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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691


(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

proceedings in the case is brought before this court,


and is open to its inspection and revision.
Supreme Court of the United States
DRED SCOTT, PLAINTIFF IN ERROR, 2. When a plea to the jurisdiction, in abatement, is
v. overruled by the court upon demurrer, and the de-
JOHN F. A. SANDFORD. fendant pleads in bar, and upon these pleas the final
December Term, 1856 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, al-
**1 THIS case was brought up, by writ of error,
though it was in favor of the plaintiff-and if the
from the Circuit Court of the United States for the
court erred in overruling it, the judgment must be
district of Missouri.
reversed, and a mandate issued to the Circuit Court
It was an action of trespass vi et armis instituted in to dismiss the case for want of jurisdiction.
the Circuit Court by Scott against Sandford.
3. In the Circuit Courts of the United States, the re-
Prior to the institution of the present suit, an action cord must show that the case is one in which, by the
was brought by Scott for his freedom in the Circuit Constitution and laws of the United States, the
Court of St. Louis county, (State court,) where court had jurisdiction-and if this does not appear,
there was a verdict and judgment in his favor. On a and the court gives judgment either for plaintiff or
writ of error to the Supreme Court of the State, the defendant, it is error, and the judgment must be re-
judgment below was reversed, and the case re- versed by this court-and the parties cannot by con-
manded to the Circuit Court, where it was contin- sent waive the objection to the jurisdiction of the
ued to await the decision of the case now in ques- Circuit Court.
tion.
4. A free negro of the African race, whose ancestors
The declaration of Scott contained three counts: were brought to this country and sold as slaves, is
one, that Sandford had assaulted the plaintiff; one, not a ‘citizen’ within the meaning of the Constitu-
that he had assaulted Harriet Scott, his wife; and tion of the United States.
one, that he had assaulted Eliza Scott and Lizzie
5. When the Constitution was adopted, they were
Scott, his children.
not regarded in any of the States as members of the
Sandford appeared, and filed the following plea: community which constituted the State, and were
not numbered among its ‘people or citizens.’ Con-
DRED SCOTT sequently, the special rights and immunities guar-
antied to citizens do not apply to them. And not be-
v. ing ‘citizens' within the meaning of the Constitu-
tion, they are not entitled to sue in that character in
JOHN F. A. SANDFORD.}
a court of the United States, and the Circuit Court
Plea to the Jurisdiction of the Court. has not jurisdiction in such a suit.

I. 6. The only two clauses in the Constitution which


point to this race, treat them as persons whom it
1. Upon a writ of error to a Circuit Court of the was morally lawful to deal in as articles of property
United States, the transcript of the record of all the and to hold as slaves.

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FOR EDUCATIONAL USE ONLY Page 2
60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

**2 7. Since the adoption of the Constitution of the that, in addition to this claim, he himself became
United States, no State can by any subsequent law entitled to freedom by being taken to Rock Island,
make a foreigner or any other description of per- in the State of Illinois-and being free when he was
sons citizens of *394 the United States, nor entitle brought back to Missouri, he was by the laws of
them to the rights and privileges secured to citizens that State a citizen.
by that instrument.
2. If, therefore, the facts he states do not give him
8. A State, by its laws passed since the adoption of or his family a right to freedom, the plaintiff is still
the Constitution, may put a foreigner or any other a slave, and not entitled to sue as a ‘citizen,’ and
description of persons upon a footing with its own the judgment of the Circuit Court was erroneous on
citizens, as to all the rights and privileges enjoyed that ground also, without any reference to the plea
by them within its dominion and by its laws. But in abatement.
that will not make him a citizen of the United
States, nor entitle him to sue in its courts, nor to 3. The Circuit Court can give no judgment for
any of the privileges and immunities of a citizen in plaintiff or defendant in a case where it has not jur-
another State. isdiction, no matter whether there be a plea in
abatement or not. And unless it appears upon the
9. The change in public opinion and feeling in rela- face of the record, when brought here by writ of er-
tion to the African race, which has taken place ror, that the Circuit Court had jurisdiction, the judg-
since the adoption of the Constitution, cannot ment must be reversed.
change its construction and meaning, and it must be
construed and administered now according to its The case of Capron v. Van Noorden (2 Cranch,
true meaning and intention when it was formed and 126) examined, and the principles thereby decided,
adopted. reaffirmed.

10. The plaintiff having admitted, by his demurrer 4. When the record, as brought here by writ of er-
to the plea in abatement, that his ancestors were im- ror, does not show that the Circuit Court had juris-
ported from Africa and sold as slaves, he is not a diction, this court has jurisdiction to revise and cor-
citizen of the State of Missouri according to the rect the error, like any other error in the court be-
Constitution of the United States, and was not en- low. It does not and cannot dismiss the case for
titled to sue in that character in the Circuit Court. want of jurisdiction here; for that would leave the
erroneous judgment of the court below in full force,
11. This being the case, the judgment of the court and the party injured without remedy. But it must
below, in favor of the plaintiff on the plea in abate- reverse the judgment, and, as in any other case of
ment, was erroneous. reversal, send a mandate to the Circuit Court to
conform its judgment to the opinion of this court.
II.
**3 5. The difference of the jurisdiction in this
1. But if the plea in abatement is not brought up by court in the cases of writs of error to State courts
this writ of error, the objection to the citizenship of and to Circuit Courts of the United States, pointed
the plaintiff is still apparent on the record, as he out; and the mistakes made as to the jurisdiction of
himself, in making out his case, states that he is of this court in the latter case, by confounding it with
African descent, was born a slave, and claims that its limited jurisdiction in the former.
he and his family became entitled to freedom by be-
ing taken, by their owner, to reside in a Territory 6. If the court reverses a judgment upon the ground
where slavery is prohibited by act of Congress-and that it appears by a particular part of the record that

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FOR EDUCATIONAL USE ONLY Page 3
60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

the Circuit Court had not jurisdiction, it does not Federal Government, by treaty or conquest, from a
take away the jurisdiction of this court to examine foreign nation.
into and correct, by a reversal of the judgment, and
other errors, either as to the jurisdiction or any oth- The case of the American and Ocean Insurance
er matter, where it appears from other parts of the Companies v. Canter (1 Peters, 511) referred to and
record that the Circuit Court had fallen into error. examined, showing that the decision in this case is
On the contrary, it is the daily and familiar practice not in conflict with that opinion, and that the court
of this court to reverse on several grounds, where did not, in the case referred to, decide upon the con-
more than one error appears to have been commit- struction of the clause of the Constitution above
ted. And the error of a Circuit Court in its jurisdic- mentioned, because the case before them did not
tion *395 stands on the same ground, and is to be make it necessary to decide the question.
treated in the same manner as any other error upon
3. The United States, under the present Constitu-
which its judgment is founded.
tion, cannot acquire territory to be held as a colony,
7. The decision, therefore, that the judgment of the to be governed at its will and pleasure. But it may
Circuit Court upon the plea in abatement is erro- acquire territory which, at the time, has not a popu-
neous, is no reason why the alleged error apparent lation that fits it to become a State, and may govern
in the exception should not also be examined, and it as a Territory until it has a population which, in
the judgment reversed on that ground also, if it dis- the judgment of Congress, entitles it to be admitted
closes a want of jurisdiction in the Circuit Court. as a State of the Union.

8. It is often the duty of this court, after having de- **4 4. During the time it remains a Territory, Con-
cided that a particular decision of the Circuit Court gress may legislate over it within the scope of its
was erroneous, to examine into other alleged errors, constitutional powers in relation to citizens of the
and to correct them if they are found to exist. And United States-and may establish a Territorial Gov-
this has been uniformly done by this court, when ernment-and the form of this local Government
the questions are in any degree connected with the must be regulated by the discretion of Congress-but
controversy, and the silence of the court might cre- with powers not exceeding those which Congress
ate doubts which would lead to further and useless itself, by the Constitution, is authorized to exercise
litigation. over citizens of the United States, in respect to their
rights of persons or rights of property.
III.
IV.
1. The facts upon which the plaintiff relies, did not
give him his freedom, and make him a citizen of 1. The territory thus acquired, is acquired by the
Missouri. people of the United States for their common and
equal benefit, through their agent and trustee, the
2. The clause in the Constitution authorizing Con- Federal Government. Congress can exercise no
gress to make all needful rules and regulations for power over the rights of persons or property of a
the government of the territory and other property citizen in the Territory which is prohibited by the
of the United States, applies only to territory within Constitution. The Government and the citizen,
the chartered limits of some one of the States when whenever the Territory is open to settlement, both
they were colonies of Great Britain, and which was enter it with their respective rights defined and lim-
surrendered by the British Government to the old ited by the Constitution.
Confederation of the States, in the treaty of peace.
It does not apply to territory acquired by the present 2. Congress have no right to prohibit the citizens of

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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

any particular State or States from taking up their ment for the defendant, when the exception shows
home there, while it permits citizens of other States that the plaintiff was not a citizen of the United
to do so. Nor has it a right to give privileges to one States. And as the Circuit Court had no jurisdiction,
class of citizens which it refuses to another. The either in the case stated in the plea in abatement, or
territory is acquired for their equal and common be- in the one stated in the exception, its judgment in
nefit-and if open to any, it must be open to all upon favor of the defendant is erroneous, and must be re-
equal and the same terms. versed.

3. Every citizen has a right to take with him into the West Headnotes
Territory any article of property which the Consti-
tution of the United States recognizes as property. Aliens, Immigration, and Citizenship 24 696

4. The Constitution of the United States recognizes 24 Aliens, Immigration, and Citizenship
slaves as property, and pledges the Federal Govern- 24VIII Citizenship and Naturalization
ment to protect it. And Congress cannot exercise 24VIII(B) Naturalization
any more authority over property of that description 24k696 k. Nature of and Right to Natural-
than it may constitutionally exercise over property ization. Most Cited Cases
of any other kind. (Formerly 24k60.2, 77k2 Citizens)
The power of congress to establish a uniform rule
5. The act of Congress, therefore, prohibiting a cit- of naturalization does not confer the power to raise
izen of the United States from *396 taking with him to citizenship a person born within the United
his slaves when he removes to the Territory in States, who from birth or parentage, or by the laws
question to reside, is an exercise of authority over of the country, is not of right a citizen, since natur-
private property which is not warranted by the Con- alization applies solely to aliens.
stitution-and the removal of the plaintiff, by his
owner, to that Territory, gave him no title to free- Aliens, Immigration, and Citizenship 24 690
dom.
24 Aliens, Immigration, and Citizenship
V. 24VIII Citizenship and Naturalization
24VIII(B) Naturalization
1. The plaintiff himself acquired no title to freedom 24k690 k. Power to Naturalize. Most
by being taken, by his owner, to Rock Island, in Cited Cases
Illinois, and brought back to Missouri. This court (Formerly 24k60)
has heretofore decided that the status or condition Since the adoption of the Constitution of the United
of a person of African descent depended on the States, no State can by any subsequent law make a
laws of the State in which he resided. foreigner or any other description of persons cit-
izens of the United States, nor entitle them to the
2. It has been settled by the decisions of the highest rights and privileges secured to citizens by that in-
court in Missouri, that, by the laws of that State, a strument.
slave does not become entitled to his freedom,
where the owner takes him to reside in a State Aliens, Immigration, and Citizenship 24 690
where slavery is not permitted, and afterwards
brings him back to Missouri. 24 Aliens, Immigration, and Citizenship
24VIII Citizenship and Naturalization
Conclusion. It follows that it is apparent upon the 24VIII(B) Naturalization
record that the court below erred in its judgment on 24k690 k. Power to Naturalize. Most
the plea in abatement, and also erred in giving judg- Cited Cases

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.


FOR EDUCATIONAL USE ONLY Page 5
60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

(Formerly 24k60) 30XVI Review


A State, by its laws passed since the adoption of the 30XVI(A) Scope, Standards, and Extent, in
Constitution, may put a foreigner or any other de- General
scription of persons upon a footing with its own cit- 30k857 Extent of Review Dependent on
izens, as to all the rights and privileges enjoyed by Mode of Review
them within its dominion and by its laws. But that 30k859 k. Writ of Error; Restricted
will not make him a citizen of the United States, Appeal. Most Cited Cases
nor entitle him to sue in its courts, nor to any of the A writ of error brings up the whole record of the
privileges and immunities of a citizen in another proceedings in court below.
State.
Aliens, Immigration, and Citizenship 24 678
Appeal and Error 30 839(2)
24 Aliens, Immigration, and Citizenship
30 Appeal and Error 24VIII Citizenship and Naturalization
30XVI Review 24VIII(A) Citizenship
30XVI(A) Scope, Standards, and Extent, in 24k678 k. Citizens of United States and of
General the Several States. Most Cited Cases
30k838 Questions Considered (Formerly 77k2 Citizens)
30k839 Scope of Inquiry Free negroes and mulattoes are not such citizens as
30k839(2) k. Consideration of En- were contemplated by the federal or state constitu-
tire Case. Most Cited Cases tion.
The correction of one error in lower court does not
deprive appellate court of power of examining fur- Aliens, Immigration, and Citizenship 24 653
ther into record and correcting any other material
24 Aliens, Immigration, and Citizenship
errors committed.
24VIII Citizenship and Naturalization
Appeal and Error 30 840(2) 24VIII(A) Citizenship
24k652 Who Are Citizens
30 Appeal and Error 24k653 k. In General. Most Cited
30XVI Review Cases
30XVI(A) Scope, Standards, and Extent, in (Formerly 77k2 Citizens)
General A person may be a “citizen,” that is, a member of
30k838 Questions Considered the community who form the sovereignty, although
30k840 Review of Specific Questions he exercises no share of the political power and is
and Particular Decisions incapacitated from holding particular offices.
30k840(2) k. Questions of Jurisdic-
tion. Most Cited Cases Aliens, Immigration, and Citizenship 24 653
If defendant objects to jurisdiction of courts of gen-
24 Aliens, Immigration, and Citizenship
eral jurisdiction, he must plead want of jurisdiction
24VIII Citizenship and Naturalization
specially, and unless fact on which he relies is
24VIII(A) Citizenship
found true by jury or admitted, jurisdiction cannot
24k652 Who Are Citizens
be disputed in appellate court.
24k653 k. In General. Most Cited
Appeal and Error 30 859 Cases
(Formerly 77k2 Citizens)
30 Appeal and Error The terms “people of the United States” and

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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

“citizens” are synonymous. stitution was adopted can give any right of citizen-
ship outside of its own territory.
Aliens, Immigration, and Citizenship 24 657
Aliens, Immigration, and Citizenship 24 678
24 Aliens, Immigration, and Citizenship
24VIII Citizenship and Naturalization 24 Aliens, Immigration, and Citizenship
24VIII(A) Citizenship 24VIII Citizenship and Naturalization
24k652 Who Are Citizens 24VIII(A) Citizenship
24k657 k. Foreign Citizens in Territor- 24k678 k. Citizens of United States and of
ies Acquired by United States. Most Cited Cases the Several States. Most Cited Cases
(Formerly 77k5 Citizens) (Formerly 77k11 Citizens)
Since there is no express constitutional provision One having all rights and privileges of a citizen of a
defining the power of the general government over state is not necessarily a citizen of the United
the person or property of citizens in territories States.
which have been acquired, their rights and priv-
ileges must be those which are secured by the con- Constitutional Law 92 603
stitution to citizens, and not those of mere colon-
92 Constitutional Law
ists; the power to make all needful rules and regula-
92V Construction and Operation of Constitu-
tions respecting the territory belonging to the
tional Provisions
United States being referable solely to territory be-
92V(A) General Rules of Construction
longing to them at the adoption of the constitution.
92k603 k. Extrinsic Aids to Construction
Aliens, Immigration, and Citizenship 24 678 in General. Most Cited Cases
(Formerly 92k16)
24 Aliens, Immigration, and Citizenship No change in public opinion or feeling in relation
24VIII Citizenship and Naturalization to Negroes should induce court to give to words of
24VIII(A) Citizenship Constitution a more liberal construction in favor of
24k678 k. Citizens of United States and of Negroes than such words were intended to bear
the Several States. Most Cited Cases when instrument was framed and adopted.
(Formerly 77k11 Citizens)
A person who is not a citizen of the United States Constitutional Law 92 580
within the intendment of the federal constitution
92 Constitutional Law
cannot be made so by a law of one of the states
92V Construction and Operation of Constitu-
clothing him with the rights of state citizenship, and
tional Provisions
thus entitled to the privileges and immunities of a
92V(A) General Rules of Construction
citizen of the United States.
92k580 k. In General. Most Cited Cases
Aliens, Immigration, and Citizenship 24 678 (Formerly 92k45)

24 Aliens, Immigration, and Citizenship Constitutional Law 92 584


24VIII Citizenship and Naturalization
92 Constitutional Law
24VIII(A) Citizenship
92V Construction and Operation of Constitu-
24k678 k. Citizens of United States and of
tional Provisions
the Several States. Most Cited Cases
92V(A) General Rules of Construction
(Formerly 77k11 Citizens)
92k584 k. Intent in General. Most Cited
It seems that no law of a state passed since the con-
Cases

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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

(Formerly 92k45) 92k2937 Entities Protected by Consti-


Duty of court is to interpret Constitution as framed tutional Provision
with best light court can obtain on the subject and 92k2938 k. In General. Most Cited
administer Constitution as it finds it according to its Cases
true intent and meaning when adopted. (Formerly 92k207(1))
The provision entitling citizens of each state to all
Constitutional Law 92 2512 the privileges and immunities of citizens in the sev-
eral states does not apply to a person migrating per-
92 Constitutional Law
manently from one state to another, or to a person
92XX Separation of Powers
who, in the state from which he comes, was en-
92XX(C) Judicial Powers and Functions
dowed with certain rights of citizenship which are
92XX(C)2 Encroachment on Legislature
not given him in the other state, since, when the
92k2499 Particular Issues and Applica-
domicile is permanently changed, it is the province
tions
of the state to determine the status of its citizens
92k2512 k. Foreign Policy and Na-
and inhabitants.
tional Defense. Most Cited Cases
(Formerly 92k70.1(12), 92k70(1)) Constitutional Law 92 2950
Acquisition of territory to be held by the United
States until it is in a suitable condition to become a 92 Constitutional Law
state is a question for political department of gov- 92XXIV Privileges or Immunities; Emoluments
ernment and not judicial department and judicial 92XXIV(C) Privileges and Immunities of
department is bound to recognize decision of polit- Citizens of the Several States (Article )
ical department. 92XXIV(C)2 Particular Issues and Ap-
plications
Constitutional Law 92 2486 92k2950 k. In General. Most Cited
Cases
92 Constitutional Law
(Formerly 92k207(1))
92XX Separation of Powers
Act Cong. March 6, 1820, 3 Stat. 545, “Missouri
92XX(C) Judicial Powers and Functions
Compromise Act,” prohibiting the holding of slaves
92XX(C)2 Encroachment on Legislature
in the territory of the Louisiana Purchase north of
92k2485 Inquiry Into Legislative Judg-
36 deg. 30 min., is obnoxious to the constitutional
ment
provision that citizens of each state shall be entitled
92k2486 k. In General. Most Cited
to all the privileges and immunities of citizens of
Cases
the several states in that in such territory, which is
(Formerly 92k70.3(1), 92k70(3))
the common property of all the states, some of its
Courts have nothing to do with the justice, wisdom,
citizens are attempted to be deprived of their prop-
policy, or expediency of a law. These are matters
erty rights.
purely of legislative deliberation and cognizance.
Constitutional Law 92 2938
Constitutional Law 92 2938
92 Constitutional Law
92 Constitutional Law
92XXIV Privileges or Immunities; Emoluments
92XXIV Privileges or Immunities; Emoluments
92XXIV(C) Privileges and Immunities of
92XXIV(C) Privileges and Immunities of
Citizens of the Several States (Article )
Citizens of the Several States (Article )
92XXIV(C)1 In General
92XXIV(C)1 In General
92k2937 Entities Protected by Consti-

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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

tutional Provision Most Cited Cases


92k2938 k. In General. Most Cited (Formerly 92k278(1.3), 92k278(1))
Cases
(Formerly 92k207(1)) Constitutional Law 92 4070
A citizen of one state has no right to participate in
92 Constitutional Law
the government of another, but if he ranks as citizen
92XXVII Due Process
in state to which he belongs within meaning of fed-
92XXVII(G) Particular Issues and Applica-
eral Constitution, whenever he goes into another
tions
state, he has all privileges and immunities belong-
92XXVII(G)3 Property in General
ing to citizens of the state.
92k4070 k. In General. Most Cited
Constitutional Law 92 4036 Cases
(Formerly 92k278(1.3), 92k278(1))
92 Constitutional Law
92XXVII Due Process Slaves 356 24
92XXVII(G) Particular Issues and Applica-
356 Slaves
tions
356k24 k. Abolition of Slavery; Peonage. Most
92XXVII(G)1 In General
Cited Cases
92k4036 k. Travel and Movement.
(Formerly 92k278(1.3))
Most Cited Cases
Act Cong. March 6, 1820, 3 Stat. 545, “Missouri
(Formerly 92k278(1))
Compromise Act”, prohibiting the holding of slaves
Constitutional Law 92 4070 in the territory of the Louisiana purchase north of
36 deg. 30 min., is obnoxious to the provision that
92 Constitutional Law no person shall be deprived of his rights except by
92XXVII Due Process due process of law, in that its effect, if enforced,
92XXVII(G) Particular Issues and Applica- would be to destroy the rights of slaveholders, cit-
tions izens of the United States, who, with their slaves,
92XXVII(G)3 Property in General might remove into such territory.
92k4070 k. In General. Most Cited
Cases Courts 106 32
(Formerly 92k278(1))
106 Courts
Congressional act depriving citizen of the United
106I Nature, Extent, and Exercise of Jurisdiction
States of his liberty or property merely because he
in General
went into or brought his property into a particular
106k31 Jurisdiction to Be Shown by Record
territory without committing any offense against
106k32 k. In General. Most Cited Cases
the law would deny due process.
No averment in pleadings of plaintiff is necessary
Constitutional Law 92 4036 to give jurisdiction to courts of general jurisdiction.

92 Constitutional Law Courts 106 32


92XXVII Due Process
106 Courts
92XXVII(G) Particular Issues and Applica-
106I Nature, Extent, and Exercise of Jurisdiction
tions
in General
92XXVII(G)1 In General
106k31 Jurisdiction to Be Shown by Record
92k4036 k. Travel and Movement.
106k32 k. In General. Most Cited Cases

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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

The want of jurisdiction in lower court may appear termination and Waiver
on record without any plea in abatement. 170Bk32 k. Pleading. Most Cited
Cases
Courts 106 35 (Formerly 106k279)
In federal courts, plaintiff must plead that his suit is
106 Courts
within jurisdiction of court and that he is entitled to
106I Nature, Extent, and Exercise of Jurisdiction
sue therein, and judgment unsupported by such al-
in General
legation is reversible.
106k34 Presumptions and Burden of Proof as
to Jurisdiction Federal Courts 170B 34
106k35 k. In General. Most Cited Cases
Courts of general jurisdiction are presumed to have 170B Federal Courts
jurisdiction unless the contrary appears. 170BI Jurisdiction and Powers in General
170BI(A) In General
Courts 106 90(1) 170Bk29 Objections to Jurisdiction, De-
termination and Waiver
106 Courts
170Bk34 k. Presumptions and Burden
106II Establishment, Organization, and Proced-
of Proof. Most Cited Cases
ure
(Formerly 106k280(2))
106II(G) Rules of Decision
Jurisdiction of federal courts is not presumed, but
106k88 Previous Decisions as Controlling
record before appellate court must show affirmat-
or as Precedents
ively that inferior court had authority under the
106k90 Decisions of Same Court or
Constitution to hear and determine case.
Co-Ordinate Court
106k90(1) k. In General. Most Federal Courts 170B 261
Cited Cases
In determining whether prior opinion of court 170B Federal Courts
should be followed, single sentence of opinion 170BIV Citizenship, Residence or Character of
should not be separated from the context. Parties, Jurisdiction Dependent on
170BIV(A) In General
Federal Courts 170B 1021 170Bk261 k. Jurisdiction in General.
Most Cited Cases
170B Federal Courts
(Formerly 106k300)
170BX Territorial Courts; Puerto Rico
Circuit court had equity jurisdiction over its own
170Bk1021 k. Establishment and Organiza-
judgment as court of law without regard to charac-
tion in General. Most Cited Cases
ter of parties and was required to prevent parties
(Formerly 106k258)
from proceeding to enforce judgment by execution
In organizing judicial department of government in
if money was not justly and equitably due.
a territory, Congress does not act under and is not
restricted by the third article of the Constitution. Federal Courts 170B 319

Federal Courts 170B 32 170B Federal Courts


170BIV Citizenship, Residence or Character of
170B Federal Courts
Parties, Jurisdiction Dependent on
170BI Jurisdiction and Powers in General
170BIV(E) Objections, Waiver and Determ-
170BI(A) In General
ination
170Bk29 Objections to Jurisdiction, De-

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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

170Bk319 k. In General. Most Cited the law of that state, as repeatedly declared by its
Cases highest court in recent decisions, a negro, under
(Formerly 106k324) such circumstances, is a slave; although, by the law
If fact of citizenship is averred in declaration and of that state at the time of his return, as settled by
defendant does not deny it and put it in issue by earlier cases, he was then a freeman; and although
plea in abatement he cannot offer evidence at the the new decisions be not based upon the construc-
trial to disprove it, and consequently cannot avail tion of the constitution and statutes of the state, but
himself of the objection in appellate court unless upon the ground that the state will not enforce laws
defect is apparent in some other part of record. which prohibit slavery in other states or territories.

Federal Courts 170B 430 Federal Courts 170B 445

170B Federal Courts 170B Federal Courts


170BVI State Laws as Rules of Decision 170BVII Supreme Court
170BVI(C) Application to Particular Matters 170BVII(A) In General
170Bk430 k. Property in General; Deeds; 170Bk445 k. Appellate Jurisdiction and
Leases; Eminent Domain. Most Cited Cases Procedure in General. Most Cited Cases
(Formerly 106k367(1)) (Formerly 106k380)
When a negro, held as a slave in one state, is thence Supreme Court would not sanction attempt to evade
taken by his master, for a temporary residence, into law or exercise appellate power in circuitous way
a state where slavery is prohibited by law, and af- which it was forbidden to exercise in direct and
terwards returns with his master to the same slave regular and invariable forms of judicial proceed-
state, and resumes his residence there, his status ings.
and condition on such return is a question exclus-
ively of the law of that state, and the decisions of Federal Courts 170B 491
the state courts upon it are binding upon the federal
170B Federal Courts
courts.
170BVII Supreme Court
Federal Courts 170B 384 170BVII(D) Other Federal Courts, Review of
Decisions of
170B Federal Courts 170Bk491 k. Other Federal Courts in
170BVI State Laws as Rules of Decision General. Most Cited Cases
170BVI(B) Decisions of State Courts as Au- (Formerly 106k385(4))
thority Where the defendant, in an action in a circuit court
170Bk384 k. Conflicting and Obsolete of the United States, pleaded in abatement to the
Decisions; Change of Law. Most Cited Cases jurisdiction, and, this plea being overruled on de-
(Formerly 106k368) murrer, put in several pleas in bar, upon which ver-
A negro held in slavery in one state, under the laws dict and judgment were rendered in his favor, upon
thereof, and taken by his master, for a temporary a writ of error brought by the plaintiff to reverse
residence, into a state where slavery is prohibited this judgment the whole record is before the su-
by law, and thence into a territory acquired by preme court, and the question upon the plea in
treaty where slavery is prohibited by act of con- abatement is open for revision.
gress, and afterwards returning with his master into
the same slave state, and resuming his residence Federal Courts 170B 491
there, is not such a citizen of that state as may sue
170B Federal Courts
there in the circuit court of the United States, if by

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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

170BVII Supreme Court 228I Nature and Essentials in General


170BVII(D) Other Federal Courts, Review of 228k16 k. Jurisdiction of the Person and Sub-
Decisions of ject-Matter. Most Cited Cases
170Bk491 k. Other Federal Courts in A court can give no judgment for either party where
General. Most Cited Cases it has no jurisdiction.
(Formerly 106k385(4))
Supreme Court has jurisdiction to revise judgment Pleading 302 214(1)
of circuit court and reverse it for any error apparent
302 Pleading
on record including error in giving judgment in
302V Demurrer or Exception
case over which it has no jurisdiction, whether or
302k214 Admissions by Demurrer
not there is a plea in abatement filed.
302k214(1) k. In General. Most Cited
Federal Courts 170B 509 Cases
A demurrer to a pleading admits allegations of fact
170B Federal Courts therein.
170BVII Supreme Court
170BVII(E) Review of Decisions of State Public Lands 317 2
Courts
317 Public Lands
170Bk509 k. Mode of Review and Pro-
317I Government Ownership
ceedings. Most Cited Cases
317k2 k. Cessions and Treaties. Most Cited
(Formerly 106k398(1))
Cases
On writ of error to state court, unless record shows
Under cessions of Virginia, in 1784, and other
case that gives jurisdiction to United States Su-
states, of unappropriated land to the United States
preme Court, case must be dismissed.
for payment of war debts, powers of sovereignty
Indians 209 147 and eminent domain were ceded with the land.

209 Indians Slaves 356 1


209III Protection of Persons and Personal
356 Slaves
Rights; Domestic Relations
356k1 k. Nature, Origin, and Legality of
209k147 k. Admission to Citizenship. Most
Slavery. Most Cited Cases
Cited Cases
The provision in Act Cong. passed March 6, 1820,
(Formerly 209k31)
3 Stat. 545, commonly known as the Missouri
Indians may be naturalized by authority of Con-
Compromise act, prohibiting the holding and own-
gress and become citizens of a state and of the
ership of slaves in the territory of the United States
United States.
north of the line therein mentioned, is not warran-
Judgment 228 15 ted by the constitution, and is therefore void.

228 Judgment Slaves 356 1


228I Nature and Essentials in General
356 Slaves
228k15 k. Jurisdiction of Cause of Action.
356k1 k. Nature, Origin, and Legality of
Most Cited Cases
Slavery. Most Cited Cases
Judgment 228 16
Slaves 356 5
228 Judgment

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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

356 Slaves 375k4 k. Power of United States to Acquire and


356k4 Property in Slaves Control Additional Territory. Most Cited Cases
356k5 k. Rights and Powers of Owners. Most The federal constitution confers no power on the
Cited Cases general government to establish or maintain colon-
Right of property in slave is distinctly and ex- ies to be ruled and governed at its own pleasure, or
pressly affirmed in the Constitution. to acquire and hold lands to be governed perman-
ently in the character of a territory.
Slaves 356 5
Territories 375 5
356 Slaves
356k4 Property in Slaves 375 Territories
356k5 k. Rights and Powers of Owners. Most 375k5 k. Acquisition of Territory. Most Cited
Cited Cases Cases
The federal government has no power over person Territory is acquired by the United States to be-
or property of citizens except what citizens of the come a state and not to be held as a colony and
United States have granted and no laws or usages of governed by Congress with absolute authority.
other nations or reasoning of statesmen or jurists on
relations of master and slave could enlarge powers Territories 375 5
of government or take from citizens rights reserved.
375 Territories
Slaves 356 5 375k5 k. Acquisition of Territory. Most Cited
Cases
356 Slaves Whatever the federal government acquires, includ-
356k4 Property in Slaves ing territories, it acquires for benefit of people of
356k5 k. Rights and Powers of Owners. Most several states and is their trustee acting for them
Cited Cases and charged with duty of promoting interests of the
No federal tribunal may deny the right of property whole people.
in slave, or deny to slave owners benefit of provi-
sions and guarantees provided for protection of Territories 375 8
private property by the Constitution, since the Con-
375 Territories
stitution recognizes such right of property and
375k8 k. Application of Constitution and Laws
makes no distinction between slaves and other
of United States to Territory Acquired. Most Cited
property.
Cases
Slaves 356 10 Congress could not quarter soldier in house in ter-
ritory without consent of owner in time of peace,
356 Slaves nor in time of war except in manner prescribed by
356k10 k. Regulation of Slaves, Freedmen, and law, nor forfeit property of citizen in territory con-
Free Negroes. Most Cited Cases victed of treason for longer period than life of per-
Under federal Constitution, federal government has son convicted, nor take private property for public
no right to interfere with reserved power of states to use without just compensation.
regulate slaves for any other purpose but that of
protecting rights of owner. Territories 375 8

Territories 375 4 375 Territories


375k8 k. Application of Constitution and Laws
375 Territories of United States to Territory Acquired. Most Cited

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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

Cases Cases
Congress could not deny people of territory right to On adoption of the Constitution, new government
keep and bear arms, nor right to jury trial, nor com- was not a mere change in a dynasty or in form of
pel one to be a witness against himself in criminal government, leaving nation or sovereignty the same
proceeding. and clothed with all rights and bound by all obliga-
tions of the preceding one, but a new nation was
Territories 375 8 created.

375 Territories United States 393 22


375k8 k. Application of Constitution and Laws
of United States to Territory Acquired. Most Cited 393 United States
Cases 393I Government in General
Congress cannot make law in a territory respecting 393k22 k. Legislative Power and Exercise
establishment of religion or free exercise thereof or Thereof in General. Most Cited Cases
abridging freedom of speech or of the press or right The power of Congress over person or property of a
of assembly and petition. citizen can never be a mere discretionary power.

Territories 375 11
APRIL TERM, 1854.
375 Territories
375k11 k. Legislative Power of Congress. Most And the said John F. A. Sandford, in his own prop-
Cited Cases er person, comes and says that this court ought not
The federal grant of power to congress to dispose of to have or take further cognizance of the action
and make all needful rules and regulations respect- aforesaid, because he says that said cause of action,
ing the territory or other property belonging to the and each and every of them, (if any such have ac-
United States refers only to territory which be- crued to the said Dred Scott,) accrued to the said
longed to the United States at the time the constitu- Dred Scott out of the jurisdiction of this court, and
tion was adoped, and not to subsequently acquired exclusively within the jurisdiction of the courts of
territory. the State of Missouri, for that, to wit: the said
plaintiff, Dred Scott, is not a citizen of the State of
United States 393 1 Missouri, as alleged in his declaration, because
*397 he is a negro of African descent; his ancestors
393 United States were of pure African blood, and were brought into
393I Government in General this country and sold as negro slaves, and this the
393k1 k. Nature of the Union. Most Cited said Sandford is ready to verify. Wherefore, he
Cases prays judgment whether this court can or will take
On adoption of the Constitution, the United States further cognizance of the action aforesaid.
took nothing by succession from the confederation
and had no right as its successor to any property or JOHN F. A. SANDFORD.
rights of property which it had acquired and was
not liable for any of its obligations. To this plea there was a demurrer in the usual form,
which was argued in April, 1854, when the court
United States 393 1 gave judgment that the demurrer should be sus-
tained.
393 United States
393I Government in General In May, 1854, the defendant, in pursuance of an
393k1 k. Nature of the Union. Most Cited agreement between counsel, and with the leave of

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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

the court, pleaded in bar of the action: 1835, said Major Taliaferro took said Harriet to
said Fort Snelling, a military post, situated as here-
1. Not guilty. inbefore stated, and kept her there as a slave until
the year 1836, and then sold and delivered her as a
2. That the plaintiff was a negro slave, the lawful
slave at said Fort Snelling unto the said Dr. Emer-
property of the defendant, and, as such, the defend-
son hereinbefore named. Said Dr. Emerson held
ant gently laid his hands upon him, and thereby had
said Harriet in slavery at said Fort Snelling until the
only restrained him, as the defendant had a right to
year 1838.
do.
In the year 1836, the plaintiff and said Harriet at
3. That with respect to the wife and daughters of
said Fort Snelling, with the consent of said Dr.
the plaintiff, in the second and third counts of the
Emerson, who then claimed to be their master and
declaration mentioned, the defendant had, as to
owner, intermarried, and took each other for hus-
them, only acted in the same manner, and in virtue
band and wife. Eliza and Lizzie, named in the third
of the same legal right.
count of the plaintiff's declaration, are the fruit of
In the first of these pleas, the plaintiff joined issue; that marriage. Eliza is about fourteen years old, and
and to the second and third, filed replications al- was born on board the steamboat Gipsey, north of
leging that the defendant, of his own wrong and the north line of the State of Missouri, and upon the
without the cause in his second and third pleas al- river Mississippi. Lizzie is about seven years old,
leged, committed the trespasses, &c. and was born in the State of Missouri, at the milit-
ary post called Jefferson Barracks.
The counsel then filed the following agreed state-
ment of facts, viz: In the year 1838, said Dr. Emerson removed the
plaintiff and said Harriet and their said daughter
In the year 1834, the plaintiff was a negro slave be- Eliza, from said Fort Snelling to the State of Mis-
longing to Dr. Emerson, who was a surgeon in the souri, where they have ever since resided.
army of the United States. In that year, 1834, said
Dr. Emerson took the plaintiff from the State of Before the commencement of this suit, said Dr.
Missouri to the military post at Rock Island, in the Emerson sold and conveyed the plaintiff, said Har-
State of Illinois, and held him there as a slave until riet, Eliza, and Lizzie, to the defendant, as slaves,
the month of April or May, 1836. At the time last and the defendant has ever since claimed to hold
mentioned, said Dr. Emerson removed the plaintiff them and each of them as slaves.
from said military post at Rock Island to the milit-
At the times mentioned in the plaintiff's declara-
ary post at Fort Snelling, situate on the west bank
tion, the defendant, claiming to be owner as afore-
of the Mississippi river, in the Territory known as
said, laid his hands upon said plaintiff, Harriet,
Upper Louisiana, acquired by the United States of
Eliza, and Lizzie, and imprisoned them, doing in
France, and situate north of the latitude of thirty-six
this respect, however, no more than what he might
degrees thirty minutes north, and north of the State
lawfully do if they were of right his slaves at such
of Missouri. Said Dr. Emerson held the plaintiff in
times.
slavery at said Fort Snelling, from said last-
mentioned date until the year 1838. Further proof may be given on the trial for either
party.
In the year 1835, Harriet, who is named in the
second count of the plaintiff's declaration, was the It is agreed that Dred Scott brought suit for his free-
negro slave of Major Taliaferro, who belonged to dom in the Circuit Court of St. Louis county; that
the army of the United States. *398 In that year,

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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

there was a verdict and judgment in his favor; that Upon these exceptions, the case came up to this
on a writ of error to the Supreme Court, the judg- court.
ment below was reversed, and the same remanded
to the Circuit Court, where it has been continued to It was argued at December term, 1855, and ordered
await the decision of this case. to be reargued at the present term.
It was now argued by Mr. Blair and Mr. G. F.
In May, 1854, the cause went before a jury, who Curtis for the plaintiff in error, and by Mr. Geyer
found the following verdict, viz: ‘As to the first is- and Mr. Johnson for the defendant in error.
sue joined in this case, we of the jury find the de-
fendant not guilty; and as to the issue secondly
The reporter regrets that want of room will not al-
above joined, we of the jury find that before and at
low him to give the arguments of counsel; but he
the time when, &c., in the first count mentioned,
regrets it the less, because the subject is thoroughly
the said Dred Scott was a negro slave, the lawful
examined in the opinion of the court, the opinions
property of the defendant; and as to the issue
of the concurring judges, and the opinions of the
thirdly above joined, we, the jury, find that before
judges who dissented from the judgment of the
and at the time when, &c., in the second and third
court.
counts mentioned, the said Harriet, wife of *399
Mr. Chief Justice TANEY delivered the opinion of
said Dred Scott, and Eliza and Lizzie, the daughters
the court.
of the said Dred Scott, were negro slaves, the law-
ful property of the defendant.‘ This case has been twice argued. After the argu-
ment at the last term, differences of opinion were
Whereupon, the court gave judgment for the de-
found to exist among the members of the court; and
fendant.
as the questions in controversy are of the highest
After an ineffectual motion for a new trial, the importance, and the court was at that time much
plaintiff filed the following bill of exceptions. pressed by the ordinary business of the term, it was
deemed advisable to continue the case, and direct a
On the trial of this cause by the jury, the plaintiff, re-argument on some of the points, in order that we
to maintain the issues on his part, read to the jury might have an opportunity of giving to the whole
the following agreed statement of facts, (see agree- subject a more deliberate *400 consideration. It has
ment above.) No further testimony was given to the accordingly been again argued by counsel, and con-
jury by either party. Thereupon the plaintiff moved sidered by the court; and I now proceed to deliver
the court to give to the jury the following instruc- its opinion.
tion, viz:
There are two leading questions presented by the
‘That, upon the facts agreed to by the parties, they record:
ought to find for the plaintiff. The court refused to
give such instruction to the jury, and the plaintiff, 1. Had the Circuit Court of the United States juris-
to such refusal, then and there duly excepted.’ diction to hear and determine the case between
these parties? And
The court then gave the following instruction to the
jury, on motion of the defendant: 2. If it had jurisdiction, is the judgment it has given
erroneous or not?
‘The jury are instructed, that upon the facts in this
case, the law is with the defendant.’ The plaintiff The plaintiff in error, who was also the plaintiff in
excepted to this instruction. the court below, was, with his wife and children,
held as slaves by the defendant, in the State of Mis-

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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

souri; and he brought this action in the Circuit ant waived this defence by pleading over, and
Court of the United States for that district, to assert thereby admitted the jurisdiction of the court.
the title of himself and his family to freedom.
*401 But, in making this objection, we think the pe-
The declaration is in the form usually adopted in culiar and limited jurisdiction of courts of the
that State to try questions of this description, and United States has not been adverted to. This peculi-
contains the averment necessary to give the court ar and limited jurisdiction has made it necessary, in
jurisdiction; that he and the defendant are citizens these courts, to adopt different rules and principles
of different States; that is, that he is a citizen of of pleading, so far as jurisdiction is concerned,
Missouri, and the defendant a citizen of New York. from those which regulate courts of common law in
England, and in the different States of the Union
The defendant pleaded in abatement to the jurisdic- which have adopted the common-law rules.
tion of the court, that the plaintiff was not a citizen
of the State of Missouri, as alleged in his declara- In these last-mentioned courts, where their charac-
tion, being a negro of African descent, whose an- ter and rank are analogous to that of a Circuit Court
cestors were of pure African blood, and who were of the United States; in other words, where they are
brought into this country and sold as slaves. what the law terms courts of general jurisdiction;
they are presumed to have jurisdiction, unless the
To this plea the plaintiff demurred, and the defend- contrary appears. No averment in the pleadings of
ant joined in demurrer. The court overruled the the plaintiff is necessary, in order to give jurisdic-
plea, and gave judgment that the defendant should tion. If the defendant objects to it, he must plead it
answer over. And he thereupon put in sundry pleas specially, and unless the fact on which he relies is
in bar, upon which issues were joined; and at the found to be true by a jury, or admitted to be true by
trial the verdict and judgment were in his favor. the plaintiff, the jurisdiction cannot be disputed in
Whereupon the plaintiff brought this writ of error. an appellate court.

Before we speak of the pleas in bar, it will be prop- Now, it is not necessary to inquire whether in
er to dispose of the questions which have arisen on courts of that description a party who pleads over in
the plea in abatement. bar, when a plea to the jurisdiction has been ruled
against him, does or does not waive his plea; nor
That plea denies the right of the plaintiff to sue in a
whether upon a judgment in his favor on the pleas
court of the United States, for the reasons therein
in bar, and a writ of error brought by the plaintiff,
stated.
the question upon the plea in abatement would be
If the question raised by it is legally before us, and open for revision in the appellate court. Cases that
the court should be of opinion that the facts stated may have been decided in such courts, or rules that
in it disqualify the plaintiff from becoming a cit- may have been laid down by common-law pleaders,
izen, in the sense in which that word is used in the can have no influence in the decision in this court.
Constitution of the United States, then the judgment Because, under the Constitution and laws of the
of the Circuit Court is erroneous, and must be re- United States, the rules which govern the pleadings
versed. in its courts, in questions of jurisdiction, stand on
different principles and are regulated by different
It is suggested, however, that this plea is not before laws.
us; and that as the judgment in the court below on
this plea was in favor of the plaintiff, he does not This difference arises, as we have said, from the pe-
seek to reverse it, or bring it before the court for re- culiar character of the Government of the United
vision by his writ of error; and also that the defend- States. For although it is sovereign and supreme in

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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

its appropriate sphere of action, yet it does not pos- v. Van Noorden, (in 2 Cr., 126,) and Montalet v.
sess all the powers which usually belong to the sov- Murray, (4 Cr., 46,) are sufficient to show the rule
ereignty of a nation. Certain specified powers, enu- of which we have spoken. The case of Capron v.
merated in the Constitution, have been conferred Van Noorden strikingly illustrates the difference
upon it; and neither the legislative, executive, nor between a common-law court and a court of the
judicial departments of the Government can law- United States.
fully exercise any authority beyond the limits
marked out by the Constitution. And in regulating If, however, the fact of citizenship is averred in the
the judicial department, the cases in which the declaration, and the defendant does not deny it, and
courts of the United States shall have jurisdiction put it in issue by plea in abatement, he cannot offer
are particularly and specifically enumerated and evidence at the trial to disprove it, and con-
defined; and they are not authorized to take cogniz- sequently cannot avail himself of the objection in
ance of any case which does not come within the the appellate court, unless the defect should be ap-
description therein specified. Hence, when a parent in some other part of the record. For if there
plaintiff sues in a court of the United States, it is is no plea in abatement, and the want of jurisdiction
necessary that he should *402 show, in his plead- does not appear in any other part of the transcript
ing, that the suit he brings is within the jurisdiction brought up by the writ of error, the undisputed
of the court, and that he is entitled to sue there. And averment of citizenship in the declaration must be
if he omits to do this, and should, by any oversight taken in this court to be true. In this case, the cit-
of the Circuit Court, obtain a judgment in his favor, izenship is averred, but it is denied by the defendant
the judgment would be reversed in the appellate in the manner required by the rules of pleading, and
court for want of jurisdiction in the court below. the fact upon which the denial is based is admitted
The jurisdiction would not be presumed, as in the by the demurrer. And, if the plea and demurrer, and
case of a common-law English or State court, un- judgment of the court below upon it, are before us
less the contrary appeared. But the record, when it upon this record, the question to be decided is,
comes before the appellate court, must show, af- whether the facts stated in the plea are sufficient to
firmatively, that the inferior court had authority, show that the plaintiff is not entitled to sue as a cit-
under the Constitution, to hear and determine the izen in a court of the United States.
case. And if the plaintiff claims a right to sue in a
*403 We think they are before us. The plea in
Circuit Court of the United States, under that provi-
abatement and the judgment of the court upon it,
sion of the Constitution which gives jurisdiction in
are a part of the judicial proceedings in the Circuit
controversies between citizens of different States,
Court, and are there recorded as such; and a writ of
he must distinctly aver in his pleading that they are
error always brings up to the superior court the
citizens of different States; and he cannot maintain
whole record of the proceedings in the court below.
his suit without showing that fact in the pleadings.
And in the case of the United States v. Smith, (11
This point was decided in the case of Bingham v. Wheat., 172,) this court said, that the case being
Cabot, (in 3 Dall., 382,) and ever since adhered to brought up by writ of error, the whole record was
by the court. And in Jackson v. Ashton, (8 Pet., under the consideration of this court. And this be-
148,) it was held that the objection to which it was ing the case in the present instance, the plea in
open could not be waived by the opposite party, be- abatement is necessarily under consideration; and it
cause consent of parties could not give jurisdiction. becomes, therefore, our duty to decide whether the
facts stated in the plea are or are not sufficient to
It is needless to accumulate cases on this subject. show that the plaintiff is not entitled to sue as a cit-
Those already referred to, and the cases of Capron izen in a court of the United States.

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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

This is certainly a very serious question, and one nor colonial Governments claimed or exercised any
that now for the first time has been brought for de- dominion over the tribe or nation by whom it was
cision before this court. But it is brought here by occupied, nor claimed the right to the possession of
those who have a right to bring it, and it is our duty the territory, until the tribe or nation consented to
to meet it and decide it. cede it. These Indian Governments were regarded
and treated as foreign Governments, as much so as
The question is simply this: Can a negro, whose an- if an ocean had separated the red man from the
cestors were imported into this country, and sold as white; and their freedom has constantly been ac-
slaves, become a member of the political com- knowledged, from the time of the first emigration to
munity formed and brought into existence by the the English colonies to the present day, by the dif-
Constitution of the United States, and as such be- ferent Governments which succeeded each other.
come entitled to all the rights, and privileges, and Treaties have been negotiated with them, and their
immunities, guarantied by that instrument to the cit- alliance sought for in war; and the people who com-
izen? One of which rights is the privilege of suing pose these Indian political communities have al-
in a court of the United States in the cases specified ways been treated as foreigners not living under our
in the Constitution. Government. It is true that the course of events has
brought the Indian tribes within the limits of the
It will be observed, that the plea applies to that
United States under subjection to the white race;
class of persons only whose ancestors were negroes
and it has been found necessary, for their sake as
of the African race, and imported into this country,
well as our own, to regard them as in a state of pu-
and sold and held as slaves. The only matter in is-
pilage, and to legislate to a certain extent over them
sue before the court, therefore, is, whether the des-
and the territory they occupy. But they may,
cendants of such slaves, when they shall be eman-
without doubt, like the subjects of any other foreign
cipated, or who are born of parents who had be-
Government, be naturalized by the authority of
come free before their birth, are citizens of a State,
Congress, and become citizens of a State, and of the
in the sense in which the word citizen is used in the
United States; and if an individual should leave his
Constitution of the United States. And this being
nation or tribe, and take up his abode among the
the only matter in dispute on the pleadings, the
white population, he would be entitled to all the
court must be understood as speaking in this opin-
rights and privileges which would belong to an
ion of that class only, that is, of those persons who
emigrant from any other foreign people.
are the descendants of Africans who were imported
into this country, and sold as slaves. We proceed to examine the case as presented by the
pleadings.
The situation of this population was altogether un-
like that of the Indian race. The latter, it is true, The words ‘people of the United States‘ and
formed no part of the colonial communities, and ‘citizens‘ are synonymous terms, and mean the
never amalgamated with them in social connections same thing. They both describe the political body
or in government. But although they were uncivil- who, according to our republican institutions, form
ized, they were yet a free and independent people, the sovereignty, and who hold the power and con-
associated together in nations or tribes, and gov- duct the Government through their representatives.
erned by their own laws. Many of these political They are what we familiarly call the ‘sovereign
communities were situated in territories to which people,‘ and every citizen is one of this people, and
the white race claimed the ultimate *404 right of a constituent member of this sovereignty. The ques-
dominion. But that claim was acknowledged to be tion before us is, whether the class of persons de-
subject to the right of the Indians to occupy it as scribed in the plea in abatement compose a portion
long as they thought proper, and neither the English

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of this people, and are constituent members of this privileges by adopting the Constitution of the
sovereignty? We think they are not, and that they United States. Each State may still confer them
are not included, and were not intended to be in- upon an alien, or any one it thinks proper, or upon
cluded, under the word ‘citizens‘ in the Constitu- any class or description of persons; yet he would
tion, and can therefore claim none of the rights and not be a citizen in the sense in which that word is
privileges which that instrument provides for and used in the Constitution of the United States, nor
secures to citizens of the United States. On the con- entitled to sue as such in one of its courts, nor to the
trary, they were at that time considered as a subor- privileges and immunities of a citizen in the other
dinate *405 and inferior class of beings, who had States. The rights which he would acquire would be
been subjugated by the dominant race, and, whether restricted to the State which gave them. The Consti-
emancipated or not, yet remained subject to their tution has conferred on Congress the right to estab-
authority, and had no rights or privileges but such lish an uniform rule of naturalization, and this right
as those who held the power and the Government is evidently exclusive, and has always been held by
might choose to grant them. this court to be so. Consequently, no State, since
the adoption of the Constitution, can by naturaliz-
It is not the province of the court to decide upon the ing an alien invest him with the rights and priv-
justice or injustice, the policy or impolicy, of these ileges secured to a citizen of a State under the Fed-
laws. The decision of that question belonged to the eral Government, although, so far as the State alone
political or law-making power; to those who was concerned, he would undoubtedly be entitled to
formed the sovereignty and framed the Constitu- the rights of a citizen, and clothed with all the *406
tion. The duty of the court is, to interpret the instru- rights and immunities which the Constitution and
ment they have framed, with the best lights we can laws of the State attached to that character.
obtain on the subject, and to administer it as we
find it, according to its true intent and meaning It is very clear, therefore, that no State can, by any
when it was adopted. act or law of its own, passed since the adoption of
the Constitution, introduce a new member into the
In discussing this question, we must not confound political community created by the Constitution of
the rights of citizenship which a State may confer the United States. It cannot make him a member of
within its own limits, and the rights of citizenship this community by making him a member of its
as a member of the Union. It does not by any means own. And for the same reason it cannot introduce
follow, because he has all the rights and privileges any person, or description of persons, who were not
of a citizen of a State, that he must be a citizen of intended to be embraced in this new political fam-
the United States. He may have all of the rights and ily, which the Constitution brought into existence,
privileges of the citizen of a State, and yet not be but were intended to be excluded from it.
entitled to the rights and privileges of a citizen in
any other State. For, previous to the adoption of the The question then arises, whether the provisions of
Constitution of the United States, every State had the Constitution, in relation to the personal rights
the undoubted right to confer on whomsoever it and privileges to which the citizen of a State should
pleased the character of citizen, and to endow him be entitled, embraced the negro African race, at that
with all its rights. But this character of course was time in this country, or who might afterwards be
confined to the boundaries of the State, and gave imported, who had then or should afterwards be
him no rights or privileges in other States beyond made free in any State; and to put it in the power of
those secured to him by the laws of nations and the a single State to make him a citizen of the United
comity of States. Nor have the several States sur- States, and endue him with the full rights of citizen-
rendered the power of conferring these rights and ship in every other State without their consent?

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Does the Constitution of the United States act upon tions. We must inquire who, at that time, were re-
him whenever he shall be made free under the laws cognized as the people or citizens of a State, whose
of a State, and raised there to the rank of a citizen, rights and liberties had been outraged by the Eng-
and immediately clothe him with all the privileges lish Government; and who declared their independ-
of a citizen in every other State, and in its own ence, and assumed the powers of Government to
courts? defend their rights by force of arms.

The court think the affirmative of these proposi- In the opinion of the court, the legislation and his-
tions cannot be maintained. And if it cannot, the tories of the times, and the language used in the De-
plaintiff in error could not be a citizen of the State claration of Independence, show, that neither the
of Missouri, within the meaning of the Constitution class of persons who had been imported as slaves,
of the United States, and, consequently, was not en- nor their descendants, whether they had become
titled to sue in its courts. free or not, were then acknowledged as a part of the
people, nor intended to be included in the general
It is true, every person, and every class and descrip- words used in that memorable instrument.
tion of persons, who were at the time of the adop-
tion of the Constitution recognized as citizens in the It is difficult at this day to realize the state of public
several States, became also citizens of this new opinion in relation to that unfortunate race, which
political body; but none other; it was formed by prevailed in the civilized and enlightened portions
them, and for them and their posterity, but for no of the world at the time of the Declaration of Inde-
one else. And the personal rights and privileges pendence, and when the Constitution of the United
guaranteed to citizens of this new sovereignty were States was framed and adopted. But the public his-
intended to embrace those only who were then tory of every European nation displays it in a man-
members of the several State communities, or who ner too plain to be mistaken.
should afterwards by birthright or otherwise be-
come members, according to the provisions of the They had for more than a century before been re-
Constitution and the principles on which it was garded as beings of an inferior order, and altogether
founded. It was the union of those who were at that unfit to associate with the white race, either in so-
time members of distinct and separate political cial or political relations; and so far inferior, that
communities into one political family, whose they had no rights which the white man was bound
power, for certain specified purposes, was to extend to respect; and that the negro might justly and law-
over the whole territory of the United States. And it fully be reduced to slavery for his benefit. He was
gave to each citizen rights and privileges outside of bought and sold, and treated as an ordinary article
his State *407 which he did not before possess, and of merchandise and traffic, whenever a profit could
placed him in every other State upon a perfect be made by it. This opinion was at that time fixed
equality with its own citizens as to rights of person and universal in the civilized portion of the white
and rights of property; it made him a citizen of the race. It was regarded as an axiom in morals as well
United States. as in politics, which no one thought of disputing, or
supposed to be open to dispute; and men in every
It becomes necessary, therefore, to determine who grade and position in society daily and habitually
were citizens of the several States when the Consti- acted upon it in their private pursuits, as well as in
tution was adopted. And in order to do this, we matters of public concern, without doubting for a
must recur to the Governments and institutions of moment the correctness of this opinion.
the thirteen colonies, when they separated from
Great Britain and formed new sovereignties, and And in no nation was this opinion more firmly
took their places in the family of independent na- fixed or more *408 uniformly acted upon than by

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the English Government and English people. They man who shall intermarry as aforesaid, with any
not only seized them on the coast of Africa, and negro or mulatto, such white man or white woman
sold them or held them in slavery for their own use; shall become servants during the term of seven
but they took them as ordinary articles of mer- years, and shall be disposed of by the justices as
chandise to every country where they could make a aforesaid, and be applied to the uses aforesaid.‘
profit on them, and were far more extensively en-
gaged in this commerce than any other nation in the **5 The other colonial law to which we refer was
world. passed by Massachusetts in 1705, (chap. 6.) It is en-
titled ‘An act for the better preventing of a spurious
The opinion thus entertained and acted upon in and mixed issue,‘ &c.; and it provides, that ‘if any
England was naturally impressed upon the colonies negro or mulatto shall presume to smite or strike
they founded on this side of the Atlantic. And, ac- any person of the English or other Christian nation,
cordingly, a negro of the African race was regarded such negro or mulatto shall be severely whipped, at
by them as an article of property, and held, and *409 the discretion of the justices before whom the
bought and sold as such, in every one of the thir- offender shall be convicted.‘
teen colonies which united in the Declaration of In-
dependence, and afterwards formed the Constitu- And ‘that none of her Majesty's English or Scottish
tion of the United States. The slaves were more or subjects, nor of any other Christian nation, within
less numerous in the different colonies, as slave this province, shall contract matrimony with any
labor was found more or less profitable. But no one negro or mulatto; nor shall any person, duly author-
seems to have doubted the correctness of the pre- ized to solemnize marriage, presume to join any
vailing opinion of the time. such in marriage, on pain of forfeiting the sum of
fifty pounds; one moiety thereof to her Majesty, for
The legislation of the different colonies furnishes and towards the support of the Government within
positive and indisputable proof of this fact. this province, and the other moiety to him or them
that shall inform and sue for the same, in any of her
It would be tedious, in this opinion, to enumerate Majesty's courts of record within the province, by
the various laws they passed upon this subject. It bill, plaint, or information.‘
will be sufficient, as a sample of the legislation
which then generally prevailed throughout the Brit- We give both of these laws in the words used by the
ish colonies, to give the laws of two of them; one respective legislative bodies, because the language
being still a large slaveholding State, and the other in which they are framed, as well as the provisions
the first State in which slavery ceased to exist. contained in them, show, too plainly to be misun-
derstood, the degraded condition of this unhappy
The province of Maryland, in 1717, (ch. 13, s. 5,) race. They were still in force when the Revolution
passed a law declaring ‘that if any free negro or began, and are a faithful index to the state of feel-
mulatto intermarry with any white woman, or if any ing towards the class of persons of whom they
white man shall intermarry with any negro or mu- speak, and of the position they occupied throughout
latto woman, such negro or mulatto shall become a the thirteen colonies, in the eyes and thoughts of the
slave during life, excepting mulattoes born of white men who framed the Declaration of Independence
women, who, for such intermarriage, shall only be- and established the State Constitutions and Govern-
come servants for seven years, to be disposed of as ments. They show that a perpetual and impassable
the justices of the county court, where such mar- barrier was intended to be erected between the
riage so happens, shall think fit; to be applied by white race and the one which they had reduced to
them towards the support of a public school within slavery, and governed as subjects with absolute and
the said county. And any white man or white wo- despotic power, and which they then looked upon

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as so far below them in the scale of created beings, cluded, and formed no part of the people who
that intermarriages between white persons and framed and adopted this declaration; for if the lan-
negroes or mulattoes were regarded as unnatural guage, as understood in that day, would embrace
and immoral, and punished as crimes, not only in them, the conduct of the distinguished men who
the parties, but in the person who joined them in framed the Declaration of Independence would
marriage. And no distinction in this respect was have been utterly and flagrantly inconsistent with
made between the free negro or mulatto and the the principles they asserted; and instead of the sym-
slave, but this stigma, of the deepest degradation, pathy of mankind, to which they so confidently ap-
was fixed upon the whole race. pealed, they would have deserved and received uni-
versal rebuke and reprobation.
We refer to these historical facts for the purpose of
showing the fixed opinions concerning that race, Yet the men who framed this declaration were great
upon which the statesmen of that day spoke and ac- men-high in literary acquirements-high in their
ted. It is necessary to do this, in order to determine sense of honor, and incapable of asserting prin-
whether the general terms used in the Constitution ciples inconsistent with those on which they were
of the United States, as to the rights of man and the acting. They perfectly understood the meaning of
rights of the people, was intended to include them, the language they used, and how it would be under-
or to give to them or their posterity the benefit of stood by others; and they knew that it would not in
any of its provisions. any part of the civilized world be supposed to em-
brace the negro race, which, by common consent,
The language of the Declaration of Independence is had been excluded from civilized Governments and
equally conclusive: the family of nations, and doomed to slavery. They
spoke and acted according to the then established
It begins by declaring that, ‘when in the course of
doctrines and principles, and in the ordinary lan-
human events it becomes necessary for one people
guage of the day, and no one misunderstood them.
to dissolve the political bands which have connec-
The unhappy black race were separated from the
ted them with another, and to *410 assume among
white by indelible marks, and laws long before es-
the powers of the earth the separate and equal sta-
tablished, and were never thought of or spoken of
tion to which the laws of nature and nature's God
except as property, and when the claims of the
entitle them, a decent respect for the opinions of
owner or the profit of the trader were supposed to
mankind requires that they should declare the
need protection.
causes which impel them to the separation.‘
This state of public opinion had undergone no
**6 It then proceeds to say: ‘We hold these truths
change when the Constitution was adopted, as is
to be self-evident: that all men are created equal;
equally evident from its provisions and language.
that they are endowed by their Creator with certain
unalienable rights; that among them is life, liberty, The brief preamble sets forth by whom it was
and the pursuit of happiness; that to secure these formed, for what purposes, and for whose benefit
rights, Governments are instituted, deriving their and protection. It declares *411 that it is formed by
just powers from the consent of the governed.‘ the people of the United States; that is to say, by
those who were members of the different political
The general words above quoted would seem to
communities in the several States; and its great ob-
embrace the whole human family, and if they were
ject is declared to be to secure the blessings of
used in a similar instrument at this day would be so
liberty to themselves and their posterity. It speaks
understood. But it is too clear for dispute, that the
in general terms of the people of the United States,
enslaved African race were not intended to be in-
and of citizens of the several States, when it is

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providing for the exercise of the powers granted or were identified in the public mind with the race to
the privileges secured to the citizen. It does not which they belonged, and regarded as a part of the
define what description of persons are intended to slave population rather than the free. It is obvious
be included under these terms, or who shall be re- that they were not *412 even in the minds of the
garded as a citizen and one of the people. It uses framers of the Constitution when they were confer-
them as terms so well understood, that no further ring special rights and privileges upon the citizens
description or definition was necessary. of a State in every other part of the Union.

