DRED SCOTT, PLAINTIFF IN ERROR, v. JOHN F. A. SANDFORD.
SUPREME COURT OF THE UNITED STATES
60 U.S. 393; 15 L. Ed. 691
DECEMBER, 1856 Term
PRIOR HISTORY: 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. JOHN F. A. SANDFORD.
Plea to the Jurisdiction of the Court.
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
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.
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 a 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 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.
SYLLABUS:
I.
1. Upon a writ of error to a Circuit Court of the United
States, the transcript of the record of all the proceedings
of the case is brought before this court, and is open to its
inspection and revision.
2. When a plea to the jurisdiction, in abatement, is overruled
by the court upon demurrer, and the defendant pleads in bar,
and upon these pleas the final judgment of the court is in
his favor -- if the plaintiff brings a writ of error, the
judgment of the court upon the plea in abatement is before
this court, although it was in favor of the plaintiff -- and
if the court erred in overruling it, the judgment must be
reversed, and a mandate issued to the Circuit Court to
dismiss the case for want of jurisdiction.
3. In the Circuit Courts of the United States, the record must
show that the case is one in which, by the Constitution and
laws of the United States, the court had jurisdiction -- and
if this does not appear, and the court gives judgment either
for plaintiff or defendant, it is error, and the judgment
must be reversed by this court -- and the parties cannot by
consent waive the objection to the jurisdiction of the
Circuit Court.
4. A free negro of the African race, whose ancestors were
brought to this country and sold as slaves, is not a
"citizen" within the meaning of the Constitution of the
United States.
5. When the Constitution was adopted, they were not regarded in
any of the States as members of the community which
constituted the State, and were not numbered among its
"people or citizens." Consequently, the special rights and
immunities guarantied to citizens do not apply to them. And
not being "citizens" within the meaning of the Constitution,
they are not entitled to sue in that character in a court of
the United States, and the Circuit Court has not
jurisdiction in such a suit.
6. The only two clauses in the Constitution which point to this
race, treat them as persons whom it was morally lawful to
deal in as articles of property and to hold as slaves.
7. Since the adoption of the Constitution of the United States,
no State can by any subsequent law make a foreigner or any
other description of persons citizens of the United States,
nor entitle them to the rights and privileges secured to
citizens by that instrument.
8. A State, by its laws passed since the adoption of the
Constitution, may put a foreigner or any other description
of persons upon a footing with its own citizens, as to all
the rights and privileges enjoyed by them within its
dominion and by its laws. But that will not make him a
citizen of the United States, nor entitle him to sue in its
courts, nor to any of the privileges and immunities of a
citizen in another State.
9. The change in public opinion and feeling in relation to the
African race, which has taken place since the adoption of
the Constitution, cannot change its construction and
meaning, and it must be construed and administered now
according to its true meaning and intention when it was
formed and adopted.
10. The plaintiff having admitted, by his demurrer to the plea
in abatement, that his ancestors were imported from Africa
and sold as slaves, he is not a citizen of the State of
Missouri according to the Constitution of the United States,
and was not entitled to sue in that character in the Circuit
Court.
11. This being the case, the judgment of the court below, in
favor of the plaintiff on the plea in abatement, was
erroneous.
II.
1. But if the plea in abatement is not brought up by this writ
of error, the objection to the citizenship of the plaintiff
is still apparent on the record, as he himself, in making
out his case, states that he is of African descent, was born
a slave, and claims that he and his family became entitled
to freedom by being taken, by their owner, to reside in a
Territory where slavery is prohibited by act of Congress --
and that, in addition to this claim, he himself became
entitled to freedom by being taken to Rock Island, in the
State of Illinois -- and being free when he was brought back
to Missouri, he was by the laws of that State a citizen.
2. If, therefore, the facts he states do not give him or his
family a right to freedom, the plaintiff is still a slave,
and not entitled to sue as a "citizen," and the judgment of
the Circuit Court was erroneous on that ground also, without
any reference to the plea in abatement.
