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REPORT

OF

THE DECISION

OF THE

SUPREME COURT OF THE UNITED STATES,

AND THE

OPINIONS OF THE JUDGES THEREOF,

IN THE CASE OF

DRED SCOTT

VERSUS

JOHN F.A. SANDFORD.

DECEMBER TERM, 1856.


BY BENJAMIN C. HOWARD,
FROM THE NINETEENTH VOLUME OF HOWARD'S REPORTS.


WASHINGTON:
CORNELIUS WENDELL, PRINTER.
1857.




CONTENTS


Syllabus
Mr. Chief Justice Taney (majority opinion)
Mr. Justice Wayne (concurrence)
Mr. Justice Nelson (concurrence)
Mr. Justice Grier (concurrence)
Mr. Justice Daniel (concurrence)
Mr. Justice Campbell (concurrence)
Mr. Justice Catron (concurrence)
Mr. Justice McLean (dissent)
Mr. Justice Curtis (dissent)




SUPREME COURT OF THE UNITED STATES.
DECEMBER TERM, 1856.

DRED SCOTT

VERSUS

JOHN F.A. SANDFORD.


     DRED SCOTT, PLAINTIFF IN ERROR, _v._ JOHN F.A. SANDFORD.

     This case was brought up, by writ of error, from the Circuit
     Court of the United States for the district of Missouri.

     It was an action of trespass _vi et armis_ instituted in the
     Circuit Court by Scott against Sandford.

     Prior to the institution of the present suit, an action was
     brought by Scott for his freedom in the Circuit Court of St.
     Louis county, (State court,) where there was a verdict and
     judgment in his favor. On a writ of error to the Supreme
     Court of the State, the judgment below was reversed, and the
     case remanded to the Circuit Court, where it was continued
     to await the decision of the case now in question.

     The declaration of Scott contained three counts: one, that
     Sandford had assaulted the plaintiff; one, that he had
     assaulted Harriet Scott, his wife; and one, that he had
     assaulted Eliza Scott and Lizzie Scott, his children.

     Sandford appeared, and filed the following plea:

     DRED SCOTT         }
     _v._               } _Plea to the jurisdiction of the Court._
     JOHN F.A. SANFORD. }

     APRIL TERM, 1854.

     And the said John F.A. Sandford, in his own proper person,
     comes and says, that this court ought not to have or take
     further cognisance of the action aforesaid, because he says
     that said cause of action, and each and every of them, (if
     any such have accrued to the said Dred Scott,) accrued to
     the said Dred Scott out of the jurisdiction of this court,
     and exclusively within the jurisdiction of the courts of
     the State of Missouri, for that, to wit: the said plaintiff,
     Dred Scott, is not a citizen of the State of Missouri, as
     alleged in his declaration, because he is a negro of African
     descent; his ancestors were of pure African blood, and were
     brought into this country and sold as negro slaves, and this
     the said Sandford is ready to verify. Wherefore he prays
     judgment, whether this court can or will take further
     cognizance of the action aforesaid.

     JOHN F.A. SANDFORD.

     To this plea there was a demurrer in the usual form, which
     was argued in April, 1854, when the court gave judgment that
     the demurrer should be sustained.

     In May, 1854, the defendant, in pursuance of an agreement
     between counsel, and with the leave of the court, pleaded in
     bar of the action:

     1. Not guilty.

     2. That the plaintiff was a negro slave, the lawful property
     of the defendant, and, as such, the defendant gently laid
     his hands upon him, and thereby had only restrained him, as
     the defendant had a right to do.

     3. That with respect to the wife and daughters of the
     plaintiff, in the second and third counts of the declaration
     mentioned, the defendant had, as to them, only acted in the
     same manner, and in virtue of the same legal right.

     In the first of these pleas, the plaintiff joined issue; and
     to the second and third, filed replications alleging that
     the defendant, of his own wrong and without the cause in his
     second and third pleas alleged, committed the trespasses,
     &c.

     The counsel then filed the following agreed statement of
     facts, viz:

     In the year 1834, the plaintiff was a negro slave belonging
     to Dr. Emerson, who was a surgeon in the army of the United
     States. In that year, 1834, said Dr. Emerson took the
     plaintiff from the State of Missouri to the military post at
     Rock Island, in the State of Illinois, and held him there as
     a slave until the month of April or May, 1836. At the time
     last mentioned, said Dr. Emerson removed the plaintiff from
     said military post at Rock Island to the military post at
     Fort Snelling, situate on the west bank of the Mississippi
     river, in the Territory known as Upper Louisiana, acquired
     by the United States of France, and situate north of the
     latitude of thirty-six degrees thirty minutes north, and
     north of the State of Missouri. Said Dr. Emerson held the
     plaintiff in slavery at Fort Snelling, from said last
     mentioned date until the year 1838.

     In the year 1835, Harriet, who is named in the second count
     of the plaintiff's declaration, was the negro slave of Major
     Taliaferro, who belonged to the army of the United States.
     In that year, 1835, said Major Taliaferro took said Harriet
     to said Fort Snelling, a military post, situated as herein
     before stated, and kept her there as a slave until the year
     1836, and then sold and delivered her as a slave at said
     Fort Snelling unto the said Dr. Emerson herein before named.
     Said Dr. Emerson held said Harriet in slavery at said Fort
     Snelling until the year 1838.

     In the year 1836, the plaintiff and said Harriet, at said
     Fort Snelling, with the consent of said Dr. Emerson, who
     then claimed to be their master and owner, intermarried, and
     took each other for husband and wife. Eliza and Lizzie,
     named in the third count of the plaintiff's declaration, are
     the fruit of that marriage. Eliza is about fourteen years
     old, and was born on board the steamboat Gipsey, north of
     the north line of the State of Missouri, and upon the river
     Mississippi. Lizzie is about seven years old, and was born
     in the State of Missouri, at the military post called
     Jefferson Barracks.

     In the year 1838, said Dr. Emerson removed the plaintiff and
     said Harriet, and their said daughter Eliza, from said Fort
     Snelling to the State of Missouri, where they have ever
     since resided.

     Before the commencement of this suit, said Dr. Emerson sold
     and conveyed the plaintiff, said Harriet, Eliza, and Lizzie,
     to the defendant, as slaves, and the defendant has ever
     since claimed to hold them, and each of them, as slaves.

     At the times mentioned in the plaintiff's declaration, the
     defendant, claiming to be owner as aforesaid, laid his hands
     upon said plaintiff, Harriet, Eliza, and Lizzie, and
     imprisoned them, doing in this respect, however, no more
     than what he might lawfully do, if they were of right his
     slaves at such times.

     Further proof may be given on the trial for either party.

     It is agreed that Dred Scott brought suit for his freedom in
     the Circuit Court of St. Louis county; that there was a
     verdict and judgment in his favor; that on a writ of error
     to the Supreme Court the judgment below was reversed, and
     the same remanded to the Circuit Court, where it has been
     continued to await the decision of this case.

     In May, 1854, the cause went before a jury, who found the
     following verdict, viz: "As to the first issue joined in
     this case, we of the jury find the defendant not guilty; and
     as to the issue secondly above joined, we of the jury find
     that, before and at the time when, &c., in the first count
     mentioned, the said Dred Scott was a negro slave, the lawful
     property of the defendant; and as to the issue thirdly above
     joined, we, the jury, find that, before and at the time
     when, &c., in the second and third counts mentioned, the
     said Harriet, wife of said Dred Scott, and Eliza and Lizzie,
     the daughters of the said Dred Scott, were negro slaves, the
     lawful property of the defendant."

     Whereupon, the court gave judgment for the defendant.

     After an ineffectual motion for a new trial, the plaintiff
     filed the following bill of exceptions.

     On the trial of this cause by the jury, the plaintiff, to
     maintain the issues on his part, read to the jury the
     following agreed statement of facts, (see agreement above.)
     No further testimony was given to the jury by either party.
     Thereupon the plaintiff moved the court to give to the jury
     the following instruction, viz:

     "That, upon the facts agreed to by the parties, they ought
     to find for the plaintiff. The court refused to give such
     instruction to the jury, and the plaintiff, to such refusal,
     then and there duly excepted."

     The court then gave the following instruction to the jury,
     on motion of the defendant:

     "The jury are instructed, that upon the facts in this case,
     the law is with the defendant." The plaintiff excepted to
     this instruction.

     Upon these exceptions, the case came up to this court.

     It was argued at December term, 1855, and ordered to be
     reargued at the present term.

     It was now argued by _Mr. Blair_ and _Mr. G.F. Curtis_
     [Transcriber's Note: should be 'G.T. Curtis,' for George
     Ticknor Curtis] for the plaintiff in error, and by _Mr.
     Geyer_ and _Mr. Johnson_ for the defendant in error.

     The reporter regrets that want of room will not allow him to
     give the arguments of counsel; but he regrets it the less,
     because the subject is thoroughly examined in the opinion of
     the court, the opinions of the concurring judges, and the
     opinions of the judges who dissented from the judgment of
     the court.

       *       *       *       *       *

Mr. Chief Justice TANEY delivered the opinion of the court.

This case has been twice argued. After the argument at the last term,
differences of opinion were found to exist among the members of the
court; and as the questions in controversy are of the highest
importance, and the court was at that time much pressed by the
ordinary business of the term, it was deemed advisable to continue the
case, and direct a reargument on some of the points, in order that we
might have an opportunity of giving to the whole subject a more
deliberate consideration. It has accordingly been again argued by
counsel, and considered by the court; and I now proceed to deliver its
opinion.

There are two leading questions presented by the record:

1. Had the Circuit Court of the United States jurisdiction to hear and
determine the case between these parties? And

2. If it had jurisdiction, is the judgment it has given erroneous or
not?

The plaintiff in error, who was also the plaintiff in the court below,
was, with his wife and children, held as slaves by the defendant, in
the State of Missouri; and he brought this action in the Circuit Court
of the United States for that district, to assert the title of himself
and his family to freedom.

The declaration is in the form usually adopted in that State to try
questions of this description, and contains the averment necessary to
give the court jurisdiction; that he and the defendant are citizens of
different States; that is, that he is a citizen of Missouri, and the
defendant a citizen of New York.

The defendant pleaded in abatement to the jurisdiction of the court,
that the plaintiff was not a citizen of the State of Missouri, as
alleged in his declaration, being a negro of African descent, whose
ancestors were of pure African blood, and who were brought into this
country and sold as slaves.

To this plea the plaintiff demurred, and the defendant joined in
demurrer. The court overruled the plea, and gave judgment that the
defendant should answer over. And he thereupon put in sundry pleas in
bar, upon which issues were joined; and at the trial the verdict and
judgment were in his favor. Whereupon the plaintiff brought this writ
of error.

Before we speak of the pleas in bar, it will be proper to dispose of
the questions which have arisen on the plea in abatement.

That plea denies the right of the plaintiff to sue in a court of the
United States, for the reasons therein stated.

If the question raised by it is legally before us, and the court
should be of opinion that the facts stated in it disqualify the
plaintiff from becoming a citizen, in the sense in which that word is
used in the Constitution of the United States, then the judgment of
the Circuit Court is erroneous, and must be reversed.

It is suggested, however, that this plea is not before us; and that as
the judgment in the court below on this plea was in favor of the
plaintiff, he does not seek to reverse it, or bring it before the
court for revision by his writ of error; and also that the defendant
waived this defence by pleading over, and thereby admitted the
jurisdiction of the court.

But, in making this objection, we think the peculiar and limited
jurisdiction of courts of the United States has not been adverted to.
This peculiar and limited jurisdiction has made it necessary, in these
courts, to adopt different rules and principles of pleading, so far as
jurisdiction is concerned, from those which regulate courts of common
law in England, and in the different States of the Union which have
adopted the common-law rules.

In these last-mentioned courts, where their character and rank are
analogous to that of a Circuit Court of the United States; in other
words, where they are what the law terms courts of general
jurisdiction; they are presumed to have jurisdiction, unless the
contrary appears. No averment in the pleadings of the plaintiff is
necessary, in order to give jurisdiction. If the defendant objects to
it, he must plead it specially, and unless the fact on which he relies
is found to be true by a jury, or admitted to be true by the
plaintiff, the jurisdiction cannot be disputed in an appellate court.

Now, it is not necessary to inquire whether in courts of that
description a party who pleads over in bar, when a plea to the
jurisdiction has been ruled against him, does or does not waive his
plea; nor whether upon a judgment in his favor on the pleas in bar,
and a writ of error brought by the plaintiff, the question upon the
plea in abatement would be open for revision in the appellate court.
Cases that may have been decided in such courts, or rules that may
have been laid down by common-law pleaders, can have no influence in
the decision in this court. Because, under the Constitution and laws
of the United States, the rules which govern the pleadings in its
courts, in questions of jurisdiction, stand on different principles
and are regulated by different laws.

This difference arises, as we have said, from the peculiar character
of the Government of the United States. For although it is sovereign
and supreme in its appropriate sphere of action, yet it does not
possess all the powers which usually belong to the sovereignty of a
nation. Certain specified powers, enumerated in the Constitution, have
been conferred upon it; and neither the legislative, executive, nor
judicial departments of the Government can lawfully exercise any
authority beyond the limits marked out by the Constitution. And in
regulating the judicial department, the cases in which the courts of
the United States shall have jurisdiction are particularly and
specifically enumerated and defined; and they are not authorized to
take cognizance of any case which does not come within the description
therein specified. Hence, when a plaintiff sues in a court of the
United States, it is necessary that he should show, in his pleading,
that the suit he brings is within the jurisdiction of the court, and
that he is entitled to sue there. And if he omits to do this, and
should, by any oversight of the Circuit Court, obtain a judgment in
his favor, the judgment would be reversed in the appellate court for
want of jurisdiction in the court below. The jurisdiction would not be
presumed, as in the case of a common-law English or State court,
unless the contrary appeared. But the record, when it comes before the
appellate court, must show, affirmatively, that the inferior court had
authority, under the Constitution, to hear and determine the case. And
if the plaintiff claims a right to sue in a Circuit Court of the
United States, under that provision of the Constitution which gives
jurisdiction in controversies between citizens of different States, he
must distinctly aver in his pleading that they are citizens of
different States; and he cannot maintain his suit without showing that
fact in the pleadings.

This point was decided in the case of Bingham _v._ Cabot, (in 3 Dall.,
382,) and ever since adhered to by the court. And in Jackson _v._
Ashton, (8 Pet., 148,) it was held that the objection to which it was
open could not be waived by the opposite party, because consent of
parties could not give jurisdiction.

It is needless to accumulate cases on this subject. Those already
referred to, and the cases of Capron _v._ Van Noorden, (in 2 Cr.,
126,) and Montalet _v._ Murray, (4 Cr., 46,) are sufficient to show
the rule of which we have spoken. The case of Capron _v._ Van Noorden
strikingly illustrates the difference between a common-law court and a
court of the United States.

If, however, the fact of citizenship is averred in the declaration,
and the defendant does not deny it, and put it in issue by plea in
abatement, he cannot offer evidence at the trial to disprove it, and
consequently cannot avail himself of the objection in the appellate
court, unless the defect should be apparent in some other part of the
record. For if there is no plea in abatement, and the want of
jurisdiction does not appear in any other part of the transcript
brought up by the writ of error, the undisputed averment of
citizenship in the declaration must be taken in this court to be true.
In this case, the citizenship is averred, but it is denied by the
defendant in the manner required by the rules of pleading; and the
fact upon which the denial is based is admitted by the demurrer. And,
if the plea and demurrer, and judgment of the court below upon it, are
before us upon this record, the question to be decided is, whether the
facts stated in the plea are sufficient to show that the plaintiff is
not entitled to sue as a citizen in a court of the United States.

We think they are before us. The plea in abatement and the judgment of
the court upon it, are a part of the judicial proceedings in the
Circuit Court, and are there recorded as such; and a writ of error
always brings up to the superior court the whole record of the
proceedings in the court below. And in the case of the United States
_v._ Smith, (11 Wheat., 172,) this court said, that the case being
brought up by writ of error, the whole record was under the
consideration of this court. And this being the case in the present
instance, the plea in abatement is necessarily under consideration;
and it becomes, therefore, our duty to decide whether the facts stated
in the plea are or are not sufficient to show that the plaintiff is
not entitled to sue as a citizen in a court of the United States.

This is certainly a very serious question, and one that now for the
first time has been brought for decision before this court. But it is
brought here by those who have a right to bring it, and it is our duty
to meet it and decide it.

The question is simply this: Can a negro, whose ancestors were
imported into this country, and sold as slaves, become a member of the
political community formed and brought into existence by the
Constitution of the United States, and as such become entitled to all
the rights, and privileges, and immunities, guarantied by that
instrument to the citizen? One of which rights is the privilege of
suing in a court of the United States in the cases specified in the
Constitution.

It will be observed, that the plea applies to that class of persons
only whose ancestors were negroes of the African race, and imported
into this country, and sold and held as slaves. The only matter in
issue before the court, therefore, is, whether the descendants of such
slaves, when they shall be emancipated, or who are born of parents who
had become free before their birth, are citizens of a State, in the
sense in which the word citizen is used in the Constitution of the
United States. And this being the only matter in dispute on the
pleadings, the court must be understood as speaking in this opinion of
that class only, that is, of those persons who are the descendants of
Africans who were imported into this country, and sold as slaves.

The situation of this population was altogether unlike that of the
Indian race. The latter, it is true, formed no part of the colonial
communities, and never amalgamated with them in social connections or
in government. But although they were uncivilized, they were yet a
free and independent people, associated together in nations or tribes,
and governed by their own laws. Many of these political communities
were situated in territories to which the white race claimed the
ultimate right of dominion. But that claim was acknowledged to be
subject to the right of the Indians to occupy it as long as they
thought proper, and neither the English nor colonial Governments
claimed or exercised any dominion over the tribe or nation by whom it
was occupied, nor claimed the right to the possession of the
territory, until the tribe or nation consented to cede it. These
Indian Governments were regarded and treated as foreign Governments,
as much so as if an ocean had separated the red man from the white;
and their freedom has constantly been acknowledged, from the time of
the first emigration to the English colonies to the present day, by
the different Governments which succeeded each other. Treaties have
been negotiated with them, and their alliance sought for in war; and
the people who compose these Indian political communities have always
been treated as foreigners not living under our Government. It is true
that the course of events has brought the Indian tribes within the
limits of the United States under subjection to the white race; and it
has been found necessary, for their sake as well as our own, to regard
them as in a state of pupilage, and to legislate to a certain extent
over them and the territory they occupy. But they may, without doubt,
like the subjects of any other foreign Government, be naturalized by
the authority of Congress, and become citizens of a State, and of the
United States; and if an individual should leave his nation or tribe,
and take up his abode among the white population, he would be entitled
to all the rights and privileges which would belong to an emigrant
from any other foreign people.

We proceed to examine the case as presented by the pleadings.

The words "people of the United States" and "citizens" are synonymous
terms, and mean the same thing. They both describe the political body
who, according to our republican institutions, form the sovereignty,
and who hold the power and conduct the Government through their
representatives. They are what we familiarly call the "sovereign
people," and every citizen is one of this people, and a constituent
member of this sovereignty. The question before us is, whether the
class of persons described in the plea in abatement compose a portion
of this people, and are constituent members of this sovereignty? We
think they are not, and that they are not included, and were not
intended to be included, under the word "citizens" in the
Constitution, and can therefore claim none of the rights and
privileges which that instrument provides for and secures to citizens
of the United States. On the contrary, they were at that time
considered as a subordinate and inferior class of beings, who had
been subjugated by the dominant race, and, whether emancipated or not,
yet remained subject to their authority, and had no rights or
privileges but such as those who held the power and the Government
might choose to grant them.

It is not the province of the court to decide upon the justice or
injustice, the policy or impolicy, of these laws. The decision of that
question belonged to the political or law-making power; to those who
formed the sovereignty and framed the Constitution. The duty of the
court is, to interpret the instrument they have framed, with the best
lights we can obtain on the subject, and to administer it as we find
it, according to its true intent and meaning when it was adopted.

In discussing this question, we must not confound the rights of
citizenship which a State may confer within its own limits, and the
rights of citizenship as a member of the Union. It does not by any
means follow, because he has all the rights and privileges of a
citizen of a State, that he must be a citizen of the United States. He
may have all of the rights and privileges of the citizen of a State,
and yet not be entitled to the rights and privileges of a citizen in
any other State. For, previous to the adoption of the Constitution of
the United States, every State had the undoubted right to confer on
whomsoever it pleased the character of citizen, and to endow him with
all its rights. But this character of course was confined to the
boundaries of the State, and gave him no rights or privileges in other
States beyond those secured to him by the laws of nations and the
comity of States. Nor have the several States surrendered the power of
conferring these rights and privileges by adopting the Constitution of
the United States. Each State may still confer them upon an alien, or
any one it thinks proper, or upon any class or description of persons;
yet he would not be a citizen in the sense in which that word is used
in the Constitution of the United States, nor entitled to sue as such
in one of its courts, nor to the privileges and immunities of a
citizen in the other States. The rights which he would acquire would
be restricted to the State which gave them. The Constitution has
conferred on Congress the right to establish an uniform rule of
naturalization, and this right is evidently exclusive, and has always
been held by this court to be so. Consequently, no State, since the
adoption of the Constitution, can by naturalizing an alien invest him
with the rights and privileges secured to a citizen of a State under
the Federal Government, although, so far as the State alone was
concerned, he would undoubtedly be entitled to the rights of a
citizen, and clothed with all the rights and immunities which the
Constitution and laws of the State attached to that character.

It is very clear, therefore, that no State can, by any act or law of
its own, passed since the adoption of the Constitution, introduce a
new member into the political community created by the Constitution of
the United States. It cannot make him a member of this community by
making him a member of its own. And for the same reason it cannot
introduce any person, or description of persons, who were not intended
to be embraced in this new political family, which the Constitution
brought into existence, but were intended to be excluded from it.

The question then arises, whether the provisions of the Constitution,
in relation to the personal rights and privileges to which the citizen
of a State should be entitled, embraced the negro African race, at
that time in this country, or who might afterwards be imported, who
had then or should afterwards be made free in any State; and to put it
in the power of a single State to make him a citizen of the United
States, and endue him with the full rights of citizenship in every
other State without their consent? Does the Constitution of the United
States act upon him whenever he shall be made free under the laws of a
State, and raised there to the rank of a citizen, and immediately
clothe him with all the privileges of a citizen in every other State,
and in its own courts?

The court think the affirmative of these propositions cannot be
maintained. And if it cannot, the plaintiff in error could not be a
citizen of the State of Missouri, within the meaning of the
Constitution of the United States, and, consequently, was not entitled
to sue in its courts.

It is true, every person, and every class and description of persons,
who were at the time of the adoption of the Constitution recognised as
citizens in the several States, became also citizens of this new
political body; but none other; it was formed by them, and for them
and their posterity, but for no one else. And the personal rights and
privileges guarantied to citizens of this new sovereignty were
intended to embrace those only who were then members of the several
State communities, or who should afterwards by birthright or otherwise
become members, according to the provisions of the Constitution and
the principles on which it was founded. It was the union of those who
were at that time members of distinct and separate political
communities into one political family, whose power, for certain
specified purposes, was to extend over the whole territory of the
United States. And it gave to each citizen rights and privileges
outside of his State which he did not before possess, and placed him
in every other State upon a perfect equality with its own citizens as
to rights of person and rights of property; it made him a citizen of
the United States.

It becomes necessary, therefore, to determine who were citizens of the
several States when the Constitution was adopted. And in order to do
this, we must recur to the Governments and institutions of the
thirteen colonies, when they separated from Great Britain and formed
new sovereignties, and took their places in the family of independent
nations. We must inquire who, at that time, were recognised as the
people or citizens of a State, whose rights and liberties had been
outraged by the English Government; and who declared their
independence, and assumed the powers of Government to defend their
rights by force of arms.

In the opinion of the court, the legislation and histories of the
times, and the language used in the Declaration of Independence, show,
that neither the class of persons who had been imported as slaves, nor
their descendants, whether they had become free or not, were then
acknowledged as a part of the people, nor intended to be included in
the general words used in that memorable instrument.

It is difficult at this day to realize the state of public opinion in
relation to that unfortunate race, which prevailed in the civilized
and enlightened portions of the world at the time of the Declaration
of Independence, and when the Constitution of the United States was
framed and adopted. But the public history of every European nation
displays it in a manner too plain to be mistaken.

They had for more than a century before been regarded as beings of an
inferior order, and altogether unfit to associate with the white race,
either in social or political relations; and so far inferior, that
they had no rights which the white man was bound to respect; and that
the negro might justly and lawfully be reduced to slavery for his
benefit. He was bought and sold, and treated as an ordinary article of
merchandise and traffic, whenever a profit could be made by it. This
opinion was at that time fixed and universal in the civilized portion
of the white race. It was regarded as an axiom in morals as well as in
politics, which no one thought of disputing, or supposed to be open to
dispute; and men in every grade and position in society daily and
habitually acted upon it in their private pursuits, as well as in
matters of public concern, without doubting for a moment the
correctness of this opinion.

And in no nation was this opinion more firmly fixed or more uniformly
acted upon than by the English Government and English people. They not
only seized them on the coast of Africa, and sold them or held them in
slavery for their own use; but they took them as ordinary articles of
merchandise to every country where they could make a profit on them,
and were far more extensively engaged in this commerce than any other
nation in the world.

The opinion thus entertained and acted upon in England was naturally
impressed upon the colonies they founded on this side of the Atlantic.
And, accordingly, a negro of the African race was regarded by them as
an article of property, and held, and bought and sold as such, in
every one of the thirteen colonies which united in the Declaration of
Independence, and afterwards formed the Constitution of the United
States. The slaves were more or less numerous in the different
colonies, as slave labor was found more or less profitable. But no one
seems to have doubted the correctness of the prevailing opinion of the
time.

The legislation of the different colonies furnishes positive and
indisputable proof of this fact.

It would be tedious, in this opinion, to enumerate the various laws
they passed upon this subject. It will be sufficient, as a sample of
the legislation which then generally prevailed throughout the British
colonies, to give the laws of two of them; one being still a large
slaveholding State, and the other the first State in which slavery
ceased to exist.

The province of Maryland, in 1717, (ch. 13, s. 5,) passed a law
declaring "that if any free negro or mulatto intermarry with any white
woman, or if any white man shall intermarry with any negro or mulatto
woman, such negro or mulatto shall become a slave during life,
excepting mulattoes born of white women, who, for such intermarriage,
shall only become servants for seven years, to be disposed of as the
justices of the county court, where such marriage so happens, shall
think fit; to be applied by them towards the support of a public
school within the said county. And any white man or white woman who
shall intermarry as aforesaid, with any negro or mulatto, such white
man or white woman shall become servants during the term of seven
years, and shall be disposed of by the justices as aforesaid, and be
applied to the uses aforesaid."

The other colonial law to which we refer was passed by Massachusetts
in 1705, (chap. 6.) It is entitled "An act for the better preventing
of a spurious and mixed issue," &c.; and it provides, that "if any
negro or mulatto shall presume to smite or strike any person of the
English or other Christian nation, such negro or mulatto shall be
severely whipped, at the discretion of the justices before whom the
offender shall be convicted."

And "that none of her Majesty's English or Scottish subjects, nor of
any other Christian nation, within this province, shall contract
matrimony with any negro or mulatto; nor shall any person, duly
authorized to solemnize marriage, presume to join any such in
marriage, on pain of forfeiting the sum of fifty pounds; one moiety
thereof to her Majesty, for and towards the support of the Government
within this province, and the other moiety to him or them that shall
inform and sue for the same, in any of her Majesty's courts of record
within the province, by bill, plaint, or information."

We give both of these laws in the words used by the respective
legislative bodies, because the language in which they are framed, as
well as the provisions contained in them, show, too plainly to be
misunderstood, the degraded condition of this unhappy race. They were
still in force when the Revolution began, and are a faithful index to
the state of feeling towards the class of persons of whom they speak,
and of the position they occupied throughout the thirteen colonies, in
the eyes and thoughts of the men who framed the Declaration of
Independence and established the State Constitutions and Governments.
They show that a perpetual and impassable barrier was intended to be
erected between the white race and the one which they had reduced to
slavery, and governed as subjects with absolute and despotic power,
and which they then looked upon as so far below them in the scale of
created beings, that intermarriages between white persons and negroes
or mulattoes were regarded as unnatural and immoral, and punished as
crimes, not only in the parties, but in the person who joined them in
marriage. And no distinction in this respect was made between the free
negro or mulatto and the slave, but this stigma, of the deepest
degradation, was fixed upon the whole race.

We refer to these historical facts for the purpose of showing the
fixed opinions concerning that race, upon which the statesmen of that
day spoke and acted. It is necessary to do this, in order to determine
whether the general terms used in the Constitution of the United
States, as to the rights of man and the rights of the people, was
intended to include them, or to give to them or their posterity the
benefit of any of its provisions.

The language of the Declaration of Independence is equally conclusive:

It begins by declaring that, "when in the course of human events it
becomes necessary for one people to dissolve the political bands which
have connected them with another, and to assume among the powers of
the earth the separate and equal station to which the laws of nature
and nature's God entitle them, a decent respect for the opinions of
mankind requires that they should declare the causes which impel them
to the separation."

It then proceeds to say: "We hold these truths to be self-evident:
that all men are created equal; that they are endowed by their Creator
with certain unalienable rights; that among them is life, liberty, and
the pursuit of happiness; that to secure these rights, Governments are
instituted, deriving their just powers from the consent of the
governed."

The general words above quoted would seem to embrace the whole human
family, and if they were used in a similar instrument at this day
would be so understood. But it is too clear for dispute, that the
enslaved African race were not intended to be included, and formed no
part of the people who framed and adopted this declaration; for if the
language, as understood in that day, would embrace them, the conduct
of the distinguished men who framed the Declaration of Independence
would have been utterly and flagrantly inconsistent with the
principles they asserted; and instead of the sympathy of mankind, to
which they so confidently appealed, they would have deserved and
received universal rebuke and reprobation.

Yet the men who framed this declaration were great men--high in
literary acquirements--high in their sense of honor, and incapable of
asserting principles inconsistent with those on which they were
acting. They perfectly understood the meaning of the language they
used, and how it would be understood by others; and they knew that it
would not in any part of the civilized world be supposed to embrace
the negro race, which, by common consent, had been excluded from
civilized Governments and the family of nations, and doomed to
slavery. They spoke and acted according to the then established
doctrines and principles, and in the ordinary language of the day, and
no one misunderstood them. The unhappy black race were separated from
the white by indelible marks, and laws long before established, and
were never thought of or spoken of except as property, and when the
claims of the owner or the profit of the trader were supposed to need
protection.

This state of public opinion had undergone no change when the
Constitution was adopted, as is equally evident from its provisions
and language.

The brief preamble sets forth by whom it was formed, for what
purposes, and for whose benefit and protection. It declares that it
is formed by the _people_ of the United States; that is to say, by
those who were members of the different political communities in the
several States; and its great object is declared to be to secure the
blessings of liberty to themselves and their posterity. It speaks in
general terms of the _people_ of the United States, and of _citizens_
of the several States, when it is providing for the exercise of the
powers granted or the privileges secured to the citizen. It does not
define what description of persons are intended to be included under
these terms, or who shall be regarded as a citizen and one of the
people. It uses them as terms so well understood, that no further
description or definition was necessary.

But there are two clauses in the Constitution which point directly and
specifically to the negro race as a separate class of persons, and
show clearly that they were not regarded as a portion of the people or
citizens of the Government then formed.

One of these clauses reserves to each of the thirteen States the right
to import slaves until the year 1808, if it thinks proper. And the
importation which it thus sanctions was unquestionably of persons of
the race of which we are speaking, as the traffic in slaves in the
United States had always been confined to them. And by the other
provision the States pledge themselves to each other to maintain the
right of property of the master, by delivering up to him any slave who
may have escaped from his service, and be found within their
respective territories. By the first above-mentioned clause,
therefore, the right to purchase and hold this property is directly
sanctioned and authorized for twenty years by the people who framed
the Constitution. And by the second, they pledge themselves to
maintain and uphold the right of the master in the manner specified,
as long as the Government they then formed should endure. And these
two provisions show, conclusively, that neither the description of
persons therein referred to, nor their descendants, were embraced in
any of the other provisions of the Constitution; for certainly these
two clauses were not intended to confer on them or their posterity the
blessings of liberty, or any of the personal rights so carefully
provided for the citizen.

No one of that race had ever migrated to the United States
voluntarily; all of them had been brought here as articles of
merchandise. The number that had been emancipated at that time were
but few in comparison with those held in slavery; and they were
identified in the public mind with the race to which they belonged,
and regarded as a part of the slave population rather than the free.
It is obvious that they were not even in the minds of the framers of
the Constitution when they were conferring special rights and
privileges upon the citizens of a State in every other part of the
Union.

Indeed, when we look to the condition of this race in the several
States at the time, it is impossible to believe that these rights and
privileges were intended to be extended to them.

It is very true, that in that portion of the Union where the labor of
the negro race was found to be unsuited to the climate and
unprofitable to the master, but few slaves were held at the time of
the Declaration of Independence; and when the Constitution was
adopted, it had entirely worn out in one of them, and measures had
been taken for its gradual abolition in several others. But this
change had not been produced by any change of opinion in relation to
this race; but because it was discovered, from experience, that slave
labor was unsuited to the climate and productions of these States: for
some of the States, where it had ceased or nearly ceased to exist,
were actively engaged in the slave trade, procuring cargoes on the
coast of Africa, and transporting them for sale to those parts of the
Union where their labor was found to be profitable, and suited to the
climate and productions. And this traffic was openly carried on, and
fortunes accumulated by it, without reproach from the people of the
States where they resided. And it can hardly be supposed that, in the
States where it was then countenanced in its worst form--that is, in
the seizure and transportation--the people could have regarded those
who were emancipated as entitled to equal rights with themselves.

And we may here again refer, in support of this proposition, to the
plain and unequivocal language of the laws of the several States, some
passed after the Declaration of Independence and before the
Constitution was adopted, and some since the Government went into
operation.

We need not refer, on this point, particularly to the laws of the
present slaveholding States. Their statute books are full of
provisions in relation to this class, in the same spirit with the
Maryland law which we have before quoted. They have continued to treat
them as an inferior class, and to subject them to strict police
regulations, drawing a broad line of distinction between the citizen
and the slave races, and legislating in relation to them upon the same
principle which prevailed at the time of the Declaration of
Independence. As relates to these States, it is too plain for
argument, that they have never been regarded as a part of the people
or citizens of the State, nor supposed to possess any political rights
which the dominant race might not withhold or grant at their
pleasure. And as long ago as 1822, the Court of Appeals of Kentucky
decided that free negroes and mulattoes were not citizens within the
meaning of the Constitution of the United States; and the correctness
of this decision is recognised, and the same doctrine affirmed, in 1
Meigs's Tenn. Reports, 331.

And if we turn to the legislation of the States where slavery had worn
out, or measures taken for its speedy abolition, we shall find the
same opinions and principles equally fixed and equally acted upon.

Thus, Massachusetts, in 1786, passed a law similar to the colonial one
of which we have spoken. The law of 1786, like the law of 1705,
forbids the marriage of any white person with any negro, Indian, or
mulatto, and inflicts a penalty of fifty pounds upon any one who shall
join them in marriage; and declares all such marriages absolutely null
and void, and degrades thus the unhappy issue of the marriage by
fixing upon it the stain of bastardy. And this mark of degradation was
renewed, and again impressed upon the race, in the careful and
deliberate preparation of their revised code published in 1836. This
code forbids any person from joining in marriage any white person with
any Indian, negro, or mulatto, and subjects the party who shall offend
in this respect, to imprisonment, not exceeding six months, in the
common jail, or to hard labor, and to a fine of not less than fifty
nor more than two hundred dollars; and, like the law of 1786, it
declares the marriage to be absolutely null and void. It will be seen
that the punishment is increased by the code upon the person who shall
marry them, by adding imprisonment to a pecuniary penalty.

So, too, in Connecticut. We refer more particularly to the legislation
of this State, because it was not only among the first to put an end
to slavery within its own territory, but was the first to fix a mark
of reprobation upon the African slave trade. The law last mentioned
was passed in October, 1788, about nine months after the State had
ratified and adopted the present Constitution of the United States;
and by that law it prohibited its own citizens, under severe
penalties, from engaging in the trade, and declared all policies of
insurance on the vessel or cargo made in the State to be null and
void. But, up to the time of the adoption of the Constitution, there
is nothing in the legislation of the State indicating any change of
opinion as to the relative rights and position of the white and black
races in this country, or indicating that it meant to place the
latter, when free, upon a level with its citizens. And certainly
nothing which would have led the slaveholding States to suppose, that
Connecticut designed to claim for them, under the new Constitution,
the equal rights and privileges and rank of citizens in every other
State.

The first step taken by Connecticut upon this subject was as early as
1774, when it passed an act forbidding the further importation of
slaves into the State. But the section containing the prohibition is
introduced by the following preamble:

"And whereas the increase of slaves in this state is injurious to the
poor, and inconvenient."

This recital would appear to have been carefully introduced, in order
to prevent any misunderstanding of the motive which induced the
Legislature to pass the law, and places it distinctly upon the
interest and convenience of the white population--excluding the
inference that it might have been intended in any degree for the
benefit of the other.

And in the act of 1784, by which the issue of slaves, born after the
time therein mentioned, were to be free at a certain age, the section
is again introduced by a preamble assigning similar motive for the
act. It is in these words:

"Whereas sound policy requires that the abolition of slavery should be
effected as soon as may be consistent with the rights of individuals,
and the public safety and welfare"--showing that the right of property
in the master was to be protected, and that the measure was one of
policy, and to prevent the injury and inconvenience, to the whites, of
a slave population in the State.

And still further pursuing its legislation, we find that in the same
statute passed in 1774, which prohibited the further importation of
slaves into the State, there is also a provision by which any negro,
Indian, or mulatto servant, who was found wandering out of the town or
place to which he belonged, without a written pass such as is therein
described, was made liable to be seized by any one, and taken before
the next authority to be examined and delivered up to his master--who
was required to pay the charge which had accrued thereby. And a
subsequent section of the same law provides, that if any free negro
shall travel without such pass, and shall be stopped, seized, or taken
up, he shall pay all charges arising thereby. And this law was in full
operation when the Constitution of the United States was adopted, and
was not repealed till 1797. So that up to that time free negroes and
mulattoes were associated with servants and slaves in the police
regulations established by the laws of the State.

And again, in 1833, Connecticut passed another law, which made it
penal to set up or establish any school in that State for the
instruction of persons of the African race not inhabitants of the
State or to instruct or teach in any such school or institution, or
board or harbor for that purpose, any such person, without the
previous consent in writing of the civil authority of the town in
which such school or institution might be.

And it appears by the case of Crandall _v._ The State, reported in 10
Conn. Rep., 340, that upon an information filed against Prudence
Crandall for a violation of this law, one of the points raised in the
defence was, that the law was a violation of the Constitution of the
United States; and that the persons instructed, although of the
African race, were citizens of other States, and therefore entitled to
the rights and privileges of citizens in the State of Connecticut. But
Chief Justice Dagget, before whom the case was tried, held, that
persons of that description were not citizens of a State, within the
meaning of the word citizen in the Constitution of the United States,
and were not therefore entitled to the privileges and immunities of
citizens in other States.

The case was carried up to the Supreme Court of Errors of the State,
and the question fully argued there. But the case went off upon
another point, and no opinion was expressed on this question.

We have made this particular examination into the legislative and
judicial action of Connecticut, because, from the early hostility it
displayed to the slave trade on the coast of Africa, we may expect to
find the laws of that State as lenient and favorable to the subject
race as those of any other State in the Union; and if we find that at
the time the Constitution was adopted, they were not even there raised
to the rank of citizens, but were still held and treated as property,
and the laws relating to them passed with reference altogether to the
interest and convenience of the white race, we shall hardly find them
elevated to a higher rank anywhere else.

A brief notice of the laws of two other States, and we shall pass on
to other considerations.

By the laws of New Hampshire, collected and finally passed in 1815, no
one was permitted to be enrolled in the militia of the State, but free
white citizens; and the same provision is found in a subsequent
collection of the laws, made in 1855. Nothing could more strongly mark
the entire repudiation of the African race. The alien is excluded,
because, being born in a foreign country, he cannot be a member of the
community until he is naturalized. But why are the African race, born
in the State, not permitted to share in one of the highest duties of
the citizen? The answer is obvious; he is not, by the institutions and
laws of the State, numbered among its people. He forms no part of the
sovereignty of the State, and is not therefore called on to uphold and
defend it.

Again, in 1822, Rhode Island, in its revised code, passed a law
forbidding persons who were authorized to join persons in marriage,
from joining in marriage any white person with any negro, Indian, or
mulatto, under the penalty of two hundred dollars, and declaring all
such marriages absolutely null and void; and the same law was again
re-enacted in its revised code of 1844. So that, down to the
last-mentioned period, the strongest mark of inferiority and
degradation was fastened upon the African race in that State.

It would be impossible to enumerate and compress in the space usually
allotted to an opinion of a court, the various laws, marking the
condition of this race, which were passed from time to time after the
Revolution, and before and since the adoption of the Constitution of
the United States. In addition to those already referred to, it is
sufficient to say, that Chancellor Kent, whose accuracy and research
no one will question, states in the sixth edition of his Commentaries,
(published in 1848, 2 vol., 258, note _b_,) that in no part of the
country except Maine, did the African race, in point of fact,
participate equally with the whites in the exercise of civil and
political rights.

The legislation of the States therefore shows, in a manner not to be
mistaken, the inferior and subject condition of that race at the time
the Constitution was adopted, and long afterwards, throughout the
thirteen States by which that instrument was framed; and it is hardly
consistent with the respect due to these States, to suppose that they
regarded at that time, as fellow-citizens and members of the
sovereignty, a class of beings whom they had thus stigmatized; whom,
as we are bound, out of respect to the State sovereignties, to assume
they had deemed it just and necessary thus to stigmatize, and upon
whom they had impressed such deep and enduring marks of inferiority
and degradation; or, that when they met in convention to form the
Constitution, they looked upon them as a portion of their
constituents, or designed to include them in the provisions so
carefully inserted for the security and protection of the liberties
and rights of their citizens. It cannot be supposed that they intended
to secure to them rights, and privileges, and rank, in the new
political body throughout the Union, which every one of them denied
within the limits of its own dominion. More especially, it cannot be
believed that the large slaveholding States regarded them as included
in the word citizens, or would have consented to a Constitution which
might compel them to receive them in that character from another
State. For if they were so received, and entitled to the privileges
and immunities of citizens, it would exempt them from the operation of
the special laws and from the police regulations which they
considered to be necessary for their own safety. It would give to
persons of the negro race, who were recognised as citizens in any one
State of the Union, the right to enter every other State whenever they
pleased, singly or in companies, without pass or passport, and without
obstruction, to sojourn there as long as they pleased, to go where
they pleased at every hour of the day or night without molestation,
unless they committed some violation of law for which a white man
would be punished; and it would give them the full liberty of speech
in public and in private upon all subjects upon which its own citizens
might speak; to hold public meetings upon political affairs, and to
keep and carry arms wherever they went. And all of this would be done
in the face of the subject race of the same color, both free and
slaves, and inevitably producing discontent and insubordination among
them, and endangering the peace and safety of the State.

It is impossible, it would seem, to believe that the great men of the
slaveholding States, who took so large a share in framing the
Constitution of the United States, and exercised so much influence in
procuring its adoption, could have been so forgetful or regardless of
their own safety and the safety of those who trusted and confided in
them.

Besides, this want of foresight and care would have been utterly
inconsistent with the caution displayed in providing for the admission
of new members into this political family. For, when they gave to the
citizens of each State the privileges and immunities of citizens in
the several States, they at the same time took from the several States
the power of naturalization, and confined that power exclusively to
the Federal Government. No State was willing to permit another State
to determine who should or should not be admitted as one of its
citizens, and entitled to demand equal rights and privileges with
their own people, within their own territories. The right of
naturalization was therefore, with one accord, surrendered by the
States, and confided to the Federal Government. And this power granted
to Congress to establish an uniform rule of _naturalization_ is, by
the well-understood meaning of the word, confined to persons born in a
foreign country, under a foreign Government. It is not a power to
raise to the rank of a citizen any one born in the United States, who,
from birth or parentage, by the laws of the country, belongs to an
inferior and subordinate class. And when we find the States guarding
themselves from the indiscreet or improper admission by other States
of emigrants from other countries, by giving the power exclusively to
Congress, we cannot fail to see that they could never have left with
the States a much more important power--that is, the power of
transforming into citizens a numerous class of persons, who in that
character would be much more dangerous to the peace and safety of a
large portion of the Union, than the few foreigners one of the States
might improperly naturalize. The Constitution upon its adoption
obviously took from the States all power by any subsequent legislation
to introduce as a citizen into the political family of the United
States any one, no matter where he was born, or what might be his
character or condition; and it gave to Congress the power to confer
this character upon those only who were born outside of the dominions
of the United States. And no law of a State, therefore, passed since
the Constitution was adopted, can give any right of citizenship
outside of its own territory.

A clause similar to the one in the Constitution, in relation to the
rights and immunities of citizens of one State in the other States,
was contained in the Articles of Confederation. But there is a
difference of language, which is worthy of note. The provision in the
Articles of Confederation was, "that the _free inhabitants_ of each of
the States, paupers, vagabonds, and fugitives from justice, excepted,
should be entitled to all the privileges and immunities of free
citizens in the several States."

It will be observed, that under this Confederation, each State had the
right to decide for itself, and in its own tribunals, whom it would
acknowledge as a free inhabitant of another State. The term _free
inhabitant_, in the generality of its terms, would certainly include
one of the African race who had been manumitted. But no example, we
think, can be found of his admission to all the privileges of
citizenship in any State of the Union after these Articles were
formed, and while they continued in force. And, notwithstanding the
generality of the words "free inhabitants," it is very clear that,
according to their accepted meaning in that day, they did not include
the African race, whether free or not: for the fifth section of the
ninth article provides that Congress should have the power "to agree
upon the number of land forces to be raised, and to make requisitions
from each State for its quota in proportion to the number of _white_
inhabitants in such State, which requisition should be binding."

Words could hardly have been used which more strongly mark the line of
distinction between the citizen and the subject; the free and the
subjugated races. The latter were not even counted when the
inhabitants of a State were to be embodied in proportion to its
numbers for the general defence. And it cannot for a moment be
supposed, that a class of persons thus separated and rejected from
those who formed the sovereignty of the States, were yet intended to
be included under the words "free inhabitants," in the preceding
article, to whom privileges and immunities were so carefully secured
in every State.

But although this clause of the Articles of Confederation is the same
in principle with that inserted in the Constitution, yet the
comprehensive word _inhabitant_, which might be construed to include
an emancipated slave, is omitted; and the privilege is confined to
_citizens_ of the State. And this alteration in words would hardly
have been made, unless a different meaning was intended to be
conveyed, or a possible doubt removed. The just and fair inference is,
that as this privilege was about to be placed under the protection of
the General Government, and the words expounded by its tribunals, and
all power in relation to it taken from the State and its courts, it
was deemed prudent to describe with precision and caution the persons
to whom this high privilege was given--and the word _citizen_ was on
that account substituted for the words _free inhabitant_. The word
citizen excluded, and no doubt intended to exclude, foreigners who had
not become citizens of some one of the States when the Constitution
was adopted; and also every description of persons who were not fully
recognised as citizens in the several States. This, upon any fair
construction of the instruments to which we have referred, was
evidently the object and purpose of this change of words.

To all this mass of proof we have still to add, that Congress has
repeatedly legislated upon the same construction of the Constitution
that we have given. Three laws, two of which were passed almost
immediately after the Government went into operation, will be
abundantly sufficient to show this. The two first are particularly
worthy of notice, because many of the men who assisted in framing the
Constitution, and took an active part in procuring its adoption, were
then in the halls of legislation, and certainly understood what they
meant when they used the words "people of the United States" and
"citizen" in that well-considered instrument.

The first of these acts is the naturalization law, which was passed at
the second session of the first Congress, March 26, 1790, and confines
the right of becoming citizens "_to aliens being free white persons_."

Now, the Constitution does not limit the power of Congress in this
respect to white persons. And they may, if they think proper,
authorize the naturalization of any one, of any color, who was born
under allegiance to another Government. But the language of the law
above quoted, shows that citizenship at that time was perfectly
understood to be confined to the white race; and that they alone
constituted the sovereignty in the Government.

Congress might, as we before said, have authorized the naturalization
of Indians, because they were aliens and foreigners. But, in their
then untutored and savage state, no one would have thought of
admitting them as citizens in a civilized community. And, moreover,
the atrocities they had but recently committed, when they were the
allies of Great Britain in the Revolutionary war, were yet fresh in
the recollection of the people of the United States, and they were
even then guarding themselves against the threatened renewal of Indian
hostilities. No one supposed then that any Indian would ask for, or
was capable of enjoying, the privileges of an American citizen, and
the word white was not used with any particular reference to them.

Neither was it used with any reference to the African race imported
into or born in this country; because Congress had no power to
naturalize them, and therefore there was no necessity for using
particular words to exclude them.

It would seem to have been used merely because it followed out the
line of division which the Constitution has drawn between the citizen
race, who formed and held the Government, and the African race, which
they held in subjection and slavery, and governed at their own
pleasure.

Another of the early laws of which we have spoken, is the first
militia law, which was passed in 1792, at the first session of the
second Congress. The language of this law is equally plain and
significant with the one just mentioned. It directs that every "free
able-bodied white male citizen" shall be enrolled in the militia. The
word _white_ is evidently used to exclude the African race, and the
word "citizen" to exclude unnaturalized foreigners; the latter forming
no part of the sovereignty, owing it no allegiance, and therefore
under no obligation to defend it. The African race, however, born in
the country, did owe allegiance to the Government, whether they were
slave or free; but it is repudiated, and rejected from the duties and
obligations of citizenship in marked language.

The third act to which we have alluded is even still more decisive; it
was passed as late as 1813, (2 Stat., 809,) and it provides: "That
from and after the termination of the war in which the United States
are now engaged with Great Britain, it shall not be lawful to employ,
on board of any public or private vessels of the United States, any
person or persons except citizens of the United States, _or_ persons
of color, natives of the United States."

Here the line of distinction is drawn in express words. Persons of
color, in the judgment of Congress, were not included in the word
citizens, and they are described as another and different class of
persons, and authorized to be employed, if born in the United States.

And even as late as 1820, (chap. 104, sec. 8,) in the charter to the
city of Washington, the corporation is authorized "to restrain and
prohibit the nightly and other disorderly meetings of slaves, free
negroes, and mulattoes," thus associating them together in its
legislation; and after prescribing the punishment that may be
inflicted on the slaves, proceeds in the following words: "And to
punish such free negroes and mulattoes by penalties not exceeding
twenty dollars for any one offence; and in case of the inability of
any such free negro or mulatto to pay any such penalty and cost
thereon, to cause him or her to be confined to labor for any time not
exceeding six calendar months." And in a subsequent part of the same
section, the act authorizes the corporation "to prescribe the terms
and conditions upon which free negroes and mulattoes may reside in the
city."

This law, like the laws of the States, shows that this class of
persons were governed by special legislation directed expressly to
them, and always connected with provisions for the government of
slaves, and not with those for the government of free white citizens.
And after such an uniform course of legislation as we have stated, by
the colonies, by the States, and by Congress, running through a period
of more than a century, it would seem that to call persons thus marked
and stigmatized, "citizens" of the United States, "fellow-citizens," a
constituent part of the sovereignty, would be an abuse of terms, and
not calculated to exalt the character of an American citizen in the
eyes of other nations.

The conduct of the Executive Department of the Government has been in
perfect harmony upon this subject with this course of legislation. The
question was brought officially before the late William Wirt, when he
was the Attorney General of the United States, in 1821, and he decided
that the words "citizens of the United States" were used in the acts
of Congress in the same sense as in the Constitution; and that free
persons of color were not citizens, within the meaning of the
Constitution and laws; and this opinion has been confirmed by that of
the late Attorney General, Caleb Cushing, in a recent case, and acted
upon by the Secretary of State, who refused to grant passports to them
as "citizens of the United States."

But it is said that a person may be a citizen, and entitled to that
character, although he does not possess all the rights which may
belong to other citizens; as, for example, the right to vote, or to
hold particular offices; and that yet, when he goes into another
State, he is entitled to be recognised there as a citizen, although
the State may measure his rights by the rights which it allows to
persons of a like character or class resident in the State, and refuse
to him the full rights of citizenship.

This argument overlooks the language of the provision in the
Constitution of which we are speaking.

Undoubtedly, a person may be a citizen, that is, a member of the
community who form the sovereignty, although he exercises no share of
the political power, and is incapacitated from holding particular
offices. Women and minors, who form a part of the political family,
cannot vote; and when a property qualification is required to vote or
hold a particular office, those who have not the necessary
qualification cannot vote or hold the office, yet they are citizens.

So, too, a person may be entitled to vote by the law of the State, who
is not a citizen even of the State itself. And in some of the States
of the Union foreigners not naturalized are allowed to vote. And the
State may give the right to free negroes and mulattoes, but that does
not make them citizens of the State, and still less of the United
States. And the provision in the Constitution giving privileges and
immunities in other States, does not apply to them.

Neither does it apply to a person who, being the citizen of a State,
migrates to another State. For then he becomes subject to the laws of
the State in which he lives, and he is no longer a citizen of the
State from which he removed. And the State in which he resides may
then, unquestionably, determine his _status_ or condition, and place
him among the class of persons who are not recognised as citizens, but
belong to an inferior and subject race; and may deny him the
privileges and immunities enjoyed by its citizens.

But so far as mere rights of person are concerned, the provision in
question is confined to citizens of a State who are temporarily in
another State without taking up their residence there. It gives them
no political rights in the State, as to voting or holding office, or
in any other respect. For a citizen of one State has no right to
participate in the government of another. But if he ranks as a citizen
in the State to which he belongs, within the meaning of the
Constitution of the United States, then, whenever he goes into another
State, the Constitution clothes him, as to the rights of person, with
all the privileges and immunities which belong to citizens of the
State. And if persons of the African race are citizens of a State, and
of the United States, they would be entitled to all of these
privileges and immunities in every State, and the State could not
restrict them; for they would hold these privileges and immunities
under the paramount authority of the Federal Government, and its
courts would be bound to maintain and enforce them, the Constitution
and laws of the State to the contrary notwithstanding. And if the
States could limit or restrict them, or place the party in an inferior
grade, this clause of the Constitution would be unmeaning, and could
have no operation; and would give no rights to the citizen when in
another State. He would have none but what the State itself chose to
allow him. This is evidently not the construction or meaning of the
clause in question. It guaranties rights to the citizen, and the State
cannot withhold them. And these rights are of a character and would
lead to consequences which make it absolutely certain that the African
race were not included under the name of citizens of a State, and were
not in the contemplation of the framers of the Constitution when these
privileges and immunities were provided for the protection of the
citizen in other States.

The case of Legrand _v._ Darnall (2 Peters, 664) has been referred to
for the purpose of showing that this court has decided that the
descendant of a slave may sue as a citizen in a court of the United
States; but the case itself shows that the question did not arise and
could not have arisen in the case.

It appears from the report, that Darnall was born in Maryland, and was
the son of a white man by one of his slaves, and his father executed
certain instruments to manumit him, and devised to him some landed
property in the State. This property Darnall afterwards sold to
Legrand, the appellant, who gave his notes for the purchase-money. But
becoming afterwards apprehensive that the appellee had not been
emancipated according to the laws of Maryland, he refused to pay the
notes until he could be better satisfied as to Darnall's right to
convey. Darnall, in the mean time, had taken up his residence in
Pennsylvania, and brought suit on the notes, and recovered judgment in
the Circuit Court for the district of Maryland.

The whole proceeding, as appears by the report, was an amicable one;
Legrand being perfectly willing to pay the money, if he could obtain a
title, and Darnall not wishing him to pay unless he could make him a
good one. In point of fact, the whole proceeding was under the
direction of the counsel who argued the case for the appellee, who was
the mutual friend of the parties, and confided in by both of them, and
whose only object was to have the rights of both parties established
by judicial decision in the most speedy and least expensive manner.

Legrand, therefore, raised no objection to the jurisdiction of the
court in the suit at law, because he was himself anxious to obtain the
judgment of the court upon his title. Consequently, there was nothing
in the record before the court to show that Darnall was of African
descent, and the usual judgment and award of execution was entered.
And Legrand thereupon filed his bill on the equity side of the Circuit
Court, stating that Darnall was born a slave, and had not been legally
emancipated, and could not therefore take the land devised to him, nor
make Legrand a good title; and praying an injunction to restrain
Darnall from proceeding to execution on the judgment, which was
granted. Darnall answered, averring in his answer that he was a free
man, and capable of conveying a good title. Testimony was taken on
this point, and at the hearing the Circuit Court was of opinion that
Darnall was a free man and his title good, and dissolved the
injunction and dismissed the bill; and that decree was affirmed here,
upon the appeal of Legrand.

Now, it is difficult to imagine how any question about the citizenship
of Darnall, or his right to sue in that character, can be supposed to
have arisen or been decided in that case. The fact that he was of
African descent was first brought before the court upon the bill in
equity. The suit at law had then passed into judgment and award of
execution, and the Circuit Court, as a court of law, had no longer any
authority over it. It was a valid and legal judgment, which the court
that rendered it had not the power to reverse or set aside. And unless
it had jurisdiction as a court of equity to restrain him from using
its process as a court of law, Darnall, if he thought proper, would
have been at liberty to proceed on his judgment, and compel the
payment of the money, although the allegations in the bill were true,
and he was incapable of making a title. No other court could have
enjoined him, for certainly no State equity court could interfere in
that way with the judgment of a Circuit Court of the United States.

But the Circuit Court as a court of equity certainly had equity
jurisdiction over its own judgment as a court of law, without regard
to the character of the parties; and had not only the right, but it
was its duty--no matter who were the parties in the judgment--to
prevent them from proceeding to enforce it by execution, if the court
was satisfied that the money was not justly and equitably due. The
ability of Darnall to convey did not depend upon his citizenship, but
upon his title to freedom. And if he was free, he could hold and
convey property, by the laws of Maryland, although he was not a
citizen. But if he was by law still a slave, he could not. It was
therefore the duty of the court, sitting as a court of equity in the
latter case, to prevent him from using its process, as a court of
common law, to compel the payment of the purchase-money, when it was
evident that the purchaser must lose the land. But if he was free, and
could make a title, it was equally the duty of the court not to suffer
Legrand to keep the land, and refuse the payment of the money, upon
the ground that Darnall was incapable of suing or being sued as a
citizen in a court of the United States. The character or citizenship
of the parties had no connection with the question of jurisdiction,
and the matter in dispute had no relation to the citizenship of
Darnall. Nor is such a question alluded to in the opinion of the
court.

Besides, we are by no means prepared to say that there are not many
cases, civil as well as criminal, in which a Circuit Court of the
United States may exercise jurisdiction, although one of the African
race is a party; that broad question is not before the court. The
question with which we are now dealing is, whether a person of the
African race can be a citizen of the United States, and become thereby
entitled to a special privilege, by virtue of his title to that
character, and which, under the Constitution, no one but a citizen can
claim. It is manifest that the case of Legrand and Darnall has no
bearing on that question, and can have no application to the case now
before the court.

This case, however, strikingly illustrates the consequences that would
follow the construction of the Constitution which would give the power
contended for to a State. It would in effect give it also to an
individual. For if the father of young Darnall had manumitted him in
his lifetime, and sent him to reside in a State which recognised him
as a citizen, he might have visited and sojourned in Maryland when he
pleased, and as long as he pleased, as a citizen of the United States;
and the State officers and tribunals would be compelled, by the
paramount authority of the Constitution, to receive him and treat him
as one of its citizens, exempt from the laws and police of the State
in relation to a person of that description, and allow him to enjoy
all the rights and privileges of citizenship, without respect to the
laws of Maryland, although such laws were deemed by it absolutely
essential to its own safety.

The only two provisions which point to them and include them, treat
them as property, and make it the duty of the Government to protect
it; no other power, in relation to this race, is to be found in the
Constitution; and as it is a Government of special delegated powers,
no authority beyond these two provisions can be constitutionally
exercised. The Government of the United States had no right to
interfere for any other purpose but that of protecting the rights of
the owner, leaving it altogether with the several States to deal with
this race, whether emancipated or not, as each State may think
justice, humanity, and the interests and safety of society, require.
The States evidently intended to reserve this power exclusively to
themselves.