**7 But there are two clauses in the Constitution Indeed, when we look to the condition of this race
which point directly and specifically to the negro in the several States at the time, it is impossible to
race as a separate class of persons, and show clearly believe that these rights and privileges were inten-
that they were not regarded as a portion of the ded to be extended to them.
people or citizens of the Government then formed.
It is very true, that in that portion of the Union
One of these clauses reserves to each of the thirteen where the labor of the negro race was found to be
States the right to import slaves until the year 1808, unsuited to the climate and unprofitable to the mas-
if it thinks proper. And the importation which it ter, but few slaves were held at the time of the De-
thus sanctions was unquestionably of persons of the claration of Independence; and when the Constitu-
race of which we are speaking, as the traffic in tion was adopted, it had entirely worn out in one of
slaves in the United States had always been con- them, and measures had been taken for its gradual
fined to them. And by the other provision the States abolition in several others. But this change had not
pledge themselves to each other to maintain the been produced by any change of opinion in relation
right of property of the master, by delivering up to to this race; but because it was discovered, from ex-
him any slave who may have escaped from his ser- perience, that slave labor was unsuited to the cli-
vice, and be found within their respective territor- mate and productions of these States: for some of
ies. By the first above-mentioned clause, therefore, the States, where it had ceased or nearly ceased to
the right to purchase and hold this property is dir- exist, were actively engaged in the slave trade, pro-
ectly sanctioned and authorized for twenty years by curing cargoes on the coast of Africa, and trans-
the people who framed the Constitution. And by the porting them for sale to those parts of the Union
second, they pledge themselves to maintain and up- where their labor was found to be profitable, and
hold the right of the master in the manner specified, suited to the climate and productions. And this
as long as the Government they then formed should traffic was openly carried on, and fortunes accumu-
endure. And these two provisions show, conclus- lated by it, without reproach from the people of the
ively, that neither the description of persons therein States where they resided. And it can hardly be sup-
referred to, nor their descendants, were embraced in posed that, in the States where it was then counten-
any of the other provisions of the Constitution; for anced in its worst form-that is, in the seizure and
certainly these two clauses were not intended to transportation-the people could have regarded those
confer on them or their posterity the blessings of who were emancipated as entitled to equal rights
liberty, or any of the personal rights so carefully with themselves.
provided for the citizen.
**8 And we may here again refer, in support of this
No one of that race had ever migrated to the United proposition, to the plain and unequivocal language
States voluntarily; all of them had been brought of the laws of the several States, some passed after
here as articles of merchandise. The number that the Declaration of Independence and before the
had been emancipated at that time were but few in Constitution was adopted, and some since the Gov-
comparison with those held in slavery; and they ernment went into operation.

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We need not refer, on this point, particularly to the months, in the common jail, or to hard labor, and to
laws of the present slaveholding States. Their stat- a fine of not less than fifty nor more than two hun-
ute books are full of provisions in relation to this dred dollars; and, like the law of 1786, it declares
class, in the same spirit with the Maryland law the marriage to be absolutely null and void. It will
which we have before quoted. They have continued be seen that the punishment is increased by the
to treat them as an inferior class, and to subject code upon the person who shall marry them, by
them to strict police regulations, drawing a broad adding imprisonment to a pecuniary penalty.
line of distinction between the citizen and the slave
races, and legislating in relation to them upon the So, too, in Connecticut. We refer more particularly
same principle which prevailed at the time of the to the legislation of this State, because it was not
Declaration of Independence. As relates to these only among the first to put an end to slavery within
States, it is too plain for argument, that they have its own territory, but was the first to fix a mark of
never been regarded as a part of the people or cit- reprobation upon the African slave trade. The law
izens of the State, nor supposed to possess any last mentioned was passed in October, 1788, about
political rights which the dominant race might not nine months after the State had ratified and adopted
withhold or grant at their pleasure. *413 And as the present Constitution of the United States; and
long ago as 1822, the Court of Appeals of Kentucky by that law it prohibited its own citizens, under
decided that free negroes and mulattoes were not severe penalties, from engaging in the trade, and
citizens within the meaning of the Constitution of declared all policies of insurance on the vessel or
the United States; and the correctness of this de- cargo made in the State to be null and void. But, up
cision is recognized, and the same doctrine af- to the time of the adoption of the Constitution, there
firmed, in 1 Meigs's Tenn. Reports, 331. is nothing in the legislation of the State indicating
any change of opinion as to the relative rights and
And if we turn to the legislation of the States where position of the white and black races in this coun-
slavery had worn out, or measures taken for its try, or indicating that it meant to place the latter,
speedy abolition, we shall find the same opinions when free, upon a level with its citizens. And cer-
and principles equally fixed and equally acted tainly nothing which would have led the slavehold-
upon. ing States to suppose, that Connecticut designed to
claim for them, under *414 the new Constitution,
Thus, Massachusetts, in 1786, passed a law similar the equal rights and privileges and rank of citizens
to the colonial one of which we have spoken. The in every other State.
law of 1786, like the law of 1705, forbids the mar-
riage of any white person with any negro, Indian, or **9 The first step taken by Connecticut upon this
mulatto, and inflicts a penalty of fifty pounds upon subject was as early as 1774, wen it passed an act
any one who shall join them in marriage; and de- forbidding the further importation of slaves into the
clares all such marriage absolutely null and void, State. But the section containing the prohibition is
and degrades thus the unhappy issue of the mar- introduced by the following preamble:
riage by fixing upon it the stain of bastardy. And
this mark of degradation was renewed, and again ‘And whereas the increase of slaves in this State is
impressed upon the race, in the careful and deliber- injurious to the poor, and inconvenient.‘
ate preparation of their revised code published in
This recital would appear to have been carefully in-
1836. This code forbids any person from joining in
troduced, in order to prevent any misunderstanding
marriage any white person with any Indian, negro,
of the motive which induced the Legislature to pass
or mulatto, and subjects the party who shall offend
the law, and places it distinctly upon the interest
in this respect, to imprisonment, not exceeding six
and convenience of the white population-excluding

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the inference that it might have been intended in the civil authority of the town in which such school
any degree for the benefit of the other. or institution might be.

And in the act of 1784, by which the issue of And it appears by the case of Crandall v. The State,
slaves, born after the time therein mentioned, were reported in 10 Conn. Rep., 340, that upon an in-
to be free at a certain age, the section is again intro- formation filed against Prudence Crandall for a vi-
duced by a preamble assigning a similar motive for olation of this law, one of the points raised in the
the act. It is in these words: defence was, that the law was a violation of the
Constitution of the United States; and that the per-
‘Whereas sound policy requires that the abolition of sons instructed, although of the African race, were
slavery should be effected as soon as may be con- citizens of other States, and therefore entitled to the
sistent with the rights of individuals, and the public rights and privileges of citizens in the State of Con-
safety and welfare‘-showing that the right of prop- necticut. But Chief Justice Dagget, before whom
erty in the master was to be protected, and that the the case was tried, held, that persons of that de-
measure was one of policy, and to prevent the in- scription were not citizens of a State, within the
jury and inconvenience, to the whites, of a slave meaning of the word citizen in the Constitution of
population in the State. the United States, and were not therefore entitled to
the privileges and immunities of citizens in other
And still further pursuing its legislation, we find
States.
that in the same statute passed in 1774, which pro-
hibited the further importation of slaves into the **10 The case was carried up to the Supreme Court
State, there is also a provision by which any negro, of Errors of the State, and the question fully argued
Indian, or mulatto servant, who was found wander- there. But the case went off upon another point, and
ing out of the town or place to which he belonged, no opinion was expressed on this question.
without a written pass such as is therein described,
was made liable to be seized by any one, and taken We have made this particular examination into the
before the next authority to be examined and de- legislative and judicial action of Connecticut, be-
livered up to his master-who was required to pay cause, from the early hostility it displayed to the
the charge which had accrued thereby. And a sub- slave trade on the coast of Africa, we may expect to
sequent section of the same law provides, that if find the laws of that State as lenient and favorable
any free negro shall travel without such pass, and to the subject race as those of any other State in the
shall be stopped, seized, or taken up, he shall pay Union; and if we find that at the time the Constitu-
all charges arising thereby. And this law was in full tion was adopted, they were not even there raised to
operation when the Constitution of the United the rank of citizens, but were still held and treated
States was adopted, and was not repealed till 1797. as property, and the laws relating to them passed
So that up to that time free negroes and mulattoes with reference altogether to the interest and con-
were associated with servants and slaves in the po- venience of the white race, we shall hardly find
lice regulations established by the laws of the State. them elevated to a higher rank anywhere else.

And again, in 1833, Connecticut passed another A brief notice of the laws of two other States, and
law, which made it penal to set up or establish any we shall pass on to other considerations.
school in that State for the instruction of persons of
the African race not inhabitants of the State, or to By the laws of New Hampshire, collected and fi-
instruct or teach in any such school or *415 institu- nally passed in 1815, no one was permitted to be
tion, or board or harbor for that purpose, any such enrolled in the militia of the State, but free white
person, without the previous consent in writing of citizens; and the same provision is found in a sub-

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sequent collection of the laws, made in 1855. Noth- the respect due to these States, to suppose that they
ing could more strongly mark the entire repudiation regarded at that time, as fellow-citizens and mem-
of the African race. The alien is excluded, because, bers of the sovereignty, a class of beings whom
being born in a foreign country, he cannot be a they had thus stigmatized; whom, as we are bound,
member of the community until he is naturalized. out of respect to the State sovereignties, to assume
But why are the African race, born in the State, not they had deemed it just and necessary thus to stig-
permitted to share in one of the highest duties of the matize, and upon whom they had impressed such
citizen? The answer is obvious; he is not, by the in- deep and enduring marks of inferiority and degrad-
stitutions and laws of the State, numbered among ation; or, that when they met in convention to form
its people. He forms no part of the sovereignty of the Constitution, they looked upon them as a por-
the State, and is not therefore called on to uphold tion of their constituents, or designed to include
and defend it. them in the provisions so carefully inserted for the
security and protection of the liberties and rights of
*416 Again, in 1822, Rhode Island, in its revised their citizens. It cannot be supposed that they inten-
code, passed a law forbidding persons who were ded to secure to them rights, and privileges, and
authorized to join persons in marriage, from joining rank, in the new political body throughout the Uni-
in marriage any white person with any negro, Indi- on, which every one of them denied within the lim-
an, or mulatto, under the penalty of two hundred its of its own dominion. More especially, it cannot
dollars, and declaring all such marriages absolutely be believed that the large slaveholding States re-
null and void; and the same law was again re- garded them as included in the word citizens, or
enacted in its revised code of 1844. So that, down would have consented to a Constitution which
to the last-mentioned period, the strongest mark of might compel them to receive them in that charac-
inferiority and degradation was fastened upon the ter from another State. For if they were so received,
African race in that State. and entitled to the privileges and immunities of cit-
izens, it would exempt them from the operation of
It would be impossible to enumerate and compress
the special laws and from the police *417 regula-
in the space usually allotted to an opinion of a
tions which they considered to be necessary for
court, the various laws, marking the condition of
their own safety. It would give to persons of the
this race, which were passed from time to time after
negro race, who were recognized as citizens in any
the Revolution, and before and since the adoption
one State of the Union, the right to enter every oth-
of the Constitution of the United States. In addition
er State whenever they pleased, singly or in com-
to those already referred to, it is sufficient to say,
panies, without pass or passport, and without ob-
that Chancellor Kent, whose accuracy and research
struction, to sojourn there as long as they pleased,
no one will question, states in the sixth edition of
to go where they pleased at every hour of the day or
his Commentaries, (published in 1848, 2 vol., 258,
night without molestation, unless they committed
note b,) that in no part of the country except Maine,
some violation of law for which a white man would
did the African race, in point of fact, participate
be punished; and it would give them the full liberty
equally with the whites in the exercise of civil and
of speech in public and in private upon all subjects
political rights.
upon which its own citizens might speak; to hold
**11 The legislation of the States therefore shows, public meetings upon political affairs, and to keep
in a manner not to be mistaken, the inferior and and carry arms wherever they went. And all of this
subject condition of that race at the time the Consti- would be done in the face of the subject race of the
tution was adopted, and long afterwards, same color, both free and slaves, and inevitably
throughout the thirteen States by which that instru- producing discontent and insubordination among
ment was framed; and it is hardly consistent with them, and endangering the peace and safety of the

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State. tion obviously took from the States all power by


any subsequent legislation to introduce as a citizen
It is impossible, it would seem, to believe that the into the political family of the United States any
great men of the slaveholding States, who took so one, no matter where he was born, or what might be
large a share in framing the Constitution of the his character or condition; and it gave to Congress
United States, and exercised so much influence in the power to confer this character upon those only
procuring its adoption, could have been so forgetful who were born outside of the dominions of the
or regardless of their own safety and the safety of United States. And no law of a State, therefore,
those who trusted and confided in them. passed since the Constitution was adopted, can give
any right of citizenship outside of its own territory.
Besides, this want of foresight and care would have
been utterly inconsistent with the caution displayed **12 A clause similar to the one in the Constitu-
in providing for the admission of new members into tion, in relation to the rights and immunities of cit-
this political family. For, when they gave to the cit- izens of one State in the other States, was contained
izens of each State the privileges and immunities of in the Articles of Confederation. But there is a dif-
citizens in the several States, they at the same time ference of language, which is worthy of note. The
took from the several States the power of naturaliz- provision in the Articles of Confederation was,
ation, and confined that power exclusively to the ‘that the free inhabitants of each of the States, pau-
Federal Government. No State was willing to per- pers, vagabonds, and fugitives from justice, excep-
mit another State to determine who should or ted, should be entitled to all the privileges and im-
should not be admitted as one of its citizens, and munities of free citizens in the several States.’
entitled to demand equal rights and privileges with
their own people, within their own territories. The It will be observed, that under this Confederation,
right of naturalization was therefore, with one ac- each State had the right to decide for itself, and in
cord, surrendered by the States, and confided to the its own tribunals, whom it would acknowledge as a
Federal Government. And this power granted to free inhabitant of another State. The term free in-
Congress to establish an uniform rule of naturaliza- habitant, in the generality of its terms, would cer-
tion is, by the well-understood meaning of the tainly include one of the African race who had been
word, confined to persons born in a foreign coun- manumitted. But no example, we think, can be
try, under a foreign Government. It is not a power found of his admission to all the privileges of cit-
to raise to the rank of a citizen any one born in the izenship in any State of the Union after these Art-
United States, who, from birth or parentage, by the icles were formed, and while they continued in
laws of the country, belongs to an inferior and sub- force. And, notwithstanding the generality of the
ordinate class. And when we find the States guard- words ‘free inhabitants,‘ it is very clear that, ac-
ing themselves from the indiscreet or improper ad- cording to their accepted meaning in that day, they
mission by other States of emigrants from other did not include the African race, whether free or
countries, by giving the power exclusively to Con- not: for the fifth section of the ninth article provides
gress, we cannot fail to see that they could never that Congress should have the power ‘to agree upon
have left with the States a much *418 more import- the number of land forces to be raised, and to make
ant power-that is, the power of transforming into requisitions from each State for its quota in propor-
citizens a numerous class of persons, who in that tion to the number of white inhabitants in such
character would be much more dangerous to the State, which requisition should be binding.‘
peace and safety of a large portion of the Union,
than the few foreigners one of the States might im- Words could hardly have been used which more
properly naturalize. The Constitution upon its adop- strongly mark the line of distinction between the
citizen and the subject; the free and the subjugated

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races. The latter were not even counted when the because many of the men who assisted in framing
inhabitants of a State were to be embodied in pro- the Constitution, and took an active part in procur-
portion to its numbers for the general defence. And ing its adoption, were then in the halls of legisla-
it cannot for a moment be supposed, that a class of tion, and certainly understood what they meant
*419 persons thus separated and rejected from when they used the words ‘people of the United
those who formed the sovereignty of the States, States' and ‘citizen’ in that well-considered instru-
were yet intended to be included under the words ment.
‘free inhabitants,’ in the preceding article, to whom
privileges and immunities were so carefully secured The first of these acts is the naturalization law,
in every State. which was passed at the second session of the first
Congress, March 26, 1790, and confines the right of
But although this clause of the Articles of Confed- becoming citizens ‘ to aliens being free white per-
eration is the same in principle with that inserted in sons.‘
the Constitution, yet the comprehensive word in-
habitant, which might be construed to include an Now, the Constitution does not limit the power of
emancipated slave, is omitted; and the privilege is Congress in this respect to white persons. And they
confined to citizens of the State. And this alteration may, if they think proper, authorize the naturaliza-
in words would hardly have been made, unless a tion of any one, of any color, who was born under
different meaning was intended to be conveyed, or allegiance to another Government. But the language
a possible doubt removed. The just and fair infer- of the law above quoted, shows that citizenship
ence is, that as this privilege was about to be placed *420 at that time was perfectly understood to be
under the protection of the General Government, confined to the white race; and that they alone con-
and the words expounded by its tribunals, and all stituted the sovereignty in the Government.
power in relation to it taken from the State and its
Congress might, as we before said, have authorized
courts, it was deemed prudent to describe with pre-
the naturalization of Indians, because they were ali-
cision and caution the persons to whom this high
ens and foreigners. But, in their then untutored and
privilege was given-and the word citizen was on
savage state, no one would have thought of admit-
that account substituted for the words free inhabit-
ting them as citizens in a civilized community.
ant. The word citizen excluded, and no doubt inten-
And, moreover, the atrocities they had but recently
ded to exclude, foreigners who had not become cit-
committed, when they were the allies of Great Bri-
izens of some one of the States when the Constitu-
tain in the Revolutionary war, were yet fresh in the
tion was adopted; and also every description of per-
recollection of the people of the United States, and
sons who were not fully recognized as citizens in
they were even then guarding themselves against
the several States. This, upon any fair construction
the threatened renewal of Indian hostilities. No one
of the instruments to which we have referred, was
supposed then that any Indian would ask for, or was
evidently the object and purpose of this change of
capable of enjoying, the privileges of an American
words.
citizen, and the word white was not used with any
**13 To all this mass of proof we have still to add, particular reference to them.
that Congress has repeatedly legislated upon the
Neither was it used with any reference to the Afric-
same construction of the Constitution that we have
an race imported into or born in this country; be-
given. Three laws, two of which were passed al-
cause Congress had no power to naturalize them,
most immediately after the Government went into
and therefore there was no necessity for using par-
operation, will be abundantly sufficient to show
ticular words to exclude them.
this. The two first are particularly worthy of notice,

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It would seem to have been used merely because it legislation; and after prescribing the punishment
followed out the line of division which the Consti- that may be inflicted on the slaves, proceeds in the
tution has drawn between the citizen race, who following words: ‘And to punish such free negroes
formed and held the Government, and the African and mulattoes by penalties not exceeding twenty
race, which they held in subjection and slavery, and dollars for any one offence; and in case of the inab-
governed at their own pleasure. ility of any such free negro or mulatto to pay any
such penalty and cost thereon, to cause him or her
Another of the early laws of which we have spoken, to be confined to labor for any time not exceeding
is the first militia law, which was passed in 1792, at six calendar months.’ And in a subsequent part of
the first session of the second Congress. The lan- the same section, the act authorizes the corporation
guage of this law is equally plain and significant ‘to prescribe the terms and conditions upon which
with the one just mentioned. It directs that every free negroes and mulattoes may reside in the city.’
‘free able-bodied white male citizen‘ shall be en-
rolled in the militia. The word white is evidently This law, like the laws of the States, shows that this
used to exclude the African race, and the word class of persons were governed by special legisla-
‘citizen‘ to exclude unnaturalized foreigners; the tion directed expressly to them, and always connec-
latter forming no part of the sovereignty, owing it ted with provisions for the government of slaves,
no allegiance, and therefore under no obligation to and not with those for the government of free white
defend it. The African race, however, born in the citizens. And after such an uniform course of legis-
country, did owe allegiance to the Government, lation as we have stated, by the colonies, by the
whether they were slave or free; but it is repudiated, States, and by Congress, running through a period
and rejected from the duties and obligations of cit- of more than a century, it would seem that to call
izenship in marked language. persons thus marked and stigmatized, ‘citizens' of
the United States, ‘fellow-citizens,’ a constituent
**14 The third act to which we have alluded is part of the sovereignty, would be an abuse of terms,
even still more decisive; it was passed as late as and not calculated to exalt the character of an
1813, (2 Stat., 809,) and it provides: ‘That from and American citizen in the eyes of other nations.
after the termination of the war in which the United
States are now engaged with Great Britain, it shall The conduct of the Executive Department of the
not be lawful to employ, on board of any public or Government has been in perfect harmony upon this
private vessels of the United States, any person or subject with this course of legislation. The question
persons except citizens of the United States, or per- was brought officially before the late William Wirt,
sons of color, natives of the United States. when he was the Attorney General of the United
States, in 1821, and he decided that the words
*421 Here the line of distinction is drawn in ex- ‘citizens of the United States' were used in the acts
press words. Persons of color, in the judgment of of Congress in the same sense as in the Constitu-
Congress, were not included in the word citizens, tion; and that free persons of color were not cit-
and they are described as another and different izens, within the meaning of the Constitution and
class of persons, and authorized to be employed, if laws; and this opinion has been confirmed by that
born in the United States. of the late Attorney General, Caleb Cushing, in a
recent case, and acted upon by the Secretary of
And even as late as 1820, (chap. 104, sec. 8,) in the
State, who refused to grant passports to them as
charter to the city of Washington, the corporation is
‘citizens of the United States.’
authorized ‘to restrain and prohibit the nightly and
other disorderly meetings of slaves, free negroes, **15 But it is said that a person may be a citizen,
and mulattoes,’ thus associating them together in its and entitled to *422 that character, although he

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does not possess all the rights which may belong to But so far as mere rights of person are concerned,
other citizens; as, for example, the right to vote, or the provision in question is confined to citizens of a
to hold particular offices; and that yet, when he State who are temporarily in another State without
goes into another State, he is entitled to be recog- taking up their residence there. It gives them no
nized there as a citizen, although the State may political rights in the State, as to voting or holding
measure his rights by the rights which it allows to office, or in any other respect. For a citizen of one
persons of a like character or class resident in the State has no right to participate in the government
State, and refuse to him the full rights of citizen- of another. But if he ranks as a citizen in the State
ship. to which he belongs, within the meaning of the
Constitution of the United States, then, whenever
This argument overlooks the language of the provi- he goes into another State, the Constitution clothes
sion in the Constitution of which we are speaking. him, as to the rights of person, with all the priv-
ileges and immunities which belong to citizens of
Undoubtedly, a person may be a citizen, that is, a
the *423 State. And if persons of the African race
member of the community who form the sover-
are citizens of a State, and of the United States,
eignty, although he exercises no share of the polit-
they would be entitled to all of these privileges and
ical power, and is incapacitated from holding par-
immunities in every State, and the State could not
ticular offices. Women and minors, who form a part
restrict them; for they would hold these privileges
of the political family, cannot vote; and when a
and immunities under the paramount authority of
property qualification is required to vote or hold a
the Federal Government, and its courts would be
particular office, those who have not the necessary
bound to maintain and enforce them, the Constitu-
qualification cannot vote or hold the office, yet they
tion and laws of the State to the contrary notwith-
are citizens.
standing. And if the States could limit or restrict
So, too, a person may be entitled to vote by the law them, or place the party in an inferior grade, this
of the State, who is not a citizen even of the State clause of the Constitution would be unmeaning, and
itself. And in some of the States of the Union for- could have no operation; and would give no rights
eigners not naturalized are allowed to vote. And the to the citizen when in another State. He would have
State may give the right to free negroes and mulat- none but what the State itself chose to allow him.
toes, but that does not make them citizens of the This is evidently not the construction or meaning of
State, and still less of the United States. And the the clause in question. It guaranties rights to the cit-
provision in the Constitution giving privileges and izen, and the State cannot withhold them. And these
immunities in other States, does not apply to them. rights are of a character and would lead to con-
sequences which make it absolutely certain that the
Neither does it apply to a person who, being the cit- African race were not included under the name of
izen of a State, migrates to another State. For then citizens of a State, and were not in the contempla-
he becomes subject to the laws of the State in tion of the framers of the Constitution when these
which he lives, and he is no longer a citizen of the privileges and immunities were provided for the
State from which he removed. And the State in protection of the citizen in other States.
which he resides may then, unquestionably, determ-
ine his status or condition, and place him among **16 The case of Legrand v. Darnall (2 Peters, 664)
the class of persons who are not recognized as cit- has been referred to for the purpose of showing that
izens, but belong to an inferior and subject race; this court has decided that the descendant of a slave
and may deny him the privileges and immunities may sue as a citizen in a court of the United States;
enjoyed by its citizens. but the case itself shows that the question did not
arise and could not have arisen in the case.

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It appears from the report, that Darnall was born in mony was taken on this point, and at the hearing the
Maryland, and was the son of a white man by one Circuit Court was of opinion that Darnall was a free
of his slaves, and his father executed certain instru- man and his title good, and dissolved the injunction
ments to manumit him, and devised to him some and dismissed the bill; and that decree was affirmed
landed property in the State. This property Darnall here, upon the appeal of Legrand.
afterwards sold to Legrand, the appellant, who gave
his notes for the purchase-money. But becoming af- Now, it is difficult to imagine how any question
terwards apprehensive that the appellee had not about the citizenship of Darnall, or his right to sue
been emancipated according to the laws of Mary- in that character, can be supposed to have arisen or
land, he refused to pay the notes until he could be been decided in that case. The fact that he was of
better satisfied as to Darnall's right to convey. Dar- African descent was first brought before the court
nall, in the mean time, had taken up his residence in upon the bill in equity. The suit at law had then
Pennsylvania, and brought suit on the notes, and re- passed into judgment and award of execution, and
covered judgment in the Circuit Court for the dis- the Circuit Court, as a court of law, had no longer
trict of Maryland. any authority over it. It was a valid and legal judg-
ment, which the court that rendered it had not the
The whole proceeding, as appears by the report, power to reverse or set aside. And unless it had jur-
was an amicable one; Legrand being perfectly will- isdiction as a court of equity to restrain him from
ing to pay the money, if he could obtain a title, and using its process as a court of law, Darnall, if he
Darnall not wishing him to pay unless he could thought proper, would have been at liberty to pro-
make him a good one. In point of fact, the whole ceed on his judgment, and compel the payment of
proceeding was under the direction of the counsel the money, although the allegations in the bill were
who argued the case for the appellee, who was the true, and he was incapable of making a title. No
mutual friend of the parties, and confided in by other court could have enjoined him, for certainly
both of them, and whose only *424 object was to no State equity court could interfere in that way
have the rights of both parties established by judi- with the judgment of a Circuit Court of the United
cial decision in the most speedy and least expensive States.
manner.
**17 But the Circuit Court as a court of equity cer-
Legrand, therefore, raised no objection to the juris- tainly had equity jurisdiction over its own judgment
diction of the court in the suit at law, because he as a court of law, without regard to the character of
was himself anxious to obtain the judgment of the the parties; and had not only the right, but it was its
court upon his title. Consequently, there was noth- duty-no matter who were the parties in the judg-
ing in the record before the court to show that Dar- ment-to prevent them from proceeding to enforce it
nall was of African descent, and the usual judgment by execution, if the court was satisfied that the
and award of execution was entered. And Legrand money was not justly and equitably due. The ability
thereupon filed his bill on the equity side of the of Darnall to convey did not depend upon his cit-
Circuit Court, stating that Darnall was born a slave, izenship, but upon his title to freedom. And if he
and had not been legally emancipated, and could was free, he could hold and *425 convey property,
not therefore take the land devised to him, nor by the laws of Maryland, although he was not a cit-
make Legrand a good title; and praying an injunc- izen. But if he was by law still a slave, he could
tion to restrain Darnall from proceeding to execu- not. It was therefore the duty of the court, sitting as
tion on the judgment, which was granted. Darnall a court of equity in the latter case, to prevent him
answered, averring in his answer that he was a free from using its process, as a court of common law,
man, and capable of conveying a good title. Testi- to compel the payment of the purchase-money,

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when it was evident that the purchaser must lose the **18 The only two provisions which point to them
land. But if he was free, and could make a title, it and include them, treat them as property, and make
was equally the duty of the court not to suffer Le- it the duty of the Government to protect it; no other
grand to keep the land, and refuse the payment of power, in relation to this race, is to be found in the
the money, upon the ground that Darnall was incap- Constitution; and as it is a Government *426 of
able of suing or being sued as a citizen in a court of special, delegated, powers, no authority beyond
the United States. The character or citizenship of these two provisions can be constitutionally exer-
the parties had no connection with the question of cised. The Government of the United States had no
jurisdiction, and the matter in dispute had no rela- right to interfere for any other purpose but that of
tion to the citizenship of Darnall. Nor is such a protecting the rights of the owner, leaving it alto-
question alluded to in the opinion of the court. gether with the several States to deal with this race,
whether emancipated or not, as each State may
Besides, we are by no means prepared to say that think justice, humanity, and the interests and safety
there are not many cases, civil as well as criminal, of society, require. The States evidently intended to
in which a Circuit Court of the United States may reserve this power exclusively to themselves.
exercise jurisdiction, although one of the African
race is a party; that broad question is not before the No one, we presume, supposes that any change in
court. The question with which we are now dealing public opinion or feeling, in relation to this unfortu-
is, whether a person of the African race can be a nate race, in the civilized nations of Europe or in
citizen of the United States, and become thereby this country, should induce the court to give to the
entitled to a special privilege, by virtue of his title words of the Constitution a more liberal construc-
to that character, and which, under the Constitution, tion in their favor than they were intended to bear
no one but a citizen can claim. It is manifest that when the instrument was framed and adopted. Such
the case of Legrand and Darnall has no bearing on an argument would be altogether inadmissible in
that question, and can have no application to the any tribunal called on to interpret it. If any of its
case now before the court. provisions are deemed unjust, there is a mode pre-
scribed in the instrument itself by which it may be
This case, however, strikingly illustrates the con- amended; but while it remains unaltered, it must be
sequences that would follow the construction of the construed now as it was understood at the time of
Constitution which would give the power conten- its adoption. It is not only the same in words, but
ded for to a State. It would in effect give it also to the same in meaning, and delegates the same
an individual. For if the father of young Darnall had powers to the Government, and reserves and se-
manumitted him in his lifetime, and sent him to cures the same rights and privileges to the citizen;
reside in a State which recognized him as a citizen, and as long as it continues to exist in its present
he might have visited and sojourned in Maryland form, it speaks not only in the same words, but with
when he pleased, and as long as he pleased, as a cit- the same meaning and intent with which it spoke
izen of the United States; and the State officers and when it came from the hands of its framers, and
tribunals would be compelled, by the paramount au- was voted on and adopted by the people of the
thority of the Constitution, to receive him and treat United States. Any other rule of construction would
him as one of its citizens, exempt from the laws and abrogate the judicial character of this court, and
police of the State in relation to a person of that de- make it the mere reflex of the popular opinion or
scription, and allow him to enjoy all the rights and passion of the day. This court was not created by
privileges of citizenship, without respect to the laws the Constitution for such purposes. Higher and
of Maryland, although such laws were deemed by it graver trusts have been confided to it, and it must
absolutely essential to its own safety. not falter in the path of duty.

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What the construction was at that time, we think son of the African race, no one supposes that a
can hardly admit of doubt. We have the language of slave is a citizen of the State or of the United
the Declaration of Independence and of the Articles States. If, therefore, the acts done by his owner did
of Confederation, in addition to the plain words of not make them free persons, he is still a slave, and
the Constitution itself; we have the legislation of certainly incapable of suing in the character of a
the different States, before, about the time, and citizen.
since, the Constitution was adopted; we have the le-
gislation of Congress, from the time of its adoption The principle of law is too well settled to be dis-
to a recent period; and we have the constant and puted, that a court can give no judgment for either
uniform action of the Executive Department, all party, where it has no jurisdiction; and if, upon the
concurring together, and leading to the same result. showing of Scott himself, it appeared that he was
And if anything in relation to the construction of still a slave, the case ought to have been dismissed,
the Constitution can be regarded as settled, it is that and the judgment against him and in favor of the
which we now give to the word ‘citizen’ and the defendant for costs, is, like that on the plea in
word ‘people.’ abatement, erroneous, and the suit ought to have
been dismissed by the Circuit Court for want of jur-
And upon a full and careful consideration of the isdiction in that court.
subject, *427 the court is of opinion, that, upon the
facts stated in the plea in abatement, Dred Scott But, before we proceed to examine this part of the
was not a citizen of Missouri within the meaning of case, it may be proper to notice an objection taken
the Constitution of the United States, and not en- to the judicial authority of this court to decide it;
titled as such to sue in its courts; and, consequently, and it has been said, that as this court has decided
that the Circuit Court had no jurisdiction of the against the jurisdiction of the Circuit Court on the
case, and that the judgment on the plea in abate- plea in abatement, it has no right to examine any
ment is erroneous. question presented by the exception; and that any-
thing it may say upon that part of the case will be
**19 We are aware that doubts are entertained by extra-judicial, and mere obiter dicta.
some of the members of the court, whether the plea
in abatement is legally before the court upon this This is a manifest mistake; there can be no doubt as
writ of error; but if that plea is regarded as waived, to the jurisdiction of this court to revise the judg-
or out of the case upon any other ground, yet the ment of a Circuit Court, and to reverse it for any er-
question as to the jurisdiction of the Circuit Court is ror apparent on the record, *428 whether it be the
presented on the face of the bill of exception itself, error of giving judgment in a case over which it had
taken by the plaintiff at the trial; for he admits that no jurisdiction, or any other material error; and this,
he and his wife were born slaves, but endeavors to too, whether there is a plea in abatement or not.
make out his title to freedom and citizenship by
The objection appears to have arisen from con-
showing that they were taken by their owner to cer-
founding writs of error to a State court, with writs
tain places, hereinafter mentioned, where slavery
of error to a Circuit Court of the United States. Un-
could not by law exist, and that they thereby be-
doubtedly, upon a writ of error to a State court, un-
came free, and upon their return to Missouri be-
less the record shows a case that gives jurisdiction,
came citizens of that State.
the case must be dismissed for want of jurisdiction
Now, if the removal of which he speaks did not in this court. And if it is dismissed on that ground,
give them their freedom, then by his own admission we have no right to examine and decide upon any
he is still a slave; and whatever opinions may be question presented by the bill of exceptions, or any
entertained in favor of the citizenship of a free per- other part of the record. But writs of error to a State

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court, and to a Circuit Court of the United States, reverse the judgment of an inferior court for error,
are regulated by different laws, and stand upon en- to correct by its opinions whatever errors may ap-
tirely different principles. And in a writ of error to a pear on the record material to the case; and they
Circuit Court of the United States, the whole record have always held it to be their duty to do so where
is before this court for examination and decision; the silence of the court might lead to misconstruc-
and if the sum in controversy is large enough to tion or future controversy, and the point has been
give jurisdiction, it is not only the right, but it is the relied on by either side, and argued before the
judicial duty of the court, to examine the whole court.
case as presented by the record; and if it appears
upon its face that any material error or errors have In the case before us, we have already decided that
been committed by the court below, it is the duty of the Circuit Court erred in deciding that it had juris-
this court to reverse the judgment, and remand the diction upon the facts admitted by the pleadings.
case. And certainly an error in passing a judgment And it appears that, in the further progress of the
upon the merits in favor of either party, in a case case, it acted upon the erroneous principle it had
which it was not authorized to try, and over which decided on the pleadings, and gave judgment for
it had no jurisdiction, is as grave an error as a court the defendant, where, upon the facts admitted in the
can commit. exception, it had no jurisdiction.

**20 The plea in abatement is not a plea to the jur- We are at a loss to understand upon what principle
isdiction of this court, but to the jurisdiction of the of law, applicable to appellate jurisdiction, it can be
Circuit Court. And it appears by the record before supposed that this court has not judicial authority to
us, that the Circuit Court committed an error, in de- correct the last-mentioned error, because they had
ciding that it had jurisdiction, upon the facts in the before corrected the former; or by what process of
case, admitted by the pleadings. It is the duty of the reasoning it can be made out, that the error of an in-
appellate tribunal to correct this error; but that ferior court in actually pronouncing judgment for
could not be done by dismissing the case for want one of the parties, in a case in which it had no juris-
of jurisdiction here-for that would leave the erro- diction, cannot be looked into or corrected by this
neous judgment in full force, and the injured party court, because we have decided a similar question
without remedy. And the appellate court therefore presented in the pleadings. The last point is dis-
exercises the power for which alone appellate tinctly presented by the facts contained in the
courts are constituted, by reversing the judgment of plaintiff's own bill of exceptions, which he himself
the court below for this error. It exercises its proper brings here by this writ of error. It was the point
and appropriate jurisdiction over the judgment and which chiefly occupied the attention of the counsel
proceedings of the Circuit Court, as they appear on both sides in the argument-and the judgment
upon the record brought up by the writ of error. which this court must render upon both errors is
precisely the same. It must, in each of them, exer-
The correction of one error in the court below does cise jurisdiction over the judgment, and reverse it
not deprive the appellate court of the power of ex- for the errors committed by the court below; and is-
amining further into the record, and correcting any sue a mandate to the Circuit Court to conform its
other material errors which may have been commit- judgment to the opinion pronounced by this court,
ted by the inferior court. There is certainly no rule by dismissing the case for want of jurisdiction in
of law-nor any practice-nor any decision of a *429 the Circuit Court. This is the constant and invari-
court-which even questions this power in the appel- able practice of this court, where it reverses a judg-
late tribunal. On the contrary, it is the daily practice ment for want of jurisdiction in the Circuit Court.
of this court, and of all appellate courts where they
**21 It can scarcely be necessary to pursue such a

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question further. The want of jurisdiction in the Sandford was not a suit between citizens of differ-
court below may appear on the record without any ent States, and the court had no authority to pass
plea in abatement. This is familiarly the case where any judgment between the parties. The suit ought,
a court of chancery has exercised jurisdiction in a in this view of it, to have been dismissed by the
case where the plaintiff had a plain and adequate Circuit Court, and its judgment in favor of Sandford
remedy at law, and it so appears by the transcript is erroneous, and must be reversed.
when brought here by appeal. So also where it ap-
pears that a court of admiralty has exercised juris- It is true that the result either way, by dismissal or
diction in a case belonging exclusively *430 to a by a judgment for the defendant, makes very little,
court of common law. In these cases there is no if any, difference in a pecuniary or personal point
plea in abatement. And for the same reason, and of view to either party. But the fact that the result
upon the same principles, where the defect of juris- would be very nearly the same to the parties in
diction is patent on the record, this court is bound either form of judgment, would not justify this
to reverse the judgment, although the defendant has court in sanctioning an error in the judgment which
not pleaded in abatement to the jurisdiction of the is patent on the record, and which, if sanctioned,
inferior court. might be drawn into precedent, and lead to serious
mischief and injustice in some future suit.
The cases of Jackson v. Ashton and of Capron v.
Van Noorden, to which we have referred in a previ- **22 We proceed, therefore, to inquire whether the
ous part of this opinion, are directly in point. In the facts relied on by the plaintiff entitled him to his
last-mentioned case, Capron brought an action freedom.
against Van Noorden in a Circuit Court of the
*431 The case, as he himself states it, on the record
United States, without showing, by the usual aver-
brought here by his writ of error, is this:
ments of citizenship, that the court had jurisdiction.
There was no plea in abatement put in, and the The plaintiff was a negro slave, belonging to Dr.
parties went to trial upon the merits. The court gave Emerson, who was a surgeon in the army of the
judgment in favor of the defendant with costs. The United States. In the year 1834, he took the plaintiff
plaintiff thereupon brought his writ of error, and from the State of Missouri to the military post at
this court reversed the judgment given in favor of Rock Island, in the State of Illinois, and held him
the defendant, and remanded the case with direc- there as a slave until the month of April or May,
tions to dismiss it, because it did not appear by the 1836. At the time last mentioned, said Dr. Emerson
transcript that the Circuit Court had jurisdiction. removed the plaintiff from said military post at
Rock Island to the military post at Fort Snelling,
The case before us still more strongly imposes upon
situate on the west bank of the Mississippi river, in
this court the duty of examining whether the court
the Territory known as Upper Louisiana, acquired
below has not committed an error, in taking juris-
by the United States of France, and situate north of
diction and giving a judgment for costs in favor of
the latitude of thirty-six degrees thirty minutes
the defendant; for in Capron v. Van Noorden the
north, and north of the State of Missouri. Said Dr.
judgment was reversed, because it did not appear
Emerson held the plaintiff in slavery at said Fort
that the parties were citizens of different States.
Snelling, from said last-mentioned date until the
They might or might not be. But in this case it does
year 1838.
appear that the plaintiff was born a slave; and if the
facts upon which he relies have not made him free, In the year 1835, Harriet, who is named in the
then it appears affirmatively on the record that he is second count of the plaintiff's declaration, was the
not a citizen, and consequently his suit against negro slave of Major Taliaferro, who belonged to

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the army of the United States. In that year, 1835, ceded by France, under the name of Louisiana,
said Major Taliaferro took said Harriet to said Fort which lies north of thirty-six degrees thirty minutes
Snelling, a military post, situated as hereinbefore north latitude, and not included within the limits of
stated, and kept her there as a slave until the year Missouri. And the difficulty which meets us at the
1836, and then sold and delivered her as a slave, at threshold of this part of the inquiry is, whether
said Fort Snelling, unto the said Dr. Emerson here- Congress was authorized to pass this law under any
inbefore named. Said Dr. Emerson held said Harriet of the powers granted to it by the Constitution; for
in slavery at said Fort Snelling until the year 1838. if the authority is not given by that instrument, it is
the duty of this court to declare it void and inoper-
In the year 1836, the plaintiff and Harriet intermar- ative, and incapable of conferring freedom upon
ried, at Fort Snelling, with the consent of Dr. Emer- any one who is held as a slave under the have of
son, who then claimed to be their master and own- any one of the States.
er. Eliza and Lizzie, named in the third count of the
plaintiff's declaration, are the fruit of that marriage. The counsel for the plaintiff has laid much stress
Eliza is about fourteen years old, and was born on upon that article in the Constitution which confers
board the steamboat Gipsey, north of the north line on Congress the power ‘to dispose of and make all
of the State of Missouri, and upon the river Missis- needful rules and regulations respecting the territ-
sippi. Lizzie is about seven years old, and was born ory or other property belonging to the United
in the State of Missouri, at the military post called States;’ but, in the judgment of the court, that pro-
Jefferson Barracks. vision has no bearing on the present controversy,
and the power there given, whatever it may be, is
In the year 1838, said Dr. Emerson removed the confined, and was intended to be confined, to the
plaintiff and said Harriet, and their said daughter territory which at that time belonged to, or was
Eliza, from said Fort Snelling to the State of Mis- claimed by, the United States, and was within their
souri, where they have ever since resided. boundaries as settled by the treaty with Great Bri-
tain, and can have no influence upon a territory af-
Before the commencement of this suit, said Dr.
terwards acquired from a foreign Government. It
Emerson sold and conveyed the plaintiff, and Har-
was a special provision for a known and particular
riet, Eliza, and Lizzie, to the defendant, as slaves,
territory, and to meet a present emergency, and
and the defendant has ever since claimed to hold
nothing more.
them, and each of them, as slaves.
A brief summary of the history of the times, as well
In considering this part of the controversy, two
as the careful and measured terms in which the art-
questions arise: 1. Was he, together with his family,
icle is framed, will show the correctness of this pro-
free in Missouri by reason of the stay in the territ-
position.
ory of the United States hereinbefore *432 men-
tioned? And 2. If they were not, is Scott himself It will be remembered that, from the commence-
free by reason of his removal to Rock Island, in the ment of the Revolutionary war, serious difficulties
State of Illinois, as stated in the above admissions? existed between the States, in relation to the dispos-
ition of large and unsettled territories which were
We proceed to examine the first question.
included in the chartered limits of some of the
**23 The act of Congress, upon which the plaintiff States. And some of the other States, and more es-
relies, declares that slavery and involuntary ser- pecially Maryland, which had no unsettled lands,
vitude, except as a punishment for crime, shall be insisted that as the unoccupied lands, if wrested
forever prohibited in all that part of the territory from Great Britain, would owe their preservation to
the common purse and the common sword, the

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money arising from them ought to be applied in just latter insisted, for the reasons before stated, that
proportion among the several States to pay the ex- these unsettled lands should be treated as the com-
penses of the war, and ought not to be appropriated mon property of the States, and the proceeds ap-
to the use of the State in whose chartered limits plied to their common benefit.
they might happen *433 to lie, to the exclusion of
the other States, by whose combined efforts and The letters from the statesmen of that day will show
common expense the territory was defended and how much this controversy occupied their thoughts,
preserved against the claim of the British Govern- and the dangers that were apprehended from it. It
ment. was the disturbing element of the time, and fears
were entertained that it might dissolve the Confed-
These difficulties caused much uneasiness during eration by which the States were then united.
the war, while the issue was in some degree doubt-
ful, and the future boundaries of the United States These fears and dangers were, however, at once re-
yet to be defined by treaty, if we achieved our inde- moved, when the State of Virginia, in 1784, volun-
pendence. tarily ceded to the United States the immense tract
of country lying northwest of the river Ohio, and
The majority of the Congress of the Confederation which was within the acknowledged limits of the
obviously concurred in opinion with the State of State. The only object of the State, in making *434
Maryland, and desired to obtain from the States this cession, was to put an end to the threatening
which claimed it a cession of this territory, in order and exciting controversy, and to enable the Con-
that Congress might raise money on this security to gress of that time to dispose of the lands, and ap-
carry on the war. This appears by the resolution propriate the proceeds as a common fund for the
passed on the 6th of September, 1780, strongly ur- common benefit of the States. It was not ceded, be-
ging the States to cede these lands to the United cause it was inconvenient to the State to hold and
States, both for the sake of peace and union among govern it, nor from any expectation that it could be
themselves, and to maintain the public credit; and better or more conveniently governed by the United
this was followed by the resolution of October 10th, States.
1780, by which Congress pledged itself, that if the
lands were ceded, as recommended by the resolu- The example of Virginia was soon afterwards fol-
tion above mentioned, they should be disposed of lowed by other States, and, at the time of the adop-
for the common benefit of the United States, and be tion of the Constitution, all of the States, similarly
settled and formed into distinct republican States, situated, had ceded their unappropriated lands, ex-
which should become members of the Federal Uni- cept North Carolina and Georgia. The main object
on, and have the same rights of sovereignty, and for which these cessions were desired and made,
freedom, and independence, as other States. was on account of their money value, and to put an
end to a dangerous controversy, as to who was
**24 But these difficulties became much more seri- justly entitled to the proceeds when the lands
ous after peace took place, and the boundaries of should be sold. It is necessary to bring this part of
the United States were established. Every State, at the history of these cessions thus distinctly into
that time, felt severely the pressure of its war debt; view, because it will enable us the better to compre-
but in Virginia, and some other States, there were hend the phraseology of the article in the Constitu-
large territories of unsettled lands, the sale of which tion, so often referred to in the argument.
would enable them to discharge their obligations
without much inconvenience; while other States, Undoubtedly the powers of sovereignty and the em-
which had no such resource, saw before them many inent domain were ceded with the land. This was
years of heavy and burdensome taxation; and the essential, in order to make it effectual, and to ac-

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complish its objects. But it must be remembered ritory should be governed; and among other provi-
that, at that time, there was no Government of the sions, slavery is prohibited in it. We do not ques-
United States in existence with enumerated and tion the power of the States, by agreement among
limited powers; what was then called the United themselves, to pass this ordinance, nor its obliga-
States, were thirteen separate, sovereign, independ- tory force in the territory, while the confederation
ent States, which had entered into a league or con- or league of the States in their separate sovereign
federation for their mutual protection and advant- character continued to exist.
age, and the Congress of the United States was
composed of the representatives of these separate This was the state of things when the Constitution
sovereignties, meeting together, as equals, to dis- of the United States was formed. The territory
cuss and decide on certain measures which the ceded by Virginia belonged to the several confeder-
States, by the Articles of Confederation, had agreed ated States as common property, and they had
to submit to their decision. But this Confederation united in establishing in it a system of government
had none of the attributes of sovereignty in legislat- and jurisprudence, in order to prepare it for admis-
ive, executive, or judicial power. It was little more sion as States, according to the terms of the cession.
than a congress of ambassadors, authorized to rep- They were about to dissolve this federative Union,
resent separate nations, in matters in which they and to surrender a portion of their independent sov-
had a common concern. ereignty to a new Government, which, for certain
purposes, would make the people of the several
**25 It was this Congress that accepted the cession States one people, and which was to be supreme
from Virginia. They had no power to accept it un- and controlling within its sphere of action
der the Articles of Confederation. But they had an throughout the United States; but this Government
undoubted right, as independent sovereignties, to was to be carefully limited in its powers, and to ex-
accept any cession of territory for their common be- ercise no authority beyond those expressly granted
nefit, which all of them assented to; and it is by the Constitution, or necessarily to be implied
equally clear, that as their common property, and from the language of the instrument, and the objects
having no superior to control them, they had the it was intended to accomplish; and as this league of
right to exercise absolute dominion over it, subject States would, upon the adoption of the new Gov-
only to the restrictions which Virginia had imposed ernment, cease to have any power over the territory,
in her act of cession. There was, as we have said, and the ordinance they had agreed upon be incap-
no Government of the United States then in exist- able of execution, and a mere nullity, it was obvi-
ence *435 with special enumerated and limited ous that some provision was necessary to give the
powers. The territory belonged to sovereignties, new Government sufficient power to enable it to
who, subject to the limitations above mentioned, carry into effect the objects for which it was ceded,
had a right to establish any form of government and the compacts and agreements which the States
they pleased, by compact or treaty among them- had made with each other in the exercise of their
selves, and to regulate rights of person and rights of powers of sovereignty. It was necessary that the
property in the territory, as they might deem proper. lands should be sold to pay the war debt; that a
It was by a Congress, representing the authority of Government and system of jurisprudence should be
these several and separate sovereignties, and acting maintained in it, to protect the citizens of the
under their authority and command, (but not from United States who should migrate to the territory,
any authority derived from the Articles of Confed- in their rights of person and of property. It was also
eration,) that the instrument usually called the or- necessary that the new Government, about to be
dinance of 1787 was adopted; regulating in much *436 adopted, should be authorized to maintain the
detail the principles and the laws by which this ter- claim of the United States to the unappropriated

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lands in North Carolina and Georgia, which had not sale of the lands, or raising money from them,
then been ceded, but the cession of which was con- which, as we have already said, was the main object
fidently anticipated upon some terms that would be of the cession, and which is accordingly the first
arranged between the General Government and thing provided for in the article. It then gives the
these two States. And, moreover, there were many power which was necessarily associated with the
articles of value besides this property in land, such disposition and sale of the lands-that is, the power
as arms, military stores, munitions, and ships of of making needful rules and regulations respecting
war, which were the common property of the the territory. And whatever construction may now
States, when acting in their independent characters be given to these words, every one, we think, *437
as confederates, which neither the new Government must admit that they are not the words usually em-
nor any one else would have a right to take posses- ployed by statesmen in giving supreme power of le-
sion of, or control, without authority from them; gislation. They are certainly very unlike the words
and it was to place these things under the guardian- used in the power granted to legislate over territory
ship and protection of the new Government, and to which the new Government might afterwards itself
clothe it with the necessary powers, that the clause obtain by cession from a State, either for its seat of
was inserted in the Constitution which gives Con- Government, or for forts, magazines, arsenals, dock
gress the power ‘to dispose of and make all needful yards, and other needful buildings.
rules and regulations respecting the territory or oth-
er property belonging to the United States.‘ It was And the same power of making needful rules re-
intended for a specific purpose, to provide for the specting the territory is, in precisely the same lan-
things we have mentioned. It was to transfer to the guage, applied to the other property belonging to
new Government the property then held in common the United States-associating the power over the
by the States, and to give to that Government power territory in this respect with the power over mov-
to apply it to the objects for which it had been able or personal property-that is, the ships, arms,
destined by mutual agreement among the States be- and munitions of war, which then belonged in com-
fore their league was dissolved. It applied only to mon to the State sovereignties. And it will hardly
the property which the States held in common at be said, that this power, in relation to the last-
that time, and has no reference whatever to any ter- mentioned objects, was deemed necessary to be
ritory or other property which the new sovereignty thus specially given to the new Government, in or-
might afterwards itself acquire. der to authorize it to make needful rules and regula-
tions respecting the ships it might itself build, or
**26 The language used in the clause, the arrange- arms and munitions of war it might itself manufac-
ment and combination of the powers, and the some- ture or provide for the public service.
what unusual phraseology it uses, when it speaks of
the political power to be exercised in the govern- No one, it is believed, would think a moment of de-
ment of the territory, all indicate the design and riving the power of Congress to make needful rules
meaning of the clause to be such as we have men- and regulations in relation to property of this kind
tioned. It does not speak of any territory, nor of from this clause of the Constitution. Nor can it,
Territories, but uses language which, according to upon any fair construction, be applied to any prop-
its legitimate meaning, points to a particular thing. erty but that which the new Government was about
The power is given in relation only to the territory to receive from the confederated States. And if this
of the United States-that is, to a territory then in ex- be true as to this property, it must be equally true
istence, and then known or claimed as the territory and limited as to the territory, which is so carefully
of the United States. It begins its enumeration of and precisely coupled with it-and like it referred to
powers by that of disposing, in other words, making as property in the power granted. The concluding

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words of the clause appear to render this construc- States dealt with the subject as soon as it came into
tion irresistible; for, after the provisions we have existence. It must be borne in mind that the same
mentioned, it proceeds to say, ‘that nothing in the States that formed the Confederation also formed
Constitution shall be so construed as to prejudice and adopted the new Government, to which so large
any claims of the United States, or of any particular a portion of their former sovereign powers were
State.‘ surrendered. It must also be borne in mind that all
of these same States which had then ratified the
**27 Now, as we have before said, all of the States, new Constitution were represented in the Congress
except North Carolina and Georgia, had made the which passed the first law for the government of
cession before the Constitution was adopted, ac- this territory; and many of the members of that le-
cording to the resolution of Congress of October gislative body had been deputies from the States
10, 1780. The claims of other States, that the unap- under the Confederation-had united in adopting the
propriated lands in these two States should be ap- ordinance of 1787, and assisted in forming the new
plied to the common benefit, in like manner, was Government under which they were then acting,
still insisted on, but refused by the States. And this and whose powers they were then exercising. And
member of the clause in question evidently applies it is obvious from the law they passed to carry into
to them, and can apply to nothing else. It was to ex- effect the principles and provisions of the ordin-
clude the conclusion that either party, by adopting ance, that they regarded it as the act of the States
the Constitution, would surrender what they done in the exercise of their legitimate powers at
deemed their rights. And when the latter provision the time. The new Government took the territory as
relates so obviously to the unappropriated lands not it found it, and in the condition in which it was
yet ceded by the States, and the first clause makes transferred, and did not attempt to undo anything
provision for those then actually ceded, it is *438 that had been done. And, among the earliest laws
impossible, by any just rule of construction, to passed under the new Government, is one reviving
make the first provision general, and extend to all the ordinance of 1787, which had become inoperat-
territories, which the Federal Government might in ive and a nullity upon the adoption of the Constitu-
any way afterwards acquire, when the latter is tion. This law introduces no new form or principles
plainly and unequivocally confined to a particular for its government, but recites, in the preamble, that
territory; which was a part of the same controversy, it is passed in order that this ordinance may contin-
and involved in the same dispute, and depended ue to have full effect, and proceeds to make only
upon the same principles. The union of the two pro- those rules and regulations which were needful to
visions in the same clause shows that they were adapt it to the new Government, into whose hands
kindred subjects; and that the whole clause is local, the power had fallen. It appears, therefore, that this
and relates only to lands, within the limits of the Congress regarded the purposes *439 to which the
United States, which had been or then were claimed land in this Territory was to be applied, and the
by a State; and that no other territory was in the form of government and principles of jurisprudence
mind of the framers of the Constitution, or intended which were to prevail there, while it remained in
to be embraced in it. Upon any other construction it the Territorial state, as already determined on by
would be impossible to account for the insertion of the States when they had full power and right to
the last provision in the place where it is found, or make the decision; and that the new Government,
to comprehend why, or for what object, it was asso- having received it in this condition, ought to carry
ciated with the previous provision. substantially into effect the plans and principles
which had been previously adopted by the States,
This view of the subject is confirmed by the manner
and which no doubt the States anticipated when
in which the present Government of the United
they surrendered their power to the new Govern-

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ment. And if we regard this clause of the Constitu- interpretation, must mean *440 property of a differ-
tion as pointing to this Territory, with a Territorial ent description from territory or land. And the diffi-
Government already established in it, which had culty would perhaps be insurmountable in en-
been ceded to the States for the purposes hereinbe- deavoring to account for the last member of the
fore mentioned-every word in it is perfectly appro- sentence, which provides that ‘nothing in this Con-
priate and easily understood, and the provisions it stitution shall be so construed as to prejudice any
contains are in perfect harmony with the objects for claims of the United States or any particular State,‘
which it was ceded, and with the condition of its or to say how any particular State could have
government as a Territory at the time. We can, claims in or to a territory ceded by a foreign Gov-
then, easily account for the manner in which the ernment, or to account for associating this provision
first Congress legislated on the subject-and can also with the preceding provisions of the clause, with
understand why this power over the territory was which it would appear to have no connection.
associated in the same clause with the other prop-
erty of the United States, and subjected to the like The words ‘needful rules and regulations‘ would
power of making needful rules and regulations. But seem, also, to have been cautiously used for some
if the clause is construed in the expanded sense definite object. They are not the words usually em-
contended for, so as to embrace any territory ac- ployed by statesmen, when they mean to give the
quired from a foreign nation by the present Govern- powers of sovereignty, or to establish a Govern-
ment, and to give it in such territory a despotic and ment, or to authorize its establishment. Thus, in the
unlimited power over persons and property, such as law to renew and keep alive the ordinance of 1787,
the confederated States might exercise in their com- and to re-establish the Government, the title of the
mon property, it would be difficult to account for law is: ‘An act to provide for the government of the
the phraseology used, when compared with other territory northwest of the river Ohio.‘ And in the
grants of power-and also for its association with the Constitution, when granting the power to legislate
other provisions in the same clause. over the territory that may be selected for the seat
of Government independently of a State, it does not
**28 The Constitution has always been remarkable say Congress shall have power ‘to make all needful
for the felicity of its arrangement of different sub- rules and regulations respecting the territory;‘ but it
jects, and the perspicuity and appropriateness of the declares that ‘Congress shall have power to exer-
language it uses. But if this clause is construed to cise exclusive legislation in all cases whatsoever
extend to territory acquired by the present Govern- over such District (not exceeding ten miles square)
ment from a foreign nation, outside of the limits of as may, by cession of particular States and the ac-
any charter from the British Government to a ceptance of Congress, become the seat of the Gov-
colony, it would be difficult to say, why it was ernment of the United States.
deemed necessary to give the Government the
power to sell any vacant lands belonging to the sov- The words ‘rules and regulations‘ are usually em-
ereignty which might be found within it; and if this ployed in the Constitution in speaking of some par-
was necessary, why the grant of this power should ticular specified power which it means to confer on
precede the power to legislate over it and establish the Government, and not, as we have seen, when
a Government there; and still more difficult to say, granting general powers of legislation. As, for ex-
why it was deemed necessary so specially and par- ample, in the particular power to Congress ‘to make
ticularly to grant the power to make needful rules rules for the government and regulation of the land
and regulations in relation to any personal or mov- and naval forces, or the particular and specific
able property it might acquire there. For the words, power to regulate commerce;‘ ‘to establish an uni-
other property necessarily, by every known rule of form rule of naturalization;‘ ‘to coin money and

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regulate the value thereof.‘ And to construe the contracted; and this power could only be given to it
words of which we are speaking as a general and by special provisions in the Constitution. The
unlimited grant of sovereignty over territories clause in relation to the territory and other property
which the Government might afterwards acquire, is of the United States provided for the first, and the
to use them in a sense and for a purpose for which clause last quoted provided for the other. They have
they were not used in any other part of the instru- no connection with the general powers and rights of
ment. But if confined to a particular Territory, in sovereignty delegated to the new Government, and
which a Government and laws had already been es- can neither enlarge nor diminish them. They were
tablished, but which would require some alterations inserted to meet a present emergency, and not to
to adapt it to the new Government, the words are regulate its powers as a Government.
peculiarly applicable and appropriate for that pur-
pose. Indeed, a similar provision was deemed necessary,
in relation to treaties made by the Confederation;
**29 *441 The necessity of this special provision in and when in the clause next succeeding the one of
relation to property and the rights or property held which we have last spoken, it is declared that treat-
in common by the confederated States, is illustrated ies shall be the supreme law of the land, care is
by the first clause of the sixth article. This clause taken to include, by express words, the treaties
provides that ‘all debts, contracts, and engagements made by the confederated States. The language is:
entered into before the adoption of this Constitu- ‘and all treaties made, or which shall be made, un-
tion, shall be as valid against the United States un- der the authority of the United States, shall be the
der this Government as under the Confederation.‘ supreme law of the land.‘
This provision, like the one under consideration,
was indispensable if the new Constitution was ad- Whether, therefore, we take the particular clause in
opted. The new Government was not a mere change question, by itself, or in connection with the other
in a dynasty, or in a form of government, leaving provisions of the Constitution, we think it clear,
the nation or sovereignty the same, and clothed that it applies only to the particular *442 territory
with all the rights, and bound by all the obligations of which we have spoken, and cannot, by any just
of the preceding one. But, when the present United rule of interpretation, be extended to territory which
States came into existence under the new Govern- the new Government might afterwards obtain from
ment, it was a new political body, a new nation, a foreign nation. Consequently, the power which
then for the first time taking its place in the family Congress may have lawfully exercised in this Ter-
of nations. It took nothing by succession from the ritory, while it remained under a Territorial Gov-
Confederation. It had no right, as its successor, to ernment, and which may have been sanctioned by
any property or rights of property which it had ac- judicial decision, can furnish no justification and no
quired, and was not liable for any of its obligations. argument to support a similar exercise of power
It was evidently viewed in this light by the framers over territory afterwards acquired by the Federal
of the Constitution. And as the several States would Government. We put aside, therefore, any argu-
cease to exist in their former confederated character ment, drawn from precedents, showing the extent of
upon the adoption of the Constitution, and could the power which the General Government exercised
not, in that character, again assemble together, spe- over slavery in this Territory, as altogether inap-
cial provisions were indispensable to transfer to the plicable to the case before us.
new Government the property and rights which at
**30 But the case of the American and Ocean In-
that time they held in common; and at the same
surance Companies v. Canter (1 Pet., 511) has been
time to authorize it to lay taxes and appropriate
quoted as establishing a different construction of
money to pay the common debt which they had
this clause of the Constitution. There is, however,