3. The Circuit Court can give no judgment for plaintiff or
defendant in a case where it has not jurisdiction, no matter
whether there be a plea in abatement or not. And unless it
appears upon the face of the record, when brought here by
writ of error, that the Circuit Court had jurisdiction, the
judgment must be reversed.
The case of Capron v. Van Noorden (2 Cranch, 126)
examined, and the principles thereby decided, reaffirmed.
4. When the record, as brought here by writ of error, does not
show that the Circuit Court had jurisdiction, this court has
jurisdiction to revise and correct the error, like any other
error in the court below. It does not and cannot dismiss the
case for want of jurisdiction here; for that would leave the
erroneous judgment of the court below in full force, and the
party injured without remedy. But it must reverse the
judgment, and, as in any other case of reversal, send a
mandate to the Circuit Court to conform its judgment to the
opinion of this court.
5. The difference of the jurisdiction in this court in the
cases of writs of error to State courts and to Circuit
Courts of the United States, pointed out; and the mistakes
made as to the jurisdiction of this court in the latter
case, by confounding it with its limited jurisdiction in the
former.
6. If the court reverses a judgment upon the ground that it
appears by a particular parts of the record that the Circuit
Court had not jurisdiction, it does not take away the
jurisdiction of this court to examine into and correct, by a
reversal of the judgment, any other errors, either as to the
jurisdiction or any other matter, where it appears from
other parts of the record that the Circuit Court had fallen
into error. On the contrary, it is the daily and familiar
practice of this court to reverse on several grounds, where
more than one error appears to have been committed. And the
error of a Circuit Court in its jurisdiction stands on the
same ground, and is to be treated in the same manner as any
other error upon which its judgment is founded.
7. The decision, therefore, that the judgment of the Circuit
Court upon the plea in abatement is erroneous, is no reason
why the alleged error apparent in the exception should not
also be examined, and the judgment reversed on that ground
also, if it discloses a want of jurisdiction in the Circuit
Court.
8. It is often the duty of this court, after having decided
that a particular decision of the Circuit Court was
erroneous, to examine into other alleged errors, and to
correct them if they are found to exist. And this has been
uniformly done by this court when the question are in any
degree connected with the controversy, and the silence of
the court might create doubts which would lead to further
and useless litigation.
III.
1. The facts upon which the plaintiff relies, did not give him
his freedom, and make him a citizen of Missouri.
2. The clause in the Constitution authorizing Congress to make
all needful rules and regulations for the government of the
territory and other property of the United States, applies
only to territory within the chartered limits of some one of
the States when they were colonies of Great Britain, and
which was surrendered by the British Government to the old
Confederation of the States, in the treaty of peace. It does
not apply to territory acquired by the present Federal
Government, by treaty or conquest, from a foreign nation.
The case of the American and Ocean Insurance
Companies v. Canter (1 Peters, 511) referred to and
examined, showing that the decision in this case is not
in conflict with that opinion, and that the court did
not, in the case referred to, decide upon the
construction of the clause of the Constitution above
mentioned, because the case before them did not make it
necessary to decide the question.
3. The United States, under the present Constitution, cannot
acquire territory to be held as a colony, to be governed at
its will and pleasure. But it may acquire territory which,
at the time, has not a population that fits it to become a
State, and may govern it as a Territory until it has a
population which, in the Judgment of Congress, entitles it
to be admitted as a State of the Union.
4. During the time it remains a Territory, Congress may
legislate over it within the scope of its constitutional
powers in relation to citizens of the United States -- and
may establish a Territorial Government -- and the form of
this local Government must be regulated by the discretion of
Congress -- but with powers not exceeding those which
Congress itself by the Constitution, is authorized to
exercise over citizens of the United States, in respect to
their rights of persons or rights of property.
IV.
1. The territory thus acquired, is acquired by the people of
the United States for their common and equal benefit,
through their agent and trustee, the Federal Government.
Congress can exercise no power over the rights of persons or
property of a citizen in the Territory which is prohibited
by the Constitution. The Government and the citizen,
whenever the Territory is open to settlement, both enter it
with their respective rights defined and limited by the
Constitution.