No one, we presume, supposes that any change in public opinion or
feeling, in relation to this unfortunate race, in the civilized
nations of Europe or in this country, should induce the court to give
to the words of the Constitution a more liberal construction in their
favor than they were intended to bear when the instrument was framed
and adopted. Such an argument would be altogether inadmissible in any
tribunal called on to interpret it. If any of its provisions are
deemed unjust, there is a mode prescribed in the instrument itself by
which it may be amended; but while it remains unaltered, it must be
construed now as it was understood at the time of its adoption. It is
not only the same in words, but the same in meaning, and delegates the
same powers to the Government, and reserves and secures the same
rights and privileges to the citizen; and as long as it continues to
exist in its present form, it speaks not only in the same words, but
with the same meaning and intent with which it spoke when it came from
the hands of its framers, and was voted on and adopted by the people
of the United States. Any other rule of construction would abrogate
the judicial character of this court, and make it the mere reflex of
the popular opinion or passion of the day. This court was not created
by the Constitution for such purposes. Higher and graver trusts have
been confided to it, and it must not falter in the path of duty.

What the construction was at that time, we think can hardly admit of
doubt. We have the language of the Declaration of Independence and of
the Articles of Confederation, in addition to the plain words of the
Constitution itself; we have the legislation of the different States,
before, about the time, and since, the Constitution was adopted; we
have the legislation of Congress, from the time of its adoption to a
recent period; and we have the constant and uniform action of the
Executive Department, all concurring together, and leading to the same
result. And if anything in relation to the construction of the
Constitution can be regarded as settled, it is that which we now give
to the word "citizen" and the word "people."

And upon a full and careful consideration of the subject, the court
is of opinion, that, upon the facts stated in the plea in abatement,
Dred Scott was not a citizen of Missouri within the meaning of the
Constitution of the United States, and not entitled as such to sue in
its courts; and, consequently, that the Circuit Court had no
jurisdiction of the case, and that the judgment on the plea in
abatement is erroneous.

We are aware that doubts are entertained by some of the members of the
court, whether the plea in abatement is legally before the court upon
this writ of error; but if that plea is regarded as waived, or out of
the case upon any other ground, yet the question as to the
jurisdiction of the Circuit Court is presented on the face of the bill
of exception itself, taken by the plaintiff at the trial; for he
admits that he and his wife were born slaves, but endeavors to make
out his title to freedom and citizenship by showing that they were
taken by their owner to certain places, hereinafter mentioned, where
slavery could not by law exist, and that they thereby became free, and
upon their return to Missouri became citizens of that State.

Now, if the removal of which he speaks did not give them their
freedom, then by his own admission he is still a slave; and whatever
opinions may be entertained in favor of the citizenship of a free
person of the African race, no one supposes that a slave is a citizen
of the State or of the United States. If, therefore, the acts done by
his owner did not make them free persons, he is still a slave, and
certainly incapable of suing in the character of a citizen.

The principle of law is too well settled to be disputed, that a court
can give no judgment for either party, where it has no jurisdiction;
and if, upon the showing of Scott himself, it appeared that he was
still a slave, the case ought to have been dismissed, and the judgment
against him and in favor of the defendant for costs, is, like that on
the plea in abatement, erroneous, and the suit ought to have been
dismissed by the Circuit Court for want of jurisdiction in that court.

But, before we proceed to examine this part of the case, it may be
proper to notice an objection taken to the judicial authority of this
court to decide it; and it has been said, that as this court has
decided against the jurisdiction of the Circuit Court on the plea in
abatement, it has no right to examine any question presented by the
exception; and that anything it may say upon that part of the case
will be extra-judicial, and mere obiter dicta.

This is a manifest mistake; there can be no doubt as to the
jurisdiction of this court to revise the judgment of a Circuit Court,
and to reverse it for any error apparent on the record, whether it be
the error of giving judgment in a case over which it had no
jurisdiction, or any other material error; and this, too, whether
there is a plea in abatement or not.

The objection appears to have arisen from confounding writs of error
to a State court, with writs of error to a Circuit Court of the United
States. Undoubtedly, upon a writ of error to a State court, unless the
record shows a case that gives jurisdiction, the case must be
dismissed for want of jurisdiction in _this court_. And if it is
dismissed on that ground, we have no right to examine and decide upon
any question presented by the bill of exceptions, or any other part of
the record. But writs of error to a State court, and to a Circuit
Court of the United States, are regulated by different laws, and stand
upon entirely different principles. And in a writ of error to a
Circuit Court of the United States, the whole record is before this
court for examination and decision; and if the sum in controversy is
large enough to give jurisdiction, it is not only the right, but it is
the judicial duty of the court, to examine the whole case as presented
by the record; and if it appears upon its face that any material error
or errors have been committed by the court below, it is the duty of
this court to reverse the judgment, and remand the case. And certainly
an error in passing a judgment upon the merits in favor of either
party, in a case which it was not authorized to try, and over which it
had no jurisdiction, is as grave an error as a court can commit.

The plea in abatement is not a plea to the jurisdiction of this court,
but to the jurisdiction of the Circuit Court. And it appears by the
record before us, that the Circuit Court committed an error, in
deciding that it had jurisdiction, upon the facts in the case,
admitted by the pleadings. It is the duty of the appellate tribunal to
correct this error; but that could not be done by dismissing the case
for want of jurisdiction here--for that would leave the erroneous
judgment in full force, and the injured party without remedy. And the
appellate court therefore exercises the power for which alone
appellate courts are constituted, by reversing the judgment of the
court below for this error. It exercises its proper and appropriate
jurisdiction over the judgment and proceedings of the Circuit Court,
as they appear upon the record brought up by the writ of error.

The correction of one error in the court below does not deprive the
appellate court of the power of examining further into the record, and
correcting any other material errors which may have been committed by
the inferior court. There is certainly no rule of law--nor any
practice--nor any decision of a court--which even questions this
power in the appellate tribunal. On the contrary, it is the daily
practice of this court, and of all appellate courts where they reverse
the judgment of an inferior court for error, to correct by its
opinions whatever errors may appear on the record material to the
case; and they have always held it to be their duty to do so where the
silence of the court might lead to misconstruction or future
controversy, and the point has been relied on by either side, and
argued before the court.

In the case before us, we have already decided that the Circuit Court
erred in deciding that it had jurisdiction upon the facts admitted by
the pleadings. And it appears that, in the further progress of the
case, it acted upon the erroneous principle it had decided on the
pleadings, and gave judgment for the defendant, where, upon the facts
admitted in the exception, it had no jurisdiction.

We are at a loss to understand upon what principle of law, applicable
to appellate jurisdiction, it can be supposed that this court has not
judicial authority to correct the last-mentioned error, because they
had before corrected the former; or by what process of reasoning it
can be made out, that the error of an inferior court in actually
pronouncing judgment for one of the parties, in a case in which it had
no jurisdiction, cannot be looked into or corrected by this court,
because we have decided a similar question presented in the pleadings.
The last point is distinctly presented by the facts contained in the
plaintiff's own bill of exceptions, which he himself brings here by
this writ of error. It was the point which chiefly occupied the
attention of the counsel on both sides in the argument--and the
judgment which this court must render upon both errors is precisely
the same. It must, in each of them, exercise jurisdiction over the
judgment, and reverse it for the errors committed by the court below;
and issue a mandate to the Circuit Court to conform its judgment to
the opinion pronounced by this court, by dismissing the case for want
of jurisdiction in the Circuit Court. This is the constant and
invariable practice of this court, where it reverses a judgment for
want of jurisdiction in the Circuit Court.

It can scarcely be necessary to pursue such a question further. The
want of jurisdiction in the court below may appear on the record
without any plea in abatement. This is familiarly the case where a
court of chancery has exercised jurisdiction in a case where the
plaintiff had a plain and adequate remedy at law, and it so appears by
the transcript when brought here by appeal. So also where it appears
that a court of admiralty has exercised jurisdiction in a case
belonging exclusively to a court of common law. In these cases there
is no plea in abatement. And for the same reason, and upon the same
principles, where the defect of jurisdiction is patent on the record,
this court is bound to reverse the judgment, although the defendant
has not pleaded in abatement to the jurisdiction of the inferior
court.

The cases of Jackson _v._ Ashton and of Capron _v._ Van Noorden, to
which we have referred in a previous part of this opinion, are
directly in point. In the last-mentioned case, Capron brought an
action against Van Noorden in a Circuit Court of the United States,
without showing, by the usual averments of citizenship, that the court
had jurisdiction. There was no plea in abatement put in, and the
parties went to trial upon the merits. The court gave judgment in
favor of the defendant with costs. The plaintiff thereupon brought his
writ of error, and this court reversed the judgment given in favor of
the defendant, and remanded the case with directions to dismiss it,
because it did not appear by the transcript that the Circuit Court had
jurisdiction.

The case before us still more strongly imposes upon this court the
duty of examining whether the court below has not committed an error,
in taking jurisdiction and giving a judgment for costs in favor of the
defendant; for in Capron _v._ Van Noorden the judgment was reversed,
because it did _not appear_ that the parties were citizens of
different States. They might or might not be. But in this case it
_does appear_ that the plaintiff was born a slave; and if the facts
upon which he relies have not made him free, then it appears
affirmatively on the record that he is not a citizen, and consequently
his suit against Sandford was not a suit between citizens of different
States, and the court had no authority to pass any judgment between
the parties. The suit ought, in this view of it, to have been
dismissed by the Circuit Court, and its judgment in favor of Sandford
is erroneous, and must be reversed.

It is true that the result either way, by dismissal or by a judgment
for the defendant, makes very little, if any, difference in a
pecuniary or personal point of view to either party. But the fact that
the result would be very nearly the same to the parties in either form
of judgment would not justify this court in sanctioning an error in
the judgment which is patent on the record, and which, if sanctioned,
might be drawn into precedent, and lead to serious mischief and
injustice in some future suit.

We proceed, therefore, to inquire whether the facts relied on by the
plaintiff entitled him to his freedom.

The case, as he himself states it, on the record brought here by his
writ of error, is this:

The plaintiff was a negro slave, belonging to Dr. Emerson, who was a
surgeon in the army of the United States. In the year 1834, he took
the plaintiff from the State of Missouri to the military post at Rock
Island, in the State of Illinois, and held him there as a slave until
the month of April or May, 1836. At the time last mentioned, said Dr.
Emerson removed the plaintiff from said military post at Rock Island
to the military post at Fort Snelling, situate on the west bank of the
Mississippi river, in the Territory known as Upper Louisiana, acquired
by the United States of France, and situate north of the latitude of
thirty-six degrees thirty minutes north, and north of the State of
Missouri. Said Dr. Emerson held the plaintiff in slavery at said Fort
Snelling, from said last-mentioned date until the year 1838.

In the year 1835, Harriet, who is named in the second count of the
plaintiff's declaration, was the negro slave of Major Taliaferro, who
belonged to the army of the United States. In that year, 1835, said
Major Taliaferro took said Harriet to said Fort Snelling, a military
post, situated as hereinbefore stated, and kept her there as a slave
until the year 1836, and then sold and delivered her as a slave, at
said Fort Snelling, unto the said Dr. Emerson hereinbefore named. Said
Dr. Emerson held said Harriet in slavery at said Fort Snelling until
the year 1838.

In the year 1836, the plaintiff and Harriet intermarried, at Fort
Snelling, with the consent of Dr. Emerson, who then claimed to be
their master and owner. Eliza and Lizzie, named in the third count of
the plaintiff's declaration, are the fruit of that marriage. Eliza is
about fourteen years old, and was born on board the steamboat Gipsey,
north of the north line of the State of Missouri, and upon the river
Mississippi. Lizzie is about seven years old, and was born in the
State of Missouri, at the military post called Jefferson Barracks.

In the year 1838, said Dr. Emerson removed the plaintiff and said
Harriet, and their said daughter Eliza, from said Fort Snelling to the
State of Missouri, where they have ever since resided.

Before the commencement of this suit, said Dr. Emerson sold and
conveyed the plaintiff, and Harriet, Eliza, and Lizzie, to the
defendant, as slaves, and the defendant has ever since claimed to hold
them, and each of them, as slaves.

In considering this part of the controversy, two questions arise: 1.
Was he, together with his family, free in Missouri by reason of the
stay in the territory of the United States hereinbefore mentioned?
And 2. If they were not, is Scott himself free by reason of his
removal to Rock Island, in the State of Illinois, as stated in the
above admissions?

We proceed to examine the first question.

The act of Congress, upon which the plaintiff relies, declares that
slavery and involuntary servitude, except as a punishment for crime,
shall be forever prohibited in all that part of the territory ceded by
France, under the name of Louisiana, which lies north of thirty-six
degrees thirty minutes north latitude, and not included within the
limits of Missouri. And the difficulty which meets us at the threshold
of this part of the inquiry is, whether Congress was authorized to
pass this law under any of the powers granted to it by the
Constitution; for if the authority is not given by that instrument, it
is the duty of this court to declare it void and inoperative, and
incapable of conferring freedom upon any one who is held as a slave
under the laws of any one of the States.

The counsel for the plaintiff has laid much stress upon that article
in the Constitution which confers on Congress the power "to dispose of
and make all needful rules and regulations respecting the territory or
other property belonging to the United States;" but, in the judgment
of the court, that provision has no bearing on the present
controversy, and the power there given, whatever it may be, is
confined, and was intended to be confined, to the territory which at
that time belonged to, or was claimed by, the United States, and was
within their boundaries as settled by the treaty with Great Britain,
and can have no influence upon a territory afterwards acquired from a
foreign Government. It was a special provision for a known and
particular territory, and to meet a present emergency, and nothing
more.

A brief summary of the history of the times, as well as the careful
and measured terms in which the article is framed, will show the
correctness of this proposition.

It will be remembered that, from the commencement of the Revolutionary
war, serious difficulties existed between the States, in relation to
the disposition of large and unsettled territories which were included
in the chartered limits of some of the States. And some of the other
States, and more especially Maryland, which had no unsettled lands,
insisted that as the unoccupied lands, if wrested from Great Britain,
would owe their reservation to the common purse and the common sword,
the money arising from them ought to be applied in just proportion
among the several States to pay the expenses of the war, and ought not
to be appropriated to the use of the State in whose chartered limits
they might happen to lie, to the exclusion of the other States, by
whose combined efforts and common expense the territory was defended
and preserved against the claim of the British Government.

These difficulties caused much uneasiness during the war, while the
issue was in some degree doubtful, and the future boundaries of the
United States yet to be defined by treaty, if we achieved our
independence.

The majority of the Congress of the Confederation obviously concurred
in opinion with the State of Maryland, and desired to obtain from the
States which claimed it a cession of this territory, in order that
Congress might raise money on this security to carry on the war. This
appears by the resolution passed on the 6th of September, 1780,
strongly urging the States to cede these lands to the United States,
both for the sake of peace and union among themselves, and to maintain
the public credit; and this was followed by the resolution of October
10th, 1780, by which Congress pledged itself, that if the lands were
ceded, as recommended by the resolution above mentioned, they should
be disposed of for the common benefit of the United States, and be
settled and formed into distinct republican States, which should
become members of the Federal Union, and have the same rights of
sovereignty, and freedom, and independence, as other States.

But these difficulties became much more serious after peace took
place, and the boundaries of the United States were established. Every
State, at that time, felt severely the pressure of its war debt; but
in Virginia, and some other States, there were large territories of
unsettled lands, the sale of which would enable them to discharge
their obligations without much inconvenience; while other States,
which had no such resource, saw before them many years of heavy and
burdensome taxation; and the latter insisted, for the reasons before
stated, that these unsettled lands should be treated as the common
property of the States, and the proceeds applied to their common
benefit.

The letters from the statesmen of that day will show how much this
controversy occupied their thoughts, and the dangers that were
apprehended from it. It was the disturbing element of the time, and
fears were entertained that it might dissolve the Confederation by
which the States were then united.

These fears and dangers were, however, at once removed, when the State
of Virginia, in 1784, voluntarily ceded to the United States the
immense tract of country lying northwest of the river Ohio, and which
was within the acknowledged limits of the State. The only object of
the State, in making this cession, was to put an end to the
threatening and exciting controversy, and to enable the Congress of
that time to dispose of the lands, and appropriate the proceeds as a
common fund for the common benefit of the States. It was not ceded,
because it was inconvenient to the State to hold and govern it, nor
from any expectation that it could be better or more conveniently
governed by the United States.

The example of Virginia was soon afterwards followed by other States,
and, at the time of the adoption of the Constitution, all of the
States, similarly situated, had ceded their unappropriated lands,
except North Carolina and Georgia. The main object for which these
cessions were desired and made, was on account of their money value,
and to put an end to a dangerous controversy, as to who was justly
entitled to the proceeds when the lands should be sold. It is
necessary to bring this part of the history of these cessions thus
distinctly into view, because it will enable us the better to
comprehend the phraseology of the article in the Constitution, so
often referred to in the argument.

Undoubtedly the powers of sovereignty and the eminent domain were
ceded with the land. This was essential, in order to make it
effectual, and to accomplish its objects. But it must be remembered
that, at that time, there was no Government of the United States in
existence with enumerated and limited powers; what was then called the
United States, were thirteen separate, sovereign, independent States,
which had entered into a league or confederation for their mutual
protection and advantage, and the Congress of the United States was
composed of the representatives of these separate sovereignties,
meeting together, as equals, to discuss and decide on certain measures
which the States, by the Articles of Confederation, had agreed to
submit to their decision. But this Confederation had none of the
attributes of sovereignty in legislative, executive, or judicial
power. It was little more than a congress of ambassadors, authorized
to represent separate nations, in matters in which they had a common
concern.

It was this Congress that accepted the cession from Virginia. They had
no power to accept it under the Articles of Confederation. But they
had an undoubted right, as independent sovereignties, to accept any
cession of territory for their common benefit, which all of them
assented to; and it is equally clear, that as their common property,
and having no superior to control them, they had the right to exercise
absolute dominion over it, subject only to the restrictions which
Virginia had imposed in her act of cession. There was, as we have
said, no Government of the United States then in existence with
special enumerated and limited powers. The territory belonged to
sovereignties, who, subject to the limitations above mentioned, had a
right to establish any form of government they pleased, by compact or
treaty among themselves, and to regulate rights of person and rights
of property in the territory, as they might deem proper. It was by a
Congress, representing the authority of these several and separate
sovereignties, and acting under their authority and command, (but not
from any authority derived from the Articles of Confederation,) that
the instrument usually called the ordinance of 1787 was adopted;
regulating in much detail the principles and the laws by which this
territory should be governed; and among other provisions, slavery is
prohibited in it. We do not question the power of the States, by
agreement among themselves, to pass this ordinance, nor its obligatory
force in the territory, while the confederation or league of the
States in their separate sovereign character continued to exist.

This was the state of things when the Constitution of the United
States was formed. The territory ceded by Virginia belonged to the
several confederated States as common property, and they had united in
establishing in it a system of government and jurisprudence, in order
to prepare it for admission as States, according to the terms of the
cession. They were about to dissolve this federative Union, and to
surrender a portion of their independent sovereignty to a new
Government, which, for certain purposes, would make the people of the
several States one people, and which was to be supreme and controlling
within its sphere of action throughout the United States; but this
Government was to be carefully limited in its powers, and to exercise
no authority beyond those expressly granted by the Constitution, or
necessarily to be implied from the language of the instrument, and the
objects it was intended to accomplish; and as this league of States
would, upon the adoption of the new Government, cease to have any
power over the territory, and the ordinance they had agreed upon be
incapable of execution, and a mere nullity, it was obvious that some
provision was necessary to give the new Government sufficient power to
enable it to carry into effect the objects for which it was ceded, and
the compacts and agreements which the States had made with each other
in the exercise of their powers of sovereignty. It was necessary that
the lands should be sold to pay the war debt; that a Government and
system of jurisprudence should be maintained in it, to protect the
citizens of the United States who should migrate to the territory, in
their rights of person and of property. It was also necessary that the
new Government, about to be adopted, should be authorized to maintain
the claim of the United States to the unappropriated lands in North
Carolina and Georgia, which had not then been ceded, but the cession
of which was confidently anticipated upon some terms that would be
arranged between the General Government and these two States. And,
moreover, there were many articles of value besides this property in
land, such as arms, military stores, munitions, and ships of war,
which were the common property of the States, when acting in their
independent characters as confederates, which neither the new
Government nor any one else would have a right to take possession of,
or control, without authority from them; and it was to place these
things under the guardianship and protection of the new Government,
and to clothe it with the necessary powers, that the clause was
inserted in the Constitution which gives Congress the power "to
dispose of and make all needful rules and regulations respecting the
territory or other property belonging to the United States." It was
intended for a specific purpose, to provide for the things we have
mentioned. It was to transfer to the new Government the property then
held in common by the States, and to give to that Government power to
apply it to the objects for which it had been destined by mutual
agreement among the States before their league was dissolved. It
applied only to the property which the States held in common at that
time, and has no reference whatever to any territory or other property
which the new sovereignty might afterwards itself acquire.

The language used in the clause, the arrangement and combination of
the powers, and the somewhat unusual phraseology it uses, when it
speaks of the political power to be exercised in the government of the
territory, all indicate the design and meaning of the clause to be
such as we have mentioned. It does not speak of _any_ territory, nor
of _Territories_, but uses language which, according to its legitimate
meaning, points to a particular thing. The power is given in relation
only to _the_ territory of the United States--that is, to a territory
then in existence, and then known or claimed as the territory of the
United States. It begins its enumeration of powers by that of
disposing, in other words, making sale of the lands, or raising money
from them, which, as we have already said, was the main object of the
cession, and which is accordingly the first thing provided for in the
article. It then gives the power which was necessarily associated with
the disposition and sale of the lands--that is, the power of making
needful rules and regulations respecting the territory. And whatever
construction may now be given to these words, every one, we think,
must admit that they are not the words usually employed by statesmen
in giving supreme power of legislation. They are certainly very unlike
the words used in the power granted to legislate over territory which
the new Government might afterwards itself obtain by cession from a
State, either for its seat of Government, or for forts, magazines,
arsenals, dock yards, and other needful buildings.

And the same power of making needful rules respecting the territory
is, in precisely the same language, applied to the _other_ property
belonging to the United States--associating the power over the
territory in this respect with the power over movable or personal
property--that is, the ships, arms, and munitions of war, which then
belonged in common to the State sovereignties. And it will hardly be
said, that this power, in relation to the last-mentioned objects, was
deemed necessary to be thus specially given to the new Government, in
order to authorize it to make needful rules and regulations respecting
the ships it might itself build, or arms and munitions of war it might
itself manufacture or provide for the public service.

No one, it is believed, would think a moment of deriving the power of
Congress to make needful rules and regulations in relation to property
of this kind from this clause of the Constitution. Nor can it, upon
any fair construction, be applied to any property but that which the
new Government was about to receive from the confederated States. And
if this be true as to this property, it must be equally true and
limited as to the territory, which is so carefully and precisely
coupled with it--and like it referred to as property in the power
granted. The concluding words of the clause appear to render this
construction irresistible; for, after the provisions we have
mentioned, it proceeds to say, "that nothing in the Constitution shall
be so construed as to prejudice any claims of the United States, or of
any particular State."

Now, as we have before said, all of the States, except North Carolina
and Georgia, had made the cession before the Constitution was adopted,
according to the resolution of Congress of October 10, 1780. The
claims of other States, that the unappropriated lands in these two
States should be applied to the common benefit, in like manner, was
still insisted on, but refused by the States. And this member of the
clause in question evidently applies to them, and can apply to nothing
else. It was to exclude the conclusion that either party, by adopting
the Constitution, would surrender what they deemed their rights. And
when the latter provision relates so obviously to the unappropriated
lands not yet ceded by the States, and the first clause makes
provision for those then actually ceded, it is impossible, by any
just rule of construction, to make the first provision general, and
extend to all territories, which the Federal Government might in any
way afterwards acquire, when the latter is plainly and unequivocally
confined to a particular territory; which was a part of the same
controversy, and involved in the same dispute, and depended upon the
same principles. The union of the two provisions in the same clause
shows that they were kindred subjects; and that the whole clause is
local, and relates only to lands, within the limits of the United
States, which had been or then were claimed by a State; and that no
other territory was in the mind of the framers of the Constitution, or
intended to be embraced in it. Upon any other construction it would be
impossible to account for the insertion of the last provision in the
place where it is found, or to comprehend why, or for what object, it
was associated with the previous provision.

This view of the subject is confirmed by the manner in which the
present Government of the United States dealt with the subject as soon
as it came into existence. It must be borne in mind that the same
States that formed the Confederation also formed and adopted the new
Government, to which so large a portion of their former sovereign
powers were surrendered. It must also be borne in mind that all of
these same States which had then ratified the new Constitution were
represented in the Congress which passed the first law for the
government of this territory; and many of the members of that
legislative body had been deputies from the States under the
Confederation--had united in adopting the ordinance of 1787, and
assisted in forming the new Government under which they were then
acting, and whose powers they were then exercising. And it is obvious
from the law they passed to carry into effect the principles and
provisions of the ordinance, that they regarded it as the act of the
States done in the exercise of their legitimate powers at the time.
The new Government took the territory as it found it, and in the
condition in which it was transferred, and did not attempt to undo
anything that had been done. And, among the earliest laws passed under
the new Government, is one reviving the ordinance of 1787, which had
become inoperative and a nullity upon the adoption of the
Constitution. This law introduces no new form or principles for its
government, but recites, in the preamble, that it is passed in order
that this ordinance may continue to have full effect, and proceeds to
make only those rules and regulations which were needful to adapt it
to the new Government, into whose hands the power had fallen. It
appears, therefore, that this Congress regarded the purposes to which
the land in this Territory was to be applied, and the form of
government and principles of jurisprudence which were to prevail
there, while it remained in the Territorial state, as already
determined on by the States when they had full power and right to make
the decision; and that the new Government, having received it in this
condition, ought to carry substantially into effect the plans and
principles which had been previously adopted by the States, and which
no doubt the States anticipated when they surrendered their power to
the new Government. And if we regard this clause of the Constitution
as pointing to this Territory, with a Territorial Government already
established in it, which had been ceded to the States for the purposes
hereinbefore mentioned--every word in it is perfectly appropriate and
easily understood, and the provisions it contains are in perfect
harmony with the objects for which it was ceded, and with the
condition of its government as a Territory at the time. We can, then,
easily account for the manner in which the first Congress legislated
on the subject--and can also understand why this power over the
territory was associated in the same clause with the other property of
the United States, and subjected to the like power of making needful
rules and regulations. But if the clause is construed in the expanded
sense contended for, so as to embrace any territory acquired from a
foreign nation by the present Government, and to give it in such
territory a despotic and unlimited power over persons and property,
such as the confederated States might exercise in their common
property, it would be difficult to account for the phraseology used,
when compared with other grants of power--and also for its association
with the other provisions in the same clause.

The Constitution has always been remarkable for the felicity of its
arrangement of different subjects, and the perspicuity and
appropriateness of the language it uses. But if this clause is
construed to extend to territory acquired by the present Government
from a foreign nation, outside of the limits of any charter from the
British Government to a colony, it would be difficult to say, why it
was deemed necessary to give the Government the power to sell any
vacant lands belonging to the sovereignty which might be found within
it; and if this was necessary, why the grant of this power should
precede the power to legislate over it and establish a Government
there; and still more difficult to say, why it was deemed necessary so
specially and particularly to grant the power to make needful rules
and regulations in relation to any personal or movable property it
might acquire there. For the words, _other property_ necessarily, by
every known rule of interpretation, must mean property of a different
description from territory or land. And the difficulty would perhaps
be insurmountable in endeavoring to account for the last member of the
sentence, which provides that "nothing in this Constitution shall be
so construed as to prejudice any claims of the United States or any
particular State," or to say how any particular State could have
claims in or to a territory ceded by a foreign Government, or to
account for associating this provision with the preceding provisions
of the clause, with which it would appear to have no connection.

The words "needful rules and regulations" would seem, also, to have
been cautiously used for some definite object. They are not the words
usually employed by statesmen, when they mean to give the powers of
sovereignty, or to establish a Government, or to authorize its
establishment. Thus, in the law to renew and keep alive the ordinance
of 1787, and to re-establish the Government, the title of the law is:
"An act to provide for the government of the territory northwest of
the river Ohio." And in the Constitution, when granting the power to
legislate over the territory that may be selected for the seat of
Government independently of a State, it does not say Congress shall
have power "to make all needful rules and regulations respecting the
territory;" but it declares that "Congress shall have power to
exercise exclusive legislation in all cases whatsoever over such
District (not exceeding ten miles square) as may, by cession of
particular States and the acceptance of Congress, become the seat of
the Government of the United States."

The words "rules and regulations" are usually employed in the
Constitution in speaking of some particular specified power which it
means to confer on the Government, and not, as we have seen, when
granting general powers of legislation. As, for example, in the
particular power to Congress "to make rules for the government and
regulation of the land and naval forces, or the particular and
specific power to regulate commerce;" "to establish an uniform _rule_
of naturalization;" "to coin money and _regulate_ the value thereof."
And to construe the words of which we are speaking as a general and
unlimited grant of sovereignty over territories which the Government
might afterwards acquire, is to use them in a sense and for a purpose
for which they were not used in any other part of the instrument. But
if confined to a particular Territory, in which a Government and laws
had already been established, but which would require some alterations
to adapt it to the new Government, the words are peculiarly applicable
and appropriate for that purpose.

The necessity of this special provision in relation to property and
the rights or property held in common by the confederated States, is
illustrated by the first clause of the sixth article. This clause
provides that "all debts, contracts, and engagements entered into
before the adoption of this Constitution, shall be as valid against
the United States under this Government as under the Confederation."
This provision, like the one under consideration, was indispensable if
the new Constitution was adopted. The new Government was not a mere
change in a dynasty, or in a form of government, leaving the nation or
sovereignty the same, and clothed with all the rights, and bound by
all the obligations of the preceding one. But, when the present United
States came into existence under the new Government, it was a new
political body, a new nation, then for the first time taking its place
in the family of nations. It took nothing by succession from the
Confederation. It had no right, as its successor, to any property or
rights of property which it had acquired, and was not liable for any
of its obligations. It was evidently viewed in this light by the
framers of the Constitution. And as the several states would cease to
exist in their former confederated character upon the adoption of the
Constitution, and could not, in that character, again assemble
together, special provisions were indispensable to transfer to the new
Government the property and rights which at that time they held in
common; and at the same time to authorize it to lay taxes and
appropriate money to pay the common debt which they had contracted;
and this power could only be given to it by special provisions in the
Constitution. The clause in relation to the territory and other
property of the United States provided for the first, and the clause
last quoted provided for the other. They have no connection with the
general powers and rights of sovereignty delegated to the new
Government, and can neither enlarge nor diminish them. They were
inserted to meet a present emergency, and not to regulate its powers
as a Government.

Indeed, a similar provision was deemed necessary, in relation to
treaties made by the Confederation; and when in the clause next
succeeding the one of which we have last spoken, it is declared that
treaties shall be the supreme law of the land, care is taken to
include, by express words, the treaties made by the confederated
States. The language is: "and all treaties made, or which shall be
made, under the authority of the United States, shall be the supreme
law of the land."

Whether, therefore, we take the particular clause in question, by
itself, or in connection with the other provisions of the
Constitution, we think it clear, that it applies only to the
particular territory of which we have spoken, and cannot, by any just
rule of interpretation, be extended to territory which the new
Government might afterwards obtain from a foreign nation.
Consequently, the power which Congress may have lawfully exercised in
this Territory, while it remained under a Territorial Government, and
which may have been sanctioned by judicial decision, can furnish no
justification and no argument to support a similar exercise of power
over territory afterwards acquired by the Federal Government. We put
aside, therefore, any argument, drawn from precedents, showing the
extent of the power which the General Government exercised over
slavery in this Territory, as altogether inapplicable to the case
before us.

But the case of the American and Ocean Insurance Companies _v._ Canter
(1 Pet., 511) has been quoted as establishing a different construction
of this clause of the Constitution. There is, however, not the
slightest conflict between the opinion now given and the one referred
to; and it is only by taking a single sentence out of the latter and
separating it from the context, that even an appearance of conflict
can be shown. We need not comment on such a mode of expounding an
opinion of the court. Indeed it most commonly misrepresents instead of
expounding it. And this is fully exemplified in the case referred to,
where, if one sentence is taken by itself, the opinion would appear to
be in direct conflict with that now given; but the words which
immediately follow that sentence show that the court did not mean to
decide the point, but merely affirmed the power of Congress to
establish a Government in the Territory, leaving it an open question,
whether that power was derived from this clause in the Constitution,
or was to be necessarily inferred from a power to acquire territory by
cession from a foreign Government. The opinion on this part of the
case is short, and we give the whole of it to show how well the
selection of a single sentence is calculated to mislead.

The passage referred to is in page 542, in which the court, in
speaking of the power of Congress to establish a Territorial
Government in Florida until it should become a State, uses the
following language:

"In the mean time Florida continues to be a Territory of the United
States, governed by that clause of the Constitution which empowers
Congress to make all needful rules and regulations respecting the
territory or other property of the United States. Perhaps the power of
governing a territory belonging to the United States, which has not,
by becoming a State, acquired the means of self-government, may
result, necessarily, from the facts that it is not within the
jurisdiction of any particular State, and is within the power and
jurisdiction of the United States. The right to govern may be the
inevitable consequence of the right to acquire territory. _Whichever
may be the source from which the power is derived, the possession of
it is unquestionable._"

It is thus clear, from the whole opinion on this point, that the court
did not mean to decide whether the power was derived from the clause
in the Constitution, or was the necessary consequence of the right to
acquire. They do decide that the power in Congress is unquestionable,
and in this we entirely concur, and nothing will be found in this
opinion to the contrary. The power stands firmly on the latter
alternative put by the court--that is, as "_the inevitable consequence
of the right to acquire territory_."

And what still more clearly demonstrates that the court did not mean
to decide the question, but leave it open for future consideration, is
the fact that the case was decided in the Circuit Court by Mr. Justice
Johnson, and his decision was affirmed by the Supreme Court. His
opinion at the circuit is given in full in a note to the case, and in
that opinion he states, in explicit terms, that the clause of the
Constitution applies only to the territory then within the limits of
the United States, and not to Florida, which had been acquired by
cession from Spain. This part of his opinion will be found in the note
in page 517 of the report. But he does not dissent from the opinion of
the Supreme Court; thereby showing that, in his judgment, as well as
that of the court, the case before them did not call for a decision on
that particular point, and the court abstained from deciding it. And
in a part of its opinion subsequent to the passage we have quoted,
where the court speak of the legislative power of Congress in Florida,
they still speak with the same reserve. And in page 546, speaking of
the power of Congress to authorize the Territorial Legislature to
establish courts there, the court say: "They are legislative courts,
created in virtue of the general right of sovereignty which exists in
the Government, or in virtue of that clause which enables Congress to
make all needful rules and regulations respecting the territory
belonging to the United States."

It has been said that the construction given to this clause is new,
and now for the first time brought forward. The case of which we are
speaking, and which has been so much discussed, shows that the fact is
otherwise. It shows that precisely the same question came before Mr.
Justice Johnson, at his circuit, thirty years ago--was fully
considered by him, and the same construction given to the clause in
the Constitution which is now given by this court. And that upon an
appeal from his decision the same question was brought before this
court, but was not decided because a decision upon it was not required
by the case before the court.

There is another sentence in the opinion which has been commented on,
which even in a still more striking manner shows how one may mislead
or be misled by taking out a single sentence from the opinion of a
court, and leaving out of view what precedes and follows. It is in
page 546, near the close of the opinion, in which the court say: "In
legislating for them," (the territories of the United States,)
"Congress exercises the combined powers of the General and of a State
Government." And it is said, that as a State may unquestionably
prohibit slavery within its territory, this sentence decides in effect
that Congress may do the same in a Territory of the United States,
exercising there the powers of a State, as well as the power of the
General Government.

The examination of this passage in the case referred to, would be more
appropriate when we come to consider in another part of this opinion
what power Congress can constitutionally exercise in a Territory, over
the rights of person or rights of property of a citizen. But, as it is
in the same case with the passage we have before commented on, we
dispose of it now, as it will save the court from the necessity of
referring again to the case. And it will be seen upon reading the page
in which this sentence is found, that it has no reference whatever to
the power of Congress over rights of person or rights of property--but
relates altogether to the power of establishing judicial tribunals to
administer the laws constitutionally passed, and defining the
jurisdiction they may exercise.

The law of Congress establishing a Territorial Government in Florida,
provided that the Legislature of the Territory should have legislative
powers over "all rightful objects of legislation; but no law should be
valid which was inconsistent with the laws and Constitution of the
United States."

Under the power thus conferred, the Legislature of Florida passed an
act, erecting a tribunal at Key West to decide cases of salvage. And
in the case of which we are speaking, the question arose whether the
Territorial Legislature could be authorized by Congress to establish
such a tribunal, with such powers; and one of the parties, among other
objections, insisted that Congress could not under the Constitution
authorize the Legislature of the Territory to establish such a
tribunal with such powers, but that it must be established by Congress
itself; and that a sale of cargo made under its order, to pay salvors,
was void, as made without legal authority, and passed no property to
the purchaser.

It is in disposing of this objection that the sentence relied on
occurs, and the court begin that part of the opinion by stating with
great precision the point which they are about to decide.

They say: "It has been contended that by the Constitution of the
United States, the judicial power of the United States extends to all
cases of admiralty and maritime jurisdiction; and that the whole of
the judicial power must be vested 'in one Supreme Court, and in such
inferior courts as Congress shall from time to time ordain and
establish.' Hence it has been argued that Congress cannot vest
admiralty jurisdiction in courts created by the Territorial
Legislature."

And after thus clearly stating the point before them, and which they
were about to decide, they proceed to show that these Territorial
tribunals were not constitutional courts, but merely legislative, and
that Congress might, therefore, delegate the power to the Territorial
Government to establish the court in question; and they conclude that
part of the opinion in the following words: "Although admiralty
jurisdiction can be exercised in the States in those courts only which
are established in pursuance of the third article of the Constitution,
the same limitation does not extend to the Territories. In legislating
for them, Congress exercises the combined powers of the General and
State Governments."

Thus it will be seen by these quotations from the opinion, that the
court, after stating the question it was about to decide in a manner
too plain to be misunderstood, proceeded to decide it, and announced,
as the opinion of the tribunal, that in organizing the judicial
department of the Government in a Territory of the United States,
Congress does not act under, and is not restricted by, the third
article in the Constitution, and is not bound, in a Territory, to
ordain and establish courts in which the judges hold their offices
during good behaviour, but may exercise the discretionary power which
a State exercises in establishing its judicial department, and
regulating the jurisdiction of its courts, and may authorize the
Territorial Government to establish, or may itself establish, courts
in which the judges hold their offices for a term of years only; and
may vest in them judicial power upon subjects confided to the
judiciary of the United States. And in doing this, Congress
undoubtedly exercises the combined power of the General and a State
Government. It exercises the discretionary power of a State Government
in authorizing the establishment of a court in which the judges hold
their appointments for a term of years only, and not during good
behaviour; and it exercises the power of the General Government in
investing that court with admiralty jurisdiction, over which the
General Government had exclusive jurisdiction in the Territory.

No one, we presume, will question the correctness of that opinion; nor
is there anything in conflict with it in the opinion now given. The
point decided in the case cited has no relation to the question now
before the court. That depended on the construction of the third
article of the Constitution, in relation to the judiciary of the
United States, and the power which Congress might exercise in a
Territory in organizing the judicial department of the Government. The
case before us depends upon other and different provisions of the
Constitution, altogether separate and apart from the one above
mentioned. The question as to what courts Congress may ordain or
establish in a Territory to administer laws which the Constitution
authorizes it to pass, and what laws it is or is not authorized by the
Constitution to pass, are widely different--are regulated by different
and separate articles of the Constitution, and stand upon different
principles. And we are satisfied that no one who reads attentively the
page in Peters's Reports to which we have referred, can suppose that
the attention of the court was drawn for a moment to the question now
before this court, or that it meant in that case to say that Congress
had a right to prohibit a citizen of the United States from taking any
property which he lawfully held into a Territory of the United States.

This brings us to examine by what provision of the Constitution the
present Federal Government, under its delegated and restricted powers,
is authorized to acquire territory outside of the original limits of
the United States, and what powers it may exercise therein over the
person or property of a citizen of the United States, while it remains
a Territory, and until it shall be admitted as one of the States of
the Union.

There is certainly no power given by the Constitution to the Federal
Government to establish or maintain colonies bordering on the United
States or at a distance, to be ruled and governed at its own pleasure;
nor to enlarge its territorial limits in any way, except by the
admission of new States. That power is plainly given; and if a new
State is admitted, it needs no further legislation by Congress,
because the Constitution itself defines the relative rights and
powers, and duties of the State, and the citizens of the State, and
the Federal Government. But no power is given to acquire a Territory
to be held and governed permanently in that character.

And indeed the power exercised by Congress to acquire territory and
establish a Government there, according to its own unlimited
discretion, was viewed with great jealousy by the leading statesmen
of the day. And in the Federalist, (No. 38,) written by Mr. Madison,
he speaks of the acquisition of the Northwestern Territory by the
confederated States, by the cession from Virginia, and the
establishment of a Government there, as an exercise of power not
warranted by the Articles of Confederation, and dangerous to the
liberties of the people. And he urges the adoption of the Constitution
as a security and safeguard against such an exercise of power.

We do not mean, however, to question the power of Congress in this
respect. The power to expand the territory of the United States by the
admission of new States is plainly given; and in the construction of
this power by all the departments of the Government, it has been held
to authorize the acquisition of territory, not fit for admission at
the time, but to be admitted as soon as its population and situation
would entitle it to admission. It is acquired to become a State, and
not to be held as a colony and governed by Congress with absolute
authority; and as the propriety of admitting a new State is committed
to the sound discretion of Congress, the power to acquire territory
for that purpose, to be held by the United States until it is in a
suitable condition to become a State upon an equal footing with the
other States, must rest upon the same discretion. It is a question for
the political department of the Government, and not the judicial; and
whatever the political department of the Government shall recognise as
within the limits of the United States, the judicial department is
also bound to recognise, and to administer in it the laws of the
United States, so far as they apply, and to maintain in the Territory
the authority and rights of the Government, and also the personal
rights and rights of property of individual citizens, as secured by
the Constitution. All we mean to say on this point is, that, as there
is no express regulation in the Constitution defining the power which
the General Government may exercise over the person or property of a
citizen in a Territory thus acquired, the court must necessarily look
to the provisions and principles of the Constitution, and its
distribution of powers, for the rules and principles by which its
decision must be governed.

Taking this rule to guide us, it may be safely assumed that citizens
of the United States who migrate to a Territory belonging to the
people of the United States, cannot be ruled as mere colonists,
dependent upon the will of the General Government, and to be governed
by any laws it may think proper to impose. The principle upon which
our Governments rest, and upon which alone they continue to exist, is
the union of States, sovereign and independent within their own limits
in their internal and domestic concerns, and bound together as one
people by a General Government, possessing certain enumerated and
restricted powers, delegated to it by the people of the several
States, and exercising supreme authority within the scope of the
powers granted to it, throughout the dominion of the United States. A
power, therefore, in the General Government to obtain and hold
colonies and dependent territories, over which they might legislate
without restriction, would be inconsistent with its own existence in
its present form. Whatever it acquires, it acquires for the benefit of
the people of the several States who created it. It is their trustee
acting for them, and charged with the duty of promoting the interests
of the whole people of the Union in the exercise of the powers
specifically granted.

At the time when the Territory in question was obtained by cession
from France, it contained no population fit to be associated together
and admitted as a State; and it therefore was absolutely necessary to
hold possession of it, as a Territory belonging to the United States,
until it was settled and inhabited by a civilized community capable of
self-government, and in a condition to be admitted on equal terms with
the other States as a member of the Union. But, as we have before
said, it was acquired by the General Government, as the representative
and trustee of the people of the United States, and it must therefore
be held in that character for their common and equal benefit; for it
was the people of the several States, acting through their agent and
representative, the Federal Government, who in fact acquired the
Territory in question, and the Government holds it for their common
use until it shall be associated with the other States as a member of
the Union.

But until that time arrives, it is undoubtedly necessary that some
Government should be established, in order to organize society, and to
protect the inhabitants in their persons and property; and as the
people of the United States could act in this matter only through the
Government which represented them, and through which they spoke and
acted when the Territory was obtained, it was not only within the
scope of its powers, but it was its duty to pass such laws and
establish such a Government as would enable those by whose authority
they acted to reap the advantages anticipated from its acquisition,
and to gather there a population which would enable it to assume the
position to which it was destined among the States of the Union. The
power to acquire necessarily carries with it the power to preserve and
apply to the purposes for which it was acquired. The form of
government to be established necessarily rested in the discretion of
Congress. It was their duty to establish the one that would be best
suited for the protection and security of the citizens of the United
States, and other inhabitants who might be authorized to take up their
abode there, and that must always depend upon the existing condition
of the Territory, as to the number and character of its inhabitants,
and their situation in the Territory. In some cases a Government,
consisting of persons appointed by the Federal Government, would best
subserve the interests of the Territory, when the inhabitants were few
and scattered, and new to one another. In other instances, it would be
more advisable to commit the powers of self-government to the people
who had settled in the Territory, as being the most competent to
determine what was best for their own interests. But some form of
civil authority would be absolutely necessary to organize and preserve
civilized society, and prepare it to become a State; and what is the
best form must always depend on the condition of the Territory at the
time, and the choice of the mode must depend upon the exercise of a
discretionary power by Congress, acting within the scope of its
constitutional authority, and not infringing upon the rights of person
or rights of property of the citizen who might go there to reside, or
for any other lawful purpose. It was acquired by the exercise of this
discretion, and it must be held and governed in like manner, until it
is fitted to be a State.

But the power of Congress over the person or property of a citizen can
never be a mere discretionary power under our Constitution and form of
Government. The powers of the Government and the rights and privileges
of the citizen are regulated and plainly defined by the Constitution
itself. And when the Territory becomes a part of the United States,
the Federal Government enters into possession in the character
impressed upon it by those who created it. It enters upon it with its
powers over the citizen strictly defined, and limited by the
Constitution, from which it derives its own existence, and by virtue
of which alone it continues to exist and act as a Government and
sovereignty. It has no power of any kind beyond it; and it cannot,
when it enters a Territory of the United States, put off its
character, and assume discretionary or despotic powers which the
Constitution has denied to it. It cannot create for itself a new
character separated from the citizens of the United States, and the
duties it owes them under the provisions of the Constitution. The
Territory being a part of the United States, the Government and the
citizen both enter it under the authority of the Constitution, with
their respective rights defined and marked out; and the Federal
Government can exercise no power over his person or property, beyond
what that instrument confers, nor lawfully deny any right which it has
reserved.

A reference to a few of the provisions of the Constitution will
illustrate this proposition.

For example, no one, we presume, will contend that Congress can make
any law in a Territory respecting the establishment of religion, or
the free exercise thereof, or abridging the freedom of speech or of
the press, or the right of the people of the Territory peaceably to
assemble, and to petition the Government for the redress of
grievances.

Nor can Congress deny to the people the right to keep and bear arms,
nor the right to trial by jury, nor compel any one to be a witness
against himself in a criminal proceeding.

These powers, and others, in relation to rights of person, which it is
not necessary here to enumerate, are, in express and positive terms,
denied to the General Government; and the rights of private property
have been guarded with equal care. Thus the rights of property are
united with the rights of person, and placed on the same ground by the
fifth amendment to the Constitution, which provides that no person
shall be deprived of life, liberty, and property, without due process
of law. And an act of Congress which deprives a citizen of the United
States of his liberty or property, merely because he came himself or
brought his property into a particular Territory of the United States,
and who had committed no offence against the laws, could hardly be
dignified with the name of due process of law.

So, too, it will hardly be contended that Congress could by law
quarter a soldier in a house in a Territory without the consent of the
owner, in time of peace; nor in time of war, but in a manner
prescribed by law. Nor could they by law forfeit the property of a
citizen in a Territory who was convicted of treason, for a longer
period than the life of the person convicted; nor take private
property for public use without just compensation.

The powers over person and property of which we speak are not only not
granted to Congress, but are in express terms denied, and they are
forbidden to exercise them. And this prohibition is not confined to
the States, but the words are general, and extend to the whole
territory over which the Constitution gives it power to legislate,
including those portions of it remaining under Territorial Government,
as well as that covered by States. It is a total absence of power
everywhere within the dominion of the United States, and places the
citizens of a Territory, so far as these rights are concerned, on the
same footing with citizens of the States, and guards them as firmly
and plainly against any inroads which the General Government might
attempt, under the plea of implied or incidental powers. And if
Congress itself cannot do this--if it is beyond the powers conferred
on the Federal Government--it will be admitted, we presume, that it
could not authorize a Territorial Government to exercise them. It
could confer no power on any local Government, established by its
authority, to violate the provisions of the Constitution.

It seems, however, to be supposed, that there is a difference between
property in a slave and other property, and that different rules may
be applied to it in expounding the Constitution of the United States.
And the laws and usages of nations, and the writings of eminent
jurists upon the relation of master and slave and their mutual rights
and duties, and the powers which Governments may exercise over it,
have been dwelt upon in the argument.

But in considering the question before us, it must be borne in mind
that there is no law of nations standing between the people of the
United States and their Government, and interfering with their
relation to each other. The powers of the Government, and the rights
of the citizen under it, are positive and practical regulations
plainly written down. The people of the United States have delegated
to it certain enumerated powers, and forbidden it to exercise others.
It has no power over the person or property of a citizen but what the
citizens of the United States have granted. And no laws or usages of
other nations, or reasoning of statesmen or jurists upon the relations
of master and slave, can enlarge the powers of the Government, or take
from the citizens the rights they have reserved. And if the
Constitution recognises the right of property of the master in a
slave, and makes no distinction between that description of property
and other property owned by a citizen, no tribunal, acting under the
authority of the United States, whether it be legislative, executive,
or judicial, has a right to draw such a distinction, or deny to it the
benefit of the provisions and guarantees which have been provided for
the protection of private property against the encroachments of the
Government.

Now, as we have already said in an earlier part of this opinion, upon
a different point, the right of property in a slave is distinctly and
expressly affirmed in the Constitution. The right to traffic in it,
like an ordinary article of merchandise and property, was guarantied
to the citizens of the United States, in every State that might desire
it, for twenty years. And the Government in express terms is pledged
to protect it in all future time, if the slave escapes from his
owner. This is done in plain words--too plain to be misunderstood. And
no word can be found in the Constitution which gives Congress a
greater power over slave property, or which entitles property of that
kind to less protection than property of any other description. The
only power conferred is the power coupled with the duty of guarding
and protecting the owner in his rights.

Upon these considerations, it is the opinion of the court that the act
of Congress which prohibited a citizen from holding and owning
property of this kind in the territory of the United States north of
the line therein mentioned, is not warranted by the Constitution, and
is therefore void; and that neither Dred Scott himself, nor any of his
family, were made free by being carried into this territory; even if
they had been carried there by the owner, with the intention of
becoming a permanent resident.

We have so far examined the case, as it stands under the Constitution
of the United States, and the powers thereby delegated to the Federal
Government.

But there is another point in the case which depends on State power
and State law. And it is contended, on the part of the plaintiff, that
he is made free by being taken to Rock Island, in the State of
Illinois, independently of his residence in the territory of the
United States; and being so made free, he was not again reduced to a
state of slavery by being brought back to Missouri.

Our notice of this part of the case will be very brief; for the
principle on which it depends was decided in this court, upon much
consideration, in the case of Strader et al. _v._ Graham, reported in
10th Howard, 82. In that case, the slaves had been taken from Kentucky
to Ohio, with the consent of the owner, and afterwards brought back to
Kentucky. And this court held that their _status_ or condition, as
free or slave, depended upon the laws of Kentucky, when they were
brought back into that State, and not of Ohio; and that this court had
no jurisdiction to revise the judgment of a State court upon its own
laws. This was the point directly before the court, and the decision
that this court had not jurisdiction turned upon it, as will be seen
by the report of the case.

So in this case. As Scott was a slave when taken into the State of
Illinois by his owner, and was there held as such, and brought back in
that character, his _status_, as free or slave, depended on the laws
of Missouri, and not of Illinois.

It has, however, been urged in the argument, that by the laws of
Missouri he was free on his return, and that this case, therefore,
cannot be governed by the case of Strader et al. _v._ Graham, where it
appeared, by the laws of Kentucky, that the plaintiffs continued to be
slaves on their return from Ohio. But whatever doubts or opinions may,
at one time, have been entertained upon this subject, we are
satisfied, upon a careful examination of all the cases decided in the
State courts of Missouri referred to, that it is now firmly settled by
the decisions of the highest court in the State, that Scott and his
family upon their return were not free, but were, by the laws of
Missouri, the property of the defendant; and that the Circuit Court of
the United States had no jurisdiction, when, by the laws of the State,
the plaintiff was a slave, and not a citizen.

Moreover, the plaintiff, it appears, brought a similar action against
the defendant in the State court of Missouri, claiming the freedom of
himself and his family upon the same grounds and the same evidence
upon which he relies in the case before the court. The case was
carried before the Supreme Court of the State; was fully argued there;
and that court decided that neither the plaintiff nor his family were
entitled to freedom, and were still the slaves of the defendant; and
reversed the judgment of the inferior State court, which had given a
different decision. If the plaintiff supposed that this judgment of
the Supreme Court of the State was erroneous, and that this court had
jurisdiction to revise and reverse it, the only mode by which he could
legally bring it before this court was by writ of error directed to
the Supreme Court of the State, requiring it to transmit the record to
this court. If this had been done, it is too plain for argument that
the writ must have been dismissed for want of jurisdiction in this
court. The case of Strader and others _v._ Graham is directly in
point; and, indeed, independent of any decision, the language of the
25th section of the act of 1789 is too clear and precise to admit of
controversy.

But the plaintiff did not pursue the mode prescribed by law for
bringing the judgment of a State court before this court for revision,
but suffered the case to be remanded to the inferior State court,
where it is still continued, and is, by agreement of parties, to await
the judgment of this court on the point. All of this appears on the
record before us, and by the printed report of the case.

And while the case is yet open and pending in the inferior State
court, the plaintiff goes into the Circuit Court of the United States,
upon the same case and the same evidence, and against the same party,
and proceeds to judgment, and then brings here the same case from the
Circuit Court, which the law would not have permitted him to bring
directly from the State court. And if this court takes jurisdiction
in this form, the result, so far as the rights of the respective
parties are concerned, is in every respect substantially the same as
if it had in open violation of law entertained jurisdiction over the
judgment of the State court upon a writ of error, and revised and
reversed its judgment upon the ground that its opinion upon the
question of law was erroneous. It would ill become this court to
sanction such an attempt to evade the law, or to exercise an appellate
power in this circuitous way, which it is forbidden to exercise in the
direct and regular and invariable forms of judicial proceedings.

Upon the whole, therefore, it is the judgment of this court, that it
appears by the record before us that the plaintiff in error is not a
citizen of Missouri, in the sense in which that word is used in the
Constitution; and that the Circuit Court of the United States, for
that reason, had no jurisdiction in the case, and could give no
judgment in it. Its judgment for the defendant must, consequently, be
reversed, and a mandate issued, directing the suit to be dismissed for
want of jurisdiction.

       *       *       *       *       *

Mr. Justice WAYNE.

Concurring as I do entirely in the opinion of the court, as it has
been written and read by the Chief Justice--without any qualification
of its reasoning or its conclusions--I shall neither read nor file an
opinion of my own in this case, which I prepared when I supposed it
might be necessary and proper for me to do so.

The opinion of the court meets fully and decides every point which was
made in the argument of the case by the counsel on either side of it.
Nothing belonging to the case has been left undecided, nor has any
point been discussed and decided which was not called for by the
record, or which was not necessary for the judicial disposition of it,
in the way that it has been done, by more than a majority of the
court.

In doing this, the court neither sought nor made the case. It was
brought to us in the course of that administration of the laws which
Congress has enacted, for the review of cases from the Circuit Courts
by the Supreme Court.

In our action upon it, we have only discharged our duty as a distinct
and efficient department of the Government, as the framers of the
Constitution meant the judiciary to be, and as the States of the Union
and the people of those States intended it should be, when they
ratified the Constitution of the United States.

The case involves private rights of value, and constitutional
principles of the highest importance, about which there had become
such a difference of opinion, that the peace and harmony of the
country required the settlement of them by judicial decision.

It would certainly be a subject of regret, that the conclusions of the
court have not been assented to by all of its members, if I did not
know from its history and my own experience how rarely it has happened
that the judges have been unanimous upon constitutional questions of
moment, and if our decision in this case had not been made by as large
a majority of them as has been usually had on constitutional questions
of importance.

Two of the judges, Mr. Justices McLean and Curtis, dissent from the
opinion of the court. A third, Mr. Justice Nelson, gives a separate
opinion upon a single point in the case, with which I concur, assuming
that the Circuit Court had jurisdiction; but he abstains altogether
from expressing any opinion upon the eighth section of the act of
1820, known commonly as the Missouri Compromise law, and six of us
declare that it was unconstitutional.

But it has been assumed, that this court has acted extra-judicially in
giving an opinion upon the eighth section of the act of 1820, because,
as it has decided that the Circuit Court had no jurisdiction of the
case, this court had no jurisdiction to examine the case upon its
merits.

But the error of such an assertion has arisen in part from a
misapprehension of what has been heretofore decided by the Supreme
Court, in cases of a like kind with that before us; in part, from a
misapplication to the Circuit Courts of the United States, of the
rules of pleading concerning pleas to the jurisdiction which prevail
in common-law courts; and from its having been forgotten that this
case was not brought to this court by appeal or writ of error from a
State court, but by a writ of error to the Circuit Court of the United
States.

The cases cited by the Chief Justice to show that this court has now
only done what it has repeatedly done before in other cases, without
any question of its correctness, speak for themselves. The differences
between the rules concerning pleas to the jurisdiction in the courts
of the United States and common-law courts have been stated and
sustained by reasoning and adjudged cases; and it has been shown that
writs of error to a State court and to the Circuit Courts of the
United States are to be determined by different laws and principles.
In the first, it is our duty ascertain if this court has jurisdiction,
under the twenty-fifth section of the judiciary act, to review the
case _from the State court_; and if it shall be found that it has not,
the case is at end, so far as this court is concerned; for our power
to review the case upon its merits has been made, by the twenty-fifth
section, to depend upon its having jurisdiction; when it has not, this
court cannot criticise, controvert, or give any opinion upon the
merits of a case from a State court.

But in a case brought to this court, by appeal or by writ of error
from _a Circuit Court of the United States_, we begin a review of it,
_not by inquiring if this court has jurisdiction_, but if that court
has it. If the case has been decided by that court upon its merits,
but the record shows it to be deficient in those averments which by
the law of the United States must be made by the plaintiff in the
action, to give the court jurisdiction of his case, we send it back to
the court from which it was brought, with directions to be dismissed,
though it has been decided there upon its merits.

So, in a case containing the averments by the plaintiff which are
necessary to give the Circuit Court jurisdiction, if the defendant
shall file his plea in abatement denying the truth of them, and the
plaintiff shall demur to it, and the court should _erroneously sustain
the plaintiff's demurrer, or declare the plea to be insufficient, and
by doing so require the defendant to answer over by a plea to the
merits, and shall decide the case upon such pleading_, this court has
the same authority to inquire into the jurisdiction of that court to
do so, and to correct its error in that regard, that it had in the
other case to correct its error, in trying a case in which the
plaintiff had not made those averments which were necessary to give
the court jurisdiction. In both cases the record is resorted to, to
determine the point of jurisdiction; but, as the power of review of
cases from a Federal court, by this court, is not limited by the law
to a part of the case, this court may correct an error upon the
merits; and there is the same reason for correcting an erroneous
judgment of the Circuit Court, where the want of jurisdiction appears
from any part of the record, that there is for declaring a want of
jurisdiction for a want of necessary averments. Any attempt to control
the court from doing so by the technical common-law rules of pleading
in cases of jurisdiction, when a defendant has been denied his plea to
it, would tend to enlarge the jurisdiction of the Circuit Court, by
limiting this court's review of its judgments in that particular. But
I will not argue a point already so fully discussed. I have every
confidence in the opinion of the court upon the point of jurisdiction,
and do not allow myself to doubt that the error of a contrary
conclusion will be fully understood by all who shall read the argument
of the Chief Justice.

I have already said that the opinion of the court has my unqualified
assent.

       *       *       *       *       *

Mr. Justice NELSON.

I shall proceed to state the grounds upon which I have arrived at the
conclusion, that the judgment of the court below should be affirmed.
The suit was brought in the court below by the plaintiff, for the
purpose of asserting his freedom, and that of Harriet, his wife, and
two children.

The defendant plead, in abatement to the suit, that the cause of
action, if any, accrued to the plaintiff out of the jurisdiction of
the court, and exclusively within the jurisdiction of the courts of
the State of Missouri; for, that the said plaintiff is not a citizen
of the State of Missouri, as alleged in the declaration, because he is
a negro of African descent; his ancestors were of pure African blood,
and were brought into this country and sold as negro slaves.

To this plea the plaintiff demurred, and the defendant joined in
demurrer. The court below sustained the demurrer, holding that the
plea was insufficient in law to abate the suit.