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not the slightest conflict between the opinion now point, that the court did not mean to decide whether
given and the one referred to; and it is only by tak- the power was derived from the clause in the Con-
ing a single sentence out of the latter and separating stitution, or was the necessary consequence of the
it from the context, that even an appearance of con- right to acquire. They do decide that the power in
flict can be shown. We need not comment on such a Congress is unquestionable, and in this we entirely
mode of expounding an opinion of the court. Indeed concur, and nothing will be found in this opinion to
it most commonly misrepresents instead of ex- the contrary. The power stands firmly on the latter
pounding it. And this is fully exemplified in the alternative put by the court-that is, as ‘ the inevit-
case referred to, where, if one sentence is taken by able consequence of the right to acquire territory.‘
itself, the opinion would appear to be in direct con-
flict with that now given; but the words which im- And what still more clearly demonstrates that the
mediately follow that sentence show that the court court did not mean to decide the question, but leave
did not mean to decide the point, but merely af- it open for future consideration, is the fact that the
firmed the power of Congress to establish a Gov- case was decided in the Circuit Court by Mr.
ernment in the Territory, leaving it an open ques- Justice Johnson, and his decision was affirmed by
tion, whether that power was derived from this the Supreme Court. His opinion at the circuit is giv-
clause in the Constitution, or was to be necessarily en in full in a note to the case, and in that opinion
inferred from a power to acquire territory by ces- he states, in explicit terms, that the clause of the
sion from a foreign Government. The opinion on Constitution applies only to the territory then with-
this part of the case is short, and we give the whole in the limits of the United States, and not to Flor-
of it to show how well the selection of a single sen- ida, which had been acquired by cession from
tence is calculated to mislead. Spain. This part of his opinion will be found in the
note in page 517 of the report. But he does not dis-
The passage referred to is in page 542, in which the sent from the opinion of the Supreme Court;
court, in speaking of the power of Congress to es- thereby showing that, in his judgment, as well as
tablish a Territorial Government in Florida until it that of the court, the case before them did not call
should become a State, uses the following lan- for a decision on that particular point, and the court
guage: abstained from deciding it. And in a part of its
opinion subsequent to the passage we have quoted,
‘In the mean time Florida continues to be a Territ- where the court speak of the legislative power of
ory of the United States, governed by that clause of Congress in Florida, they still speak with the same
the Constitution which empowers Congress to make reserve. And in page 546, speaking of the power of
all needful rules and regulations respecting the ter- Congress to authorize the Territorial Legislature to
ritory or other property of the United States. Per- establish courts there, the court say: ‘They are le-
haps the power of governing a Territory belonging gislative courts, created in virtue of the general
to the United States, which has not, by becoming a right of sovereignty which exists in the Govern-
State, acquired the means of self-government, may ment, or in virtue of that clause which enables Con-
result, necessarily, from the facts that it is not with- gress to make all needful rules and regulations re-
in the jurisdiction of any particular *443 State, and specting the territory belonging to the United
is within the power and jurisdiction of the United States.‘
States. The right to govern may be the inevitable
consequence of the right to acquire territory. **31 It has been said that the construction given to
Whichever may be the source from which the power this clause is new, and now for the first time
is derived, the possession of it is unquestionable.‘ brought forward. The case of which we are speak-
ing, and which has been so much discussed, shows
It is thus clear, from the whole opinion on this

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that the fact is otherwise. It shows that precisely the the Territory should have legislative powers over
same question came before Mr. Justice Johnson, at ‘all rightful objects of legislation; but no law
his circuit, thirty years ago-was fully considered by should be valid which was inconsistent with the
him, and the same construction given to the clause laws and Constitution of the United States.‘
in the Constitution which is now given by this
court. And that upon an appeal *444 from his de- Under the power thus conferred, the Legislature of
cision the same question was brought before this Florida passed an act, erecting a tribunal at Key
court, but was not decided because a decision upon West to decide cases of salvage. And in the case of
it was not required by the case before the court. which we are speaking, the question arose whether
the Territorial Legislature could be authorized by
There is another sentence in the opinion which has Congress to establish such a tribunal, with such
been commented on, which even in a still more powers; and one of the parties, among other objec-
striking manner shows how one may mislead or be tions, insisted that Congress could not under the
misled by taking out a single sentence from the Constitution authorize the Legislature of the Territ-
opinion of a court, and leaving out of view what ory to establish such a tribunal with such powers,
precedes and follows. It is in page 546, near the but that it must be established by Congress itself;
close of the opinion, in which the court say: ‘In le- and that a sale of cargo made under its order, to pay
gislating for them,‘ (the territories of the United salvors, was void, as made without legal authority,
States,) ‘Congress exercises the combined powers and passed no property to the purshaser.
of the General and of a State Government.‘ And it
is said, that as a State may unquestionably prohibit **32 *445 It is in disposing of this objection that
slavery within its territory, this sentence decides in the sentence relied on occurs, and the court begin
effect that Congress may do the same in a Territory that part of the opinion by stating with great preci-
of the United States, exercising there the powers of sion the point which they are about to decide.
a State, as well as the power of the General Govern-
They say: ‘It has been contended that by the Consti-
ment.
tution of the United States, the judicial power of the
The examination of this passage in the case referred United States extends to all cases of admiralty and
to, would be more appropriate when we come to maritime jurisdiction; and that the whole of the ju-
consider in another part of this opinion what power dicial power must be vested 'in one Supreme Court,
Congress can constitutionally exercise in a Territ- and in such inferior courts as Congress shall from
ory, over the rights of person or rights of property time to time ordain and establish.’ Hence it has
of a citizen. But, as it is in the same case with the been argued that Congress cannot vest admiralty
passage we have before commented on, we dispose jurisdiction in courts created by the Territorial Le-
of it now, as it will save the court from the neces- gislature.‘
sity of referring again to the case. And it will be
And after thus clearly stating the point before them,
seen upon reading the page in which this sentence
and which they were about to decide, they proceed
is found, that it has no reference whatever to the
to show that these Territorial tribunals were not
power of Congress over rights of person or rights of
constitutional courts, but merely legislative, and
property-but relates altogether to the power of es-
that Congress might, therefore, delegate the power
tablishing judicial tribunals to administer the laws
to the Territorial Government to establish the court
constitutionally passed, and defining the jurisdic-
in question; and they conclude that part of the opin-
tion they may exercise.
ion in the following words: ‘Although admiralty
The law of Congress establishing a Territorial Gov- jurisdiction can be exercised in the States in those
ernment in Florida, provided that the Legislature of courts only which are established in pursuance of

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the third article of the Constitution, the same limita- different provisions of the Constitution, altogether
tion does not extend to the Territories. In legislating separate and apart from the one above mentioned.
for them, Congress exercises the combined powers The question as to what courts Congress may or-
of the General and State Governments.‘ dain or establish in a Territory to administer laws
which the Constitution authorizes it to pass, and
Thus it will be seen by these quotations from the what laws it is or is not authorized by the Constitu-
opinion, that the court, after stating the question it tion to pass, are widely different-are regulated by
was about to decide in a manner too plain to be different and separate articles of the Constitution,
misunderstood, proceeded to decide it, and an- and stand upon different principles. And we are sat-
nounced, as the opinion of the tribunal, that in or- isfied that no one who reads attentively the page in
ganizing the judicial department of the Government Peters's Reports to which we have referred, can
in a Territory of the United States, Congress does suppose that the attention of the court was drawn
not act under, and is not restricted by, the third art- for a moment to the question now before this court,
icle in the Constitution, and is not bound, in a Ter- or that it meant in that case to say that Congress
ritory, to ordain and establish courts in which the had a right to prohibit a citizen of the United States
judges hold their offices during good behaviour, but from taking any property which he lawfully held in-
may exercise the discretionary power which a State to a Territory of the United States.
exercises in establishing its judicial department,
and regulating the jurisdiction of its courts, and **33 This brings us to examine by what provision
may authorize the Territorial Government to estab- of the Constitution the present Federal Government,
lish, or may itself establish, courts in which the under its delegated and restricted powers, is author-
judges hold their offices for a term of years only; ized to acquire territory outside of the original lim-
and may vest in them judicial power upon subjects its of the United States, and what powers it may ex-
confided to the judiciary of the United States. And ercise therein over the person or property of a cit-
in doing this, Congress undoubtedly exercises the izen of the United States, while it remains a Territ-
combined power of the General and a State Govern- ory, and until it shall be admitted as one of the
ment. It exercises the discretionary power of a State States of the Union.
Government in authorizing the establishment of a
court in which the judges hold their appointments There is certainly no power given by the Constitu-
for a term of years only, and not during good beha- tion to the Federal Government to establish or
viour; and it exercises the power of the General maintain colonies bordering on the United States or
Government in investing that *446 court with ad- at a distance, to be ruled and governed at its own
miralty jurisdiction, over which the General Gov- pleasure; nor to enlarge its territorial limits in any
ernment had exclusive jurisdiction in the Territory. way, except by the admission of new States. That
power is plainly given; and if a new State is admit-
No one, we presume, will question the correctness ted, it needs no further legislation by Congress, be-
of that opinion; nor is there anything in conflict cause the Constitution itself defines the relative
with it in the opinion now given. The point decided rights and powers, and duties of the State, and the
in the case cited has no relation to the question now citizens of the State, and the Federal Government.
before the court. That depended on the construction But no power is given to acquire a Territory to be
of the third article of the Constitution, in relation to held and governed permanently in that character.
the judiciary of the United States, and the power
which Congress might exercise in a Territory in or- And indeed the power exercised by Congress to ac-
ganizing the judicial department of the Govern- quire territory and establish a Government there,
ment. The case before us depends upon other and according to its own unlimited discretion, was
viewed with great jealousy by the *447 leading

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statesmen of the day. And in the Federalist, (No. principles by which its decision must be governed.
38,) written by Mr. Madison, he speaks of the ac-
quisition of the Northwestern Territory by the con- **34 Taking this rule to guide us, it may be safely
federated States, by the cession from Virginia, and assumed that citizens of the United States who mi-
the establishment of a Government there, as an ex- grate to a Territory belonging to the people of the
ercise of power not warranted by the Articles of United States, cannot be ruled as mere colonists,
Confederation, and dangerous to the liberties of the dependent upon the will of the General Govern-
people. And he urges the adoption of the Constitu- ment, and to be governed by any laws it may think
tion as a security and safeguard against such an ex- proper to impose. The principle upon which our
ercise of power. Governments rest, and upon which alone they con-
tinue to exist, is the union of States, sovereign and
We do not mean, however, to question the power of independent within their own limits in *448 their
Congress in this respect. The power to expand the internal and domestic concerns, and bound together
territory of the United States by the admission of as one people by a General Government, possessing
new States is plainly given; and in the construction certain enumerated and restricted powers, delegated
of this power by all the departments of the Govern- to it by the people of the several States, and exer-
ment, it has been held to authorize the acquisition cising supreme authority within the scope of the
of territory, not fit for admission at the time, but to powers granted to it, throughout the dominion of
be admitted as soon as its population and situation the United States. A power, therefore, in the Gener-
would entitle it to admission. It is acquired to be- al Government to obtain and hold colonies and de-
come a State, and not to be held as a colony and pendent territories, over which they might legislate
governed by Congress with absolute authority; and without restriction, would be inconsistent with its
as the propriety of admitting a new State is commit- own existence in its present form. Whatever it ac-
ted to the sound discretion of Congress, the power quires, it acquires for the benefit of the people of
to acquire territory for that purpose, to be held by the several States who created it. It is their trustee
the United States until it is in a suitable condition to acting for them, and charged with the duty of pro-
become a State upon an equal footing with the other moting the interests of the whole people of the Uni-
States, must rest upon the same discretion. It is a on in the exercise of the powers specifically gran-
question for the political department of the Govern- ted.
ment, and not the judicial; and whatever the politic-
al department of the Government shall recognize as At the time when the Territory in question was ob-
within the limits of the United States, the judicial tained by cession from France, it contained no pop-
department is also bound to recognize, and to ad- ulation fit to be associated together and admitted as
minister in it the laws of the United States, so far as a State; and it therefore was absolutely necessary to
they apply, and to maintain in the Territory the au- hold possession of it, as a Territory belonging to the
thority and rights of the Government, and also the United States, until it was settled and inhabited by a
personal rights and rights of property of individual civilized community capable of self-government,
citizens, as secured by the Constitution. All we and in a condition to be admitted on equal terms
mean to say on this point is, that, as there is no ex- with the other States as a member of the Union.
press regulation in the Constitution defining the But, as we have before said, it was acquired by the
power which the General Government may exercise General Government, as the representative and
over the person or property of a citizen in a Territ- trustee of the people of the United States, and it
ory thus acquired, the court must necessarily look must therefore be held in that character for their
to the provisions and principles of the Constitution, common and equal benefit; for it was the people of
and its distribution of powers, for the rules and the several States, acting through their agent and

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representative, the Federal Government, who in fact Territory at the time, and the choice of the mode
acquired the Territory in question, and the Govern- must depend upon the exercise of a discretionary
ment holds it for their common use until it shall be power by Congress, acting within the scope of its
associated with the other States as a member of the constitutional authority, and not infringing upon the
Union. rights of person or rights of property of the citizen
who might go there to reside, or for any other law-
But until that time arrives, it is undoubtedly neces- ful purpose. It was acquired by the exercise of this
sary that some Government should be established, discretion, and it must be held and governed in like
in order to organize society, and to protect the in- manner, until it is fitted to be a State.
habitants in their persons and property; and as the
people of the United States could act in this matter **35 But the power of Congress over the person or
only through the Government which represented property of a citizen can never be a mere discre-
them, and the through which they spoke and acted tionary power under our Constitution and form of
when the Territory was obtained, it was not only Government. The powers of the Government and
within the scope of its powers, but it was its duty to the rights and privileges of the citizen are regulated
pass such laws and establish such a Government as and plainly defined by the Constitution itself. And
would enable those by whose authority they acted when the Territory becomes a part of the United
to reap the advantages anticipated from its acquisi- States, the Federal Government enters into posses-
tion, and to gather there a population which would sion in the character impressed upon it by those
enable it to assume the position to which it was who created it. It enters upon it with its powers
destined among the States of the Union. The power over the citizen strictly defined, and limited by the
to acquire necessarily carries with it the power to Constitution, from which it derives its own exist-
preserve and apply to the purposes for which it was ence, and by virtue of which alone it continues to
acquired. The form of government to be established exist and act as a Government and sovereignty. It
*449 necessarily rested in the discretion of Con- has no power of any kind beyond it; and it cannot,
gress. It was their duty to establish the one that when it enters a Territory of the United States, put
would be best suited for the protection and security off its character, and assume discretionary or des-
of the citizens of the United States, and other inhab- potic powers which the Constitution has denied to
itants who might be authorized to take up their it. It cannot create for itself a new character separ-
abode there, and that must always depend upon the ated from the citizens of the United States, and the
existing condition of the Territory, as to the number duties it owes them under the provisions of the
and character of its inhabitants, and their situation Constitution. The Territory being a part of the
in the Territory. In some cases a Government, con- United States, the Government and the citizen both
sisting of persons appointed by the Federal Govern- enter it under the authority of the Constitution, with
ment, would best subserve the interests of the Ter- their respective rights defined and marked out; and
ritory, when the inhabitants were few and scattered, the Federal Government *450 can exercise no
and new to one another. In other instances, it would power over his person or property, beyond what
be more advisable to commit the powers of self- that instrument confers, nor lawfully deny any right
government to the people who had settled in the which it has reserved.
Territory, as being the most competent to determine
what was best for their own interests. But some A reference to a few of the provisions of the Con-
form of civil authority would be absolutely neces- stitution will illustrate this proposition.
sary to organize and preserve civilized society, and
For example, no one, we presume, will contend that
prepare it to become a State; and what is the best
Congress can make any law in a Territory respect-
form must always depend on the condition of the
ing the establishment of religion, or the free exer-

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cise thereof, or abridging the freedom of speech or Government, as well as that covered by States. It is
of the press, or the right of the people of the Territ- a total absence of power everywhere within the
ory peaceably to assemble, and to petition the Gov- dominion of the United States, and places the cit-
ernment for the redress of grievances. izens of a Territory, so far as these rights are *451
concerned, on the same footing with citizens of the
Nor can Congress deny to the people the right to States, and guards them as firmly and plainly
keep and bear arms, nor the right to trial by jury, against any inroads which the General Government
nor compel any one to be a witness against himself might attempt, under the plea of implied or incid-
in a criminal proceeding. ental powers. And if Congress itself cannot do this-
if it is beyond the powers conferred on the Federal
These powers, and others, in relation to rights of
Government-it will be admitted, we presume, that it
person, which it is not necessary here to enumerate,
could not authorize a Territorial Government to ex-
are, in express and positive terms, denied to the
ercise them. It could confer no power on any local
General Government; and the rights of private
Government, established by its authority, to violate
property have been guarded with equal care. Thus
the provisions of the Constitution.
the rights of property are united with the rights of
person, and placed on the same ground by the fifth It seems, however, to be supposed, that there is a
amendment to the Constitution, which provides that difference between property in a slave and other
no person shall be deprived of life, liberty, and property, and that different rules may be applied to
property, without due process of law. And an act of it in expounding the Constitution of the United
Congress which deprives a citizen of the United States. And the laws and usages of nations, and the
States of his liberty or property, merely because he writings of eminent jurists upon the relation of mas-
came himself or brought his property into a particu- ter and slave and their mutual rights and duties, and
lar Territory of the United States, and who had the powers which Governments may exercise over
committed no offence against the laws, could it, have been dwelt upon in the argument.
hardly be dignified with the name of due process of
law. But in considering the question before us, it must
be borne in mind that there is no law of nations
So, too, it will hardly be contended that Congress standing between the people of the United States
could by law quarter a soldier in a house in a Territ- and their Government, and interfering with their re-
ory without the consent of the owner, in time of lation to each other. The powers of the Govern-
peace; nor in time of war, but in a manner pre- ment, and the rights of the citizen under it, are pos-
scribed by law. Nor could they by law forfeit the itive and practical regulations plainly written down.
property of a citizen in a Territory who was con- The people of the United States have delegated to it
victed of treason, for a longer period than the life of certain enumerated powers, and forbidden it to ex-
the person convicted; nor take private property for ercise others. It has no power over the person or
public use without just compensation. property of a citizen but what the citizens of the
United States have granted. And no laws or usages
**36 The powers over person and property of
of other nations, or reasoning of statesmen or jurists
which we speak are not only not granted to Con-
upon the relations of master and slave, can enlarge
gress, but are in express terms denied, and they are
the powers of the Government, or take from the cit-
forbidden to exercise them. And this prohibition is
izens the rights they have reserved. And if the Con-
not confined to the States, but the words are gener-
stitution recognizes the right of property of the
al, and extend to the whole territory over which the
master in a slave, and makes no distinction between
Constitution gives it power to legislate, including
that description of property and other property
those portions of it remaining under Territorial

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owned by a citizen, no tribunal, acting under the independently of his residence in the territory of the
authority of the United States, whether it be legis- United States; and being so made free, he was not
lative, executive, or judicial, has a right to draw again reduced to a state of slavery by being brought
such a distinction, or deny to it the benefit of the back to Missouri.
provisions and guarantees which have been
provided for the protection of private property Our notice of this part of the case will be very brief;
against the encroachments of the Government. for the principle on which it depends was decided
in this court, upon much consideration, in the case
Now, as we have already said in an earlier part of of Strader et al. v. Graham, reported in 10th
this opinion, upon a different point, the right of Howard, 82. In that case, the slaves had been taken
property in a slave is distinctly and expressly af- from Kentucky to Ohio, with the consent of the
firmed in the Constitution. The right to traffic in it, owner, and afterwards brought back to Kentucky.
like an ordinary article of merchandise and prop- And this court held that their status or condition, as
erty, was guarantied to the citizens of the United free or slave, depended upon the laws of Kentucky,
States, in every State that might desire it, for twenty when they were brought back into that State, and
years. And the Government in express terms is not of Ohio; and that this court had no jurisdiction
pledged to protect *452 it in all future time, if the to revise the judgment of a State court upon its own
slave escapes from his owner. This is done in plain laws. This was the point directly before the court,
words-too plain to be misunderstood. And no word and the decision that this court had not jurisdiction
can be found in the Constitution which gives Con- turned upon it, as will be seen by the report of the
gress a greater power over slave property, or which case.
entitles property of that kind to less protection that
property of any other description. The only power So in this case. As Scott was a slave when taken in-
conferred is the power coupled with the duty of to the State of Illinois by his owner, and was there
guarding and protecting the owner in his rights. held as such, and brought back in that character, his
status, as free or slave, depended on the laws of
**37 Upon these considerations, it is the opinion of Missouri, and not of Illinois.
the court that the act of Congress which prohibited
a citizen from holding and owning property of this It has, however, been urged in the argument, that by
kind in the territory of the United States north of the laws of Missouri he was free on his return, and
the line therein mentioned, is not warranted by the that this case, *453 therefore, cannot be governed
Constitution, and is therefore void; and that neither by the case of Strader et al. v. Graham, where it ap-
Dred Scott himself, nor any of his family, were peared, by the laws of Kentucky, that the plaintiffs
made free by being carried into this territory; even continued to be slaves on their return from Ohio.
if they had been carried there by the owner, with But whatever doubts or opinions may, at one time,
the intention of becoming a permanent resident. have been entertained upon this subject, we are sat-
isfied, upon a careful examination of all the cases
We have so far examined the case, as it stands un- decided in the State courts of Missouri referred to,
der the Constitution of the United States, and the that it is now firmly settled by the decisions of the
powers thereby delegated to the Federal Govern- highest court in the State, that Scott and his family
ment. upon their return were not free, but were, by the
laws of Missouri, the property of the defendant; and
But there is another point in the case which depends that the Circuit Court of the United States had no
on State power and State law. And it is contended, jurisdiction, when, by the laws of the State, the
on the part of the plaintiff, that he is made free by plaintiff was a slave, and not a citizen.
being taken to Rock Island, in the State of Illinois,

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Moreover, the plaintiff, it appears, brought a similar every respect substantially the same as if it had in
action against the defendant in the State court of open violation of law entertained jurisdiction over
Missouri, claiming the freedom of himself and his the judgment of the State court upon a writ of error,
family upon the same grounds and the same evid- and revised and reversed its judgment upon the
ence upon which hw relies in the case before the ground that its opinion upon the question of law
court. The case was carried before the Supreme was erroneous. It would ill become this court to
Court of the State; was fully argued there; and that sanction such an attempt to evade the law, or to ex-
court decided that neither the plaintiff nor his fam- ercise an appellate power in this circuitous way,
ily were entitled to freedom, and were still the which it is forbidden to exercise in the direct and
slaves of the defendant; and reversed the judgment regular and invariable forms of judicial proceed-
of the inferior State court, which had given a differ- ings.
ent decision. If the plaintiff supposed that this judg-
ment of the Supreme Court of the State was erro- Upon the whole, therefore, it is the judgment of this
neous, and that this court had jurisdiction to revise court, that it appears by the record before us that
and reverse it, the only mode by which he could the plaintiff in error is not a citizen of Missouri, in
legally bring it before this court was by writ of er- the sense in which that word is used in the Consti-
ror directed to the Supreme Court of the State, re- tution; and that the Circuit Court of the United
quiring it to transmit the record to this court. If this States, for that reason, had no jurisdiction in the
had been done, it is too plain for argument that the case, and could give no judgment in it. Its judgment
writ must have been dismissed for want of jurisdic- for the defendant must, consequently, be reversed,
tion in this court. The case of Strader and others v. and a mandate issued, directing the suit to be dis-
Graham is directly in point; and, indeed, independ- missed for want of jurisdiction.
ent of any decision, the language of the 25th section Mr. Justice WAYNE.
of the act of 1789 is too clear and precise to admit Concurring as I do entirely in the opinion of the
of controversy. court, as it has been written and read by the Chief
Justice-without any qualification of its reasoning or
**38 But the plaintiff did not pursue the mode pre- its conclusions-I shall neither read nor file an opin-
scribed by law for bringing the judgment of a State ion of my own in this case, which I prepared when I
court before this court for revision, but suffered the supposed it might be necessary and proper for me
case to be remanded to the inferior State court, to do so.
where it is still continued, and is, by agreement of
parties, to await the judgment of this court on the The opinion of the court meets fully and decides
point. All of this appears on the record before us, every point which was made in the argument of the
and by the printed report of the case. case by the counsel on either side of it. Nothing be-
longing to the case has been left undecided, nor has
And while the case is yet open and pending in the any point been discussed and decided which was
inferior State court, the plaintiff goes into the Cir- not called for by the record, or which was not ne-
cuit Court of the United States, upon the same case cessary for the judicial disposition of it, in the way
and the same evidence, and against the same party, that it has been done, by more than a majority of
and proceeds to judgment, and then brings here the the court.
same case from the Circuit Court, which the law
would not have permitted him to bring directly In doing this, the court neither sought nor made the
from the *454 State court. And if this court takes case. It was brought to us in the course of that ad-
jurisdiction in this form, the result, so far as the ministration of the laws which Congress has en-
rights of the respective parties are concerned, is in acted, for the review of cases from the Circuit
Courts by the Supreme Court.

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In our action upon it, we have only discharged our plication to the Circuit Courts of the United States,
duty as a distinct and efficient department of the of the rules of pleading concerning pleas to the jur-
Government, as the framers of the Constitution isdiction which prevail in common-law courts; and
meant the judiciary to be, and as the States of the from its having been forgotten that this case was
Union and the people of those States intended it not brought to this court by appeal or writ of error
should be, when they ratified the Constitution of from a State court, but by a writ of error to the Cir-
the United States. cuit Court of the United States.

**39 The case involves private rights of value, and The cases cited by the Chief Justice to show that
constitutional principles of the highest importance, this court has now only done what it has repeatedly
about which there had *455 become such a differ- done before in other cases, without any question of
ence of opinion, that the peace and harmoney of the its correctness, speak for themselves. The differ-
country required the settlement of them by judicial ences between the rules concerning pleas to the jur-
decision. isdiction in the courts of the United States and com-
mon-law courts have been stated and sustained by
It would certainly be a subject of regret, that the reasoning and adjudged cases; and it has been
conclusions of the court have not been assented to shown that writs of error to a State court and to the
by all of its members, if I did not know from its his- Circuit Courts of the United States are to be de-
tory and my own experience how rarely it has termined by different laws and principles. In the
happened that the judges have been unanimous first, it is our duty to ascertain if this court has jur-
upon constitutional questions of moment, and if our isdiction, under the twenty-fifth section of the judi-
decision in this case had not been made by as large ciary act, to review the case from the State court;
a majority of them as has been usually had on con- and if it shall be found that it has not, the case is at
stitutional questions of importance. end, so far as this court is concerned; for our power
*456 to review the case upon its merits has been
Two of the judges, Mr. Justices McLean and Curtis,
made, by the twenty-fifth section, to depend upon
dissent from the opinion of the court. A third, Mr.
its having jurisdiction; when it has not, this court
Justice Nelson, gives a separate opinion upon a
cannot criticise, controvert, or give any opinion
single point in the case, with which I concur, as-
upon the merits of a case from a State court.
suming that the Circuit Court had jurisdiction; but
he abstains altogether from expressing any opinion **40 But in a case brought to this court, by appeal
upon the eighth section of the act of 1820, known or by writ of error from a Circuit Court of the
commonly as the Missouri Compromise law, and United States, we begin a review of it, not by in-
six of us declare that it was unconstitutional. quiring if this court has jurisdiction, but if that
court has it. If the case has been decided by that
But it has been assumed, that this court has acted
court upon its merits, but the record shows it to be
extra-judicially in giving an opinion upon the
deficient in those averments which by the law of
eighth section of the act of 1820, because, as it has
the United States must be made by the plaintiff in
decided that the Circuit Court had no jurisdiction of
the action, to give the court jurisdiction of his case,
the case, this court had no jurisdiction to examine
we send it back to the court from which it was
the case upon its merits.
brought, with directions to be dismissed, though it
But the error of such an assertion has arisen in part has been decided there upon its merits.
from a misapprehension of what has been hereto-
So, in a case containing the averments by the
fore decided by the Supreme Court, in cases of a
plaintiff which are necessary to give the Circuit
like kind with that before us; in part, from a misap-
Court jurisdiction, if the defendant shall file his

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plea in abatement denying the truth of them, and the cause of action, if any, accrued to the plaintiff
the plaintiff shall demur to it, and the court should out of the jurisdiction of the court, and exclusively
erroneously sustain the plaintiff's demurrer, or de- within the jurisdiction of the courts of the State of
clare the plea to be insufficient, and by doing so re- Missouri; for, that the said plaintiff is not a citizen
quire the defendant to answer over by a plea to the of the State of Missouri, as alleged in the declara-
merits, and shall decide the case upon such plead- tion, because he is a negro of African descent; his
ing, this court has the same authority to inquire into ancestors were of pure African blood, and were
the jurisdiction of that court to do so, and to correct brought into this country and sold as negro slaves.
its error in that regard, that it had in the other case
to correct its error, in trying a case in which the **41 To this plea the plaintiff demurred, and the
plaintiff had not made those averments which were defendant joined in demurrer. The court below sus-
necessary to give the court jurisdiction. In both tained the demurrer, holding that the plea was in-
cases the record is resorted to, be determine the sufficient in law to abate the suit.
point of jurisdiction; but, as the power of review of
The defendant then plead over in bar of the action:
cases from a Federal court, by this court, is not lim-
ited by the law to a part of the case, this court may 1. The general issue. 2. That the plaintiff was a
correct an error upon the merits; and there is the negro slave, the lawful property of the defendant.
same reason for correcting an erroneous judgment And 3. That Harriet, the wife of said plaintiff, and
of the Circuit Court, where the want of jurisdiction the two children, were the lawful slaves of the said
appears from any part of the record, that there is for defendant. Issue was taken upon these pleas, and
declaring a want of jurisdiction for a want of neces- the cause went down to trial before the court and
sary averments. And attempt to control the court jury, and an agreed state of facts was presented,
from doing so by the technical common-law rules upon which the trial proceeded, and resulted in a
of pleading in cases of jurisdiction, when a defend- verdict for the defendant, under the instructions of
ant has been denied his plea to it, would tend to en- the court.
large the jurisdiction of the Circuit Court, by limit-
ing this court's review of its judgments in that par- The facts agreed upon were substantially as fol-
ticular. But I will not argue a point already so fully lows:
discussed. I have every confidence in the opinion of
the court upon the point of jurisdiction, and do not That in the year 1834, the plaintiff, Scott, was a
allow myself to doubt that the error of a contrary negro slave of Dr. Emerson, who was a surgeon in
conclusion will be fully understood by all who shall the army of the United States; and in that year he
read the argument of the Chief Justice. took the plaintiff from the State of Missouri to the
military post at Rock Island, in the State of Illinois,
I have already said that the opinion of the court has and held him there as a slave until the month of
my unqualified assent. April or May, 1836. At this date, Dr. Emerson re-
*457 Mr. Justice NELSON. moved, with the plaintiff, from the Rock Island post
I shall proceed to state the grounds upon which I to the military post at Fort Snelling, situate on the
have arrived at the conclusion, that the judgment of west bank of the Mississippi river, in the Territory
the court below should be affirmed. The suit was of Upper Louisiana, and north of the latitude thirty-
brought in the court below by the plaintiff, for the six degrees thirty minutes, and north of the State of
purpose of asserting his freedom, and that of Har- Missouri. That he held the plaintiff in slavery, at
riet, his wife, and two children. Fort Snelling, from the last-mentioned date until the
year 1838.
The defendant plead, in abatement to the suit, that

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That in the year 1835, Harriet, mentioned in the de- answer over, and the defendant submits to the judg-
claration, was a negro slave of Major Taliaferro, ment, and pleads over to the merits, the plea in
who belonged to the army of the United States; and abatement is deemed to be waived, and is not after-
in that year he took her to Fort Snelling, already wards to be regarded as a part of the record in de-
mentioned, and kept her there as a slave until the ciding upon the rights regarded as a part of the re-
year 1836, and then sold and delivered her to Dr. cord in deciding upon the rights of the parties.
Emerson, who held her in slavery, at Fort Snelling, There is some question, however, whether this rule
until the year 1838. That in the year 1836, the of pleading applies to the peculiar system and juris-
plaintiff and Harriet *458 were married, at Fort diction of the Federal courts. As, in these courts, if
Snelling, with the consent of their master. The two the facts appearing on the record show that the Cir-
children, Eliza and Lizzie, are the fruit of this mar- cuit Court had no jurisdiction, its judgment will be
riage. The first is about fourteen years of age, and reversed in the appellate court for that cause, and
was born on board the steamboat Gipsey, north of the case remanded with directions to be dismissed.
the State of Missouri, and upon the Mississippi
river; the other, about seven years of age, was born In the view we have taken of the case, it will not be
in the State of Missouri, at the military post called necessary to pass upon this question, and we shall
Jefferson Barracks. therefore proceed at once to an examination of the
case upon its merits. The question upon the merits,
In 1838, Dr. Emerson removed the plaintiff, Har- in general terms, is, whether or not the removal of
riet, and their daughter Eliza, from Fort Snelling to the plaintiff, who was a slave, with his master, from
the State of Missouri, where they have ever since the State of Missouri to the State of Illinois, with a
resided. And that, before the commencement of this view to a temporary residence, and after such resid-
suit, they were sold by the Doctor to Sandford, the ence and *459 return to the slave State, such resid-
defendant, who has claimed and held them as slaves ence in the free State works an emancipation.
ever since.
As appears from an agreed statement of facts, this
The agreed case also states that the plaintiff brought question has been before the highest court of the
a suit for his freedom, in the Circuit Court of the State of Missouri, and a judgment rendered that this
State of Missouri, on which a judgment was residence in the free State has no such effect; but,
rendered in his favor; but that, on a writ of error on the contrary, that his original condition contin-
from the Supreme Court of the State, the judgment ued unchanged.
of the court below was reversed, and the cause re-
manded to the circuit for a new trial. The court below, the Circuit Court of the United
States for Missouri, in which this suit was after-
**42 On closing the testimony in the court below, wards brought, followed the decision of the State
the counsel for the plaintiff prayed the court to in- court, and rendered a like judgment against the
struct the jury, upon the agreed state of facts, that plaintiff.
they ought to find for the plaintiff; when the court
refused, and instructed them that, upon the facts, The argument against these decisions is, that the
the law was with the defendant. laws of Illinois, forbidding slavery within her territ-
ory, had the effect to set the slave free while resid-
With respect to the plea in abatement, which went ing in that State, and to impress upon him the con-
to the citizenship of the plaintiff, and his compet- dition and status of a freeman; and that, by force of
ency to bring a suit in the Federal courts, the com- these laws, this status and condition accompanied
mon-law rule of pleading is, that upon a judgment him on his return to the slave State, and of con-
against the plea on demurrer, and that the defendant sequence he could not be there held as a slave.

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This question has been examined in the courts of territory, or persons not residing within it. No State,
several of the slaveholding States, and different therefore, can enact laws to operate beyond its own
opinions expressed and conclusions arrived at. We dominions, and, if it attempts to do so, it may be
shall hereafter refer to some of them, and to the lawfully refused obedience. Such laws can have no
principles upon which they are founded. Our opin- inherent authority extra-territorially. This is the ne-
ion is, that the question is one which belongs to cessary result of the independence of distinct and
each State to decide for itself, either by its Legis- separate sovereignties.
lature or courts of justice; and hence, in respect to
the case before us, to the State of Missouri-a ques- Now, it follows from these principles, that whatever
tion exclusively of Missouri law, and which, when force or effect the laws of one State or nation may
determined by that State, it is the duty of the Feder- have in the territories of another, must depend
al courts to follow it. In other words, except in solely upon the laws and municipal regulations of
cases where the power is restrained by the Constitu- the latter, upon its own jurisprudence and polity,
tion of the United States, the law of the State is su- and upon its own express or tacit consent.
preme over the subject of slavery within its juris-
Judge Story observes, in his Conflict of Laws, (p.
diction.
24,) ‘that a State may prohibit the operation of all
**43 As a practical illustration of the principle, we foreign laws, and the rights growing out of them,
may refer to the legislation of the free States in ab- within its territories.‘ ‘And that when its code
olishing slavery, and prohibiting its introduction in- speaks positively on the subject, it must be obeyed
to their territories. Confessedly, except as re- by all persons who are within reach of its sover-
strained by the Federal Constitution, they exercised, eignty; when its customary unwritten or common
and rightfully, complete and absolute power over law speaks directly on the subject, it is equally to
the subject. Upon what principle, then, can it be be obeyed.‘
denied to the State of Missouri? The power flows
Nations, from convenience and comity, and from
from the sovereign character of the States of the
mutual interest, and a sort of moral necessity to do
Union; sovereign, not merely as respects the Feder-
justice, recognize and administer the laws of other
al Government-except as they have consented to its
countries. But, of the nature, extent, and utility, of
limitation-but sovereign as respects each other.
them, respecting property, or the state and condi-
Whether, therefore, the State of Missouri will re-
tion of persons within her territories, each nation
cognize or give effect to the laws of Illinois within
judges for itself; and is never bound, even upon the
her territories on the subject of slavery, is a ques-
ground of comity, to recognize them, if prejudicial
tion for her to determine. Nor is there any constitu-
to her own interests. The recognition is purely from
tional power in this Government that can rightfully
comity, and not from any absolute or paramount
control her.
obligation.
*460 Every State or nation possesses an exclusive
**44 Judge Story again observes, (398,) ‘that the
sovereignty and jurisdiction within her own territ-
true foundation and extent of the obligation of the
ory; and, her laws affect and bind all property and
laws of one nation within another is the voluntary
persons residing within it. It may regulate the man-
consent of the latter, and is inadmissible when they
ner and circumstances under which property is
are contrary to its known interests. ‘ And he adds,
held, and the condition, capacity, and state, of all
‘in the silence of any positive rule affirming or
persons therein; and, also, the remedy and modes of
denying or restraining the operation of the foreign
administering justice. And it is equally true, that no
laws, courts of justice presume the tacit adoption of
State or nation can affect or bind property out of its
them by their own Government, unless they are re-

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pugnant to its policy or prejudicial to its interests.‘ the status and condition of the slave upon his return
(See also 2 Kent Com., p. 457; 13 Peters, 519, 589.) remains the same as originally existed. Has the law
of Illinois any greater force within the jurisdiction
These principles fully establish, that it belongs to of Missouri, than the laws of the latter within that
the sovereign *461 State of Missouri to determine of the former? Certainly not. They stand upon an
by her laws the question of slavery within her juris- equal footing. Neither has any force extra-
diction, subject only to such limitations as may be territorially, except what may be voluntarily con-
found in the Federal Constitution; and, further, that ceded to them.
the laws of other States of the Confederacy, wheth-
er enacted by their Legislatures or expounded by **45 It has been supposed, by the counsel for the
their courts, can have no operation within her territ- plaintiff, that a rule laid down by Huberus had
ory, or affect rights growing out of her own laws on some bearing upon this question. Huberus observes
the subject. This is the necessary result of the inde- that ‘personal qualities, impressed by the laws of
pendent and sovereign character of the State. The any place, surround and accompany the person
principle is not peculiar to the State of Missouri, wherever he goes, with this effect: that in every
but is equally applicable to each State belonging to place he enjoys and is subject to the same law
the Confederacy. The laws of each have no extra- which other persons of his *462 class elsewhere en-
territorial operation within the jurisdiction of anoth- joy or are subject to.‘ (De Confl. Leg., lib. 1, tit. 3,
er, except such as may be voluntarily conceded by sec. 12; 4 Dallas, 375 n.; 1 Story Con. Laws, pp.
her laws or courts of justice. To the extent of such 59, 60.)
concession upon the rule of comity of nations, the
foreign law may operate, as it then becomes a part The application sought to be given to the rule was
of the municipal law of the State. When determined this: that as Dred Scott was free while residing in
that the foreign law shall have effect, the municipal the State of Illinois, by the laws of that State, on his
law of the State retires, and gives place to the for- return to the State of Missouri he carried with him
eign law. the personal qualities of freedom, and that the same
effect must be given to his status there as in the
In view of these principles, let us examine a little former State. But the difficulty in the case is in the
more closely the doctrine of those who maintain total misapplication of the rule.
that the law of Missouri is not to govern the status
and condition of the plaintiff. They insist that the These personal qualities, to which Huberus refers,
removal and temporary residence with his master in are those impressed upon the individual by the law
Illinois, where slavery is inhibited, had the effect to of the domicil; it is this that the author claims
set him free, and that the same effect is to be given should be permitted to accompany the person into
to the law of Illinois, within the State of Missouri, whatever country he might go, and should super-
after his return. Why was he set free in Illinois? Be- sede the law of the place where he had taken up a
cause the law of Missouri, under which he was held temporary residence.
as a slave, had no operation by its own force extra-
Now, as the domicil of Scott was in the State of
territorially; and the State of Illinois refused to re-
Missouri, where he was a slave, and from whence
cognize its effect within her limits, upon principles
he was taken by his master into Illinois for a tem-
of comity, as a state of slavery was inconsistent
porary residence, according to the doctrine of
with her laws, and contrary to her policy. But, how
Huberus, the law of his domicil would have accom-
is the case different on the return of the plaintiff to
panied him, and during his residence there he
the State of Missouri? Is she bound to recognize
would remain in the same condition as in the State
and enforce the law of Illinois? For, unless she is,
of Missouri. In order to have given effect to the

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rule, as claimed in the argument, it should have Kentucky upon this subject. And the condition of
been first shown that a domicil had been acquired the negroes, therefore, as to freedom or slavery,
in the free State, which cannot be pretended upon after their return, depended altogether upon the
the agreed facts in the case. But the true answer to laws of that State, and could not be influenced by
the doctrine of Huberus is, that the rule, in any as- the laws of Ohio. It was exclusively in the power of
pect in which it may be viewed, has no bearing Kentucky to determine, for herself, whether their
upon either side of the question before us, even if employment in another State should or should not
conceded to the extent laid down by the author; for make them free on their return.‘
he admits that foreign Governments give effect to
these laws of the domicil no further than they are **46 It has been supposed, in the argument on the
consistent with their own laws, and not prejudicial part of the plaintiff, that the eighth section of the
to their own subjects; in other words, their force act of Congress passed March 6, 1820, (3 St. at
and effect depend upon the law of comity of the Large, p. 544,) which prohibited slavery north of
foreign Government. We should add, also, that this thirty-six degrees thirty miutes, within which the
general rule of Huberus, referred to, has not been plaintiff and his wife temporarily resided at Fort
admitted in the practice of nations, nor is it sanc- Snelling, possessed some superior virtue and effect,
tioned by the most approved jurists of international extra-territorially, and within the State of Missouri,
law. (Story Con., sec. 91, 96, 103, 104; 2 Kent. beyond that of the laws of Illinois, or those of Ohio
Com., p. 457, 458; 1 Burge Con. Laws, pp. 12, in the case of Strader et al. v. Graham. A similar
127.) ground was taken and urged upon the court in the
case just mentioned, under the ordinance of 1787,
We come now to the decision of this court in the which was enacted during the time of the Confeder-
case of Strader et al. v. Graham, ( 10 How., p. 2.) ation, and reenacted by Congress after the adoption
The case came up from the Court of Appeals, in the of the Constitution, with some amendments adapt-
State of Kentucky. The question in the case was, ing it to the new Government. (1 St. at Large, p.
whether certain slaves of Graham, a resident of 50.)
Kentucky, who had been employed temporarily at
several places in the State of Ohio, with their mas- In answer to this ground, the Chief Justice, in deliv-
ter's consent, and had returned to Kentucky into his ering the opinion of the court, observed: ‘The argu-
service, had thereby *463 become entitled to their ment assumes that the six articles which that ordin-
freedom. The Court of Appeals held that they had ance declares to be perpetual, are still in force in
not. The case was brought to this court under the the States since formed within the territory, and ad-
twenty-fifth section of the judiciary act. This court mitted into the Union. If this proposition could be
held that it had no jurisdiction, for the reason, the maintained, it would not alter the question; for the
question was one that belonged exclusively to the regulations of Congress, under the old Confedera-
State of Kentucky. The Chief Justice, in delivering tion or the present Constitution, for the government
the opinion of the court, observed that ‘every State of a particular Territory, could have no force bey-
has an undoubted right to determine the status or ond its limits. It certainly could not restrict the
domestic and social condition of the persons domi- power of the States, within their respective territor-
ciled within its territory, except in so far as the ies, nor in any manner interfere with their laws and
powers of the States in this respect are restrained, institutions, nor give this court control over them.
or duties and obligations imposed upon them, by
*464 ‘The ordinance in question, he observes, if
the Constitution of the United States. There is noth-
still in force, could have no more operation than the
ing in the Constitution of the United States, he ob-
laws of Ohio in the State of Kentucky, and could
serves, that can in any degree control the law of
not influence the decision upon the rights of the

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master or the slaves in that State.‘ Constitution, to abolish slavery in a Territory, it


must necessarily possess the like power to establish
This view, thus authoritatively declared, furnishes a it. It cannot be a one-sided power, as may suit the
conclusive answer to the distinction attempted to be convenience or particular views of the advocates. It
set up between the extra-territorial effect of a State is a power, if it exists at all, over the whole subject;
law and the act of Congress in question. and then, upon the process of reasoning which
seeks to extend its influence beyond the Territory,
It must be admitted that Congress possesses no
and within the limits of a State, if Congress should
power to regulate or abolish slavery within the
establish, instead of abolish, slavery, we do *465
States; and that, if this act had attempted any such
not see but that, if a slave should be removed from
legislation, it would have been a nullity. And yet
the Territory into a free State, his status would ac-
the argument here, if there be any force in it, leads
company him, and continue, notwithstanding its
to the result, that effect may be given to such legis-
laws against slavery. The laws of the free State, ac-
lation; for it is only by giving the act of Congress
cording to the argument, would be displaced, and
operation within the State of Missouri, that it can
the act of Congress, in its effect, be substituted in
have any effect upon the question between the
their place. We do not see how this conclusion
parties. Having no such effect directly, it will be
could be avoided, if the construction against which
difficult to maintain, upon any consistent reasoning,
we are contending should prevail. We are satisfied,
that it can be made to operate indirectly upon the
however, it is unsound, and that the true answer to
subject.
it is, that even conceding, for the purposes of the
The argument, we think, in any aspect in which it argument, that this provision of the act of Congress
may be viewed, is utterly destitute of support upon is valid within the Territory for which it was en-
any principles of constitutional law, as, according acted, it can have no operation or effect beyond its
to that, Congress has no power whatever over the limits, or within the jurisdiction of a State. It can
subject of slavery within the State; and is also sub- neither displace its laws, nor change the status or
versive of the established doctrine of international condition of its inhabitants.
jurisprudence, as, according to that, it is an axiom
Our conclusion, therefore, is, upon this branch of
that the laws of one Government have no force
the case, that the question involved is one depend-
within the limits of another, or extra-territorially,
ing solely upon the law of Missouri, and that the
except from the consent of the latter.
Federal court sitting in the State, and trying the
**47 It is perhaps not unfit to notice, in this con- case before us, was bound to follow it.
nection, that many of the most eminent statesmen
The remaining question for consideration is, What
and jurists of the country entertain the opinion that
is the law of the State of Missouri on this subject?
this provision of the act of Congress, even within
And it would be a sufficient answer to refer to the
the territory to which it relates, was not authorized
judgment of the highest court of the State in the
by any power under the Constitution. The doctrine
very case, were it not due to that tribunal to state
here contended for, not only upholds its validity in
somewhat at large the course of decision and the
the territory, but claims for it effect beyond and
principles involved, on account of some diversity of
within the limits of a sovereign State-an effect, as
opinion in the cases. As we have already stated, this
insisted, that displaces the laws of the State, and
case was originally brought in the Circuit Court of
substitutes its own provisions in their place.
the State, which resulted in a judgment for the
The consequences of any such construction are ap- plaintiff. The case was carried up to the Supreme
parent. If Congress possesses the power, under the Court for revision. That court reversed the judg-

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ment below, and remanded the cause to the circuit, his?


for a new trial. In that state of the proceeding, a
new suit was brought by the plaintiff in the Circuit Waiving, however, this view, and turning to the de-
Court of the United States, and tried upon the issues cisions of the courts of Missouri, it will be found
and agreed case before us, and a verdict and judg- that there is no discrepancy between the earlier and
ment for the defendant, that court following the de- the present cases upon this subject. There are some
cision of the Supreme Court of the State. The judg- eight of them reported previous to the decision in
ment of the Supreme Court is reported in the 15 the case before us, which was decided in 1852. The
Misso. R., p. 576. The court placed the decision last of the earlier cases was decided in 1836. In
upon the temporary residence of the master with the each one of these, with two exceptions, the master
slaves in the State and Territory to which they re- or mistress removed into the free State with the
moved, and their return to the slave State; and upon slave, with a view to a permanent residence-in other
the principles of international law, that foreign laws words, to make that his or her domicil. And in sev-
have no extra-territorial force, except such as the eral of the cases, this removal and permanent resid-
State within which they are sought to be enforced ence were relied on, as the ground of the decision
may see fit to extend to them, upon the doctrine of in favor of the plaintiff. All these cases, therefore,
comity of nations. are not necessarily in conflict with the decision in
the case before us, but consistent with it. In one of
**48 This is the substance of the grounds of the de- the two excepted cases, the master had hired the
cision. slave in the State of Illinois from 1817 to 1825. In
the other, the master was an officer in the army, and
The same question has been twice before that court removed with his slave to the military post of Fort
since, and the same judgment given, (15 Misso. R., Snelling, and at Prairie du Chien, in Michigan, tem-
595; 17 Ib., 434.) It must be admitted, therefore, as porarily, while acting under the orders of his Gov-
the settled law of the State, *466 and, according to ernment. It is conceded the decision in this case
the decision in the case of Strader et al. v. Graham, was departed from in the case before us, and in
is conclusive of the case in this court. those that have followed it. But it is to be observed
that these subsequent cases are in conformity with
It is said, however, that the previous cases and
those in all the slave States bordering on the free-in
course of decision in the State of Missouri on this
Kentucky, (2 Marsh., 476; 5 B. Munroe, 176; 9 Ib.,
subject were different, and that the courts had held
565)-in Virginia, ( 1 Rand., 15; 1 Leigh, 172; 10
the slave to be free on his return from a temporary
Grattan, 495)-in Maryland, (4 Harris and McHenry,
residence in the free State. We do not see, were this
295, 322, 325.) In conformity, also, with the law of
to be admitted, that the circumstance would show
England on this subject, Ex parte Grace, (2 Hagg.
that the settled course of decision, at the time this
Adm., R., 94,) and with the opinions of the *467
case was tried in the court below, was not to be
most eminent jurists of the country. (Story's Confl.,
considered the law of the State. Certainly, it must
396 a; 2 Kent Com., 258 n.; 18 Pick., 193, Chief
be, unless the first decision of a principle of law by
Justice Shaw. See Corresp. between Lord Stowell
a State court is to be permanent and irrevocable.
and Judge Story, 1 vol. Life of Story, p. 552, 558.)
The idea seems to be, that the courts of a State are
not to change their opinions, or, if they do, the first **49 Lord Stowell, in communicating his opinion
decision is to be regarded by this court as the law of in the case of the slave Grace to Judge Story, states,
the State. It is certain, if this be so, in the case be- in his letter, what the question was before him,
fore us, it is an exception to the rule governing this namely: ‘Whether the emancipation of a slave
court in all other cases. But what court has not brought to England insured a complete emancipa-
changed its opinions? What judge has not changed

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tion to him on his return to his own country, or where they had become free under her laws.
whether it only operated as a suspension of slavery
in England, and his original character devolved on The State of Louisiana, whose courts had gone fur-
him again upon his return.’ He observed, ‘the ques- ther in *468 holding the slave free on his return
tion had never been examined since an end was put from a residence in a free State than the courts of
to slavery fifty years ago,’ having reference to the her sister States, has settled the law, by an act of
decision of Lord Mansfield in the case of Somer- her Legislature, in conformity with the law of the
sett; but the practice, he observed, ‘has regularly court of Missouri in the case before us. (Sess. Law,
been, that on his return to his own country, the 1846).
slave resumed his original character of slave.’ And
The case before Lord Stowell presented much
so Lord Stowell held in the case.
stronger features for giving effect to the law of
Judge Story, in his letter in reply, observes: ‘I have England in the case of the slave Grace than exists in
read with great attention your judgment in the slave the cases that have arisen in this country, for in that
case, &c. Upon the fullest consideration which I case the slave returned to a colony of England over
have been able to give the subject, I entirely concur which the Imperial Government exercised supreme
in your views. If I had been called upon to pro- authority. Yet, on the return of the slave to the
nounce a judgment in a like case, I should have cer- colony, from a temporary residence in England, he
tainly arrived at the same result.’ Again he ob- held that the original condition of the slave at-
serves: ‘In my native State, (Massachusetts,) the tached. The question presented in cases arising here
state of slavery is not recognized as legal; and yet, is as to the effect and operation to be given to the
if a slave should come hither, and afterwards return laws of a foreign State, on the return of the slave
to his own home, we should certainly think that the within an independent sovereignty.
local law attached upon him, and that his servile
**50 Upon the whole, it must be admitted that the
character would be redintegrated.’
current of authority, both in England and in this
We may remark, in this connection, that the case country, is in accordance with the law as declared
before the Maryland court, already referred to, and by the courts of Missouri in the case before us, and
which was decided in 1799, presented the same we think the court below was not only right, but
question as that before Lord Stowell, and received a bound to follow it.
similar decision. This was nearly thirty years before
Some question has been made as to the character of
the decision in that case, which was in 1828. The
the residence in this case in the free State. But we
Court of Appeals observed, in deciding the Mary-
regard the facts as set forth in the agreed case as de-
land case, that ‘however the laws of Great Britain
cisive. The removal of Dr. Emerson from Missouri
in such instances, operating upon such persons
to the military posts was in the discharge of his du-
there, might interfere so as to prevent the exercise
ties as surgeon in the army, and under the orders of
of certain acts by the masters, not permitted, as in
his Government. He was liable at any moment to be
the case of Somersett, yet, upon the bringing Ann
recalled, as he was in 1838, and ordered to another
Joice into this State, (then the province of Mary-
post. The same is also true as it respects Major
land,) the relation of master and slave continued in
Taliaferro. In such a case, the officer goes to his
its extent, as authorized by the laws of this State.’
post for a temporary purpose, to remain there for an
And Luther Martin, one of the counsel in that case,
uncertain time, and not for the purpose of fixing his
stated, on the argument, that the question had been
permanent abode. The question we think too plain
previously decided the same way in the case of
to require argument. The case of the Attorney Gen-
slaves returning from a residence in Pennsylvania,
eral v. Napier, (6 Welsh, Hurtst. and Gordon Exch.

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Rep., 217,) illustrates and applies the principle in of polity peculiar to the United States, a conjunc-
the case of an officer of the English army. ture of graver import than that must be, within
which it is aimed to comprise, and to control, not
A question has been alluded to, on the argument, only the faculties and practical operation appropri-
namely: the right of the master with his slave of ate to the American Confederacy as such, but also
transit into or through a free State, on business or the rights and powers of its separate and independ-
commercial pursuits, or in the exercise of a Federal ent members, with reference alike to their internal
right, or the discharge of a Federal duty, being a and domestic authority and interests, and the rela-
citizen of the United States, which is not before us. tions they sustain to their confederates.
This question depends upon different considera-
tions and principles from the one in hand, and turns **51 To my mind it is evident, that nothing less
upon the rights and privileges secured to a common than the ambitious and far-reaching pretension to
citizen of the republic under the Constitution of the compass these objects of vital concern, is either dir-
United States. When that question arises, we shall ectly essayed or necessarily implied in the positions
be prepared to decide it. attempted in the argument for the plaintiff in error.

*469 Our conclusion is, that the judgment of the How far these positions have any foundation in the
court below should be affirmed. nature of the rights and relations of separate, equal,
Mr. Justice GRIER. and independent Governments, or in the provisions
I concur in the opinion delivered by Mr. Justice of our own Federal compact, or the laws enacted
Nelson on the questions discussed by him. under and in pursuance of the authority of that com-
pact, will be presently investigated.
I also concur with the opinion of the court as de-
livered by the Chief Justice, that the act of Con- In order correctly to comprehend the tendency and
gress of 6th March, 1820, is unconstitutional and force of those positions, it is proper here succinctly
void; and that, assuming the facts as stated in the to advert to the *470 facts upon which the questions
opinion, the plaintiff cannot sue as a citizen of Mis- of law propounded in the argument have arisen.
souri in the courts of the United States. But, that the
record shows a prima facie case of jurisdiction, re- This was an action of trespass vi et armis, instituted
quiring the court to decide all the questions prop- in the Circuit Court of the United States for the dis-
erly arising in it; and as the decision of the pleas in trict of Missouri, in the name of the plaintiff in er-
bar shows that the plaintiff is a slave, and therefore ror, a negro held as a slave, for the recovery of
not entitled to sue in a court of the United States, freedom for himself, his wife, and two children,
the form of the judgment is of little importance; for, also negroes.
whether the judgment be affirmed or dismissed for
To the declaration in this case the defendant below,
want of jurisdiction, it is justified by the decision of
who is also the defendant in error, pleaded in abate-
the court, and is the same in effect between the
ment that the court could not take cognizance of the
parties to the suit.
cause, because the plaintiff was not a citizen of the
Mr. Justice DANIEL.
State of Missouri, as averred in the declaration, but
It may with truth be affirmed, that since the estab-
was a negro of African descent, and that his ancest-
lishment of the several communities now constitut-
ors were of pure African blood, and were brought
ing the States of this Confederacy, there never has
into this country and sold as negro slaves; and
been submitted to any tribunal within its limits
hence it followed, from the second section of the
questions surpassing in importance those now
third article of the Constitution, which creates the
claiming the consideration of this court. Indeed it is
judicial power of the United States, with respect to
difficult to imagine, in connection with the systems

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controversies between citizens of different States, to the army of the United States. In that year, 1835,
that the Circuit Court could not take cognizance of said Major Taliaferro took said Harriet to said Fort
the action. Snelling, a military post situated as hereinbefore
stated, and kept her there as a slave until the year
To this plea in abatement, a demurrer having been 1836, and then sold and delivered her as a slave at
interposed on behalf of the plaintiff, it was sus- said Fort Snelling unto the said Dr. Emerson, here-
tained by the court. After the decision sustaining inbefore named. Said Dr. Emerson held said Harriet
the demurrer, the defendant, in pursuance of a pre- in slavery at said Fort Snelling until the year 1838.
vious agreement between counsel, and with the
leave of the court, pleaded in bar of the action: 1st, ‘In the year 1836, the plaintiff and said Harriet, at
not guilty; 2dly, that the plaintiff was a negro slave, said Fort Snelling, with the consent of said Dr.
the lawful property of the defendant, and as such Emerson, who then claimed to be their master and
the defendant gently laid his hands upon him, and owner, intermarried, and took each other for hus-
thereby had only restrained him, as the defendant band and wife. Eliza and Lizzie, named in the third
had a right to do; 3dly, that with respect to the wife count of the plaintiff's declaration, are the fruit of
and daughters of the plaintiff, in the second and that marriage. Eliza is about fourteen years old, and
third counts of the declaration mentioned, the de- was born on board the steamboat Gipsey, north of
fendant had, as to them, only acted in the same the north line of the State of Missouri, and upon the
manner, and in virtue of the same legal right. river Mississippi. Lizzie is about seven years old,
and was born in the State of Missouri, at a military
Issues having been joined upon the above pleas in post called Jefferson barracks.
bar, the following statement, comprising all the
evidence in the cause, was agreed upon and signed ‘In the year 1838, said Dr. Emerson removed the
by the counsel of the respective parties, viz: plaintiff and said Harriet, and their said daughter
Eliza, from said Fort Snelling to the State of Mis-
‘In the year 1834, the plaintiff was a negro slave souri, where they have ever since resided.
belonging to Doctor Emerson, who was a surgeon
in the army of the United States. In that year, 1834, ‘Before the commencement of this suit, said Dr.
said Dr. Emerson took the plaintiff from the State Emerson sold and conveyed the plaintiff, said Har-
of Missouri to the military post at Rock Island, in riet, Eliza, and Lizzie, to the defendant, as slaves,
the State of Illinois, and held him there as a slave and the defendant has ever since claimed to hold
until the month of April or May, 1836. At the time them and each of them as slaves.
last mentioned, said Dr. Emerson removed the
plaintiff from said military post at Rock Island to ‘At the times mentioned in the plaintiff's declara-
the military post at Fort Snelling, situate on the tion, the defendant, claiming to be owner as afore-
west bank of the Mississippi river, in the Territory said, laid his hands upon said plaintiff, Harriet,
known as Upper Louisiana, acquired by the United Eliza, and Lizzie, and imprisoned them, doing in
States of France, and situate north of the latitude of this respect, however, no more than what he might
thirty-six *471 degrees thirty minutes north, and lawfully do if they were of right his slaves at such
north of the State of Missouri. Said Dr. Emerson times.
held the plaintiff in slavery at said Fort Snelling,
‘Further proof may be given on the trial for either
from said last-mentioned date until the year 1838.
party.
**52 ‘In the year 1835, Harriet, who is named in
‘R. M. FIELD, for Plaintiff.
the second count of the plaintiff's declaration, was
the negro slave of Major Taliaferro, who belonged ‘H. A. GARLAND, for Defendant.