2. Congress have no right to prohibit the citizens of any
particular State or States from taking up their home there,
while it permits citizens of other States to do so. Nor has
it a right to give privileges to one class of citizens which
it refuses to another. The territory is acquired for their
equal and common benefit -- and if open to any, it must be
open to all upon equal and the same terms.
3. Every citizen has a right to take with him into the
Territory any article of property which the Constitution of
the United States recognizes as property.
4. The Constitution of the United States recognizes slaves as
property, and pledges the Federal Government to protect it.
And Congress cannot exercise any more authority over
property of that description than it may constitutionally
exercise over property of any other kind.
5. The act of Congress, therefore, prohibiting a citizen of the
United States from taking with him his slaves when he
removes to the Territory in question to reside, is an
exercise of authority over private property which is not
warranted by the Constitution -- and the removal of the
plaintiff, by his owner, to that Territory, gave him no
title to freedom.
V.
1. The plaintiff himself acquired no title to freedom by being
taken, by his owner, to Rock Island, in Illinois, and
brought back to Missouri. This court has heretofore decided
that the status or condition of a person of African descent
depended on the laws of the State in which he resided.
2. It has been settled by the decisions of the highest court in
Missouri; that, by the laws of that State, a slave does not
become entitled to his freedom, where the owner takes him to
reside in a State where slavery is not permitted, and
afterwards brings him back to Missouri.
Conclusion. It follows that it is apparent upon the record that
the court below erred in its judgment on the plea in abatement,
and also erred in giving judgment for the defendant, when the
exception shows that the plaintiff was not a citizen of the
United States. And as the Circuit Court had no jurisdiction,
either in the case stated in the plea in abatement, or in the one
stated in the exception, its judgment in favor of the defendant
is erroneous, and must be reversed.
COUNSEL: It was now argued by Mr. Blair and Mr. G.F. 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.
OPINION: 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 re-argument 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 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 the 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 be 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 cloth him
with all the privileges of a citizen in every other State, and in
its own courts?
The court thinks 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
recognized 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 recognized 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 appeared, 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, 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, not 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 countenances 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 related 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 recognized, 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 a
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 recognized 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 [capitalization entered by
the Combat Arms BBS SysOp and those words are lower case in the
original document]. 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 from 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 recognized 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 recognized 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 recognized 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 recognized 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 States
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 by 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 of 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, it this:
The plaintiff was a negro salve, 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, who 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 judgement of the court, that
provision had no bearing on the present controversy, and the
power there given, whatever it may be, is confined, and was
intended to be confined, to the territory which at that time
belonged to, or was claimed by, the United States, and was within
their boundaries as settled by the treaty with Great Britain, and
can have no influence upon a territory afterwards acquired from a
foreign Government. It was a special provision for a known and
particular territory, and to meet a present emergency, and
nothing more.
A brief summary of the history of the times, as well as the
careful and measured terms in which the article is framed, will
show the correctness of this proposition.
It will be remembered that, from the commencement of the
Revolutionary war, serious difficulties existed between the
States, in relation to the disposition of large and unsettled
territories which were included in the chartered limits of some
of the States. And some of the other States, and more especially
Maryland, which had no unsettled lands, insisted that as the
unoccupied lands, if wrested from Great Britain, would owe their
preservation to the common purse and the common sword, the money
arising from them ought to be applied in just proportion among
the several States to pay the expenses of the war, and ought not
to be appropriated to the use of the State in whose chartered
limits they might happen 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 burden-some
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
had 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 to 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, of 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 sues. 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 of 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
provisions 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 reestablish the
Government, the title of the law is: "An act to provide for the
government of the territory northwest of the river Ohio." And in
the Constitution, when granting the power to legislate over the
territory that may be selected for the seat of Government
independently of a State, it does not say Congress shall have
power "to make all needful rules and regulations respecting the
territory;" but it declares that "Congress shall have power to
exercise exclusive legislation in all cases whatsoever over such
District (not exceeding ten miles square) as may, by cession of
particular States and the acceptance of Congress, become the seat
of the Government of the United States.