The defendant then plead over in bar of the action:

1. The general issue. 2. That the plaintiff was a negro slave, the
lawful property of the defendant. And 3. That Harriet, the wife of
said plaintiff, and the two children, were the lawful slaves of the
said defendant. Issue was taken upon these pleas, and the cause went
down to trial before the court and jury, and an agreed state of facts
was presented, upon which the trial proceeded, and resulted in a
verdict for the defendant, under the instructions of the court.

The facts agreed upon were substantially as follows:

That in the year 1834, the plaintiff, Scott, was a negro slave of Dr.
Emerson, who was a surgeon in the army of the United States; and in
that year he took the plaintiff from the State of Missouri to the
military post at Rock Island, in the State of Illinois, and held him
there as a slave until the month of April or May, 1836. At this date,
Dr. Emerson removed, with the plaintiff from the Rock Island post to
the military post at Fort Snelling, situate on the west bank of the
Mississippi river, in the Territory of Upper Louisiana, and north of
the latitude thirty-six degrees thirty minutes, and north of the State
of Missouri. That he held the plaintiff in slavery, at Fort Snelling,
from the last-mentioned date until the year 1838.

That in the year 1835, Harriet, mentioned in the declaration, was a
negro slave of Major Taliaferro, who belonged to the army of the
United States; and in that year he took her to Fort Snelling, already
mentioned, and kept her there as a slave until the year 1836, and then
sold and delivered her to Dr. Emerson, who held her in slavery, at
Fort Snelling, until the year 1838. That in the year 1836, the
plaintiff and Harriet were married, at Fort Snelling, with the
consent of their master. The two children, Eliza and Lizzie, are the
fruit of this marriage. The first is about fourteen years of age, and
was born on board the steamboat Gipsey, north of the State of
Missouri, and upon the Mississippi river; the other, about seven years
of age, was born in the State of Missouri, at the military post called
Jefferson Barracks.

In 1838, Dr. Emerson removed the plaintiff, Harriet, and their
daughter Eliza, from Fort Snelling to the State of Missouri, where
they have ever since resided. And that, before the commencement of
this suit, they were sold by the Doctor to Sandford, the defendant,
who has claimed and held them as slaves ever since.

The agreed case also states that the plaintiff brought a suit for his
freedom, in the Circuit Court of the State of Missouri, on which a
judgment was rendered in his favor; but that, on a writ of error from
the Supreme Court of the State, the judgment of the court below was
reversed, and the cause remanded to the circuit for a new trial.

On closing the testimony in the court below, the counsel for the
plaintiff prayed the court to instruct the jury, upon the agreed state
of facts, that they ought to find for the plaintiff; when the court
refused, and instructed them that, upon the facts, the law was with
the defendant.

With respect to the plea in abatement, which went to the citizenship
of the plaintiff, and his competency to bring a suit in the Federal
courts, the common-law rule of pleading is, that upon a judgment
against the plea on demurrer, and that the defendant answer over, and
the defendant submits to the judgment, and pleads over to the merits,
the plea in abatement is deemed to be waived, and is not afterwards to
be regarded as a part of the record in deciding upon the rights of the
parties. There is some question, however, whether this rule of
pleading applies to the peculiar system and jurisdiction of the
Federal courts. As, in these courts, if the facts appearing on the
record show that the Circuit Court had no jurisdiction, its judgment
will be reversed in the appellate court for that cause, and the case
remanded with directions to be dismissed.

In the view we have taken of the case, it will not be necessary to
pass upon this question, and we shall therefore proceed at once to an
examination of the case upon its merits. The question upon the merits,
in general terms, is, whether or not the removal of the plaintiff, who
was a slave, with his master, from the State of Missouri to the State
of Illinois, with a view to a temporary residence, and after such
residence and return to the slave State, such residence in the free
State works an emancipation.

As appears from an agreed statement of facts, this question has been
before the highest court of the State of Missouri, and a judgment
rendered that this residence in the free State has no such effect;
but, on the contrary, that his original condition continued unchanged.

The court below, the Circuit Court of the United States for Missouri,
in which this suit was afterwards brought, followed the decision of
the State court, and rendered a like judgment against the plaintiff.

The argument against these decisions is, that the laws of Illinois,
forbidding slavery within her territory, had the effect to set the
slave free while residing in that State, and to impress upon him the
condition and status of a freeman; and that, by force of these laws,
this status and condition accompanied him on his return to the slave
State, and of consequence he could not be there held as a slave.

This question has been examined in the courts of several of the
slaveholding States, and different opinions expressed and conclusions
arrived at. We shall hereafter refer to some of them, and to the
principles upon which they are founded. Our opinion is, that the
question is one which belongs to each State to decide for itself,
either by its Legislature or courts of justice; and hence, in respect
to the case before us, to the State of Missouri--a question
exclusively of Missouri law, and which, when determined by that State,
it is the duty of the Federal courts to follow it. In other words,
except in cases where the power is restrained by the Constitution of
the United States, the law of the State is supreme over the subject of
slavery within its jurisdiction.

As a practical illustration of the principle, we may refer to the
legislation of the free States in abolishing slavery, and prohibiting
its introduction into their territories. Confessedly, except as
restrained by the Federal Constitution, they exercised, and
rightfully, complete and absolute power over the subject. Upon what
principle, then, can it be denied to the State of Missouri? The power
flows from the sovereign character of the States of this Union;
sovereign, not merely as respects the Federal Government--except as
they have consented to its limitation--but sovereign as respects each
other. Whether, therefore, the State of Missouri will recognise or
give effect to the laws of Illinois within her territories on the
subject of slavery, is a question for her to determine. Nor is there
any constitutional power in this Government that can rightfully
control her.

Every State or nation possesses an exclusive sovereignty and
jurisdiction within her own territory; and, her laws affect and bind
all property and persons residing within it. It may regulate the
manner and circumstances under which property is held, and the
condition, capacity, and state, of all persons therein; and, also, the
remedy and modes of administering justice. And it is equally true,
that no State or nation can affect or bind property out of its
territory, or persons not residing within it. No State, therefore, can
enact laws to operate beyond its own dominions, and, if it attempts to
do so, it may be lawfully refused obedience. Such laws can have no
inherent authority extra-territorially. This is the necessary result
of the independence of distinct and separate sovereignties.

Now, it follows from these principles, that whatever force or effect
the laws of one State or nation may have in the territories of
another, must depend solely upon the laws and municipal regulations of
the latter, upon its own jurisprudence and polity, and upon its own
express or tacit consent.

Judge Story observes, in his Conflict of Laws, (p. 24,) "that a State
may prohibit the operation of all foreign laws, and the rights growing
out of them, within its territories." "And that when its code speaks
positively on the subject, it must be obeyed by all persons who are
within reach of its sovereignty; when its customary unwritten or
common law speaks directly on the subject, it is equally to be
obeyed."

Nations, from convenience and comity, and from mutual interest, and a
sort of moral necessity to do justice, recognise and administer the
laws of other countries. But, of the nature, extent, and utility, of
them, respecting property, or the state and condition of persons
within her territories, each nation judges for itself; and is never
bound, even upon the ground of comity, to recognise them, if
prejudicial to her own interests. The recognition is purely from
comity, and not from any absolute or paramount obligation.

Judge Story again observes, (398,) "that the true foundation and
extent of the obligation of the laws of one nation within another is
the voluntary consent of the latter, and is inadmissible when they are
contrary to its known interests." And he adds, "in the silence of any
positive rule affirming or denying or restraining the operation of the
foreign laws, courts of justice presume the tacit adoption of them by
their own Government, unless they are repugnant to its policy or
prejudicial to its interests." (See also 2 Kent Com., p. 457; 13
Peters, 519, 589.)

These principles fully establish, that it belongs to the sovereign
State of Missouri to determine by her laws the question of slavery
within her jurisdiction, subject only to such limitations as may be
found in the Federal Constitution; and, further, that the laws of
other States of the Confederacy, whether enacted by their Legislatures
or expounded by their courts, can have no operation within her
territory, or affect rights growing out of her own laws on the
subject. This is the necessary result of the independent and sovereign
character of the State. The principle is not peculiar to the State of
Missouri, but is equally applicable to each State belonging to the
Confederacy. The laws of each have no extra-territorial operation
within the jurisdiction of another, except such as may be voluntarily
conceded by her laws or courts of justice. To the extent of such
concession upon the rule of comity of nations, the foreign law may
operate, as it then becomes a part of the municipal law of the State.
When determined that the foreign law shall have effect, the municipal
law of the State retires, and gives place to the foreign law.

In view of these principles, let us examine a little more closely the
doctrine of those who maintain that the law of Missouri is not to
govern the status and condition of the plaintiff. They insist that the
removal and temporary residence with his master in Illinois, where
slavery is inhibited, had the effect to set him free, and that the
same effect is to be given to the law of Illinois, within the State of
Missouri, after his return. Why was he set free in Illinois? Because
the law of Missouri, under which he was held as a slave, had no
operation by its own force extra-territorially; and the State of
Illinois refused to recognise its effect within her limits, upon
principles of comity, as a state of slavery was inconsistent with her
laws, and contrary to her policy. But, how is the case different on
the return of the plaintiff to the State of Missouri? Is she bound to
recognise and enforce the law of Illinois? For, unless she is, the
status and condition of the slave upon his return remains the same as
originally existed. Has the law of Illinois any greater force within
the jurisdiction of Missouri, than the laws of the latter within that
of the former? Certainly not. They stand upon an equal footing.
Neither has any force extra-territorially, except what may be
voluntarily conceded to them.

It has been supposed, by the counsel for the plaintiff, that a rule
laid down by Huberus had some bearing upon this question. Huberus
observes that "personal qualities, impressed by the laws of any place,
surround and accompany the person wherever he goes, with this effect:
that in every place he enjoys and is subject to the same law which
other persons of his class elsewhere enjoy or are subject to." (De
Confl. Leg., lib. 1, tit. 3, sec. 12; 4 Dallas, 375 n.; 1 Story Con.
Laws, pp. 59, 60.)

The application sought to be given to the rule was this: that as Dred
Scott was free while residing in the State of Illinois, by the laws of
that State, on his return to the State of Missouri he carried with him
the personal qualities of freedom, and that the same effect must be
given to his status there as in the former State. But the difficulty
in the case is in the total misapplication of the rule.

These personal qualities, to which Huberus refers, are those impressed
upon the individual by the law of the domicil; it is this that the
author claims should be permitted to accompany the person into
whatever country he might go, and should supersede the law of the
place where he had taken up a temporary residence.

Now, as the domicil of Scott was in the State of Missouri, where he
was a slave, and from whence he was taken by his master into Illinois
for a temporary residence, according to the doctrine of Huberus, the
law of his domicil would have accompanied him, and during his
residence there he would remain in the same condition as in the State
of Missouri. In order to have given effect to the rule, as claimed in
the argument, it should have been first shown that a domicil had been
acquired in the free State, which cannot be pretended upon the agreed
facts in the case. But the true answer to the doctrine of Huberus is,
that the rule, in any aspect in which it may be viewed, has no bearing
upon either side of the question before us, even if conceded to the
extent laid down by the author; for he admits that foreign Governments
give effect to these laws of the domicil no further than they are
consistent with their own laws, and not prejudicial to their own
subjects; in other words, their force and effect depend upon the law
of comity of the foreign Government. We should add, also, that this
general rule of Huberus, referred to, has not been admitted in the
practice of nations, nor is it sanctioned by the most approved jurists
of international law. (Story Con., sec. 91, 96, 103, 104; 2 Kent.
Com., p. 457, 458; 1 Burge Con. Laws, pp. 12, 127.)

We come now to the decision of this court in the case of Strader et
al. _v._ Graham, (10 How., p. 2.) The case came up from the Court of
Appeals, in the State of Kentucky. The question in the case was,
whether certain slaves of Graham, a resident of Kentucky, who had been
employed temporarily at several places in the State of Ohio, with
their master's consent, and had returned to Kentucky into his service,
had thereby become entitled to their freedom. The Court of Appeals
held that they had not. The case was brought to this court under the
twenty-fifth section of the judiciary act. This court held that it had
no jurisdiction, for the reason, the question was one that belonged
exclusively to the State of Kentucky. The Chief Justice, in delivering
the opinion of the court, observed that "every State has an undoubted
right to determine the status or domestic and social condition of the
persons domiciled within its territory, except in so far as the powers
of the States in this respect are restrained, or duties and
obligations imposed upon them, by the Constitution of the United
States. There is nothing in the Constitution of the United States, he
observes, that can in any degree control the law of Kentucky upon this
subject. And the condition of the negroes, therefore, as to freedom or
slavery, after their return, depended altogether upon the laws of that
State, and could not be influenced by the laws of Ohio. It was
exclusively in the power of Kentucky to determine, for herself,
whether their employment in another State should or should not make
them free on their return."

It has been supposed, in the argument on the part of the plaintiff,
that the eighth section of the act of Congress passed March 6, 1820,
(3 St. at Large, p. 544,) which prohibited slavery north of thirty-six
degrees thirty minutes, within which the plaintiff and his wife
temporarily resided at Fort Snelling, possessed some superior virtue
and effect, extra-territorially, and within the State of Missouri,
beyond that of the laws of Illinois, or those of Ohio in the case of
Strader et al. _v._ Graham. A similar ground was taken and urged upon
the court in the case just mentioned, under the ordinance of 1787,
which was enacted during the time of the Confederation, and re-enacted
by Congress after the adoption of the Constitution, with some
amendments adapting it to the new Government. (1 St. at Large, p. 50.)

In answer to this ground, the Chief Justice, in delivering the opinion
of the court, observed: "The argument assumes that the six articles
which that ordinance declares to be perpetual, are still in force in
the States since formed within the territory, and admitted into the
Union. If this proposition could be maintained, it would not alter the
question; for the regulations of Congress, under the old Confederation
or the present Constitution, for the government of a particular
Territory, could have no force beyond its limits. It certainly could
not restrict the power of the States, within their respective
territories, nor in any manner interfere with their laws and
institutions, nor give this court control over them.

"The ordinance in question, he observes, if still in force, could have
no more operation than the laws of Ohio in the State of Kentucky, and
could not influence the decision upon the rights of the master or the
slaves in that State."

This view, thus authoritatively declared, furnishes a conclusive
answer to the distinction attempted to be set up between the
extra-territorial effect of a State law and the act of Congress in
question.

It must be admitted that Congress possesses no power to regulate or
abolish slavery within the States; and that, if this act had attempted
any such legislation, it would have been a nullity. And yet the
argument here, if there be any force in it, leads to the result, that
effect may be given to such legislation; for it is only by giving the
act of Congress operation within the State of Missouri, that it can
have any effect upon the question between the parties. Having no such
effect directly, it will be difficult to maintain, upon any consistent
reasoning, that it can be made to operate indirectly upon the subject.

The argument, we think, in any aspect in which it may be viewed, is
utterly destitute of support upon any principles of constitutional
law, as, according to that, Congress has no power whatever over the
subject of slavery within the State; and is also subversive of the
established doctrine of international jurisprudence, as, according to
that, it is an axiom that the laws of one Government have no force
within the limits of another, or extra-territorially, except from the
consent of the latter.

It is perhaps not unfit to notice, in this connection, that many of
the most eminent statesmen and jurists of the country entertain the
opinion that this provision of the act of Congress, even within the
territory to which it relates, was not authorized by any power under
the Constitution. The doctrine here contended for, not only upholds
its validity in the territory, but claims for it effect beyond and
within the limits of a sovereign State--an effect, as insisted, that
displaces the laws of the State, and substitutes its own provisions in
their place.

The consequences of any such construction are apparent. If Congress
possesses the power, under the Constitution, to abolish slavery in a
Territory, it must necessarily possess the like power to establish it.
It cannot be a one-sided power, as may suit the convenience or
particular views of the advocates. It is a power, if it exists at all,
over the whole subject; and then, upon the process of reasoning which
seeks to extend its influence beyond the Territory, and within the
limits of a State, if Congress should establish, instead of abolish,
slavery, we do not see but that, if a slave should be removed from
the Territory into a free State, his status would accompany him, and
continue, notwithstanding its laws against slavery. The laws of the
free State, according to the argument, would be displaced, and the act
of Congress, in its effect, be substituted in their place. We do not
see how this conclusion could be avoided, if the construction against
which we are contending should prevail. We are satisfied, however, it
is unsound, and that the true answer to it is, that even conceding,
for the purposes of the argument, that this provision of the act of
Congress is valid within the Territory for which it was enacted, it
can have no operation or effect beyond its limits, or within the
jurisdiction of a State. It can neither displace its laws, nor change
the status or condition of its inhabitants.

Our conclusion, therefore, is, upon this branch of the case, that the
question involved is one depending solely upon the law of Missouri,
and that the Federal court sitting in the State, and trying the case
before us, was bound to follow it.

The remaining question for consideration is, What is the law of the
State of Missouri on this subject? And it would be a sufficient answer
to refer to the judgment of the highest court of the State in the very
case, were it not due to that tribunal to state somewhat at large the
course of decision and the principles involved, on account of some
diversity of opinion in the cases. As we have already stated, this
case was originally brought in the Circuit Court of the State, which
resulted in a judgment for the plaintiff. The case was carried up to
the Supreme Court for revision. That court reversed the judgment
below, and remanded the cause to the circuit, for a new trial. In that
state of the proceeding, a new suit was brought by the plaintiff in
the Circuit Court of the United States, and tried upon the issues and
agreed case before us, and a verdict and judgment for the defendant,
that court following the decision of the Supreme Court of the State.
The judgment of the Supreme Court is reported in the 15 Misso. R., p.
576. The court placed the decision upon the temporary residence of the
master with the slaves in the State and Territory to which they
removed, and their return to the slave State; and upon the principles
of international law, that foreign laws have no extra-territorial
force, except such as the State within which they are sought to be
enforced may see fit to extend to them, upon the doctrine of comity of
nations.

This is the substance of the grounds of the decision.

The same question has been twice before that court since, and the same
judgment given, (15 Misso. R., 595; 17 Ib., 434.) It must be admitted,
therefore, as the settled law of the State, and, according to the
decision in the case of Strader et al. _v._ Graham, is conclusive of
the case in this court.

It is said, however, that the previous cases and course of decision in
the State of Missouri on this subject were different, and that the
courts had held the slave to be free on his return from a temporary
residence in the free State. We do not see, were this to be admitted,
that the circumstance would show that the settled course of decision,
at the time this case was tried in the court below, was not to be
considered the law of the State. Certainly, it must be, unless the
first decision of a principle of law by a State court is to be
permanent and irrevocable. The idea seems to be, that the courts of a
State are not to change their opinions, or, if they do, the first
decision is to be regarded by this court as the law of the State. It
is certain, if this be so, in the case before us, it is an exception
to the rule governing this court in all other cases. But what court
has not changed its opinions? What judge has not changed his?

Waiving, however, this view, and turning to the decisions of the
courts of Missouri, it will be found that there is no discrepancy
between the earlier and the present cases upon this subject. There are
some eight of them reported previous to the decision in the case
before us, which was decided in 1852. The last of the earlier cases
was decided in 1836. In each one of these, with two exceptions, the
master or mistress removed into the free State with the slave, with a
view to a permanent residence--in other words, to make that his or her
domicil. And in several of the cases, this removal and permanent
residence were relied on, as the ground of the decision in favor of
the plaintiff. All these cases, therefore, are not necessarily in
conflict with the decision in the case before us, but consistent with
it. In one of the two excepted cases, the master had hired the slave
in the State of Illinois from 1817 to 1825. In the other, the master
was an officer in the army, and removed with his slave to the military
post of Fort Snelling, and at Prairie du Chien, in Michigan,
temporarily, while acting under the orders of his Government. It is
conceded the decision in this case was departed from in the case
before us, and in those that have followed it. But it is to be
observed that these subsequent cases are in conformity with those in
all the slave States bordering on the free--in Kentucky, (2 Marsh.,
476; 5 B. Munroe, 176; 9 Ib., 565)--in Virginia, (1 Rand., 15; 1
Leigh, 172; 10 Grattan, 495)--in Maryland, (4 Harris and McHenry, 295,
322, 325.) In conformity, also, with the law of England on this
subject, Ex parte Grace, (2 Hagg. Adm., R., 94,) and with the opinions
of the most eminent jurists of the country. (Story's Confl., 396 a; 2
Kent Com., 258 n.; 18 Pick., 193, Chief Justice Shaw. See Corresp.
between Lord Stowell and Judge Story, 1 vol. Life of Story, p. 552,
558.)

Lord Stowell, in communicating his opinion in the case of the slave
Grace to Judge Story, states, in his letter, what the question was
before him, namely: "Whether the emancipation of a slave brought to
England insured a complete emancipation to him on his return to his
own country, or whether it only operated as a suspension of slavery in
England, and his original character devolved on him again upon his
return." He observed, "the question had never been examined since an
end was put to slavery fifty years ago," having reference to the
decision of Lord Mansfield in the case of Somersett; but the practice,
he observed, "has regularly been, that on his return to his own
country, the slave resumed his original character of slave." And so
Lord Stowell held in the case.

Judge Story, in his letter in reply, observes: "I have read with great
attention your judgment in the slave case, &c. Upon the fullest
consideration which I have been able to give the subject, I entirely
concur in your views. If I had been called upon to pronounce a
judgment in a like case, I should have certainly arrived at the same
result." Again he observes: "In my native State, (Massachusetts,) the
state of slavery is not recognised as legal; and yet, if a slave
should come hither, and afterwards return to his own home, we should
certainly think that the local law attached upon him, and that his
servile character would be redintegrated."

We may remark, in this connection, that the case before the Maryland
court, already referred to, and which was decided in 1799, presented
the same question as that before Lord Stowell, and received a similar
decision. This was nearly thirty years before the decision in that
case, which was in 1828. The Court of Appeals observed, in deciding
the Maryland case, that "however the laws of Great Britain in such
instances, operating upon such persons there, might interfere so as to
prevent the exercise of certain acts by the masters, not permitted, as
in the case of Somersett, yet, upon the bringing Ann Joice into this
State, (then the province of Maryland,) the relation of master and
slave continued in its extent, as authorized by the laws of this
State." And Luther Martin, one of the counsel in that case, stated, on
the argument, that the question had been previously decided the same
way in the case of slaves returning from a residence in Pennsylvania,
where they had become free under her laws.

The State of Louisiana, whose courts had gone further in holding the
slave free on his return from a residence in a free State than the
courts of her sister States, has settled the law, by an act of her
Legislature, in conformity with the law of the court of Missouri in
the case before us. (Sess. Law, 1846.)

The case before Lord Stowell presented much stronger features for
giving effect to the law of England in the case of the slave Grace
than exists in the cases that have arisen in this country, for in that
case the slave returned to a colony of England over which the Imperial
Government exercised supreme authority. Yet, on the return of the
slave to the colony, from a temporary residence in England, he held
that the original condition of the slave attached. The question
presented in cases arising here is as to the effect and operation to
be given to the laws of a foreign State, on the return of the slave
within an independent sovereignty.

Upon the whole, it must be admitted that the current of authority,
both in England and in this country, is in accordance with the law as
declared by the courts of Missouri in the case before us, and we think
the court below was not only right, but bound to follow it.

Some question has been made as to the character of the residence in
this case in the free State. But we regard the facts as set forth in
the agreed case as decisive. The removal of Dr. Emerson from Missouri
to the military posts was in the discharge of his duties as surgeon in
the army, and under the orders of his Government. He was liable at any
moment to be recalled, as he was in 1838, and ordered to another post.
The same is also true as it respects Major Taliaferro. In such a case,
the officer goes to his post for a temporary purpose, to remain there
for an uncertain time, and not for the purpose of fixing his permanent
abode. The question we think too plain to require argument. The case
of the Attorney General _v._ Napier, (6 Welsh, Hurtst. and Gordon
Exch. Rep., 217,) illustrates and applies the principle in the case of
an officer of the English army.

A question has been alluded to, on the argument, namely: the right of
the master with his slave of transit into or through a free State, on
business or commercial pursuits, or in the exercise of a Federal
right, or the discharge of a Federal duty, being a citizen of the
United States, which is not before us. This question depends upon
different considerations and principles from the one in hand, and
turns upon the rights and privileges secured to a common citizen of
the republic under the Constitution of the United States. When that
question arises, we shall be prepared to decide it.

Our conclusion is, that the judgment of the court below should be
affirmed.

       *       *       *       *       *

Mr. Justice GRIER.

I concur in the opinion delivered by Mr. Justice Nelson on the
questions discussed by him.

I also concur with the opinion of the court as delivered by the Chief
Justice, that the act of Congress of 6th March, 1820, is
unconstitutional and void; and that, assuming the facts as stated in
the opinion, the plaintiff cannot sue as a citizen of Missouri in the
courts of the United States. But, that the record shows a prima facie
case of jurisdiction, requiring the court to decide all the questions
properly arising in it; and as the decision of the pleas in bar shows
that the plaintiff is a slave, and therefore not entitled to sue in a
court of the United States, the form of the judgment is of little
importance; for, whether the judgment be affirmed or dismissed for
want of jurisdiction, it is justified by the decision of the court,
and is the same in effect between the parties to the suit.

       *       *       *       *       *

Mr. Justice DANIEL.

It may with truth be affirmed, that since the establishment of the
several communities now constituting the States of this Confederacy,
there never has been submitted to any tribunal within its limits
questions surpassing in importance those now claiming the
consideration of this court. Indeed it is difficult to imagine, in
connection with the systems of polity peculiar to the United States, a
conjuncture of graver import than that must be, within which it is
aimed to comprise, and to control, not only the faculties and
practical operation appropriate to the American Confederacy as such,
but also the rights and powers of its separate and independent
members, with reference alike to their internal and domestic authority
and interests, and the relations they sustain to their confederates.

To my mind it is evident, that nothing less than the ambitious and
far-reaching pretension to compass these objects of vital concern, is
either directly essayed or necessarily implied in the positions
attempted in the argument for the plaintiff in error.

How far these positions have any foundation in the nature of the
rights and relations of separate, equal, and independent Governments,
or in the provisions of our own Federal compact, or the laws enacted
under and in pursuance of the authority of that compact, will be
presently investigated.

In order correctly to comprehend the tendency and force of those
positions, it is proper here succinctly to advert to the facts upon
which the questions of law propounded in the argument have arisen.

This was an action of trespass _vi et armis_, instituted in the
Circuit Court of the United States for the district of Missouri, in
the name of the plaintiff in error, _a negro_ held as a slave, for the
recovery of freedom for himself, his wife, and two children, _also
negroes_.

To the declaration in this case the defendant below, who is also the
defendant in error, pleaded in abatement that the court could not take
cognizance of the cause, because the plaintiff was not _a citizen_ of
the State of Missouri, as averred in the declaration, but was a _negro
of African descent_, and that his ancestors were of pure African
blood, and were brought into this country and sold as _negro slaves_;
and hence it followed, from the second section of the third article of
the Constitution, which creates the judicial power of the United
States, with respect to controversies between citizens of different
States, that the Circuit Court could not take cognizance of the
action.

To this plea in abatement, a demurrer having been interposed on behalf
of the plaintiff, it was sustained by the court. After the decision
sustaining the demurrer, the defendant, in pursuance of a previous
agreement between counsel, and with the leave of the court, pleaded in
bar of the action: _1st, not guilty; 2dly, that the plaintiff was a
negro slave, the lawful property of the defendant, and as such the
defendant gently laid his hands upon him, and thereby had only
restrained him, as the defendant had a right to do; 3dly, that with
respect to the wife and daughters of the plaintiff, in the second and
third counts of the declaration mentioned, the defendant had, as to
them, only acted at the same manner, and in virtue of the same legal
right_.

Issues having been joined upon the above pleas in bar, the following
statement, comprising all the evidence in the cause, was agreed upon
and signed by the counsel of the respective parties, viz:

"In the year 1834, the plaintiff was a negro slave belonging to Doctor
Emerson, who was a surgeon in the army of the United States. In that
year, 1834, said Dr. Emerson took the plaintiff from the State of
Missouri to the military post at Rock Island, in the State of
Illinois, and held him there as a slave until the month of April or
May, 1836. At the time last mentioned, said Dr. Emerson removed the
plaintiff from said military post at Rock Island to the military post
at Fort Snelling, situate on the west bank of the Mississippi river,
in the Territory known as Upper Louisiana, acquired by the United
States of France, and situate north of the latitude of thirty-six
degrees thirty minutes north, and north of the State of Missouri. Said
Dr. Emerson held the plaintiff in slavery at said Fort Snelling, from
said last-mentioned date until the year 1838.

"In the year 1835, Harriet, who is named in the second count of the
plaintiff's declaration, was the negro slave of Major Taliaferro, who
belonged to the army of the United States. In that year, 1835, said
Major Taliaferro took said Harriet to said Fort Snelling, a military
post situated as hereinbefore stated, and kept her there as a slave
until the year 1836, and then sold and delivered her as a slave at
said Fort Snelling unto the said Dr. Emerson, hereinbefore named. Said
Dr. Emerson held said Harriet in slavery at said Fort Snelling until
the year 1838.

"In the year 1836, the plaintiff and said Harriet, at said Fort
Snelling, with the consent of said Dr. Emerson, who then claimed to be
their master and owner, intermarried, and took each other for husband
and wife. Eliza and Lizzie, named in the third count of the
plaintiff's declaration, are the fruit of that marriage. Eliza is
about fourteen years old, and was born on board the steamboat Gipsey,
north of the north line of the State of Missouri, and upon the river
Mississippi. Lizzie is about seven years old, and was born in the
State of Missouri, at a military post called Jefferson barracks.

"In the year 1838, said Dr. Emerson removed the plaintiff and said
Harriet, and their said daughter Eliza, from said Fort Snelling to the
State of Missouri, where they have ever since resided.

"Before the commencement of this suit, said Dr. Emerson sold and
conveyed the plaintiff, said Harriet, Eliza, and Lizzie, to the
defendant, as slaves, and the defendant has ever since claimed to hold
them and each of them as slaves.

"At the times mentioned in the plaintiff's declaration, the defendant,
claiming to be owner as aforesaid, laid his hands upon said plaintiff,
Harriet, Eliza, and Lizzie, and imprisoned them, doing in this
respect, however, no more than what he might lawfully do if they were
of right his slaves at such times.

"Further proof may be given on the trial for either party.

"R.M. FIELD, _for Plaintiff_.
"H.A. GARLAND, _for Defendant_.

"It is agreed that Dred Scott brought suit for his freedom in the
Circuit Court of St. Louis county; that there was a verdict and
judgment in his favor; that on a writ of error to the Supreme Court,
the judgment below was reversed, and the cause remanded to the
Circuit Court, where it has been continued to await the decision of
this case.

"FIELD, _for Plaintiff_.
"GARLAND, _for Defendant_."

Upon the aforegoing agreed facts, the plaintiff prayed the court to
instruct the jury that they ought to find for the plaintiff, and upon
the refusal of the instruction thus prayed for, the plaintiff excepted
to the court's opinion. The court then, upon the prayer of the
defendant, instructed the jury, that upon the facts of this case
agreed as above, the law was with the defendant. To this opinion,
also, the plaintiff's counsel excepted, as he did to the opinion of
the court denying to the plaintiff a new trial after the verdict of
the jury in favor of the defendant.

The question first in order presented by the record in this cause, is
that which arises upon the plea in abatement, and the demurrer to that
plea; and upon this question it is my opinion that the demurrer should
have been overruled, and the plea sustained.

On behalf of the plaintiff it has been urged, that by the pleas
interposed in bar of a recovery in the court below, (which pleas both
in fact and in law are essentially the same with the objections
averred in abatement,) the defence in abatement has been displaced or
waived; that it could therefore no longer be relied on in the Circuit
Court, and cannot claim the consideration of this court in reviewing
this cause. This position is regarded as wholly untenable. On the
contrary, it would seem to follow conclusively from the peculiar
character of the courts of the United States, as organized under the
Constitution and the statutes, and as defined by numerous and
unvarying adjudications from this bench, that there is not one of
those courts whose jurisdiction and powers can be deduced from mere
custom or tradition; not one, whose jurisdiction and powers must not
be traced palpably to, and invested exclusively by, the Constitution
and statutes of the United States; not one that is not bound,
therefore, at all times, and at all stages of its proceedings, to look
to and to regard the special and declared extent and bounds of its
commission and authority. There is no such tribunal of the United
States as a court of _general jurisdiction_, in the sense in which
that phrase is applied to the superior courts under the common law;
and even with respect to the courts existing under that system, it is
a well-settled principle, that _consent_ can never give jurisdiction.

The principles above stated, and the consequences regularly deducible
from them, have, as already remarked, been repeatedly and unvaryingly
propounded from this bench. Beginning with the earliest decisions of
this court, we have the cases of Bingham _v._ Cabot et al., (3 Dallas,
382;) Turner _v._ Eurille, (4 Dallas, 7;) Abercrombie _v._ Dupuis et
al., (1 Cranch, 343;) Wood _v._ Wagnon, (2 Cranch, 9;) The United
States _v._ The brig Union et al., (4 Cranch, 216;) Sullivan _v._ The
Fulton Steamboat Company, (6 Wheaton, 450;) Mollan et al. _v._
Torrence, (9 Wheaton, 537;) Brown _v._ Keene, (8 Peters, 112,) and
Jackson _v._ Ashton, (8 Peters, 148;) ruling, in uniform and unbroken
current, the doctrine that it is essential to the jurisdiction of the
courts of the United States, that the facts upon which it is founded
should appear upon the record. Nay, to such an extent and so
inflexibly has this requisite to the jurisdiction been enforced, that
in the case of Capron _v._ Van Noorden, (2 Cranch, 126,) it is
declared, that the plaintiff in this court may assign for error his
own omission in the pleadings in the court below, where they go to the
jurisdiction. This doctrine has been, if possible, more strikingly
illustrated in a later decision, the case of The State of Rhode Island
_v._ The State of Massachusetts, in the 12th of Peters.

In this case, on page 718 of the volume, this court, with reference to
a motion to dismiss the cause _for want of jurisdiction_, have said:
"_However late this objection has been made, or may be made, in any
cause in an inferior or appellate court of the United States_, it must
be considered and decided before any court can move one farther step
in the cause, as any movement is necessarily to exercise the
jurisdiction. Jurisdiction is the power to hear and determine the
subject-matter in controversy between the parties to a suit; to
adjudicate or exercise any judicial power over them. The question is,
whether on the case before the court their action is judicial or
extra-judicial; with or without the authority of law to render a
judgment or decree upon the rights of the litigant parties. A motion
to dismiss a cause pending in the courts of the United States, is not
analogous to a plea to the jurisdiction of a court of common law or
equity in England; there, the superior courts have a general
jurisdiction over all persons within the realm, and all causes of
action between them. It depends on the subject-matter, whether the
jurisdiction shall be exercised by a court of law or equity; but that
court to which it appropriately belongs can act judicially upon the
party and the subject of the suit, unless it shall be made apparent to
the court that the judicial determination of the case has been
withdrawn from the court of general jurisdiction to an inferior and
limited one. It is a necessary presumption that the court of general
jurisdiction can act upon the given case, when nothing to the
contrary appears; hence has arisen the rule that the party claiming an
exemption from its process must set out the reason by a special plea
in abatement, and show that some inferior court of law or equity has
the exclusive cognizance of the case, otherwise the superior court
must proceed in virtue of its general jurisdiction. A motion to
dismiss, therefore, cannot be entertained, as it does not disclose a
case of exception; and if a plea in abatement is put in, it must not
only make out the exception, but point to the particular court to
which the case belongs. There are other classes of cases where the
objection to the jurisdiction is of a different nature, as on a bill
in chancery, that the subject-matter is cognizable only by the King in
Council, or that the parties defendant cannot be brought before any
municipal court on account of their sovereign character or the nature
of the controversy; or to the very common cases which present the
question, whether the cause belong to a court of law or equity. To
such cases, a plea in abatement would not be applicable, because the
plaintiff could not sue in an inferior court. The objection goes to a
denial of any jurisdiction of a municipal court in the one class of
cases, and to the jurisdiction of any court of equity or of law in the
other, on which last the court decides according to its discretion.

"An objection to jurisdiction on the ground of exemption from the
process of the court in which the suit is brought, or the manner in
which a defendant is brought into it, is waived by appearance and
pleading to issue; but when the objection goes to the power of the
court over the parties or the subject-matter, the defendant need not,
for he cannot, give the plaintiff a better writ. Where an inferior
court can have no jurisdiction of a case of law or equity, the ground
of objection is not taken by plea in abatement, as an exception of the
given case from the otherwise general jurisdiction of the court;
appearance does not cure the defect of judicial power, and it may be
relied on by plea, answer, demurrer, _or at the trial or hearing_. As
a denial of jurisdiction over the subject-matter of a suit between
parties within the realm, over which and whom the court has power to
act, cannot be successful in an English court of general jurisdiction,
a motion like the present could not be sustained consistently with the
principles of its constitution. _But as this court is one of limited
and special original jurisdiction_, its action must be confined to the
particular cases, controversies, and parties, over which the
Constitution and laws have authorized it to act; any proceeding
without the limits prescribed is _coram non judice_, and its action a
nullity. And whether the want or excess of power is objected by a
party, or is apparent to the court, it must surcease its action or
proceed extra-judicially."

In the constructing of pleadings either in abatement or in bar, every
fact or position constituting a portion of the public law, or of known
or general history, is necessarily implied. Such fact or position need
not be specially averred and set forth; it is what the world at large
and every individual are presumed to know--nay, are bound to know and
to be governed by.

If, on the other hand, there exist facts or circumstances by which a
particular case would be withdrawn or exempted from the influence of
public law or necessary historical knowledge, such facts and
circumstances form an exception to the general principle, and these
must be specially set forth and _established_ by those who would avail
themselves of such exception.

Now, the following are truths which a knowledge of the history of the
world, and particularly of that of our own country, compels us to
know--that the African negro race never have been acknowledged as
belonging to the family of nations; that as amongst them there never
has been known or recognised by the inhabitants of other countries
anything partaking of the character of nationality, or civil or
political polity; that this race has been by all the nations of Europe
regarded as subjects of capture or purchase; as subjects of commerce
or traffic; and that the introduction of that race into every section
of this country was not as members of civil or political society, but
as slaves, as _property_ in the strictest sense of the term.

In the plea in abatement, the character or capacity of citizen on the
part of the plaintiff is denied; and the causes which show the absence
of that character or capacity are set forth by averment. The verity of
those causes, according to the settled rules of pleading, being
admitted by the demurrer, it only remained for the Circuit Court to
decide upon their legal sufficiency to abate the plaintiff's action.
And it now becomes the province of this court to determine whether the
plaintiff below, (and in error here,) admitted to be a _negro_ of
African descent, whose ancestors were of pure African blood, and were
brought into this country and sold as negro slaves--such being his
_status_, and such the circumstances surrounding his position--whether
he can, by correct legal induction from that _status_ and those
circumstances, be clothed with the character and capacities of a
citizen of the State of Missouri?

It may be assumed as a postulate, that to a slave, as such, there
appertains and can appertain no relation, civil or political, with the
State or the Government. He is himself strictly _property_, to be used
in subserviency to the interests, the convenience, or the will, of
his owner; and to suppose, with respect to the former, the existence
of any privilege or discretion, or of any obligation to others
incompatible with the magisterial rights just defined, would be by
implication, if not directly, to deny the relation of master and
slave, since none can possess and enjoy, as his own, that which
another has a paramount right and power to withhold. Hence it follows,
necessarily, that a slave, the _peculium_ or property of a master, and
possessing within himself no civil nor political rights or capacities,
cannot be a CITIZEN. For who, it may be asked, is a citizen? What do
the character and _status_ of citizen import? Without fear of
contradiction, it does not import the condition of being private
property, the subject of individual power and ownership. Upon a
principle of etymology alone, the term _citizen_, as derived from
_civitas_, conveys the ideas of connection or identification with the
State or Government, and a participation of its functions. But beyond
this, there is not, it is believed, to be found, in the theories of
writers on Government, or in any actual experiment heretofore tried,
an exposition of the term citizen, which has not been understood as
conferring the actual possession and enjoyment, or the perfect right
of acquisition and enjoyment, of an entire equality of privileges,
civil and political.

Thus Vattel, in the preliminary chapter to his Treatise on the Law of
Nations, says: "Nations or States are bodies politic; societies of men
united together for the purpose of promoting their mutual safety and
advantage, by the joint efforts of their mutual strength. Such a
society has her affairs and her interests; she deliberates and takes
resolutions _in common_; thus becoming a moral person, who possesses
an understanding and a will peculiar to herself." Again, in the first
chapter of the first book of the Treatise just quoted, the same
writer, after repeating his definition of a State, proceeds to remark,
that, "from the very design that induces a number of men to form a
society, which has its common interests and which is to act in
concert, it is necessary that there should be established a public
authority, to order and direct what is to be done by each, in relation
to the end of the association. This political authority is the
_sovereignty_." Again this writer remarks: "The authority of _all_
over each member essentially belongs to the body politic or the
State."

By this same writer it is also said: "The citizens are the members of
the civil society; bound to this society by certain duties, and
subject to its authority; they _equally_ participate in its
advantages. The natives, or natural-born citizens, are those born in
the country, of parents who are citizens. As society cannot
perpetuate itself otherwise than by the children of the citizens,
those children naturally follow the condition of their parents, and
succeed to all their rights." Again: "I say, to be _of the country_,
it is necessary to be born of a person who is a _citizen_; for if he
be born there of a foreigner, it will be only the place of his
_birth_, and not his _country_. The inhabitants, as distinguished from
citizens, are foreigners who are permitted to settle and stay in the
country." (Vattel, Book 1, cap. 19, p. 101.)

From the views here expressed, and they seem to be unexceptionable, it
must follow, that with the _slave_, with one devoid of rights or
capacities, _civil or political_, there could be no pact; that one
thus situated could be no party to, or actor in, the association of
those possessing free will, power, discretion. He could form no part
of the design, no constituent ingredient or portion of a society based
upon _common_, that is, upon _equal_ interests and powers. He could
not at the same time be the sovereign and the slave.

But it has been insisted, in argument, that the emancipation of a
slave, effected either by the direct act and assent of the master, or
by causes operating in contravention of his will, produces a change in
the _status_ or capacities of the slave, such as will transform him
from a mere subject of property, into a being possessing a social,
civil, and political equality with a citizen. In other words, will
make him a citizen of the State within which he was, previously to his
emancipation, a slave.

It is difficult to conceive by what magic the mere _surcease_ or
renunciation of an interest in a subject of _property_, by an
individual possessing that interest, can alter the essential character
of that property with respect to persons or communities unconnected
with such renunciation. Can it be pretended that an individual in any
State, by his single act, though voluntarily or designedly performed,
yet without the co-operation or warrant of the Government, perhaps in
opposition to its policy or its guaranties, can create a citizen of
that State? Much more emphatically may it be asked, how such a result
could be accomplished by means wholly extraneous, and entirely foreign
to the Government of the State? The argument thus urged must lead to
these extraordinary conclusions. It is regarded at once as wholly
untenable, and as unsustained by the direct authority or by the
analogies of history.

The institution of slavery, as it exists and has existed from the
period of its introduction into the United States, though more humane
and mitigated in character than was the same institution, either under
the republic or the empire of Rome, bears, both in its tenure and in
the simplicity incident to the mode of its exercise, a closer
resemblance to Roman slavery than it does to the condition of
_villanage_, as it formerly existed in England. Connected with the
latter, there were peculiarities, from custom or positive regulation,
which varied it materially from the slavery of the Romans, or from
slavery at any period within the United States.

But with regard to slavery amongst the Romans, it is by no means true
that emancipation, either during the republic or the empire,
conferred, by the act itself, or implied, the _status_ or the rights
of citizenship.

The proud title of Roman citizen, with the immunities and rights
incident thereto, and as contradistinguished alike from the condition
of conquered subjects or of the lower grades of native domestic
residents, was maintained throughout the duration of the republic, and
until a late period of the eastern empire, and at last was in _effect_
destroyed less by an elevation of the inferior classes than by the
degradation of the free, and the previous possessors of rights and
immunities civil and political, to the indiscriminate abasement
incident to absolute and simple despotism.

By the learned and elegant historian of the Decline and Fall of the
Roman Empire, we are told that "In the _decline_ of the Roman empire,
the proud distinctions of the republic were gradually abolished; and
the reason or instinct of Justinian completed the simple form of an
absolute monarchy. The emperor could not eradicate the popular
reverence which always waits on the possession of hereditary wealth or
the memory of famous ancestors. He delighted to honor with titles and
emoluments his generals, magistrates, and senators, and his precarious
indulgence communicated some rays of their glory to their wives and
children. But in the eye of the law all Roman citizens were equal, and
all subjects of the empire were citizens of Rome. That inestimable
character was _degraded_ to an obsolete and empty name. The voice of a
Roman could no longer enact his laws, or create the annual ministers
of his powers; his constitutional rights might have checked the
arbitrary will of a master; and the bold adventurer from Germany or
Arabia was admitted with equal favor to the civil and military command
which the _citizen_ alone had been once entitled to assume over the
conquests of his fathers. The first Cæsars had scrupulously guarded
the distinction of _ingenuous_ and _servile_ birth, which was decided
by the condition of the mother. The slaves who were liberated by a
generous master immediately entered into the middle class of
_libertini_ or freedmen; but they could never be enfranchised from the
duties of obedience and gratitude; whatever were the fruits of their
industry, their patron and his family inherited the third part, or
even the whole of their fortune, if they died without children and
without a testament. Justinian respected the rights of patrons, but
his indulgence removed the badge of disgrace from the two inferior
orders of freedmen; whoever ceased to be a slave, obtained without
reserve or delay the station of a citizen; and at length the dignity
of an ingenuous birth _was created_ or _supposed_ by the omnipotence
of the emperor."[1]

[Footnote 1: Vide Gibbons's Decline and Fall of the Roman Empire.
London edition of 1825, vol. 3d, chap. 44, p. 183.]

The above account of slavery and its modifications will be found in
strictest conformity with the Institutes of Justinian. Thus, book 1st,
title 3d, it is said: "The first general division of persons in
respect to their rights is into freemen and slaves." The same title,
sec. 4th: "Slaves are born such, or become so. They are born such of
bondwomen; they become so either by _the law of nations_, as by
capture, or by the civil law." Section 5th: "In the condition of
slaves there is no diversity; but among free persons there are many.
Thus some are _ingenui_ or freemen, others _libertini_ or freedmen."

Tit. 4th. DE INGENUIS.--"A freeman is one who is born free by being
born in matrimony, of parents who both are free, or both freed; or of
parents one free and the other freed. But one born of a free mother,
although the father be a slave or unknown, is free."

Tit. 5th. DE LIBERTINIS.--"Freedmen are those who have been manumitted
from just servitude."

Section third of the same title states that "freedmen were formerly
distinguished by a threefold division." But the emperor proceeds to
say: "Our _piety_ leading us to reduce all things into a better state,
we have amended our laws, and re-established the ancient usage; for
anciently liberty was simple and undivided--that is, was conferred
upon the slave as his manumittor possessed it, admitting this single
difference, that the person manumitted became only a _freed man_,
although his manumittor was a _free_ man." And he further declares:
"We have made all freed men in general become citizens of Rome,
regarding neither the age of the manumitted, nor the manumittor, nor
the ancient forms of manumission. We have also introduced many new
methods by which _slaves_ may become Roman citizens."

By the references above given it is shown, from the nature and objects
of civil and political associations, and upon the direct authority of
history, that citizenship was not conferred by the simple fact of
emancipation, but that such a result was deduced therefrom in
violation of the fundamental principles of free political association;
by the exertion of despotic will to establish, under a false and
misapplied denomination, one equal and universal slavery; and to
effect this result required the exertions of absolute power--of a
power both in theory and practice, being in its most plenary
acceptation the SOVEREIGNTY, THE STATE ITSELF--it could not be
produced by a less or inferior authority, much less by the will or the
act of one who, with reference to civil and political rights, was
himself a _slave_. The master might abdicate or abandon his interest
or ownership in his property, but his act would be a mere abandonment.
It seems to involve an absurdity to impute to it the investiture of
rights which the sovereignty alone had power to impart. There is not
perhaps a community in which slavery is recognised, in which the power
of emancipation and the modes of its exercise are not regulated by
law--that is, by the sovereign authority; and none can fail to
comprehend the necessity for such regulation, for the preservation of
order, and even of political and social existence.

By the argument for the plaintiff in error, a power equally despotic
is vested in every member of the association, and the most obscure or
unworthy individual it comprises may arbitrarily invade and derange
its most deliberate and solemn ordinances. At assumptions anomalous as
these, so fraught with mischief and ruin, the mind at once is
revolted, and goes directly to the conclusions, that to change or to
abolish a fundamental principle of the society, must be the act of the
society itself--of the _sovereignty_; and that none other can admit to
a participation of that high attribute. It may further expose the
character of the argument urged for the plaintiff, to point out some
of the revolting consequences which it would authorize. If that
argument possesses any integrity, it asserts the power in any citizen,
or _quasi_ citizen, or a resident foreigner of any one of the States,
from a motive either of corruption or caprice, not only to infract the
inherent and necessary authority of such State, but also materially to
interfere with the organization of the Federal Government, and with
the authority of the separate and independent States. He may
emancipate his negro slave, by which process he first transforms that
slave into a citizen of his own State; he may next, under color of
article fourth, section second, of the Constitution of the United
States, obtrude him, and on terms of civil and political equality,
upon any and every State in this Union, in defiance of all regulations
of necessity or policy, ordained by those States for their internal
happiness or safety. Nay, more: this manumitted slave may, by a
proceeding springing from the will or act of his master alone, be
mixed up with the institutions of the Federal Government, to which he
is not a party, and in opposition to the laws of that Government
which, in authorizing the extension by naturalization of the rights
and immunities of citizens of the United States to those not
originally parties to the Federal compact, have restricted that boon
to _free white aliens alone_. If the rights and immunities connected
with or practiced under the institutions of the United States can by
any indirection be claimed or deduced from sources or modes other than
the Constitution and laws of the United States, it follows that the
power of naturalization vested in Congress is not exclusive--that it
has _in effect_ no existence, but is repealed or abrogated.

But it has been strangely contended that the jurisdiction of the
Circuit Court might be maintained upon the ground that the plaintiff
was a _resident_ of Missouri, and that, for the purpose of vesting the
court with jurisdiction over the parties, _residence_ within the State
was sufficient.

The first, and to my mind a conclusive reply to this singular argument
is presented in the fact, that the language of the Constitution
restricts the jurisdiction of the courts to cases in which the parties
shall be _citizens_, and is entirely silent with respect to residence.
A second answer to this strange and latitudinous notion is, that it so
far stultifies the sages by whom the Constitution was framed, as to
impute to them ignorance of the material distinction existing between
_citizenship_ and mere _residence_ or _domicil_, and of the well-known
facts, that a person confessedly an _alien_ may be permitted to reside
in a country in which he can possess no civil or political rights, or
of which he is neither a citizen nor subject; and that for certain
purposes a man may have a _domicil_ in different countries, in no one
of which he is an actual personal resident.

The correct conclusions upon the question here considered would seem
to be these:

That in the establishment of the several communities now the States of
this Union, and in the formation of the Federal Government, the
African was not deemed politically a person. He was regarded and owned
in every State in the Union as _property_ merely, and as such was not
and could not be a party or an actor, much less a _peer_ in any
compact or form of government established by the States or the United
States. That if, since the adoption of the State Governments, he has
been or could have been elevated to the possession of political rights
or powers, this result could have been effected by no authority less
potent than that of the sovereignty--the State--exerted to that end,
either in the form of legislation, or in some other mode of operation.
It could certainly never have been accomplished by the will of an
individual operating independently of the sovereign power, and even
contravening and controlling that power. That so far as rights and
immunities appertaining to citizens have been defined and secured by
the Constitution and laws of the United States, the African race is
not and never was recognised either by the language or purposes of the
former; and it has been expressly excluded by every act of Congress
providing for the creation of citizens by _naturalization_, these
laws, as has already been remarked, being restricted to _free white
aliens_ exclusively.

But it is evident that, after the formation of the Federal Government
by the adoption of the Constitution, the highest exertion of State
power would be incompetent to bestow a character or status created by
the Constitution, or conferred in virtue of its authority only. Upon
those, therefore, who were not originally parties to the Federal
compact, or who are not admitted and adopted as parties thereto, in
the mode prescribed by its paramount authority, no State could have
power to bestow the character or the rights and privileges exclusively
reserved by the States for the action of the Federal Government by
that compact.

The States, in the exercise of their political power, might, with
reference to their peculiar Government and jurisdiction, guaranty the
rights of person and property, and the enjoyment of civil and
political privileges, to those whom they should be disposed to make
the objects of their bounty; but they could not reclaim or exert the
powers which they had vested exclusively in the Government of the
United States. They could not add to or change in any respect the
class of persons to whom alone the character of citizen of the United
States appertained at the time of the adoption of the Federal
Constitution. They could not create citizens of the United States by
any direct or indirect proceeding.

According to the view taken of the law, as applicable to the demurrer
to the plea in abatement in this cause, the questions subsequently
raised upon the several pleas in bar might be passed by, as requiring
neither a particular examination, nor an adjudication directly upon
them. But as these questions are intrinsically of primary interest and
magnitude, and have been elaborately discussed in argument, and as
with respect to them the opinions of a majority of the court,
including my own, are perfectly coincident, to me it seems proper that
they should here be fully considered, and, so far as it is practicable
for this court to accomplish such an end, finally put to rest.

The questions then to be considered upon the several pleas in bar, and
upon the agreed statement of facts between the counsel, are: 1st.
Whether the admitted master and owner of the plaintiff, holding him as
his slave in the State of Missouri, and in conformity with his rights
guarantied to him by the laws of Missouri then and still in force, by
carrying with him for his own benefit and accommodation, and as his
own slave, the person of the plaintiff into the State of Illinois,
within which State slavery had been prohibited by the Constitution
thereof, and by retaining the plaintiff during the commorancy of the
master within the State of Illinois, had, upon his return with his
slave into the State of Missouri, forfeited his rights as master, by
reason of any supposed operation of the prohibitory provision in the
Constitution of Illinois, beyond the proper territorial jurisdiction
of the latter State? 2d. Whether a similar removal of the plaintiff by
his master from the State of Missouri, and his retention in service at
a point included within no State, but situated north of thirty-six
degrees thirty minutes of north latitude, worked a forfeiture of the
right of property of the master, and the manumission of the plaintiff?

In considering the first of these questions, the acts or declarations
of the master, as expressive of his purpose to emancipate, may be
thrown out of view, since none will deny the right of the owner to
relinquish his interest in any subject of property, at any time or in
any place. The inquiry here bears no relation to acts or declarations
of the owner as expressive of his intent or purpose to make such a
relinquishment; it is simply a question whether, irrespective of such
purpose, and in opposition thereto, that relinquishment can be
enforced against the owner of property within his own country, in
defiance of every guaranty promised by its laws; and this through the
instrumentality of a claim to power entirely foreign and extraneous
with reference to himself, to the origin and foundation of his title,
and to the independent authority of his country. A conclusive negative
answer to such an inquiry is at once supplied, by announcing a few
familiar and settled principles and doctrines of public law.

Vattel, in his chapter on the general principles of the laws of
nations, section 15th, tells us, that "nations being free and
independent of each other in the same manner that men are naturally
free and independent, the second general law of their society is, that
each nation should be left in the peaceable enjoyment of that liberty
which she inherits from nature."

"The natural society of nations," says this writer, "cannot subsist
unless the natural rights of each be respected." In section 16th he
says, "as a consequence of that liberty and independence, it
exclusively belongs to each nation to form her own judgment of what
her conscience prescribes for her--of what it is proper or improper
for her to do; and of course it rests solely with her to examine and
determine whether she can perform any office for another nation
without neglecting the duty she owes to herself. In all cases,
therefore, in which a nation has the right of judging what her duty
requires, no other nation can compel her to act in such or such a
particular manner, for any attempt at such compulsion would be an
infringement on the liberty of nations." Again, in section 18th, of
the same chapter, "nations composed of men, and considered as so many
free persons living together in a state of nature, are naturally
equal, and inherit from nature the same obligations and rights. Power
or weakness does not produce any difference. A small republic is no
less a sovereign state than the most powerful kingdom."

So, in section 20: "A nation, then, is mistress of her own actions, so
long as they do not affect the proper and _perfect rights_ of any
other nation--so long as she is only _internally_ bound, and does not
lie under any _external_ and _perfect_ obligation. If she makes an ill
use of her liberty, she is guilty of a breach of duty; but other
nations are bound to acquiesce in her conduct, since they have no
right to dictate to her. Since nations are _free_, _independent_, and
_equal_, and since each possesses the right of judging, according to
the dictates of her conscience, what conduct she is to pursue, in
order to fulfil her duties, the effect of the whole is to produce, at
least externally, in the eyes of mankind, a perfect equality of rights
between nations, in the administration of their affairs, and in the
pursuit of their pretensions, without regard to the intrinsic justice
of their conduct, of which others have no right to form a definitive
judgment."

Chancellor Kent, in the 1st volume of his Commentaries, lecture 2d,
after collating the opinions of Grotius, Heineccius, Vattel, and
Rutherford, enunciates the following positions as sanctioned by these
and other learned publicists, viz: that "nations are equal in respect
to each other, and entitled to claim equal consideration for their
rights, whatever may be their relative dimensions or strength, or
however greatly they may differ in government, religion, or manners.
This perfect equality and entire independence of all distinct States
is a fundamental principle of public law. It is a necessary
consequence of this equality, that each nation has a right to govern
itself as it may think proper, and no one nation is entitled to
dictate a form of government or religion, or a course of internal
policy, to another." This writer gives some instances of the violation
of this great national immunity, and amongst them the constant
interference by the ancient Romans, under the pretext of settling
disputes between their neighbors, but with the real purpose of
reducing those neighbors to bondage; the interference of Russia,
Prussia, and Austria, for the dismemberment of Poland; the more recent
invasion of Naples by Austria in 1821, and of Spain by the French
Government in 1823, under the excuse of suppressing a dangerous spirit
of internal revolution and reform.

With reference to this right of self-government in independent
sovereign States, an opinion has been expressed, which, whilst it
concedes this right as inseparable from and as a necessary attribute
of sovereignty and independence, asserts nevertheless some implied and
paramount authority of a supposed international law, to which this
right of self-government must be regarded and exerted as subordinate;
and from which independent and sovereign States can be exempted only
by a protest, or by some public and formal rejection of that
authority. With all respect for those by whom this opinion has been
professed, I am constrained to regard it as utterly untenable, as
palpably inconsistent, and as presenting in argument a complete _felo
de se_.

Sovereignty, independence, and a perfect right of self-government, can
signify nothing less than a superiority to and an exemption from all
claims by any extraneous power, however expressly they may be
asserted, and render all attempts to enforce such claims merely
attempts at usurpation. Again, could such claims from extraneous
sources be regarded as legitimate, the effort to resist or evade them,
by protest or denial, would be as irregular and unmeaning as it would
be futile. It could in no wise affect the question of superior right.
For the position here combatted, no respectable authority has been,
and none it is thought can be adduced. It is certainly irreconcilable
with the doctrines already cited from the writers upon public law.

Neither the case of Lewis Somersett, (Howell's State Trials, vol. 20,)
so often vaunted as the proud evidence of devotion to freedom under a
Government which has done as much perhaps to extend the reign of
slavery as all the world besides; nor does any decision founded upon
the authority of Somersett's case, when correctly expounded, assail or
impair the principle of national equality enunciated by each and all
of the publicists already referred to. In the case of Somersett,
although the applicant for the _habeas corpus_ and the individual
claiming property in that applicant were both subjects and residents
within the British empire, yet the decision cannot be correctly
understood as ruling absolutely and under all circumstances against
the right of property in the claimant. That decision goes no farther
than to determine, that _within the realm of England_ there was no
authority to justify the detention of an individual in private
bondage. If the decision in Somersett's case had gone beyond this
point, it would have presented the anomaly of a repeal by laws enacted
for and limited in their operation to the realm alone, of other laws
and institutions established for places and subjects without the
limits of the realm of England; laws and institutions at that very
time, and long subsequently, sanctioned and maintained under the
authority of the British Government, and which the full and combined
action of the King and Parliament was required to abrogate.

But could the decision in Somersett's case be correctly interpreted as
ruling the doctrine which it has been attempted to deduce from it,
still that doctrine must be considered as having been overruled by the
lucid and able opinion of Lord Stowell in the more recent case of the
slave Grace, reported in the second volume of Haggard, p. 94; in which
opinion, whilst it is conceded by the learned judge that there existed
no power to coerce the slave whilst in England, that yet, upon her
return to the island of Antigua, her _status_ as a slave was revived,
or, rather, that the title of the owner to the slave as property had
never been extinguished, but had always existed in that island. If the
principle of this decision be applicable as between different portions
of one and the same empire, with how much more force does it apply as
between nations or Governments entirely separate, and absolutely
independent of each other? For in this precise attitude the States of
this Union stand with reference to this subject, and with reference to
the tenure of every description of property vested under their laws
and held within their territorial jurisdiction.