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‘It is agreed that Dred Scott brought suit for his and powers can be deduced from mere custom or
freedom in the Circuit Court of St. Louis county; tradition; not one, whose jurisdiction and powers
that there was a verdict and judgment in his favor; must not be traced palpably to, and invested exclus-
that on a writ of error to the Supreme Court, the ively by, the Constitution and statutes of the United
judgment below was reversed, and the *472 cause States; not one that is not bound, therefore, at all
remanded to the Circuit Court, where it has been times, and at all stages of its proceedings, to look to
continued to await the decision of this case. and to regard the special and declared extent and
bounds of its commission and authority. There is no
‘FIELD, for Plaintiff. such tribunal of the United States as a court of gen-
eral jurisdiction, in the sense in which that phrase
‘GARLAND, for Defendant.‘
is applied to the superior courts under the common
Upon the aforegoing agreed facts, the plaintiff law; and even with respect to the courts existing
prayed the court to instruct the jury that they ought under that system, it is a well-settled principle, that
to find for the plaintiff, and upon the refusal of the consent can never give jurisdiction.
instruction thus prayed for, the plaintiff excepted to
The principles above stated, and the consequences
the court's opinion. The court then, upon the prayer
regularly deducible from them, have, as already re-
of the defendant, instructed the jury, that upon the
marked, been repeatedly *473 and unvaryingly pro-
facts of this case agreed as above, the law was with
pounded from this bench. Beginning with the earli-
the defendant. To this opinion, also, the plaintiff's
est decisions of this court, we have the cases of
counsel excepted, as he did to the opinion of the
Bingham v. Cabot et al., (3 Dallas, 382;) Turner v.
court denying to the plaintiff a new trial after the
Eurille, (4 Dallas, 7;) Abercrombie v. Dupuis et al.,
verdict of the jury in favor of the defendant.
(1 Cranch, 343;) Wood v. Wagnon, (2 Cranch, 9;)
**53 The question first in order presented by the The United States v. The brig Union et al., (4
record in this cause, is that which arises upon the Cranch, 216;) Sullivan v. The Fulton Steamboat
plea in abatement, and the demurrer to that plea; Company, (6 Wheaton, 450;) Mollan et al. v. Tor-
and upon this question it is my opinion that the de- rence, (9 Wheaton, 537;) Brown v. Keene, (8
murrer should have been overruled, and the plea Peters, 112,) and Jackson v. Ashton, (8 Peters,
sustained. 148;) ruling, in uniform and unbroken current, the
doctrine that it is essential to the jurisdiction of the
On behalf of the plaintiff it has been urged, that by courts of the United States, that the facts upon
the pleas interposed in bar of a recovery in the court which it is founded should appear upon the record.
below, (which pleas both in fact and in law are es- Nay, to such an extent and so inflexibly has this re-
sentially the same with the objections averred in quisite to the jurisdiction been enforced, that in the
abatement,) the defence in abatement has been dis- case of Capron v. Van Noorden, (2 Cranch, 126,) it
placed or waived; that it could therefore no longer is declared, that the plaintiff in this court may as-
be relied on in the Circuit Court, and cannot claim sign for error his own omission in the pleadings in
the consideration of this court in reviewing this the court below, where they go to the jurisdiction.
cause. This position is regarded as wholly unten- This doctrine has been, if possible, more strikingly
able. On the contrary, it would seem to follow con- illustrated in a later decision, the case of The State
clusively from the peculiar character of the courts of Rhode Island v. The State of Massachusetts, in
of the United States, as organized under the Consti- the 12th of Peters.
tution and the statutes, and as defined by numerous
and unvarying adjudications from this bench, that **54 In this case, on page 718 of the volume, this
there is not one of those courts whose jurisdiction court, with reference to a motion to dismiss the

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cause for want of jurisdiction, have said: ‘However brought before any municipal court on account of
late this objection has been made, or may be made, their sovereign character or the nature of the con-
in any cause in an inferior or appellate court of the troversy; or to the very common cases which
United States, it must be considered and decided present the question, whether the cause belong to a
before any court can move one farther step in the court of law or equity. To such cases, a plea in
cause, as any movement is necessarily to exercise abatement would not be applicable, because the
the jurisdiction. Jurisdiction is the power to hear plaintiff could not sue in an inferior court. The ob-
and determine the subject-matter in controversy jection goes to a denial of any jurisdiction of a mu-
between the parties to a suit; to adjudicate or exer- nicipal court in the one class of cases, and to the
cise any judicial power over them. The question is, jurisdiction of any court of equity or of law in the
whether on the case before the court their action is other, on which last the court decides according to
judicial or extra-judicial; with or without the au- its discretion.
thority of law to render a judgment or decree upon
the rights of the litigant parties. A motion to dis- **55 ‘An objection to jurisdiction on the ground of
miss a cause pending in the courts of the United exemption from the process of the court in which
States, is not analogous to a plea to the jurisdiction the suit is brought, or the manner in which a de-
of a court of common law or equity in England; fendant is brought into it, is waived by appearance
there, the superior courts have a general jurisdiction and pleading to issue; but when the objection goes
over all persons within the realm, and all causes of to the power of the court over the parties or the sub-
action between them. It depends on the subject-mat- ject-matter, the defendant need not, for he cannot,
ter, whether the jurisdiction shall be exercised by a give the plaintiff a better writ. Where an inferior
court of law or equity; but that court to which it ap- court can have no jurisdiction of a case of law or
propriately belongs can act judicially upon the equity, the ground of objection is not taken by plea
party and the subject of the suit, unless it shall be in abatement, as an exception of the given case
made apparent to the court that the judicial determ- from the otherwise general jurisdiction of the court;
ination of the case has been withdrawn from the appearance does not cure the defect of judicial
court of general jurisdiction to an inferior and lim- power, and it may be relied on by plea, answer, de-
ited one. It is a necessary presumption that the court murrer, or at the trial or hearing. As a denial of
of general jurisdiction can act upon the given case, jurisdiction over the subject-matter of a suit
when nothing to the *474 contrary appears; hence between parties within the realm, over which and
has arisen the rule that the party claiming an ex- whom the court has power to act, cannot be suc-
emption from its process must set out the reason by cessful in an English court of general jurisdiction, a
a special plea in abatement, and show that some in- motion like the present could not be sustained con-
ferior court of law or equity has the exclusive cog- sistently with the principles of its constitution. But
nizance of the case, otherwise the superior court as this court is one of limited and special original
must proceed in virtue of its general jurisdiction. A jurisdiction, its action must be confined to the par-
motion to dismiss, therefore, cannot be entertained, ticular cases, controversies, and parties, over which
as it does not disclose a case of exception; and if a the Constitution and laws have authorized it to act;
plea in abatement is put in, it must not only make any proceeding without the limits prescribed is
out the exception, but point to the particular court coram non judice, and its action a nullity. And
to which the case belongs. There are other classes whether the want or excess of power is objected by
of cases where the objection to the jurisdiction is of a party, or is apparent *475 to the court, it must sur-
a different nature, as on a bill in chancery, that the cease its action or proceed extra-judicially.’
subject-matter is cognizable only by the King in
In the constructing of pleadings either in abatement
Council, or that the parties defendant cannot be

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or in bar, every fact or position constituting a por- as negro slaves-such being his status, and such the
tion of the public law, or of known or general his- circumstances surrounding his position-whether he
tory, is necessarily implied. Such fact or position can, by correct legal induction from that status and
need not be specially averred and set forth; it is those circumstances, be clothed with the character
what the world at large and every individual are and capacities of a citizen of the State of Missouri?
presumed to know-nay, are bound to know and to
be governed by. It may be assumed as a postulate, that to a slave, as
such, there appertains and can appertain no relation,
If, on the other hand, there exist facts or circum- civil or political, with the State or the Government.
stances by which a particular case would be with- He is himself strictly property, to be used in subser-
drawn or exempted from the influence of public law viency to the interests, the convenience, *476 or the
or necessary historical knowledge, such facts and will, of his owner; and to suppose, with respect to
circumstances form an exception to the general the former, the existence of any privilege or discre-
principle, and these must be specially set forth and tion, or of any obligation to others incompatible
established by those who would avail themselves of with the magisterial rights just defined, would be
such exception. by implication, if not directly, to deny the relation
of master and slave, since none can possess and en-
Now, the following are truths which a knowledge joy, as his own, that which another has a paramount
of the history of the world, and particularly of that right and power to withhold. Hence it follows, ne-
of our own country, compels us to know-that the cessarily, that a slave, the peculium or property of a
African negro race never have been acknowledged master, and possessing within himself no civil nor
as belonging to the family of nations; that as political rights or capacities, cannot be a CITIZEN.
amongst them there never has been known or re- For who, it may be asked, is a citizen? What do the
cognized by the inhabitants of other countries any- character and status of citizen import? Without fear
thing partaking of the character of nationality, or of contradiction, it does not import the condition of
civil or political polity; that this race has been by being private property, the subject of individual
all the nations of Europe regarded as subjects of power and ownership. Upon a principle of etymo-
capture or purchase; as subjects of commerce or logy alone, the term citizen, as derived from civitas,
traffic; and that the introduction of that race into conveys the ideas of connection or identification
every section of this country was not as members of with the State or Government, and a participation of
civil or political society, but as slaves, as property its functions. But beyond this, there is not, it is be-
in the strictest sense of the term. lieved, to be found, in the theories of writers on
Government, or in any actual experiment heretofore
**56 In the plea in abatement, the character or ca-
tried, an exposition of the term citizen, which has
pacity of citizen on the part of the plaintiff is
not been understood as conferring the actual pos-
denied; and the causes which show the absence of
session and enjoyment, or the perfect right of ac-
that character or capacity are set forth by averment.
quisition and enjoyment, of an entire equality of
The verity of those causes, according to the settled
privileges, civil and political.
rules of pleading, being admitted by the demurrer,
it only remained for the Circuit Court to decide Thus Vattel, in the preliminary chapter to his Treat-
upon their legal sufficiency to abate the plaintiff's ise on the Law of Nations, says: ‘Nations or States
action. And it now becomes the province of this are bodies politic; societies of men united together
court to determine whether the plaintiff below, (and for the purpose of promoting their mutual safety
in error here,) admitted to be a negro of African and advantage, by the joint efforts of their mutual
descent, whose ancestors were of pure African strength. Such a society has her affairs and her in-
blood, and were brought into this country and sold

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terests; she deliberates and takes resolutions in But it has been insisted, in argument, that the eman-
common; thus becoming a moral person, who pos- cipation of a slave, effected either by the direct act
sesses an understanding and a will peculiar to her- and assent of the master, or by causes operating in
self.’ Again, in the first chapter of the first book of contravention of his will, produces a change in the
the Treatise just quoted, the same writer, after re- status or capacities of the slave, such as will trans-
peating his definition of a State, proceeds to re- form him from a mere subject of property, into a
mark, that, ‘from the very design that induces a being possessing a social, civil, and political equal-
number of men to form a society, which has its ity with a citizen. In other words, will make him a
common interests and which is to act in concert, it citizen of the State within which he was, previously
is necessary that there should be established a pub- to his emancipation, a slave.
lic authority, to order and direct what is to be done
by each, in relation to the end of the association. It is difficult to conceive by what magic the mere
This political authority is the sovereignty.’ Again surcease or renunciation of an interest in a subject
this writer remarks: ‘The authority of all over each of property, by an individual possessing that in-
member essentially belongs to the body politic or terest, can alter the essential character of that prop-
the State.’ erty with respect to persons or communities uncon-
nected with such renunciation. Can it be pretended
**57 By this same writer it is also said: ‘The cit- that an individual in any State, by his single act,
izens are the members of the civil society; bound to though voluntarily or designedly performed, yet
this society by certain duties, and subject to its au- without the co-operation or warrant of the Govern-
thority; they equally participate in its advantages. ment, perhaps in opposition to its policy or its guar-
The natives, or natural-born citizens, are those born anties, can create a citizen of that State? Much
in the country, of parents who are citizens. As soci- more emphatically may it be asked, how such a res-
ety *477 cannot perpetuate itself otherwise than by ult could be accomplished by means wholly ex-
the children of the citizens, those children naturally traneous, and entirely foreign to the Government of
follow the condition of their parents, and succeed to the State? The argument thus urged must lead to
all their rights.’ Again: ‘I say, to be of the country, these extraordinary conclusions. It is regarded at
it is necessary to be born of a person who is a cit- once as wholly untenable, and as unsustained by the
izen; for if he be born there of a foreigner, it will be direct authority or by the analogies of history.
only the place of his birth, and not his country. The
inhabitants, as distinguished from citizens, are for- The institution of slavery, as it exists and has exis-
eigners who are permitted to settle and stay in the ted from the period of its introduction into the
country.’ (Vattel, Book 1, cap. 19, p. 101.) United States, though more humane and mitigated
in character than was the same institution, either
From the views here expressed, and they seem to be under the republic or the empire of Rome, bears,
unexceptionable, it must follow, that with the slave, both in its tenure and in the simplicity incident to
with one devoid of rights or capacities, civil or the *478 mode of its exercise, a closer resemblance
political, there could be no pact; that one thus situ- to Roman slavery than it does to the condition of
ated could be no party to, or actor in, the associ- villanage, as it formerly existed in England. Con-
ation of those possessing free will, power, discre- nected with the latter, there were peculiarities, from
tion. He could form no part of the design, no con- custom or positive regulation, which varied it ma-
stituent ingredient or portion of a society based terially from the slavery of the Romans, or from
upon common, that is, upon equal interests and slavery at any period within the United States.
powers. He could not at the same time be the sover-
eign and the slave. **58 But with regard to slavery amongst the Ro-
mans, it is by no means true that emancipation,

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either during the republic or the empire, conferred, into the middle class of libertini or freedmen; but
by the act itself, or implied, the status or the rights they could never be enfranchised from the duties of
of citizenship. obedience and gratitude; whatever were the fruits of
*479 their industry, their patron and his family in-
The proud title of Roman citizen, with the immunit- herited the third part, or even the whole of their for-
ies and rights incident thereto, and as contradistin- tune, if they died without children and without a
guished alike from the condition of conquered sub- testament. Justinian respected the rights of patrons,
jects or of the lower grades of native domestic res- but his indulgence removed the badge of disgrace
idents, was maintained throughout the duration of from the two inferior orders of freedmen; whoever
the republic, and until a late period of the eastern ceased to be a slave, obtained without reserve or
empire, and at last was in effect destroyed less by delay the station of a citizen; and at length the dig-
an elevation of the inferior classes than by the de- nity of an ingenuous birth was created or supposed
gradation of the free, and the previous possessors of FN1
by the omnipotence of the emperor.‘
rights and immunities civil and political, to the in-
discriminate abasement incident to absolute and FN1 Vide Gibbons's Decline and Fall of
simple despotism. the Roman Empire. London edition of
1825, vol. 3d, chap. 44, p. 183.
By the learned and elegant historian of the Decline
and Fall of the Roman Empire, we are told that ‘In **59 The above account of slavery and its modific-
the decline of the Roman empire, the proud distinc- ations will be found in strictest conformity with the
tions of the republic were gradually abolished; and Institutes of Justinian. Thus, book 1st, title 3d, it is
the reason or instinct of Justinian completed the said: ‘The first general division of persons in re-
simple form of an absolute monarchy. The emperor spect to their rights is into freemen and slaves.’ The
could not eradicate the popular reverence which al- same title, sec. 4th: ‘Slaves are born such, or be-
ways waits on the possession of hereditary wealth come so. They are born such of bondwomen; they
or the memory of famous ancestors. He delighted to become so either by the law of nations, as by cap-
honor with titles and emoluments his generals, ma- ture, or by the civil law. Section 5th: ‘In the condi-
gistrates, and senators, and his precarious indul- tion of slaves there is no diversity; but among free
gence communicated some rays of their glory to persons there are many. Thus some are ingenui or
their wives and children. But in the eye of the law freemen, others libertini or freedmen.’
all Roman citizens were equal, and all subjects of
the empire were citizens of Rome. That inestimable Tit. 4th. DE INGENUIS.-‘A freeman is one who is
character was degraded to an obsolete and empty born free by being born in matrimony, of parents
name. The voice of a Roman could no longer enact who both are free, or both freed; or of parents one
his laws, or create the annual ministers of his free and the other freed. But one born of a free
powers; his constitutional rights might have mother, although the father be a slave or unknown,
checked the arbitrary will of a master; and the bold is free.’
adventurer from Germany or Arabia was admitted
Tit. 5th. DE LIBERTINIS.-‘Freedmen are those
with equal favor to the civil and military command
who have been manumitted from just servitude.’
which the citizen alone had been once entitled to
assume over the conquests of his fathers. The first Section third of the same title states that ‘freedmen
Caesars had scrupulously guarded the distinction of were formerly distinguished by a threefold divi-
ingenuous and servile birth, which was decided by sion.’ But the emperor proceeds to say: ‘Our piety
the condition of the mother. The slaves who were leading us to reduce all things into a better state, we
liberated by a generous master immediately entered have amended our laws, and reestablished the an-

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cient usage; for anciently liberty was simple and vade and derange its most deliberate and solemn or-
undivided-that is, was conferred upon the slave as dinances. At assumptions anomalous as these, so
his manumittor possessed it, admitting this single fraught with mischief and ruin, the mind at once is
difference, that the person manumitted became only revolted, and goes directly to the conclusions, that
a freed man, although his manumittor was a free to change or to abolish a fundamental principle of
man.’ And he further declares: ‘We have made all the society, must be the act of the society itself-of
freed men in general become citizens of Rome, re- the sovereignty; and that none other can admit to a
garding neither the age of the manumitted, nor the participation of that high attribute. It may further
manumittor, nor the ancient forms of manumission. expose the character of the argument urged for the
We have also introduced many new methods by plaintiff, to point out some of the revolting con-
which slaves may become Roman citizens.’ sequences which it would authorize. If that argu-
ment possesses any integrity, it asserts the power in
By the references above given it is shown, from the any citizen, or quasi citizen, or a resident foreigner
nature and objects of civil and political associ- of any one of the States, from a motive either of
ations, and upon the direct authority of history, that corruption or caprice, not only to infract the inher-
citizenship was not conferred *480 by the simple ent and necessary authority of such State, but also
fact of emancipation, but that such a result was de- materially to interfere with the organization of the
duced therefrom in violation of the fundamental Federal Government, and with the authority of the
principles of free political association; by the exer- separate and independent States. He may emancip-
tion of despotic will to establish, under a false and ate his negro slave, by which process he first trans-
misapplied denomination, one equal and universal forms that slave into a citizen of his own State; he
slavery; and to effect this result required the exer- may next, under color of article fourth, section
tions of absolute power-of a power both in theory second, of the Constitution of the United States, ob-
and practice, being in its most plenary acceptation trude him, and on terms of civil and political equal-
the SOVEREIGNTY, THE STATE ITSELF-it ity, upon any and every State in this Union, in defi-
could not be produced by a less or inferior author- ance of all regulations of necessity or policy, or-
ity, much less by the will or the act of one who, dained by those States for their internal happiness
with reference to civil and political rights, was him- or safety. Nay, more: this manumitted slave *481
self a slave. The master might abdicate or abandon may, by a proceeding springing from the will or act
his interest or ownership in his property, but his act of his master alone, be mixed up with the institu-
would be a mere abandonment. It seems to involve tions of the Federal Government, to which he is not
an absurdity to impute to it the investiture of rights a party, and in opposition to the laws of that Gov-
which the sovereignty alone had power to impart. ernment which, in authorizing the extension by nat-
There is not perhaps a community in which slavery uralization of the rights and immunities of citizens
is recognized, in which the power of emancipation of the United States to those not originally parties
and the modes of its exercise are not regulated by to the Federal compact, have restricted that boon to
law-that is, by the sovereign authority; and none free white aliens alone. If the rights and immunities
can fail to comprehend the necessity for such regu- connected with or practiced under the institutions
lation, for the preservation of order, and even of of the United States can by any indirection be
political and social existence. claimed or deduced from sources or modes other
than the Constitution and laws of the United States,
**60 By the argument for the plaintiff in error, a
it follows that the power of naturalization vested in
power equally despotic is vested in every member
Congress is not exclusive-that it has in effect no ex-
of the association, and the most obscure or un-
istence, but is repealed or abrogated.
worthy individual it comprises may arbitrarily in-

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But it has been strangely contended that the juris- vening and controlling that power. That so far as
diction of the Circuit Court might be maintained rights and immunities appertaining to citizens have
upon the ground that the plaintiff was a resident of been defined and secured by the Constitution and
Missouri, and that, for the purpose of vesting the laws of the United States, the African race is not
court with jurisdiction over the parties, residence and never was recognized either by the language or
within the State was sufficient. purposes of the former; and it has been expressly
excluded by every act of Congress providing for the
The first, and to my mind a conclusive reply to this creation of citizens by naturalization, these laws, as
singular argument is presented in the fact, that the has already been remarked, being restricted to free
language of the Constitution restricts the jurisdic- white aliens exclusively.
tion of the courts to cases in which the parties shall
be citizens, and is entirely silent with respect to res- But it is evident that, after the formation of the Fed-
idence. A second answer to this strange and latitud- eral Government by the adoption of the Constitu-
inous notion is, that it so far stultifies the sages by tion, the highest exertion of State power would be
whom the Constitution was framed, as to impute to incompetent to bestow a character or status created
them ignorance of the material distinction existing by the Constitution, or conferred in virtue of its au-
between citizenship and mere residence or domicil, thority only. Upon those, therefore, who were not
and of the well-known facts, that a person con- originally parties to the Federal compact, or who
fessedly an alien may be permitted to reside in a are not admitted and adopted as parties thereto, in
country in which he can possess no civil or political the mode prescribed by its paramount authority, no
rights, or of which he is neither a citizen nor sub- State could have power to bestow the character or
ject; and that for certain purposes a man may have a the rights and privileges exclusively reserved by the
domicil in different countries, in no one of which he States for the action of the Federal Government by
is an actual personal resident. that compact.

**61 The correct conclusions upon the question The States, in the exercise of their political power,
here considered would seem to be these: might, with reference to their peculiar Government
and jurisdiction, guaranty the rights of person and
That in the establishment of the several communit- property, and the enjoyment of civil and political
ies now the States of this Union, and in the forma- privileges, to those whom they should be disposed
tion of the Federal Government, the African was to make the objects of their bounty; but they could
not deemed politically a person. He was regarded not reclaim or exert the powers which they had ves-
and owned in every State in the Union as property ted exclusively in the Government of the United
merely, and as such was not and could not be a States. They could not add to or change in any re-
party or an actor, much less a peer in any compact spect the class of persons to whom alone the char-
or form of government established by the States or acter of citizen of the United States appertained at
the United States. That if, since the adoption of the the time of the adoption of the Federal Constitution.
State Governments, he has been or could have been They could not create citizens of the United States
elevated to the posession of political rights or by any direct or indirect proceeding.
powers, this result could have been effected by no
authority less potent than that of the sovereignty- According to the view taken of the law, as applic-
the State-exerted *482 to that end, either in the able to the demurrer to the plea in abatement in this
form of legislation, or in some other mode of opera- cause, the questions subsequently raised upon the
tion. It could certainly never have been accom- several pleas in bar might be passed by, as requir-
plished by the will of an individual operating inde- ing neither a particular examination, nor an adjudic-
pendently of the sovereign power, and even contra- ation directly upon them. upon them. But as these

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questions are intrinsically of primary interest and that relinquishment can be enforced against the
magnitude, and have been elaborately discussed in owner of property within his own country, in defi-
argument, and as with respect to them the opinions ance of every guaranty promised by its laws; and
of a majority of the court, including my own, are this through the instrumentality of a claim to power
perfectly coincident, to me it seems proper that they entirely foreign and extraneous with reference to
should here be fully considered, and, so far as it is himself, to the origin and foundation of his title,
practicable for this court to accomplish such an and to the independent authority of his country. A
end, finally put to rest. conclusive negative answer to such an inquiry is at
once supplied, by announcing a few familiar and
**62 *483 The questions then to be considered settled principles and doctrines of public law.
upon the several pleas in bar, and upon the agreed
statement of facts between the counsel, are: 1st. Vattel, in his chapter of the general principles of
Whether the admitted master and owner of the the laws of nations, section 15th, tells us, that
plaintiff, holding him as his slave in the State of ‘nations being free and independent of each other in
Missouri, and in conformity with his rights guar- the same manner that men are naturally free and in-
antied to him by the laws of Missouri then and still dependent, the second general law of their society
in force, by carrying with him for his own benefit is, that each nation should be left in the peaceable
and accommodation, and as his own slave, the per- enjoyment of that liberty which she inherits from
son of the plaintiff into the State of Illinois, within nature.’
which State slavery had been prohibited by the
Constitution thereof, and by retaining the plaintiff ‘The natural society of nations,’ says this writer,
during the commorancy of the master within the ‘cannot subsist unless the natural rights of each be
State of Illinois, had, upon his return with his slave respected.’ In *484 section 16th he says, ‘as a con-
into the State of Missouri, forfeited his rights as sequence of that liberty and independence, it ex-
master, by reason of any supposed operation of the clusively belongs to each nation to form her own
prohibitory provision in the Constitution of Illinois, judgment of what her conscience prescribes for her-
beyond the proper territorial jurisdiction of the lat- of what it is proper or improper for her to do; and
ter State? 2d. Whether a similar removal of the of course it rests solely with her to examine and de-
plaintiff by his master from the State of Missouri, termine whether she can perform any office for an-
and his retention in service at a point included with- other nation without neglecting the duty she owes
in no State, but situated north of thirty-six degrees to herself. In all cases, therefore, in which a nation
thirty minutes of north latitude, worked a forfeiture has the right of judging what her duty requires, no
of the right of property of the master, and the ma- other nation can compel her to act in such or such a
numission of the plaintiff? particular manner, for any attempt at such compul-
sion would be an infringement on the liberty of na-
In considering the first of these questions, the acts tions.’ Again, in section 18th, of the same chapter,
or declarations of the master, as expressive of his ‘nations composed of men, and considered as so
purpose to emancipate, may be thrown out of view, many free persons living together in a state of
since none will deny the right of the owner to relin- nature, are naturally equal, and inherit from nature
quish his interest in any subject of property, at any the same obligations and rights. Power or weakness
time or in any place. The inquiry here bears no rela- does not produce any difference. A small republic
tion to acts or declarations of the owner as express- is no less a sovereign state than the most powerful
ive of his intent or purpose to make such a relin- kingdom.’
quishment; it is simply a question whether, irre-
spective of such purpose, and in opposition thereto, **63 So, in section 20: ‘A nation, then, is mistress
of her own actions, so long as they do not affect the

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proper and perfect rights of any other nation-so revolution and reform.
long as she is only internally bound, and does not
lie under any external and perfect obligation. If she With reference to this right of self-government in
makes an ill use of her liberty, she is guilty of a independent sovereign States, an opinion has been
breach of duty; but other nations are bound to ac- expressed, which, whilst it concedes this right as in-
quiesce in her conduct, since they have no right to separable from and as a necessary attribute of sov-
dictate to her. Since nations are free, independent, ereignty and independence, asserts nevertheless
and equal, and since each possesses the right of some implied and paramount authority of a sup-
judging, according to the dictates of her conscience, posed international law, to which this right of self-
what conduct she is to pursue, in order to fulfil her government must be regarded and exerted as subor-
duties, the effect of the whole is to produce, at least dinate; and from which independent and sovereign
externally, in the eyes of mankind, a perfect equal- States can be exempted only by a protest, or by
ity of rights between nations, in the administration some public and formal rejection of that authority.
of their affairs, and in the pursuit of their preten- With all respect for those by whom this opinion has
sions, without regard to the intrinsic justice of their been professed, I am constrained to regard it as ut-
conduct, of which others have no right to form a terly untenable, as palpably inconsistent, and as
definitive judgment.’ presenting in argument a complete felo de se.

Chancellor Kent, in the 1st volume of his Com- **64 Sovereignty, independence, and a perfect
mentaries, lecture 2d, after collating the opinions of right of self-government, can signify nothing less
Grotius, Heineccius, Vattel, and Rutherford, enun- than a superiority to and an exemption from all
ciates the following positions as sanctioned by claims by any extraneous power, however expressly
these and other learned publicists, viz: that ‘nations they may be asserted, and render all attempts to en-
are equal in respect to each other, and entitled to force such claims merely attempts at usurpation.
claim equal consideration for their rights, whatever Again, could such claims from extraneous sources
may be their relative dimensions or strength, or be regarded as legitimate, the effort to resist or
however greatly they may differ in government, re- evade them, by protest or denial, would be as irreg-
ligion, or manners. This perfect equality and entire ular and unmeaning as it would be futile. It could in
independence of all distinct States is a fundamental no wise affect the question of superior right. For the
principle of public law. It is a necessary con- position here combatted, no respectable authority
sequence of this equality, that each nation has a has been, and none it is thought can be adduced. It
right to govern itself as it may think proper, and no is certainly irreconcilable with the doctrines already
one nation is entitled to dictate a form of govern- cited from the writers upon public law.
ment or religion, or a course of internal *485
Neither the case of Lewis Somersett, (Howell's
policy, to another.’ This writer gives some in-
State Trials, vol. 20,) so often vaunted as the proud
stances of the violation of this great national im-
evidence of devotion to freedom under a Govern-
munity, and amongst them the constant interference
ment which has done as much perhaps to extend the
by the ancient Romans, under the pretext of settling
reign of slavery as all the world besides; nor does
disputes between their neighbors, but with the real
any decision founded upon the authority of Somer-
purpose of reducing those neighbors to bondage;
sett's case, when correctly expounded, assail or im-
the interference of Russia, Prussia, and Austria, for
pair the principle of national equality enunciated by
the dismemberment of Poland; the more recent in-
each and all of the publicists already referred to. In
vasion of Naples by Austria in 1821, and of Spain
the case of Somersett, although the applicant for the
by the French Government in 1823, under the ex-
habeas corpus and the individual claiming property
cuse of suppressing a dangerous spirit of internal
in that applicant were both subjects and residents

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*486 within the British empire, yet the decision even in a case of express contract, is seen in the
cannot be correctly understood as ruling absolutely case of Lewis v. Fullerton, decided by the Supreme
and under all circumstances against the right of Court of Virginia, and reported in the first volume
property in the claimant. That decision goes no of Randolph, p. 15. The case was this: A female
farther than to determine, that within the realm of slave, the property of a citizen of Virginia, whilst
England there was no authority to justify the deten- with her master in the State of Ohio, was taken
tion of an individual in private bondage. If the de- from his possession under a writ of habeas corpus,
cision in Somersett's case had gone beyond this and set at liberty. Soon, or immediately after, by
point, it would have presented the anomaly of a re- agreement between this slave and her master, a
peal by laws enacted for and limited in their opera- deed was executed in Ohio by the latter, containing
tion to the realm alone, of other laws and institu- a stipulation that this slave should return to Virgin-
tions established for places and subjects without the ia, and, after a service of two years in that State,
limits of the realm of England; laws and institutions should there be free. The law of Virginia *487 reg-
at that very time, and long subsequently, sanctioned ulating emancipation required that deeds of eman-
and maintained under the authority of the British cipation should, within a given time from their date,
Government, and which the full and combined ac- be recorded in the court of the county in which the
tion of the King and Parliament was required to ab- grantor resided, and declared that deeds with regard
rogate. to which this requisite was not complied with
should be void. Lewis, an infant son of this female,
But could the decision in Somersett's case be cor- under the rules prescribed in such cases, brought an
rectly interpreted as ruling the doctrine which it has action, in forma pauperis, in one of the courts of
been attempted to deduce from it, still that doctrine Virginia, for the recovery of his freedom, claimed
must be considered as having been overruled by the in virtue of the transactions above mentioned. Upon
lucid and able opinion of Lord Stowell in the more an appeal to the Supreme Court from a judgment
recent case of the slave Grace, reported in the against the plaintiff, Roane, Justice, in delivering
second volume of Haggard, p. 94; in which opinion, the opinion of the court, after disposing of other
whilst it is conceded by the learned judge that there questions discussed in that case, remarks:
existed no power to coerce the slave whilst in Eng-
land, that yet, upon her return to the island of Anti- ‘As to the deed of emancipation contained in the re-
gua, her status as a slave was revived, or, rather, cord, that deed, taken in connection with the evid-
that the title of the owner to the slave as property ence offered in support of it, shows that it had a ref-
had never been extinguished, but had always exis- erence to the State of Virginia; and the testimony
ted in that island. If the principle of this decision be shows that it formed a part of this contract,
applicable as between different portions of one and whereby the slave Milly was to be brought back (as
the same empire, with how much more force does it she was brought back) into the State of Virginia.
apply as between nations or Governments entirely Her object was therefore to secure her freedom by
separate, and absolutely independent of each other? the deed within the State of Virginia, after the time
For in this precise attitude the States of this Union should have expired for which she had indented
stand with reference to this subject, and with refer- herself, and when she should be found abiding
ence to the tenure of every description of property within the State of Virginia.
vested under their laws and held within their territ-
orial jurisdiction. ‘If, then, this contract had an eye to the State of
Virginia for its operation and effect, the lex loci
**65 A strong illustration of the principle ruled by ceases to operate. In that case it must, to have its ef-
Lord Stowell, and of the effect of that principle fect, conform to the laws of Virginia. It is insuffi-

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cient under those laws to effectuate an emancipa- integrity, whatever effect might be ascribed to the
tion, for what of a due recording in the county prohibition within the limits defined by its lan-
court, as was decided in the case of Givens v. guage.
Mann, in this court. It is also ineffectual within the
Commonwealth of Virginia for another reason. The But, beyond and in defiance of this conclusion, in-
lex loci is also to be taken subject to the exception, evitable and undeniable as it appears, upon every
that it is not to be enforced in another country, principle of justice or sound induction, it has been
when it violates some moral duty or the policy of attempted to convert this prohibitory provision of
that country, or is not consistent with a positive the act of 1820 not only into a weapon with which
right secured to a third person or party by the laws to assail the inherent-the necessarily inherent-
of that country in which it is sought to be enforced. powers of independent sovereign Governments, but
In such a case we are told, ‘ magis jus nostrum, into a mean of forfeiting that equality of rights and
quam jus alienum servemus.’' (Huberus, tom. 2, lib. immunities which are the birthright or the donative
1, tit. 3; 2 Fontblanque, p. 444.) ‘That third party in from the Constitution of every citizen of the United
this instance is the Commonwealth of Virginia, and States within the length and breadth of the nation.
her policy and interests are also to be attended to. In this attempt, there is asserted a power in Con-
These turn the scale against the lex loci in the gress, whether from incentives of interest, ignor-
present instance.’ ance, faction, partiality, or prejudice, to bestow
upon a portion of the citizens of this nation that
**66 The second or last-mentioned position as- which is the common property and privilege of all-
sumed for the plaintiff under the pleas in bar, as it the power, in fine, of confiscation, in retribution for
rests mainly if not solely upon the provision of the no offence, or, if for an offence, for that of acci-
act of Congress of March 6, 1820, prohibiting dental locality only.
slavery in Upper Louisiana north of thirty-six de-
grees thirty minutes north latitude, popularly called It may be that, with respect to future cases, like the
the Missouri Compromise, that assumption renews one now before the court, there is felt an assurance
the question, formerly so *488 zealously debated, of the impotence of such a pretension; still, the
as to the validity of the provision in the act of Con- fullest conviction of that result can impart to it no
gress, and upon the constitutional competency of claim to forbearance, nor disperse with the duty of
Congress to establish it. antipathy and disgust at its sinister aspect, whenev-
er it may be seen to scowl upon the justice, the or-
Before proceeding, however, to examine the valid- der, the tranquillity, and fraternal feeling, which are
ity of the prohibitory provision of the law, it may, the surest, nay, the only means, of promoting or
so far as the rights involved in this cause are con- preserving the happiness and prosperity of the na-
cerned, be remarked, that conceding to that provi- tion, and which were the great and efficient incent-
sion the validity of a legitimate exercise of power, ives to the formation of this Government.
still this concession could by no rational interpreta-
tion imply the slightest authority for its operation The power of Congress to impose the prohibition in
beyond the territorial limits comprised within its the eighth section of the act of 1820 has been ad-
terms; much less could there be inferred from it a vocated upon an attempted construction of the
power to destroy or in any degree to control rights, second clause of the third section *489 of the fourth
either of person or property, entirely within the article of the Constitution, which declares that
bounds of a distinct and independent sovereignty- ‘Congress shall have power to dispose of and to
rights invested and fortified by the guaranty of that make all needful rules and regulations respecting
sovereignty. These surely would remain in all their the territory and other property belonging to the
United States.’

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**67 In the discussions in both houses of Congress, a fraud, appropriate the subject of the trust to any
at the time of adopting this eighth section of the act other beneficiary or cestui que trust than the United
of 1820, great weight was given to the peculiar lan- States, or to the people of the United States, upon
guage of this clause, viz: territory and other prop- equal grounds, legal or equitable. Congress could
erty belonging to the United States, as going to not appropriate that subject to any one class or por-
show that the power of disposing of and regulating, tion of the people, to the exclusion of others, polit-
thereby vested in Congress, was restricted to a pro- ically and constitutionally equals; but every citizen
prietary interest in the territory or land comprised would, if any one *490 could claim it, have the like
therein, and did not extend to the personal or polit- rights of purchase, settlement, occupation, or any
ical rights of citizens or settlers, inasmuch as this other right, in the national territory.
phrase in the Constitution, ‘territory or other prop-
erty,’ identified territory with property, and inas- Nothing can be more conclusive to show the equal-
much as citizens or persons could not be property, ity of this with every other right in all the citizens
and especially were not property belonging to the of the United States, and the iniquity and absurdity
United States. And upon every principle of reason of the pretension to exclude or to disfranchise a
or necessity, this power to dispose of and to regu- portion of them because they are the owners of
late the territory of the nation could be designed to slaves, than the fact that the same instrument,
extend no farther than to its preservation and appro- which imparts to Congress its very existence and its
priation to the uses of those to whom it belonged, every function, guaranties to the slaveholder the
viz: the nation. Scarcely anything more illogical or title to his property, and gives him the right to its
extravagant can be imagined than the attempt to de- reclamation throughout the entire extent of the na-
duce from this provision in the Constitution a tion; and, farther, that the only private property
power to destroy or in any wise to impair the civil which the Constitution has specifically recognized,
and political rights of the citizens of the United and has imposed it as a direct obligation both on the
States, and much more so the power to establish in- States and the Federal Government to protect and
equalities amongst those citizens by creating priv- enforce, is the property of the master in his slave;
ileges in one class of those citizens, and by the dis- no other right of property is placed by the Constitu-
franchisement of other portions or classes, by de- tion upon the same high ground, nor shielded by a
grading them from the position they previously oc- similar guaranty.
cupied.
**68 Can there be imputed to the sages and patriots
There can exist no rational or natural connection or by whom the Constitution was framed, or can there
affinity between a pretension like this and the be detected in the text of that Constitution, or in
power vested by the Constitution in Congress with any rational construction or implication deducible
regard to the Territories; on the contrary, there is an therefrom, a contradiction so palpable as would ex-
absolute incongruity between them. ist between a pledge to the slaveholder of an equal-
ity with his fellow-citizens, and of the formal and
But whatever the power vested in Congress, and solemn assurance for the security and enjoyment of
whatever the precise subject to which that power his property, and a warrant given, as it were uno
extended, it is clear that the power related to a sub- flatu, to another, to rob him of that property, or to
ject appertaining to the United States, and one to be subject him to proscription and disfranchisement
disposed of and regulated for the benefit and under for possessing or for endeavoring to retain it? The
the authority of the United States. Congress was injustice and extravagance necessarily implied in a
made simply the agent or trustee for the United supposition like this, cannot be rationally imputed
States, and could not, without a breach of trust and to the patriotic or the honest, or to those who were

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merely sane. With respect to the power of the convention to im-


pose this inhibition, it seems to be pertinent in this
A conclusion in favor of the prohibitory power in place to recur to the opinion of one cotemporary
Congress, as asserted in the eighth section of the act with the establishment of the Government, and
of 1820, has been attempted, as deducible from the whose distinguished services in the formation and
precedent of the ordinance of the convention of adoption of our national charter, point him out as
1787, concerning the cession by Virginia of the ter- the artifex maximus of our Federal system. James
ritory northwest of the Ohio; the provision in which Madison, in the year 1819, speaking with reference
ordinance, relative to slavery, it has been attempted to the prohibitory power claimed by Congress, then
to impose upon other and subsequently-acquired threatening the very existence of the Union, re-
territory. marks of the language of the second clause of the
third section of article fourth of the Constitution,
The first circumstance which, in the consideration
‘that it cannot be well extended beyond a power
of this provision, impresses itself upon my mind, is
over the territory as property, and the power to
its utter futility and want of authority. This court
make provisions really needful or necessary for the
has, in repeated instances, ruled, that whatever may
government of settlers, until ripe for admission into
have been the force accorded to this ordinance of
the Union.’
1787 at the period of its enactment, its authority
and effect ceased, and yielded to the paramount au- **69 Again he says, ‘with respect to what has taken
thority of the Constitution, from the period of the place in the Northwest territory, it may be observed
adoption of the latter. Such is the principle ruled in that the ordinance giving it is distinctive character
the cases of Pollard's Lessee v. Hagan, (3 How., on the subject of slaveholding proceeded from the
212,) Parmoli v. The First *491Municipality of old Congress, acting with the best intentions, but
New Orleans, (3 How., 589,) Strader v. Graham, under a charter which contains no shadow of the
(16 How., 82.) But apart from the superior control authority exercised; and it remains to be decided
of the Constitution, and anterior to the adoption of how far the States formed within that territory, and
that instrument, it is obvious that the inhibition in admitted into the Union, are on a different footing
question never had and never could have any legit- from its other members as to their legislative sover-
imate and binding force. We may seek in vain for eignty. As to the power of admitting new States in-
any power in the convention, either to require or to to the Federal compact, the questions offering
accept a condition or restriction upon the cession themselves are, whether Congress can attach condi-
like that insisted on; a condition inconsistent with, tions, or the new States concur in conditions, which
and destructive of, the object of the grant. The ces- after admission would abridge or enlarge the con-
sion was, as recommended by the old Congress in stitutional rights of legislation common to other
1780, made originally and completed in terms to States; whether Congress can, by a compact *492
the United States, and for the benefit of the United with a new State, take power either to or from it-
States, i. e., for the people, all the people, of the self, or place the new member above or below the
United States. The condition subsequently sought to equal rank and rights possessed by the others;
be annexed in 1787, (declared, too, to be perpetual whether all such stipulations expressed or implied
and immutable,) being contradictory to the terms would not be nullities, and be so pronounced when
and destructive of the purposes of the cession, and brought to a practical test. It falls within the scope
after the cession was consummated, and the powers of your inquiry to state the fact, that there was a
of the ceding party terminated, and the rights of the proposition in the convention to discriminate
grantees, the people of the United States, vested, between the old and the new States by an article in
must necessarily, so far, have been ab initio void. the Constitution. The proposition, happily, was re-

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jected. The effect of such a discrimination is suffi- of the controversy should retain and decide it, yet,
FN2
ciently evident.’ as in this case there had *493 been no plea, either
of a former judgment or of autre action pendent, it
FN2 Letter from James Madison to Robert was thought that the fact of a prior decision,
Walsh, November 27th, 1819, on the sub- however conclusive it might have been if regularly
ject of the Missouri Compromise. pleaded, could not be incidentally taken into view.
Mr. Justice CAMPBELL.
In support of the ordinance of 1787, there may be
I concur in the judgment pronounced by the Chief
adduced the semblance at least of obligation de-
Justice, but the importance of the cause, the expect-
ductible from compact, the form of assent or agree-
ation and interest it has awakened, and the respons-
ment between the grantor and grantee; but this form
ibility involved in its determination, induce me to
or similitude, as is justly remarked by Mr. Madison,
file a separate opinion.
is rendered null by the absence of power or author-
ity in the contracting parties, and by the more in- The case shows that the plaintiff, in the year 1834,
trinsic and essential defect of incompatibility with was a negro slave in Missouri, the property of Dr.
the rights and avowed purposes of those parties, Emerson, a surgeon in the army of the United
and with their relative duties and obligations to oth- States. In 1834, his master took him to the military
ers. If, then, with the attendant formalities of assent station at Rock Island, on the border of Illinois, and
or compact, the restrictive power claimed was void in 1836 to Fort Snelling, in the present Minnesota,
as to the immediate subject of the ordinance, how then Wisconsin, Territory. While at Fort Snelling,
much more unfounded must be the pretension to the plaintiff married a slave who was there with her
such a power as derived from that source, (viz: the master, and two children have been born of this
ordinance of 1787,) with respect to territory ac- connection; one during the journey of the family in
quired by purchase or conquest under the supreme returning to Missouri, and the other after their re-
authority of the Constitution-territory not the sub- turn to that State.
ject of mere donation, but obtained in the name of
all, by the combined efforts and resources of all, Since 1838, the plaintiff and the members of his
and with no condition annexed or pretended. family have been in Missouri in the condition of
slaves. The object of this suit is to establish their
In conclusion, my opinion is, that the decision of freedom. The defendant, who claims the plaintiff
the Circuit Court, upon the law arising upon the and his family, under the title of Dr. Emerson,
several pleas in bar, is correct, but that it is erro- denied the jurisdiction of the Circuit Court, by the
neous in having sustained the demurrer to the plea plea that the plaintiff was a negro of African blood,
in abatement of the jurisdiction; that for this error the descendant of Africans who had been imported
the decision of the Circuit Court should be re- and sold in this country as slaves, and thus he had
versed, and the cause remanded to that court, with no capacity as a citizen of Missouri to maintain a
instructions to abate the action, for the reason set suit in the Circuit Court. The court sustained a de-
forth and pleaded in the plea in abatement. murrer to this plea, a trial was then had upon the
general issue, and special pleas to the effect that the
**70 In the aforegoing examination of this cause,
plaintiff and his family were slaves belonging to the
the circumstance that the questions involved therein
defendant.
had been previously adjudged between these parties
by the court of the State of Missouri, has not been My opinion in this case is not affected by the plea
adverted to; for although it has been ruled by this to the jurisdiction, and I shall not discuss the ques-
court, that in instances of concurrent jurisdiction, tions it suggests. The claim of the plaintiff to free-
the court first obtaining possession or cognizance dom depends upon the effect to be given to his ab-

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sence from Missouri, in company with his master, 193.)


in Illinois and Minnesota, and this effect is to be as-
certained by a reference to the laws of Missouri. The result of these discussions is, that in general,
For the trespass complained of was committed upon the Status, or civil and political capacity of a per-
one claiming to be a freeman and a citizen, in that son, is determined, in the first instance, by the law
State, and who had been living for years under the of the domicil where he is born; that the legal effect
dominion of its laws. And the rule is, that whatever on persons, arising from the operation of the law of
is a justification where the thing is done, must be a that domicil, is not indelible, but that a new capa-
justification in the forum where the case is tried. city or status may be acquired by a change of domi-
(20 How. St. Tri., 234; Cowp. S. C., 161.) cil. That questions of status are closely connected
with considerations arising out of the social and
**71 The Constitution of Missouri recognizes political organization of the State where they ori-
slavery as a legal condition, extends guaranties to ginate, and each sovereign power must deter mine
the masters of slaves, and invites *494 immigrants them within its own territories.
to introduce them, as property, by a promise of pro-
tection. The laws of the State charge the master A large class of cases has been decided upon the
with the custody of the slave, and provide for the second of the propositions above stated, in the
maintenance and security of their relation. Southern and Western courts-cases in which the
law of the actual domicil was adjudged to have
The Federal Constitution and the acts of Congress altered the native condition and status of the slave,
provide for the return of escaping slaves within the although he had never actually possessed the status
limits of the Union. No removal of the slave bey- of freedom in that domicil. (Rankin v. Lydia, 2 A.
ond the limits of the State, against the consent of K. M.; Herny v. Decker, Walk., 36; 4 Mart., 385; 1
the master, nor residence there in another condition, Misso., 472; Hunter v. Fulcher, 1 Leigh.)
would be regarded as an effective manumission by
the courts of Missouri, upon his return to the State. I do not impugn the authority of these cases. No
‘Sicut liberis captis status restituitur sic servus evidence is found in the record to establish the ex-
domino.’ Nor can the master emancipate the slave istence of a domicil *495 acquired by the master
within the State, except through the agency of a and slave, either in Illinois or Minnesota. The mas-
public authority. The inquiry arises, whether the ter is described as an officer of the army, who was
manumission of the slave is effected by his remov- transferred from one station to another, along the
al, with the consent of the master, to a community Western frontier, in the line of his duty, and who,
where the law of slavery does not exist, in a case after performing the usual tours of service, returned
where neither the master nor slave discloses a pur- to Missouri; these slaves returned to Missouri with
pose to remain permanently, and where both parties him, and had been there for near fifteen years, in
have continued to maintain their existing relations. that condition, when this suit was instituted. But ab-
What is the law of Missouri in such a case? Similar sence, in the performance of military duty, without
inquiries have arisen in a great number of suits, and more, is a fact of no importance in determining a
the discussions in the State courts have relieved the question of a change of domicil. Questions of that
subject of much of its difficulty. (12 B. M. Ky. R., kind depend upon acts and intentions, and are as-
545; Foster v. Foster, 10 Gratt. Va. R., 485; 4 Har. certained from motives, pursuits, the condition of
and McH. Md. R., 295; Scott v. Emerson, 15 the family, and fortune of the party, and no change
Misso., 576; 4 Rich. S. C. R., 186; 17 Misso., 434; will be inferred, unless evidence shows that one
15 Misso., 596; 5 B. M., 173; 8 B. M., 540, 633; 9 domicil was abandoned, and there was an intention
B. M., 565; 5 Leigh, 614; 1 Raud., 15; 18 Pick., to acquire another. (11 L. and Eq., 6; 6 Exch., 217;
6 M. and W., 511; 2 Curt. Ecc. R., 368.)

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**72 The cases first cited deny the authority of a ancient times among them.’ Without referring for
foreign law to dissolve relations which have been precedents abroad, or to the colonial history, for
legally contracted in the State where the parties are, similar instances, the history of the Confederation
and have their actual domicil-relations which were and Union affords evidence to attest the existence
never questioned during their absence from that of this ancient law. In 1783, Congress directed
State-relations which are consistent with the native General Washington to continue his remonstrances
capacity and condition of the respective parties, and to the commander of the British forces respecting
with the policy of the State where they reside; but the permitting negroes belonging to the citizens of
which relations were inconsistent with the policy or these States to leave New York, and to insist upon
laws of the State or Territory within which they had the discontinuance of that measure. In 1788, the
been for a time, and from which they had returned, resident minister of the United States at Madrid was
with these relations undisturbed. It is upon the as- instructed to obtain from the Spanish Crown orders
sumption, that the law of Illinois or Minnesota was to its Governors in Louisiana and Florida, ‘to per-
indelibly impressed upon the slave, and its con- mit and facilitate the apprehension of fugitive
sequences carried into Missouri, that the claim of slaves from the States, promising that the States
the plaintiff depends. The importance of the case would observe the like conduct respecting fugitives
entitles the doctrine on which it rests to a careful from Spanish subjects.’ The committee that made
examination. the report of this resolution consisted of Hamilton,
Madison, and Sedgwick, (2 Hamilton's Works,
It will be conceded, that in countries where no law 473;) and the clause in the Federal Constitution
or regulation prevails, opposed to the existence and providing for the restoration of fugitive slaves is a
consequences of slavery, persons who are born in recognition of this ancient right, and of the prin-
that condition in a foreign State would not be liber- ciple that a change of place does not effect a change
ated by the accident of their introgression. The rela- of condition. The diminution of the power of a mas-
tion of domestic slavery is recognized in the law of ter to reclaim his escaping bondsman in Europe
nations, and the interference of the authorities of commenced in the enactment of laws of prescrip-
one State with the rights of a master belonging to tion in favor of privileged communes. Bremen,
another, without a valid cause, is a violation of that Spire, Worms, Vienna, and Ratisbon, in Germany;
law. (Wheat. Law of Na., 724; 5 Stats. at Large, Carcassonne, Béziers, Toulouse, and Paris, in
601; Calh. Sp., 378; Reports of the Com. U. S. and France, acquired privileges on this subject at an
G. B., 187, 238, 241.) early period. The ordinance of William the Con-
queror, that a residence of any of the servile popu-
The public law of Europe formerly permitted a
lation of England, for a year and a day, without be-
master to reclaim his bondsman, within a limited
ing claimed, in any city, burgh, walled town, or
period, wherever he could find him, and one of the
castle of the King, should entitle them to perpetual
capitularies of Charlemagne abolishes the rule of
liberty, is a specimen of these laws.
prescription. He directs, ‘that wheresoever, within
the bounds of Italy, either the runaway slave of the **73 The earliest publicist who has discussed this
king, or of *496 the church, or of any other man, subject is Bodin, a jurist of the sixteenth century,
shall be found by his master, he shall be restored whose work was quoted in the early discussions of
without any bar or prescription of years; yet upon the courts in France and England on this subject.
the provision that the master be a Frank or German, He says: ‘In France, although there be some re-
or of any other nation (foreign;) but if he be a Lom- membrance of old servitude, yet it is not lawful
bard or a Roman, he shall acquire or receive his here to make a slave or to buy any one of others, in-
slaves by that law which has been established from somuch as the slaves of strangers, so soon as they

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set their foot within France, become frank and free, duced into France, and which had been disregarded
as was determined by an old decree of the court of by the master.
Paris against an ambassador of Spain, who had
brought a slave with him into France.’ He states an- The case of Somersett was that of a Virginia slave
other case, which arose in the city of Toulouse, of a carried to England by his master in 1770, and who
Genoese merchant, who had *497 carried a slave remained there two years. For some cause, he was
into that city on his voyage from Spain; and when confined on a vessel destined to Jamaica, where he
the matter was brought before the magistrates, the was to be sold. Lord Mansfield, upon a return to a
‘procureur of the city, out of the records, showed habeas corpus, states the question involved. ‘Here,
certain ancient privileges given unto them of the person of the slave himself,’ he says, ‘is the im-
Tholouse, wherein it was granted that slaves, so mediate subject of inquiry, Can any dominion, au-
soon as they should come into Tholouse, should be thority, or coercion, be exercised in this country,
free.’ These cases were cited with much approba- according to the American laws?’ He answers: ‘The
tion in the discussion of the claims of the West In- difficulty of adopting the relation, without adopting
dia slaves of Verdelin for freedom, in 1738, before it in all its consequences, is indeed extreme, and yet
the judges in admiralty, (15Causes Celébrés, p. 1; 2 many of those consequences are absolutely contrary
Masse Droit Com., sec. 58,) and were reproduced to the municipal law of England.’ Again, he says:
before Lord Mansfield, in the cause of Somersett, ‘The return states that the slave departed, and re-
in 1772. Of the cases cited by Bodin, it is to be ob- fused to serve; whereupon, he was kept to be sold
served that Charles V of France exempted all the abroad.’ ‘So high *498 an act of dominion must be
inhabitants of Paris from serfdom, or other feudal recognized by the law of the country where it is
incapacities, in 1371, and this was confirmed by used. The power of the master over his slave has
several of his successors, (3 Dulaire Hist. de Par., been extremely different in different countries.’
546; Broud. Cout. de Par., 21,) and the ordinance of ‘The state of slavery is of such a nature, that it is
Toulouse is preserved as follows: ‘ Civitas incapable of being introduced on any reasons, mor-
Tholosana fuit et erit sine fine libera, adeo ut servi al or political, but only by positive law, which pre-
et ancillae, sclavi et sclavae, dominos sive dominas serves its force long after the reasons, occasion, and
habentes, cum rebus vel sine rebus suis, ad time itself, from whence it was created, are erased
Tholosam vel infraà terminos extra urbem termin- from the memory. It is so odious, that nothing can
atos accedentes acquirant libertatem.’ (Hist. de be suffered to support it but positive law.’ That
Langue, tome 3, p. 69; Ibid. 6, p. 8; Loysel Inst., b. there is a difference in the systems of States, which
1, sec. 6.) recognize and which do not recognize the institu-
tion of slavery, cannot be disguised. Constitutional
The decisions were made upon special ordinances, law, punitive law, police, domestic economy, in-
or charters, which contained positive prohibitions dustrial pursuits, and amusements, the modes of
of slavery, and where liberty had been granted as a thinking and of belief of the population of the re-
privilege; and the history of Paris furnishes but spective communities, all show the profound influ-
little support for the boast that she was a ‘ sacro ence exerted upon society by this single arrange-
sancta civitas,’ where liberty always had an ment. This influence was discovered in the Federal
asylum, or for the ‘self-complacent rhapsodies' of Convention, in the deliberations on the plan of the
the French advocates in the case of Verdelin, which Constitution. Mr. Madison observed, ‘that the
amused the grave lawyers who argued the case of States were divided into different interests, not by
Somersett. The case of Verdelin was decided upon their difference of size, but by other different in-
a special ordinance, which prescribed the condi- terests, not by their difference of size, but by other
tions on which West India slaves might be intro- circumstances; the most material of which resulted

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partly from climate, but principally from the the ef- now in a state of servitude, gradually and upon
fects of their having or not having slaves. These reasonable conditions, would be the means of in-
two causes concur in forming the great division of creasing the number of colliers, coal-heavers, and
interests in the United States.’ salters, to the great benefit of the public, without
doing any injury to the present masters, and would
**74 The question to be raised with the opinion of remove the reproach of allowing such a state of ser-
Lord Mansfield, therefore, is not in respect to the vitude to exist in a free country,’ &c.; and again, in
incongruity of the two systems, but whether slavery 1799, ‘they declare that many colliers and coal-
was absolutely contrary to the law of England; for heavers still continue in a state of bondage.’ No
if it was so, clearly, the American laws could not statute, from the Conquest till the 15 George III,
operate there. Historical research ascertains that at had been passed upon the subject of personal
the date of the Conquest the rural population of slavery. These facts have led the most eminent ci-
England were generally in a servile condition, and vilian of England to question the accuracy of this
under various names, denoting slight variances in judgment, and to insinuate that in this judgment the
condition, they were sold with the land like cattle, offence of ampliare jurisdictionem by private au-
and were a part of its living money. Traces of the thority was committed by the eminent magistrate
existence of African slaves are to be found in the who pronounced it.
early chronicles. Parliament in the time of Richard
II, and also of Henry VIII, refused to adopt a gener- This sentence is distinguishable from those cited
al law of emancipation. Acts of emancipation by from the French courts in this: that there positive
the last-named monarch and by Elizabeth are pre- prohibitions existed against slavery, and the right to
served. freedom was conferred on the immigrant slave by
positive law; whereas here the consequences of
The African slave trade had been carried on, under slavery merely-that is, the public policy-were found
the unbounded protection of the Crown, for near to be contrary to the law of slavery. The case of the
two centuries, when the case of Somersett was slave Grace, (2 Hagg.,) with four others, came be-
heard, and no motion for its suppression had ever fore Lord Stowell in 1827, by appeals from the
been submitted to Parliament; while it was forced West India vice admiralty courts. They were cases
upon and maintained in unwilling colonies by the of slaves who had returned to those islands, after a
Parliament and Crown of England at that moment. residence in Great Britain, and where the claim to
Fifteen thousand negro slaves were then living in freedom was first presented in the colonial forum.
that island, where they had been introduced under The learned judge in that case said: ‘This suit fails
the counsel of the most illustrious jurists of the in its foundation. She (Grace) was not a free per-
realm, and such slaves had been publicly *499 sold son; no injury is done her by her continuance in
for near a century in the markets of London. In the slavery, and she has no pretensions to any other sta-
northern part of the kingdom of Great Britain there tion than that which was enjoyed by every slave of
existed a class of from 30,000 to 40,000 persons, of a family. If she depends upon such freedom con-
whom the Parliament said, in 1775, (15 George III, veyed by a mere residence in England, she com-
chap. 28,) ‘many colliers, coal-heavers, and salters, plains of a violation of right which she possessed
are in a state of slavery or bondage, bound to the no longer than whilst she resided in England, but
collieries and salt works, where they work for life, which totally expired when that residence ceased,
transferable with the collieries and salt works when and she was imported into Antigua.’
their original masters have no use for them; and
whereas the emancipating or setting free the colli- **75 The decision of Lord Mansfield was, ‘that so
ers, coal-heavers, and salters, in Scotland, who are high an act of dominion’ as the master exercises

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over his slave, in sending him abroad for sale, Territories which distinguishes them from States,
could not be exercised in England *500 under the and subjects them to a control more extended. The
American laws, and contrary to the spirit of their third section of the fourth article of the Constitution
own. is referred to as the only and all-sufficient grant to
support this claim. It is, that ‘new States may be ad-
The decision of Lord Stowell is, that the authority mitted by the Congress to this Union; but no new
of the English laws terminated when the slave de- State shall be formed or erected within the jurisdic-
parted from England. That the laws of England tion of any other State, nor any State be formed by
were not imported into Antigua, with the slave, the junction of two or more States, or parts of State,
upon her return, and that the colonial forum had no without the consent of the Legislatures of the States
warrant for applying a foreign code to dissolve rela- concerned, as well as of the Congress. The Con-
tions which had existed between persons belonging gress shall have power to dispose of and make all
to that island, and which were legal according to its needful rules and regulations respecting the territ-
own system. There is no distinguishable difference ory or other property *501 belonging to the United
between the case before us and that determined in States; and nothing in this Constitution shall be so
the admiralty of Great Britain. construed as to prejudice any claims of the United
States, or of any particular State.’
The complaint here, in my opinion, amounts to this:
that the judicial tribunals of Missouri have not de- **76 It is conceded, in the decisions of this court,
nounced as odious the Constitution and laws under that Congress may secure the rights of the United
which they are organized, and have not superseded States in the public domain, provide for the sale or
them on their own private authority, for the purpose lease of any part of it, and establish the validity of
of applying the laws of Illinois, or those passed by the titles of the purchasers, and may organize Ter-
Congress for Minnesota, in their stead. The eighth ritorial Governments, with powers of legislation. (
section of the act of Congress of the 6th of March, 3 How., 212; 12 How., 1; 1 Pet., 511; 13 P., 436; 16
1820, (3 Statutes at Large, 545,) entitled, ‘An act to H., 164.)
authorize the people of Missouri to form a State
Government,’ &c., & c., is referred to, as affording But the recognition of a plenary power in Congress
the authority to this court to pronounce the sentence to dispose of the public domain, or to organize a
which the Supreme Court of Missouri felt them- Government over it, does not imply a correspond-
selves constrained to refuse. That section of the act ing authority to determine the internal polity, or to
prohibits slavery in the district of country west of adjust the domestic relations, or the persons who
the Mississippi, north of thirty-six degrees thirty may lawfully inhabit the territory in which it is situ-
minutes north latitude, which belonged to the an- ated. A supreme power to make needful rules re-
cient province of Louisiana, not included in Mis- specting the public domain, and a similar power of
souri. framing laws to operate upon persons and things
within the territorial limits where it lies, are distin-
It is a settled doctrine of this court, that the Federal guished by broad lines of demarcation in American
Government can exercise no power over the subject history. This court has assisted us to define them. In
of slavery within the States, nor control the inter- Johnson v. McIntosh, (8 Wheat., 595-543,) they
migration of slaves, other than fugitives, among the say: ‘According to the theory of the British Consti-
States. Nor can that Government affect the duration tution, all vacant lands are vested in the Crown; and
of slavery within the States, other than by a legisla- the exclusive power to grant them is admitted to
tion over the foreign slave trade. The power of reside in the Crown, as a branch of the royal
Congress to adopt the section of the act above cited prerogative.
must therefore depend upon some condition of the

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‘All the lands we hold were originally granted by Chase, ‘a declaration that the United Colonies
the Crown, and the establishment of a royal Gov- jointly, in a collective capacity, were independent
ernment has never been considered as impairing its States, &c., &c., &c., but that each of them was a
right to grant lands within the chartered limits of sovereign and independent State; that is, that each
such colony.‘ of them had a right to govern itself by its own au-
thority and its own laws, without any control from
And the British Parliament did claim a supremacy any other power on earth.‘ (3 Dall., 199; 4 Cr.,
of legislation coextensive with the absoluteness of 212.)
the dominion of the sovereign over the Crown
lands. The American doctrine, to the contrary, is These sovereign and independent States, being
embodied in two brief resolutions of the people of united as a Confederation, by various public acts of
Pennsylvania, in 1774: 1st. ‘That the inhabitants of cession, became jointly interested in territory, and
these colonies are entitled to the same rights and concerned to dispose of and make all needful rules
liberties, within the colonies, that the subjects born and regulations respecting it. It is a conclusion not
in England are entitled within the realm.‘ 2d. ‘That open to discussion in this court, ‘that there was no
the power assumed by Parliament to bind the territory within the (original) United States, that
people of these colonies by statutes, in all cases was claimed by them in any other right than that of
whatever, is unconstitutional, and therefore the some of the confederate States.‘ (Harcourt v. Gail-
source of these unhappy difficulties.‘ The Congress lord, 12 Wh., 523.) ‘The question whether the va-
of 1774, in their statement of rights and grievances, cant lands within the United States,‘ says Chief
affirm ‘a free and exclusive power of legislation‘ in Justice Marshall, ‘became joint property, or be-
their several Provincial Legislatures, ‘in all cases of longed to the separate States, was a momentous
taxation and internal polity, subject only to the neg- question, which threatened to shake the American
ative of their sovereign, in such manner as has been Confederacy to its foundations. This important and
heretofore used and accustomed.‘ (1 Jour. Cong., dangerous question has been compromised, and the
32.) compromise is not now to be contested. ‘ (6 C. R.,
87.)
The unanimous consent of the people of the colon-
ies, then, *502 to the power of their sovereign, ‘to The cessions of the States to the Confederation
dispose of and make all needful rules and regula- were made on the condition that the territory ceded
tions respecting the territory‘ of the Crown, in should be laid out and formed into distinct republic-
1774, was deemed by them as entirely consistent an States, which should be admitted as members to
with opposition, remonstrance, the renunciation of the Federal Union, having the same rights of sover-
allegiance, and proclamation of civil war, in prefer- eignty, freedom, and independence, as the other
ence to submission to his claim of supreme power States. The first effort to fulfil this trust was made
in the territories. in 1785, by the offer of a charter or compact to the
inhabitants who might come to occupy the land.
**77 I pass now to the evidence afforded during the
Revolution and Confederation. The American Re- Those inhabitants were to form for themselves tem-
volution was not a social revolution. It did not alter porary State Governments, founded on the Consti-
the domestic condition or capacity of persons with- tutions of any of the States, but to be alterable at
in the colonies, nor was it designed to disturb the the will of their Legislature; and *503 permanent
domestic relations existing among them. It was a Governments were to succeed these, whenever the
political revolution, by which thirteen dependent population became sufficiently numerous to author-
colonies became thirteen independent States. ‘The ize the State to enter the Confederacy; and Con-
Declaration of Independence was not,‘ says Justice gress assumed to obtain powers from the States to

