U.S. Supreme Court
Syllabus (Summary and Procedural Posture):
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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.
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Sandford appeared, and filed the following plea:
“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 (Page 60 U. S. 397) 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.”
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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.
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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 (Page 60 U. S. 399) 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.
OPINION [OF THE SUPREME COURT]
Mr. Chief Justice TANEY delivered the opinion of the court.
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.
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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. (Page 60 U. S. 401)
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 (Page 60 U. S. 402) 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.
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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. (Page 60 U. S. 403)
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. 171, 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 (Page 60 U. S. 404) 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 (Page 60 U. S. 405) 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 lawmaking 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 anyone 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 (Page 60 U. S. 406) 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 (Page 60 U. S. 407) 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 (Page 60 U. S. 408) 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 (Page 60 U. S. 409) 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,
“[w]hen 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 (Page 60 U. S. 410) 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. [Federalist Papers demonstrate that the freedom of slaved peoples was a matter of vigorous debate when the worth of the Constitution was being debated.]
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 (Page 60 U. S. 411) 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 (Page 60 U. S. 412) 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.
[…] [See this portion of the full judgment for a lengthy recitation of co-temporaneous laws subjugating African-Americans]
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.
[…]
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.
[…]
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 (Page 60 U. S. 419) 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 anyone, of any color, who was born under allegiance to another Government. But the language of the law above quoted shows that citizenship (Page 60 U. S. 420) 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.
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 (Page 60 U. S. 422) 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, will all the privileges and immunities which belong to citizens of the (Page 60 U. S. 423) 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.
[…]
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, (Page 60 U. S. 427) 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 extrajudicial, 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, (Page 60 U. S. 428) 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 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 (Page 60 U. S. 429) 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.
[…]
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 (Page 60 U. S. 432) 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 anyone who is held as a slave under the have of anyone 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 preservation 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 (Page 60 U. S. 433) 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.
[…]
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.
[…]
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 reestablish 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. (Page 60 U. S. 441) 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.
[…]
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.”
[…]
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.
[…] 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 (Page 60 U. S. 448) 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.
[…]
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 (Page 60 U. S. 450) 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 anyone 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 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 (Page 60 U. S. 452) 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 that 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 (Page 60 U. S. 453) 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.
[…]
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 (Page 60 U. S. 455) 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 extrajudicially 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 to 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 (Page 60 U. S. 456) 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. (Page 60 U. S. 457)
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 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.
[…]
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 extraterritorially. 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, p. 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, 38 U. S. 13 Peters 519, 38 U. S. 589.
These principles fully establish that it belongs to the sovereign (Page 60 U. S. 461) 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 extraterritorial 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 extraterritorially, 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 extraterritorially except what may be voluntarily conceded to them.
[…]
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 extraterritorially 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 (Page 60 U. S. 465) 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 extraterritorial 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.
[…]
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.”
[…]
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.
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. (Page 60 U. S. 469) 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.
[…]
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 (Page 60 U. S. 478) 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.
[…]
The above account of slavery and its modifications will be found in strictest conformity with the Institutes of Justinian. Thus, in 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 reestablished 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 (Page 60 U. S. 480) 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.
[…]
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.
[…]
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.
[…]
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 (Page 60 U. S. 494) 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.
[…]
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 (Page 60 U. S. 496) 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 anyone 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 (Page 60 U. S. 497) 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.”
[…]
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 State, 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 (Page 60 U. S. 501) 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. 44 U. S. 3 How. 212, 53 U. S. 12 How. 1, 26 U. S. 1 Pet. 511, 38 U. S. 13 P. 436, 57 U. S. 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.
[…]
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 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 (Page 60 U. S. 503) 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.
[…]
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.
[…]
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 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 cooperate within their several jurisdictions to maintain the rights of the same citizens under both Governments unimpaired. (Page 60 U. S. 516)
[…]
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 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.”
[…]
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 (Page 60 U. S. 520) 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.
[…]
With these facts prominently before the [Constitutional] 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.
[…]
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 (Page 60 U. S. 528) 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.
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 meantime, 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 (Page 60 U. S. 529) 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 and 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.
[…] 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.
[…]
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 (Page 60 U. S. 533) 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.”
[…]
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 (Page 60 U. S. 534) 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 now 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 Pet. 539, 14 Curtis 421, this court said 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.
[…]
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; (Page 60 U. S. 536) they descend to heirs, are taxed, and, in the South, they are a subject of commerce.
[…]
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.”
[…]
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.
[…]
Many of the States, on the adoption of the Constitution, or (Page 60 U. S. 538) 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.
[…]
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. (Page 60 U. S. 543)
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. (Page 60 U. S. 544)
This power has been exercised, without doubt of its constitutionality, over territory acquired by conquest and purchase.
[…]
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.”
[…]
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 (Page 60 U. S. 547) 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.
[…]
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 (Page 60 U. S. 548) 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 (Page 60 U. S. 549) 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 says 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 from 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 (Page 60 U. S. 550) 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 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. (Page 60 U. S. 551) 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 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.
[…]
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.
[…]
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 anyone, I cannot assent that it shall be made a basis of judicial action.
[…]
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.
[…]
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 (Page 60 U. S. 558) 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.
[…]
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 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.
[…]
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 (Page 60 U. S. 560) 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 the liberated slave, (Page 60 U. S. 561) 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, 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, 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 (Page 60 U. S. 562) 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 How. 397, 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 anyone 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 (Page 60 U. S. 563) 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 the 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 (Page 60 U. S. 564) 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 restate.
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 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.
[…]
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.
[…]
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 (Page 60 U. S. 570) 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 facts not alleged.
[…]
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.
[…]
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 (Page 60 U. S. 572) 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.
[…]
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 (Page 60 U. S. 573) 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.
[…]
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.
[…]
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 (Page 60 U. S. 576) 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, or 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, (Page 60 U. S. 577) and thus to continue British subjects. McIlvain v. Coxe’s Lessee, 4 Cranch 209; Inglis v. Sailors’ Snug Harbor, 3 Pet. 99; Shanks v. Dupont, 3 Pet. 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 (Page 60 U. S. 578) 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. 8a, 129a; 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, 15 U. S. 2 Wheat. 259, 15 U. S. 269, 3 Wash.R. 313, 322, 25 U. S. 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 (Page 60 U. S. 579) 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, (Page 60 U. S. 580) 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 to 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. (Page 60 U. S. 581)
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 (Page 60 U. S. 582) 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 (Page 60 U. S. 583) eligible to not only Federal offices, but offices even in those States whose Constitution 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 (Page 60 U. S. 584) 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 became, 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 (Page 60 U. S. 585) 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 (Page 60 U. S. 586) 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 salve 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 though 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 (Page 60 U. S. 587) 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.
[…]
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 (Page 60 U. S. 588) 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 (Page 60 U. S. 589)
Act and the grounds and conclusions announced in their opinion.
[…]
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.
[…]
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 (Page 60 U. S. 593) 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 anyone 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.
[…]
[…B]y 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.
[…]
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.
[…] 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 (Page 60 U. S. 599) 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.
[…]
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.
[…]
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 being to that condition, is an effectual act of emancipation. And the law does not enable Dr. Emerson, or anyone 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.
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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.
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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 (Page 60 U. S. 614) 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.
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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, (Page 60 U. S. 615) not a judicial, question. Whatever Congress deems needful is so, under the grant of power.
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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.
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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 “allneedful 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.
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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.
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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 (Page 60 U. S. 625) 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.
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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 (Page 60 U. S. 627) 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.
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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.
[…]
(From: Justia)
Informed Citizens. Accountable Power. 