A strong illustration of the principle ruled by Lord Stowell, and of
the effect of that principle even in a case of express _contract_, is
seen in the case of Lewis _v._ Fullerton, decided by the Supreme Court
of Virginia, and reported in the first volume of Randolph, p. 15. The
case was this: A female slave, the property of a citizen of Virginia,
whilst with her master in the State of Ohio, was taken from his
possession under a writ of _habeas corpus_, and set at liberty. Soon,
or immediately after, by agreement between this slave and her master,
a deed was executed in Ohio by the latter, containing a stipulation
that this slave should return to Virginia, and, after a service of two
years in that State, should there be free. The law of Virginia
regulating emancipation required that deeds of emancipation should,
within a given time from their date, be recorded in the court of the
county in which the grantor resided, and declared that deeds with
regard to which this requisite was not complied with should be void.
Lewis, an infant son of this female, under the rules prescribed in
such cases, brought an action, _in forma pauperis_, in one of the
courts of Virginia, for the recovery of his freedom, claimed in virtue
of the transactions above mentioned. Upon an appeal to the Supreme
Court from a judgment against the plaintiff, Roane, Justice, in
delivering the opinion of the court, after disposing of other
questions discussed in that case, remarks:

"As to the deed of emancipation contained in the record, that deed,
taken in connection with the evidence offered in support of it, shows
that it had a reference to the State of Virginia; and the testimony
shows that it formed a part of this contract, whereby the slave Milly
was to be brought back (as she was brought back) into the State of
Virginia. Her object was therefore to secure her freedom by the deed
within the State of Virginia, after the time should have expired for
which she had indented herself, and when she should be found abiding
within the State of Virginia.

"If, then, this contract had an eye to the State of Virginia for its
operation and effect, the _lex loci_ ceases to operate. In that case
it must, to have its effect, conform to the laws of Virginia. It is
insufficient under those laws to effectuate an emancipation, for want
of a due recording in the county court, as was decided in the case of
Givens _v._ Mann, in this court. It is also ineffectual within the
Commonwealth of Virginia for another reason. The _lex loci_ is also to
be taken subject to the exception, that it is not to be enforced in
another country, when it violates some moral duty or the policy of
that country, or is not consistent with a positive right secured to a
third person or party by the laws of that country in which it is
sought to be enforced. In such a case we are told, '_magis jus
nostrum, quam jus alienum servemus_.'" (Huberus, tom. 2, lib. 1, tit.
3; 2 Fontblanque, p. 444.) "That third party in this instance is the
Commonwealth of Virginia, and her policy and interests are also to be
attended to. These turn the scale against the _lex loci_ in the
present instance."

The second or last-mentioned position assumed for the plaintiff under
the pleas in bar, as it rests mainly if not solely upon the provision
of the act of Congress of March 6, 1820, prohibiting slavery in Upper
Louisiana north of thirty-six degrees thirty minutes north latitude,
popularly called the _Missouri Compromise_, that assumption renews the
question, formerly so zealously debated, as to the validity of the
provision in the act of Congress, and upon the constitutional
competency of Congress to establish it.

Before proceeding, however, to examine the validity of the prohibitory
provision of the law, it may, so far as the rights involved in this
cause are concerned, be remarked, that conceding to that provision the
validity of a legitimate exercise of power, still this concession
could by no rational interpretation imply the slightest authority for
its operation beyond the territorial limits comprised within its
terms; much less could there be inferred from it a power to destroy or
in any degree to control rights, either of person or property,
entirely within the bounds of a distinct and independent
sovereignty--rights invested and fortified by the guaranty of that
sovereignty. These surely would remain in all their integrity,
whatever effect might be ascribed to the prohibition within the limits
defined by its language.

But, beyond and in defiance of this conclusion, inevitable and
undeniable as it appears, upon every principle of justice or sound
induction, it has been attempted to convert this prohibitory provision
of the act of 1820 not only into a weapon with which to assail the
inherent--the _necessarily_ inherent--powers of independent sovereign
Governments, but into a mean of forfeiting that equality of rights and
immunities which are the birthright or the donative from the
Constitution of every citizen of the United States within the length
and breadth of the nation. In this attempt, there is asserted a power
in Congress, whether from incentives of interest, ignorance, faction,
partiality, or prejudice, to bestow upon a portion of the citizens of
this nation that which is the common property and privilege of
all--the power, in fine, of confiscation, in retribution for no
offence, or, if for an offence, for that of accidental locality only.

It may be that, with respect to future cases, like the one now before
the court, there is felt an assurance of the impotence of such a
pretension; still, the fullest conviction of that result can impart to
it no claim to forbearance, nor dispense with the duty of antipathy
and disgust at its sinister aspect, whenever it may be seen to scowl
upon the justice, the order, the tranquillity, and fraternal feeling,
which are the surest, nay, the only means, of promoting or preserving
the happiness and prosperity of the nation, and which were the great
and efficient incentives to the formation of this Government.

The power of Congress to impose the prohibition in the eighth section
of the act of 1820 has been advocated upon an attempted construction
of the second clause of the third section of the fourth article of
the Constitution, which declares that "Congress shall have power to
dispose of and to make all needful rules and regulations respecting
the _territory_ and _other property belonging_ to the United States."

In the discussions in both houses of Congress, at the time of adopting
this eighth section of the act of 1820, great weight was given to the
peculiar language of this clause, viz: _territory_ and _other property
belonging_ to the United States, as going to show that the power of
disposing of and regulating, thereby vested in Congress, was
restricted to a _proprietary interest in the territory or land_
comprised therein, and did not extend to the personal or political
rights of citizens or settlers, inasmuch as this phrase in the
Constitution, "_territory or other property_," identified _territory_
with _property_, and inasmuch as _citizens_ or _persons_ could not be
property, and especially were not property _belonging_ to the United
States. And upon every principle of reason or necessity, this power to
dispose of and to regulate the _territory_ of the nation could be
designed to extend no farther than to its preservation and
appropriation to the uses of those to whom it belonged, viz: the
nation. Scarcely anything more illogical or extravagant can be
imagined than the attempt to deduce from this provision in the
Constitution a power to destroy or in any wise to impair the civil and
political rights of the citizens of the United States, and much more
so the power to establish inequalities amongst those citizens by
creating privileges in one class of those citizens, and by the
disfranchisement of other portions or classes, by degrading them from
the position they previously occupied.

There can exist no rational or natural connection or affinity between
a pretension like this and the power vested by the Constitution in
Congress with regard to the Territories; on the contrary, there is an
absolute incongruity between them.

But whatever the power vested in Congress, and whatever the precise
subject to which that power extended, it is clear that the power
related to a subject appertaining to the _United States_, and one to
be disposed of and regulated for the benefit and under the authority
of the _United States_. Congress was made simply the agent or
_trustee_ for the United States, and could not, without a breach of
trust and a fraud, appropriate the subject of the trust to any other
beneficiary or _cestui que trust_ than the United States, or to the
people of the United States, upon equal grounds, legal or equitable.
Congress could not appropriate that subject to any one class or
portion of the people, to the exclusion of others, politically and
constitutionally equals; but every citizen would, if any _one_ could
claim it, have the like rights of purchase, settlement, occupation, or
any other right, in the national territory.

Nothing can be more conclusive to show the equality of this with every
other right in all the citizens of the United States, and the iniquity
and absurdity of the pretension to exclude or to disfranchise a
portion of them because they are the owners of slaves, than the fact
that the same instrument, which imparts to Congress its very existence
and its every function, guaranties to the slaveholder the title to his
property, and gives him the right to its reclamation throughout the
entire extent of the nation; and, farther, that the only private
property which the Constitution has _specifically recognised_, and has
imposed it as a direct obligation both on the States and the Federal
Government to protect and _enforce_, is the property of the master in
his slave; no other right of property is placed by the Constitution
upon the same high ground, nor shielded by a similar guaranty.

Can there be imputed to the sages and patriots by whom the
Constitution was framed, or can there be detected in the text of that
Constitution, or in any rational construction or implication deducible
therefrom, a contradiction so palpable as would exist between a pledge
to the slaveholder of an equality with his fellow-citizens, and of the
formal and solemn assurance for the security and enjoyment of his
property, and a warrant given, as it were _uno flatu_, to another, to
rob him of that property, or to subject him to proscription and
disfranchisement for possessing or for endeavoring to retain it? The
injustice and extravagance necessarily implied in a supposition like
this, cannot be rationally imputed to the patriotic or the honest, or
to those who were merely sane.

A conclusion in favor of the prohibitory power in Congress, as
asserted in the eighth section of the act of 1820, has been attempted,
as deducible from the precedent of the ordinance of the convention of
1787, concerning the cession by Virginia of the territory northwest of
the Ohio; the provision in which ordinance, relative to slavery, it
has been attempted to impose upon other and subsequently-acquired
territory.

The first circumstance which, in the consideration of this provision,
impresses itself upon my mind, is its utter futility and want of
authority. This court has, in repeated instances, ruled, that whatever
may have been the force accorded to this ordinance of 1787 at the
period of its enactment, its authority and effect ceased, and yielded
to the paramount authority of the Constitution, from the period of the
adoption of the latter. Such is the principle ruled in the cases of
Pollard's Lessee _v._ Hagan, (3 How., 212,) Parmoli [Transcriber's
Note: Permoli] _v._ The First Municipality of New Orleans, (3 How.,
589,) Strader _v._ Graham, (16 How., 82.) But apart from the superior
control of the Constitution, and anterior to the adoption of that
instrument, it is obvious that the inhibition in question never had
and never could have any legitimate and binding force. We may seek in
vain for any power in the convention, either to require or to accept a
condition or restriction upon the cession like that insisted on; a
condition inconsistent with, and destructive of, the object of the
grant. The cession was, as recommended by the old Congress in 1780,
made originally and completed _in terms_ to _the United States_, and
for the benefit of the United States, i.e., for _the people, all the
people_, of the United States. The condition subsequently sought to be
annexed in 1787, (declared, too, to be perpetual and immutable,) being
contradictory to the terms and destructive of the purposes of the
cession, and after the cession was consummated, and the powers of the
ceding party terminated, and the rights of the grantees, _the people
of the United States_, vested, must necessarily, so far, have been _ab
initio_ void. With respect to the power of the convention to impose
this inhibition, it seems to be pertinent in this place to recur to
the opinion of one cotemporary with the establishment of the
Government, and whose distinguished services in the formation and
adoption of our national charter, point him out as the _artifex
maximus_ of our Federal system. James Madison, in the year 1819,
speaking with reference to the prohibitory power claimed by Congress,
then threatening the very existence of the Union, remarks of the
language of the second clause of the third section of article fourth
of the Constitution, "that it cannot be well extended beyond a power
over the territory _as property_, and the power to make provisions
really needful or necessary for the government of settlers, until ripe
for admission into the Union."

Again he says, "with respect to what has taken place in the Northwest
territory, it may be observed that the ordinance giving it its
distinctive character on the subject of slaveholding proceeded from
the old Congress, acting with the best intentions, but under a charter
which contains no shadow of the authority exercised; and it remains to
be decided how far the States formed within that territory, and
admitted into the Union, are on a different footing from its other
members as to their legislative sovereignty. As to the power of
admitting new States into the Federal compact, the questions offering
themselves are, whether Congress can attach conditions, or the new
States concur in conditions, which after admission would _abridge_ or
_enlarge_ the constitutional rights of legislation common to other
States; whether Congress can, by a compact with a new State, take
power either to or from itself, or place the new member above or below
the equal rank and rights possessed by the others; whether all such
stipulations expressed or implied would not be nullities, and be so
pronounced when brought to a practical test. It falls within the scope
of your inquiry to state the fact, that there was a proposition in the
convention to discriminate between the old and the new States by an
article in the Constitution. The proposition, happily, was rejected.
The effect of such a discrimination is sufficiently evident."[2]

[Footnote 2: Letter from James Madison to Robert Walsh, November 27th,
1819, on the subject of the Missouri Compromise.]

In support of the ordinance of 1787, there may be adduced the
semblance at least of obligation deducible from _compact_, the _form_
of assent or agreement between the grantor and grantee; but this form
or similitude, as is justly remarked by Mr. Madison, is rendered null
by the absence of power or authority in the contracting parties, and
by the more intrinsic and essential defect of incompatibility with the
rights and avowed purposes of those parties, and with their relative
duties and obligations to others. If, then, with the attendant
_formalities_ of assent or compact, the restrictive power claimed was
void as to the immediate subject of the ordinance, how much more
unfounded must be the pretension to such a power as derived from that
source, (viz: the ordinance of 1787,) with respect to territory
acquired by purchase or conquest under the supreme authority of the
Constitution--territory not the subject of _mere donation_, but
obtained _in the name of all, by the combined efforts and resources of
all_, and with no condition annexed or pretended.

In conclusion, my opinion is, that the decision of the Circuit Court,
upon the law arising upon the several pleas in bar, is correct, but
that it is erroneous in having sustained the demurrer to the plea in
abatement of the jurisdiction; that for this error the decision of the
Circuit Court should be reversed, and the cause remanded to that
court, with instructions to abate the action, for the reason set forth
and pleaded in the plea in abatement.

In the aforegoing examination of this cause, the circumstance that the
questions involved therein had been previously adjudged between these
parties by the court of the State of Missouri, has not been adverted
to; for although it has been ruled by this court, that in instances of
concurrent jurisdiction, the court first obtaining possession or
cognizance of the controversy should retain and decide it, yet, as in
this case there had been no plea, either of a former judgment or of
_autre action pendent_, it was thought that the fact of a prior
decision, however conclusive it might have been if regularly pleaded,
could not be incidentally taken into view.

       *       *       *       *       *

Mr. Justice CAMPBELL.

I concur in the judgment pronounced by the Chief Justice, but the
importance of the cause, the expectation and interest it has awakened,
and the responsibility involved in its determination, induce me to
file a separate opinion.

The case shows that the plaintiff, in the year 1834, was a negro slave
in Missouri, the property of Dr. Emerson, a surgeon in the army of the
United States. In 1834, his master took him to the military station at
Rock Island, on the border of Illinois, and in 1836 to Fort Snelling,
in the present Minnesota, then Wisconsin, Territory. While at Fort
Snelling, the plaintiff married a slave who was there with her master,
and two children have been born of this connection; one during the
journey of the family in returning to Missouri, and the other after
their return to that State.

Since 1838, the plaintiff and the members of his family have been in
Missouri in the condition of slaves. The object of this suit is to
establish their freedom. The defendant, who claims the plaintiff and
his family, under the title of Dr. Emerson, denied the jurisdiction of
the Circuit Court, by the plea that the plaintiff was a negro of
African blood, the descendant of Africans who had been imported and
sold in this country as slaves, and thus he had no capacity as a
citizen of Missouri to maintain a suit in the Circuit Court. The court
sustained a demurrer to this plea, a trial was then had upon the
general issue, and special pleas to the effect that the plaintiff and
his family were slaves belonging to the defendant.

My opinion in this case is not affected by the plea to the
jurisdiction, and I shall not discuss the questions it suggests. The
claim of the plaintiff to freedom depends upon the effect to be given
to his absence from Missouri, in company with his master, in Illinois
and Minnesota, and this effect is to be ascertained by a reference to
the laws of Missouri. For the trespass complained of was committed
upon one claiming to be a freeman and a citizen, in that State, and
who had been living for years under the dominion of its laws. And the
rule is, that whatever is a justification where the thing is done,
must be a justification in the forum where the case is tried. (20 How.
St. Tri., 234; Cowp. S.C., 161.)

The Constitution of Missouri recognises slavery as a legal condition,
extends guaranties to the masters of slaves, and invites immigrants
to introduce them, as property, by a promise of protection. The laws
of the State charge the master with the custody of the slave, and
provide for the maintenance and security of their relation.

The Federal Constitution and the acts of Congress provide for the
return of escaping slaves within the limits of the Union. No removal
of the slave beyond the limits of the State, against the consent of
the master, nor residence there in another condition, would be
regarded as an effective manumission by the courts of Missouri, upon
his return to the State. "Sicut liberis captis status restituitur sic
servus domino." Nor can the master emancipate the slave within the
State, except through the agency of a public authority. The inquiry
arises, whether the manumission of the slave is effected by his
removal, with the consent of the master, to a community where the law
of slavery does not exist, in a case where neither the master nor
slave discloses a purpose to remain permanently, and where both
parties have continued to maintain their existing relations. What is
the law of Missouri in such a case? Similar inquiries have arisen in a
great number of suits, and the discussions in the State courts have
relieved the subject of much of its difficulty. (12 B.M. Ky. R., 545;
Foster _v._ Foster, 10 Gratt. Va. R., 485; 4 Har. and McH. Md. R.,
295; Scott _v._ Emerson, 15 Misso., 576; 4 Rich. S.C.R., 186; 17
Misso., 434; 15 Misso., 596; 5 B.M., 173; 8 B.M., 540, 633; 9 B.M.,
565; 5 Leigh, 614; 1 Raud., 15; 18 Pick., 193.)

The result of these discussions is, that in general, the _status_, or
civil and political capacity of a person, is determined, in the first
instance, by the law of the domicil where he is born; that the legal
effect on persons, arising from the operation of the law of that
domicil, is not indelible, but that a new capacity or _status_ may be
acquired by a change of domicil. That questions of _status_ are
closely connected with considerations arising out of the social and
political organization of the State where they originate, and each
sovereign power must determine them within its own territories.

A large class of cases has been decided upon the second of the
propositions above stated, in the Southern and Western courts--cases
in which the law of the actual domicil was adjudged to have altered
the native condition and _status_ of the slave, although he had never
actually possessed the _status_ of freedom in that domicil. (Rankin
_v._ Lydia, 2 A.K.M.; Herny [Transcriber's Note: Harry] _v._ Decker,
Walk., 36; 4 Mart., 385; 1 Misso., 472; Hunter _v._ Fulcher, 1 Leigh
[Transcriber's Note: full citation as given elsewhere is 1 Leigh,
172].)

I do not impugn the authority of these cases. No evidence is found in
the record to establish the existence of a domicil acquired by the
master and slave, either in Illinois or Minnesota. The master is
described as an officer of the army, who was transferred from one
station to another, along the Western frontier, in the line of his
duty, and who, after performing the usual tours of service, returned
to Missouri; these slaves returned to Missouri with him, and had been
there for near fifteen years, in that condition, when this suit was
instituted. But absence, in the performance of military duty, without
more, is a fact of no importance in determining a question of a change
of domicil. Questions of that kind depend upon acts and intentions,
and are ascertained from motives, pursuits, the condition of the
family, and fortune of the party, and no change will be inferred,
unless evidence shows that one domicil was abandoned, and there was an
intention to acquire another. (11 L. and Eq., 6; 6 Exch., 217; 6 M.
and W., 511; 2 Curt. Ecc. R., 368.)

The cases first cited deny the authority of a foreign law to dissolve
relations which have been legally contracted in the State where the
parties are, and have their actual domicil--relations which were never
questioned during their absence from that State--relations which are
consistent with the native capacity and condition of the respective
parties, and with the policy of the State where they reside; but which
relations were inconsistent with the policy or laws of the State or
Territory within which they had been for a time, and from which they
had returned, with these relations undisturbed. It is upon the
assumption, that the law of Illinois or Minnesota was indelibly
impressed upon the slave, and its consequences carried into Missouri,
that the claim of the plaintiff depends. The importance of the case
entitles the doctrine on which it rests to a careful examination.

It will be conceded, that in countries where no law or regulation
prevails, opposed to the existence and consequences of slavery,
persons who are born in that condition in a foreign State would not be
liberated by the accident of their introgression. The relation of
domestic slavery is recognised in the law of nations, and the
interference of the authorities of one State with the rights of a
master belonging to another, without a valid cause, is a violation of
that law. (Wheat. Law of Na., 724; 5 Stats. at Large, 601; Calh. Sp.,
378; Reports of the Com. U.S. and G.B., 187, 238, 241.)

The public law of Europe formerly permitted a master to reclaim his
bondsman, within a limited period, wherever he could find him, and one
of the capitularies of Charlemagne abolishes the rule of prescription.
He directs, "that wheresoever, within the bounds of Italy, either the
runaway slave of the king, or of the church, or of any other man,
shall be found by his master, he shall be restored without any bar or
prescription of years; yet upon the provision that the master be a
Frank or German, or of any other nation (foreign;) but if he be a
Lombard or a Roman, he shall acquire or receive his slaves by that law
which has been established from ancient times among them." Without
referring for precedents abroad, or to the colonial history, for
similar instances, the history of the Confederation and Union affords
evidence to attest the existence of this ancient law. In 1783,
Congress directed General Washington to continue his remonstrances to
the commander of the British forces respecting the permitting negroes
belonging to the citizens of these States to leave New York, and to
insist upon the discontinuance of that measure. In 1788, the resident
minister of the United States at Madrid was instructed to obtain from
the Spanish Crown orders to its Governors in Louisiana and Florida,
"to permit and facilitate the apprehension of fugitive slaves from the
States, promising that the States would observe the like conduct
respecting fugitives from Spanish subjects." The committee that made
the report of this resolution consisted of Hamilton, Madison, and
Sedgwick, (2 Hamilton's Works, 473;) and the clause in the Federal
Constitution providing for the restoration of fugitive slaves is a
recognition of this ancient right, and of the principle that a change
of place does not effect a change of condition. The diminution of the
power of a master to reclaim his escaping bondsman in Europe commenced
in the enactment of laws of prescription in favor of privileged
communes. Bremen, Spire, Worms, Vienna, and Ratisbon, in Germany;
Carcassonne, Béziers, Toulouse, and Paris, in France, acquired
privileges on this subject at an early period. The ordinance of
William the Conqueror, that a residence of any of the servile
population of England, for a year and a day, without being claimed, in
any city, burgh, walled town, or castle of the King, should entitle
them to perpetual liberty, is a specimen of these laws.

The earliest publicist who has discussed this subject is Bodin, a
jurist of the sixteenth century, whose work was quoted in the early
discussions of the courts in France and England on this subject. He
says: "In France, although there be some remembrance of old servitude,
yet it is not lawful here to make a slave or to buy any one of others,
insomuch as the slaves of strangers, so soon as they set their foot
within France, become frank and free, as was determined by an old
decree of the court of Paris against an ambassador of Spain, who had
brought a slave with him into France." He states another case, which
arose in the city of Toulouse, of a Genoese merchant, who had carried
a slave into that city on his voyage from Spain; and when the matter
was brought before the magistrates, the "procureur of the city, out of
the records, showed certain ancient privileges given unto them of
Tholouse, wherein it was granted that slaves, so soon as they should
come into Tholouse, should be free." These cases were cited with much
approbation in the discussion of the claims of the West India slaves
of Verdelin for freedom, in 1738, before the judges in admiralty, (15
Causes Celébrés, p. 1; 2 Masse Droit Com., sec. 58,) and were
reproduced before Lord Mansfield, in the cause of Somersett, in 1772.
Of the cases cited by Bodin, it is to be observed that Charles V of
France exempted all the inhabitants of Paris from serfdom, or other
feudal incapacities, in 1371, and this was confirmed by several of his
successors, (3 Dulaire Hist. de Par., 546; Broud. Cout. de Par., 21,)
and the ordinance of Toulouse is preserved as follows: "_Civitas
Tholosana fuit et erit sine fine libera, adeo ut servi et ancillæ,
sclavi et sclavæ, dominos sive dominas habentes, cum rebus vel sine
rebus suis, ad Tholosam vel infrâ terminos extra urbem terminatos
accedentes acquirant libertatem_." (Hist. de Langue, tome 3, p. 69;
Ibid. 6, p. 8; Loysel Inst., b. 1, sec. 6.)

The decisions were made upon special ordinances, or charters, which
contained positive prohibitions of slavery, and where liberty had been
granted as a privilege; and the history of Paris furnishes but little
support for the boast that she was a "_sacro sancta civitas_," where
liberty always had an asylum, or for the "self-complacent rhapsodies"
of the French advocates in the case of Verdelin, which amused the
grave lawyers who argued the case of Somersett. The case of Verdelin
was decided upon a special ordinance, which prescribed the conditions
on which West India slaves might be introduced into France, and which
had been disregarded by the master.

The case of Somersett was that of a Virginia slave carried to England
by his master in 1770, and who remained there two years. For some
cause, he was confined on a vessel destined to Jamaica, where he was
to be sold. Lord Mansfield, upon a return to a _habeas corpus_, states
the question involved. "Here, the person of the slave himself," he
says, "is the immediate subject of inquiry, Can any dominion,
authority, or coercion, be exercised in this country, according to the
American laws?" He answers: "The difficulty of adopting the relation,
without adopting it in all its consequences, is indeed extreme, and
yet many of those consequences are absolutely contrary to the
municipal law of England." Again, he says: "The return states that the
slave departed, and refused to serve; whereupon, he was kept to be
sold abroad." "So high an act of dominion must be recognised by the
law of the country where it is used. The power of the master over his
slave has been extremely different in different countries." "The state
of slavery is of such a nature, that it is incapable of being
introduced on any reasons, moral or political, but only by positive
law, which preserves its force long after the reasons, occasion, and
time itself, from whence it was created, are erased from the memory.
It is so odious, that nothing can be suffered to support it but
positive law." That there is a difference in the systems of States,
which recognise and which do not recognise the institution of slavery,
cannot be disguised. Constitutional law, punitive law, police,
domestic economy, industrial pursuits, and amusements, the modes of
thinking and of belief of the population of the respective
communities, all show the profound influence exerted upon society by
this single arrangement. This influence was discovered in the Federal
Convention, in the deliberations on the plan of the Constitution. Mr.
Madison observed, "that the States were divided into different
interests, not by their difference of size, but by other
circumstances; the most material of which resulted partly from
climate, but principally from the effects of their having or not
having slaves. These two causes concur in forming the great division
of interests in the United States."

The question to be raised with the opinion of Lord Mansfield,
therefore, is not in respect to the incongruity of the two systems,
but whether slavery was absolutely contrary to the law of England; for
if it was so, clearly, the American laws could not operate there.
Historical research ascertains that at the date of the Conquest the
rural population of England were generally in a servile condition, and
under various names, denoting slight variances in condition, they were
sold with the land like cattle, and were a part of its living money.
Traces of the existence of African slaves are to be found in the early
chronicles. Parliament in the time of Richard II, and also of Henry
VIII, refused to adopt a general law of emancipation. Acts of
emancipation by the last-named monarch and by Elizabeth are preserved.

The African slave trade had been carried on, under the unbounded
protection of the Crown, for near two centuries, when the case of
Somersett was heard, and no motion for its suppression had ever been
submitted to Parliament; while it was forced upon and maintained in
unwilling colonies by the Parliament and Crown of England at that
moment. Fifteen thousand negro slaves were then living in that island,
where they had been introduced under the counsel of the most
illustrious jurists of the realm, and such slaves had been publicly
sold for near a century in the markets of London. In the northern part
of the kingdom of Great Britain there existed a class of from 30,000
to 40,000 persons, of whom the Parliament said, in 1775, (15 George
III, chap. 28,) "many colliers, coal-heavers, and salters, are in a
state of slavery or bondage, bound to the collieries and salt works,
where they work for life, transferable with the collieries and salt
works when their original masters have no use for them; and whereas
the emancipating or setting free the colliers, coal-heavers, and
salters, in Scotland, who are now in a state of servitude, gradually
and upon reasonable conditions, would be the means of increasing the
number of colliers, coal-heavers, and salters, to the great benefit of
the public, without doing any injury to the present masters, and would
remove the reproach of allowing such a state of servitude to exist in
a free country," &c.; and again, in 1799, "they declare that many
colliers and coal-heavers still continue in a state of bondage." No
statute, from the Conquest till the 15 George III, had been passed
upon the subject of personal slavery. These facts have led the most
eminent civilian of England to question the accuracy of this judgment,
and to insinuate that in this judgment the offence of _ampliare
jurisdictionem_ by private authority was committed by the eminent
magistrate who pronounced it.

This sentence is distinguishable from those cited from the French
courts in this: that there positive prohibitions existed against
slavery, and the right to freedom was conferred on the immigrant slave
by positive law; whereas here the consequences of slavery merely--that
is, the public policy--were found to be contrary to the law of
slavery. The case of the slave Grace, (2 Hagg.,) with four others,
came before Lord Stowell in 1827, by appeals from the West India vice
admiralty courts. They were cases of slaves who had returned to those
islands, after a residence in Great Britain, and where the claim to
freedom was first presented in the colonial forum. The learned judge
in that case said: "This suit fails in its foundation. She (Grace) was
not a free person; no injury is done her by her continuance in
slavery, and she has no pretensions to any other station than that
which was enjoyed by every slave of a family. If she depends upon such
freedom conveyed by a mere residence in England, she complains of a
violation of right which she possessed no longer than whilst she
resided in England, but which totally expired when that residence
ceased, and she was imported into Antigua."

The decision of Lord Mansfield was, "that so high an act of dominion"
as the master exercises over his slave, in sending him abroad for
sale, could not be exercised in England under the American laws, and
contrary to the spirit of their own.

The decision of Lord Stowell is, that the authority of the English
laws terminated when the slave departed from England. That the laws of
England were not imported into Antigua, with the slave, upon her
return, and that the colonial forum had no warrant for applying a
foreign code to dissolve relations which had existed between persons
belonging to that island, and which were legal according to its own
system. There is no distinguishable difference between the case before
us and that determined in the admiralty of Great Britain.

The complaint here, in my opinion, amounts to this: that the judicial
tribunals of Missouri have not denounced as odious the Constitution
and laws under which they are organized, and have not superseded them
on their own private authority, for the purpose of applying the laws
of Illinois, or those passed by Congress for Minnesota, in their
stead. The eighth section of the act of Congress of the 6th of March,
1820, (3 Statutes at Large, 545,) entitled, "An act to authorize the
people of Missouri to form a State Government," &c., &c., is referred
to, as affording the authority to this court to pronounce the sentence
which the Supreme Court of Missouri felt themselves constrained to
refuse. That section of the act prohibits slavery in the district of
country west of the Mississippi, north of thirty-six degrees thirty
minutes north latitude, which belonged to the ancient province of
Louisiana, not included in Missouri.

It is a settled doctrine of this court, that the Federal Government
can exercise no power over the subject of slavery within the States,
nor control the intermigration of slaves, other than fugitives, among
the States. Nor can that Government affect the duration of slavery
within the States, other than by a legislation over the foreign slave
trade. The power of Congress to adopt the section of the act above
cited must therefore depend upon some condition of the Territories
which distinguishes them from States, and subjects them to a control
more extended. The third section of the fourth article of the
Constitution is referred to as the only and all-sufficient grant to
support this claim. It is, that "new States may be admitted by the
Congress to this Union; but no new State shall be formed or erected
within the jurisdiction of any other State, nor any State be formed by
the junction of two or more States, or parts of States, without the
consent of the Legislatures of the States concerned, as well as of the
Congress. The Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or other
property belonging to the United States; and nothing in this
Constitution shall be so construed as to prejudice any claims of the
United States, or of any particular State."

It is conceded, in the decisions of this court, that Congress may
secure the rights of the United States in the public domain, provide
for the sale or lease of any part of it, and establish the validity of
the titles of the purchasers, and may organize Territorial
Governments, with powers of legislation. (3 How., 212; 12 How., 1; 1
Pet., 511; 13 P., 436; 16 H., 164.)

But the recognition of a plenary power in Congress to dispose of the
public domain, or to organize a Government over it, does not imply a
corresponding authority to determine the internal polity, or to adjust
the domestic relations, or the persons who may lawfully inhabit the
territory in which it is situated. A supreme power to make needful
rules respecting the public domain, and a similar power of framing
laws to operate upon persons and things within the territorial limits
where it lies, are distinguished by broad lines of demarcation in
American history. This court has assisted us to define them. In
Johnson _v._ McIntosh, (8 Wheat., 595--543,) [Transcriber's Note:
modern citation form is 8 Wheat. 543, 595] they say: "According to the
theory of the British Constitution, all vacant lands are vested in the
Crown; and the exclusive power to grant them is admitted to reside in
the Crown, as a branch of the royal prerogative.

"All the lands we hold were originally granted by the Crown, and the
establishment of a royal Government has never been considered as
impairing its right to grant lands within the chartered limits of such
colony."

And the British Parliament did claim a supremacy of legislation
coextensive with the absoluteness of the dominion of the sovereign
over the Crown lands. The American doctrine, to the contrary, is
embodied in two brief resolutions of the people of Pennsylvania, in
1774: 1st. "That the inhabitants of these colonies are entitled to the
same rights and liberties, within the colonies, that the subjects born
in England are entitled within the realm." 2d. "That the power assumed
by Parliament to bind the people of these colonies by statutes, in all
cases whatever, is unconstitutional, and therefore the source of these
unhappy difficulties." The Congress of 1774, in their statement of
rights and grievances, affirm "a free and exclusive power of
legislation" in their several Provincial Legislatures, "in all cases
of taxation and internal polity, subject only to the negative of their
sovereign, in such manner as has been heretofore used and accustomed."
(1 Jour. Cong., 32.)

The unanimous consent of the people of the colonies, then, to the
power of their sovereign, "to dispose of and make all needful rules
and regulations respecting the territory" of the Crown, in 1774, was
deemed by them as entirely consistent with opposition, remonstrance,
the renunciation of allegiance, and proclamation of civil war, in
preference to submission to his claim of supreme power in the
territories.

I pass now to the evidence afforded during the Revolution and
Confederation. The American Revolution was not a social revolution. It
did not alter the domestic condition or capacity of persons within the
colonies, nor was it designed to disturb the domestic relations
existing among them. It was a political revolution, by which thirteen
dependent colonies became thirteen independent States. "The
Declaration of Independence was not," says Justice Chase, "a
declaration that the United Colonies jointly, in a collective
capacity, were independent States, &c., &c., &c., but that each of
them was a sovereign and independent State; that is, that each of them
had a right to govern itself by its own authority and its own laws,
without any control from any other power on earth." (3 Dall., 199; 4
Cr., 212.)

These sovereign and independent States, being united as a
Confederation, by various public acts of cession, became jointly
interested in territory, and concerned to dispose of and make all
needful rules and regulations respecting it. It is a conclusion not
open to discussion in this court, "that there was no territory within
the (original) United States, that was claimed by them in any other
right than that of some of the confederate States." (Harcourt _v._
Gaillord, 12 Wh., 523.) "The question whether the vacant lands within
the United States," says Chief Justice Marshall, "became joint
property, or belonged to the separate States, was a momentous
question, which threatened to shake the American Confederacy to its
foundations. This important and dangerous question has been
compromised, and the compromise is not now to be contested." (6 C.R.,
87.)

The cessions of the States to the Confederation were made on the
condition that the territory ceded should be laid out and formed into
distinct republican States, which should be admitted as members to the
Federal Union, having the same rights of sovereignty, freedom, and
independence, as the other States. The first effort to fulfil this
trust was made in 1785, by the offer of a charter or compact to the
inhabitants who might come to occupy the land.

Those inhabitants were to form for themselves temporary State
Governments, founded on the Constitutions of any of the States, but to
be alterable at the will of their Legislature; and permanent
Governments were to succeed these, whenever the population became
sufficiently numerous to authorize the State to enter the Confederacy;
and Congress assumed to obtain powers from the States to facilitate
this object. Neither in the deeds of cession of the States, nor in
this compact, was a sovereign power for Congress to govern the
Territories asserted. Congress retained power, by this act, "to
dispose of and to make rules and regulations respecting the public
domain," but submitted to the people to organize a Government
harmonious with those of the confederate States.

The next stage in the progress of colonial government was the adoption
of the ordinance of 1787, by eight States, in which the plan of a
Territorial Government, established by act of Congress, is first seen.
This was adopted while the Federal Convention to form the Constitution
was sitting. The plan placed the Government in the hands of a
Governor, Secretary, and Judges, appointed by Congress, and conferred
power on them to select suitable laws from the codes of the States,
until the population should equal 5,000. A Legislative Council,
elected by the people, was then to be admitted to a share of the
legislative authority, under the supervision of Congress; and States
were to be formed whenever the number of the population should
authorize the measure.

This ordinance was addressed to the inhabitants as a fundamental
compact, and six of its articles define the conditions to be observed
in their Constitution and laws. These conditions were designed to
fulfil the trust in the agreements of cession, that the States to be
formed of the ceded Territories should be "distinct republican
States." This ordinance was submitted to Virginia in 1788, and the 5th
article, embodying as it does a summary of the entire act, was
specifically ratified and confirmed by that State. This was an
incorporation of the ordinance into her act of cession. It was
conceded, in the argument, that the authority of Congress was not
adequate to the enactment of the ordinance, and that it cannot be
supported upon the Articles of Confederation. To a part of the
engagements, the assent of nine States was required, and for another
portion no provision had been made in those articles. Mr. Madison
said, in a writing nearly contemporary, but before the confirmatory
act of Virginia, "Congress have proceeded to form new States, to erect
temporary Governments, to appoint officers for them, and to prescribe
the conditions on which such States shall be admitted into the
Confederacy; all this has been done, and done without the least color
of constitutional authority." (Federalist, No. 38.) Richard Henry Lee,
one of the committee who reported the ordinance to Congress,
transmitted it to General Washington, (15th July, 1787,) saying, "It
seemed necessary, for the security of property among uninformed and
perhaps licentious people, as the greater part of those who go there
are, that a strong-toned Government should exist, and the rights of
property be clearly defined." The consent of all the States
represented in Congress, the consent of the Legislature of Virginia,
the consent of the inhabitants of the Territory, all concur to support
the authority of this enactment. It is apparent, in the frame of the
Constitution, that the Convention recognised its validity, and
adjusted parts of their work with reference to it. The authority to
admit new States into the Union, the omission to provide distinctly
for Territorial Governments, and the clause limiting the foreign slave
trade to States then existing, which might not prohibit it, show that
they regarded this Territory as provided with a Government, and
organized permanently with a restriction on the subject of slavery.
Justice Chase, in the opinion already cited, says of the Government
before, and it is in some measure true during the Confederation, that
"the powers of Congress originated from necessity, and arose out of
and were only limited by events, or, in other words, they were
revolutionary in their very nature. Their extent depended upon the
exigencies and necessities of public affairs;" and there is only one
rule of construction, in regard to the acts done, which will fully
support them, viz: that the powers actually exercised were rightfully
exercised, wherever they were supported by the implied sanction of the
State Legislatures, and by the ratifications of the people.

The clauses in the 3d section of the 4th article of the Constitution,
relative to the admission of new States, and the disposal and
regulation of the territory of the United States, were adopted without
debate in the Convention.

There was a warm discussion on the clauses that relate to the
subdivision of the States, and the reservation of the claims of the
United States and each of the States from any prejudice. The Maryland
members revived the controversy in regard to the Crown lands of the
Southwest. There was nothing to indicate any reference to a government
of Territories not included within the limits of the Union; and the
whole discussion demonstrates that the Convention was consciously
dealing with a Territory whose condition, as to government, had been
arranged by a fundamental and unalterable compact.

An examination of this clause of the Constitution, by the light of the
circumstances in which the Convention was placed, will aid us to
determine its significance. The first clause is, "that new States may
be admitted by the Congress to this Union." The condition of
Kentucky, Vermont, Rhode Island, and the new States to be formed in
the Northwest, suggested this, as a necessary addition to the powers
of Congress. The next clause, providing for the subdivision of States,
and the parties to consent to such an alteration, was required, by the
plans on foot, for changes in Massachusetts, New York, Pennsylvania,
North Carolina, and Georgia. The clause which enables Congress to
dispose of and make regulations respecting the public domain, was
demanded by the exigencies of an exhausted treasury and a disordered
finance, for relief by sales, and the preparation for sales, of the
public lands; and the last clause, that nothing in the Constitution
should prejudice the claims of the United States or a particular
State, was to quiet the jealousy and irritation of those who had
claimed for the United States all the unappropriated lands. I look in
vain, among the discussions of the time, for the assertion of a
supreme sovereignty for Congress over the territory then belonging to
the United States, or that they might thereafter acquire. I seek in
vain for an annunciation that a consolidated power had been
inaugurated, whose subject comprehended an empire, and which had no
restriction but the discretion of Congress. This disturbing element of
the Union entirely escaped the apprehensive previsions of Samuel
Adams, George Clinton, Luther Martin, and Patrick Henry; and, in
respect to dangers from power vested in a central Government over
distant settlements, colonies, or provinces, their instincts were
always alive. Not a word escaped them, to warn their countrymen, that
here was a power to threaten the landmarks of this federative Union,
and with them the safeguards of popular and constitutional liberty; or
that under this article there might be introduced, on our soil, a
single Government over a vast extent of country--a Government foreign
to the persons over whom it might be exercised, and capable of binding
those not represented, by statutes, in all cases whatever. I find
nothing to authorize these enormous pretensions, nothing in the
expositions of the friends of the Constitution, nothing in the
expressions of alarm by its opponents--expressions which have since
been developed as prophecies. Every portion of the United States was
then provided with a municipal Government, which this Constitution was
not designed to supersede, but merely to modify as to its conditions.

The compacts of cession by North Carolina and Georgia are subsequent
to the Constitution. They adopt the ordinance of 1787, except the
clause respecting slavery. But the precautionary repudiation of that
article forms an argument quite as satisfactory to the advocates for
Federal power, as its introduction would have done. The refusal of a
power to Congress to legislate in one place, seems to justify the
seizure of the same power when another place for its exercise is
found.

This proceeds from a radical error, which lies at the foundation of
much of this discussion. It is, that the Federal Government may
lawfully do whatever is not directly prohibited by the Constitution.
This would have been a fundamental error, if no amendments to the
Constitution had been made. But the final expression of the will of
the people of the States, in the 10th amendment, is, that the powers
of the Federal Government are limited to the grants of the
Constitution.

Before the cession of Georgia was made, Congress asserted rights, in
respect to a part of her territory, which require a passing notice. In
1798 and 1800, acts for the settlement of limits with Georgia, and to
establish a Government in the Mississippi Territory, were adopted. A
Territorial Government was organized, between the Chattahoochee and
Mississippi rivers. This was within the limits of Georgia. These acts
dismembered Georgia. They established a separate Government upon her
soil, while they rather derisively professed, "that the establishment
of that Government shall in no respects impair the rights of the State
of Georgia, either to the jurisdiction or soil of the Territory." The
Constitution provided that the importation of such persons as any of
the existing States shall think proper to admit, shall not be
prohibited by Congress before 1808. By these enactments, a prohibition
was placed upon the importation of slaves into Georgia, although her
Legislature had made none.

This court have repeatedly affirmed the paramount claim of Georgia to
this Territory. They have denied the existence of any title in the
United States. (6 C.R., 87; 12 Wh., 523; 3 How., 212; 13 How., 381.)
Yet these acts were cited in the argument as precedents to show the
power of Congress in the Territories. These statutes were the occasion
of earnest expostulation and bitter remonstrance on the part of the
authorities of the State, and the memory of their injustice and wrong
remained long after the legal settlement of the controversy by the
compact of 1802. A reference to these acts terminates what I have to
say upon the Constitutions of the Territory within the original limits
of the United States. These Constitutions were framed by the
concurrence of the States making the cessions, and Congress, and were
tendered to immigrants who might be attracted to the vacant territory.
The legislative powers of the officers of this Government were limited
to the selection of laws from the States; and provision was made for
the introduction of popular institutions, and their emancipation from
Federal control, whenever a suitable opportunity occurred. The limited
reservation of legislative power to the officers of the Federal
Government was excused, on the plea of _necessity_; and the
probability is, that the clauses respecting slavery embody some
compromise among the statesmen of that time; beyond these, the
distinguishing features of the system which the patriots of the
Revolution had claimed as their birthright, from Great Britain,
predominated in them.

The acquisition of Louisiana, in 1803, introduced another system into
the United States. This vast province was ceded by Napoleon, and its
population had always been accustomed to a viceroyal Government,
appointed by the Crowns of France or Spain. To establish a Government
constituted on similar principles, and with like conditions, was not
an unnatural proceeding.

But there was great difficulty in finding constitutional authority for
the measure. The third section of the fourth article of the
Constitution was introduced into the Constitution, on the motion of
Mr. Gouverneur Morris. In 1803, he was appealed to for information in
regard to its meaning. He answers: "I am very certain I had it not in
contemplation to insert a decree _de coercendo imperio_ in the
Constitution of America.... I knew then, as well as I do now, that all
North America must at length be annexed to us. Happy indeed, if the
lust of dominion stop here. It would therefore have been perfectly
utopian to oppose a paper restriction to the violence of popular
sentiment, in a popular Government." (3 Mor. Writ., 185.) A few days
later, he makes another reply to his correspondent. "I perceive," he
says, "I mistook the drift of your inquiry, which substantially is,
whether Congress can admit, as a new State, territory which did not
belong to the United States when the Constitution was made. In my
opinion, they cannot. I always thought, when we should acquire Canada
and Louisiana, it would be proper to GOVERN THEM AS PROVINCES, AND
ALLOW THEM NO VOICE _in our councils. In wording the third_ SECTION OF
THE _fourth article, I went as far as circumstances would permit, to
establish the exclusion_. CANDOR OBLIGES ME TO ADD MY BELIEF, THAT HAD
IT BEEN MORE POINTEDLY EXPRESSED, A STRONG OPPOSITION WOULD HAVE BEEN
MADE." (3 Mor. Writ., 192.) The first Territorial Government of
Louisiana was an Imperial one, founded upon a French or Spanish model.
For a time, the Governor, Judges, Legislative Council, Marshal,
Secretary, and officers of the militia, were appointed by the
President.[3]

[Footnote 3: Mr. Varnum said: "The bill provided such a Government as
had never been known in the United States." Mr. Eustis: "The
Government laid down in this bill is certainly a new thing in the
United States." Mr. Lucas: "It has been remarked, that this bill
establishes elementary principles never previously introduced in the
Government of any Territory of the United States. Granting the truth
of this observation," &c., &c. Mr. Macon: "My first objection to the
principle contained in this section is, that it establishes a species
of government unknown to the United States." Mr. Boyle: "Were the
President an angel instead of a man, I would not clothe him with this
power." Mr. G.W. Campbell: "On examining the section, it will appear
that it really establishes a complete despotism." Mr. Sloan: "Can
anything be more repugnant to the principles of just government? Can
anything be more despotic?"--_Annals of Congress_, 1803-'4.]

Besides these anomalous arrangements, the acquisition gave rise to
jealous inquiries, as to the influence it would exert in determining
the men and States that were to be "the arbiters and rulers" of the
destinies of the Union; and unconstitutional opinions, having for
their aim to promote sectional divisions, were announced and
developed. "Something," said an eminent statesman, "something has
suggested to the members of Congress the policy of acquiring
geographical majorities. This is a very direct step towards disunion,
for it must foster the geographical enmities by which alone it can be
effected. This something must be a contemplation of particular
advantages to be derived from such majorities; and is it not notorious
that they consist of nothing else but usurpations over persons and
property, by which they can regulate the internal _wealth and
prosperity of States and individuals_?"

The most dangerous of the efforts to employ a geographical political
power, to perpetuate a geographical preponderance in the Union, is to
be found in the deliberations upon the act of the 6th of March, 1820,
before cited. The attempt consisted of a proposal to exclude Missouri
from a place in the Union, unless her people would adopt a
Constitution containing a prohibition upon the subject of slavery,
according to a prescription of Congress. The sentiment is now general,
if not universal, that Congress had no constitutional power to impose
the restriction. This was frankly admitted at the bar, in the course
of this argument. The principles which this court have pronounced
condemn the pretension then made on behalf of the legislative
department. In Groves _v._ Slaughter, (15 Pet.,) the Chief Justice
said: "The power over this subject is exclusively with the several
States, and each of them has a right to decide for itself whether it
will or will not allow persons of this description to be brought
within its limits." Justice McLean said: "The Constitution of the
United States operates alike in all the States, and one State has the
same power over the subject of slavery as every other State." In
Pollard's Lessee _v._ Hagan, (3 How., 212,) the court say: "The United
States have no constitutional capacity to exercise municipal
jurisdiction, sovereignty, or eminent domain, within the limits of a
State or elsewhere, except in cases where it is delegated, and the
court denies the faculty of the Federal Government to add to its
powers by treaty or compact."

This is a necessary consequence, resulting from the nature of the
Federal Constitution, which is a federal compact among the States,
establishing a limited Government, with powers delegated by the people
of distinct and independent communities, who reserved to their State
Governments, and to themselves, the powers they did not grant. This
claim to impose a restriction upon the people of Missouri involved a
denial of the constitutional relations between the people of the
States and Congress, and affirmed a concurrent right for the latter,
with their people, to constitute the social and political system of
the new States. A successful maintenance of this claim would have
altered the basis of the Constitution. The new States would have
become members of a Union defined in part by the Constitution and in
part by Congress. They would not have been admitted to "this Union."
Their sovereignty would have been restricted by Congress as well as
the Constitution. The demand was unconstitutional and subversive, but
was prosecuted with an energy, and aroused such animosities among the
people, that patriots, whose confidence had not failed during the
Revolution, began to despair for the Constitution.[4] Amid the utmost
violence of this extraordinary contest, the expedient contained in the
eighth section of this act was proposed, to moderate it, and to avert
the catastrophe it menaced. It was not seriously debated, nor were its
constitutional aspects severely scrutinized by Congress. For the first
time, in the history of the country, has its operation been embodied
in a case at law, and been presented to this court for their judgment.
The inquiry is, whether there are conditions in the Constitutions of
the Territories which subject the capacity and _status_ of persons
within their limits to the direct action of Congress. Can Congress
determine the condition and _status_ of persons who inhabit the
Territories?

[Footnote 4: Mr. Jefferson wrote: "The Missouri question is the most
portentous one that ever threatened our Union. In the gloomiest
moments of the revolutionary war, I never had any apprehension equal
to that I feel from this source."]

The Constitution permits Congress to dispose of and to make all
needful rules and regulations respecting the territory or other
property belonging to the United States. This power applies as well to
territory belonging to the United States within the States, as beyond
them. It comprehends all the public domain, wherever it may be. The
argument is, that the power to make "ALL needful rules and
regulations" "is a power of legislation," "a full legislative power;"
"that it includes all subjects of legislation in the territory," and
is without any limitations, except the positive prohibitions which
affect all the powers of Congress. Congress may then regulate or
prohibit slavery upon the public domain within the new States, and
such a prohibition would permanently affect the capacity of a slave,
whose master might carry him to it. And why not? Because no power has
been conferred on Congress. This is a conclusion universally admitted.
But the power to "make rules and regulations respecting the territory"
is not restrained by State lines, nor are there any constitutional
prohibitions upon its exercise in the domain of the United States
within the States; and whatever rules and regulations respecting
territory Congress may constitutionally make are supreme, and are not
dependent on the _situs_ of "the territory."

The author of the Farmer's Letters, so famous in the
ante-revolutionary history, thus states the argument made by the
American loyalists in favor of the claim of the British Parliament to
legislate in all cases whatever over the colonies: "It has been urged
with great vehemence against us," he says, "and it seems to be thought
their FORT by our adversaries, that a power of regulation is a power
of legislation; and a power of legislation, if constitutional, must be
universal and supreme, in the utmost sense of the word. It is
therefore concluded that the colonies, by acknowledging the power of
regulation, acknowledged every other power."

This sophism imposed upon a portion of the patriots of that day. Chief
Justice Marshall, in his life of Washington, says "that many of the
best-informed men in Massachusetts had perhaps adopted the opinion of
the parliamentary right of internal government over the colonies;"
"that the English statute book furnishes many instances of its
exercise;" "that in no case recollected, was their authority openly
controverted;" and "that the General Court of Massachusetts, on a late
occasion, openly recognised the principle." (Marsh. Wash., v. 2, p.
75, 76.)

But the more eminent men of Massachusetts rejected it; and another
patriot of the time employs the instance to warn us of "the stealth
with which oppression approaches," and "the enormities towards which
precedents travel." And the people of the United States, as we have
seen, appealed to the last argument, rather than acquiesce in their
authority. Could it have been the purpose of Washington and his
illustrious associates, by the use of ambiguous, equivocal, and
expansive words, such as "rules," "regulations," "territory," to
re-establish in the Constitution of their country that _fort_ which
had been prostrated amid the toils and with the sufferings and
sacrifices of seven years of war? Are these words to be understood as
the Norths, the Grenvilles, Hillsboroughs, Hutchinsons, and
Dunmores--in a word, as George III would have understood them--or are
we to look for their interpretation to Patrick Henry or Samuel Adams,
to Jefferson, and Jay, and Dickinson; to the sage Franklin, or to
Hamilton, who from his early manhood was engaged in combating British
constructions of such words? We know that the resolution of Congress
of 1780 contemplated that the new States to be formed under their
recommendation were to have the same rights of sovereignty, freedom,
and independence, as the old. That every resolution, cession, compact,
and ordinance, of the States, observed the same liberal principle.
That the Union of the Constitution is a union formed of equal States;
and that new States, when admitted, were to enter "this Union." Had
another union been proposed in "any pointed manner," it would have
encountered not only "strong" but successful opposition. The disunion
between Great Britain and her colonies originated in the antipathy of
the latter to "rules and regulations" made by a remote power
respecting their internal policy. In forming the Constitution, this
fact was ever present in the minds of its authors. The people were
assured by their most trusted statesmen "that the jurisdiction of the
Federal Government is limited to certain enumerated objects, which
concern all members of the republic," and "that the local or municipal
authorities form distinct portions of supremacy, no more subject
within their respective spheres to the general authority, than the
general authority is subject to them within its own sphere." Still,
this did not content them. Under the lead of Hancock and Samuel Adams,
of Patrick Henry and George Mason, they demanded an explicit
declaration that no more power was to be exercised than they had
delegated. And the ninth and tenth amendments to the Constitution were
designed to include the reserved rights of the States, and the people,
within all the sanctions of that instrument, and to bind the
authorities, State and Federal, by the judicial oath it prescribes, to
their recognition and observance. Is it probable, therefore, that the
supreme and irresponsible power, which is now claimed for Congress
over boundless territories, the use of which cannot fail to react upon
the political system of the States, to its subversion, was ever within
the contemplation of the statesmen who conducted the counsels of the
people in the formation of this Constitution? When the questions that
came to the surface upon the acquisition of Louisiana were presented
to the mind of Jefferson, he wrote: "I had rather ask an enlargement
of power from the nation, where it is found necessary, than to assume
it by a construction which would make our powers boundless. Our
peculiar security is in the possession of a written Constitution. Let
us not make it blank paper by construction. I say the same as to the
opinion of those who consider the grant of the treaty-making power as
boundless. If it is, then we have no Constitution. If it has bounds,
they can be no others than the definitions of the powers which that
instrument gives. It specifies and delineates the operations permitted
to the Federal Government, and gives the powers necessary to carry
them into execution." The publication of the journals of the Federal
Convention in 1819, of the debates reported by Mr. Madison in 1840,
and the mass of private correspondence of the early statesmen before
and since, enable us to approach the discussion of the aims of those
who made the Constitution, with some insight and confidence.

I have endeavored, with the assistance of these, to find a solution
for the grave and difficult question involved in this inquiry. My
opinion is, that the claim for Congress of supreme power in the
Territories, under the grant to "dispose of and make all needful rules
and regulations respecting _territory_," is not supported by the
historical evidence drawn from the Revolution, the Confederation, or
the deliberations which preceded the ratification of the Federal
Constitution. The ordinance of 1787 depended upon the action of the
Congress of the Confederation, the assent of the State of Virginia,
and the acquiescence of the people who recognised the validity of that
plea of necessity which supported so many of the acts of the
Governments of that time; and the Federal Government accepted the
ordinance as a recognised and valid engagement of the Confederation.

In referring to the precedents of 1798 and 1800, I find the
Constitution was plainly violated by the invasion of the rights of a
sovereign State, both of soil and jurisdiction; and in reference to
that of 1804, the wisest statesmen protested against it, and the
President more than doubted its policy and the power of the
Government.

Mr. John Quincy Adams, at a later period, says of the last act, "that
the President found Congress mounted to the pitch of passing those
acts, without inquiring where they acquired the authority, and he
conquered his own scruples as they had done theirs." But this court
cannot undertake for themselves the same conquest. They acknowledge
that our peculiar security is in the possession of a written
Constitution, and they cannot make it blank paper by construction.

They look to its delineation of the operations of the Federal
Government, and they must not exceed the limits it marks out, in their
administration. The court have said "that Congress cannot exercise
municipal jurisdiction, sovereignty, or eminent domain, within the
limits of a State or elsewhere, beyond what has been delegated." We
are then to find the authority for supreme power in the Territories in
the Constitution. What are the limits upon the operations of a
Government invested with legislative, executive, and judiciary powers,
and charged with the power to dispose of and to make all needful rules
and regulations respecting a vast public domain? The feudal system
would have recognised the claim made on behalf of the Federal
Government for supreme power over persons and things in the
Territories, as an incident to this title--that is, the title to
dispose of and make rules and regulations respecting it.

The Norman lawyers of William the Conqueror would have yielded an
implicit assent to the doctrine, that a supreme sovereignty is an
inseparable incident to a grant to dispose of and to make all needful
rules and regulations respecting the public domain. But an American
patriot, in contrasting the European and American systems, may affirm,
"that European sovereigns give lands to their colonists, but reserve
to themselves a power to control their property, liberty, and
privileges; but the American Government sells the lands belonging to
the people of the several States (i.e., United States) to their
citizens, who are already in the possession of personal and political
rights, which the Government did not give, and cannot take away." And
the advocates for Government sovereignty in the Territories have been
compelled to abate a portion of the pretensions originally made in its
behalf, and to admit that the constitutional prohibitions upon
Congress operate in the Territories. But a constitutional prohibition
is not requisite to ascertain a limitation upon the authority of the
several departments of the Federal Government. Nor are the States or
people restrained by any enumeration or definition of their rights or
liberties.

To impair or diminish either, the department must produce an authority
from the people themselves, in their Constitution; and, as we have
seen, a power to make rules and regulations respecting the public
domain does not confer a municipal sovereignty over persons and things
upon it. But as this is "thought their fort" by our adversaries, I
propose a more definite examination of it. We have seen, Congress does
not dispose of or make rules and regulations respecting domain
belonging to themselves, but belonging to the United States.

These conferred on their mandatory, Congress, authority to dispose of
the territory which belonged to them in common; and to accomplish that
object beneficially and effectually, they gave an authority to make
suitable rules and regulations respecting it. When the power of
disposition is fulfilled, the authority to make rules and regulations
terminates, for it attaches only upon territory "belonging to the
United States."

Consequently, the power to make rules and regulations, from the nature
of the subject, is restricted to such administrative and conservatory
acts as are needful for the preservation of the public domain, and its
preparation for sale or disposition. The system of land surveys; the
reservations for schools, internal improvements, military sites, and
public buildings; the pre-emption claims of settlers; the
establishment of land offices, and boards of inquiry, to determine the
validity of land titles; the modes of entry, and sale, and of
conferring titles; the protection of the lands from trespass and
waste; the partition of the public domain into municipal subdivisions,
having reference to the erection of Territorial Governments and
States; and perhaps the selection, under their authority, of suitable
laws for the protection of the settlers, until there may be a
sufficient number of them to form a self-sustaining municipal
Government--these important rules and regulations will sufficiently
illustrate the scope and operation of the 3d section of the 4th
article of the Constitution. But this clause in the Constitution does
not exhaust the powers of Congress within the territorial
subdivisions, or over the persons who inhabit them. Congress may
exercise there all the powers of Government which belong to them as
the Legislature of the United States, of which these Territories make
a part. (Loughborough _v._ Blake, 5 Wheat., 317.) Thus the laws of
taxation, for the regulation of foreign, Federal, and Indian commerce,
and so for the abolition of the slave trade, for the protection of
copyrights and inventions, for the establishment of postal
communication and courts of justice, and for the punishment of crimes,
are as operative there as within the States. I admit that to mark the
bounds for the jurisdiction of the Government of the United States
within the Territory, and of its power in respect to persons and
things within the municipal subdivisions it has created, is a work of
delicacy and difficulty, and, in a great measure, is beyond the
cognizance of the judiciary department of that Government. How much
municipal power may be exercised by the people of the Territory,
before their admission to the Union, the courts of justice cannot
decide. This must depend, for the most part, on political
considerations, which cannot enter into the determination of a case of
law or equity. I do not feel called upon to define the jurisdiction of
Congress. It is sufficient for the decision of this case to ascertain
whether the residuary sovereignty of the States or people has been
invaded by the 8th section of the act of 6th March, 1820, I have
cited, in so far as it concerns the capacity and _status_ of persons
in the condition and circumstances of the plaintiff and his family.

These States, at the adoption of the Federal Constitution, were
organized communities, having distinct systems of municipal law,
which, though derived from a common source, and recognising in the
main similar principles, yet in some respects had become unlike, and
on a particular subject promised to be antagonistic.

