the uses of those to whom it belonged, viz: the +nation. Scarcely anything more illogical or extravagant can be +imagined than the attempt to deduce from this provision in the +Constitution a power to destroy or in any wise to impair the civil and +political rights of the citizens of the United States, and much more +so the power to establish inequalities amongst those citizens by +creating privileges in one class of those citizens, and by the +disfranchisement of other portions or classes, by degrading them from +the position they previously occupied. + +There can exist no rational or natural connection or affinity between +a pretension like this and the power vested by the Constitution in +Congress with regard to the Territories; on the contrary, there is an +absolute incongruity between them. + +But whatever the power vested in Congress, and whatever the precise +subject to which that power extended, it is clear that the power +related to a subject appertaining to the _United States_, and one to +be disposed of and regulated for the benefit and under the authority +of the _United States_. Congress was made simply the agent or +_trustee_ for the United States, and could not, without a breach of +trust and a fraud, appropriate the subject of the trust to any other +beneficiary or _cestui que trust_ than the United States, or to the +people of the United States, upon equal grounds, legal or equitable. +Congress could not appropriate that subject to any one class or +portion of the people, to the exclusion of others, politically and +constitutionally equals; but every citizen would, if any _one_ could +claim it, have the like rights of purchase, settlement, occupation, or +any other right, in the national territory. + +Nothing can be more conclusive to show the equality of this with every +other right in all the citizens of the United States, and the iniquity +and absurdity of the pretension to exclude or to disfranchise a +portion of them because they are the owners of slaves, than the fact +that the same instrument, which imparts to Congress its very existence +and its every function, guaranties to the slaveholder the title to his +property, and gives him the right to its reclamation throughout the +entire extent of the nation; and, farther, that the only private +property which the Constitution has _specifically recognised_, and has +imposed it as a direct obligation both on the States and the Federal +Government to protect and _enforce_, is the property of the master in +his slave; no other right of property is placed by the Constitution +upon the same high ground, nor shielded by a similar guaranty. + +Can there be imputed to the sages and patriots by whom the +Constitution was framed, or can there be detected in the text of that +Constitution, or in any rational construction or implication deducible +therefrom, a contradiction so palpable as would exist between a pledge +to the slaveholder of an equality with his fellow-citizens, and of the +formal and solemn assurance for the security and enjoyment of his +property, and a warrant given, as it were _uno flatu_, to another, to +rob him of that property, or to subject him to proscription and +disfranchisement for possessing or for endeavoring to retain it? The +injustice and extravagance necessarily implied in a supposition like +this, cannot be rationally imputed to the patriotic or the honest, or +to those who were merely sane. + +A conclusion in favor of the prohibitory power in Congress, as +asserted in the eighth section of the act of 1820, has been attempted, +as deducible from the precedent of the ordinance of the convention of +1787, concerning the cession by Virginia of the territory northwest of +the Ohio; the provision in which ordinance, relative to slavery, it +has been attempted to impose upon other and subsequently-acquired +territory. + +The first circumstance which, in the consideration of this provision, +impresses itself upon my mind, is its utter futility and want of +authority. This court has, in repeated instances, ruled, that whatever +may have been the force accorded to this ordinance of 1787 at the +period of its enactment, its authority and effect ceased, and yielded +to the paramount authority of the Constitution, from the period of the +adoption of the latter. Such is the principle ruled in the cases of +Pollard's Lessee _v._ Hagan, (3 How., 212,) Parmoli [Transcriber's +Note: Permoli] _v._ The First Municipality of New Orleans, (3 How., +589,) Strader _v._ Graham, (16 How., 82.) But apart from the superior +control of the Constitution, and anterior to the adoption of that +instrument, it is obvious that the inhibition in question never had +and never could have any legitimate and binding force. We may seek in +vain for any power in the convention, either to require or to accept a +condition or restriction upon the cession like that insisted on; a +condition inconsistent with, and destructive of, the object of the +grant. The cession was, as recommended by the old Congress in 1780, +made originally and completed _in terms_ to _the United States_, and +for the benefit of the United States, i.e., for _the people, all the +people_, of the United States. The condition subsequently sought to be +annexed in 1787, (declared, too, to be perpetual and immutable,) being +contradictory to the terms and destructive of the purposes of the +cession, and after the cession was consummated, and the powers of the +ceding party terminated, and the rights of the grantees, _the people +of the United States_, vested, must necessarily, so far, have been _ab +initio_ void. With respect to the power of the convention to impose +this inhibition, it seems to be pertinent in this place to recur to +the opinion of one cotemporary with the establishment of the +Government, and whose distinguished services in the formation and +adoption of our national charter, point him out as the _artifex +maximus_ of our Federal system. James Madison, in the year 1819, +speaking with reference to the prohibitory power claimed by Congress, +then threatening the very existence of the Union, remarks of the +language of the second clause of the third section of article fourth +of the Constitution, "that it cannot be well extended beyond a power +over the territory _as property_, and the power to make provisions +really needful or necessary for the government of settlers, until ripe +for admission into the Union." + +Again he says, "with respect to what has taken place in the Northwest +territory, it may be observed that the ordinance giving it its +distinctive character on the subject of slaveholding proceeded from +the old Congress, acting with the best intentions, but under a charter +which contains no shadow of the authority exercised; and it remains to +be decided how far the States formed within that territory, and +admitted into the Union, are on a different footing from its other +members as to their legislative sovereignty. As to the power of +admitting new States into the Federal compact, the questions offering +themselves are, whether Congress can attach conditions, or the new +States concur in conditions, which after admission would _abridge_ or +_enlarge_ the constitutional rights of legislation common to other +States; whether Congress can, by a compact with a new State, take +power either to or from itself, or place the new member above or below +the equal rank and rights possessed by the others; whether all such +stipulations expressed or implied would not be nullities, and be so +pronounced when brought to a practical test. It falls within the scope +of your inquiry to state the fact, that there was a proposition in the +convention to discriminate between the old and the new States by an +article in the Constitution. The proposition, happily, was rejected. +The effect of such a discrimination is sufficiently evident."[2] + +[Footnote 2: Letter from James Madison to Robert Walsh, November 27th, +1819, on the subject of the Missouri Compromise.] + +In support of the ordinance of 1787, there may be adduced the +semblance at least of obligation deducible from _compact_, the _form_ +of assent or agreement between the grantor and grantee; but this form +or similitude, as is justly remarked by Mr. Madison, is rendered null +by the absence of power or authority in the contracting parties, and +by the more intrinsic and essential defect of incompatibility with the +rights and avowed purposes of those parties, and with their relative +duties and obligations to others. If, then, with the attendant +_formalities_ of assent or compact, the restrictive power claimed was +void as to the immediate subject of the ordinance, how much more +unfounded must be the pretension to such a power as derived from that +source, (viz: the ordinance of 1787,) with respect to territory +acquired by purchase or conquest under the supreme authority of the +Constitution--territory not the subject of _mere donation_, but +obtained _in the name of all, by the combined efforts and resources of +all_, and with no condition annexed or pretended. + +In conclusion, my opinion is, that the decision of the Circuit Court, +upon the law arising upon the several pleas in bar, is correct, but +that it is erroneous in having sustained the demurrer to the plea in +abatement of the jurisdiction; that for this error the decision of the +Circuit Court should be reversed, and the cause remanded to that +court, with instructions to abate the action, for the reason set forth +and pleaded in the plea in abatement. + +In the aforegoing examination of this cause, the circumstance that the +questions involved therein had been previously adjudged between these +parties by the court of the State of Missouri, has not been adverted +to; for although it has been ruled by this court, that in instances of +concurrent jurisdiction, the court first obtaining possession or +cognizance of the controversy should retain and decide it, yet, as in +this case there had been no plea, either of a former judgment or of +_autre action pendent_, it was thought that the fact of a prior +decision, however conclusive it might have been if regularly pleaded, +could not be incidentally taken into view. + + * * * * * + +Mr. Justice CAMPBELL. + +I concur in the judgment pronounced by the Chief Justice, but the +importance of the cause, the expectation and interest it has awakened, +and the responsibility involved in its determination, induce me to +file a separate opinion. + +The case shows that the plaintiff, in the year 1834, was a negro slave +in Missouri, the property of Dr. Emerson, a surgeon in the army of the +United States. In 1834, his master took him to the military station at +Rock Island, on the border of Illinois, and in 1836 to Fort Snelling, +in the present Minnesota, then Wisconsin, Territory. While at Fort +Snelling, the plaintiff married a slave who was there with her master, +and two children have been born of this connection; one during the +journey of the family in returning to Missouri, and the other after +their return to that State. + +Since 1838, the plaintiff and the members of his family have been in +Missouri in the condition of slaves. The object of this suit is to +establish their freedom. The defendant, who claims the plaintiff and +his family, under the title of Dr. Emerson, denied the jurisdiction of +the Circuit Court, by the plea that the plaintiff was a negro of +African blood, the descendant of Africans who had been imported and +sold in this country as slaves, and thus he had no capacity as a +citizen of Missouri to maintain a suit in the Circuit Court. The court +sustained a demurrer to this plea, a trial was then had upon the +general issue, and special pleas to the effect that the plaintiff and +his family were slaves belonging to the defendant. + +My opinion in this case is not affected by the plea to the +jurisdiction, and I shall not discuss the questions it suggests. The +claim of the plaintiff to freedom depends upon the effect to be given +to his absence from Missouri, in company with his master, in Illinois +and Minnesota, and this effect is to be ascertained by a reference to +the laws of Missouri. For the trespass complained of was committed +upon one claiming to be a freeman and a citizen, in that State, and +who had been living for years under the dominion of its laws. And the +rule is, that whatever is a justification where the thing is done, +must be a justification in the forum where the case is tried. (20 How. +St. Tri., 234; Cowp. S.C., 161.) + +The Constitution of Missouri recognises slavery as a legal condition, +extends guaranties to the masters of slaves, and invites immigrants +to introduce them, as property, by a promise of protection. The laws +of the State charge the master with the custody of the slave, and +provide for the maintenance and security of their relation. + +The Federal Constitution and the acts of Congress provide for the +return of escaping slaves within the limits of the Union. No removal +of the slave beyond the limits of the State, against the consent of +the master, nor residence there in another condition, would be +regarded as an effective manumission by the courts of Missouri, upon +his return to the State. "Sicut liberis captis status restituitur sic +servus domino." Nor can the master emancipate the slave within the +State, except through the agency of a public authority. The inquiry +arises, whether the manumission of the slave is effected by his +removal, with the consent of the master, to a community where the law +of slavery does not exist, in a case where neither the master nor +slave discloses a purpose to remain permanently, and where both +parties have continued to maintain their existing relations. What is +the law of Missouri in such a case? Similar inquiries have arisen in a +great number of suits, and the discussions in the State courts have +relieved the subject of much of its difficulty. (12 B.M. Ky. R., 545; +Foster _v._ Foster, 10 Gratt. Va. R., 485; 4 Har. and McH. Md. R., +295; Scott _v._ Emerson, 15 Misso., 576; 4 Rich. S.C.R., 186; 17 +Misso., 434; 15 Misso., 596; 5 B.M., 173; 8 B.M., 540, 633; 9 B.M., +565; 5 Leigh, 614; 1 Raud., 15; 18 Pick., 193.) + +The result of these discussions is, that in general, the _status_, or +civil and political capacity of a person, is determined, in the first +instance, by the law of the domicil where he is born; that the legal +effect on persons, arising from the operation of the law of that +domicil, is not indelible, but that a new capacity or _status_ may be +acquired by a change of domicil. That questions of _status_ are +closely connected with considerations arising out of the social and +political organization of the State where they originate, and each +sovereign power must determine them within its own territories. + +A large class of cases has been decided upon the second of the +propositions above stated, in the Southern and Western courts--cases +in which the law of the actual domicil was adjudged to have altered +the native condition and _status_ of the slave, although he had never +actually possessed the _status_ of freedom in that domicil. (Rankin +_v._ Lydia, 2 A.K.M.; Herny [Transcriber's Note: Harry] _v._ Decker, +Walk., 36; 4 Mart., 385; 1 Misso., 472; Hunter _v._ Fulcher, 1 Leigh +[Transcriber's Note: full citation as given elsewhere is 1 Leigh, +172].) + +I do not impugn the authority of these cases. No evidence is found in +the record to establish the existence of a domicil acquired by the +master and slave, either in Illinois or Minnesota. The master is +described as an officer of the army, who was transferred from one +station to another, along the Western frontier, in the line of his +duty, and who, after performing the usual tours of service, returned +to Missouri; these slaves returned to Missouri with him, and had been +there for near fifteen years, in that condition, when this suit was +instituted. But absence, in the performance of military duty, without +more, is a fact of no importance in determining a question of a change +of domicil. Questions of that kind depend upon acts and intentions, +and are ascertained from motives, pursuits, the condition of the +family, and fortune of the party, and no change will be inferred, +unless evidence shows that one domicil was abandoned, and there was an +intention to acquire another. (11 L. and Eq., 6; 6 Exch., 217; 6 M. +and W., 511; 2 Curt. Ecc. R., 368.) + +The cases first cited deny the authority of a foreign law to dissolve +relations which have been legally contracted in the State where the +parties are, and have their actual domicil--relations which were never +questioned during their absence from that State--relations which are +consistent with the native capacity and condition of the respective +parties, and with the policy of the State where they reside; but which +relations were inconsistent with the policy or laws of the State or +Territory within which they had been for a time, and from which they +had returned, with these relations undisturbed. It is upon the +assumption, that the law of Illinois or Minnesota was indelibly +impressed upon the slave, and its consequences carried into Missouri, +that the claim of the plaintiff depends. The importance of the case +entitles the doctrine on which it rests to a careful examination. + +It will be conceded, that in countries where no law or regulation +prevails, opposed to the existence and consequences of slavery, +persons who are born in that condition in a foreign State would not be +liberated by the accident of their introgression. The relation of +domestic slavery is recognised in the law of nations, and the +interference of the authorities of one State with the rights of a +master belonging to another, without a valid cause, is a violation of +that law. (Wheat. Law of Na., 724; 5 Stats. at Large, 601; Calh. Sp., +378; Reports of the Com. U.S. and G.B., 187, 238, 241.) + +The public law of Europe formerly permitted a master to reclaim his +bondsman, within a limited period, wherever he could find him, and one +of the capitularies of Charlemagne abolishes the rule of prescription. +He directs, "that wheresoever, within the bounds of Italy, either the +runaway slave of the king, or of the church, or of any other man, +shall be found by his master, he shall be restored without any bar or +prescription of years; yet upon the provision that the master be a +Frank or German, or of any other nation (foreign;) but if he be a +Lombard or a Roman, he shall acquire or receive his slaves by that law +which has been established from ancient times among them." Without +referring for precedents abroad, or to the colonial history, for +similar instances, the history of the Confederation and Union affords +evidence to attest the existence of this ancient law. In 1783, +Congress directed General Washington to continue his remonstrances to +the commander of the British forces respecting the permitting negroes +belonging to the citizens of these States to leave New York, and to +insist upon the discontinuance of that measure. In 1788, the resident +minister of the United States at Madrid was instructed to obtain from +the Spanish Crown orders to its Governors in Louisiana and Florida, +"to permit and facilitate the apprehension of fugitive slaves from the +States, promising that the States would observe the like conduct +respecting fugitives from Spanish subjects." The committee that made +the report of this resolution consisted of Hamilton, Madison, and +Sedgwick, (2 Hamilton's Works, 473;) and the clause in the Federal +Constitution providing for the restoration of fugitive slaves is a +recognition of this ancient right, and of the principle that a change +of place does not effect a change of condition. The diminution of the +power of a master to reclaim his escaping bondsman in Europe commenced +in the enactment of laws of prescription in favor of privileged +communes. Bremen, Spire, Worms, Vienna, and Ratisbon, in Germany; +Carcassonne, Beziers, Toulouse, and Paris, in France, acquired +privileges on this subject at an early period. The ordinance of +William the Conqueror, that a residence of any of the servile +population of England, for a year and a day, without being claimed, in +any city, burgh, walled town, or castle of the King, should entitle +them to perpetual liberty, is a specimen of these laws. + +The earliest publicist who has discussed this subject is Bodin, a +jurist of the sixteenth century, whose work was quoted in the early +discussions of the courts in France and England on this subject. He +says: "In France, although there be some remembrance of old servitude, +yet it is not lawful here to make a slave or to buy any one of others, +insomuch as the slaves of strangers, so soon as they set their foot +within France, become frank and free, as was determined by an old +decree of the court of Paris against an ambassador of Spain, who had +brought a slave with him into France." He states another case, which +arose in the city of Toulouse, of a Genoese merchant, who had carried +a slave into that city on his voyage from Spain; and when the matter +was brought before the magistrates, the "procureur of the city, out of +the records, showed certain ancient privileges given unto them of +Tholouse, wherein it was granted that slaves, so soon as they should +come into Tholouse, should be free." These cases were cited with much +approbation in the discussion of the claims of the West India slaves +of Verdelin for freedom, in 1738, before the judges in admiralty, (15 +Causes Celebres, p. 1; 2 Masse Droit Com., sec. 58,) and were +reproduced before Lord Mansfield, in the cause of Somersett, in 1772. +Of the cases cited by Bodin, it is to be observed that Charles V of +France exempted all the inhabitants of Paris from serfdom, or other +feudal incapacities, in 1371, and this was confirmed by several of his +successors, (3 Dulaire Hist. de Par., 546; Broud. Cout. de Par., 21,) +and the ordinance of Toulouse is preserved as follows: "_Civitas +Tholosana fuit et erit sine fine libera, adeo ut servi et ancillae, +sclavi et sclavae, dominos sive dominas habentes, cum rebus vel sine +rebus suis, ad Tholosam vel infra terminos extra urbem terminatos +accedentes acquirant libertatem_." (Hist. de Langue, tome 3, p. 69; +Ibid. 6, p. 8; Loysel Inst., b. 1, sec. 6.) + +The decisions were made upon special ordinances, or charters, which +contained positive prohibitions of slavery, and where liberty had been +granted as a privilege; and the history of Paris furnishes but little +support for the boast that she was a "_sacro sancta civitas_," where +liberty always had an asylum, or for the "self-complacent rhapsodies" +of the French advocates in the case of Verdelin, which amused the +grave lawyers who argued the case of Somersett. The case of Verdelin +was decided upon a special ordinance, which prescribed the conditions +on which West India slaves might be introduced into France, and which +had been disregarded by the master. + +The case of Somersett was that of a Virginia slave carried to England +by his master in 1770, and who remained there two years. For some +cause, he was confined on a vessel destined to Jamaica, where he was +to be sold. Lord Mansfield, upon a return to a _habeas corpus_, states +the question involved. "Here, the person of the slave himself," he +says, "is the immediate subject of inquiry, Can any dominion, +authority, or coercion, be exercised in this country, according to the +American laws?" He answers: "The difficulty of adopting the relation, +without adopting it in all its consequences, is indeed extreme, and +yet many of those consequences are absolutely contrary to the +municipal law of England." Again, he says: "The return states that the +slave departed, and refused to serve; whereupon, he was kept to be +sold abroad." "So high an act of dominion must be recognised by the +law of the country where it is used. The power of the master over his +slave has been extremely different in different countries." "The state +of slavery is of such a nature, that it is incapable of being +introduced on any reasons, moral or political, but only by positive +law, which preserves its force long after the reasons, occasion, and +time itself, from whence it was created, are erased from the memory. +It is so odious, that nothing can be suffered to support it but +positive law." That there is a difference in the systems of States, +which recognise and which do not recognise the institution of slavery, +cannot be disguised. Constitutional law, punitive law, police, +domestic economy, industrial pursuits, and amusements, the modes of +thinking and of belief of the population of the respective +communities, all show the profound influence exerted upon society by +this single arrangement. This influence was discovered in the Federal +Convention, in the deliberations on the plan of the Constitution. Mr. +Madison observed, "that the States were divided into different +interests, not by their difference of size, but by other +circumstances; the most material of which resulted partly from +climate, but principally from the effects of their having or not +having slaves. These two causes concur in forming the great division +of interests in the United States." + +The question to be raised with the opinion of Lord Mansfield, +therefore, is not in respect to the incongruity of the two systems, +but whether slavery was absolutely contrary to the law of England; for +if it was so, clearly, the American laws could not operate there. +Historical research ascertains that at the date of the Conquest the +rural population of England were generally in a servile condition, and +under various names, denoting slight variances in condition, they were +sold with the land like cattle, and were a part of its living money. +Traces of the existence of African slaves are to be found in the early +chronicles. Parliament in the time of Richard II, and also of Henry +VIII, refused to adopt a general law of emancipation. Acts of +emancipation by the last-named monarch and by Elizabeth are preserved. + +The African slave trade had been carried on, under the unbounded +protection of the Crown, for near two centuries, when the case of +Somersett was heard, and no motion for its suppression had ever been +submitted to Parliament; while it was forced upon and maintained in +unwilling colonies by the Parliament and Crown of England at that +moment. Fifteen thousand negro slaves were then living in that island, +where they had been introduced under the counsel of the most +illustrious jurists of the realm, and such slaves had been publicly +sold for near a century in the markets of London. In the northern part +of the kingdom of Great Britain there existed a class of from 30,000 +to 40,000 persons, of whom the Parliament said, in 1775, (15 George +III, chap. 28,) "many colliers, coal-heavers, and salters, are in a +state of slavery or bondage, bound to the collieries and salt works, +where they work for life, transferable with the collieries and salt +works when their original masters have no use for them; and whereas +the emancipating or setting free the colliers, coal-heavers, and +salters, in Scotland, who are now in a state of servitude, gradually +and upon reasonable conditions, would be the means of increasing the +number of colliers, coal-heavers, and salters, to the great benefit of +the public, without doing any injury to the present masters, and would +remove the reproach of allowing such a state of servitude to exist in +a free country," &c.; and again, in 1799, "they declare that many +colliers and coal-heavers still continue in a state of bondage." No +statute, from the Conquest till the 15 George III, had been passed +upon the subject of personal slavery. These facts have led the most +eminent civilian of England to question the accuracy of this judgment, +and to insinuate that in this judgment the offence of _ampliare +jurisdictionem_ by private authority was committed by the eminent +magistrate who pronounced it. + +This sentence is distinguishable from those cited from the French +courts in this: that there positive prohibitions existed against +slavery, and the right to freedom was conferred on the immigrant slave +by positive law; whereas here the consequences of slavery merely--that +is, the public policy--were found to be contrary to the law of +slavery. The case of the slave Grace, (2 Hagg.,) with four others, +came before Lord Stowell in 1827, by appeals from the West India vice +admiralty courts. They were cases of slaves who had returned to those +islands, after a residence in Great Britain, and where the claim to +freedom was first presented in the colonial forum. The learned judge +in that case said: "This suit fails in its foundation. She (Grace) was +not a free person; no injury is done her by her continuance in +slavery, and she has no pretensions to any other station than that +which was enjoyed by every slave of a family. If she depends upon such +freedom conveyed by a mere residence in England, she complains of a +violation of right which she possessed no longer than whilst she +resided in England, but which totally expired when that residence +ceased, and she was imported into Antigua." + +The decision of Lord Mansfield was, "that so high an act of dominion" +as the master exercises over his slave, in sending him abroad for +sale, could not be exercised in England under the American laws, and +contrary to the spirit of their own. + +The decision of Lord Stowell is, that the authority of the English +laws terminated when the slave departed from England. That the laws of +England were not imported into Antigua, with the slave, upon her +return, and that the colonial forum had no warrant for applying a +foreign code to dissolve relations which had existed between persons +belonging to that island, and which were legal according to its own +system. There is no distinguishable difference between the case before +us and that determined in the admiralty of Great Britain. + +The complaint here, in my opinion, amounts to this: that the judicial +tribunals of Missouri have not denounced as odious the Constitution +and laws under which they are organized, and have not superseded them +on their own private authority, for the purpose of applying the laws +of Illinois, or those passed by Congress for Minnesota, in their +stead. The eighth section of the act of Congress of the 6th of March, +1820, (3 Statutes at Large, 545,) entitled, "An act to authorize the +people of Missouri to form a State Government," &c., &c., is referred +to, as affording the authority to this court to pronounce the sentence +which the Supreme Court of Missouri felt themselves constrained to +refuse. That section of the act prohibits slavery in the district of +country west of the Mississippi, north of thirty-six degrees thirty +minutes north latitude, which belonged to the ancient province of +Louisiana, not included in Missouri. + +It is a settled doctrine of this court, that the Federal Government +can exercise no power over the subject of slavery within the States, +nor control the intermigration of slaves, other than fugitives, among +the States. Nor can that Government affect the duration of slavery +within the States, other than by a legislation over the foreign slave +trade. The power of Congress to adopt the section of the act above +cited must therefore depend upon some condition of the Territories +which distinguishes them from States, and subjects them to a control +more extended. The third section of the fourth article of the +Constitution is referred to as the only and all-sufficient grant to +support this claim. It is, that "new States may be admitted by the +Congress to this Union; but no new State shall be formed or erected +within the jurisdiction of any other State, nor any State be formed by +the junction of two or more States, or parts of States, without the +consent of the Legislatures of the States concerned, as well as of the +Congress. The Congress shall have power to dispose of and make all +needful rules and regulations respecting the territory or other +property belonging to the United States; and nothing in this +Constitution shall be so construed as to prejudice any claims of the +United States, or of any particular State." + +It is conceded, in the decisions of this court, that Congress may +secure the rights of the United States in the public domain, provide +for the sale or lease of any part of it, and establish the validity of +the titles of the purchasers, and may organize Territorial +Governments, with powers of legislation. (3 How., 212; 12 How., 1; 1 +Pet., 511; 13 P., 436; 16 H., 164.) + +But the recognition of a plenary power in Congress to dispose of the +public domain, or to organize a Government over it, does not imply a +corresponding authority to determine the internal polity, or to adjust +the domestic relations, or the persons who may lawfully inhabit the +territory in which it is situated. A supreme power to make needful +rules respecting the public domain, and a similar power of framing +laws to operate upon persons and things within the territorial limits +where it lies, are distinguished by broad lines of demarcation in +American history. This court has assisted us to define them. In +Johnson _v._ McIntosh, (8 Wheat., 595--543,) [Transcriber's Note: +modern citation form is 8 Wheat. 543, 595] they say: "According to the +theory of the British Constitution, all vacant lands are vested in the +Crown; and the exclusive power to grant them is admitted to reside in +the Crown, as a branch of the royal prerogative. + +"All the lands we hold were originally granted by the Crown, and the +establishment of a royal Government has never been considered as +impairing its right to grant lands within the chartered limits of such +colony." + +And the British Parliament did claim a supremacy of legislation +coextensive with the absoluteness of the dominion of the sovereign +over the Crown lands. The American doctrine, to the contrary, is +embodied in two brief resolutions of the people of Pennsylvania, in +1774: 1st. "That the inhabitants of these colonies are entitled to the +same rights and liberties, within the colonies, that the subjects born +in England are entitled within the realm." 2d. "That the power assumed +by Parliament to bind the people of these colonies by statutes, in all +cases whatever, is unconstitutional, and therefore the source of these +unhappy difficulties." The Congress of 1774, in their statement of +rights and grievances, affirm "a free and exclusive power of +legislation" in their several Provincial Legislatures, "in all cases +of taxation and internal polity, subject only to the negative of their +sovereign, in such manner as has been heretofore used and accustomed." +(1 Jour. Cong., 32.) + +The unanimous consent of the people of the colonies, then, to the +power of their sovereign, "to dispose of and make all needful rules +and regulations respecting the territory" of the Crown, in 1774, was +deemed by them as entirely consistent with opposition, remonstrance, +the renunciation of allegiance, and proclamation of civil war, in +preference to submission to his claim of supreme power in the +territories. + +I pass now to the evidence afforded during the Revolution and +Confederation. The American Revolution was not a social revolution. It +did not alter the domestic condition or capacity of persons within the +colonies, nor was it designed to disturb the domestic relations +existing among them. It was a political revolution, by which thirteen +dependent colonies became thirteen independent States. "The +Declaration of Independence was not," says Justice Chase, "a +declaration that the United Colonies jointly, in a collective +capacity, were independent States, &c., &c., &c., but that each of +them was a sovereign and independent State; that is, that each of them +had a right to govern itself by its own authority and its own laws, +without any control from any other power on earth." (3 Dall., 199; 4 +Cr., 212.) + +These sovereign and independent States, being united as a +Confederation, by various public acts of cession, became jointly +interested in territory, and concerned to dispose of and make all +needful rules and regulations respecting it. It is a conclusion not +open to discussion in this court, "that there was no territory within +the (original) United States, that was claimed by them in any other +right than that of some of the confederate States." (Harcourt _v._ +Gaillord, 12 Wh., 523.) "The question whether the vacant lands within +the United States," says Chief Justice Marshall, "became joint +property, or belonged to the separate States, was a momentous +question, which threatened to shake the American Confederacy to its +foundations. This important and dangerous question has been +compromised, and the compromise is not now to be contested." (6 C.R., +87.) + +The cessions of the States to the Confederation were made on the +condition that the territory ceded should be laid out and formed into +distinct republican States, which should be admitted as members to the +Federal Union, having the same rights of sovereignty, freedom, and +independence, as the other States. The first effort to fulfil this +trust was made in 1785, by the offer of a charter or compact to the +inhabitants who might come to occupy the land. + +Those inhabitants were to form for themselves temporary State +Governments, founded on the Constitutions of any of the States, but to +be alterable at the will of their Legislature; and permanent +Governments were to succeed these, whenever the population became +sufficiently numerous to authorize the State to enter the Confederacy; +and Congress assumed to obtain powers from the States to facilitate +this object. Neither in the deeds of cession of the States, nor in +this compact, was a sovereign power for Congress to govern the +Territories asserted. Congress retained power, by this act, "to +dispose of and to make rules and regulations respecting the public +domain," but submitted to the people to organize a Government +harmonious with those of the confederate States. + +The next stage in the progress of colonial government was the adoption +of the ordinance of 1787, by eight States, in which the plan of a +Territorial Government, established by act of Congress, is first seen. +This was adopted while the Federal Convention to form the Constitution +was sitting. The plan placed the Government in the hands of a +Governor, Secretary, and Judges, appointed by Congress, and conferred +power on them to select suitable laws from the codes of the States, +until the population should equal 5,000. A Legislative Council, +elected by the people, was then to be admitted to a share of the +legislative authority, under the supervision of Congress; and States +were to be formed whenever the number of the population should +authorize the measure. + +This ordinance was addressed to the inhabitants as a fundamental +compact, and six of its articles define the conditions to be observed +in their Constitution and laws. These conditions were designed to +fulfil the trust in the agreements of cession, that the States to be +formed of the ceded Territories should be "distinct republican +States." This ordinance was submitted to Virginia in 1788, and the 5th +article, embodying as it does a summary of the entire act, was +specifically ratified and confirmed by that State. This was an +incorporation of the ordinance into her act of cession. It was +conceded, in the argument, that the authority of Congress was not +adequate to the enactment of the ordinance, and that it cannot be +supported upon the Articles of Confederation. To a part of the +engagements, the assent of nine States was required, and for another +portion no provision had been made in those articles. Mr. Madison +said, in a writing nearly contemporary, but before the confirmatory +act of Virginia, "Congress have proceeded to form new States, to erect +temporary Governments, to appoint officers for them, and to prescribe +the conditions on which such States shall be admitted into the +Confederacy; all this has been done, and done without the least color +of constitutional authority." (Federalist, No. 38.) Richard Henry Lee, +one of the committee who reported the ordinance to Congress, +transmitted it to General Washington, (15th July, 1787,) saying, "It +seemed necessary, for the security of property among uninformed and +perhaps licentious people, as the greater part of those who go there +are, that a strong-toned Government should exist, and the rights of +property be clearly defined." The consent of all the States +represented in Congress, the consent of the Legislature of Virginia, +the consent of the inhabitants of the Territory, all concur to support +the authority of this enactment. It is apparent, in the frame of the +Constitution, that the Convention recognised its validity, and +adjusted parts of their work with reference to it. The authority to +admit new States into the Union, the omission to provide distinctly +for Territorial Governments, and the clause limiting the foreign slave +trade to States then existing, which might not prohibit it, show that +they regarded this Territory as provided with a Government, and +organized permanently with a restriction on the subject of slavery. +Justice Chase, in the opinion already cited, says of the Government +before, and it is in some measure true during the Confederation, that +"the powers of Congress originated from necessity, and arose out of +and were only limited by events, or, in other words, they were +revolutionary in their very nature. Their extent depended upon the +exigencies and necessities of public affairs;" and there is only one +rule of construction, in regard to the acts done, which will fully +support them, viz: that the powers actually exercised were rightfully +exercised, wherever they were supported by the implied sanction of the +State Legislatures, and by the ratifications of the people. + +The clauses in the 3d section of the 4th article of the Constitution, +relative to the admission of new States, and the disposal and +regulation of the territory of the United States, were adopted without +debate in the Convention. + +There was a warm discussion on the clauses that relate to the +subdivision of the States, and the reservation of the claims of the +United States and each of the States from any prejudice. The Maryland +members revived the controversy in regard to the Crown lands of the +Southwest. There was nothing to indicate any reference to a government +of Territories not included within the limits of the Union; and the +whole discussion demonstrates that the Convention was consciously +dealing with a Territory whose condition, as to government, had been +arranged by a fundamental and unalterable compact. + +An examination of this clause of the Constitution, by the light of the +circumstances in which the Convention was placed, will aid us to +determine its significance. The first clause is, "that new States may +be admitted by the Congress to this Union." The condition of +Kentucky, Vermont, Rhode Island, and the new States to be formed in +the Northwest, suggested this, as a necessary addition to the powers +of Congress. The next clause, providing for the subdivision of States, +and the parties to consent to such an alteration, was required, by the +plans on foot, for changes in Massachusetts, New York, Pennsylvania, +North Carolina, and Georgia. The clause which enables Congress to +dispose of and make regulations respecting the public domain, was +demanded by the exigencies of an exhausted treasury and a disordered +finance, for relief by sales, and the preparation for sales, of the +public lands; and the last clause, that nothing in the Constitution +should prejudice the claims of the United States or a particular +State, was to quiet the jealousy and irritation of those who had +claimed for the United States all the unappropriated lands. I look in +vain, among the discussions of the time, for the assertion of a +supreme sovereignty for Congress over the territory then belonging to +the United States, or that they might thereafter acquire. I seek in +vain for an annunciation that a consolidated power had been +inaugurated, whose subject comprehended an empire, and which had no +restriction but the discretion of Congress. This disturbing element of +the Union entirely escaped the apprehensive previsions of Samuel +Adams, George Clinton, Luther Martin, and Patrick Henry; and, in +respect to dangers from power vested in a central Government over +distant settlements, colonies, or provinces, their instincts were +always alive. Not a word escaped them, to warn their countrymen, that +here was a power to threaten the landmarks of this federative Union, +and with them the safeguards of popular and constitutional liberty; or +that under this article there might be introduced, on our soil, a +single Government over a vast extent of country--a Government foreign +to the persons over whom it might be exercised, and capable of binding +those not represented, by statutes, in all cases whatever. I find +nothing to authorize these enormous pretensions, nothing in the +expositions of the friends of the Constitution, nothing in the +expressions of alarm by its opponents--expressions which have since +been developed as prophecies. Every portion of the United States was +then provided with a municipal Government, which this Constitution was +not designed to supersede, but merely to modify as to its conditions. + +The compacts of cession by North Carolina and Georgia are subsequent +to the Constitution. They adopt the ordinance of 1787, except the +clause respecting slavery. But the precautionary repudiation of that +article forms an argument quite as satisfactory to the advocates for +Federal power, as its introduction would have done. The refusal of a +power to Congress to legislate in one place, seems to justify the +seizure of the same power when another place for its exercise is +found. + +This proceeds from a radical error, which lies at the foundation of +much of this discussion. It is, that the Federal Government may +lawfully do whatever is not directly prohibited by the Constitution. +This would have been a fundamental error, if no amendments to the +Constitution had been made. But the final expression of the will of +the people of the States, in the 10th amendment, is, that the powers +of the Federal Government are limited to the grants of the +Constitution. + +Before the cession of Georgia was made, Congress asserted rights, in +respect to a part of her territory, which require a passing notice. In +1798 and 1800, acts for the settlement of limits with Georgia, and to +establish a Government in the Mississippi Territory, were adopted. A +Territorial Government was organized, between the Chattahoochee and +Mississippi rivers. This was within the limits of Georgia. These acts +dismembered Georgia. They established a separate Government upon her +soil, while they rather derisively professed, "that the establishment +of that Government shall in no respects impair the rights of the State +of Georgia, either to the jurisdiction or soil of the Territory." The +Constitution provided that the importation of such persons as any of +the existing States shall think proper to admit, shall not be +prohibited by Congress before 1808. By these enactments, a prohibition +was placed upon the importation of slaves into Georgia, although her +Legislature had made none. + +This court have repeatedly affirmed the paramount claim of Georgia to +this Territory. They have denied the existence of any title in the +United States. (6 C.R., 87; 12 Wh., 523; 3 How., 212; 13 How., 381.) +Yet these acts were cited in the argument as precedents to show the +power of Congress in the Territories. These statutes were the occasion +of earnest expostulation and bitter remonstrance on the part of the +authorities of the State, and the memory of their injustice and wrong +remained long after the legal settlement of the controversy by the +compact of 1802. A reference to these acts terminates what I have to +say upon the Constitutions of the Territory within the original limits +of the United States. These Constitutions were framed by the +concurrence of the States making the cessions, and Congress, and were +tendered to immigrants who might be attracted to the vacant territory. +The legislative powers of the officers of this Government were limited +to the selection of laws from the States; and provision was made for +the introduction of popular institutions, and their emancipation from +Federal control, whenever a suitable opportunity occurred. The limited +reservation of legislative power to the officers of the Federal +Government was excused, on the plea of _necessity_; and the +probability is, that the clauses respecting slavery embody some +compromise among the statesmen of that time; beyond these, the +distinguishing features of the system which the patriots of the +Revolution had claimed as their birthright, from Great Britain, +predominated in them. + +The acquisition of Louisiana, in 1803, introduced another system into +the United States. This vast province was ceded by Napoleon, and its +population had always been accustomed to a viceroyal Government, +appointed by the Crowns of France or Spain. To establish a Government +constituted on similar principles, and with like conditions, was not +an unnatural proceeding. + +But there was great difficulty in finding constitutional authority for +the measure. The third section of the fourth article of the +Constitution was introduced into the Constitution, on the motion of +Mr. Gouverneur Morris. In 1803, he was appealed to for information in +regard to its meaning. He answers: "I am very certain I had it not in +contemplation to insert a decree _de coercendo imperio_ in the +Constitution of America.... I knew then, as well as I do now, that all +North America must at length be annexed to us. Happy indeed, if the +lust of dominion stop here. It would therefore have been perfectly +utopian to oppose a paper restriction to the violence of popular +sentiment, in a popular Government." (3 Mor. Writ., 185.) A few days +later, he makes another reply to his correspondent. "I perceive," he +says, "I mistook the drift of your inquiry, which substantially is, +whether Congress can admit, as a new State, territory which did not +belong to the United States when the Constitution was made. In my +opinion, they cannot. I always thought, when we should acquire Canada +and Louisiana, it would be proper to GOVERN THEM AS PROVINCES, AND +ALLOW THEM NO VOICE _in our councils. In wording the third_ SECTION OF +THE _fourth article, I went as far as circumstances would permit, to +establish the exclusion_. CANDOR OBLIGES ME TO ADD MY BELIEF, THAT HAD +IT BEEN MORE POINTEDLY EXPRESSED, A STRONG OPPOSITION WOULD HAVE BEEN +MADE." (3 Mor. Writ., 192.) The first Territorial Government of +Louisiana was an Imperial one, founded upon a French or Spanish model. +For a time, the Governor, Judges, Legislative Council, Marshal, +Secretary, and officers of the militia, were appointed by the +President.