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facilitate this object. Neither in the deeds of cession before the confirmatory act of Virginia, ‘Congress
of the States, nor in this compact, was a sovereign have proceeded to form new States, to erect tem-
power for Congress to govern the Territories asser- porary Governments, to appoint officers for them,
ted. Congress retained power, by this act, ‘to dis- and to prescribe the conditions on which such
pose of and to make rules and regulations respect- States shall be admitted into the Confederacy; all
ing the public domain,’ but submitted to the people this has been done, and done without the least color
to organize a Government harmonious with those of of constitutional authority.‘ (Federalist, No. 38.)
the confederate States. Richard Henry Lee, one of the committee who re-
ported the ordinance to Congress, *504 transmitted
**78 The next stage in the progress of colonial gov- it to General Washington, (15th July, 1787,) saying,
ernment was the adoption of the ordinance of 1787, ‘It seemed necessary, for the security of property
by eight States, in which the plan of a Territorial among uninformed and perhaps licentious people,
Government, established by act of Congress, is first as the greater part of those who go there are, that a
seen. This was adopted while the Federal Conven- strong-toned Government should exist, and the
tion to form the Constitution was sitting. The plan rights of property be clearly defined.‘ The consent
placed the Government in that hands of a Governor, of all the States represented in Congress, the con-
Secretary, and Judges, appointed by Congress, and sent of the Legislature of Virginia, the consent of
conferred power on them to select suitable laws the inhabitants of the Territory, all concur to sup-
from the codes of the States, until the population port the authority of this enactment. It is apparent,
should equal 5,000. A Legislative Council, elected in the frame of the Constitution, that the Conven-
by the people, was then to be admitted to a share of tion recognized its validity, and adjusted parts of
the legislative authority, under the supervision of their work with reference to it. The authority to ad-
Congress; and States were to be formed whenever mit new States into the Union, the omission to
the number of the population should authorize the provide distinctly for Territorial Governments, and
measure. the clause limiting the foreign slave trade to States
then existing, which might not prohibit it, show that
This ordinance was addressed to the inhabitants as
they regarded this Territory as provided with Gov-
a fundamental compact, and six of its articles
ernment, and organized permanently with a restric-
define the conditions to be observed in their Consti-
tion on the subject of slavery. Justice Chase, in the
tution and laws. These conditions were designed to
opinion already cited, says of the Government be-
fulfil the trust in the agreements of cession, that the
fore, and it is in some measure true during the Con-
States to be formed of the ceded Territories should
federation, that ‘the powers of Congress originated
be ‘distinct republican States.‘ This ordinance was
from necessity, and arose out of and were only lim-
submitted to Virginia in 1788, and the 5th article,
ited by events, or, in other words, they were revolu-
embodying as it does a summary of the entire act,
tionary in their very nature. Their extent depended
was specifically ratified and confirmed by that
upon the exigencies and necessities of public af-
State. This was an incorporation of the ordinance
fairs;‘ and there is only one rule of construction, in
into her act of cession. It was conceded, in the argu-
regard to the acts done, which will fully support
ment, that the authority of Congress was not ad-
them, viz: that the powers actually exercised were
equate to the enactment of the ordinance, and that it
rightfully exercised, wherever they were supported
cannot be supported upon the Articles of Confeder-
by the implied sanction of the State Legislatures,
ation. To a part of the engagements, the assent of
and by the ratifications of the people.
nine States was required, and for another portion no
provision had been made in those articles. Mr. **79 The clauses in the 3d section of the 4th article
Madison said, in a writing nearly contemporary, but of the Constitution, relative to the admission of new

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States, and the disposal and regulation of the territ- annunciation that a consolidated power had been in-
ory of the United States, were adopted without de- augurated, whose subject comprehended an empire,
bate in the Convention. and which had no restriction but the discretion of
Congress. This disturbing element of the Union en-
There was a warm discussion on the clauses that re- tirely escaped the apprehensive previsions of
late to the subdivision of the States, and the reser- Samuel Adams, George Clinton, Luther Martin, and
vation of the claims of the United States and each Patrick Henry; and, in respect to dangers from
of the States from any prejudice. The Maryland power vested in a central Government over distant
members revived the controversy in regard to the settlements, colonies, or provinces, their instincts
Crown lands of the Southwest. There was nothing were always alive. Not a word escaped them, to
to indicate any reference to a government of Territ- warn their countrymen, that here was a power to
ories not included within the limits of the Union; threaten the landmarks of this federative Union, and
and the whole discussion demonstrates that the with them the safeguards of popular and constitu-
Convention was consciously dealing with a Territ- tional liberty; or that under this article there might
ory whose condition, as to government, had been be introduced, on our soil, a single Government
arranged by a fundamental and unalterable com- over a vast extent of country-a Government foreign
pact. to the persons over whom it might be exercised,
and capable of binding those not represented, by
An examination of this clause of the Constitution,
statutes, in all cases whatever. I find nothing to au-
by the light of the circumstances in which the Con-
thorize these enormous pretensions, nothing in the
vention was placed, will aid us to determine its sig-
expositions of the friends of the Constitution, noth-
nificance. The first clause is, ‘that new States may
ing in the expressions of alarm by its opponents-
be admitted by the Congress to this *505 Union.‘
expressions which have since been developed as
The condition of Kentucky, Vermont, Rhode Is-
prophecies. Every portion of the United States was
land, and the new States to be formed in the North-
then provided with a municipal Government, which
west, suggested this, as a necessary addition to the
this Constitution was not designed to supersede, but
powers of Congress. The next clause, providing for
merely to modify as to its conditions.
the subdivision of States, and the parties to consent
to such an alteration, was required, by the plans on **80 The compacts of cession by North Carolina
foot, for changes in Massachusetts, New York, and Georgia are subsequent to the Constitution.
Pennsylvania, North Carolina, and Georgia. The They adopt the ordinance of 1787, except the clause
clause which enables Congress to dispose of and respecting slavery. But the precautionary repudi-
make regulations respecting the public domain, was ation of that article forms an argument quite as sat-
demanded by the exigencies of an exhausted treas- isfactory to the advocates for Federal power, as its
ury and a disordered finance, for relief by sales, and introduction *506 would have done. The refusal of
the preparation for sales, of the public lands; and a power to Congress to legislate in one place, seems
the last clause, that nothing in the Constitution to justify the seizure of the same power when an-
should prejudice the claims of the United States or other place for its exercise is found.
a particular State, was to quiet the jealousy and ir-
ritation of those who had claimed for the United This proceeds from a radical error, which lies at the
States all the unappropriated lands. I look in vain, foundation of much of this discussion. It is, that the
among the discussions of the time, for the assertion Federal Government may lawfully do whatever is
of a supreme sovereignty for Congress over the ter- not directly prohibited by the Constitution. This
ritory then belonging to the United States, or that would have been a fundamental error, if no amend-
they might thereafter acquire. I seek in vain for an ments to the Constitution had been made. But the

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final expression of the will of the people of the were limited to the selection of laws from the
States, in the 10th amendment, is, that the powers States; and provision was made for the introduction
of the Federal Government are limited to the grants of popular institutions, and their emancipation *507
of the Constitution. from Federal control, whenever a suitable oppor-
tunity occurred. The limited reservation of legislat-
Before the cession of Georgia was made, Congress ive power to the officers of the Federal Government
asserted rights, in respect to a part of her territory, was excused, on the plea of necessity; and the prob-
which require a passing notice. In 1798 and 1800, ability is, that the clauses respecting slavery em-
acts for the settlement of limits with Georgia, and body some compromise among the statesmen of
to establish a Government in the Mississippi Territ- that time; beyond these, the distinguishing features
ory, were adopted. A Territorial Government was of the system which the patriots of the Revolution
organized, between the Chattahoochee and Missis- had claimed as their birthright, from Great Britain,
sippi rivers. This was within the limits of Georgia. predominated in them.
These acts dismembered Georgia. They established
a separate Government upon her soil, while they **81 The acquisition of Louisiana, in 1803, intro-
rather derisively professed, ‘that the establishment duced another sys-
of that Government shall in no respects impair the tem into the United
rights of the State of Georgia, either to the jurisdic- States. This vast province was ceded by Napoleon,
tion or soil of the Territory.’ The Constitution and its population had always been accustomed to a
provided that the importation of such persons as viceroyal Government, appointed by the Crowns of
any of the existing States shall think proper to ad- France or Spain. To estabish a Government consti-
mit, shall not be prohibited by Congress before tuted on similar principles, and with like condi-
1808. By these enactments, a prohibition was tions, was not an unnatural proceeding.
placed upon the importation of salves into Georgia,
although her Legislature had made none. But there was great difficulty in finding constitu-
tional authority for the measure. The third section
This court have repeatedly affirmed the paramount of the fourth article of the Constitution was intro-
claim of Georgia to this Territory. They have duced into the Constitution, on the motion of Mr.
denied the existence of any title in the United Gouverneur Morris. In 1803, he was appealed to for
States. (6 C. R., 87; 12 Wh., 523; 3 How., 212; 13 information in regard to its meaning. He answers: ‘I
How., 381.) Yet these acts were cited in the argu- am very certain I had it not in contemplation to in-
ment as precedents to show the power of Congress sert a decree de coercendo imperio in the Constitu-
in the Territories. These statutes were the occasion tion of America. * * * I knew then, as well as I do
of earnest expostulation and bitter remonstrance on now, that all North America must at length be an-
the part of the authorities of the State, and the nexed to us. Happy indeed, if the lust of dominion
memory of their injustice and wrong remained long stop here. It would therefore have been perfectly
after the legal settlement of the controversy by the utopian to oppose a paper restriction to the violence
compact of 1802. A reference to these acts termin- of popular sentiment, in a popular Government.‘ (3
ates what I have to say upon the Constitutions of Mor. Writ., 185.) A few days later, he makes anoth-
the Territory within the original limits of the United er reply to his correspondent. ‘I perceive,‘ he says,
States. These Constitutions were framed by the ‘I mistook the drift of your inquiry, which substan-
concurrence of the States making the cessions, and tially is, whether Congress can admit, as a new
Congress, and were tendered to immigrants who State, terriroty which did not belong to the United
might be attracted to the vacant territory. The legis- States when the Constitution was made. In my
lative powers of the officers of this Government opinion, they cannot. I always thought, when we

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should acquire Canada and Louisiana, it would be opinions, having for their aim to promote sectional
proper to GOVERN THEM AS PROVINCES, divisions, were announced and developed.
AND ALLOW THEM NO VOICE in our councils. ‘Something,‘ said an eminent statesman,
In wording the third SECTION OF THE fourth art- ‘something has suggested to the members of Con-
icle, I went as far as circumstances would permit, gress the policy of acquiring geographical majorit-
to establish the exclusion. CANDOR OBLIGES ies. This is a very direct step towards disunion, for
ME TO ADD MY BELIEF, THAT HAD IT BEEN it must foster the geographical enmities by which
MORE POINTEDLY EXPRESSED, A STRONG alone it can be effected. This something must be a
OPPOSITION WOULD HAVE BEEN MADE.‘ (3 contemplation of particular advantages to be de-
Mor. Writ., 192.) The first Territorial Government rived from such majorities; and is it not notorious
of Louisiana was an Imperial one, founded upon a that they consist of nothing else but usurpations
French or Spanish model. For a time, the Governor, over persons and property, by which they can regu-
Judges, Legislative Council, Marshal, Secretary, late the internal wealth and prosperity of States and
and officers of the militia, were appointed by the individuals?‘
FN3
President.
The most dangerous of the efforts to employ a geo-
FN3 Mr. Varnum said: ‘The bill provided graphical political power, to perpetuate a geograph-
such a Government as had never been ical preponderance in the Union, is to be found in
known in the United States.‘ Mr. Eustis: the deliberations upon the act of the 6th of March,
‘The Government laid down in this bill is 1820, before cited. The attempt consisted of a pro-
certainly a new thing in the United States.‘ posal to exclude Missouri from a place in the Uni-
Mr. Lucas: ‘It has been remarked, that this on, unless her people would adopt a Constitution
bill establishes elementary principles never containing a prohibition upon the subject of
previously introduced in the Government slavery, according to a prescription of Congress.
of any Territory of the United States. The sentiment is now general, if not universal, that
Granting the truth of this observation,’ Congress had no constitutional power to impose the
&c., &c. Mr. Macon: ‘My first objection to restriction. This was frankly admitted at the bar, in
the principle contained in this section is, the course of this argument. The principles which
that it establishes a species of government this court have pronounced condemn the pretension
unknown to the United States.’ Mr. Boyle: then made on behalf of the legislative department.
‘Were the President an angel instead of a In Groves v. Slaughter, (15 Pet.,) the Chief Justice
man, I would not clothe him with this said: ‘The power over this subject is exclusively
power.’ Mr. G. W. Campbell: ‘On examin- with the several States, and each of them has a right
ing the section, it will appear that it really to decide for itself whether it will or will not allow
establishes a complete despotism.’ Mr. persons of this description to be brought within its
Sloan: ‘Can anything be more repugnant to limits.’ Justice McLean said: ‘The Constitution of
the principles of just government? Can the United States operates alike in all the States,
anything be more despotic?’-Annals of and one State has the same power over the subject
Congress, 1803-'4. of slavery as every other State.‘ In Pollard's Lessee
v. Hagan, (3 How., 212,) the court say: ‘The United
**82 *508 Besides these anomalous arrangements, States have no constitutional capacity to exercise
the acquisition gave rise to jealous inquiries, as to municipal *509 jurisdiction, sovereignty, or emin-
the influence it would exert in determining the men ent domain, within the limits of a State or else-
and States that were to be ‘the arbiters and rulers‘ where, except in cases where it is delegated, and
of the destinies of the Union; and unconstitutional the court denies the faculty of the Federal Govern-

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ment to add to its powers by treaty or compact.‘ never had any apprehension equal to that I
feel from this source.‘
This is a necessary consequence, resulting from the
nature of the Federal Constitution, which is a feder- **83 The Constitution permits Congress to dispose
al compact among the States, establishing a limited of and to make all needful rules and regulations re-
Government, with powers delegated by the people specting the territory or other property belonging to
of distinct and independent communities, who re- the United States. This power applies as well to ter-
served to their State Governments, and to them- ritory belonging to the United States within the
selves, the powers they did not grant. This claim to States, as beyond them. It comprehends all the pub-
impose a restriction upon the people of Missouri in- lic domain, wherever it may be. The argument is,
volved a denial of the constitutional relations that *510 the power to make ‘ALL needful rules
between the people of the States and Congress, and and regulations‘ ‘is a power of legislation,’ ‘a full
affirmed a concurrent right for the latter, with their legislative power;’ ‘that it includes all subjects of
people, to constitute the social and political system legislation in the territory,‘ and is without any lim-
of the new States. A successful maintenance of this itations, except the positive prohibitions which af-
claim would have altered the basis of the Constitu- fect all the powers of Congress. Congress may then
tion. The new States would have become members regulate or prohibit slavery upon the public domain
of a Union defined in part by the Constitution and within the new States, and such a prohibition would
in part by Congress. They would not have been ad- permanently affect the capacity of a slave, whose
mitted to ‘this Union.’ Their sovereignty would master might carry him to it. And why not? Be-
have been restricted by Congress as well as the cause no power has been conferred on Congress.
Constitution. The demand was unconstitutional and This is a conclusion universally admitted. But the
subversive, but was prosecuted with an energy, and power to ‘make rules and regulations respecting the
aroused such animosities among the people, that territory‘ is not restrained by State lines, nor are
patriots, whose confidence had not failed during the there any constitutional prohibitions upon its exer-
Revolution, begain to despair for the Constitution. cise in the domain of the United States within the
FN4
Amid the utmost violence of this extraordinary States; and whatever rules and regulations respect-
contest, the expedient contained in the eighth sec- ing territory Congress may constitutionally make
tion of this act was proposed, to moderate it, and to are supreme, and are not dependent on the situs of
avert the catastrophe it menaced. It was not seri- ‘the territory.‘
ously debated, nor were its constitutional aspects
severely scrutinized by Congress. For the first time, The author of the Farmer's Letters, so famous in the
in the history of the country, has its operation been ante-revolutionary history, thus states the argument
embodied in a case at law, and been presented to made by the American loyalists in favor of the
this court for their judgment. The inquiry is, wheth- claim of the British Parliament to legislate in all
er there are conditions in the Constitutions of the cases whatever over the colonies: ‘It has been urged
Territories which subject the capacity and status of with great vehemence against us,‘ he says, ‘and it
persons within their limits to the direct action of seems to be thought their FORT by our adversaries,
Congress. Can Congress determine the condition that a power of regulation is a power of legislation;
and status of persons who inhabit the Territories? and a power of legislation, if constitutional, must be
universal and supreme, in the utmost sense of the
FN4 Mr. Jefferson wrote: ‘The Missouri word. It is therefore concluded that the colonies, by
question is the most portentous one that acknowledging the power of regulation, acknow-
ever threatened our Union. In the gloomi- ledged every other power.‘
est moments of the revolutionary war, I
This sophism imposed upon a portion of the patri-

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ots of that day. Chief Justice Marshall, in his life of Britain and her colonies originated in the antipathy
Washington, says ‘that many of the best-informed of the latter to ‘rules and regulations‘ made by a re-
men in Massachusetts had perhaps adopted the mote power respecting their internal policy. In
opinion of the parliamentary right of internal gov- forming the Constitution, this fact was ever present
ernment over the colonies;‘ ‘that the English statute in the minds of its authors. The people were assured
book furnishes many instances of its exercise;‘ ‘that by their most trusted statesmen ‘that the jurisdiction
in no case recollected, was their authority openly of the Federal Government is limited to certain enu-
controverted;‘ and ‘that the General Court of Mas- merated objects, which concern all members of the
sachusetts, on a late occasion, openly recognized republic,‘ and ‘that the local or municipal authorit-
the principle.‘ (Marsh. Wash., v. 2, p. 75, 76.) ies form distinct portions of supremacy, no more
subject within their respective spheres to the gener-
But the more eminent men of Massachusetts rejec- al authority, than the general authority is subject to
ted it; and another patriot of the time employs the them within its own sphere.‘ Still, this did not con-
instance to warn us of ‘the stealth with which op- tent them. Under the lead of Hancock and Samuel
pression approaches,‘ and ‘the enormities towards Adams, of Patrick Henry and George Mason, they
which precedents travel.‘ And the people of the demanded an explicit declaration that no more
United States, as we have seen, appealed to the last power was to be exercised than they had delegated.
argument, rather than acquiesce in their authority. And the ninth and tenth amendments to the Consti-
Could it have been the purpose of Washington and tution were designed to include the reserved rights
his illustrious associates, by the use of ambiguous, of the States, and the people, within all the sanc-
equivocal, and expansive *511 words, such as tions of that instrument, and to bind the authorities,
‘rules,‘ ‘regulations,‘ ‘territory,‘ to re-establish in State and Federal, by the judicial oath it prescribes,
the Constitution of their country that fort which had to their recognition and observance. Is it probable,
been prostrated amid the toils and with the suffer- therefore, that the supreme and irresponsible power,
ings and sacrifices of seven years of war? Are these which is now claimed for Congress over boundless
words to be understood as the Norths, the Gren- territories, the use of which cannot fail to react
villes, Hillsboroughs, Hutchinsons, and Dunmores- upon the political system of the States, to its sub-
in a word, as George III would have understood version, was ever within the contemplation of the
them-or are we to look for their interpretation to statesmen who conducted the counsels of the
Patrick Henry or Samuel Adams, to Jefferson, and people in the formation of this Constitution? When
Jay, and Dickinson; to the sage Franklin, or to *512 the questions that came to the surface upon
Hamilton, who from his early manhood was en- the acquisition of Louisiana were presented to the
gaged in combating British constructions of such mind of Jefferson, he wrote: ‘I had rather ask an en-
words? We know that the resolution of Congress of largement of power from the nation, where it is
1780 contemplated that the new States to be formed found necessary, than to assume it by a construction
under their recommendation were to have the same which would make our powers boundless. Our pe-
rights of sovereignty, freedom, and independence, culiar security is in the possession of a written Con-
as the old. That every resolution, cession, compact, stitution. Let us not make it blank paper by con-
and ordinance, of the States, observed the same lib- struction. I say the same as to the opinion of those
eral principle. That the Union of the Constitution is who consider the grant of the treaty-making power
a union formed of equal States; and that new States, as boundless. If it is, then we have no Constitution.
when admitted, were to enter ‘this Union.‘ Had an- If it has bounds, they can be no others than the
other union been proposed in ‘any pointed manner,‘ definitions of the powers which that instrument
it would have encountered not only ‘strong‘ but gives. It specifies and delineates the operations per-
successful opposition. The disunion between Great mitted to the Federal Government, and gives the

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powers necessary to carry them into execution.‘ They look to its delineation of the operations of the
The publication of the journals of the Federal Con- Federal Government, and they must not exceed the
vention in 1819, of the debates reported by Mr. limits it marks out, in their administration. The
Madison in 1840, and the mass of private corres- court have said ‘that Congress cannot exercise mu-
pondence of the early statesmen before and since, nicipal jurisdiction, sovereignty, or eminent do-
enable us to approach the discussion of the aims of main, within the limits of a State or elsewhere, bey-
those who made the Constitution, with some insight ond what has been delegated.‘ We are then to find
and confidence. the authority for supreme power in the Territories
in the Constitution. What are the limits upon the
**84 I have endeavored, with the assistance of operations of a Government invested with legislat-
these, to find a solution for the grave and difficult ive, executive, and judiciary powers, and charged
question involved in this inquiry. My opinion is, with the power to dispose of and to make all need-
that the claim for Congress of supreme power in the ful rules and regulations respecting a vast public
Territories, under the grant to ‘dispose of and make domain? The feudal system would have recognized
all needful rules and regulations respecting territory the claim made on behalf of the Federal Govern-
, ‘ is not supported by the historical evidence drawn ment for supreme power over persons and things in
from the Revolution, the Confederation, or the de- the Territories, as an incident to this title-that is, the
liberations which preceded the ratification of the title to dispose of and make rules and regulations
Federal Constitution. The ordinance of 1787 de- respecting it.
pended upon the action of the Congress of the Con-
federation, the assent of the State of Virginia, and The Norman lawyers of William the Conqueror
the acquiescence of the people who recognized the would have yielded an implicit assent to the doc-
validity of that plea of necessity which supported so trine, that a supreme sovereignty is an inseparable
many of the acts of the Governments of that time; incident to a grant to dispose of and to make all
and the Federal Government accepted the ordinance needful rules and regulations respecting the public
as a recognized and valid engagement of the Con- domain. But an American patriot, in contrasting the
federation. European and American systems, may affirm, ‘that
European sovereigns give lands to their colonists,
In referring to the precedents of 1798 and 1800, I but reserve to themselves a power to control their
find the Constitution was plainly violated by the in- property, liberty, and privileges; but the American
vasion of the rights of a sovereign State, both of Government sells the lands belonging to the people
soil and jurisdiction; and in reference to that of of the several States (i. e., United States) to their
1804, the wisest statesmen protested against it, and citizens, who are already in the possession of per-
the President more than doubted its policy and the sonal and political rights, which the Government
power of the Government. did not give, and cannot take away.‘ And the ad-
vocates for Government sovereignty in the Territor-
Mr. John Quincy Adams, at a later period, says of
ies have been compelled to abate a portion of the
the last act, ‘that the President found Congress
pretensions originally made in its behalf, and to ad-
mounted to the pitch of passing those acts, without
mit that the constitutional prohibitions upon Con-
inquiring where they acquired the authority, and he
gress operate in the Territories. But a constitutional
conquered his own scruples as they had done
prohibition is not requisite to ascertain a limitation
theirs.‘ But this court cannot undertake for them-
upon the authority of of the several departments of
selves the same conquest. They acknowledge that
the Federal Government. Nor are the States or
our peculiar security *513 is in the possession of a
people restrained by any enumeration or definition
written Constitution, and they cannot make it blank
of their rights or liberties.
paper by construction.

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**85 To impair or diminish either, the department territorial subdivisions, or over the persons who in-
must produce an authority from the people them- habit them. Congress may exercise there all the
selves, in their Constitution; and, as we have seen, a powers of Government which belong to them as the
power to make rules and regulations respecting the Legislature of the United States, of which these
public domain does not confer a municipal sover- Territories make a part. ( Loughborough v. Blake, 5
eignty over persons and things upon it. But as this Wheat., 317.) Thus the laws of taxation, for the reg-
is ‘thought their fortz'by our adversaries, I propose ulation of foreign, Federal, and Indian commerce,
a more definite examination of it. We have seen, and so for the abolition of the slave trade, for the
Congress does not *514 dispose of or make rules protection of copyrights and inventions, for the es-
and regulations respecting domain belonging to tablishment of postal communication and courts of
themselves, but belonging to the United States. justice, and for the punishment of crimes, are as op-
erative there as within the States. I admit that to
These conferred on their mandatory, Congress, au- mark the bounds for the jurisdiction of the Govern-
thority to dispose of the territory which belonged to ment of the United States within the Territory, and
them in common; and to accomplish that object be- of its power in respect to persons and things within
neficially and effectually, they gave an authority to the municipal subdivisions it has created, is a work
make suitable rules and regulations respecting it. of delicacy and difficulty, and, in a great measure,
When the power of disposition is fulfilled, the au- is beyond the cognizance of the judiciary depart-
thority to make rules and regulations terminates, for ment of that Government. How much municipal
it attaches only upon territory ‘belonging to the power may be exercised by the people of the Territ-
United States.‘ ory, before their admission to the Union, the courts
of justice cannot decide. This must depend, for
Consequently, the power to make rules and regula-
*515 the most part, on political considerations,
tions, from the nature of the subject, is restricted to
which cannot enter into the determination of a case
such administrative and conservatory acts as are
of law or equity. I do not feel called upon to define
needful for the preservation of the public domain,
the jurisdiction of Congress. It is sufficient for the
and its preparation for sale or disposition. The sys-
decision of this case to ascertain whether the resid-
tem of land surveys; the reservations for schools,
uary sovereignty of the States or people has been
internal improvements, military sites, and public
invaded by the 8th section of the act of 6th March,
buildings; the preemption claims of settlers; the es-
1820, I have cited, in so far as it concerns the capa-
tablishment of land offices, and boards of inquiry,
city and status of persons in the condition and cir-
to determine the validity of land titles; the modes of
cumstances of the plaintiff and his family.
entry, and sale, and of conferring titles; the protec-
tion of the lands from trespass and waste; the parti- **86 These States, at the adoption of the Federal
tion of the public domain into municipal subdivi- Constitution, were organized communities, having
sions, having reference to the erection of Territorial distinct systems of municipal law, which, though
Governments and States; and perhaps the selection, derived from a common source, and recognising in
under their authority, of suitable laws for the pro- the main similar principles, yet in some respects
tection of the settlers, until there may be a suffi- had become unlike, and on a particular subject
cient number of them to form a self-sustaining mu- promised to be antagonistic.
nicipal Government-these important rules and regu-
lations will sufficiently illustrate the scope and op- Their systems provided protection for life, liberty,
eration of the 3d section of the 4th article of the and property, among their citizens, and for the de-
Constitution. But this clause in the Constitution termination of the condition and capacity of the
does not exhaust the powers of Congress within the persons domiciled within their limits. These institu-

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tions, for the most part, were placed beyond the to support a navy, and all of these powers are some-
control of the Federal Government. The Constitu- times required to preserve a State from disaster and
tion allows Congress to coin money, and regulate ruin. The Federal Government was constituted to
its value; to regulate foreign and Federal com- exercise these powers for the preservation of the
merce; to secure, for a limited period, to authors States, respectively, and to secure to all their cit-
and inventors, a property in their writings and dis- izens the enjoyment of the rights which were not
coveries; and to make rules concerning captures in surrendered to the Federal Government. The
war; and, within the limits of these powers, it has provident care of the statesmen who projected the
exercised, rightly, to a greater or less extent, the Constitution was signalized by such a distribution
power to determine what shall and what shall not be of the powers of Government as to exclude many of
property. the motives and opportunities for promoting pro-
vocations and spreading discord among the States,
But the great powers of war and negotiation, fin- and for guarding against those partial combinations,
ance, postal communication, and commerce, in gen- so destructive of the community of interest, senti-
eral, when employed in respect to the property of a ment, and feeling, which are so essential to the sup-
citizen, refer to, and depend upon, the municipal port of the Union. The distinguishing features of
laws of the States, to ascertain and determine what their system consist in the exclusion of the Federal
is property, and the rights of the owner, and the ten- Government from the local and internal concerns
ure by which it is held. of, and in the establishment of an independent in-
ternal Government within, the States. And it is a
Whatever these Constitutions and laws validly de-
significant fact in the history of the United States,
termine to be property, it is the duty of the Federal
that those controversies which have been product-
Government, through the domain of jurisdiction
ive of the greatest animosity, and have occasioned
merely Federal, to recognize to be property.
most peril to the peace of the Union, have had their
And this principle follows from the structure of the origin in the well-sustained opinion of a minority
respective Governments, State and Federal, and among the people, that the Federal Government had
their reciprocal relations. They are different agents overstepped its constitutional limits to grant some
and trustees of the people of the several States, ap- exclusive privilege, or to disturb the legitimate dis-
pointed with different powers and with distinct pur- tribution of property or power among the States or
poses, but whose acts, within the scope of their re- individuals. Nor can a more signal instance of this
spective jurisdictions, are mutually obligatory. be found than is furnished by the act before us. No
They are respectively the depositories of such candid or rational man can hesitate to believe, that
powers of legislation as the people were willing to if the subject of the eighth section of the act of
surrender, and their duty is to co-operate within March, 1820, had never been introduced into Con-
their several jurisdictions to maintain the rights of gress and made the basis of legislation, no interest
the same citizens under both Governments unim- common to the Union would have been seriously
paired. *516 A proscription, therefore, of the Con- affected. And, certainly, the creation, within this
stitution and laws of one or more States, determin- Union, of large confederacies of unfriendly and
ing property, on the part of the Federal Govern- frowning States, which has been the tendency, and,
ment, by which the stability of its social system to an alarming extent, the result, produced by the
may be endangered, is plainly repugnant to the con- agitation arising from it, does not commend it to the
ditions on which the Federal Constitution was ad- patriot or statesman. This court have determined
opted, or which that Government was designed to that the intermigration of slaves was not committed
accomplish. Each of the States surrendered its to the jurisdiction or control of Congress. Wherever
powers of war and negotiation, to raise armies and a master is entitled to go within the United States,

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his slave may accompany him, without any impedi- as it was submitted upon uncontested evidence,
ment from, or fear of, Congressional *517 legisla- upon appropriate issues to the jury, and upon the in-
tion or interference. The question then arises, structions given and refused by the court upon that
whether Congress, which can exercise no jurisdic- evidence. My opinion is, that the opinion of the
tion over the relations of master and slave within Circuit Court was correct upon all the claims in-
the limits of the Union, and is bound to recognize volved in those issues, and that the verdict of the
and respect the rights and relations that validly ex- jury was justified by the evidence and instructions.
ist under the Constitutions and laws of the States,
can deny the exercise of those rights, and prohibit The jury have returned that the plaintiff and his
the continuance of those relations, within the Territ- family are slaves.
ories.
Upon this record, it is apparent that this is not a
**87 And the citation of State statutes prohibiting controversy between citizens of different States;
the immigration of slaves, and of the decisions of and that the plaintiff, at no period of the life which
State courts enforcing the forfeiture of the master's has been submitted to the view of the court, has had
title in accordance with their rule, only darkens the a capacity to maintain a suit in the courts *518 of
discussion. For the question is, have Congress the the United States. And in so far as the argument of
municipal sovereignty in the Territories which the the Chief Justice upon the plea in abatement has a
State Legislatures have derived from the authority reference to the plaintiff or his family, in any of the
of the people, and exercise in the States? conditions or circumstances of their lives, as
presented in the evidence, I concur in that portion
And this depends upon the construction of the art- of his opinion. I concur in the judgment which ex-
icle in the Constitution before referred to. presses the conclusion that the Circuit Court should
not have rendered a general judgment.
And, in my opinion, that clause confers no power
upon Congress to dissolve the relations of the mas- The capacity of the plaintiff to sue is involved in
ter and slave on the domain of the United States, the pleas in bar, and the verdict of the jury discloses
either within or without any of the States. an incapacity under the Constitution. Under the
Constitution of the United States, his is an incapa-
The eighth section of the act of Congress of the 6th city to sue in their courts, while, by the laws of
of March, 1820, did not, in my opinion, operate to Missouri, the operation of the verdict would be
determine the domestic condition and status of the more extensive. I think it a safe conclusion to en-
plaintiff and his family during their sojourn in Min- force the lesser disability imposed by the Constitu-
nesota Territory, or after their return to Missouri. tion of the United States, and leave to the plaintiff
all his rights in Missouri. I think the judgment
The question occurs as to the judgment to be given
should be affirmed, on the ground that the Circuit
in this case. It appeared upon the trial that the
Court had no jurisdiction, or that the case should be
plaintiff, in 1834, was in a state of slavery in Mis-
reversed and remanded, that the suit may be dis-
souri, and he had been in Missouri for near fifteen
missed.
years in that condition when this suit was brought.
Mr. Justice CATRON.
Nor does it appear that he at any time possessed an-
**88 The defendant pleaded to the jurisdiction of
other state or condition, de facto. His claim to free-
the Circuit Court, that the plaintiff was a negro of
dom depends upon his temporary elocation, from
African blood; the descendant of Africans, who had
the domicil of his origin, in company with his mas-
been imported and sold in this country as slaves,
ter, to communities where the law of slavery did
and thus had no capacity as a citizen of Missouri to
not prevail. My examination is confined to the case,
maintain a suit in the Circuit Court. The court sus-

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tained a demurrer to this plea, and a trial was had The Constitution, laws, and policy, of Illinois, are
upon the pleas, of the general issue, and also that somewhat peculiar respecting slavery. Unless the
the plaintiff and his family were slaves, belonging master becomes an inhabitant of that State, the
to the defendant. In this trial, a verdict was given slaves he takes there do not acquire their freedom;
for the defendant. and if they return with their master to the slave
State of his domicil, they cannot assert their free-
The judgment of the Circuit Court upon the plea in dom after their return. For the reasons and authorit-
abatement is not open, in my opinion, to examina- ies on this point, I refer to the opinion of my broth-
tion in this court upon the plaintiff's writ. er Nelson, with which I not only concur, but think
his opinion is the most conclusive argument on the
The judgment was given for him conformably to
subject within my knowledge.
the prayer of his demurrer. He cannot assign an er-
ror in such a judgment. (Tidd's Pr., 1163; 2 Willi- **89 It is next insisted for the plaintiff, that his
ams's Saund., 46 a; 2 Iredell N. C., 87; 2 W. and S., freedom (and that of his wife and eldest child) was
391.) Nor does the fact that the judgment was given obtained by force of the act of Congress of 1820,
on a plea to the jurisdiction, avoid the application usually known as the Missouri compromise act,
of this rule. (Capron v. Van Noorden, 2 Cr., 126; 6 which declares: ‘That in all that territory ceded by
Wend., 465; 7 Met., 598; 5 Pike, 1005.) France to the United States, which lies north of
thirty-six degrees thirty minutes north latitude,
The declaration discloses a case within the jurisdic-
slavery and involuntary servitude shall be, and are
tion of the court-a controversy between citizens of
hereby, forever prohibited.‘
different States. The plea in abatement, impugning
these jurisdictional averments, was waived when From this prohibition, the territory now constituting
the defendant answered to the declaration by pleas the State of Missouri was excepted; which excep-
to the merits. The proceedings on that plea remain a tion to the stipulation gave it the designation of a
part of the technical record, to show the history of compromise.
the case, but are not open to the review of this court
by a writ *519 of error. The authorities are very The first question presented on this act is, whether
conclusive on this point. Shepherd v. Graves, 14 Congress had power to make such compromise.
How., 505; Bailey v. Dozier, 6 How., 23; 1 Stewart, For, if power was wanting, then no freedom could
(Alabama,) 46; 10 Ben. Monroe, (Kentucky,) 555; be acquired by the defendant under the act.
2 Stewart, (Alabama,) 370, 443; 2 Scammon,
(Illinois,) 78. Nor can the court assume, as admitted That Congress has no authority to pass laws and
facts, the averments of the plea from the confession bind men's rights beyond the powers conferred by
of the demurrer. That confession was for a single the Constitution, is not open to controversy. But it
object, and cannot be used for any other purpose is insisted that, by the Constitution, Congress has
than to test the validity of the plea. Tompkins v. power to legislate for and govern the Territories of
Ashley, 1 Moody and Mackin, 32; 33 Maine, 96, the United States, and that by force of the power to
100. govern, laws could be enacted, prohibiting slavery
in any portion of the Louisiana Territory; and, of
There being nothing in controversy here but the course, to abolish slavery in all parts of it, whilst it
merits, I will proceed to discuss them. was, or is, governed as a Territory.

The plaintiff claims to have acquired property in My opinion is, that Congress is vested with power
himself, and became free, by being kept in Illinois to govern *520 the Territories of the United States
during two years. by force of the third section of the fourth article of

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the Constitution. And I will state my reasons for charters did not reach it, insisted that the country
this opinion. belonged to the States united, and that the lands
should be disposed of for the benefit of the whole;
Almost every provision in that instrument has a his- and to which end, the western territory should be
tory that must be understood, before the brief and ceded to the States united. The contest was strin-
sententious language employed can be comprehen- gent and angry, long before the Convention con-
ded in the relations its authors intended. We must vened, and deeply agitated that body. As a matter of
bring before us the state of things presented to the justice, and to quiet the controversy, Virginia con-
Convention, and in regard to which it acted, when sented to cede the country north of the Ohio as
the compound provision was made, declaring: 1st. early as 1783; and in 1784 the deed of cession was
That ‘new States may be admitted by the Congress executed, by her delegates in the Congress of the
into this Union.‘ 2d. ‘The Congress shall have Confederation, conveying to the United States in
power to dispose of and make all needful rules and Congress assembled, for the benefit of said States,
regulations respecting the territory or other property ‘all right, title, and claim, as well of soil as of juris-
belonging to the United States. And nothing in this diction, which this Commonwealth hath to the ter-
Constitution shall be so construed as to prejudice ritory or tract of country within the limits of the
any claims of the United States, or any particular Virginia *521 charter, situate, lying, and being to
State.‘ the northwest of the river Ohio. ‘ In 1787, (July
13,) the ordinance was passed by the old Congress
Having ascertained the historical facts giving rise to
to govern the Territory.
these provisions, the difficulty of arriving at the
true meaning of the language employed will be Massachusetts had ceded her pretension of claim to
greatly lessened. western territory in 1785, Connecticut hers in 1786,
and New York had ceded hers. In August, 1787,
The history of these facts is substantially as fol-
South Carolina ceded to the Confederation her pre-
lows:
tension of claim to territory west of that State. And
The King of Great Britain, by his proclamation of North Carolina was expected to cede hers, which
1763, virtually claimed that the country west of the she did do, in April, 1790. And so Georgia was
mountains had been conquered from France, and confidently expected to cede her large domain, now
ceded to the Crown of Great Britain by the treaty of constituting the territory of the States of Alabama
Paris of that year, and he says: ‘We reserve it under and Mississippi.
our sovereignty, protection, and dominion, for the
At the time the Constitution was under considera-
use of the Indians.‘
tion, there had been ceded to the United States, or
This country was conquered from the Crown of was shortly expected to be ceded, all the western
Great Britain, and surrendered to the United States country, from the British Canada line to Florida,
by the treaty of peace of 1783. The colonial and from the head of the Mississippi almost to its
charters of Virginia, North Carolina, and Georgia, mounth, except that portion which now constitutes
included it. Other States set up pretensions of claim the State of Kentucky.
to some portions of the territory north of the Ohio,
Although Virginia had conferred on the Congress
but they were of no value, as I suppose. ( 5 Wheat.,
of the Confederation power to govern the Territory
375.)
north of the Ohio, still, it cannot be denied, as I
**90 As this vacant country had been won by the think, that power was wanting to admit a new State
blood and treasure of all the States, those whose under the Articles of Confederation.

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With these facts prominently before the Conven- arising in the ceded territory. (3 Madison Papers,
tion, they proposed to accomplish these ends: 1456 to 1466.)

1st. To give power to admit new States. It was hardly possible to separate the power ‘to
make all needful rules and regulations' respecting
2d. To dispose of the public lands in the Territories, the government of the territory and the disposition
and such as might remain undisposed of in the new of the public lands.
States after they were admitted.
North of the Ohio, Virginia conveyed the lands, and
And, thirdly, to give power to govern the different vested the jurisdiction in the thirteen original
Territories as incipient States, not of the Union, and States, before the Constitution was formed. She had
fit them for admission. No one in the Convention the sole title and sole sovereignty, and the same
seems to have doubted that these powers were ne- power to cede, on any terms she saw proper, that
cessary. As early as the third day of its session, the King of England had to grant the Virginia colo-
(May 29th,) Edmund Randolph brought forward a nial charter of 1609, or to grant the charter of
set of resolutions containing nearly all the germs of Pennsylvania to William Penn. The thirteen States,
the Constitution, the tenth of which is as follows: through their representatives and deputed ministers
in the old Congress, had the same right to govern
‘Resolved, That provision ought to be made for the
that Virginia had before the cession. (Baldwin's
admission of States lawfully arising within the lim-
Constitutional Views, 90.) And the sixth article of
its of the United States, whether from a voluntary
the Constitution adopted all engagements entered
junction of government and territory or otherwise,
into by the Congress of the Confederation, as valid
with the consent of a number of voices in the Na-
against the United States; and that the laws, made
tional Legislature less than the whole.‘
in pursuance of the new Constitution, to carry out
**91 August 18th, Mr. Madison submitted, in order this engagement, should be the supreme law of the
to be referred to the committee of detail, the follow- land, and the judges bound thereby. To give the
ing powers as proper to be added to those of the compact, and the ordinance, which was part of it,
General Legislature: full effect under the new Government, the act of
August 7th, 1789, was passed, which declares,
‘To dispose of the unappropriated lands of the ‘Whereas, in order that the ordinance of the United
United States.‘ ‘To institute temporary Govern- States in Congress assembled, for the government
ments for new States arising therein.‘ (3 Madison of the Territory northwest of the river Ohio, may
Papers, 1353.) have full effect, it is requisite that certain provi-
sions should be made, so as to adapt the same to the
*522 These, with the resolution, that a district for present Constitution of the United States.’ It is then
the location of the seat of Government should be provided that the Governor and other officers
provided, and some others, were referred, without a should be appointed by the President, with the con-
dissent, to the committee of detail, to arrange and sent of the Senate; and be subject to removal, &c.,
put them into satisfactory language. in like manner that they were by the old Congress,
whose functions had ceased.
Gouverneur Morris constructed the clauses, and
combined the views of a majority on the two provi- By the powers to govern, given by the Constitution,
sions, to admit new States; and secondly, to dispose those amendments to the ordinance could be made,
of the public lands, and to govern the Territories, in but Congress guardedly abstained from touching
the mean time, between the cessions of the States the compact of Virginia, further than to adapt it to
and the admission into the Union of new States the new Constitution.

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**92 It is due to myself to say, that it is asking fact.


much of a judge, *523 who has for nearly twenty
years been exercising jurisdiction, from the western Before the new Constitution was adopted, she had
Missouri line to the Rocky Mountains, and, on this as much right to treat and agree as any European
understanding of the Constitution, inflicting the ex- Government had. And, having excluded slavery, the
treme penalty of death for crimes committed where new Government was bound by that engagement by
the direct legislation of Congress was the only rule, article six of the new Constitution. This only meant
to agree that he had been all the while acting in that slavery should not exist whilst the United
mistake, and as an usurper. States exercised the power of government, in the
Territorial form; for, when a new State came in, it
More than sixty years have passed away since Con- might do so, with or without slavery.
gress has exercised power to govern the Territories,
by its legislation directly, or by Territorial charters, My opinion is, that Congress had no power, in face
subject to repeal at all times, and it is now too late of the compact between Virginia and the twelve
to call that power into question, if this court could other States, to force slavery into the Northwest
disregard its own decisions; which it cannot do, as I Territory, because there, it was bound to that
think. It was held in the case of Cross v. Harrison, ‘engagement,’ and could not break it.
(16 How., 193-'4,) that the sovereignty of Califor-
*524 In 1790, North Carolina ceded her western
nia was in the United States, in virtue of the Consti-
territory, now the State of Tennessee, and stipulated
tution, by which power had been given to Congress
that the inhabitants thereof should enjoy all the
to dispose of and make all needful rules and regula-
privileges and advantages of the ordinance for gov-
tions respecting the territory or other property be-
erning the territory north of the Ohio river, and that
longing to the United States, with the power to ad-
Congress should assume the government, and ac-
mit new States into the Union. That decision fol-
cept the cession, under the express conditions con-
lowed preceding ones, there cited. The question
tained in the ordinance: Provided, ‘That no regula-
was then presented, how it was possible for the ju-
tion made, or to be made, by Congress, shall tend to
dicial mind to conceive that the United States Gov-
emancipate slaves.’
ernment, created solely by the Constitution, could,
by a lawful treaty, acquire territory over which the **93 In 1802, Georgia ceded her western territory
acquiring power had no jurisdiction to hold and to the United States, with the provision that the or-
govern it, by force of the instrument under whose dinance of 1787 should in all its parts extend to the
authority the country was acquired; and the forego- territory ceded, ‘that article only excepted which
ing was the conclusion of this court on the proposi- forbids slavery.’ Congress had no more power to le-
tion. What was there announced, was most deliber- gislate slavery out from the North Carolina and
ately done, and with a purpose. The only question Georgia cessions, than it had power to legislate
here is, as I think, how far the power of Congress is slavery in, north of the Ohio. No power existed in
limited. Congress to legislate at all, affecting slavery, in
either case. The inhabitants, as respected this de-
As to the Northwest Territory, Virginia had the
scription of property, stood protected whilst they
right to abolish slavery there; and she did so agree
were governed by Congress, in like manner that
in 1787, with the other States in the Congress of the
they were protected before the cession was made,
Confederation, by assenting to and adopting the or-
and when they were, respectively, parts of North
dinance of 1787, for the government of the Northw-
Carolina and Georgia.
est Territory. She did this also by an act of her Le-
gislature, passed afterwards, which was a treaty in And how does the power of Congress stand west of

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the Mississippi river? The country there was ac- property, and religion, with him, and in which he
quired from France, by treaty, in 1803. It declares, was to be maintained and protected, until he be-
that the First Consul, in the name of the French Re- came a citizen of a State of the Union of the United
public, doth hereby cede to the United States, in States. This cannot be denied to the original inhab-
full sovereignty, the colony or province of Louisi- itants and their descendants. And, if it be true that
ana, with all the rights and appurtenances of the immigrants were equally protected, it must follow
said territory. And, by article third, that ‘the inhab- that they can also stand on the treaty.
itants of the ceded territory shall be incorporated in
the Union of the United States, and admitted as **94 The settled doctrine in the State courts of
soon as possible, according to the principles of the Louisiana is, that a French subject coming to the
Federal Constitution, to the enjoyment of all the Orleans Territory, after the treaty of 1803 was
rights, advantages, and immunities, of citizens of made, and before Louisiana was admitted into the
the United States; and, in the mean time, they shall Union, and being an inhabitant at the time of the
be maintained and protected in the free enjoyment admission, became a citizen of the United States by
of their liberty, property, and the religion which that act; that he was one of the inhabitants contem-
they profess.’ plated by the third article of the treaty, which re-
ferred to all the inhabitants embraced within the
Louisiana was a province where slavery was not new State on its admission.
only lawful, but where property in slaves was the
most valuable of all personal property. The That this is the true construction, I have no doubt.
province was ceded as a unit, with an equal right
If power existed to draw a line at thirty-six degrees
pertaining to all its inhabitants, in every part there-
thirty minutes north, so Congress had equal power
of, to own slaves. It was, to a great extent, a vacant
to draw the line on the thirtieth degree-that is, due
country, having in it few civilized inhabitants. No
west from the city of New Orleans-and to declare
one portion of the colony, of a proper size for a
that north of that line slavery should never exist.
State of the Union had a sufficient number of in-
Suppose this had been done before 1812, when
habitants to claim admission into the Union. To en-
Louisiana came into the Union, and the question of
able the United States to fulfil the treaty, additional
infraction of the treaty had then been presented on
population was indispensable, and obviously de-
the present assumption of power to prohibit slavery,
sired with anxiety by both sides, so that the whole
who doubts what the decision of this court would
country should, as soon as possible, become States
have been on such an act of Congress; yet, the dif-
of the Union. And for this *525 contemplated fu-
ference between the supposed line, and that on
ture population, the treaty as expressly provided as
thirty-six degrees thirty minutes north, is only in
it did for the inhabitants residing in the province
the degree of grossness presented by the lower line.
when the treaty was made. All these were to be pro-
tected ‘in the mean time;‘ that is to say, at all times, The Missouri compomise line of 1820 was very ag-
between the date of the treaty and the time when gressive; it declared that slavery was abolished
the portion of the Territory where the inhabitants forever throughout a country reaching from the
resided was admitted into the Union as a State. Mississippi river to the Pacific ocean, stretching
over thirty-two degrees of longitude, and twelve
At the date of the treaty, each inhabitant had the
and a half degrees of latitude on its eastern side,
right to the free enjoyment of his property, alike
sweeping over four-fifths, to say no more, of the
with his liberty and his religion, in every part of
original province of Louisiana.
Louisiana; the province then being one country, he
might go everywhere in it, and carry his liberty, That the United States Government stipulated in fa-

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vor of *526 the inhabitants to the extent here con- **95 In view of these facts, let us inquire how the
tended for, has not been seriously denied, as far as I question stands by the terms of the Constitution,
know; but the argument is, that Congress had au- aside from the treaty? How it stood in public opin-
thority to repeal the third article of the treaty of ion when the Georgia cession was made, in 1802, is
1803, in so far as it secured the right to hold slave apparent from the fact that no guaranty was re-
property, in a portion of the ceded territory, leaving quired by Georgia of the United States, for the pro-
the right to exist in other parts. In other words, that tection of slave property. The Federal Constitution
Congress could repeal the third article entirely, at was relied on, to secure the rights of Georgia and
its pleasure. This I deny. her citizens during the Territorial condition of the
country. She relied on the indisputable truths, that
The compacts with North Carolina and Georgia the States were by the Constitution made equals in
were treaties also, and stood on the same footing of political rights, and equals in the right to participate
the Louisiana treaty; on the assumption of power to in the common property of all the States united, and
repeal the one, it must have extended to all, and held in trust for *527 them. The Constitution hav-
Congress could have excluded the slaveholder of ing provided that ‘The citizens of each State shall
North Carolina from the enjoyment of his lands in be entitled to all privileges and immunities of cit-
the Territory now the State of Tennessee, where the izens of the several States,’ the right to enjoy the
citizens of the mother State were the principal pro- territory as equals was reserved to the States, and to
prietors. the citizens of the States, respectively. The cited
clause is not that citizens of the United States shall
And so in the case of Georgia. Her citizens could
have equal privileges in the Territories, but the cit-
have been refused the right to emigrate to the Mis-
izen of each State shall come there in right of his
sissippi or Alabama Territory, unless they left their
State, and enjoy the common property. He secures
most valuable and cherished property behind them.
his equality through the equality of his State, by
The Constitution was framed in reference to facts virtue of that great fundamental condition of the
then existing or likely to arise: the instrument Union-the equality of the States.
looked to no theories of Government. In the vigor-
Congress cannot do indirectly what the Constitution
ous debates in the Convention, as reported by Mr.
prohibits directly. If the slaveholder is prohibited
Madison and others, surrounding facts, and the con-
from going to the Territory with his slaves, who are
dition and necessities of the country, gave rise to
parts of his family in name and in fact, it will fol-
almost every provision; and among those facts, it
low that men owning lawful property in their own
was prominently true, that Congress dare not be in-
States, carrying with them the equality of their
trusted with power to provide that, if North Caro-
State to enjoy the common property, may be told,
lina or Georgia ceded her western territory, the cit-
you cannot come here with your slaves, and he will
izens of the State (in either case) could be prohib-
be held out at the border. By this subterfuge, own-
ited, at the pleasure of Congress, from removing to
ers of slave property, to the amount of thousand of
their lands, then granted to a large extent, in the
millions, might be almost as effectually excluded
country likely to be ceded, unless they left their
from removing into the Territory of Louisiana north
slaves behind. That such an attempt, in the face of a
of thirty-six degrees thirty minutes, as if the law de-
population fresh from the war of the Revolution,
clared that owners of slaves, as a class, should be
and then engaged in war with the great confederacy
excluded, even if their slaves were left behind.
of Indians, extending from the mouth of the Ohio to
the Gulf of Mexico, would end in open revolt, all Just as well might Congress have said to those of
intelligent men knew. the North, you shall not introduce into the territory

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south of said line your cattle or horses, as the coun- square) may be cut off by a geographical line, and a
try is already overstocked; nor can you introduce great portion of our citizens excluded from it.
your tools of trade, or machines, as the policy of
Congress is to encourage the culture of sugar and **96 Ingenious, indirect evasions of the Constitu-
cotton south of the line, and so to provide that the tion have been attempted and defeated heretofore.
Northern people shall manufacture for those of the In the passenger cases, (7 How. R.,) the attempt
South, and barter for the staple articles slave labor was made to impose a tax on the masters, crews,
produces. And thus the Northern farmer and mech- and passengers of vessels, the Constitution having
anic would be held out, as the slaveholder was for prohibited a tax on the vessel itself; but this court
thirty years, by the Missouri restriction. held the attempt to be a mere evasion, and pro-
nounced the tax illegal.
If Congress could prohibit one species of property,
lawful throughout Louisiana when it was acquired, I admit that Virginia could, and lawfully did, pro-
and lawful in the State from whence it was brought, hibit slavery northwest of the Ohio, by her charter
so Congress might exclude any or all property. of cession, and that the territory was taken by the
United States with this condition imposed. I also
The case before us will illustrate the construction admit that France could, by the treaty of 1803, have
contended for. Dr. Emerson was a citizen of Mis- prohibited slavery in any part of the ceded territory,
souri; he had an equal right to go to the Territory and imposed it on the United States as a fundament-
with every citizen of other States. This is undeni- al condition of the cession, in the mean time, till
able, as I suppose. Scott was Dr. Emerson's lawful new States were admitted in the Union.
property in Missouri; he carried his Missouri title
with him; and the precise question here is, whether I concur with Judge Baldwin, that Federal power is
Congress had the power to annul that title. It is idle exercised over all the territory within the United
to say, that if Congress could not defeat the title States, pursuant to the Constitution; and, the condi-
directly, that it might be done *528 indirectly, by tions of the cession, whether it was a part of the ori-
drawing a narrow circle around the slave population ginal territory of a State of the Union, or of a for-
of Upper Louisiana, and declaring that if the slave eign State, ceded by deed or treaty; the right of the
went beyond it he should be free. Such assumption United States in or over it depends on the contract
is mere evasion, and entitled to no consideration. of cession, which operates to incorporate as well
And it is equally idle to contend, that because Con- the Territory as its inhabitants into the Union.
gress has express power to regulate commerce (Baldwin's Constitutional Views, 84.)
among the Indian tribes, and to prohibit intercourse
My opinion is, that the third article of the treaty of
with the Indians, that therefore Dr. Emerson's title
1803, ceding Louisiana to the United States, stands
might be defeated within the country ceded by the
protected by the Constitution, and cannot be re-
Indians to the United States as early as 1805, and
pealed by Congress.
which embraces Fort Snelling. (Am. State Papers,
vol. 1, p. 734.) We must meet the question, whether And, secondly, that the act of 1820, known as the
Congress had the power to declare that a citizen of Missouri *529 compromise, violates the most lead-
a State, carrying with him his equal rights, secured ing feature of the Constitution-a feature on which
to him through his State, could be stripped of his the Union depends, and which secures to the re-
goods and slaves, and be deprived of any participa- spective States and their citizens and entire
tion in the common property? If this be the true EQUALITY of rights, privileges, and immunities.
meaning of the Constitution, equality of rights to
enjoy a common country (equal to a thousand miles On these grounds, I hold the compromise act to

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have been void; and, consequently, that the year 1834, the plaintiff was a negro slave belonging
plaintiff, Scott, can claim no benefit under it. to Dr. Emerson, who was a surgeon in the army of
the United States. In that year, Dr. Emerson took
For the reasons above stated, I concur with my the plaintiff from the State of Missouri to *530 the
brother, judges that the plaintiff, Scott, is a slave, post of Rock Island, in the State of Illinois, and
and was so when this suit was brought. held him there as a slave until the month of April or
May, 1836. At the time last mentioned, Dr. Emer-
Mr. Justice McLEAN and Mr. Justice CURTIS dis-
son removed the plaintiff from Rock Island to the
sented.Mr. Justice McLEAN dissenting.
military post at Fort Snelling, situate on the west
This case is before us on a writ of error from the
bank of the Mississippi river, in the territory
Circuit Court for the district of Missouri.
Known as Upper Louisiana, acquired by the United
An action of trespass was brought, which charges States of France, and situate north of latitude thirty-
the defendant with an assault and imprisonment of six degrees thirty minutes north, and north of the
the plaintiff, and also of Harriet Scott, his wife, State of Missouri. Dr. Emerson held the plaintiff in
Eliza and Lizzie, his two children, on the ground slavery, at Fort Snelling, from the last-mentioned
that they were his slaves, which was without right date until the year 1838.
on his part, and against law.
In the year 1835, Harriet, who is named in the
The defendant filed a plea in abatement, ‘that said second count of the plaintiff's declaration, was the
causes of action, and each and every of them, if any negro slave of Major Taliaferro, who belonged to
such accrued to the said Dred Scott, accrued out of the army of the United States. In that year, Major
the jurisdiction of this court, and exclusively within Taliaferro took Harriet to Fort Snelling, a military
the jurisdiction of the courts of the State of Mis- post situated as hereinbefore stated, and kept her
souri, for that to wit, said plaintiff, Dred Scott, is there as a slave until the year 1836, and then sold
not a citizen of the State of Missouri, as alleged in and delivered her as a slave, at Fort Snelling, unto
his declaration, because he is a negro of African Dr. Emerson, who held her in slavery, at that place,
descent, his ancestors were of pure African blood, until the year 1838.
and were brought into this country and sold as
In the year 1836, the plaintiff and Harriet were mar-
negro slaves; and this the said Sandford is ready to
ried at Fort Snelling, with the consent of Dr. Emer-
verify; wherefore he prays judgment whether the
son, who claimed to be their master and owner.
court can or will take further cognizance of the ac-
Eliza and Lizzie, named in the third count of the
tion aforesaid.’
plaintiff's declaration, are the fruit of that marriage.
**97 To this a demurrer was filed, which, on argu- Eliza is about fourteen years old, and was born on
ment, was sustained by the court, the plea in abate- board the steamboat Gipsey, north of the north line
ment being held insufficient; the defendant was of the State of Missouri, and upon the river Missis-
ruled to plead over. Under this rule he pleaded: 1. sippi. Lizzie is about seven years old, and was born
Not guilty; 2. That Dred Scott was a negro slave, in the State of Missouri, at the military post called
the property of the defendant; and 3. That Harriet, Jefferson Barracks.
the wife, and Eliza and Lizzie, the daughters of the
In the year 1838, Dr. Emerson removed the plaintiff
plaintiff, were the lawful slaves of the defendant.
and said Harriet and their daughter Eliza from Fort
Issue was joined on the first plea, and replications Snelling to the State of Missouri, where they have
of de injuria were filed to the other pleas. ever since resided.