Their systems provided protection for life, liberty, and property,
among their citizens, and for the determination of the condition and
capacity of the persons domiciled within their limits. These
institutions, for the most part, were placed beyond the control of the
Federal Government. The Constitution allows Congress to coin money,
and regulate its value; to regulate foreign and Federal commerce; to
secure, for a limited period, to authors and inventors, a property in
their writings and discoveries; and to make rules concerning captures
in war; and, within the limits of these powers, it has exercised,
rightly, to a greater or less extent, the power to determine what
shall and what shall not be property.

But the great powers of war and negotiation, finance, postal
communication, and commerce, in general, when employed in respect to
the property of a citizen, refer to, and depend upon, the municipal
laws of the States, to ascertain and determine what is property, and
the rights of the owner, and the tenure by which it is held.

Whatever these Constitutions and laws validly determine to be
property, it is the duty of the Federal Government, through the domain
of jurisdiction merely Federal, to recognise to be property.

And this principle follows from the structure of the respective
Governments, State and Federal, and their reciprocal relations. They
are different agents and trustees of the people of the several States,
appointed with different powers and with distinct purposes, but whose
acts, within the scope of their respective jurisdictions, are mutually
obligatory. They are respectively the depositories of such powers of
legislation as the people were willing to surrender, and their duty is
to co-operate within their several jurisdictions to maintain the
rights of the same citizens under both Governments unimpaired. A
proscription, therefore, of the Constitution and laws of one or more
States, determining property, on the part of the Federal Government,
by which the stability of its social system may be endangered, is
plainly repugnant to the conditions on which the Federal Constitution
was adopted, or which that Government was designed to accomplish. Each
of the States surrendered its powers of war and negotiation, to raise
armies and to support a navy, and all of these powers are sometimes
required to preserve a State from disaster and ruin. The Federal
Government was constituted to exercise these powers for the
preservation of the States, respectively, and to secure to all their
citizens the enjoyment of the rights which were not surrendered to the
Federal Government. The provident care of the statesmen who projected
the Constitution was signalized by such a distribution of the powers
of Government as to exclude many of the motives and opportunities for
promoting provocations and spreading discord among the States, and for
guarding against those partial combinations, so destructive of the
community of interest, sentiment, and feeling, which are so essential
to the support of the Union. The distinguishing features of their
system consist in the exclusion of the Federal Government from the
local and internal concerns of, and in the establishment of an
independent internal Government within, the States. And it is a
significant fact in the history of the United States, that those
controversies which have been productive of the greatest animosity,
and have occasioned most peril to the peace of the Union, have had
their origin in the well-sustained opinion of a minority among the
people, that the Federal Government had overstepped its constitutional
limits to grant some exclusive privilege, or to disturb the legitimate
distribution of property or power among the States or individuals. Nor
can a more signal instance of this be found than is furnished by the
act before us. No candid or rational man can hesitate to believe, that
if the subject of the eighth section of the act of March, 1820, had
never been introduced into Congress and made the basis of legislation,
no interest common to the Union would have been seriously affected.
And, certainly, the creation, within this Union, of large
confederacies of unfriendly and frowning States, which has been the
tendency, and, to an alarming extent, the result, produced by the
agitation arising from it, does not commend it to the patriot or
statesman. This court have determined that the intermigration of
slaves was not committed to the jurisdiction or control of Congress.
Wherever a master is entitled to go within the United States, his
slave may accompany him, without any impediment from, or fear of,
Congressional legislation or interference. The question then arises,
whether Congress, which can exercise no jurisdiction over the
relations of master and slave within the limits of the Union, and is
bound to recognise and respect the rights and relations that validly
exist under the Constitutions and laws of the States, can deny the
exercise of those rights, and prohibit the continuance of those
relations, within the Territories.

And the citation of State statutes prohibiting the immigration of
slaves, and of the decisions of State courts enforcing the forfeiture
of the master's title in accordance with their rule, only darkens the
discussion. For the question is, have Congress the municipal
sovereignty in the Territories which the State Legislatures have
derived from the authority of the people, and exercise in the States?

And this depends upon the construction of the article in the
Constitution before referred to.

And, in my opinion, that clause confers no power upon Congress to
dissolve the relations of the master and slave on the domain of the
United States, either within or without any of the States.

The eighth section of the act of Congress of the 6th of March, 1820,
did not, in my opinion, operate to determine the domestic condition
and _status_ of the plaintiff and his family during their sojourn in
Minnesota Territory, or after their return to Missouri.

The question occurs as to the judgment to be given in this case. It
appeared upon the trial that the plaintiff, in 1834, was in a state of
slavery in Missouri, and he had been in Missouri for near fifteen
years in that condition when this suit was brought. Nor does it appear
that he at any time possessed another state or condition, _de facto_.
His claim to freedom depends upon his temporary elocation, from the
domicil of his origin, in company with his master, to communities
where the law of slavery did not prevail. My examination is confined
to the case, as it was submitted upon uncontested evidence, upon
appropriate issues to the jury, and upon the instructions given and
refused by the court upon that evidence. My opinion is, that the
opinion of the Circuit Court was correct upon all the claims involved
in those issues, and that the verdict of the jury was justified by the
evidence and instructions.

The jury have returned that the plaintiff and his family are slaves.

Upon this record, it is apparent that this is not a controversy
between citizens of different States; and that the plaintiff, at no
period of the life which has been submitted to the view of the court,
has had a capacity to maintain a suit in the courts of the United
States. And in so far as the argument of the Chief Justice upon the
plea in abatement has a reference to the plaintiff or his family, in
any of the conditions or circumstances of their lives, as presented in
the evidence, I concur in that portion of his opinion. I concur in the
judgment which expresses the conclusion that the Circuit Court should
not have rendered a general judgment.

The capacity of the plaintiff to sue is involved in the pleas in bar,
and the verdict of the jury discloses an incapacity under the
Constitution. Under the Constitution of the United States, his is an
incapacity to sue in their courts, while, by the laws of Missouri, the
operation of the verdict would be more extensive. I think it a safe
conclusion to enforce the lesser disability imposed by the
Constitution of the United States, and leave to the plaintiff all his
rights in Missouri. I think the judgment should be affirmed, on the
ground that the Circuit Court had no jurisdiction, or that the case
should be reversed and remanded, that the suit may be dismissed.

       *       *       *       *       *

Mr. Justice CATRON.

The defendant pleaded to the jurisdiction of the Circuit Court, that
the plaintiff was a negro of African blood; the descendant of
Africans, who had been imported and sold in this country as slaves,
and thus had no capacity as a citizen of Missouri to maintain a suit
in the Circuit Court. The court sustained a demurrer to this plea, and
a trial was had upon the pleas, of the general issue, and also that
the plaintiff and his family were slaves, belonging to the defendant.
In this trial, a verdict was given for the defendant.

The judgment of the Circuit Court upon the plea in abatement is not
open, in my opinion, to examination in this court upon the plaintiff's
writ.

The judgment was given for him conformably to the prayer of his
demurrer. He cannot assign an error in such a judgment. (Tidd's Pr.,
1163; 2 Williams's Saund., 46 a; 2 Iredell N.C., 87; 2 W. and S.,
391.) Nor does the fact that the judgment was given on a plea to the
jurisdiction, avoid the application of this rule. (Capron _v._ Van
Noorden, 2 Cr., 126; 6 Wend., 465; 7 Met., 598; 5 Pike, 1005.)

The declaration discloses a case within the jurisdiction of the
court--a controversy between citizens of different States. The plea in
abatement, impugning these jurisdictional averments, was waived when
the defendant answered to the declaration by pleas to the merits. The
proceedings on that plea remain a part of the technical record, to
show the history of the case, but are not open to the review of this
court by a writ of error. The authorities are very conclusive on this
point. Shepherd _v._ Graves, 14 How., 505; Bailey _v._ Dozier, 6 How.,
23; 1 Stewart, (Alabama,) 46; 10 Ben. Monroe, (Kentucky,) 555; 2
Stewart, (Alabama,) 370, 443; 2 Scammon, (Illinois,) 78. Nor can the
court assume, as admitted facts, the averments of the plea from the
confession of the demurrer. That confession was for a single object,
and cannot be used for any other purpose than to test the validity of
the plea. Tompkins _v._ Ashley, 1 Moody and Mackin, 32; 33 Maine, 96,
100.

There being nothing in controversy here but the merits, I will proceed
to discuss them.

The plaintiff claims to have acquired property in himself, and became
free, by being kept in Illinois during two years.

The Constitution, laws, and policy, of Illinois, are somewhat peculiar
respecting slavery. Unless the master becomes an inhabitant of that
State, the slaves he takes there do not acquire their freedom; and if
they return with their master to the slave State of his domicil, they
cannot assert their freedom after their return. For the reasons and
authorities on this point, I refer to the opinion of my brother
Nelson, with which I not only concur, but think his opinion is the
most conclusive argument on the subject within my knowledge.

It is next insisted for the plaintiff, that his freedom (and that of
his wife and eldest child) was obtained by force of the act of
Congress of 1820, usually known as the Missouri compromise act, which
declares: "That in all that territory ceded by France to the United
States, which lies north of thirty-six degrees thirty minutes north
latitude, slavery and involuntary servitude shall be, and are hereby,
_forever prohibited_."

From this prohibition, the territory now constituting the State of
Missouri was excepted; which exception to the stipulation gave it the
designation of a compromise.

The first question presented on this act is, whether Congress had
power to make such compromise. For, if power was wanting, then no
freedom could be acquired by the defendant under the act.

That Congress has no authority to pass laws and bind men's rights
beyond the powers conferred by the Constitution, is not open to
controversy. But it is insisted that, by the Constitution, Congress
has power to legislate for and govern the Territories of the United
States, and that by force of the power to govern, laws could be
enacted, prohibiting slavery in any portion of the Louisiana
Territory; and, of course, to abolish slavery _in all_ parts of it,
whilst it was, or is, governed as a Territory.

My opinion is, that Congress is vested with power to govern the
Territories of the United States by force of the third section of the
fourth article of the Constitution. And I will state my reasons for
this opinion.

Almost every provision in that instrument has a history that must be
understood, before the brief and sententious language employed can be
comprehended in the relations its authors intended. We must bring
before us the state of things presented to the Convention, and in
regard to which it acted, when the compound provision was made,
declaring: 1st. That "new States may be admitted by the Congress into
this Union." 2d. "The Congress shall have power to dispose of and make
all needful rules and regulations respecting the territory or other
property belonging to the United States. And nothing in this
Constitution shall be so construed as to prejudice any claims of the
United States, or any particular State."

Having ascertained the historical facts giving rise to these
provisions, the difficulty of arriving at the true meaning of the
language employed will be greatly lessened.

The history of these facts is substantially as follows:

The King of Great Britain, by his proclamation of 1763, virtually
claimed that the country west of the mountains had been conquered from
France, and ceded to the Crown of Great Britain by the treaty of Paris
of that year, and he says: "We reserve it under our sovereignty,
protection, and dominion, for the use of the Indians."

This country was conquered from the Crown of Great Britain, and
surrendered to the United States by the treaty of peace of 1783. The
colonial charters of Virginia, North Carolina, and Georgia, included
it. Other States set up pretensions of claim to some portions of the
territory north of the Ohio, but they were of no value, as I suppose.
(5 Wheat., 375.)

As this vacant country had been won by the blood and treasure of all
the States, those whose charters did not reach it, insisted that the
country belonged to the States united, and that the lands should be
disposed of for the benefit of the whole; and to which end, the
western territory should be ceded to the States united. The contest
was stringent and angry, long before the Convention convened, and
deeply agitated that body. As a matter of justice, and to quiet the
controversy, Virginia consented to cede the country north of the Ohio
as early as 1783; and in 1784 the deed of cession was executed, by her
delegates in the Congress of the Confederation, conveying to the
United States in Congress assembled, for the benefit of said States,
"all right, title, and claim, as well of soil as of jurisdiction,
which this Commonwealth hath to the _territory_ or tract of country
within the limits of the Virginia charter, situate, lying, and being
to the northwest of the river Ohio." In 1787, (July 13,) the ordinance
was passed by the old Congress to govern the Territory.

Massachusetts had ceded her pretension of claim to western territory
in 1785, Connecticut hers in 1786, and New York had ceded hers. In
August, 1787, South Carolina ceded to the Confederation her pretension
of claim to territory west of that State. And North Carolina was
expected to cede hers, which she did do, in April, 1790. And so
Georgia was confidently expected to cede her large domain, now
constituting the territory of the States of Alabama and Mississippi.

At the time the Constitution was under consideration, there had been
ceded to the United States, or was shortly expected to be ceded, all
the western country, from the British Canada line to Florida, and from
the head of the Mississippi almost to its mouth, except that portion
which now constitutes the State of Kentucky.

Although Virginia had conferred on the Congress of the Confederation
power to govern the Territory north of the Ohio, still, it cannot be
denied, as I think, that power was wanting to admit a new State under
the Articles of Confederation.

With these facts prominently before the Convention, they proposed to
accomplish these ends:

1st. To give power to admit new States.

2d. To dispose of the public lands in the Territories, and such as
might remain undisposed of in the new States after they were admitted.

And, thirdly, to give power to govern the different Territories as
incipient States, not of the Union, and fit them for admission. No one
in the Convention seems to have doubted that these powers were
necessary. As early as the third day of its session, (May 29th,)
Edmund Randolph brought forward a set of resolutions containing nearly
all the germs of the Constitution, the tenth of which is as follows:

"_Resolved_, That provision ought to be made for the admission of
States lawfully arising within the limits of the United States,
whether from a voluntary junction of government and territory or
otherwise, with the consent of a number of voices in the National
Legislature less than the whole."

August 18th, Mr. Madison submitted, in order to be referred to the
committee of detail, the following powers as proper to be added to
those of the General Legislature:

"To dispose of the unappropriated lands of the United States." "To
institute temporary Governments for new States arising therein." (3
Madison Papers, 1353.)

These, with the resolution, that a district for the location of the
seat of Government should be provided, and some others, were referred,
without a dissent, to the committee of detail, to arrange and put them
into satisfactory language.

Gouverneur Morris constructed the clauses, and combined the views of a
majority on the two provisions, to admit new States; and secondly, to
dispose of the public lands, and to govern the Territories, in the
mean time, between the cessions of the States and the admission into
the Union of new States arising in the ceded territory. (3 Madison
Papers, 1456 to 1466.)

It was hardly possible to separate the power "to make all needful
rules and regulations" respecting the government of the territory and
the disposition of the public lands.

North of the Ohio, Virginia conveyed the lands, and vested the
jurisdiction in the thirteen original States, before the Constitution
was formed. She had the sole title and sole sovereignty, and the same
power to cede, on any terms she saw proper, that the King of England
had to grant the Virginia colonial charter of 1609, or to grant the
charter of Pennsylvania to William Penn. The thirteen States, through
their representatives and deputed ministers in the old Congress, had
the same right to govern that Virginia had before the cession.
(Baldwin's Constitutional Views, 90.) And the sixth article of the
Constitution adopted all engagements entered into by the Congress of
the Confederation, as valid against the United States; and that the
laws, made in pursuance of the new Constitution, to carry out this
engagement, should be the supreme law of the land, and the judges
bound thereby. To give the compact, and the ordinance, which was part
of it, full effect under the new Government, the act of August 7th,
1789, was passed, which declares, "Whereas, in order that the
ordinance of the United States in Congress assembled, for the
government of the Territory northwest of the river Ohio, may have full
effect, it is requisite that certain provisions should be made, so as
to adapt the same to the present Constitution of the United States."
It is then provided that the Governor and other officers should be
appointed by the President, with the consent of the Senate; and be
subject to removal, &c., in like manner that they were by the old
Congress, whose functions had ceased.

By the powers to govern, given by the Constitution, those amendments
to the ordinance could be made, but Congress guardedly abstained from
touching the compact of Virginia, further than to adapt it to the new
Constitution.

It is due to myself to say, that it is asking much of a judge, who
has for nearly twenty years been exercising jurisdiction, from the
western Missouri line to the Rocky Mountains, and, on this
understanding of the Constitution, inflicting the extreme penalty of
death for crimes committed where the direct legislation of Congress
was the only rule, to agree that he had been all the while acting in
mistake, and as an usurper.

More than sixty years have passed away since Congress has exercised
power to govern the Territories, by its legislation directly, or by
Territorial charters, subject to repeal at all times, and it is now
too late to call that power into question, if this court could
disregard its own decisions; which it cannot do, as I think. It was
held in the case of Cross _v._ Harrison, (16 How., 193-'4,) that the
sovereignty of California was in the United States, in virtue of the
Constitution, by which power had been given to Congress to dispose of
and make all needful rules and regulations respecting the territory or
other property belonging to the United States, with the power to admit
new States into the Union. That decision followed preceding ones,
there cited. The question was then presented, how it was possible for
the judicial mind to conceive that the United States Government,
created solely by the Constitution, could, by a lawful treaty, acquire
territory over which the acquiring power had no jurisdiction to hold
and govern it, by force of the instrument under whose authority the
country was acquired; and the foregoing was the conclusion of this
court on the proposition. What was there announced, was most
deliberately done, and with a purpose. The only question here is, as I
think, how far the power of Congress is limited.

As to the Northwest Territory, Virginia had the right to abolish
slavery there; and she did so agree in 1787, with the other States in
the Congress of the Confederation, by assenting to and adopting the
ordinance of 1787, for the government of the Northwest Territory. She
did this also by an act of her Legislature, passed afterwards, which
was a treaty in fact.

Before the new Constitution was adopted, she had as much right to
treat and agree as any European Government had. And, having excluded
slavery, the new Government was bound by that engagement by article
six of the new Constitution. This only meant that slavery should not
exist whilst the United States exercised the power of government, in
the Territorial form; for, when a new State came in, it might do so,
with or without slavery.

My opinion is, that Congress had no power, in face of the compact
between Virginia and the twelve other States, to _force_ slavery into
the Northwest Territory, because there, it was bound to that
"engagement," and could not break it.

In 1790, North Carolina ceded her western territory, now the State of
Tennessee, and stipulated that the inhabitants thereof should enjoy
all the privileges and advantages of the ordinance for governing the
territory north of the Ohio river, and that Congress should assume the
government, and accept the cession, under the express conditions
contained in the ordinance: _Provided_, "That no regulation made, or
to be made, by Congress, shall tend to emancipate slaves."

In 1802, Georgia ceded her western territory to the United States,
with the provision that the ordinance of 1787 should in all its parts
extend to the territory ceded, "that article only excepted which
forbids slavery." Congress had no more power to legislate slavery
_out_ from the North Carolina and Georgia cessions, than it had power
to legislate slavery in, north of the Ohio. No power existed in
Congress to legislate at all, affecting slavery, in either case. The
inhabitants, as respected this description of property, stood
protected whilst they were governed by Congress, in like manner that
they were protected before the cession was made, and when they were,
respectively, parts of North Carolina and Georgia.

And how does the power of Congress stand west of the Mississippi
river? The country there was acquired from France, by treaty, in 1803.
It declares, that the First Consul, in the name of the French
Republic, doth hereby cede to the United States, in full sovereignty,
the colony or province of Louisiana, with all the rights and
appurtenances of the said territory. And, by article third, that "the
inhabitants of the ceded territory shall be incorporated in the Union
of the United States, and admitted as soon as possible, according to
the principles of the Federal Constitution, to the enjoyment of all
the rights, advantages, and immunities, of citizens of the United
States; and, in the mean time, they shall be maintained and protected
in the free enjoyment of their liberty, property, and the religion
which they profess."

Louisiana was a province where slavery was not only lawful, but where
property in slaves was the most valuable of all personal property. The
province was ceded as a unit, with an equal right pertaining to all
its inhabitants, in every part thereof, to own slaves. It was, to a
great extent, a vacant country, having in it few civilized
inhabitants. No one portion of the colony, of a proper size for a
State of the Union had a sufficient number of inhabitants to claim
admission into the Union. To enable the United States to fulfil the
treaty, additional population was indispensable, and obviously desired
with anxiety by both sides, so that the whole country should, as soon
as possible, become States of the Union. And for this contemplated
future population, the treaty as expressly provided as it did for the
inhabitants residing in the province when the treaty was made. All
these were to be protected "_in the mean time_;" that is to say, at
all times, between the date of the treaty and the time when the
portion of the Territory where the inhabitants resided was admitted
into the Union as a State.

At the date of the treaty, each inhabitant had the right to the _free_
enjoyment of his property, alike with his liberty and his religion, in
every part of Louisiana; the province then being one country, he might
go everywhere in it, and carry his liberty, property, and religion,
with him, and in which he was to be maintained and protected, until he
became a citizen of a State of the Union of the United States. This
cannot be denied to the original inhabitants and their descendants.
And, if it be true that immigrants were equally protected, it must
follow that they can also stand on the treaty.

The settled doctrine in the State courts of Louisiana is, that a
French subject coming to the Orleans Territory, after the treaty of
1803 was made, and before Louisiana was admitted into the Union, and
being an inhabitant at the time of the admission, became a citizen of
the United States by that act; that he was one of the inhabitants
contemplated by the third article of the treaty, which referred to all
the inhabitants embraced within the new State on its admission.

That this is the true construction, I have no doubt.

If power existed to draw a line at thirty-six degrees thirty minutes
north, so Congress had equal power to draw the line on the thirtieth
degree--that is, due west from the city of New Orleans--and to declare
that north of _that line_ slavery should never exist. Suppose this had
been done before 1812, when Louisiana came into the Union, and the
question of infraction of the treaty had then been presented on the
present assumption of power to prohibit slavery, who doubts what the
decision of this court would have been on such an act of Congress;
yet, the difference between the supposed line, and that on thirty-six
degrees thirty minutes north, is only in the degree of grossness
presented by the lower line.

The Missouri compromise line of 1820 was very aggressive; it declared
that slavery was abolished forever throughout a country reaching from
the Mississippi river to the Pacific ocean, stretching over thirty-two
degrees of longitude, and twelve and a half degrees of latitude on its
eastern side, sweeping over four-fifths, to say no more, of the
original province of Louisiana.

That the United States Government stipulated in favor of the
inhabitants to the extent here contended for, has not been seriously
denied, as far as I know; but the argument is, that Congress had
authority to _repeal_ the third article of the treaty of 1803, in so
far as it secured the right to hold slave property, in a portion of
the ceded territory, leaving the right to exist in other parts. In
other words, that Congress could repeal the third article entirely, at
its pleasure. This I deny.

The compacts with North Carolina and Georgia were treaties also, and
stood on the same footing of the Louisiana treaty; on the assumption
of power to repeal the one, it must have extended to all, and Congress
could have excluded the slaveholder of North Carolina from the
enjoyment of his lands in the Territory now the State of Tennessee,
where the citizens of the mother State were the principal proprietors.

And so in the case of Georgia. Her citizens could have been refused
the right to emigrate to the Mississippi or Alabama Territory, unless
they left their most valuable and cherished property behind them.

The Constitution was framed in reference to facts then existing or
likely to arise: the instrument looked to no theories of Government.
In the vigorous debates in the Convention, as reported by Mr. Madison
and others, surrounding facts, and the condition and necessities of
the country, gave rise to almost every provision; and among those
facts, it was prominently true, that Congress dare not be intrusted
with power to provide that, if North Carolina or Georgia ceded her
western territory, the citizens of the State (in either case) could be
prohibited, at the pleasure of Congress, from removing to their lands,
then granted to a large extent, in the country likely to be ceded,
unless they left their slaves behind. That such an attempt, in the
face of a population fresh from the war of the Revolution, and then
engaged in war with the great confederacy of Indians, extending from
the mouth of the Ohio to the Gulf of Mexico, would end in open revolt,
all intelligent men knew.

In view of these facts, let us inquire how the question stands by the
terms of the Constitution, aside from the treaty? How it stood in
public opinion when the Georgia cession was made, in 1802, is apparent
from the fact that no guaranty was required by Georgia of the United
States, for the protection of slave property. The Federal Constitution
was relied on, to secure the rights of Georgia and her citizens during
the Territorial condition of the country. She relied on the
indisputable truths, that the States were by the Constitution made
equals in political rights, and equals in the right to participate in
the common property of all the States united, and held in trust for
them. The Constitution having provided that "The citizens of each
State shall be entitled to all privileges and immunities of citizens
of the several States," the right to enjoy the territory as equals was
reserved to the States, and to the citizens of the States,
respectively. The cited clause is not that citizens of the United
States shall have equal privileges in the Territories, but the citizen
of each State shall come there in right of his State, and enjoy the
common property. He secures his equality through the equality of his
State, by virtue of that great fundamental condition of the Union--the
equality of the States.

Congress cannot do indirectly what the Constitution prohibits
directly. If the slaveholder is prohibited from going to the Territory
with his slaves, who are parts of his family in name and in fact, it
will follow that men owning lawful property in their own States,
carrying with them the equality of their State to enjoy the common
property, may be told, you cannot come here with your slaves, and he
will be held out at the border. By this subterfuge, owners of slave
property, to the amount of thousand of millions, might be almost as
effectually excluded from removing into the Territory of Louisiana
north of thirty-six degrees thirty minutes, as if the law declared
that owners of slaves, as a class, should be excluded, even if their
slaves were left behind.

Just as well might Congress have said to those of the North, you shall
not introduce into the territory south of said line your cattle or
horses, as the country is already overstocked; nor can you introduce
your tools of trade, or machines, as the policy of Congress is to
encourage the culture of sugar and cotton south of the line, and so to
provide that the Northern people shall manufacture for those of the
South, and barter for the staple articles slave labor produces. And
thus the Northern farmer and mechanic would be held out, as the
slaveholder was for thirty years, by the Missouri restriction.

If Congress could prohibit one species of property, lawful throughout
Louisiana when it was acquired, and lawful in the State from whence it
was brought, so Congress might exclude any or all property.

The case before us will illustrate the construction contended for. Dr.
Emerson was a citizen of Missouri; he had an equal right to go to the
Territory with every citizen of other States. This is undeniable, as I
suppose. Scott was Dr. Emerson's lawful property in Missouri; he
carried his Missouri title with him; and the precise question here is,
whether Congress had the power to annul that title. It is idle to say,
that if Congress could not defeat the title _directly_, that it might
be done indirectly, by drawing a narrow circle around the slave
population of Upper Louisiana, and declaring that if the slave went
beyond it, he should be free. Such assumption is mere evasion, and
entitled to no consideration. And it is equally idle to contend, that
because Congress has express power to regulate commerce among the
Indian tribes, and to prohibit intercourse with the Indians, that
therefore Dr. Emerson's title might be defeated within the country
ceded by the Indians to the United States as early as 1805, and which
embraces Fort Snelling. (Am. State Papers, vol. 1, p. 734.) We _must_
meet the question, whether Congress had the power to declare that a
citizen of a State, carrying with him his equal rights, secured to him
through his State, could be stripped of his goods and slaves, and be
deprived of any participation in the common property? If this be the
true meaning of the Constitution, equality of rights to enjoy a common
country (equal to a thousand miles square) may be cut off by a
geographical line, and a great portion of our citizens excluded from
it.

Ingenious, indirect evasions of the Constitution have been attempted
and defeated heretofore. In the passenger cases, (7 How. R.,) the
attempt was made to impose a tax on the masters, crews, and passengers
of vessels, the Constitution having prohibited a tax on the vessel
itself; but this court held the attempt to be a mere evasion, and
pronounced the tax illegal.

I admit that Virginia could, and lawfully did, prohibit slavery
northwest of the Ohio, by her charter of cession, and that the
territory was taken by the United States with this condition imposed.
I also admit that France could, by the treaty of 1803, have prohibited
slavery in any part of the ceded territory, and imposed it on the
United States as a fundamental condition of the cession, in the mean
time, till new States were admitted in the Union.

I concur with Judge Baldwin, that Federal power is exercised over all
the territory within the United States, pursuant to the Constitution;
_and_, the conditions of the cession, whether it was a part of the
original territory of a State of the Union, or of a foreign State,
ceded by deed or treaty; the right of the United States in or over it
depends on the contract of cession, which operates to incorporate as
well the Territory as its inhabitants into the Union. (Baldwin's
Constitutional Views, 84.)

My opinion is, that the third article of the treaty of 1803, ceding
Louisiana to the United States, stands protected by the Constitution,
and cannot be repealed by Congress.

And, secondly, that the act of 1820, known as the Missouri
compromise, violates the most leading feature of the Constitution--a
feature on which the Union depends, and which secures to the
respective States and their citizens an entire EQUALITY of rights,
privileges, and immunities.

On these grounds, I hold the compromise act to have been void; and,
consequently, that the plaintiff, Scott, can claim no benefit under
it.

For the reasons above stated, I concur with my brother judges that the
plaintiff, Scott, is a slave, and was so when this suit was brought.

       *       *       *       *       *

Mr. Justice McLEAN and Mr. Justice CURTIS dissented.


Mr. Justice McLEAN dissenting.

This case is before us on a writ of error from the Circuit Court for
the district of Missouri.

An action of trespass was brought, which charges the defendant with an
assault and imprisonment of the plaintiff, and also of Harriet Scott,
his wife, Eliza and Lizzie, his two children, on the ground that they
were his slaves, which was without right on his part, and against law.

The defendant filed a plea in abatement, "that said causes of action,
and each and every of them, if any such accrued to the said Dred
Scott, accrued out of the jurisdiction of this court, and exclusively
within the jurisdiction of the courts of the State of Missouri, for
that to wit, said plaintiff, Dred Scott, is not a citizen of the State
of Missouri, as alleged in his declaration, because he is a negro of
African descent, his ancestors were of pure African blood, and were
brought into this country and sold as negro slaves; and this the said
Sandford is ready to verify; wherefore he prays judgment whether the
court can or will take further cognizance of the action aforesaid."

To this a demurrer was filed, which, on argument, was sustained by the
court, the plea in abatement being held insufficient; the defendant
was ruled to plead over. Under this rule he pleaded: 1. Not guilty; 2.
That Dred Scott was a negro slave, the property of the defendant; and
3. That Harriet, the wife, and Eliza and Lizzie, the daughters of the
plaintiff, were the lawful slaves of the defendant.

Issue was joined on the first plea, and replications of _de injuria_
were filed to the other pleas.

The parties agreed to the following facts: In the year 1834, the
plaintiff was a negro slave belonging to Dr. Emerson, who was a
surgeon in the army of the United States. In that year, Dr. Emerson
took the plaintiff from the State of Missouri to the post of Rock
Island, in the State of Illinois, and held him there as a slave until
the month of April or May, 1836. At the time last mentioned, Dr.
Emerson removed the plaintiff from Rock Island to the military post at
Fort Snelling, situate on the west bank of the Mississippi river, in
the territory known as Upper Louisiana, acquired by the United States
of France, and situate north of latitude thirty-six degrees thirty
minutes north, and north of the State of Missouri. Dr. Emerson held
the plaintiff in slavery, at Fort Snelling, from the last-mentioned
date until the year 1838.

In the year 1835, Harriet, who is named in the second count of the
plaintiff's declaration, was the negro slave of Major Taliaferro, who
belonged to the army of the United States. In that year, Major
Taliaferro took Harriet to Fort Snelling, a military post situated as
hereinbefore stated, and kept her there as a slave until the year
1836, and then sold and delivered her as a slave, at Fort Snelling,
unto Dr. Emerson, who held her in slavery, at that place, until the
year 1838.

In the year 1836, the plaintiff and Harriet were married at Fort
Snelling, with the consent of Dr. Emerson, who claimed to be their
master and owner. Eliza and Lizzie, named in the third count of the
plaintiff's declaration, are the fruit of that marriage. Eliza is
about fourteen years old, and was born on board the steamboat Gipsey,
north of the north line of the State of Missouri, and upon the river
Mississippi. Lizzie is about seven years old, and was born in the
State of Missouri, at the military post called Jefferson Barracks.

In the year 1838, Dr. Emerson removed the plaintiff and said Harriet
and their daughter Eliza from Fort Snelling to the State of Missouri,
where they have ever since resided.

Before the commencement of the suit, Dr. Emerson sold and conveyed the
plaintiff, Harriet, Eliza, and Lizzie, to the defendant, as slaves,
and he has ever since claimed to hold them as slaves.

At the times mentioned in the plaintiff's declaration, the defendant,
claiming to be the owner, laid his hands upon said plaintiff, Harriet,
Eliza, and Lizzie, and imprisoned them; doing in this respect,
however, no more than he might lawfully do, if they were of right his
slaves at such times.

In the first place, the plea to the jurisdiction is not before us, on
this writ of error. A demurrer to the plea was sustained, which ruled
the plea bad, and the defendant, on leave, pleaded over.

The decision on the demurrer was in favor of the plaintiff; and as the
plaintiff prosecutes this writ of error, he does not complain of the
decision on the demurrer. The defendant might have complained of this
decision, as against him, and have prosecuted a writ of error, to
reverse it. But as the case, under the instruction of the court to the
jury, was decided in his favor, of course he had no ground of
complaint.

But it is said, if the court, on looking at the record, shall clearly
perceive that the Circuit Court had no jurisdiction, it is a ground
for the dismissal of the case. This may be characterized as rather a
sharp practice, and one which seldom, if ever, occurs. No case was
cited in the argument as authority, and not a single case precisely in
point is recollected in our reports. The pleadings do not show a want
of jurisdiction. This want of jurisdiction can only be ascertained by
a judgment on the demurrer to the special plea. No such case, it is
believed, can be cited. But if this rule of practice is to be applied
in this case, and the plaintiff in error is required to answer and
maintain as well the points ruled in his favor, as to show the error
of those ruled against him, he has more than an ordinary duty to
perform. Under such circumstances, the want of jurisdiction in the
Circuit Court must be so clear as not to admit of doubt. Now, the plea
which raises the question of jurisdiction, in my judgment, is
radically defective. The gravamen of the plea is this: "That the
plaintiff is a negro of African descent, his ancestors being of pure
African blood, and were brought into this country, and sold as negro
slaves."

There is no averment in this plea which shows or conduces to show an
inability in the plaintiff to sue in the Circuit Court. It does not
allege that the plaintiff had his domicil in any other State, nor that
he is not a free man in Missouri. He is averred to have had a negro
ancestry, but this does not show that he is not a citizen of Missouri,
within the meaning of the act of Congress authorizing him to sue in
the Circuit Court. It has never been held necessary, to constitute a
citizen within the act, that he should have the qualifications of an
elector. Females and minors may sue in the Federal courts, and so may
any individual who has a permanent domicil in the State under whose
laws his rights are protected, and to which he owes allegiance.

Being born under our Constitution and laws, no naturalization is
required, as one of foreign birth, to make him a citizen. The most
general and appropriate definition of the term citizen is "a freeman."
Being a freeman, and having his domicil in a State different from that
of the defendant, he is a citizen within the act of Congress, and the
courts of the Union are open to him.

It has often been held, that the jurisdiction, as regards parties, can
only be exercised between citizens of different States, and that a
mere residence is not sufficient; but this has been said to
distinguish a temporary from a permanent residence.

To constitute a good plea to the jurisdiction, it must negative those
qualities and rights which enable an individual to sue in the Federal
courts. This has not been done; and on this ground the plea was
defective, and the demurrer was properly sustained. No implication can
aid a plea in abatement or in bar; it must be complete in itself; the
facts stated, if true, must abate or bar the right of the plaintiff to
sue. This is not the character of the above plea. The facts stated, if
admitted, are not inconsistent with other facts, which may be
presumed, and which bring the plaintiff within the act of Congress.

The pleader has not the boldness to allege that this plaintiff is a
slave, as that would assume against him the matter in controversy, and
embrace the entire merits of the case in a plea to the jurisdiction.
But beyond the facts set out in the plea, the court, to sustain it,
must assume the plaintiff to be a slave, which is decisive on the
merits. This is a short and an effectual mode of deciding the cause;
but I am yet to learn that it is sanctioned by any known rule of
pleading.

The defendant's counsel complain, that if the court take jurisdiction
on the ground that the plaintiff is free, the assumption is against
the right of the master. This argument is easily answered. In the
first place, the plea does not show him to be a slave; it does not
follow that a man is not free whose ancestors were slaves. The reports
of the Supreme Court of Missouri show that this assumption has many
exceptions; and there is no averment in the plea that the plaintiff is
not within them.

By all the rules of pleading, this is a fatal defect in the plea. If
there be doubt, what rule of construction has been established in the
slave States? In Jacob _v._ Sharp, (Meigs's Rep., Tennessee, 114,) the
court held, when there was doubt as to the construction of a will
which emancipated a slave, "it must be construed to be subordinate to
the higher and more important right of freedom."

No injustice can result to the master, from an exercise of
jurisdiction in this cause. Such a decision does not in any degree
affect the merits of the case; it only enables the plaintiff to assert
his claims to freedom before this tribunal. If the jurisdiction be
ruled against him, on the ground that he is a slave, it is decisive of
his fate.

It has been argued that, if a colored person be made a citizen of a
State, he cannot sue in the Federal court. The Constitution declares
that Federal jurisdiction "may be exercised between citizens of
different States," and the same is provided in the act of 1789. The
above argument is properly met by saying that the Constitution was
intended to be a practical instrument; and where its language is too
plain to be misunderstood, the argument ends.

In Chiræ _v._ Chiræ, (2 Wheat., 261; 4 Curtis, 99,) this court says:
"That the power of naturalization is exclusively in Congress does not
seem to be, and certainly ought not to be, controverted." No person
can legally be made a citizen of a State, and consequently a citizen
of the United States, of foreign birth, unless he be naturalized under
the acts of Congress. Congress has power "to establish a uniform rule
of naturalization."

It is a power which belongs exclusively to Congress, as intimately
connected with our Federal relations. A State may authorize foreigners
to hold real estate within its jurisdiction, but it has no power to
naturalize foreigners, and give them the rights of citizens. Such a
right is opposed to the acts of Congress on the subject of
naturalization, and subversive of the Federal powers. I regret that
any countenance should be given from this bench to a practice like
this in some of the States, which has no warrant in the Constitution.

In the argument, it was said that a colored citizen would not be an
agreeable member of society. This is more a matter of taste than of
law. Several of the States have admitted persons of color to the right
of suffrage, and in this view have recognised them as citizens; and
this has been done in the slave as well as the free States. On the
question of citizenship, it must be admitted that we have not been
very fastidious. Under the late treaty with Mexico, we have made
citizens of all grades, combinations, and colors. The same was done in
the admission of Louisiana and Florida. No one ever doubted, and no
court ever held, that the people of these Territories did not become
citizens under the treaty. They have exercised all the rights of
citizens, without being naturalized under the acts of Congress.

There are several important principles involved in this case, which
have been argued, and which may be considered under the following
heads:

1. The locality of slavery, as settled by this court and the courts of
the States.

2. The relation which the Federal Government bears to slavery in the
States.

3. The power of Congress to establish Territorial Governments, and to
prohibit the introduction of slavery therein.

4. The effect of taking slaves into a new State or Territory, and so
holding them, where slavery is prohibited.

5. Whether the return of a slave under the control of his master,
after being entitled to his freedom, reduces him to his former
condition.

6. Are the decisions of the Supreme Court of Missouri, on the
questions before us, binding on this court, within the rule adopted.

In the course of my judicial duties, I have had occasion to consider
and decide several of the above points.

1. As to the locality of slavery. The civil law throughout the
Continent of Europe, it is believed, without an exception, is, that
slavery can exist only within the territory where it is established;
and that, if a slave escapes, or is carried beyond such territory, his
master cannot reclaim him, unless by virtue of some express
stipulation. (Grotius, lib. 2, chap. 15, 5, 1; lib. 10, chap. 10, 2,
1; Wicqueposts Ambassador, lib. 1, p. 418; 4 Martin, 385; Case of the
Creole in the House of Lords, 1842; 1 Phillimore on International Law,
316, 335.)

There is no nation in Europe which considers itself bound to return to
his master a fugitive slave, under the civil law or the law of
nations. On the contrary, the slave is held to be free where there is
no treaty obligation, or compact in some other form, to return him to
his master. The Roman law did not allow freedom to be sold. An
ambassador or any other public functionary could not take a slave to
France, Spain, or any other country of Europe, without emancipating
him. A number of slaves escaped from a Florida plantation, and were
received on board of ship by Admiral Cochrane; by the King's Bench,
they were held to be free. (2 Barn. and Cres., 440.)

In the great and leading case of Prigg _v._ The State of Pennsylvania,
(16 Peters, 594; 14 Curtis, 421,) this court say that, by the general
law of nations, no nation is bound to recognise the state of slavery,
as found within its territorial dominions, where it is in opposition
to its own policy and institutions, in favor of the subjects of other
nations where slavery is organized. If it does it, it is as a matter
of comity, and not as a matter of international right. The state of
slavery is deemed to be a mere municipal regulation, founded upon and
limited to the range of the territorial laws. This was fully
recognised in Somersett's case, (Lafft's Rep., 1; 20 Howell's State
Trials, 79,) which was decided before the American Revolution.

There was some contrariety of opinion among the judges on certain
points ruled in Prigg's case, but there was none in regard to the
great principle, that slavery is limited to the range of the laws
under which it is sanctioned.

No case in England appears to have been more thoroughly examined than
that of Somersett. The judgment pronounced by Lord Mansfield was the
judgment of the Court of King's Bench. The cause was argued at great
length, and with great ability, by Hargrave and others, who stood
among the most eminent counsel in England. It was held under
advisement from term to term, and a due sense of its importance was
felt and expressed by the Bench.

In giving the opinion of the court, Lord Mansfield said:

"The state of slavery is of such a nature that it is incapable of
being introduced on any reasons, moral or political, but only by
positive law, which preserves its force long after the reasons,
occasion, and time itself, from whence it was created, is erased from
the memory; it is of a nature that nothing can be suffered to support
it but positive law."

He referred to the contrary opinion of Lord Hardwicke, in October,
1749, as Chancellor: "That he and Lord Talbot, when Attorney and
Solicitor General, were of opinion that no such claim, as here
presented, for freedom, was valid."

The weight of this decision is sought to be impaired, from the terms
in which it was described by the exuberant imagination of Curran. The
words of Lord Mansfield, in giving the opinion of the court, were such
as were fit to be used by a great judge, in a most important case. It
is a sufficient answer to all objections to that judgment, that it was
pronounced before the Revolution, and that it was considered by this
court as the highest authority. For near a century, the decision in
Somersett's case has remained the law of England. The case of the
slave Grace, decided by Lord Stowell in 1827, does not, as has been
supposed, overrule the judgment of Lord Mansfield. Lord Stowell held
that, during the residence of the slave in England, "No dominion,
authority, or coercion, can be exercised over him." Under another
head, I shall have occasion to examine the opinion in the case of
Grace.

To the position, that slavery can only exist except under the
authority of law, it is objected, that in few if in any instances has
it been established by statutory enactment. This is no answer to the
doctrine laid down by the court. Almost all the principles of the
common law had their foundation in usage. Slavery was introduced into
the colonies of this country by Great Britain at an early period of
their history, and it was protected and cherished, until it became
incorporated into the colonial policy. It is immaterial whether a
system of slavery was introduced by express law, or otherwise, if it
have the authority of law. There is no slave State where the
institution is not recognised and protected by statutory enactments
and judicial decisions. Slaves are made property by the laws of the
slave States, and as such are liable to the claims of creditors; they
descend to heirs, are taxed, and in the South they are a subject of
commerce.

In the case of Rankin _v._ Lydia, (2 A.K. Marshall's Rep.,) Judge
Mills, speaking for the Court of Appeals of Kentucky, says: "In
deciding the question, (of slavery,) we disclaim the influence of the
general principles of liberty, which we all admire, and conceive it
ought to be decided by the law as it is, and not as it ought to be.
Slavery is sanctioned by the laws of this State, and the right to hold
slaves under our municipal regulations is unquestionable. But we view
this as a right existing by positive law of a municipal character,
without foundation in the law of nature, or the unwritten and common
law."

I will now consider the relation which the Federal Government bears to
slavery in the States:

Slavery is emphatically a State institution. In the ninth section of
the first article of the Constitution, it is provided "that the
migration or importation of such persons as any of the States now
existing shall think proper to admit, shall not be prohibited by the
Congress prior to the year 1808, but a tax or duty may be imposed on
such importation, not exceeding ten dollars for each person."

In the Convention, it was proposed by a committee of eleven to limit
the importation of slaves to the year 1800, when Mr. Pinckney moved to
extend the time to the year 1808. This motion was carried--New
Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South
Carolina, and Georgia, voting in the affirmative; and New Jersey,
Pennsylvania, and Virginia, in the negative. In opposition to the
motion, Mr. Madison said: "Twenty years will produce all the mischief
that can be apprehended from the liberty to import slaves; so long a
term will be more dishonorable to the American character than to say
nothing about it in the Constitution." (Madison Papers.)

The provision in regard to the slave trade shows clearly that Congress
considered slavery a State institution, to be continued and regulated
by its individual sovereignty; and to conciliate that interest, the
slave trade was continued twenty years, not as a general measure, but
for the "benefit of such States as shall think proper to encourage
it."

In the case of Groves _v._ Slaughter, (15 Peters, 449; 14 Curtis,
137,) Messrs. Clay and Webster contended that, under the commercial
power, Congress had a right to regulate the slave trade among the
several States; but the court held that Congress had no power to
interfere with slavery as it exists in the States, or to regulate what
is called the slave trade among them. If this trade were subject to
the commercial power, it would follow that Congress could abolish or
establish slavery in every State of the Union.

The only connection which the Federal Government holds with slaves in
a State, arises from that provision of the Constitution which declares
that "No person held to service or labor in one State, under the laws
thereof, escaping into another, shall, in consequence of any law or
regulation therein, be discharged from such service or labor, but
shall be delivered up, on claim of the party to whom such service or
labor may be due."

This being a fundamental law of the Federal Government, it rests
mainly for its execution, as has been held, on the judicial power of
the Union; and so far as the rendition of fugitives from labor has
become a subject of judicial action, the Federal obligation has been
faithfully discharged.

In the formation of the Federal Constitution, care was taken to confer
no power on the Federal Government to interfere with this institution
in the States. In the provision respecting the slave trade, in fixing
the ratio of representation, and providing for the reclamation of
fugitives from labor, slaves were referred to as persons, and in no
other respect are they considered in the Constitution.

We need not refer to the mercenary spirit which introduced the
infamous traffic in slaves, to show the degradation of negro slavery
in our country. This system was imposed upon our colonial settlements
by the mother country, and it is due to truth to say that the
commercial colonies and States were chiefly engaged in the traffic.
But we know as a historical fact, that James Madison, that great and
good man, a leading member in the Federal Convention, was solicitous
to guard the language of that instrument so as not to convey the idea
that there could be property in man.

I prefer the lights of Madison, Hamilton, and Jay, as a means of
construing the Constitution in all its bearings, rather than to look
behind that period, into a traffic which is now declared to be piracy,
and punished with death by Christian nations. I do not like to draw
the sources of our domestic relations from so dark a ground. Our
independence was a great epoch in the history of freedom; and while I
admit the Government was not made especially for the colored race, yet
many of them were citizens of the New England States, and exercised
the rights of suffrage when the Constitution was adopted, and it was
not doubted by any intelligent person that its tendencies would
greatly ameliorate their condition.

Many of the States, on the adoption of the Constitution, or shortly
afterward, took measures to abolish slavery within their respective
jurisdictions; and it is a well-known fact that a belief was cherished
by the leading men, South as well as North, that the institution of
slavery would gradually decline, until it would become extinct. The
increased value of slave labor, in the culture of cotton and sugar,
prevented the realization of this expectation. Like all other
communities and States, the South were influenced by what they
considered to be their own interests.

But if we are to turn our attention to the dark ages of the world, why
confine our view to colored slavery? On the same principles, white men
were made slaves. All slavery has its origin in power, and is against
right.

The power of Congress to establish Territorial Governments, and to
prohibit the introduction of slavery therein, is the next point to be
considered.

After the cession of western territory by Virginia and other States,
to the United States, the public attention was directed to the best
mode of disposing of it for the general benefit. While in attendance
on the Federal Convention, Mr. Madison, in a letter to Edmund
Randolph, dated the 22d April, 1787, says: "Congress are deliberating
on the plan most eligible for disposing of the western territory not
yet surveyed. Some alteration will probably be made in the ordinance
on that subject." And in the same letter he says: "The inhabitants of
the Illinois complain of the land jobbers, &c., who are purchasing
titles among them. Those of St. Vincent's complain of the defective
criminal and civil justice among them, as well as of military
protection." And on the next day he writes to Mr. Jefferson: "The
government of the settlements on the Illinois and Wabash is a subject
very perplexing in itself, and rendered more so by our ignorance of
the many circumstances on which a right judgment depends. The
inhabitants at those places claim protection against the savages, and
some provision for both civil and criminal justice."

In May, 1787, Mr. Edmund Randolph submitted to the Federal Convention
certain propositions, as the basis of a Federal Government, among
which was the following:

"_Resolved_, That provision ought to be made for the admission of
States lawfully arising within the limits of the United States,
whether from a voluntary junction of government and territory or
otherwise, with the consent of a number of voices in the National
Legislature less than the whole."

Afterward, Mr. Madison submitted to the Convention, in order to be
referred to the committee of detail, the following powers, as proper
to be added to those of general legislation:

"To dispose of the unappropriated lands of the United States. To
institute temporary Governments for new States arising therein. To
regulate affairs with the Indians, as well within as without the
limits of the United States."

Other propositions were made in reference to the same subjects, which
it would be tedious to enumerate. Mr. Gouverneur Morris proposed the
following:

"The Legislature shall have power to dispose of and make all needful
rules and regulations respecting the territory or other property
belonging to the United States; and nothing in this Constitution
contained shall be so construed as to prejudice any claims either of
the United States or of any particular State."

This was adopted as a part of the Constitution, with two verbal
alterations--Congress was substituted for Legislature, and the word
_either_ was stricken out.

In the organization of the new Government, but little revenue for a
series of years was expected from commerce. The public lands were
considered as the principal resource of the country for the payment of
the Revolutionary debt. Direct taxation was the means relied on to pay
the current expenses of the Government. The short period that occurred
between the cession of western lands to the Federal Government by
Virginia and other States, and the adoption of the Constitution, was
sufficient to show the necessity of a proper land system and a
temporary Government. This was clearly seen by propositions and
remarks in the Federal Convention, some of which are above cited, by
the passage of the Ordinance of 1787, and the adoption of that
instrument by Congress, under the Constitution, which gave to it
validity.

It will be recollected that the deed of cession of western territory
was made to the United States by Virginia in 1784, and that it
required the territory ceded to be laid out into States, that the land
should be disposed of for the common benefit of the States, and that
all right, title, and claim, as well of soil as of jurisdiction, were
ceded; and this was the form of cession from other States.

On the 13th of July, the Ordinance of 1787 was passed, "for the
government of the United States territory northwest of the river
Ohio," with but one dissenting vote. This instrument provided there
should be organized in the territory not less than three nor more than
five States, designating their boundaries. It was passed while the
Federal Convention was in session, about two months before the
Constitution was adopted by the Convention. The members of the
Convention must therefore have been well acquainted with the
provisions of the Ordinance. It provided for a temporary Government,
as initiatory to the formation of State Governments. Slavery was
prohibited in the territory.

Can any one suppose that the eminent men of the Federal Convention
could have overlooked or neglected a matter so vitally important to
the country, in the organization of temporary Governments for the vast
territory northwest of the river Ohio? In the 3d section of the 4th
article of the Constitution, they did make provision for the admission
of new States, the sale of the public lands, and the temporary
Government of the territory. Without a temporary Government, new
States could not have been formed, nor could the public lands have
been sold.

If the third section were before us now for consideration for the
first time, under the facts stated, I could not hesitate to say there
was adequate legislative power given in it. The power to make all
needful rules and regulations is a power to legislate. This no one
will controvert, as Congress cannot make "rules and regulations,"
except by legislation. But it is argued that the word territory is
used as synonymous with the word land; and that the rules and
regulations of Congress are limited to the disposition of lands and
other property belonging to the United States. That this is not the
true construction of the section appears from the fact that in the
first line of the section "the power to dispose of the public lands"
is given expressly, and, in addition, to make all needful rules and
regulations. The power to dispose of is complete in itself, and
requires nothing more. It authorizes Congress to use the proper means
within its discretion, and any further provision for this purpose
would be a useless verbiage. As a composition, the Constitution is
remarkably free from such a charge.

In the discussion of the power of Congress to govern a Territory, in
the case of the Atlantic Insurance Company _v._ Canter, (1 Peters,
511; 7 Curtis, 685,) Chief Justice Marshall, speaking for the court,
said, in regard to the people of Florida, "they do not, however,
participate in political power; they do not share in the Government
till Florida shall become a State; in the mean time, Florida continues
to be a Territory of the United States, governed by virtue of that
clause in the Constitution which empowers Congress 'to make all
needful rules and regulations respecting the territory or other
property belonging to the United States.'"

And he adds, "perhaps the power of governing a Territory belonging to
the United States, which has not, by becoming a State, acquired the
means of self-government, may result necessarily from the fact that
it is not within the jurisdiction of any particular State, and is
within the power and jurisdiction of the United States. The right to
govern may be the inevitable consequence of the right to acquire
territory; whichever may be the source whence the power is derived,
the possession of it is unquestioned." And in the close of the
opinion, the court say, "in legislating for them [the Territories,]
Congress exercises the combined powers of the General and State
Governments."

Some consider the opinion to be loose and inconclusive; others, that
it is _obiter dicta_; and the last sentence is objected to as
recognising absolute power in Congress over Territories. The learned
and eloquent Wirt, who, in the argument of a cause before the court,
had occasion to cite a few sentences from an opinion of the Chief
Justice, observed, "no one can mistake the style, the words so
completely match the thought."

I can see no want of precision in the language of the Chief Justice;
his meaning cannot be mistaken. He states, first, the third section as
giving power to Congress to govern the Territories, and two other
grounds from which the power may also be implied. The objection seems
to be, that the Chief Justice did not say which of the grounds stated
he considered the source of the power. He did not specifically state
this, but he did say, "whichever may be the source whence the power is
derived, the possession of it is unquestioned." No opinion of the
court could have been expressed with a stronger emphasis; the power in
Congress is unquestioned. But those who have undertaken to criticise
the opinion, consider it without authority, because the Chief Justice
did not designate specially the power. This is a singular objection.
If the power be unquestioned, it can be a matter of no importance on
which ground it is exercised.

The opinion clearly was not _obiter dicta_. The turning point in the
case was, whether Congress had power to authorize the Territorial
Legislature of Florida to pass the law under which the Territorial
court was established, whose decree was brought before this court for
revision. The power of Congress, therefore, was the point in issue.

The word "territory," according to Worcester, "means land, country, a
district of country under a temporary Government." The words
"territory or other property," as used, do imply, from the use of the
pronoun other, that territory was used as descriptive of land; but
does it follow that it was not used also as descriptive of a district
of country? In both of these senses it belonged to the United
States--as land, for the purpose of sale; as territory, for the
purpose of government.

But, if it be admitted that the word territory as used means land, and
nothing but land, the power of Congress to organize a temporary
Government is clear. It has power to make all needful regulations
respecting the public lands, and the extent of those "needful
regulations" depends upon the direction of Congress, where the means
are appropriate to the end, and do not conflict with any of the
prohibitions of the Constitution. If a temporary Government be deemed
needful, necessary, requisite, or is wanted, Congress has power to
establish it. This court says, in McCulloch _v._ The State of
Maryland, (4 Wheat., 316,) "If a certain means to carry into effect
any of the powers expressly given by the Constitution to the
Government of the Union be an appropriate measure, not prohibited by
the Constitution, the degree of its necessity is a question of
legislative discretion, not of judicial cognizance."

The power to establish post offices and post roads gives power to
Congress to make contracts for the transportation of the mail, and to
punish all who commit depredations upon it in its transit, or at its
places of distribution. Congress has power to regulate commerce, and,
in the exercise of its discretion, to lay an embargo, which suspends
commerce; so, under the same power, harbors, lighthouses, breakwaters,
&c., are constructed.

Did Chief Justice Marshall, in saying that Congress governed a
Territory, by exercising the combined powers of the Federal and State
Governments, refer to unlimited discretion? A Government which can
make white men slaves? Surely, such a remark in the argument must have
been inadvertently uttered. On the contrary, there is no power in the
Constitution by which Congress can make either white or black men
slaves. In organizing the Government of a Territory, Congress is
limited to means appropriate to the attainment of the constitutional
object. No powers can be exercised which are prohibited by the
Constitution, or which are contrary to its spirit; so that, whether
the object may be the protection of the persons and property of
purchasers of the public lands, or of communities who have been
annexed to the Union by conquest or purchase, they are initiatory to
the establishment of State Governments, and no more power can be
claimed or exercised than is necessary to the attainment of the end.
This is the limitation of all the Federal powers.

But Congress has no power to regulate the internal concerns of a
State, as of a Territory; consequently, in providing for the
Government of a Territory, to some extent, the combined powers of the
Federal and State Governments are necessarily exercised.

If Congress should deem slaves or free colored persons injurious to
the population of a free Territory, as conducing to lessen the value
of the public lands, or on any other ground connected with the public
interest, they have the power to prohibit them from becoming settlers
in it. This can be sustained on the ground of a sound national policy,
which is so clearly shown in our history by practical results, that it
would seem no considerate individual can question it. And, as regards
any unfairness of such a policy to our Southern brethren, as urged in
the argument, it is only necessary to say that, with one-fourth of the
Federal population of the Union, they have in the slave States a
larger extent of fertile territory than is included in the free
States; and it is submitted, if masters of slaves be restricted from
bringing them into free territory, that the restriction on the free
citizens of non-slaveholding States, by bringing slaves into free
territory, is four times greater than that complained of by the South.
But, not only so; some three or four hundred thousand holders of
slaves, by bringing them into free territory, impose a restriction on
twenty millions of the free States. The repugnancy to slavery would
probably prevent fifty or a hundred freemen from settling in a slave
Territory, where one slaveholder would be prevented from settling in a
free Territory.

This remark is made in answer to the argument urged, that a
prohibition of slavery in the free Territories is inconsistent with
the continuance of the Union. Where a Territorial Government is
established in a slave Territory, it has uniformly remained in that
condition until the people form a State Constitution; the same course
where the Territory is free, both parties acting in good faith, would
be attended with satisfactory results.

The sovereignty of the Federal Government extends to the entire limits
of our territory. Should any foreign power invade our jurisdiction, it
would be repelled. There is a law of Congress to punish our citizens
for crimes committed in districts of country where there is no
organized Government. Criminals are brought to certain Territories or
States, designated in the law, for punishment. Death has been
inflicted in Arkansas and in Missouri, on individuals, for murders
committed beyond the limit of any organized Territory or State; and no
one doubts that such a jurisdiction was rightfully exercised. If there
be a right to acquire territory, there necessarily must be an implied
power to govern it. When the military force of the Union shall conquer
a country, may not Congress provide for the government of such
country? This would be an implied power essential to the acquisition
of new territory. This power has been exercised, without doubt of its
constitutionality, over territory acquired by conquest and purchase.

And when there is a large district of country within the United
States, and not within any State Government, if it be necessary to
establish a temporary Government to carry out a power expressly vested
in Congress--as the disposition of the public lands--may not such
Government be instituted by Congress? How do we read the Constitution?
Is it not a practical instrument?

In such cases, no implication of a power can arise which is inhibited
by the Constitution, or which may be against the theory of its
construction. As my opinion rests on the third section, these remarks
are made as an intimation that the power to establish a temporary
Government may arise, also, on the other two grounds stated in the
opinion of the court in the insurance case, without weakening the
third section.

I would here simply remark, that the Constitution was formed for our
whole country. An expansion or contraction of our territory required
no change in the fundamental law. When we consider the men who laid
the foundation of our Government and carried it into operation, the
men who occupied the bench, who filled the halls of legislation and
the Chief Magistracy, it would seem, if any question could be settled
clear of all doubt, it was the power of Congress to establish
Territorial Governments. Slavery was prohibited in the entire
Northwestern Territory, with the approbation of leading men, South and
North; but this prohibition was not retained when this ordinance was
adopted for the government of Southern Territories, where slavery
existed. In a late republication of a letter of Mr. Madison, dated
November 27, 1819, speaking of this power of Congress to prohibit
slavery in a Territory, he infers there is no such power, from the
fact that it has not been exercised. This is not a very satisfactory
argument against any power, as there are but few, if any, subjects on
which the constitutional powers of Congress are exhausted. It is true,
as Mr. Madison states, that Congress, in the act to establish a
Government in the Mississippi Territory, prohibited the importation of
slaves into it from foreign parts; but it is equally true, that in the
act erecting Louisiana into two Territories, Congress declared, "it
shall not be lawful for any person to bring into Orleans Territory,
from any port or place within the limits of the United States, any
slave which shall have been imported since 1798, or which may
hereafter be imported, except by a citizen of the United States who
settles in the Territory, under the penalty of the freedom of such
slave." The inference of Mr. Madison, therefore, against the power of
Congress, is of no force, as it was founded on a fact supposed, which
did not exist.