The words "rules and regulations" are usually employed in
the Constitution in speaking of some particular specified power
which it means to confer on the Government, and not, as we have
seen, when granting general powers of legislation. As, for
example, in the particular power to Congress "to make rules for
the Government and regulation of the land and naval forces, or
the particular and specific power to regulate commerce;" "to
establish an uniform rule of naturalization;" "to coin money and
regulate the value thereof." And to construe the words of which
we are speaking as a general and unlimited grant of sovereignty
over territories which the Government might afterwards acquire,
is to use them in a sense and for a purpose for which they were
not used in any other part of the instrument. But if confined to
a particular Territory, in which a Government and laws had
already been established, but which would require some
alterations to adapt it to the new Government, the words are
peculiarly applicable and appropriate for that purpose.
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 salvage, was void, as made
without legal authority, and passed no property to the purchaser.
It is in disposition 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 behavior, 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 behavior; 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 Stated 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 recognize as within the limits of the United
States, the judicial department is also bound to recognize, 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 to 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 serve 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
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 that 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 writing 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 recognizes 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.
CONCUR: 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 or error to the Circuit Court of the United States.
The cases cited by the Chief Justice to show that this court
has now only done what it has repeatedly done before in other
cases, without any question of its correctness, speak for
themselves. The differences between the rules concerning pleas to
the jurisdiction in the courts of the United States and
common-law courts have been stated and sustained by reasoning and
adjudged cases; and it has been shown that writs of error to a
State court and to the Circuit Courts of the United States are to
be determined by different laws and principles. In the first, it
is our duty to ascertain if this court has jurisdiction, under
the twenty-fifth section of the judiciary act, to review the case
from the State court; and if it shall be found that it has not,
the case is at end, so far as this court is concerned; for our
power 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 criticize, 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 recognize 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, recognize
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 recognize 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 recognize 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 recognize 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
to 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 reenacted 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
best 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
recognized 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 reintegrated."
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 then 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 is 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 in 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
relief 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 recognized 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 county, 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 singly 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
a 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 Caesers 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."[n1]
n1 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 reestablished the
ancient usage; for anciently liberty was simple and undivided --
that is, was conferred upon the slave as his manumittor possessed
it, admitting this single difference, that the person manumitted
became only a freed man, although his manumittor was a free man."
And he further declares: "We have made all freed men in general
become citizens of Rome, regarding neither the age of the
manumitted, nor the manumittor, nor the ancient forms of
manumission. We have also introduced many new methods by which
slaves may become Roman citizens."
By the references above given it is shown, from the nature
and objects of civil and political associations, and upon the
direct authority of history, that citizenship was not conferred
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
recognized, 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 recognized 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 of 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; not 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, may,
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 recognized, 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
nationally 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 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 contemporary 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." [n2]
n2 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 recognizes 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 deter mine 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 v. Decker, Walk.,
36; 4 Mart., 385; 1 Misso., 472; Hunter v. Fulcher, 1 Leigh.)
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 change of
domicil. Question 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 recognized 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 States. 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 State would observe the like conduct respecting
fugitives from Spanish subjects." The committee that made the
report of this resolution consisted of Hamilton, Madison, and
Sedgwick, (2 Hamilton's Works, 473;) and the clause in the
Federal Constitution providing for the restoration of fugitive
slaves is a recognition of this ancient right, and of the
principle that a change of place does not effect a change of
condition. The diminution of the power of a master to reclaim his
escaping bondsman in Europe commenced in the enactment of laws of
prescription in favor of privileged communes. Bremen, Spire,
Worms, Vienna, and Ratisbon, in Germany; Carcassonne, Beziers,
Toulouse, and Paris, in France, acquired privileges on this
subject at an early period. The ordinance of William the
Conqueror, that a residence of any of the servile population of
England, for a year and a day, without being claimed, in any
city, burgh, walled town, or castle of the King, should entitle
them to perpetual liberty, is a specimen of these laws.