The parties agreed to the following facts: In the Before the commencement of the suit, Dr. Emerson

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sold and conveyed the plaintiff, Harriet, Eliza, and gravamen of the plea is this: ‘That the plaintiff is a
Lizzie, to the defendant, as slaves, and he has ever negro of African descent, his ancestors being of
since claimed to hold them as slaves. pure African blood, and were brought into this
country, and sold as negro slaves.’
At the times mentioned in the plaintiff's declara-
tion, the defendant, claiming to be the owner, laid There is no averment in this plea which shows or
his hands upon said plaintiff, Harriet, Eliza, and conduces to show an inability in the plaintiff to sue
Lizzie, and imprisoned them; doing in this respect, in the Circuit Court. It does not allege that the
however, no more than he might lawfully do, if plaintiff had his domicil in any other State, nor that
they were of right his slaves at such times. he is not a free man in Missouri. He is averred to
have had a negro ancestry, but this does not show
**98 In the first place, the plea to the jurisdiction is that he is not a citizen of Missouri, within the
not before us, on this writ of error. A demurrer to meaning of the act of Congress authorizing him to
the plea was sustained, which ruled the plea bad, sue in the Circuit Court. It has never been held ne-
and the defendant, on leave, pleaded over. cessary, to constitute a citizen within the act, that
he should have the qualifications of an elector. Fe-
The decision on the demurrer was in favor of the
males and minors may sue in the Federal courts,
plaintiff; and as the plaintiff prosecutes this writ of
and so may any individual who has a permanent
error, he does not complain of the decision on the
domicil in the State under whose laws his rights are
demurrer. The defendant *531 might have com-
protected, and to which he owes allegiance.
plained of this decision, as against him, and have
prosecuted a writ of error, to reverse it. But as the Being born under our Constitution and laws, no nat-
case, under the instruction of the court to the jury, uralization is required, as one of foreign birth, to
was decided in his favor, of course he had no make him a citizen. The most general and appropri-
ground of complaint. ate definition of the term citizen is ‘a freeman.’ Be-
ing a freeman, and having his domicil in a State dif-
But it is said, if the court, on looking at the record,
ferent from that of the defendant, he is a citizen
shall clearly perceive that the Circuit Court had no
within the act of Congress, and the courts of the
jurisdiction, it is a ground for the dismissal of the
Union are open to him.
case. This may be characterized as rather a sharp
practice, and one which seldom, if ever, occurs. No **99 It has often been held, that the jurisdiction, as
case was cited in the argument as authority, and not regards parties, can only be exercised between cit-
a single case precisely in point is recollected in our izens of different States, *532 and that a mere res-
reports. The pleadings do not show a want of juris- idence is not sufficient; but this has been said to
diction. This want of jurisdiction can only be ascer- distinguish a temporary from a permanent resid-
tained by a judgment on the demurrer to the special ence.
plea. No such case, it is believed, can be cited. But
if this rule of practice is to be applied in this case, To constitute a good plea to the jurisdiction, it must
and the plaintiff in error is required to answer and negative those qualities and rights which enable an
maintain as well the points ruled in his favor, as to individual to sue in the Federal courts. This has not
show the error of those ruled against him, he has been done; and on this ground the plea was defect-
more than an ordinary duty to perform. Under such ive, and the demurrer was properly sustained. No
circumstances, the want of jurisdiction in the Cir- implication can aid a plea in abatement or in bar; it
cuit Court must be so clear as not to admit of doubt. must be complete in itself; the facts stated, if true,
Now, the plea which raises the question of jurisdic- must abate or bar the right of the plaintiff to sue.
tion, in my judgment, is radically defective. The This is not the character of the above plea. The

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facts stated, if admitted, are not inconsistent with diction ‘may be exercised between citizens of dif-
other facts, which may be presumed, and which ferent States,’ and the same is provided *533 in the
bring the plaintiff within the act of Congress. act of 1789. The above argument is properly met by
saying that the Constitution was intended to be a
The pleader has not the boldness to allege that the practical instrument; and where its language is too
plaintiff is a slave, as that would assume against plain to be misunderstood, the argument ends.'
him the matter in controversy, and embrace the en-
tire merits of the case in a plea to the jurisdiction. **100 In Chirae v. Chirae, (2 Wheat., 261; 4 Curtis,
But beyond the facts set out in the plea, the court, 99,) this court says: ‘That the power of naturaliza-
to sustain it, must assume the plaintiff to be a slave, tion is exclusively in Congress does not seem to be,
which is decisive on the merits. This is a short and and certainly ought not to be, controverted.’ No
an effectual mode of deciding the cause; but I am person can legally be made a citizen of a State, and
yet to learn that it is sanctioned by any known rule consequently a citizen of the United States, of for-
of pleading. eign birth, unless he be naturalized under the acts of
Congress. Congress has power ‘to establish a uni-
The defendant's counsel complain, that if the court form rule of naturalization.’
take jurisdiction on the ground that the plaintiff is
free, the assumption is against the right of the mas- It is a power which belongs exclusively to Con-
ter. This argument is easily answered. In the first gress, as intimately connected with our Federal re-
place, the plea does not show him to be a slave; it lations. A State may authorize foreigners to hold
does not follow that a man is not free whose ancest- real estate within its jurisdiction, but it has no
ors were slaves. The reports of the Supreme Court power to naturalize foreigners, and give them the
of Missouri show that this assumption has many ex- rights of citizens. Such a right is opposed to the acts
ceptions; and there is no averment in the plea that of Congress on the subject of naturalization, and
the plaintiff is not within them. subversive of the Federal powers. I regret that any
countenance should be given from this bench to a
By all the rules of pleading, this is a fatal defect in practice like this in some of the States, which has
the plea. If there be doubt, what rule of construction no warrant in the Constitution.
has been established in the slave States? In Jacob v.
Sharp, (Meigs's Rep., Tennessee, 114,) the court In the argument, it was said that a colored citizen
held, when there was doubt as to the constuction of would not be an agreeable member of society. This
a will which emancipated a slave, ‘it must be con- is more a matter of taste than of law. Several of the
strued to be subordinate to the higher and more im- States have admitted persons of color to the right of
portant right of freedom.’ suffrage, and in this view have recognized them as
citizens; and this has been done in the slave as well
No injustice can result to the master, from an exer- as the free States. On the question of citizenship, it
cise of jurisdiction in this cause. Such a decision must be admitted that we have not been very fasti-
does not in any degree affect the merits of the case; dious. Under the late treaty with Mexico, we have
it only enables the plaintiff to assert his claims to made citizens of all grades, combinations, and col-
freedom before this tribunal. If the jurisdiction be ors. The same was done in the admission of Louisi-
ruled against him, on the ground that he is a slave, ana and Florida. No one ever doubted, and no court
it is decisive of his fate. ever held, that the people of these Territories did
not become citizens under the treaty. They have ex-
It has been argued that, if a colored person be made
ercised all the rights of citizens, without being nat-
a citizen of a State, he cannot sue in the Federal
uralized under the acts of Congress.
court. The Constitution declares that Federal juris-

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There are several important principles involved in form, to return him to his master. The Roman law
this case, which have been argued, and which may did now allow freedom to be sold. An ambassador
be considered under the following heads: or any other public functionary could not take a
slave to France, Spain, or any other country of
1. The locality of slavery, as settled by this court Europe, without emancipating him. A number of
and the courts of the States. slaves escaped from a Florida plantation, and were
received on board of ship by Admiral Cochrane; by
2. The relation which the Federal Government bears
the King's Bench, they were held to be free. (2
to slavery in the States.
Barn. and Cres., 440.)
3. The power of Congress to establish Territorial
In the great and leading case of Prigg v. The State
Governments, and to prohibit the introduction of
of Pennsylvania, (16 Peters, 594; 14 Curtis, 421,)
slavery therein.
this court say that, by the general law of nations, no
4. The effect of taking slaves into a new State or nation is bound to recognize the state of slavery, as
Territory, and so holding them, where slavery is found within its territorial dominions, where it is in
prohibited. opposition to its own policy and institutions, in fa-
vor of the subjects of other nations where slavery is
5. Whether the return of a slave under the control of organized. If it does it, it is as a matter of comity,
his *534 master, after being entitled to his freedom, and not as a matter of international right. The state
reduces him to his former condition. of slavery is deemed to be a mere municipal regula-
tion, founded upon and limited to the range of the
6. Are the decisions of the Supreme Court of Mis- territorial laws. This was fully recognized in
souri, on the questions before us, binding on this Somersett's case, (Lafft's Rep., 1; 20 Howell's State
court, within the rule adopted. Trials, 79,) which was decided before the American
Revolution.
In the course of my judicial duties, I have had occa-
sion to consider and decide several of the above There was some contrariety of opinion among the
points. judges on certain points ruled in Prigg's case, but
there was none in regard to the great principle, that
1. As to the locality of slavery. The civil law
slavery is limited to the range of the laws under
throughout the Continent of Europe, it is believed,
which it is sanctioned.
without an exception, is, that slavery can exist only
within the territory where it is established; and that, No case in England appears to have been more
if a slave escapes, or is carried beyond such territ- thoroughly examined than that of Somersett. The
ory, his mater cannot reclaim him, unless by virtue judgment pronounced *535 by Lord Mansfield was
of some express stipulation. (Grotius, lib. 2, chap. the judgment of the Court of King's Bench. The
15, 5, 1; lib. 10, chap. 10, 2, 1; Wicqueposts Am- cause was argued at great length, and with great
bassador, lib. 1, p. 418; 4 Martin, 385; Case of the ability, by Hargrave and others, who stood among
Creole in the House of Lords, 1842; 1 Phillimore the most eminent counsel in England. It was held
on International Law, 316, 335.) under advisement from term to term, and a due
sense of its importance was felt and expressed by
**101 There is no nation in Europe which considers
the Bench.
itself bound to return to his master a fugitive slave,
under the civil law or the law of nations. On the In giving the opinion of the court, Lord Mansfield
contrary, the slave is held to be free where there is said:
no treaty obligation, or compact in some other

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‘The state of slavery is of such a nature that it is in- where the institution is not recognized and protec-
capable of being introduced on any reasons, moral ted by statutory enactments and judicial decisions.
or political, but only by positive law, which pre- Slaves are made property by the laws of the slave
serves its force long after the reasons, occasion, and States, and as such are liable to the claims of credit-
time itself, from whence it was created, is erased ors; *536 they descend to heirs, are taxed, and in
from the memory; it is of a nature that nothing can the South they are a subject of commerce.
be suffered to support it but positive law.‘
In the case of Rankin v. Lydia, (2 A. K. Marshall's
He referred to the contrary opinion of Lord Hard- Rep.,) Judge Mills, speaking for the Court of Ap-
wicke, in October, 1749, as Chancellor: ‘That he peals of Kentucky, says: ‘In deciding the question,
and Lord Talbot, when Attorney and Solicitor Gen- (of slavery,) we disclaim the influence of the gener-
eral, were of opinion that no such claim, as here al principles of liberty, which we all admire, and
presented, for freedom, was valid.‘ conceive it ought to be decided by the law as it is,
and not as it ought to be. Slavery is sanctioned by
The weight of this decision is sought to be im- the laws of this State, and the right to hold slaves
paired, from the terms in which it was described by under our municipal regulations is unquestionable.
the exuberant imagination of Curran. The words of But we view this as a right existing by positive law
Lord Mansfield, in giving the opinion of the court, of a municipal character, without foundation in the
were such as were fit to be used by a great judge, in law of nature, or the unwritten and common law.‘
a most important case. It is a sufficient answer to
all objections to that judgment, that it was pro- I will now consider the relation which the Federal
nounced before the Revolution, and that it was con- Government bears to slavery in the States:
sidered by this court as the highest authority. For
near a century, the decision in Somersett's case has Slavery is emphatically a State institution. In the
remained the law of England. The case of the slave ninth section of the first article of the Constitution,
Grace, decided by Lord Stowell in 1827, does not, it is provided ‘that the migration or importation of
as has been supposed, overrule the judgment of such persons as any of the States now existing shall
Lord Mansfield. Lord Stowell held that, during the think proper to admit, shall not be prohibited by the
residence of the slave in England, ‘No dominion, Congress prior to the year 1808, but a tax or duty
authority, or coercion, can be exercised over him.‘ may be imposed on such importation, not exceeding
Under another head, I shall have occasion to exam- ten dollars for each person.‘
ine the opinion in the case of Grace.
In the Convention, it was proposed by a committee
**102 To the position, that slavery can only exist of eleven to limit the importation of slaves to the
except under the authority of law, it is objected, year 1800, when Mr. Pinckney moved to extend the
that in few if in any instances has it been estab- time to the year 1808. This motion was carried-
lished by statutory enactment. This is no answer to New Hampshire, Massachusetts, Connecticut,
the doctrine laid down by the court. Almost all the Maryland, North Carolina, South carolina, and
principles of the common law had their foundation Georgia, voting in the affirmative; and New Jersey,
in usage. Slavery was introduced into the colonies Pennsylvania, and Virginia, in the negative. In op-
of this country by Great Britain at an early period position to the motion, Mr. Madison said: ‘Twenty
of their history, and it was protected and cherished, years will produce all the mischief that can be ap-
until it became incorporated into the colonial prehended from the liberty to import slaves; so long
policy. It is immaterial whether a system of slavery a term will be more dishonorable to the American
was introduced by express law, or otherwise, if it character than to say nothing about it in the Consti-
have the authority of law. There is no slave State tution.‘ (Madison Papers.)

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The provision in regard to the slave trade shows We need not refer to the mercenary spirit which in-
clearly that Congress considered slavery a State in- troduced the infamous traffic in slaves, to show the
stitution, to be continued and regulated by its indi- degradation of negro slavery in our country. This
vidual sovereignty; and to conciliate that interest, system was imposed upon our colonial settlements
the slave trade was continued twenty years, not as a by the mother country, and it is due to truth to say
general measure, but for the ‘benefit of such States that the commercial colonies and States were
as shall think proper to encourage it.‘ chiefly engaged in the traffic. But we know as a
historical fact, that James Madison, that great and
**103 In the case of Groves v. Slaughter, (15 good man, a leading member in the Federal Con-
Peters, 499; 14 Curtis, 137,) Messrs. Clay and vention, was solicitous to guard the language of
Webster contended that, under the commercial that instrument so as not to convey the idea that
power, Congress had a right to regulate the slave there could be property in man.
trade among the several States; but the court held
that Congress had no power to interfere with I prefer the lights of Madison, Hamilton, and Jay,
slavery as it exists in the States, or to regulate what as a means of construing the Constitution in all its
is called the slave trade among *537 them. If this bearings, rather than to look behind that period, into
trade were subject to the commercial power, it a traffic which is now declared to be piracy, and
would follow that Congress could abolish or estab- punished with death by Christian nations. I do not
lish slavery in every State of the Union. like to draw the sources of our domestic relations
from so dark a ground. Our independence was a
The only connection which the Federal Government great epoch in the history of freedom; and while I
holds with slaves in a State, arises from that provi- admit the Government was not made expecially for
sion of the Constitution which declares that ‘No the colored race, yet many of them were citizens of
person held to service or labor in one State, under the New England States, and exercised, the rights
the laws thereof, escaping into another, shall, in of suffrage when the Constitution was adopted, and
consequence of any law or regulation therein, be it was not doubted by any intelligent person that its
discharged from such service or labor, but shall be tendencies would greatly ameliorate their condition.
delivered up, on claim of the party to whom such
service or labor may be due.’ **104 Many of the States, on the adoption of the
Constitution, or *538 shortly afterward, took meas-
This being a fundamental law of the Federal Gov- ures to abolish slavery within their respective juris-
ernment, it rests mainly for its execution, as has dictions; and it is a well-known fact that a belief
been held, on the judicial power of the Union; and was cherished by the leading men, South as well as
so far as the rendition of fugitives from labor has North, that the institution of slavery would gradu-
become a subject of judicial action, the Federal ob- ally decline, until it would become extinct. The in-
ligation has been faithfully discharged. creased value of slave labor, in the culture of cotton
and sugar, prevented the realization of this expecta-
In the formation of the Federal Constitution, care
tion. Like all other communities and States, the
was taken to confer no power on the Federal Gov-
South were influenced by what they considered to
ernment to interfere with this institution in the
be their own interests.
States. In the provision respecting the slave trade,
in fixing the ratio of representation, and providing But if we are to turn our attention to the dark ages
for the reclamation of fugitives from labor, slaves of the world, why confine our view to colored
were referred to as persons, and in no other respect slavery? On the same principles, white men were
are they considered in the Constitution. made slaves. All slavery has its origin in power,
and is against right.

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The power of Congress to establish Territorial Gov- United States. To institute temporary Governments
ernments, and to prohibit the introduction of for new States arising therein. To regulate affairs
slavery therein, is the next point to be considered. with the Indians, as well within as without the lim-
its of the United States.‘
After the cession of western territory by Virginia
and other States, to the United States, the public at- **105 Other propositions were made in reference to
tention was directed to the best mode of disposing the same subjects, which it would be tedious to
of it for the general benefit. While in attendence on enumerate. Mr. Gouverneur Morris proposed the
the Federal Convention, Mr. Madison, in a letter to following:
Edmund Randolph, dated the 22d April, 1787, says:
‘Congress are deliberating on the plan most eligible ‘The Legislature shall have power to dispose of and
for disposing of the western territory not yet sur- make all needful rules and regulations respecting
veyed. Some alteration will probably be made in the territory or other property belonging to the
the ordinance on that subject.‘ And in the same let- United States; and nothing in this Constitution con-
ter he says: ‘The inhabitants of the Illinois com- tained shall be so construed as to prejudice any
plain of the land jobbers, &c., who are purchasing claims either of the United States or of any particu-
titles among them. Those of St. Vincent's complain lar State.‘
of the defective criminal and civil justice among
This was adopted as a part of the Constitution, with
them, as well as of military protection.‘ And on the
two verbal alterations-Congress was substituted for
next day he writes to Mr. Jefferson: ‘The govern-
Legislature, and the word either was stricken out.
ment of the settlements on the Illinois and Wabash
is a subject very perplexing in itself, and rendered In the organization of the new Government, but
more so by our ignorance of the many circum- little revenue for a series of years was expected
stances on which a right judgment depends. The in- from commerce. The public lands were considered
habitants at those places claim protection against as the principal resource of the country for the pay-
the savages, and some provision for both civil and ment of the Revolutionary debt. Direct taxation was
criminal justice.‘ the means relied on to pay the current expenses of
the Government. The short period that occurred
In May, 1787, Mr. Edmund Randolph submitted to
between the cession of western lands to the Federal
the Federal Convention certain propositions, as the
Government by Virginia and other States, and the
basis of a Federal Government, among which was
adoption of the Constitution, was sufficient to show
the following:
the necessity of a proper land system and a tempor-
‘Resolved, That provision ought to be made for the ary Government. This was clearly seen by proposi-
admission of States lawfully arising within the lim- tions and remarks in the Federal Convention, some
its of the United States, whether from a voluntary of which are above cited, by the passage of the Or-
junction of government and territory or otherwise, dinance of 1787, and the adoption of that instru-
with the consent of a number of voices in the Na- ment by Congress, under the Constitution, which
tional Legislature less than the whole.‘ gave to it validity.

Afterward, Mr. Madison submitted to the Conven- It will be recollected that the deed of cession of
tion, in order to be referred to the committee of de- western territory was made to the United States by
tail, the following powers, as proper to be added to Virginia in 1784, and that it required the territory
those of general legislation: ceded to be laid out into States, that the land should
be disposed of for the common benefit of the
*539 ‘To dispose of the unappropriated lands of the States, and that all right, title, and claim, as well of

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soil as of jurisdiction, were ceded; and this was the The power to dispose of is complete in itself, and
form of cession from other States. requires nothing more. It authorizes Congress to
use the proper means within its discretion, and any
On the 13th of July, the Ordinance of 1787 was further provision for this purpose would be a use-
passed, ‘for the government of the United States less verbiage. As a composition, the Constitution is
territory northwest of the river Ohio,‘ with but one remarkably free from such a charge.
dissenting vote. This instrument provided there
should be organized in the territory not less than In the discussion of the power of Congress to gov-
three nor more than five States, designating their ern a Territory, in the case of the Atlantic Insurance
boundaries. It passed while the Federal Convention Company v. Canter, (1 Peters, 511; 7 Curtis, 685,)
was in session, about two months before the Consti- Chief Justice Marshall, speaking for the court, said,
tution was adopted by the Convention. The mem- in regard to the people of Florida, ‘they do not,
bers of the Convention must therefore have been however, participate in political power; they do not
well acquainted with the provisions of the *540 Or- share in the Government till Florida shall become a
dinance. It provided for a temporary Government, State; in the mean time, Florida continues to be a
as initiatory to the formation of State Governments. Territory of the United States, governed by virtue
Slavery was prohibited in the territory. of that clause in the Constitution which empowers
Congress ‘to make all needful rules and regulations
Can any one suppose that the eminent men of the respecting the territory or other property belonging
Federal Convention could have overlooked or neg- to the United States.‘’
lected a matter so vitally important to the country,
in the organization of temporary Governments for And he adds, ‘perhaps the power of governing a
the vast territory northwest of the river Ohio? In the Territory belonging to the United States, which has
3d section of the 4th article of the Constitution, not, by becoming a State, acquired the means of
they did make provision for the admission of new self-government, may result *541 necessarily from
States, the sale of the public lands, and the tempor- the fact that it is not within the jurisdiction of any
ary Government of the territory. Without a tempor- particular State, and is within the power and juris-
ary Government, new States could not have been diction of the United States. The right to govern
formed, nor could the public lands have been sold. may be the inevitable consequence of the right to
acquire territory; whichever may be the source
**106 If the third section were before us now for whence the power is derived, the possession of it is
consideration for the first time, under the facts unquestioned.’ And in the close of the opinion, the
stated, I could not hesitate to say there was ad- court say, ‘in legislating for them [the Territories,]
equate legislative power given in it. The power to Congress exercises the combined powers of the
make all needful rules and regulations is a power to General and State Governments.‘
legislate. This no one will controvert, as Congress
cannot make ‘rules and regulations,‘ except by le- Some consider the opinion to be loose and incon-
gislation. But it is argued that the word territory is clusive; others, that it is obiter dicta; and the last
used as synonymous with the word land; and that sentence is objected to as recognizing absolute
the rules and regulations of Congress are limited to power in Congress over Territories. The learned
the disposition of lands and other property belong- and eloquent Wirt, who, in the argument of a cause
ing to the United States. That this is not the true before the court, had occasion to cite a few sen-
construction of the section appears from the fact tences from an opinion of the Chief Justice, ob-
that in the first line of the section ‘the power to dis- served, ‘no one can mistake the style, the words so
pose of the public lands‘ is given expressly, and, in completely match the thought.‘
addition, to make all needful rules and regulations.

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**107 I can see no want of precision in the lan- end, and do not conflict with any of the prohibitions
guage of the Chief Justice; his meaning cannot be of the Constitution. If a temporary Government be
mistaken. He states, first, the third section as giving deemed needful, necessary, requisite, or is wanted,
power to Congress to govern the Territories, and Congress has power to establish it. This court says,
two other grounds from which the power may also in McCulloch v. The State of Maryland, (4 Wheat.,
be implied. The objection seems to be, that the 316,) ‘If a certain means to carry into effect any of
Chief Justice did not say which of the grounds the powers expressly given by the Constitution to
stated he considered the source of the power. He the Government of the Union be an appropriate
did not specifically state this, but he did say, measure, not prohibited by the Constitution, the de-
‘whichever may be the source whence the power is gree of its necessity is a question of legislative dis-
derived, the possession of it is unquestioned. ‘ No cretion, not of judicial cognizance.‘
opinion of the court could have been expressed
with a stronger emphasis; the power in Congress is The power to establish post offices and post roads
unquestioned. But those who have undertaken to gives power to Congress to make contracts for the
criticise the opinion, consider it without authority, transportation of the mail, and to punish all who
because the Chief Justice did not designate spe- commit depredations upon it in its transit, or at its
cially the power. This is a singular objection. If the places of distribution. Congress has power to regu-
power be unquestioned, it can be a matter of no im- late commerce, and, in the exercise of its discretion,
portance on which ground it is exercised. to lay an embargo, which suspends commerce; so,
under the same power, harbors, lighthouses, break-
The opinion clearly was not obiter dicta. The turn- waters, &c., are constructed.
ing point in the case was, whether Congress had
power to authorize the Territorial Legislature of **108 Did Chief Justice Marshall, in saying that
Florida to pass the law under which the Territorial Congress governed a Territory, by exercising the
court was established, whose decree was brought combined powers of the Federal and State Govern-
before this court for revision. The power of Con- ments, refer to unlimited discretion? A Government
gress, therefore, was the point in issue. which can make white men slaves? Surely, such a
remark in the argument must have been inadvert-
The word ‘territory,‘ according to Worcester, ently uttered. On the contrary, there is no power in
‘means land, country, a district of country under a the Constitution by which Congress can make
temporary Government.‘ The words ‘territory or either white or black men slaves. In organizing the
other property,’ as used, do imply, from the use of Government of a Territory, Congress is limited to
the pronoun other, that territory was used as de- meams appropriate to the attainment of the consti-
scriptive of land; but does it follow that it was not tutional object. No powers can be exercised which
used also as descriptive of a district of country? In are prohibited by the Constitution, or which are
both of these senses it belonged to the United contrary to its spirit; so that, whether the object
States-as land, for the purpose of sale; as territory, may be the protection of the persons and property
for the purpose of government. of purchasers of the public lands, or of communities
who have been annexed to the Union by conquest
*542 But, if it be admitted that the word territory as or purchase, they are initiatory to the establishment
used means land, and nothing but land, the power of State Governments, and no more power can be
of Congress to organize a temporary Government is claimed or exercised than is necessary to the attain-
clear. It has power to make all needful regulations ment of the end. This is the limitation of all the
respecting the public lands, and the extent of those Federal powers.
'needful regulations' depends upon the direction of
Congress, where the means are appropriate to the But Congress has no power to regulate the internal

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concerns of a State, as of a Territory; consequently, any foreign power invade our jurisdiction, it would
in providing for the Government of a Territory, to be repelled. There is a law of Congress to punish
some extent, the combined powers of the Federal our citizens for crimes committed in districts of
and State Governments are necessarily exercised. country where there is no organized Government.
Criminals are brought to certain Territories or
*543 If Congress should deem slaves or free States, designated in the law, for punishment. Death
colored persons injurious to the population of a free has been inflicted in Arkansas and in Missouri, on
Territory, as conducing to lessen the value of the individuals, for murders committed beyond the lim-
public lands, or on any other ground connected with it of any organized Territory or State; and no one
the public interest, they have the power to prohibit doubts that such a jurisdiction was rightfully exer-
them from becoming settlers in it. This can be sus- cised. If there be a right to acquire territory, there
tained on the ground of a sound national policy, necessarily must be an implied power to govern it.
which is so clearly shown in our history by practic- When the military force of the Union shall conquer
al results, that it would seem no considerate indi- a country, may not Congress provide for the gov-
vidual can question it. And, as regards any unfair- ernment of such country? This would be an implied
ness of such a policy to our Southern brethren, as power essential to the acquisition of new territory.
urged in the argument, it is only necessary to say *544 This power has been exercised, without doubt
that, with one-fourth of the Federal population of of its constitutionality, over territory acquired by
the Union, they have in the slave States a larger ex- conquest and purchase.
tent of fertile territory than is included in the free
States; and it is submitted, if masters of slaves be And when there is a large district of country within
restricted from bringing them into free territory, the United States, and not within any State Govern-
that the restriction on the free citizens of non- ment, if it be necessary to establish a temporary
slaveholding States, by bringing slaves into free ter- Government to carry out a power expressly vested
ritory, is four times greater than that complained of in Congress-as the disposition of the public lands-
by the South. But, not only so; some three or four may not such Government be instituted by Con-
hundred thousand holders of slaves, by bringing gress? How do we read the Constitution? Is it not a
them into free territory, impose a restriction on practical instrument?
twenty millions of the free States. The repugnancy
to slavery would probably prevent fifty or a hun- In such cases, no implication of a power can arise
dred freemen from settling in a slave Territory, which is inhibited by the Constitution, or which
where one slaveholder would be prevented from may be against the theory of its construction. As
settling in a free Territory. my opinion rests on the third section, these remarks
are made as an intimation that the power to estab-
This remark is made in answer to the argument lish a temporary Government may arise, also, on
urged, that a prohibition of slavery in the free Ter- the other two grounds stated in the opinion of the
ritories is inconsistent with the continuance of the court in the insurance case, without weakening the
Union. Where a Territorial Government is estab- third section.
lished in a slave Territory, it has uniformly re-
mained in that condition until the people form a I would here simply remark, that the Constitution
State Constitution; the same course where the Ter- was formed for our whole country. An expansion or
ritory is free, both parties acting in good faith, contraction of our territory required no change in
would be attended with satisfactory results. the fundamental law. When we consider the men
who laid the foundation of our Government and
**109 The sovereignty of the Federal Government carried it into operation, the men who occupied the
extends to the entire limits of our territory. Should bench, who filled the halls of legislation and the

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Chief Magistracy, it would seem, if any question evinces, in the opinion of your committee, that the
could be settled clear of all doubt, it was the power labor of slaves is not necessary to promote the
of Congress to establish Territorial Governments. growth and settlement of colonies in that region.
Slavery was prohibited in the entire Northwestern That this labor, demonstrably the dearest of any,
Territory, with the approbation of leading men, can only be employed to advantage in the cultiva-
South and North; but this prohibition was not re- tion of products more valuable than any known to
tained when this ordinance was adopted for the that quarter of the United States; that the committee
government of Southern Territories, where slavery deem it highly dangerous and inexpedient to impair
existed. In a late republication of a letter of Mr. a provision wisely calculated to promote the happi-
Madison, dated November 27, 1819, speaking of ness and prosperity of the Northwestern country,
this power of Congress to prohibit slavery in a Ter- and to give strength and security to that extensive
ritory, he infers there is no such power, from the frontier. In the salutary operation of this sagacious
fact that it has not been exercised. This is not a very and benevolent restraint, it is believed that the in-
satisfactory argument against any power, as there habitants will, at no very distant day, find ample re-
are but few, if any, subjects on which the constitu- muneration for a temporary privation of labor and
tional powers of Congress are exhausted. It is true, of emigration. ‘ (1 vol. State Papers, Public Lands,
as Mr. Madison states, that Congress, in the act to 160.)
establish a Government in the Mississippi Territory,
prohibited the importation of slaves into it from for- The judicial mind of this country, State and Feder-
eign parts; but it is equally true, that in the act al, has agreed on no subject, within its legitimate
erecting Louisiana into two Territories, Congress action, with equal unanimity, as on the power of
declared, ‘it shall not be lawful for any person to Congress to establish Territorial Governments. No
bring into Orleans Territory, from any port or place court, State or Federal, no judge or statesman, is
within the limits of the United States, any slave known to have had any doubts on this question for
which shall have been imported since 1798, or nearly sixty years after the power was exercised.
which may hereafter be imported, except by a cit- Such Governments have been established from the
izen of the United States who settles in the Territ- sources of the Ohio to the Gulf of Mexico, extend-
ory, under the penalty of the freedom of such ing to the Lakes on the north and the Pacific Ocean
slave.‘ The inference of Mr. Madison, therefore, on the west, and from the lines of Georgia to Texas.
against the power of *545 Congress, is of no force,
Great interests have grown up under the Territorial
as it was founded on a fact supposed, which did not
laws over a country more than five times greater in
exist.
extent than the original thirteen States; and these
**110 It is refreshing to turn to the early incidents interests, corporate or otherwise, have been cher-
of our history, and learn wisdom from the acts of ished and consolidated by a benign policy, without
the great men who have gone to their account. I any one supposing the law-making power had
refer to a report in the House of Representatives, by united with the Judiciary, under the universal sanc-
John Randolph, of Roanoke, as chairman of a com- tion of the whole country, to usurp a jurisdiction
mittee, in March, 1803-fifty-four years ago. From which did not belong to them. Such a discovery at
the Convention held at Vincennes, in Indiana, by this late date is more extraordinary than anything
their President, and from the people of the Territ- which has occurred in the judicial history of this or
ory, a petition was presented to Congress, praying any other country. Texas, under a previous organiz-
the suspension of the provision which prohibited ation, *546 was admitted as a State; but no State
slavery in that Territory. The report stated ‘that the can be admitted into the Union which has not been
rapid population of the State of Ohio sufficiently organized under some form of government. Without

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temporary Governments, our public lands could not Representatives, to 42. Before Mr. Monroe signed
have been sold, nor our wildernesses reduced to the act, it was submitted by him to his Cabinet, and
cultivation, and the population protected; nor could they held the restriction of slavery in a Territory to
our flourishing States, West and South, have been be within the constitutional powers of Congress. It
formed. would be singular, if in 1804 Congress had power
to prohibit the introduction of slaves in Orleans
What do the lessons of wisdom and experience Territory from any other part of the Union, under
teach, under such circumstances, if the new light, the penalty of freedom to the slave, if the same
which has so suddenly and unexpectedly burst upon power, embodied in the Missouri compromise,
us, be true? Acquiescence; acquiescence under a could not be exercised in 1820.
settled construction of the Constitution for sixty
years, though it may be erroneous; which has se- But this law of Congress, which prohibits slavery
cured to the country an advancement and prosperity north of *547 Missouri and of thirty-six degrees
beyond the power of computation. thirty minutes, is declared to have been null and
void by my brethren. And this opinion is founded
**111 An act of James Madison, when President, mainly, as I understand, on the distinction drawn
forcibly illustrates this policy. He had made up his between the ordinance of 1787 and the Missouri
opinion that Congress had no power under the Con- compromise line. In what does the distinction con-
stitution to establish a National Bank. In 1815, sist? The ordinance, it is said, was a compact
Congress passed a bill to establish a bank. He ve- entered into by the confederated States before the
toed the bill, on objections other than constitution- adoption of the Constitution; and that in the cession
al. In his message, he speaks as a wise statesman of territory authority was given to establish a Ter-
and Chief Magistrate, as follows: ritorial Government.

‘Waiving the question of the constitutional author- It is clear that the ordinance did not go into opera-
ity of the Legislature to establish an incorporated tion by virtue of the authority of the Confederation,
bank, as being precluded, in my judgment, by the but by reason of its modification and adoption by
repeated recognitions under varied circumstances of Congress under the Constitution. It seems to be
the validity of such an institution, in acts of the Le- supposed, in the opinion of the court, that the art-
gislative, Executive, and Judicial branches of the icles of cession placed it on a different footing from
Government, accompanied by indications, in differ- territories subsequently acquired. I am unable to
ent modes, of a concurrence of the general will of perceive the force of this distinction. That the or-
the nation.‘ dinance was intended for the government of the
Northwestern Territory, and was limited to such
Has this impressive lesson of practical wisdom be-
Territory, is admitted. It was extended to Southern
come lost to the present generation?
Territories, with modifications, by acts of Con-
If the great and fundamental principles of our Gov- gress, and to some Northern Territories. But the or-
ernment are never to be settled, there can be no dinance was made valid by the act of Congress, and
lasting prosperity. The Constitution will become a without such act could have been of no force. It res-
floating waif on the billows of popular excitement. ted for its validity on the act of Congress, the same,
in my opinion, as the Missouri compromise line.
The prohibition of slavery north of thirty-six de-
grees thirty minutes, and of the State of Missouri, **112 If Congress may establish a Territorial Gov-
contained in the act admitting that State into the ernment in the exercise of its discretion, it is a clear
Union, was passed by a vote of 134, in the House of principle that a court cannot control that discretion.
This being the case, I do not see on what grounD

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the act is held to be void. It did not purport to for- descend to his heirs as property? Can the master
feit property, or take it for public purposes. It only sell him? Any one or all of these acts may be done
prohibited slavery; in doing which, it followed the to the slave, where he is legally held to service. But
ordinance of 1787. where the law does not confer this power, it cannot
be exercised.
I will now consider the fourth head, which is: ‘The
effect of taking slaves into a State or Territory, and Lord Mansfield held that a slave brought into Eng-
so holding them, where slavery is prohibited.‘ land was free. Lord Stowell agreed with Lord
Mansfield in this respect, and that the slave could
If the principle laid down in the case of Prigg v. not be coerced in England; but on her voluntary re-
The State of Pennsylvania is to be maintained, and turn to Antigua, the place of her slave domicil, her
it is certainly to be maintained until overruled, as former status attached. The law of England did not
the law of this court, there can be no difficulty on prohibit slavery, but did not authorize it. The juris-
this point. In that case, the court says: ‘The state of diction which prohibits slavery is much stronger in
slavery is deemed to be a mere municipal regula- behalf of the slave within it, than where it only does
tion, founded upon and limited to the range of the not authorize it.
territorial laws.‘ If this be so, slavery can exist
nowhere except under the authority of law, founded **113 By virtue of what law is it, that a master may
on usage having the force of law, or by statutory re- take his slave into free territory, and exact from him
cognition. And the court further says: ‘It is mani- the duties of a slave? The law of the Territory does
fest, from this consideration, that if the Constitution not sanction it. No authority can be claimed under
had not contained the clause requiring the rendition the Constitution of the United States, or any law of
of fugitives from labor, every non-slaveholding Congress. Will it be said that the slave is taken as
State in the Union would have been at liberty to property, the same as other property which the mas-
have declared free all runaway slaves *548 coming ter may own? To this I answer, that colored persons
within its limits, and to have given them entire im- are made property by the law of the State, and no
munity and protection against the claims of their such power has been given to Congress. Does the
masters.‘ master carry with him the law of the State from
which he removes into the Territory? and does that
Now, if a slave abscond, he may be reclaimed; but enable him to coerce his slave in the Territory? Let
if he accompany his master into a State or Territory us test this theory. If this may be done by a master
where slavery is prohibited, such slave cannot be from one slave State, it may be done by a master
said to have left the service of his master where his from every other slave State. This right is supposed
services were legalized. And if slavery be limited to to be connected with the person of the master, by
the range of the territorial laws, how can the slave virtue of the local law. Is it transferable? May it be
be coerced to serve in a State or Territory, not only negotiated, as a promissory note or bill of ex-
without the authority of law, but against its express change? If it be assigned to a man from a free State,
provisions? What gives the master the right to con- may he coerce the slave by virtue of it? What shall
trol the will of his slave? The local law, which ex- this thing be *549 denominated? Is it personal or
ists in some form. But where there is no such law, real property? Or is it an indefinable fragment of
can the master control the will of the slave by sovereignty, which every person carries with him
force? Where no slavery exists, the presumption, from his late domicil? One thing is certain, that its
without regard to color, is in favor of freedom. Un- origin has been very recent, and it is unknown to
der such a jurisdiction, may the colored man be the laws of any civilized country.
levied on as the property of his master by a credit-
or? On the decease of the master, does the slave A slave is brought to England from one of its is-

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lands, where slavery was introduced and main- any other kind of property. It is true, this was said
tained by the mother country. Although there is no by the court, as also many other things, which are
law prohibiting slavery in England, yet there is no of no authority. Nothing that has been said by them,
law authorizing it; and, for near a century, its courts which has not a direct bearing on the jurisdiction of
have declared that the slave there is free from the the court, against which they decided, can be con-
coercion of the master. Lords Mansfield and Stow- sidered as *550 authority. I shall certainly not re-
ell agree upon this point, and there is no dissenting gard it as such. The question of jurisdiction, being
authority. before the court, was decided by them authoritat-
ively, but nothing beyond that question. A slave is
There is no other description of property which was not a mere chattel. He bears the impress of his
not protected in England, brought from one of its Maker, and is amenable to the laws of God and
slave islands. Does not this show that property in a man; and he is destined to an endless existence.
human being does not arise from nature or from the
common law, but, in the language of this court, ‘it Under this head I shall chiefly rely on the decisions
is a mere municipal regulation, founded upon and of the Supreme Courts of the Southern States, and
limited to the range of the territorial laws?‘ This de- especially of the State of Missouri.
cision is not a mere argument, but it is the end of
the law, in regard to the extent of slavery. Until it In the first and second sections of the sixth article
shall be overturned, it is not a point for argument; it of the Constitution of Illinois, it is declared that
is obligatory on myself and my brethren, and on all neither slavery nor involuntary servitude shall here-
judicial tribunals over which this court exercises an after be introduced into this State, otherwise than
appellate power. for the punishment of crimes whereof the party
shall have been duly convicted; and in the second
It is said the Territories are common property of the section it is declared that any violation of this art-
States, and that every man has a right to go there icle shall effect the emancipation of such person
with his property. This is not controverted. But the from his obligation to service. In Illinois, a right of
court say a slave is not property beyond the opera- transit through the State is given the master with his
tion of the local law which makes him such. Never slaves. This is a matter which, as I suppose, belongs
was a truth more authoritatively and justly uttered exclusively to the State.
by man. Suppose a master of a slave in a British is-
land owned a million of property in England; would The Supreme Court of Illinois, in the case of Jarrot
that authorize him to take his slaves with him to v. Jarrot, (2 Gilmer, 7,) said:
England? The Constitution, in express terms, recog-
‘After the conquest of this Territory by Virginia,
nizes the status of slavery as founded on the muni-
she ceded it to the United States, and stipulated that
cipal law: ‘No person held to service or labor in one
the titles and possessions, rights and liberties, of the
State, under the laws thereof, escaping into another,
French settlers, should be guarantied to them. This,
shall,‘ &c. Now, unless the fugitive escape from a
it has been contended, secured them in the posses-
place where, by the municipal law, he is held to
sion of those negroes as slaves which they held be-
labor, this provision affords no remedy to the mas-
fore that time, and that neither Congress nor the
ter. What can be more conclusive than this? Sup-
Convention had power to deprive them of it; or, in
pose a slave escape from a Territory where slavery
other words, that the ordinance and Constitution
is not authorized by law, can he be reclaimed?
should not be so interpreted and understood as ap-
**114 In this case, a majority of the court have said plying to such slaves, when it is therein declared
that a slave may be taken by his master into a Ter- that there shall be neither slavery nor involuntary
ritory of the United States, the same as a horse, or servitude in the Northwest Territory, nor in the

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State of Illinois, otherwise than in the punishment 1836) is a case involving, in every particular, the
of crimes. But it was held that those rights could principles of the case before us. Rachel sued for her
not be thus protected, but must yield to the ordin- freedom; and it appeared that she had been bought
ance and Constitution.‘ as a slave in Missouri, by Stockton, an officer of
the army, taken to Fort Snelling, where he was sta-
The first slave case decided by the Supreme Court tioned, and she was retained there as a slave a year;
of Missouri, contained in the reports, was Winny v. and then Stockton removed to Prairie du Chien, tak-
Whitesides, (1 Missouri Rep., 473,) at October ing Rachel with him as a slave, where he continued
term, 1824. It appeared that, more than twenty-five to hold her three years, and then he took her to the
years before, the defendant, with her husband, had State of Missouri, and sold her as a slave.
removed from Carolina to Illinois, and brought with
them the plaintiff; that they continued to reside in ‘Fort Snelling was admitted to be on the west side
Illinois three or four years, retaining the plaintiff as of the Mississippi river, and north of the State of
a slave; after which, they removed to Missouri, tak- Missouri, in the territory of the United States. That
ing her with them. Prairie du Chien was in the Michigan Territory, on
the east side of the Mississippi river. Walker, the
**115 The court held, that if a slave be detained in defendant, held Rachel under Stockton.‘
Illinois until he be entitled to freedom, the right of
the owner does not revive when he finds the negro The court said, in this case:
in a slave State.
‘The officer lived in Missouri Territory, at the time
*551 That when a slave is taken to Illinois by his he bought the slave; he sent to a slaveholding coun-
owner, who takes up his residence there, the slave try and procured her; this was his voluntary act,
is entitled to freedom. done without any other reason than that of his con-
venience; and he and those claiming under him
In the case of Lagrange v. Chouteau, (2 Missouri must be holden to abide the consequences of intro-
Rep., 20, at May term, 1828,) it was decided that ducing slavery both in Missouri Territory and
the ordinance of 1787 was intended as a fundament- Michigan, contrary to law; and on that ground
al law for those who may choose to live under it, Rachel was declared to be entitled to freedom.‘
rather than as a penal statute.
In answer to the argument that, as an officer of the
That any sort of residence contrived or permitted by army, the master had a right to take his slave into
the legal owner of the slave, upon the faith of secret free territory, the court said no authority of law or
trusts or contracts, in order to defeat or evade the the Government compelled him to keep the plaintiff
ordinance, and thereby introduce slavery de facto, there as a slave.
would entitle such slave to freedom.
**116 ‘Shall it be said, that because an officer of
In Julia v. McKinney, (3 Missouri Rep., 279,) it the army owns *552 slaves in Virginia, that when,
was held, where a slave was settled in the State of as officer and soldier, he is required to take the
Illinois, but with an intention on the part of the command of a fort in the non-slaveholding States or
owner to be removed at some future day, that hiring Territories, he thereby has a right to take with him
said slave to a person to labor for one or two days, as many slaves as will suit his interests or conveni-
and receiving the pay for the hire, the slave is en- ence? It surely cannot be law. If this be true, the
titled to her freedom, under the second section of court say, then it is also true that the convenience or
the sixth article of the Constitution of Illinois. supposed convenience of the officer repeals, as to
him and others who have the same character, the
Rachel v. Walker (4 Missouri Rep., 350, June term,

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ordinance and the act of 1821, admitting Missouri each other; that the courts of one State do not take
into the Union, and also the prohibition of the sev- notice of the laws of other States, unless proved as
eral laws and Constitutions of the non-slaveholding facts, and that every State has the right to determine
States.‘ how far its comity to other States shall extend; and
it is laid down, that when there is no act of manu-
In Wilson v. Melvin, (4 Missouri R., 592,) it ap- miss on decreed to the free State, the courts of the
peared the defendant left Tennessee with an inten- slave States *553 cannot be called to give effect to
tion of residing in Illinois, taking his negroes with the law of the free State. Comity, it alleges,
him. After a month's stay in Illinois, he took his between States, depends upon the discretion of
negroes to St. Louis, and hired them, then returned both, which may be varied by circumstances. And it
to Illinois. On these facts, the inferior court instruc- is declared by the court, ‘that times are not as they
ted the jury that the defendant was a sojourner in were when the former decisions on this subject
Illinois. This the Supreme Court held was error, and were made.‘ Since then, not only individuals but
the judgment was reversed. States have been possessed with a dark and fell
spirit in relation to slavery, whose gratification is
The case of Dred Scott v. Emerson (15 Missouri R.,
sought in the pursuit of measures whose inevitable
682, March term, 1852) will now be stated. This
consequence must be the overthrow and destruction
case involved the identical question before us,
of our Government. Under such circumstances, it
Emerson having, since the hearing, sold the
does not behoove the State of Missouri to show the
plaintiff to Sandford, the defendant.
least countenance to any measure which might grat-
Two of the judges ruled the case, the Chief Justice ify this spirit. She is willing to assume her full re-
dissenting. It cannot be improper to state the sponsibility for the existence of slavery within her
grounds of the opinion of the court, and of the dis- limits, nor does she seek to share or divide it with
sent. others.

The court say: ‘Cases of this kind are not strangers **117 Chief Justice Gamble dissented from the oth-
in our court. Persons have been frequently here ad- er two judges. He says:
judged to be entitled to their freedom, on the
‘In every slaveholding State in the Union, the sub-
ground that their masters held them in slavery in
ject of emancipation is regulated by statute; and the
Territories or States in which that institution is pro-
forms are prescribed in which it shall be effected.
hibited. From the first case decided in our court, it
Whenever the forms required by the laws of the
might be inferred that this result was brought about
State in which the master and slave are resident are
by a presumed assent of the master, from the fact of
complied with, the emancipation is complete, and
having voluntarily taken his slave to a place where
the slave is free. If the right of the person thus
the relation of master and slave did not exist. But
emancipated is subsequently drawn in question in
subsequent cases base the right to ‘exact the forfeit-
another State, it will be ascertained and determined
ure of emancipation,’ as they term it, on the ground,
by the law of the State in which the slave and his
it would seem, that it was the duty of the courts of
former master resided; and when it appears that
this State to carry into effect the Constitution and
such law has been complied with, the right to free-
laws of other States and Territories, regardless of
dom will be fully sustained in the courts of all the
the rights, the policy, or the institutions, of the
slaveholding States, although the act of emancipa-
people of this State.‘
tion may not be in the form required by law in
And the court say that the States of the Union, in which the court sits.
their municipal concerns, are regarded as foreign to
‘In all such cases, courts continually administer the

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law of the country where the right was acquired; lating to slavery which distinguishes it from the law
and when that law becomes known to the court, it is on any other subject, or allows any more accom-
just as much a matter of course to decide the rights modation to the temporary public excitements
of the parties according to its requirements, as it is which are gathered around it.‘
to settle the title of real estate situated in our State
by its own laws.‘ **118 ‘In this State,‘ he says, ‘it has been recog-
nized from the beginning of the Government as a
This appears to me a most satisfactory answer to correct position in law, that a master who takes his
the argument of the court. Chief Justice continues: slave to reside in a State or Territory where slavery
is prohibited, thereby emancipates his slave.‘ These
‘The perfect equality of the different States lies at decisions, which come down to the year 1837,
the foundation of the Union. As the institution of seemed to have so fully settled the question, that
slavery in the States is one over which the Constitu- since that time there has been no case bringing it
tion of the United States gives no power to the Gen- before the court for any reconsideration, until the
eral Government, it is left to be adopted or rejected present. In the case of Winny v. Whitesides, the
by the several States, as they think best; nor can question was made in the argument, ‘whether one
any one State, or number of States, claim the right nation would execute the penal laws of another,‘
to interfere with any other State upon the question and the court replied in this language, (Huberus,
of admitting or excluding this institution. quoted in 4 Dallas,) which says, ‘personal rights or
disabilities obtained or communicated by the laws
‘A citizen of Missouri, who removes with his slave
of any particular place are of a nature which accom-
to Illinois, *554 has no right to complain that the
pany the person wherever he goes; ‘ and the Chief
fundamental law of that State to which he removes,
Justice observed, in the case of Rachel v. Walker,
and in which he makes his residence, dissolves the
the act of Congress called the Missouri compromise
relation between him and his slave. It is as much
was held as operative as the ordinance of 1787.
his own voluntary act, as if he had executed a deed
of emancipation. No one can pretend ignorance of When Dred Scott, his wife and children, were re-
this constitutional provision, and,‘ he says, ‘the de- moved from Fort Snelling to Missouri, in 1838,
cisions which have heretofore been made in this they were free, as the law was then settled, and con-
State, and in many other slaveholding States, give tinued for fourteen years afterwards, up to 1852,
effect to this and other similar provisions, on the when the above decision was made. Prior to this,
ground that the master, by making the free State the for nearly thirty years, as Chief Justice Gamble de-
residence of his slave, has submitted his right to the clares, the residence of a master with his slave in
operation of the law of such State; and this,‘ he the State of Illinois, or in the Territory north of
says, ‘is the same in law as a regular deed of eman- Missouri, where slavery was prohibited *555 by the
cipation.‘ act called the Missouri compromise, would manu-
mit the slave as effectually as if he had executed a
He adds:
deed of emancipation; and that an officer of the
‘I regard the question as conclusively settled by re- army who takes his slave into that State or Territ-
peated adjudications of this court, and, if I doubted ory, and holds him there as a slave, liberates him
or denied the propriety of those decisions, I would the same as any other citizen-and down to the
not feel myself any more at liberty to overturn above time it was settled by numerous and uniform
them, than I would any other series of decisions by decisions, and that on the return of the slave to Mis-
which the law of any other question was settled. souri, his former condition of slavery did not attach.
There is with me,‘ he says, ‘nothing in the law re- Such was the settled law of Missouri until the de-

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cision of Scott and Emerson. The course of decision so long and so uniformly
maintained established a comity or law between
In the case of Sylvia v. Kirby, (17 Misso. Rep., Missouri and the free States and Territories where
434,) the court followed the above decision, ob- slavery was prohibited, which must be somewhat
serving it was similar in all respects to the case of regarded in this case. Rights sanctioned for twenty-
Scott and Emerson. eight years *556 ought not and cannot be repudi-
ated, with any semblance of justice, by one or two
This court follows the established construction of
decisions, influenced, as declared, by a determina-
the statutes of a State by its Supreme Court. Such a
tion to counteract the excitement against slavery in
construction is considered as a part of the statute,
the free States.
and we follow it to avoid two rules of property in
the same State. But we do not follow the decisions The courts of Louisiana having held, for a series of
of the Supreme Court of a State beyond a statutory years, that where a master took his slave to France,
construction as a rule of decision for this court. or any free State, he was entitled to freedom, and
State decisions are always viewed with respect and that on bringing him back the status of slavery did
treated as authority; but we follow the settled con- not attach, the Legislature of Louisiana declared by
struction of the statutes, not because it is of binding an act that the slave should not be made free under
authority, but in pursuance of a rule of judicial such circumstances. This regulated the rights of the
policy. master from the time the act took effect. But the de-
cision of the Missouri court, reversing a former de-
But there is no pretence that the case of Dred Scott
cision, affects all previous decisions, technically,
v. Emerson turned upon the construction of a Mis-
made on the same principles, unless such decisions
souri statute; nor was there any established rule of
are protected by the lapse of time or the statute of
property which could have rightfully influenced the
limitations. Dred Scott and his family, beyond all
decision. On the contrary, the decision overruled
controversy, were free under the decisions made for
the settled law for near thirty years.
twenty-eight years, before the case of Scott v.
**119 This is said by my brethren to be a Missouri Emerson. This was the undoubted law of Missouri
question; but there is nothing which gives it this for fourteen years after Scott and his family were
character, except that it involves the right to per- brought back to that State. And the grave question
sons claimed as slaves who reside in Missouri, and arises, whether this law may be so disregarded as to
the decision was made by the Supreme Court of enslave free persons. I am strongly inclined to think
that State. It involves a right claimed under an act that a rule of decision so well settled as not to be
of Congress and the Constitution of Illinois, and questioned, cannot be annulled by a single decision
which cannot be decided without the consideration of the court. Such rights may be inoperative under
and construction of those laws. But the Supreme the decision in future; but I cannot well perceive
Court of Missouri held, in this case, that it will not how it can have the same effect in prior cases.
regard either of those laws, without which there
It is admitted, that when a former decision is re-
was no case before it; and Dred Scott, having been
versed, the technical effect of the judgment is to
a slave, remains a slave. In this respect it is admit-
make all previous adjudications on the same ques-
ted this is a Missouri question-a case which has but
tion erroneous. But the case before us was not that
one side, if the act of Congress and the Constitution
the law had been erroneously construed, but that,
of Illinois are not recognized.
under the circumstances which then existed, that
And does such a case constitute a rule of decision law would not be recognized; and the reason for
for this court-a case to be followed by this court? this is declared to be the excitement against the in-

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stitution of slavery in the free States. While I enjoyment of their liberty, property, and the reli-
lament this excitement as much as any one, I cannot gion they profess.‘
assent that it shall be made a basis of judicial ac-
tion. As slavery existed in Louisiana at the time of the
cession, it is supposed this is a guaranty that there
**120 In 1816, the common law, by statute, was should be no change in its condition.
made a part of the law of Missouri; and that in-
cludes the great principles of international law. The answer to this is, in the first place, that such a
These principles cannot be abrogated by judicial subject does not belong to the treaty-making power;
decisions. It will require the same exercise of and any such arrangement would have been nugat-
power to abolish the common law, as to introduce ory. And, in the second place, by no admissible
it. International law is founded in the opinions gen- construction can the guaranty be carried further
erally received and acted on by civilized nations, than the protection of property in slaves at that time
and enforced by moral sanctions. It becomes a more in the ceded territory. And this has been complied
authoritative system when it results from special with. The organization of the slave States of Louisi-
compacts, founded on modified rules, adapted to ana, Missouri, and Arkansas, embraced every slave
the exigencies of human society; it is in fact an in- in Louisiana at the time of the cession. This re-
ternational morality, adapted to the best interests of moves every ground of objection under the treaty.
nations. And in regard to the States *557 of this There is therefore no pretence, growing out of the
Union, on the subject of slavery, it is eminently fit- treaty, that any part of the territory of Louisiana, as
ted for a rule of action, subject to the Federal Con- ceded, beyond the organized States, is slave territ-
stitution. ‘The laws of nations are but the natural ory.
rights of man applied to nations.‘ (Vattel.)
Under the fifth head, we were to consider whether
If the common law have the force of a statutory en- the status of slavery attached to the plaintiff and
actment in Missouri, it is clear, as it seems to me, wife, on their return to Missouri.
that a slave who, by a residence in Illinois in the
**121 This doctrine is not asserted in the late opin-
service of his master, becomes entitled to his free-
ion of the Supreme Court of Missouri, and up to
dom, cannot again be reduced to slavery by return-
1852 the contrary doctrine was uniformly main-
ing to his former domicil in a slave State. It is un-
tained by that court.
necessary to say what legislative power might do
by a general act in such a case, but it would be sin- In its late decision, the court say that it will not give
gular if a freeman could be made a slave by the ex- effect in Missouri to the laws of Illinois, or the law
ercise of a judicial discretion. And it would be still of Congress *558 called the Missouri compromise.
more extraordinary if this could be done, not only This was the effect of the decision, though its terms
in the absence of special legislation, but in a State were, that the court would not take notice, judi-
where the common law is in force. cially, of those laws.
It is supposed by some, that the third article in the In 1851, the Court of Appeals of South Carolina re-
treaty of cession of Louisiana to this country, by cognized the principle, that a slave, being taken to a
France, in 1803, may have some bearing on this free State, became free. (Commonwealth v. Pleas-
question. The article referred to provides, ‘that the ants, 10 Leigh Rep., 697.) In Betty v. Horton, the
inhabitants of the ceded territory shall be incorpor- Court of Appeals held that the freedom of the slave
ated into the Union, and enjoy all the advantages of was acquired by the action of the laws of Mas-
citizens of the United States, and in the mean time sachusetts, by the said slave being taken there. (5
they shall be maintained and protected in the free

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Leigh Rep., 615.) that more cases have arisen in my circuit, by reason
of its extent and locality, than in all *559 other
The slave States have generally adopted the rule, parts of the Union. This has been done to vindicate
that where the master, by a residence with his slave the sovereign rights of the Southern States, and pro-
in a State or Territory where slavery is prohibited, tect the legal interests of our brethren of the South.
the slave was entitled to his freedom everywhere.
This was the settled doctrine of the Supreme Court **122 Let these facts be contrasted with the case
of Missouri. It has been so held in Mississippi, in now before the court. Illinois has declared in the
Virginia, in Louisiana, formerly in Kentucky, most solemn and impressive form that there shall
Maryland, and in other States. be neither slavery nor involuntary servitude in that
State, and that any slave brought into it, with a view
The law, where a contract is made and is to be ex- of becoming a resident, shall be emancipated. And
ecuted, governs it. This does not depend upon effect has been given to this provision of the Con-
comity, but upon the law of the contract. And if, in stitution by the decision of the Supreme Court of
the language of the Supreme Court of Missouri, the that State. With a full knowledge of these facts, a
master, by taking his slave to Illinois, and employ- slave is brought from Missouri to Rock Island, in
ing him there as a slave, emancipates him as effec- the State of Illinois, and is retained there as a slave
tually as by a deed of emancipation, is it possible for two years, and then taken to Fort Snelling,
that such an act is not matter for adjudication in any where slavery is prohibited by the Missouri com-
slave State where the master may take him? Does promise act, and there he is detained two years
not the master assent to the law, when he places longer in a state of slavery. Harriet, his wife, was
himself under it in a free State? also kept at the same place four years as a slave,
having been purchased in Missouri. They were then
The States of Missouri and Illinois are bounded by
removed to the State of Missouri, and sold as
a common line. The one prohibits slavery, the other
slaves, and in the action before us they are not only
admits it. This has been done by the exercise of that
claimed as slaves, but a majority of my brethren
sovereign power which appertains to each. We are
have held that on their being returned to Missouri
bound to respect the institutions of each, as emanat-
the status of slavery attached to them.
ing from the voluntary action of the people. Have
the people of either any right to disturb the relations I am not able to reconcile this result with the re-
of the other? Each State rests upon the basis of its spect due to the State of Illinois. Having the same
own sovereignty, protected by the Constitution. Our rights of sovereignty as the State of Missouri in ad-
Union has been the foundation of our prosperity opting a Constitution, I can perceive no reason why
and national glory. Shall we not cherish and main- the institutions of Illinois should not receive the
tain it? This can only be done by respecting the leg- same consideration as those of Missouri. Allowing
al rights of each State. to my brethren the same right of judgment that I ex-
ercise myself, I must be permitted to say that it
If a citizen of a free State shall entice or enable a
seems to me the principle laid down will enable the
slave to escape from the service of his master, the
people of a slave State to introduce slavery into a
law holds him responsible, not only for the loss of
free State, for a longer or shorter time, as may suit
the slave, but he is liable to be indicted and fined
their convenience; and by returning the slave to the
for the misdemeanor. And I am bound here to say,
State whence he was brought, by force or other-
that I have never found a jury in the four States
wise, the status of slavery attaches, and protects the
which constitute my circuit, which have not sus-
rights of the master, and defies the sovereignty of
tained this law, where the evidence required them
the free State. There is no evidence before us that
to sustain it. And it is proper that I should also say,

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Dred Scott and his family returned to Missouri vol- In the case of Williams, who was a slave in
untarily. The contrary is inferable from the agreed Granada, having run away, came to England, Lord
case: ‘In the year 1838, Dr. Emerson removed the Stowell said: ‘The four judges all concur in this-
plaintiff and said Harriet, and their daughter Eliza, that he was a slave in Granada, though a free man
from Fort Snelling to the State of Missouri, where in England, and he would have continued a free
they have ever since resided.’ This is the agreed man in all other parts of the world except Granada.‘
case; and can it be inferred from this that Scott and
family returned to Missouri voluntarily? He was re- Strader v. Graham (10 Howard, 82, and 18 Curtis,
moved; which shows that he was passive, as a 305) has been cited as having a direct bearing in the
slave, having exercised no volition on the subject. case before us. In that case the court say: ‘It was
He did not resist the master by absconding or force. exclusively in the power of Kentucky to determine,
But that was not sufficient to bring him within Lord for itself, whether the employment of slaves in an-
Stowell's decision; he must have acted voluntarily. other State should or should not make them free on
It would be a *560 mockery of law and an outrage their return.‘ No question was before the court in
on his rights to coerce his return, and then claim that case, except that of jurisdiction. And any opin-
that it was voluntary, and on that ground that his ion given on any other point is obiter dictum, and
former status of slavery attached. of no authority. In the conclusion of his opinion,
the Chief Justice said: ‘In every view of the subject,
If the decision be placed on this ground, it is a fact therefore, this court has no jurisdiction of the case,
for a jury to decide, whether the return was volun- and the writ of error must on that ground be dis-
tary, or else the fact should be distinctly admitted. missed.‘
A presumption against the plaintiff in this respect, I
say with confidence, is not authorized from the In the case of Spencer v. Negro Dennis, (8 Gill's
facts admitted. Rep., 321,) the court say: ‘Once free, and always
free, is the maxim of Maryland law upon the sub-
**123 In coming to the conclusion that a voluntary ject. Freedom having once vested, by no compact
return by Grace to her former domicil, slavery at- between the master and the liberated slave, *561
tached, Lord Stowell took great pains to show that nor by any condition subsequent, attached by the
England forced slavery upon her colonies, and that master to the gift of freedom, can a state of slavery
it was maintained by numerous acts of Parliament be reproduced.‘
and public policy, and, in short, that the system of
slavery was not only established by Great Britain in In Hunter v. Bulcher, (1 Leigh, 172:)
her West Indian colonies, but that it was popular
‘By a statute of Maryland of 1796, all slaves
and profitable to many of the wealthy and influen-
brought into that State to reside are declared free; a
tial people of England, who were engaged in trade,
Virginian-born slave is carried by his master to
or owned and cultivated plantations in the colonies.
Maryland; the master settled there, and keeps the
No one can read his elaborate views, and not be
slave there in bondage for twelve years, the statute
struck with the great difference between England
in force all the time; then he brings him as a slave
and her colonies, and the free and slave States of
to Virginia, and sells him there. Adjudged, in an ac-
this Union. While slavery in the colonies of Eng-
tion brought by the man against the purchaser, that
land is subject to the power of the mother country,
he is free.’
our States, especially in regard to slavery, are inde-
pendent, resting upon their own sovereignties, and **124 Judge Kerr, in the case, says:
subject only to international laws, which apply to
independent States. ‘Agreeing, as I do, with the general view taken in

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this case by my brother Green, I would not add a Rep., 36.) It was held that, ‘slaves within the juris-
word, but to mark the exact extent to which I mean diction *562 of the Northwestern Territory became
to go. The law of Maryland having enacted that freemen by virtue of the ordinance of 1787, and can
slaves carried into that State for sale or to reside assert their claim to freedom in the courts of Mis-
shall be free, and the owner of the slave here hav- sissippi.‘ (Griffith v. Fanny, 1 Virginia Rep., 143.)
ing carried him to Maryland, and voluntarily sub- It was decided that a negro held in servitude in
mitting himself and the slave to that law, it governs Ohio, under a deed executed in Virginia, is entitled
the case.‘ to freedom by the Constitution of Ohio.