It is refreshing to turn to the early incidents of our history, and
learn wisdom from the acts of the great men who have gone to their
account. I refer to a report in the House of Representatives, by John
Randolph, of Roanoke, as chairman of a committee, in March,
1803--fifty-four years ago. From the Convention held at Vincennes, in
Indiana, by their President, and from the people of the Territory, a
petition was presented to Congress, praying the suspension of the
provision which prohibited slavery in that Territory. The report
stated "that the rapid population of the State of Ohio sufficiently
evinces, in the opinion of your committee, that the labor of slaves is
not necessary to promote the growth and settlement of colonies in that
region. That this labor, demonstrably the dearest of any, can only be
employed to advantage in the cultivation of products more valuable
than any known to that quarter of the United States; that the
committee deem it highly dangerous and inexpedient to impair a
provision wisely calculated to promote the happiness and prosperity of
the Northwestern country, and to give strength and security to that
extensive frontier. In the salutary operation of this sagacious and
benevolent restraint, it is believed that the inhabitants will, at no
very distant day, find ample remuneration for a temporary privation of
labor and of emigration." (1 vol. State Papers, Public Lands, 160.)

The judicial mind of this country, State and Federal, has agreed on no
subject, within its legitimate action, with equal unanimity, as on the
power of Congress to establish Territorial Governments. No court,
State or Federal, no judge or statesman, is known to have had any
doubts on this question for nearly sixty years after the power was
exercised. Such Governments have been established from the sources of
the Ohio to the Gulf of Mexico, extending to the Lakes on the north
and the Pacific Ocean on the west, and from the lines of Georgia to
Texas.

Great interests have grown up under the Territorial laws over a
country more than five times greater in extent than the original
thirteen States; and these interests, corporate or otherwise, have
been cherished and consolidated by a benign policy, without any one
supposing the law-making power had united with the Judiciary, under
the universal sanction of the whole country, to usurp a jurisdiction
which did not belong to them. Such a discovery at this late date is
more extraordinary than anything which has occurred in the judicial
history of this or any other country. Texas, under a previous
organization, was admitted as a State; but no State can be admitted
into the Union which has not been organized under some form of
government. Without temporary Governments, our public lands could not
have been sold, nor our wildernesses reduced to cultivation, and the
population protected; nor could our flourishing States, West and
South, have been formed.

What do the lessons of wisdom and experience teach, under such
circumstances, if the new light, which has so suddenly and
unexpectedly burst upon us, be true? Acquiescence; acquiescence under
a settled construction of the Constitution for sixty years, though it
may be erroneous; which has secured to the country an advancement and
prosperity beyond the power of computation.

An act of James Madison, when President, forcibly illustrates this
policy. He had made up his opinion that Congress had no power under
the Constitution to establish a National Bank. In 1815, Congress
passed a bill to establish a bank. He vetoed the bill, on objections
other than constitutional. In his message, he speaks as a wise
statesman and Chief Magistrate, as follows:

"Waiving the question of the constitutional authority of the
Legislature to establish an incorporated bank, as being precluded, in
my judgment, by the repeated recognitions under varied circumstances
of the validity of such an institution, in acts of the Legislative,
Executive, and Judicial branches of the Government, accompanied by
indications, in different modes, of a concurrence of the general will
of the nation."

Has this impressive lesson of practical wisdom become lost to the
present generation?

If the great and fundamental principles of our Government are never to
be settled, there can be no lasting prosperity. The Constitution will
become a floating waif on the billows of popular excitement.

The prohibition of slavery north of thirty-six degrees thirty minutes,
and of the State of Missouri, contained in the act admitting that
State into the Union, was passed by a vote of 134, in the House of
Representatives, to 42. Before Mr. Monroe signed the act, it was
submitted by him to his Cabinet, and they held the restriction of
slavery in a Territory to be within the constitutional powers of
Congress. It would be singular, if in 1804 Congress had power to
prohibit the introduction of slaves in Orleans Territory from any
other part of the Union, under the penalty of freedom to the slave, if
the same power embodied in the Missouri compromise, could not be
exercised in 1820.

But this law of Congress, which prohibits slavery north of Missouri
and of thirty-six degrees thirty minutes, is declared to have been
null and void by my brethren. And this opinion is founded mainly, as I
understand, on the distinction drawn between the ordinance of 1787 and
the Missouri compromise line. In what does the distinction consist?
The ordinance, it is said, was a compact entered into by the
confederated States before the adoption of the Constitution; and that
in the cession of territory authority was given to establish a
Territorial Government.

It is clear that the ordinance did not go into operation by virtue of
the authority of the Confederation, but by reason of its modification
and adoption by Congress under the Constitution. It seems to be
supposed, in the opinion of the court, that the articles of cession
placed it on a different footing from territories subsequently
acquired. I am unable to perceive the force of this distinction. That
the ordinance was intended for the government of the Northwestern
Territory, and was limited to such Territory, is admitted. It was
extended to Southern Territories, with modifications, by acts of
Congress, and to some Northern Territories. But the ordinance was made
valid by the act of Congress, and without such act could have been of
no force. It rested for its validity on the act of Congress, the same,
in my opinion, as the Missouri compromise line.

If Congress may establish a Territorial Government in the exercise of
its discretion, it is a clear principle that a court cannot control
that discretion. This being the case, I do not see on what ground the
act is held to be void. It did not purport to forfeit property, or
take it for public purposes. It only prohibited slavery; in doing
which, it followed the ordinance of 1787.

I will now consider the fourth head, which is: "The effect of taking
slaves into a State or Territory, and so holding them, where slavery
is prohibited."

If the principle laid down in the case of Prigg _v._ The State of
Pennsylvania is to be maintained, and it is certainly to be maintained
until overruled, as the law of this court, there can be no difficulty
on this point. In that case, the court says: "The state of slavery is
deemed to be a mere municipal regulation, founded upon and limited to
the range of the territorial laws." If this be so, slavery can exist
nowhere except under the authority of law, founded on usage having the
force of law, or by statutory recognition. And the court further says:
"It is manifest, from this consideration, that if the Constitution had
not contained the clause requiring the rendition of fugitives from
labor, every non-slaveholding State in the Union would have been at
liberty to have declared free all runaway slaves coming within its
limits, and to have given them entire immunity and protection against
the claims of their masters."

Now, if a slave abscond, he may be reclaimed; but if he accompany his
master into a State or Territory where slavery is prohibited, such
slave cannot be said to have left the service of his master where his
services were legalized. And if slavery be limited to the range of the
territorial laws, how can the slave be coerced to serve in a State or
Territory, not only without the authority of law, but against its
express provisions? What gives the master the right to control the
will of his slave? The local law, which exists in some form. But where
there is no such law, can the master control the will of the slave by
force? Where no slavery exists, the presumption, without regard to
color, is in favor of freedom. Under such a jurisdiction, may the
colored man be levied on as the property of his master by a creditor?
On the decease of the master, does the slave descend to his heirs as
property? Can the master sell him? Any one or all of these acts may be
done to the slave, where he is legally held to service. But where the
law does not confer this power, it cannot be exercised.

Lord Mansfield held that a slave brought into England was free. Lord
Stowell agreed with Lord Mansfield in this respect, and that the slave
could not be coerced in England; but on her voluntary return to
Antigua, the place of her slave domicil, her former status attached.
The law of England did not prohibit slavery, but did not authorize it.
The jurisdiction which prohibits slavery is much stronger in behalf of
the slave within it, than where it only does not authorize it.

By virtue of what law is it, that a master may take his slave into
free territory, and exact from him the duties of a slave? The law of
the Territory does not sanction it. No authority can be claimed under
the Constitution of the United States, or any law of Congress. Will it
be said that the slave is taken as property, the same as other
property which the master may own? To this I answer, that colored
persons are made property by the law of the State, and no such power
has been given to Congress. Does the master carry with him the law of
the State from which he removes into the Territory? and does that
enable him to coerce his slave in the Territory? Let us test this
theory. If this may be done by a master from one slave State, it may
be done by a master from every other slave State. This right is
supposed to be connected with the person of the master, by virtue of
the local law. Is it transferable? May it be negotiated, as a
promissory note or bill of exchange? If it be assigned to a man from a
free State, may he coerce the slave by virtue of it? What shall this
thing be denominated? Is it personal or real property? Or is it an
indefinable fragment of sovereignty, which every person carries with
him from his late domicil? One thing is certain, that its origin has
been very recent, and it is unknown to the laws of any civilized
country.

A slave is brought to England from one of its islands, where slavery
was introduced and maintained by the mother country. Although there is
no law prohibiting slavery in England, yet there is no law authorizing
it; and, for near a century, its courts have declared that the slave
there is free from the coercion of the master. Lords Mansfield and
Stowell agree upon this point, and there is no dissenting authority.

There is no other description of property which was not protected in
England, brought from one of its slave islands. Does not this show
that property in a human being does not arise from nature or from the
common law, but, in the language of this court, "it is a mere
municipal regulation, founded upon and limited to the range of the
territorial laws?" This decision is not a mere argument, but it is the
end of the law, in regard to the extent of slavery. Until it shall be
overturned, it is not a point for argument; it is obligatory on myself
and my brethren, and on all judicial tribunals over which this court
exercises an appellate power.

It is said the Territories are common property of the States, and that
every man has a right to go there with his property. This is not
controverted. But the court say a slave is not property beyond the
operation of the local law which makes him such. Never was a truth
more authoritatively and justly uttered by man. Suppose a master of a
slave in a British island owned a million of property in England;
would that authorize him to take his slaves with him to England? The
Constitution, in express terms, recognises the _status_ of slavery as
founded on the municipal law: "No person held to service or labor in
one State, _under the laws thereof_, escaping into another, shall,"
&c. Now, unless the fugitive escape on a place where, by the municipal
law, he is held to labor, this provision affords no remedy to the
master. What can be more conclusive than this? Suppose a slave escape
from a Territory where slavery is not authorized by law, can he be
reclaimed?

In this case, a majority of the court have said that a slave may be
taken by his master into a Territory of the United States, the same as
a horse, or any other kind of property. It is true, this was said by
the court, as also many other things, which are of no authority.
Nothing that has been said by them, which has not a direct bearing on
the jurisdiction of the court, against which they decided, can be
considered as authority. I shall certainly not regard it as such. The
question of jurisdiction, being before the court, was decided by them
authoritatively, but nothing beyond that question. A slave is not a
mere chattel. He bears the impress of his Maker, and is amenable to
the laws of God and man; and he is destined to an endless existence.

Under this head I shall chiefly rely on the decisions of the Supreme
Courts of the Southern States, and especially of the State of
Missouri.

In the first and second sections of the sixth article of the
Constitution of Illinois, it is declared that neither slavery nor
involuntary servitude shall hereafter be introduced into this State,
otherwise than for the punishment of crimes whereof the party shall
have been duly convicted; and in the second section it is declared
that any violation of this article shall effect the emancipation of
such person from his obligation to service. In Illinois, a right of
transit through the State is given the master with his slaves. This is
a matter which, as I suppose, belongs exclusively to the State.

The Supreme Court of Illinois, in the case of Jarrot _v._ Jarrot, (2
Gilmer, 7,) said:

"After the conquest of this Territory by Virginia, she ceded it to the
United States, and stipulated that the titles and possessions, rights
and liberties, of the French settlers, should be guarantied to them.
This, it has been contended, secured them in the possession of those
negroes as slaves which they held before that time, and that neither
Congress nor the Convention had power to deprive them of it; or, in
other words, that the ordinance and Constitution should not be so
interpreted and understood as applying to such slaves, when it is
therein declared that there shall be neither slavery nor involuntary
servitude in the Northwest Territory, nor in the State of Illinois,
otherwise than in the punishment of crimes. But it was held that those
rights could not be thus protected, but must yield to the ordinance
and Constitution."

The first slave case decided by the Supreme Court of Missouri,
contained in the reports, was Winny _v._ Whitesides, (1 Missouri Rep.,
473,) at October term, 1824. It appeared that, more than twenty-five
years before, the defendant, with her husband, had removed from
Carolina to Illinois, and brought with them the plaintiff; that they
continued to reside in Illinois three or four years, retaining the
plaintiff as a slave; after which, they removed to Missouri, taking
her with them.

The court held, that if a slave be detained in Illinois until he be
entitled to freedom, the right of the owner does not revive when he
finds the negro in a slave State.

That when a slave is taken to Illinois by his owner, who takes up his
residence there, the slave is entitled to freedom.

In the case of Lagrange [Transcriber's Note: La Grange] _v._ Chouteau,
(2 Missouri Rep., 20, at May term, 1828,) it was decided that the
ordinance of 1787 was intended as a fundamental law for those who may
choose to live under it, rather than as a penal statute.

That any sort of residence contrived or permitted by the legal owner
of the slave, upon the faith of secret trusts or contracts, in order
to defeat or evade the ordinance, and thereby introduce slavery _de
facto_, would entitle such slave to freedom.

In Julia _v._ McKinney, (3 Missouri Rep., 279,) it was held, where a
slave was settled in the State of Illinois, but with an intention on
the part of the owner to be removed at some future day, that hiring
said slave to a person to labor for one or two days, and receiving the
pay for the hire, the slave is entitled to her freedom, under the
second section of the sixth article of the Constitution of Illinois.

Rachel _v._ Walker (4 Missouri Rep., 350, June term, 1836) is a case
involving, in every particular, the principles of the case before us.
Rachel sued for her freedom; and it appeared that she had been bought
as a slave in Missouri, by Stockton, an officer of the army, taken to
Fort Snelling, where he was stationed, and she was retained there as a
slave a year; and then Stockton removed to Prairie du Chien, taking
Rachel with him as a slave, where he continued to hold her three
years, and then he took her to the State of Missouri, and sold her as
a slave.

"Fort Snelling was admitted to be on the west side of the Mississippi
river, and north of the State of Missouri, in the territory of the
United States. That Prairie du Chien was in the Michigan Territory, on
the east side of the Mississippi river. Walker, the defendant, held
Rachel under Stockton."

The court said, in this case:

"The officer lived in Missouri Territory, at the time he bought the
slave; he sent to a slaveholding country and procured her; this was
his voluntary act, done without any other reason than that of his
convenience; and he and those claiming under him must be holden to
abide the consequences of introducing slavery both in Missouri
Territory and Michigan, contrary to law; and on that ground Rachel was
declared to be entitled to freedom."

In answer to the argument that, as an officer of the army, the master
had a right to take his slave into free territory, the court said no
authority of law or the Government compelled him to keep the plaintiff
there as a slave.

"Shall it be said, that because an officer of the army owns slaves in
Virginia, that when, as officer and soldier, he is required to take
the command of a fort in the non-slaveholding States or Territories,
he thereby has a right to take with him as many slaves as will suit
his interests or convenience? It surely cannot be law. If this be
true, the court say, then it is also true that the convenience or
supposed convenience of the officer repeals, as to him and others who
have the same character, the ordinance and the act of 1821, admitting
Missouri into the Union, and also the prohibition of the several laws
and Constitutions of the non-slaveholding States."

In Wilson _v._ Melvin, (4 Missouri R., 592,) it appeared the defendant
left Tennessee with an intention of residing in Illinois, taking his
negroes with him. After a month's stay in Illinois, he took his
negroes to St. Louis, and hired them, then returned to Illinois. On
these facts, the inferior court instructed the jury that the defendant
was a sojourner in Illinois. This the Supreme Court held was error,
and the judgment was reversed.

The case of Dred Scott _v._ Emerson (15 Missouri R., 682, March term,
1852) will now be stated. This case involved the identical question
before us, Emerson having, since the hearing, sold the plaintiff to
Sandford, the defendant.

Two of the judges ruled the case, the Chief Justice dissenting. It
cannot be improper to state the grounds of the opinion of the court,
and of the dissent.

The court say: "Cases of this kind are not strangers in our court.
Persons have been frequently here adjudged to be entitled to their
freedom, on the ground that their masters held them in slavery in
Territories or States in which that institution is prohibited. From
the first case decided in our court, it might be inferred that this
result was brought about by a presumed assent of the master, from the
fact of having voluntarily taken his slave to a place where the
relation of master and slave did not exist. But subsequent cases base
the right to 'exact the forfeiture of emancipation,' as they term it,
on the ground, it would seem, that it was the duty of the courts of
this State to carry into effect the Constitution and laws of other
States and Territories, regardless of the rights, the policy, or the
institutions, of the people of this State."

And the court say that the States of the Union, in their municipal
concerns, are regarded as foreign to each other; that the courts of
one State do not take notice of the laws of other States, unless
proved as facts, and that every State has the right to determine how
far its comity to other States shall extend; and it is laid down, that
when there is no act of manumission decreed to the free State, the
courts of the slave States cannot be called to give effect to the law
of the free State. Comity, it alleges, between States, depends upon
the discretion of both, which may be varied by circumstances. And it
is declared by the court, "that times are not as they were when the
former decisions on this subject were made." Since then, not only
individuals but States have been possessed with a dark and fell spirit
in relation to slavery, whose gratification is sought in the pursuit
of measures whose inevitable consequence must be the overthrow and
destruction of our Government. Under such circumstances, it does not
behoove the State of Missouri to show the least countenance to any
measure which might gratify this spirit. She is willing to assume her
full responsibility for the existence of slavery within her limits,
nor does she seek to share or divide it with others.

Chief Justice Gamble dissented from the other two judges. He says:

"In every slaveholding State in the Union, the subject of emancipation
is regulated by statute; and the forms are prescribed in which it
shall be effected. Whenever the forms required by the laws of the
State in which the master and slave are resident are complied with,
the emancipation is complete, and the slave is free. If the right of
the person thus emancipated is subsequently drawn in question in
another State, it will be ascertained and determined by the law of the
State in which the slave and his former master resided; and when it
appears that such law has been complied with, the right to freedom
will be fully sustained in the courts of all the slaveholding States,
although the act of emancipation may not be in the form required by
law in which the court sits.

"In all such cases, courts continually administer the law of the
country where the right was acquired; and when that law becomes known
to the court, it is just as much a matter of course to decide the
rights of the parties according to its requirements, as it is to
settle the title of real estate situated in our State by its own
laws."

This appears to me a most satisfactory answer to the argument of the
court. Chief Justice continues:

"The perfect equality of the different States lies at the foundation
of the Union. As the institution of slavery in the States is one over
which the Constitution of the United States gives no power to the
General Government, it is left to be adopted or rejected by the
several States, as they think best; nor can any one State, or number
of States, claim the right to interfere with any other State upon the
question of admitting or excluding this institution.

"A citizen of Missouri, who removes with his slave to Illinois, has
no right to complain that the fundamental law of that State to which
he removes, and in which he makes his residence, dissolves the
relation between him and his slave. It is as much his own voluntary
act, as if he had executed a deed of emancipation. No one can pretend
ignorance of this constitutional provision, and," he says, "the
decisions which have heretofore been made in this State, and in many
other slaveholding States, give effect to this and other similar
provisions, on the ground that the master, by making the free State
the residence of his slave, has submitted his right to the operation
of the law of such State; and this," he says, "is the same in law as a
regular deed of emancipation."

He adds:

"I regard the question as conclusively settled by repeated
adjudications of this court, and, if I doubted or denied the propriety
of those decisions, I would not feel myself any more at liberty to
overturn them, than I would any other series of decisions by which the
law of any other question was settled. There is with me," he says,
"nothing in the law relating to slavery which distinguishes it from
the law on any other subject, or allows any more accommodation to the
temporary public excitements which are gathered around it."

"In this State," he says, "it has been recognised from the beginning
of the Government as a correct position in law, that a master who
takes his slave to reside in a State or Territory where slavery is
prohibited, thereby emancipates his slave." These decisions, which
come down to the year 1837, seemed to have so fully settled the
question, that since that time there has been no case bringing it
before the court for any reconsideration, until the present. In the
case of Winny _v._ Whitesides, the question was made in the argument,
"whether one nation would execute the penal laws of another," and the
court replied in this language, (Huberus, quoted in 4 Dallas,) which
says, "personal rights or disabilities obtained or communicated by the
laws of any particular place are of a nature which accompany the
person wherever he goes;" and the Chief Justice observed, in the case
of Rachel _v._ Walker, the act of Congress called the Missouri
compromise was held as operative as the ordinance of 1787.

When Dred Scott, his wife and children, were removed from Fort
Snelling to Missouri, in 1838, they were free, as the law was then
settled, and continued for fourteen years afterwards, up to 1852, when
the above decision was made. Prior to this, for nearly thirty years,
as Chief Justice Gamble declares, the residence of a master with his
slave in the State of Illinois, or in the Territory north of Missouri,
where slavery was prohibited by the act called the Missouri
compromise, would manumit the slave as effectually as if he had
executed a deed of emancipation; and that an officer of the army who
takes his slave into that State or Territory, and holds him there as a
slave, liberates him the same as any other citizen--and down to the
above time it was settled by numerous and uniform decisions; and that
on the return of the slave to Missouri, his former condition of
slavery did not attach. Such was the settled law of Missouri until the
decision of Scott and Emerson.

In the case of Sylvia _v._ Kirby, (17 Misso. Rep., 434,) the court
followed the above decision, observing it was similar in all respects
to the case of Scott and Emerson.

This court follows the established construction of the statutes of a
State by its Supreme Court. Such a construction is considered as a
part of the statute, and we follow it to avoid two rules of property
in the same State. But we do not follow the decisions of the Supreme
Court of a State beyond a statutory construction as a rule of decision
for this court. State decisions are always viewed with respect and
treated as authority; but we follow the settled construction of the
statutes, not because it is of binding authority, but in pursuance of
a rule of judicial policy.

But there is no pretence that the case of Dred Scott _v._ Emerson
turned upon the construction of a Missouri statute; nor was there any
established rule of property which could have rightfully influenced
the decision. On the contrary, the decision overruled the settled law
for near thirty years.

This is said by my brethren to be a Missouri question; but there is
nothing which gives it this character, except that it involves the
right to persons claimed as slaves who reside in Missouri, and the
decision was made by the Supreme Court of that State. It involves a
right claimed under an act of Congress and the Constitution of
Illinois, and which cannot be decided without the consideration and
construction of those laws. But the Supreme Court of Missouri held, in
this case, that it will not regard either of those laws, without which
there was no case before it; and Dred Scott, having been a slave,
remains a slave. In this respect it is admitted this is a Missouri
question--a case which has but one side, if the act of Congress and
the Constitution of Illinois are not recognised.

And does such a case constitute a rule of decision for this court--a
case to be followed by this court? The course of decision so long and
so uniformly maintained established a comity or law between Missouri
and the free States and Territories where slavery was prohibited,
which must be somewhat regarded in this case. Rights sanctioned for
twenty-eight years ought not and cannot be repudiated, with any
semblance of justice, by one or two decisions, influenced, as
declared, by a determination to counteract the excitement against
slavery in the free States.

The courts of Louisiana having held, for a series of years, that where
a master took his slave to France, or any free State, he was entitled
to freedom, and that on bringing him back the status of slavery did
not attach, the Legislature of Louisiana declared by an act that the
slave should not be made free under such circumstances. This regulated
the rights of the master from the time the act took effect. But the
decision of the Missouri court, reversing a former decision, affects
all previous decisions, technically, made on the same principles,
unless such decisions are protected by the lapse of time or the
statute of limitations. Dred Scott and his family, beyond all
controversy, were free under the decisions made for twenty-eight
years, before the case of Scott _v._ Emerson. This was the undoubted
law of Missouri for fourteen years after Scott and his family were
brought back to that State. And the grave question arises, whether
this law may be so disregarded as to enslave free persons. I am
strongly inclined to think that a rule of decision so well settled as
not to be questioned, cannot be annulled by a single decision of the
court. Such rights may be inoperative under the decision in future;
but I cannot well perceive how it can have the same effect in prior
cases.

It is admitted, that when a former decision is reversed, the technical
effect of the judgment is to make all previous adjudications on the
same question erroneous. But the case before us was not that the law
had been erroneously construed, but that, under the circumstances
which then existed, that law would not be recognised; and the reason
for this is declared to be the excitement against the institution of
slavery in the free States. While I lament this excitement as much as
any one, I cannot assent that it shall be made a basis of judicial
action.

In 1816, the common law, by statute, was made a part of the law of
Missouri; and that includes the great principles of international law.
These principles cannot be abrogated by judicial decisions. It will
require the same exercise of power to abolish the common law, as to
introduce it. International law is founded in the opinions generally
received and acted on by civilized nations, and enforced by moral
sanctions. It becomes a more authoritative system when it results from
special compacts, founded on modified rules, adapted to the exigencies
of human society; it is in fact an international morality, adapted to
the best interests of nations. And in regard to the States of this
Union, on the subject of slavery, it is eminently fitted for a rule of
action, subject to the Federal Constitution. "The laws of nations are
but the natural rights of man applied to nations." (Vattel.)

If the common law have the force of a statutory enactment in Missouri,
it is clear, as it seems to me, that a slave who, by a residence in
Illinois in the service of his master, becomes entitled to his
freedom, cannot again be reduced to slavery by returning to his former
domicil in a slave State. It is unnecessary to say what legislative
power might do by a general act in such a case, but it would be
singular if a freeman could be made a slave by the exercise of a
judicial discretion. And it would be still more extraordinary if this
could be done, not only in the absence of special legislation, but in
a State where the common law is in force.

It is supposed by some, that the third article in the treaty of
cession of Louisiana to this country, by France, in 1803, may have
some bearing on this question. The article referred to provides, "that
the inhabitants of the ceded territory shall be incorporated into the
Union, and enjoy all the advantages of citizens of the United States,
and in the mean time they shall be maintained and protected in the
free enjoyment of their liberty, property, and the religion they
profess."

As slavery existed in Louisiana at the time of the cession, it is
supposed this is a guaranty that there should be no change in its
condition.

The answer to this is, in the first place, that such a subject does
not belong to the treaty-making power; and any such arrangement would
have been nugatory. And, in the second place, by no admissible
construction can the guaranty be carried further than the protection
of property in slaves at that time in the ceded territory. And this
has been complied with. The organization of the slave States of
Louisiana, Missouri, and Arkansas, embraced every slave in Louisiana
at the time of the cession. This removes every ground of objection
under the treaty. There is therefore no pretence, growing out of the
treaty, that any part of the territory of Louisiana, as ceded, beyond
the organized States, is slave territory.

Under the fifth head, we were to consider whether the status of
slavery attached to the plaintiff and wife, on their return to
Missouri.

This doctrine is not asserted in the late opinion of the Supreme Court
of Missouri, and up to 1852 the contrary doctrine was uniformly
maintained by that court.

In its late decision, the court say that it will not give effect in
Missouri to the laws of Illinois, or the law of Congress called the
Missouri compromise. This was the effect of the decision, though its
terms were, that the court would not take notice, judicially, of those
laws.

In 1851, the Court of Appeals of South Carolina recognised the
principle, that a slave, being taken to a free State, became free.
(Commonwealth _v._ Pleasants, 10 Leigh Rep., 697.) In Betty _v._
Horton, the Court of Appeals held that the freedom of the slave was
acquired by the action of the laws of Massachusetts, by the said slave
being taken there. (5 Leigh Rep., 615.)

The slave States have generally adopted the rule, that where the
master, by a residence with his slave in a State or Territory where
slavery is prohibited, the slave was entitled to his freedom
everywhere. This was the settled doctrine of the Supreme Court of
Missouri. It has been so held in Mississippi, in Virginia, in
Louisiana, formerly in Kentucky, Maryland, and in other States.

The law, where a contract is made and is to be executed, governs it.
This does not depend upon comity, but upon the law of the contract.
And if, in the language of the Supreme Court of Missouri, the master,
by taking his slave to Illinois, and employing him there as a slave,
emancipates him as effectually as by a deed of emancipation, is it
possible that such an act is not matter for adjudication in any slave
State where the master may take him? Does not the master assent to the
law, when he places himself under it in a free State?

The States of Missouri and Illinois are bounded by a common line. The
one prohibits slavery, the other admits it. This has been done by the
exercise of that sovereign power which appertains to each. We are
bound to respect the institutions of each, as emanating from the
voluntary action of the people. Have the people of either any right to
disturb the relations of the other? Each State rests upon the basis of
its own sovereignty, protected by the Constitution. Our Union has been
the foundation of our prosperity and national glory. Shall we not
cherish and maintain it? This can only be done by respecting the legal
rights of each State.

If a citizen of a free State shall entice or enable a slave to escape
from the service of his master, the law holds him responsible, not
only for the loss of the slave, but he is liable to be indicted and
fined for the misdemeanor. And I am bound here to say, that I have
never found a jury in the four States which constitute my circuit,
which have not sustained this law, where the evidence required them to
sustain it. And it is proper that I should also say, that more cases
have arisen in my circuit, by reason of its extent and locality, than
in all other parts of the Union. This has been done to vindicate the
sovereign rights of the Southern States, and protect the legal
interests of our brethren of the South.

Let these facts be contrasted with the case now before the court.
Illinois has declared in the most solemn and impressive form that
there shall be neither slavery nor involuntary servitude in that
State, and that any slave brought into it, with a view of becoming a
resident, shall be emancipated. And effect has been given to this
provision of the Constitution by the decision of the Supreme Court of
that State. With a full knowledge of these facts, a slave is brought
from Missouri to Rock Island, in the State of Illinois, and is
retained there as a slave for two years, and then taken to Fort
Snelling, where slavery is prohibited by the Missouri compromise act,
and there he is detained two years longer in a state of slavery.
Harriet, his wife, was also kept at the same place four years as a
slave, having been purchased in Missouri. They were then removed to
the State of Missouri, and sold as slaves, and in the action before us
they are not only claimed as slaves, but a majority of my brethren
have held that on their being returned to Missouri the status of
slavery attached to them.

I am not able to reconcile this result with the respect due to the
State of Illinois. Having the same rights of sovereignty as the State
of Missouri in adopting a Constitution, I can perceive no reason why
the institutions of Illinois should not receive the same consideration
as those of Missouri. Allowing to my brethren the same right of
judgment that I exercise myself, I must be permitted to say that it
seems to me the principle laid down will enable the people of a slave
State to introduce slavery into a free State, for a longer or shorter
time, as may suit their convenience; and by returning the slave to the
State whence he was brought, by force or otherwise, the status of
slavery attaches, and protects the rights of the master, and defies
the sovereignty of the free State. There is no evidence before us that
Dred Scott and his family returned to Missouri voluntarily. The
contrary is inferable from the agreed case: "In the year 1838, Dr.
Emerson removed the plaintiff and said Harriet, and their daughter
Eliza, from Fort Snelling to the State of Missouri, where they have
ever since resided." This is the agreed case; and can it be inferred
from this that Scott and family returned to Missouri voluntarily? He
was removed; which shows that he was passive, as a slave, having
exercised no volition on the subject. He did not resist the master by
absconding or force. But that was not sufficient to bring him within
Lord Stowell's decision; he must have acted voluntarily. It would be
a mockery of law and an outrage on his rights to coerce his return,
and then claim that it was voluntary, and on that ground that his
former status of slavery attached.

If the decision be placed on this ground, it is a fact for a jury to
decide, whether the return was voluntary, or else the fact should be
distinctly admitted. A presumption against the plaintiff in this
respect, I say with confidence, is not authorized from the facts
admitted.

In coming to the conclusion that a voluntary return by Grace to her
former domicil, slavery attached, Lord Stowell took great pains to
show that England forced slavery upon her colonies, and that it was
maintained by numerous acts of Parliament and public policy, and, in
short, that the system of slavery was not only established by Great
Britain in her West Indian colonies, but that it was popular and
profitable to many of the wealthy and influential people of England,
who were engaged in trade, or owned and cultivated plantations in the
colonies. No one can read his elaborate views, and not be struck with
the great difference between England and her colonies, and the free
and slave States of this Union. While slavery in the colonies of
England is subject to the power of the mother country, our States,
especially in regard to slavery, are independent, resting upon their
own sovereignties, and subject only to international laws, which apply
to independent States.

In the case of Williams, who was a slave in Granada, having run away,
came to England, Lord Stowell said: "The four judges all concur in
this--that he was a slave in Granada, though a free man in England,
and he would have continued a free man in all other parts of the world
except Granada."

Strader _v._ Graham (10 Howard, 82, and 18 Curtis, 305) has been cited
as having a direct bearing in the case before us. In that case the
court say: "It was exclusively in the power of Kentucky to determine,
for itself, whether the employment of slaves in another State should
or should not make them free on their return." No question was before
the court in that case, except that of jurisdiction. And any opinion
given on any other point is _obiter dictum_, and of no authority. In
the conclusion of his opinion, the Chief Justice said: "In every view
of the subject, therefore, this court has no jurisdiction of the case,
and the writ of error must on that ground be dismissed."

In the case of Spencer _v._ Negro Dennis, (8 Gill's Rep., 321,) the
court say: "Once free, and always free, is the maxim of Maryland law
upon the subject. Freedom having once vested, by no compact between
the master and the liberated slave, nor by any condition subsequent,
attached by the master to the gift of freedom, can a state of slavery
be reproduced."

In Hunter _v._ Bulcher [Transcriber's Note: Fulcher], (1 Leigh, 172:)

"By a statute of Maryland of 1796, all slaves brought into that State
to reside are declared free; a Virginian-born slave is carried by his
master to Maryland; the master settled there, and keeps the slave
there in bondage for twelve years, the statute in force all the time;
then he brings him as a slave to Virginia, and sells him there.
Adjudged, in an action brought by the man against the purchaser, that
he is free."

Judge Kerr, in the case, says:

"Agreeing, as I do, with the general view taken in this case by my
brother Green, I would not add a word, but to mark the exact extent to
which I mean to go. The law of Maryland having enacted that slaves
carried into that State for sale or to reside shall be free, and the
owner of the slave here having carried him to Maryland, and
voluntarily submitting himself and the slave to that law, it governs
the case."

In every decision of a slave case prior to that of Dred Scott _v._
Emerson, the Supreme Court of Missouri considered it as turning upon
the Constitution of Illinois, the ordinance of 1787, or the Missouri
compromise act of 1820. The court treated these acts as in force, and
held itself bound to execute them, by declaring the slave to be free
who had acquired a domicil under them with the consent of his master.

The late decision reversed this whole line of adjudication, and held
that neither the Constitution and laws of the States, nor acts of
Congress in relation to Territories, could be judicially noticed by
the Supreme Court of Missouri. This is believed to be in conflict with
the decisions of all the courts in the Southern States, with some
exceptions of recent cases.

In Marie Louise _v._ Morat et al., (9 Louisiana Rep., 475,)
[Transcriber's Note: correct citation is Louise v. Marot, 9 La. 473]
it was held, where a slave having been taken to the kingdom of France
or other country by the owner, where slavery is not tolerated,
operates on the condition of the slave, and produces immediate
emancipation; and that, where a slave thus becomes free, the master
cannot reduce him again to slavery.

Josephine _v._ Poultney, (Louisiana Annual Rep., 329,) "where the
owner removes with a slave into a State in which slavery is
prohibited, with the intention of residing there, the slave will be
thereby emancipated, and their subsequent return to the State of
Louisiana cannot restore the relation of master and slave." To the
same import are the cases of Smith _v._ Smith, (13 Louisiana Rep.,
441; Thomas _v._ Generis, Louisiana Rep., 483; Harry et al. _v._
Decker and Hopkins, Walker's Mississippi Rep., 36.) It was held that,
"slaves within the jurisdiction of the Northwestern Territory became
freemen by virtue of the ordinance of 1787, and can assert their claim
to freedom in the courts of Mississippi." (Griffith _v._ Fanny, 1
Virginia Rep., 143.) It was decided that a negro held in servitude in
Ohio, under a deed executed in Virginia, is entitled to freedom by the
Constitution of Ohio.

The case of Rhodes _v._ Bell (2 Howard, 307; 15 Curtis, 152) involved
the main principle in the case before us. A person residing in
Washington city purchased a slave in Alexandria, and brought him to
Washington. Washington continued under the law of Maryland, Alexandria
under the law of Virginia. The act of Maryland of November, 1796, (2
Maxcy's Laws, 351,) declared any one who shall bring any negro,
mulatto or other slave, into Maryland, such slave should be free. The
above slave, by reason of his being brought into Washington city, was
declared by this court to be free. This, it appears to me, is a much
stronger case against the slave than the facts in the case of Scott.

In Bush _v._ White, (3 Monroe, 104,) the court say:

"That the ordinance was paramount to the Territorial laws, and
restrained the legislative power there as effectually as a
Constitution in an organized State. It was a public act of the
Legislature of the Union, and a part of the supreme law of the land;
and, as such, this court is as much bound to take notice of it as it
can be of any other law."

In the case of Rankin _v._ Lydia, before cited, Judge Mills, speaking
for the Court of Appeals of Kentucky, says:

"If, by the positive provision in our code, we can and must hold our
slaves in the one case, and statutory provisions equally positive
decide against that right in the other, and liberate the slave, he
must, by an authority equally imperious, be declared free. Every
argument which supports the right of the master on one side, based
upon the force of written law, must be equally conclusive in favor of
the slave, when he can point out in the statute the clause which
secures his freedom."

And he further said:

"Free people of color in all the States are, it is believed, quasi
citizens, or, at least, denizens. Although none of the States may
allow them the privilege of office and suffrage, yet all other civil
and conventional rights are secured to them; at least, such rights
were evidently secured to them by the ordinance in question for the
government of Indiana. If these rights are vested in that or any other
portion of the United States, can it be compatible with the spirit of
our confederated Government to deny their existence in any other part?
Is there less comity existing between State and State, or State and
Territory, than exists between the despotic Governments of Europe?"

These are the words of a learned and great judge, born and educated in
a slave State.

I now come to inquire, under the sixth and last head, "whether the
decisions of the Supreme Court of Missouri, on the question before us,
are binding on this court."

While we respect the learning and high intelligence of the State
courts, and consider their decisions, with others, as authority, we
follow them only where they give a construction to the State statutes.
On this head, I consider myself fortunate in being able to turn to the
decision of this court, given by Mr. Justice Grier, in Pease _v._
Peck, a case from the State of Michigan, (18 Howard, 589,) decided in
December term, 1855. Speaking for the court, Judge Grier said:

"We entertain the highest respect for that learned court, (the Supreme
Court of Michigan) and in any question affecting the construction of
their own laws, where we entertain any doubt, would be glad to be
relieved from doubt and responsibility by reposing on their decision.
There are, it is true, many dicta to be found in our decisions,
averring that the courts of the United States are bound to follow the
decisions of the State courts on the construction of their own laws.
But although this may be correct, yet a rather strong expression of a
general rule, it cannot be received as the annunciation of a maxim of
universal application. Accordingly, our reports furnish many cases of
exceptions to it. In all cases where there is a settled construction
of the laws of a State, by its highest judicature established by
admitted precedent, it is the practice of the courts of the United
States to receive and adopt it, without criticism or further inquiry.
When the decisions of the State court are not consistent, we do not
feel bound to follow the last, if it is contrary to our own
convictions; and much more is this the case where, after a long course
of consistent decisions, some new light suddenly springs up, or an
excited public opinion has elicited new doctrines subversive of former
safe precedent."

These words, it appears to me, have a stronger application to the case
before us than they had to the cause in which they were spoken as the
opinion of this court; and I regret that they do not seem to be as
fresh in the recollection of some of my brethren as in my own. For
twenty-eight years, the decisions of the Supreme Court of Missouri
were consistent on all the points made in this case. But this
consistent course was suddenly terminated, whether by some new light
suddenly springing up, or an excited public opinion, or both, it is
not necessary to say. In the case of Scott _v._ Emerson, in 1852,
they were overturned and repudiated.

This, then, is the very case in which seven of my brethren declared
they would not follow the last decision. On this authority I may well
repose. I can desire no other or better basis.

But there is another ground which I deem conclusive, and which I will
re-state.

The Supreme Court of Missouri refused to notice the act of Congress or
the Constitution of Illinois, under which Dred Scott, his wife and
children, claimed that they are entitled to freedom.

This being rejected by the Missouri court, there was no case before
it, or least it was a case with only one side. And this is the case
which, in the opinion of this court, we are bound to follow. The
Missouri court disregards the express provisions of an act of Congress
and the Constitution of a sovereign State, both of which laws for
twenty-eight years it had not only regarded, but carried into effect.

If a State court may do this, on a question involving the liberty of a
human being, what protection do the laws afford? So far from this
being a Missouri question, it is a question, as it would seem, within
the twenty-fifth section of the judiciary act, where a right to
freedom being set up under the act of Congress, and the decision being
against such right, it may be brought for revision before this court,
from the Supreme Court of Missouri.

I think the judgment of the court below should be reversed.

       *       *       *       *       *

Mr. Justice CURTIS dissenting.

I dissent from the opinion pronounced by the Chief Justice, and from
the judgment which the majority of the court think it proper to render
in this case. The plaintiff alleged, in his declaration, that he was a
citizen of the State of Missouri, and that the defendant was a citizen
of the State of New York. It is not doubted that it was necessary to
make each of these allegations, to sustain the jurisdiction of the
Circuit Court. The defendant denied, by a plea to the jurisdiction,
either sufficient or insufficient, that the plaintiff was a citizen of
the State of Missouri. The plaintiff demurred to that plea. The
Circuit Court adjudged the plea insufficient, and the first question
for our consideration is, whether the sufficiency of that plea is
before this court for judgment, upon this writ of error. The part of
the judicial power of the United States, conferred by Congress on the
Circuit Courts, being limited to certain described cases and
controversies, the question whether a particular case is within the
cognizance of a Circuit Court, may be raised by a plea to the
jurisdiction of such court. When that question has been raised, the
Circuit Court must, in the first instance, pass upon and determine it.
Whether its determination be final, or subject to review by this
appellate court, must depend upon the will of Congress; upon which
body the Constitution has conferred the power, with certain
restrictions, to establish inferior courts, to determine their
jurisdiction, and to regulate the appellate power of this court. The
twenty-second section of the judiciary act of 1789, which allows a
writ of error from final judgments of Circuit Courts, provides that
there shall be no reversal in this court, on such writ of error, for
error in ruling any plea in abatement, _other than a plea to the
jurisdiction of the court_. Accordingly it has been held, from the
origin of the court to the present day, that Circuit Courts have not
been made by Congress the final judges of their own jurisdiction in
civil cases. And that when a record comes here upon a writ of error or
appeal, and, on its inspection, it appears to this court that the
Circuit Court had not jurisdiction, its judgment must be reversed, and
the cause remanded, to be dismissed for want of jurisdiction.

It is alleged by the defendant in error, in this case, that the plea
to the jurisdiction was a sufficient plea; that it shows, on
inspection of its allegations, confessed by the demurrer, that the
plaintiff was not a citizen of the State of Missouri; that upon this
record, it must appear to this court that the case was not within the
judicial power of the United States, as defined and granted by the
Constitution, because it was not a suit by a citizen of one State
against a citizen of another State.

To this it is answered, first, that the defendant, by pleading over,
after the plea to the jurisdiction was adjudged insufficient, finally
waived all benefit of that plea.

When that plea was adjudged insufficient, the defendant was obliged to
answer over. He held no alternative. He could not stop the further
progress of the case in the Circuit Court by a writ of error, on which
the sufficiency of his plea to the jurisdiction could be tried in this
court, because the judgment on that plea was not final, and no writ of
error would lie. He was forced to plead to the merits. It cannot be
true, then, that he waived the benefit of his plea to the jurisdiction
by answering over. Waiver includes consent. Here, there was no
consent. And if the benefit of the plea was finally lost, it must be,
not by any waiver, but because the laws of the United States have not
provided any mode of reviewing the decision of the Circuit Court on
such a plea, when that decision is against the defendant. This is not
the law. Whether the decision of the Circuit Court on a plea to the
jurisdiction be against the plaintiff, or against the defendant, the
losing party may have any alleged error in law, in ruling such a plea,
examined in this court on a writ of error, when the matter in
controversy exceeds the sum or value of two thousand dollars. If the
decision be against the plaintiff, and his suit dismissed for want of
jurisdiction, the judgment is technically final, and he may at once
sue out his writ of error. (Mollan _v._ Torrance, 9 Wheat., 537.) If
the decision be against the defendant, though he must answer over, and
wait for a final judgment in the cause, he may then have his writ of
error, and upon it obtain the judgment of this court on any question
of law apparent on the record, touching the jurisdiction. The fact
that he pleaded over to the merits, under compulsion, can have no
effect on his right to object to the jurisdiction. If this were not
so, the condition of the two parties would be grossly unequal. For if
a plea to the jurisdiction were ruled against the plaintiff, he could
at once take his writ of error, and have the ruling reviewed here;
while, if the same plea were ruled against the defendant, he must not
only wait for a final judgment, but could in no event have the ruling
of the Circuit Court upon the plea reviewed by this court. I know of
no ground for saying that the laws of the United States have thus
discriminated between the parties to a suit in its courts.

It is further objected, that as the judgment of the Circuit Court was
in favor of the defendant, and the writ of error in this cause was
sued out by the plaintiff, the defendant is not in a condition to
assign any error in the record, and therefore this court is precluded
from considering the question whether the Circuit Court had
jurisdiction.

The practice of this court does not require a technical assignment of
errors. (See the rule.) Upon a writ of error, the whole record is open
for inspection; and if any error be found in it, the judgment is
reversed. (Bank of U.S. _v._ Smith, 11 Wheat., 171.)

It is true, as a general rule, that the court will not allow a party
to rely on anything as cause for reversing a judgment, which was for
his advantage. In this, we follow an ancient rule of the common law.
But so careful was that law of the preservation of the course of its
courts, that it made an exception out of that general rule, and
allowed a party to assign for error that which was for his advantage,
if it were a departure by the court itself from its settled course of
procedure. The cases on this subject are collected in Bac. Ab., Error
H. 4. And this court followed this practice in Capron _v._ Van
Noorden, (2 Cranch, 126,) where the plaintiff below procured the
reversal of a judgment for the defendant, on the ground that the
plaintiff's allegations of citizenship had not shown jurisdiction.

But it is not necessary to determine whether the defendant can be
allowed to assign want of jurisdiction as an error in a judgment in
his own favor. The true question is, not what either of the parties
may be allowed to do, but whether this court will affirm or reverse a
judgment of the Circuit Court on the merits, when it appears on the
record, by a plea to the jurisdiction, that it is a case to which the
judicial power of the United States does not extend. The course of the
court is, where no motion is made by either party, on its own motion,
to reverse such a judgment for want of jurisdiction, not only in cases
where it is shown, negatively, by a plea to the jurisdiction, that
jurisdiction does not exist, but even where it does not appear,
affirmatively, that it does exist. (Pequignot _v._ The Pennsylvania
R.R. Co., 16 How., 104.) It acts upon the principle that the judicial
power of the United States must not be exerted in a case to which it
does not extend, even if both parties desire to have it exerted.
(Cutler _v._ Rae, 7 How., 729.) I consider, therefore, that when there
was a plea to the jurisdiction of the Circuit Court in a case brought
here by a writ of error, the first duty of this court is, _sua
sponte_, if not moved to it by either party, to examine the
sufficiency of that plea; and thus to take care that neither the
Circuit Court nor this court shall use the judicial power of the
United States in a case to which the Constitution and laws of the
United States have not extended that power.

I proceed, therefore, to examine the plea to the jurisdiction.

I do not perceive any sound reason why it is not to be judged by the
rules of the common law applicable to such pleas. It is true, where
the jurisdiction of the Circuit Court depends on the citizenship of
the parties, it is incumbent on the plaintiff to allege on the record
the necessary citizenship; but when he has done so, the defendant must
interpose a plea in abatement, the allegations whereof show that the
court has not jurisdiction; and it is incumbent on him to prove the
truth of his plea.

In Sheppard _v._ Graves, (14 How., 27,) the rules on this subject are
thus stated in the opinion of the court: "That although, in the courts
of the United States, it is necessary to set forth the grounds of
their cognizance as courts of limited jurisdiction, yet wherever
jurisdiction shall be averred in the pleadings, in conformity with the
laws creating those courts, it must be taken, _prima facie_, as
existing; and it is incumbent on him who would impeach that
jurisdiction for causes dehors the pleading, to allege and prove such
causes; that the necessity for the allegation, and the burden of
sustaining it by proof, both rest upon the party taking the
exception." These positions are sustained by the authorities there
cited, as well as by Wickliffe _v._ Owings, (17 How., 47.)

When, therefore, as in this case, the necessary averments as to
citizenship are made on the record, and jurisdiction is assumed to
exist, and the defendant comes by a plea to the jurisdiction to
displace that presumption, he occupies, in my judgment, precisely the
position described in Bacon Ab., Abatement: "Abatement, in the general
acceptation of the word, signifies a plea, put in by the defendant, in
which he shows cause to the court why he should not be impleaded; or,
if at all, not in the manner and form he now is."

This being, then, a plea in abatement, to the jurisdiction of the
court, I must judge of its sufficiency by those rules of the common
law applicable to such pleas.

The plea was as follows: "And the said John F.A. Sandford, in his own
proper person, comes and says that this court ought not to have or
take further cognizance of the action aforesaid, because he says that
said cause of action, and each and every of them, (if any such have
accrued to the said Dred Scott,) accrued to the said Dred Scott out of
the jurisdiction of this court, and exclusively within the
jurisdiction of the courts of the State of Missouri; for that, to wit,
the said plaintiff, Dred Scott, is not a citizen of the State of
Missouri, as alleged in his declaration, because he is a negro of
African descent; his ancestors were of pure African blood, and were
brought into this country and sold as negro slaves, and this the said
Sandford is ready to verify. Wherefore, he prays judgment whether this
court can or will take further cognizance of the action aforesaid."

The plaintiff demurred, and the judgment of the Circuit Court was,
that the plea was insufficient.

I cannot treat this plea as a general traverse of the citizenship
alleged by the plaintiff. Indeed, if it were so treated, the plea was
clearly bad, for it concludes with a verification, and not to the
country, as a general traverse should. And though this defect in a
plea in bar must be pointed out by a special demurrer, it is never
necessary to demur specially to a plea in abatement; all matters,
though of form only, may be taken advantage of upon a general demurrer
to such a plea. (Chitty on Pl., 465.)

The truth is, that though not drawn with the utmost technical
accuracy, it is a special traverse of the plaintiff's allegation of
citizenship, and was a suitable and proper mode of traverse under the
circumstances. By reference to Mr. Stephen's description of the uses
of such a traverse, contained in his excellent analysis of pleadings,
(Steph. on Pl., 176,) it will be seen how precisely this plea meets
one of his descriptions. No doubt the defendant might have traversed,
by a common or general traverse, the plaintiff's allegation that he
was a citizen of the State of Missouri, concluding to the country. The
issue thus presented being joined, would have involved matter of law,
on which the jury must have passed, under the direction of the court.
But by traversing the plaintiff's citizenship specially--that is,
averring those facts on which the defendant relied to show that in
point of law the plaintiff was not a citizen, and basing the traverse
on those facts as a deduction therefrom--opportunity was given to do,
what was done; that is, to present directly to the court, by a
demurrer, the sufficiency of those facts to negative, in point of law,
the plaintiff's allegation of citizenship. This, then, being a
special, and not a general or common traverse, the rule is settled,
that the facts thus set out in the plea, as the reason or ground of
the traverse must of themselves constitute, in point of law, a
negative of the allegation thus traversed. (Stephen on Pl., 183; Ch.
on Pl., 620.) And upon a demurrer to this plea, the question which
arises is, whether the facts, that the plaintiff is a negro, of
African descent, whose ancestors were of pure African blood, and were
brought into this country and sold as negro slaves, _may all be true,
and yet_ the plaintiff be a citizen of the State of Missouri, within
the meaning of the Constitution and laws of the United States, which
confer on citizens of one State the right to sue citizens of another
State in the Circuit Courts. Undoubtedly, if these facts, taken
together, amount to an allegation that, at the time of action brought,
the plaintiff was himself a slave, the plea is sufficient. It has been
suggested that the plea, in legal effect, does so aver, because, if
his ancestors were sold as slaves, the presumption is they continued
slaves; and if so, the presumption is, the plaintiff was born a slave;
and if so, the presumption is, he continued to be a slave to the time
of action brought.

I cannot think such presumptions can be resorted to, to help out
defective averments in pleading; especially, in pleading in abatement,
where the utmost certainty and precision are required. (Chitty on Pl.,
457.) That the plaintiff himself was a slave at the time of action
brought, is a substantive fact, having no necessary connection with
the fact that his parents were sold as slaves. For they might have
been sold after he was born; or the plaintiff himself, if once a
slave, might have became a freeman before action brought. To aver
that his ancestors were sold as slaves, is not equivalent, in point of
law, to an averment that he was a slave. If it were, he could not even
confess and avoid the averment of the slavery of his ancestors, which
would be monstrous; and if it be not equivalent in point of law, it
cannot be treated as amounting thereto when demurred to; for a
demurrer confesses only those substantive facts which are well
pleaded, and not other distinct substantive facts which might be
inferred therefrom by a jury. To treat an averment that the
plaintiff's ancestors were Africans, brought to this country and sold
as slaves, as amounting to an averment on the record that he was a
slave, because it may lay some foundation for presuming so, is to hold
that the facts actually alleged may be treated as intended as evidence
of another distinct fact not alleged. But it is a cardinal rule of
pleading, laid down in Dowman's case, (9 Rep., 9 b,) and in even
earlier authorities therein referred to, "that evidence shall never be
pleaded, for it only tends to prove matter of fact; and therefore the
matter of fact shall be pleaded." Or, as the rule is sometimes stated,
pleadings must not be argumentative. (Stephen on Pleading, 384, and
authorities cited by him.) In Com. Dig., Pleader E. 3, and Bac.
Abridgement, Pleas I, 5, and Stephen on Pl., many decisions under this
rule are collected. In trover, for an indenture whereby A granted a
manor, it is no plea that A did not grant the manor, for it does not
answer the declaration except by argument. (Yelv., 223.)

So in trespass for taking and carrying away the plaintiff's goods, the
defendant pleaded that the plaintiff never had any goods. The court
said, "this is an infallible argument that the defendant is not
guilty, but it is no plea." (Dyer, a 43.)

In ejectment, the defendant pleaded a surrender of a copyhold by the
hand of Fosset, the steward. The plaintiff replied, that Fosset was
not steward. The court held this no issue, for it traversed the
surrender only argumentatively. (Cro. Elis., 260.)

In these cases, and many others reported in the books, the inferences
from the facts stated were irresistible. But the court held they did
not, when demurred to, amount to such inferable facts. In the case at
bar, the inference that the defendant was a slave at the time of
action brought, even if it can be made at all, from the fact that his
parents were slaves, is certainly not a necessary inference. This
case, therefore, is like that of Digby _v._ Alexander, (8 Bing., 116.)
In that case, the defendant pleaded many facts strongly tending to
show that he was once Earl of Stirling; but as there was no positive
allegation that he was so at the time of action brought, and as every
fact averred might be true, and yet the defendant not have been Earl
of Stirling at the time of action brought, the plea was held to be
insufficient.

A lawful seizin of land is presumed to continue. But if, in an action
of trespass _quare clausum_, the defendant were to plead that he was
lawfully seized of the _locus in quo_, one month before the time of
the alleged trespass, I should have no doubt it would be a bad plea.
(See Mollan _v._ Torrance, 9 Wheat., 537.) So if a plea to the
jurisdiction, instead of alleging that the plaintiff was a citizen of
the same State as the defendant, were to allege that the plaintiff's
ancestors were citizens of that State, I think the plea could not be
supported. My judgment would be, as it is in this case, that if the
defendant meant to aver a particular substantive fact, as existing at
the time of action brought, he must do it directly and explicitly, and
not by way of inference from certain other averments, which are quite
consistent with the contrary hypothesis. I cannot, therefore, treat
this plea as containing an averment that the plaintiff himself was a
slave at the time of action brought; and the inquiry recurs, whether
the facts, that he is of African descent, and that his parents were
once slaves, are necessarily inconsistent with his own citizenship in
the State of Missouri, within the meaning of the Constitution and laws
of the United States.

In Gassies _v._ Ballon, (6 Pet., 761,) the defendant was described on
the record as a naturalized citizen of the United States, residing in
Louisiana. The court held this equivalent to an averment that the
defendant was a citizen of Louisiana; because a citizen of the United
States, residing in any State of the Union, is, for purposes of
jurisdiction, a citizen of that State. Now, the plea to the
jurisdiction in this case does not controvert the fact that the
plaintiff resided in Missouri at the date of the writ. If he did then
reside there, and was also a citizen of the United States, no
provisions contained in the Constitution or laws of Missouri can
deprive the plaintiff of his right to sue citizens of States other
than Missouri, in the courts of the United States.

So that, under the allegations contained in this plea, and admitted by
the demurrer, the question is, whether any person of African descent,
whose ancestors were sold as slaves in the United States, can be a
citizen of the United States. If any such person can be a citizen,
this plaintiff has the right to the judgment of the court that he is
so; for no cause is shown by the plea why he is not so, except his
descent and the slavery of his ancestors.

The first section of the second article of the Constitution uses the
language, "a citizen of the United States at the time of the adoption
of the Constitution." One mode of approaching this question is, to
inquire who were citizens of the United States at the time of the
adoption of the Constitution.

Citizens of the United States at the time of the adoption of the
Constitution can have been no other than citizens of the United States
under the Confederation. By the Articles of Confederation, a
Government was organized, the style whereof was, "The United States of
America." This Government was in existence when the Constitution was
framed and proposed for adoption, and was to be superseded by the new
Government of the United States of America, organized under the
Constitution. When, therefore, the Constitution speaks of citizenship
of the United States, existing at the time of the adoption of the
Constitution, it must necessarily refer to citizenship under the
Government which existed prior to and at the time of such adoption.

Without going into any question concerning the powers of the
Confederation to govern the territory of the United States out of the
limits of the States, and consequently to sustain the relation of
Government and citizen in respect to the inhabitants of such
territory, it may safely be said that the citizens of the several
States were citizens of the United States under the Confederation.

That Government was simply a confederacy of the several States,
possessing a few defined powers over subjects of general concern, each
State retaining every power, jurisdiction, and right, not expressly
delegated to the United States in Congress assembled. And no power was
thus delegated to the Government of the Confederation, to act on any
question of citizenship, or to make any rules in respect thereto. The
whole matter was left to stand upon the action of the several States,
and to the natural consequence of such action, that the citizens of
each State should be citizens of that Confederacy into which that
State had entered, the style whereof was, "The United States of
America."

To determine whether any free persons, descended from Africans held in
slavery, were citizens of the United States under the Confederation,
and consequently at the time of the adoption of the Constitution of
the United States, it is only necessary to know whether any such
persons were citizens of either of the States under the Confederation,
at the time of the adoption of the Constitution.

Of this there can be no doubt. At the time of the ratification of the
Articles of Confederation, all free native-born inhabitants of the
States of New Hampshire, Massachusetts, New York, New Jersey, and
North Carolina, though descended from African slaves, were not only
citizens of those States, but such of them as had the other necessary
qualifications possessed the franchise of electors, on equal terms
with other citizens.

The Supreme Court of North Carolina, in the case of the State _v._
Manuel, (4 Dev. and Bat., 20,) has declared the law of that State on
this subject, in terms which I believe to be as sound law in the other
States I have enumerated, as it was in North Carolina.

"According to the laws of this State," says Judge Gaston in delivering
the opinion of the court, "all human beings within it, who are not
slaves, fall within one of two classes. Whatever distinctions may have
existed in the Roman laws between citizens and free inhabitants, they
are unknown to our institutions. Before our Revolution, all free
persons born within the dominions of the King of Great Britain,
whatever their color or complexion, were native-born British
subjects--those born out of his allegiance were aliens. Slavery did
not exist in England, but it did in the British colonies. Slaves were
not in legal parlance persons, but property. The moment the
incapacity, the disqualification of slavery, was removed, they became
persons, and were then either British subjects, or not British
subjects, according as they were or were not born within the
allegiance of the British King. Upon the Revolution, no other change
took place in the laws of North Carolina than was consequent on the
transition from a colony dependent on a European King, to a free and
sovereign State. Slaves remained slaves. British subjects in North
Carolina became North Carolina freemen. Foreigners, until made members
of the State, remained aliens. Slaves, manumitted here, became
freemen, and therefore, if born within North Carolina, are citizens of
North Carolina, and all free persons born within the State are born
citizens of the State. The Constitution extended the elective
franchise to every freeman who had arrived at the age of twenty-one,
and paid a public tax; and it is a matter of universal notoriety,
that, under it, free persons, without regard to color, claimed and
exercised the franchise, until it was taken from free men of color a
few years since by our amended Constitution."

In the State _v._ Newcomb, (5 Iredell's R., 253,) decided in 1844, the
same court referred to this case of the State _v._ Manuel, and said:
"That case underwent a very laborious investigation, both by the bar
and the bench. The case was brought here by appeal, and was felt to be
one of great importance in principle. It was considered with an
anxiety and care worthy of the principle involved, and which give it a
controlling influence and authority on all questions of a similar
character."