The earliest publicist who has discussed this subject is
Bodin, a jurist of the sixteenth century, whose work was quoted
in the early discussions of the courts in France and England on
this subject. He says: "In France, although there be some
remembrance of old servitude, yet it is not lawful here to make a
slave or to buy any one of others, insomuch as the slaves of
strangers, so soon as they set their foot within France, become
frank and free, as was determined by an old decree of the court
of Paris against an ambassador of Spain, who had brought a slave
with him into France." He states another case, which arose in the
city of Toulouse, of a Genoese merchant, who had carried a slave
into that city on his voyage from Spain; and when the matter was
brought before the magistrates, the "procurer 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 of the West India slaves of Verdelin for freedom, in 1738,
before the judges in admiralty, (15 Causes Celebres, p. 1; 2
Masse Droit Com., sec. 58,) and were reproduced before Lord
Mansfield, in the cause of Somersett, in 1772. Of the cases cited
by Bodin, it is to be observed that Charles V of France exempted
all the inhabitants of Paris from serfdom, or other feudal
incapacities, in 1371, and this was confirmed by several of his
successors, (3 Dulaire Hist. de Par., 546; Broud. Cout. de Par.,
21,) and the ordinance of Toulouse is preserved as follows:
"Civitas Tholosana fuit et erit sine fine libera, adeo ut servi
et ancilloe, sclavi et sclavoe, dominos sive dominas habentes,
cum rebus vel sine rebus suis, ad Tholosam vel infra terminos
extra urbem terminatos accedentes acquirant libertatem." (Hist.
de Langue, tome 3, p. 69; Ibid. 6, p. 8; Loysel Inst., b. 1, sec.
6.)
The decisions were made upon special ordinances, or
charters, which contained positive prohibitions of slavery, and
where liberty had been granted as a privilege; and the history of
Paris furnishes but little support for the boast that she was a
"sacro sancta civitas," where liberty always had an asylum, or
for the "self-complacent rhapsodies" of the French advocates in
the case of Verdelin, which amused the grave lawyers who argued
the case of Somersett. The case of Verdelin was decided upon a
special ordinance, which prescribed the conditions on which West
India slaves might be introduced into France, and which had been
disregarded by the master.
The case of Somersett was that of a Virginia slave carried
to England by his master in 1770, and who remained there two
years. For some cause, he was confined on a vessel destined to
Jamaica, where he was to be sold. Lord Mansfield, upon a return
to a habeas corpus, states the question involved. "Here, the
person of the slave himself," he says, "is the immediate subject
of inquiry, Can any dominion, authority, or coercion, be
exercised in this country, according to the American laws?" He
answers: "The difficulty of adopting the relation, without
adopting it in all its consequences, is indeed extreme, and yet
many of those consequences are absolutely contrary to the
municipal law of England." Again, he says: "The return states
that the slave departed, and refused to serve; whereupon, he was
kept to be sold abroad." "So high an act of dominion must be
recognized by the law of the country where it is used. The power
of the master over his slave has been extremely different in
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 recognize and which do not recognize 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 cause
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,) 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 right 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; 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 recognized 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 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 advocate 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.
[n3]
n3 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, 19803-'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. [n4] 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?
n4 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
antirevolutionary 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
recognized 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," "regulation," "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 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 treatymaking 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 recognized 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
recognized 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 out 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 has 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 vase public domain? The feudal system
would have recognized 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
preemption 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 recognizing
in the main similar principles, yet in some respects have 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 recognize to be
property.
And this principle follows from the structure of the
respective Governments, State and Federal, and their reciprocal
relations. They are different agents and trustees of the people
of the several States, appointed with different powers and with
distinct purposes, but whose acts, within the scope of their
respective jurisdictions, are mutually obligatory. They are
respectively the depositories of such powers of legislation as
the people were willing to surrender, and their duty is to
cooperate within their several jurisdictions to maintain the
rights of the same citizens under both Governments unimpaired. 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 was 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
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 recognize 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 location, 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. Shephered 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, Sough 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 had 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 deed 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 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 thirtysix
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 and 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 slaves 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 Congresss 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 Constituion 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.