In every decision of a slave case prior to that of The case of Rhodes v. Bell (2 Howard, 307; 15
Dred Scott v. Emerson, the Supreme Court of Mis- Curtis, 152) involved the main principle in the case
souri considered it as turning upon the Constitution before us. A person residing in Washington city
of Illinois, the ordinance of 1787, or the Missouri purchased a slave in Alexandria, and brought him
compromise act of 1820. The court treated these to Washington. Washington continued under the
acts as in force, and held itself bound to execute law of Maryland, Alexandria under the law of Vir-
them, by declaring the slave to be free who had ac- ginia. The act of Maryland of November, 1796, (2
quired a domicil under them with the consent of his Maxcy's Laws, 351,) declared any one who shall
master. bring any negro, mulatto, or other slave, into Mary-
land, such slave should be free. The above slave, by
The late decision reversed this whole line of adju- reason of his being brought into Washington city,
dication, and held that neither the Constitution and was declared by this court to be free. This, it ap-
laws of the States, nor acts of Congress in relation pears to me, is a much stronger case against the
to Territories, could be judicially noticed by the Su- slave than the facts in the case of Scott.
preme Court of Missouri. This is believed to be in
conflict with the decisions of all the courts in the **125 In Bush v. White, (3 Monroe, 104,) the court
Southern States, with some exceptions of recent say:
cases.
‘That the ordinance was paramount to the Territori-
In Marie Louise v. Morat et al., (9 Louisiana Rep., al laws, and restrained the legislative power there
475,) it was held, where a slave having been taken as effectually as a Constitution in an organized
to the kingdom of France or other country by the State. It was a public act of the Legislature of the
owner, where slavery is not tolerated, operates on Union, and a part of the supreme law of the land;
the condition of the slave, and produces immediate and, as such, this court is as much bound to take
emancipation; and that, where a slave thus becomes notice of it as it can be of any other law.‘
free, the master cannot reduce him again to slavery.
In the case of Rankin v. Lydia, before cited, Judge
Josephine v. Poultney, (Louisiana Annual Rep., Mills, speaking for the Court of Appeals of Ken-
329,) ‘where the owner removes with a slave into a tucky, says:
State in which slavery is prohibited, with the inten-
tion of residing there, the slave will be thereby ‘If, by the positive provision in our code, we can
emancipated, and their subsequent return to the and must hold our slaves in the one case, and stat-
State of Louisiana cannot restore the relation of utory provisions equally positive decide against that
master and slave.‘ To the same import are the cases right in the other, and liberate the slave, he must, by
of Smith v. Smith, (13 Louisiana Rep., 441; an authority equally imperious, be declared free.
Thomas v. Generis, Louisiana Rep., 483; Harry et Every argument which supports the right of the
al. v. Decker and Hopkins, Walker's Mississippi master on one side, based upon the force of written

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law, must be equally conclusive in favor of the dicta to be found in our decisions, averring that the
slave, when he can point out in the statute the courts of the United States are bound to follow the
clause which secures his freedom.‘ decisions of the State courts on the construction of
their own laws. But although this may be correct,
And he further said: yet a rather strong expression of a general rule, it
cannot be received as the annunciation of a maxim
‘Free people of color in all the States are, it is be-
of universal application. Accordingly, our reports
lieved, quasi citizens, or, at least, denizens. Al-
furnish many cases of exceptions to it. In all cases
though none of the States may allow them the priv-
where there is a settled construction of the laws of
ilege of office and suffrage, yet all other civil and
the a State, by its highest judicature established by
conventional rights are secured to them; at least,
admitted precedent, it is the practice of the courts
such rights were evidently secured to them by the
of the United States to receive and adopt it, without
ordinance in question for the government of Indi-
criticism or further inquiry. When the decisions of
ana. If these rights are vested in that or any other
the State court are not consistent, we do not feel
portion of the United States, can it be compatible
bound to follow the last, if it is contrary to our own
with the spirit of our confederated Government to
convictions; and much more is this the case where,
deny their existence in any other part? Is there less
after a long course of consistent decisions, some
comity existing between State and State, or State
new light suddenly springs up, or an excited public
*563 and Territory, than exists between the despot-
opinion has elicited new doctrines subversive of
ic Governments of Europe?‘
former safe precedent.‘
These are the words of a learned and great judge,
**126 These words, it appears to me, have a
born and educated in a slave State.
stronger application to the case before us than they
I now come to inquire, under the sixth and last had to the cause in which they were spoken as the
head, ‘whether the decisions of the Supreme Court opinion of this court; and I regret that they do not
of Missouri, on the question before us, are binding seem to be as fresh in the recollection of some of
on this court.‘ my brethren as in my own. For twenty-eight years,
the decisions of the Supreme Court of Missouri
While we respect the learning and high intelligence were consistent on all the points made in this case.
of the State courts, and consider their decisions, But this consistent course was suddenly terminated,
with others, as authority, we follow them only whether by some new light suddenly springing up,
where they give a construction to the State statutes. or an excited public opinion, or both, it is not *564
On this head, I consider myself fortunate in being necessary to say. In the case of Scott v. Emerson, in
able to turn to the decision of this court, given by 1852, they were overturned and repudiated.
Mr. Justice Grier, in Pease v. Peck, a case from the
State of Michigan, (18 Howard, 589,) decided in This, then, is the very case in which seven of my
December term, 1855. Speaking for the court, brethren declared they would not follow the last de-
Judge Grier said: cision. On this authority I may well repose. I can
desire no other or better basis.
‘We entertain the highest respect for that learned
court, (the Supreme Court of Michigan,) and in any But there is another ground which I deem conclus-
question affecting the construction of their own ive, and which I will re-state.
laws, where we entertain any doubt, would be glad
The Supreme Court of Missouri refused to notice
to be relieved from doubt and responsibility by re-
the act of Congress or the Constitution of Illinois,
posing on their decision. There are, it is true, many
under which Dred Scott, his wife and children,

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claimed that they are entitled to freedom. has been raised, the Circuit Court must, in the first
instance, pass upon and determine it. Whether its
This being rejected by the Missouri court, there was determination be final, or subject to review by this
no case before it, or least it was a case with only appellate court, must depend upon the will of Con-
one side. And this is the case which, in the opinion gress; upon which body the Constitution has con-
of this court, we are bound to follow. The Missouri ferred the power, with certain restrictions, to estab-
court disregards the express provisions of an act of lish inferior courts, to determine their jurisdiction,
Congress and the Constitution of a sovereign State, and to regulate the appellate power of this court.
both of which laws for twenty-eight years it had not The twenty-second section of the judiciary act of
only regarded, but carried into effect. 1789, which allows a writ of error from final judg-
ments of Circuit Courts, provides that there shall be
If a State court may do this, on a question involving
no reversal in this court, on such writ of error, for
the liberty of a human being, what protection do the
error in ruling any plea in abatement, other than a
laws afford? So far from this being a Missouri
plea to the jurisdiction of the court. Accordingly it
question, it is a question, as it would seem, within
has been held, from the origin of the court to the
the twenty-fifth section of the judiciary act, where a
present day, that Circuit Courts have not been made
right to freedom being set up under the act of Con-
by Congress the final judges of their own jurisdic-
gress, and the decision being against such right, it
tion in civil cases. And that when a record comes
may be brought for revision before this court, from
here upon a writ of error or appeal, and, on its in-
the Supreme Court of Missouri.
spection, it appears to this court that the Circuit
I think the judgment of the court below should be Court had not jurisdiction, its judgment must be re-
reversed. versed, and the cause remanded, to be dismissed for
Mr. Justice CURTIS dissenting. want of jurisdiction.
I dissent from the opinion pronounced by the Chief
**127 It is alleged by the defendant in error, in this
Justice, and from the judgment which the majority
case, that the plea to the jurisdiction was a suffi-
of the court think it proper to render in this case.
cient plea; that it shows, on inspection of its allega-
The plaintiff alleged, in his declaration, that he was
tions, confessed by the demurrer, that the plaintiff
a citizen of the State of Missouri, and that the de-
was not a citizen of the State of Missouri; that upon
fendant was a citizen of the State of New York. It is
this record, it must appear to this court that the case
not doubted that it was necessary to make each of
was not within the judicial power of the United
these allegations, to sustain the jurisdiction of the
States, as defined and granted by the Constitution,
Circuit Court. The defendant denied, by a plea to
because it was not a suit by a citizen of one State
the jurisdiction, either sufficient or insufficient, that
against a citizen of another State.
the plaintiff was a citizen of the State of Missouri.
The plaintiff demurred to that plea. The Circuit To this it is answered, first, that the defendant, by
Court adjudged the plea insufficient, and the first pleading over, after the plea to the jurisdiction was
question for our consideration is, whether the suffi- adjudged insufficient, finally waived all benefit of
ciency of that plea is before this court for judgment, that plea.
upon this writ of error. The part of the judicial
power of the United States, conferred by Congress When that plea was adjudged insufficient, the de-
on the Circuit Courts, being limited to certain de- fendant was obliged to answer over. He held no al-
scribed cases and controversies, the question ternative. He could not stop the further progress of
whether a particular *565 case is within the cogniz- the case in the Circuit Court by a writ of error, on
ance of a Circuit Court, may be raised by a plea to which the sufficiency of his plea to the jurisdiction
the jurisdiction of such court. When that question could be tried in this court, because the judgment

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on that plea was not final, and no writ of error sign any error in the record, and therefore this court
would lie. He was forced to plead to the merits. It is precluded from considering the question whether
cannot be true, then, that he waived the benefit of the Circuit Court had jurisdiction.
his plea to the jurisdiction by answering over.
Waiver includes consent. Here, there was no con- The practice of this court does not require a tech-
sent. And if the benefit of the plea was finally lost, nical assignment of errors. (See the rule.) Upon a
it must be, not by any waiver, but because the laws writ of error, the whole record is open for inspec-
of the United States have not provided any mode of tion; and if any error be found in it, the judgment is
reviewing the decision of the Circuit Court on such reversed. ( Bank of U. S. v. Smith, 11 Wheat., 171.)
a plea, when that decision is against the defendant.
It is true, as a general rule, that the court will not al-
This is not the *566 law. Whether the decision of
low a party to rely on anything as cause for revers-
the Circuit Court on a plea to the jurisdiction be
ing a judgment, which was for his advantage. In
against the plaintiff, or against the defendant, the
this, we follow an ancient rule of the common law.
losing party may have any alleged error in law, in
But so careful was that law of the preservation of
ruling such a plea, examined in this court on a writ
the course of its courts, that it made an exception
of error, when the matter in controversy exceeds the
out of that general rule, and allowed a party to as-
sum or value of two thousand dollars. If the de-
sign for error that which was for his advantage, if it
cision be against the plaintiff, and his suit dis-
were a departure by the court itself from its settled
missed for want of jurisdiction, the judgment is
course of procedure. The cases on this subject are
technically final, and he may at once sue out his
collected in Bac. Ab., Error H. 4. And this court
writ of error. ( Mollan v. Torrance, 9 Wheat., 537.)
followed this practice in *567Capron v. Van
If the decision be against the defendant, though he
Noorden, (2 Cranch, 126), where the plaintiff be-
must answer over, and wait for a final judgment in
low procured the reversal of a judgment for the de-
the cause, he may then have his writ of error, and
fendant, on the ground that the plaintiff's allega-
upon it obtain the judgment of this court on any
tions of citizenship had not shown jurisdiction.
question of law apparent on the record, touching the
jurisdiction. The fact that he pleaded over to the But it is not necessary to determine whether the de-
merits, under compulsion, can have no effect on his fendant can be allowed to assign want of jurisdic-
right to object to the jurisdiction. If this were not tion as an error in a judgment in his own favor. The
so, the condition of the two parties would be true question is, not what either of the parties may
grossly unequal. For if a plea to the jurisdiction be allowed to do, but whether this court will affirm
were ruled against the plaintiff, he could at once or reverse a judgment of the Circuit Court on the
take his writ of error, and have the ruling reviewed merits, when it appears on the record, by a plea to
here; while, if the same plea were ruled against the the jurisdiction, that it is a case to which the judi-
defendant, he must not only wait for a final judg- cial power of the United States does not extend.
ment, but could in no event have the ruling of the The course of the court is, where no motion is made
Circuit Court upon the plea reviewed by this court. by either party, on its own motion, to reverse such a
I know of no ground for saying that the laws of the judgment for want of jurisdiction, not only in cases
United States have thus discriminated between the where it is shown, negatively, by a plea to the juris-
parties to a suit in its courts. diction, that jurisdiction does not exist, but even
where it does not appear, affirmatively, that it does
**128 It is further objected, that as the judgment of
exist. ( Pequignot v. The Pennsylvania R. R. Co., 16
the Circuit Court was in favor of the defendant, and
How., 104.) It acts upon the principle that the judi-
the writ of error in this cause was sued out by the
cial power of the United States must not be exerted
plaintiff, the defendant is not in a condition to as-
in a case to which it does not extend, even if both

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parties desire to have it exerted. ( Cutler v. Rae, 7 comes by a plea to the jurisdiction to displace that
How., 729.) I consider, therefore, that when there presumption, he occupies, in my judgment, pre-
was a plea to the jurisdiction of the Circuit Court in cisely the position described in Bacon Ab., Abate-
a case brought here by a writ of error, the first duty ment: ‘Abatement, in the general acceptation of the
of this court is, sua sponte, if not moved to it by word, signifies a plea, put in by the defendant, in
either party, to examine the sufficiency of that plea; which he shows cause to the court why he should
and thus to take care that neither the Circuit Court not be impleaded; or, if at all, not in the manner and
nor this court shall use the judicial power of the form he now is.‘
United States in a case to which the Constitution
and laws of the United States have not extended This being, then, a plea in abatement, to the juris-
that power. diction of the court, I must judge of its sufficiency
by those rules of the common law applicable to
**129 I proceed, therefore, to examine the plea to such pleas.
the jurisdiction.
The plea was as follows: ‘And the said John F. A.
I do not perceive any sound reason why it is not to Sandford, in his own proper person, comes and says
be judged by the rules of the common law applic- that this court ought not to have or take further cog-
able to such pleas. It is true, where the jurisdiction nizance of the action aforesaid, because he says that
of the Circuit Court depends on the citizenship of said cause of action, and each and every of them, (if
the parties, it is incumbent on the plaintiff to allege any such have accrued to the said Dred Scott,) ac-
on the record the necessary citizenship; but when crued to the said Dred Scott out of the jurisdiction
he has done so, the defendant must interpose a plea of this court, and exclusively within the jurisdiction
in abatement, the allegations whereof show that the of the courts of the State of Missoui; for that, to
court has not jurisdiction; and it is incumbent on wit, the said plaintiff, Dred Scott, is not a citizen of
him to prove the truth of his plea. the State of Missoui, as alleged in his declaration,
because he is a negro of African descent; his an-
In Sheppard v. Graves, (14 How., 27,) the rules on cestors were of pure African blood, and were
this subject are thus stated in the opinion of the brought into this country and sold as negro slaves,
court: ‘That although, in the courts of the United and this the said Sandford is ready to verify.
States, it is necessary to set forth the grounds of Wherefore, he prays judgment whether this court
their cognizance as courts of limited jurisdiction, can or will take further cognizance of the action
yet wherever jurisdiction shall be averred in the aforesaid.‘
pleadings, in conformity with the laws creating
those courts, it must be taken, prima facie, as exist- **130 The plaintiff demurred, and the judgment of
ing; and it is incumbent *568 on him who would the Circuit Court was, that the plea was insufficient.
impeach that jurisdiction for causes dehors the
pleading, to allege and prove such causes; that the I cannot treat this plea as a general traverse of the
necessity for the allegation, and the burden of sus- citizenship alleged by the plaintiff. Indeed, if it
taining it by proof, both rest upon the party taking were so treated, the plea was clearly bad, for it con-
the exception.‘ These positions are sustained by the cludes with a verification, and not to the country, as
authorities there cited, as well as by Wickliffe v. a general traverse should. And though this defect in
Owings, (17 How., 47.) a plea in bar must be pointed out by a special de-
murrer, it is never necessary to demur specially to a
When, therefore, as in this case, the necessary aver- plea in abatement; all matters, though of form only,
ments as to citizenship are made on the record, and may be taken advantage of upon a general demurrer
jurisdiction is assumed to exist, and the defendant to such a plea. (Chitty on Pl., 465.)

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The truth is, that though not drawn with the utmost and if so, the presumption is, the plaintiff was born
technical accuracy, it is a special traverse of the a slave; and if so, the presumption is, he continued
plaintiff's allegation *569 of citizenship, and was a to be a slave to the time of action brought.
suitable and proper mode of traverse under the cir-
cumstances. By reference to Mr. Stephen's descrip- **131 I cannot think such presumptions can be re-
tion of the uses of such a traverse, contained in his sorted to, to help out defective averments in plead-
excellent analysis of pleadings, (Steph. on Pl., 176,) ing; especially, in pleading in abatement, where the
it will be seen how precisely this plea meets one of utmost certainty and precision are required. (Chitty
his descriptions. No doubt the defendant might on Pl., 457.) That the plaintiff himself was a slave
have traversed, by a common or general traverse, at the time of action brought, is a substantive fact,
the plaintiff's allegation that he was a citizen of the having no necessary connection with the fact that
State of Missouri, concluding to the country. The his parents were sold as slaves. For they might have
issue thus pressented being joined, would have in- been sold after he was born; or the plaintiff himself,
volved matter of law, on which the jury must have if once a slave, might have *570 became a freeman
passed, under the direction of the court. But by tra- before action brought. To aver that his ancestors
versing the plaintiffs citizenship specially-that is, were sold as slaves, is not equivalent, in point of
averring those facts on which the defendant relied law, to an averment that he was a slave. If it were,
to show that in point of law the plaintiff was not a he could not even confess and avoid the averment
citizen, and basing the traverse on those facts as a of the slavery of his ancestors, which would be
deduction therefrom-opportunity was given to do, monstrous; and if it be not equivalent in point of
what was done; that is, to present directly to the law, it cannot be treated as amounting thereto when
court, by a demurrer, the sufficiency of those facts demurred to; for a demurrer confesses only those
to negative, in point of law, the plaintiff's allegation substantive facts which are well pleaded, and not
of citizenship. This, then, being a special, and not a other distinct substantive facts which might be in-
general or common traverse, the rule is settled, that ferred therefrom by a jury. To treat an averment
the facts thus set out in the plea, as the reason or that the plaintiff's ancestors were Africans, brought
ground of the traverse, must of themselves consti- to this country and sold as slaves, as amounting to
tute, in point of law, a negative of the allegation an averment on the record that he was a slave, be-
thus traversed. (Stephen on Pl., 183; Ch. on Pl., cause it may lay some foundation for presuming so,
620.) And upon a demurrer to this plea, the ques- is to hold that the facts actually alleged may be
tion which arises is, whether the facts, that the treated as intended as evidence of another distinct
plaintiff is a negro, of African descent, whose an- facts not alleged. But it is a cardinal rule of plead-
cestors were of pure African blood, and were ing, laid down in Dowman's case, ( 9 Rep., 9 b,)
brought into this country and sold as negro slaves, and in even earlier authorities therein referred to,
may all be true, and yet the plaintiff be a citizen of ‘that evidence shall never be pleaded, for it only
the State of Missouri, within the meaning of the tends to prove matter of fact; and therefore the mat-
Constitution and laws of the United States, which ter of fact shall be pleaded.‘ Or, as the rule is some-
confer on citizens of one State the right to sue cit- times stated, pleadings must not be argumentative.
izens of another State in the Circuit Courts. Un- (Stephen on Pleading, 384, and authorities cited by
doubtedly, if these facts, taken together, amount to him.) In Com. Dig., Pleader E. 3, and Bac.
an allegation that, at the time of action brought, the Abridgement, Pleas I, 5, and Stephen on Pl., many
plaintiff was himself a slave, the plea is sufficient. decisions under this rule are collected. In trover, for
It has been suggested that the plea, in legal effect, an indenture whereby A granted a manor, it is no
does so aver, because, if his ancestors were sold as plea that A did not grant the manor, for it does not
slaves, the presumption is they continued slaves; answer the declaration except by argument. (Yelv.,

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223.) ectly and explicitly, and not by way of inference


from certain other averments, which are quite con-
So in trespass for taking and carrying away the sistent with the contrary hypothesis. I cannot, there-
plaintiff's goods, the defendant pleaded that the fore, treat this plea as containing an averment that
plaintiff never had any goods. The court said, ‘this the plaintiff himself was a slave at the time of ac-
is an infallible argument that the defendant is not tion brought; and the inquiry recurs, whether the
guilty, but it is no plea. ‘ (Dyer, a 43.) facts, that he is of African descent, and that his par-
ents were once slaves, are necessarily inconsistent
In ejectment, the defendant pleaded a surrender of a
with his own citizenship in the State of Missouri,
copyhold by the hand of Fosset, the steward. The
within the meaning of the Constitution and laws of
plaintiff replied, that Fosset was not steward. The
the United States.
court held this no issue, for it traversed the sur-
render only agrumentatively. (Cro. Elis., 260.) In Gassies v. Ballon, (6 Pet., 761,) the defendant
was described on the record as a naturalized citizen
In these cases, and many others reported in the
of the United States, residing in Louisiana. The
books, the inferences from the facts stated were ir-
court held this equivalent to an averment that the
resistible. But the court held they did not, when de-
defendant was a citizen of Louisiana; because a cit-
murred to, amount to such inferable facts. In the
izen of the United States, residing in any State of
case at bar, the inference that the defendant was a
the Union, is, for purposes of jurisdiction, a citizen
slave at the time of action brought, even if it can be
of that State. Now, the plea to the jurisdiction in
made at all, from the fact that his parents were
this case does not controvert the fact that the
slaves, is certainly not a necessary inference. This
plaintiff resided in Missouri at the date of the writ.
case, therefore, is like that of Digby v. Alexander,
If he did then reside there, and was also a citizen of
(8 Bing., 116.) In that case, the defendant pleaded
the United States, no provisions contained in the
many facts strongly tending to show that he was
Constitution or laws of Missouri can deprive the
once Earl of Stirling; but as there was no positive
plaintiff of his right to sue citizens of States other
allegation *571 that he was so at the time of action
than Missouri, in the courts of the United States.
brought, and as every fact averred might be true,
and yet the defendant not have been Earl of Stirling So that, under the allegations contained in this plea,
at the time of action brought, the plea was held to and admitted by the demurrer, the question is,
be insufficient. whether any person of African descent, whose an-
cestors were sold as slaves in the United States, can
**132 A lawful seizing• of land is presumed to con-
be a citizen of the United States. If any such person
tinue. But if, in an action of trespass quare clausum
can be a citizen, this plaintiff has the right to the
, the defendant were to plead that he was lawfully
judgment of the court that he is so; for no cause is
seized of the locus in quo, one month before the
shown by the plea why he is not so, except his des-
time of the alleged trespass, I should have no doubt
cent and the slavery of his ancestors.
it would be a bad plea. (See Mollan v. Torrance, 9
Wheat., 537.) So if a plea to the jurisdiction, in- The first section of the second article of the Consti-
stead of alleging that the plaintiff was a citizen of tution *572 uses the language, ‘a citizen of the
the same State as the defendant, were to allege that United States at the time of the adoption of the
the plaintiff's ancestors were citizens of that State, I Constitution.‘ One mode of approaching this ques-
think the plea could not be supported. My judgment tion is, to inquire who were citizens of the United
would be, as it is in this case, that if the defendant States at the time of the adoption of the Constitu-
meant to aver a particular substantive fact, as exist- tion.
ing at the time of action brought, he must do it dir-

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Citizens of the United States at the time of the ad- either of the States under the Confederation, at the
option of the Constitution can have been no other time of the adoption of the Constitution.
than citizens of the United States under the Confed-
eration. By the Articles of Confederation, a Gov- Of this there can be no doubt. At the time of the rat-
ernment was organized, the style whereof was, ‘The ification of the Articles of Confederation, all free
United States of America.‘ This Government was in native-born inhabitants of the States of New Hamp-
existence when the Constitution was framed and shire, Massachusetts, New *573 York, New Jersey,
proposed for adoption, and was to be superseded by and North Carolina, though descended from Afric-
the new Government of the United States of Amer- an slaves, were not only citizens of those States, but
ica, organized under the Constitution. When, there- such of them as had the other necessary qualifica-
fore, the Constitution speaks of citizenship of the tions possessed the franchise of electors, on equal
United States, existing at the time of the adoption terms with other citizens.
of the Constitution, it must necessarily refer to cit-
The Supreme Court of North Carolina, in the case
izenship under the Government which existed prior
of the State v. Manuel, (4 Dev. and Bat., 20,) has
to and at the time of such adoption.
declared the law of that State on this subject, in
**133 Without going into any question concerning terms which I believe to be as sound law in the oth-
the powers of the Confederation to govern the ter- er States I have enumerated, as it was in North Car-
ritory of the United States out of the limits of the olina.
States, and consequently to sustain the relation of
‘According to the laws of this State,‘ says Judge
Government and citizen in respect to the inhabitants
Gaston, in delivering the opinion of the court, ‘all
of such territory, it may safely be said that the cit-
human beings within it, who are not slaves, fall
izens of the several States were citizens of the
within one of two classes. Whatever distinctions
United States under the Confederation.
may have existed in the Roman laws between cit-
That Government was simply a confederacy of the izens and free inhabitants, they are unknown to our
several States, possessing a few defined powers institutions. Before our Revolution, all free persons
over subjects of general concern, each State retain- born within the dominions of the King of Great Bri-
ing every power, jurisdiction, and right, not ex- tain, whatever their color or complexion, were nat-
pressly delegated to the United States in Congress ive-born British subjects-those born out of his alle-
assembled. And no power was thus delegated to the giance were aliens. Slavery did not exist in Eng-
Government of the Confederation, to act on any land, but it did in the British colonies. Slaves were
question of citizenship, or to make any rules in re- not in legal parlance persons, but property. The mo-
spect thereto. The whole matter was left to stand ment the incapacity, the disqualification of slavery,
upon the action of the several States, and to the nat- was removed, they became persons, and were then
ural consequence of such action, that the citizens of either British subjects, or not British subjects, ac-
each State should be citizens of that Confederacy cording as they were or were not born within the al-
into which that State had entered, the style whereof legiance of the British King. Upon the Revolution,
was, ‘The United States of America.’ no other change took place in the laws of North
Carolina than was consequent on the transition
To determine whether any free persons, descended from a colony dependent on a European King, to a
from Africans held in slavery, were citizens of the free and sovereign State. Slaves remained slaves.
United States under the Confederation, and con- British subjects in North Carolina became North
sequently at the time of the adoption of the Consti- Carolina freemen. Foreigners, until made members
tution of the United States, it is only necessary to of the State, remained aliens. Slaves, manumitted
know whether any such persons were citizens of here, became freemen, and therefore, if born within

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North Carolina, are citizens of North Carolina, and free colored persons and others. (See Con. of N. Y.,
all free persons born within the State are born cit- Art. 2, Rev. Stats. of N. Y., vol. 1, p. 126.)
izens of the State. The Constitution extended the
elective franchise to every freeman who had arrived That of New Jersey, to ‘all inhabitants of this
at the age of twenty-one, and paid a public tax; and colony, of full age, who are worth £50 proclama-
it is a matter of universal notoriety, that, under it, tion money, clear estate.‘
free persons, without regard to color, claimed and
New York, by its Constitution of 1820, required
exercised the franchise, until it was taken from free
colored persons to have some qualifications as pre-
men of color a few years since by our amended
requisites for voting, which white persons need not
Constitution.‘
possess. And New Jersey, by its present Constitu-
**134 In the State v. Newcomb, (5 Iredell's R., tion, restricts the right to vote to white male cit-
253,) decided in 1844, the same court referred to izens. But these changes can have no other effect
this case of the State v. Manuel, and said: ‘That upon the present inquiry, except to show, that be-
case underwent a very laborious investigation, both fore they were made, no such restrictions existed;
by the bar and the bench. The case was brought and colored in common with white persons, were
here by appeal, and was felt to be one of great im- not only citizens of those States, but entitled to the
portance in principle. It was considered with an elective franchise on the same qualifications as
anxiety and care worthy of the principle involved, white persons, as they now are in New Hampshire
and which give it a controlling *574 influence and and Massachusetts. I shall not enter into an examin-
authority on all questions of a similar character.‘ ation of the existing opinions of that period respect-
ing the African race, nor into any discussion con-
An argument from speculative premises, however cerning the meaning of those who asserted, in the
well chosen, that the then state of opinion in the Declaration of Independence, that all men are cre-
Commonwealth of Massachusetts was not consist- ated equal; that they are endowed by their Creator
ent with the natural rights of people of color who with certain inalienable rights; that among these are
were born on that soil, and that they were not, by life, liberty, and the pursuit of happiness. My own
the Constitution of 1780 of that State, admitted to opinion is, that a calm comparison of these asser-
the condition of citizens, would be received with tions of universal abstract truths, and of their own
surprise by the people of that State, who know their individual opinions and acts, would not leave *575
own political history. It is true, beyond all contro- these men under any reproach of inconsistency; that
versy, that persons of color, descended from Afric- the great truths they asserted on that solemn occa-
an slaves, were by that Constitution made citizens sion, they were ready and anxious to make effectu-
of the State; and such of them as have had the ne- al, wherever a necessary regard to circumstances,
cessary qualifications, have held and exercised the which no statesman can disregard without produ-
elective franchise, as citizens, from that time to the cing more evil than good, would allow; and that it
present. (See Com. v. Aves, 18 Pick. R., 210.) would not be just to them, nor true in itself, to al-
lege that they intended to say that the Creator of all
The Constitution of New Hampshire conferred the men had endowed the white race, exclusively, with
elective franchise upon ‘every inhabitant of the the great natural rights which the Declaration of In-
State having the necessary qualifications,‘ of which dependence asserts. But this is not the place of vin-
color or descent was not one. dicate their memory. As I conceive, we should deal
here, not with such disputes, if there can be a dis-
The Constitution of New York gave the right to
pute concerning this subject, but with those sub-
vote to ‘every male inhabitant, who shall have
stantial facts evinced by the written Constitutions
resided,‘ &c.; making no discrimination between

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of States, and by the notorious practice under them. Did the Constitution of the United States deprive
And they show, in a manner which no argument can them or their descendants of citizenship?
obscure, that in some of the original thirteen States,
free colored persons, before and at the time of the That Constitution was ordained and established by
formation of the Constitution, were citizens of the people of the United States, through the action,
those States. in each State, or those persons who were qualified
by its laws to act thereon, in behalf of themselves
**135 The fourth of the fundamental articles of the and all other citizens of that State. In some of the
Confederation was as follows: ‘The free inhabitants States, as we have seen, colored persons were
of each of these States, paupers, vagabonds, and fu- among those qualified by law to act on this subject.
gitives from justice, excepted, shall be entitled to These colored persons were not only included in
all the privileges and immunities of free citizens in the body of ‘the people of the United States,‘ by
the several States.‘ whom the Constitution was ordained and estab-
lished, but in at least five of the States they had the
The fact that free persons of color were citizens of power to act, and doubtless did act, by their suf-
some of the several States, and the consequence, frages, upon the question of its adoption. It would
that this fourth article of the Confederation would be strange, if we were to find in that instrument
have the effect to confer on such persons the priv- anything which deprived of their citizenship any
ileges and immunities of general citizenship, were part of the people of the United States who were
not only known to those who framed and adopted among those by whom it was established.
those articles, but the evidence is decisive, that the
fourth article was intended to have that effect, and I can find nothing in the Constitution which,
that more restricted language, which would have proprio vigore, deprives of their citizenship any
excluded such persons, was deliberately and pur- class of persons who were citizens of the United
posely rejected. States at the time of its adoption, or who should be
native-born citizens of any State after its adoption;
On the 25th of June, 1778, the Articles of Confed- nor any power enabling Congress to disfranchise
eration being under consideration by the Congress, persons born on the soil of any State, and entitled to
the delegates from South Carolina moved to amend citizenship of such State by its Constitution and
this fourth article, by inserting after the word ‘free,‘ laws. And my opinion is, that, under the Constitu-
and before the word ‘inhabitants,‘ the word ‘white,‘ tion of the United States, every free person born on
so that the privileges and immunities of general cit- the soil of a State, who is a citizen of that State by
izenship would be secured only to white persons. force of its Constitution or laws, is also a citizen of
Two States voted for the amendment, eight States the United States.
against it, and the vote of one State was divided.
The language of the article stood unchanged, and **136 I will proceed to state the grounds of that
both by its terms of inclusion, ‘free inhabitants,‘ opinion.
and the strong implication from its terms of exclu-
sion, ‘paupers, vagabonds, and fugitives from The first section of the second article of the Consti-
justice,‘ who alone were excepted, it is clear, that tution uses the language, ‘a natural-born citizen.‘ It
under the Confederation, and at the time of the ad- thus assumes that citizenship may be acquired by
option of the Constitution, free colored persons of birth. Undoubtedly, this language of the Constitu-
African descent might be, and, by reason of their tion was used in reference to that principle of pub-
citizenship in certain States, were entitled to the lic law, well understood in this country at the time
*576 privileges and immunities of general citizen- of the adoption of the Constitution, which referred
ship of the United States. citizenship to the place of birth. At the Declaration

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of Independence, and ever since, the received gen- It contains no such declaration. We may dismiss the
eral doctrine has been, in conformity with the com- first alternative, as without doubt unfounded.
mon law, that free persons born within either of the
colonies were subjects of the King; that by the De- Has it empowered Congress to enact what free per-
claration of Independence, and the consequent ac- sons, born within the several States, shall or shall
quisition of sovereignty by the several States, all not be citizens of the United States?
such persons ceased to be subjects, and became cit-
Before examining the various provisions of the
izens of the several States, except so far as some of
Constitution which may relate to this question, it is
them were disfranchised by the legislative power of
important to consider for a moment the substantial
the States, or availed themselves, seasonably, of the
nature of this inquiry. It is, in effect, whether the
right to adhere to the British Crown in the civil con-
Constitution has empowered Congress to create
test, *577 and thus to continue British subjects. (
privileged classes within the States, who alone can
McIlvain v. Coxe's Lessee, 4 Cranch, 209; Inglis v.
be entitled to the franchises and powers of citizen-
Sailors' Snug Harbor, 3 Peters, p. 99; Shanks v.
ship of the United States. If it be admitted that the
Dupont, Ibid, p. 242.)
Constitution has enabled Congress to declare what
The Constitution having recognized the rule that free persons, born within the several States, shall be
persons born within the several States are citizens citizens of the United States, it must at the same
of the United States, one of four things must be time be admitted that it is an unlimited power. If
true: this subject is within the control of Congress, it
must depend wholly on its discretion. For, cer-
First. That the Constitution itself has described tainly, no limits of that discretion can be found in
what native-born persons shall or shall not be cit- the Constitution, which is wholly silent concerning
izens of the United States; or, it; and the necessary consequence is, that the Feder-
al Government may select classes of persons within
Second. That it has empowered Congress to do so; the several States who alone can be entitled to the
or, political privileges of citizenship of the United
States. If this power exists, what persons born with-
Third. That all free persons, born within the several
in the States may be President or Vice President
States, are citizens of the United States; or,
*578 of the United States, or members of either
Fourth. That it is left to each State to determine House of Congress, or hold any office or enjoy any
what free persons, born within its limits, shall be privilege whereof citizenship of the United States is
citizens of such State, and thereby be citizens of the a necessary qualification, must depend solely on the
United States. will of Congress. By virtue of it, though Congress
can grant no title of nobility, they may create an ol-
If there be such a thing as citizenship of the United igarchy, in whose hands would be concentrated the
States acquired by birth within the States, which the entire power of the Federal Government.
Constitution expressly recognizes, and no one
denies, then these four alternatives embrace the en- **137 It is a substantive power, distinct in its
tire subject, and it only remains to select that one nature from all others; capable of affecting not only
which is true. the relations of the States to the General Govern-
ment, but of controlling the political condition of
That the Constitution itself has defined citizenship the people of the United States. Certainly we ought
of the United States by declaring what persons, to find this power granted by the Constitution, at
born within the several States, shall or shall not be least by some necessary inference, before we can
citizens of the United States, will not be pretended. say it does not remain to the States or the people. I

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proceed therefore to examine all the provisions of the United States of America were to be one united
the Constitution which may have some bearing on sovereign nation, to which loyalty and obedience
this subject. on the one side, and from which protection and
privileges on the other, would be due, yet the sever-
Among the powers expressly granted to Congress is al sovereign States, whose people were then cit-
‘the power to establish a uniform rule of naturaliza- izens, were not only to continue in existence, but
tion.‘ It is not doubted that this is a power to pre- with powers unimpaired, except so far as they were
scribe a rule for the removal of the disabilities con- granted by the people to the National Government.
sequent on foreign birth. To hold that it extends fur-
ther than this, would do violence to the meaning of Among the powers unquestionably possessed by the
the term naturalization, fixed in the common law, several States, was that of determining what per-
(Co. Lit., 8 a, 129 a; 2 Ves., sen., 286; 2 Bl. Com., sons should and what persons should not be cit-
293,) and in the minds of those who concurred in izens. It was practicable to confer on the Govern-
framing and adopting the Constitution. It was in ment of the Union this entire power. It embraced
this sense of conferring on an alien and his issue the what may, well enough for the purpose now in
rights and powers of a native-born citizen, that it view, be divided into three parts. First: The power
was employed in the Declaration of Independence. to remove the disabilities of alienage, either by spe-
It was in this sense it was expounded in the Feder- cial acts in reference to each individual case, or by
alist, (No. 42,) has been understood by Congress, establishing a rule of naturalization to be admin-
by the Judiciary, ( 2 Wheat., 259, 269; 3 Wash. R., istered and applied by the courts. Second: Determ-
313, 322; 12 Wheat., 277,) and by commentators on ining what persons should enjoy the privileges of
the Constitution. (3 Story's Com. on Con., 1-3; 1 citizenship, in respect to the internal affairs of the
Rawle on Con., 84-88; 1 Tucker's Bl. Com. App., several States. Third: What native-born persons
255-259.) should be citizens of the United States.

It appears, then, that the only power expressly gran- **138 The first-named power, that of establishing a
ted to Congress to legislate concerning citizenship, uniform rule of naturalization, was granted; and
is confined to the removal of the disabilities of for- here the grant, according to its terms, stopped. Con-
eign birth. struing a Constitution containing only limited and
defined powers of government, the argument de-
Whether there be anything in the Constitution from rived from this definite and restricted power to es-
which a broader power may be implied, will best be tablish a rule of naturalization, must be admitted to
seen when we come to examine the two other al- be exceedingly strong. I do not say it is necessarily
ternatives, which are, whether all free persons, born decisive. It might be controlled by other parts of the
on the soil of the several States, or only such of Constitution. But when this particular subject of cit-
them as may be citizens of each State, respectively, izenship was under consideration, and, in the clause
are thereby citizens of the United States. The last of specially intended to define the extent of power
these alternatives, in my judgment, contains the concerning it, we find a particular part of this entire
truth. power separated from the residue, and conferred on
the General Government, there arises a strong pre-
Undoubtedly, as has already been said, it is a prin-
sumption that this is all which is granted, and that
ciple of public law, recognized by the Constitution
the residue is left to the States and to the people.
itself, that birth on the soil of a country both creates
And this presumption is, in my opinion, converted
the duties and confers the rights of citizenship. But
into a certainty, by an examination of all such other
it must be remembered, that though *579 the Con-
clauses of the Constitution as touch this subject.
stitution was to form a Government, and under it

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I will examine each which can have any possible ship; but here, privileges and immunities to be en-
bearing on this question. joyed throughout the United States, under and by
force of the national compact, are granted and se-
The first clause of the second section of the third cured. In selecting those who are to enjoy these na-
article of the Constitution is, ‘The judicial power tional rights of citizenship, how are they described?
shall extend to controversies between a State and As citizens of each State. It is to them these nation-
citizens of another State; between citizens of differ- al rights are secured. The qualification for them is
ent States; between citizens of the same State, not to be looked for in any provision of the Consti-
claiming lands under grants of different States; and tution or laws of the United States. They are to be
between States, or the citizens thereof, and foreign citizens of the several States, and, as such, the priv-
States, *580 citizens, or subjects.‘ I do not think ileges and immunities of general citizenship, de-
this clause has any considerable bearing upon the rived from and guarantied by the Constitution, are
particular inquiry now under consideration. Its pur- to be enjoyed by them. It would seem that if it had
pose was, to extend the judicial power to those con- been intended to constitute a class of native-born
troversies into which local feelings or interests persons within the States, who should derive their
might so enter as to disturb the course of justice, or citizenship of the United States from the action of
give rise to suspicions that they had done so, and the Federal Government, this was an occasion for
thus possibly give occasion to jealousy or ill will referring to them. It cannot be supposed that it was
between different States, or a particular State and a the purpose of this article to confer the privileges
foreign nation. At the same time, I would remark, and immunities of citizens in all the States upon
in passing, that it has never been held, I do not persons not citizens of the United States.
know that it has ever been supposed, that any cit-
izen of a State could bring himself under this clause *581 And if it was intended to secure these rights
and the eleventh and twelfth sections of the judi- only to citizens of the United States, how has the
ciary act of 1789, passed in pursuance of it, who Constitution here described such persons? Simply
was not a citizen of the United States. But I have as citizens of each State.
referred to the clause, only because it is one of the
places where citizenship is mentioned by the Con- But, further: though, as I shall presently more fully
stitution. Whether it is entitled to any weight in this state, I do not think the enjoyment of the elective
inquiry or not, it refers only to citizenship of the franchise essential to citizenship, there can be no
several States; it recognizes that; but it does not re- doubt it is one of the chiefest attributes of citizen-
cognize citizenship of the United States as ship under the American Constitutions; and the just
something distinct therefrom. and constitutional possession of this right is decis-
ive evidence of citizenship. The provisions made by
As has been said, the purpose of this clause did not a Constitution on this subject must therefore be
necessarily connect it with citizenship of the United looked to as bearing directly on the question what
States, even if that were something distinct from persons are citizens under that Constitution; and as
citizenship of the several States, in the contempla- being decisive, to this extent, that all such persons
tion of the Constitution. This cannot be said of oth- as are allowed by the Constitution to exercise the
er clauses of the Constitution, which I now proceed elective franchise, and thus to participate in the
to refer to. Government of the United States, must be deemed
citizens of the United States.
**139 ‘The citizens of each State shall be entitled
to all the privileges and immunities of citizens of Here, again, the consideration presses itself upon
the several States.‘ Nowhere else in the Constitu- us, that if there was designed to be a particular class
tion is there anything concerning a general citizen- of native-born persons within the States, deriving

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their citizenship from the Constitution and laws of several States, who, by force of their respective
the United States, they should at least have been re- Constitutions and laws, are citizens of the State, are
ferred to as those by whom the President and House thereby citizens of the United States.
of Representatives were to be elected, and to whom
they should be responsible. It may be proper here to notice some supposed ob-
jections to this view of the subject.
Instead of that, we again find this subject referred
to the laws of the several States. The electors of It has been often asserted that the Constitution was
President are to be appointed in such manner as the made exclusively by and for the white race. It has
Legislature of each State may direct, and the quali- already been shown that in five of the thirteen ori-
fications of electors of members of the House of ginal States, colored persons then possessed the
Representatives shall be the same as for electors of elective franchise, and were among those by whom
the most numerous branch of the State Legislature. the Constitution was ordained and established. If
so, it is not true, in point of fact, that the Constitu-
**140 Laying aside, then, the case of aliens, con- tion was made exclusively by the white race. And
cerning which the Constitution of the United States that it was made exclusively for the white race is, in
has provided, and confining our view to free per- my opinion, not only an assumption not warranted
sons born within the several States, we find that the by anything in the Constitution, but contradicted by
Constitution has recognized the general principle of its opening declaration, that it was ordained and es-
public law, that allegiance and citizenship depend tablished by the people of the United States, for
on the place of birth; that it has not attempted prac- themselves and their posterity. And as free colored
tically to apply this principle by designating the persons were then citizens of at least five States,
particular classes of persons who should or should and so in every sense part of the people of the
not come under it; that when we turn to the Consti- United States, they were among those for whom
tution for an answer to the question, what free per- and whose posterity the Constitution was ordained
sons, born within the several States, are citizens of and established.
the United States, the only answer we can receive
from any of its express provisions is, the citizens of Again, it has been objected, that if the Constitution
the several States are to enjoy the privileges and has left to the several States the rightful power to
immunities of citizens in every State, and their determine who of their inhabitants shall be citizens
franchise as electors under the Constitution depends of the United States, the States may make aliens cit-
on their citizenship in the several States. Add to izens.
this, that the Constitution was ordained by the cit-
**141 The answer is obvious. The Constitution has
izens of the several States; that they were ‘the
left to the States the determination what persons,
people of the United States,‘ for whom *582 and
born within their respective limits, shall acquire by
whose posterity the Government was declared in
birth citizenship of the United States; it has not left
the preamble of the Constitution to be made; that
to them any power to prescribe any rule for the re-
each of them was ‘a citizen of the United States at
moval of the disabilities of alienage. This power is
the time of the adoption of the Constitution,‘ within
exclusively in Congress.
the meaning of those words in that instrument; that
by them the Government was to be and was in fact It has been further objected, that if free colored per-
organized; and that no power is conferred on the sons, born within a particular State, and made cit-
Government of the Union to discriminate between izens of that State by its Constitution and laws, are
them, or to disfranchise any of them-the necessary thereby made citizens of the United States, then,
conclusion is, that those persons born within the under the second section of the fourth article of the

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Constitution, such persons would be entitled to all whether native-born women, or persons under age,
the privileges and immunities of citizens in the sev- or under guardianship because insane or spend-
eral States; and if so, then colored persons could thrifts, be excluded from voting or holding office,
vote, and be *583 eligible to not only Federal of- or allowed to do so, I apprehend no one will deny
fices, but offices even in those States whose Consti- that they are citizens of the United States. Besides,
tution and laws disqualify colored persons from this clause of the Constitution does not confer on
voting or being elected to office. the citizens of one State, in all other States, specific
and enumerated privileges and immunities. They
But this position rests upon an assumption which I are entitled to such as belong to citizenship, but not
deem untenable. Its basis is, that no one can be to such as belong to particular citizens attended by
deemed a citizen of the United States who is not en- other qualifications. Privileges and immunities
titled to enjoy all the privileges and franchises which belong to certain citizens of a State, by reas-
which are conferred on any citizen. (See 1 Lit. Ken- on of the operation of causes other than mere cit-
tucky R., 326.) That this is not true, under the Con- izenship, are not conferred. Thus, if the laws of a
stitution of the United States, seems to me clear. State require, in addition to *584 citizenship of the
State, some qualification for office, or the exercise
A naturalized citizen cannot be President of the
of the elective franchise, citizens of all other States,
United States, nor a Senator till after the lapse of
coming thither to reside, and not possessing those
nine years, nor a Representative till after the lapse
qualifications, cannot enjoy those privileges, not
of seven years, from his naturalization. Yet, as soon
because they are not to be deemed entitled to the
as naturalized, he is certainly a citizen of the United
privileges of citizens of the State in which they
States. Nor is any inhabitant of the District of
reside, but because they, in common with the nat-
Columbia, or of either of the Territories, eligible to
ive-born citizens of that State, must have the quali-
the office of Senator or Representative in Congress,
fications prescribed by law for the enjoyment of
though they may be citizens of the United States.
such privileges, under its Constitution and laws. It
So, in all the States, numerous persons, though cit-
rests with the States themselves so to frame their
izens, cannot vote, or cannot hold office, either on
Constitutions and laws as not to attach a particular
account of their age, or sex, or the want of the ne-
privilege or immunity to mere naked citizenship. If
cessary legal qualifications. The truth is, that cit-
one of the States will not deny to any of its own cit-
izenship, under the Constitution of the United
izens a particular privilege or immunity, if it confer
States, is not dependent on the possession of any
it on all of them by reason of mere naked citizen-
particular political or even of all civil rights; and
ship, then it may be claimed by every citizen of
any attempt so to define it must lead to error. To
each State by force of the Constitution; and it must
what citizens the elective franchise shall be con-
be borne in mind, that the difficulties which attend
fided, is a question to be determined by each State,
the allowance of the claims of colored persons to be
in accordance with its own views of the necessities
citizens of the United States are not avoided by say-
or expediencies of its condition. What civil rights
ing that, though each State may make them its cit-
shall be enjoyed by its citizens, and whether all
izens, they are not thereby made citizens of the
shall enjoy the same, or how they may be gained or
United States, because the privileges of general cit-
lost, are to be determined in the same way.
izenship are secured to the citizens of each State.
One may confine the right of suffrage to white male The language of the Constitution is, ‘The citizens
citizens; another may extend it to colored persons of each State shall be entitled to all privileges and
and females; one may allow all persons above a immunities of citizens in the several States. ‘ If
prescribed age to convey property and transact each State may make such persons its citizens, they
business; another may exclude married women. But became, as such, entitled to the benefits of this art-

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icle, if there be a native-born citizenship of the privileges and immunities of citizens when they
United States distinct from a native-born citizen- went into other States; and the just conclusion is,
ship of the several States. that though the Constitution cured an inaccuracy of
language, it left the substance of this article in the
**142 There is one view of this article entitled to National Constitution the same as it was in the Art-
consideration in this connection. It is manifestly icles of Confederation.
copied from the fourth of the Articles of Confedera-
tion, with only slight changes of phraseology, The history of this fourth article, respecting the at-
which render its meaning more precise, and drop- tempt to exclude free persons of color from its op-
ping the clause which excluded paupers, vaga- eration, has been already stated. It is reasonable to
bonds, and fugitives from justice, probably because conclude that this history was known to those who
these cases, could be dealt with under the police framed and adopted the Constitution. That under
powers of the States, and a special provision there- this fourth article of the Confederation, free persons
for was not necessary. It has been suggested, that in of color might be entitled to the privileges of gener-
adopting it into the Constitution, the words ‘free in- al citizenship, if otherwise entitled thereto, is clear.
habitants‘ were changed for the word ‘citizens.‘ An When this article was, in substance, placed in and
examination of the forms of expression commonly made part of the Constitution of the United States,
used in the State papers of that day, and an atten- with no change in its language calculated to ex-
tion to the substance of this article of the Confeder- clude free colored persons from the benefit of its
ation, will show that the words ‘free inhabitants,‘ as provisions, the presumption is, to say the least,
then used, were synonymous with citizens. When strong, that the practical effect which it was de-
the Articles of Confederation were adopted, we signed to have, and did have, under the former
were in the midst of the war of the Revolution, and Government, it was designed to have, and should
there were very few persons then embraced in the have, under the new Government.
words ‘free inhabitants,‘ who were not born on our
soil. It was not a time when many, save the *585 **143 It may be further objected, that if free
children of the soil, were willing to embark their colored persons may be citizens of the United
fortunes in our cause; and though there might be an States, it depends only on the will of a master
inaccuracy in the uses of words to call free inhabit- whether he will emancipate his slave, and thereby
ants citizens, it was then a technical rather than a make him a citizen. Not so. The master is subject to
substantial difference. If we look into the Constitu- the will of the State. Whether he shall be allowed to
tions and State papers of that period, we find the in- emancipate his slave at all; if so, on what condi-
habitants or people of these colonies, or the inhabit- tions; and what is to be the political status of the
ants of this State, or Commonwealth, employed to freed man, depend, not on the will of the master,
designate those whom we should now denominate but on the will of the State, upon which the political
citizens. The substance and purpose of the article status of all its native-born inhabitants depends.
prove it was in this sense it used these words: it se- Under the Constitution of the United States, each
cures to the free inhabitants of each State the priv- State has retained this power of determining the
ileges and immunities of free citizens in every political status of its native-born *586 inhabitants,
State. It is not conceivable that the States should and no exception thereto can be found in the Con-
have agreed to extend the privileges of citizenship stitution. And if a master in a slaveholding State
to persons not entitled to enjoy the privileges of cit- should carry his slave into a free State, and there
izens in the States where they dwelt; that under this emancipate him, he would not thereby make him a
article there was a class of persons in some of the native-born citizen of that State, and consequently
States, not citizens, to whom were secured all the no privileges could be claimed by such emancip-

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ated slave as a citizen of the United States. For, stances. (See the Treaties with the Choctaws, of
whatever powers the States may exercise to confer September 27, 1830, art. 14; with the Cherokees, of
privileges of citizenship on persons not born on May 23, 1836, art. 12 Treaty of Guadalupe Hidalgo,
their soil, the Constitution of the United States does February 2, 1848, art. 8.)
not recognize such citizens. As has already been
said, it recognizes the great principle of public law, **144 I do not deem it necessary to review at
that allegiance and citizenship spring from the length the legislation *587 of Congress having
place of birth. It leaves to the States the application more or less bearing on the citizenship of colored
of that principle to individual cases. It secured to persons. It does not seem to me to have any consid-
the citizens of each State the privileges and im- erable tendency to prove that it has been considered
munities of citizens in every other State. But it does by the legislative department of the Government,
not allow to the States the power to make aliens cit- that no such persons are citizens of the United
izens, or permit one State to take persons born on States. Undoubtedly they have been debarred from
the soil of another State, and, contrary to the laws the exercise of particular rights or privileges exten-
and policy of the State where they were born, make ded to white persons, but, I believe, always in terms
them its citizens, and so citizens of the United which, by implication, admit they may be citizens.
States. No such deviation from the great rule of Thus the act of May 17, 1792, for the organization
public law was contemplated by the Constitution; of the militia, directs the enrolment of ‘every free,
and when any such attempt shall be actually made, able-bodied, white male citizen.‘ An assumption
it is to be met by applying to it those rules of law that none but white persons are citzens, would be as
and those principles of good faith which will be inconsistent with the just import of this language,
sufficient to decide it, and not, in my judgment, by as that all citizens are able-bodied, or males.
denying that all the free native-born inhabitants of a
So the act of February 28, 1803, (2 Stat. at Large,
State, who are its citizens under its Constitution and
205,) to prevent the importation of certain persons
laws, are also citizens of the United States.
into States, when by the laws thereof their admis-
It has sometimes been urged that colored persons sion is prohibited, in its first section forbids all
are shown not to be citizens of the United States by masters of vessels to import or bring ‘any negro,
the fact that the naturalization laws apply only to mulatto, or other person of color, not being a nat-
white persons. But whether a person born in the ive, a citizen, or registered seaman of the United
United States be or be not a citizen, cannot depend States,‘ &c.
on laws which refer only to aliens, and do not affect
The acts of March 3, 1813, section 1, (2 Stat. at
the status of persons born in the United States. The
Large, 809,) and March 1, 1817, section 3, (3 Stat.
utmost effect which can be attributed to them is, to
at Large, 351,) concerning seamen, certainly imply
show that Congress has not deemed it expedient
there may be persons of color, natives of the United
generally to apply the rule to colored aliens. That
States, who are not citizens of the United States.
they might do so, if though fit, is clear. The Consti-
This implication is undoubtedly in accordance with
tution has not excluded them. And since that has
the fact. For not only slaves, but free persons of
conferred the power on Congress to naturalize
color, born in some of the States, are not citizens.
colored aliens, it certainly shows color is not a ne-
But there is nothing in these laws inconsistent with
cessary qualification for citizenship under the Con-
the citizenship of persons of color in others of the
stitution of the United States. It may be added, that
States, nor with their being citizens of the United
the power to make colored persons citizens of the
States.
United States, under the Constitution, has been ac-
tually exercised in repeated and important in- Whether much or little weight should be attached to

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the particular phraseology of these and other laws, privileges and immunities of citizens in all the
which were not passed with any direct reference to States.
this subject, I consider their tendency to be, as
already indicated, to show that, in the apprehension **145 The conclusions at which I have arrived on
of their framers, color was not a necessary qualific- this part of the case are:
ation of citizenship. It would be strange, if laws
First. That the free native-born citizens of each
were found on our statute book to that effect, when,
State are citizens of the United States.
by solemn treaties, large bodies of Mexican and
North American Indians as well as free colored in- Second. That as free colored persons born within
habitants of Louisiana have been admitted to cit- some of the States are citizens of those States, such
izenship of the United States. persons are also citizens of the United States.
In the legislative debates which preceded the ad- Third. That every such citizen, residing in any
mission of the State of Missouri into the Union, this State, has the right to sue and is liable to be sued in
question was agitated. Its result is found in the res- the Federal courts, as a citizen of that State in
olution of Congress, of March 5, 1821, for the ad- which he resides.
mission of that State into the Union. The Constitu-
tion of Missouri, under which that State applied for Fourth. That as the plea to the jurisdiction in this
admission into the Union, provided, that it should case shows no facts, except that the plaintiff was of
be the duty *588 of the Legislature ‘to pass laws to African descent, and his ancestors were sold as
prevent free negroes and mulattoes from coming to slaves, and as these facts are not inconsistent with
and settling in the State, under any pretext his citizenship of the United States, and his resid-
whatever.‘ One ground of objection to the admis- ence in the State of Missouri, the plea to the juris-
sion of the State under this Constitution was, that it diction was bad, and the judgment of the Circuit
would require the Legislature to exclude free per- Court overruling it was correct.
sons of color, who would be entitled, under the
second section of the fourth article of the Constitu- I dissent, therefore, from that part of the opinion of
tion, not only to come within the State, but to enjoy the majority of the court, in which it is held that a
there the privileges and immunities of citizens. The person of African descent cannot be a citizen of the
resolution of Congress admitting the State was United States; and I regret I must go further, and
upon the fundamental condition, ‘that the Constitu- dissent both from what I deem their assumption of
tion of Missouri shall never be construed to author- authority to examine the constitutionality of the act
ize the passage of any law, and that no law shall be of Congress commonly called the Missouri com-
passed in conformity thereto, by which any citizen promise *589 act, and the grounds and conclusions
of either of the States of this Union shall be ex- announced in their opinion.
cluded from the enjoyment of any of the privileges
Having first decided that they were bound to con-
and immunities to which such citizen is entitled un-
sider the sufficiency of the plea to the jurisdiction
der the Constitution of the United States.‘ It is true,
of the Circuit Court, and having decided that this
that neither this legislative declaration, nor any-
plea showed that the Circuit Court had not jurisdic-
thing in the Constitution or laws of Missouri, could
tion, and consequently that this is a case to which
confer or take away any privilege or immunity
the judicial power of the United States does not ex-
granted by the Constitution. But it is also true, that
tend, they have gone on to examine the merits of
it expresses the then conviction of the legislative
the case as they appeared on the trial before the
power of the United States, that free negroes, as cit-
court and jury, on the issues joined on the pleas in
izens of some of the States, might be entitled to the
bar, and so have reached the question of the power

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of Congress to pass the act of 1820. On so grave a is the *590 settled law of the court, affirmed so
subject as this, I feel obliged to say that, in my lately as Shepherd v. Graves, (14 How., 27,) and
opinion, such an exertion of judicial power tran- Wickliff v. Owings, (17 How., 51.) (See also De
scends the limits of the authority of the court, as de- Wolf v. Rabaud, 1 Pet., 476.) But I do not under-
scribed by its repeated decisions, and, as I under- stand this to be a rule which the court may depart
stand, acknowledged in this opinion of the majority from at its pleasure. If it be a rule, it is as binding
of the court. on the court as on the suitors. If it removes from the
latter the power to take any objection to the person-
In the course of that opinion, it became necessary to al disability of a party alleged by the record to be
comment on the case of Legrand v. Darnall, competent, which is not shown by a plea to the jur-
(reported in 2 Peters's R., 664.) In that case, a bill isdiction, it is because the court are forbidden by
was filed, by one alleged to be a citizen of Mary- law to consider and decide on objections so taken. I
land, against one alleged to be a citizen of do not consider it to be within the scope of the judi-
Pennsylvania. The bill stated that the defendant was cial power of the majority of the court to pass upon
the son of a white man by one of his slaves; and any question respecting the plaintiff's citizenship in
that the defendant's father devised to him certain Missouri, save that raised by the plea to the juris-
lands, the title to which was put in controversy by diction; and I do not hold any opinion of this court,
the bill. These facts were admitted in the answer, or any court, binding, when expressed on a question
and upon these and other facts the court made its not legitimately before it. ( Carroll v. Carroll, 16
decree, founded on the principle that a devise of How., 275.) The judgment of this court is, that the
land by a master to a slave was by implication also case is to be dismissed for want of jurisdiction, be-
a bequest of his freedom. The facts that the defend- cause the plaintiff was not a citizen of Missouri, as
ant was of African descent, and was born a slave, he alleged in his declaration. Into that judgment, ac-
were not only before the court, but entered into the cording to the settled course of this court, nothing
entire substance of its inquiries. The opinion of the appearing after a plea to the merits can enter. A
majority of my brethren in this case disposes of the great question of constitutional law, deeply affect-
case of Legrand v. Darnall, by saying, among other ing the peace and welfare of the country, is not, in
things, that as the fact that the defendant was born a my opinion, a fit subject to be thus reached.
slave only came before this court on the bill and an-
swer, it was then too late to raise the question of the But as, in my opinion, the Circuit Court had juris-
personal disability of the party, and therefore that diction, I am obliged to consider the question
decision is altogether inapplicable in this case. whether its judgment on the merits of the case
should stand or be reversed.
**146 In this I concur. Since the decision of this
court in Livingston v. Story, (11 Pet., 351,) the law The residence of the plaintiff in the State of Illinois,
has been settled, that when the declaration or bill and the residence of himself and his wife in the ter-
contains the necessary averments of citizenship, ritory acquired from France lying north of latitude
this court cannot look at the record, to see whether thirty-six degrees thirty minutes, and north of the
those averments are true, except so far as they are State of Missouri, are each relied on by the plaintiff
put in issue by a plea to the jurisdiction. In that in error. As the residence in the territory affects the
case, the defendant denied by his answer that Mr. plaintiff's wife and children as well as himself, I
Livingston was a citizen of New York, as he had al- must inquire what was its effect.
leged in the bill. Both parties went into proofs. The
court refused to examine those proofs, with refer- The general question may be stated to be, whether
ence to the personal disability of the plaintiff. This the plaintiff's status, as a slave, was so changed by
his residence within that territory, that he was not a

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slave in the State of Missouri, at the time this action of a master and his slave only temporarily in the
was brought. country, animo non manendi, and those who are
there to reside for permanent or indefinite purposes.
**147 In such cases, two inquiries arise, which may This is said by Mr. Wheaton to be the law of Prus-
be confounded, but should be kept distinct. sia, and was formerly the statute law of several
States of our Union. It is necessary in this case to
The first is, what was the law of the Territory into
keep in view this distinction between those coun-
which the master and slave went, respecting the re-
tries whose laws are designed to act directly on the
lation between them?
status of a slave, and make him a freeman, and
The second is, whether the State of Missouri recog- those where his master can obtain no aid from the
nizes and allows the effect of that law of the Territ- laws to enforce his rights.
ory, on the status of the slave, on his return within
It is to the last case only that the authorities, out of
its jurisdiction.
Missouri, relied on by defendant, apply, when the
As to the first of these questions, the will of States residence in the nonslaveholding Territory was per-
and nations, *591 by whose municipal law slavery manent. In the Commonwealth v. Aves, (18 Pick.,
is not recognized, has been manifested in three dif- 218,) Mr. Chief Justice Shaw said: ‘From the prin-
ferent ways. ciple above stated, on which a slave brought here
becomes free, to wit: that he becomes entitled to the
One is, absolutely to dissolve the relation, and ter- protection of our laws, it would seem to follow, as a
minate the rights of the master existing under the necessary conclusion, that if the slave waives the
law of the country whence the parties came. This is protection of those laws, and returns to the State
said by Lord Stowell, in the case of the slave Grace, where he is held as a slave, his condition is not
(2 Hag. Ad. R., 94,) and by the Supreme Court of changed.‘ It was upon this ground, as is apparent
Louisiana in the case of Maria Louise v. Marot, (9 from his whole reasoning, that Sir William Scott
Louis. R., 473,) to be the law of France; and it has rests his opinion in the case of the slave Grace. To
been the law of several States of this Union, in re- use one of his expressions, the effect of the law of
spect to slaves introduced under certain conditions. England was to put the liberty of the slave into a
(Wilson v. Isabel, 5 Call's R., 430; Hunter v. parenthesis. If there had been an *592 act of Parlia-
Hulcher, 1 Leigh, 172; Stewart v. Oaks, 5 Har. and ment declaring that a slave coming to England with
John., 107.) his master should thereby be deemed no longer to
be a slave, it is easy to see that the learned judge
The second is, where the municipal law of a coun- could not have arrived at the same conclusion. This
try not recognising slavery, it is the will of the State distinction is very clearly stated and shown by Pres-
to refuse the master all aid to exercise any control ident Tucker, in his opinion in the case of Betty v.
over his slave; and if he attempt to do so, in a man- Horton, (5 Leigh's Virginia R., 615.) (See also
ner justifiable only by that relation, to prevent the Hunter v. Fletcher, 1 Leigh's Va. R., 172; Maria
exercise of that control. But no law exists, designed Louise v. Marot, 9 Louisiana R.; Smith v. Smith, 13
to operate directly on the relation of master and Ib., 441; Thomas v. Genevieve, 16 Ib., 483; Rankin
slave, and put an end to that relation. This is said by v. Lydia, 2 A. K. Marshall, 467; Davies v. Tingle, 8
Lord Stowell, in the case above mentioned, to be B. Munroe, 539; Griffeth v. Fanny, Gilm. Va. R.,
the law of England, and by Mr. Chief Justice Shaw, 143; Lumford v. Coquillon, 14 Martin's La. R., 405;
in the case of the Commonwealth v. Aves, (18 Josephine v. Poultney, 1 Louis. Ann. R., 329.)
Pick., 193,) to be the law of Massachusetts.
**148 But if the acts of Congress on this subject
The third is, to make a distinction between the case

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are valid, the law of the Territory of Wisconsin, to the person claiming his or her labor or service, as
within whose limits the residence of the plaintiff aforesaid.‘ By other provisions of this act establish-
and his wife, and their marriage and the birth of one ing the Territory of Wisconsin, the laws of the
or both of their children, took place, falls under the United States, and the then existing laws of the
first category, and is a law operating directly on the State of Michigan, are extended over the Territory;
status of the slave. By the eighth section of the act the latter being subject to alteration and repeal by
of March 6, 1820, (3 Stat. at Large, 548,) it was en- the legislative power of the Territory created by the
acted that, within this Territory, ‘slavery and invol- act.
untary servitude, otherwise than in the punishment
of crimes, whereof the parties shall have been duly Fort Snelling was within the Territory of Wiscon-
convicted, shall be, and is hereby, forever prohib- sin, and these laws were extended over it. The Indi-
ited: Provided, always, that any person escaping in- an title to that site for a military post had been ac-
to the same, from whom labor or service is lawfully quired from the Sioux nation as early as September
claimed in any State or Territory of the United 23, 1805, (Am. State Papers, Indian Affairs, vol. 1,
States, such fugitive may be lawfully reclaimed, p. 744,) and until the erection of the Territorial
and conveyed to the person claiming his or her Government, the persons at that post were governed
labor or service, as aforesaid.‘ by the rules and articles of war, and such laws of
the United States, including the eighth section of
By the act of April 20, 1836, (4 Stat. at Large, 10,) the act of March 6, 1820, prohibiting slavery, as
passed in the same month and year of the removal were applicable to their condition; but after the
of the plaintiff to Fort Snelling, this part of the ter- erection of the Territory, and the extension of the
ritory ceded by France, where Fort Snelling is, to- laws of the United States and the laws of Michigan
gether with so much of the territory of the United over the whole of the Territory, including this milit-
States east of the Mississippi as now constitutes the ary post, the persons residing there were under the
State of Wisconsin, was brought under a Territorial dominion of those laws in all particulars to which
Government, under the name of the Territory of the rules and articles of war did not apply.
Wisconsin. By the eighteenth section of this act, it
was enacted, ‘That the inhabitants of this Territory **149 It thus appears that, by these acts of Con-
shall be entitled to and enjoy all and singular the gress, not only was a general system of municipal
rights, privileges, and advantages, granted and se- law borrowed from the State of Michigan, which
cured to the people of the Territory of the United did not tolerate slavery, but it was positively en-
States northwest of the river Ohio, by the articles of acted that slavery and involuntary servitude, with
compact contained in the ordinance for the govern- only one exception, specifically described, should
ment of said Territory, passed on the 13th day of not exist there. It is not simply that slavery is not
July, 1787; and shall be subject to all the restric- recognized and cannot be aided by the municipal
tions and prohibitions in said articles of compact law. It is recognized for the purpose of being abso-
imposed upon the people of the said Territory.‘ The lutely prohibited, and declared incapable of existing
sixth article of that compact is, ‘there shall be within the Territory, save in the instance of a fugit-
neither slavery nor involuntary servitude in the said ive slave.
Territory, otherwise than in *593 the punishment of
It would not be easy for the Legislature to employ
crimes, whereof the party shall have been duly con-
more explicit language to signify its will that the
victed. Provided, always, that any person escaping
status of slavery should not exist within the Territ-
into the same, from whom labor or service is law-
ory, than the words found in the act of 1820, and in
fully claimed in any one of the original States, such
the ordinance of 1787; and if any doubt could exist
fugitive may be lawfully reclaimed, and conveyed
concerning their application to cases of masters

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coming into the Territory with their slaves to national law require that recognition. Its will to re-
reside, that doubt must yield to the inference re- fuse such recognition may be manifested by what
quired by the words of exception. That exception is, we term statute law, or by the customary law of the
of cases of fugitive slaves. An exception from a State. It is within the province of its judicial
prohibition marks the extent of the prohibition; for tribunals to inquire and adjudge whether it appears,
it would be absurd, as well as useless, to except from the statute or customary law of the State, to be
from a prohibition *594 a case not contained within the will of the State to refuse to recognize such
it. ( 9 Wheat., 200.) I must conclude, therefore, that changes of status by force of foreign law, as the
it was the will of Congress that the state of involun- rules of the law of nations require to be recognized.
tary servitude of a slave, coming into the Territory But, in my opinion, it is not within the province of
with his master, should cease to exist. The Supreme any judicial tribunal to refuse such recognition
Court of Missouri so held in Rachel v. Walker, (4 from any political considerations, or any view it
Misso. R., 350,) which was the case of a military may take of the exterior political relations between
officer going into the Territory with two slaves. the State and one or more foreign States, or any im-
pressions it may have that a change of foreign opin-
But it is a distinct question, whether the law of Mis- ion and action on the subject of slavery may afford
souri recognized and allowed effect to the change a reason why the State should change its own ac-
wrought in the status of the plaintiff, by force of the tion. To understand and give *595 just effect to
laws of the Territory of Wisconsin. such considerations, and to change the action of the
State in consequence of them, are functions of dip-
I say the law of Missouri, because a judicial
lomatists and legislators, not of judges.
tribunal, in one State or nation, can recognize per-
sonal rights acquired by force of the law of any oth- **150 The inquiry to be made on this part of the
er State or nation, only so far as it is the law of the case is, therefore, whether the State of Missouri
former State that those rights should be recognized. has, by its statute, or its customary law, manifested
But, in the absence of positive law to the contrary, its will to displace any rule of international law, ap-
the will of every civilized State must be presumed plicable to a change of the status of a slave, by for-
to be to allow such effect to foreign laws as is in eign law.
accordance with the settled rules of international
law. And legal tribunals are bound to act on this I have not heard it suggested that there was any
presumption. It may be assumed that the motive of statute of the State of Missouri bearing on this
the State in allowing such operation to foreign laws question. The customary law of Missouri is the
is what has been termed comity. But, as has justly common law, introduced by statute in 1816. (1 Ter.
been said, (per Chief Justice Taney, 13 Pet., 589,) it Laws, 436.) And the common law, as Blackstone
is the comity of the State, not of the court. The says, (4 Com., 67,) adopts, in its full extent, the law
judges have nothing to do with the motive of the of nations, and holds it to be a part of the law of the
State. Their duty is simply to ascertain and give ef- land.
fect to its will. And when it is found by them that
its will to depart from a rule of international law I know of no sufficient warrant for declaring that
has not been mainfested by the State, they are any rule of international law, concerning the recog-
bound to assume that its will is to give effect to it. nition, in that State, of a change of status, wrought
Undoubtedly, every sovereign State may refuse to by an extra-territorial law, has been displaced or
recognize a change, wrought by the law of a foreign varied by the will of the State of Missouri.
State, on the status of a person, while within such
I proceed then to inquire what the rules of interna-
foreign State, even in cases where the rules of inter-
tional law prescribe concerning the change of status

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of the plaintiff wrought by the law of the Territory statement of facts, entered of record, in place of a
of Wisconsin. special verdict, it would have been necessary for
the court below, and for this court, to pronounce its
It is generally agreed by writers upon international judgment solely on those facts, thus agreed, without
law, and the rule has been judicially applied in a inferring any other facts therefrom. By the rules of
great number of cases, that wherever any question the common law applicable to such a case, and by
may arise concerning the status of a person, it must force of the seventh article of the amendments of
be determined according to that law which has next the Constitution, this court is precluded from find-
previously rightfully operated on and fixed that ing any fact not agreed to by the parties on the re-
status. And, further, that the laws of a country do cord. No submission to the court on a statement of
not rightfully operate upon and fix the status of per- facts was made. It was a trial by jury, in which cer-
sons who are within its limits in itinere, or who are tain admissions, made by the parties, were the evid-
abiding there for definite temporary purposes, as ence. The jury were not only competent, but were
for health, curiosity, or occasional business; that bound to draw from that evidence every inference
these laws, known to writers on public and private which, in their judgment, exercised according to the
international law as personal statutes, operate only rules of law, it would warrant. The Circuit Court
on the inhabitants of the country. Not that it is or took from the jury the power to draw any inferences
can be denied that each independent nation may, if from the admissions made by the parties, and de-
it thinks fit, apply them to all persons within their cided the case for the defendant. This course can be
limits. But when this is done, not in conformity justified here, if at all, only by its appearing that
with the principles of international law, other States upon the facts agreed, and all such inferences of
are not understood to be willing to recognize or al- fact favorable to the plaintiff's case, as the jury
low effect to such applications of personal statutes. might have been warranted in drawing from those
admissions, the law was with the defendant. Other-
It becomes necessary, therefore, to inquire whether
wise, the plaintiff would be deprived of the benefit
the operation of the laws of the Territory of Wis-
of his trial by jury, by whom, for aught we can
consin upon the status of the plaintiff was or was
know, those inferences favorable to his case would
not such an operation as these principles of interna-
have been drawn.
tional law require other States to recognize and al-
low effect to. **151 The material facts agreed, bearing on this
part of the case, are, that Dr. Emerson, the
And this renders it needful to attend to the particu-
plaintiff's master, resided about two years at the
lar facts and circumstances of this case.
military post of Fort Snelling, being a surgeon in
*596 It appears that this case came on for trial be- the army of the United States, his domicil of origin
fore the Circuit Court and a jury, upon an issue, in being unknown; and what, if anything, he had done,
substance, whether the plaintiff, together with his to preserve or change his domicil prior to his resid-
wife and children, were the slaves of the defendant. ence at Rock Island, being also unknown.