[3] + +[Footnote 3: Mr. Varnum said: "The bill provided such a Government as +had never been known in the United States." Mr. Eustis: "The +Government laid down in this bill is certainly a new thing in the +United States." Mr. Lucas: "It has been remarked, that this bill +establishes elementary principles never previously introduced in the +Government of any Territory of the United States. Granting the truth +of this observation," &c., &c. Mr. Macon: "My first objection to the +principle contained in this section is, that it establishes a species +of government unknown to the United States." Mr. Boyle: "Were the +President an angel instead of a man, I would not clothe him with this +power." Mr. G.W. Campbell: "On examining the section, it will appear +that it really establishes a complete despotism." Mr. Sloan: "Can +anything be more repugnant to the principles of just government? Can +anything be more despotic?"--_Annals of Congress_, 1803-'4.] + +Besides these anomalous arrangements, the acquisition gave rise to +jealous inquiries, as to the influence it would exert in determining +the men and States that were to be "the arbiters and rulers" of the +destinies of the Union; and unconstitutional opinions, having for +their aim to promote sectional divisions, were announced and +developed. "Something," said an eminent statesman, "something has +suggested to the members of Congress the policy of acquiring +geographical majorities. This is a very direct step towards disunion, +for it must foster the geographical enmities by which alone it can be +effected. This something must be a contemplation of particular +advantages to be derived from such majorities; and is it not notorious +that they consist of nothing else but usurpations over persons and +property, by which they can regulate the internal _wealth and +prosperity of States and individuals_?" + +The most dangerous of the efforts to employ a geographical political +power, to perpetuate a geographical preponderance in the Union, is to +be found in the deliberations upon the act of the 6th of March, 1820, +before cited. The attempt consisted of a proposal to exclude Missouri +from a place in the Union, unless her people would adopt a +Constitution containing a prohibition upon the subject of slavery, +according to a prescription of Congress. The sentiment is now general, +if not universal, that Congress had no constitutional power to impose +the restriction. This was frankly admitted at the bar, in the course +of this argument. The principles which this court have pronounced +condemn the pretension then made on behalf of the legislative +department. In Groves _v._ Slaughter, (15 Pet.,) the Chief Justice +said: "The power over this subject is exclusively with the several +States, and each of them has a right to decide for itself whether it +will or will not allow persons of this description to be brought +within its limits." Justice McLean said: "The Constitution of the +United States operates alike in all the States, and one State has the +same power over the subject of slavery as every other State." In +Pollard's Lessee _v._ Hagan, (3 How., 212,) the court say: "The United +States have no constitutional capacity to exercise municipal +jurisdiction, sovereignty, or eminent domain, within the limits of a +State or elsewhere, except in cases where it is delegated, and the +court denies the faculty of the Federal Government to add to its +powers by treaty or compact." + +This is a necessary consequence, resulting from the nature of the +Federal Constitution, which is a federal compact among the States, +establishing a limited Government, with powers delegated by the people +of distinct and independent communities, who reserved to their State +Governments, and to themselves, the powers they did not grant. This +claim to impose a restriction upon the people of Missouri involved a +denial of the constitutional relations between the people of the +States and Congress, and affirmed a concurrent right for the latter, +with their people, to constitute the social and political system of +the new States. A successful maintenance of this claim would have +altered the basis of the Constitution. The new States would have +become members of a Union defined in part by the Constitution and in +part by Congress. They would not have been admitted to "this Union." +Their sovereignty would have been restricted by Congress as well as +the Constitution. The demand was unconstitutional and subversive, but +was prosecuted with an energy, and aroused such animosities among the +people, that patriots, whose confidence had not failed during the +Revolution, began to despair for the Constitution.[4] Amid the utmost +violence of this extraordinary contest, the expedient contained in the +eighth section of this act was proposed, to moderate it, and to avert +the catastrophe it menaced. It was not seriously debated, nor were its +constitutional aspects severely scrutinized by Congress. For the first +time, in the history of the country, has its operation been embodied +in a case at law, and been presented to this court for their judgment. +The inquiry is, whether there are conditions in the Constitutions of +the Territories which subject the capacity and _status_ of persons +within their limits to the direct action of Congress. Can Congress +determine the condition and _status_ of persons who inhabit the +Territories? + +[Footnote 4: Mr. Jefferson wrote: "The Missouri question is the most +portentous one that ever threatened our Union. In the gloomiest +moments of the revolutionary war, I never had any apprehension equal +to that I feel from this source."] + +The Constitution permits Congress to dispose of and to make all +needful rules and regulations respecting the territory or other +property belonging to the United States. This power applies as well to +territory belonging to the United States within the States, as beyond +them. It comprehends all the public domain, wherever it may be. The +argument is, that the power to make "ALL needful rules and +regulations" "is a power of legislation," "a full legislative power;" +"that it includes all subjects of legislation in the territory," and +is without any limitations, except the positive prohibitions which +affect all the powers of Congress. Congress may then regulate or +prohibit slavery upon the public domain within the new States, and +such a prohibition would permanently affect the capacity of a slave, +whose master might carry him to it. And why not? Because no power has +been conferred on Congress. This is a conclusion universally admitted. +But the power to "make rules and regulations respecting the territory" +is not restrained by State lines, nor are there any constitutional +prohibitions upon its exercise in the domain of the United States +within the States; and whatever rules and regulations respecting +territory Congress may constitutionally make are supreme, and are not +dependent on the _situs_ of "the territory." + +The author of the Farmer's Letters, so famous in the +ante-revolutionary history, thus states the argument made by the +American loyalists in favor of the claim of the British Parliament to +legislate in all cases whatever over the colonies: "It has been urged +with great vehemence against us," he says, "and it seems to be thought +their FORT by our adversaries, that a power of regulation is a power +of legislation; and a power of legislation, if constitutional, must be +universal and supreme, in the utmost sense of the word. It is +therefore concluded that the colonies, by acknowledging the power of +regulation, acknowledged every other power." + +This sophism imposed upon a portion of the patriots of that day. Chief +Justice Marshall, in his life of Washington, says "that many of the +best-informed men in Massachusetts had perhaps adopted the opinion of +the parliamentary right of internal government over the colonies;" +"that the English statute book furnishes many instances of its +exercise;" "that in no case recollected, was their authority openly +controverted;" and "that the General Court of Massachusetts, on a late +occasion, openly recognised the principle." (Marsh. Wash., v. 2, p. +75, 76.) + +But the more eminent men of Massachusetts rejected it; and another +patriot of the time employs the instance to warn us of "the stealth +with which oppression approaches," and "the enormities towards which +precedents travel." And the people of the United States, as we have +seen, appealed to the last argument, rather than acquiesce in their +authority. Could it have been the purpose of Washington and his +illustrious associates, by the use of ambiguous, equivocal, and +expansive words, such as "rules," "regulations," "territory," to +re-establish in the Constitution of their country that _fort_ which +had been prostrated amid the toils and with the sufferings and +sacrifices of seven years of war? Are these words to be understood as +the Norths, the Grenvilles, Hillsboroughs, Hutchinsons, and +Dunmores--in a word, as George III would have understood them--or are +we to look for their interpretation to Patrick Henry or Samuel Adams, +to Jefferson, and Jay, and Dickinson; to the sage Franklin, or to +Hamilton, who from his early manhood was engaged in combating British +constructions of such words? We know that the resolution of Congress +of 1780 contemplated that the new States to be formed under their +recommendation were to have the same rights of sovereignty, freedom, +and independence, as the old. That every resolution, cession, compact, +and ordinance, of the States, observed the same liberal principle. +That the Union of the Constitution is a union formed of equal States; +and that new States, when admitted, were to enter "this Union." Had +another union been proposed in "any pointed manner," it would have +encountered not only "strong" but successful opposition. The disunion +between Great Britain and her colonies originated in the antipathy of +the latter to "rules and regulations" made by a remote power +respecting their internal policy. In forming the Constitution, this +fact was ever present in the minds of its authors. The people were +assured by their most trusted statesmen "that the jurisdiction of the +Federal Government is limited to certain enumerated objects, which +concern all members of the republic," and "that the local or municipal +authorities form distinct portions of supremacy, no more subject +within their respective spheres to the general authority, than the +general authority is subject to them within its own sphere." Still, +this did not content them. Under the lead of Hancock and Samuel Adams, +of Patrick Henry and George Mason, they demanded an explicit +declaration that no more power was to be exercised than they had +delegated. And the ninth and tenth amendments to the Constitution were +designed to include the reserved rights of the States, and the people, +within all the sanctions of that instrument, and to bind the +authorities, State and Federal, by the judicial oath it prescribes, to +their recognition and observance. Is it probable, therefore, that the +supreme and irresponsible power, which is now claimed for Congress +over boundless territories, the use of which cannot fail to react upon +the political system of the States, to its subversion, was ever within +the contemplation of the statesmen who conducted the counsels of the +people in the formation of this Constitution? When the questions that +came to the surface upon the acquisition of Louisiana were presented +to the mind of Jefferson, he wrote: "I had rather ask an enlargement +of power from the nation, where it is found necessary, than to assume +it by a construction which would make our powers boundless. Our +peculiar security is in the possession of a written Constitution. Let +us not make it blank paper by construction. I say the same as to the +opinion of those who consider the grant of the treaty-making power as +boundless. If it is, then we have no Constitution. If it has bounds, +they can be no others than the definitions of the powers which that +instrument gives. It specifies and delineates the operations permitted +to the Federal Government, and gives the powers necessary to carry +them into execution." The publication of the journals of the Federal +Convention in 1819, of the debates reported by Mr. Madison in 1840, +and the mass of private correspondence of the early statesmen before +and since, enable us to approach the discussion of the aims of those +who made the Constitution, with some insight and confidence. + +I have endeavored, with the assistance of these, to find a solution +for the grave and difficult question involved in this inquiry. My +opinion is, that the claim for Congress of supreme power in the +Territories, under the grant to "dispose of and make all needful rules +and regulations respecting _territory_," is not supported by the +historical evidence drawn from the Revolution, the Confederation, or +the deliberations which preceded the ratification of the Federal +Constitution. The ordinance of 1787 depended upon the action of the +Congress of the Confederation, the assent of the State of Virginia, +and the acquiescence of the people who recognised the validity of that +plea of necessity which supported so many of the acts of the +Governments of that time; and the Federal Government accepted the +ordinance as a recognised and valid engagement of the Confederation. + +In referring to the precedents of 1798 and 1800, I find the +Constitution was plainly violated by the invasion of the rights of a +sovereign State, both of soil and jurisdiction; and in reference to +that of 1804, the wisest statesmen protested against it, and the +President more than doubted its policy and the power of the +Government. + +Mr. John Quincy Adams, at a later period, says of the last act, "that +the President found Congress mounted to the pitch of passing those +acts, without inquiring where they acquired the authority, and he +conquered his own scruples as they had done theirs." But this court +cannot undertake for themselves the same conquest. They acknowledge +that our peculiar security is in the possession of a written +Constitution, and they cannot make it blank paper by construction. + +They look to its delineation of the operations of the Federal +Government, and they must not exceed the limits it marks out, in their +administration. The court have said "that Congress cannot exercise +municipal jurisdiction, sovereignty, or eminent domain, within the +limits of a State or elsewhere, beyond what has been delegated." We +are then to find the authority for supreme power in the Territories in +the Constitution. What are the limits upon the operations of a +Government invested with legislative, executive, and judiciary powers, +and charged with the power to dispose of and to make all needful rules +and regulations respecting a vast public domain? The feudal system +would have recognised the claim made on behalf of the Federal +Government for supreme power over persons and things in the +Territories, as an incident to this title--that is, the title to +dispose of and make rules and regulations respecting it. + +The Norman lawyers of William the Conqueror would have yielded an +implicit assent to the doctrine, that a supreme sovereignty is an +inseparable incident to a grant to dispose of and to make all needful +rules and regulations respecting the public domain. But an American +patriot, in contrasting the European and American systems, may affirm, +"that European sovereigns give lands to their colonists, but reserve +to themselves a power to control their property, liberty, and +privileges; but the American Government sells the lands belonging to +the people of the several States (i.e., United States) to their +citizens, who are already in the possession of personal and political +rights, which the Government did not give, and cannot take away." And +the advocates for Government sovereignty in the Territories have been +compelled to abate a portion of the pretensions originally made in its +behalf, and to admit that the constitutional prohibitions upon +Congress operate in the Territories. But a constitutional prohibition +is not requisite to ascertain a limitation upon the authority of the +several departments of the Federal Government. Nor are the States or +people restrained by any enumeration or definition of their rights or +liberties. + +To impair or diminish either, the department must produce an authority +from the people themselves, in their Constitution; and, as we have +seen, a power to make rules and regulations respecting the public +domain does not confer a municipal sovereignty over persons and things +upon it. But as this is "thought their fort" by our adversaries, I +propose a more definite examination of it. We have seen, Congress does +not dispose of or make rules and regulations respecting domain +belonging to themselves, but belonging to the United States. + +These conferred on their mandatory, Congress, authority to dispose of +the territory which belonged to them in common; and to accomplish that +object beneficially and effectually, they gave an authority to make +suitable rules and regulations respecting it. When the power of +disposition is fulfilled, the authority to make rules and regulations +terminates, for it attaches only upon territory "belonging to the +United States." + +Consequently, the power to make rules and regulations, from the nature +of the subject, is restricted to such administrative and conservatory +acts as are needful for the preservation of the public domain, and its +preparation for sale or disposition. The system of land surveys; the +reservations for schools, internal improvements, military sites, and +public buildings; the pre-emption claims of settlers; the +establishment of land offices, and boards of inquiry, to determine the +validity of land titles; the modes of entry, and sale, and of +conferring titles; the protection of the lands from trespass and +waste; the partition of the public domain into municipal subdivisions, +having reference to the erection of Territorial Governments and +States; and perhaps the selection, under their authority, of suitable +laws for the protection of the settlers, until there may be a +sufficient number of them to form a self-sustaining municipal +Government--these important rules and regulations will sufficiently +illustrate the scope and operation of the 3d section of the 4th +article of the Constitution. But this clause in the Constitution does +not exhaust the powers of Congress within the territorial +subdivisions, or over the persons who inhabit them. Congress may +exercise there all the powers of Government which belong to them as +the Legislature of the United States, of which these Territories make +a part. (Loughborough _v._ Blake, 5 Wheat., 317.) Thus the laws of +taxation, for the regulation of foreign, Federal, and Indian commerce, +and so for the abolition of the slave trade, for the protection of +copyrights and inventions, for the establishment of postal +communication and courts of justice, and for the punishment of crimes, +are as operative there as within the States. I admit that to mark the +bounds for the jurisdiction of the Government of the United States +within the Territory, and of its power in respect to persons and +things within the municipal subdivisions it has created, is a work of +delicacy and difficulty, and, in a great measure, is beyond the +cognizance of the judiciary department of that Government. How much +municipal power may be exercised by the people of the Territory, +before their admission to the Union, the courts of justice cannot +decide. This must depend, for the most part, on political +considerations, which cannot enter into the determination of a case of +law or equity. I do not feel called upon to define the jurisdiction of +Congress. It is sufficient for the decision of this case to ascertain +whether the residuary sovereignty of the States or people has been +invaded by the 8th section of the act of 6th March, 1820, I have +cited, in so far as it concerns the capacity and _status_ of persons +in the condition and circumstances of the plaintiff and his family. + +These States, at the adoption of the Federal Constitution, were +organized communities, having distinct systems of municipal law, +which, though derived from a common source, and recognising in the +main similar principles, yet in some respects had become unlike, and +on a particular subject promised to be antagonistic. + +Their systems provided protection for life, liberty, and property, +among their citizens, and for the determination of the condition and +capacity of the persons domiciled within their limits. These +institutions, for the most part, were placed beyond the control of the +Federal Government. The Constitution allows Congress to coin money, +and regulate its value; to regulate foreign and Federal commerce; to +secure, for a limited period, to authors and inventors, a property in +their writings and discoveries; and to make rules concerning captures +in war; and, within the limits of these powers, it has exercised, +rightly, to a greater or less extent, the power to determine what +shall and what shall not be property. + +But the great powers of war and negotiation, finance, postal +communication, and commerce, in general, when employed in respect to +the property of a citizen, refer to, and depend upon, the municipal +laws of the States, to ascertain and determine what is property, and +the rights of the owner, and the tenure by which it is held. + +Whatever these Constitutions and laws validly determine to be +property, it is the duty of the Federal Government, through the domain +of jurisdiction merely Federal, to recognise to be property. + +And this principle follows from the structure of the respective +Governments, State and Federal, and their reciprocal relations. They +are different agents and trustees of the people of the several States, +appointed with different powers and with distinct purposes, but whose +acts, within the scope of their respective jurisdictions, are mutually +obligatory. They are respectively the depositories of such powers of +legislation as the people were willing to surrender, and their duty is +to co-operate within their several jurisdictions to maintain the +rights of the same citizens under both Governments unimpaired. A +proscription, therefore, of the Constitution and laws of one or more +States, determining property, on the part of the Federal Government, +by which the stability of its social system may be endangered, is +plainly repugnant to the conditions on which the Federal Constitution +was adopted, or which that Government was designed to accomplish. Each +of the States surrendered its powers of war and negotiation, to raise +armies and to support a navy, and all of these powers are sometimes +required to preserve a State from disaster and ruin. The Federal +Government was constituted to exercise these powers for the +preservation of the States, respectively, and to secure to all their +citizens the enjoyment of the rights which were not surrendered to the +Federal Government. The provident care of the statesmen who projected +the Constitution was signalized by such a distribution of the powers +of Government as to exclude many of the motives and opportunities for +promoting provocations and spreading discord among the States, and for +guarding against those partial combinations, so destructive of the +community of interest, sentiment, and feeling, which are so essential +to the support of the Union. The distinguishing features of their +system consist in the exclusion of the Federal Government from the +local and internal concerns of, and in the establishment of an +independent internal Government within, the States. And it is a +significant fact in the history of the United States, that those +controversies which have been productive of the greatest animosity, +and have occasioned most peril to the peace of the Union, have had +their origin in the well-sustained opinion of a minority among the +people, that the Federal Government had overstepped its constitutional +limits to grant some exclusive privilege, or to disturb the legitimate +distribution of property or power among the States or individuals. Nor +can a more signal instance of this be found than is furnished by the +act before us. No candid or rational man can hesitate to believe, that +if the subject of the eighth section of the act of March, 1820, had +never been introduced into Congress and made the basis of legislation, +no interest common to the Union would have been seriously affected. +And, certainly, the creation, within this Union, of large +confederacies of unfriendly and frowning States, which has been the +tendency, and, to an alarming extent, the result, produced by the +agitation arising from it, does not commend it to the patriot or +statesman. This court have determined that the intermigration of +slaves was not committed to the jurisdiction or control of Congress. +Wherever a master is entitled to go within the United States, his +slave may accompany him, without any impediment from, or fear of, +Congressional legislation or interference. The question then arises, +whether Congress, which can exercise no jurisdiction over the +relations of master and slave within the limits of the Union, and is +bound to recognise and respect the rights and relations that validly +exist under the Constitutions and laws of the States, can deny the +exercise of those rights, and prohibit the continuance of those +relations, within the Territories. + +And the citation of State statutes prohibiting the immigration of +slaves, and of the decisions of State courts enforcing the forfeiture +of the master's title in accordance with their rule, only darkens the +discussion. For the question is, have Congress the municipal +sovereignty in the Territories which the State Legislatures have +derived from the authority of the people, and exercise in the States? + +And this depends upon the construction of the article in the +Constitution before referred to. + +And, in my opinion, that clause confers no power upon Congress to +dissolve the relations of the master and slave on the domain of the +United States, either within or without any of the States. + +The eighth section of the act of Congress of the 6th of March, 1820, +did not, in my opinion, operate to determine the domestic condition +and _status_ of the plaintiff and his family during their sojourn in +Minnesota Territory, or after their return to Missouri. + +The question occurs as to the judgment to be given in this case. It +appeared upon the trial that the plaintiff, in 1834, was in a state of +slavery in Missouri, and he had been in Missouri for near fifteen +years in that condition when this suit was brought. Nor does it appear +that he at any time possessed another state or condition, _de facto_. +His claim to freedom depends upon his temporary elocation, from the +domicil of his origin, in company with his master, to communities +where the law of slavery did not prevail. My examination is confined +to the case, as it was submitted upon uncontested evidence, upon +appropriate issues to the jury, and upon the instructions given and +refused by the court upon that evidence. My opinion is, that the +opinion of the Circuit Court was correct upon all the claims involved +in those issues, and that the verdict of the jury was justified by the +evidence and instructions. + +The jury have returned that the plaintiff and his family are slaves. + +Upon this record, it is apparent that this is not a controversy +between citizens of different States; and that the plaintiff, at no +period of the life which has been submitted to the view of the court, +has had a capacity to maintain a suit in the courts of the United +States. And in so far as the argument of the Chief Justice upon the +plea in abatement has a reference to the plaintiff or his family, in +any of the conditions or circumstances of their lives, as presented in +the evidence, I concur in that portion of his opinion. I concur in the +judgment which expresses the conclusion that the Circuit Court should +not have rendered a general judgment. + +The capacity of the plaintiff to sue is involved in the pleas in bar, +and the verdict of the jury discloses an incapacity under the +Constitution. Under the Constitution of the United States, his is an +incapacity to sue in their courts, while, by the laws of Missouri, the +operation of the verdict would be more extensive. I think it a safe +conclusion to enforce the lesser disability imposed by the +Constitution of the United States, and leave to the plaintiff all his +rights in Missouri. I think the judgment should be affirmed, on the +ground that the Circuit Court had no jurisdiction, or that the case +should be reversed and remanded, that the suit may be dismissed. + + * * * * * + +Mr. Justice CATRON. + +The defendant pleaded to the jurisdiction of the Circuit Court, that +the plaintiff was a negro of African blood; the descendant of +Africans, who had been imported and sold in this country as slaves, +and thus had no capacity as a citizen of Missouri to maintain a suit +in the Circuit Court. The court sustained a demurrer to this plea, and +a trial was had upon the pleas, of the general issue, and also that +the plaintiff and his family were slaves, belonging to the defendant. +In this trial, a verdict was given for the defendant. + +The judgment of the Circuit Court upon the plea in abatement is not +open, in my opinion, to examination in this court upon the plaintiff's +writ. + +The judgment was given for him conformably to the prayer of his +demurrer. He cannot assign an error in such a judgment. (Tidd's Pr., +1163; 2 Williams's Saund., 46 a; 2 Iredell N.C., 87; 2 W. and S., +391.) Nor does the fact that the judgment was given on a plea to the +jurisdiction, avoid the application of this rule. (Capron _v._ Van +Noorden, 2 Cr., 126; 6 Wend., 465; 7 Met., 598; 5 Pike, 1005.) + +The declaration discloses a case within the jurisdiction of the +court--a controversy between citizens of different States. The plea in +abatement, impugning these jurisdictional averments, was waived when +the defendant answered to the declaration by pleas to the merits. The +proceedings on that plea remain a part of the technical record, to +show the history of the case, but are not open to the review of this +court by a writ of error. The authorities are very conclusive on this +point. Shepherd _v._ Graves, 14 How., 505; Bailey _v._ Dozier, 6 How., +23; 1 Stewart, (Alabama,) 46; 10 Ben. Monroe, (Kentucky,) 555; 2 +Stewart, (Alabama,) 370, 443; 2 Scammon, (Illinois,) 78. Nor can the +court assume, as admitted facts, the averments of the plea from the +confession of the demurrer. That confession was for a single object, +and cannot be used for any other purpose than to test the validity of +the plea. Tompkins _v._ Ashley, 1 Moody and Mackin, 32; 33 Maine, 96, +100. + +There being nothing in controversy here but the merits, I will proceed +to discuss them. + +The plaintiff claims to have acquired property in himself, and became +free, by being kept in Illinois during two years. + +The Constitution, laws, and policy, of Illinois, are somewhat peculiar +respecting slavery. Unless the master becomes an inhabitant of that +State, the slaves he takes there do not acquire their freedom; and if +they return with their master to the slave State of his domicil, they +cannot assert their freedom after their return. For the reasons and +authorities on this point, I refer to the opinion of my brother +Nelson, with which I not only concur, but think his opinion is the +most conclusive argument on the subject within my knowledge. + +It is next insisted for the plaintiff, that his freedom (and that of +his wife and eldest child) was obtained by force of the act of +Congress of 1820, usually known as the Missouri compromise act, which +declares: "That in all that territory ceded by France to the United +States, which lies north of thirty-six degrees thirty minutes north +latitude, slavery and involuntary servitude shall be, and are hereby, +_forever prohibited_." + +From this prohibition, the territory now constituting the State of +Missouri was excepted; which exception to the stipulation gave it the +designation of a compromise. + +The first question presented on this act is, whether Congress had +power to make such compromise. For, if power was wanting, then no +freedom could be acquired by the defendant under the act. + +That Congress has no authority to pass laws and bind men's rights +beyond the powers conferred by the Constitution, is not open to +controversy. But it is insisted that, by the Constitution, Congress +has power to legislate for and govern the Territories of the United +States, and that by force of the power to govern, laws could be +enacted, prohibiting slavery in any portion of the Louisiana +Territory; and, of course, to abolish slavery _in all_ parts of it, +whilst it was, or is, governed as a Territory. + +My opinion is, that Congress is vested with power to govern the +Territories of the United States by force of the third section of the +fourth article of the Constitution. And I will state my reasons for +this opinion. + +Almost every provision in that instrument has a history that must be +understood, before the brief and sententious language employed can be +comprehended in the relations its authors intended. We must bring +before us the state of things presented to the Convention, and in +regard to which it acted, when the compound provision was made, +declaring: 1st. That "new States may be admitted by the Congress into +this Union." 2d. "The Congress shall have power to dispose of and make +all needful rules and regulations respecting the territory or other +property belonging to the United States. And nothing in this +Constitution shall be so construed as to prejudice any claims of the +United States, or any particular State." + +Having ascertained the historical facts giving rise to these +provisions, the difficulty of arriving at the true meaning of the +language employed will be greatly lessened. + +The history of these facts is substantially as follows: + +The King of Great Britain, by his proclamation of 1763, virtually +claimed that the country west of the mountains had been conquered from +France, and ceded to the Crown of Great Britain by the treaty of Paris +of that year, and he says: "We reserve it under our sovereignty, +protection, and dominion, for the use of the Indians." + +This country was conquered from the Crown of Great Britain, and +surrendered to the United States by the treaty of peace of 1783. The +colonial charters of Virginia, North Carolina, and Georgia, included +it. Other States set up pretensions of claim to some portions of the +territory north of the Ohio, but they were of no value, as I suppose. +(5 Wheat., 375.) + +As this vacant country had been won by the blood and treasure of all +the States, those whose charters did not reach it, insisted that the +country belonged to the States united, and that the lands should be +disposed of for the benefit of the whole; and to which end, the +western territory should be ceded to the States united. The contest +was stringent and angry, long before the Convention convened, and +deeply agitated that body. As a matter of justice, and to quiet the +controversy, Virginia consented to cede the country north of the Ohio +as early as 1783; and in 1784 the deed of cession was executed, by her +delegates in the Congress of the Confederation, conveying to the +United States in Congress assembled, for the benefit of said States, +"all right, title, and claim, as well of soil as of jurisdiction, +which this Commonwealth hath to the _territory_ or tract of country +within the limits of the Virginia charter, situate, lying, and being +to the northwest of the river Ohio." In 1787, (July 13,) the ordinance +was passed by the old Congress to govern the Territory. + +Massachusetts had ceded her pretension of claim to western territory +in 1785, Connecticut hers in 1786, and New York had ceded hers. In +August, 1787, South Carolina ceded to the Confederation her pretension +of claim to territory west of that State. And North Carolina was +expected to cede hers, which she did do, in April, 1790. And so +Georgia was confidently expected to cede her large domain, now +constituting the territory of the States of Alabama and Mississippi. + +At the time the Constitution was under consideration, there had been +ceded to the United States, or was shortly expected to be ceded, all +the western country, from the British Canada line to Florida, and from +the head of the Mississippi almost to its mouth, except that portion +which now constitutes the State of Kentucky. + +Although Virginia had conferred on the Congress of the Confederation +power to govern the Territory north of the Ohio, still, it cannot be +denied, as I think, that power was wanting to admit a new State under +the Articles of Confederation. + +With these facts prominently before the Convention, they proposed to +accomplish these ends: + +1st. To give power to admit new States. + +2d. To dispose of the public lands in the Territories, and such as +might remain undisposed of in the new States after they were admitted. + +And, thirdly, to give power to govern the different Territories as +incipient States, not of the Union, and fit them for admission. No one +in the Convention seems to have doubted that these powers were +necessary. As early as the third day of its session, (May 29th,) +Edmund Randolph brought forward a set of resolutions containing nearly +all the germs of the Constitution, the tenth of which is as follows: + +"_Resolved_, That provision ought to be made for the admission of +States lawfully arising within the limits of the United States, +whether from a voluntary junction of government and territory or +otherwise, with the consent of a number of voices in the National +Legislature less than the whole." + +August 18th, Mr. Madison submitted, in order to be referred to the +committee of detail, the following powers as proper to be added to +those of the General Legislature: + +"To dispose of the unappropriated lands of the United States." "To +institute temporary Governments for new States arising therein." (3 +Madison Papers, 1353.) + +These, with the resolution, that a district for the location of the +seat of Government should be provided, and some others, were referred, +without a dissent, to the committee of detail, to arrange and put them +into satisfactory language. + +Gouverneur Morris constructed the clauses, and combined the views of a +majority on the two provisions, to admit new States; and secondly, to +dispose of the public lands, and to govern the Territories, in the +mean time, between the cessions of the States and the admission into +the Union of new States arising in the ceded territory. (3 Madison +Papers, 1456 to 1466.) + +It was hardly possible to separate the power "to make all needful +rules and regulations" respecting the government of the territory and +the disposition of the public lands. + +North of the Ohio, Virginia conveyed the lands, and vested the +jurisdiction in the thirteen original States, before the Constitution +was formed. She had the sole title and sole sovereignty, and the same +power to cede, on any terms she saw proper, that the King of England +had to grant the Virginia colonial charter of 1609, or to grant the +charter of Pennsylvania to William Penn. The thirteen States, through +their representatives and deputed ministers in the old Congress, had +the same right to govern that Virginia had before the cession. +(Baldwin's Constitutional Views, 90.) And the sixth article of the +Constitution adopted all engagements entered into by the Congress of +the Confederation, as valid against the United States; and that the +laws, made in pursuance of the new Constitution, to carry out this +engagement, should be the supreme law of the land, and the judges +bound thereby. To give the compact, and the ordinance, which was part +of it, full effect under the new Government, the act of August 7th, +1789, was passed, which declares, "Whereas, in order that the +ordinance of the United States in Congress assembled, for the +government of the Territory northwest of the river Ohio, may have full +effect, it is requisite that certain provisions should be made, so as +to adapt the same to the present Constitution of the United States." +It is then provided that the Governor and other officers should be +appointed by the President, with the consent of the Senate; and be +subject to removal, &c., in like manner that they were by the old +Congress, whose functions had ceased. + +By the powers to govern, given by the Constitution, those amendments +to the ordinance could be made, but Congress guardedly abstained from +touching the compact of Virginia, further than to adapt it to the new +Constitution. + +It is due to myself to say, that it is asking much of a judge, who +has for nearly twenty years been exercising jurisdiction, from the +western Missouri line to the Rocky Mountains, and, on this +understanding of the Constitution, inflicting the extreme penalty of +death for crimes committed where the direct legislation of Congress +was the only rule, to agree that he had been all the while acting in +mistake, and as an usurper. + +More than sixty years have passed away since Congress has exercised +power to govern the Territories, by its legislation directly, or by +Territorial charters, subject to repeal at all times, and it is now +too late to call that power into question, if this court could +disregard its own decisions; which it cannot do, as I think. It was +held in the case of Cross _v._ Harrison, (16 How., 193-'4,) that the +sovereignty of California was in the United States, in virtue of the +Constitution, by which power had been given to Congress to dispose of +and make all needful rules and regulations respecting the territory or +other property belonging to the United States, with the power to admit +new States into the Union. That decision followed preceding ones, +there cited. The question was then presented, how it was possible for +the judicial mind to conceive that the United States Government, +created solely by the Constitution, could, by a lawful treaty, acquire +territory over which the acquiring power had no jurisdiction to hold +and govern it, by force of the instrument under whose authority the +country was acquired; and the foregoing was the conclusion of this +court on the proposition. What was there announced, was most +deliberately done, and with a purpose. The only question here is, as I +think, how far the power of Congress is limited. + +As to the Northwest Territory, Virginia had the right to abolish +slavery there; and she did so agree in 1787, with the other States in +the Congress of the Confederation, by assenting to and adopting the +ordinance of 1787, for the government of the Northwest Territory. She +did this also by an act of her Legislature, passed afterwards, which +was a treaty in fact. + +Before the new Constitution was adopted, she had as much right to +treat and agree as any European Government had. And, having excluded +slavery, the new Government was bound by that engagement by article +six of the new Constitution. This only meant that slavery should not +exist whilst the United States exercised the power of government, in +the Territorial form; for, when a new State came in, it might do so, +with or without slavery. + +My opinion is, that Congress had no power, in face of the compact +between Virginia and the twelve other States, to _force_ slavery into +the Northwest Territory, because there, it was bound to that +"engagement," and could not break it. + +In 1790, North Carolina ceded her western territory, now the State of +Tennessee, and stipulated that the inhabitants thereof should enjoy +all the privileges and advantages of the ordinance for governing the +territory north of the Ohio river, and that Congress should assume the +government, and accept the cession, under the express conditions +contained in the ordinance: _Provided_, "That no regulation made, or +to be made, by Congress, shall tend to emancipate slaves." + +In 1802, Georgia ceded her western territory to the United States, +with the provision that the ordinance of 1787 should in all its parts +extend to the territory ceded, "that article only excepted which +forbids slavery." Congress had no more power to legislate slavery +_out_ from the North Carolina and Georgia cessions, than it had power +to legislate slavery in, north of the Ohio. No power existed in +Congress to legislate at all, affecting slavery, in either case. The +inhabitants, as respected this description of property, stood +protected whilst they were governed by Congress, in like manner that +they were protected before the cession was made, and when they were, +respectively, parts of North Carolina and Georgia. + +And how does the power of Congress stand west of the Mississippi +river? The country there was acquired from France, by treaty, in 1803. +It declares, that the First Consul, in the name of the French +Republic, doth hereby cede to the United States, in full sovereignty, +the colony or province of Louisiana, with all the rights and +appurtenances of the said territory. And, by article third, that "the +inhabitants of the ceded territory shall be incorporated in the Union +of the United States, and admitted as soon as possible, according to +the principles of the Federal Constitution, to the enjoyment of all +the rights, advantages, and immunities, of citizens of the United +States; and, in the mean time, they shall be maintained and protected +in the free enjoyment of their liberty, property, and the religion +which they profess." + +Louisiana was a province where slavery was not only lawful, but where +property in slaves was the most valuable of all personal property. The +province was ceded as a unit, with an equal right pertaining to all +its inhabitants, in every part thereof, to own slaves. It was, to a +great extent, a vacant country, having in it few civilized +inhabitants. No one portion of the colony, of a proper size for a +State of the Union had a sufficient number of inhabitants to claim +admission into the Union. To enable the United States to fulfil the +treaty, additional population was indispensable, and obviously desired +with anxiety by both sides, so that the whole country should, as soon +as possible, become States of the Union. And for this contemplated +future population, the treaty as expressly provided as it did for the +inhabitants residing in the province when the treaty was made. All +these were to be protected "_in the mean time_;" that is to say, at +all times, between the date of the treaty and the time when the +portion of the Territory where the inhabitants resided was admitted +into the Union as a State. + +At the date of the treaty, each inhabitant had the right to the _free_ +enjoyment of his property, alike with his liberty and his religion, in +every part of Louisiana; the province then being one country, he might +go everywhere in it, and carry his liberty, property, and religion, +with him, and in which he was to be maintained and protected, until he +became a citizen of a State of the Union of the United States. This +cannot be denied to the original inhabitants and their descendants. +And, if it be true that immigrants were equally protected, it must +follow that they can also stand on the treaty. + +The settled doctrine in the State courts of Louisiana is, that a +French subject coming to the Orleans Territory, after the treaty of +1803 was made, and before Louisiana was admitted into the Union, and +being an inhabitant at the time of the admission, became a citizen of +the United States by that act; that he was one of the inhabitants +contemplated by the third article of the treaty, which referred to all +the inhabitants embraced within the new State on its admission. + +That this is the true construction, I have no doubt. + +If power existed to draw a line at thirty-six degrees thirty minutes +north, so Congress had equal power to draw the line on the thirtieth +degree--that is, due west from the city of New Orleans--and to declare +that north of _that line_ slavery should never exist. Suppose this had +been done before 1812, when Louisiana came into the Union, and the +question of infraction of the treaty had then been presented on the +present assumption of power to prohibit slavery, who doubts what the +decision of this court would have been on such an act of Congress; +yet, the difference between the supposed line, and that on thirty-six +degrees thirty minutes north, is only in the degree of grossness +presented by the lower line. + +The Missouri compromise line of 1820 was very aggressive; it declared +that slavery was abolished forever throughout a country reaching from +the Mississippi river to the Pacific ocean, stretching over thirty-two +degrees of longitude, and twelve and a half degrees of latitude on its +eastern side, sweeping over four-fifths, to say no more, of the +original province of Louisiana. + +That the United States Government stipulated in favor of the +inhabitants to the extent here contended for, has not been seriously +denied, as far as I know; but the argument is, that Congress had +authority to _repeal_ the third article of the treaty of 1803, in so +far as it secured the right to hold slave property, in a portion of +the ceded territory, leaving the right to exist in other parts. In +other words, that Congress could repeal the third article entirely, at +its pleasure. This I deny. + +The compacts with North Carolina and Georgia were treaties also, and +stood on the same footing of the Louisiana treaty; on the assumption +of power to repeal the one, it must have extended to all, and Congress +could have excluded the slaveholder of North Carolina from the +enjoyment of his lands in the Territory now the State of Tennessee, +where the citizens of the mother State were the principal proprietors. + +And so in the case of Georgia. Her citizens could have been refused +the right to emigrate to the Mississippi or Alabama Territory, unless +they left their most valuable and cherished property behind them. + +The Constitution was framed in reference to facts then existing or +likely to arise: the instrument looked to no theories of Government. +In the vigorous debates in the Convention, as reported by Mr. Madison +and others, surrounding facts, and the condition and necessities of +the country, gave rise to almost every provision; and among those +facts, it was prominently true, that Congress dare not be intrusted +with power to provide that, if North Carolina or Georgia ceded her +western territory, the citizens of the State (in either case) could be +prohibited, at the pleasure of Congress, from removing to their lands, +then granted to a large extent, in the country likely to be ceded, +unless they left their slaves behind. That such an attempt, in the +face of a population fresh from the war of the Revolution, and then +engaged in war with the great confederacy of Indians, extending from +the mouth of the Ohio to the Gulf of Mexico, would end in