DISSENT: 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 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.
Bofore 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 the
plaintiff is a slave, as that would assume against him the matter
in controversy, and embrace the entire merits of the case in a
plea to the jurisdiction. But beyond the facts set out in the
plea, the court, to sustain it, must assume the plaintiff to be a
slave, which is decisive on the merits. This is a short and an
effectual mode of deciding the cause; but I am yet to learn that
it is sanctioned by any known rule of pleading.
The defendant's counsel complain, that if the court take
jurisdiction on the ground that the plaintiff is free, the
assumption is against the right of the master. This argument is
easily answered. In the first place, the plea does not show him
to be a slave; it does not follow that a man is not free whose
ancestors were slaves. The reports of the Supreme Court of
Missouri show that this assumption has many exceptions; and there
is no averment in the plea that the plaintiff is not within them.
By all the rules of pleading, this is a fatal defect in the
plea. If there be doubt, what rule of construction has been
established in the slave States? In Jacob v. Sharp, (Meigs's
Rep., Tennessee, 114,) the court held, when there was doubt as to
the construction of a will which emancipated a slave, "it must be
construed to be subordinate to the higher and more important
right of freedom."
No injustice can result to the master, from an exercise of
jurisdiction in this cause. Such a decision does not in any
degree affect the merits of the case; it only enables the
plaintiff to assert his claims to freedom before this tribunal.
If the jurisdiction be ruled against him, on the ground that he
is a slave, it is decisive of his fate.
It has been argued that, if a colored person be made a
citizen of a State, he cannot sue in the Federal court. The
Constitution declares that Federal jurisdiction "may be exercised
between citizens of different States," and the same is provided
in the act of 1789. The above argument is properly met by saying
that the Constitution was intended to be a practical instrument;
and where its language is too plain to be misunderstood, the
argument ends."
In Chirae v. Chirae, (I 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 recognized
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
recognize 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
recognized 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
recognized 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 f 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. Demund 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
remarkable 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 recognizing 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
criticize 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 decreed 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., and 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 Congrees 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 os 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 of 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 powe 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, recognizes the status of slavery as founded on the
municipal law: "No person held to service or labor in one State,
under the laws thereof, escaping into another, shall," &c. Now,
unless the fugitive escape from a place where, by the municipal
law, he is held to labor, this provision affords no remedy to the
master. What can be more conclusive than this? Suppose a slave
escape from a Territory where slavery is not authorized by law,
can he be reclaimed?
In this case, a majority of the court have said that a slave
may be taken by his master into a Territory of the United States,
the same as a horse, or any other kind of property. It is true,
this was said by the court, as also many other things, which are
of no authority. Nothing that has been said by them, which has
not a direct bearing on the jurisdiction of the court, against
which they decided, can be considered as 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 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 salve 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 of 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 bases 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
manumiss on 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; not
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 recognized 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 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 recognized.
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
recognized; 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 recognized
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 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, (1 Leigh, 172:)
"By a statute of Maryland of 1796, all slaves
brought into that State to reside are declared free; a
Virginian-born slave is carried by his master to
Maryland; the master settled there, and keeps the slave
there in bondage for twelve years, the statute in force
all the time; then he brings him as a slave to
Virginia, and sells him there. Adjudged, in an action
brought by the man against the purchaser, that he is
free."
Judge Kerr, in the case, says:
"Agreeing, as I do, with the general view taken in
this case by my brother Green, I would not add a word,
but to mark the exact extent to which I mean to go. The
law of Maryland having enacted that slaves carried into
that State for sale or to reside shall be free, and the
owner of the slave here having carried him to Maryland,
and voluntarily submitting himself and the slave to
that law, it governs the case."