The court instructed the jury that, ‘upon the facts in Now, it is true, that under some circumstances the
this case, the law is with the defendant.‘ This with- residence of a military officer at a particular place,
drew from the jury the consideration and decision in the discharge of his official duties, does not
of every matter of fact. The evidence in the case amount to the acquisition of a technical domicil.
consisted of written admissions, signed by the But it cannot be affirmed, with correctness, that it
counsel of the parties. If the case had been submit- never does. There being actual residence, and this
ted to the judgment of the court, upon an agreed being presumptive evidence of domicil, all the cir-

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cumstances *597 of the case must be considered, iciled in the country whose laws are asserted to
before a legal conclusion can be reached, that his have fixed his status. But, in the United States,
place of residence is not his domicil. If a military questions of this kind may arise, where an attempt
officer stationed at a particular post should enter- to decide solely with reference to technical domicil,
tain an expectation that his residence there would tested by the rules which are applicable to changes
be indefinitely protracted, and in consequence of places of abode from one country to another,
should remove his family to the place where his du- would not be consistent with sound principles. And,
ties were to be discharged, form a permanent do- in my judgment, this is one of those cases.
mestic establishment there, exercise there the civil
rights and discharge the civil duties of an inhabit- **152 The residence of the plaintiff, who was taken
ant, while he did no act and manifested no intent to by his master, Dr. Emerson, as a slave, from Mis-
have a domicil elsewhere, I think no one would say souri to the State of Illinois, and thence to the Ter-
that the mere fact that he was himself liable to be ritory of Wisconsin, must be deemed to *598 have
called away by the orders of the Government would been for the time being, and until he asserted his
prevent his acquisition of a technical domicil at the own separate intention, the same as the residence of
place of the residence of himself and his family. In his master; and the inquiry, whether the personal
other words, I do not think a military officer incap- statutes of the Territory were rightfully extended
able of acquiring a domicil. (Bruce v. Bruce, 2 Bos. over the plaintiff, and ought, in accordance with the
and Pul., 230; Munroe v. Douglass, 5 Mad. Ch. R., rules of international law, to be allowed to fix his
232.) This being so, this case stands thus: there was status, must depend upon the circumstances under
evidence before the jury that Emerson resided about which Dr. Emerson went into that Territory, and re-
two years at Fort Snelling, in the Territory of Wis- mained there; and upon the further question, wheth-
consin. This may or may not have been with such er anything was there rightfully done by the
intent as to make it his technical domicil. The pre- plaintiff to cause those personal statutes to operate
sumption is that it was. It is so laid down by this on him.
court, in Ennis v. Smith, (14 How.,) and the author-
Dr. Emerson was an officer in the army of the
ities in support of the position are there referred to.
United States. He went into the Territory to dis-
His intent was a question of fact for the jury. (
charge his duty to the United States. The place was
Fitchburg v. Winchendon, 4 Cush., 190.)
out of the jurisdiction of any particular State, and
The case was taken from the jury. If they had power within the exclusive jurisdiction of the United
to find that the presumption of the necessary intent States. It does not appear where the domicil of ori-
had not been rebutted, we cannot say, on this re- gin of Dr. Emerson was, nor whether or not he had
cord, that Emerson had not his technical domicil at lost it, and gained another domicil, nor of what par-
Fort Snelling. But, for reasons which I shall now ticular State, if any, he was a citizen.
proceed to give, I do not deem it necessary in this
On what ground can it be denied that all valid laws
case to determine the question of the technical
of the United States, constitutionally enacted by
domicil of Dr. Emerson.
Congress for the government of the Territory, right-
It must be admitted that the inquiry whether the law fully extended over an officer of the United States
of a particular country has rightfully fixed the and his servant who went into the Territory to re-
status of a person, so that in accordance with the main there for an indefinite length of time, to take
principles of international law that status should be part in its civil or military affairs? They were not
recognized in other jurisdictions, ordinarily de- foreigners, coming from abroad. Dr. Emerson was a
pends on the question whether the person was dom- citizen of the country which had exclusive jurisdic-
tion over the Territory; and not only a citizen, but

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he went there in a public capacity, in the service of and the children of the marriage. It is in reference
the same sovereignty which made the laws. to his status, as viewed in other States and coun-
Whatever those laws might be, whether of the kind tries, that the contract of marriage and the birth of
denominated personal statutes, or not, so far as they children becomes strictly material. At the same
were intended by the legislative will, constitution- time, it is proper to observe that the female to
ally expressed, to operate on him and his servant, whom he was married having been taken to the
and on the relations between them, they had a right- same military post of Fort Snelling as a slave, and
ful operation, and no other State or country can re- Dr. Emerson claiming also to be her master at the
fuse to allow that those laws might rightfully oper- time of her marriage, her status, and that of the
ate on the plaintiff and his servant, because such a children of the marriage, are also affected by the
refusal would be a denial that the United States same considerations.
could, by laws constitutionally enacted, govern
their own servants, residing on their own Territory, If the laws of Congress governing the Territory of
over which the United States had the exclusive con- Wisconsin were constitutional and valid laws, there
trol, and in respect to which they are an independ- can be no doubt these parties were capable of con-
ent sovereign power. Whether the laws now in tracting a lawful marriage, attended with all the
question were constitutionally enacted, I repeat usual civil rights and obligations of that condition.
once more, is a separate question. But, assuming In that Territory they were absolutely free persons,
that they were, and that they operated directly on having full capacity to enter into the civil contract
the status of the plaintiff, I consider that no other of marriage.
State or country could question the rightful power
It is a principle of international law, settled beyond
of the United States so to legislate, or, consistently
controversy in England and America, that a mar-
with the settled rules of international law, could re-
riage, valid by the law of the place where it was
fuse to recognize the effects *599 of such legisla-
contracted, and not in fraud of the law of any other
tion upon the status of their officers and servants,
place, is valid everywhere; and that no technical
as valid everywhere.
domicil at the place of the contract is necessary to
**153 This alone would, in my apprehension, be make it so. (See Bishop on Mar. and Div., 125-129,
sufficient to decide this question. where the cases are collected.)

But there are other facts stated on the record which If, in Missouri, the plaintiff were held to be a slave,
should not be passed over. It is agreed that, in the the validity and operation of his contract of mar-
year 1836, the plaintiff, while residing in the Territ- riage must be denied. He can have no legal rights;
ory, was married, with the consent of Dr. Emerson, of course, not those of a husband and father. And
to Harriet, named in the declaration as his wife, and the same is true of his wife and children. The denial
that Eliza and Lizzie were the children of that mar- of his rights is the denial of theirs. So that, though
riage, the first named having been born on the Mis- lawfully married in the Territory, when they came
sissippi river, north of the line of Missouri, and the out of it, into the State of Missouri, they were no
other having been born after their return to Mis- longer *600 husband and wife; and a child of that
souri. And the inquiry is, whether, after the mar- lawful marriage, though born under the same
riage of the plaintiff in the Territory, with the con- dominion where its parents contracted a lawful
sent of Dr. Emerson, any other State or country can, marriage, is not the fruit of that marriage, nor the
consistently with the settled rules of international child of its father, but subject to the maxim, partus
law, refuse to recognize and treat him as a free sequitur ventrem.
man, when suing for the liberty of himself, his wife,
It must be borne in mind that in this case there is no

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ground for the inquiry, whether it be the will of the ing under him, the effect of which is to deny the
State of Missouri not to recognize the validity of validity of this marriage, and the lawful paternity of
the marriage of a fugitive slave, who escapes into a the children born from it, wherever asserted, is, in
State or country where slavery is not allowed, and my judgment, a claim inconsistent with good faith
there contracts a marriage; or the validity of such a and sound reason, as well as with the rules of inter-
marriage, where the master, being a citizen of the national law. And I go further: in my opinion, a law
State of Missouri, voluntarily goes with his slave, of the State *601 of Missouri, which should thus
in itinere, into a State or country which does not annul a marriage, lawfully contracted by these
permit slavery to exist, and the slave there contracts parties while resident in Wisconsin, not in fraud of
marriage without the consent of his master; for in any law of Missouri, or of any right of Dr. Emer-
this case, it is agreed, Dr. Emerson did consent; and son, who consented thereto, would be a law impair-
no further question can arise concerning his rights, ing the obligation of a contract, and within the pro-
so far as their assertion is inconsistent with the hibition of the Constitution of the United States.
validity of the marriage. Nor do I know of any (See 4 Wheat., 629, 695, 696.)
ground for the assertion that this marriage was in
fraud of any law of Missouri. It has been held by To avoid misapprehension on this important and
this court, that a bequest of property by a master to difficult subject, I will state, distinctly, the conclu-
his slave, by necessary implication entitles the slave sions at which I have arrived. They are:
to his freedom; because, only as a freeman could he
First. The rules of international law respecting the
take and hold the bequest. (Legrand v. Darnall, 2
emancipation of slaves, by the rightful operation of
Pet. R., 664.) It has also been held, that when a
the laws of another State or country upon the status
master goes with his slave to reside for an indefin-
of the slave, while resident in such foreign State or
ite period in a State where slavery is not tolerated,
country, are part of the common law of Missouri,
this operates as an act of manumission; because it is
and have not been abrogated by any statute law of
sufficiently expressive of the consent of the master
that State.
that the slave should be free. (2 Marshall's Ken. R.,
470; 14 Martin's Louis. R., 401.) Second. The laws of the United States, constitution-
ally enacted, which operated directly on and
**154 What, then, shall we say of the consent of
changed the status of a slave coming into the Ter-
the master, that the slave may contract a lawful
ritory of Wisconsin with his master, who went
marriage, attended with all the civil rights and du-
thither to reside for an indefinite length of time, in
ties which belong to that relation; that he may enter
the performance of his duties as an officer of the
into a relation which none but a free man can as-
United States, had a rightful operation on the status
sume-a relation which involves not only the rights
of the slave, and it is in conformity with the rules of
and duties of the slave, but those of the other party
international law that this change of status should
to the contract, and of their descendants to the re-
be recognized everywhere.
motest generation? In my judgment, there can be no
more effectual abandonment of the legal rights of a Third. The laws of the United States, in operation
master over his slave, than by the consent of the in the Territory of Wisconsin at the time of the
master that the slave should enter into a contract of plaintiff's residence there, did act directly on the
marriage, in a free State, attended by all the civil status of the plaintiff, and change his status to that
rights and obligations which belong to that condi- of a free man.
tion.
Fourth. The plaintiff and his wife were capable of
And any claim by Dr. Emerson, or any one claim- contracting, and, with the consent of Dr. Emerson,

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did contract a marriage in that Territory, valid un- sent. In my judgment, the opinion of the majority of
der its laws; and the validity of this marriage cannot the court in that case is in conflict with its previous
be questioned in Missouri, save by showing that it decisions, with a great weight of judicial authority
was in fraud of the laws of that State, or of some in other slaveholding States, and with fundamental
right derived from them; which cannot be shown in principles of private international law. Mr. Chief
this case, because the master consented to it. Justice Gamble, in his dissenting opinion in that
case, said:
**155 Fifth. That the consent of the master that his
slave, residing in a country which does not tolerate ‘I regard the question as conclusively settled by re-
slavery, may enter into a lawful contract of mar- peated adjudications of this court; and if I doubted
riage, attended with the civil rights and duties or denied the propriety of those decisions, I would
which being to that condition, is an effectual act of not feel myself any more at liberty to overturn
emancipation. And the law does not enable Dr. them, than I would any other series of decisions by
Emerson, or any one claiming under him, to assert a which the law upon any other question had been
title to the married persons as slaves, and thus des- settled. There is with me nothing in the law of
troy the obligation of the contract of marriage, and slavery which distinguishes it from the law on any
bastardize their issue, and reduce them to slavery. other subject, or allows any more accommodation
to the temporary excitements which have gathered
But it is insisted that the Supreme Court of Mis- around it. * * * * * * But in the midst of all such
souri has settled this case by its decision in Scott v. excitement, it is proper that the judicial mind, calm
Emerson, (15 Missouri Reports, 576;) and that this and self-balanced, should adhere to principles es-
decision is in conformity *602 with the weight of tablished when there was no feeling to disturb the
authority elsewhere, and with sound principles. If view of the legal questions upon which the rights of
the Supreme Court of Missouri had placed its de- parties depend.‘
cision on the ground that it appeared Dr. Emerson
never became domiciled in the Territory, and so its **156 ‘In this State, it has been recognized from
laws could not rightfully operate on him and his the beginning of the Government as a correct posi-
slave; and the facts that he went there to reside in- tion in law, that the master who takes his slave to
definitely, as an officer of the United States, and reside in a State or Territory where slavery is pro-
that the plaintiff was lawfully married there, with hibited, thereby emancipates his slave. ‘ ( Winney
Dr. Emerson's consent, were left out of view, the v. Whitesides, 1 Mo., 473; Le Grange v. Chouteau,
decision would find support in other cases, and I 2 Mo., 20; Milley v. Smith, Ib., 36; Ralph v.
might not be prepared to deny its correctness. But Duncan, 3 Mo., 194; Julia v. McKinney, Ib., 270;
the decision is not rested on this ground. The domi- Nat v. Ruddle, Ib., 400; Rachel v. Walker, 4 Mo.,
cil of Dr. Emerson in that Territory is not ques- 350; Wilson v. Melvin, 592.)
tioned in that decision; and it is placed on a broad
denial of the operation, in Missouri, of the law of *603 Chief Justice Gamble has also examined the
any foreign State or country upon the status of a decisions of the courts of other States in which
slave, going with his master from Missouri into slavery is established, and finds them in accordance
such foreign State or country, even though they with these preceding decisions of the Supreme
went thither to become, and actually became, per- Court of Missouri to which he refers.
manent inhabitants of such foreign State or country,
It would be a useless parade of learning for me to
the laws whereof acted directly on the status of the
go over the ground which he has so fully and ably
slave, and changed his status to that of a freeman.
occupied.
To the correctness of such a decision I cannot as-

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But it is further insisted we are bound to follow this that case, having been of counsel for one of the
decision. I do not think so. In this case, it is to be parties while at the bar; but, on examining the re-
determined what laws of the United States were in port of the argument of the counsel for the plaintiff
operation in the Territory of Wisconsin, and what in error, I find they made the point, that this court
was their effect on the status of the plaintiff. Could ought to give effect to the construction put upon the
the plaintiff contract a lawful marriage there? Does will by the State *604 court, to the end that rights
any law of the State of Missouri impair the obliga- respecting lands may be governed by one law, and
tion of that contract of marriage, destroy his rights that the law of the place where the lands are situ-
as a husband, bastardize the issue of the marriage, ated; that they referred to the State decision of the
and reduce them to a state of slavery? case, reported in 3 Cushing, 390, and to many de-
cisions of this court. But this court does not seem to
These questions, which arise exclusively under the have considered the point of sufficient importance
Constitution and laws of the United States, this to notice it in their opinions. In Millar v. Austin,
court, under the Constitution and laws of the United (13 How., 218,) an action was brought by the en-
States, has the rightful authority finally to decide. dorsee of a written promise. The question was,
And if we look beyond these questions, we come to whether it was negotiable under a statute of Ohio.
the consideration whether the rules of international The Supreme Court of that State having decided it
law, which are part of the laws of Missouri until was not negotiable, the plaintiff became nonsuit,
displaced by some statute not alleged to exist, do or and brought his action in the Circuit Court of the
do not require the status of the plaintiff, as fixed by United States. The decision of the Supreme Court
the laws of the Territory of Wisconsin, to be recog- of the State, reported in 4 Ves., L. J., 527, was re-
nized in Missouri. Upon such a question, not de- lied on. This court unanimously held the paper to
pending on any statute or local usage, but on prin- be negotiable.
ciples of universal jurisprudence, this court has re-
peatedly asserted it could not hold itself bound by **157 When the decisions of the highest court of a
the decisions of State courts, however great respect State are directly in conflict with each other, it has
might be felt for their learning, ability, and imparti- been repeatedly held, here, that the last decision is
ality. (See Swift v. Tyson, 16 Peters's R., 1; Car- not necessarily to be taken as the rule. ( State Bank
penter v. The Providence Ins. Co., Ib., 495; Fox- v. Knoop, 16 How., 369; Pease v. Peck, 18 How.,
croft v. Mallet, 4 How., 353; Rowan v. Runnels, 5 599.)
How., 134.)
To these considerations I desire to add, that it was
Some reliance has been placed on the fact that the not made known to the Supreme Court of Missouri,
decision in the Supreme Court of Missouri was so far as appears, that the plaintiff was married in
between these parties, and the suit there was aban- Wisconsin with the consent of Dr. Emerson, and it
doned to obtain another trial in the courts of the is not made known to us that Dr. Emerson was a
United States. citizen of Missouri, a fact to which that court seem
to have attached much importance.
In Homer v. Brown, (16 How., 354,) this court
made a decision upon the construction of a devise Sitting here to administer the law between these
of lands, in direct opposition to the unanimous parties, I do not feel at liberty to surrender my own
opinion of the Supreme Court of Massachusetts, convictions of what the law requires, to the author-
between the same parties, respecting the same sub- ity of the decision in 15 Missouri Reports.
ject-matter-the claimant having become nonsuit in
the State court, in order to bring his action in the I have thus far assumed, merely for the purpose of
Circuit Court of the United States. I did not sit in the argument, that the laws of the United States, re-

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specting slavery in this Territory, were constitution- **158 This dispute was further complicated by un-
ally enacted by Congress. It remains to inquire settled questions of boundary among several States.
whether they are constitutional and binding laws. It not only delayed the accession of Maryland to the
Confederation, but at one time seriously threatened
In the argument of this part of the case at bar, it was its existence. (5 Jour. of Cong., 208, 442.) Under
justly considered by all the counsel to be necessary the pressure of these circumstances, Congress earn-
to ascertain the source of the power of Congress estly recommended to the several States a cession
over the territory belonging to the United States. of their claims and rights to the United States. (5
Until this is ascertained, it is not possible to de- Jour. of Cong., 442.) And before the Constitution
termine the extent of that power. On the one side it was framed, it had been begun. That by New York
was maintained that the Constitution contains no had been made on the 1st day of March, 1781; that
express grant of power to organize and govern what of Virginia on the 1st day of March, 1784; that of
is now known to the laws of the United States as a Massachusetts on the 19th day of April, 1785; that
Territory. That whatever power of this kind exists, of Connecticut on the 14th day of September, 1786;
is derived by implication from the capacity of the that of South Carolina on the 8th day of August,
United States to hold and acquire territory out of 1787, while the Convention for framing the Consti-
the limits of any State, and the necessity for its hav- tution was in session.
ing some government.*605
It is very material to observe, in this connection,
On the other side, it was insisted that the Constitu- that each of these acts cedes, in terms, to the United
tion has not failed to make an express provision for States, as well the jurisdiction as the soil.
this end, and that it is found in the third section of
the fourth article of the Constitution. It is also equally important to note that, when the
Constitution was framed and adopted, this plan of
To determine which of these is the correct view, it vesting in the United States, for the common good,
is needful to advert to some facts respecting this the great tracts of ungranted lands claimed by the
subject, which existed when the Constitution was several States, in which so deep an interest was felt,
framed and adopted. It will be found that these facts was yet incomplete. It remained for North Carolina
not only shed much light on the question, whether and Georgia to cede their extensive and valuable
the framers of the Constitution omitted to make a claims. These were made, by North Carolina on the
provision concerning the power of Congress to or- 25th day of February, 1790, and by Georgia on the
ganize and govern Territories, but they will also aid 24th day of April, *606 1802. The terms of these
in the construction of any provision which may last-mentioned cessions will hereafter be noticed in
have been made respecting this subject. another connection; but I observe here that each of
them distinctly shows, upon its face, that they were
Under the Confederation, the unsettled territory
not only in execution of the general plan proposed
within the limits of the United States had been a
by the Congress of the Confederation, but of a
subject of deep interest. Some of the States insisted
formed purpose of each of these States, existing
that these lands were within their chartered bound-
when the assent of their respective people was giv-
aries, and that they had succeeded to the title of the
en to the Constitution of the United States.
Crown to the soil. On the other hand, it was argued
that the vacant lands had been acquired by the It appears, then, that when the Federal Constitution
United States, by the war carried on by them under was framed, and presented to the people of the sev-
a common Government and for the common in- eral States for their consideration, the unsettled ter-
terest. ritory was viewed as justly applicable to the com-
mon benefit, so far as it then had or might attain

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thereafter a pecuniary value; and so far as it might should supersede that of the Confederation. That if
become the seat of new States, to be admitted into the new Government should be without power to
the Union upon an equal footing with the original govern this Territory, it could not appoint and com-
States. And also that the relations of the United mission officers, and send them into the Territory,
States to that unsettled territory were of different to exercise there legislative, judicial, and executive
kinds. The titles of the States of New York, Virgin- power; and that this Territory, which was even then
ia, Massachusetts, Connecticut, and South Carolina, foreseen to be so important, both politically and
as well of soil as of jurisdiction, had been trans- financially, to all the existing States, must be left
ferred to the United States. North Carolina and not only without the control of the General Govern-
Georgia had not actually made transfers, but a con- ment, in respect to its future political relations to
fident expectation, founded on their appreciation of the rest of the States, but absolutely without any
the justice of the general claim, and fully justified Government, save what its inhabitants, acting in
by the results, was entertained, that these cessions their primary capacity, might from time to time cre-
would be made. The ordinance of 1787 had made ate for themselves.
provision for the temporary government of so much
of the territory actually ceded as lay northwest of But this Northwestern Territory was not the only
the river Ohio. territory, the soil and jurisdiction whereof were
then understood to have been ceded to the United
**159 But it must have been apparent, both to the States. The cession by South Carolina, made in Au-
framers of the Constitution and the people of the gust, 1787, was of ‘all the territory included within
several States who were to act upon it, that the the river Mississippi, and a line beginning at that
Government thus provided for could not continue, part of the said river which is intersected by the
unless the Constitution should confer on the United southern boundary of North Carolina, and continu-
States the necessary powers to continue it. That ing along the said boundary line until it intersects
temporary Government, under the ordinance, was to the ridge or chain of mountains which divides the
consist of certain officers, to be appointed by and Eastern from the Western waters; then to be contin-
responsible to the Congress of the Confederation; ued along the top of the said ridge of mountains,
their powers had been conferred and defined by the until it intersects a line to be drawn due west from
ordinance. So far as it provided for the temporary the head of the southern branch of the Tugaloo
government of the Territory, it was an ordinary act river, to the said mountains; and thence to run a due
of legislation, deriving its force from the legislative west course to the river Mississippi.‘
power of Congress, and depending for its vitality
upon the continuance of that legislative power. But It is true that by subsequent explorations it was as-
the officers to be appointed for the Northwestern certained that the source of the Tugaloo river, upon
Territory, after the adoption of the Constitution, which the title of South Carolina depended, was so
must necessarily be officers of the United States, far to the northward, that the transfer conveyed
and not of the Congress of the Confederation; ap- only a narrow slip of land, about twelve miles wide,
pointed and commissioned by the President, and ex- lying on the top of the ridge of mountains, and ex-
ercising powers derived from the United States un- tending from the northern boundary of Georgia to
der the Constitution. the southern boundary of North Carolina. But this
was a discovery made long after the cession, and
Such was the relation between the United States there can be no doubt that the State of South Caro-
and the Northwestern Territory, which all reflecting lina, in making the cession, and the Congress in ac-
men must have foreseen would exist, when the cepting it, viewed it as a transfer to the United
Government created by the *607 Constitution States of the soil and jurisdiction of an extensive

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and important part of the unsettled territory ceded powers of the Confederation to pass this ordinance.
by the Crown of Great Britain by the treaty of (Jefferson's Works, vol. 9, pp. 251, 276; Federalist,
peace, though its quantity or extent then remained Nos. 38, 43.)
FN5
to be ascertained.
FN6 It was published in a newspaper at
FN5 Note by Mr. Justice Curtis. This state- Philadelphia, in May, and a copy of it was
ment that some territory did actually pass sent by R. H. Lee to Gen. Washington, on
by this cession, is taken from the opinion the 15th of July. (See p. 261, Cor. of Am.
of the court, delivered by Mr. Justice Rev., vol. 4, and Writings of Washington,
Wayne, in the case of Howard v. Ingersoll, vol. 9, p. 174.)
reported in 13 How., 405. It is an obscure
matter, and, on some examination of it, I The importance of conferring on the new Govern-
have been led to doubt whether any territ- ment regular powers commensurate with the objects
ory actually passed by this cession. But as to be attained, and thus avoiding the alternative of a
the fact is not important to the argument, I failure to execute the trust assumed by the accept-
have not thought it necessary further to in- ance of the cessions made and expected, or its exe-
vestigate it. cution by usurpation, could scarcely fail to be per-
ceived. That it was in fact perceived, is clearly
**160 It must be remembered also, as has been shown by the Federalist, (No. 38,) where this very
already stated, that not only was there a confident argument is made use of in commendation of the
expectation entertained by the *608 other States, Constitution.
that North Carolina and Georgia would complete
the plan already so far executed by New York, Vir- Keeping these facts in view, it may confidently be
ginia, Massachusetts, Connecticut, and South Caro- asserted that there is very strong reason to believe,
lina, but that the opinion was in no small degree before we examine the Constitution itself, that the
prevalent, that the just title to this ‘back country,’ necessity for a competent grant of power to hold,
as it was termed, had vested in the United States by dispose of, and govern territory, ceded and expec-
the treaty of peace, and could not rightfully be ted to be ceded, could not have escaped the atten-
claimed by any individual State. tion of those who framed or adopted the Constitu-
tion; and that if it did not escape their attention, it
There is another consideration applicable to this could not fail to be adequately provided for.
part of the subject, and entitled, in my judgment, to
great weight. Any other conclusion would involve the assumption
that a subject of the gravest national concern, re-
The Congress of the Confederation had assumed specting which the small States felt so much jeal-
the power not only to dispose of the lands ceded, ousy that it had been almost an insurmountable
but to institute Governments and make laws for obstacle to the formation of the Confederation, and
their inhabitants. In other words, they had pro- as to which all the States had deep pecuniary and
ceeded to act under the cession, which, as we have political interests, and which had been so recently
seen, was as well of the jurisdiction as of the soil. and constantly agitated, *609 was nevertheless
This ordinance was passed on the 13th of July, overlooked; or that such a subject was not over-
1787. The Convention for framing the Constitution looked, but designedly left unprovided for, though
was then in session at Philadelphia. The proof is it was manifestly a subject of common concern,
direct and decisive, that it was known to the Con- which belonged to the care of the General Govern-
FN6
vention. It is equally clear that it was admitted ment, and adequate provision for which could not
and understood not to be within the legitimate fail to be deemed necessary and proper.

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**161 The admission of new States, to be framed be so construed as to prejudice any claims of the
out of the ceded territory, early attracted the atten- United States or any particular State.‘
tion of the Convention. Among the resolutions in-
troduced by Mr. Randolph, on the 29th of May, was That Congress has some power to institute tempor-
one on this subject, (Res. No. 10, 5 Elliot, 128,) ary Governments over the territory, I believe all
which, having been affirmed in Committee of the agree; and, if it be admitted that the necessity of
Whole, on the 5th of June, (5 Elliot, 156,) and re- some power to govern the territory *610 of the
ported to the Convention on the 13th of June, (5 El- United States could not and did not escape the at-
liot, 190,) was referred to the Committee of Detail, tention of the Convention and the people, and that
to prepare the Constitution, on the 26th of July, (5 the necessity is so great, that, in the absence of any
Elliot, 376.) This committee reported an article for express grant, it is strong enough to raise an implic-
the admission of new States ‘lawfully constituted or ation of the existence of that power, it would seem
established.’ Nothing was said concerning the to follow that it is also strong enough to afford ma-
power of Congress to prepare or form such States. terial aid in construing an express grant of power
This omission struck Mr. Madison, who, on the respecting that territory; and that they who maintain
18th of August, (5 Elliot, 439,) moved for the inser- the existence of the power, without finding any
tion of power to dispose of the unappropriated words at all in which it is conveyed, should be will-
lands of the United States, and to institute tempor- ing to receive a reasonable interpretation of lan-
ary Governments for new States arising therein. guage of the Constitution, manifestly intended to
relate to the territory, and to convey to Congress
On the 29th of August, (5 Elliot, 492,) the report of some authority concerning it.
the committee was taken up, and after debate,
which exhibited great diversity of views concerning **162 It would seem, also, that when we find the
the proper mode of providing for the subject, subject-matter of the growth and formation and ad-
arising out of the supposed diversity of interests of mission of new States, and the disposal of the territ-
the large and small States, and between those which ory for these ends, were under consideration, and
had and those which had not unsettled territory, but that some provision therefor was expressly made, it
no difference of opinion respecting the propriety is improbable that it would be, in its terms, a
and necessity of some adequate provision for the grossly inadequate provision; and that an indispens-
subject, Gouverneur Morris moved the clause as it ably necessary power to institute temporary Gov-
stands in the Constitution. This met with general ernments, and to legislate for the inhabitants of the
approbation, and was at once adopted. The whole territory, was passed silently by, and left to be de-
section is as follows: duced from the necessity of the case.

‘New States may be admitted by the Congress into In the argument at the bar, great attention has been
this Union; but no new State shall be formed or paid to the meaning of the word ‘territory.‘
erected within the jurisdiction of any other State,
Ordinarily, when the territory of a sovereign power
nor any State be formed by the junction of two or
is spoken of, it refers to that tract of country which
more States, or parts of States, without the consent
is under the political jurisdistion of that sovereign
of the Legislatures of the States concerned, as well
power. Thus Chief Justice Marshall (in United
as of Congress.
States v. Bevans, 3 Wheat., 386) says: ‘What, then,
‘The Congress shall have power to dispose of and is the extent of jurisdiction which a State pos-
make all needful rules and regulations respecting sesses? We answer, without hesitation, the jurisdic-
the territory or other property belonging to the tion of a State is coextensive with its territory.‘ Ex-
United States; and nothing in this Constitution shall amples might easily be multiplied of this use of the

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word, but they are unnecessary, because it is famili- **163 It is said this provision has no application to
ar. But the word ‘territory’ is not used in this broad any territory save that then belonging to the United
and general sense in this clause of the Constitution. States. I have already shown that, when the Consti-
tution was framed, a confident expectation was en-
At the time of the adoption of the Constitution, the tertained, which was speedily realized, that North
United States held a great tract of country northw- Carolina and Georgia would cede their claims to
est of the Ohio; another tract, then of unknown ex- that great territory which lay west of those States.
tent, ceded by South Carolina; and a confident ex- No doubt has been suggested that the first clause of
pectation was then entertained, and afterwards real- this same article, which enabled Congress to admit
ized, that they then were or would become the own- new States, refers to and includes new States to be
ers of other great tracts, claimed by North Carolina formed out of this territory, expected to be there-
and Georgia. These ceded tracts lay within the lim- after ceded by North Carolina and Georgia, as well
its of the United States, and out of the limits of any as new States to be formed out of territory northw-
particular State; and the cessions embraced the civil est of the Ohio, which then had been ceded by Vir-
and political jurisdiction, and so much of the soil as ginia. It must have been seen, therefore, that the
had not previously been granted to individuals. same necessity would exist for an authority to dis-
pose of and make all needful regulations respecting
These words, ‘territory belonging to the United
this territory, when ceded, as existed for a like au-
States,‘ *611 were not used in the Constitution to
thority respecting territory which had been ceded.
describe an abstraction, but to identify and apply to
these actual subjects matter then existing and be- No reason has been suggested why any reluctance
longing to the United States, and other similar sub- should have been felt, by the framers of the Consti-
jects which might afterwards be acquired; and this tution, to apply this provision to all the territory
being so, all the essential qualities and incidents at- which might belong to the United States, or why
tending such actual subjects are embraced within any distinction should have been made, founded on
the words ‘territory belonging to the United States,‘ the accidental circumstance of the dates of the ces-
as fully as if each of those essential qualities and sions; a circumstance in no way material as respects
incidents had been specifically described. the necessity for rules and regulations, or the pro-
priety of conferring *612 on the Congress power to
I say, the essential qualities and incidents. But in
make them. And if we look at the course of the de-
determining what were the essential qualities and
bates in the Convention on this article, we shall find
incidents of the subject with which they were deal-
that the then unceded lands, so far from having
ing, we must take into consideration not only all the
been left out of view in adopting this article, consti-
particular facts which were immediately before
tuted, in the minds of members, a subject of even
them, but the great consideration, ever present to
paramount importance.
the minds of those who framed and adopted the
Constitution, that they were making a frame of gov- Again, in what an extraordinary position would the
ernment for the people of the United States and limitation of this clause to territory then belonging
their posterity, under which they hoped the United to the United States, place the territory which lay
States might be, what they have now become, a within the chartered limits of North Carolina and
great and powerful nation, possessing the power to Georgia. The title to that territory was then claimed
make war and to conclude treaties, and thus to ac- by those States, and by the United States; their re-
quire territory. (See Cerre v. Pitot, 6 Cr., 336; Am. spective claims are purposely left unsettled by the
Ins. Co. v. Canter, 1 Pet., 542.) With these in view, express words of this clause; and when cessions
I turn to examine the clause of the article now in were made by those States, they were merely of
question.

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their claims to this territory, the United States But that there was then a settled opinion in the ex-
neither admitting nor denying the validity of those ecutive and legislative branches of the Government,
claims; so that it was impossible then, and has ever that this power did not exist, cannot be admitted,
since remained impossible, to know whether this without at the same time imputing to those who ne-
territory did or did not then belong to the United gotiated and ratified the treaty, and passed the laws
States; and, consequently, to know whether it was necessary to carry it into execution, a deliberate and
within or without the authority conferred by this known violation of their oaths to support the Con-
clause, to dispose of and make rules and regulations stitution; and whatever doubts may them have exis-
respecting the territory of the United States. This ted, the question must now be taken to have been
attributes to the eminent men who acted on this settled. Four distinct acquisitions of foreign territ-
subject a want of ability and forecast, or a want of ory have been made by as many different treaties,
attention to the known facts upon which they were under as many different Administrations. Six
acting, in which I cannot concur. States, formed on such territory, are now in the
Union. Every branch of this Government, during a
There is not, in my judgment, anything in the lan- period of more than fifty years, has participated in
guage, the history, or the subject-matter of this art- these transactions. To question their validity now,
icle, which restricts its operation to territory owned is vain. As was said by Mr. Chief Justice Marshall,
by the United States when the Constitution was ad- in the American Insurance Company v. Canter, (1
opted. Peters, 542,) ‘the Constitution confers absolutely on
the Government of the Union the powers of making
**164 But it is also insisted that provisions of the
war and of making treaties; consequently, se-
Constitution respecting territory belonging to the
quently, that Government possesses the power of
United States do not apply to territory acquired by
acquiring territory, either by conquest or treaty.‘
treaty from a foreign nation. This objection must
(See Cerré v. Pitot, 6 Cr., 336.) And I add, it also
rest upon the position that the Constitution did not
possesses the power of governing it, when acquired,
authorize the Federal Government to acquire for-
not by resorting to supposititious powers, nowhere
eign territory, and consequently has made no provi-
found described in the Constitution, but expressly
sion for its government when acquired; or, that
granted in the authority to make all needful rules
though the acquisition of foreign territory was con-
and regulations respecting the territory of the
templated by the Constitution, its provisions con-
United States.
cerning the admission of new States, and the mak-
ing of all needful rules and regulations respecting There was to be established by the Constitution a
territory belonging to the United States, were not frame of government, under which the people of the
designed to be applicable to territory acquired from United States and their posterity were to continue
foreign nations. indefinitely. To take one of its provisions, the lan-
guage of which is broad enough to extend
It is undoubtedly true, that at the date of the treaty
throughout the existence of the Government, and
of 1803, between the United States and France, for
embrace all territory belonging to the United States
the cession of Louisiana, it was made a question,
throughout all time, and the purposes and objects of
whether the Constitution had conferred on the exec-
which apply to all territory of the United States, and
utive department of the Government of the United
narrow it down to territory belonging to the United
States power to acquire foreign territory by a treaty.
States when the Constitution was framed, while at
*613
the same time it is admitted that the Constitution
There is evidence that very grave doubts were then contemplated and authorized the acquisition, from
entertained concerning the existence of this power. time to time, of other and foreign territory, seems to

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me to be an interpretation as inconsistent with the It is unnecessary to describe the body of legislation


nature and purposes of the instrument, as it is with which has been enacted under this grant of power;
its language, and I can have no hesitation in reject- its variety and extent are well known. But it may be
ing it. mentioned, in passing, that under this power to reg-
ulate commerce, Congress has enacted a great sys-
**165 I construe this clause, therefore, as if it had tem of municipal laws, and extended it over the
read, Congress shall have power to make all need- vessels and crews of the United States on the high
ful rules and regulations respecting those tracts of seas and in foreign ports, and even over citizens of
country, out of the limits of the several States, the United States resident in China; and has estab-
which the United States have acquired, or may lished judicatures, with power to inflict even capital
hereafter acquire, by cessions, as well of the juris- punishment within that country.
diction as of the *614 soil, so far as the soil may be
the property of the party making the cession, at the If, then, this clause does contain a power to legis-
time of making it. late respecting the territory, what are the limits of
that power?
It has been urged that the words ‘rules and regula-
tions‘ are not appropriate terms in which to convey To this I answer, that, in common with all the other
authority to make laws for the government of the legislative powers of Congress, it finds limits in the
territory. express prohibitions on Congress not to do certain
things; that, in the exercise of the legislative power,
But it must be remembered that this is a grant of Congress cannot pass an ex post facto law or bill of
power to the Congress-that it is therefore necessar- attainder; and so in respect to each of the other pro-
ily a grant of power to legislate-and, certainly, rules hibitions contained in the Constitution.
and regulations respecting a particular subject,
made by the legislative power of a country, can be Besides this, the rules and regulations must be
nothing but laws. Nor do the particular terms em- needful. But undoubtedly the question whether a
ployed, in my judgment, tend in any degree to re- particular rule or regulation be needful, must be fi-
strict this legislative power. Power granted to a Le- nally determined by Congress itself. Whether a law
gislature to make all needful rules and regulations be needful, is a legislative or political, *615 not a
respecting the territory, is a power to pass all need- judicial, question. Whatever Congress deems need-
ful laws respecting it. ful is so, under the grant of power.

The word regulate, or regulation, is several times **166 Nor am I aware that it has ever been ques-
used in the Constitution. It is used in the fourth sec- tioned that laws providing for the temporary gov-
tion of the first article to describe those laws of the ernment of the settlers on the public lands are need-
States which prescribe the times, places, and man- ful, not only to prepare them for admission to the
ner, of choosing Senators and Representatives; in Union as States, but even to enable the United
the second section of the fourth article, to designate States to dispose of the lands.
the legislative action of a State on the subject of fu-
gitives from service, having a very close relation to Without government and social order, there can be
the matter of our present inquiry; in the second sec- no property; for without law, its ownership, its use,
tion of the third article, to empower Congress to fix and the power of disposing of it, cease to exist, in
the extent of the appellate jurisdiction of this court; the sense in whcih those words are used and under-
and, finally, in the eighth section of the first article stood in all civilized States.
are the words, ‘Congress shall have power to regu-
Since, then, this power was manifestly conferred to
late commerce.‘

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enable the United States to dispose of its public of the United States. Their *616 will respecting it,
lands to settlers, and to admit them into the Union manifested in the Constitution, can be subject to no
as States, when in the judgment of Congress they restriction. The purposes and objects of the clause
should be fitted therefor, since these were the needs were the enactment of laws concerning the disposal
provided for, since it is confessed that Government of the public lands, and the temporary government
is indispensable to provide for those needs, and the of the settlers thereon until new States should be
power is, to make all needful rules and regulations formed. It will not be questioned that, when the
respecting the territory, I cannot doubt that this is a Constitution of the United States was framed and
power to govern the inhabitants of the territory, by adopted, the allowance and the prohibition of negro
such laws as Congress deems needful, until they slavery were recognized subjects of municipal le-
obtain admission as States. gislation; every State had in some measure acted
thereon; and the only legislative act concerning the
Whether they should be thus governed solely by territory-the ordinance of 1787, which had then so
laws enacted by Congress, or partly by laws en- recently been passed-contained a prohibition of
acted by legislative power conferred by Congress, slavery. The purpose and object of the clause being
is one of those questions which depend on the judg- to enable Congress to provide a body of municipal
ment of Congress-a question which of these is law for the government of the settlers, the allow-
needful. ance or the prohibition of slavery comes within the
known and recognized scope of that purpose and
But it is insisted, that whatever other powers Con-
object.
gress may have respecting the territory of the
United States, the subject of negro slavery forms an **167 There is nothing in the context which quali-
exception. fies the grant of power. The regulations must be
‘respecting the territory.‘ An enactment that slavery
The Constitution declares that Congress shall have
may or may not exist there, is a regulation respect-
power to make ‘ all needful rules and regulations‘
ing the territory. Regulations must be needful; but it
respecting the territory belonging to the United
is necessarily left to the legislative discretion to de-
States.
termine whether a law be needful. No other clause
The assertion is, though the Constitution says all, it of the Constitution has been referred to at the bar,
does not mean all-though it says all, without quali- or has been seen by me, which imposes any restric-
fication, it means all except such as allow or pro- tion or makes any exception concerning the power
hibit slavery. It cannot be doubted that it is incum- of Congress to allow or prohibit slavery in the ter-
bent on those who would thus introduce an excep- ritory belonging to the United States.
tion not found in the language of the instrument, to
A practical construction, nearly contemporaneous
exhibit some solid and satisfactory reason, drawn
with the adoption of the Constitution, and contin-
from the subject-matter or the purposes and objects
ued by repeated instances through a long series of
of the clause, the context, or from other provisions
years, may always influence, and in doubtful cases
of the Constitution, showing that the words em-
should determine, the judicial mind, on a question
ployed in this clause are not to be understood ac-
of the interpretation of the Constitution. (Stuart v.
cording to their clear, plain, and natural significa-
Laird, 1 Cranch, 269; Martin v. Hunter, 1 Wheat.,
tion.
304; Cohens v. Virginia, 6 Wheat., 264; Prigg v.
The subject-matter is the territory of the United Pennsylvania, 16 Pet., 621; Cooley v. Port War-
States out of the limits of every State, and con- dens, 12 How., 315.)
sequently under the exclusive power of the people
In this view, I proceed briefly to examine the prac-

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tical construction placed on the clause now in ques- after what had been so recently said by Mr. Madis-
tion, so far as it respects the inclusion therein of on on this subject, in the thirty-eighth number of
power to permit or prohibit slavery in the Territor- the Federalist, I cannot suppose that he, or any oth-
ies. ers who voted for this bill, attributed any intrinsic
effect to what was denominated in the ordinance a
It has already been stated, that after the Govern- compact between ‘the original States and the people
ment of the United States was organized under the and States in the new territory;‘ there being no new
Constitution, the temporary Government of the Ter- States then in existence in the territory, with whom
ritory northwest of the river Ohio could no longer a compact could be made, and the few scattered in-
exist, save under the powers conferred on Congress habitants, unorganized into a political body, not be-
by the Constitution. Whatever legislative, judicial, ing capable of becoming a party to a treaty, even if
or executive authority should be exercised therein the Congress of the Confederation had had power to
could be derived only from the people of the United make one touching the government of that territory.
States under the Constitution. And, accordingly, an
act was passed on the *617 7th day of August, I consider the passage of this law to have been an
1789, (1 Stat. at Large, 50,) which recites: assertion by the first Congress of the power of the
‘Whereas, in order that the ordinance of the United United States to prohibit slavery within this part of
States in Congress assembled, for the government the territory of the United States; for it clearly
of the territory northwest of the river Ohio, may shows that slavery was thereafter to be prohibited
continue to have full effect, it is required that cer- there, and it could be prohibited only by an exertion
tain provisions should be made, so as to adapt the of the power of the United States, under the Consti-
same to the present Constitution of the United tution; no other power being capable of operating
States.‘ It then provides for the appointment by the within that territory after the Constitution took ef-
President of all officers, who, by force of the ordin- fect.
ance, were to have been appointed by the Congress
of the Confederation, and their commission in the On the 2d of April, 1790, (1 Stat. at Large, 106,)
manner required by the Constitution; and empowers the first Congress passed an act accepting a deed of
the Secretary of the Territory to exercise the powers cession by North *618 Carolina of that territory af-
of the Governor in case of the death or necessary terwards erected into the State of Tennessee. The
absence of the latter. fourth express condition contained in this deed of
cession, after providing that the inhabitants of the
Here is an explicit declaration of the will of the first Territory shall be temporarily governed in the same
Congress, of which fourteen members, including manner as those beyond the Ohio, is followed by
Mr. Madison, had been members of the Convention these words: ‘Provided, always, that no regulations
which framed the Constitution, that the ordinance, made or to be made by Congress shall tend to
one article of which prohibited slavery, ‘should emancipate slaves.‘
continue to have full effect.‘ Gen. Washington, who
signed this bill, as President, was the President of This provision shows that it was then understood
that Convention. Congress might make a regulation prohibiting
slavery, and that Congress might also allow it to
**168 It does not appear to me to be important, in continue to exist in the Territory; and accordingly,
this connection, that that clause in the ordinance when, a few days later, Congress passed the act of
which prohibited slavery was one of a series of art- May 20th, 1790, (1 Stat. at Large, 123,) for the
icles of what is therein termed a compact. The Con- government of the Territory south of the river Ohio,
gress of the Confederation had no power to make it provided, ‘and the Government of the Territory
such a compact, nor to act at all on the subject; and south of the Ohio shall be similar to that now exer-

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cised in the Territory northwest of the Ohio, except Illinois Territory; the act of April 20th, 1836, (5
so far as is otherwise provided in the conditions ex- Stat. at Large, 10,) for the government of the Territ-
pressed in an act of Congress of the present session, ory of Wisconsin; the act of June 12th, 1838, for
entitled, ‘An act to accept a cession of the claims of the government of the Territory of Iowa; the act of
the State of North Carolina to a certain district of August 14th, 1848, for the government of the Ter-
western territory.‘’ Under the Government thus es- ritory of Oregon. To these instances should be ad-
tablished, slavery existed until the Territory became ded the act of March 6th, 1820, (3 Stat. at Large,
the State of Tennessee. 548,) prohibiting slavery in the territory acquired
from France, being northwest of Missouri, and
On the 7th of April, 1798, (1 Stat. at Large, 649,) north of thirty-six degrees thirty minutes north latit-
an act was passed to establish a Government in the ude.
Mississippi Territory in all respects like that exer-
cised in the Territory northwest of the Ohio, Of the second class, in which Congress refused to
‘excepting and excluding the last article of the or- interfere with slavery already existing under the
dinance made for the government thereof by the municipal law of France or Spain, and established
late Congress, on the 13th day of July, 1787.‘ When Governments by which slavery was recognized and
the limits of this Territory had been amicably allowed, are: the act of March 26th, 1804, (2 Stat.
settled with Georgia, and the latter ceded all its at Large, 283,) for the government of Louisiana; the
claim thereto, it was one stipulation in the compact act of March 2d, 1805, (2 Stat. at Large, 322,) for
of cession, that the orginance of July 13th, 1787, the government of the Territory of Orleans; the act
‘shall in all its parts extend to the Territory con- of June 4th, 1812, (2 Stat. at Large, 743,) for the
tained in the present act of cession, that article only government of the Missouri Territory; the act of
excepted which forbids slavery.‘ The Government March 30th, 1822, (3 Stat. at Large, 654,) for the
of this Territory was subsequently established and government of the Territory of Florida. Here are
organized under the act of May 10th, 1800; but so eight distinct instances, beginning with the first
much of the ordinance as prohibited slavery was Congress, and coming down to the year 1848, in
not put in operation there. which Congress has excluded slavery from the ter-
ritory of the United States; and six distinct in-
**169 Without going minutely into the details of stances in which Congress organized Governments
each case, I will now give reference to two classes of Territories by which slavery was recognized and
of acts, in one of which Congress has extended the continued, beginning also with the first Congress,
ordinance of 1787, including the article prohibiting and coming down to the year 1822. These acts were
slavery, over different Territories, and thus exerted severally signed by seven Presidents of the United
its power to prohibit it; in the other, Congress has States, beginning with General Washington, and
erected Governments over Territories acquired coming regularly down as far as Mr. John Quincy
from France and Spain, in which slavery already Adams, thus including all who were in public life
existed, but refused to apply to them that part of the when the Constitution was adopted.
Government under the ordinance which excluded
slavery. If the practical construction of the Constitution con-
temporaneously with its going into effect, by men
Of the first class are the act of May 7th, 1800, (2 intimately acquainted with its history from their
Stat. at *619 Large, 58,) for the government of the personal participation in framing and adopting it,
Indiana Territory; the act of January 11th, 1805, (2 and continued by them through a long series of acts
Stat. at Large, 309,) for the government of of the gravest importance, be entitled to weight in
Michigan Territory; the act of May 3d, 1809, (2 the judicial mind on a question of construction, it
Stat. at Large, 514,) for the government of the

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would seem to be difficult to resist the force of the in respect to their use and enjoyment of the territory
acts above adverted to. of the United States.

**170 It appears, however, from what has taken With the weight of either of these considerations,
place at the bar, that notwithstanding the language when presented to Congress to influence its action,
of the Constitution, and the long line of legislative this court has no concern. One or the other may be
and executive precedents under it, three different justly entitled to guide or control the legislative
and opposite views are taken of the power of Con- judgment upon what is a needful regulation. The
gress respecting slavery in the Territories.*620 question here is, whether they are sufficient to au-
thorize this court to insert into this clause of the
One is, that though Congress can make a regulation Constitution an exception of the exclusion or allow-
prohibiting slavery in a Territory, they cannot make ance of slavery, not found therein, nor in any other
a regulation allowing it; another is, that it can part of that instrument. To engraft on any instru-
neither be established nor prohibited by Congress, ment a substantive exception not found in it, must
but that the people of a Territory, when organized be admitted to be a matter attended with great diffi-
by Congress, can establish or prohibit slavery; culty. And the difficulty increases with the import-
while the third is, that the Constitution itself se- ance of the instrument, and the magnitude and com-
cures to every citizen who holds slaves, under the plexity of the interests involved in its construction.
laws of any State, the indefeasible right to carry To allow this to be done with the Constitution,
them into any Territory, and there hold them as upon reasons purely political, renders its judicial
property. interpretation impossible-because judicial tribunals,
as such, cannot decide upon political considera-
No particular clause of the Constitution has been
tions. Political reasons have not the requisite cer-
referred to at the bar in support of either of these
tainty to afford rules of juridical *621 interpreta-
views. The first seems to be rested upon general
tion. They are different in different men. They are
considerations concerning the social and moral
different in the same men at different times. And
evils of slavery, its relations to republican Govern-
when a strict interpretation of the Constitution, ac-
ments, its inconsistency with the Declaration of In-
cording to the fixed rules which govern the inter-
dependence and with natural right.
pretation of laws, is abandoned, and the theoretical
The second is drawn from consideration equally opinions of individuals are allowed to control its
general, concerning the right of self-government, meaning, we have no longer a Constitution; we are
and the nature of the political institutions which under the government of individual men, who for
have been established by the people of the United the time being have power to declare what the Con-
States. stitution is, according to their own views of what it
ought to mean. When such a method of interpreta-
While the third is said to rest upon the equal right tion of the Constitution obtains, in place of a repub-
of all citizens to go with their property upon the lican Government, with limited and defined powers,
public domain, and the inequality of a regulation we have a Government which is merely an expo-
which would admit the property of some and ex- nent of the will of Congress; or what, in my opin-
clude the property of other citizens; and, inasmuch ion, would not be preferable, an exponent of the in-
as slaves are chiefly held by citizens of those par- dividual political opinions of the members of this
ticula-States where slavery is established, it is in- court.
sisted that a regulation excluding slavery from a
Territory operates, practically, to make an unjust **171 If it can be shown, by anything in the Consti-
discrimination between citizens of different States, tution itself, that when it confers on Congress the

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60 U.S. 393, 19 How. 393, 1856 WL 8721 (U.S.Mo.), 15 L.Ed. 691
(Cite as: 60 U.S. 393, 1856 WL 8721 (U.S.Mo.))

power to make all needful rules and regulations re- Again, the Constitution confers on Congress power
specting the territory belonging to the United to regulate commerce with foreign nations. Under
States, the exclusion or the allowance of slavery this, Congress passed an act on the 22d of Decem-
was excepted; or if anything in the history of this ber, 1807, unlimited in duration, laying an embargo
provision tends to show that such an exception was on all ships and vessels in the ports or within the
intended by those who framed and adopted the limits and jurisdiction of the United States. No law
Constitution to be introduced into it, I hold it to be of the United States ever pressed so severely upon
my duty carefully to consider, and to allow just particular States. Though the constitutionality of
weight to such considerations in interpreting the the law was contested with an earnestness and zeal
positive text of the Constitution. But where the proportioned to the ruinous effects which were felt
Constitution has said all needful rules and regula- from it, and though, as Mr. Chief Justice Marshall
tions, I must find something more than theoretical has said, (9 Wheat., 192,) ‘a want of acuteness in
reasoning to induce me to say it did not mean all. discovering objections to a measure to which they
felt the most deep-rooted hositility will not be im-
There have been eminent instances in this court puted to those who were arrayed in opposition to
closely analogous to this one, in which such an at- this, ‘ I am not aware that the fact that it prohibited
tempt to introduce an exception, not found in the the use of a particular species of property, belong-
Constitution itself, has failed of success. ing almost exclusively to citizens of a few States,
and this indefinitely, was ever supposed to show
By the eighth section of the first article, Congress
that it was unconstitutional. Something much more
has the power of exclusive legislation in all cases
stringent, as a ground of legal judgment, was relied
whatsoever within this District.
on-that the power to regulate commerce did not in-
In the case of Loughborough v. Blake, (5 Whea., clude the power to annihilate commerce.
324,) the question arose, whether Congress has
**172 But the decision was, that under the power to
power to impose direct taxes on persons and prop-
regulate commerce, the power of Congress over the
erty in this District. It was insisted, that though the
subject was restricted only by those exceptions and
grant of power was in its terms broad enough to in-
limitations contained in the Constitution; and as
clude direct taxation, it must be limited by the prin-
neither the clause in question, which was a general
ciple, that taxation and representation are insepar-
grant of power to regulate commerce, nor any other
able. It would not be easy to fix on any political
clause of the Constitution, imposed any restrictions
truth, better established or more fully admitted in
as to the duration of an embargo, an unlimited pro-
our country, than that taxation and representation
hibition of the use of the shipping of the country
must exist together. We went into the war of the
was within the power of Congress. On this subject,
Revolution to assert it, and it is incorporated as fun-
Mr. Justice Daniel, speaking for the court in the
damental into all American Governments. But
case of United States v. Marigold, (9 How., 560,)
however true and important *622 this maxim may
says: ‘Congress are, by the Constitution, vested
be, it is not necessarily of universal application. It
with the power to regulate commerce with foreign
was for the people of the United States, who or-
nations; and however, at periods of high excite-
dained the Constitution, to decide whether it should
ment, an application of the terms ‘to regulate com-
or should not be permitted to operate within this
merce,’ such as would embrace absolute prohibi-
District. Their decision was embodied in the words
tion, may have been questioned, yet, since the pas-
of the Constitution; and as that contained no such
sage of the embargo and non-intercourse laws, and
exception as would permit the maxim to operate in
the repeated judicial sanctions these statutes have
this District, this court, interpreting that language,
received, it can scarcely at this day be open to
held that the exception did not exist.

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