open revolt, +all intelligent men knew. + +In view of these facts, let us inquire how the question stands by the +terms of the Constitution, aside from the treaty? How it stood in +public opinion when the Georgia cession was made, in 1802, is apparent +from the fact that no guaranty was required by Georgia of the United +States, for the protection of slave property. The Federal Constitution +was relied on, to secure the rights of Georgia and her citizens during +the Territorial condition of the country. She relied on the +indisputable truths, that the States were by the Constitution made +equals in political rights, and equals in the right to participate in +the common property of all the States united, and held in trust for +them. The Constitution having provided that "The citizens of each +State shall be entitled to all privileges and immunities of citizens +of the several States," the right to enjoy the territory as equals was +reserved to the States, and to the citizens of the States, +respectively. The cited clause is not that citizens of the United +States shall have equal privileges in the Territories, but the citizen +of each State shall come there in right of his State, and enjoy the +common property. He secures his equality through the equality of his +State, by virtue of that great fundamental condition of the Union--the +equality of the States. + +Congress cannot do indirectly what the Constitution prohibits +directly. If the slaveholder is prohibited from going to the Territory +with his slaves, who are parts of his family in name and in fact, it +will follow that men owning lawful property in their own States, +carrying with them the equality of their State to enjoy the common +property, may be told, you cannot come here with your slaves, and he +will be held out at the border. By this subterfuge, owners of slave +property, to the amount of thousand of millions, might be almost as +effectually excluded from removing into the Territory of Louisiana +north of thirty-six degrees thirty minutes, as if the law declared +that owners of slaves, as a class, should be excluded, even if their +slaves were left behind. + +Just as well might Congress have said to those of the North, you shall +not introduce into the territory south of said line your cattle or +horses, as the country is already overstocked; nor can you introduce +your tools of trade, or machines, as the policy of Congress is to +encourage the culture of sugar and cotton south of the line, and so to +provide that the Northern people shall manufacture for those of the +South, and barter for the staple articles slave labor produces. And +thus the Northern farmer and mechanic would be held out, as the +slaveholder was for thirty years, by the Missouri restriction. + +If Congress could prohibit one species of property, lawful throughout +Louisiana when it was acquired, and lawful in the State from whence it +was brought, so Congress might exclude any or all property. + +The case before us will illustrate the construction contended for. Dr. +Emerson was a citizen of Missouri; he had an equal right to go to the +Territory with every citizen of other States. This is undeniable, as I +suppose. Scott was Dr. Emerson's lawful property in Missouri; he +carried his Missouri title with him; and the precise question here is, +whether Congress had the power to annul that title. It is idle to say, +that if Congress could not defeat the title _directly_, that it might +be done indirectly, by drawing a narrow circle around the slave +population of Upper Louisiana, and declaring that if the slave went +beyond it, he should be free. Such assumption is mere evasion, and +entitled to no consideration. And it is equally idle to contend, that +because Congress has express power to regulate commerce among the +Indian tribes, and to prohibit intercourse with the Indians, that +therefore Dr. Emerson's title might be defeated within the country +ceded by the Indians to the United States as early as 1805, and which +embraces Fort Snelling. (Am. State Papers, vol. 1, p. 734.) We _must_ +meet the question, whether Congress had the power to declare that a +citizen of a State, carrying with him his equal rights, secured to him +through his State, could be stripped of his goods and slaves, and be +deprived of any participation in the common property? If this be the +true meaning of the Constitution, equality of rights to enjoy a common +country (equal to a thousand miles square) may be cut off by a +geographical line, and a great portion of our citizens excluded from +it. + +Ingenious, indirect evasions of the Constitution have been attempted +and defeated heretofore. In the passenger cases, (7 How. R.,) the +attempt was made to impose a tax on the masters, crews, and passengers +of vessels, the Constitution having prohibited a tax on the vessel +itself; but this court held the attempt to be a mere evasion, and +pronounced the tax illegal. + +I admit that Virginia could, and lawfully did, prohibit slavery +northwest of the Ohio, by her charter of cession, and that the +territory was taken by the United States with this condition imposed. +I also admit that France could, by the treaty of 1803, have prohibited +slavery in any part of the ceded territory, and imposed it on the +United States as a fundamental condition of the cession, in the mean +time, till new States were admitted in the Union. + +I concur with Judge Baldwin, that Federal power is exercised over all +the territory within the United States, pursuant to the Constitution; +_and_, the conditions of the cession, whether it was a part of the +original territory of a State of the Union, or of a foreign State, +ceded by deed or treaty; the right of the United States in or over it +depends on the contract of cession, which operates to incorporate as +well the Territory as its inhabitants into the Union. (Baldwin's +Constitutional Views, 84.) + +My opinion is, that the third article of the treaty of 1803, ceding +Louisiana to the United States, stands protected by the Constitution, +and cannot be repealed by Congress. + +And, secondly, that the act of 1820, known as the Missouri +compromise, violates the most leading feature of the Constitution--a +feature on which the Union depends, and which secures to the +respective States and their citizens an entire EQUALITY of rights, +privileges, and immunities. + +On these grounds, I hold the compromise act to have been void; and, +consequently, that the plaintiff, Scott, can claim no benefit under +it. + +For the reasons above stated, I concur with my brother judges that the +plaintiff, Scott, is a slave, and was so when this suit was brought. + + * * * * * + +Mr. Justice McLEAN and Mr. Justice CURTIS dissented. + + +Mr. Justice McLEAN dissenting. + +This case is before us on a writ of error from the Circuit Court for +the district of Missouri. + +An action of trespass was brought, which charges the defendant with an +assault and imprisonment of the plaintiff, and also of Harriet Scott, +his wife, Eliza and Lizzie, his two children, on the ground that they +were his slaves, which was without right on his part, and against law. + +The defendant filed a plea in abatement, "that said causes of action, +and each and every of them, if any such accrued to the said Dred +Scott, accrued out of the jurisdiction of this court, and exclusively +within the jurisdiction of the courts of the State of Missouri, for +that to wit, 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 the +court can or will take further cognizance of the action aforesaid." + +To this a demurrer was filed, which, on argument, was sustained by the +court, the plea in abatement being held insufficient; the defendant +was ruled to plead over. Under this rule he pleaded: 1. Not guilty; 2. +That Dred Scott was a negro slave, the property of the defendant; and +3. That Harriet, the wife, and Eliza and Lizzie, the daughters of the +plaintiff, were the lawful slaves of the defendant. + +Issue was joined on the first plea, and replications of _de injuria_ +were filed to the other pleas. + +The parties agreed to the following facts: 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, Dr. Emerson +took the plaintiff from the State of Missouri to the post of 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, Dr. +Emerson removed the plaintiff from 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 latitude thirty-six degrees thirty +minutes north, and north of the State of Missouri. Dr. Emerson held +the plaintiff in slavery, at Fort Snelling, from the 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, Major +Taliaferro took Harriet to 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 Fort Snelling, +unto Dr. Emerson, who held her in slavery, at that place, until the +year 1838. + +In the year 1836, the plaintiff and Harriet were married at Fort +Snelling, with the consent of Dr. Emerson, who 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, Dr. Emerson removed the plaintiff and said Harriet +and their daughter Eliza from Fort Snelling to the State of Missouri, +where they have ever since resided. + +Before the commencement of the suit, Dr. Emerson sold and conveyed the +plaintiff, Harriet, Eliza, and Lizzie, to the defendant, as slaves, +and he has ever since claimed to hold them as slaves. + +At the times mentioned in the plaintiff's declaration, the defendant, +claiming to be the owner, laid his hands upon said plaintiff, Harriet, +Eliza, and Lizzie, and imprisoned them; doing in this respect, +however, no more than he might lawfully do, if they were of right his +slaves at such times. + +In the first place, the plea to the jurisdiction is not before us, on +this writ of error. A demurrer to the plea was sustained, which ruled +the plea bad, and the defendant, on leave, pleaded over. + +The decision on the demurrer was in favor of the plaintiff; and as the +plaintiff prosecutes this writ of error, he does not complain of the +decision on the demurrer. The defendant might have complained of this +decision, as against him, and have prosecuted a writ of error, to +reverse it. But as the case, under the instruction of the court to the +jury, was decided in his favor, of course he had no ground of +complaint. + +But it is said, if the court, on looking at the record, shall clearly +perceive that the Circuit Court had no jurisdiction, it is a ground +for the dismissal of the case. This may be characterized as rather a +sharp practice, and one which seldom, if ever, occurs. No case was +cited in the argument as authority, and not a single case precisely in +point is recollected in our reports. The pleadings do not show a want +of jurisdiction. This want of jurisdiction can only be ascertained by +a judgment on the demurrer to the special plea. No such case, it is +believed, can be cited. But if this rule of practice is to be applied +in this case, and the plaintiff in error is required to answer and +maintain as well the points ruled in his favor, as to show the error +of those ruled against him, he has more than an ordinary duty to +perform. Under such circumstances, the want of jurisdiction in the +Circuit Court must be so clear as not to admit of doubt. Now, the plea +which raises the question of jurisdiction, in my judgment, is +radically defective. The gravamen of the plea is this: "That the +plaintiff is a negro of African descent, his ancestors being of pure +African blood, and were brought into this country, and sold as negro +slaves." + +There is no averment in this plea which shows or conduces to show an +inability in the plaintiff to sue in the Circuit Court. It does not +allege that the plaintiff had his domicil in any other State, nor that +he is not a free man in Missouri. He is averred to have had a negro +ancestry, but this does not show that he is not a citizen of Missouri, +within the meaning of the act of Congress authorizing him to sue in +the Circuit Court. It has never been held necessary, to constitute a +citizen within the act, that he should have the qualifications of an +elector. Females and minors may sue in the Federal courts, and so may +any individual who has a permanent domicil in the State under whose +laws his rights are protected, and to which he owes allegiance. + +Being born under our Constitution and laws, no naturalization is +required, as one of foreign birth, to make him a citizen. The most +general and appropriate definition of the term citizen is "a freeman." +Being a freeman, and having his domicil in a State different from that +of the defendant, he is a citizen within the act of Congress, and the +courts of the Union are open to him. + +It has often been held, that the jurisdiction, as regards parties, can +only be exercised between citizens of different States, and that a +mere residence is not sufficient; but this has been said to +distinguish a temporary from a permanent residence. + +To constitute a good plea to the jurisdiction, it must negative those +qualities and rights which enable an individual to sue in the Federal +courts. This has not been done; and on this ground the plea was +defective, and the demurrer was properly sustained. No implication can +aid a plea in abatement or in bar; it must be complete in itself; the +facts stated, if true, must abate or bar the right of the plaintiff to +sue. This is not the character of the above plea. The facts stated, if +admitted, are not inconsistent with other facts, which may be +presumed, and which bring the plaintiff within the act of Congress. + +The pleader has not the boldness to allege that this plaintiff is a +slave, as that would assume against him the matter in controversy, and +embrace the entire merits of the case in a plea to the jurisdiction. +But beyond the facts set out in the plea, the court, to sustain it, +must assume the plaintiff to be a slave, which is decisive on the +merits. This is a short and an effectual mode of deciding the cause; +but I am yet to learn that it is sanctioned by any known rule of +pleading. + +The defendant's counsel complain, that if the court take jurisdiction +on the ground that the plaintiff is free, the assumption is against +the right of the master. This argument is easily answered. In the +first place, the plea does not show him to be a slave; it does not +follow that a man is not free whose ancestors were slaves. The reports +of the Supreme Court of Missouri show that this assumption has many +exceptions; and there is no averment in the plea that the plaintiff is +not within them. + +By all the rules of pleading, this is a fatal defect in the plea. If +there be doubt, what rule of construction has been established in the +slave States? In Jacob _v._ Sharp, (Meigs's Rep., Tennessee, 114,) the +court held, when there was doubt as to the construction of a will +which emancipated a slave, "it must be construed to be subordinate to +the higher and more important right of freedom." + +No injustice can result to the master, from an exercise of +jurisdiction in this cause. Such a decision does not in any degree +affect the merits of the case; it only enables the plaintiff to assert +his claims to freedom before this tribunal. If the jurisdiction be +ruled against him, on the ground that he is a slave, it is decisive of +his fate. + +It has been argued that, if a colored person be made a citizen of a +State, he cannot sue in the Federal court. The Constitution declares +that Federal jurisdiction "may be exercised between citizens of +different States," and the same is provided in the act of 1789. The +above argument is properly met by saying that the Constitution was +intended to be a practical instrument; and where its language is too +plain to be misunderstood, the argument ends. + +In Chirae _v._ Chirae, (2 Wheat., 261; 4 Curtis, 99,) this court says: +"That the power of naturalization is exclusively in Congress does not +seem to be, and certainly ought not to be, controverted." No person +can legally be made a citizen of a State, and consequently a citizen +of the United States, of foreign birth, unless he be naturalized under +the acts of Congress. Congress has power "to establish a uniform rule +of naturalization." + +It is a power which belongs exclusively to Congress, as intimately +connected with our Federal relations. A State may authorize foreigners +to hold real estate within its jurisdiction, but it has no power to +naturalize foreigners, and give them the rights of citizens. Such a +right is opposed to the acts of Congress on the subject of +naturalization, and subversive of the Federal powers. I regret that +any countenance should be given from this bench to a practice like +this in some of the States, which has no warrant in the Constitution. + +In the argument, it was said that a colored citizen would not be an +agreeable member of society. This is more a matter of taste than of +law. Several of the States have admitted persons of color to the right +of suffrage, and in this view have recognised them as citizens; and +this has been done in the slave as well as the free States. On the +question of citizenship, it must be admitted that we have not been +very fastidious. Under the late treaty with Mexico, we have made +citizens of all grades, combinations, and colors. The same was done in +the admission of Louisiana and Florida. No one ever doubted, and no +court ever held, that the people of these Territories did not become +citizens under the treaty. They have exercised all the rights of +citizens, without being naturalized under the acts of Congress. + +There are several important principles involved in this case, which +have been argued, and which may be considered under the following +heads: + +1. The locality of slavery, as settled by this court and the courts of +the States. + +2. The relation which the Federal Government bears to slavery in the +States. + +3. The power of Congress to establish Territorial Governments, and to +prohibit the introduction of slavery therein. + +4. The effect of taking slaves into a new State or Territory, and so +holding them, where slavery is prohibited. + +5. Whether the return of a slave under the control of his master, +after being entitled to his freedom, reduces him to his former +condition. + +6. Are the decisions of the Supreme Court of Missouri, on the +questions before us, binding on this court, within the rule adopted. + +In the course of my judicial duties, I have had occasion to consider +and decide several of the above points. + +1. As to the locality of slavery. The civil law throughout the +Continent of Europe, it is believed, without an exception, is, that +slavery can exist only within the territory where it is established; +and that, if a slave escapes, or is carried beyond such territory, his +master cannot reclaim him, unless by virtue of some express +stipulation. (Grotius, lib. 2, chap. 15, 5, 1; lib. 10, chap. 10, 2, +1; Wicqueposts Ambassador, lib. 1, p. 418; 4 Martin, 385; Case of the +Creole in the House of Lords, 1842; 1 Phillimore on International Law, +316, 335.) + +There is no nation in Europe which considers itself bound to return to +his master a fugitive slave, under the civil law or the law of +nations. On the contrary, the slave is held to be free where there is +no treaty obligation, or compact in some other form, to return him to +his master. The Roman law did not allow freedom to be sold. An +ambassador or any other public functionary could not take a slave to +France, Spain, or any other country of Europe, without emancipating +him. A number of slaves escaped from a Florida plantation, and were +received on board of ship by Admiral Cochrane; by the King's Bench, +they were held to be free. (2 Barn. and Cres., 440.) + +In the great and leading case of Prigg _v._ The State of Pennsylvania, +(16 Peters, 594; 14 Curtis, 421,) this court say that, by the general +law of nations, no nation is bound to recognise the state of slavery, +as found within its territorial dominions, where it is in opposition +to its own policy and institutions, in favor of the subjects of other +nations where slavery is organized. If it does it, it is as a matter +of comity, and not as a matter of international right. The state of +slavery is deemed to be a mere municipal regulation, founded upon and +limited to the range of the territorial laws. This was fully +recognised in Somersett's case, (Lafft's Rep., 1; 20 Howell's State +Trials, 79,) which was decided before the American Revolution. + +There was some contrariety of opinion among the judges on certain +points ruled in Prigg's case, but there was none in regard to the +great principle, that slavery is limited to the range of the laws +under which it is sanctioned. + +No case in England appears to have been more thoroughly examined than +that of Somersett. The judgment pronounced by Lord Mansfield was the +judgment of the Court of King's Bench. The cause was argued at great +length, and with great ability, by Hargrave and others, who stood +among the most eminent counsel in England. It was held under +advisement from term to term, and a due sense of its importance was +felt and expressed by the Bench. + +In giving the opinion of the court, Lord Mansfield said: + +"The state of slavery is of such a nature that it is incapable of +being introduced on any reasons, moral or political, but only by +positive law, which preserves its force long after the reasons, +occasion, and time itself, from whence it was created, is erased from +the memory; it is of a nature that nothing can be suffered to support +it but positive law." + +He referred to the contrary opinion of Lord Hardwicke, in October, +1749, as Chancellor: "That he and Lord Talbot, when Attorney and +Solicitor General, were of opinion that no such claim, as here +presented, for freedom, was valid." + +The weight of this decision is sought to be impaired, from the terms +in which it was described by the exuberant imagination of Curran. The +words of Lord Mansfield, in giving the opinion of the court, were such +as were fit to be used by a great judge, in a most important case. It +is a sufficient answer to all objections to that judgment, that it was +pronounced before the Revolution, and that it was considered by this +court as the highest authority. For near a century, the decision in +Somersett's case has remained the law of England. The case of the +slave Grace, decided by Lord Stowell in 1827, does not, as has been +supposed, overrule the judgment of Lord Mansfield. Lord Stowell held +that, during the residence of the slave in England, "No dominion, +authority, or coercion, can be exercised over him." Under another +head, I shall have occasion to examine the opinion in the case of +Grace. + +To the position, that slavery can only exist except under the +authority of law, it is objected, that in few if in any instances has +it been established by statutory enactment. This is no answer to the +doctrine laid down by the court. Almost all the principles of the +common law had their foundation in usage. Slavery was introduced into +the colonies of this country by Great Britain at an early period of +their history, and it was protected and cherished, until it became +incorporated into the colonial policy. It is immaterial whether a +system of slavery was introduced by express law, or otherwise, if it +have the authority of law. There is no slave State where the +institution is not recognised and protected by statutory enactments +and judicial decisions. Slaves are made property by the laws of the +slave States, and as such are liable to the claims of creditors; they +descend to heirs, are taxed, and in the South they are a subject of +commerce. + +In the case of Rankin _v._ Lydia, (2 A.K. Marshall's Rep.,) Judge +Mills, speaking for the Court of Appeals of Kentucky, says: "In +deciding the question, (of slavery,) we disclaim the influence of the +general principles of liberty, which we all admire, and conceive it +ought to be decided by the law as it is, and not as it ought to be. +Slavery is sanctioned by the laws of this State, and the right to hold +slaves under our municipal regulations is unquestionable. But we view +this as a right existing by positive law of a municipal character, +without foundation in the law of nature, or the unwritten and common +law." + +I will now consider the relation which the Federal Government bears to +slavery in the States: + +Slavery is emphatically a State institution. In the ninth section of +the first article of the Constitution, it is provided "that the +migration or importation of such persons as any of the States now +existing shall think proper to admit, shall not be prohibited by the +Congress prior to the year 1808, but a tax or duty may be imposed on +such importation, not exceeding ten dollars for each person." + +In the Convention, it was proposed by a committee of eleven to limit +the importation of slaves to the year 1800, when Mr. Pinckney moved to +extend the time to the year 1808. This motion was carried--New +Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South +Carolina, and Georgia, voting in the affirmative; and New Jersey, +Pennsylvania, and Virginia, in the negative. In opposition to the +motion, Mr. Madison said: "Twenty years will produce all the mischief +that can be apprehended from the liberty to import slaves; so long a +term will be more dishonorable to the American character than to say +nothing about it in the Constitution." (Madison Papers.) + +The provision in regard to the slave trade shows clearly that Congress +considered slavery a State institution, to be continued and regulated +by its individual sovereignty; and to conciliate that interest, the +slave trade was continued twenty years, not as a general measure, but +for the "benefit of such States as shall think proper to encourage +it." + +In the case of Groves _v._ Slaughter, (15 Peters, 449; 14 Curtis, +137,) Messrs. Clay and Webster contended that, under the commercial +power, Congress had a right to regulate the slave trade among the +several States; but the court held that Congress had no power to +interfere with slavery as it exists in the States, or to regulate what +is called the slave trade among them. If this trade were subject to +the commercial power, it would follow that Congress could abolish or +establish slavery in every State of the Union. + +The only connection which the Federal Government holds with slaves in +a State, arises from that provision of the Constitution which declares +that "No person held to service or labor in one State, under the laws +thereof, escaping into another, shall, in consequence of any law or +regulation therein, be discharged from such service or labor, but +shall be delivered up, on claim of the party to whom such service or +labor may be due." + +This being a fundamental law of the Federal Government, it rests +mainly for its execution, as has been held, on the judicial power of +the Union; and so far as the rendition of fugitives from labor has +become a subject of judicial action, the Federal obligation has been +faithfully discharged. + +In the formation of the Federal Constitution, care was taken to confer +no power on the Federal Government to interfere with this institution +in the States. In the provision respecting the slave trade, in fixing +the ratio of representation, and providing for the reclamation of +fugitives from labor, slaves were referred to as persons, and in no +other respect are they considered in the Constitution. + +We need not refer to the mercenary spirit which introduced the +infamous traffic in slaves, to show the degradation of negro slavery +in our country. This system was imposed upon our colonial settlements +by the mother country, and it is due to truth to say that the +commercial colonies and States were chiefly engaged in the traffic. +But we know as a historical fact, that James Madison, that great and +good man, a leading member in the Federal Convention, was solicitous +to guard the language of that instrument so as not to convey the idea +that there could be property in man. + +I prefer the lights of Madison, Hamilton, and Jay, as a means of +construing the Constitution in all its bearings, rather than to look +behind that period, into a traffic which is now declared to be piracy, +and punished with death by Christian nations. I do not like to draw +the sources of our domestic relations from so dark a ground. Our +independence was a great epoch in the history of freedom; and while I +admit the Government was not made especially for the colored race, yet +many of them were citizens of the New England States, and exercised +the rights of suffrage when the Constitution was adopted, and it was +not doubted by any intelligent person that its tendencies would +greatly ameliorate their condition. + +Many of the States, on the adoption of the Constitution, or shortly +afterward, took measures to abolish slavery within their respective +jurisdictions; and it is a well-known fact that a belief was cherished +by the leading men, South as well as North, that the institution of +slavery would gradually decline, until it would become extinct. The +increased value of slave labor, in the culture of cotton and sugar, +prevented the realization of this expectation. Like all other +communities and States, the South were influenced by what they +considered to be their own interests. + +But if we are to turn our attention to the dark ages of the world, why +confine our view to colored slavery? On the same principles, white men +were made slaves. All slavery has its origin in power, and is against +right. + +The power of Congress to establish Territorial Governments, and to +prohibit the introduction of slavery therein, is the next point to be +considered. + +After the cession of western territory by Virginia and other States, +to the United States, the public attention was directed to the best +mode of disposing of it for the general benefit. While in attendance +on the Federal Convention, Mr. Madison, in a letter to Edmund +Randolph, dated the 22d April, 1787, says: "Congress are deliberating +on the plan most eligible for disposing of the western territory not +yet surveyed. Some alteration will probably be made in the ordinance +on that subject." And in the same letter he says: "The inhabitants of +the Illinois complain of the land jobbers, &c., who are purchasing +titles among them. Those of St. Vincent's complain of the defective +criminal and civil justice among them, as well as of military +protection." And on the next day he writes to Mr. Jefferson: "The +government of the settlements on the Illinois and Wabash is a subject +very perplexing in itself, and rendered more so by our ignorance of +the many circumstances on which a right judgment depends. The +inhabitants at those places claim protection against the savages, and +some provision for both civil and criminal justice." + +In May, 1787, Mr. Edmund Randolph submitted to the Federal Convention +certain propositions, as the basis of a Federal Government, among +which was the following: + +"_Resolved_, That provision ought to be made for the admission of +States lawfully arising within the limits of the United States, +whether from a voluntary junction of government and territory or +otherwise, with the consent of a number of voices in the National +Legislature less than the whole." + +Afterward, Mr. Madison submitted to the Convention, in order to be +referred to the committee of detail, the following powers, as proper +to be added to those of general legislation: + +"To dispose of the unappropriated lands of the United States. To +institute temporary Governments for new States arising therein. To +regulate affairs with the Indians, as well within as without the +limits of the United States." + +Other propositions were made in reference to the same subjects, which +it would be tedious to enumerate. Mr. Gouverneur Morris proposed the +following: + +"The Legislature shall have power to dispose of and make all needful +rules and regulations respecting the territory or other property +belonging to the United States; and nothing in this Constitution +contained shall be so construed as to prejudice any claims either of +the United States or of any particular State." + +This was adopted as a part of the Constitution, with two verbal +alterations--Congress was substituted for Legislature, and the word +_either_ was stricken out. + +In the organization of the new Government, but little revenue for a +series of years was expected from commerce. The public lands were +considered as the principal resource of the country for the payment of +the Revolutionary debt. Direct taxation was the means relied on to pay +the current expenses of the Government. The short period that occurred +between the cession of western lands to the Federal Government by +Virginia and other States, and the adoption of the Constitution, was +sufficient to show the necessity of a proper land system and a +temporary Government. This was clearly seen by propositions and +remarks in the Federal Convention, some of which are above cited, by +the passage of the Ordinance of 1787, and the adoption of that +instrument by Congress, under the Constitution, which gave to it +validity. + +It will be recollected that the deed of cession of western territory +was made to the United States by Virginia in 1784, and that it +required the territory ceded to be laid out into States, that the land +should be disposed of for the common benefit of the States, and that +all right, title, and claim, as well of soil as of jurisdiction, were +ceded; and this was the form of cession from other States. + +On the 13th of July, the Ordinance of 1787 was passed, "for the +government of the United States territory northwest of the river +Ohio," with but one dissenting vote. This instrument provided there +should be organized in the territory not less than three nor more than +five States, designating their boundaries. It was passed while the +Federal Convention was in session, about two months before the +Constitution was adopted by the Convention. The members of the +Convention must therefore have been well acquainted with the +provisions of the Ordinance. It provided for a temporary Government, +as initiatory to the formation of State Governments. Slavery was +prohibited in the territory. + +Can any one suppose that the eminent men of the Federal Convention +could have overlooked or neglected a matter so vitally important to +the country, in the organization of temporary Governments for the vast +territory northwest of the river Ohio? In the 3d section of the 4th +article of the Constitution, they did make provision for the admission +of new States, the sale of the public lands, and the temporary +Government of the territory. Without a temporary Government, new +States could not have been formed, nor could the public lands have +been sold. + +If the third section were before us now for consideration for the +first time, under the facts stated, I could not hesitate to say there +was adequate legislative power given in it. The power to make all +needful rules and regulations is a power to legislate. This no one +will controvert, as Congress cannot make "rules and regulations," +except by legislation. But it is argued that the word territory is +used as synonymous with the word land; and that the rules and +regulations of Congress are limited to the disposition of lands and +other property belonging to the United States. That this is not the +true construction of the section appears from the fact that in the +first line of the section "the power to dispose of the public lands" +is given expressly, and, in addition, to make all needful rules and +regulations. The power to dispose of is complete in itself, and +requires nothing more. It authorizes Congress to use the proper means +within its discretion, and any further provision for this purpose +would be a useless verbiage. As a composition, the Constitution is +remarkably free from such a charge. + +In the discussion of the power of Congress to govern a Territory, in +the case of the Atlantic Insurance Company _v._ Canter, (1 Peters, +511; 7 Curtis, 685,) Chief Justice Marshall, speaking for the court, +said, in regard to the people of Florida, "they do not, however, +participate in political power; they do not share in the Government +till Florida shall become a State; in the mean time, Florida continues +to be a Territory of the United States, governed by virtue of that +clause in the Constitution which empowers Congress 'to make all +needful rules and regulations respecting the territory or other +property belonging to the United States.'" + +And he adds, "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 fact 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 whence the power is derived, +the possession of it is unquestioned." And in the close of the +opinion, the court say, "in legislating for them [the Territories,] +Congress exercises the combined powers of the General and State +Governments." + +Some consider the opinion to be loose and inconclusive; others, that +it is _obiter dicta_; and the last sentence is objected to as +recognising absolute power in Congress over Territories. The learned +and eloquent Wirt, who, in the argument of a cause before the court, +had occasion to cite a few sentences from an opinion of the Chief +Justice, observed, "no one can mistake the style, the words so +completely match the thought." + +I can see no want of precision in the language of the Chief Justice; +his meaning cannot be mistaken. He states, first, the third section as +giving power to Congress to govern the Territories, and two other +grounds from which the power may also be implied. The objection seems +to be, that the Chief Justice did not say which of the grounds stated +he considered the source of the power. He did not specifically state +this, but he did say, "whichever may be the source whence the power is +derived, the possession of it is unquestioned." No opinion of the +court could have been expressed with a stronger emphasis; the power in +Congress is unquestioned. But those who have undertaken to criticise +the opinion, consider it without authority, because the Chief Justice +did not designate specially the power. This is a singular objection. +If the power be unquestioned, it can be a matter of no importance on +which ground it is exercised. + +The opinion clearly was not _obiter dicta_. The turning point in the +case was, whether Congress had power to authorize the Territorial +Legislature of Florida to pass the law under which the Territorial +court was established, whose decree was brought before this court for +revision. The power of Congress, therefore, was the point in issue. + +The word "territory," according to Worcester, "means land, country, a +district of country under a temporary Government." The words +"territory or other property," as used, do imply, from the use of the +pronoun other, that territory was used as descriptive of land; but +does it follow that it was not used also as descriptive of a district +of country? In both of these senses it belonged to the United +States--as land, for the purpose of sale; as territory, for the +purpose of government. + +But, if it be admitted that the word territory as used means land, and +nothing but land, the power of Congress to organize a temporary +Government is clear. It has power to make all needful regulations +respecting the public lands, and the extent of those "needful +regulations" depends upon the direction of Congress, where the means +are appropriate to the end, and do not conflict with any of the +prohibitions of the Constitution. If a temporary Government be deemed +needful, necessary, requisite, or is wanted, Congress has power to +establish it. This court says, in McCulloch _v._ The State of +Maryland, (4 Wheat., 316,) "If a certain means to carry into effect +any of the powers expressly given by the Constitution to the +Government of the Union be an appropriate measure, not prohibited by +the Constitution, the degree of its necessity is a question of +legislative discretion, not of judicial cognizance." + +The power to establish post offices and post roads gives power to +Congress to make contracts for the transportation of the mail, and to +punish all who commit depredations upon it in its transit, or at its +places of distribution. Congress has power to regulate commerce, and, +in the exercise of its discretion, to lay an embargo, which suspends +commerce; so, under the same power, harbors, lighthouses, breakwaters, +&c., are constructed. + +Did Chief Justice Marshall, in saying that Congress governed a +Territory, by exercising the combined powers of the Federal and State +Governments, refer to unlimited discretion? A Government which can +make white men slaves? Surely, such a remark in the argument must have +been inadvertently uttered. On the contrary, there is no power in the +Constitution by which Congress can make either white or black men +slaves. In organizing the Government of a Territory, Congress is +limited to means appropriate to the attainment of the constitutional +object. No powers can be exercised which are prohibited by the +Constitution, or which are contrary to its spirit; so that, whether +the object may be the protection of the persons and property of +purchasers of the public lands, or of communities who have been +annexed to the Union by conquest or purchase, they are initiatory to +the establishment of State Governments, and no more power can be +claimed or exercised than is necessary to the attainment of the end. +This is the limitation of all the Federal powers. + +But Congress has no power to regulate the internal concerns of a +State, as of a Territory; consequently, in providing for the +Government of a Territory, to some extent, the combined powers of the +Federal and State Governments are necessarily exercised. + +If Congress should deem slaves or free colored persons injurious to +the population of a free Territory, as conducing to lessen the value +of the public lands, or on any other ground connected with the public +interest, they have the power to prohibit them from becoming settlers +in it. This can be sustained on the ground of a sound national policy, +which is so clearly shown in our history by practical results, that it +would seem no considerate individual can question it. And, as regards +any unfairness of such a policy to our Southern brethren, as urged in +the argument, it is only necessary to say that, with one-fourth of the +Federal population of the Union, they have in the slave States a +larger extent of fertile territory than is included in the free +States; and it is submitted, if masters of slaves be restricted from +bringing them into free territory, that the restriction on the free +citizens of non-slaveholding States, by bringing slaves into free +territory, is four times greater than that complained of by the South. +But, not only so; some three or four hundred thousand holders of +slaves, by bringing them into free territory, impose a restriction on +twenty millions of the free States. The repugnancy to slavery would +probably prevent fifty or a hundred freemen from settling in a slave +Territory, where one slaveholder would be prevented from settling in a +free Territory. + +This remark is made in answer to the argument urged, that a +prohibition of slavery in the free Territories is inconsistent with +the continuance of the Union. Where a Territorial Government is +established in a slave Territory, it has uniformly remained in that +condition until the people form a State Constitution; the same course +where the Territory is free, both parties acting in good faith, would +be attended with satisfactory results. + +The sovereignty of the Federal Government extends to the entire limits +of our territory. Should any foreign power invade our jurisdiction, it +would be repelled. There is a law of Congress to punish our citizens +for crimes committed in districts of country where there is no +organized Government. Criminals are brought to certain Territories or +States, designated in the law, for punishment. Death has been +inflicted in Arkansas and in Missouri, on individuals, for murders +committed beyond the limit of any organized Territory or State; and no +one doubts that such a jurisdiction was rightfully exercised. If there +be a right to acquire territory, there necessarily must be an implied +power to govern it. When the military force of the Union shall conquer +a country, may not Congress provide for the government of such +country? This would be an implied power essential to the acquisition +of new territory. This power has been exercised, without doubt of its +constitutionality, over territory acquired by conquest and purchase. + +And when there is a large district of country within the United +States, and not within any State Government, if it be necessary to +establish a temporary Government to carry out a power expressly vested +in Congress--as the disposition of the public lands--may not such +Government be instituted by Congress? How do we read the Constitution? +Is it not a practical instrument? + +In such cases, no implication of a power can arise which is inhibited +by the Constitution, or which may be against the theory of its +construction. As my opinion rests on the third section, these remarks +are made as an intimation that the power to establish a temporary +Government may arise, also, on the other two grounds stated in the +opinion of the court in the insurance case, without weakening the +third section. + +I would here simply remark, that the Constitution was formed for our +whole country. An expansion or contraction of our territory required +no change in the fundamental law. When we consider the men who laid +the foundation of our Government and carried it into operation, the +men who occupied the bench, who filled the halls of legislation and +the Chief Magistracy, it would seem, if any question could be settled +clear of all doubt, it was the power of Congress to establish +Territorial Governments. Slavery was prohibited in the entire +Northwestern Territory, with the approbation of leading men, South and +North; but this prohibition was not retained when this ordinance was +adopted for the government of Southern Territories, where slavery +existed. In a late republication of a letter of Mr. Madison, dated +November 27, 1819, speaking of this power of Congress to prohibit +slavery in a Territory, he infers there is no such power, from the +fact that it has not been exercised. This is not a very satisfactory +argument against any power, as there are but few, if any, subjects on +which the constitutional powers of Congress are exhausted. It is true, +as Mr. Madison states, that Congress, in the act to establish a +Government in the Mississippi Territory, prohibited the importation of +slaves into it from foreign parts; but it is equally true, that in the +act erecting Louisiana into two Territories, Congress declared, "it +shall not be lawful for any person to bring into Orleans Territory, +from any port or place within the limits of the United States, any +slave which shall have been imported since 1798, or which may +hereafter be imported, except by a citizen of the United States who +settles in the Territory, under the penalty of the freedom of such +slave." The inference of Mr. Madison, therefore, against the power of +Congress, is of no force, as it was founded on a fact supposed, which +did not exist. + +It is refreshing to turn to the early incidents of our history, and +learn wisdom from the acts of the great men who have gone to their +account. I refer to a report in the House of Representatives, by John +Randolph, of Roanoke, as chairman of a committee, in March, +1803--fifty-four years ago. From the Convention held at Vincennes, in +Indiana, by their President, and from the people of the Territory, a +petition was presented to Congress, praying the suspension of the +provision which prohibited slavery in that Territory. The report +stated "that the rapid population of the State of Ohio sufficiently +evinces, in the opinion of your committee, that the labor of slaves is +not necessary to promote the growth and settlement of colonies in that +region. That this labor, demonstrably the dearest of any, can only be +employed to advantage in the cultivation of products more valuable +than any known to that quarter of the United States; that the +committee deem it highly dangerous and inexpedient to impair a +provision wisely calculated to promote the happiness and prosperity of +the Northwestern country, and to give strength and security to that +extensive frontier. In the salutary operation of this sagacious and +benevolent restraint, it is believed that the inhabitants will, at no +very distant day, find ample remuneration for a temporary privation of +labor and of emigration." (1 vol. State Papers, Public Lands, 160.) + +The judicial mind of this country, State and Federal, has agreed on no +subject, within its legitimate action, with equal unanimity, as on the +power of Congress to establish Territorial Governments. No court, +State or Federal, no judge or statesman, is known to have had any +doubts on this question for nearly sixty years after the power was +exercised. Such Governments have been established from the sources of +the Ohio to the Gulf of Mexico, extending to the Lakes on the north +and the Pacific Ocean on the west, and from the lines of Georgia to +Texas. + +Great interests have grown up under the Territorial laws over a +country more than five times greater in extent than the original +thirteen States; and these interests, corporate or otherwise, have +been cherished and consolidated by a benign policy, without any one +supposing the law-making power had united with the Judiciary, under +the universal sanction of the whole country, to usurp a jurisdiction +which did not belong to them. Such a discovery at this late date is +more extraordinary than anything which has occurred in the judicial +history of this or any other country. Texas, under a previous +organization, was admitted as a State; but no State can be admitted +into the Union which has not been organized under some form of +government. Without temporary Governments, our public lands could not +have been sold, nor our wildernesses reduced to cultivation, and the +population protected; nor could our flourishing States, West and +South, have been formed. + +What do the lessons of wisdom and experience teach, under such +circumstances, if the new light, which has so suddenly and +unexpectedly burst upon us, be true? Acquiescence; acquiescence under +a settled construction of the Constitution for sixty years, though it +may be erroneous; which has secured to the country an advancement and +prosperity beyond the power of computation. + +An act of James Madison, when President, forcibly illustrates this +policy. He had made up his opinion that Congress had no power under +the Constitution to establish a National Bank. In 1815, Congress +passed a bill to establish a bank. He vetoed the bill, on objections +other than constitutional. In his message, he speaks as a wise +statesman and Chief Magistrate, as follows: + +"Waiving the question of the constitutional authority of the +Legislature to establish an incorporated bank, as