In every decision of a slave case prior to that of Dred
Scott v. Emerson, the Supreme Court of Missouri considered it as
turning upon the Constitution of Illinois, the ordinance of 1787,
or the Missouri compromise act of 1820. The court treated these
acts as in force, and held itself bound to execute them, by
declaring the slave to be free who had acquired a domicil under
them with the consent of his master.
The late decision reversed this whole line of adjudication,
and held that neither the Constitution and laws of the States,
nor acts of Congress in relation to Territories, could be
judicially noticed by the Supreme Court of Missouri. This is
believed to be in conflict with the decisions of all the courts
in the Southern States, with some exceptions of recent cases.
In Marie Louise v. Morat et al., (9 Louisiana Rep., 475,) it
was held, where a slave having been taken to the kingdom of
France or other country by the owner, where slavery is not
tolerated, operates on the condition of the slave, and produces
immediate emancipation; and that, where a slave thus becomes
free, the master cannot reduce him again to slavery.
Josephine v. Poultney, (Louisiana Annual Rep., 329,) "where
the owner removes with a slave into a State in which slavery is
prohibited, with the intention of residing there, the slave will
be thereby emancipated, and their subsequent return to the State
of Louisiana cannot restore the relation of master and slave." To
the same import are the cases of Smith v. Smith, (13 Louisiana
Rep., 441; Thomas v. Generis, Louisiana Rep., 483; Harry et al.
v. Decker and Hopkins, Walker's Mississippi Rep., 36.) It was
held that, "slaves within the jurisdiction 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 said:
"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 or
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 a
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 ever 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 facic, 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 plaintiffs 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 seizing 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.
He 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 Governement 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 Norht 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 L 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."
Tha 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, 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 recognized 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 recognizes, 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
or its discretion. For, certainly, on 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, recognized 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 recognizes that; but it does not recognize
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 Consitution has recognized 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 or 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 Consitutions 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 Constituion. 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 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 recognize such
citizens. As has already been said, it recognizes 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 enrolment 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 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 used 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 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 inquires. 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 fac t 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 other 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 recognizes 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 recognized, 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 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, 1 Leigh, 172; Stewart v. Oaks, 5 Har. and
John., 107.)
The second is, where the municipal law of a country not
recognizing slavery, it is the will of the State of 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, 1 Leigh's Va. R., 172; Maria
Louise v. Marot, 9 Louisiana R.; 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 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 restriction 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 Affaires,
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 recognized 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, from 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 Goverment 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, thus 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 has
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 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 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 salaveholding 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., 743; Le 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 reefers.
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 Wissconsin, 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. Whe 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 in 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. n5
n5 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.n6 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.)
n6 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
at tention 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 multiplies 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 and 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 de scribed.
I say, the essential qualities and incidents. But in
determining what were the essential qualities and incidents of
the subject with which they were dealing, we must take into
consideration not only all the particular facts which were
immediately before them, but the great consideration, ever
present to the minds of those who framed and adopted the
Constitution, that they were making a frame of government for the
people of the United States and their posterity, under which they
hoped the United States might be, what they have now become, a
great and powerful nation, possessing the power to make war and
to conclude treaties, and thus to acquire territory. (See Cerre
v. Pitot, 6 Cr., 336; Am. Ins. Co. v. Canter, 1 Pet., 542.) With
these in view, I turn to examine the clause of the article now in
question.
It is said this provision has no application to any
territory save that then belonging to the United States. I have
already shown that, when the Constitution was framed, a confident
expectation was entertained, which was speedily realized, that
North Carolina and Georgia would cede their claims to that great
territory which lay west of those States. No doubt has been
suggested that the first clause of this same article, which
enabled Congress to admit new States, refers to and includes new
States to be formed out of this territory, expected to be
thereafter ceded by North Carolina and Georgia, as well as new
States to be formed out of territory northwest of the Ohio, which
then had been ceded by Virginia.It must have been seen,
therefore, that the same necessity would exist for an authority
to dispose of and make all needful regulations respecting this
territory, when ceded, as existed for a like authority respecting
territory which had been ceded.