An argument from speculative premises, however well chosen, that the
then state of opinion in the Commonwealth of Massachusetts was not
consistent with the natural rights of people of color who were born on
that soil, and that they were not, by the Constitution of 1780 of that
State, admitted to the condition of citizens, would be received with
surprise by the people of that State, who know their own political
history. It is true, beyond all controversy, that persons of color,
descended from African slaves, were by that Constitution made citizens
of the State; and such of them as have had the necessary
qualifications, have held and exercised the elective franchise, as
citizens, from that time to the present. (See Com. _v._ Aves, 18 Pick.
R., 210.)

The Constitution of New Hampshire conferred the elective franchise
upon "every inhabitant of the State having the necessary
qualifications," of which color or descent was not one.

The Constitution of New York gave the right to vote to "every male
inhabitant, who shall have resided," &c.; making no discrimination
between free colored persons and others. (See Con. of N.Y., Art. 2,
Rev. Stats. of N.Y., vol. 1, p. 126.)

That of New Jersey, to "all inhabitants of this colony, of full age,
who are worth £50 proclamation money, clear estate."

New York, by its Constitution of 1820, required colored persons to
have some qualifications as prerequisites for voting, which white
persons need not possess. And New Jersey, by its present Constitution,
restricts the right to vote to white male citizens. But these changes
can have no other effect upon the present inquiry, except to show,
that before they were made, no such restrictions existed; and colored
in common with white persons, were not only citizens of those States,
but entitled to the elective franchise on the same qualifications as
white persons, as they now are in New Hampshire and Massachusetts. I
shall not enter into an examination of the existing opinions of that
period respecting the African race, nor into any discussion concerning
the meaning of those who asserted, in the Declaration of Independence,
that all men are created equal; that they are endowed by their Creator
with certain inalienable rights; that among these are life, liberty,
and the pursuit of happiness. My own opinion is, that a calm
comparison of these assertions of universal abstract truths, and of
their own individual opinions and acts, would not leave these men
under any reproach of inconsistency; that the great truths they
asserted on that solemn occasion, they were ready and anxious to make
effectual, wherever a necessary regard to circumstances, which no
statesman can disregard without producing more evil than good, would
allow; and that it would not be just to them, nor true in itself, to
allege that they intended to say that the Creator of all men had
endowed the white race, exclusively, with the great natural rights
which the Declaration of Independence asserts. But this is not the
place to vindicate their memory. As I conceive, we should deal here,
not with such disputes, if there can be a dispute concerning this
subject, but with those substantial facts evinced by the written
Constitutions of States, and by the notorious practice under them. And
they show, in a manner which no argument can obscure, that in some of
the original thirteen States, free colored persons, before and at the
time of the formation of the Constitution, were citizens of those
States.

The fourth of the fundamental articles of the Confederation was as
follows: "The free inhabitants of each of these States, paupers,
vagabonds, and fugitives from justice, excepted, shall be entitled to
all the privileges and immunities of free citizens in the several
States."

The fact that free persons of color were citizens of some of the
several States, and the consequence, that this fourth article of the
Confederation would have the effect to confer on such persons the
privileges and immunities of general citizenship, were not only known
to those who framed and adopted those articles, but the evidence is
decisive, that the fourth article was intended to have that effect,
and that more restricted language, which would have excluded such
persons, was deliberately and purposely rejected.

On the 25th of June, 1778, the Articles of Confederation being under
consideration by the Congress, the delegates from South Carolina moved
to amend this fourth article, by inserting after the word "free," and
before the word "inhabitants," the word "white," so that the
privileges and immunities of general citizenship would be secured only
to white persons. Two States voted for the amendment, eight States
against it, and the vote of one State was divided. The language of the
article stood unchanged, and both by its terms of inclusion, "free
inhabitants," and the strong implication from its terms of exclusion,
"paupers, vagabonds, and fugitives from justice," who alone were
excepted, it is clear, that under the Confederation, and at the time
of the adoption of the Constitution, free colored persons of African
descent might be, and, by reason of their citizenship in certain
States, were entitled to the privileges and immunities of general
citizenship of the United States.

Did the Constitution of the United States deprive them or their
descendants of citizenship?

That Constitution was ordained and established by the people of the
United States, through the action, in each State, of those persons who
were qualified by its laws to act thereon, in behalf of themselves and
all other citizens of that State. In some of the States, as we have
seen, colored persons were among those qualified by law to act on this
subject. These colored persons were not only included in the body of
"the people of the United States," by whom the Constitution was
ordained and established, but in at least five of the States they had
the power to act, and doubtless did act, by their suffrages, upon the
question of its adoption. It would be strange, if we were to find in
that instrument anything which deprived of their citizenship any part
of the people of the United States who were among those by whom it was
established.

I can find nothing in the Constitution which, _proprio vigore_,
deprives of their citizenship any class of persons who were citizens
of the United States at the time of its adoption, or who should be
native-born citizens of any State after its adoption; nor any power
enabling Congress to disfranchise persons born on the soil of any
State, and entitled to citizenship of such State by its Constitution
and laws. And my opinion is, that, under the Constitution of the
United States, every free person born on the soil of a State, who is a
citizen of that State by force of its Constitution or laws, is also a
citizen of the United States.

I will proceed to state the grounds of that opinion.

The first section of the second article of the Constitution uses the
language, "a natural-born citizen." It thus assumes that citizenship
may be acquired by birth. Undoubtedly, this language of the
Constitution was used in reference to that principle of public law,
well understood in this country at the time of the adoption of the
Constitution, which referred citizenship to the place of birth. At the
Declaration of Independence, and ever since, the received general
doctrine has been, in conformity with the common law, that free
persons born within either of the colonies were subjects of the King;
that by the Declaration of Independence, and the consequent
acquisition of sovereignty by the several States, all such persons
ceased to be subjects, and became citizens of the several States,
except so far as some of them were disfranchised by the legislative
power of the States, or availed themselves, seasonably, of the right
to adhere to the British Crown in the civil contest, and thus to
continue British subjects (McIlvain _v._ Coxe's Lessee, 4 Cranch, 209;
Inglis _v._ Sailors' Snug Harbor, 3 Peters, p. 99; Shanks _v._ Dupont,
Ibid, p. 242.)

The Constitution having recognised the rule that persons born within
the several States are citizens of the United States, one of four
things must be true:

_First._ That the Constitution itself has described what native-born
persons shall or shall not be citizens of the United States; or,

_Second._ That it has empowered Congress to do so; or,

_Third._ That all free persons, born within the several States, are
citizens of the United States; or,

_Fourth._ That it is left to each State to determine what free
persons, born within its limits, shall be citizens of such State, and
_thereby_ be citizens of the United States.

If there be such a thing as citizenship of the United States acquired
by birth within the States, which the Constitution expressly
recognises, and no one denies, then these four alternatives embrace
the entire subject, and it only remains to select that one which is
true.

That the Constitution itself has defined citizenship of the United
States by declaring what persons, born within the several States,
shall or shall not be citizens of the United States, will not be
pretended. It contains no such declaration. We may dismiss the first
alternative, as without doubt unfounded.

Has it empowered Congress to enact what free persons, born within the
several States, shall or shall not be citizens of the United States?

Before examining the various provisions of the Constitution which may
relate to this question, it is important to consider for a moment the
substantial nature of this inquiry. It is, in effect, whether the
Constitution has empowered Congress to create privileged classes
within the States, who alone can be entitled to the franchises and
powers of citizenship of the United States. If it be admitted that the
Constitution has enabled Congress to declare what free persons, born
within the several States, shall be citizens of the United States, it
must at the same time be admitted that it is an unlimited power. If
this subject is within the control of Congress, it must depend wholly
on its discretion. For, certainly, no limits of that discretion can be
found in the Constitution, which is wholly silent concerning it; and
the necessary consequence is, that the Federal Government may select
classes of persons within the several States who alone can be entitled
to the political privileges of citizenship of the United States. If
this power exists, what persons born within the States may be
President or Vice President of the United States, or members of
either House of Congress, or hold any office or enjoy any privilege
whereof citizenship of the United States is a necessary qualification,
must depend solely on the will of Congress. By virtue of it, though
Congress can grant no title of nobility, they may create an oligarchy,
in whose hands would be concentrated the entire power of the Federal
Government.

It is a substantive power, distinct in its nature from all others;
capable of affecting not only the relations of the States to the
General Government, but of controlling the political condition of the
people of the United States. Certainly we ought to find this power
granted by the Constitution, at least by some necessary inference,
before we can say it does not remain to the States or the people. I
proceed therefore to examine all the provisions of the Constitution
which may have some bearing on this subject.

Among the powers expressly granted to Congress is "the power to
establish a uniform rule of naturalization." It is not doubted that
this is a power to prescribe a rule for the removal of the
disabilities consequent on foreign birth. To hold that it extends
further than this, would do violence to the meaning of the term
naturalization, fixed in the common law, (Co. Lit., 8 a, 129 a; 2
Ves., sen., 286; 2 Bl. Com., 293,) and in the minds of those who
concurred in framing and adopting the Constitution. It was in this
sense of conferring on an alien and his issue the rights and powers of
a native-born citizen, that it was employed in the Declaration of
Independence. It was in this sense it was expounded in the Federalist,
(No. 42,) has been understood by Congress, by the Judiciary, (2
Wheat., 259, 269; 3 Wash. R., 313, 322; 12 Wheat., 277,) and by
commentators on the Constitution. (3 Story's Com. on Con., 1-3; 1
Rawle on Con., 84-88; 1 Tucker's Bl. Com. App., 255-259.)

It appears, then, that the only power expressly granted to Congress to
legislate concerning citizenship, is confined to the removal of the
disabilities of foreign birth.

Whether there be anything in the Constitution from which a broader
power may be implied, will best be seen when we come to examine the
two other alternatives, which are, whether all free persons, born on
the soil of the several States, or only such of them as may be
citizens of each State, respectively, are thereby citizens of the
United States. The last of these alternatives, in my judgment,
contains the truth.

Undoubtedly, as has already been said, it is a principle of public
law, recognised by the Constitution itself, that birth on the soil of
a country both creates the duties and confers the rights of
citizenship. But it must be remembered, that though the Constitution
was to form a Government, and under it the United States of America
were to be one united sovereign nation, to which loyalty and obedience
on the one side, and from which protection and privileges on the
other, would be due, yet the several sovereign States, whose people
were then citizens, were not only to continue in existence, but with
powers unimpaired, except so far as they were granted by the people to
the National Government.

Among the powers unquestionably possessed by the several States, was
that of determining what persons should and what persons should not be
citizens. It was practicable to confer on the Government of the Union
this entire power. It embraced what may, well enough for the purpose
now in view, be divided into three parts. _First_: The power to remove
the disabilities of alienage, either by special acts in reference to
each individual case, or by establishing a rule of naturalization to
be administered and applied by the courts. _Second_: Determining what
persons should enjoy the privileges of citizenship, in respect to the
internal affairs of the several States. _Third_: What native-born
persons should be citizens of the United States.

The first-named power, that of establishing a uniform rule of
naturalization, was granted; and here the grant, according to its
terms, stopped. Construing a Constitution containing only limited and
defined powers of government, the argument derived from this definite
and restricted power to establish a rule of naturalization, must be
admitted to be exceedingly strong. I do not say it is necessarily
decisive. It might be controlled by other parts of the Constitution.
But when this particular subject of citizenship was under
consideration, and, in the clause specially intended to define the
extent of power concerning it, we find a particular part of this
entire power separated from the residue, and conferred on the General
Government, there arises a strong presumption that this is all which
is granted, and that the residue is left to the States and to the
people. And this presumption is, in my opinion, converted into a
certainty, by an examination of all such other clauses of the
Constitution as touch this subject.

I will examine each which can have any possible bearing on this
question.

The first clause of the second section of the third article of the
Constitution is, "The judicial power shall extend to controversies
between a State and citizens of another State; between citizens of
different States; between citizens of the same State, claiming lands
under grants of different States; and between States, or the citizens
thereof, and foreign States, citizens, or subjects." I do not think
this clause has any considerable bearing upon the particular inquiry
now under consideration. Its purpose was, to extend the judicial power
to those controversies into which local feelings or interests might so
enter as to disturb the course of justice, or give rise to suspicions
that they had done so, and thus possibly give occasion to jealousy or
ill will between different States, or a particular State and a foreign
nation. At the same time, I would remark, in passing, that it has
never been held, I do not know that it has ever been supposed, that
any citizen of a State could bring himself under this clause and the
eleventh and twelfth sections of the judiciary act of 1789, passed in
pursuance of it, who was not a citizen of the United States. But I
have referred to the clause, only because it is one of the places
where citizenship is mentioned by the Constitution. Whether it is
entitled to any weight in this inquiry or not, it refers only to
citizenship of the several States; it recognises that; but it does not
recognise citizenship of the United States as something distinct
therefrom.

As has been said, the purpose of this clause did not necessarily
connect it with citizenship of the United States, even if that were
something distinct from citizenship of the several States, in the
contemplation of the Constitution. This cannot be said of other
clauses of the Constitution, which I now proceed to refer to.

"The citizens of each State shall be entitled to all the privileges
and immunities of citizens of the several States." Nowhere else in the
Constitution is there anything concerning a general citizenship; but
here, privileges and immunities to be enjoyed throughout the United
States, under and by force of the national compact, are granted and
secured. In selecting those who are to enjoy these national rights of
citizenship, how are they described? As citizens of each State. It is
to them these national rights are secured. The qualification for them
is not to be looked for in any provision of the Constitution or laws
of the United States. They are to be citizens of the several States,
and, as such, the privileges and immunities of general citizenship,
derived from and guarantied by the Constitution, are to be enjoyed by
them. It would seem that if it had been intended to constitute a class
of native-born persons within the States, who should derive their
citizenship of the United States from the action of the Federal
Government, this was an occasion for referring to them. It cannot be
supposed that it was the purpose of this article to confer the
privileges and immunities of citizens in all the States upon persons
not citizens of the United States.

And if it was intended to secure these rights only to citizens of the
United States, how has the Constitution here described such persons?
Simply as citizens of each State.

But, further: though, as I shall presently more fully state, I do not
think the enjoyment of the elective franchise essential to
citizenship, there can be no doubt it is one of the chiefest
attributes of citizenship under the American Constitutions; and the
just and constitutional possession of this right is decisive evidence
of citizenship. The provisions made by a Constitution on this subject
must therefore be looked to as bearing directly on the question what
persons are citizens under that Constitution; and as being decisive,
to this extent, that all such persons as are allowed by the
Constitution to exercise the elective franchise, and thus to
participate in the Government of the United States, must be deemed
citizens of the United States.

Here, again, the consideration presses itself upon us, that if there
was designed to be a particular class of native-born persons within
the States, deriving their citizenship from the Constitution and laws
of the United States, they should at least have been referred to as
those by whom the President and House of Representatives were to be
elected, and to whom they should be responsible.

Instead of that, we again find this subject referred to the laws of
the several States. The electors of President are to be appointed in
such manner as the Legislature of each State may direct, and the
qualifications of electors of members of the House of Representatives
shall be the same as for electors of the most numerous branch of the
State Legislature.

Laying aside, then, the case of aliens, concerning which the
Constitution of the United States has provided, and confining our view
to free persons born within the several States, we find that the
Constitution has recognised the general principle of public law, that
allegiance and citizenship depend on the place of birth; that it has
not attempted practically to apply this principle by designating the
particular classes of persons who should or should not come under it;
that when we turn to the Constitution for an answer to the question,
what free persons, born within the several States, are citizens of the
United States, the only answer we can receive from any of its express
provisions is, the citizens of the several States are to enjoy the
privileges and immunities of citizens in every State, and their
franchise as electors under the Constitution depends on their
citizenship in the several States. Add to this, that the Constitution
was ordained by the citizens of the several States; that they were
"the people of the United States," for whom and whose posterity the
Government was declared in the preamble of the Constitution to be
made; that each of them was "a citizen of the United States at the
time of the adoption of the Constitution," within the meaning of those
words in that instrument; that by them the Government was to be and
was in fact organized; and that no power is conferred on the
Government of the Union to discriminate between them, or to
disfranchise any of them--the necessary conclusion is, that those
persons born within the several States, who, by force of their
respective Constitutions and laws, are citizens of the State, are
thereby citizens of the United States.

It may be proper here to notice some supposed objections to this view
of the subject.

It has been often asserted that the Constitution was made exclusively
by and for the white race. It has already been shown that in five of
the thirteen original States, colored persons then possessed the
elective franchise, and were among those by whom the Constitution was
ordained and established. If so, it is not true, in point of fact,
that the Constitution was made exclusively by the white race. And that
it was made exclusively for the white race is, in my opinion, not only
an assumption not warranted by anything in the Constitution, but
contradicted by its opening declaration, that it was ordained and
established, by the people of the United States, for themselves and
their posterity. And as free colored persons were then citizens of at
least five States, and so in every sense part of the people of the
United States, they were among those for whom and whose posterity the
Constitution was ordained and established.

Again, it has been objected, that if the Constitution has left to the
several States the rightful power to determine who of their
inhabitants shall be citizens of the United States, the States may
make aliens citizens.

The answer is obvious. The Constitution has left to the States the
determination what persons, born within their respective limits, shall
acquire by birth citizenship of the United States; it has not left to
them any power to prescribe any rule for the removal of the
disabilities of alienage. This power is exclusively in Congress.

It has been further objected, that if free colored persons, born
within a particular State, and made citizens of that State by its
Constitution and laws, are thereby made citizens of the United States,
then, under the second section of the fourth article of the
Constitution, such persons would be entitled to all the privileges and
immunities of citizens in the several States; and if so, then colored
persons could vote, and be eligible to not only Federal offices, but
offices even in those States whose Constitutions and laws disqualify
colored persons from voting or being elected to office.

But this position rests upon an assumption which I deem untenable. Its
basis is, that no one can be deemed a citizen of the United States who
is not entitled to enjoy all the privileges and franchises which are
conferred on any citizen. (See 1 Lit. Kentucky R., 326.) That this is
not true, under the Constitution of the United States, seems to me
clear.

A naturalized citizen cannot be President of the United States, nor a
Senator till after the lapse of nine years, nor a Representative till
after the lapse of seven years, from his naturalization. Yet, as soon
as naturalized, he is certainly a citizen of the United States. Nor is
any inhabitant of the District of Columbia, or of either of the
Territories, eligible to the office of Senator or Representative in
Congress, though they may be citizens of the United States. So, in all
the States, numerous persons, though citizens, cannot vote, or cannot
hold office, either on account of their age, or sex, or the want of
the necessary legal qualifications. The truth is, that citizenship,
under the Constitution of the United States, is not dependent on the
possession of any particular political or even of all civil rights;
and any attempt so to define it must lead to error. To what citizens
the elective franchise shall be confided, is a question to be
determined by each State, in accordance with its own views of the
necessities or expediencies of its condition. What civil rights shall
be enjoyed by its citizens, and whether all shall enjoy the same, or
how they may be gained or lost, are to be determined in the same way.

One may confine the right of suffrage to white male citizens; another
may extend it to colored persons and females; one may allow all
persons above a prescribed age to convey property and transact
business; another may exclude married women. But whether native-born
women, or persons under age, or under guardianship because insane or
spendthrifts, be excluded from voting or holding office, or allowed to
do so, I apprehend no one will deny that they are citizens of the
United States. Besides, this clause of the Constitution does not
confer on the citizens of one State, in all other States, specific and
enumerated privileges and immunities. They are entitled to such as
belong to citizenship, but not to such as belong to particular
citizens attended by other qualifications. Privileges and immunities
which belong to certain citizens of a State, by reason of the
operation of causes other than mere citizenship, are not conferred.
Thus, if the laws of a State require, in addition to citizenship of
the State, some qualification for office, or the exercise of the
elective franchise, citizens of all other States, coming thither to
reside, and not possessing those qualifications, cannot enjoy those
privileges, not because they are not to be deemed entitled to the
privileges of citizens of the State in which they reside, but because
they, in common with the native-born citizens of that State, must have
the qualifications prescribed by law for the enjoyment of such
privileges, under its Constitution and laws. It rests with the States
themselves so to frame their Constitutions and laws as not to attach a
particular privilege or immunity to mere naked citizenship. If one of
the States will not deny to any of its own citizens a particular
privilege or immunity, if it confer it on all of them by reason of
mere naked citizenship, then it may be claimed by every citizen of
each State by force of the Constitution; and it must be borne in mind,
that the difficulties which attend the allowance of the claims of
colored persons to be citizens of the United States are not avoided by
saying that, though each State may make them its citizens, they are
not thereby made citizens of the United States, because the privileges
of general citizenship are secured to the citizens of each State. The
language of the Constitution is, "The citizens of each State shall be
entitled to all privileges and immunities of citizens in the several
States." If each State may make such persons its citizens, they
become, as such, entitled to the benefits of this article, if there be
a native-born citizenship of the United States distinct from a
native-born citizenship of the several States.

There is one view of this article entitled to consideration in this
connection. It is manifestly copied from the fourth of the Articles of
Confederation, with only slight changes of phraseology, which render
its meaning more precise, and dropping the clause which excluded
paupers, vagabonds, and fugitives from justice, probably because these
cases could be dealt with under the police powers of the States, and a
special provision therefor was not necessary. It has been suggested,
that in adopting it into the Constitution, the words "free
inhabitants" were changed for the word "citizens." An examination of
the forms of expression commonly used in the State papers of that day,
and an attention to the substance of this article of the
Confederation, will show that the words "free inhabitants," as then
used, were synonymous with citizens. When the Articles of
Confederation were adopted, we were in the midst of the war of the
Revolution, and there were very few persons then embraced in the words
"free inhabitants," who were not born on our soil. It was not a time
when many, save the children of the soil, were willing to embark
their fortunes in our cause; and though there might be an inaccuracy
in the uses of words to call free inhabitants citizens, it was then a
technical rather than a substantial difference. If we look into the
Constitutions and State papers of that period, we find the inhabitants
or people of these colonies, or the inhabitants of this State, or
Commonwealth, employed to designate those whom we should now
denominate citizens. The substance and purpose of the article prove it
was in this sense it used these words: it secures to the free
inhabitants of each State the privileges and immunities of free
citizens in every State. It is not conceivable that the States should
have agreed to extend the privileges of citizenship to persons not
entitled to enjoy the privileges of citizens in the States where they
dwelt; that under this article there was a class of persons in some of
the States, not citizens, to whom were secured all the privileges and
immunities of citizens when they went into other States; and the just
conclusion is, that though the Constitution cured an inaccuracy of
language, it left the substance of this article in the National
Constitution the same as it was in the Articles of Confederation.

The history of this fourth article, respecting the attempt to exclude
free persons of color from its operation, has been already stated. It
is reasonable to conclude that this history was known to those who
framed and adopted the Constitution. That under this fourth article of
the Confederation, free persons of color might be entitled to the
privileges of general citizenship, if otherwise entitled thereto, is
clear. When this article was, in substance, placed in and made part of
the Constitution of the United States, with no change in its language
calculated to exclude free colored persons from the benefit of its
provisions, the presumption is, to say the least, strong, that the
practical effect which it was designed to have, and did have, under
the former Government, it was designed to have, and should have, under
the new Government.

It may be further objected, that if free colored persons may be
citizens of the United States, it depends only on the will of a master
whether he will emancipate his slave, and thereby make him a citizen.
Not so. The master is subject to the will of the State. Whether he
shall be allowed to emancipate his slave at all; if so, on what
conditions; and what is to be the political _status_ of the freed man,
depend, not on the will of the master, but on the will of the State,
upon which the political _status_ of all its native-born inhabitants
depends. Under the Constitution of the United States, each State has
retained this power of determining the political _status_ of its
native-born inhabitants, and no exception thereto can be found in the
Constitution. And if a master in a slaveholding State should carry his
slave into a free State, and there emancipate him, he would not
thereby make him a native-born citizen of that State, and consequently
no privileges could be claimed by such emancipated slave as a citizen
of the United States. For, whatever powers the States may exercise to
confer privileges of citizenship on persons not born on their soil,
the Constitution of the United States does not recognise such
citizens. As has already been said, it recognises the great principle
of public law, that allegiance and citizenship spring from the place
of birth. It leaves to the States the application of that principle to
individual cases. It secured to the citizens of each State the
privileges and immunities of citizens in every other State. But it
does not allow to the States the power to make aliens citizens, or
permit one State to take persons born on the soil of another State,
and, contrary to the laws and policy of the State where they were
born, make them its citizens, and so citizens of the United States. No
such deviation from the great rule of public law was contemplated by
the Constitution; and when any such attempt shall be actually made, it
is to be met by applying to it those rules of law and those principles
of good faith which will be sufficient to decide it, and not, in my
judgment, by denying that all the free native-born inhabitants of a
State, who are its citizens under its Constitution and laws, are also
citizens of the United States.

It has sometimes been urged that colored persons are shown not to be
citizens of the United States by the fact that the naturalization laws
apply only to white persons. But whether a person born in the United
States be or be not a citizen, cannot depend on laws which refer only
to aliens, and do not affect the _status_ of persons born in the
United States. The utmost effect which can be attributed to them is,
to show that Congress has not deemed it expedient generally to apply
the rule to colored aliens. That they might do so, if thought fit, is
clear. The Constitution has not excluded them. And since that has
conferred the power on Congress to naturalize colored aliens, it
certainly shows color is not a necessary qualification for citizenship
under the Constitution of the United States. It may be added, that the
power to make colored persons citizens of the United States, under the
Constitution, has been actually exercised in repeated and important
instances. (See the Treaties with the Choctaws, of September 27, 1830,
art. 14; with the Cherokees, of May 23, 1836, art. 12; Treaty of
Guadalupe Hidalgo, February 2, 1848, art. 8.)

I do not deem it necessary to review at length the legislation of
Congress having more or less bearing on the citizenship of colored
persons. It does not seem to me to have any considerable tendency to
prove that it has been considered by the legislative department of the
Government, that no such persons are citizens of the United States.
Undoubtedly they have been debarred from the exercise of particular
rights or privileges extended to white persons, but, I believe, always
in terms which, by implication, admit they may be citizens. Thus the
act of May 17, 1792, for the organization of the militia, directs the
enrollment of "every free, able-bodied, white male citizen." An
assumption that none but white persons are citizens, would be as
inconsistent with the just import of this language, as that all
citizens are able-bodied, or males.

So the act of February 28, 1803, (2 Stat. at Large, 205,) to prevent
the importation of certain persons into States, when by the laws
thereof their admission is prohibited, in its first section forbids
all masters of vessels to import or bring "any negro, mulatto, or
other person of color, not being a native, _a citizen_, or registered
seaman of the United States," &c.

The acts of March 3, 1813, section 1, (2 Stat. at Large, 809,) and
March 1, 1817, section 3, (3 Stat. at Large, 351,) concerning seamen,
certainly imply there may be persons of color, natives of the United
States, who are not citizens of the United States. This implication is
undoubtedly in accordance with the fact. For not only slaves, but free
persons of color, born in some of the States, are not citizens. But
there is nothing in these laws inconsistent with the citizenship of
persons of color in others of the States, nor with their being
citizens of the United States.

Whether much or little weight should be attached to the particular
phraseology of these and other laws, which were not passed with any
direct reference to this subject, I consider their tendency to be, as
already indicated, to show that, in the apprehension of their framers,
color was not a necessary qualification of citizenship. It would be
strange, if laws were found on our statute book to that effect, when,
by solemn treaties, large bodies of Mexican and North American Indians
as well as free colored inhabitants of Louisiana have been admitted to
citizenship of the United States.

In the legislative debates which preceded the admission of the State
of Missouri into the Union, this question was agitated. Its result is
found in the resolution of Congress, of March 5, 1821, for the
admission of that State into the Union. The Constitution of Missouri,
under which that State applied for admission into the Union, provided,
that it should be the duty of the Legislature "to pass laws to
prevent free negroes and mulattoes from coming to and settling in the
State, under any pretext whatever." One ground of objection to the
admission of the State under this Constitution was, that it would
require the Legislature to exclude free persons of color, who would be
entitled, under the second section of the fourth article of the
Constitution, not only to come within the State, but to enjoy there
the privileges and immunities of citizens. The resolution of Congress
admitting the State was upon the fundamental condition, "that the
Constitution of Missouri shall never be construed to authorize the
passage of any law, and that no law shall be passed in conformity
thereto, by which any citizen of either of the States of this Union
shall be excluded from the enjoyment of any of the privileges and
immunities to which such citizen is entitled under the Constitution of
the United States." It is true, that neither this legislative
declaration, nor anything in the Constitution or laws of Missouri,
could confer or take away any privilege or immunity granted by the
Constitution. But it is also true, that it expresses the then
conviction of the legislative power of the United States, that free
negroes, as citizens of some of the States, might be entitled to the
privileges and immunities of citizens in all the States.

The conclusions at which I have arrived on this part of the case are:

_First._ That the free native-born citizens of each State are citizens
of the United States.

_Second._ That as free colored persons born within some of the States
are citizens of those States, such persons are also citizens of the
United States.

_Third._ That every such citizen, residing in any State, has the right
to sue and is liable to be sued in the Federal courts, as a citizen of
that State in which he resides.

_Fourth._ That as the plea to the jurisdiction in this case shows no
facts, except that the plaintiff was of African descent, and his
ancestors were sold as slaves, and as these facts are not inconsistent
with his citizenship of the United States, and his residence in the
State of Missouri, the plea to the jurisdiction was bad, and the
judgment of the Circuit Court overruling it was correct.

I dissent, therefore, from that part of the opinion of the majority of
the court, in which it is held that a person of African descent cannot
be a citizen of the United States; and I regret I must go further, and
dissent both from what I deem their assumption of authority to examine
the constitutionality of the act of Congress commonly called the
Missouri compromise act, and the grounds and conclusions announced in
their opinion.

Having first decided that they were bound to consider the sufficiency
of the plea to the jurisdiction of the Circuit Court, and having
decided that this plea showed that the Circuit Court had not
jurisdiction, and consequently that this is a case to which the
judicial power of the United States does not extend, they have gone on
to examine the merits of the case as they appeared on the trial before
the court and jury, on the issues joined on the pleas in bar, and so
have reached the question of the power of Congress to pass the act of
1820. On so grave a subject as this, I feel obliged to say that, in my
opinion, such an exertion of judicial power transcends the limits of
the authority of the court, as described by its repeated decisions,
and, as I understand, acknowledged in this opinion of the majority of
the court.

In the course of that opinion, it became necessary to comment on the
case of Legrand _v._ Darnall, (reported in 2 Peters's R., 664.) In
that case, a bill was filed, by one alleged to be a citizen of
Maryland, against one alleged to be a citizen of Pennsylvania. The
bill stated that the defendant was the son of a white man by one of
his slaves; and that the defendant's father devised to him certain
lands, the title to which was put in controversy by the bill. These
facts were admitted in the answer, and upon these and other facts the
court made its decree, founded on the principle that a devise of land
by a master to a slave was by implication also a bequest of his
freedom. The facts that the defendant was of African descent, and was
born a slave, were not only before the court, but entered into the
entire substance of its inquiries. The opinion of the majority of my
brethren in this case disposes of the case of Legrand _v._ Darnall, by
saying, among other things, that as the fact that the defendant was
born a slave only came before this court on the bill and answer, it
was then too late to raise the question of the personal disability of
the party, and therefore that decision is altogether inapplicable in
this case.

In this I concur. Since the decision of this court in Livingston _v._
Story, (11 Pet., 351,) the law has been settled, that when the
declaration or bill contains the necessary averments of citizenship,
this court cannot look at the record, to see whether those averments
are true, except so far as they are put in issue by a plea to the
jurisdiction. In that case, the defendant denied by his answer that
Mr. Livingston was a citizen of New York, as he had alleged in the
bill. Both parties went into proofs. The court refused to examine
those proofs, with reference to the personal disability of the
plaintiff. This is the settled law of the court, affirmed so lately
as Shepherd _v._ Graves, (14 How., 27,) and Wickliff _v._ Owings, (17
How., 51.) (See also De Wolf _v._ Rabaud, 1 Pet., 476.) But I do not
understand this to be a rule which the court may depart from at its
pleasure. If it be a rule, it is as binding on the court as on the
suitors. If it removes from the latter the power to take any objection
to the personal disability of a party alleged by the record to be
competent, which is not shown by a plea to the jurisdiction, it is
because the court are forbidden by law to consider and decide on
objections so taken. I do not consider it to be within the scope of
the judicial power of the majority of the court to pass upon any
question respecting the plaintiff's citizenship in Missouri, save that
raised by the plea to the jurisdiction; and I do not hold any opinion
of this court, or any court, binding, when expressed on a question not
legitimately before it. (Carroll _v._ Carroll, 16 How., 275.) The
judgment of this court is, that the case is to be dismissed for want
of jurisdiction, because the plaintiff was not a citizen of Missouri,
as he alleged in his declaration. Into that judgment, according to the
settled course of this court, nothing appearing after a plea to the
merits can enter. A great question of constitutional law, deeply
affecting the peace and welfare of the country, is not, in my opinion,
a fit subject to be thus reached.

But as, in my opinion, the Circuit Court had jurisdiction, I am
obliged to consider the question whether its judgment on the merits of
the case should stand or be reversed.

The residence of the plaintiff in the State of Illinois, and the
residence of himself and his wife in the territory acquired from
France lying north of latitude thirty-six degrees thirty minutes, and
north of the State of Missouri, are each relied on by the plaintiff in
error. As the residence in the territory affects the plaintiff's wife
and children as well as himself, I must inquire what was its effect.

The general question may be stated to be, whether the plaintiff's
_status_, as a slave, was so changed by his residence within that
territory, that he was not a slave in the State of Missouri, at the
time this action was brought.

In such cases, two inquiries arise, which may be confounded, but
should be kept distinct.

The first is, what was the law of the Territory into which the master
and slave went, respecting the relation between them?

The second is, whether the State of Missouri recognises and allows the
effect of that law of the Territory, on the _status_ of the slave, on
his return within its jurisdiction.

As to the first of these questions, the will of States and nations,
by whose municipal law slavery is not recognised, has been manifested
in three different ways.

One is, absolutely to dissolve the relation, and terminate the rights
of the master existing under the law of the country whence the parties
came. This is said by Lord Stowell, in the case of the slave Grace, (2
Hag. Ad. R., 94,) and by the Supreme Court of Louisiana in the case of
Maria [Transcriber's Note: Marie] Louise _v._ Marot, (9 Louis. R.,
473,) to be the law of France; and it has been the law of several
States of this Union, in respect to slaves introduced under certain
conditions. (Wilson _v._ Isabel, 5 Call's R., 430; Hunter _v._ Hulcher
[Transcriber's Note: Fulcher], 1 Leigh, 172; Stewart _v._ Oaks, 5 Har.
and John., 107.)

The second is, where the municipal law of a country not recognising
slavery, it is the will of the State to refuse the master all aid to
exercise any control over his slave; and if he attempt to do so, in a
manner justifiable only by that relation, to prevent the exercise of
that control. But no law exists, designed to operate directly on the
relation of master and slave, and put an end to that relation. This is
said by Lord Stowell, in the case above mentioned, to be the law of
England, and by Mr. Chief Justice Shaw, in the case of the
Commonwealth _v._ Aves, (18 Pick., 193,) to be the law of
Massachusetts.

The third is, to make a distinction between the case of a master and
his slave only temporarily in the country, _animo non manendi_, and
those who are there to reside for permanent or indefinite purposes.
This is said by Mr. Wheaton to be the law of Prussia, and was formerly
the statute law of several States of our Union. It is necessary in
this case to keep in view this distinction between those countries
whose laws are designed to act directly on the _status_ of a slave,
and make him a freeman, and those where his master can obtain no aid
from the laws to enforce his rights.

It is to the last case only that the authorities, out of Missouri,
relied on by defendant, apply, when the residence in the
non-slaveholding Territory was permanent. In the Commonwealth _v._
Aves, (18 Pick., 218,) Mr. Chief Justice Shaw said: "From the
principle above stated, on which a slave brought here becomes free, to
wit: that he becomes entitled to the protection of our laws, it would
seem to follow, as a necessary conclusion, that if the slave waives
the protection of those laws, and returns to the State where he is
held as a slave, his condition is not changed." It was upon this
ground, as is apparent from his whole reasoning, that Sir William
Scott rests his opinion in the case of the slave Grace. To use one of
his expressions, the effect of the law of England was to put the
liberty of the slave into a parenthesis. If there had been an act of
Parliament declaring that a slave coming to England with his master
should thereby be deemed no longer to be a slave, it is easy to see
that the learned judge could not have arrived at the same conclusion.
This distinction is very clearly stated and shown by President Tucker,
in his opinion in the case of Betty _v._ Horton, (5 Leigh's Virginia
R., 615.) (See also Hunter _v._ Fletcher [Transcriber's Note:
Fulcher], 1 Leigh's Va. R., 172; Maria [Transcriber's Note: Marie]
Louise _v._ Marot, 9 Louisiana R. [Transcriber's Note: at 473]; Smith
_v._ Smith, 13 Ib., 441; Thomas _v._ Genevieve, 16 Ib., 483; Rankin
_v._ Lydia, 2 A.K. Marshall, 467; Davies _v._ Tingle, 8 B. Munroe,
539; Griffeth [Transcriber's Note: Griffith] _v._ Fanny, Gilm. Va. R.,
143; Lumford _v._ Coquillon, 14 Martin's La. R., 405; Josephine _v._
Poultney, 1 Louis. Ann. R., 329.)

But if the acts of Congress on this subject are valid, the law of the
Territory of Wisconsin, within whose limits the residence of the
plaintiff and his wife, and their marriage and the birth of one or
both of their children, took place, falls under the first category,
and is a law operating directly on the _status_ of the slave. By the
eighth section of the act of March 6, 1820, (3 Stat. at Large, 548,)
it was enacted that, within this Territory, "slavery and involuntary
servitude, otherwise than in the punishment of crimes, whereof the
parties shall have been duly convicted, shall be, and is hereby,
forever prohibited: _Provided, always_, that any person escaping into
the same, from whom labor or service is lawfully claimed in any State
or Territory of the United States, such fugitive may be lawfully
reclaimed, and conveyed to the person claiming his or her labor or
service, as aforesaid."

By the act of April 20, 1836, (4 Stat. at Large, 10,) passed in the
same month and year of the removal of the plaintiff to Fort Snelling,
this part of the territory ceded by France, where Fort Snelling is,
together with so much of the territory of the United States east of
the Mississippi as now constitutes the State of Wisconsin, was brought
under a Territorial Government, under the name of the Territory of
Wisconsin. By the eighteenth section of this act, it was enacted,
"That the inhabitants of this Territory shall be entitled to and enjoy
all and singular the rights, privileges, and advantages, granted and
secured to the people of the Territory of the United States northwest
of the river Ohio, by the articles of compact contained in the
ordinance for the government of said Territory, passed on the 13th day
of July, 1787; and shall be subject to all the restrictions and
prohibitions in said articles of compact imposed upon the people of
the said Territory." The sixth article of that compact is, "there
shall be neither slavery nor involuntary servitude in the said
Territory, otherwise than in the punishment of crimes, whereof the
party shall have been duly convicted. _Provided, always_, that any
person escaping into the same, from whom labor or service is lawfully
claimed in any one of the original States, such fugitive may be
lawfully reclaimed, and conveyed to the person claiming his or her
labor or service, as aforesaid." By other provisions of this act
establishing the Territory of Wisconsin, the laws of the United
States, and the then existing laws of the State of Michigan, are
extended over the Territory; the latter being subject to alteration
and repeal by the legislative power of the Territory created by the
act.

Fort Snelling was within the Territory of Wisconsin, and these laws
were extended over it. The Indian title to that site for a military
post had been acquired from the Sioux nation as early as September 23,
1805, (Am. State Papers, Indian Affairs, vol. 1, p. 744,) and until
the erection of the Territorial Government, the persons at that post
were governed by the rules and articles of war, and such laws of the
United States, including the eighth section of the act of March 6,
1820, prohibiting slavery, as were applicable to their condition; but
after the erection of the Territory, and the extension of the laws of
the United States and the laws of Michigan over the whole of the
Territory, including this military post, the persons residing there
were under the dominion of those laws in all particulars to which the
rules and articles of war did not apply.

It thus appears that, by these acts of Congress, not only was a
general system of municipal law borrowed from the State of Michigan,
which did not tolerate slavery, but it was positively enacted that
slavery and involuntary servitude, with only one exception,
specifically described, should not exist there. It is not simply that
slavery is not recognised and cannot be aided by the municipal law. It
is recognised for the purpose of being absolutely prohibited, and
declared incapable of existing within the Territory, save in the
instance of a fugitive slave.

It would not be easy for the Legislature to employ more explicit
language to signify its will that the _status_ of slavery should not
exist within the Territory, than the words found in the act of 1820,
and in the ordinance of 1787; and if any doubt could exist concerning
their application to cases of masters coming into the Territory with
their slaves to reside, that doubt must yield to the inference
required by the words of exception. That exception is, of cases of
fugitive slaves. An exception from a prohibition marks the extent of
the prohibition; for it would be absurd, as well as useless, to except
from a prohibition a case not contained within it. (9 Wheat., 200.) I
must conclude, therefore, that it was the will of Congress that the
state of involuntary servitude of a slave, coming into the Territory
with his master, should cease to exist. The Supreme Court of Missouri
so held in Rachel _v._ Walker, (4 Misso. R., 350,) which was the case
of a military officer going into the Territory with two slaves.

But it is a distinct question, whether the law of Missouri recognised
and allowed effect to the change wrought in the _status_ of the
plaintiff, by force of the laws of the Territory of Wisconsin.

I say the law of Missouri, because a judicial tribunal, in one State
or nation, can recognise personal rights acquired by force of the law
of any other State or nation, only so far as it is the law of the
former State that those rights should be recognised. But, in the
absence of positive law to the contrary, the will of every civilized
State must be presumed to be to allow such effect to foreign laws as
is in accordance with the settled rules of international law. And
legal tribunals are bound to act on this presumption. It may be
assumed that the motive of the State in allowing such operation to
foreign laws is what has been termed comity. But, as has justly been
said, (per Chief Justice Taney, 13 Pet., 589,) it is the comity of the
State, not of the court. The judges have nothing to do with the motive
of the State. Their duty is simply to ascertain and give effect to its
will. And when it is found by them that its will to depart from a rule
of international law has not been manifested by the State, they are
bound to assume that its will is to give effect to it. Undoubtedly,
every sovereign State may refuse to recognise a change, wrought by the
law of a foreign State, on the _status_ of a person, while within such
foreign State, even in cases where the rules of international law
require that recognition. Its will to refuse such recognition may be
manifested by what we term statute law, or by the customary law of the
State. It is within the province of its judicial tribunals to inquire
and adjudge whether it appears, from the statute or customary law of
the State, to be the will of the State to refuse to recognise such
changes of _status_ by force of foreign law, as the rules of the law
of nations require to be recognised. But, in my opinion, it is not
within the province of any judicial tribunal to refuse such
recognition from any political considerations, or any view it may take
of the exterior political relations between the State and one or more
foreign States, or any impressions it may have that a change of
foreign opinion and action on the subject of slavery may afford a
reason why the State should change its own action. To understand and
give just effect to such considerations, and to change the action of
the State in consequence of them, are functions of diplomatists and
legislators, not of judges.

The inquiry to be made on this part of the case is, therefore, whether
the State of Missouri has, by its statute, or its customary law,
manifested its will to displace any rule of international law,
applicable to a change of the _status_ of a slave, by foreign law.

I have not heard it suggested that there was any statute of the State
of Missouri bearing on this question. The customary law of Missouri is
the common law, introduced by statute in 1816. (1 Ter. Laws, 436.) And
the common law, as Blackstone says, (4 Com., 67,) adopts, in its full
extent, the law of nations, and holds it to be a part of the law of
the land.

I know of no sufficient warrant for declaring that any rule of
international law, concerning the recognition, in that State, of a
change of _status_, wrought by an extra-territorial law, has been
displaced or varied by the will of the State of Missouri.

I proceed then to inquire what the rules of international law
prescribe concerning the change of _status_ of the plaintiff wrought
by the law of the Territory of Wisconsin.

It is generally agreed by writers upon international law, and the rule
has been judicially applied in a great number of cases that wherever
any question may arise concerning the _status_ of a person, it must be
determined according to that law which has next previously rightfully
operated on and fixed that _status_. And, further, that the laws of a
country do not rightfully operate upon and fix the _status_ of persons
who are within its limits _in itinere_, or who are abiding there for
definite temporary purposes, as for health, curiosity, or occasional
business; that these laws, known to writers on public and private
international law as personal statutes, operate only on the
inhabitants of the country. Not that it is or can be denied that each
independent nation may, if it thinks fit, apply them to all persons
within their limits. But when this is done, not in conformity with the
principles of international law, other States are not understood to be
willing to recognise or allow effect to such applications of personal
statutes.

It becomes necessary, therefore, to inquire whether the operation of
the laws of the Territory of Wisconsin upon the _status_ of the
plaintiff was or was not such an operation as these principles of
international law require other States to recognise and allow effect
to.

And this renders it needful to attend to the particular facts and
circumstances of this case.

It appears that this case came on for trial before the Circuit Court
and a jury, upon an issue, in substance, whether the plaintiff,
together with his wife and children, were the slaves of the defendant.

The court instructed the jury that, "upon the facts in this case, the
law is with the defendant." This withdrew from the jury the
consideration and decision of every matter of fact. The evidence in
the case consisted of written admissions, signed by the counsel of the
parties. If the case had been submitted to the judgment of the court,
upon an agreed statement of facts, entered of record, in place of a
special verdict, it would have been necessary for the court below, and
for this court, to pronounce its judgment solely on those facts, thus
agreed, without inferring any other facts therefrom. By the rules of
the common law applicable to such a case, and by force of the seventh
article of the amendments of the Constitution, this court is precluded
from finding any fact not agreed to by the parties on the record. No
submission to the court on a statement of facts was made. It was a
trial by jury, in which certain admissions, made by the parties, were
the evidence. The jury were not only competent, but were bound to draw
from that evidence every inference which, in their judgment, exercised
according to the rules of law, it would warrant. The Circuit Court
took from the jury the power to draw any inferences from the
admissions made by the parties, and decided the case for the
defendant. This course can be justified here, if at all, only by its
appearing that upon the facts agreed, and all such inferences of fact
favorable to the plaintiff's case, as the jury might have been
warranted in drawing from those admissions, the law was with the
defendant. Otherwise, the plaintiff would be deprived of the benefit
of his trial by jury, by whom, for aught we can know, those inferences
favorable to his case would have been drawn.

The material facts agreed, bearing on this part of the case, are, that
Dr. Emerson, the plaintiff's master, resided about two years at the
military post of Fort Snelling, being a surgeon in the army of the
United States, his domicil of origin being unknown; and what, if
anything, he had done, to preserve or change his domicil prior to his
residence at Rock Island, being also unknown.

Now, it is true, that under some circumstances the residence of a
military officer at a particular place, in the discharge of his
official duties, does not amount to the acquisition of a technical
domicil. But it cannot be affirmed, with correctness, that it never
does. There being actual residence, and this being presumptive
evidence of domicil, all the circumstances of the case must be
considered, before a legal conclusion can be reached, that his place
of residence is not his domicil. If a military officer stationed at a
particular post should entertain an expectation that his residence
there would be indefinitely protracted, and in consequence should
remove his family to the place where his duties were to be discharged,
form a permanent domestic establishment there, exercise there the
civil rights and discharge the civil duties of an inhabitant, while he
did no act and manifested no intent to have a domicil elsewhere, I
think no one would say that the mere fact that he was himself liable
to be called away by the orders of the Government would prevent his
acquisition of a technical domicil at the place of the residence of
himself and his family. In other words, I do not think a military
officer incapable of acquiring a domicil. (Bruce _v._ Bruce, 2 Bos.
and Pul., 230; Munroe _v._ Douglass, 5 Mad. Ch. R., 232.) This being
so, this case stands thus: there was evidence before the jury that
Emerson resided about two years at Fort Snelling, in the Territory of
Wisconsin. This may or may not have been with such intent as to make
it his technical domicil. The presumption is that it was. It is so
laid down by this court, in Ennis _v._ Smith, (14 How.,) and the
authorities in support of the position are there referred to. His
intent was a question of fact for the jury. (Fitchburg _v._
Winchendon, 4 Cush., 190.)

The case was taken from the jury. If they had power to find that the
presumption of the necessary intent had not been rebutted, we cannot
say, on this record, that Emerson had not his technical domicil at
Fort Snelling. But, for reasons which I shall now proceed to give, I
do not deem it necessary in this case to determine the question of the
technical domicil of Dr. Emerson.

It must be admitted that the inquiry whether the law of a particular
country has rightfully fixed the _status_ of a person, so that in
accordance with the principles of international law that _status_
should be recognised in other jurisdictions, ordinarily depends on the
question whether the person was domiciled in the country whose laws
are asserted to have fixed his _status_. But, in the United States,
questions of this kind may arise, where an attempt to decide solely
with reference to technical domicil, tested by the rules which are
applicable to changes of places of abode from one country to another,
would not be consistent with sound principles. And, in my judgment,
this is one of those cases.

The residence of the plaintiff, who was taken by his master, Dr.
Emerson, as a slave, from Missouri to the State of Illinois, and
thence to the Territory of Wisconsin, must be deemed to have been for
the time being, and until he asserted his own separate intention, the
same as the residence of his master; and the inquiry, whether the
personal statutes of the Territory were rightfully extended over the
plaintiff, and ought, in accordance with the rules of international
law, to be allowed to fix his _status_, must depend upon the
circumstances under which Dr. Emerson went into that Territory, and
remained there; and upon the further question, whether anything was
there rightfully done by the plaintiff to cause those personal
statutes to operate on him.

Dr. Emerson was an officer in the army of the United States. He went
into the Territory to discharge his duty to the United States. The
place was out of the jurisdiction of any particular State, and within
the exclusive jurisdiction of the United States. It does not appear
where the domicil of origin of Dr. Emerson was, nor whether or not he
had lost it, and gained another domicil, nor of what particular State,
if any, he was a citizen.

On what ground can it be denied that all valid laws of the United
States, constitutionally enacted by Congress for the government of the
Territory, rightfully extended over an officer of the United States
and his servant who went into the Territory to remain there for an
indefinite length of time, to take part in its civil or military
affairs? They were not foreigners, coming from abroad. Dr. Emerson was
a citizen of the country which had exclusive jurisdiction over the
Territory; and not only a citizen, but he went there in a public
capacity, in the service of the same sovereignty which made the laws.
Whatever those laws might be, whether of the kind denominated personal
statutes, or not, so far as they were intended by the legislative
will, constitutionally expressed, to operate on him and his servant,
and on the relations between them, they had a rightful operation, and
no other State or country can refuse to allow that those laws might
rightfully operate on the plaintiff and his servant, because such a
refusal would be a denial that the United States could, by laws
constitutionally enacted, govern their own servants, residing on their
own Territory, over which the United States had the exclusive control,
and in respect to which they are an independent sovereign power.
Whether the laws now in question were constitutionally enacted, I
repeat once more, is a separate question. But, assuming that they
were, and that they operated directly on the _status_ of the
plaintiff, I consider that no other State or country could question
the rightful power of the United States so to legislate, or,
consistently with the settled rules of international law, could refuse
to recognise the effects of such legislation upon the _status_ of
their officers and servants, as valid everywhere.

This alone would, in my apprehension, be sufficient to decide this
question.

But there are other facts stated on the record which should not be
passed over. It is agreed that, in the year 1836, the plaintiff, while
residing in the Territory, was married, with the consent of Dr.
Emerson, to Harriet, named in the declaration as his wife, and that
Eliza and Lizzie were the children of that marriage, the first named
having been born on the Mississippi river, north of the line of
Missouri, and the other having been born after their return to
Missouri. And the inquiry is, whether, after the marriage of the
plaintiff in the Territory, with the consent of Dr. Emerson, any other
State or country can, consistently with the settled rules of
international law, refuse to recognise and treat him as a free man,
when suing for the liberty of himself, his wife, and the children of
that marriage. It is in reference to his _status_, as viewed in other
States and countries, that the contract of marriage and the birth of
children becomes strictly material. At the same time, it is proper to
observe that the female to whom he was married having been taken to
the same military post of Fort Snelling as a slave, and Dr. Emerson
claiming also to be her master at the time of her marriage, her
_status_, and that of the children of the marriage, are also affected
by the same considerations.

If the laws of Congress governing the Territory of Wisconsin were
constitutional and valid laws, there can be no doubt these parties
were capable of contracting a lawful marriage, attended with all the
usual civil rights and obligations of that condition. In that
Territory they were absolutely free persons, having full capacity to
enter into the civil contract of marriage.

It is a principle of international law, settled beyond controversy in
England and America, that a marriage, valid by the law of the place
where it was contracted, and not in fraud of the law of any other
place, is valid everywhere; and that no technical domicil at the place
of the contract is necessary to make it so. (See Bishop on Mar. and
Div., 125-129, where the cases are collected.)

If, in Missouri, the plaintiff were held to be a slave, the validity
and operation of his contract of marriage must be denied. He can have
no legal rights; of course, not those of a husband and father. And the
same is true of his wife and children. The denial of his rights is the
denial of theirs. So that, though lawfully married in the Territory,
when they came out of it, into the State of Missouri, they were no
longer husband and wife; and a child of that lawful marriage, though
born under the same dominion where its parents contracted a lawful
marriage, is not the fruit of that marriage, nor the child of its
father, but subject to the maxim, _partus sequitur ventrem_.

It must be borne in mind that in this case there is no ground for the
inquiry, whether it be the will of the State of Missouri not to
recognise the validity of the marriage of a fugitive slave, who
escapes into a State or country where slavery is not allowed, and
there contracts a marriage; or the validity of such a marriage, where
the master, being a citizen of the State of Missouri, voluntarily goes
with his slave, _in itinere_, into a State or country which does not
permit slavery to exist, and the slave there contracts marriage
without the consent of his master; for in this case, it is agreed, Dr.
Emerson did consent; and no further question can arise concerning his
rights, so far as their assertion is inconsistent with the validity of
the marriage. Nor do I know of any ground for the assertion that this
marriage was in fraud of any law of Missouri. It has been held by this
court, that a bequest of property by a master to his slave, by
necessary implication entitles the slave to his freedom; because, only
as a freeman could he take and hold the bequest. (Legrand _v._
Darnall, 2 Pet. R., 664.) It has also been held, that when a master
goes with his slave to reside for an indefinite period in a State
where slavery is not tolerated, this operates as an act of
manumission; because it is sufficiently expressive of the consent of
the master that the slave should be free. (2 Marshall's Ken. R., 470;
14 Martin's Louis. R., 401.)

What, then, shall we say of the consent of the master, that the slave
may contract a lawful marriage, attended with all the civil rights and
duties which belong to that relation; that he may enter into a
relation which none but a free man can assume--a relation which
involves not only the rights and duties of the slave, but those of the
other party to the contract, and of their descendants to the remotest
generation? In my judgment, there can be no more effectual abandonment
of the legal rights of a master over his slave, than by the consent of
the master that the slave should enter into a contract of marriage, in
a free State, attended by all the civil rights and obligations which
belong to that condition.

And any claim by Dr. Emerson, or any one claiming under him, the
effect of which is to deny the validity of this marriage, and the
lawful paternity of the children born from it, wherever asserted, is,
in my judgment, a claim inconsistent with good faith and sound reason,
as well as with the rules of international law. And I go further: in
my opinion, a law of the State of Missouri, which should thus annul a
marriage, lawfully contracted by these parties while resident in
Wisconsin, not in fraud of any law of Missouri, or of any right of Dr.
Emerson, who consented thereto, would be a law impairing the
obligation of a contract, and within the prohibition of the
Constitution of the United States. (See 4 Wheat., 629, 695, 696.)

To avoid misapprehension on this important and difficult subject, I
will state, distinctly, the conclusions at which I have arrived. They
are:

_First._ The rules of international law respecting the emancipation of
slaves, by the rightful operation of the laws of another State or
country upon the _status_ of the slave, while resident in such foreign
State or country, are part of the common law of Missouri, and have not
been abrogated by any statute law of that State.

_Second._ The laws of the United States, constitutionally enacted,
which operated directly on and changed the _status_ of a slave coming
into the Territory of Wisconsin with his master, who went thither to
reside for an indefinite length of time, in the performance of his
duties as an officer of the United States, had a rightful operation on
the _status_ of the slave, and it is in conformity with the rules of
international law that this change of _status_ should be recognised
everywhere.

_Third._ The laws of the United States, in operation in the Territory
of Wisconsin at the time of the plaintiff's residence there, did act
directly on the _status_ of the plaintiff, and change his _status_ to
that of a free man.

_Fourth._ The plaintiff and his wife were capable of contracting, and,
with the consent of Dr. Emerson, did contract a marriage in that
Territory, valid under its laws; and the validity of this marriage
cannot be questioned in Missouri, save by showing that it was in fraud
of the laws of that State, or of some right derived from them; which
cannot be shown in this case, because the master consented to it.

_Fifth._ That the consent of the master that his slave, residing in a
country which does not tolerate slavery, may enter into a lawful
contract of marriage, attended with the civil rights and duties which
belong to that condition, is an effectual act of emancipation. And the
law does not enable Dr. Emerson, or any one claiming under him, to
assert a title to the married persons as slaves, and thus destroy the
obligation of the contract of marriage, and bastardize their issue,
and reduce them to slavery.

But it is insisted that the Supreme Court of Missouri has settled this
case by its decision in Scott _v._ Emerson, (15 Missouri Reports,
576;) and that this decision is in conformity with the weight of
authority elsewhere, and with sound principles. If the Supreme Court
of Missouri had placed its decision on the ground that it appeared Dr.
Emerson never became domiciled in the Territory and so its laws could
not rightfully operate on him and his slave; and the facts that he
went there to reside indefinitely, as an officer of the United States,
and that the plaintiff was lawfully married there, with Dr. Emerson's
consent, were left out of view, the decision would find support in
other cases, and I might not be prepared to deny its correctness. But
the decision is not rested on this ground. The domicil of Dr. Emerson
in that Territory is not questioned in that decision; and it is placed
on a broad denial of the operation, in Missouri, of the law of any
foreign State or country upon the _status_ of a slave, going with his
master from Missouri into such foreign State or country, even though
they went thither to become, and actually became, permanent
inhabitants of such foreign State or country, the laws whereof acted
directly on the _status_ of the slave, and changed his _status_ to
that of a freeman.

To the correctness of such a decision I cannot assent. In my judgment,
the opinion of the majority of the court in that case is in conflict
with its previous decisions, with a great weight of judicial authority
in other slaveholding States, and with fundamental principles of
private international law. Mr. Chief Justice Gamble, in his dissenting
opinion in that case, said:

"I regard the question as conclusively settled by repeated
adjudications of this court; and if I doubted or denied the propriety
of those decisions, I would not feel myself any more at liberty to
overturn them, than I would any other series of decisions by which the
law upon any other question had been settled. There is with me nothing
in the law of slavery which distinguishes it from the law on any other
subject, or allows any more accommodation to the temporary excitements
which have gathered around it.... But in the midst of all such
excitement, it is proper that the judicial mind, calm and
self-balanced, should adhere to principles established when there was
no feeling to disturb the view of the legal questions upon which the
rights of parties depend."

"In this State, it has been recognised from the beginning of the
Government as a correct position in law, that the master who takes his
slave to reside in a State or Territory where slavery is prohibited,
thereby emancipates his slave." (Winney _v._ Whitesides, 1 Mo., 473;
Le Grange [Transcriber's Note: La Grange] _v._ Chouteau, 2 Mo., 20;
Milley _v._ Smith, Ib., 36; Ralph _v._ Duncan, 3 Mo., 194; Julia _v._
McKinney, Ib., 270; Nat _v._ Ruddle, Ib., 400; Rachel _v._ Walker, 4
Mo., 350; Wilson _v._ Melvin, 592.)

Chief Justice Gamble has also examined the decisions of the courts of
other States in which slavery is established, and finds them in
accordance with these preceding decisions of the Supreme Court of
Missouri to which he refers.

It would be a useless parade of learning for me to go over the ground
which he has so fully and ably occupied.

But it is further insisted we are bound to follow this decision. I do
not think so. In this case, it is to be determined what laws of the
United States were in operation in the Territory of Wisconsin, and
what was their effect on the _status_ of the plaintiff. Could the
plaintiff contract a lawful marriage there? Does any law of the State
of Missouri impair the obligation of that contract of marriage,
destroy his rights as a husband, bastardize the issue of the marriage,
and reduce them to a state of slavery?

These questions, which arise exclusively under the Constitution and
laws of the United States, this court, under the Constitution and laws
of the United States, has the rightful authority finally to decide.
And if we look beyond these questions, we come to the consideration
whether the rules of international law, which are part of the laws of
Missouri until displaced by some statute not alleged to exist, do or
do not require the _status_ of the plaintiff, as fixed by the laws of
the Territory of Wisconsin, to be recognised in Missouri. Upon such a
question, not depending on any statute or local usage, but on
principles of universal jurisprudence, this court has repeatedly
asserted it could not hold itself bound by the decisions of State
courts, however great respect might be felt for their learning,
ability, and impartiality. (See Swift _v._ Tyson, 16 Peters's R., 1;
Carpenter _v._ The Providence Ins. Co., Ib., 495; Foxcroft _v._
Mallet, 4 How., 353; Rowan _v._ Runnels, 5 How., 134.)