being precluded, in +my judgment, by the repeated recognitions under varied circumstances +of the validity of such an institution, in acts of the Legislative, +Executive, and Judicial branches of the Government, accompanied by +indications, in different modes, of a concurrence of the general will +of the nation." + +Has this impressive lesson of practical wisdom become lost to the +present generation? + +If the great and fundamental principles of our Government are never to +be settled, there can be no lasting prosperity. The Constitution will +become a floating waif on the billows of popular excitement. + +The prohibition of slavery north of thirty-six degrees thirty minutes, +and of the State of Missouri, contained in the act admitting that +State into the Union, was passed by a vote of 134, in the House of +Representatives, to 42. Before Mr. Monroe signed the act, it was +submitted by him to his Cabinet, and they held the restriction of +slavery in a Territory to be within the constitutional powers of +Congress. It would be singular, if in 1804 Congress had power to +prohibit the introduction of slaves in Orleans Territory from any +other part of the Union, under the penalty of freedom to the slave, if +the same power embodied in the Missouri compromise, could not be +exercised in 1820. + +But this law of Congress, which prohibits slavery north of Missouri +and of thirty-six degrees thirty minutes, is declared to have been +null and void by my brethren. And this opinion is founded mainly, as I +understand, on the distinction drawn between the ordinance of 1787 and +the Missouri compromise line. In what does the distinction consist? +The ordinance, it is said, was a compact entered into by the +confederated States before the adoption of the Constitution; and that +in the cession of territory authority was given to establish a +Territorial Government. + +It is clear that the ordinance did not go into operation by virtue of +the authority of the Confederation, but by reason of its modification +and adoption by Congress under the Constitution. It seems to be +supposed, in the opinion of the court, that the articles of cession +placed it on a different footing from territories subsequently +acquired. I am unable to perceive the force of this distinction. That +the ordinance was intended for the government of the Northwestern +Territory, and was limited to such Territory, is admitted. It was +extended to Southern Territories, with modifications, by acts of +Congress, and to some Northern Territories. But the ordinance was made +valid by the act of Congress, and without such act could have been of +no force. It rested for its validity on the act of Congress, the same, +in my opinion, as the Missouri compromise line. + +If Congress may establish a Territorial Government in the exercise of +its discretion, it is a clear principle that a court cannot control +that discretion. This being the case, I do not see on what ground the +act is held to be void. It did not purport to forfeit property, or +take it for public purposes. It only prohibited slavery; in doing +which, it followed the ordinance of 1787. + +I will now consider the fourth head, which is: "The effect of taking +slaves into a State or Territory, and so holding them, where slavery +is prohibited." + +If the principle laid down in the case of Prigg _v._ The State of +Pennsylvania is to be maintained, and it is certainly to be maintained +until overruled, as the law of this court, there can be no difficulty +on this point. In that case, the court says: "The state of slavery is +deemed to be a mere municipal regulation, founded upon and limited to +the range of the territorial laws." If this be so, slavery can exist +nowhere except under the authority of law, founded on usage having the +force of law, or by statutory recognition. And the court further says: +"It is manifest, from this consideration, that if the Constitution had +not contained the clause requiring the rendition of fugitives from +labor, every non-slaveholding State in the Union would have been at +liberty to have declared free all runaway slaves coming within its +limits, and to have given them entire immunity and protection against +the claims of their masters." + +Now, if a slave abscond, he may be reclaimed; but if he accompany his +master into a State or Territory where slavery is prohibited, such +slave cannot be said to have left the service of his master where his +services were legalized. And if slavery be limited to the range of the +territorial laws, how can the slave be coerced to serve in a State or +Territory, not only without the authority of law, but against its +express provisions? What gives the master the right to control the +will of his slave? The local law, which exists in some form. But where +there is no such law, can the master control the will of the slave by +force? Where no slavery exists, the presumption, without regard to +color, is in favor of freedom. Under such a jurisdiction, may the +colored man be levied on as the property of his master by a creditor? +On the decease of the master, does the slave descend to his heirs as +property? Can the master sell him? Any one or all of these acts may be +done to the slave, where he is legally held to service. But where the +law does not confer this power, it cannot be exercised. + +Lord Mansfield held that a slave brought into England was free. Lord +Stowell agreed with Lord Mansfield in this respect, and that the slave +could not be coerced in England; but on her voluntary return to +Antigua, the place of her slave domicil, her former status attached. +The law of England did not prohibit slavery, but did not authorize it. +The jurisdiction which prohibits slavery is much stronger in behalf of +the slave within it, than where it only does not authorize it. + +By virtue of what law is it, that a master may take his slave into +free territory, and exact from him the duties of a slave? The law of +the Territory does not sanction it. No authority can be claimed under +the Constitution of the United States, or any law of Congress. Will it +be said that the slave is taken as property, the same as other +property which the master may own? To this I answer, that colored +persons are made property by the law of the State, and no such power +has been given to Congress. Does the master carry with him the law of +the State from which he removes into the Territory? and does that +enable him to coerce his slave in the Territory? Let us test this +theory. If this may be done by a master from one slave State, it may +be done by a master from every other slave State. This right is +supposed to be connected with the person of the master, by virtue of +the local law. Is it transferable? May it be negotiated, as a +promissory note or bill of exchange? If it be assigned to a man from a +free State, may he coerce the slave by virtue of it? What shall this +thing be denominated? Is it personal or real property? Or is it an +indefinable fragment of sovereignty, which every person carries with +him from his late domicil? One thing is certain, that its origin has +been very recent, and it is unknown to the laws of any civilized +country. + +A slave is brought to England from one of its islands, where slavery +was introduced and maintained by the mother country. Although there is +no law prohibiting slavery in England, yet there is no law authorizing +it; and, for near a century, its courts have declared that the slave +there is free from the coercion of the master. Lords Mansfield and +Stowell agree upon this point, and there is no dissenting authority. + +There is no other description of property which was not protected in +England, brought from one of its slave islands. Does not this show +that property in a human being does not arise from nature or from the +common law, but, in the language of this court, "it is a mere +municipal regulation, founded upon and limited to the range of the +territorial laws?" This decision is not a mere argument, but it is the +end of the law, in regard to the extent of slavery. Until it shall be +overturned, it is not a point for argument; it is obligatory on myself +and my brethren, and on all judicial tribunals over which this court +exercises an appellate power. + +It is said the Territories are common property of the States, and that +every man has a right to go there with his property. This is not +controverted. But the court say a slave is not property beyond the +operation of the local law which makes him such. Never was a truth +more authoritatively and justly uttered by man. Suppose a master of a +slave in a British island owned a million of property in England; +would that authorize him to take his slaves with him to England? The +Constitution, in express terms, recognises the _status_ of slavery as +founded on the municipal law: "No person held to service or labor in +one State, _under the laws thereof_, escaping into another, shall," +&c. Now, unless the fugitive escape on a place where, by the municipal +law, he is held to labor, this provision affords no remedy to the +master. What can be more conclusive than this? Suppose a slave escape +from a Territory where slavery is not authorized by law, can he be +reclaimed? + +In this case, a majority of the court have said that a slave may be +taken by his master into a Territory of the United States, the same as +a horse, or any other kind of property. It is true, this was said by +the court, as also many other things, which are of no authority. +Nothing that has been said by them, which has not a direct bearing on +the jurisdiction of the court, against which they decided, can be +considered as authority. I shall certainly not regard it as such. The +question of jurisdiction, being before the court, was decided by them +authoritatively, but nothing beyond that question. A slave is not a +mere chattel. He bears the impress of his Maker, and is amenable to +the laws of God and man; and he is destined to an endless existence. + +Under this head I shall chiefly rely on the decisions of the Supreme +Courts of the Southern States, and especially of the State of +Missouri. + +In the first and second sections of the sixth article of the +Constitution of Illinois, it is declared that neither slavery nor +involuntary servitude shall hereafter be introduced into this State, +otherwise than for the punishment of crimes whereof the party shall +have been duly convicted; and in the second section it is declared +that any violation of this article shall effect the emancipation of +such person from his obligation to service. In Illinois, a right of +transit through the State is given the master with his slaves. This is +a matter which, as I suppose, belongs exclusively to the State. + +The Supreme Court of Illinois, in the case of Jarrot _v._ Jarrot, (2 +Gilmer, 7,) said: + +"After the conquest of this Territory by Virginia, she ceded it to the +United States, and stipulated that the titles and possessions, rights +and liberties, of the French settlers, should be guarantied to them. +This, it has been contended, secured them in the possession of those +negroes as slaves which they held before that time, and that neither +Congress nor the Convention had power to deprive them of it; or, in +other words, that the ordinance and Constitution should not be so +interpreted and understood as applying to such slaves, when it is +therein declared that there shall be neither slavery nor involuntary +servitude in the Northwest Territory, nor in the State of Illinois, +otherwise than in the punishment of crimes. But it was held that those +rights could not be thus protected, but must yield to the ordinance +and Constitution." + +The first slave case decided by the Supreme Court of Missouri, +contained in the reports, was Winny _v._ Whitesides, (1 Missouri Rep., +473,) at October term, 1824. It appeared that, more than twenty-five +years before, the defendant, with her husband, had removed from +Carolina to Illinois, and brought with them the plaintiff; that they +continued to reside in Illinois three or four years, retaining the +plaintiff as a slave; after which, they removed to Missouri, taking +her with them. + +The court held, that if a slave be detained in Illinois until he be +entitled to freedom, the right of the owner does not revive when he +finds the negro in a slave State. + +That when a slave is taken to Illinois by his owner, who takes up his +residence there, the slave is entitled to freedom. + +In the case of Lagrange [Transcriber's Note: La Grange] _v._ Chouteau, +(2 Missouri Rep., 20, at May term, 1828,) it was decided that the +ordinance of 1787 was intended as a fundamental law for those who may +choose to live under it, rather than as a penal statute. + +That any sort of residence contrived or permitted by the legal owner +of the slave, upon the faith of secret trusts or contracts, in order +to defeat or evade the ordinance, and thereby introduce slavery _de +facto_, would entitle such slave to freedom. + +In Julia _v._ McKinney, (3 Missouri Rep., 279,) it was held, where a +slave was settled in the State of Illinois, but with an intention on +the part of the owner to be removed at some future day, that hiring +said slave to a person to labor for one or two days, and receiving the +pay for the hire, the slave is entitled to her freedom, under the +second section of the sixth article of the Constitution of Illinois. + +Rachel _v._ Walker (4 Missouri Rep., 350, June term, 1836) is a case +involving, in every particular, the principles of the case before us. +Rachel sued for her freedom; and it appeared that she had been bought +as a slave in Missouri, by Stockton, an officer of the army, taken to +Fort Snelling, where he was stationed, and she was retained there as a +slave a year; and then Stockton removed to Prairie du Chien, taking +Rachel with him as a slave, where he continued to hold her three +years, and then he took her to the State of Missouri, and sold her as +a slave. + +"Fort Snelling was admitted to be on the west side of the Mississippi +river, and north of the State of Missouri, in the territory of the +United States. That Prairie du Chien was in the Michigan Territory, on +the east side of the Mississippi river. Walker, the defendant, held +Rachel under Stockton." + +The court said, in this case: + +"The officer lived in Missouri Territory, at the time he bought the +slave; he sent to a slaveholding country and procured her; this was +his voluntary act, done without any other reason than that of his +convenience; and he and those claiming under him must be holden to +abide the consequences of introducing slavery both in Missouri +Territory and Michigan, contrary to law; and on that ground Rachel was +declared to be entitled to freedom." + +In answer to the argument that, as an officer of the army, the master +had a right to take his slave into free territory, the court said no +authority of law or the Government compelled him to keep the plaintiff +there as a slave. + +"Shall it be said, that because an officer of the army owns slaves in +Virginia, that when, as officer and soldier, he is required to take +the command of a fort in the non-slaveholding States or Territories, +he thereby has a right to take with him as many slaves as will suit +his interests or convenience? It surely cannot be law. If this be +true, the court say, then it is also true that the convenience or +supposed convenience of the officer repeals, as to him and others who +have the same character, the ordinance and the act of 1821, admitting +Missouri into the Union, and also the prohibition of the several laws +and Constitutions of the non-slaveholding States." + +In Wilson _v._ Melvin, (4 Missouri R., 592,) it appeared the defendant +left Tennessee with an intention of residing in Illinois, taking his +negroes with him. After a month's stay in Illinois, he took his +negroes to St. Louis, and hired them, then returned to Illinois. On +these facts, the inferior court instructed the jury that the defendant +was a sojourner in Illinois. This the Supreme Court held was error, +and the judgment was reversed. + +The case of Dred Scott _v._ Emerson (15 Missouri R., 682, March term, +1852) will now be stated. This case involved the identical question +before us, Emerson having, since the hearing, sold the plaintiff to +Sandford, the defendant. + +Two of the judges ruled the case, the Chief Justice dissenting. It +cannot be improper to state the grounds of the opinion of the court, +and of the dissent. + +The court say: "Cases of this kind are not strangers in our court. +Persons have been frequently here adjudged to be entitled to their +freedom, on the ground that their masters held them in slavery in +Territories or States in which that institution is prohibited. From +the first case decided in our court, it might be inferred that this +result was brought about by a presumed assent of the master, from the +fact of having voluntarily taken his slave to a place where the +relation of master and slave did not exist. But subsequent cases base +the right to 'exact the forfeiture of emancipation,' as they term it, +on the ground, it would seem, that it was the duty of the courts of +this State to carry into effect the Constitution and laws of other +States and Territories, regardless of the rights, the policy, or the +institutions, of the people of this State." + +And the court say that the States of the Union, in their municipal +concerns, are regarded as foreign to each other; that the courts of +one State do not take notice of the laws of other States, unless +proved as facts, and that every State has the right to determine how +far its comity to other States shall extend; and it is laid down, that +when there is no act of manumission decreed to the free State, the +courts of the slave States cannot be called to give effect to the law +of the free State. Comity, it alleges, between States, depends upon +the discretion of both, which may be varied by circumstances. And it +is declared by the court, "that times are not as they were when the +former decisions on this subject were made." Since then, not only +individuals but States have been possessed with a dark and fell spirit +in relation to slavery, whose gratification is sought in the pursuit +of measures whose inevitable consequence must be the overthrow and +destruction of our Government. Under such circumstances, it does not +behoove the State of Missouri to show the least countenance to any +measure which might gratify this spirit. She is willing to assume her +full responsibility for the existence of slavery within her limits, +nor does she seek to share or divide it with others. + +Chief Justice Gamble dissented from the other two judges. He says: + +"In every slaveholding State in the Union, the subject of emancipation +is regulated by statute; and the forms are prescribed in which it +shall be effected. Whenever the forms required by the laws of the +State in which the master and slave are resident are complied with, +the emancipation is complete, and the slave is free. If the right of +the person thus emancipated is subsequently drawn in question in +another State, it will be ascertained and determined by the law of the +State in which the slave and his former master resided; and when it +appears that such law has been complied with, the right to freedom +will be fully sustained in the courts of all the slaveholding States, +although the act of emancipation may not be in the form required by +law in which the court sits. + +"In all such cases, courts continually administer the law of the +country where the right was acquired; and when that law becomes known +to the court, it is just as much a matter of course to decide the +rights of the parties according to its requirements, as it is to +settle the title of real estate situated in our State by its own +laws." + +This appears to me a most satisfactory answer to the argument of the +court. Chief Justice continues: + +"The perfect equality of the different States lies at the foundation +of the Union. As the institution of slavery in the States is one over +which the Constitution of the United States gives no power to the +General Government, it is left to be adopted or rejected by the +several States, as they think best; nor can any one State, or number +of States, claim the right to interfere with any other State upon the +question of admitting or excluding this institution. + +"A citizen of Missouri, who removes with his slave to Illinois, has +no right to complain that the fundamental law of that State to which +he removes, and in which he makes his residence, dissolves the +relation between him and his slave. It is as much his own voluntary +act, as if he had executed a deed of emancipation. No one can pretend +ignorance of this constitutional provision, and," he says, "the +decisions which have heretofore been made in this State, and in many +other slaveholding States, give effect to this and other similar +provisions, on the ground that the master, by making the free State +the residence of his slave, has submitted his right to the operation +of the law of such State; and this," he says, "is the same in law as a +regular deed of emancipation." + +He adds: + +"I regard the question as conclusively settled by repeated +adjudications of this court, and, if I doubted or denied the propriety +of those decisions, I would not feel myself any more at liberty to +overturn them, than I would any other series of decisions by which the +law of any other question was settled. There is with me," he says, +"nothing in the law relating to slavery which distinguishes it from +the law on any other subject, or allows any more accommodation to the +temporary public excitements which are gathered around it." + +"In this State," he says, "it has been recognised from the beginning +of the Government as a correct position in law, that a master who +takes his slave to reside in a State or Territory where slavery is +prohibited, thereby emancipates his slave." These decisions, which +come down to the year 1837, seemed to have so fully settled the +question, that since that time there has been no case bringing it +before the court for any reconsideration, until the present. In the +case of Winny _v._ Whitesides, the question was made in the argument, +"whether one nation would execute the penal laws of another," and the +court replied in this language, (Huberus, quoted in 4 Dallas,) which +says, "personal rights or disabilities obtained or communicated by the +laws of any particular place are of a nature which accompany the +person wherever he goes;" and the Chief Justice observed, in the case +of Rachel _v._ Walker, the act of Congress called the Missouri +compromise was held as operative as the ordinance of 1787. + +When Dred Scott, his wife and children, were removed from Fort +Snelling to Missouri, in 1838, they were free, as the law was then +settled, and continued for fourteen years afterwards, up to 1852, when +the above decision was made. Prior to this, for nearly thirty years, +as Chief Justice Gamble declares, the residence of a master with his +slave in the State of Illinois, or in the Territory north of Missouri, +where slavery was prohibited by the act called the Missouri +compromise, would manumit the slave as effectually as if he had +executed a deed of emancipation; and that an officer of the army who +takes his slave into that State or Territory, and holds him there as a +slave, liberates him the same as any other citizen--and down to the +above time it was settled by numerous and uniform decisions; and that +on the return of the slave to Missouri, his former condition of +slavery did not attach. Such was the settled law of Missouri until the +decision of Scott and Emerson. + +In the case of Sylvia _v._ Kirby, (17 Misso. Rep., 434,) the court +followed the above decision, observing it was similar in all respects +to the case of Scott and Emerson. + +This court follows the established construction of the statutes of a +State by its Supreme Court. Such a construction is considered as a +part of the statute, and we follow it to avoid two rules of property +in the same State. But we do not follow the decisions of the Supreme +Court of a State beyond a statutory construction as a rule of decision +for this court. State decisions are always viewed with respect and +treated as authority; but we follow the settled construction of the +statutes, not because it is of binding authority, but in pursuance of +a rule of judicial policy. + +But there is no pretence that the case of Dred Scott _v._ Emerson +turned upon the construction of a Missouri statute; nor was there any +established rule of property which could have rightfully influenced +the decision. On the contrary, the decision overruled the settled law +for near thirty years. + +This is said by my brethren to be a Missouri question; but there is +nothing which gives it this character, except that it involves the +right to persons claimed as slaves who reside in Missouri, and the +decision was made by the Supreme Court of that State. It involves a +right claimed under an act of Congress and the Constitution of +Illinois, and which cannot be decided without the consideration and +construction of those laws. But the Supreme Court of Missouri held, in +this case, that it will not regard either of those laws, without which +there was no case before it; and Dred Scott, having been a slave, +remains a slave. In this respect it is admitted this is a Missouri +question--a case which has but one side, if the act of Congress and +the Constitution of Illinois are not recognised. + +And does such a case constitute a rule of decision for this court--a +case to be followed by this court? The course of decision so long and +so uniformly maintained established a comity or law between Missouri +and the free States and Territories where slavery was prohibited, +which must be somewhat regarded in this case. Rights sanctioned for +twenty-eight years ought not and cannot be repudiated, with any +semblance of justice, by one or two decisions, influenced, as +declared, by a determination to counteract the excitement against +slavery in the free States. + +The courts of Louisiana having held, for a series of years, that where +a master took his slave to France, or any free State, he was entitled +to freedom, and that on bringing him back the status of slavery did +not attach, the Legislature of Louisiana declared by an act that the +slave should not be made free under such circumstances. This regulated +the rights of the master from the time the act took effect. But the +decision of the Missouri court, reversing a former decision, affects +all previous decisions, technically, made on the same principles, +unless such decisions are protected by the lapse of time or the +statute of limitations. Dred Scott and his family, beyond all +controversy, were free under the decisions made for twenty-eight +years, before the case of Scott _v._ Emerson. This was the undoubted +law of Missouri for fourteen years after Scott and his family were +brought back to that State. And the grave question arises, whether +this law may be so disregarded as to enslave free persons. I am +strongly inclined to think that a rule of decision so well settled as +not to be questioned, cannot be annulled by a single decision of the +court. Such rights may be inoperative under the decision in future; +but I cannot well perceive how it can have the same effect in prior +cases. + +It is admitted, that when a former decision is reversed, the technical +effect of the judgment is to make all previous adjudications on the +same question erroneous. But the case before us was not that the law +had been erroneously construed, but that, under the circumstances +which then existed, that law would not be recognised; and the reason +for this is declared to be the excitement against the institution of +slavery in the free States. While I lament this excitement as much as +any one, I cannot assent that it shall be made a basis of judicial +action. + +In 1816, the common law, by statute, was made a part of the law of +Missouri; and that includes the great principles of international law. +These principles cannot be abrogated by judicial decisions. It will +require the same exercise of power to abolish the common law, as to +introduce it. International law is founded in the opinions generally +received and acted on by civilized nations, and enforced by moral +sanctions. It becomes a more authoritative system when it results from +special compacts, founded on modified rules, adapted to the exigencies +of human society; it is in fact an international morality, adapted to +the best interests of nations. And in regard to the States of this +Union, on the subject of slavery, it is eminently fitted for a rule of +action, subject to the Federal Constitution. "The laws of nations are +but the natural rights of man applied to nations." (Vattel.) + +If the common law have the force of a statutory enactment in Missouri, +it is clear, as it seems to me, that a slave who, by a residence in +Illinois in the service of his master, becomes entitled to his +freedom, cannot again be reduced to slavery by returning to his former +domicil in a slave State. It is unnecessary to say what legislative +power might do by a general act in such a case, but it would be +singular if a freeman could be made a slave by the exercise of a +judicial discretion. And it would be still more extraordinary if this +could be done, not only in the absence of special legislation, but in +a State where the common law is in force. + +It is supposed by some, that the third article in the treaty of +cession of Louisiana to this country, by France, in 1803, may have +some bearing on this question. The article referred to provides, "that +the inhabitants of the ceded territory shall be incorporated into the +Union, and enjoy all the advantages of citizens of the United States, +and in the mean time they shall be maintained and protected in the +free enjoyment of their liberty, property, and the religion they +profess." + +As slavery existed in Louisiana at the time of the cession, it is +supposed this is a guaranty that there should be no change in its +condition. + +The answer to this is, in the first place, that such a subject does +not belong to the treaty-making power; and any such arrangement would +have been nugatory. And, in the second place, by no admissible +construction can the guaranty be carried further than the protection +of property in slaves at that time in the ceded territory. And this +has been complied with. The organization of the slave States of +Louisiana, Missouri, and Arkansas, embraced every slave in Louisiana +at the time of the cession. This removes every ground of objection +under the treaty. There is therefore no pretence, growing out of the +treaty, that any part of the territory of Louisiana, as ceded, beyond +the organized States, is slave territory. + +Under the fifth head, we were to consider whether the status of +slavery attached to the plaintiff and wife, on their return to +Missouri. + +This doctrine is not asserted in the late opinion of the Supreme Court +of Missouri, and up to 1852 the contrary doctrine was uniformly +maintained by that court. + +In its late decision, the court say that it will not give effect in +Missouri to the laws of Illinois, or the law of Congress called the +Missouri compromise. This was the effect of the decision, though its +terms were, that the court would not take notice, judicially, of those +laws. + +In 1851, the Court of Appeals of South Carolina recognised the +principle, that a slave, being taken to a free State, became free. +(Commonwealth _v._ Pleasants, 10 Leigh Rep., 697.) In Betty _v._ +Horton, the Court of Appeals held that the freedom of the slave was +acquired by the action of the laws of Massachusetts, by the said slave +being taken there. (5 Leigh Rep., 615.) + +The slave States have generally adopted the rule, that where the +master, by a residence with his slave in a State or Territory where +slavery is prohibited, the slave was entitled to his freedom +everywhere. This was the settled doctrine of the Supreme Court of +Missouri. It has been so held in Mississippi, in Virginia, in +Louisiana, formerly in Kentucky, Maryland, and in other States. + +The law, where a contract is made and is to be executed, governs it. +This does not depend upon comity, but upon the law of the contract. +And if, in the language of the Supreme Court of Missouri, the master, +by taking his slave to Illinois, and employing him there as a slave, +emancipates him as effectually as by a deed of emancipation, is it +possible that such an act is not matter for adjudication in any slave +State where the master may take him? Does not the master assent to the +law, when he places himself under it in a free State? + +The States of Missouri and Illinois are bounded by a common line. The +one prohibits slavery, the other admits it. This has been done by the +exercise of that sovereign power which appertains to each. We are +bound to respect the institutions of each, as emanating from the +voluntary action of the people. Have the people of either any right to +disturb the relations of the other? Each State rests upon the basis of +its own sovereignty, protected by the Constitution. Our Union has been +the foundation of our prosperity and national glory. Shall we not +cherish and maintain it? This can only be done by respecting the legal +rights of each State. + +If a citizen of a free State shall entice or enable a slave to escape +from the service of his master, the law holds him responsible, not +only for the loss of the slave, but he is liable to be indicted and +fined for the misdemeanor. And I am bound here to say, that I have +never found a jury in the four States which constitute my circuit, +which have not sustained this law, where the evidence required them to +sustain it. And it is proper that I should also say, that more cases +have arisen in my circuit, by reason of its extent and locality, than +in all other parts of the Union. This has been done to vindicate the +sovereign rights of the Southern States, and protect the legal +interests of our brethren of the South. + +Let these facts be contrasted with the case now before the court. +Illinois has declared in the most solemn and impressive form that +there shall be neither slavery nor involuntary servitude in that +State, and that any slave brought into it, with a view of becoming a +resident, shall be emancipated. And effect has been given to this +provision of the Constitution by the decision of the Supreme Court of +that State. With a full knowledge of these facts, a slave is brought +from Missouri to Rock Island, in the State of Illinois, and is +retained there as a slave for two years, and then taken to Fort +Snelling, where slavery is prohibited by the Missouri compromise act, +and there he is detained two years longer in a state of slavery. +Harriet, his wife, was also kept at the same place four years as a +slave, having been purchased in Missouri. They were then removed to +the State of Missouri, and sold as slaves, and in the action before us +they are not only claimed as slaves, but a majority of my brethren +have held that on their being returned to Missouri the status of +slavery attached to them. + +I am not able to reconcile this result with the respect due to the +State of Illinois. Having the same rights of sovereignty as the State +of Missouri in adopting a Constitution, I can perceive no reason why +the institutions of Illinois should not receive the same consideration +as those of Missouri. Allowing to my brethren the same right of +judgment that I exercise myself, I must be permitted to say that it +seems to me the principle laid down will enable the people of a slave +State to introduce slavery into a free State, for a longer or shorter +time, as may suit their convenience; and by returning the slave to the +State whence he was brought, by force or otherwise, the status of +slavery attaches, and protects the rights of the master, and defies +the sovereignty of the free State. There is no evidence before us that +Dred Scott and his family returned to Missouri voluntarily. The +contrary is inferable from the agreed case: "In the year 1838, Dr. +Emerson removed the plaintiff and said Harriet, and their daughter +Eliza, from Fort Snelling to the State of Missouri, where they have +ever since resided." This is the agreed case; and can it be inferred +from this that Scott and family returned to Missouri voluntarily? He +was removed; which shows that he was passive, as a slave, having +exercised no volition on the subject. He did not resist the master by +absconding or force. But that was not sufficient to bring him within +Lord Stowell's decision; he must have acted voluntarily. It would be +a mockery of law and an outrage on his rights to coerce his return, +and then claim that it was voluntary, and on that ground that his +former status of slavery attached. + +If the decision be placed on this ground, it is a fact for a jury to +decide, whether the return was voluntary, or else the fact should be +distinctly admitted. A presumption against the plaintiff in this +respect, I say with confidence, is not authorized from the facts +admitted. + +In coming to the conclusion that a voluntary return by Grace to her +former domicil, slavery attached, Lord Stowell took great pains to +show that England forced slavery upon her colonies, and that it was +maintained by numerous acts of Parliament and public policy, and, in +short, that the system of slavery was not only established by Great +Britain in her West Indian colonies, but that it was popular and +profitable to many of the wealthy and influential people of England, +who were engaged in trade, or owned and cultivated plantations in the +colonies. No one can read his elaborate views, and not be struck with +the great difference between England and her colonies, and the free +and slave States of this Union. While slavery in the colonies of +England is subject to the power of the mother country, our States, +especially in regard to slavery, are independent, resting upon their +own sovereignties, and subject only to international laws, which apply +to independent States. + +In the case of Williams, who was a slave in Granada, having run away, +came to England, Lord Stowell said: "The four judges all concur in +this--that he was a slave in Granada, though a free man in England, +and he would have continued a free man in all other parts of the world +except Granada." + +Strader _v._ Graham (10 Howard, 82, and 18 Curtis, 305) has been cited +as having a direct bearing in the case before us. In that case the +court say: "It was exclusively in the power of Kentucky to determine, +for itself, whether the employment of slaves in another State should +or should not make them free on their return." No question was before +the court in that case, except that of jurisdiction. And any opinion +given on any other point is _obiter dictum_, and of no authority. In +the conclusion of his opinion, the Chief Justice said: "In every view +of the subject, therefore, this court has no jurisdiction of the case, +and the writ of error must on that ground be dismissed." + +In the case of Spencer _v._ Negro Dennis, (8 Gill's Rep., 321,) the +court say: "Once free, and always free, is the maxim of Maryland law +upon the subject. Freedom having once vested, by no compact between +the master and the liberated slave, nor by any condition subsequent, +attached by the master to the gift of freedom, can a state of slavery +be reproduced." + +In Hunter _v._ Bulcher [Transcriber's Note: Fulcher], (1 Leigh, 172:) + +"By a statute of Maryland of 1796, all slaves brought into that State +to reside are declared free; a Virginian-born slave is carried by his +master to Maryland; the master settled there, and keeps the slave +there in bondage for twelve years, the statute in force all the time; +then he brings him as a slave to Virginia, and sells him there. +Adjudged, in an action brought by the man against the purchaser, that +he is free." + +Judge Kerr, in the case, says: + +"Agreeing, as I do, with the general view taken in this case by my +brother Green, I would not add a word, but to mark the exact extent to +which I mean to go. The law of Maryland having enacted that slaves +carried into that State for sale or to reside shall be free, and the +owner of the slave here having carried him to Maryland, and +voluntarily submitting himself and the slave to that law, it governs +the case." + +In every decision of a slave case prior to that of Dred Scott _v._ +Emerson, the Supreme Court of Missouri considered it as turning upon +the Constitution of Illinois, the ordinance of 1787, or the Missouri +compromise act of 1820. The court treated these acts as in force, and +held itself bound to execute them, by declaring the slave to be free +who had acquired a domicil under them with the consent of his master. + +The late decision reversed this whole line of adjudication, and held +that neither the Constitution and laws of the States, nor acts of +Congress in relation to Territories, could be judicially noticed by +the Supreme Court of Missouri. This is believed to be in conflict with +the decisions of all the courts in the Southern States, with some +exceptions of recent cases. + +In Marie Louise _v._ Morat et al., (9 Louisiana Rep., 475,) +[Transcriber's Note: correct citation is Louise v. Marot, 9 La. 473] +it was held, where a slave having been taken to the kingdom of France +or other country by the owner, where slavery is not tolerated, +operates on the condition of the slave, and produces immediate +emancipation; and that, where a slave thus becomes free, the master +cannot reduce him again to slavery. + +Josephine _v._ Poultney, (Louisiana Annual Rep., 329,) "where the +owner removes with a slave into a State in which slavery is +prohibited, with the intention of residing there, the slave will be +thereby emancipated, and their subsequent return to the State of +Louisiana cannot restore the relation of master and slave." To the +same import are the cases of Smith _v._ Smith, (13 Louisiana Rep., +441; Thomas _v._ Generis, Louisiana Rep., 483; Harry et al. _v._ +Decker and Hopkins, Walker's Mississippi Rep., 36.) It was held that, +"slaves within the jurisdiction of the Northwestern Territory became +freemen by virtue of the ordinance of 1787, and can assert their claim +to freedom in the courts of Mississippi." (Griffith _v._ Fanny, 1 +Virginia Rep., 143.) It was decided that a negro held in servitude in +Ohio, under a deed executed in Virginia, is entitled to freedom by the +Constitution of Ohio. + +The case of Rhodes _v._ Bell (2 Howard, 307; 15 Curtis, 152) involved +the main principle in the case before us. A person residing in +Washington city purchased a slave in Alexandria, and brought him to +Washington. Washington continued under the law of Maryland, Alexandria +under the law of Virginia. The act of Maryland of November, 1796, (2 +Maxcy's Laws, 351,) declared any one who shall bring any negro, +mulatto or other slave, into Maryland, such slave should be free. The +above slave, by reason of his being brought into Washington city, was +declared by this court to be free. This, it appears to me, is a much +stronger case against the slave than the facts in the case of Scott. + +In Bush _v._ White, (3 Monroe, 104,) the court say: + +"That the ordinance was paramount to the Territorial laws, and +restrained the legislative power there as effectually as a +Constitution in an organized State. It was a public act of the +Legislature of the Union, and a part of the supreme law of the land; +and, as such, this court is as much bound to take notice of it as it +can be of any other law." + +In the case of Rankin _v._ Lydia, before cited, Judge Mills, speaking +for the Court of Appeals of Kentucky, says: + +"If, by the positive provision in our code, we can and must hold our +slaves in the one case, and statutory provisions equally positive +decide against that right in the other, and liberate the slave, he +must, by an authority equally imperious, be declared free. Every +argument which supports the right of the master on one side, based +upon the force of written law, must be equally conclusive in favor of +the slave, when he can point out in the statute the clause which +secures his freedom." + +And he further said: + +"Free people of color in all the States are, it is believed, quasi +citizens, or, at least, denizens. Although none of the States may +allow them the privilege of office and suffrage, yet all other civil +and conventional rights are secured to them; at least, such rights +were evidently secured to them by the ordinance in question for the +government of Indiana. If these rights are vested in that or any other +portion of the United States, can it be compatible with the spirit of +our confederated Government to deny their existence in any other part? +Is there less comity existing between State and State, or State and +Territory, than exists between the despotic Governments of Europe?" + +These are the words of a learned and great judge, born and educated in +a slave State. + +I now come to inquire, under the sixth and last head, "whether the +decisions of the Supreme Court of Missouri, on the question before us, +are binding on this court." + +While we respect the learning and high intelligence of the State +courts, and consider their decisions, with others, as authority, we +follow them only where they give a construction to the State statutes. +On this head, I consider myself fortunate in being able to turn to the +decision of this court, given by Mr. Justice Grier, in Pease _v._ +Peck, a case from the State of Michigan, (18 Howard, 589,) decided in +December term, 1855. Speaking for the court, Judge Grier said: + +"We entertain the highest respect for that learned court, (the Supreme +Court of Michigan) and in any question affecting the construction of +their own laws, where we entertain any doubt, would be glad to be +relieved from doubt and responsibility by reposing on their decision. +There are, it is true, many dicta to be found in our decisions, +averring that the courts of the United States are bound to follow the +decisions of the State courts on the construction of their own laws. +But although this may be correct, yet a rather strong expression of a +general rule, it cannot be received as the annunciation of a maxim of +universal application. Accordingly, our reports furnish many cases of +exceptions to it. In all cases where there is a settled construction +of the laws of a State, by its highest judicature established by +admitted precedent, it is the practice of the courts of the United +States to receive and adopt it, without criticism or further inquiry. +When the decisions of the State court are not consistent, we do not +feel bound to follow the last, if it is contrary to our own +convictions; and much more is this the case where, after a long course +of consistent decisions, some new light suddenly springs up, or an +excited public opinion has elicited new doctrines subversive of former +safe precedent." + +These words, it appears to me, have a stronger application to the case +before us than they had to the cause in which they were spoken as the +opinion of this court; and I regret that they do not seem to be as +fresh in the recollection of some of my brethren as in my own. For +twenty-eight years, the decisions of the Supreme Court of Missouri +were consistent on all the points made in this case. But this +consistent course was suddenly terminated, whether by some new light +suddenly springing up, or an excited public opinion, or both, it is +not necessary to say. In the case of Scott _v._ Emerson, in 1852, +they were overturned and repudiated. + +This, then, is the very case in which seven of my brethren declared +they would not follow the last decision. On this authority I may well +repose. I can desire no other or better basis. + +But there is another ground which I deem conclusive, and which I will +re-state. + +The Supreme Court of Missouri refused to notice the act of Congress or +the Constitution of Illinois, under which Dred Scott, his wife and +children, claimed that they are entitled to freedom. + +This being rejected by the Missouri court, there was no case before +it, or least it was a case with only one side. And this is the case +which, in the opinion of this court, we are bound to follow. The +Missouri court disregards the express provisions of an act of Congress +and the Constitution of a sovereign State, both of which laws for +twenty-eight years it had not only regarded, but carried into effect. + +If a State court may do this, on a question involving the liberty of a +human being, what protection do the laws afford? So far from this +being a Missouri question, it is a question, as it would seem, within +the twenty-fifth section of the judiciary act, where a right to +freedom being set up under the act of Congress, and the decision being +against such right, it may be brought for revision before this court, +from the Supreme Court of Missouri. + +I think the judgment of the court below should be reversed. + + * * * * * + +Mr. Justice CURTIS dissenting. + +I dissent from the opinion pronounced by the Chief Justice, and from +the judgment which the majority of the court think it proper to render +in this case. The plaintiff alleged, in his declaration, that he was a +citizen of the State of Missouri, and that the defendant was a citizen +of the State of New York. It is not doubted that it was necessary to +make each of these allegations, to sustain the jurisdiction of the +Circuit Court. The defendant denied, by a plea to the jurisdiction, +either sufficient or insufficient, that the plaintiff was a citizen of +the State of Missouri. The plaintiff demurred to that plea. The +Circuit Court adjudged the plea insufficient, and the first question +for our consideration is, whether the sufficiency of that plea is +before this court for judgment, upon this writ of error. The part of +the judicial power of the United States, conferred by Congress on the +Circuit Courts, being limited to certain described cases and +controversies, the question whether a particular case is within the +cognizance of a Circuit Court, may be raised by a plea to the +jurisdiction of such court. When that question has been raised, the +Circuit Court must, in the first instance, pass upon and determine it. +Whether its determination be final, or subject to review by this +appellate court, must depend upon the will of Congress; upon which +body the Constitution has conferred the power, with certain +restrictions, to establish inferior courts, to determine their +jurisdiction, and to regulate the appellate power of this court. The +twenty-second section of the judiciary act of 1789, which allows a +writ of error from final judgments of Circuit Courts, provides that +there shall be no reversal in this court, on such writ of error, for +error in ruling any plea in abatement, _other than a plea to the +jurisdiction of the court_. Accordingly it has been held, from the +origin of the court to the present day, that Circuit Courts have not +been made by Congress the final judges of their own jurisdiction in +civil cases. And that when a record comes here upon a writ of error or +appeal, and, on its inspection, it appears to this court that the +Circuit Court had not jurisdiction, its judgment must be reversed, and +the cause remanded, to be dismissed for want of jurisdiction. + +It is alleged by the defendant in error, in this case, that the plea +to the jurisdiction was a sufficient plea; that it shows, on +inspection of its allegations, confessed by the demurrer, that the +plaintiff was not a citizen of the State of Missouri; that upon this +record, it must appear to this court that the case was not within the +judicial power of the United States, as defined and granted by the +Constitution, because it was not a suit by a citizen of one State +against a citizen of another State. + +To this it is answered, first, that the defendant, by pleading over, +after the plea to the jurisdiction was adjudged insufficient, finally +waived all benefit of that plea. + +When that plea was adjudged insufficient, the defendant was obliged to +answer over. He held no alternative. He could not stop the further +progress of the case in the Circuit Court by a writ of error, on which +the sufficiency of his plea to the jurisdiction could be tried in this +court, because the judgment on that plea was not final, and no writ of +error would lie. He was forced to plead to the merits. It cannot be +true, then, that he waived the benefit of his plea to the jurisdiction +by answering over. Waiver includes consent. Here, there was no +consent. And if the benefit of the plea was finally lost, it must be, +not by any waiver, but because the laws of the United States have not +provided any mode of reviewing the decision of the Circuit Court on +such a plea, when that decision is against the defendant. This is not +the law. Whether the decision of the Circuit Court on a plea to the +jurisdiction be against the plaintiff, or against the defendant, the +losing party may have any alleged error in law, in ruling such a plea, +examined in this court on a writ of error, when the matter in +controversy exceeds the sum or value of two thousand dollars. If the +decision be against the plaintiff, and his suit dismissed for want of +jurisdiction, the judgment is technically final, and he may at once +sue out his writ of error. (Mollan _v._ Torrance, 9 Wheat., 537.) If +the decision be against the defendant, though he must answer over, and +wait for a final judgment in the cause, he may then have his writ of +error, and upon it obtain the judgment of this court on any question +of law apparent on the record, touching the jurisdiction. The fact +that he pleaded over to the merits, under compulsion, can have no +effect on his right to object to the jurisdiction. If this were not +so, the condition of the two parties would be grossly unequal. For if +a plea to the jurisdiction were ruled against the plaintiff, he could +at once take his writ of error, and have the ruling reviewed here; +while, if the same plea were ruled against the defendant, he must not +only wait for a final judgment, but could in no event have the ruling +of the Circuit Court upon the plea reviewed by this court. I know of +no ground for saying that the laws of the United States have thus +discriminated between the parties to a suit in its courts. + +It is further objected, that as the judgment of the Circuit Court was +in favor of the defendant, and the writ of error in this cause was +sued out by the plaintiff, the defendant is not in a condition to +assign any error in the record, and therefore this court is precluded +from considering the question whether the Circuit Court had +jurisdiction. + +The practice of this court does not require a technical assignment of +errors. (See the rule.) Upon a writ of error, the whole record is open +for inspection; and if any error be found in it, the judgment is +reversed. (Bank of U.S. _v._ Smith, 11 Wheat., 171.) + +It is true, as a general rule, that the court will not allow a party +to rely on anything as cause for reversing a judgment, which was for +his advantage. In this, we follow an ancient rule of the common law. +But so careful was that law of the preservation of the course of its +courts, that it made an exception out of that general rule, and +allowed a party to assign for error that which was for his advantage, +if it were a departure by the court itself from its settled course of +procedure. The cases on this subject are collected in Bac. Ab., Error +H. 4. And this court followed this practice in Capron _v._ Van +Noorden, (2 Cranch, 126,) where the plaintiff below procured the +reversal of a judgment for the defendant, on the ground that the +plaintiff's allegations of citizenship had not shown jurisdiction. + +But it is not necessary to determine whether the defendant can be +allowed to assign want of jurisdiction as an error in a judgment in +his own favor. The true question is, not what either of the parties +may be allowed to do, but whether this court will affirm or reverse a +judgment of the Circuit Court on the merits, when it appears on the +record, by a plea to the jurisdiction, that it is a case to which the +judicial power of the United States does not extend. The course of the +court is, where no motion is made by either party, on its own motion, +to reverse such a judgment for want of jurisdiction, not only in cases +where it is shown, negatively, by a plea to the jurisdiction, that +jurisdiction does not exist, but even where it does not appear, +affirmatively, that it does exist. (Pequignot _v._ The Pennsylvania +R.R. Co., 16 How., 104.) It acts upon the principle that the judicial +power of the United States must not be exerted in a case to which it +does not extend, even if both parties desire to have it exerted. +(Cutler _v._ Rae, 7 How., 729.) I consider, therefore, that when there +was a plea to the jurisdiction of the Circuit Court in a case brought +here by a writ of error, the first duty of this court is, _sua +sponte_, if not moved to it by either party, to examine the +sufficiency of that plea; and thus to take care that neither the +Circuit Court nor this court shall use the judicial power of the +United States in a case to which the Constitution and laws of the +United States have not extended that power. + +I proceed, therefore, to examine the plea to the jurisdiction. + +I do not perceive any sound reason why it is not to be judged by the +rules of the common law applicable to such pleas. It is true, where +the jurisdiction of the Circuit Court depends on the citizenship of +the parties, it is incumbent on the plaintiff to allege on the record +the necessary citizenship; but when he has done so, the defendant must +interpose a plea in abatement, the allegations whereof show that the +court has not jurisdiction; and it is incumbent on him to prove the +truth of his plea. + +In Sheppard _v._ Graves, (14 How., 27,) the rules on this subject are +thus stated in the opinion of the court: "That although, in the courts +of the United States, it is necessary to set forth the grounds of +their cognizance as courts of limited jurisdiction, yet wherever +jurisdiction shall be averred in the pleadings, in conformity with the +laws creating those courts, it must be taken, _prima facie_, as +existing; and it is incumbent on him who would impeach that +jurisdiction for causes dehors the pleading, to allege and prove such +causes; that the necessity for the allegation, and the burden of +sustaining it by proof, both rest upon the party taking the +exception." These positions are sustained by the authorities there +cited, as well as by Wickliffe _v._ Owings, (17 How., 47.) + +When, therefore, as in this case, the necessary averments as to +citizenship are made on the record, and jurisdiction is assumed to +exist, and the defendant comes by a plea to the jurisdiction to +displace that presumption, he occupies, in my judgment, precisely the +position described in Bacon Ab., Abatement: "Abatement, in the general +acceptation of the word, signifies a plea, put in by the defendant, in +which he shows cause to the court why he should not be impleaded; or, +if at all, not in the manner and form he now is." + +This being, then, a plea in abatement, to the jurisdiction of the +court, I must judge of its sufficiency by those rules of the common +law applicable to such pleas. + +The plea was as follows: "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 cognizance 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." + +The plaintiff demurred, and the judgment of the Circuit Court was, +that the plea was insufficient. + +I cannot treat this plea as a general traverse of the citizenship +alleged by the plaintiff. Indeed, if it were so treated, the plea was +clearly bad, for it concludes with a verification, and not to the +country, as a general traverse should. And though this defect in a +plea in bar must be pointed out by a special demurrer, it is never +necessary to demur specially to a plea in abatement; all matters, +though of form only, may be taken advantage of upon a general demurrer +to such a plea. (Chitty on Pl., 465.) + +The truth is, that though not drawn with the utmost technical +accuracy, it is a special traverse of the plaintiff's allegation of +citizenship, and was a suitable and proper mode of traverse under the +circumstances. By reference to Mr. Stephen's description of the uses +of such a traverse, contained in his excellent analysis of pleadings, +(Steph. on Pl., 176,) it will be seen how precisely this plea meets +one of his descriptions. No doubt the defendant might have traversed, +by a common or general traverse, the plaintiff's allegation that he +was a citizen of the State of Missouri, concluding to the country. The +issue thus presented being joined, would have involved matter of law, +on which the jury must have passed, under the direction of the court. +But by traversing the plaintiff's citizenship specially--that is, +averring those facts on which the defendant relied to show that in +point of law the plaintiff was not a citizen, and basing the traverse +on those facts as a deduction therefrom--opportunity was given to do, +what was done; that is, to present directly to the court, by a +demurrer, the sufficiency of those facts to negative, in point of law, +the plaintiff's allegation of citizenship. This, then, being a +special, and not a general or common traverse, the rule is settled, +that the facts thus set out in the plea, as the reason or ground of +the traverse must of themselves constitute, in point of law, a +negative of the allegation thus traversed. (Stephen on Pl., 183; Ch. +on Pl., 620.) And upon a demurrer to this plea, the question which +arises is, whether the facts, that the plaintiff is a negro, of +African descent, whose ancestors were of pure African blood, and were +brought into this country and sold as negro slaves, _may all be true, +and yet_ the plaintiff be a citizen of the State of Missouri, within +the meaning of the Constitution and laws of the United States, which +confer on citizens of one State the right to sue citizens of another +State in the Circuit Courts. Undoubtedly, if these facts, taken +together, amount to an allegation that, at the time of action brought, +the plaintiff was himself a slave, the plea is sufficient. It has been +suggested that the plea, in legal effect, does so aver, because, if +his ancestors were sold as slaves, the presumption is they continued +slaves; and if so, the presumption is, the plaintiff was born a slave; +and if so, the presumption is, he continued to be a slave to the time +of action brought. + +I cannot think such presumptions can be resorted to, to help out +defective averments in pleading; especially, in pleading in abatement, +where the utmost certainty and precision are required. (Chitty on Pl., +457.) That the plaintiff himself was a slave at the time of action +brought, is a substantive fact, having no necessary connection with +the fact that his parents were sold as slaves. For they might have +been sold after he was born; or the plaintiff himself, if once a +slave, might have became a freeman before action brought. To aver +that his ancestors were sold as slaves, is not equivalent, in point of +law, to an averment that he was a slave. If it were, he could not even +confess and avoid the averment of the slavery of his ancestors, which +would be monstrous; and if it be not equivalent in point of law, it +cannot be treated as amounting thereto when demurred to; for a +demurrer confesses only those substantive facts which are well +pleaded, and not other distinct substantive facts which might be +inferred therefrom by a jury. To treat an averment that the +plaintiff's ancestors were Africans, brought to this country and sold +as slaves, as amounting to an averment on the record that he was a +slave, because it may lay some foundation for presuming so, is to hold +that the facts actually alleged may be treated as intended as evidence +of another distinct fact not alleged. But it is a cardinal rule of +pleading, laid down in Dowman's case, (9 Rep., 9 b,) and in even +earlier authorities therein referred to, "that evidence shall never be +pleaded, for it only tends to prove matter of fact; and therefore the +matter of fact shall be pleaded." Or, as the rule is sometimes stated, +pleadings must not be argumentative. (Stephen on Pleading, 384, and +authorities cited by him.) In Com. Dig., Pleader E. 3, and Bac. +Abridgement, Pleas I, 5, and Stephen on Pl., many decisions under this +rule are collected. In trover, for an indenture whereby A granted a +manor, it is no plea that A did not grant the manor, for it does not +answer the declaration except by argument. (Yelv., 223.) + +So in trespass for taking and carrying away the plaintiff's goods, the +defendant pleaded that the plaintiff never had any goods. The court +said, "this is an infallible argument that the defendant is not +guilty, but it is no plea." (Dyer, a 43.) + +In ejectment, the defendant pleaded a surrender of a copyhold by the +hand of Fosset, the steward. The plaintiff replied, that Fosset was +not steward. The court held this no issue, for it traversed the +surrender only argumentatively. (Cro. Elis., 260.) + +In these cases, and many others reported in the books, the inferences +from the facts stated were irresistible. But the court held they did +not, when demurred to, amount to such inferable facts. In the case at +bar, the inference that the defendant was a slave at the time of +action brought, even if it can be made at all, from the fact that his +parents were slaves, is certainly not a necessary inference. This +case, therefore, is like that of Digby _v._ Alexander, (8 Bing., 116.) +In that case, the defendant pleaded many facts strongly tending to +show that he was once Earl of Stirling; but as there was no positive +allegation that he was so at the time of action brought, and as every +fact averred might be true, and yet the defendant not have been Earl +of Stirling at the time of action brought, the plea was held to be +insufficient. + +A lawful seizin of land is presumed to continue. But if, in an action +of trespass _quare clausum_, the defendant were to plead that he was +lawfully seized of the _locus in quo_, one month before the time of +the alleged trespass, I should have no doubt it would be a bad plea. +(See Mollan _v._ Torrance, 9 Wheat., 537.) So if a plea to the +jurisdiction, instead of alleging that the plaintiff was a citizen of +the same State as the defendant, were to allege that the plaintiff's +ancestors were citizens of that State, I think the plea could not be +supported. My judgment would be, as it is in this case, that if the +defendant meant to aver a particular substantive fact, as existing at +the time of action brought, he must do it directly and explicitly, and +not by way of inference from certain other averments, which are quite +consistent with the contrary hypothesis. I cannot, therefore, treat +this plea as containing an averment that the plaintiff himself was a +slave at the time of action brought; and the inquiry recurs, whether +the facts, that he is of African descent, and that his parents were +once slaves, are necessarily inconsistent with his own citizenship in +the State of Missouri, within the meaning of the Constitution and laws +of the United States. + +In Gassies _v._ Ballon, (6 Pet., 761,) the defendant was described on +the record as a naturalized citizen of the United States, residing in +Louisiana. The court held this equivalent to an averment that the +defendant was a citizen of Louisiana; because a citizen of the United +States, residing in any State of the Union, is, for purposes of +jurisdiction, a citizen of that State. Now, the plea to the +jurisdiction in this case does not controvert the fact that the +plaintiff resided in Missouri at the date of the writ. If he did then +reside there, and was also a citizen of the United States, no +provisions contained in the Constitution or laws of Missouri can +deprive the plaintiff of his right to sue citizens of States other +than Missouri, in the courts of the United States. + +So that, under the allegations contained in this plea, and admitted by +the demurrer, the question is, whether any person of African descent, +whose ancestors were sold as slaves in the United States, can be a +citizen of the United States. If any such person can be a citizen, +this plaintiff has the right to the judgment of the court that he is +so; for no cause is shown by the plea why he is not so, except his +descent and the slavery of his ancestors. + +The first section of the second article of the Constitution uses the +language, "a citizen of the United States at the time of the adoption +of the Constitution." One mode of approaching this question is, to +inquire who were citizens of the United States at the time of the +adoption of the Constitution. + +Citizens of the United States at the time of the adoption of the +Constitution can have been no other than citizens of the United States +under the Confederation. By the Articles of Confederation, a +Government was organized, the style whereof was, "The United States of +America." This Government was in existence when the Constitution was +framed and proposed for adoption, and was to be superseded by the new +Government of the United States of America, organized under the +Constitution. When, therefore, the Constitution speaks of citizenship +of the United States, existing at the time of the adoption of the +Constitution, it must necessarily refer to citizenship under the +Government which existed prior to and at the time of such adoption. + +Without going into any question concerning the powers of the +Confederation to govern the territory of the United States out of the +limits of the States, and consequently to sustain the relation of +Government and citizen in respect to the inhabitants of such +territory, it may safely be said that the citizens of the several +States were citizens of the United States under the Confederation. + +That Government was simply a confederacy of the several States, +possessing a few defined powers over subjects of general concern, each +State retaining every power, jurisdiction, and right, not expressly +delegated to the United States in Congress assembled. And no power was +thus delegated to the Government of the Confederation, to act on any +question of citizenship, or to make any rules in respect thereto. The +whole matter was left to stand upon the action of the several States, +and to the natural consequence of such action, that the citizens of +each State should be citizens of that Confederacy into which that +State had entered, the style whereof was, "The United States of +America." + +To determine whether any free persons, descended from Africans held in +slavery, were citizens of the United States under the Confederation, +and consequently at the time of the adoption of the Constitution of +the United States, it is only necessary to know whether any such +persons were citizens of either of the States under the Confederation, +at the time of the adoption of the Constitution. + +Of this there can be no doubt. At the time of the ratification of the +Articles of Confederation, all free native-born inhabitants of the +States of New Hampshire, Massachusetts, New York, New Jersey, and +North Carolina, though descended from African slaves, were not only +citizens of those States, but such of them as had the other necessary +qualifications possessed the franchise of electors, on equal terms +with other citizens. + +The Supreme Court of North Carolina, in the case of the State _v._ +Manuel, (4 Dev. and Bat., 20,) has declared the law of that State on +this subject, in terms which I believe to be as sound law in the other +States I have enumerated, as it was in North Carolina. + +"According to the laws of this State," says Judge Gaston in delivering +the opinion of the court, "all human beings within it, who are not +slaves, fall within one of two classes. Whatever distinctions may have +existed in the Roman laws between citizens and free inhabitants, they +are unknown to our institutions. Before our Revolution, all free +persons born within the dominions of the King of Great Britain, +whatever their color or complexion, were native-born British +subjects--those born out of his allegiance were aliens. Slavery did +not exist in England, but it did in the British colonies. Slaves were +not in legal parlance persons, but property. The moment the +incapacity, the disqualification of slavery, was removed, they became +persons, and were then either British subjects, or not British +subjects, according as they were or were not born within the +allegiance of the British King. Upon the Revolution, no other change +took place in the laws of North Carolina than was consequent on the +transition from a colony dependent on a European King, to a free and +sovereign State. Slaves remained slaves. British subjects in North +Carolina became North Carolina freemen. Foreigners, until made members +of the State, remained aliens. Slaves, manumitted here, became +freemen, and therefore, if born within North Carolina, are citizens of +North Carolina, and all free persons born within the State are born +citizens of the State. The Constitution extended the elective +franchise to every freeman who had arrived at the age of twenty-one, +and paid a public tax; and it is a matter of universal notoriety, +that, under it, free persons, without regard to color, claimed and +exercised the franchise, until it was taken from free men of color a +few years since by our amended Constitution." + +In the State _v._ Newcomb, (5 Iredell's R., 253,) decided in 1844, the +same court referred to this case of the State _v._ Manuel, and said: +"That case underwent a very laborious investigation, both by the bar +and the bench. The case was brought here by appeal, and was felt to be +one of great importance in principle. It was considered with an +anxiety and care worthy of the principle involved, and which give it a +controlling influence and authority on all questions of a similar +character." + +An argument from speculative premises, however well chosen, that the +then state of opinion in the Commonwealth of Massachusetts was not +consistent with the natural rights of people of color who were born on +that soil, and that they were not, by the Constitution of 1780 of that +State, admitted to the condition of citizens, would be received with +surprise by the people of that State, who know their own political +history. It is true, beyond all controversy, that persons of color, +descended from African slaves, were by that Constitution made citizens +of the State; and such of them as have had the necessary +qualifications, have held and exercised the elective franchise, as +citizens, from that time to the present. (See Com. _v._ Aves, 18 Pick. +R., 210.) + +The Constitution of New Hampshire conferred the elective franchise +upon "every inhabitant of the State having the necessary +qualifications," of which color or descent was not one. + +The Constitution of New York gave the right to vote to "every male +inhabitant, who shall have resided," &c.; making no discrimination +between free colored persons and others. (See Con. of N.Y., Art. 2, +Rev. Stats. of N.Y., vol. 1, p. 126.) + +That of New Jersey, to "all inhabitants of this colony, of full age, +who are worth L50 proclamation money, clear estate." + +New York, by its Constitution of 1820, required colored persons to +have some qualifications as prerequisites for voting, which white +persons need not possess. And New Jersey, by its present Constitution, +restricts the right to vote to white male citizens. But these changes +can have no other effect upon the present inquiry, except to show, +that before they were made, no such restrictions existed; and colored +in common with white persons, were not only citizens of those States, +but entitled to the elective franchise on the same qualifications as +white persons, as they now are in New Hampshire and Massachusetts. I +shall not enter into an examination of the existing opinions of that +period respecting the African race, nor into any discussion concerning +the meaning of those who asserted, in the Declaration of Independence, +that all men are created equal; that they are endowed by their Creator +with certain inalienable rights; that among these are life, liberty, +and the pursuit of happiness. My own opinion is, that a calm +comparison of these assertions of universal abstract truths, and of +their own individual opinions and acts, would not leave these men +under any reproach of inconsistency; that the great truths they +asserted on that solemn occasion, they were ready and anxious to make +effectual, wherever a necessary regard to circumstances, which no +statesman can disregard without producing more evil than good, would +allow; and that it would not be just to them, nor true in itself, to +allege that they intended to say that the Creator of all men had +endowed the white race, exclusively, with the great natural rights +which the Declaration of Independence asserts. But this is not the +place to vindicate their memory. As I conceive, we should deal here, +not with such disputes, if there can be a dispute concerning this +subject, but with those substantial facts evinced by the written +Constitutions of States, and by the notorious practice under them. And +they show, in a manner which no argument can obscure, that in some of +the original thirteen States, free colored persons, before and at the +time of the formation of the Constitution, were citizens of those +States. + +The fourth of the fundamental articles of the Confederation was as +follows: "The free inhabitants of each of these States, paupers, +vagabonds, and fugitives from justice, excepted, shall be entitled to +all the privileges and immunities of free citizens in the several +States." + +The fact that free persons of color were citizens of some of the +several States, and the consequence, that this fourth article of the +Confederation would have the effect to confer on such persons the +privileges and immunities of general citizenship, were not only known +to those who framed and adopted those articles, but the evidence is +decisive, that the fourth article was intended to have that effect, +and that more restricted language, which would have excluded such +persons, was deliberately and purposely rejected. + +On the 25th of June, 1778, the Articles of Confederation being under +consideration by the Congress, the delegates from South Carolina moved +to amend this fourth article, by inserting after the word "free," and +before the word "inhabitants," the word "white," so that the +privileges and immunities of general citizenship would be secured only +to white persons. Two States voted for the amendment, eight States +against it, and the vote of one State was divided. The language of the +article stood unchanged, and both by its terms of inclusion, "free +inhabitants," and the strong implication from its terms of exclusion, +"paupers, vagabonds, and fugitives from justice," who alone were +excepted, it is clear, that under the Confederation, and at the time +of the adoption of the Constitution, free colored persons of African +descent might be, and, by reason of their citizenship in certain +States, were entitled to the privileges and immunities of general +citizenship of the United States. + +Did the Constitution of the United States deprive them or their +descendants of citizenship? + +That Constitution was ordained and established by the people of the +United States, through the action, in each State, of those persons who +were qualified by its laws to act thereon, in behalf of themselves and +all other citizens of that State. In some of the States, as we have +seen, colored persons were among those qualified by law to act on this +subject. These colored persons were not only included in the body of +"the people of the United States," by whom the Constitution was +ordained and established, but in at least five of the States they had +the power to act, and doubtless did act, by their suffrages, upon the +question of its adoption. It would be strange, if we were to find in +that instrument anything which deprived of their citizenship any part +of the people of the United States who were among those by whom it was +established. + +I can find nothing in the Constitution which, _proprio vigore_, +deprives of their citizenship any class of persons who were citizens +of the United States at the time of its adoption, or who should be +native-born citizens of any State after its adoption; nor any power +enabling Congress to disfranchise persons born on the soil of any +State, and entitled to citizenship of such State by its Constitution +and laws. And my opinion is, that, under the Constitution of the +United States, every free person born on the soil of a State, who is a +citizen of that State by force of its Constitution or laws, is also a +citizen of the United States. + +I will proceed to state the grounds of that opinion. + +The first section of the second article of the Constitution uses the +language, "a natural-born citizen." It thus assumes that citizenship +may be acquired by birth. Undoubtedly, this language of the +Constitution was used in reference to that principle of public law, +well understood in this country at the time of the adoption of the +Constitution, which referred citizenship to the place of birth. At the +Declaration of Independence, and ever since, the received general +doctrine has been, in conformity with the common law, that free +persons born within either of the colonies were subjects of the King; +that by the Declaration of Independence, and the consequent +acquisition of sovereignty by the several States, all such persons +ceased to be subjects, and became citizens of the several States, +except so far as some of them were disfranchised by the legislative +power of the States, or availed themselves, seasonably, of the right +to adhere to the British Crown in the civil contest, and thus to +continue British subjects (McIlvain _v._ Coxe's Lessee, 4 Cranch, 209; +Inglis _v._ Sailors' Snug Harbor, 3 Peters, p. 99; Shanks _v._ Dupont, +Ibid, p. 242.) + +The Constitution having recognised the rule that persons born within +the several States are citizens of the United States, one of four +things must be true: + +_First._ That the Constitution itself has described what native-born +persons shall or shall not be citizens of the United States; or, + +_Second._ That it has empowered Congress to do so; or, + +_Third._ That all free persons, born within the several States, are +citizens of the United States; or, + +_Fourth._ That it is left to each State to determine what free +persons, born within its limits, shall be citizens of such State, and +_thereby_ be citizens of the United States. + +If there be such a thing as citizenship of the United States acquired +by birth within the States, which the Constitution expressly +recognises, and no one denies, then these four alternatives embrace +the entire subject, and it only remains to select that one which is +true. + +That the Constitution itself has defined citizenship of the United +States by declaring what persons, born within the several States, +shall or shall not be citizens of the United States, will not be +pretended. It contains no such declaration. We may dismiss the first +alternative, as without doubt unfounded. + +Has it empowered Congress to enact what free persons, born within the +several States, shall or shall not be citizens of the United States? + +Before examining the various provisions of the Constitution which may +relate to this question, it is important to consider for a moment the +substantial nature of this inquiry. It is, in effect, whether the +Constitution has empowered Congress to create privileged classes +within the States, who alone can be entitled to the franchises and +powers of citizenship of the United States. If it be admitted that the +Constitution has enabled Congress to declare what free persons, born +within the several States, shall be citizens of the United States, it +must at the same time be admitted that it is an unlimited power. If +this subject is within the control of Congress, it must depend wholly +on its discretion. For, certainly, no limits of that discretion can be +found in the Constitution, which is wholly silent concerning it; and +the necessary consequence is, that the Federal Government may select +classes of persons within the several States who alone can be entitled +to the political privileges of citizenship of the United States. If +this power exists, what persons born within the States may be +President or Vice President of the United States, or members of +either House of Congress, or hold any office or enjoy any privilege +whereof citizenship of the United States is a necessary qualification, +must depend solely on the will of Congress. By virtue of it, though +Congress can grant no title of nobility, they may create an oligarchy, +in whose hands would be concentrated the entire power of the Federal +Government. + +It is a substantive power, distinct in its nature from all others; +capable of affecting not only the relations of the States to the +General Government, but of controlling the political condition of the +people of the United States. Certainly we ought to find this power +granted by the Constitution, at least by some necessary inference, +before we can say it does not remain to the States or the people. I +proceed therefore to examine all the provisions of the Constitution +which may have some bearing on this subject. + +Among the powers expressly granted to Congress is "the power to +establish a uniform rule of naturalization." It is not doubted that +this is a power to prescribe a rule for the removal of the +disabilities consequent on foreign birth. To hold that it extends +further than this, would do violence to the meaning of the term +naturalization, fixed in the common law, (Co. Lit., 8 a, 129 a; 2 +Ves., sen., 286; 2 Bl. Com., 293,) and in the minds of those who +concurred in framing and adopting the Constitution. It was in this +sense of conferring on an alien and his issue the rights and powers of +a native-born citizen, that it was employed in the Declaration of +Independence. It was in this sense it was expounded in the Federalist, +(No. 42,) has been understood by Congress, by the Judiciary, (2 +Wheat., 259, 269; 3 Wash. R., 313, 322; 12 Wheat., 277,) and by +commentators on the Constitution. (3 Story's Com. on Con., 1-3; 1 +Rawle on Con., 84-88; 1 Tucker's Bl. Com. App., 255-259.) + +It appears, then, that the only power expressly granted to Congress to +legislate concerning citizenship, is confined to the removal of the +disabilities of foreign birth. + +Whether there be anything in the Constitution from which a broader +power may be implied, will best be seen when we come to examine the +two other alternatives, which are, whether all free persons, born on +the soil of the several States, or only such of them as may be +citizens of each State, respectively, are thereby citizens of the +United States. The last of these alternatives, in my judgment, +contains the truth. + +Undoubtedly, as has already been said, it is a principle of public +law, recognised by the Constitution itself, that birth on the soil of +a country both creates the duties and confers the rights of +citizenship. But it must be remembered, that though the Constitution +was to form a Government, and under it the United States of America +were to be one united sovereign nation, to which loyalty and obedience +on the one side, and from which protection and privileges on the +other, would be due, yet the several sovereign States, whose people +were then citizens, were not only to continue in existence, but with +powers unimpaired, except so far as they were granted by the people to +the National Government. + +Among the powers unquestionably possessed by the several States, was +that of determining what persons should and what persons should not be +citizens. It was practicable to confer on the Government of the Union +this entire power. It embraced what may, well enough for the purpose +now in view, be divided into three parts. _First_: The power to remove +the disabilities of alienage, either by special acts in reference to +each individual case, or by establishing a rule of naturalization to +be administered and applied by the courts. _Second_: Determining what +persons should enjoy the privileges of citizenship, in respect to the +internal affairs of the several States. _Third_: What native-born +persons should be citizens of the United States. + +The first-named power, that of establishing a uniform rule of +naturalization, was granted; and here the grant, according to its +terms, stopped. Construing a Constitution containing only limited and +defined powers of government, the argument derived from this definite +and restricted power to establish a rule of naturalization, must be +admitted to be exceedingly strong. I do not say it is necessarily +decisive. It might be controlled by other parts of the Constitution. +But when this particular subject of citizenship was under +consideration, and, in the clause specially intended to define the +extent of power concerning it, we find a particular part of this +entire power separated from the residue, and conferred on the General +Government, there arises a strong presumption that this is all which +is granted, and that the residue is left to the States and to the +people. And this presumption is, in my opinion, converted into a +certainty, by an examination of all such other clauses of the +Constitution as touch this subject. + +I will examine each which can have any possible bearing on this +question. + +The first clause of the second section of the third article of the +Constitution is, "The judicial power shall extend to controversies +between a State and citizens of another State; between citizens of +different States; between citizens of the same State, claiming lands +under grants of different States; and between States, or the citizens +thereof, and foreign States, citizens, or subjects." I do not think +this clause has any considerable bearing upon the particular inquiry +now under consideration. Its purpose was, to extend the judicial power +to those controversies into which local feelings or interests might so +enter as to disturb the course of justice, or give rise to suspicions +that they had done so, and thus possibly give occasion to jealousy or +ill will between different States, or a particular State and a foreign +nation. At the same time, I would remark, in passing, that it has +never been held, I do not know that it has ever been supposed, that +any citizen of a State could bring himself under this clause and the +eleventh and twelfth sections of the judiciary act of 1789, passed in +pursuance of it, who was not a citizen of the United States. But I +have referred to the clause, only because it is one of the places +where citizenship is mentioned by the Constitution. Whether it is +entitled to any weight in this inquiry or not, it refers only to +citizenship of the several States; it recognises that; but it does not +recognise citizenship of the United States as something distinct +therefrom. + +As has been said, the purpose of this clause did not necessarily +connect it with citizenship of the United States, even if that were +something distinct from citizenship of the several States, in the +contemplation of the Constitution. This cannot be said of other +clauses of the Constitution, which I now proceed to refer to. + +"The citizens of each State shall be entitled to all the privileges +and immunities of citizens of the several States." Nowhere else in the +Constitution is there anything concerning a general citizenship; but +here, privileges and immunities to be enjoyed throughout the United +States, under and by force of the national compact, are granted and +secured. In selecting those who are to enjoy these national rights of +citizenship, how are they described? As citizens of each State. It is +to them these national rights are secured. The qualification for them +is not to be looked for in any provision of the Constitution or laws +of the United States. They are to be citizens of the several States, +and, as such, the privileges and immunities of general citizenship, +derived from and guarantied by the Constitution, are to be enjoyed by +them. It would seem that if it had been intended to constitute a class +of native-born persons within the States, who should derive their +citizenship of the United States from the action of the Federal +Government, this was an occasion for referring to them. It cannot be +supposed that it was the purpose of this article to confer the +privileges and immunities of citizens in all the States upon persons +not citizens of the United States. + +And if it was intended to secure these rights only to citizens of the +United States, how has the Constitution here described such persons? +Simply as citizens of each State. + +But, further: though, as I shall presently more fully state, I do not +think the enjoyment of the elective franchise essential to +citizenship, there can be no doubt it is one of the chiefest +attributes of citizenship under the American Constitutions; and the +just and constitutional possession of this right is decisive evidence +of citizenship. The provisions made by a Constitution on this subject +must therefore be looked to as bearing directly on the question what +persons are citizens under that Constitution; and as being decisive, +to this extent, that all such persons as are allowed by the +Constitution to exercise the elective franchise, and thus to +participate in the Government of the United States, must be deemed +citizens of the United States. + +Here, again, the consideration presses itself upon us, that if there +was designed to be a particular class of native-born persons within +the States, deriving their citizenship from the Constitution and laws +of the United States, they should at least have been referred to as +those by whom the President and House of Representatives were to be +elected, and to whom they should be responsible. + +Instead of that, we again find this subject referred to the laws of +the several States. The electors of President are to be appointed in +such manner as the Legislature of each State may direct, and the +qualifications of electors of members of the House of Representatives +shall be the same as for electors of the most numerous branch of the +State Legislature. + +Laying aside, then, the case of aliens, concerning which the +Constitution of the United States has provided, and confining our view +to free persons born within the several States, we find that the +Constitution has recognised the general principle of public law, that +allegiance and citizenship depend on the place of birth; that it has +not attempted practically to apply this principle by designating the +particular classes of persons who should or should not come under it; +that when we turn to the Constitution for an answer to the question, +what free persons, born within the several States, are citizens of the +United States, the only answer we can receive from any of its express +provisions is, the citizens of the several States are to enjoy the +privileges and immunities of citizens in every State, and their +franchise as electors under the Constitution depends on their +citizenship in the several States. Add to this, that the Constitution +was ordained by the citizens of the several States; that they were +"the people of the United States," for whom and whose posterity the +Government was declared in the preamble of the Constitution to be +made; that each of them was "a citizen of the United States at the +time of the adoption of the Constitution," within the meaning of those +words in that instrument; that by them the Government was to be and +was in fact organized; and that no power is conferred on the +Government of the Union to discriminate between them, or to +disfranchise any of them--the necessary conclusion is, that those +persons born within the several States, who, by force of their +respective Constitutions and laws, are citizens of the State, are +thereby citizens of the United States. + +It may be proper here to notice some supposed objections to this view +of the subject. + +It has been often asserted that the Constitution was made exclusively +by and for the white race. It has already been shown that in five of +the thirteen original States, colored persons then possessed the +elective franchise, and were among those by whom the Constitution was +ordained and established. If so, it is not true, in point of fact, +that the Constitution was made exclusively by the white race. And that +it was made exclusively for the white race is, in my opinion, not only +an assumption not warranted by anything in the Constitution, but +contradicted by its opening declaration, that it was ordained and +established, by the people of the United States, for themselves and +their posterity. And as free colored persons were then citizens of at +least five States, and so in every sense part of the people of the +United States, they were among those for whom and whose posterity the +Constitution was ordained and established. + +Again, it has been objected, that if the Constitution has left to the +several States the rightful power to determine who of their +inhabitants shall be citizens of the United States, the States may +make aliens citizens. + +The answer is obvious. The Constitution has left to the States the +determination what persons, born within their respective limits, shall +acquire by birth citizenship of the United States; it has not left to +them any power to prescribe any rule for the removal of the +disabilities of alienage. This power is exclusively in Congress. + +It has been further objected, that if free colored persons, born +within a particular State, and made citizens of that State by its +Constitution and laws, are thereby made citizens of the United States, +then, under the second section of the fourth article of the +Constitution, such persons would be entitled to all the privileges and +immunities of citizens in the several States; and if so, then colored +persons could vote, and be eligible to not only Federal offices, but +offices even in those States whose Constitutions and laws disqualify +colored persons from voting or being elected to office. + +But this position rests upon an assumption which I deem untenable. Its +basis is, that no one can be deemed a citizen of the United States who +is not entitled to enjoy all the privileges and franchises which are +conferred on any citizen. (See 1 Lit. Kentucky R., 326.) That this is +not true, under the Constitution of the United States, seems to me +clear. + +A naturalized citizen cannot be President of the United States, nor a +Senator till after the lapse of nine years, nor a Representative till +after the lapse of seven years, from his naturalization. Yet, as soon +as naturalized, he is certainly a citizen of the United States. Nor is +any inhabitant of the District of Columbia, or of either of the +Territories, eligible to the office of Senator or Representative in +Congress, though they may be citizens of the United States. So, in all +the States, numerous persons, though citizens, cannot vote, or cannot +hold office, either on account of their age, or sex, or the want of +the necessary legal qualifications. The truth is, that citizenship, +under the Constitution of the United States, is not dependent on the +possession of any particular political or even of all civil rights; +and any attempt so to define it must lead to error. To what citizens +the elective franchise shall be confided, is a question to be +determined by each State, in accordance with its own views of the +necessities or expediencies of its condition. What civil rights shall +be enjoyed by its citizens, and whether all shall enjoy the same, or +how they may be gained or lost, are to be determined in the same way. + +One may confine the right of suffrage to white male citizens; another +may extend it to colored persons and females; one may allow all +persons above a prescribed age to convey property and transact +business; another may exclude married women. But whether native-born +women, or persons under age, or under guardianship because insane or +spendthrifts, be excluded from voting or holding office, or allowed to +do so, I apprehend no one will deny that they are citizens of the +United States. Besides, this clause of the Constitution does not +confer on the citizens of one State, in all other States, specific and +enumerated privileges and immunities. They are entitled to such as +belong to citizenship, but not to such as belong to particular +citizens attended by other qualifications. Privileges and immunities +which belong to certain citizens of a State, by reason of the +operation of causes other than mere citizenship, are not conferred. +Thus, if the laws of a State require, in addition to citizenship of +the State, some qualification for office, or the exercise of the +elective franchise, citizens of all other States, coming thither to +reside, and not possessing those qualifications, cannot enjoy those +privileges, not because they are not to be deemed entitled to the +privileges of citizens of the State in which they reside, but because +they, in common with the native-born citizens of that State, must have +the qualifications prescribed by law for the enjoyment of such +privileges, under its Constitution and laws. It rests with the States +themselves so to frame their Constitutions and laws as not to attach a +particular privilege or immunity to mere naked citizenship. If one of +the States will not deny to any of its own citizens a particular +privilege or immunity, if it confer it on all of them by reason of +mere naked citizenship, then it may be claimed by every citizen of +each State by force of the Constitution; and it must be borne in mind, +that the difficulties which attend the allowance of the claims of +colored persons to be citizens of the United States are not avoided by +saying that, though each State may make them its citizens, they are +not thereby made citizens of the United States, because the privileges +of general citizenship are secured to the citizens of each State. The +language of the Constitution is, "The citizens of each State shall be +entitled to all privileges and immunities of citizens in the several +States." If each State may make such persons its citizens, they +become, as such, entitled to the benefits of this article, if there be +a native-born citizenship of the United States distinct from a +native-born citizenship of the several States. + +There is one view of this article entitled to consideration in this +connection. It is manifestly copied from the fourth of the Articles of +Confederation, with only slight changes of phraseology, which render +its meaning more precise, and dropping the clause which excluded +paupers, vagabonds, and fugitives from justice, probably because these +cases could be dealt with under the police powers of the States, and a +special provision therefor was not necessary. It has been suggested, +that in adopting it into the Constitution, the words "free +inhabitants" were changed for the word "citizens." An examination of +the forms of expression commonly used in the State papers of that day, +and an attention to the substance of this article of the +Confederation, will show that the words "free inhabitants," as then +used, were synonymous with citizens. When the Articles of +Confederation were adopted, we were in the midst of the war of the +Revolution, and there were very few persons then embraced in the words +"free inhabitants," who were not born on our soil. It was not a time +when many, save the children of the soil, were willing to embark +their fortunes in our cause; and though there might be an inaccuracy +in the uses of words to call free inhabitants citizens, it was then a +technical rather than a substantial difference. If we look into the +Constitutions and State papers of that period, we find the inhabitants +or people of these colonies, or the inhabitants of this State, or +Commonwealth, employed to designate those whom we should now +denominate citizens. The substance and purpose of the article prove it +was in this sense it used these words: it secures to the free +inhabitants of each State the privileges and immunities of free +citizens in every State. It is not conceivable that the States should +have agreed to extend the privileges of citizenship to persons not +entitled to enjoy the privileges of citizens in the States where they +dwelt; that under this article there was a class of persons in some of +the States, not citizens, to whom were secured all the privileges and +immunities of citizens when they went into other States; and the just +conclusion is, that though the Constitution cured an inaccuracy of +language, it left the substance of this article in the National +Constitution the same as it was in the Articles of Confederation. + +The history of this fourth article, respecting the attempt to exclude +free persons of color from its operation, has been already stated. It +is reasonable to conclude that this history was known to those who +framed and adopted the Constitution. That under this fourth article of +the Confederation, free persons of color might be entitled to the +privileges of general citizenship, if otherwise entitled thereto, is +clear. When this article was, in substance, placed in and made part of +the Constitution of the United States, with no change in its language +calculated to exclude free colored persons from the benefit of its +provisions, the presumption is, to say the least, strong, that the +practical effect which it was designed to have, and did have, under +the former Government, it was designed to have, and should have, under +the new Government. + +It may be further objected, that if free colored persons may be +citizens of the United States, it depends only on the will of a master +whether he will emancipate his slave, and thereby make him a citizen. +Not so. The master is subject to the will of the State. Whether he +shall be allowed to emancipate his slave at all; if so, on what +conditions; and what is to be the political _status_ of the freed man, +depend, not on the will of the master, but on the will of the State, +upon which the political _status_ of all its native-born inhabitants +depends. Under the Constitution of the United States, each State has +retained this power of determining the political _status_ of its +native-born inhabitants, and no exception thereto can be found in the +Constitution. And if a master in a slaveholding State should carry his +slave into a free State, and there emancipate him, he would not +thereby make him a native-born citizen of that State, and consequently +no privileges could be claimed by such emancipated slave as a citizen +of the United States. For, whatever powers the States may exercise to +confer privileges of citizenship on persons not born on their soil, +the Constitution of the United States does not recognise such +citizens. As has already been said, it recognises the great principle +of public law, that allegiance and citizenship spring from the place +of birth. It leaves to the States the application of that principle to +individual cases. It secured to the citizens of each State the +privileges and immunities of citizens in every other State. But it +does not allow to the States the power to make aliens citizens, or +permit one State to take persons born on the soil of another State, +and, contrary to the laws and policy of the State where they were +born, make them its citizens, and so citizens of the United States. No +such deviation from the great rule of public law was contemplated by +the Constitution; and when any such attempt shall be actually made, it +is to be met by applying to it those rules of law and those principles +of good faith which will be sufficient to decide it, and not, in my +judgment, by denying that all the free native-born inhabitants of a +State, who are its citizens under its Constitution and laws, are also +citizens of the United States. + +It has sometimes been urged that colored persons are shown not to be +citizens of the United States by the fact that the naturalization laws +apply only to white persons. But whether a person born in the United +States be or be not a citizen, cannot depend on laws which refer only +to aliens, and do not affect the _status_ of persons born in the +United States. The utmost effect which can be attributed to them is, +to show that Congress has not deemed it expedient generally to apply +the rule to colored aliens. That they might do so, if thought fit, is +clear. The Constitution has not excluded them. And since that has +conferred the power on Congress to naturalize colored aliens, it +certainly shows color is not a necessary qualification for citizenship +under the Constitution of the United States. It may be added, that the +power to make colored persons citizens of the United States, under the +Constitution, has been actually exercised in repeated and important +instances. (See the Treaties with the Choctaws, of September 27, 1830, +art. 14; with the Cherokees, of May 23, 1836, art. 12; Treaty of +Guadalupe Hidalgo, February 2, 1848, art. 8.) + +I do not deem it necessary to review at length the legislation of +Congress having more or less bearing on the citizenship of colored +persons. It does not seem to me to have any considerable tendency to +prove that it has been considered by the legislative department of the +Government, that no such persons are citizens of the United States. +Undoubtedly they have been debarred from the exercise of particular +rights or privileges extended to white persons, but, I believe, always +in terms which, by implication, admit they may be citizens. Thus the +act of May 17, 1792, for the organization of the militia, directs the +enrollment of "every free, able-bodied, white male citizen." An +assumption that none but white persons are citizens, would be as +inconsistent with the just import of this language, as that all +citizens are able-bodied, or males. + +So the act of February 28, 1803, (2 Stat. at Large, 205,) to prevent +the importation of certain persons into States, when by the laws +thereof their admission is prohibited, in its first section forbids +all masters of vessels to import or bring "any negro, mulatto, or +other person of color, not being a native, _a citizen_, or registered +seaman of the United States," &c. + +The acts of March 3, 1813, section 1, (2 Stat. at Large, 809,) and +March 1, 1817, section 3, (3 Stat. at Large, 351,) concerning seamen, +certainly imply there may be persons of color, natives of the United +States, who are not citizens of the United States. This implication is +undoubtedly in accordance with the fact. For not only slaves, but free +persons of color, born in some of the States, are not citizens. But +there is nothing in these laws inconsistent with the citizenship of +persons of color in others of the States, nor with their being +citizens of the United States. + +Whether much or little weight should be attached to the particular +phraseology of these and other laws, which were not passed with any +direct reference to this subject, I consider their tendency to be, as +already indicated, to show that, in the apprehension of their framers, +color was not a necessary qualification of citizenship. It would be +strange, if laws were found on our statute book to that effect, when, +by solemn treaties, large bodies of Mexican and North American Indians +as well as free colored inhabitants of Louisiana have been admitted to +citizenship of the United States. + +In the legislative debates which preceded the admission of the State +of Missouri into the Union, this question was agitated. Its result is +found in the resolution of Congress, of March 5, 1821, for the +admission of that State into the Union. The Constitution of Missouri, +under which that State applied for admission into the Union, provided, +that it should be the duty of the Legislature "to pass laws to +prevent free negroes and mulattoes from coming to and settling in the +State, under any pretext whatever." One ground of objection to the +admission of the State under this Constitution was, that it would +require the Legislature to exclude free persons of color, who would be +entitled, under the second section of the fourth article of the +Constitution, not only to come within the State, but to enjoy there +the privileges and immunities of citizens. The resolution of Congress +admitting the State was upon the fundamental condition, "that the +Constitution of Missouri shall never be construed to authorize the +passage of any law, and that no law shall be passed in conformity +thereto, by which any citizen of either of the States of this Union +shall be excluded from the enjoyment of any of the privileges and +immunities to which such citizen is entitled under the Constitution of +the United States." It is true, that neither this legislative +declaration, nor anything in the Constitution or laws of Missouri, +could confer or take away any privilege or immunity granted by the +Constitution. But it is also true, that it expresses the then +conviction of the legislative power of the United States, that free +negroes, as citizens of some of the States, might be entitled to the +privileges and immunities of citizens in all the States. + +The conclusions at which I have arrived on this part of the case are: + +_First._ That the free native-born citizens of each State are citizens +of the United States. + +_Second._ That as free colored persons born within some of the States +are citizens of those States, such persons are also citizens of the +United States. + +_Third._ That every such citizen, residing in any State, has the right +to sue and is liable to be sued in the Federal courts, as a citizen of +that State in which he resides. + +_Fourth._ That as the plea to the jurisdiction in this case shows no +facts, except that the plaintiff was of African descent, and his +ancestors were sold as slaves, and as these facts are not inconsistent +with his citizenship of the United States, and his residence in the +State of Missouri, the plea to the jurisdiction was bad, and the +judgment of the Circuit Court overruling it was correct. + +I dissent, therefore, from that part of the opinion of the majority of +the court, in which it is held that a person of African descent cannot +be a citizen of the United States; and I regret I must go further, and +dissent both from what I deem their assumption of authority to examine +the constitutionality of the act of Congress commonly called the +Missouri compromise act, and the grounds and conclusions announced in +their opinion. + +Having first decided that they were bound to consider the sufficiency +of the plea to the jurisdiction of the Circuit Court, and having +decided that this plea showed that the Circuit Court had not +jurisdiction, and consequently that this is a case to which the +judicial power of the United States does not extend, they have gone on +to examine the merits of the case as they appeared on the trial before +the court and jury, on the issues joined on the pleas in bar, and so +have reached the question of the power of Congress to pass the act of +1820. On so grave a subject as this, I feel obliged to say that, in my +opinion, such an exertion of judicial power transcends the limits of +the authority of the court, as described by its repeated decisions, +and, as I understand, acknowledged in this opinion of the majority of +the court. + +In the course of that opinion, it became necessary to comment on the +case of Legrand _v._ Darnall, (reported in 2 Peters's R., 664.) In +that case, a bill was filed, by one alleged to be a citizen of +Maryland, against one alleged to be a citizen of Pennsylvania. The +bill stated that the defendant was the son of a white man by one of +his slaves; and that the defendant's father devised to him certain +lands, the title to which was put in controversy by the bill. These +facts were admitted in the answer, and upon these and other facts the +court made its decree, founded on the principle that a devise of land +by a master to a slave was by implication also a bequest of his +freedom. The facts that the defendant was of African descent, and was +born a slave, were not only before the court, but entered into the +entire substance of its inquiries. The opinion of the majority of my +brethren in this case disposes of the case of Legrand _v._ Darnall, by +saying, among other things, that as the fact that the defendant was +born a slave only came before this court on the bill and answer, it +was then too late to raise the question of the personal disability of +the party, and therefore that decision is altogether inapplicable in +this case. + +In this I concur. Since the decision of this court in Livingston _v._ +Story, (11 Pet., 351,) the law has been settled, that when the +declaration or bill contains the necessary averments of citizenship, +this court cannot look at the record, to see whether those averments +are true, except so far as they are put in issue by a plea to the +jurisdiction. In that case, the defendant denied by his answer that +Mr. Livingston was a citizen of New York, as he had alleged in the +bill. Both parties went into proofs. The court refused to examine +those proofs, with reference to the personal disability of the +plaintiff. This is the settled law of the court, affirmed so lately +as Shepherd _v._ Graves, (14 How., 27,) and Wickliff _v._ Owings, (17 +How., 51.) (See also De Wolf _v._ Rabaud, 1 Pet., 476.) But I do not +understand this to be a rule which the court may depart from at its +pleasure. If it be a rule, it is as binding on the court as on the +suitors. If it removes from the latter the power to take any objection +to the personal disability of a party alleged by the record to be +competent, which is not shown by a plea to the jurisdiction, it is +because the court are forbidden by law to consider and decide on +objections so taken. I do not consider it to be within the scope of +the judicial power of the majority of the court to pass upon any +question respecting the plaintiff's citizenship in Missouri, save that +raised by the plea to the jurisdiction; and I do not hold any opinion +of this court, or any court, binding, when expressed on a question not +legitimately before it. (Carroll _v._ Carroll, 16 How., 275.) The +judgment of this court is, that the case is to be dismissed for want +of jurisdiction, because the plaintiff was not a citizen of Missouri, +as he alleged in his declaration. Into that judgment, according to the +settled course of this court, nothing appearing after a plea to the +merits can enter. A great question of constitutional law, deeply +affecting the peace and welfare of the country, is not, in my opinion, +a fit subject to be thus reached. + +But as, in my opinion, the Circuit Court had jurisdiction, I am +obliged to consider the question whether its judgment on the merits of +the case should stand or be reversed. + +The residence of the plaintiff in the State of Illinois, and the +residence of himself and his wife in the territory acquired from +France lying north of latitude thirty-six degrees thirty minutes, and +north of the State of Missouri, are each relied on by the plaintiff in +error. As the residence in the territory affects the plaintiff's wife +and children as well as himself, I must inquire what was its effect. + +The general question may be stated to be, whether the plaintiff's +_status_, as a slave, was so changed by his residence within that +territory, that he was not a slave in the State of Missouri, at the +time this action was brought. + +In such cases, two inquiries arise, which may be confounded, but +should be kept distinct. + +The first is, what was the law of the Territory into which the master +and slave went, respecting the relation between them? + +The second is, whether the State of Missouri recognises and allows the +effect of that law of the Territory, on the _status_ of the slave, on +his return within its jurisdiction. + +As to the first of these questions, the will of States and nations, +by whose municipal law slavery is not recognised, has been manifested +in three different ways. + +One is, absolutely to dissolve the relation, and terminate the rights +of the master existing under the law of the country whence the parties +came. This is said by Lord Stowell, in the case of the slave Grace, (2 +Hag. Ad. R., 94,) and by the Supreme Court of Louisiana in the case of +Maria [Transcriber's Note: Marie] Louise _v._ Marot, (9 Louis. R., +473,) to be the law of France; and it has been the law of several +States of this Union, in respect to slaves introduced under certain +conditions. (Wilson _v._ Isabel, 5 Call's R., 430; Hunter _v._ Hulcher +[Transcriber's Note: Fulcher], 1 Leigh, 172; Stewart _v._ Oaks, 5 Har. +and John., 107.) + +The second is, where the municipal law of a country not recognising +slavery, it is the will of the State to refuse the master all aid to +exercise any control over his slave; and if he attempt to do so, in a +manner justifiable only by that relation, to prevent the exercise of +that control. But no law exists, designed to operate directly on the +relation of master and slave, and put an end to that relation. This is +said by Lord Stowell, in the case above mentioned, to be the law of +England, and by Mr. Chief Justice Shaw, in the case of the +Commonwealth _v._ Aves, (18 Pick., 193,) to be the law of +Massachusetts. + +The third is, to make a distinction between the case of a master and +his slave only temporarily in the country, _animo non manendi_, and +those who are there to reside for permanent or indefinite purposes. +This is said by Mr. Wheaton to be the law of Prussia, and was formerly +the statute law of several States of our Union. It is necessary in +this case to keep in view this distinction between those countries +whose laws are designed to act directly on the _status_ of a slave, +and make him a freeman, and those where his master can obtain no aid +from the laws to enforce his rights. + +It is to the last case only that the authorities, out of Missouri, +relied on by defendant, apply, when the residence in the +non-slaveholding Territory was permanent. In the Commonwealth _v._ +Aves, (18 Pick., 218,) Mr. Chief Justice Shaw said: "From the +principle above stated, on which a slave brought here becomes free, to +wit: that he becomes entitled to the protection of our laws, it would +seem to follow, as a necessary conclusion, that if the slave waives +the protection of those laws, and returns to the State where he is +held as a slave, his condition is not changed." It was upon this +ground, as is apparent from his whole reasoning, that Sir William +Scott rests his opinion in the case of the slave Grace. To use one of +his expressions, the effect of the law of England was to put the +liberty of the slave into a parenthesis. If there had been an act of +Parliament declaring that a slave coming to England with his master +should thereby be deemed no longer to be a slave, it is easy to see +that the learned judge could not have arrived at the same conclusion. +This distinction is very clearly stated and shown by President Tucker, +in his opinion in the case of Betty _v._ Horton, (5 Leigh's Virginia +R., 615.) (See also Hunter _v._ Fletcher [Transcriber's Note: +Fulcher], 1 Leigh's Va. R., 172; Maria [Transcriber's Note: Marie] +Louise _v._ Marot, 9 Louisiana R. [Transcriber's Note: at 473]; Smith +_v._ Smith, 13 Ib., 441; Thomas _v._ Genevieve, 16 Ib., 483; Rankin +_v._ Lydia, 2 A.K. Marshall, 467; Davies _v._ Tingle, 8 B. Munroe, +539; Griffeth [Transcriber's Note: Griffith] _v._ Fanny, Gilm. Va. R., +143; Lumford _v._ Coquillon, 14 Martin's La. R., 405; Josephine _v._ +Poultney, 1 Louis. Ann. R., 329.) + +But if the acts of Congress on this subject are valid, the law of the +Territory of Wisconsin, within whose limits the residence of the +plaintiff and his wife, and their marriage and the birth of one or +both of their children, took place, falls under the first category, +and is a law operating directly on the _status_ of the slave. By the +eighth section of the act of March 6, 1820, (3 Stat. at Large, 548,) +it was enacted that, within this Territory, "slavery and involuntary +servitude, otherwise than in the punishment of crimes, whereof the +parties shall have been duly convicted, shall be, and is hereby, +forever prohibited: _Provided, always_, that any person escaping into +the same, from whom labor or service is lawfully claimed in any State +or Territory of the United States, such fugitive may be lawfully +reclaimed, and conveyed to the person claiming his or her labor or +service, as aforesaid." + +By the act of April 20, 1836, (4 Stat. at Large, 10,) passed in the +same month and year of the removal of the plaintiff to Fort Snelling, +this part of the territory ceded by France, where Fort Snelling is, +together with so much of the territory of the United States east of +the Mississippi as now constitutes the State of Wisconsin, was brought +under a Territorial Government, under the name of the Territory of +Wisconsin. By the eighteenth section of this act, it was enacted, +"That the inhabitants of this Territory shall be entitled to and enjoy +all and singular the rights, privileges, and advantages, granted and +secured to the people of the Territory of the United States northwest +of the river Ohio, by the articles of compact contained in the +ordinance for the government of said Territory, passed on the 13th day +of July, 1787; and shall be subject to all the restrictions and +prohibitions in said articles of compact imposed upon the people of +the said Territory." The sixth article of that compact is, "there +shall be neither slavery nor involuntary servitude in the said +Territory, otherwise than in the punishment of crimes, whereof the +party shall have been duly convicted. _Provided, always_, that any +person escaping into the same, from whom labor or service is lawfully +claimed in any one of the original States, such fugitive may be +lawfully reclaimed, and conveyed to the person claiming his or her +labor or service, as aforesaid." By other provisions of this act +establishing the Territory of Wisconsin, the laws of the United +States, and the then existing laws of the State of Michigan, are +extended over the Territory; the latter being subject to alteration +and repeal by the legislative power of the Territory created by the +act. + +Fort Snelling was within the Territory of Wisconsin, and these laws +were extended over it. The Indian title to that site for a military +post had been acquired from the Sioux nation as early as September 23, +1805, (Am. State Papers, Indian Affairs, vol. 1, p. 744,) and until +the erection of the Territorial Government, the persons at that post +were governed by the rules and articles of war, and such laws of the +United States, including the eighth section of the act of March 6, +1820, prohibiting slavery, as were applicable to their condition; but +after the erection of the Territory, and the extension of the laws of +the United States and the laws of Michigan over the whole of the +Territory, including this military post, the persons residing there +were under the dominion of those laws in all particulars to which the +rules and articles of war did not apply. + +It thus appears that, by these acts of Congress, not only was a +general system of municipal law borrowed from the State of Michigan, +which did not tolerate slavery, but it was positively enacted that +slavery and involuntary servitude, with only one exception, +specifically described, should not exist there. It is not simply that +slavery is not recognised and cannot be aided by the municipal law. It +is recognised for the purpose of being absolutely prohibited, and +declared incapable of existing within the Territory, save in the +instance of a fugitive slave. + +It would not be easy for the Legislature to employ more explicit +language to signify its will that the _status_ of slavery should not +exist within the Territory, than the words found in the act of 1820, +and in the ordinance of 1787; and if any doubt could exist concerning +their application to cases of masters coming into the Territory with +their slaves to reside, that doubt must yield to the inference +required by the words of exception. That exception is, of cases of +fugitive slaves. An exception from a prohibition marks the extent of +the prohibition; for it would be absurd, as well as useless, to except +from a prohibition a case not contained within it. (9 Wheat., 200.) I +must conclude, therefore, that it was the will of Congress that the +state of involuntary servitude of a slave, coming into the Territory +with his master, should cease to exist. The Supreme Court of Missouri +so held in Rachel _v._ Walker, (4 Misso. R., 350,) which was the case +of a military officer going into the Territory with two slaves. + +But it is a distinct question, whether the law of Missouri recognised +and allowed effect to the change wrought in the _status_ of the +plaintiff, by force of the laws of the Territory of Wisconsin. + +I say the law of Missouri, because a judicial tribunal, in one State +or nation, can recognise personal rights acquired by force of the law +of any other State or nation, only so far as it is the law of the +former State that those rights should be recognised. But, in the +absence of positive law to the contrary, the will of every civilized +State must be presumed to be to allow such effect to foreign laws as +is in accordance with the settled rules of international law. And +legal tribunals are bound to act on this presumption. It may be +assumed that the motive of the State in allowing such operation to +foreign laws is what has been termed comity. But, as has justly been +said, (per Chief Justice Taney, 13 Pet., 589,) it is the comity of the +State, not of the court. The judges have nothing to do with the motive +of the State. Their duty is simply to ascertain and give effect to its +will. And when it is found by them that its will to depart from a rule +of international law has not been manifested by the State, they are +bound to assume that its will is to give effect to it. Undoubtedly, +every sovereign State may refuse to recognise a change, wrought by the +law of a foreign State, on the _status_ of a person, while within such +foreign State, even in cases where the rules of international law +require that recognition. Its will to refuse such recognition may be +manifested by what we term statute law, or by the customary law of the +State. It is within the province of its judicial tribunals to inquire +and adjudge whether it appears, from the statute or customary law of +the State, to be the will of the State to refuse to recognise such +changes of _status_ by force of foreign law, as the rules of the law +of nations require to be recognised. But, in my opinion, it is not +within the province of any judicial tribunal to refuse such +recognition from any political considerations, or any view it may take +of the exterior political relations between the State and one or more +foreign States, or any impressions it may have that a change of +foreign opinion and action on the subject of slavery may afford a +reason why the State should change its own action. To understand and +give just effect to such considerations, and to change the action of +the State in consequence of them, are functions of diplomatists and +legislators, not of judges. + +The inquiry to be made on this part of the case is, therefore, whether +the State of Missouri has, by its statute, or its customary law, +manifested its will to displace any rule of international law, +applicable to a change of the _status_ of a slave, by foreign law. + +I have not heard it suggested that there was any statute of the State +of Missouri bearing on this question. The customary law of Missouri is +the common law, introduced by statute in 1816. (1 Ter. Laws, 436.) And +the common law, as Blackstone says, (4 Com., 67,) adopts, in its full +extent, the law of nations, and holds it to be a part of the law of +the land. + +I know of no sufficient warrant for declaring that any rule of +international law, concerning the recognition, in that State, of a +change of _status_, wrought by an extra-territorial law, has been +displaced or varied by the will of the State of Missouri. + +I proceed then to inquire what the rules of international law +prescribe concerning the change of _status_ of the plaintiff wrought +by the law of the Territory of Wisconsin. + +It is generally agreed by writers upon international law, and the rule +has been judicially applied in a great number of cases that wherever +any question may arise concerning the _status_ of a person, it must be +determined according to that law which has next previously rightfully +operated on and fixed that _status_. And, further, that the laws of a +country do not rightfully operate upon and fix the _status_ of persons +who are within its limits _in itinere_, or who are abiding there for +definite temporary purposes, as for health, curiosity, or occasional +business; that these laws, known to writers on public and private +international law as personal statutes, operate only on the +inhabitants of the country. Not that it is or can be denied that each +independent nation may, if it thinks fit, apply them to all persons +within their limits. But when this is done, not in conformity with the +principles of international law, other States are not understood to be +willing to recognise or allow effect to such applications of personal +statutes. + +It becomes necessary, therefore, to inquire whether the operation of +the laws of the Territory of Wisconsin upon the _status_ of the +plaintiff was or was not such an operation as these principles of +international law require other States to recognise and allow effect +to. + +And this renders it needful to attend to the particular facts and +circumstances of this case. + +It appears that this case came on for trial before the Circuit Court +and a jury, upon an issue, in substance, whether the plaintiff, +together with his wife and children, were the slaves of the defendant. + +The court instructed the jury that, "upon the facts in this case, the +law is with the defendant." This withdrew from the jury the +consideration and decision of every matter of fact. The evidence in +the case consisted of written admissions, signed by the counsel of the +parties. If the case had been submitted to the judgment of the court, +upon an agreed statement of facts, entered of record, in place of a +special verdict, it would have been necessary for the court below, and +for this court, to pronounce its judgment solely on those facts, thus +agreed, without inferring any other facts therefrom. By the rules of +the common law applicable to such a case, and by force of the seventh +article of the amendments of the Constitution, this court is precluded +from finding any fact not agreed to by the parties on the record. No +submission to the court on a statement of facts was made. It was a +trial by jury, in which certain admissions, made by the parties, were +the evidence. The jury were not only competent, but were bound to draw +from that evidence every inference which, in their judgment, exercised +according to the rules of law, it would warrant. The Circuit Court +took from the jury the power to draw any inferences from the +admissions made by the parties, and decided the case for the +defendant. This course can be justified here, if at all, only by its +appearing that upon the facts agreed, and all such inferences of fact +favorable to the plaintiff's case, as the jury might have been +warranted in drawing from those admissions, the law was with the +defendant. Otherwise, the plaintiff would be deprived of the benefit +of his trial by jury, by whom, for aught we can know, those inferences +favorable to his case would have been drawn. + +The material facts agreed, bearing on this part of the case, are, that +Dr. Emerson, the plaintiff's master, resided about two years at the +military post of Fort Snelling, being a surgeon in the army of the +United States, his domicil of origin being unknown; and what, if +anything, he had done, to preserve or change his domicil prior to his +residence at Rock Island, being also unknown. + +Now, it is true, that under some circumstances the residence of a +military officer at a particular place, in the discharge of his +official duties, does not amount to the acquisition of a technical +domicil. But it cannot be affirmed, with correctness, that it never +does. There being actual residence, and this being presumptive +evidence of domicil, all the circumstances of the case must be +considered, before a legal conclusion can be reached, that his place +of residence is not his domicil. If a military officer stationed at a +particular post should entertain an expectation that his residence +there would be indefinitely protracted, and in consequence should +remove his family to the place where his duties were to be discharged, +form a permanent domestic establishment there, exercise there the +civil rights and discharge the civil duties of an inhabitant, while he +did no act and manifested no intent to have a domicil elsewhere, I +think no one would say that the mere fact that he was himself liable +to be called away by the orders of the Government would prevent his +acquisition of a technical domicil at the place of the residence of +himself and his family. In other words, I do not think a military +officer incapable of acquiring a domicil. (Bruce _v._ Bruce, 2 Bos. +and Pul., 230; Munroe _v._ Douglass, 5 Mad. Ch. R., 232.) This being +so, this case stands thus: there was evidence before the jury that +Emerson resided about two years at Fort Snelling, in the Territory of +Wisconsin. This may or may not have been with such intent as to make +it his technical domicil. The presumption is that it was. It is so +laid down by this court, in Ennis _v._ Smith, (14 How.,) and the +authorities in support of the position are there referred to. His +intent was a question of fact for the jury. (Fitchburg _v._ +Winchendon, 4 Cush., 190.) + +The case was taken from the jury. If they had power to find that the +presumption of the necessary intent had not been rebutted, we cannot +say, on this record, that Emerson had not his technical domicil at +Fort Snelling. But, for reasons which I shall now proceed to give, I +do not deem it necessary in this case to determine the question of the +technical domicil of Dr. Emerson. + +It must be admitted that the inquiry whether the law of a particular +country has rightfully fixed the _status_ of a person, so that in +accordance with the principles of international law that _status_ +should be recognised in other jurisdictions, ordinarily depends on the +question whether the person was domiciled in the country whose laws +are asserted to have fixed his _status_. But, in the United States, +questions of this kind may arise, where an attempt to decide solely +with reference to technical domicil, tested by the rules which are +applicable to changes of places of abode from one country to another, +would not be consistent with sound principles. And, in my judgment, +this is one of those cases. + +The residence of the plaintiff, who was taken by his master, Dr. +Emerson, as a slave, from Missouri to the State of Illinois, and +thence to the Territory of Wisconsin, must be deemed to have been for +the time being, and until he asserted his own separate intention, the +same as the residence of his master; and the inquiry, whether the +personal statutes of the Territory were rightfully extended over the +plaintiff, and ought, in accordance with the rules of international +law, to be allowed to fix his _status_, must depend upon the +circumstances under which Dr. Emerson went into that Territory, and +remained there; and upon the further question, whether anything was +there rightfully done by the plaintiff to cause those personal +statutes to operate on him. + +Dr. Emerson was an officer in the army of the United States. He went +into the Territory to discharge his duty to the United States. The +place was out of the jurisdiction of any particular State, and within +the exclusive jurisdiction of the United States. It does not appear +where the domicil of origin of Dr. Emerson was, nor whether or not he +had lost it, and gained another domicil, nor of what particular State, +if any, he was a citizen. + +On what ground can it be denied that all valid laws of the United +States, constitutionally enacted by Congress for the government of the +Territory, rightfully extended over an officer of the United States +and his servant who went into the Territory to remain there for an +indefinite length of time, to take part in its civil or military +affairs? They were not foreigners, coming from abroad. Dr. Emerson was +a citizen of the country which had exclusive jurisdiction over the +Territory; and not only a citizen, but he went there in a public +capacity, in the service of the same sovereignty which made the laws. +Whatever those laws might be, whether of the kind denominated personal +statutes, or not, so far as they were intended by the legislative +will, constitutionally expressed, to operate on him and his servant, +and on the relations between them, they had a rightful operation, and +no other State or country can refuse to allow that those laws might +rightfully operate on the plaintiff and his servant, because such a +refusal would be a denial that the United States could, by laws +constitutionally enacted, govern their own servants, residing on their +own Territory, over which the United States had the exclusive control, +and in respect to which they are an independent sovereign power. +Whether the laws now in question were constitutionally enacted, I +repeat once more, is a separate question. But, assuming that they +were, and that they operated directly on the _status_ of the +plaintiff, I consider that no other State or country could question +the rightful power of the United States so to legislate, or, +consistently with the settled rules of international law, could refuse +to recognise the effects of such legislation upon the _status_ of +their officers and servants, as valid everywhere. + +This alone would, in my apprehension, be sufficient to decide this +question. + +But there are other facts stated on the record which should not be +passed over. It is agreed that, in the year 1836, the plaintiff, while +residing in the Territory, was married, with the consent of Dr. +Emerson, to Harriet, named in the declaration as his wife, and that +Eliza and Lizzie were the children of that marriage, the first named +having been born on the Mississippi river, north of the line of +Missouri, and the other having been born after their return to +Missouri. And the inquiry is, whether, after the marriage of the +plaintiff in the Territory, with the consent of Dr. Emerson, any other +State or country can, consistently with the settled rules of +international law, refuse to recognise and treat him as a free man, +when suing for the liberty of himself, his wife, and the children of +that marriage. It is in reference to his _status_, as viewed in other +States and countries, that the contract of marriage and the birth of +children becomes strictly material. At the same time, it is proper to +observe that the female to whom he was married having been taken to +the same military post of Fort Snelling as a slave, and Dr. Emerson +claiming also to be her master at the time of her marriage, her +_status_, and that of the children of the marriage, are also affected +by the same considerations. + +If the laws of Congress governing the Territory of Wisconsin were +constitutional and valid laws, there can be no doubt these parties +were capable of contracting a lawful marriage, attended with all the +usual civil rights and obligations of that condition. In that +Territory they were absolutely free persons, having full capacity to +enter into the civil contract of marriage. + +It is a principle of international law, settled beyond controversy in +England and America, that a marriage, valid by the law of the place +where it was contracted, and not in fraud of the law of any other +place, is valid everywhere; and that no technical domicil at the place +of the contract is necessary to make it so. (See Bishop on Mar. and +Div., 125-129, where the cases are collected.) + +If, in Missouri, the plaintiff were held to be a slave, the validity +and operation of his contract of marriage must be denied. He can have +no legal rights; of course, not those of a husband and father. And the +same is true of his wife and children. The denial of his rights is the +denial of theirs. So that, though lawfully married in the Territory, +when they came out of it, into the State of Missouri, they were no +longer husband and wife; and a child of that lawful marriage, though +born under the same dominion where its parents contracted a lawful +marriage, is not the fruit of that marriage, nor the child of its +father, but subject to the maxim, _partus sequitur ventrem_. + +It must be borne in mind that in this case there is no ground for the +inquiry, whether it be the will of the State of Missouri not to +recognise the validity of the marriage of a fugitive slave, who +escapes into a State or country where slavery is not allowed, and +there contracts a marriage; or the validity of such a marriage, where +the master, being a citizen of the State of Missouri, voluntarily goes +with his slave, _in itinere_, into a State or country which does not +permit slavery to exist, and the slave there contracts marriage +without the consent of his master; for in this case, it is agreed, Dr. +Emerson did consent; and no further question can arise concerning his +rights, so far as their assertion is inconsistent with the validity of +the marriage. Nor do I know of any ground for the assertion that this +marriage was in fraud of any law of Missouri. It has been held by this +court, that a bequest of property by a master to his slave, by +necessary implication entitles the slave to his freedom; because, only +as a freeman could he take and hold the bequest. (Legrand _v._ +Darnall, 2 Pet. R., 664.) It has also been held, that when a master +goes with his slave to reside for an indefinite period in a State +where slavery is not tolerated, this operates as an act of +manumission; because it is sufficiently expressive of the consent of +the master that the slave should be free. (2 Marshall's Ken. R., 470; +14 Martin's Louis. R., 401.) + +What, then, shall we say of the consent of the master, that the slave +may contract a lawful marriage, attended with all the civil rights and +duties which belong to that relation; that he may enter into a +relation which none but a free man can assume--a relation which +involves not only the rights and duties of the slave, but those of the +other party to the contract, and of their descendants to the remotest +generation? In my judgment, there can be no more effectual abandonment +of the legal rights of a master over his slave, than by the consent of +the master that the slave should enter into a contract of marriage, in +a free State, attended by all the civil rights and obligations which +belong to that condition. + +And any claim by Dr. Emerson, or any one claiming under him, the +effect of which is to deny the validity of this marriage, and the +lawful paternity of the children born from it, wherever asserted, is, +in my judgment, a claim inconsistent with good faith and sound reason, +as well as with the rules of international law. And I go further: in +my opinion, a law of the State of Missouri, which should thus annul a +marriage, lawfully contracted by these parties while resident in +Wisconsin, not in fraud of any law of Missouri, or of any right of Dr. +Emerson, who consented thereto, would be a law impairing the +obligation of a contract, and within the prohibition of the +Constitution of the United States. (See 4 Wheat., 629, 695, 696.) + +To avoid misapprehension on this important and difficult subject, I +will state, distinctly, the conclusions at which I have arrived. They +are: + +_First._ The rules of international law respecting the emancipation of +slaves, by the rightful operation of the laws of another State or +country upon the _status_ of the slave, while resident in such foreign +State or country, are part of the common law of Missouri, and have not +been abrogated by any statute law of that State. + +_Second._ The laws of the United States, constitutionally enacted, +which operated directly on and changed the _status_ of a slave coming +into the Territory of Wisconsin with his master, who went thither to +reside for an indefinite length of time, in the performance of his +duties as an officer of the United States, had a rightful operation on +the _status_ of the slave, and it is in conformity with the rules of +international law that this change of _status_ should be recognised +everywhere. + +_Third._ The laws of the United States, in operation in the Territory +of Wisconsin at the time of the plaintiff's residence there, did act +directly on the _status_ of the plaintiff, and change his _status_ to +that of a free man. + +_Fourth._ The plaintiff and his wife were capable of contracting, and, +with the consent of Dr. Emerson, did contract a marriage in that +Territory, valid under its laws; and the validity of this marriage +cannot be questioned in Missouri, save by showing that it was in fraud +of the laws of that State, or of some right derived from them; which +cannot be shown in this case, because the master consented to it. + +_Fifth._ That the consent of the master that his slave, residing in a +country which does not tolerate slavery, may enter into a lawful +contract of marriage, attended with the civil rights and duties which +belong to that condition, is an effectual act of emancipation. And the +law does not enable Dr. Emerson, or any one claiming under him, to +assert a title to the married persons as slaves, and thus destroy the +obligation of the contract of marriage, and bastardize their issue, +and reduce them to slavery. + +But it is insisted that the Supreme Court of Missouri has settled this +case by its decision in Scott _v._ Emerson, (15 Missouri Reports, +576;) and that this decision is in conformity with the weight of +authority elsewhere, and with sound principles. If the Supreme Court +of Missouri had placed its decision on the ground that it appeared Dr. +Emerson never became domiciled in the Territory and so its laws could +not rightfully operate on him and his slave; and the facts that he +went there to reside indefinitely, as an officer of the United States, +and that the plaintiff was lawfully married there, with Dr. Emerson's +consent, were left out of view, the decision would find support in +other cases, and I might not be prepared to deny its correctness. But +the decision is not rested on this ground. The domicil of Dr. Emerson +in that Territory is not questioned in that decision; and it is placed +on a broad denial of the operation, in Missouri, of the law of any +foreign State or country upon the _status_ of a slave, going with his +master from Missouri into such foreign State or country, even though +they went thither to become, and actually became, permanent +inhabitants of such foreign State or country, the laws whereof acted +directly on the _status_ of the slave, and changed his _status_ to +that of a freeman. + +To the correctness of such a decision I cannot assent. In my judgment, +the opinion of the majority of the court in that case is in conflict +with its previous decisions, with a great weight of judicial authority +in other slaveholding States, and with fundamental principles of +private international law. Mr. Chief Justice Gamble, in his dissenting +opinion in that case, said: + +"I regard the question as conclusively settled by repeated +adjudications of this court; and if I doubted or denied the propriety +of those decisions, I would not feel myself any more at liberty to +overturn them, than I would any other series of decisions by which the +law upon any other question had been settled. There is with me nothing +in the law of slavery which distinguishes it from the law on any other +subject, or allows any more accommodation to the temporary excitements +which have gathered around it.... But in the midst of all such +excitement, it is proper that the judicial mind, calm and +self-balanced, should adhere to principles established when there was +no feeling to disturb the view of the legal questions upon which the +rights of parties depend." + +"In this State, it has been recognised from the beginning of the +Government as a correct position in law, that the master who takes his +slave to reside in a State or Territory where slavery is prohibited, +thereby emancipates his slave." (Winney _v._ Whitesides, 1 Mo., 473; +Le Grange [Transcriber's Note: La Grange] _v._ Chouteau, 2 Mo., 20; +Milley _v._ Smith, Ib., 36; Ralph _v._ Duncan, 3 Mo., 194; Julia _v._ +McKinney, Ib., 270; Nat _v._ Ruddle, Ib., 400; Rachel _v._ Walker, 4 +Mo., 350; Wilson _v._ Melvin, 592.) + +Chief Justice Gamble has also examined the decisions of the courts of +other States in which slavery is established, and finds them in +accordance with these preceding decisions of the Supreme Court of +Missouri to which he refers. + +It would be a useless parade of learning for me to go over the ground +which he has so fully and ably occupied. + +But it is further insisted we are bound to follow this decision. I do +not think so. In this case, it is to be determined what laws of the +United States were in operation in the Territory of Wisconsin, and +what was their effect on the _status_ of the plaintiff. Could the +plaintiff contract a lawful marriage there? Does any law of the State +of Missouri impair the obligation of that contract of marriage, +destroy his rights as a husband, bastardize the issue of the marriage, +and reduce them to a state of slavery? + +These questions, which arise exclusively under the Constitution and +laws of the United States, this court, under the Constitution and laws +of the United States, has the rightful authority finally to decide. +And if we look beyond these questions, we come to the consideration +whether the rules of international law, which are part of the laws of +Missouri until displaced by some statute not alleged to exist, do or +do not require the _status_ of the plaintiff, as fixed by the laws of +the Territory of Wisconsin, to be recognised in Missouri. Upon such a +question, not depending on any statute or local usage, but on +principles of universal jurisprudence, this court has repeatedly +asserted it could not hold itself bound by the decisions of State +courts, however great respect might be felt for their learning, +ability, and impartiality. (See Swift _v._ Tyson, 16 Peters's R., 1; +Carpenter _v._ The Providence Ins. Co., Ib., 495; Foxcroft _v._ +Mallet, 4 How., 353; Rowan _v._ Runnels, 5 How., 134.) + +Some reliance has been placed on the fact that the decision in the +Supreme Court of Missouri was between these parties, and the suit +there was abandoned to obtain another trial in the courts of the +United States. + +In Homer _v._ Brown, (16 How., 354,) this court made a decision upon +the construction of a devise of lands, in direct opposition to the +unanimous opinion of the Supreme Court of Massachusetts, between the +same parties, respecting the same subject-matter--the claimant having +become nonsuit in the State court, in order to bring his action in the +Circuit Court of the United States. I did not sit in that case, having +been of counsel for one of the parties while at the bar; but, on +examining the report of the argument of the counsel for the plaintiff +in error, I find they made the point, that this court ought to give +effect to the construction put upon the will by the State court, to +the end that rights respecting lands may be governed by one law, and +that the law of the place where the lands are situated; that they +referred to the State decision of the case, reported in 3 Cushing, +390, and to many decisions of this court. But this court does not seem +to have considered the point of sufficient importance to notice it in +their opinions. In Millar _v._ Austin, (13 How., 218,) an action was +brought by the endorsee of a written promise. The question was, +whether it was negotiable under a statute of Ohio. The Supreme Court +of that State having decided it was not negotiable, the plaintiff +became nonsuit, and brought his action in the Circuit Court of the +United States. The decision of the Supreme Court of the State, +reported 4 Ves., L.J., 527, was relied on. This court unanimously held +the paper to be negotiable. + +When the decisions of the highest court of a State are directly in +conflict with each other, it has been repeatedly held, here, that the +last decision is not necessarily to be taken as the rule. (State Bank +_v._ Knoop, 16 How., 369; Pease _v._ Peck, 18 How., 599.) + +To these considerations I desire to add, that it was not made known to +the Supreme Court of Missouri, so far as appears, that the plaintiff +was married in Wisconsin with the consent of Dr. Emerson, and it is +not made known to us that Dr. Emerson was a citizen of Missouri, a +fact to which that court seem to have attached much importance. + +Sitting here to administer the law between these parties, I do not +feel at liberty to surrender my own convictions of what the law +requires, to the authority of the decision in 15 Missouri Reports. + +I have thus far assumed, merely for the purpose of the argument, that +the laws of the United States, respecting slavery in this Territory, +were constitutionally enacted by Congress. It remains to inquire +whether they are constitutional and binding laws. + +In the argument of this part of the case at bar, it was justly +considered by all the counsel to be necessary to ascertain the source +of the power of Congress over the territory belonging to the United +States. Until this is ascertained, it is not possible to determine the +extent of that power. On the one side it was maintained that the +Constitution contains no express grant of power to organize and govern +what is now known to the laws of the United States as a Territory. +That whatever power of this kind exists, is derived by implication +from the capacity of the United States to hold and acquire territory +out of the limits of any State, and the necessity for its having some +government. + +On the other side, it was insisted that the Constitution has not +failed to make an express provision for this end, and that it is found +in the third section of the fourth article of the Constitution. + +To determine which of these is the correct view, it is needful to +advert to some facts respecting this subject, which existed when the +Constitution was framed and adopted. It will be found that these facts +not only shed much light on the question, whether the framers of the +Constitution omitted to make a provision concerning the power of +Congress to organize and govern Territories, but they will also aid in +the construction of any provision which may have been made respecting +this subject. + +Under the Confederation, the unsettled territory within the limits of +the United States had been a subject of deep interest. Some of the +States insisted that these lands were within their chartered +boundaries, and that they had succeeded to the title of the Crown to +the soil. On the other hand, it was argued that the vacant lands had +been acquired by the United States, by the war carried on by them +under a common Government and for the common interest. + +This dispute was further complicated by unsettled questions of +boundary among several States. It not only delayed the accession of +Maryland to the Confederation, but at one time seriously threatened +its existence. (5 Jour. of Cong., 208, 442.) Under the pressure of +these circumstances, Congress earnestly recommended to the several +States a cession of their claims and rights to the United States. (5 +Jour. of Cong., 442.) And before the Constitution was framed, it had +been begun. That by New York had been made on the 1st day of March, +1781; that of Virginia on the 1st day of March, 1784; that of +Massachusetts on the 19th day of April, 1785; that of Connecticut on +the 14th day of September, 1786; that of South Carolina on the 8th day +of August, 1787, while the Convention for framing the Constitution was +in session. + +It is very material to observe, in this connection, that each of these +acts cedes, in terms, to the United States, as well the jurisdiction +as the soil. + +It is also equally important to note that, when the Constitution was +framed and adopted, this plan of vesting in the United States, for the +common good, the great tracts of ungranted lands claimed by the +several States, in which so deep an interest was felt, was yet +incomplete. It remained for North Carolina and Georgia to cede their +extensive and valuable claims. These were made, by North Carolina on +the 25th day of February, 1790, and by Georgia on the 24th day of +April, 1802. The terms of these last-mentioned cessions will +hereafter be noticed in another connection; but I observe here that +each of them distinctly shows, upon its face, that they were not only +in execution of the general plan proposed by the Congress of the +Confederation, but of a formed purpose of each of these States, +existing when the assent of their respective people was given to the +Constitution of the United States. + +It appears, then, that when the Federal Constitution was framed, and +presented to the people of the several States for their consideration, +the unsettled territory was viewed as justly applicable to the common +benefit, so far as it then had or might attain thereafter a pecuniary +value; and so far as it might become the seat of new States, to be +admitted into the Union upon an equal footing with the original +States. And also that the relations of the United States to that +unsettled territory were of different kinds. The titles of the States +of New York, Virginia, Massachusetts, Connecticut, and South Carolina, +as well of soil as of jurisdiction, had been transferred to the United +States. North Carolina and Georgia had not actually made transfers, +but a confident expectation, founded on their appreciation of the +justice of the general claim, and fully justified by the results, was +entertained, that these cessions would be made. The ordinance of 1787 +had made provision for the temporary government of so much of the +territory actually ceded as lay northwest of the river Ohio. + +But it must have been apparent, both to the framers of the +Constitution and the people of the several States who were to act upon +it, that the Government thus provided for could not continue, unless +the Constitution should confer on the United States the necessary +powers to continue it. That temporary Government, under the ordinance, +was to consist of certain officers, to be appointed by and responsible +to the Congress of the Confederation; their powers had been conferred +and defined by the ordinance. So far as it provided for the temporary +government of the Territory, it was an ordinary act of legislation, +deriving its force from the legislative power of Congress, and +depending for its vitality upon the continuance of that legislative +power. But the officers to be appointed for the Northwestern +Territory, after the adoption of the Constitution, must necessarily be +officers of the United States, and not of the Congress of the +Confederation; appointed and commissioned by the President, and +exercising powers derived from the United States under the +Constitution. + +Such was the relation between the United States and the Northwestern +Territory, which all reflecting men must have foreseen would exist, +when the Government created by the Constitution should supersede that +of the Confederation. That if the new Government should be without +power to govern this Territory, it could not appoint and commission +officers, and send them into the Territory, to exercise there +legislative, judicial, and executive power; and that this Territory, +which was even then foreseen to be so important, both politically and +financially, to all the existing States, must be left not only without +the control of the General Government, in respect to its future +political relations to the rest of the States, but absolutely without +any Government, save what its inhabitants, acting in their primary +capacity, might from time to time create for themselves. + +But this Northwestern Territory was not the only territory, the soil +and jurisdiction whereof were then understood to have been ceded to +the United States. The cession by South Carolina, made in August, +1787, was of "all the territory included within the river Mississippi, +and a line beginning at that part of the said river which is +intersected by the southern boundary of North Carolina, and continuing +along the said boundary line until it intersects the ridge or chain of +mountains which divides the Eastern from the Western waters; then to +be continued along the top of the said ridge of mountains, until it +intersects a line to be drawn due west from the head of the southern +branch of the Tugaloo river, to the said mountains; and thence to run +a due west course to the river Mississippi." + +It is true that by subsequent explorations it was ascertained that the +source of the Tugaloo river, upon which the title of South Carolina +depended, was so far to the northward, that the transfer conveyed only +a narrow slip of land, about twelve miles wide, lying on the top of +the ridge of mountains, and extending from the northern boundary of +Georgia to the southern boundary of North Carolina. But this was a +discovery made long after the cession, and there can be no doubt that +the State of South Carolina, in making the cession, and the Congress +in accepting it, viewed it as a transfer to the United States of the +soil and jurisdiction of an extensive and important part of the +unsettled territory ceded by the Crown of Great Britain by the treaty +of peace, though its quantity or extent then remained to be +ascertained.[5] + +[Footnote 5: _Note by Mr. Justice Curtis._ This statement that _some_ +territory did actually pass by this cession, is taken from the opinion +of the court, delivered by Mr. Justice Wayne, in the case of Howard +_v._ Ingersoll, reported in 13 How., 405. It is an obscure matter, +and, on some examination of it, I have been led to doubt whether any +territory actually passed by this cession. But as the fact is not +important to the argument, I have not thought it necessary further to +investigate it.] + +It must be remembered also, as has been already stated, that not only +was there a confident expectation entertained by the other States, +that North Carolina and Georgia would complete the plan already so far +executed by New York, Virginia, Massachusetts, Connecticut, and South +Carolina, but that the opinion was in no small degree prevalent, that +the just title to this "back country," as it was termed, had vested in +the United States by the treaty of peace, and could not rightfully be +claimed by any individual State. + +There is another consideration applicable to this part of the subject, +and entitled, in my judgment, to great weight. + +The Congress of the Confederation had assumed the power not only to +dispose of the lands ceded, but to institute Governments and make laws +for their inhabitants. In other words, they had proceeded to act under +the cession, which, as we have seen, was as well of the jurisdiction +as of the soil. This ordinance was passed on the 13th of July, 1787. +The Convention for framing the Constitution was then in session at +Philadelphia. The proof is direct and decisive, that it was known to +the Convention.[6] It is equally clear that it was admitted and +understood not to be within the legitimate powers of the Confederation +to pass this ordinance. (Jefferson's Works, vol. 9, pp. 251, 276; +Federalist, Nos. 38, 43.) + +[Footnote 6: It was published in a newspaper at Philadelphia, in May, +and a copy of it was sent by R.H. Lee to Gen. Washington, on the 15th +of July. (See p. 261, Cor. of Am. Rev., vol. 4, and Writings of +Washington, vol. 9, p. 174.)] + +The importance of conferring on the new Government regular powers +commensurate with the objects to be attained, and thus avoiding the +alternative of a failure to execute the trust assumed by the +acceptance of the cessions made and expected, or its execution by +usurpation, could scarcely fail to be perceived. That it was in fact +perceived, is clearly shown by the Federalist, (No. 38,) where this +very argument is made use of in commendation of the Constitution. + +Keeping these facts in view, it may confidently be asserted that there +is very strong reason to believe, before we examine the Constitution +itself, that the necessity for a competent grant of power to hold, +dispose of, and govern territory, ceded and expected to be ceded, +could not have escaped the attention of those who framed or adopted +the Constitution; and that if it did not escape their attention, it +could not fail to be adequately provided for. + +Any other conclusion would involve the assumption that a subject of +the gravest national concern, respecting which the small States felt +so much jealousy that it had been almost an insurmountable obstacle to +the formation of the Confederation, and as to which all the States had +deep pecuniary and political interests, and which had been so recently +and constantly agitated, was nevertheless overlooked; or that such a +subject was not overlooked, but designedly left unprovided for, though +it was manifestly a subject of common concern, which belonged to the +care of the General Government, and adequate provision for which could +not fail to be deemed necessary and proper. + +The admission of new States, to be framed out of the ceded territory, +early attracted the attention of the Convention. Among the resolutions +introduced by Mr. Randolph, on the 29th of May, was one on this +subject, (Res. No. 10, 5 Elliot, 128,) which, having been affirmed in +Committee of the Whole, on the 5th of June, (5 Elliot, 156,) and +reported to the Convention on the 13th of June, (5 Elliot, 190,) was +referred to the Committee of Detail, to prepare the Constitution, on +the 26th of July, (5 Elliot, 376.) This committee reported an article +for the admission of new States "lawfully constituted or established." +Nothing was said concerning the power of Congress to prepare or form +such States. This omission struck Mr. Madison, who, on the 18th of +August, (5 Elliot, 439,) moved for the insertion of power to dispose +of the unappropriated lands of the United States, and to institute +temporary Governments for new States arising therein. + +On the 29th of August, (5 Elliot, 492,) the report of the committee +was taken up, and after debate, which exhibited great diversity of +views concerning the proper mode of providing for the subject, arising +out of the supposed diversity of interests of the large and small +States, and between those which had and those which had not unsettled +territory, but no difference of opinion respecting the propriety and +necessity of some adequate provision for the subject, Gouverneur +Morris moved the clause as it stands in the Constitution. This met +with general approbation, and was at once adopted. The whole section +is as follows: + +"New States may be admitted by the Congress into this Union; but no +new State shall be formed or erected within the jurisdiction of any +other State, nor any State be formed by the junction of two or more +States, or parts of States, without the consent of the Legislatures of +the States concerned, as well as of Congress. + +"The Congress shall have power to dispose of and make all needful +rules and regulations respecting the territory or other property +belonging to the United States; and nothing in this Constitution shall +be so construed as to prejudice any claims of the United States or any +particular State." + +That Congress has some power to institute temporary Governments over +the territory, I believe all agree; and, if it be admitted that the +necessity of some power to govern the territory of the United States +could not and did not escape the attention of the Convention and the +people, and that the necessity is so great, that, in the absence of +any express grant, it is strong enough to raise an implication of the +existence of that power, it would seem to follow that it is also +strong enough to afford material aid in construing an express grant of +power respecting that territory; and that they who maintain the +existence of the power, without finding any words at all in which it +is conveyed, should be willing to receive a reasonable interpretation +of language of the Constitution, manifestly intended to relate to the +territory, and to convey to Congress some authority concerning it. + +It would seem, also, that when we find the subject-matter of the +growth and formation and admission of new States, and the disposal of +the territory for these ends, were under consideration, and that some +provision therefor was expressly made, it is improbable that it would +be, in its terms, a grossly inadequate provision; and that an +indispensably necessary power to institute temporary Governments, and +to legislate for the inhabitants of the territory, was passed silently +by, and left to be deduced from the necessity of the case. + +In the argument at the bar, great attention has been paid to the +meaning of the word "territory." + +Ordinarily, when the territory of a sovereign power is spoken of, it +refers to that tract of country which is under the political +jurisdiction of that sovereign power. Thus Chief Justice Marshall (in +United States _v._ Bevans, 3 Wheat., 386) says: "What, then, is the +extent of jurisdiction which a State possesses? We answer, without +hesitation, the jurisdiction of a State is coextensive with its +territory." Examples might easily be multiplied of this use of the +word, but they are unnecessary, because it is familiar. But the word +"territory" is not used in this broad and general sense in this clause +of the Constitution. + +At the time of the adoption of the Constitution, the United States +held a great tract of country northwest of the Ohio; another tract, +then of unknown extent, ceded by South Carolina; and a confident +expectation was then entertained, and afterwards realized, that they +then were or would become the owners of other great tracts, claimed by +North Carolina and Georgia. These ceded tracts lay within the limits +of the United States, and out of the limits of any particular State; +and the cessions embraced the civil and political jurisdiction, and so +much of the soil as had not previously been granted to individuals. + +These words, "territory belonging to the United States," were not +used in the Constitution to describe an abstraction, but to identify +and apply to these actual subjects matter then existing and belonging +to the United States, and other similar subjects which might +afterwards be acquired; and this being so, all the essential qualities +and incidents attending such actual subjects are embraced within the +words "territory belonging to the United States," as fully as if each +of those essential qualities and incidents had been specifically +described. + +I say, the essential qualities and incidents. But in determining what +were the essential qualities and incidents of the subject with which +they were dealing, we must take into consideration not only all the +particular facts which were immediately before them, but the great +consideration, ever present to the minds of those who framed and +adopted the Constitution, that they were making a frame of government +for the people of the United States and their posterity, under which +they hoped the United States might be, what they have now become, a +great and powerful nation, possessing the power to make war and to +conclude treaties, and thus to acquire territory. (See Cerre _v._ +Pitot, 6 Cr., 336; Am. Ins. Co. _v._ Canter, 1 Pet., 542.) With these +in view, I turn to examine the clause of the article now in question. + +It is said this provision has no application to any territory save +that then belonging to the United States. I have already shown that, +when the Constitution was framed, a confident expectation was +entertained, which was speedily realized, that North Carolina and +Georgia would cede their claims to that great territory which lay west +of those States. No doubt has been suggested that the first clause of +this same article, which enabled Congress to admit new States, refers +to and includes new States to be formed out of this territory, +expected to be thereafter ceded by North Carolina and Georgia, as well +as new States to be formed out of territory northwest of the Ohio, +which then had been ceded by Virginia. It must have been seen, +therefore, that the same necessity would exist for an authority to +dispose of and make all needful regulations respecting this territory, +when ceded, as existed for a like authority respecting territory which +had been ceded. + +No reason has been suggested why any reluctance should have been felt, +by the framers of the Constitution, to apply this provision to all the +territory which might belong to the United States, or why any +distinction should have been made, founded on the accidental +circumstance of the dates of the cessions; a circumstance in no way +material as respects the necessity for rules and regulations, or the +propriety of conferring on the Congress power to make them. And if we +look at the course of the debates in the Convention on this article, +we shall find that the then unceded lands, so far from having been +left out of view in adopting this article, constituted, in the minds +of members, a subject of even paramount importance. + +Again, in what an extraordinary position would the limitation of this +clause to territory then belonging to the United States, place the +territory which lay within the chartered limits of North Carolina and +Georgia. The title to that territory was then claimed by those States, +and by the United States; their respective claims are purposely left +unsettled by the express words of this clause; and when cessions were +made by those States, they were merely of their claims to this +territory, the United States neither admitting nor denying the +validity of those claims; so that it was impossible then, and has ever +since remained impossible, to know whether this territory did or did +not then belong to the United States; and, consequently, to know +whether it was within or without the authority conferred by this +clause, to dispose of and make rules and regulations respecting the +territory of the United States. This attributes to the eminent men who +acted on this subject a want of ability and forecast, or a want of +attention to the known facts upon which they were acting, in which I +cannot concur. + +There is not, in my judgment, anything in the language, the history, +or the subject-matter of this article, which restricts its operation +to territory owned by the United States when the Constitution was +adopted. + +But it is also insisted that provisions of the Constitution respecting +territory belonging to the United States do not apply to territory +acquired by treaty from a foreign nation. This objection must rest +upon the position that the Constitution did not authorize the Federal +Government to acquire foreign territory, and consequently has made no +provision for its government when acquired; or, that though the +acquisition of foreign territory was contemplated by the Constitution, +its provisions concerning the admission of new States, and the making +of all needful rules and regulations respecting territory belonging to +the United States, were not designed to be applicable to territory +acquired from foreign nations. + +It is undoubtedly true, that at the date of the treaty of 1803, +between the United States and France, for the cession of Louisiana, it +was made a question, whether the Constitution had conferred on the +executive department of the Government of the United States power to +acquire foreign territory by a treaty. + +There is evidence that very grave doubts were then entertained +concerning the existence of this power. But that there was then a +settled opinion in the executive and legislative branches of the +Government, that this power did not exist, cannot be admitted, without +at the same time imputing to those who negotiated and ratified the +treaty, and passed the laws necessary to carry it into execution, a +deliberate and known violation of their oaths to support the +Constitution; and whatever doubts may then have existed, the question +must now be taken to have been settled. Four distinct acquisitions of +foreign territory have been made by as many different treaties, under +as many different Administrations. Six States, formed on such +territory, are now in the Union. Every branch of this Government, +during a period of more than fifty years, has participated in these +transactions. To question their validity now, is vain. As was said by +Mr. Chief Justice Marshall, in the American Insurance Company _v._ +Canter, (1 Peters, 542,) "the Constitution confers absolutely on the +Government of the Union the powers of making war and of making +treaties; consequently, that Government possesses the power of +acquiring territory, either by conquest or treaty." (See Cerre _v._ +Pitot, 6 Cr., 336.) And I add, it also possesses the power of +governing it, when acquired, not by resorting to supposititious +powers, nowhere found described in the Constitution, but expressly +granted in the authority to make all needful rules and regulations +respecting the territory of the United States. + +There was to be established by the Constitution a frame of government, +under which the people of the United States and their posterity were +to continue indefinitely. To take one of its provisions, the language +of which is broad enough to extend throughout the existence of the +Government, and embrace all territory belonging to the United States +throughout all time, and the purposes and objects of which apply to +all territory of the United States, and narrow it down to territory +belonging to the United States when the Constitution was framed, while +at the same time it is admitted that the Constitution contemplated and +authorized the acquisition, from time to time, of other and foreign +territory, seems to me to be an interpretation as inconsistent with +the nature and purposes of the instrument, as it is with its language, +and I can have no hesitation in rejecting it. + +I construe this clause, therefore, as if it had read, Congress shall +have power to make all needful rules and regulations respecting those +tracts of country, out of the limits of the several States, which the +United States have acquired, or may hereafter acquire, by cessions, as +well of the jurisdiction as of the soil, so far as the soil may be +the property of the party making the cession, at the time of making +it. + +It has been urged that the words "rules and regulations" are not +appropriate terms in which to convey authority to make laws for the +government of the territory. + +But it must be remembered that this is a grant of power to the +Congress--that it is therefore necessarily a grant of power to +legislate--and, certainly, rules and regulations respecting a +particular subject, made by the legislative power of a country, can be +nothing but laws. Nor do the particular terms employed, in my +judgment, tend in any degree to restrict this legislative power. Power +granted to a Legislature to make all needful rules and regulations +respecting the territory, is a power to pass all needful laws +respecting it. + +The word regulate, or regulation, is several times used in the +Constitution. It is used in the fourth section of the first article to +describe those laws of the States which prescribe the times, places, +and manner, of choosing Senators and Representatives; in the second +section of the fourth article, to designate the legislative action of +a State on the subject of fugitives from service, having a very close +relation to the matter of our present inquiry; in the second section +of the third article, to empower Congress to fix the extent of the +appellate jurisdiction of this court; and, finally, in the eighth +section of the first article are the words, "Congress shall have power +to regulate commerce." + +It is unnecessary to describe the body of legislation which has been +enacted under this grant of power; its variety and extent are well +known. But it may be mentioned, in passing, that under this power to +regulate commerce, Congress has enacted a great system of municipal +laws, and extended it over the vessels and crews of the United States +on the high seas and in foreign ports, and even over citizens of the +United States resident in China; and has established judicatures, with +power to inflict even capital punishment within that country. + +If, then, this clause does contain a power to legislate respecting the +territory, what are the limits of that power? + +To this I answer, that, in common with all the other legislative +powers of Congress, it finds limits in the express prohibitions on +Congress not to do certain things; that, in the exercise of the +legislative power, Congress cannot pass an ex post facto law or bill +of attainder; and so in respect to each of the other prohibitions +contained in the Constitution. + +Besides this, the rules and regulations must be needful. But +undoubtedly the question whether a particular rule or regulation be +needful, must be finally determined by Congress itself. Whether a law +be needful, is a legislative or political, not a judicial, question. +Whatever Congress deems needful is so, under the grant of power. + +Nor am I aware that it has ever been questioned that laws providing +for the temporary government of the settlers on the public lands are +needful, not only to prepare them for admission to the Union as +States, but even to enable the United States to dispose of the lands. + +Without government and social order, there can be no property; for +without law, its ownership, its use, and the power of disposing of it, +cease to exist, in the sense in which those words are used and +understood in all civilized States. + +Since, then, this power was manifestly conferred to enable the United +States to dispose of its public lands to settlers, and to admit them +into the Union as States, when in the judgment of Congress they should +be fitted therefor, since these were the needs provided for, since it +is confessed that Government is indispensable to provide for those +needs, and the power is, to make _all needful_ rules and regulations +respecting the territory, I cannot doubt that this is a power to +govern the inhabitants of the territory, by such laws as Congress +deems needful, until they obtain admission as States. + +Whether they should be thus governed solely by laws enacted by +Congress, or partly by laws enacted by legislative power conferred by +Congress, is one of those questions which depend on the judgment of +Congress--a question which of these is needful. + +But it is insisted, that whatever other powers Congress may have +respecting the territory of the United States, the subject of negro +slavery forms an exception. + +The Constitution declares that Congress shall have power to make +"_all_ needful rules and regulations" respecting the territory +belonging to the United States. + +The assertion is, though the Constitution says all, it does not mean +all--though it says all, without qualification, it means all except +such as allow or prohibit slavery. It cannot be doubted that it is +incumbent on those who would thus introduce an exception not found in +the language of the instrument, to exhibit some solid and satisfactory +reason, drawn from the subject-matter or the purposes and objects of +the clause, the context, or from other provisions of the Constitution, +showing that the words employed in this clause are not to be +understood according to their clear, plain, and natural signification. + +The subject-matter is the territory of the United States out of the +limits of every State, and consequently under the exclusive power of +the people of the United States. Their will respecting it, manifested +in the Constitution, can be subject to no restriction. The purposes +and objects of the clause were the enactment of laws concerning the +disposal of the public lands, and the temporary government of the +settlers thereon until new States should be formed. It will not be +questioned that, when the Constitution of the United States was framed +and adopted, the allowance and the prohibition of negro slavery were +recognised subjects of municipal legislation; every State had in some +measure acted thereon; and the only legislative act concerning the +territory--the ordinance of 1787, which had then so recently been +passed--contained a prohibition of slavery. The purpose and object of +the clause being to enable Congress to provide a body of municipal law +for the government of the settlers, the allowance or the prohibition +of slavery comes within the known and recognised scope of that purpose +and object. + +There is nothing in the context which qualifies the grant of power. +The regulations must be "respecting the territory." An enactment that +slavery may or may not exist there, is a regulation respecting the +territory. Regulations must be needful; but it is necessarily left to +the legislative discretion to determine whether a law be needful. No +other clause of the Constitution has been referred to at the bar, or +has been seen by me, which imposes any restriction or makes any +exception concerning the power of Congress to allow or prohibit +slavery in the territory belonging to the United States. + +A practical construction, nearly contemporaneous with the adoption of +the Constitution, and continued by repeated instances through a long +series of years, may always influence, and in doubtful cases should +determine, the judicial mind, on a question of the interpretation of +the Constitution. (Stuart _v._ Laird, 1 Cranch, 269; Martin _v._ +Hunter, 1 Wheat., 304; Cohens _v._ Virginia, 6 Wheat., 264; Prigg _v._ +Pennsylvania, 16 Pet., 621; Cooley _v._ Port Wardens, 12 How., 315.) + +In this view, I proceed briefly to examine the practical construction +placed on the clause now in question, so far as it respects the +inclusion therein of power to permit or prohibit slavery in the +Territories. + +It has already been stated, that after the Government of the United +States was organized under the Constitution, the temporary Government +of the Territory northwest of the river Ohio could no longer exist, +save under the powers conferred on Congress by the Constitution. +Whatever legislative, judicial, or executive authority should be +exercised therein could be derived only from the people of the United +States under the Constitution. And, accordingly, an act was passed on +the 7th day of August, 1789, (1 Stat. at Large, 50,) which recites: +"Whereas, in order that the ordinance of the United States in Congress +assembled, for the government of the territory northwest of the river +Ohio, _may continue to have full effect_, it is required that certain +provisions should be made, so as to adapt the same to the present +Constitution of the United States." It then provides for the +appointment by the President of all officers, who, by force of the +ordinance, were to have been appointed by the Congress of the +Confederation, and their commission in the manner required by the +Constitution; and empowers the Secretary of the Territory to exercise +the powers of the Governor in case of the death or necessary absence +of the latter. + +Here is an explicit declaration of the will of the first Congress, of +which fourteen members, including Mr. Madison, had been members of the +Convention which framed the Constitution, that the ordinance, one +article of which prohibited slavery, "should continue to have full +effect." Gen. Washington, who signed this bill, as President, was the +President of that Convention. + +It does not appear to me to be important, in this connection, that +that clause in the ordinance which prohibited slavery was one of a +series of articles of what is therein termed a compact. The Congress +of the Confederation had no power to make such a compact, nor to act +at all on the subject; and after what had been so recently said by Mr. +Madison on this subject, in the thirty-eighth number of the +_Federalist_, I cannot suppose that he, or any others who voted for +this bill, attributed any intrinsic effect to what was denominated in +the ordinance a compact between "the original States and the people +and States in the new territory;" there being no new States then in +existence in the territory, with whom a compact could be made, and the +few scattered inhabitants, unorganized into a political body, not +being capable of becoming a party to a treaty, even if the Congress of +the Confederation had had power to make one touching the government of +that territory. + +I consider the passage of this law to have been an assertion by the +first Congress of the power of the United States to prohibit slavery +within this part of the territory of the United States; for it clearly +shows that slavery was thereafter to be prohibited there, and it could +be prohibited only by an exertion of the power of the United States, +under the Constitution; no other power being capable of operating +within that territory after the Constitution took effect. + +On the 2d of April, 1790, (1 Stat. at Large, 106,) the first Congress +passed an act accepting a deed of cession by North Carolina of that +territory afterwards erected into the State of Tennessee. The fourth +express condition contained in this deed of cession, after providing +that the inhabitants of the Territory shall be temporarily governed in +the same manner as those beyond the Ohio, is followed by these words: +"_Provided, always_, that no regulations made or to be made by +Congress shall tend to emancipate slaves." + +This provision shows that it was then understood Congress might make a +regulation prohibiting slavery, and that Congress might also allow it +to continue to exist in the Territory; and accordingly, when, a few +days later, Congress passed the act of May 20th, 1790, (1 Stat. at +Large, 123,) for the government of the Territory south of the river +Ohio, it provided, "and the Government of the Territory south of the +Ohio shall be similar to that now exercised in the Territory northwest +of the Ohio, except so far as is otherwise provided in the conditions +expressed in an act of Congress of the present session, entitled, 'An +act to accept a cession of the claims of the State of North Carolina +to a certain district of western territory.'" Under the Government +thus established, slavery existed until the Territory became the State +of Tennessee. + +On the 7th of April, 1798, (1 Stat. at Large, 649,) an act was passed +to establish a Government in the Mississippi Territory in all respects +like that exercised in the Territory northwest of the Ohio, "excepting +and excluding the last article of the ordinance made for the +government thereof by the late Congress, on the 13th day of July, +1787." When the limits of this Territory had been amicably settled +with Georgia, and the latter ceded all its claim thereto, it was one +stipulation in the compact of cession, that the ordinance of July +13th, 1787, "shall in all its parts extend to the Territory contained +in the present act of cession, that article only excepted which +forbids slavery." The Government of this Territory was subsequently +established and organized under the act of May 10th, 1800; but so much +of the ordinance as prohibited slavery was not put in operation there. + +Without going minutely into the details of each case, I will now give +reference to two classes of acts, in one of which Congress has +extended the ordinance of 1787, including the article prohibiting +slavery, over different Territories, and thus exerted its power to +prohibit it; in the other, Congress has erected Governments over +Territories acquired from France and Spain, in which slavery already +existed, but refused to apply to them that part of the Government +under the ordinance which excluded slavery. + +Of the first class are the act of May 7th, 1800, (2 Stat. at Large, +58,) for the government of the Indiana Territory; the act of January +11th, 1805, (2 Stat. at Large, 309,) for the government of Michigan +Territory; the act of May 3d, 1809, (2 Stat. at Large, 514,) for the +government of the Illinois Territory; the act of April 20th, 1836, (5 +Stat. at Large, 10,) for the government of the Territory of Wisconsin; +the act of June 12th, 1838, for the government of the Territory of +Iowa; the act of August 14th, 1848, for the government of the +Territory of Oregon. To these instances should be added the act of +March 6th, 1820, (3 Stat. at Large, 548,) prohibiting slavery in the +territory acquired from France, being northwest of Missouri, and north +of thirty-six degrees thirty minutes north latitude. + +Of the second class, in which Congress refused to interfere with +slavery already existing under the municipal law of France or Spain, +and established Governments by which slavery was recognised and +allowed, are: the act of March 26th, 1804, (2 Stat. at Large, 283,) +for the government of Louisiana; the act of March 2d, 1805, (2 Stat. +at Large, 322,) for the government of the Territory of Orleans; the +act of June 4th, 1812, (2 Stat. at Large, 743,) for the government of +the Missouri Territory; the act of March 30th, 1822, (3 Stat. at +Large, 654,) for the government of the Territory of Florida. Here are +eight distinct instances, beginning with the first Congress, and +coming down to the year 1848, in which Congress has excluded slavery +from the territory of the United States; and six distinct instances in +which Congress organized Governments of Territories by which slavery +was recognised and continued, beginning also with the first Congress, +and coming down to the year 1822. These acts were severally signed by +seven Presidents of the United States, beginning with General +Washington, and coming regularly down as far as Mr. John Quincy Adams, +thus including all who were in public life when the Constitution was +adopted. + +If the practical construction of the Constitution contemporaneously +with its going into effect, by men intimately acquainted with its +history from their personal participation in framing and adopting it, +and continued by them through a long series of acts of the gravest +importance, be entitled to weight in the judicial mind on a question +of construction, it would seem to be difficult to resist the force of +the acts above adverted to. + +It appears, however, from what has taken place at the bar, that +notwithstanding the language of the Constitution, and the long line of +legislative and executive precedents under it, three different and +opposite views are taken of the power of Congress respecting slavery +in the Territories. + +One is, that though Congress can make a regulation prohibiting slavery +in a Territory, they cannot make a regulation allowing it; another is, +that it can neither be established nor prohibited by Congress, but +that the people of a Territory, when organized by Congress, can +establish or prohibit slavery; while the third is, that the +Constitution itself secures to every citizen who holds slaves, under +the laws of any State, the indefeasible right to carry them into any +Territory, and there hold them as property. + +No particular clause of the Constitution has been referred to at the +bar in support of either of these views. The first seems to be rested +upon general considerations concerning the social and moral evils of +slavery, its relations to republican Governments, its inconsistency +with the Declaration of Independence and with natural right. + +The second is drawn from considerations equally general, concerning +the right of self-government, and the nature of the political +institutions which have been established by the people of the United +States. + +While the third is said to rest upon the equal right of all citizens +to go with their property upon the public domain, and the inequality +of a regulation which would admit the property of some and exclude the +property of other citizens; and, inasmuch as slaves are chiefly held +by citizens of those particular States where slavery is established, +it is insisted that a regulation excluding slavery from a Territory +operates, practically, to make an unjust discrimination between +citizens of different States, in respect to their use and enjoyment of +the territory of the United States. + +With the weight of either of these considerations, when presented to +Congress to influence its action, this court has no concern. One or +the other may be justly entitled to guide or control the legislative +judgment upon what is a needful regulation. The question here is, +whether they are sufficient to authorize this court to insert into +this clause of the Constitution an exception of the exclusion or +allowance of slavery, not found therein, nor in any other part of that +instrument. To engraft on any instrument a substantive exception not +found in it, must be admitted to be a matter attended with great +difficulty. And the difficulty increases with the importance of the +instrument, and the magnitude and complexity of the interests involved +in its construction. To allow this to be done with the Constitution, +upon reasons purely political, renders its judicial interpretation +impossible--because judicial tribunals, as such, cannot decide upon +political considerations. Political reasons have not the requisite +certainty to afford rules of juridical interpretation. They are +different in different men. They are different in the same men at +different times. And when a strict interpretation of the Constitution, +according to the fixed rules which govern the interpretation of laws, +is abandoned, and the theoretical opinions of individuals are allowed +to control its meaning, we have no longer a Constitution; we are under +the government of individual men, who for the time being have power to +declare what the Constitution is, according to their own views of what +it ought to mean. When such a method of interpretation of the +Constitution obtains, in place of a republican Government, with +limited and defined powers, we have a Government which is merely an +exponent of the will of Congress; or what, in my opinion, would not be +preferable, an exponent of the individual political opinions of the +members of this court. + +If it can be shown, by anything in the Constitution itself, that when +it confers on Congress the power to make _all_ needful rules and +regulations respecting the territory belonging to the United States, +the exclusion or the allowance of slavery was excepted; or if anything +in the history of this provision tends to show that such an exception +was intended by those who framed and adopted the Constitution to be +introduced into it, I hold it to be my duty carefully to consider, and +to allow just weight to such considerations in interpreting the +positive text of the Constitution. But where the Constitution has said +_all_ needful rules and regulations, I must find something more than +theoretical reasoning to induce me to say it did not mean all. + +There have been eminent instances in this court closely analogous to +this one, in which such an attempt to introduce an exception, not +found in the Constitution itself, has failed of success. + +By the eighth section of the first article, Congress has the power of +exclusive