No reason has been suggested why any reluctance should have
been felt, by the framers of the Constitution, to apply this
provision to all the territory which might belong to the United
States, or why any distinction should have been made, founded on
the accidental circumstance of the dates of the cessions; a
circumstance in no way material as respects the necessity for
rules and regulations, or the propriety of conferring on the
Congress power to make them. And if we look at the course of the
debates in the Convention on this article, we shall find that the
then unceded lands, so far from having been left out of view in
adopting this article, constituted, in the minds of members, a
subject of even paramount importance.
Again, in what an extraordinary position would the
limitation of this clause to territory then belonging to the
United States, place the territory which lay within the chartered
limits of North Carolina and Georgia. The title to that territory
was then claimed by those States, and by the United States; their
respective claims are purposely left unsettled by the express
words of this clause; and when cessions were made by those
States, they were merely of their claims to this territory, the
United States neither admitting nor denying the validity of those
claims; so that it was impossible then, and has ever since
remained impossible, to know whether this territory did or did
not then belong to the United States; and, consequently, to know
whether it was within or without the authority conferred by this
clause, to dispose of and make rules and regulations respecting
the territory of the United States. This attributes to the
eminent men who acted on this subject a want of ability and
forecast, or a want of attention to the known facts upon which
they were acting, in which I cannot concur.
There is not, in my judgment, anything in the language, the
history, or the subject-matter of this article, which restricts
its operation to territory owned by the United States when the
Constitution was adopted.
But it is also insisted that provisions of the Constitution
respecting territory belonging to the United States do not apply
to territory acquired by treaty from a foreign nation. This
objection must rest upon the position that the Constitution did
not authorize the Federal Government to acquire foreign
territory, and consequently has made no provision for its
government when acquired; or, that though the acquisition of
foreign territory was contemplated by the Constitution, its
provisions concerning the admission of new States, and the making
of all needful rules and regulations respecting territory
belonging to the United States, were not designed to be
applicable to territory acquired from foreign nations.
It is undoubtedly true, that at the date of the treaty of
1803, between the United States and France, for the cession of
Louisiana, it was made a question, whether the Constitution had
conferred on the executive department of the Government of the
United States power to acquire foreign territory by a treaty.
There is evidence that very grave doubts wer 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 or making
treaties; consequently, that Government possesses the power of
acquiring territory, either by conquest or treaty." (See Cerre v.
Pitot, 6 Cr., 336.) And I add, it also possesses the power of
governing it, when acquired, not by resorting to supposititious
powers, nowhere found described in the Constitution, but
expressly granted in the authority to make all needful rules and
regulations respecting the territory of the United States.
There was to be established by the Constitution a frame of
government, under which the people of the United States and their
posterity were to continue indefinitely. To take one of its
provisions, the language of which is broad enough to extend
throughout the existence of the Government, and embrace all
territory belonging to the United States throughout all time, and
the purposes and objects of which apply to all territory of the
United States, and narrow it down to territory belonging to the
United States when the Constitution was framed, while at the same
time it is admitted that the Constitution contemplated and
authorized the acquisition, from time to time, of other and
foreign territory, seems to me to be an interpretation as
inconsistent with the nature and purposes of the instrument, as
it is with its language, and I can have no hesitation in
rejecting it.
I construe this clause, therefore, as if it had read,
Congress shall have power to make all needful rules and
regulations respecting those tracts of country, out of the limits
of the several States, which the United States have acquired, or
may hereafter acquire, by cessions, as well of the jurisdiction
as of the soil, so far as the soil may be the property of the
party making the cession, at the time of making it.
It has been urged that the words "rules and regulations" are
not appropriate terms in which to convey authority to make laws
for the government of the territory. But it must be remembered
that this is a grant of power to the Congress -- that it is
therefore necessarily a grant of power to legislate -- and,
certainly, rules and regulation 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 art 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 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.)
It 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 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; 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 Consitution 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, (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 it 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
ot 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 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 ot 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 in 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 mine 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 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.
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Dred Scott v. Sandford