Some reliance has been placed on the fact that the decision in the
Supreme Court of Missouri was between these parties, and the suit
there was abandoned to obtain another trial in the courts of the
United States.

In Homer _v._ Brown, (16 How., 354,) this court made a decision upon
the construction of a devise of lands, in direct opposition to the
unanimous opinion of the Supreme Court of Massachusetts, between the
same parties, respecting the same subject-matter--the claimant having
become nonsuit in the State court, in order to bring his action in the
Circuit Court of the United States. I did not sit in that case, having
been of counsel for one of the parties while at the bar; but, on
examining the report of the argument of the counsel for the plaintiff
in error, I find they made the point, that this court ought to give
effect to the construction put upon the will by the State court, to
the end that rights respecting lands may be governed by one law, and
that the law of the place where the lands are situated; that they
referred to the State decision of the case, reported in 3 Cushing,
390, and to many decisions of this court. But this court does not seem
to have considered the point of sufficient importance to notice it in
their opinions. In Millar _v._ Austin, (13 How., 218,) an action was
brought by the endorsee of a written promise. The question was,
whether it was negotiable under a statute of Ohio. The Supreme Court
of that State having decided it was not negotiable, the plaintiff
became nonsuit, and brought his action in the Circuit Court of the
United States. The decision of the Supreme Court of the State,
reported 4 Ves., L.J., 527, was relied on. This court unanimously held
the paper to be negotiable.

When the decisions of the highest court of a State are directly in
conflict with each other, it has been repeatedly held, here, that the
last decision is not necessarily to be taken as the rule. (State Bank
_v._ Knoop, 16 How., 369; Pease _v._ Peck, 18 How., 599.)

To these considerations I desire to add, that it was not made known to
the Supreme Court of Missouri, so far as appears, that the plaintiff
was married in Wisconsin with the consent of Dr. Emerson, and it is
not made known to us that Dr. Emerson was a citizen of Missouri, a
fact to which that court seem to have attached much importance.

Sitting here to administer the law between these parties, I do not
feel at liberty to surrender my own convictions of what the law
requires, to the authority of the decision in 15 Missouri Reports.

I have thus far assumed, merely for the purpose of the argument, that
the laws of the United States, respecting slavery in this Territory,
were constitutionally enacted by Congress. It remains to inquire
whether they are constitutional and binding laws.

In the argument of this part of the case at bar, it was justly
considered by all the counsel to be necessary to ascertain the source
of the power of Congress over the territory belonging to the United
States. Until this is ascertained, it is not possible to determine the
extent of that power. On the one side it was maintained that the
Constitution contains no express grant of power to organize and govern
what is now known to the laws of the United States as a Territory.
That whatever power of this kind exists, is derived by implication
from the capacity of the United States to hold and acquire territory
out of the limits of any State, and the necessity for its having some
government.

On the other side, it was insisted that the Constitution has not
failed to make an express provision for this end, and that it is found
in the third section of the fourth article of the Constitution.

To determine which of these is the correct view, it is needful to
advert to some facts respecting this subject, which existed when the
Constitution was framed and adopted. It will be found that these facts
not only shed much light on the question, whether the framers of the
Constitution omitted to make a provision concerning the power of
Congress to organize and govern Territories, but they will also aid in
the construction of any provision which may have been made respecting
this subject.

Under the Confederation, the unsettled territory within the limits of
the United States had been a subject of deep interest. Some of the
States insisted that these lands were within their chartered
boundaries, and that they had succeeded to the title of the Crown to
the soil. On the other hand, it was argued that the vacant lands had
been acquired by the United States, by the war carried on by them
under a common Government and for the common interest.

This dispute was further complicated by unsettled questions of
boundary among several States. It not only delayed the accession of
Maryland to the Confederation, but at one time seriously threatened
its existence. (5 Jour. of Cong., 208, 442.) Under the pressure of
these circumstances, Congress earnestly recommended to the several
States a cession of their claims and rights to the United States. (5
Jour. of Cong., 442.) And before the Constitution was framed, it had
been begun. That by New York had been made on the 1st day of March,
1781; that of Virginia on the 1st day of March, 1784; that of
Massachusetts on the 19th day of April, 1785; that of Connecticut on
the 14th day of September, 1786; that of South Carolina on the 8th day
of August, 1787, while the Convention for framing the Constitution was
in session.

It is very material to observe, in this connection, that each of these
acts cedes, in terms, to the United States, as well the jurisdiction
as the soil.

It is also equally important to note that, when the Constitution was
framed and adopted, this plan of vesting in the United States, for the
common good, the great tracts of ungranted lands claimed by the
several States, in which so deep an interest was felt, was yet
incomplete. It remained for North Carolina and Georgia to cede their
extensive and valuable claims. These were made, by North Carolina on
the 25th day of February, 1790, and by Georgia on the 24th day of
April, 1802. The terms of these last-mentioned cessions will
hereafter be noticed in another connection; but I observe here that
each of them distinctly shows, upon its face, that they were not only
in execution of the general plan proposed by the Congress of the
Confederation, but of a formed purpose of each of these States,
existing when the assent of their respective people was given to the
Constitution of the United States.

It appears, then, that when the Federal Constitution was framed, and
presented to the people of the several States for their consideration,
the unsettled territory was viewed as justly applicable to the common
benefit, so far as it then had or might attain thereafter a pecuniary
value; and so far as it might become the seat of new States, to be
admitted into the Union upon an equal footing with the original
States. And also that the relations of the United States to that
unsettled territory were of different kinds. The titles of the States
of New York, Virginia, Massachusetts, Connecticut, and South Carolina,
as well of soil as of jurisdiction, had been transferred to the United
States. North Carolina and Georgia had not actually made transfers,
but a confident expectation, founded on their appreciation of the
justice of the general claim, and fully justified by the results, was
entertained, that these cessions would be made. The ordinance of 1787
had made provision for the temporary government of so much of the
territory actually ceded as lay northwest of the river Ohio.

But it must have been apparent, both to the framers of the
Constitution and the people of the several States who were to act upon
it, that the Government thus provided for could not continue, unless
the Constitution should confer on the United States the necessary
powers to continue it. That temporary Government, under the ordinance,
was to consist of certain officers, to be appointed by and responsible
to the Congress of the Confederation; their powers had been conferred
and defined by the ordinance. So far as it provided for the temporary
government of the Territory, it was an ordinary act of legislation,
deriving its force from the legislative power of Congress, and
depending for its vitality upon the continuance of that legislative
power. But the officers to be appointed for the Northwestern
Territory, after the adoption of the Constitution, must necessarily be
officers of the United States, and not of the Congress of the
Confederation; appointed and commissioned by the President, and
exercising powers derived from the United States under the
Constitution.

Such was the relation between the United States and the Northwestern
Territory, which all reflecting men must have foreseen would exist,
when the Government created by the Constitution should supersede that
of the Confederation. That if the new Government should be without
power to govern this Territory, it could not appoint and commission
officers, and send them into the Territory, to exercise there
legislative, judicial, and executive power; and that this Territory,
which was even then foreseen to be so important, both politically and
financially, to all the existing States, must be left not only without
the control of the General Government, in respect to its future
political relations to the rest of the States, but absolutely without
any Government, save what its inhabitants, acting in their primary
capacity, might from time to time create for themselves.

But this Northwestern Territory was not the only territory, the soil
and jurisdiction whereof were then understood to have been ceded to
the United States. The cession by South Carolina, made in August,
1787, was of "all the territory included within the river Mississippi,
and a line beginning at that part of the said river which is
intersected by the southern boundary of North Carolina, and continuing
along the said boundary line until it intersects the ridge or chain of
mountains which divides the Eastern from the Western waters; then to
be continued along the top of the said ridge of mountains, until it
intersects a line to be drawn due west from the head of the southern
branch of the Tugaloo river, to the said mountains; and thence to run
a due west course to the river Mississippi."

It is true that by subsequent explorations it was ascertained that the
source of the Tugaloo river, upon which the title of South Carolina
depended, was so far to the northward, that the transfer conveyed only
a narrow slip of land, about twelve miles wide, lying on the top of
the ridge of mountains, and extending from the northern boundary of
Georgia to the southern boundary of North Carolina. But this was a
discovery made long after the cession, and there can be no doubt that
the State of South Carolina, in making the cession, and the Congress
in accepting it, viewed it as a transfer to the United States of the
soil and jurisdiction of an extensive and important part of the
unsettled territory ceded by the Crown of Great Britain by the treaty
of peace, though its quantity or extent then remained to be
ascertained.[5]

[Footnote 5: _Note by Mr. Justice Curtis._ This statement that _some_
territory did actually pass by this cession, is taken from the opinion
of the court, delivered by Mr. Justice Wayne, in the case of Howard
_v._ Ingersoll, reported in 13 How., 405. It is an obscure matter,
and, on some examination of it, I have been led to doubt whether any
territory actually passed by this cession. But as the fact is not
important to the argument, I have not thought it necessary further to
investigate it.]

It must be remembered also, as has been already stated, that not only
was there a confident expectation entertained by the other States,
that North Carolina and Georgia would complete the plan already so far
executed by New York, Virginia, Massachusetts, Connecticut, and South
Carolina, but that the opinion was in no small degree prevalent, that
the just title to this "back country," as it was termed, had vested in
the United States by the treaty of peace, and could not rightfully be
claimed by any individual State.

There is another consideration applicable to this part of the subject,
and entitled, in my judgment, to great weight.

The Congress of the Confederation had assumed the power not only to
dispose of the lands ceded, but to institute Governments and make laws
for their inhabitants. In other words, they had proceeded to act under
the cession, which, as we have seen, was as well of the jurisdiction
as of the soil. This ordinance was passed on the 13th of July, 1787.
The Convention for framing the Constitution was then in session at
Philadelphia. The proof is direct and decisive, that it was known to
the Convention.[6] It is equally clear that it was admitted and
understood not to be within the legitimate powers of the Confederation
to pass this ordinance. (Jefferson's Works, vol. 9, pp. 251, 276;
Federalist, Nos. 38, 43.)

[Footnote 6: It was published in a newspaper at Philadelphia, in May,
and a copy of it was sent by R.H. Lee to Gen. Washington, on the 15th
of July. (See p. 261, Cor. of Am. Rev., vol. 4, and Writings of
Washington, vol. 9, p. 174.)]

The importance of conferring on the new Government regular powers
commensurate with the objects to be attained, and thus avoiding the
alternative of a failure to execute the trust assumed by the
acceptance of the cessions made and expected, or its execution by
usurpation, could scarcely fail to be perceived. That it was in fact
perceived, is clearly shown by the Federalist, (No. 38,) where this
very argument is made use of in commendation of the Constitution.

Keeping these facts in view, it may confidently be asserted that there
is very strong reason to believe, before we examine the Constitution
itself, that the necessity for a competent grant of power to hold,
dispose of, and govern territory, ceded and expected to be ceded,
could not have escaped the attention of those who framed or adopted
the Constitution; and that if it did not escape their attention, it
could not fail to be adequately provided for.

Any other conclusion would involve the assumption that a subject of
the gravest national concern, respecting which the small States felt
so much jealousy that it had been almost an insurmountable obstacle to
the formation of the Confederation, and as to which all the States had
deep pecuniary and political interests, and which had been so recently
and constantly agitated, was nevertheless overlooked; or that such a
subject was not overlooked, but designedly left unprovided for, though
it was manifestly a subject of common concern, which belonged to the
care of the General Government, and adequate provision for which could
not fail to be deemed necessary and proper.

The admission of new States, to be framed out of the ceded territory,
early attracted the attention of the Convention. Among the resolutions
introduced by Mr. Randolph, on the 29th of May, was one on this
subject, (Res. No. 10, 5 Elliot, 128,) which, having been affirmed in
Committee of the Whole, on the 5th of June, (5 Elliot, 156,) and
reported to the Convention on the 13th of June, (5 Elliot, 190,) was
referred to the Committee of Detail, to prepare the Constitution, on
the 26th of July, (5 Elliot, 376.) This committee reported an article
for the admission of new States "lawfully constituted or established."
Nothing was said concerning the power of Congress to prepare or form
such States. This omission struck Mr. Madison, who, on the 18th of
August, (5 Elliot, 439,) moved for the insertion of power to dispose
of the unappropriated lands of the United States, and to institute
temporary Governments for new States arising therein.

On the 29th of August, (5 Elliot, 492,) the report of the committee
was taken up, and after debate, which exhibited great diversity of
views concerning the proper mode of providing for the subject, arising
out of the supposed diversity of interests of the large and small
States, and between those which had and those which had not unsettled
territory, but no difference of opinion respecting the propriety and
necessity of some adequate provision for the subject, Gouverneur
Morris moved the clause as it stands in the Constitution. This met
with general approbation, and was at once adopted. The whole section
is as follows:

"New States may be admitted by the Congress into this Union; but no
new State shall be formed or erected within the jurisdiction of any
other State, nor any State be formed by the junction of two or more
States, or parts of States, without the consent of the Legislatures of
the States concerned, as well as of Congress.

"The Congress shall have power to dispose of and make all needful
rules and regulations respecting the territory or other property
belonging to the United States; and nothing in this Constitution shall
be so construed as to prejudice any claims of the United States or any
particular State."

That Congress has some power to institute temporary Governments over
the territory, I believe all agree; and, if it be admitted that the
necessity of some power to govern the territory of the United States
could not and did not escape the attention of the Convention and the
people, and that the necessity is so great, that, in the absence of
any express grant, it is strong enough to raise an implication of the
existence of that power, it would seem to follow that it is also
strong enough to afford material aid in construing an express grant of
power respecting that territory; and that they who maintain the
existence of the power, without finding any words at all in which it
is conveyed, should be willing to receive a reasonable interpretation
of language of the Constitution, manifestly intended to relate to the
territory, and to convey to Congress some authority concerning it.

It would seem, also, that when we find the subject-matter of the
growth and formation and admission of new States, and the disposal of
the territory for these ends, were under consideration, and that some
provision therefor was expressly made, it is improbable that it would
be, in its terms, a grossly inadequate provision; and that an
indispensably necessary power to institute temporary Governments, and
to legislate for the inhabitants of the territory, was passed silently
by, and left to be deduced from the necessity of the case.

In the argument at the bar, great attention has been paid to the
meaning of the word "territory."

Ordinarily, when the territory of a sovereign power is spoken of, it
refers to that tract of country which is under the political
jurisdiction of that sovereign power. Thus Chief Justice Marshall (in
United States _v._ Bevans, 3 Wheat., 386) says: "What, then, is the
extent of jurisdiction which a State possesses? We answer, without
hesitation, the jurisdiction of a State is coextensive with its
territory." Examples might easily be multiplied of this use of the
word, but they are unnecessary, because it is familiar. But the word
"territory" is not used in this broad and general sense in this clause
of the Constitution.

At the time of the adoption of the Constitution, the United States
held a great tract of country northwest of the Ohio; another tract,
then of unknown extent, ceded by South Carolina; and a confident
expectation was then entertained, and afterwards realized, that they
then were or would become the owners of other great tracts, claimed by
North Carolina and Georgia. These ceded tracts lay within the limits
of the United States, and out of the limits of any particular State;
and the cessions embraced the civil and political jurisdiction, and so
much of the soil as had not previously been granted to individuals.

These words, "territory belonging to the United States," were not
used in the Constitution to describe an abstraction, but to identify
and apply to these actual subjects matter then existing and belonging
to the United States, and other similar subjects which might
afterwards be acquired; and this being so, all the essential qualities
and incidents attending such actual subjects are embraced within the
words "territory belonging to the United States," as fully as if each
of those essential qualities and incidents had been specifically
described.

I say, the essential qualities and incidents. But in determining what
were the essential qualities and incidents of the subject with which
they were dealing, we must take into consideration not only all the
particular facts which were immediately before them, but the great
consideration, ever present to the minds of those who framed and
adopted the Constitution, that they were making a frame of government
for the people of the United States and their posterity, under which
they hoped the United States might be, what they have now become, a
great and powerful nation, possessing the power to make war and to
conclude treaties, and thus to acquire territory. (See Cerré _v._
Pitot, 6 Cr., 336; Am. Ins. Co. _v._ Canter, 1 Pet., 542.) With these
in view, I turn to examine the clause of the article now in question.

It is said this provision has no application to any territory save
that then belonging to the United States. I have already shown that,
when the Constitution was framed, a confident expectation was
entertained, which was speedily realized, that North Carolina and
Georgia would cede their claims to that great territory which lay west
of those States. No doubt has been suggested that the first clause of
this same article, which enabled Congress to admit new States, refers
to and includes new States to be formed out of this territory,
expected to be thereafter ceded by North Carolina and Georgia, as well
as new States to be formed out of territory northwest of the Ohio,
which then had been ceded by Virginia. It must have been seen,
therefore, that the same necessity would exist for an authority to
dispose of and make all needful regulations respecting this territory,
when ceded, as existed for a like authority respecting territory which
had been ceded.

No reason has been suggested why any reluctance should have been felt,
by the framers of the Constitution, to apply this provision to all the
territory which might belong to the United States, or why any
distinction should have been made, founded on the accidental
circumstance of the dates of the cessions; a circumstance in no way
material as respects the necessity for rules and regulations, or the
propriety of conferring on the Congress power to make them. And if we
look at the course of the debates in the Convention on this article,
we shall find that the then unceded lands, so far from having been
left out of view in adopting this article, constituted, in the minds
of members, a subject of even paramount importance.

Again, in what an extraordinary position would the limitation of this
clause to territory then belonging to the United States, place the
territory which lay within the chartered limits of North Carolina and
Georgia. The title to that territory was then claimed by those States,
and by the United States; their respective claims are purposely left
unsettled by the express words of this clause; and when cessions were
made by those States, they were merely of their claims to this
territory, the United States neither admitting nor denying the
validity of those claims; so that it was impossible then, and has ever
since remained impossible, to know whether this territory did or did
not then belong to the United States; and, consequently, to know
whether it was within or without the authority conferred by this
clause, to dispose of and make rules and regulations respecting the
territory of the United States. This attributes to the eminent men who
acted on this subject a want of ability and forecast, or a want of
attention to the known facts upon which they were acting, in which I
cannot concur.

There is not, in my judgment, anything in the language, the history,
or the subject-matter of this article, which restricts its operation
to territory owned by the United States when the Constitution was
adopted.

But it is also insisted that provisions of the Constitution respecting
territory belonging to the United States do not apply to territory
acquired by treaty from a foreign nation. This objection must rest
upon the position that the Constitution did not authorize the Federal
Government to acquire foreign territory, and consequently has made no
provision for its government when acquired; or, that though the
acquisition of foreign territory was contemplated by the Constitution,
its provisions concerning the admission of new States, and the making
of all needful rules and regulations respecting territory belonging to
the United States, were not designed to be applicable to territory
acquired from foreign nations.

It is undoubtedly true, that at the date of the treaty of 1803,
between the United States and France, for the cession of Louisiana, it
was made a question, whether the Constitution had conferred on the
executive department of the Government of the United States power to
acquire foreign territory by a treaty.

There is evidence that very grave doubts were then entertained
concerning the existence of this power. But that there was then a
settled opinion in the executive and legislative branches of the
Government, that this power did not exist, cannot be admitted, without
at the same time imputing to those who negotiated and ratified the
treaty, and passed the laws necessary to carry it into execution, a
deliberate and known violation of their oaths to support the
Constitution; and whatever doubts may then have existed, the question
must now be taken to have been settled. Four distinct acquisitions of
foreign territory have been made by as many different treaties, under
as many different Administrations. Six States, formed on such
territory, are now in the Union. Every branch of this Government,
during a period of more than fifty years, has participated in these
transactions. To question their validity now, is vain. As was said by
Mr. Chief Justice Marshall, in the American Insurance Company _v._
Canter, (1 Peters, 542,) "the Constitution confers absolutely on the
Government of the Union the powers of making war and of making
treaties; consequently, that Government possesses the power of
acquiring territory, either by conquest or treaty." (See Cerré _v._
Pitot, 6 Cr., 336.) And I add, it also possesses the power of
governing it, when acquired, not by resorting to supposititious
powers, nowhere found described in the Constitution, but expressly
granted in the authority to make all needful rules and regulations
respecting the territory of the United States.

There was to be established by the Constitution a frame of government,
under which the people of the United States and their posterity were
to continue indefinitely. To take one of its provisions, the language
of which is broad enough to extend throughout the existence of the
Government, and embrace all territory belonging to the United States
throughout all time, and the purposes and objects of which apply to
all territory of the United States, and narrow it down to territory
belonging to the United States when the Constitution was framed, while
at the same time it is admitted that the Constitution contemplated and
authorized the acquisition, from time to time, of other and foreign
territory, seems to me to be an interpretation as inconsistent with
the nature and purposes of the instrument, as it is with its language,
and I can have no hesitation in rejecting it.

I construe this clause, therefore, as if it had read, Congress shall
have power to make all needful rules and regulations respecting those
tracts of country, out of the limits of the several States, which the
United States have acquired, or may hereafter acquire, by cessions, as
well of the jurisdiction as of the soil, so far as the soil may be
the property of the party making the cession, at the time of making
it.

It has been urged that the words "rules and regulations" are not
appropriate terms in which to convey authority to make laws for the
government of the territory.

But it must be remembered that this is a grant of power to the
Congress--that it is therefore necessarily a grant of power to
legislate--and, certainly, rules and regulations respecting a
particular subject, made by the legislative power of a country, can be
nothing but laws. Nor do the particular terms employed, in my
judgment, tend in any degree to restrict this legislative power. Power
granted to a Legislature to make all needful rules and regulations
respecting the territory, is a power to pass all needful laws
respecting it.

The word regulate, or regulation, is several times used in the
Constitution. It is used in the fourth section of the first article to
describe those laws of the States which prescribe the times, places,
and manner, of choosing Senators and Representatives; in the second
section of the fourth article, to designate the legislative action of
a State on the subject of fugitives from service, having a very close
relation to the matter of our present inquiry; in the second section
of the third article, to empower Congress to fix the extent of the
appellate jurisdiction of this court; and, finally, in the eighth
section of the first article are the words, "Congress shall have power
to regulate commerce."

It is unnecessary to describe the body of legislation which has been
enacted under this grant of power; its variety and extent are well
known. But it may be mentioned, in passing, that under this power to
regulate commerce, Congress has enacted a great system of municipal
laws, and extended it over the vessels and crews of the United States
on the high seas and in foreign ports, and even over citizens of the
United States resident in China; and has established judicatures, with
power to inflict even capital punishment within that country.

If, then, this clause does contain a power to legislate respecting the
territory, what are the limits of that power?

To this I answer, that, in common with all the other legislative
powers of Congress, it finds limits in the express prohibitions on
Congress not to do certain things; that, in the exercise of the
legislative power, Congress cannot pass an ex post facto law or bill
of attainder; and so in respect to each of the other prohibitions
contained in the Constitution.

Besides this, the rules and regulations must be needful. But
undoubtedly the question whether a particular rule or regulation be
needful, must be finally determined by Congress itself. Whether a law
be needful, is a legislative or political, not a judicial, question.
Whatever Congress deems needful is so, under the grant of power.

Nor am I aware that it has ever been questioned that laws providing
for the temporary government of the settlers on the public lands are
needful, not only to prepare them for admission to the Union as
States, but even to enable the United States to dispose of the lands.

Without government and social order, there can be no property; for
without law, its ownership, its use, and the power of disposing of it,
cease to exist, in the sense in which those words are used and
understood in all civilized States.

Since, then, this power was manifestly conferred to enable the United
States to dispose of its public lands to settlers, and to admit them
into the Union as States, when in the judgment of Congress they should
be fitted therefor, since these were the needs provided for, since it
is confessed that Government is indispensable to provide for those
needs, and the power is, to make _all needful_ rules and regulations
respecting the territory, I cannot doubt that this is a power to
govern the inhabitants of the territory, by such laws as Congress
deems needful, until they obtain admission as States.

Whether they should be thus governed solely by laws enacted by
Congress, or partly by laws enacted by legislative power conferred by
Congress, is one of those questions which depend on the judgment of
Congress--a question which of these is needful.

But it is insisted, that whatever other powers Congress may have
respecting the territory of the United States, the subject of negro
slavery forms an exception.

The Constitution declares that Congress shall have power to make
"_all_ needful rules and regulations" respecting the territory
belonging to the United States.

The assertion is, though the Constitution says all, it does not mean
all--though it says all, without qualification, it means all except
such as allow or prohibit slavery. It cannot be doubted that it is
incumbent on those who would thus introduce an exception not found in
the language of the instrument, to exhibit some solid and satisfactory
reason, drawn from the subject-matter or the purposes and objects of
the clause, the context, or from other provisions of the Constitution,
showing that the words employed in this clause are not to be
understood according to their clear, plain, and natural signification.

The subject-matter is the territory of the United States out of the
limits of every State, and consequently under the exclusive power of
the people of the United States. Their will respecting it, manifested
in the Constitution, can be subject to no restriction. The purposes
and objects of the clause were the enactment of laws concerning the
disposal of the public lands, and the temporary government of the
settlers thereon until new States should be formed. It will not be
questioned that, when the Constitution of the United States was framed
and adopted, the allowance and the prohibition of negro slavery were
recognised subjects of municipal legislation; every State had in some
measure acted thereon; and the only legislative act concerning the
territory--the ordinance of 1787, which had then so recently been
passed--contained a prohibition of slavery. The purpose and object of
the clause being to enable Congress to provide a body of municipal law
for the government of the settlers, the allowance or the prohibition
of slavery comes within the known and recognised scope of that purpose
and object.

There is nothing in the context which qualifies the grant of power.
The regulations must be "respecting the territory." An enactment that
slavery may or may not exist there, is a regulation respecting the
territory. Regulations must be needful; but it is necessarily left to
the legislative discretion to determine whether a law be needful. No
other clause of the Constitution has been referred to at the bar, or
has been seen by me, which imposes any restriction or makes any
exception concerning the power of Congress to allow or prohibit
slavery in the territory belonging to the United States.

A practical construction, nearly contemporaneous with the adoption of
the Constitution, and continued by repeated instances through a long
series of years, may always influence, and in doubtful cases should
determine, the judicial mind, on a question of the interpretation of
the Constitution. (Stuart _v._ Laird, 1 Cranch, 269; Martin _v._
Hunter, 1 Wheat., 304; Cohens _v._ Virginia, 6 Wheat., 264; Prigg _v._
Pennsylvania, 16 Pet., 621; Cooley _v._ Port Wardens, 12 How., 315.)

In this view, I proceed briefly to examine the practical construction
placed on the clause now in question, so far as it respects the
inclusion therein of power to permit or prohibit slavery in the
Territories.

It has already been stated, that after the Government of the United
States was organized under the Constitution, the temporary Government
of the Territory northwest of the river Ohio could no longer exist,
save under the powers conferred on Congress by the Constitution.
Whatever legislative, judicial, or executive authority should be
exercised therein could be derived only from the people of the United
States under the Constitution. And, accordingly, an act was passed on
the 7th day of August, 1789, (1 Stat. at Large, 50,) which recites:
"Whereas, in order that the ordinance of the United States in Congress
assembled, for the government of the territory northwest of the river
Ohio, _may continue to have full effect_, it is required that certain
provisions should be made, so as to adapt the same to the present
Constitution of the United States." It then provides for the
appointment by the President of all officers, who, by force of the
ordinance, were to have been appointed by the Congress of the
Confederation, and their commission in the manner required by the
Constitution; and empowers the Secretary of the Territory to exercise
the powers of the Governor in case of the death or necessary absence
of the latter.

Here is an explicit declaration of the will of the first Congress, of
which fourteen members, including Mr. Madison, had been members of the
Convention which framed the Constitution, that the ordinance, one
article of which prohibited slavery, "should continue to have full
effect." Gen. Washington, who signed this bill, as President, was the
President of that Convention.

It does not appear to me to be important, in this connection, that
that clause in the ordinance which prohibited slavery was one of a
series of articles of what is therein termed a compact. The Congress
of the Confederation had no power to make such a compact, nor to act
at all on the subject; and after what had been so recently said by Mr.
Madison on this subject, in the thirty-eighth number of the
_Federalist_, I cannot suppose that he, or any others who voted for
this bill, attributed any intrinsic effect to what was denominated in
the ordinance a compact between "the original States and the people
and States in the new territory;" there being no new States then in
existence in the territory, with whom a compact could be made, and the
few scattered inhabitants, unorganized into a political body, not
being capable of becoming a party to a treaty, even if the Congress of
the Confederation had had power to make one touching the government of
that territory.

I consider the passage of this law to have been an assertion by the
first Congress of the power of the United States to prohibit slavery
within this part of the territory of the United States; for it clearly
shows that slavery was thereafter to be prohibited there, and it could
be prohibited only by an exertion of the power of the United States,
under the Constitution; no other power being capable of operating
within that territory after the Constitution took effect.

On the 2d of April, 1790, (1 Stat. at Large, 106,) the first Congress
passed an act accepting a deed of cession by North Carolina of that
territory afterwards erected into the State of Tennessee. The fourth
express condition contained in this deed of cession, after providing
that the inhabitants of the Territory shall be temporarily governed in
the same manner as those beyond the Ohio, is followed by these words:
"_Provided, always_, that no regulations made or to be made by
Congress shall tend to emancipate slaves."

This provision shows that it was then understood Congress might make a
regulation prohibiting slavery, and that Congress might also allow it
to continue to exist in the Territory; and accordingly, when, a few
days later, Congress passed the act of May 20th, 1790, (1 Stat. at
Large, 123,) for the government of the Territory south of the river
Ohio, it provided, "and the Government of the Territory south of the
Ohio shall be similar to that now exercised in the Territory northwest
of the Ohio, except so far as is otherwise provided in the conditions
expressed in an act of Congress of the present session, entitled, 'An
act to accept a cession of the claims of the State of North Carolina
to a certain district of western territory.'" Under the Government
thus established, slavery existed until the Territory became the State
of Tennessee.

On the 7th of April, 1798, (1 Stat. at Large, 649,) an act was passed
to establish a Government in the Mississippi Territory in all respects
like that exercised in the Territory northwest of the Ohio, "excepting
and excluding the last article of the ordinance made for the
government thereof by the late Congress, on the 13th day of July,
1787." When the limits of this Territory had been amicably settled
with Georgia, and the latter ceded all its claim thereto, it was one
stipulation in the compact of cession, that the ordinance of July
13th, 1787, "shall in all its parts extend to the Territory contained
in the present act of cession, that article only excepted which
forbids slavery." The Government of this Territory was subsequently
established and organized under the act of May 10th, 1800; but so much
of the ordinance as prohibited slavery was not put in operation there.

Without going minutely into the details of each case, I will now give
reference to two classes of acts, in one of which Congress has
extended the ordinance of 1787, including the article prohibiting
slavery, over different Territories, and thus exerted its power to
prohibit it; in the other, Congress has erected Governments over
Territories acquired from France and Spain, in which slavery already
existed, but refused to apply to them that part of the Government
under the ordinance which excluded slavery.

Of the first class are the act of May 7th, 1800, (2 Stat. at Large,
58,) for the government of the Indiana Territory; the act of January
11th, 1805, (2 Stat. at Large, 309,) for the government of Michigan
Territory; the act of May 3d, 1809, (2 Stat. at Large, 514,) for the
government of the Illinois Territory; the act of April 20th, 1836, (5
Stat. at Large, 10,) for the government of the Territory of Wisconsin;
the act of June 12th, 1838, for the government of the Territory of
Iowa; the act of August 14th, 1848, for the government of the
Territory of Oregon. To these instances should be added the act of
March 6th, 1820, (3 Stat. at Large, 548,) prohibiting slavery in the
territory acquired from France, being northwest of Missouri, and north
of thirty-six degrees thirty minutes north latitude.

Of the second class, in which Congress refused to interfere with
slavery already existing under the municipal law of France or Spain,
and established Governments by which slavery was recognised and
allowed, are: the act of March 26th, 1804, (2 Stat. at Large, 283,)
for the government of Louisiana; the act of March 2d, 1805, (2 Stat.
at Large, 322,) for the government of the Territory of Orleans; the
act of June 4th, 1812, (2 Stat. at Large, 743,) for the government of
the Missouri Territory; the act of March 30th, 1822, (3 Stat. at
Large, 654,) for the government of the Territory of Florida. Here are
eight distinct instances, beginning with the first Congress, and
coming down to the year 1848, in which Congress has excluded slavery
from the territory of the United States; and six distinct instances in
which Congress organized Governments of Territories by which slavery
was recognised and continued, beginning also with the first Congress,
and coming down to the year 1822. These acts were severally signed by
seven Presidents of the United States, beginning with General
Washington, and coming regularly down as far as Mr. John Quincy Adams,
thus including all who were in public life when the Constitution was
adopted.

If the practical construction of the Constitution contemporaneously
with its going into effect, by men intimately acquainted with its
history from their personal participation in framing and adopting it,
and continued by them through a long series of acts of the gravest
importance, be entitled to weight in the judicial mind on a question
of construction, it would seem to be difficult to resist the force of
the acts above adverted to.

It appears, however, from what has taken place at the bar, that
notwithstanding the language of the Constitution, and the long line of
legislative and executive precedents under it, three different and
opposite views are taken of the power of Congress respecting slavery
in the Territories.

One is, that though Congress can make a regulation prohibiting slavery
in a Territory, they cannot make a regulation allowing it; another is,
that it can neither be established nor prohibited by Congress, but
that the people of a Territory, when organized by Congress, can
establish or prohibit slavery; while the third is, that the
Constitution itself secures to every citizen who holds slaves, under
the laws of any State, the indefeasible right to carry them into any
Territory, and there hold them as property.

No particular clause of the Constitution has been referred to at the
bar in support of either of these views. The first seems to be rested
upon general considerations concerning the social and moral evils of
slavery, its relations to republican Governments, its inconsistency
with the Declaration of Independence and with natural right.

The second is drawn from considerations equally general, concerning
the right of self-government, and the nature of the political
institutions which have been established by the people of the United
States.

While the third is said to rest upon the equal right of all citizens
to go with their property upon the public domain, and the inequality
of a regulation which would admit the property of some and exclude the
property of other citizens; and, inasmuch as slaves are chiefly held
by citizens of those particular States where slavery is established,
it is insisted that a regulation excluding slavery from a Territory
operates, practically, to make an unjust discrimination between
citizens of different States, in respect to their use and enjoyment of
the territory of the United States.

With the weight of either of these considerations, when presented to
Congress to influence its action, this court has no concern. One or
the other may be justly entitled to guide or control the legislative
judgment upon what is a needful regulation. The question here is,
whether they are sufficient to authorize this court to insert into
this clause of the Constitution an exception of the exclusion or
allowance of slavery, not found therein, nor in any other part of that
instrument. To engraft on any instrument a substantive exception not
found in it, must be admitted to be a matter attended with great
difficulty. And the difficulty increases with the importance of the
instrument, and the magnitude and complexity of the interests involved
in its construction. To allow this to be done with the Constitution,
upon reasons purely political, renders its judicial interpretation
impossible--because judicial tribunals, as such, cannot decide upon
political considerations. Political reasons have not the requisite
certainty to afford rules of juridical interpretation. They are
different in different men. They are different in the same men at
different times. And when a strict interpretation of the Constitution,
according to the fixed rules which govern the interpretation of laws,
is abandoned, and the theoretical opinions of individuals are allowed
to control its meaning, we have no longer a Constitution; we are under
the government of individual men, who for the time being have power to
declare what the Constitution is, according to their own views of what
it ought to mean. When such a method of interpretation of the
Constitution obtains, in place of a republican Government, with
limited and defined powers, we have a Government which is merely an
exponent of the will of Congress; or what, in my opinion, would not be
preferable, an exponent of the individual political opinions of the
members of this court.

If it can be shown, by anything in the Constitution itself, that when
it confers on Congress the power to make _all_ needful rules and
regulations respecting the territory belonging to the United States,
the exclusion or the allowance of slavery was excepted; or if anything
in the history of this provision tends to show that such an exception
was intended by those who framed and adopted the Constitution to be
introduced into it, I hold it to be my duty carefully to consider, and
to allow just weight to such considerations in interpreting the
positive text of the Constitution. But where the Constitution has said
_all_ needful rules and regulations, I must find something more than
theoretical reasoning to induce me to say it did not mean all.

There have been eminent instances in this court closely analogous to
this one, in which such an attempt to introduce an exception, not
found in the Constitution itself, has failed of success.

By the eighth section of the first article, Congress has the power of
exclusive legislation in all cases whatsoever within this District.

In the case of Loughborough _v._ Blake, (5 Whea., 324,) the question
arose, whether Congress has power to impose direct taxes on persons
and property in this District. It was insisted, that though the grant
of power was in its terms broad enough to include direct taxation, it
must be limited by the principle, that taxation and representation are
inseparable. It would not be easy to fix on any political truth,
better established or more fully admitted in our country, than that
taxation and representation must exist together. We went into the war
of the Revolution to assert it, and it is incorporated as fundamental
into all American Governments. But however true and important this
maxim may be, it is not necessarily of universal application. It was
for the people of the United States, who ordained the Constitution, to
decide whether it should or should not be permitted to operate within
this District. Their decision was embodied in the words of the
Constitution; and as that contained no such exception as would permit
the maxim to operate in this District, this court, interpreting that
language, held that the exception did not exist.

Again, the Constitution confers on Congress power to regulate commerce
with foreign nations. Under this, Congress passed an act on the 22d of
December, 1807, unlimited in duration, laying an embargo on all ships
and vessels in the ports or within the limits and jurisdiction of the
United States. No law of the United States ever pressed so severely
upon particular States. Though the constitutionality of the law was
contested with an earnestness and zeal proportioned to the ruinous
effects which were felt from it, and though, as Mr. Chief Justice
Marshall has said, (9 Wheat., 192,) "a want of acuteness in
discovering objections to a measure to which they felt the most
deep-rooted hostility will not be imputed to those who were arrayed in
opposition to this," I am not aware that the fact that it prohibited
the use of a particular species of property, belonging almost
exclusively to citizens of a few States, and this indefinitely, was
ever supposed to show that it was unconstitutional. Something much
more stringent, as a ground of legal judgment, was relied on--that the
power to regulate commerce did not include the power to annihilate
commerce.

But the decision was, that under the power to regulate commerce, the
power of Congress over the subject was restricted only by those
exceptions and limitations contained in the Constitution; and as
neither the clause in question, which was a general grant of power to
regulate commerce, nor any other clause of the Constitution, imposed
any restrictions as to the duration of an embargo, an unlimited
prohibition of the use of the shipping of the country was within the
power of Congress. On this subject, Mr. Justice Daniel, speaking for
the court in the case of United States _v._ Marigold, (9 How., 560,)
says: "Congress are, by the Constitution, vested with the power to
regulate commerce with foreign nations; and however, at periods of
high excitement, an application of the terms 'to regulate commerce,'
such as would embrace absolute prohibition, may have been questioned,
yet, since the passage of the embargo and non-intercourse laws, and
the repeated judicial sanctions these statutes have received, it can
scarcely at this day be open to doubt, that every subject falling
legitimately within the sphere of commercial regulation may be
partially or wholly excluded, when either measure shall be demanded by
the safety or the important interests of the entire nation. The power
once conceded, it may operate on any and every subject of commerce to
which the legislative discretion may apply it."

If power to regulate commerce extends to an indefinite prohibition of
the use of all vessels belonging to citizens of the several States,
and may operate, without exception, upon every subject of commerce to
which the legislative discretion may apply it, upon what grounds can I
say that power to make all needful rules and regulations respecting
the territory of the United States is subject to an exception of the
allowance or prohibition of slavery therein?

While the regulation is one "respecting the territory," while it is,
in the judgment of Congress, "a needful regulation," and is thus
completely within the words of the grant, while no other clause of the
Constitution can be shown, which requires the insertion of an
exception respecting slavery, and while the practical construction for
a period of upwards of fifty years forbids such an exception, it
would, in my opinion, violate every sound rule of interpretation to
force that exception into the Constitution upon the strength of
abstract political reasoning, which we are bound to believe the people
of the United States thought insufficient to induce them to limit the
power of Congress, because what they have said contains no such
limitation.

Before I proceed further to notice some other grounds of supposed
objection to this power of Congress, I desire to say, that if it were
not for my anxiety to insist upon what I deem a correct exposition of
the Constitution, if I looked only to the purposes of the argument,
the source of the power of Congress asserted in the opinion of the
majority of the court would answer those purposes equally well. For
they admit that Congress has power to organize and govern the
Territories until they arrive at a suitable condition for admission to
the Union; they admit, also, that the kind of Government which shall
thus exist should be regulated by the condition and wants of each
Territory, and that it is necessarily committed to the discretion of
Congress to enact such laws for that purpose as that discretion may
dictate; and no limit to that discretion has been shown, or even
suggested, save those positive prohibitions to legislate, which are
found in the Constitution.

I confess myself unable to perceive any difference whatever between my
own opinion of the general extent of the power of Congress and the
opinion of the majority of the court, save that I consider it
derivable from the express language of the Constitution, while they
hold it to be silently implied from the power to acquire territory.
Looking at the power of Congress over the Territories as of the extent
just described, what positive prohibition exists in the Constitution,
which restrained Congress from enacting a law in 1820 to prohibit
slavery north of thirty-six degrees thirty minutes north latitude?

The only one suggested is that clause in the fifth article of the
amendments of the Constitution which declares that no person shall be
deprived of his life, liberty, or property, without due process of
law. I will now proceed to examine the question, whether this clause
is entitled to the effect thus attributed to it. It is necessary,
first, to have a clear view of the nature and incidents of that
particular species of property which is now in question.

Slavery, being contrary to natural right, is created only by municipal
law. This is not only plain in itself, and agreed by all writers on
the subject, but is inferable from the Constitution, and has been
explicitly declared by this court. The Constitution refers to slaves
as "persons held to service in one State, under the laws thereof."
Nothing can more clearly describe a _status_ created by municipal law.
In Prigg _v._ Pennsylvania, (10 Pet., 611,) this court said: "The
state of slavery is deemed to be a mere municipal regulation, founded
on and limited to the range of territorial laws." In Rankin _v._
Lydia, (2 Marsh., 12, 470,) the Supreme Court of Appeals of Kentucky
said: "Slavery is sanctioned by the laws of this State, and the right
to hold them under our municipal regulations is unquestionable. But we
view this as a right existing by positive law of a municipal
character, without foundation in the law of nature or the unwritten
common law." I am not acquainted with any case or writer questioning
the correctness of this doctrine. (See also 1 Burge, Col. and For.
Laws, 738-741, where the authorities are collected.)

The _status_ of slavery is not necessarily always attended with the
same powers on the part of the master. The master is subject to the
supreme power of the State, whose will controls his action towards his
slave, and this control must be defined and regulated by the municipal
law. In one State, as at one period of the Roman law, it may put the
life of the slave into the hand of the master; others, as those of the
United States, which tolerate slavery, may treat the slave as a
person, when the master takes his life; while in others, the law may
recognise a right of the slave to be protected from cruel treatment.
In other words, the _status_ of slavery embraces every condition, from
that in which the slave is known to the law simply as a chattel, with
no civil rights, to that in which he is recognised as a person for all
purposes, save the compulsory power of directing and receiving the
fruits of his labor. Which of these conditions shall attend the
_status_ of slavery, must depend on the municipal law which creates
and upholds it.

And not only must the _status_ of slavery be created and measured by
municipal law, but the rights, powers, and obligations, which grow out
of that _status_, must be defined, protected, and enforced, by such
laws. The liability of the master for the torts and crimes of his
slave, and of third persons for assaulting or injuring or harboring or
kidnapping him, the forms and modes of emancipation and sale, their
subjection to the debts of the master, succession by death of the
master, suits for freedom, the capacity of the slave to be party to a
suit, or to be a witness, with such police regulations as have existed
in all civilized States where slavery has been tolerated, are among
the subjects upon which municipal legislation becomes necessary when
slavery is introduced.

Is it conceivable that the Constitution has conferred the right on
every citizen to become a resident on the territory of the United
States with his slaves, and there to hold them as such, but has
neither made nor provided for any municipal regulations which are
essential to the existence of slavery?

Is it not more rational to conclude that they who framed and adopted
the Constitution were aware that persons held to service under the
laws of a State are property only to the extent and under the
conditions fixed by those laws; that they must cease to be available
as property, when their owners voluntarily place them permanently
within another jurisdiction, where no municipal laws on the subject of
slavery exist; and that, being aware of these principles, and having
said nothing to interfere with or displace them, or to compel Congress
to legislate in any particular manner on the subject, and having
empowered Congress to make all needful rules and regulations
respecting the territory of the United States, it was their intention
to leave to the discretion of Congress what regulations, if any,
should be made concerning slavery therein? Moreover, if the right
exists, what are its limits, and what are its conditions? If citizens
of the United States have the right to take their slaves to a
Territory, and hold them there as slaves, without regard to the laws
of the Territory, I suppose this right is not to be restricted to the
citizens of slaveholding States. A citizen of a State which does not
tolerate slavery can hardly be denied the power of doing the same
thing. And what law of slavery does either take with him to the
Territory? If it be said to be those laws respecting slavery which
existed in the particular State from which each slave last came, what
an anomaly is this? Where else can we find, under the law of any
civilized country, the power to introduce and permanently continue
diverse systems of foreign municipal law, for holding persons in
slavery? I say, not merely to introduce, but permanently to continue,
these anomalies. For the offspring of the female must be governed by
the foreign municipal laws to which the mother was subject; and when
any slave is sold or passes by succession on the death of the owner,
there must pass with him, by a species of subrogation, and as a kind
of unknown _jus in re_, the foreign municipal laws which constituted,
regulated, and preserved, the _status_ of the slave before his
exportation. Whatever theoretical importance may be now supposed to
belong to the maintenance of such a right, I feel a perfect conviction
that it would, if ever tried, prove to be as impracticable in fact, as
it is, in my judgment, monstrous in theory.

I consider the assumption which lies at the basis of this theory to be
unsound; not in its just sense, and when properly understood, but in
the sense which has been attached to it. That assumption is, that the
territory ceded by France was acquired for the equal benefit of all
the citizens of the United States. I agree to the position. But it was
acquired for their benefit in their collective, not their individual,
capacities. It was acquired for their benefit, as an organized
political society, subsisting as "the people of the United States,"
under the Constitution of the United States; to be administered justly
and impartially, and as nearly as possible for the equal benefit of
every individual citizen, according to the best judgment and
discretion of the Congress; to whose power, as the Legislature of the
nation which acquired it, the people of the United States have
committed its administration. Whatever individual claims may be
founded on local circumstances, or sectional differences of condition,
cannot, in my opinion, be recognised in this court, without arrogating
to the judicial branch of the Government powers not committed to it;
and which, with all the unaffected respect I feel for it, when acting
in its proper sphere, I do not think it fitted to wield.

Nor, in my judgment, will the position, that a prohibition to bring
slaves into a Territory deprives any one of his property without due
process of law, bear examination.

It must be remembered that this restriction on the legislative power
is not peculiar to the Constitution of the United States; it was
borrowed from _Magna Charta_; was brought to America by our ancestors,
as part of their inherited liberties, and has existed in all the
States, usually in the very words of the great charter. It existed in
every political community in America in 1787, when the ordinance
prohibiting slavery north and west of the Ohio was passed.

And if a prohibition of slavery in a Territory in 1820 violated this
principle of _Magna Charta_, the ordinance of 1787 also violated it;
and what power had, I do not say the Congress of the Confederation
alone, but the Legislature of Virginia, or the Legislature of any or
all the States of the Confederacy, to consent to such a violation? The
people of the States had conferred no such power. I think I may at
least say, if the Congress did then violate _Magna Charta_ by the
ordinance, no one discovered that violation. Besides, if the
prohibition upon all persons, citizens as well as others, to bring
slaves into a Territory, and a declaration that if brought they shall
be free, deprives citizens of their property without due process of
law, what shall we say of the legislation of many of the slaveholding
States which have enacted the same prohibition? As early as October,
1778, a law was passed in Virginia, that thereafter no slave should be
imported into that Commonwealth by sea or by land, and that every
slave who should be imported should become free. A citizen of Virginia
purchased in Maryland a slave who belonged to another citizen of
Virginia, and removed with the slave to Virginia. The slave sued for
her freedom, and recovered it; as may be seen in Wilson _v._ Isabel,
(5 Call's R., 425.) See also Hunter _v._ Hulsher [Transcriber's Note:
Fulcher], (1 Leigh, 172;) and a similar law has been recognised as
valid in Maryland, in Stewart _v._ Oaks, (5 Har. and John., 107.) I am
not aware that such laws, though they exist in many States, were ever
supposed to be in conflict with the principle of _Magna Charta_
incorporated into the State Constitutions. It was certainly understood
by the Convention which framed the Constitution, and has been so
understood ever since, that, under the power to regulate commerce,
Congress could prohibit the importation of slaves; and the exercise of
the power was restrained till 1808. A citizen of the United States
owns slaves in Cuba, and brings them to the United States, where they
are set free by the legislation of Congress. Does this legislation
deprive him of his property without due process of law? If so, what
becomes of the laws prohibiting the slave trade? If not, how can a
similar regulation respecting a Territory violate the fifth amendment
of the Constitution?

Some reliance was placed by the defendant's counsel upon the fact that
the prohibition of slavery in this territory was in the words, "that
slavery, &c., shall be and is hereby _forever_ prohibited." But the
insertion of the word _forever_ can have no legal effect. Every
enactment not expressly limited in its duration continues in force
until repealed or abrogated by some competent power, and the use of
the word "forever" can give to the law no more durable operation. The
argument is, that Congress cannot so legislate as to bind the future
States formed out of the territory, and that in this instance it has
attempted to do so. Of the political reasons which may have induced
the Congress to use these words, and which caused them to expect that
subsequent Legislatures would conform their action to the then general
opinion of the country that it ought to be permanent, this court can
take no cognizance.

However fit such considerations are to control the action of Congress,
and however reluctant a statesman may be to disturb what has been
settled, every law made by Congress may be repealed, and, saving
private rights, and public rights gained by States, its repeal is
subject to the absolute will of the same power which enacted it. If
Congress had enacted that the crime of murder, committed in this
Indian Territory, north of thirty-six degrees thirty minutes, by or on
any white man, should _forever_ be punishable with death, it would
seem to me an insufficient objection to an indictment, found while it
was a Territory, that at some future day States might exist there, and
so the law was invalid, because, by its terms, it was to continue in
force forever. Such an objection rests upon a misapprehension of the
province and power of courts respecting the constitutionality of laws
enacted by the Legislature.

If the Constitution prescribe one rule, and the law another and
different rule, it is the duty of courts to declare that the
Constitution, and not the law, governs the case before them for
judgment. If the law include no case save those for which the
Constitution has furnished a different rule, or no case which the
Legislature has the power to govern, then the law can have no
operation. If it includes cases which the Legislature has power to
govern, and concerning which the Constitution does not prescribe a
different rule, the law governs those cases, though it may, in its
terms, attempt to include others, on which it cannot operate. In other
words, this court cannot declare void an act of Congress which
constitutionally embraces some cases, though other cases, within its
terms, are beyond the control of Congress, or beyond the reach of that
particular law. If, therefore, Congress had power to make a law
excluding slavery from this territory while under the exclusive power
of the United States, the use of the word "forever" does not
invalidate the law, so long as Congress has the exclusive legislative
power in the territory.

But it is further insisted that the treaty of 1803, between the United
States and France, by which this territory was acquired, has so
restrained the constitutional powers of Congress, that it cannot, by
law, prohibit the introduction of slavery into that part of this
territory north and west of Missouri, and north of thirty-six degrees
thirty minutes north latitude.

By a treaty with a foreign nation, the United States may rightfully
stipulate that the Congress will or will not exercise its legislative
power in some particular manner, on some particular subject. Such
promises, when made, should be voluntarily kept, with the most
scrupulous good faith. But that a treaty with a foreign nation can
deprive the Congress of any part of the legislative power conferred by
the people, so that it no longer can legislate as it was empowered by
the Constitution to do, I more than doubt.

The powers of the Government do and must remain unimpaired. The
responsibility of the Government to a foreign nation, for the exercise
of those powers, is quite another matter. That responsibility is to be
met, and justified to the foreign nation, according to the
requirements of the rules of public law; but never upon the assumption
that the United States had parted with or restricted any power of
acting according to its own free will, governed solely by its own
appreciation of its duty.

The second section of the fourth article is, "This Constitution, and
the laws of the United States which shall be made in pursuance
thereof, and all treaties made or which shall be made under the
authority of the United States, shall be the supreme law of the land."
This has made treaties part of our municipal law; but it has not
assigned to them any particular degree of authority, nor declared that
laws so enacted shall be irrepealable. No supremacy is assigned to
treaties over acts of Congress. That they are not perpetual, and must
be in some way repealable, all will agree.

If the President and the Senate alone possess the power to repeal or
modify a law found in a treaty, inasmuch as they can change or
abrogate one treaty only by making another inconsistent with the
first, the Government of the United States could not act at all, to
that effect, without the consent of some foreign Government. I do not
consider, I am not aware it has ever been considered, that the
Constitution has placed our country in this helpless condition. The
action of Congress in repealing the treaties with France by the act of
July 7th, 1798, (1 Stat. at Large, 578,) was in conformity with these
views. In the case of Taylor et al. _v._ Morton, (2 Curtis's Cir. Ct.
R., 454,) I had occasion to consider this subject, and I adhere to
the views there expressed.

If, therefore, it were admitted that the treaty between the United
States and France did contain an express stipulation that the United
States would not exclude slavery from so much of the ceded territory
as is now in question, this court could not declare that an act of
Congress excluding it was void by force of the treaty. Whether or no a
case existed sufficient to justify a refusal to execute such a
stipulation, would not be a judicial, but a political and legislative
question, wholly beyond the authority of this court to try and
determine. It would belong to diplomacy and legislation, and not to
the administration of existing laws. Such a stipulation in a treaty,
to legislate or not to legislate in a particular way, has been
repeatedly held in this court to address itself to the political or
the legislative power, by whose action thereon this court is bound.
(Foster _v._ Nicolson, 2 Peters, 314; Garcia _v._ Lee, 12 Peters,
519.)

But, in my judgment, this treaty contains no stipulation in any manner
affecting the action of the United States respecting the territory in
question. Before examining the language of the treaty, it is material
to bear in mind that the part of the ceded territory lying north of
thirty-six degrees thirty minutes, and west and north of the present
State of Missouri, was then a wilderness, uninhabited save by savages,
whose possessory title had not then been extinguished.

It is impossible for me to conceive on what ground France could have
advanced a claim, or could have desired to advance a claim, to
restrain the United States from making any rules and regulations
respecting this territory, which the United States might think fit to
make; and still less can I conceive of any reason which would have
induced the United States to yield to such a claim. It was to be
expected that France would desire to make the change of sovereignty
and jurisdiction as little burdensome as possible to the then
inhabitants of Louisiana, and might well exhibit even an anxious
solicitude to protect their property and persons, and secure to them
and their posterity their religious and political rights; and the
United States, as a just Government, might readily accede to all
proper stipulations respecting those who were about to have their
allegiance transferred. But what interest France could have in
uninhabited territory, which, in the language of the treaty, was to be
transferred "forever, and in full sovereignty," to the United States,
or how the United States could consent to allow a foreign nation to
interfere in its purely internal affairs, in which that foreign nation
had no concern whatever, is difficult for me to conjecture. In my
judgment, this treaty contains nothing of the kind.

The third article is supposed to have a bearing on the question. It is
as follows: "The inhabitants of the ceded territory shall be
incorporated in the Union of the United States, and admitted as soon
as possible, according to the principles of the Federal Constitution,
to the enjoyment of all the rights, advantages, and immunities, of
citizens of the United States; and in the mean time they shall be
maintained and protected in the enjoyment of their liberty, property,
and the religion they profess."

There are two views of this article, each of which, I think,
decisively shows that it was not intended to restrain the Congress
from excluding slavery from that part of the ceded territory then
uninhabited. The first is, that, manifestly, its sole object was to
protect individual rights of the then inhabitants of the territory.
They are to be "maintained and protected in the free enjoyment of
their liberty, property, and the religion they profess." But this
article does not secure to them the right to go upon the public domain
ceded by the treaty, either with or without their slaves. The right or
power of doing this did not exist before or at the time the treaty was
made. The French and Spanish Governments while they held the country,
as well as the United States when they acquired it, always exercised
the undoubted right of excluding inhabitants from the Indian country,
and of determining when and on what conditions it should be opened to
settlers. And a stipulation, that the then inhabitants of Louisiana
should be protected in their property, can have no reference to their
use of that property, where they had no right, under the treaty, to go
with it, save at the will of the United States. If one who was an
inhabitant of Louisiana at the time of the treaty had afterwards taken
property then owned by him, consisting of fire-arms, ammunition, and
spirits, and had gone into the Indian country north of thirty-six
degrees thirty minutes, to sell them to the Indians, all must agree
the third article of the treaty would not have protected him from
indictment under the act of Congress of March 30, 1802, (2 Stat. at
Large, 139,) adopted and extended to this territory by the act of
March 26, 1804, (2 Stat. at Large, 283.)

Besides, whatever rights were secured were individual rights. If
Congress should pass any law which violated such rights of any
individual, and those rights were of such a character as not to be
within the lawful control of Congress under the Constitution, that
individual could complain, and the act of Congress, as to such rights
of his, would be inoperative; but it would be valid and operative as
to all other persons, whose individual rights did not come under the
protection of the treaty. And inasmuch as it does not appear that any
inhabitant of Louisiana, whose rights were secured by treaty, had been
injured, it would be wholly inadmissible for this court to assume,
first, that one or more such cases may have existed; and, second, that
if any did exist, the entire law was void--not only as to those cases,
if any, in which it could not rightfully operate, but as to all
others, wholly unconnected with the treaty, in which such law could
rightfully operate.

But it is quite unnecessary, in my opinion, to pursue this inquiry
further, because it clearly appears from the language of the article,
and it has been decided by this court, that the stipulation was
temporary, and ceased to have any effect when the then inhabitants of
the Territory of Louisiana, in whose behalf the stipulation was made,
were incorporated into the Union.

In the cases of New Orleans _v._ De Armas et al., (9 Peters, 223,) the
question was, whether a title to property, which existed at the date
of the treaty, continued to be protected by the treaty after the State
of Louisiana was admitted to the Union. The third article of the
treaty was relied on. Mr. Chief Justice Marshall said: "This article
obviously contemplates two objects. One, that Louisiana shall be
admitted into the Union as soon as possible, on an equal footing with
the other States; and the other, that, till such admission, the
inhabitants of the ceded territory shall be protected in the free
enjoyment of their liberty, property, and religion. Had any one of
these rights been violated while these stipulations continued in
force, the individual supposing himself to be injured might have
brought his case into this court, under the twenty-fifth section of
the judicial act. But this stipulation ceased to operate when
Louisiana became a member of the Union, and its inhabitants were
'admitted to the enjoyment of all the rights, advantages, and
immunities, of citizens of the United States.'"

The cases of Chouteau _v._ Marguerita, (12 Peters, 507,) and Permoli
_v._ New Orleans, (3 How., 589,) are in conformity with this view of
the treaty.

To convert this temporary stipulation of the treaty, in behalf of
French subjects who then inhabited a small portion of Louisiana, into
a permanent restriction upon the power of Congress to regulate
territory then uninhabited, and to assert that it not only restrains
Congress from affecting the rights of property of the then
inhabitants, but enabled them and all other citizens of the United
States to go into any part of the ceded territory with their slaves,
and hold them there, is a construction of this treaty so opposed to
its natural meaning, and so far beyond its subject-matter and the
evident design of the parties, that I cannot assent to it. In my
opinion, this treaty has no bearing on the present question.

For these reasons, I am of opinion that so much of the several acts of
Congress as prohibited slavery and involuntary servitude within that
part of the Territory of Wisconsin lying north of thirty-six degrees
thirty minutes north latitude, and west of the river Mississippi, were
constitutional and valid laws.

I have expressed my opinion, and the reasons therefor, at far greater
length than I could have wished, upon the different questions on which
I have found it necessary to pass, to arrive at a judgment on the case
at bar. These questions are numerous, and the grave importance of some
of them required me to exhibit fully the grounds of my opinion. I have
touched no question which, in the view I have taken, it was not
absolutely necessary for me to pass upon, to ascertain whether the
judgment of the Circuit Court should stand or be reversed. I have
avoided no question on which the validity of that judgment depends. To
have done either more or less, would have been inconsistent with my
views of my duty.

In my opinion, the judgment of the Circuit Court should be reversed,
and the cause remanded for a new trial.