legislation in all cases whatsoever within this District. + +In the case of Loughborough _v._ Blake, (5 Whea., 324,) the question +arose, whether Congress has power to impose direct taxes on persons +and property in this District. It was insisted, that though the grant +of power was in its terms broad enough to include direct taxation, it +must be limited by the principle, that taxation and representation are +inseparable. It would not be easy to fix on any political truth, +better established or more fully admitted in our country, than that +taxation and representation must exist together. We went into the war +of the Revolution to assert it, and it is incorporated as fundamental +into all American Governments. But however true and important this +maxim may be, it is not necessarily of universal application. It was +for the people of the United States, who ordained the Constitution, to +decide whether it should or should not be permitted to operate within +this District. Their decision was embodied in the words of the +Constitution; and as that contained no such exception as would permit +the maxim to operate in this District, this court, interpreting that +language, held that the exception did not exist. + +Again, the Constitution confers on Congress power to regulate commerce +with foreign nations. Under this, Congress passed an act on the 22d of +December, 1807, unlimited in duration, laying an embargo on all ships +and vessels in the ports or within the limits and jurisdiction of the +United States. No law of the United States ever pressed so severely +upon particular States. Though the constitutionality of the law was +contested with an earnestness and zeal proportioned to the ruinous +effects which were felt from it, and though, as Mr. Chief Justice +Marshall has said, (9 Wheat., 192,) "a want of acuteness in +discovering objections to a measure to which they felt the most +deep-rooted hostility will not be imputed to those who were arrayed in +opposition to this," I am not aware that the fact that it prohibited +the use of a particular species of property, belonging almost +exclusively to citizens of a few States, and this indefinitely, was +ever supposed to show that it was unconstitutional. Something much +more stringent, as a ground of legal judgment, was relied on--that the +power to regulate commerce did not include the power to annihilate +commerce. + +But the decision was, that under the power to regulate commerce, the +power of Congress over the subject was restricted only by those +exceptions and limitations contained in the Constitution; and as +neither the clause in question, which was a general grant of power to +regulate commerce, nor any other clause of the Constitution, imposed +any restrictions as to the duration of an embargo, an unlimited +prohibition of the use of the shipping of the country was within the +power of Congress. On this subject, Mr. Justice Daniel, speaking for +the court in the case of United States _v._ Marigold, (9 How., 560,) +says: "Congress are, by the Constitution, vested with the power to +regulate commerce with foreign nations; and however, at periods of +high excitement, an application of the terms 'to regulate commerce,' +such as would embrace absolute prohibition, may have been questioned, +yet, since the passage of the embargo and non-intercourse laws, and +the repeated judicial sanctions these statutes have received, it can +scarcely at this day be open to doubt, that every subject falling +legitimately within the sphere of commercial regulation may be +partially or wholly excluded, when either measure shall be demanded by +the safety or the important interests of the entire nation. The power +once conceded, it may operate on any and every subject of commerce to +which the legislative discretion may apply it." + +If power to regulate commerce extends to an indefinite prohibition of +the use of all vessels belonging to citizens of the several States, +and may operate, without exception, upon every subject of commerce to +which the legislative discretion may apply it, upon what grounds can I +say that power to make all needful rules and regulations respecting +the territory of the United States is subject to an exception of the +allowance or prohibition of slavery therein? + +While the regulation is one "respecting the territory," while it is, +in the judgment of Congress, "a needful regulation," and is thus +completely within the words of the grant, while no other clause of the +Constitution can be shown, which requires the insertion of an +exception respecting slavery, and while the practical construction for +a period of upwards of fifty years forbids such an exception, it +would, in my opinion, violate every sound rule of interpretation to +force that exception into the Constitution upon the strength of +abstract political reasoning, which we are bound to believe the people +of the United States thought insufficient to induce them to limit the +power of Congress, because what they have said contains no such +limitation. + +Before I proceed further to notice some other grounds of supposed +objection to this power of Congress, I desire to say, that if it were +not for my anxiety to insist upon what I deem a correct exposition of +the Constitution, if I looked only to the purposes of the argument, +the source of the power of Congress asserted in the opinion of the +majority of the court would answer those purposes equally well. For +they admit that Congress has power to organize and govern the +Territories until they arrive at a suitable condition for admission to +the Union; they admit, also, that the kind of Government which shall +thus exist should be regulated by the condition and wants of each +Territory, and that it is necessarily committed to the discretion of +Congress to enact such laws for that purpose as that discretion may +dictate; and no limit to that discretion has been shown, or even +suggested, save those positive prohibitions to legislate, which are +found in the Constitution. + +I confess myself unable to perceive any difference whatever between my +own opinion of the general extent of the power of Congress and the +opinion of the majority of the court, save that I consider it +derivable from the express language of the Constitution, while they +hold it to be silently implied from the power to acquire territory. +Looking at the power of Congress over the Territories as of the extent +just described, what positive prohibition exists in the Constitution, +which restrained Congress from enacting a law in 1820 to prohibit +slavery north of thirty-six degrees thirty minutes north latitude? + +The only one suggested is that clause in the fifth article of the +amendments of the Constitution which declares that no person shall be +deprived of his life, liberty, or property, without due process of +law. I will now proceed to examine the question, whether this clause +is entitled to the effect thus attributed to it. It is necessary, +first, to have a clear view of the nature and incidents of that +particular species of property which is now in question. + +Slavery, being contrary to natural right, is created only by municipal +law. This is not only plain in itself, and agreed by all writers on +the subject, but is inferable from the Constitution, and has been +explicitly declared by this court. The Constitution refers to slaves +as "persons held to service in one State, under the laws thereof." +Nothing can more clearly describe a _status_ created by municipal law. +In Prigg _v._ Pennsylvania, (10 Pet., 611,) this court said: "The +state of slavery is deemed to be a mere municipal regulation, founded +on and limited to the range of territorial laws." In Rankin _v._ +Lydia, (2 Marsh., 12, 470,) the Supreme Court of Appeals of Kentucky +said: "Slavery is sanctioned by the laws of this State, and the right +to hold them under our municipal regulations is unquestionable. But we +view this as a right existing by positive law of a municipal +character, without foundation in the law of nature or the unwritten +common law." I am not acquainted with any case or writer questioning +the correctness of this doctrine. (See also 1 Burge, Col. and For. +Laws, 738-741, where the authorities are collected.) + +The _status_ of slavery is not necessarily always attended with the +same powers on the part of the master. The master is subject to the +supreme power of the State, whose will controls his action towards his +slave, and this control must be defined and regulated by the municipal +law. In one State, as at one period of the Roman law, it may put the +life of the slave into the hand of the master; others, as those of the +United States, which tolerate slavery, may treat the slave as a +person, when the master takes his life; while in others, the law may +recognise a right of the slave to be protected from cruel treatment. +In other words, the _status_ of slavery embraces every condition, from +that in which the slave is known to the law simply as a chattel, with +no civil rights, to that in which he is recognised as a person for all +purposes, save the compulsory power of directing and receiving the +fruits of his labor. Which of these conditions shall attend the +_status_ of slavery, must depend on the municipal law which creates +and upholds it. + +And not only must the _status_ of slavery be created and measured by +municipal law, but the rights, powers, and obligations, which grow out +of that _status_, must be defined, protected, and enforced, by such +laws. The liability of the master for the torts and crimes of his +slave, and of third persons for assaulting or injuring or harboring or +kidnapping him, the forms and modes of emancipation and sale, their +subjection to the debts of the master, succession by death of the +master, suits for freedom, the capacity of the slave to be party to a +suit, or to be a witness, with such police regulations as have existed +in all civilized States where slavery has been tolerated, are among +the subjects upon which municipal legislation becomes necessary when +slavery is introduced. + +Is it conceivable that the Constitution has conferred the right on +every citizen to become a resident on the territory of the United +States with his slaves, and there to hold them as such, but has +neither made nor provided for any municipal regulations which are +essential to the existence of slavery? + +Is it not more rational to conclude that they who framed and adopted +the Constitution were aware that persons held to service under the +laws of a State are property only to the extent and under the +conditions fixed by those laws; that they must cease to be available +as property, when their owners voluntarily place them permanently +within another jurisdiction, where no municipal laws on the subject of +slavery exist; and that, being aware of these principles, and having +said nothing to interfere with or displace them, or to compel Congress +to legislate in any particular manner on the subject, and having +empowered Congress to make all needful rules and regulations +respecting the territory of the United States, it was their intention +to leave to the discretion of Congress what regulations, if any, +should be made concerning slavery therein? Moreover, if the right +exists, what are its limits, and what are its conditions? If citizens +of the United States have the right to take their slaves to a +Territory, and hold them there as slaves, without regard to the laws +of the Territory, I suppose this right is not to be restricted to the +citizens of slaveholding States. A citizen of a State which does not +tolerate slavery can hardly be denied the power of doing the same +thing. And what law of slavery does either take with him to the +Territory? If it be said to be those laws respecting slavery which +existed in the particular State from which each slave last came, what +an anomaly is this? Where else can we find, under the law of any +civilized country, the power to introduce and permanently continue +diverse systems of foreign municipal law, for holding persons in +slavery? I say, not merely to introduce, but permanently to continue, +these anomalies. For the offspring of the female must be governed by +the foreign municipal laws to which the mother was subject; and when +any slave is sold or passes by succession on the death of the owner, +there must pass with him, by a species of subrogation, and as a kind +of unknown _jus in re_, the foreign municipal laws which constituted, +regulated, and preserved, the _status_ of the slave before his +exportation. Whatever theoretical importance may be now supposed to +belong to the maintenance of such a right, I feel a perfect conviction +that it would, if ever tried, prove to be as impracticable in fact, as +it is, in my judgment, monstrous in theory. + +I consider the assumption which lies at the basis of this theory to be +unsound; not in its just sense, and when properly understood, but in +the sense which has been attached to it. That assumption is, that the +territory ceded by France was acquired for the equal benefit of all +the citizens of the United States. I agree to the position. But it was +acquired for their benefit in their collective, not their individual, +capacities. It was acquired for their benefit, as an organized +political society, subsisting as "the people of the United States," +under the Constitution of the United States; to be administered justly +and impartially, and as nearly as possible for the equal benefit of +every individual citizen, according to the best judgment and +discretion of the Congress; to whose power, as the Legislature of the +nation which acquired it, the people of the United States have +committed its administration. Whatever individual claims may be +founded on local circumstances, or sectional differences of condition, +cannot, in my opinion, be recognised in this court, without arrogating +to the judicial branch of the Government powers not committed to it; +and which, with all the unaffected respect I feel for it, when acting +in its proper sphere, I do not think it fitted to wield. + +Nor, in my judgment, will the position, that a prohibition to bring +slaves into a Territory deprives any one of his property without due +process of law, bear examination. + +It must be remembered that this restriction on the legislative power +is not peculiar to the Constitution of the United States; it was +borrowed from _Magna Charta_; was brought to America by our ancestors, +as part of their inherited liberties, and has existed in all the +States, usually in the very words of the great charter. It existed in +every political community in America in 1787, when the ordinance +prohibiting slavery north and west of the Ohio was passed. + +And if a prohibition of slavery in a Territory in 1820 violated this +principle of _Magna Charta_, the ordinance of 1787 also violated it; +and what power had, I do not say the Congress of the Confederation +alone, but the Legislature of Virginia, or the Legislature of any or +all the States of the Confederacy, to consent to such a violation? The +people of the States had conferred no such power. I think I may at +least say, if the Congress did then violate _Magna Charta_ by the +ordinance, no one discovered that violation. Besides, if the +prohibition upon all persons, citizens as well as others, to bring +slaves into a Territory, and a declaration that if brought they shall +be free, deprives citizens of their property without due process of +law, what shall we say of the legislation of many of the slaveholding +States which have enacted the same prohibition? As early as October, +1778, a law was passed in Virginia, that thereafter no slave should be +imported into that Commonwealth by sea or by land, and that every +slave who should be imported should become free. A citizen of Virginia +purchased in Maryland a slave who belonged to another citizen of +Virginia, and removed with the slave to Virginia. The slave sued for +her freedom, and recovered it; as may be seen in Wilson _v._ Isabel, +(5 Call's R., 425.) See also Hunter _v._ Hulsher [Transcriber's Note: +Fulcher], (1 Leigh, 172;) and a similar law has been recognised as +valid in Maryland, in Stewart _v._ Oaks, (5 Har. and John., 107.) I am +not aware that such laws, though they exist in many States, were ever +supposed to be in conflict with the principle of _Magna Charta_ +incorporated into the State Constitutions. It was certainly understood +by the Convention which framed the Constitution, and has been so +understood ever since, that, under the power to regulate commerce, +Congress could prohibit the importation of slaves; and the exercise of +the power was restrained till 1808. A citizen of the United States +owns slaves in Cuba, and brings them to the United States, where they +are set free by the legislation of Congress. Does this legislation +deprive him of his property without due process of law? If so, what +becomes of the laws prohibiting the slave trade? If not, how can a +similar regulation respecting a Territory violate the fifth amendment +of the Constitution? + +Some reliance was placed by the defendant's counsel upon the fact that +the prohibition of slavery in this territory was in the words, "that +slavery, &c., shall be and is hereby _forever_ prohibited." But the +insertion of the word _forever_ can have no legal effect. Every +enactment not expressly limited in its duration continues in force +until repealed or abrogated by some competent power, and the use of +the word "forever" can give to the law no more durable operation. The +argument is, that Congress cannot so legislate as to bind the future +States formed out of the territory, and that in this instance it has +attempted to do so. Of the political reasons which may have induced +the Congress to use these words, and which caused them to expect that +subsequent Legislatures would conform their action to the then general +opinion of the country that it ought to be permanent, this court can +take no cognizance. + +However fit such considerations are to control the action of Congress, +and however reluctant a statesman may be to disturb what has been +settled, every law made by Congress may be repealed, and, saving +private rights, and public rights gained by States, its repeal is +subject to the absolute will of the same power which enacted it. If +Congress had enacted that the crime of murder, committed in this +Indian Territory, north of thirty-six degrees thirty minutes, by or on +any white man, should _forever_ be punishable with death, it would +seem to me an insufficient objection to an indictment, found while it +was a Territory, that at some future day States might exist there, and +so the law was invalid, because, by its terms, it was to continue in +force forever. Such an objection rests upon a misapprehension of the +province and power of courts respecting the constitutionality of laws +enacted by the Legislature. + +If the Constitution prescribe one rule, and the law another and +different rule, it is the duty of courts to declare that the +Constitution, and not the law, governs the case before them for +judgment. If the law include no case save those for which the +Constitution has furnished a different rule, or no case which the +Legislature has the power to govern, then the law can have no +operation. If it includes cases which the Legislature has power to +govern, and concerning which the Constitution does not prescribe a +different rule, the law governs those cases, though it may, in its +terms, attempt to include others, on which it cannot operate. In other +words, this court cannot declare void an act of Congress which +constitutionally embraces some cases, though other cases, within its +terms, are beyond the control of Congress, or beyond the reach of that +particular law. If, therefore, Congress had power to make a law +excluding slavery from this territory while under the exclusive power +of the United States, the use of the word "forever" does not +invalidate the law, so long as Congress has the exclusive legislative +power in the territory. + +But it is further insisted that the treaty of 1803, between the United +States and France, by which this territory was acquired, has so +restrained the constitutional powers of Congress, that it cannot, by +law, prohibit the introduction of slavery into that part of this +territory north and west of Missouri, and north of thirty-six degrees +thirty minutes north latitude. + +By a treaty with a foreign nation, the United States may rightfully +stipulate that the Congress will or will not exercise its legislative +power in some particular manner, on some particular subject. Such +promises, when made, should be voluntarily kept, with the most +scrupulous good faith. But that a treaty with a foreign nation can +deprive the Congress of any part of the legislative power conferred by +the people, so that it no longer can legislate as it was empowered by +the Constitution to do, I more than doubt. + +The powers of the Government do and must remain unimpaired. The +responsibility of the Government to a foreign nation, for the exercise +of those powers, is quite another matter. That responsibility is to be +met, and justified to the foreign nation, according to the +requirements of the rules of public law; but never upon the assumption +that the United States had parted with or restricted any power of +acting according to its own free will, governed solely by its own +appreciation of its duty. + +The second section of the fourth article is, "This Constitution, and +the laws of the United States which shall be made in pursuance +thereof, and all treaties made or which shall be made under the +authority of the United States, shall be the supreme law of the land." +This has made treaties part of our municipal law; but it has not +assigned to them any particular degree of authority, nor declared that +laws so enacted shall be irrepealable. No supremacy is assigned to +treaties over acts of Congress. That they are not perpetual, and must +be in some way repealable, all will agree. + +If the President and the Senate alone possess the power to repeal or +modify a law found in a treaty, inasmuch as they can change or +abrogate one treaty only by making another inconsistent with the +first, the Government of the United States could not act at all, to +that effect, without the consent of some foreign Government. I do not +consider, I am not aware it has ever been considered, that the +Constitution has placed our country in this helpless condition. The +action of Congress in repealing the treaties with France by the act of +July 7th, 1798, (1 Stat. at Large, 578,) was in conformity with these +views. In the case of Taylor et al. _v._ Morton, (2 Curtis's Cir. Ct. +R., 454,) I had occasion to consider this subject, and I adhere to +the views there expressed. + +If, therefore, it were admitted that the treaty between the United +States and France did contain an express stipulation that the United +States would not exclude slavery from so much of the ceded territory +as is now in question, this court could not declare that an act of +Congress excluding it was void by force of the treaty. Whether or no a +case existed sufficient to justify a refusal to execute such a +stipulation, would not be a judicial, but a political and legislative +question, wholly beyond the authority of this court to try and +determine. It would belong to diplomacy and legislation, and not to +the administration of existing laws. Such a stipulation in a treaty, +to legislate or not to legislate in a particular way, has been +repeatedly held in this court to address itself to the political or +the legislative power, by whose action thereon this court is bound. +(Foster _v._ Nicolson, 2 Peters, 314; Garcia _v._ Lee, 12 Peters, +519.) + +But, in my judgment, this treaty contains no stipulation in any manner +affecting the action of the United States respecting the territory in +question. Before examining the language of the treaty, it is material +to bear in mind that the part of the ceded territory lying north of +thirty-six degrees thirty minutes, and west and north of the present +State of Missouri, was then a wilderness, uninhabited save by savages, +whose possessory title had not then been extinguished. + +It is impossible for me to conceive on what ground France could have +advanced a claim, or could have desired to advance a claim, to +restrain the United States from making any rules and regulations +respecting this territory, which the United States might think fit to +make; and still less can I conceive of any reason which would have +induced the United States to yield to such a claim. It was to be +expected that France would desire to make the change of sovereignty +and jurisdiction as little burdensome as possible to the then +inhabitants of Louisiana, and might well exhibit even an anxious +solicitude to protect their property and persons, and secure to them +and their posterity their religious and political rights; and the +United States, as a just Government, might readily accede to all +proper stipulations respecting those who were about to have their +allegiance transferred. But what interest France could have in +uninhabited territory, which, in the language of the treaty, was to be +transferred "forever, and in full sovereignty," to the United States, +or how the United States could consent to allow a foreign nation to +interfere in its purely internal affairs, in which that foreign nation +had no concern whatever, is difficult for me to conjecture. In my +judgment, this treaty contains nothing of the kind. + +The third article is supposed to have a bearing on the question. It is +as follows: "The inhabitants of the ceded territory shall be +incorporated in the Union of the United States, and admitted as soon +as possible, according to the principles of the Federal Constitution, +to the enjoyment of all the rights, advantages, and immunities, of +citizens of the United States; and in the mean time they shall be +maintained and protected in the enjoyment of their liberty, property, +and the religion they profess." + +There are two views of this article, each of which, I think, +decisively shows that it was not intended to restrain the Congress +from excluding slavery from that part of the ceded territory then +uninhabited. The first is, that, manifestly, its sole object was to +protect individual rights of the then inhabitants of the territory. +They are to be "maintained and protected in the free enjoyment of +their liberty, property, and the religion they profess." But this +article does not secure to them the right to go upon the public domain +ceded by the treaty, either with or without their slaves. The right or +power of doing this did not exist before or at the time the treaty was +made. The French and Spanish Governments while they held the country, +as well as the United States when they acquired it, always exercised +the undoubted right of excluding inhabitants from the Indian country, +and of determining when and on what conditions it should be opened to +settlers. And a stipulation, that the then inhabitants of Louisiana +should be protected in their property, can have no reference to their +use of that property, where they had no right, under the treaty, to go +with it, save at the will of the United States. If one who was an +inhabitant of Louisiana at the time of the treaty had afterwards taken +property then owned by him, consisting of fire-arms, ammunition, and +spirits, and had gone into the Indian country north of thirty-six +degrees thirty minutes, to sell them to the Indians, all must agree +the third article of the treaty would not have protected him from +indictment under the act of Congress of March 30, 1802, (2 Stat. at +Large, 139,) adopted and extended to this territory by the act of +March 26, 1804, (2 Stat. at Large, 283.) + +Besides, whatever rights were secured were individual rights. If +Congress should pass any law which violated such rights of any +individual, and those rights were of such a character as not to be +within the lawful control of Congress under the Constitution, that +individual could complain, and the act of Congress, as to such rights +of his, would be inoperative; but it would be valid and operative as +to all other persons, whose individual rights did not come under the +protection of the treaty. And inasmuch as it does not appear that any +inhabitant of Louisiana, whose rights were secured by treaty, had been +injured, it would be wholly inadmissible for this court to assume, +first, that one or more such cases may have existed; and, second, that +if any did exist, the entire law was void--not only as to those cases, +if any, in which it could not rightfully operate, but as to all +others, wholly unconnected with the treaty, in which such law could +rightfully operate. + +But it is quite unnecessary, in my opinion, to pursue this inquiry +further, because it clearly appears from the language of the article, +and it has been decided by this court, that the stipulation was +temporary, and ceased to have any effect when the then inhabitants of +the Territory of Louisiana, in whose behalf the stipulation was made, +were incorporated into the Union. + +In the cases of New Orleans _v._ De Armas et al., (9 Peters, 223,) the +question was, whether a title to property, which existed at the date +of the treaty, continued to be protected by the treaty after the State +of Louisiana was admitted to the Union. The third article of the +treaty was relied on. Mr. Chief Justice Marshall said: "This article +obviously contemplates two objects. One, that Louisiana shall be +admitted into the Union as soon as possible, on an equal footing with +the other States; and the other, that, till such admission, the +inhabitants of the ceded territory shall be protected in the free +enjoyment of their liberty, property, and religion. Had any one of +these rights been violated while these stipulations continued in +force, the individual supposing himself to be injured might have +brought his case into this court, under the twenty-fifth section of +the judicial act. But this stipulation ceased to operate when +Louisiana became a member of the Union, and its inhabitants were +'admitted to the enjoyment of all the rights, advantages, and +immunities, of citizens of the United States.'" + +The cases of Chouteau _v._ Marguerita, (12 Peters, 507,) and Permoli +_v._ New Orleans, (3 How., 589,) are in conformity with this view of +the treaty. + +To convert this temporary stipulation of the treaty, in behalf of +French subjects who then inhabited a small portion of Louisiana, into +a permanent restriction upon the power of Congress to regulate +territory then uninhabited, and to assert that it not only restrains +Congress from affecting the rights of property of the then +inhabitants, but enabled them and all other citizens of the United +States to go into any part of the ceded territory with their slaves, +and hold them there, is a construction of this treaty so opposed to +its natural meaning, and so far beyond its subject-matter and the +evident design of the parties, that I cannot assent to it. In my +opinion, this treaty has no bearing on the present question. + +For these reasons, I am of opinion that so much of the several acts of +Congress as prohibited slavery and involuntary servitude within that +part of the Territory of Wisconsin lying north of thirty-six degrees +thirty minutes north latitude, and west of the river Mississippi, were +constitutional and valid laws. + +I have expressed my opinion, and the reasons therefor, at far greater +length than I could have wished, upon the different questions on which +I have found it necessary to pass, to arrive at a judgment on the case +at bar. These questions are numerous, and the grave importance of some +of them required me to exhibit fully the grounds of my opinion. I have +touched no question which, in the view I have taken, it was not +absolutely necessary for me to pass upon, to ascertain whether the +judgment of the Circuit Court should stand or be reversed. I have +avoided no question on which the validity of that judgment depends. To +have done either more or less, would have been inconsistent with my +views of my duty. + +In my opinion, the judgment of the Circuit Court should be reversed, +and the cause remanded for a new trial. + + + + + + + + + +End of the Project Gutenberg EBook of 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, by Benjamin C. Howard + +*** END OF THIS PROJECT GUTENBERG EBOOK CASE OF DRED SCOTT *** + +***** This file should be named 31425.txt or 31425.zip ***** +This and all associated files of various formats will be found in: + http://www.gutenberg.org/3/1/4/2/31425/ + +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.) + + +Updated editions will replace the previous one--the old editions +will be renamed. + +Creating the works from public domain print editions means that no +one owns a United States copyright in these works, so the Foundation +(and you!) can copy and distribute it in the United States without +permission and without paying copyright royalties. Special rules, +set forth in the General Terms of Use part of this license, apply to +copying and distributing Project Gutenberg-tm electronic works to +protect the PROJECT GUTENBERG-tm concept and trademark. Project +Gutenberg is a registered trademark, and may not be used if you +charge for the eBooks, unless you receive specific permission. If you +do not charge anything for copies of this eBook, complying with the +rules is very easy. You may use this eBook for nearly any purpose +such as creation of derivative works, reports, performances and +research. They may be modified and printed and given away--you may do +practically ANYTHING with public domain eBooks. Redistribution is +subject to the trademark license, especially commercial +redistribution. + + + +*** START: FULL LICENSE *** + +THE FULL PROJECT GUTENBERG LICENSE +PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK + +To protect the Project Gutenberg-tm mission of promoting the free +distribution of electronic works, by using or distributing this work +(or any other work associated in any way with the phrase "Project +Gutenberg"), you agree to comply with all the terms of the Full Project +Gutenberg-tm License (available with this file or online at +http://gutenberg.org/license). + + +Section 1. General Terms of Use and Redistributing Project Gutenberg-tm +electronic works + +1.A. By reading or using any part of this Project Gutenberg-tm +electronic work, you indicate that you have read, understand, agree to +and accept all the terms of this license and intellectual property +(trademark/copyright) agreement. If you do not agree to abide by all +the terms of this agreement, you must cease using and return or destroy +all copies of Project Gutenberg-tm electronic works in your possession. +If you paid a fee for obtaining a copy of or access to a Project +Gutenberg-tm electronic work and you do not agree to be bound by the +terms of this agreement, you may obtain a refund from the person or +entity to whom you paid the fee as set forth in paragraph 1.E.8. + +1.B. "Project Gutenberg" is a registered trademark. It may only be +used on or associated in any way with an electronic work by people who +agree to be bound by the terms of this agreement. There are a few +things that you can do with most Project Gutenberg-tm electronic works +even without complying with the full terms of this agreement. See +paragraph 1.C below. There are a lot of things you can do with Project +Gutenberg-tm electronic works if you follow the terms of this agreement +and help preserve free future access to Project Gutenberg-tm electronic +works. See paragraph 1.E below. + +1.C. The Project Gutenberg Literary Archive Foundation ("the Foundation" +or PGLAF), owns a compilation copyright in the collection of Project +Gutenberg-tm electronic works. Nearly all the individual works in the +collection are in the public domain in the United States. If an +individual work is in the public domain in the United States and you are +located in the United States, we do not claim a right to prevent you from +copying, distributing, performing, displaying or creating derivative +works based on the work as long as all references to Project Gutenberg +are removed. Of course, we hope that you will support the Project +Gutenberg-tm mission of promoting free access to electronic works by +freely sharing Project Gutenberg-tm works in compliance with the terms of +this agreement for keeping the Project Gutenberg-tm name associated with +the work. You can easily comply with the terms of this agreement by +keeping this work in the same format with its attached full Project +Gutenberg-tm License when you share it without charge with others. + +1.D. The copyright laws of the place where you are located also govern +what you can do with this work. Copyright laws in most countries are in +a constant state of change. If you are outside the United States, check +the laws of your country in addition to the terms of this agreement +before downloading, copying, displaying, performing, distributing or +creating derivative works based on this work or any other Project +Gutenberg-tm work. The Foundation makes no representations concerning +the copyright status of any work in any country outside the United +States. + +1.E. Unless you have removed all references to Project Gutenberg: + +1.E.1. The following sentence, with active links to, or other immediate +access to, the full Project Gutenberg-tm License must appear prominently +whenever any copy of a Project Gutenberg-tm work (any work on which the +phrase "Project Gutenberg" appears, or with which the phrase "Project +Gutenberg" is associated) is accessed, displayed, performed, viewed, +copied or distributed: + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org + +1.E.2. If an individual Project Gutenberg-tm electronic work is derived +from the public domain (does not contain a notice indicating that it is +posted with permission of the copyright holder), the work can be copied +and distributed to anyone in the United States without paying any fees +or charges. If you are redistributing or providing access to a work +with the phrase "Project Gutenberg" associated with or appearing on the +work, you must comply either with the requirements of paragraphs 1.E.1 +through 1.E.7 or obtain permission for the use of the work and the +Project Gutenberg-tm trademark as set forth in paragraphs 1.E.8 or +1.E.9. + +1.E.3. If an individual Project Gutenberg-tm electronic work is posted +with the permission of the copyright holder, your use and distribution +must comply with both paragraphs 1.E.1 through 1.E.7 and any additional +terms imposed by the copyright holder. Additional terms will be linked +to the Project Gutenberg-tm License for all works posted with the +permission of the copyright holder found at the beginning of this work. + +1.E.4. Do not unlink or detach or remove the full Project Gutenberg-tm +License terms from this work, or any files containing a part of this +work or any other work associated with Project Gutenberg-tm. + +1.E.5. Do not copy, display, perform, distribute or redistribute this +electronic work, or any part of this electronic work, without +prominently displaying the sentence set forth in paragraph 1.E.1 with +active links or immediate access to the full terms of the Project +Gutenberg-tm License. + +1.E.6. You may convert to and distribute this work in any binary, +compressed, marked up, nonproprietary or proprietary form, including any +word processing or hypertext form. However, if you provide access to or +distribute copies of a Project Gutenberg-tm work in a format other than +"Plain Vanilla ASCII" or other format used in the official version +posted on the official Project Gutenberg-tm web site (www.gutenberg.org), +you must, at no additional cost, fee or expense to the user, provide a +copy, a means of exporting a copy, or a means of obtaining a copy upon +request, of the work in its original "Plain Vanilla ASCII" or other +form. Any alternate format must include the full Project Gutenberg-tm +License as specified in paragraph 1.E.1. + +1.E.7. Do not charge a fee for access to, viewing, displaying, +performing, copying or distributing any Project Gutenberg-tm works +unless you comply with paragraph 1.E.8 or 1.E.9. + +1.E.8. You may charge a reasonable fee for copies of or providing +access to or distributing Project Gutenberg-tm electronic works provided +that + +- You pay a royalty fee of 20% of the gross profits you derive from + the use of Project Gutenberg-tm works calculated using the method + you already use to calculate your applicable taxes. The fee is + owed to the owner of the Project Gutenberg-tm trademark, but he + has agreed to donate royalties under this paragraph to the + Project Gutenberg Literary Archive Foundation. Royalty payments + must be paid within 60 days following each date on which you + prepare (or are legally required to prepare) your periodic tax + returns. Royalty payments should be clearly marked as such and + sent to the Project Gutenberg Literary Archive Foundation at the + address specified in Section 4, "Information about donations to + the Project Gutenberg Literary Archive Foundation." + +- You provide a full refund of any money paid by a user who notifies + you in writing (or by e-mail) within 30 days of receipt that s/he + does not agree to the terms of the full Project Gutenberg-tm + License. You must require such a user to return or + destroy all copies of the works possessed in a physical medium + and discontinue all use of and all access to other copies of + Project Gutenberg-tm works. + +- You provide, in accordance with paragraph 1.F.3, a full refund of any + money paid for a work or a replacement copy, if a defect in the + electronic work is discovered and reported to you within 90 days + of receipt of the work. + +- You comply with all other terms of this agreement for free + distribution of Project Gutenberg-tm works. + +1.E.9. If you wish to charge a fee or distribute a Project Gutenberg-tm +electronic work or group of works on different terms than are set +forth in this agreement, you must obtain permission in writing from +both the Project Gutenberg Literary Archive Foundation and Michael +Hart, the owner of the Project Gutenberg-tm trademark. Contact the +Foundation as set forth in Section 3 below. + +1.F. + +1.F.1. Project Gutenberg volunteers and employees expend considerable +effort to identify, do copyright research on, transcribe and proofread +public domain works in creating the Project Gutenberg-tm +collection. Despite these efforts, Project Gutenberg-tm electronic +works, and the medium on which they may be stored, may contain +"Defects," such as, but not limited to, incomplete, inaccurate or +corrupt data, transcription errors, a copyright or other intellectual +property infringement, a defective or damaged disk or other medium, a +computer virus, or computer codes that damage or cannot be read by +your equipment. + +1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right +of Replacement or Refund" described in paragraph 1.F.3, the Project +Gutenberg Literary Archive Foundation, the owner of the Project +Gutenberg-tm trademark, and any other party distributing a Project +Gutenberg-tm electronic work under this agreement, disclaim all +liability to you for damages, costs and expenses, including legal +fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT +LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE +PROVIDED IN PARAGRAPH F3. YOU AGREE THAT THE FOUNDATION, THE +TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE +LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR +INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH +DAMAGE. + +1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a +defect in this electronic work within 90 days of receiving it, you can +receive a refund of the money (if any) you paid for it by sending a +written explanation to the person you received the work from. If you +received the work on a physical medium, you must return the medium with +your written explanation. The person or entity that provided you with +the defective work may elect to provide a replacement copy in lieu of a +refund. If you received the work electronically, the person or entity +providing it to you may choose to give you a second opportunity to +receive the work electronically in lieu of a refund. If the second copy +is also defective, you may demand a refund in writing without further +opportunities to fix the problem. + +1.F.4. Except for the limited right of replacement or refund set forth +in paragraph 1.F.3, this work is provided to you 'AS-IS' WITH NO OTHER +WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO +WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR ANY PURPOSE. + +1.F.5. Some states do not allow disclaimers of certain implied +warranties or the exclusion or limitation of certain types of damages. +If any disclaimer or limitation set forth in this agreement violates the +law of the state applicable to this agreement, the agreement shall be +interpreted to make the maximum disclaimer or limitation permitted by +the applicable state law. The invalidity or unenforceability of any +provision of this agreement shall not void the remaining provisions. + +1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the +trademark owner, any agent or employee of the Foundation, anyone +providing copies of Project Gutenberg-tm electronic works in accordance +with this agreement, and any volunteers associated with the production, +promotion and distribution of Project Gutenberg-tm electronic works, +harmless from all liability, costs and expenses, including legal fees, +that arise directly or indirectly from any of the following which you do +or cause to occur: (a) distribution of this or any Project Gutenberg-tm +work, (b) alteration, modification, or additions or deletions to any +Project Gutenberg-tm work, and (c) any Defect you cause. + + +Section 2. Information about the Mission of Project Gutenberg-tm + +Project Gutenberg-tm is synonymous with the free distribution of +electronic works in formats readable by the widest variety of computers +including obsolete, old, middle-aged and new computers. It exists +because of the efforts of hundreds of volunteers and donations from +people in all walks of life. + +Volunteers and financial support to provide volunteers with the +assistance they need, are critical to reaching Project Gutenberg-tm's +goals and ensuring that the Project Gutenberg-tm collection will +remain freely available for generations to come. In 2001, the Project +Gutenberg Literary Archive Foundation was created to provide a secure +and permanent future for Project Gutenberg-tm and future generations. +To learn more about the Project Gutenberg Literary Archive Foundation +and how your efforts and donations can help, see Sections 3 and 4 +and the Foundation web page at http://www.pglaf.org. + + +Section 3. Information about the Project Gutenberg Literary Archive +Foundation + +The Project Gutenberg Literary Archive Foundation is a non profit +501(c)(3) educational corporation organized under the laws of the +state of Mississippi and granted tax exempt status by the Internal +Revenue Service. The Foundation's EIN or federal tax identification +number is 64-6221541. Its 501(c)(3) letter is posted at +http://pglaf.org/fundraising. Contributions to the Project Gutenberg +Literary Archive Foundation are tax deductible to the full extent +permitted by U.S. federal laws and your state's laws. + +The Foundation's principal office is located at 4557 Melan Dr. S. +Fairbanks, AK, 99712., but its volunteers and employees are scattered +throughout numerous locations. Its business office is located at +809 North 1500 West, Salt Lake City, UT 84116, (801) 596-1887, email +business@pglaf.org. Email contact links and up to date contact +information can be found at the Foundation's web site and official +page at http://pglaf.org + +For additional contact information: + Dr. Gregory B. Newby + Chief Executive and Director + gbnewby@pglaf.org + + +Section 4. Information about Donations to the Project Gutenberg +Literary Archive Foundation + +Project Gutenberg-tm depends upon and cannot survive without wide +spread public support and donations to carry out its mission of +increasing the number of public domain and licensed works that can be +freely distributed in machine readable form accessible by the widest +array of equipment including outdated equipment. Many small donations +($1 to $5,000) are particularly important to maintaining tax exempt +status with the IRS. + +The Foundation is committed to complying with the laws regulating +charities and charitable donations in all 50 states of the United +States. Compliance requirements are not uniform and it takes a +considerable effort, much paperwork and many fees to meet and keep up +with these requirements. We do not solicit donations in locations +where we have not received written confirmation of compliance. To +SEND DONATIONS or determine the status of compliance for any +particular state visit http://pglaf.org + +While we cannot and do not solicit contributions from states where we +have not met the solicitation requirements, we know of no prohibition +against accepting unsolicited donations from donors in such states who +approach us with offers to donate. + +International donations are gratefully accepted, but we cannot make +any statements concerning tax treatment of donations received from +outside the United States. U.S. laws alone swamp our small staff. + +Please check the Project Gutenberg Web pages for current donation +methods and addresses. Donations are accepted in a number of other +ways including checks, online payments and credit card donations. +To donate, please visit: http://pglaf.org/donate + + +Section 5. General Information About Project Gutenberg-tm electronic +works. + +Professor Michael S. Hart is the originator of the Project Gutenberg-tm +concept of a library of electronic works that could be freely shared +with anyone. For thirty years, he produced and distributed Project +Gutenberg-tm eBooks with only a loose network of volunteer support. + + +Project Gutenberg-tm eBooks are often created from several printed +editions, all of which are confirmed as Public Domain in the U.S. +unless a copyright notice is included. Thus, we do not necessarily +keep eBooks in compliance with any particular paper edition. + + +Most people start at our Web site which has the main PG search facility: + + http://www.gutenberg.org + +This Web site includes information about Project Gutenberg-tm, +including how to make donations to the Project Gutenberg Literary +Archive Foundation, how to help produce our new eBooks, and how to +subscribe to our email newsletter to hear about new eBooks. diff --git a/31425.zip b/31425.zip Binary files differnew file mode 100644 index 0000000..c0d549f --- /dev/null +++ b/31425.zip diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..74d7d34 --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #31425 (https://www.gutenberg.org/ebooks/31425) |